The admissibility of expert opinion and the bases of expert opinion in sex offender civil management trials in New York.

• Author: Duffy, Colleen D.

1. INTRODUCTION

   "According to the Assistant District Attorney and the police, the methods employed in the instant offense were similar to a dozen earlier complaints of rape and attempted rape in Van Courtland Park between 1976 and 1978, which abated entirely following the defendant's arrest herein." (1)

   "He [David] took his private part and put it in my butt." (2)

   A comment about the decrease in rapes since a defendant was arrested in an unsigned 1978 presentence report attributed by the author of the report to an unidentified assistant district attorney; (3) an excerpt of a note in a business record created by a social worker at Montefiore Medical Center in 2002 in connection with a sex abuse allegation against a father with respect to his children which purports to recite a comment by a seven-year-old child about his father touching the child's genitalia; (4) charges of anal and oral sodomy of two young boys in a complaint filed in family court in 1969, sworn to, not by the complainants but, by their parents (who were not present during the assault), where the case was resolved upon an admission to robbery; (5) a 1976 police report detailing the description by a complaining witness of an alleged rape where that same complaining witness a few months later recanted, under oath, the identification of the arrested perpetrator at a court proceeding, resulting in a dismissal of the charges; (6) the contents of a 2010 interview between a state expert witness and the same alleged victim of that now more than thirty-year-old crime, in which that complainant "recanted the recantation" telling the expert that she had no doubt that respondent was the person who attacked her, but she was frightened during the hearing and that is why she recanted. (7)

   What do these types of material have in common? The common thread is the question of whether such material and information--almost never admissible in a criminal trial--is admissible in a sex offender civil management jury trial against a respondent, not for the truth of the matters asserted therein, but for the purposes of showing the jury the basis forming an expert's opinion in the case to assist them in evaluating that opinion.

   In such cases, an expert witness proffered by the petitioner, the New York State Attorney General ("Attorney Genera]"), (8) testifies that, in his or her expert opinion, the respondent in the action is a detained sex offender who now suffers from a mental abnormality, as that term is defined in Mental Hygiene Law, Article 10--the statutory scheme detailing New York's Sex Offender Management and Treatment Act. (9) The expert is likely to opine about the condition, disease, or disorder, if any, that he or she believes the respondent suffers from, and whether the respondent is predisposed to the commission of conduct constituting a sex offense, as well as whether the respondent has serious difficulty in controlling such conduct. (10)

   Typically, before rendering such opinion, the witness proffered by the petitioner as an expert testifies as to his or her qualifications, and then, once qualified as an expert, expresses his or her opinion and is questioned about the material and information that formed the basis of that opinion.

   Ordinarily, the materials reviewed by the petitioner's expert include Department of Corrections ("DOCS") materials relating to the respondent who is the subject of the sex offender civil management proceeding. (11) These materials can include any medical records made during the respondent's incarceration and/or confinement, presentence reports prepared in connection with any sexual offenses and nonsexual offenses of which the respondent has been convicted, the respondent's "rap sheet," (12) parole reports, police reports, materials regarding the respondent maintained by the Office of Mental Health ("OMH"), court transcripts, and the reports and evaluations of other psychiatric evaluators. (13) Sometimes the expert also will have interviewed the respondent. (14) Since the 2007 enactment of New York's sex offender civil management statute, the issue of the admissibility of this type of material--including the police reports, victim statements, and the criminal history of respondents (both regarding charged and uncharged crimes), as well as dismissed charges against a respondent, either as testified to by the expert as having relied upon such material or as documentary evidence on its own--is common in sex offender civil management trials in New York.

   Petitioners usually contend that such material is admissible, arguing it is consistent with the professional reliability exception to the hearsay rule which, when met, allows expert opinion, even if hearsay, to be admissible at trial. (15) Concomitantly, it is argued the material upon which the expert has relied in forming such opinion also is admissible, not for the truth, but to show the finder of fact the bases of that expert's opinion in order to assist them in evaluating that opinion. (16)

   Typically, a respondent's counsel (Mental Hygiene Legal Services) (17) opposes either or both the expert's opinion and the admissibility of testimony about the data and material that formed, in whole or in part, the opinion by the petitioner's expert. (18) Respondent's counsel generally seeks to preclude both the opinion and the expert's testimony about the basis of his or her opinion, as well as admission of the documentary evidence itself, on the grounds that the opinion is based on inadmissible and unreliable hearsay with no probative value and is prejudicial to the respondent. (19) To date, the admissibility of otherwise inadmissible material that forms the basis of an expert's opinion--even for the limited purpose of informing the finder of fact as to the bases for the expert's opinion--is an open question not yet determined by New York's Court of Appeals in any case, let alone a sex offender civil management case. (20)

   This article addresses the background of New York's Article 10 Sex Offender Management and Treatment Act, the role expert opinion plays in the trial of such cases, the Court of Appeals cases that have framed the issue, the treatment by courts in New York in sex offender civil management trials as to the admissibility of expert opinion testimony and the bases of such opinion, the way the issue has been addressed by courts in other states and the federal system, and the type of analysis that New York courts should undertake in sex offender civil management trials to determine whether to permit such expert opinion and the bases that formed such opinion.

2. THE STATUTORY BACKGROUND OF ARTICLE 10

   In 2007, the New York State Legislature passed the Sex Offender Management and Treatment Act ("SOMTA"), which, among other things, includes Article 10 of the Mental Hygiene Law of New York State, with the stated goal of addressing the danger posed to society by recidivist sex offenders. (21) The act was signed into law by then-Governor Eliot Spitzer on March 14, 2007, (22) and became effective April 13, 2007. (23) Determining that some sex offenders have mental abnormalities that predispose them to engage in repeated sex offenses, the Legislature enacted SOMTA, which provides that a person who is determined to be a detained sex offender with a mental abnormality, as those terms are defined in the statute, (24) be subject to civil management after such person has served his or her criminal sentence. (25) Civil management may take the form of either civil confinement in a secure treatment facility or strict and intensive supervision. (26)

   SOMTA provides that, within a specified time frame, either a Supreme or County Court judge shall hold a probable cause hearing to determine whether there is probable cause to believe that the respondent is a detained sex offender requiring civil management. (27) If the court determines that such probable cause exists, that matter is held over for trial before a twelve person jury, or a judge if the respondent in that case waives a trial by jury. (28) The petitioner (the State of New York through the office of the Attorney General) carries the burden of proving that the respondent in the matter is a detained sex offender who has a mental abnormality by clear and convincing evidence. (29)

   Pursuant to SOMTA, in order to be subject to civil management, as set forth in the statute, (30) the person must have been convicted of a sex offense, as defined in Article 10, which includes, among others, a "sexually motivated felony." (31)

   SOMTA also provides that certain persons who committed crimes before the enactment of SOMTA still may be subject to the civil management provisions of the statute. For example, a person who was convicted of a sex offense, such as rape or incest, prior to the enactment of SOMTA, may be subject to the civil management provisions of SOMTA if a civil jury (pursuant to the procedures described above) finds such person to be a detained sex offender who suffers from a mental abnormality. (32) III. LEGISLATIVE INTENT

   New York is one of nineteen states, (33) along with the District of Columbia and the federal government (34), to have enacted civil confinement statutes, such as SOMTA, with the intent of addressing a "compelling need ... to protect residents of this state from sex criminals whose recidivism is predictable and uncontrollable." (35)

   The Memorandum accompanying the bill noted that SOMTA "establishes comprehensive reforms to enhance public safety by allowing the State to ... manag[e] sex offenders upon the expiration of their criminal sentences" through civil confinement or strict and intensive supervision. (36) The memorandum noted that "there is a small group [of sex offenders] who, because of a mental abnormality, cannot control their sexually violent behavior." (37) Accordingly, SOMTA was enacted to mandate treatment, as well as confinement or strict and intensive supervision for sex offenders depending upon...