The Commonwealth of Massachusetts

Case Law and Issues

	DEFINITIONS		PLEA AGREEMENTS
	VOLITIONAL CONTROL		BASIS OF OPINION
	CONSTITUTIONAL CHALLENGES		MISC. PROCEDURAL ISSUES
	RISK ASSESSMENT		MISC. EVIDENTIARY MATTERS
	CONFIDENTIALITY & PRIVILEGE		TREATMENT

CONSTITUTIONAL CHALLENGES

JURISDICTION	COURT & CITE	CASE NAME	HOLDING
Kansas	U.S.S.Ct.	Kansas v. Hendricks	Although freedom from physical restraint is a fundamental right, in certain narrow circumstances a State can provide for "the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public.” Post sentence wrap-up SDP commitments OK
Washington	U.S.S.Ct.	Seling v. Young	statute could not be deemed punitive as applied to a single individual for purposes of the individual's ex post facto and double jeopardy claims, for such an analysis would never conclusively resolve whether a particular commitment scheme was punitive,
Kansas	U.S.S.Ct.	Kansas v. Crane	Federal Constitution required the state to prove that such offenders had serious difficulty in controlling their behavior. Such required proof--when viewed in light of such features of the case as the nature of the psychiatric diagnosis and the severity of the mental abnormality itself--had to be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjected the offender to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.
Colorado	U.S.S.Ct	Sprecht v. Patterson	The failure to grant such procedural safeguards as a hearing and the right of confrontation violated the due process requirements of the Fourteenth Amendment.
Minnesota	State Court of Appeals	In re Civil Commitment of Sargent	Seventh Amendment right to a jury trial in civil proceedings does not apply to the states. There is no federal constitutional right to a jury trial in civil commitment proceedings
Louisiana	U.S.S.Ct	Foucha v. Louisiana	Oneis entitled to release when he has recovered his sanity or is no longer dangerous. One may be held as long as he is both mentally ill and dangerous, but no longer. As a matter of due process it is unconstitutional for a State to continue to confine a harmless, mentally ill person. Due process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed. Antisocial personality may not meet standard for civil commitment.

RISK ASSESSMENT
Admissibility & Credibility

ISSUE / HOLDING	CASE	COURT	DOCUMENTS
"Clinical judgment" approach discredited; Several risk factors discussed	Mujaheed	Suffolk Superior (Hines, J.)	Order
Adjusted actuarial approach credited; Abel Screening Assessment admitted	Kruger	Middlesex Superior (Burnes, J.)	Order
Abel Assessment for Sexual Interest (AASI) test inadmissible under Daubert/Lanigan	Ready	Appeals Court	63 Mass. App. Ct. 171
Actuarial approach discredited	"Moe"	Middlesex Superior (Lauriat, J.)	Order
Daubert/Lanigan challenge to QE opinions denied	DeLisle	Worcester Superior (Agnes, J.)	Decision
Statute makes QEs' reports admissible, therefore QEs' opinions not subject to Daubert/Lanigan challenge	Bradway	Appeals Court	Decision

Expert Testimony:
BASIS OF OPINION

ISSUE / HOLDING	CASE	COURT	DOCUMENTS
Court spells out probable cause standard; Recidivism studies not admissible	Reese	SJC	Decision 438 Mass. 519
1. G.L. c. 123A, § 14 (c), does not render police reports and witness statements from nol prossed cases admissible at trial. They may be provided to a qualified examiner, and a qualified examiner may rely on them as the basis for an expert opinion; 2. the underlying "facts or data" contained in those reports and statements would potentially be admissible through appropriate witnesses (e.g., the complaining witness, or the officer who took the defendant's statement).	Markvart	SJC	Decision 437 Mass. 331
Statements contained in parole report: (i) may be used as basis for QE's opinion only if admitted or admissible at trial; (ii) may not be admitted substantively at trial	Peter Boyer	Appeals Court	Decision 58 Mass.App.Ct. 662
Pedophiliac vs. incest offender; no evidence of mental illness; totem pole hearsay as basis for PC expert opinion	Toland	Plymouth Superior (Brassard, J.)	Order
DOC records not to be made available to Commonwealth's experts prior to probable cause determination			103 CMR 155.09
Only DOC "incident reports arising out of the person's incarceration or custody" to be available to QE's post probable cause finding			G.L. c. 123A, § 13(b); 103 CMR 155.09
Defendant may not proffer expert opinion based on personal interview unless D submits to interview by commonwealth expert	York & Youmans	Norfolk Superior (Sikora, J.)	Order
Permissible at trial to inquire whether expert's opinion to "reasonable degree of professional certainty" = opinion "beyond reasonable doubt"	Baker	Middlesex Superior (Gants, J.)	Decision
Trial court may not order production of privileged material for use by state examiners	Callahan	SJC	Decision 440 Mass. 436
Methodology behind QE opinion subject to Daubert/Lanigan analysis (NB Pre-Bradway decision)	Rajani	Bristol Superior (Burnes, J.)	Decision
Reports containing info about victims of sexual offenses committed against them by defendant convicted of those offenses are directly admissible; absent exception, hearsay within report not admissible substantively, but may be admissible for alternative purpose (e.g., by expert in forming opinion)	Morales	Appeals Court	Decision 60 Mass. App. Ct. 728

SDP DEFINITIONS

ISSUE / HOLDING	CASE	COURT	DOCUMENTS
"likely" = "reasonably to be expected"	Boucher	SJC	Decision
diagnosis-risk nexus	Mujaheed	Suffolk Superior (Hines, J.)	Order
Criminal responsibility at time of conviction does not estop later SDP proceeding	"Doe"	Middlesex Superior (Burnes, J.)	Order

MISC. EVIDENTIARY MATTERS

ISSUE / HOLDING	CASE	COURT	DOCUMENTS
nonparticipation in SOTP admissible	"Doe"	Middlesex Superior	Order
INFO RE NOL PROSSED CHARGES (i) QEs may be made aware of charges that did not result in conviction (ii) Police reports & witness statements from nol prossed cases may be provided to QEs (iii) Facts contained in police reports & witness statements from nol prossed cases may be used as basis for a QE's opinion ONLY if they are to be admitted at trial or, if not to be admitted, would be admissible if proffered (iv) At trial, facts contained in police reports & witness statements from nol prossed cases may NOT be admitted directly by DA or through QEs on direct examination unless they are or will be properly in evidence (v) QEs' reports must be redacted prior to submission to jury to exclude info not admitted in evidence	Markvart	SJC	Decision
Statements contained in parole report: (i) may be used as basis for QE's opinion only if admitted or admissible at trial; (ii) may not be admitted substantively at trial	Peter Boyer	Appeals Court	Decision 58 Mass.App.Ct. 662
fact of (out-of-state) nol prossed charges inadmissible where underlying events not described and rationale for nol prosse decision not known	Smith	Middlesex Superior (Chernoff, J.)	Order
experts agree not SDP; jury = SDP The evidence at trial was sufficient for the jury to find that the defendant suffered from pedophilia. However, the expert testimony offered by the Commonwealth was insufficient to satisfy the requirement of § 1, that the defendant is a sexually dangerous person No rational trier of fact could have found the preliminary report sufficient to prove sexual dangerousness beyond a reasonable doubt in light of the current opinions of all of the experts who testified at trial, including the preliminary expert, that the defendant was not a sexually dangerous person Preliminary report did not explain the "clinical basis for linking past sexual misconduct with present behavior to produce a diagnosis of a currently sexually dangerous person." Preliminary expert made it clear that he no longer considered the defendant sexually dangerous and gave substantial reasons for his change of mind: the interviews with the defendant and his wife, the strict probationary conditions to his release, and the defendant's intent to continue treatment. The jury had to make a substantial leap with respect to the essential elements at issue; particularly given fact that preliminary expert's withdrawal of his earlier opinion created an evidentiary gap in the Commonwealth's case. Case should not have gone to jury.	Ronald Boyer	Appeals Court	Decision 61 Mass. App. Ct. 582
QEs agree no SDP - summary judgment of dismissal required; no stay of release pending appeal	Sepulveda	Appeals Court	Decision 59 Mass.App.Ct. 476
No commonwealth expert for trial, motion to dismiss allowed	Lanning	Bristol Superior	Motion to dismiss; memo in support; Order
SDP Commitment requires proof of "serious difficulty in controlling behavior" {see comment re "volitional control" in DSM IV-TR}	Kansas v. Crane	U.S. Supreme Court	Decision 534 U.S. 407
Defendant may not proffer expert opinion based on personal interview unless D submits to interview by commonwealth expert	York & Youmans	Norfolk Superior (Sikora, J.)	Order
Risk of reoffense must be "imminent"	Baker	Middlesex Superior	Order
Trial court may not order production of privileged material for use by state examiners	Callahan	SJC	Decision
Guilty plea renders victim's statement in police report sufficiently reliable - statement admissible at SDP trial, including info re uncharged offense	Given	SJC	Decision
Reports containing info about victims of sexual offenses committed against them by defendant convicted of those offenses are directly admissible; absent exception, hearsay within report not admissible substantively, but may be admissible for alternative purpose (e.g., by expert in forming opinion)	Morales	Appeals Court	Decision

MISC. PROCEDURAL ISSUES

ISSUE / HOLDING	CASE	COURT	DOCUMENTS

Probable Cause Quantum of Proof:	Blanchette [see Reese, below]	Appeals Court	Decision
Modified "Directed Verdict" Standard to be applied:	Reese	SJC	Decision
c. 123A Timelines Mandatory	Kennedy	SJC	Decision
late filing of QEs' reports does not require dismissal where DA files for trial within 60-day period of post-PC confinement since no loss of liberty:	Gagnon	SJC	Decision
Absent continuance for good cause or in interest of justice, SDP trial must commence within 60 days of filing of Commonwealth's petition for trial	DeBella	SJC	Decision
Petition for Trial not timely filed - DISMISSED:	Gross	Bristol Superior	Order
Any violation of G.L. c. 123A, § 13 (a), that results in confinement exceeding sixty days requires dismissal of SDP petition for trial, unless there are extraordinary circumstances justifying an extremely brief delay:	Parra	SJC	Decision
Temporary Detention Generally NOT warranted:	Kennedy	SJC	Decision
ditto	Bruno	SJC	Decision
DA not required to petition (or notify defendant of intent to petition) six months prior to release; BUT agencies "reminded" to provide 6-months' notice and DAs "urged" to act "reasonably promptly on receiving such notice":	Gagnon	SJC	Decision
Detention Pending Commonwealth Appeals Generally UNwarranted:	Blanchette	Appeals Court	Decision
judge may deny (or grant) stay of execution pending appeal from dismissal of SDP petition:	Gagnon	SJC	Decision
Detention After Probable Cause Found and Pending Trial Required	Knapp	SJC	Decision
YES:	McLeod	SJC	Decision request Brief
YES, BUT - commonwealth may petition against defendant whose sentence for statutorily enumerated sexual offense has expired but who remains incarcerated on sentence for nonenumerated offense imposed either concurrently or consecutively:	Shedlock	Appeals Court	Decision
Defendant may not be Compelled to Submit to Examination by Prosecution:	Poissant	SJC	Decision
expert's opinion at probable cause hearing that defendant likely to reoffend, not sufficient to satisfy Commonwealth's burden where recanted at trial; all experts agree not SDP:	Boyer	Appeals Court	Decision