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SVP – Post-Disposition – Discharge Petition – Probable Cause Hearing, § 980.09(2) (2001-02)

State v. Robert L. Kruse, 2006 WI App 179, PFR filed 9/11/06
For Kruse: Donald T. Lang, SPD, Madison Appellate

Issue/Holding1:

¶2 We agree with Kruse that at a probable cause hearing under Wis. Stat. §980.09(2)(a), the role of the circuit court is to determine whether there is plausible testimony or evidence that, if believed, would establish probable cause that the petitioner is no longer a sexually violent person. The circuit court erred because it did not make this determination but instead decided which of the two conflicting reports was more persuasive. However, we also conclude that under State v. Combs, 2006 WI App 137, No. 2005AP859, the re-examination report on which Kruse relies does not establish probable cause because it is not based, even in part, on facts, professional knowledge, or research that was not considered at his commitment trial. Therefore, we affirm.…

¶30 We conclude that we are bound by our conclusion in Fowler that the probable cause determination under Wis. Stat. §980.09(2)(a) is the same as the probable cause determination in a preliminary examination in a criminal proceeding. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997). From this it follows that the role of the circuit court is as established in Dunn, 121 Wis. 2d at 397-98. That is, in assessing one or more re-examination reports at a hearing under §980.09(2)(a), the circuit court is to determine whether there is a plausible expert opinion that, if believed, would establish probable cause to believe a person is no longer a sexually violent person within the meaning of the statute. If there are two reports with conflicting opinions on this point, the court does not decide which it finds the more persuasive.

¶32 In this case the circuit court decided which of the two conflicting reports was more persuasive; it did not determine whether there was a plausible expert opinion that, if believed, would establish probable cause to believe a person is no longer a sexually violent person within the meaning of the statute. We conclude this was an error. Dr. Fields’ report contained her qualifications and her opinions about Kruse, the latter which were supported with reference to her professional knowledge and experience and information about Kruse she had obtained from identifiable sources. There is no question that her opinions were plausible.

Issue/Holding2:

¶35 We have recently resolved the same issue the parties debate here.[13] In State v. Combs, 2006 WI App 137, No. 2005AP859, we held that the legislature intended that, in order to provide a basis for probable cause to believe a committed person is no longer sexually violent under Wis. Stat. §908.09(2), “an expert’s opinion must depend upon something more than facts, professional knowledge, or research that was considered by an expert testifying in a prior proceeding that determined the person to be sexually violent.” Id., ¶32 (footnote omitted). We rejected the proposition that the legislature intended that probable cause may be established by an expert’s opinion “without regard to whether that opinion is based on matters that were already considered by experts testifying at the commitment trial or a prior evidentiary hearing.” Id.

¶41 Dr. Fields’ report does take into account events and information that occurred since the commitment trial, but her opinion that Kruse is not a sexually violent person does not depend upon them. She expressly states that it is “unlikely” that treatment had “significantly reduced reoffending risks.” While she observed that, based on her interview with Kruse, it “appear[ed]” he showed some increased insight and remorse, and his behavior with female staff had “seemingly improved over the past year,” she does not indicate that her opinion that he is not a sexually violent person is based in any part on these apparent improvements.

 

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