court of appeals decision; for Kaminski:Donald T. Lang, SPD, Madison Appellate
SVP: Misconduct Evidence, § 904.04(2), Reliance on by Expert
SVP expert may rely on the respondent’s unproven prior misconduct in deriving his or her opinion. The § 904.04(2) “preliminary relevance” requirement, State v. James E. Gray, 225 Wis.2d 39, 59-61, 590 N.W.2d 918 (1999); State v. Landrum, 191 Wis. 2d 107, 119-20, 528 N.W.2d 36, 41 (Ct. App. 1995), doesn’t apply in this context. The respondent’s prior misconduct therefore need not be proven by preponderance of the evidence.
Analysis: State experts relied on several prior acts to conclude that Kaminski was uncontrollably (sexually) violent. The court doesn’t say that these hearsay-based, wholly unproven allegations pass any kind of reliability threshold. Instead, the court in effect says: We don’t really care. Starting with the premise established by State v. Gregory J. Franklin, 2004 WI 38, ¶14, that § 904.04 analysis, including the State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998) admissibility test, simply doesn’t apply to ch. 980, the court suggests that even minimal proof of propensity evidence is unnecessary “in light of the elaborate procedural protections afforded to a Wis. Stat. ch. 980 respondent,” ¶14. Indeed, as the court baldly puts it: “To the extent that the Gray standard would prevent the admission of relevant evidence under Wis. Stat. § 904.01, its adoption would frustrate the jury’s ability to accurately assess the probability that a particular respondent will commit sexually violent acts in the future,” ¶15.
That relevance requires only a tendency to make a consequential fact more probable, § 904.01, doesn’t make the issue of proof meaningless; to the contrary, it makes the issue perhaps one of “relevancy conditioned on fact,” § 901.04(2)—relevance would require “the introduction of evidence sufficient to support a finding of the fulfillment of the condition.” It does not mean that relevance is heedless of sufficient evidence. Ultimately, though, the question in this instance isn’t really one of substantive admissibility, conditional or otherwise; whether, that is, the jury could conclude that, because Kaminski (might or might not have) committed one or another prior assault, he was therefore uncontrollably violent. Rather, it is whether the experts could properly consider, on the flimsiest possible basis, that Kaminski had committed these acts so as to factor them into their opinion. To a large extent, that is, the court conflated rules for admissibility of expert opinion testimony with those for admissibility of the evidentiary basis for that opinion. Section 907.03 allows admissibility of an expert opinion based on hearsay, State v. Watson, 227 Wis. 2d 167, 195, 595 N.W.2d 403 (1999), but is not itself an exception to the hearsay rule, State v. Weber, 174 Wis. 2d 98, 107, 496 N.W.2d 762 (Ct. App. 1993). (Put somewhat differently: an expert must be something more than “mere transmitter” of hearsay.) Indeed, the court misleadingly cites Watson for the idea “that expert testimony regarding incidents of prior sexual assault is admissible under these rules,” ¶18. Well, yes, but not as substantive evidence that they actually occurred. Kaminski’s incidents in question were rank hearsay; this didn’t disqualify them from use by the testifying experts, but it sure makes their substantive admissibility hard to fathom. And, whether experts reasonably rely on data as sparsely supported as here would make a nice question, but it’s not one the court addresses.
SVP Evidence – References to Post-Commitment Re-Evaluations
“Infrequent references to annual re-evaluation” were not “sufficiently egregious to diminish the jury’s sense of responsibility for its verdict,” ¶¶20-24.
SVP Evidence: References to Post-Commitment Re-Evaluations Psychopathic Treatment Program
Testimony by a state’s expert to the effect that the only treatment program for psychopaths is at Sand Ridge did not require a new trial under the theory that it implicitly suggested commitment would be in the community’s and respondent’s best interest, ¶¶25-27 (court rejecting analogy to TPR procedure).