                                                            2018 WI 44

                    SUPREME COURT           OF   WISCONSIN
CASE NO.:              2015AP2665
COMPLETE TITLE:        In re the commitment of Anthony Jones:

                       State of Wisconsin,
                                 Petitioner-Respondent,
                            v.
                       Anthony Jones,
                                 Respondent-Appellant-Petitioner.

                            REVIEW OF DECISION OF THE COURT OF APPEALS
                                             (no cite)

OPINION FILED:         May 4, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         February 21, 2018

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Dane
   JUDGE:              Rhonda L. Lanford

JUSTICES:
   CONCURRED:          R.G. BRADLEY, J., concurs, joined by ABRAHAMSON,
                       J., and KELLY, J. (opinion filed).
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:


       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.
                                                                               2018 WI 44
                                                                       NOTICE
                                                        This opinion is subject to further
                                                        editing and modification.   The final
                                                        version will appear in the bound
                                                        volume of the official reports.
No.   2015AP2665
(L.C. No.    2013CI4)

STATE OF WISCONSIN                                  :            IN SUPREME COURT

In re the commitment of Anthony Jones:

State of Wisconsin,
                                                                            FILED
             Petitioner-Respondent,
                                                                        MAY 4, 2018
      v.
                                                                          Sheila T. Reiff
Anthony Jones,                                                         Clerk of Supreme Court


             Respondent-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                       Affirmed.



      ¶1     ANNETTE KINGSLAND ZIEGLER, J.                 This is a review of an
unpublished,      unauthored        summary   affirmance          of     the    court      of

appeals, State v. Jones, No. 2015AP2665, unpublished order (Wis.

Ct.   App.    Apr.      10,    2017),   affirming       the   Dane     County        circuit

court's1     judgment         finding   Anthony   Jones        ("Jones")        to    be    a




      1
          The Honorable Rhonda L. Lanford presided.
                                                                       No.     2015AP2665



"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.



        2
       All references to the Wisconsin Statutes are to the 2015-
16 version unless otherwise noted.
        3
       Jones also sought to exclude testimony pertaining to the
Static Risk Assessment 99 ("Static-99"), but he does not renew
his challenge to that testimony here.


                                              2
                                                                       No.     2015AP2665



       ¶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,

                                            3
                                                                 No.     2015AP2665


    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.


    4
        See 2011 Wis. Act 2, §§ 34m, 37.


                                     4
                                                                       No.       2015AP2665



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 (1993).                              See

Seifert, 372 Wis. 2d 525, ¶6.5

       ¶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.                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


       5
       Although there was no majority opinion in Seifert v.
Balink, 2017 WI 2, 372 Wis. 2d 525, 888 N.W.2d 816, a majority
of the court agreed that the amendment of Wis. Stat. § 907.02
adopted the federal Daubert standard.         See Seifert, 372
Wis. 2d 525, ¶6 (lead opinion); id., ¶169 (Ziegler, J.,
concurring); id., ¶¶193, 257 (Gableman, J., concurring, joined
by Roggensack, C.J.);      id., ¶¶263 n.3, 296 (Kelly, J.,
dissenting, joined by R. Grassl Bradley, J.).


                                             5
                                                                                 No.    2015AP2665



         the degree of acceptance within the relevant scientific

          community.

Id. at 593-94.            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 (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.

                                               6
                                                                                     No.     2015AP2665



           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

                                                   7
                                                         No.   2015AP2665



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

noted that Jones did not appear to be challenging the use of

actuarial   instruments   in   general,   or   the   qualifications   of

Dr. Jurek or the State's other expert, Bradley Allen, Ph.D.           The

State then argued that the MnSOST-R, RRASOR, and Static-99

    have all been carefully researched, widely discussed
    and dissected in the professional literature.     They
    are the product of sophisticated, but hardly novel,
    statistical techniques for the analysis of large
    amounts of data.       Experts may disagree on the
    application, scoring, interpretation and weight to be
    given to the various actuarial instruments . . . but
    that is a different matter than claiming that the
    instruments themselves are not the product of reliable
    data, and principles.
In this regard, the State observed that all of the experts——

Jones' included——rely on substantially the same risk assessment

methodology, but give weight to different factors during that

process.    It argued that "these differences are not a matter of
admissibility," but rather that they are matters "best resolved


                                   8
                                                                           No.       2015AP2665



through      cross-examination         and        the     presentation         of       contrary

evidence."

       ¶14     On August 25 and 26, 2014, the circuit court held a

hearing on the motion.              At the hearing, Dr. Jurek and Dr. Allen

testified for the State, and Richard Waller, Ph.D., testified

for Jones.

       ¶15     Dr. Jurek testified that his evaluations incorporate a

review       of    records      from     the       police,         the    Department           of

Corrections,        and    probation        officers,         as   well    as       a    social

history, substance abuse history, sexual history, and treatment

history, along with the actuarial assessments.                              He explained

that     "an      actuarial     assessment         is        the   use    of        particular

demographic variables that you can score a particular individual

on, and then compare their score to individuals in a sample

population        who    have   a   known     rate      of    recidivism."              He   also

explained that all of the instruments have limitations, and, at

best, have "moderate" predictive accuracy, but that evaluators

incorporate        the    results      from       these      instruments        into         their
reports because "[u]sing the actuarials has been proven to be

more accurate."           In this regard, Dr. Jurek noted that there is

no one best instrument, that every instrument has limitations,

and that which instrument to use is a matter of preference and a

matter of how evaluators weigh the results in the process of

their evaluation.          He then testified regarding each of the four

actuarial instruments that he used in his evaluation of Jones.

       ¶16     With regard to the MnSOST-R, Dr. Jurek testified that,
although there is no definitive academic paper on the test, 12
                                              9
                                                                               No.     2015AP2665



research inquiries have found it to have a positive relationship

to sexual recidivism.               He also testified that the MnSOST-3——a

more       recent     instrument      published            by    the     creators       of    the

MnSOST-R——is not a replacement because its sample is made up of

different kinds of offenders than were included in the sample

for the MnSOST-R.            In this regard, he was aware of the criticism

that the purposeful exclusion of offenders known to be low-risk

(intrafamilial and non-contact offenders) resulted in a sample

biased       to     overestimate      risk,          but   testified         that      selective

sampling can be useful if the goal is to homogenize the sample

to improve predictive accuracy for a more specific population of

people.       He was also aware of the criticism that the dichotomous

way in which the MnSOST-R accounts for age6 is inadequate because

it fails to account for the observed trend that the risk of

recidivism continues to decline in a linear fashion as offenders

age, but testified that accounting for age differently does not

mean that the test inadequately accounts for age.                                   Ultimately,

Dr. Jurek testified that the MnSOST-R is based on sufficient
facts      and    data,      and    that    it        is   the       product      of   reliable

principles and methods.

       ¶17    With regard to the RRASOR, Dr. Jurek testified that,

although      the     test    was    not    originally           published        in    a    peer-

reviewed      journal,       he    used    it    because        it     has   an     established

       6
       In applying the MnSOST-R, evaluators add a point to an
offender's score if he or she is less than 30 years old and no
points are added or subtracted if he or she is more than 30
years old.


                                                10
                                                                           No.    2015AP2665



history of use, with approximately 35 studies demonstrating a

positive relationship to sexual recidivism.                        He was aware of the

criticism that the sample had not been updated since 1997 (when

it    was    first    published),      but    testified           that,    even     "if   the

general      norms    for   sexual     recidivism[]          go    down,     [if]    you're

working in a [high-risk] population, the newer norms don't do

you any good."         He was also aware of the criticism that the 10-

year recidivism rates are simply a multiplication factor of the

5-year recidivism rates (i.e., are not based on empirical data),

but disagreed that that was actually the case.                              Additionally,

the same criticism raised regarding age against the MnSOST-R was

raised against the RRASOR, but, as he had testified regarding

the    MnSOST-R,      Dr. Jurek       testified       that    the       dichotomous       age7

metric did not render the instrument ineffective.                             Ultimately,

Dr. Jurek testified that the RRASOR is based on sufficient facts

and data, and that it is the product of reliable principles and

methods.

       ¶18       Dr. Allen also testified for the State.                    He testified
primarily with regard to the Static-99 and the Static-99R, which

were       the    instruments    he    had        relied     on    in     conducting      his

evaluation of Jones.            He did, however, testify that he did not

use the RRASOR because he believed it to be outdated, but that

there was nothing unreliable about the data used to construct

       7
       In applying the RRASOR, evaluators add a point to an
offender's score if he or she is less than 25 years old and no
points are added or subtracted if he or she is more than 25
years old.


                                             11
                                                                   No.   2015AP2665



it.    Specifically, on the issue of measuring the effect of age

on the risk of recidivism, Dr. Allen testified that, "although

age [] is definitely a factor to consider, we don't know why."

He    suggested    that    it   could     be   because    older   offenders    are

underreported, or it could be related to declining health in

older offenders.          He acknowledged that "[k]nowing why age and

recidivism are correlated . . . is not needed to conclude that

incorporating      age    can   improve    risk   assessment      measures,"   but

testified that the fact that there is a debate about how to

incorporate the age factor does not equate with unreliability or

invalidity.       Ultimately, he concluded that responsible examiners

may responsibly use different actuarial instruments and that it

is "somewhat prudent to look at all the different assessments,

and all the different factors and consider them for a particular

individual."

       ¶19   Dr. Waller testified for Jones and testified about all

four tests.       He prefaced his testimony by noting that he had not

himself evaluated Jones; rather, his testimony was based on the
evaluations of Drs. Jurek and Allen,                and    his own expertise,

given his approximately 30 years in the field.

       ¶20   With regard to the MnSOST-R, Dr. Waller testified that

it was not based on sufficient facts and data and was not based

on reliable principles and methods because it had not been peer




                                          12
                                                                             No.    2015AP2665



reviewed,8 the sample on which it is based is small, biased, and

unrepresentative             as    applied   to       Jones,    and   no     one   has   ever

analyzed which of the 16 factors the MnSOST-R accounts for are

actually         related      to    recidivism.         In     particular,     the    biased

nature of the sample "virtually guarantees a high false positive

rate over estimating the probability of recidivism."

       ¶21       With regard to the RRASOR, Dr. Waller testified that

it was not based on sufficient facts and data and was not based

on reliable principles and methods because its dichotomous means

of accounting for age is inadequate, its data set is many years

old,       and    the       10-year     rates     are    simply       the    5-year      rates

multiplied         by   a    factor     of   1.5,      which    is    a   serious     problem

because actual empirical data indicates that the farther out you

go the less likely offenders are to reoffend.

       ¶22       Despite these criticisms, Dr. Waller acknowledged that

not    all       offenders        are   alike,    that    different         subgroups    have

different risks, and that the best way to determine the risk of

recidivism is to compare the individual to a similar subgroup.
Additionally, Dr. Waller acknowledged that actuarial assessment

is a complex task, that there is more than one way to conduct an

actuarial assessment, and that all actuarial instruments have

       8
       Dr. Waller defined "peer review[ed]" as "a method of
judging the merits of a scientific article, and making a
determination of whether it meets the standards of a journal."
On cross-examination, however, he agreed that there is more than
one way to peer review, including that "it can be peer-reviewed
if it's given at a, say, conference, but it doesn't have the
same weight."


                                                 13
                                                   No.   2015AP2665



limits.   In this regard, he agreed with Dr. Jurek that the

instruments all report error rates and, at best, have moderate

predictive accuracy.

    ¶23   After hearing brief closing arguments from counsel,

the circuit court concluded that testimony as to the results

from the MnSOST-R and the RRASOR was admissible.    In doing so,

it explained the standard it was applying as follows:

         [Wisconsin Stat. § 907.02] was revised in 2011
    and tracks federal rule 702 also known as the Daubert
    standard . . . named after Daubert versus Merrell Dow
    Pharmaceuticals, 509 U.S. 579, 1993. It is axiomatic.
    The Court can look to federal cases interpreting
    [this] rule[.] Because there is a dearth of case law,
    this Court will look primarily at federal law . . . .

         Judges may admit testimony resting on scientific,
    technical or otherwise specialized knowledge that will
    assist the trier of facts. . . . [R]ule 702 states
    that it does not condition admissibility on the State
    of the published literature and the complete and flaw
    free set of data, that a witness is qualified as an
    expert by knowledge, skill, experience, training, or
    education, and that expert may testify in the form of
    an opinion if the testimony is based upon sufficient
    facts or data.      The testimony is principles and
    methods, and the witness has applied the principles
    and   methods   reliably    to   the  facts   of    the
    case . . . . Daubert   makes   clear, [it   does]   not
    constitute a definitive checklist or test.      Daubert
    adds that the gatekeeping inquiry must be tied to the
    facts of a particular case.
The circuit court then concluded that:

    The evidence at the hearing through the witnesses
    show[s] that all of the tests and the testimony
    offered were the product of sufficient facts or data
    and   the   product of   reliable  [principles]  and
    methods. . . .

    [W]hile publication in a journal is the most rigorous,
    it is not the only way to peer review. The witnesses
                               14
                                                  No.    2015AP2665


    testified that these tests are routinely published []
    both in journals and in published papers. . . . All of
    the instruments were subject of extensive review.
    They have been written about, and even criticized [in]
    the papers that [were] submitted.

         They have also been used in other cases, in other
    jurisdictions, and the Court was not able to find any
    cases where these tests were stricken based on
    admissibility or based on a Daubert challenge.     The
    tools have been debated, reviewed, and revised. This
    is not junk science, which is what Daubert sought to
    reject.    These actuarial tools are widely used in
    predicting recidivism in sex offenders. . . . Both
    Dr. Jurek,     and   Dr.    Allen    testified    that
    they . . . reviewed Mr. Jones' records and all the
    information they had and testified that this is the
    type of information reasonably relied upon by experts
    in their field.

         And there was no evidence suggesting or        even
    challenging   that    they   administered    the    test
    incorrectly  or    interpreted   the   actuarial    data
    incorrectly.
The circuit court additionally noted:

    [T]he State proceeds at its own peril if Mr. Jones,
    through cross-examination can convince a jury that
    Dr. Jurek    and    Dr.    Allen's   [testimony]   is
    antiquated . . . . [But] Mr. Jones' criticisms of the
    actuarial tools are only that, criticisms, and cannot
    form the basis for this court to exclude this
    testimony.

         The weight to give this testimony is for the jury
    to decide.    This is a weight, not an admissibility
    analysis. . . . The Court is satisfied that this
    testimony presented meets all of the requirements for
    admissibility, and Mr. Jones' motion to exclude is
    denied.


                      2.   Trial and appeal

    ¶24   On September 29, 2014, Jones' trial for commitment as
a sexually violent person under chapter 980 began.      At trial,


                                15
                                                                               No.      2015AP2665



three experts testified:                  Dr. Jurek and Dr. Allen testified for

the    State,       and     Thomas       Zander,          Ph.D.,     testified      for     Jones.

Dr. Jurek was "the only psychologist in this case to have used

the RRASOR and [the] MnSOST-R to evaluate Mr. Jones' risk."                                       On

October 2, 2014, the jury returned a special verdict finding

that Jones was "a sexually violent person, as alleged in the

petition."         Jones appealed.

       ¶25    On      appeal,         Jones    challenged          his    commitment        on   the

basis that the circuit court's admission of testimony based on

the MnSOST-R and the RRASOR was reversible error.                                On April 10,

2017,     the      court      of       appeals           summarily       affirmed.          Jones,

No. 2015AP2665.             The court of appeals held that the circuit

court had not erroneously exercised its discretion because it

considered the Daubert factors and found that the instruments

were    the     product          of    sufficient          facts     and    data,      that      the

instruments were the product of reliable principles and methods,

and    that     the    instruments            had    been    the     subject     of    extensive

review.       Id.       The court of appeals further noted that Jones'
arguments        went       to        weight,       not     admissibility,            and     that,

therefore, he was able to discredit the testimony through cross-

examination.          Id.    Jones petitioned for review.

       ¶26    On September 11, 2017, Jones' petition for review was

granted.




                                                    16
                                                                                 No.    2015AP2665



                                 II.    STANDARD OF REVIEW

       ¶27    "Questions regarding the admissibility of evidence are

within the circuit court's discretion."                           Nat'l Auto Truckstops,

Inc. v. DOT, 2003 WI 95, ¶12, 263 Wis. 2d 649, 665 N.W.2d 198.

       Where this court is asked to review such rulings, we
       look not to see if we agree with the circuit court's
       determination, but rather whether the trial court
       exercised its discretion in accordance with accepted
       legal standards and in accordance with the facts of
       record.    A circuit court properly exercises its
       discretion when it considers the relevant facts,
       applies the correct law, and articulates a reasonable
       basis for its decision.
Id. (citations omitted).                 Whether the circuit court applied the

correct      law,    however,          requires      us    to    interpret       the    statute.

"The    interpretation            and     application           of   a     statute        present

questions      of     law    that        this     court         reviews     de     novo     while

benefitting         from    the    analyses          of   the     court    of     appeals      and

circuit court."            State v. Alger, 2015 WI 3, ¶21, 360 Wis. 2d

193, 858 N.W.2d 346.                   Thus, "this court decides whether the

circuit court applied the proper legal standard under Wis. Stat.

§ 907.02(1) . . . independently                   of      the    circuit    court       and    the
court of appeals but benefiting from their analyses."                                   Seifert,

372 Wis. 2d 525, ¶89.


                                        III.    ANALYSIS

       ¶28    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


                                                17
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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.

       ¶29     As noted above, the admissibility of expert testimony

is governed by the recently amended Wis. Stat. § 907.02, which

provides, in relevant part, 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.
Wis.   Stat.       § 907.02(1).         This    statute      requires     that      circuit

courts       make     five      determinations         before     admitting          expert

testimony:          (1)   whether   the    scientific,        technical,        or    other

specialized         knowledge     will     assist      the      trier     of     fact   to

understand the evidence or to determine a fact in issue; (2)
whether      the    expert   is    qualified      as   an    expert      by    knowledge,

skill,       experience,     training,     or     education;       (3)    whether       the

testimony is based upon sufficient facts or data; (4) whether

the testimony is the product of reliable principles and methods;

and    (5)    whether     the    witness   has    applied       the     principles      and

methods reliably to the facts of the case.

       ¶30     The first two determinations were also required under

the pre-amendment statute.              And they were all that was required.
As noted above, this was an easier standard to satisfy, because,

                                           18
                                                                                   No.    2015AP2665



as with relevance generally,9 the court's role was simply to

determine whether the evidence made a fact of consequence more

or less probable (although the evidence did also have to be

introduced       by    a   qualified             witness).              See        Seifert,     372

Wis. 2d 525, ¶174 (Ziegler, J., concurring) (quoting State v.

Kandutsch, 2011 WI 78, ¶26, 336 Wis. 2d 478, 799 N.W.2d 865)

("'Expert      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.'"            (Alterations

omitted.)).

      ¶31      The court's role with regard to the admissibility of

evidence is often described as that of a gatekeeper.                                     See, e.g.,

State     v.    Fischer,      2010     WI        6,    ¶40,       322    Wis. 2d 265,           778

N.W.2d 629 (Ziegler, J., concurring) ("The judge, as gatekeeper,

has   the      capacity    to    determine            whether      certain          evidence     is

admissible."); see also State v. Wilson, 2015 WI 48, ¶99, 362

Wis. 2d 193, 864 N.W.2d 52 (Ziegler J., concurring) ("The trial
court remains the gatekeeper in determining what evidence is


      9
       Relevance is governed by Wis. Stat. § 904.01, which states
as follows:

      "Relevant evidence" means evidence having any tendency
      to make the existence of any fact that is of
      consequence to the determination of the action more
      probable or less probable than it would be without the
      evidence.

Wis. Stat. § 904.01.


                                             19
                                                                       No.    2015AP2665



admissible and why.").          In this role, courts seek to ensure that

the evidence submitted to the factfinder is of the requisite

quality.        The quality standards for admission of evidence vary

based on the type of evidence at issue and the purpose for which

it is offered.           See Wis. Stat. ch. 901.              These standards are

prescribed        by     statute     and        represent      the     legislature's

determination of a balance that ensures "that the truth may be

ascertained       and    proceedings      justly    determined."           Wis.   Stat.

§ 901.02.        In this regard, the admissibility of evidence is

distinguished          from   the   weight       given   to     evidence      that      is

admissible; the court's role is to admit evidence that meets the

prescribed       standards,     which      the     factfinder       then     weighs     to

ascertain the truth.

      ¶32   The heightened standard under the amended Wis. Stat.

§ 907.02 does not change this gatekeeping function.                           It does,

however, require more of the gatekeeper.                        Instead of simply

determining whether the evidence makes a fact of consequence

more or less probable, courts must now also make a threshold
determination as to whether the evidence is reliable enough to

go   to   the    factfinder.        The    legislature        has    prescribed       that

courts do this by looking at whether the testimony is based upon

sufficient facts or data, whether the testimony is the product

of reliable principles and methods, and whether the witness has

applied the principles and methods reliably to the facts of the

case.     As noted above, these requirements represent Wisconsin's

adoption of the federal Daubert standard.                   See supra ¶7.


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      ¶33    In applying this standard, courts typically, although

not exclusively, consider

           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.

Daubert, 509 U.S. at 593-94.           Although this is a more burdensome

standard, it is not exceedingly high; the court's "role [is to

ensure] that the courtroom door remains closed to junk science."

Seifert,      372     Wis. 2d 525,     ¶85.          Moreover,   although        more

burdensome, "trial courts [still] retain substantial discretion

in   deciding       whether   to   admit    expert    testimony."         Id.,   ¶178

(Ziegler, J., concurring) (citing Kumho, 526 U.S. at 141-42).

Thus, as with other admissibility determinations, we will not
overturn a circuit court's admission of expert testimony unless

the court failed to consider the relevant facts, failed to apply

the proper standard, or failed to articulate a reasonable basis

for its decision.

      ¶34    Here, the circuit court considered the relevant facts,

applied the proper standard, and articulated a reasonable basis




                                           21
                                                                         No.    2015AP2665



for its decision.10        The circuit court identified the standard it

was   applying    as    under     Wis.    Stat.    § 907.02        as    "the        Daubert

standard . . . named           after      Daubert         versus         Merrell        Dow

Pharmaceuticals,        509     U.S.     579,     1993."        Furthermore,             the

transcript reveals that the circuit court actually applied this

standard:     in reaching its conclusion, the circuit court found

that, although the tests had not been published in peer-reviewed

journals,   "these      tests     are    routinely       published,"         "have      been

written about, and even criticized," "were subject of extensive

review," and "are widely used in predicting recidivism in sex

offenders."      These are among the factors that Daubert instructs

courts to consider when evaluating whether expert testimony is

admissible.      See supra ¶¶8, 33.

      ¶35   These      findings     are    also        supported        by     the    facts

introduced at the Daubert hearing.                There was testimony that the

MnSOST-R has been the subject of 12 research inquiries and that

the RRASOR has been the subject of approximately 35 studies.

The   testimony     also      establishes       that    these   tests          have    been
criticized, particularly with regard to how they measure the

effect of age on the risk of recidivism, and that, despite this

      10
       We note that, at the Daubert hearing, Jones did not
dispute that Dr. Jurek was qualified or that Dr. Jurek had
failed to apply his principles and methods reliably to the facts
of Jones' case.     See supra ¶23 ("And there was no evidence
suggesting or even challenging that they administered the test
incorrectly or interpreted the actuarial data incorrectly.").
Rather, Jones' challenge focused on whether the MnSOST-R and
RRASOR were based on sufficient facts and data and reliable
principles and methods.


                                          22
                                                                       No.    2015AP2665



criticism, responsible examiners may responsibly use different

actuarial instruments where it is "somewhat prudent to look at

all the different assessments, and all the different factors and

consider them for a particular individual."

      ¶36     Moreover, under Daubert these are the relevant facts a

circuit court should consider.              See supra ¶¶8, 33.           The circuit

court's findings therefore demonstrate that it considered the

relevant facts, applied the proper standard, and articulated a

reasonable basis for its decision.                  Thus, the circuit court did

not     erroneously      exercise     its     discretion      when      it     admitted

Dr. Jurek's       testimony   regarding       the    MnSOST-R    and    the     RRASOR.

Nat'l Auto Truckstops, 263 Wis. 2d 649, ¶12.11


                                IV.    CONCLUSION

      ¶37     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.

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




      11
       We emphasize that our decision is based on the circuit
court's exercise of discretion. Our opinion should not be read
as endorsing the admissibility of these instruments in all
cases.


                                         23
                                                           No.     2015AP2665



    By   the   Court.—The   decision   of   the   court   of     appeals   is

affirmed.




                                  24
                                                                    No.    2015AP2665.rgb




       ¶39        REBECCA GRASSL BRADLEY, J.             (concurring).      I join the

majority opinion but write separately out of concern that the

majority        author    cites     her   own       concurrences   as    authority   for

legal       principles        instead     of        citing   precedential        majority

opinions.           The majority author cites to her past concurring

opinions six times even though each citation could have been

replaced with precedential authority.                        The legal propositions

for which she cites her concurrences in prior cases are not

novel legal points.             I am concerned that allowing this practice

to pass without notice will encourage future citations to past

solo concurrences——creating majority opinions supported by one

justice's separate writings instead of valid precedent.

       ¶40        Although "concurring opinions have often exercised a

greater effect on subsequent cases than the majority opinions

that they accompany," where possible,1 we should cite to opinions

that       have    binding    precedential          authority.     See    Igor    Kirman,

Standing Apart to Be a Part:                 The Precedential Value of Supreme
Court Concurring Opinions, 95 Colum. L. Rev. 2083, 2084 (1995);

see also Ives v. Coopertools, a Div. of Cooper Indus., Inc., 208

Wis.       2d     55,   58,   559   N.W.2d      571    (1997)    (per    curiam)    ("Our

division on reasoning simply means that the analyses of the two

concurrences have no precedential value." (citation omitted));


       1
       I take no issue with using self-authored separate writings
when, for example, no other authority exists for the proposition
that a majority of the court has decided is a correct statement
of the law. That is not the situation here.


                                                1
                                                                  No.    2015AP2665.rgb


State ex rel. Thompson v. Jackson, 199 Wis. 2d 714, 719, 546

N.W.2d 140       (1996)    (per    curiam)    (citing     State     v.    Elam,      195

Wis. 2d 683, 685, 538 N.W.2d 249 (1995) for the proposition that

"[a] majority of justices must have agreed on a particular point

for it to be considered the opinion of the court.").

      ¶41    Here, the majority author's repeated citations to her

past concurrences are unnecessary.                She could have replaced her

concurrence citations in ¶¶6, 30 and 33 with citations to the

precedential cases her concurrences quoted or cited.

      ¶42    More problematically, the majority author could have

replaced her concurrence citations in ¶31 with a citation to

State v. Giese, 2014 WI App 92, ¶18, 356 Wis. 2d 796, 854 N.W.2d

687   ("The      court's      gate-keeper     function     under        the     Daubert

standard is to ensure that the expert's opinion is based on a

reliable foundation and is relevant to the material issues."

(citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589

n.7 (1993)))."

      ¶43    Parlaying a justice's own concurrence into a majority
opinion     under     these       circumstances     is    not     good        practice.

Reliance on the majority opinion author's own separate writings

six times in an opinion that cites only four precedential cases

raises    concerns     over    the    soundness     and   scholarship          of   this

opinion.

      ¶44    For these reasons, I concur.

      ¶45    I   am   authorized     to   state    that   Justices        SHIRLEY     S.

ABRAHAMSON and DANIEL KELLY join this concurrence.



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