Officer's testimony about ZAP STICK merely "expositional," not subject to 907.02(1)'s heightened ...

State v. Danny Arthur Wright, 2021AP1252-CR, District 3, 05/16/23 (not recommended for publication); case activity (including briefs)

The state charged Wright with first degree sexual assault with use of a dangerous weapon. The alleged dangerous weapon at issue was a ZAP STICK. Wright filed a motion in limine to bar the state from calling a Detective to offer expert opinion testimony under Wis. Stat. § 907.02(1) and Daubert. The circuit court permitted the testimony after the state cautioned that it would not ask the detective whether the ZAP STICK used in Wright's case was a dangerous weapon under the relevant statute. The court of appeals affirms on essentially the same basis: the detective's testimony was permissible "expositional" testimony under State v. Dobbs, 2020 WI 64, 392 Wis. 2d 505, 945 N.W.2d 609, and not subject to the heightened reliability standard for expert opinion testimony.

In Dobbs, the supreme court affirmed the circuit court's refusal to allow a defense expert to testify generally about "interrogation techniques and dispositional factors" that can lead an innocent person to falsely confess because the proposed testimony did not "fit" the facts of the case. Dobbs, 392 Wis. 2d 505, ¶¶31-51. In doing so, the court held that Wis. Stat. § 907.02(1)'s "or otherwise" phrasing carved out an exception for "expositional" testimony, which is permitted without meeting the heightened reliability standard.

On appeal, the state argued, and the court agreed, that the detective's testimony was merely expositional because the detective "testified about the general characteristics of electronic weapons, and more specifically about stun guns, but did not opine on the ultimate issue of whether the stun gun used by Wright satisfied the statutory definition of a dangerous weapon." (Op., ¶24) (internal quotations from the state's brief omitted).

However, the court acknowledges that that the detective, aside from testifying generally about tasers and stun guns, testified that he was the detective that investigated Wright's case and that a "stun gun" was recovered from Wright's home. The state then brought out the ZAP STICK and had the detective demonstrate using the stun gun (in the air) for the jury to see. This specific testimony about the ZAP STICK followed the detective's more general testimony that a "stun gun is a pain compliance tool that immobilizes or that oftentimes tightens up the muscles right at the point of contact." The detective further testified that a stun gun is used on a "nerve bundle in the body" and that it "oftentimes locks them up briefly depending on the length or duration of the stun, if you will." (Op., ¶¶11-12).

Applying Dobbs, the court notes that, "exposition testimony involves an expert testifying in the form of an educational lecture on general principles without explicitly applying those principles to the specific facts of the case." (Op., ¶23)(cleaned up). If an expert testifies in the form of an opinion, then the expert must apply the principles and methods reliably to the facts of the case." (Op., ¶18). Thereafter, however, the court holds that because the detective did not "opine on the ultimate issue of whether the stun g un used by Wright satisfied the statutory definition of a "dangerous weapon," the detective's testimony was "generic" and thus expositional under Dobbs. (Op., ¶¶24-25). Once the court concluded the detective's testimony was expositional and admissible under the four factors set forth in Dobbs. (Op., ¶¶26-32).

The state's and the court's focus on whether the detective would explicitly testify about whether the ZAP STICK met the statutory definition of dangerous weapon appears to be misplaced since the rule set forth in Dobbs is that expositional testimony is generic jury education-type testimony not connected to the specific facts of the case. Here, the detective was involved in the investigation of Wright, he testified about the ZAP STICK found in Wright's residence, explained that the ZAP STICK was a stun gun that operates similar to other stun guns that are designed or used to immobilize through the use of electric currents, and offered a demonstration  to the jury during trial. Moreover while expert testimony that offers an opinion on an ultimate issue would necessarily be connected to the specific facts of a case and therefore subject to Daubert, the inverse is not necessarily true: expert testimony that is connected to the specific facts of a case but does not necessarily offer an "ultimate" opinion seems to fall outside of the expositional testimony exception.