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No expert on dangerousness? No problem! (If you’re the state at a ch. 980 discharge hearing)

State v. Jamie Lane Stephenson, 2019 WI App 63, petition for review granted, 3/17/20, affirmed, 2020 WI 92; case activity (including briefs)

At a hearing on a committed person’s petition for discharge from a ch. 980 commitment, the state has the burden of proving the person is still a sexually violent person—that is, that the person: (1) has a mental disorder; and (2) is dangerous because that mental disorder makes it more likely than not the person will commit sexually violent offenses in the future. § 980.09(3). The court of appeals holds that even though the state needs an expert to prove the person has a mental disorder, it doesn’t need an expert to prove the person is dangerous because of the mental disorder.

At Stephenson’s discharge trial the state’s expert testified Stephenson had a mental disorder; but he also testified that, because of his treatment progress, among other reasons, he isn’t dangerous. (¶¶13-31). Stephenson argued the absence of expert testimony that he met the risk threshold means the state failed to prove its case.

His argument started with the rule that, in certain circumstances, expert testimony is required in order for a party to prove its case because the matter to be proven “is not within the realm of ordinary experience and lay comprehension.” E.g., White v. Leeder, 149 Wis. 2d 948, 960, 440 N.W.2d 557 (1989). The state didn’t dispute—and the court of appeals accepts—that the state needs an expert to prove the person has a mental disorder because that’s an issue “not within the realm of ordinary experience and lay comprehension.” (¶44 & n.6).

“Dangerousness,” in turn, has to flow from and be caused by the mental disorder. That’s because a finding of dangerousness for purposes of ch. 980 requires a determination that a person is dangerous to others “because he or she suffers from a mental disorder that makes it likely that the person will engage in one or more acts of sexual violence.” § 980.01(7) (emphasis added). (The court doesn’t mention that the cases addressing the constitutionality of this kind of commitment hold that due process requires the person’s dangerousness to be connected to the mental disorder. Kansas v. Hendricks, 521 U.S. 346 (1997); Kansas v. Crane, 534 U.S. 407 (2002); State v. Laxton, 2002 WI 82, 254 Wis. 2d 185, 647 N.W.2d 784.) So if dangerousness must be caused by the mental disorder, Stephenson argued, then proving dangerousness due to that mental disorder likewise requires expert opinion testimony that the person’s mental disorder makes him likely to reoffend. (¶44).

The court rejects this logic:

¶45      We agree with Stephenson that a person’s dangerousness for purposes of Wis. Stat. ch. 980 must be connected to his or her mental disorder. However, as the State aptly observes, “in testifying that a person has a qualifying mental disorder, [an] expert has already linked a person’s dangerousness to his [or her] mental disorder.” This conclusion follows because for purposes of ch. 980, the term “mental disorder” is defined as “a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence.” Wis. Stat. § 980.01(2) (emphasis added). Thus, when an expert testifies that a person suffers from a qualifying mental disorder, he or she is necessarily testifying that the disorder predisposes the person to commit sexually violent acts.

¶46     The dangerousness element, in turn, requires the factfinder to determine the likelihood of a person’s risk of reoffense given the predisposition created by his or her mental disorder. We agree with the State that this determination does not require expert testimony. Rather, once an expert has testified to the existence of a qualifying medical disorder that predisposes the person to commit acts of sexual violence, it is within the realm of lay comprehension to determine the likelihood that the person will act on his or her predisposition based on factors such as the person’s criminal history, his or her performance on supervision, the person’s progress in treatment, and an expert’s general testimony about the nature of the person’s mental disorder and any applicable risk factors that may be predictive of recidivism. See [State v.] Kienitz, 227 Wis. 2d [423,] 436, 441[, 597 N.W.2d 712 (1999)] (discussing, generally, factors that a factfinder may consider when assessing a person’s risk of reoffense). While an expert opinion regarding the person’s risk of reoffense will likely be helpful to the factfinder in making this determination, we reject Stephenson’s argument that such testimony is required in order for the State to meet its burden of proof.

The court also rejects Stephenson’s argument that, even if the state didn’t need an expert, the evidence was insufficient to prove dangerousness. (¶¶50-61).

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