State v. Swope
2008 WI App 175, 315 Wis. 2d 120, 762 N.W.2d 725 (2008)
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Rule of Law:
Expert testimony is admissible in Wisconsin under the relevancy test (Wis. Stat. § 907.02) if it is relevant, the witness is qualified by specialized knowledge, and it assists the trier of fact, even if the expert relies on information from third parties not present for cross-examination, as long as that information forms the basis of the expert's independent opinion and is not admitted for its truth.
Facts:
- Duane and Carolee Recob were not seen by their grandchildren after the last weekend of 2003.
- On February 29, 2004, concerned grandchildren asked town of Delavan police officers to conduct a welfare check at the Recob home.
- Upon entering the home, officers found Duane and Carolee Recob dead, with their bodies decomposed and mummified.
- Duane Recob was found in a recliner in the living room, and Carolee Recob was found lying on her side in bed, covered by a blanket.
- The medical examiner determined that the condition of the bodies made it impossible to determine a specific cause for the simultaneous deaths.
- The medical examiner opined that the deaths were homicides caused by asphyxia or another undetected injury, considering simultaneous cardiac arrhythmia to be extremely rare and not a consideration.
Procedural Posture:
- Craig Swope was charged with two counts of first-degree intentional homicide in violation of Wis. Stat. § 940.01(l)(a).
- Defense counsel filed a motion in limine in the trial court to exclude the testimony of FBI Supervisory Special Agent Mark Safarik, asserting it was not relevant and inadmissible as expert testimony.
- The trial court denied the motion in limine, finding the testimony would assist the jury and that Safarik could base his testimony on opinions of third parties.
- Swope renewed his motion on the fourth day of trial, specifically to exclude Safarik's testimony about conversations with third parties regarding the probability of simultaneous death, arguing a lack of opportunity to cross-examine those parties.
- The trial court denied the renewed motion, ruling that Swope could expose the basis of Safarik's opinion during cross-examination.
- Swope was convicted by the trial court of both counts of intentional first-degree homicide.
- Swope appealed his conviction to the Wisconsin Court of Appeals.
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Issue:
Does a trial court abuse its discretion by admitting an FBI agent's expert testimony on "death scene" analysis, including opinions based on consultations with third parties not subject to cross-examination, when the testimony is relevant, the agent is qualified, and it assists the jury under Wisconsin's relevancy test for expert evidence?
Opinions:
Majority - ANDERSON, PJ.
No, the trial court did not abuse its discretion by admitting the FBI agent's expert testimony. The Wisconsin Court of Appeals affirmed Craig Swope's conviction, holding that the admission of Agent Mark Safarik's "death scene" analysis expert testimony met the standards of Wisconsin's relevancy test for expert testimony, and Swope's confrontation rights were not violated by the agent testifying about information and opinions obtained from third parties. The court applied Wisconsin's "relevancy test" for expert testimony, which requires that: 1) the testimony is relevant (Wis. Stat. § 904.01); 2) the witness is qualified based on "specialized knowledge" (Wis. Stat. § 907.02); and 3) the testimony will help the trier of fact in determining an issue of fact. This test, unlike federal standards, does not require establishing the reliability of the underlying scientific evidence. First, the court found Safarik's testimony relevant because the cause of the Recobs' deaths was a central issue, and Safarik's conclusion that the deaths were homicides, and unlikely to be simultaneous natural causes, directly established a consequential fact. The court emphasized that scientific evidence is admissible under the relevancy test "regardless of the scientific principle that underlies the evidence," citing State v. Peters. Second, Safarik was deemed qualified by his extensive education (bachelor's in human physiology, master's in criminal justice) and experience (22 years as an FBI agent, 11.5 years in the Behavioral Analysis Unit, analyzing over 1000 crime scenes, including 30 equivocal death scenes, and publishing in peer-reviewed journals). The court referenced United State v. Meeks, which recognized crime scene analysis as a body of specialized knowledge. Third, the testimony was helpful to the jury because resolving a double homicide with no witnesses and decomposed bodies was beyond the knowledge of an average juror. Safarik's specialized analysis, including concepts like "staging" at a crime scene and its implications, provided insights not commonly known. The court distinguished this case from State v. Dalton, noting Safarik did not testify on the ultimate issue of Swope's responsibility or specific intent, but rather on the manner of death (natural vs. criminal). Regarding the confrontation clause issue, the court held that an expert's reliance on hearsay statements of others is permitted under Wis. Stat. § 907.03, which allows experts to base opinions on facts or data "reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject," even if not admissible in evidence. Safarik sought information from Dr. Nicholas Christakis of Harvard and Richard Anderson of the CDC to test his hypothesis regarding simultaneous natural death. Their opinions, that simultaneous natural deaths were statistically almost impossible, were considered by Safarik as a basis for his own conclusion that the deaths were by a criminal act; they were not admitted for their truth. Citing State v. Barton, the court reiterated that a defendant's confrontation right is satisfied if a qualified expert testifies as to their independent opinion, even if partially based on another's work, as long as the underlying hearsay opinions are not admitted for the truth of the matter asserted.
Analysis:
This case reinforces Wisconsin's distinctive "relevancy test" for expert testimony, highlighting its trust in the adversarial process and the jury's ability to evaluate evidence, rather than judicial gatekeeping on scientific reliability. It clarifies that experts can rely on otherwise inadmissible hearsay, including opinions from un-cross-examined third parties, so long as those form the basis of the expert's independent opinion and are not presented for their truth. This approach likely facilitates the admission of a broader range of specialized testimony compared to jurisdictions following the more restrictive Daubert or Frye standards, placing a greater burden on cross-examination to expose any weaknesses.
