1997 Chapter 907

CHAPTER 907

EVIDENCE — OPINIONS AND EXPERT TESTIMONY

907.01 Opinion testimony by lay witnesses.

907.02 Testimony by experts.

907.03 Bases of opinion testimony by experts.

907.04 Opinion on ultimate issue.

907.05 Disclosure of facts or data underlying expert opinion.

907.06 Court appointed experts.

907.07 Reading of report by expert.

Ch. 907 Note NOTE: Extensive comments by the Judicial Council Committee and the Federal Advisory Committee are printed with chs. 901 to 911 in 59 W (2d). The court did not adopt the comments but ordered them printed with the rules for information purposes.

907.01 907.01  Opinion testimony by lay witnesses. If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.

907.01 History History: Sup. Ct. Order, 59 W (2d) R1, R205 (1973); 1991 a. 32.

907.02 907.02  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.

907.02 History History: Sup. Ct. Order, 59 W (2d) R1, R206 (1973).

907.02 Annotation A chemist testifying as to the alcohol content of blood may not testify as to the physiological effect that the alcohol would have on defendant. State v. Bailey, 54 W (2d) 679, 196 NW (2d) 664.

907.02 Annotation The trial court abused its discretion in ordering defendant to make its expert available for adverse examination because the agreement was for the exchange of expert reports only and did not include adverse examination of the expert retained by defendant. Broaster Co. v. Waukesha Foundry Co. 65 W (2d) 468, 222 NW (2d) 920.

907.02 Annotation In personal injury action, court did not err in permitting psychologist specializing in behavioral disorders to refute physician's medical diagnosis where specialist was qualified expert. Qualification of expert is matter of experience, not licensure. Karl v. Employers Ins. of Wausau, 78 W (2d) 284, 254 NW (2d) 255.

907.02 Annotation Standard of nonmedical, administrative, ministerial or routine care in hospital need not be established by expert testimony. Any claim against hospital based on negligent lack of supervision requires expert testimony. Payne v. Milw. Sanitarium Foundation, Inc. 81 W (2d) 264, 260 NW (2d) 386.

907.02 Annotation Jury may not infer permanent loss of earning capacity from evidence of permanent injury in absence of some additional expert testimony to support such loss. Koele v. Radue, 81 W (2d) 583, 260 NW (2d) 766.

907.02 Annotation Res ipsa loquitur instructions may be grounded on expert testimony in medical malpractice case. Kelly v. Hartford Cas. Ins. Co. 86 W (2d) 129, 271 NW (2d) 676 (1978).

907.02 Annotation Hypothetical question may be based on facts not yet in evidence. Novitzke v. State, 92 W (2d) 302, 284 NW (2d) 904 (1979).

907.02 Annotation Admissibility of psychiatric testimony for impeachment purposes discussed. Hampton v. State, 92 W (2d) 450, 285 NW (2d) 868 (1979).

907.02 Annotation Psychiatric witness, whose qualifications as expert were conceded, had no scientific knowledge on which to base opinion as to accused's lack of specific intent to kill. State v. Dalton, 98 W (2d) 725, 298 NW (2d) 398 (Ct. App. 1980).

907.02 Annotation See note to Art. I, sec. 7, citing Hagenkord v. State, 100 W (2d) 452, 302 NW (2d) 421 (1981).

907.02 Annotation Polygraph evidence is inadmissible in any criminal proceeding unless Stanislawski stipulation was executed on or before September 1, 1981. State v. Dean, 103 W (2d) 228, 307 NW (2d) 628 (1981).

907.02 Annotation See note to 972.11, citing State v. Armstrong, 110 W (2d) 555, 329 NW (2d) 386 (1983).

907.02 Annotation Expert testimony regarding fingernail comparisons for identification purposes was admissible. State v. Shaw, 124 W (2d) 363, 369 NW (2d) 772 (Ct. App. 1985).

907.02 Annotation Bite mark evidence presented by experts in forensic odontology was admissible. State v. Stinson, 134 W (2d) 224, 397 NW (2d) 136 (Ct. App. 1986).

907.02 Annotation Expert may give opinion regarding consistency of complainant's behavior with that of victims of same type of crime only if testimony will assist fact finder in understanding evidence or determining fact, but is prohibited from testifying about complainant's truthfulness. State v. Jensen, 147 W (2d) 240, 432 NW (2d) 913 (1988).

907.02 Annotation Experience, as well as technical and academic training, is proper basis for giving expert opinion. State v. Hollingsworth, 160 W (2d) 883, 467 NW (2d) 555 (Ct. App. 1991).

907.02 Annotation Where the state seeks to introduce testimony of experts who have personally examined a sexual assault victim that the victim's behavior is consistent with other victims, a defendant may request an examination of the victim by its own expert. State v. Maday, 179 W (2d) 346, 507 NW (2d) 365 (Ct. App. 1993). See also State v. Schaller, 199 W (2d) 23, 544 NW (2d) 247 (Ct. App. 1995).

907.02 Annotation Expert opinion regarding victim recantation in domestic abuse cases is permissible. State v. Bednarz, 179 W (2d) 460, 507 NW (2d) 168 (Ct. App. 1993).

907.02 Annotation Where the state inferred that a complainant sought psychological treatment as the result of a sexual assault by the defendant but did not offer the psychological records or opinions of the therapist as evidence, it was not improper to deny the defendant access to the records where the court determined that the records contained nothing which was material to the fairness of the trial. State v. Mainiero, 189 W (2d) 80, 525 NW (2d) 304 (Ct. App. 1994).

907.02 Annotation An expert may give an opinion about whether a person's behavior and characteristics are consistent with battered woman's syndrome, but may not give an opinion on whether the person had a reasonable belief of being in danger at the time of a particular incident. State v. Richardson, 189 W (2d) 418, 525 NW (2d) 378 (Ct. App. 1994).

907.02 Annotation Expert testimony is necessary to establish the point of impact of an automobile accident. Wester v. Bruggink, 190 W (2d) 308, 527 NW (2d) 373 (Ct. App. 1994).

907.02 Annotation Scientific evidence is admissible, regardless of underlying scientific principles, if it is relevant, the witness is qualified as an expert and the evidence will assist the trier of fact. State v. Peters, 192 W(2d) 674, 534 NW (2d) 867 (Ct. App. 1995).

907.02 Annotation An indigent may be entitled to have the court compel the attendance of an expert witness. It may be error to deny a request for an expert to testify on the issue of suggestive interview techniques used with a young child witness if there is a "particularized need" for the expert. State v. Kirschbaum, 195 W (2d) 11, 535 NW (2d) 462 (Ct. App. 1995).

907.02 Annotation Items related to drug dealing, including gang-related items, is an area of specialized knowledge and a proper topic for testimony by qualified narcotics officers. State v. Brewer, 195 W (2d) 295, 536 NW (2d) 406 (Ct. App. 1995).

907.02 Annotation Generally expert evidence of personality dysfunction is irrelevant to the issue of intent in a criminal trial although it might be admissible in very limited circumstances. State v. Morgan, 195 W (2d) 388, 536 NW (2d) 425 (Ct. App. 1995).

907.02 Annotation The admissibility of novel scientific evidence: The current state of the Frye test in Wisconsin. Van Domelen. 69 MLR 116 (1985)

907.02 Annotation Scientific Evidence in Wisconsin: Using Reliability to Regulate Expert Testimony. 74 MLR 261.

907.02 Annotation State v. Dean: A compulsory process analysis of the inadmissibility of polygraph evidence. 1984 WLR 237.

907.02 Annotation The psychologist as an expert witness. Gaines, 1973 WBB No. 2.

907.02 Annotation Scientific Evidence in Wisconsin after Daubert. Blinka. Wis. Law. Nov. 1993.

907.02 Annotation The Use and Abuse of Expert Witnesses. Brennan. Wis. Law. Oct. 1997.

907.03 907.03  Bases of opinion testimony by experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

907.03 History History: Sup. Ct. Order, 59 W (2d) R1, R208 (1973); 1991 a. 32.

907.03 Annotation The trial court properly admitted an opinion of a qualified electrical engineer although he relied on a pamphlet objected to as inadmissible hearsay. Comment on 907.03 and Judicial Council note. E. D. Wesley Co. v. City of New Berlin, 62 W (2d) 668, 215 NW (2d) 657.

907.03 Annotation See note to 908.03, citing Klingman v. Kruschke, 115 W (2d) 124, 339 NW (2d) 603 (Ct. App. 1983).

907.03 Annotation Trial court erred by barring expert testimony on impaired future earning capacity based on government surveys. Brain v. Mann, 129 W (2d) 447, 385 NW (2d) 227 (Ct. App. 1986).

907.03 Annotation While opinion evidence may be based upon hearsay, the underlying hearsay data may not be admitted unless it is otherwise admissible under a hearsay exception. State v. Weber, 174 W (2d) 98, 496 NW (2d) 762 (Ct. App. 1993).

907.03 Annotation An evaluation of drug testing procedures. Stein, Laessig, Indriksons, 1973 WLR 727.

907.04 907.04  Opinion on ultimate issue. Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

907.04 History History: Sup. Ct. Order, 59 W (2d) R1, R211 (1973).

907.05 907.05  Disclosure of facts or data underlying expert opinion. The expert may testify in terms of opinion or inference and give the reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

907.05 History History: Sup. Ct. Order, 59 W (2d) R1, R213 (1973); 1991 a. 32.

907.06 907.06  Court appointed experts.

907.06(1) (1)  Appointment. The judge may on the judge's own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The judge may appoint any expert witnesses agreed upon by the parties, and may appoint witnesses of the judge's own selection. An expert witness shall not be appointed by the judge unless the expert witness consents to act. A witness so appointed shall be informed of the witness's duties by the judge in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness's findings, if any; the witness's deposition may be taken by any party; and the witness may be called to testify by the judge or any party. The witness shall be subject to cross-examination by each party, including a party calling the expert witness as a witness.