State v. Markell Hogan, 2021 WI App 24; case activity (including briefs)
A police officer who has experience investigating human trafficking cases and who has training from various prosecutorial and law enforcement conferences about the methods traffickers use may testify as an expert under §907.02 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
The officer, Remington, was a detective who investigated claims that Markell was trafficking “Mary” and attempted to entice a child, “Cathy,” into trafficking. Remington did not receive formal education in human trafficking or conduct research or publish studies on the subject. Her expertise derived from personal experience investigating these cases, attending training, and participating on a task force involving state and local law enforcement.
The state proposed to have Remington give exposition testimony about “some trends or commonalities” of trafficking victims and “some consistent behaviors” of traffickers to provide context for why an individual might feel pressured, coerced, or brainwashed by a trafficker into engaging in prostitution. This testimony was “general; she did not draw any conclusions regarding Hogan.”
Daubert requires trial courts to ensure that expert testimony is relevant and reliable. It held that when determining reliability courts should consider whether a scientific theory has been tested, subjected to peer review, published and so forth. Opinion, ¶21 (citing Daubert, 509 U.S. at 592-94). None of the ‘Daubert factors” fit Remington’s testimony, yet the court of appeals admitted it anyway.
The court of appeals began by tracing the evolution of this standard in federal court and explained how several recent SCOW cases fit within the Daubert framework. See Seifert v. Balink, 2017 WI 2, 372 Wis. 2d 525, 888 N.W.2d 816 (doctor’s testimony re prenatal care, see our posts here and here), State v. Dobbs, 2020 WI 64, ¶34, 392 Wis. 2d 505, 945 N.W.2d 609 (expert testimony re false confessions, see our post here), State v. Jones, 2018 WI 44, ¶¶29-32, 381 Wis. 2d 284, 911 N.W.2d 97 (expert testimony re ch. 980 actuarial instruments, see our post here). Opinion, ¶¶9-15.
Then, turning to the facts of this case, the court of appeals began by rejecting the argument that the study of human trafficking cannot ever form the basis of expert testimony under Daubert.
¶28 . . . The record in this case unquestionably establishes that significant federal and state governmental resources are devoted to studying, monitoring, and analyzing trends in human trafficking. There is no indication that the sociological examination of this criminal activity is a waste of time or “junk science.” And although Wisconsin courts have not analyzed a Daubert challenge on this particular set of facts, Hogan himself recognizes that a number of federal cases have considered the admission of expert testimony in human trafficking prosecutions. Trial courts in these cases have or have not admitted (or upheld the admission of) such testimony, as the circumstances dictate, but we are unaware of any case holding that human trafficking is an unfit subject for expertise. Rather, testimony on trends in human trafficking is nothing more than a subset of the “modus operandus” type of experience-based testimony routinely admitted in federal prosecutions. (Citations omitted).
Next, the court of appeals held that while Daubert‘s reliability factors have little application to nonscientific, experience-based testimony, this does not mean that the testimony is inherently unreliable. The court relied on Seifert (which yielded a lead opinion, not a majority opinion), where a doctor gave expert testimony about prenatal care based on his personal experience. Like Seifert, the court of appeals held that in this situation courts do not have to apply the Daubert factors. Other considerations may guide the reliability analysis.
¶29 . . . Here, the trial court determined that Remington’s “professional experience, education, training, and observations” were more meaningful indicators of reliability. The court then discussed the particular reasons to credit Remington’s testimony, including her work as a detective, the trainings she attended, and, importantly, her participation in the trafficking work group. What the court found significant was that Remington was not just testifying about her own experience—the multiple, overlapping bases for her expertise meant that, as the court put it, she had a broader “insight into what’s going on.”
¶30 Hogan himself admits that the Daubert factors are “nonexclusive.” Therefore, we will address no further his contention that Remington’s testimony was unreliable because those factors did not apply—except to note that, generally speaking, a trial court should not waste its time discerning, say, the “known or potential rate of error” or the testability of a social scientist’s methodology. See Daubert, 509 U.S. at 593-94. Particularly for those gaining hands-on expertise in sociology, criminology, and similar fields, the “methodology” underlying the expert’s conclusions is part and parcel of the expert’s qualifications, and may be nothing more than rigorous participation in all of the various activities, trainings, and experiences available to that individual. Thus, Hogan is incorrect when he argues, for example, that Remington “offers no methodology or process” by which she has determined that traffickers are “master manipulators.” Remington’s “methodology” was working with numerous traffickers and victims as a detective regularly discussing regional trafficking cases with her work group, reading publications on human trafficking, and volunteering with victims. From all these sources of experience, Remington was able to reach a generalized conclusion about common behavioral and personality traits of traffickers.
This case seems like a cross between Seifert (a doctor’s opinion based on personal experience) and Dobbs (exposition testimony about the social science of false confessions by a professor who has conducted studies and published articles in peer-reviewed journals). In Dobbs, SCOW excluded the false confession exposition testimony because it was not tied to the facts of that case. But it is not clear that Remington’s testimony satisfied this requirement either. The hearing in this case occurred before SCOW decided Dobbs, but that should not matter. Dobbs was based on longstanding federal case law interpreting Fed. R. Evid. 702, which is identical to §907.02.
This post misses the key distinction between Dobbs and the other precedents: what our Courts have made clear in these cases is that the State may enter whatever “expert” testimony it like, but the defense may not. These cases become much easier to reconcile once that basic concept is understood.
Indeed, we’ve made that observation in prior posts on Daubert. We’ve simply stopped beating the dead horse.