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SCOW: Expert opinion on risk not needed in ch. 980 proceeding

State v. Jamie Lane Stephenson, 2020 WI 92, 12/18/20, affirming a published decision of the court of appeals; case activity (including briefs)

A five-justice majority of the supreme court holds that the state does not need to present expert opinion testimony that a person subject to commitment under Chapter 980 is dangerous to others because his mental disorder makes it more likely than not that he will engage in one or more future acts of sexual violence.

Stephenson argued the state must present expert testimony on dangerousness because, based both on the text of ch. 980 and the case law upholding ch. 980 (and similar schemes) against due process challenges, the person’s dangerousness must arise because of a mental disorder. Just as an expert is needed to diagnose a mental disorder, so to must an expert provide a basis to make a judgment on dangerousness, as that is beyond the ken of the lay judge or jury. The majority isn’t persuaded:

¶20     In essence, Stephenson asks this court to breathe requirements into a Wisconsin statute that are textually absent. Nowhere does Wis. Stat. ch. 980 require expert testimony for determinations of a committee’s dangerousness, nor should this court invade the province of the legislature to create a rule out of whole cloth. Indeed, the legislature is capable of enacting such language if it chooses. In Wis. Stat. § 980.07(1), for example, the legislature requires that expert examiners conduct “reexamination[s] of the person’s mental condition … [every] 12 months to determine whether the person has made sufficient progress for the court to consider whether the person should be … discharged.” Similarly, the legislature expressly invites courts to hear expert testimony when a committee denies the facts in a petition alleging that he is sexually violent. Wis. Stat. § 980.031…. Not so for § 980.09. While this court could mandate expert witness testimony to support the third element, we decline to do so. “The requirement of expert testimony is an extraordinary one, and [it is applied] by the trial court only when unusually complex or esoteric issues are before the jury.” White v. Leeder, 149 Wis. 2d 948, 960, 440 N.W.2d 557 (1989)…. This court rightly refuses to read words into a statute that are simply not there, and this case is no exception. See Bruno v. Milwaukee Cnty., 2003 WI 28, ¶16, 260 Wis. 2d 633, 660 N.W.2d 656.

¶21     As a general matter, expert testimony may be admissible at trials if, inter alia, “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Wis. Stat. § 907.02(1)…. But within the context of Chapter 980, determinations of future dangerousness rest soundly within the purview of lay factfinders. Courts recognize factfinders to be quite adept at understanding how an individual’s criminal history, admissions of wrongdoing (or lack thereof), performance on supervision, or progress in treatment inform his likelihood of committing future acts of violence. See, e.g., State v. Randall, 2011 WI App 102, ¶¶9-10, 19, 336 Wis. 2d 399, 802 N.W.2d 194 (holding that, in a case involving a petitioner’s commitment on grounds of insanity, the factfinder properly concluded that the petitioner’s past crimes and poor behavior during commitment showed that he “still pose[d] a danger to society”); Estelle v. Smith, 451 U.S. 454, 472 (1981) (discussing the important role of a factfinder in assessing an individual’s future danger to society).


¶27     Nonetheless, Stephenson maintains that the language of Wis. Stat. § 980.01(7) suggests that expert testimony is required to prove that an individual is dangerous to others because his mental disorder makes it more likely than not that he will commit future acts of sexual violence. ….


¶29     As Chapter 980 makes clear, a “mental disorder” is 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). Accordingly, when an expert testifies to a committee’s mental disorder, he establishes that the committee has a predisposition for acts of sexual violence. The next statutory step involves assessing the likelihood the committee will commit such acts in the future. Logically, when ascertaining a committee’s potential for committing acts of sexual violence in the future, the factfinder necessarily ties its determination to the predisposition produced by the mental disorder. In other words, when providing testimony sufficient to establish the second element, the expert lays the foundation for any forthcoming evidence pertinent to the third element. Because the determination of whether the committee is more likely than not to engage in future acts of sexual violence remains squarely within the purview of the factfinder, expert testimony on the third element may inform the factfinder’s decision but it is not necessary to conclude a person is sexually violent.

Stephenson also argued that the standard of review for whether there was sufficient evidence to deny discharge in a ch. 980 case should be modified. The current standard is the one used in criminal cases, and asks whether the evidence, when viewed most favorably to the state and the commitment, is so insufficient in probative value and force that no trier of fact, acting reasonably, could have found by clear and convincing evidence that the person is dangerous to others as defined in element three. State v. Curiel, 227 Wis. 2d 389, 418, 597 N.W.2d 697 (1999). Curiel adopted that standard because of the similarity between ch. 980 and criminal cases, but Stephenson argued the two proceedings aren’t so similar anymore after two decades of statutory changes to ch. 980; moreover, a mixed standard of review is used in reviewing analogous proceedings—e.g., ch. 51 extensions, Waukesha County v. J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783—and that the due process concerns about commitment under ch. 980 make the sufficiency issue a question of constitutional fact that is best assessed with the mixed standard of review. The majority rejects this claim, saying Stephenson didn’t address the standard factors for justifying a departure from stare decisions. (¶¶30-33).

Justices A.W. Bradley and Dallet dissent from the majority’s conclusions on both issues. (¶¶41-82).

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