EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, April 11, 2011

I Am The Gatekeeper!: Wisconsin Adopts Daubert Test, Kicks Walstad Test To The Curb

As of 2010, 30 states had "adopted or applied the Daubert standard to determine whether to admit a witness to testify as an expert in a given field." Mark R. Nash, Are We There Yet?: Gatekeepers, Daubert, and an Analysis of State v. White, 61 S.C. L. Rev. 897, 897 n.6 (2010). These states were:

(1) Alaska, (2) Arkansas, (3) Colorado, (4) Connecticut, (5) Delaware, (6) Georgia, (7) Hawai'i, (8) Idaho, (9) Indiana, (10) Iowa, (11) Kentucky, (12), Louisiana, (13) Maine, (14) Massachusetts, (15) Michigan, (16) Mississippi, (17) Montana, (18) Nebraska, (19) New Hampshire, (20) New Mexico, (21) Ohio, (22) Oklahoma, (23) Oregon, (24) Rhode Island, (25) South Dakota, (26) Tennessee, (27) Texas, (28) Vermont, (29) West Virginia, and (30) Wyoming.

As of February 1st, that number now stands at a Baskin-Robbins-esque 31.

 Before February 1st, Wisconsin adhered to the holding of the Supreme Court of Wisconsin in State v. Walstad, 351 N.W.2d 469 (Wis. 1984). As Daniel D. Blinka, a professor at the Marquette University Law School, noted in Expert Testimony and the Relevancy Rule in the Age of Daubert, 90 Marq. L. Rev. 173-189-90 (2006),

Wisconsin has thus far rejected the federal reliability standard despite strong support for the change. There have been several unsuccessful legislative attempts to adopt federal Rules 702 and 703. The appellate courts have also rejected litigants' pleas to join the federal line. In State v. Peters, the defendant argued that statistical evidence regarding DNA testing had been erroneously introduced because it was unreliable. The court of appeals flatly rejected the argument that Wisconsin law required a finding of reliability as "a necessary condition to the admission of scientific evidence," as does Daubert and Frye. Put differently, "the rule remains in Wisconsin that the admissibility of scientific evidence is not conditioned upon its reliability." Walstad had rejected the Frye standard and, it followed, that the relevancy rule too "was unaffected by Daubert." Scientific evidence, said the Peters court, "is admissible if: (1) it is relevant, § 904.01, Stats.; (2) the witness is qualified as an expert, § 907.02, Stats.; and (3) the evidence will assist the trier of fact in determining an issue of fact, § 907.02." Moreover, Peters broadly asserted that "scientific evidence is admissible under the relevancy test regardless of the scientific principle that underlies the evidence."

As reported by Milwaukee County Circuit Court Judge John DiMotto on his blog, Bench and Bar Experiences, however,

By the passage of Senate Bill 1 during the recent 2011 Special Legislative Session called for the purpose of addressing tort reform, Wisconsin is poised to join the federal courts and the majority of states by adopting the Daubert "reliability" Rule for the admission of expert testimony. No longer will Wisconsin rely on the Walstad "relevancy" rule, rather Wisconsin judges will now take a more active "gatekeeper" role in the first instance.


by virtue of the amendments to 907.02 and 907.03, the Walstad "relevancy" Rule has been superseded by the Daubert "reliability" Rule (as amended by changes in 2000).

As a result, Wisconsin trial judges now must be "gatekeepers" as to all expert testimony as to both relevancy and reliability. Absent a stipulation, Wisconsin trial judges should conduct a 901.04 hearing outside the presence of the jury to determine whether expert testimony will or will not be admitted. In that hearing the trial judge will be guided by Daubert factors and others from cases subsequent to Daubert.

And, for a full discussion of the import of this change, you can check out Professor Blinka's excellent piece on the topic in the March 2011 issue of the Wisconsin Lawyer.

So, that now leaves 19 states which have not adopted Daubert, including my state of Illinois, which still applies the Frye test. Over the next several months, I plan to do a series of posts highlighting these state variations.



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