State v. Jones (In re Commitment of Jones)

• Decision Date: 04 May 2018
• Docket Number: No. 2015AP2665,2015AP2665
• Parties: IN RE the COMMITMENT OF Anthony JONES: State of Wisconsin, Petitioner–Respondent, v. Anthony Jones, Respondent–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

381 Wis.2d 284

911 N.W.2d 97

2018 WI 44

IN RE the COMMITMENT OF Anthony JONES:State of Wisconsin, Petitioner–Respondent,

v.Anthony Jones, Respondent–Appellant–Petitioner.

No. 2015AP2665

Supreme Court of Wisconsin.

Oral Argument: February 21, 2018

Opinion Filed: May 4, 2018

For the respondent-appellant-petitioner, there were briefs filed by and an oral argument by Andrew R. Hinkel, assistant state public defender.

For the petitioner-respondent, there was a brief filed by Amy C. Miller, assistant solicitor general, with whom on the brief were Brad D. Schimel, Attorney General, and Misha Tseytlin, solicitor general. There was an oral argument by Amy C. Miller.

ANNETTE KINGSLAND ZIEGLER, J.

¶ 1 This is a review of an unpublished, unauthored summary affirmance of the court of appeals, State v. Jones, No. 2015AP2665, unpublished order, 2017 WL 1324281 (Wis. Ct. App. Apr. 10, 2017), affirming the Dane County circuit court's¹ judgment finding Anthony Jones ("Jones") to be a "sexually violent person" under Wis. Stat. § 980.02(1)(a) (2015–16).²

¶ 2 On November 29, 1993, Jones was convicted of three counts of second-degree sexual assault, use of force, under Wis. Stat. § 940.225(2)(a), and was scheduled to be released from custody on August 15, 2013. On August 9, 2013, the State filed a petition to commit Jones as a sexually violent person, pursuant to Wis. Stat. ch. 980. Prior to the commitment trial, Jones filed a motion in limine to exclude testimony pertaining to the Minnesota Sex Offender Screening Tool–Revised ("MnSOST–R") and the Rapid Risk Assessment for Sexual Offense Recidivism ("RRASOR"),³ which are actuarial instruments designed to measure an offender's risk of reoffending. He argued that testimony as to the results produced by these instruments was not admissible under Wis. Stat. § 907.02 because it was not based on sufficient facts or data, was not the product of reliable principles and methods, and was not reliably applied to the facts of his case. The circuit court denied the motion, finding that such testimony was admissible. After a four-day trial, the jury found that Jones was "a sexually violent person, as alleged in the petition." Jones appealed.

¶ 3 The court of appeals affirmed. It held that the circuit court had not erroneously exercised its discretion in admitting the testimony because the circuit court applied the proper standard and found that the instruments were the product of sufficient facts or data, that the instruments were the product of reliable principles and methods, and that the instruments had been the subject of extensive review. The court of appeals further noted that Jones' arguments went to weight, not admissibility, and that, therefore, he had had the opportunity to discredit the testimony through cross-examination. Jones petitioned for review.

¶ 4 We consider one issue on review: whether the circuit court erroneously exercised its discretion under Wis. Stat. § 907.02(1) when it admitted expert testimony based on the results of the MnSOST–R and the RRASOR tests. We conclude that the circuit court did not erroneously exercise its discretion because it evaluated the relevant facts under the proper standard and articulated a reasonable basis for its decision.

¶ 5 Thus, we affirm the decision of the court of appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Statutory History

¶ 6 The admissibility of expert testimony is governed by Wis. Stat. § 907.02. Prior to 2011, § 907.02 read as follows:

Testimony by experts. If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Wis. Stat. § 907.02 (2009–10). This was a liberal standard. Under this prior standard

"questions of the weight and reliability of relevant evidence [were] matters for the trier of fact." State v. Fischer, 2010 WI 6, ¶ 7, 322 Wis. 2d 265, 778 N.W.2d 629. "[E]xpert testimony [was] generally admissible in the circuit court's discretion if the witness [was] qualified to testify and the testimony would help the trier of fact understand the evidence or determine a fact at issue." State v. Kandutsch, 2011 WI 78, ¶ 26, 336 Wis. 2d 478, 799 N.W.2d 865.

Seifert v. Balink, 2017 WI 2, ¶ 174, 372 Wis. 2d 525, 888 N.W.2d 816 (Ziegler, J., concurring) (alterations in original). "This was a ‘low threshold.’ " Id. (citations omitted).

¶ 7 In 2011, the legislature amended the statute,⁴ which now reads as follows:

Testimony by experts. (1) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.

(2) Notwithstanding sub. (1), the testimony of an expert witness may not be admitted if the expert witness is entitled to receive any compensation contingent on the outcome of any claim or case with respect to which the testimony is being offered.

Wis. Stat. § 907.02. These changes adopted the federal standard, which incorporates the analysis promulgated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Seifert, 372 Wis. 2d 525, ¶ 6, 888 N.W.2d 816.⁵

¶ 8 In Daubert, the United States Supreme Court concluded that Federal Rule of Evidence 702 imposed two requirements for the admission of expert testimony: (1) that "[t]he subject of an expert's testimony must be ‘scientific ... knowledge’ "; and (2) that "the evidence or testimony [must] assist the trier of fact to understand the evidence or to determine a fact in issue." Daubert, 509 U.S. at 589–91, 113 S.Ct. 2786. In determining whether expert testimony meets this standard, the Court set forth a nonexclusive list of questions courts should consider when making these determinations:

• whether the evidence can be (and has been) tested;

• whether the theory or technique has been subjected to peer review and publication;

• the known or potential rate of error;

• the existence and maintenance of standards controlling the technique's operation; and

• the degree of acceptance within the relevant scientific community.

Id. at 593–94, 113 S.Ct. 2786. The Court later held that Daubert's general principles were not limited to "scientific" knowledge, and that the analysis applies to all expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147–48, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

B. Factual and Procedural Background

¶ 9 As noted above, this case arises from Jones' three convictions for second-degree sexual assault on November 29, 1993. Jones was sentenced to 15 years probation for these convictions, but Jones' probation was revoked when he committed another sexual assault. He was then sentenced to 10 years imprisonment and was due to be released on August 15, 2013.

¶ 10 Just before his release date, on August 9, 2013, the State filed a petition to commit Jones as a "sexually violent person." Wis. Stat. §§ 980.02(1)(a), 980.01(7). The State based its petition on the report of Anthony Jurek, Ph.D., which documented Jones' history of sexual and non-sexual arrests, charges, and convictions, his misconduct as an inmate, his probation violations, and his scores on four actuarial instruments:

• On the RRASOR, Jones scored a 5, which corresponds to a 49.8 percent rate of reconviction for sexual offenses within 5 years and a 55.3 percent rate within 10 years.

• On MnSOST–R, Jones scored an 11, which corresponds to a 30 percent rate of recidivism within 6 years.

• On the Static Risk Assessment 99 ("Static–99"), Jones scored a 9, which corresponds to a 39 percent rate of reconviction for sexual offenses over 5 years, a 45 percent rate within 10 years, and a 52 percent rate within 15 years.

• On the Static–99R, Jones scored an 8, which corresponds to a 45 percent rate of re-arrest and reconviction within 5 years, and a 55.3 percent rate within 10 years.

The State alleged that these scores "support [Dr. Jurek's] conclusion that [Jones] is ‘more likely than not’ to commit a sexually violent offense in the future."

¶ 11 On August 23, 2013, the circuit court held a probable cause hearing, found "probable cause to believe that [Jones] is a sexually violent person within the meaning of Wis. Stat. § 980.01(7)," and ordered that Jones remain in custody pending the outcome of the commitment proceedings.

1. The Daubert hearing

¶ 12 On June 17, 2014, Jones filed a motion to bar testimony pursuant to Wis. Stat. § 907.02. In general, he argued that expert testimony regarding any results of the MnSOST–R, the RRASOR, and the Static–99 should be excluded because they are not based on sufficient facts or data, they are not the product of reliable principles and methods, and they were not applied reliably to the facts of Jones' case. "Specifically, [Jones argued that] all three actuarial risk instruments have obsolete norms and fail to adequately take into account the correlation between age and recidivism risk." He argued that the MnSOST–R is particularly flawed because it has not been published in an academic journal, was developed using inadequately small and unrepresentative samples (256 offenders), and excludes offenders known to have lower recidivism rates. Similarly, Jones argued that the RRASOR has not been published in an academic journal, was developed using inadequately small and unrepresentative samples (2,592 offenders), and its 10–year reconviction rate is just a factor of the 5–year reconviction rate, that is, it is not based on empirical data.

¶ 13 On August 20, 2014, the State filed its response. It...