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State v. Powells, 2014 WL 5835796 (Ct. App. Wis. 2014)

Case (cite)
State v. Powells, 2014 WL 5835796 (Ct. App. Wis. 2014)
Type of proceeding
Type of claim
Ineffective assistance of counsel
Type of claim (second claim)
Expert evidence ruling reversing or affirming on appeal:
What was the ruling?
Correct to Exclude
Type of evidence at issue:
Firearms identification
Defense or Prosecution Expert
Name of expert(s) who were the subject of the ruling
Mark Simonson
Summary of reasons for ruling
Defendant claims ineffective assistance of counsel for not objecting to the expert's testimony that the match was "to a degree of scientific certainty" because "recent state and federal cases have held firearm toolmakr evidence questionable." The court notes that the cases relied upon by the defendant use Duabert and that Daubert took place after the defendant's trial. The rule at that time was that "expert testimony was admissible if: (1) the evidence was relevant; (2) the witness was qualified as an expert by knowledge, skill, expertise, training, or education; and (3) the evidence would assist the trier of fact in determining a fact in issue." The could holds that the defendant's complaints go to the weight of the testimony but not its admissibility under the standard at the time. Further, the defendant failed to provide evidence of prejudice of the testimony because he did not present an opinion from another expert that would refute the testimony.
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


On the defendants Daubert complaints: “While Powells makes multiple complaints about Simonson’s testimony that might have some significance under the Daubert standard, such as Simonson’s level of education and professional certification, those complaints have no such heft here. In fact, in Jones—another case on which Powells relies-the defendant sought “a blanket rule barring as a matter of course all testimony purporting to tie cartridge cases and bullets to a particular gun … [citing] a number of articles and trial-level decisions questioning the efficacy of such evidence.” See id., 329 Wis.2d 498, ¶ 20, 791 N.W.2d 390. We refused to impose such a rule in light of our then-status as a non-Daubert state. Jones, 329 Wis.2d 498, ¶¶ 21–23, 791 N.W.2d 390.”