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State v. Jones, 791 N.W.2d 390 (Ct. App. Wis. 2010)

Case (cite)
State v. Jones, 791 N.W.2d 390 (Ct. App. Wis. 2010)
Type of proceeding
Type of claim
Type of claim (second claim)
Ineffective assistance of counsel
Expert evidence ruling reversing or affirming on appeal:
What was the ruling?
Correct to Admit
Type of evidence at issue:
Firearms identification
Defense or Prosecution Expert
Name of expert(s) who were the subject of the ruling
Does not name the expert
Summary of reasons for ruling
Defendant argues that evidence linking a bullet to a specific gun should never be admissible and the trial court erred in admitting the expert testimony, citing decisions from other courts questioning the reliability of toolmark identification. The court holds that although a bar on this evidence is within their power, it would violate longstanding WI law that only requires evidence to aid the jury and be reliable enough to be probative which is simple a relevancy test. The court further declines a blanket rule, noting that even in federal courts, the admission of this evidence is decided on a case-by-case basis and should therefore be left to the trial court's discretion.Given that the defendant's attorney did not object to the testimony, it can only be reviewed as ineffective assistance of counsel. The court holds that even assuming, without deciding, that counsel was deficient for failing to question the efficacy of firearms identification, the defendant did not sufficiently show prejudice.Defendant also alleges prosecutorial misconduct for not objecting to the expert's testimony to the effect that no other gun could have fired the bullet. The court holds that he did not sufficiently allege this contention, but rather just refers to the part of his brief claiming the methods are unreliable. (The court was angry about this argument and cautions the attorney against frivolous arguments)
The jurisdiction’s standard for expert admissibility at the time – list all that apply: (Frye), (Daubert), (Post-2000 Rule 702), (Other)
Second standard
Did lower court hold a hearing
Names of prosecution expert(s) two testified at hearing
Names of defense expert(s) who testified at hearing (or None).
Discussion of 2009 NAS Report (NAS2009)
Discussion of 2016 PCAST report (PCAST)
Discussion of error rates / reliability
Frye Ruling
Limiting testimony ruling
Language imposed by court to limit testimony
Ruling based in prior precedent / judicial notice
Daubert ruling emphasizing – which factors – (list 1-5)
Ruling on qualifications of expert
Ruling on 702(a) – the expert will help / assist the jury
Ruling on 702(b) – the testimony is based on sufficient facts or data
Ruling on 702(c) – the testimony is the product of reliable principles and methods
Ruling on 702(d) – reliable application of principles and methods to the facts of the case


Wisconsin standard for expert testimony: Unlike in the federal system, where the trial judge is a powerful gatekeeper with respect to the receipt of proffered expert evidence . . . . Wisconsin gives to the trial judge a more-limited role: the trial judge “merely require [s] the evidence to be ‘an aid to the jury’ or ‘reliable enough to be probative.’ ” State v. Walstad, 119 Wis.2d 483, 519, 351 N.W.2d 469, 487 (1984) (quoted source and one set of quotation marks omitted). Simply stated, this is a “relevancy test.” Ibid. Walstad explained:
In a state such as Wisconsin, where substantially unlimited cross-examination is permitted, the underlying theory or principle on which admissibility is based can be attacked by cross-examination or by other types of impeachment. Whether a scientific witness whose testimony is relevant is believed is a question of credibility for the finder of fact, but it clearly is admissible




About deciding the case on public policy: “Although it is true, as Jones and The Innocence Network assert, that the supreme court has applied so-called “public policy” criteria to determine that certain types of evidence should never be received in Wisconsin courts, see State v. Dean, 103 Wis.2d 228, 278–279, 307 N.W.2d 628, 653 (1981) (polygraph testing) (“[W]e have not undertaken to evaluate the reliability of the polygraph. We recognize today … that the science and art of polygraphy have advanced and that the polygraph has a degree of validity and reliability. We are, nevertheless, not persuaded that the reliability of the polygraph is such as to permit unconditional admission of the evidence.”); and Steele v. State, 97 Wis.2d 72, 97, 294 N.W.2d 2, 13–14 (1980) (excluding expert mind-science opinion whether defendant had criminal-intent capacity because such “evidence is neither competent, relevant, nor probative for [that] purpose”), those decisions are essentially islands in the law because the supreme court has declined to use public-policy criteria to truncate a trial court’s discretion in receiving or excluding evidence. See State v. Davis, 2002 WI 75, ¶¶ 14–15, 254 Wis.2d 1, 13–14, 645 N.W.2d 913, 919–920. Indeed, as Morgan v. Krenke, 232 F.3d 562, 563–564 (7th Cir.2000), recognized, Steele’s blanket exclusion was, in essence, based on the policy view that “ ‘[w]hether or not there should be criminal responsibility is essentially a moral issue.’ ”


Note: The Innocence Network submitted a brief requesting the rule: [T]hat in any future cases where ballistics opinion evidence is offered, the expert (1) may not be permitted to express an opinion that the field of ballistics, firearm and toolmark comparison identification is infallible, or has an error rate of zero, or any similar such pretension; (2) may not be permitted to express an opinion to a reasonable “scientific” or “professional” certainty; (3) may express only an opinion that it is “more likely than not” that a particular identification is made; and (4) may only present opinion testimony to the jury if the witness is prepared to show (by photographs, video or other visual representations) what specific markings are being relied upon in reaching the opinion.