Section 16.65 Other Missouri Cases

• Library: Estate Administration 2014 Supp

2. (§16.65) Other Missouri Cases

Respondents have argued that they should be afforded criminal defendant rights at SVP trials. Courts have disagreed. See:

· Care & Treatment of Wadleigh v. State, 145 S.W.3d 434 (Mo. App. W.D. 2004) (no limiting criminal jury instructions allowed and only three peremptory challenges afforded an SVP respondent)

· Care & Treatment of Boone v. State, 147 S.W.3d 801 (Mo. App. E.D. 2004) (an SVP respondent was not entitled to a Frye hearing, Frye v. United States, 193 F. 1013 (D.C. Cir. 1923), to determine admissibility of expert testimony)

· Care & Treatment of Scates v. State, 134 S.W.3d 738 (Mo. App. S.D. 2004) (a criminal plea agreement was not violated by subsequent SVP action)

· In re Care & Treatment of Spencer, 103 S.W.3d 407 (Mo. App. S.D. 2003) (a waiver of counsel does not need to be in writing)

Respondents have often raised issues regarding the state’s expert. In Johnson v. State, 58 S.W.3d 496 (Mo. banc 2001), the Court held that an employee of DOC was not qualified to give an expert opinion in an SVP trial and that there was no evidence to support a finding that the respondent was an SVP. In In reCare & Treatment of Coffel, 117 S.W.3d 116 (Mo. App. E.D. 2003), one of the few cases in the country involving a female SVP respondent, the court held that the state’s expert opinion was not based on generally accepted scientific principles but was merely speculation. The court found that the state’s psychiatrist was qualified to give an opinion in Care & Treatment of Whitnell v. State, 129 S.W.3d 409 (Mo. App. E.D. 2004), and that the jury could weigh what value to give to the testimony. In Care & Treatment of Amonette v. State, 98 S.W.3d 593 (Mo. App. E.D. 2003), the court held that, even if the nonlicensed psychologist was not qualified to give an opinion at a probable cause hearing, there was other sufficient evidence to support a finding of probable cause. A licensed clinical social worker may make a diagnosis of mental abnormality and so testify. In re Care & Treatment of Bernat, 194 S.W.3d 863 (Mo. banc 2006).

An expert may use actuarial instruments to make risk assessments. See:

· In re Tyson, 249 S.W.3d 849, 854 (Mo. banc 2008); accordCare & Treatment of Murrell v. State, 215 S.W.3d 96, 111–12 (Mo. banc 2007)

· Care & Treatment of Elliott v. State, 215 S.W.3d 88 (Mo. banc 2007)

· In re Care & Treatment of Francis, 159 S.W.3d 873 (Mo. App. E.D. 2005)

· Boone, 147 S.W.3d 801

Courts have allowed experts to rely on evidence other than their personal observations. See:

· In reSpencer, 123 S.W.3d 166 (Mo. banc 2003) (the reliance by experts on United States Supreme Court caselaw concerning whether pedophilia was a mental abnormality was not error)

· Wadleigh, 145 S.W.3d 434 (facts surrounding a prior telephone harassment charge were properly relied on by an expert)

· In reCare & Treatment of Pate, 137 S.W.3d 492 (Mo. App. E.D. 2004) (an expert could testify regarding narcissistic personality disorder)

· Whitnell, 129 S.W.3d 409 (an expert could rely on allegations that the respondent sexually abused his daughter)

· Amonette, 98 S.W.3d 593 (there was no error in receiving into evidence a judicial finding in the juvenile division that the respondent was a pedophile)

The state may request more than one expert examination. Spencer, 103 S.W.3d 407; In re Care & Treatment of Johnson, 161 S.W.3d 873 (Mo. App. S.D. 2005).

In In re Care & Treatment of Cokes, 107 S.W.3d 317 (Mo. App. W.D. 2003), the Western District of the Missouri Court of Appeals held that the state did not make a submissible case when the expert did not render an opinion that it was more likely than not...