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SVP Commitment – Use Of Actuarials

State v. Barry L. Smalley, 2007 WI App 219, PFR filed 10/19/07
For Smalley: Donald T. Lang, SPD, Madison Appellate


¶18      Smalley notes that the actuarial instruments fail to take an individual’s mental disorder into account, and that they therefore predict dangerousness in general, rather than dangerousness due to mental disorder. He argues that because a jury in a Wis. Stat. ch. 980 trial is required to find dangerousness due to mental disorder, a general prediction of danger is completely irrelevant to the jury’s task. [7] Irrelevant scientific evidence is, of course, not admissible, even given the “limited gatekeeper” role of the Wisconsin judge. See Green v. Smith & Nephew AHP, Inc., 2000 WI App 192, ¶21, 238 Wis. 2d 477, 617 N.W.2d 881, aff’d, 2001 WI 109, 245 Wis. 2d 772, 629 N.W.2d 727 (“expert testimony is admissible if relevant” (emphasis added)). [8]

¶20      We reject Smalley’s argument because we conclude that the actuarial instruments, though they measured dangerousness without regard to Smalley’s mental illness, were nevertheless relevant. Relevant evidence is that evidence which tends to make any fact of consequence in the proceedings more or less likely. See Michael R. B. v. State, 175 Wis. 2d 713, 724, 499 N.W.2d 641 (1993). Smalley’s dangerousness was a fact of consequence to the proceedings; it was not the only fact that needed to be shown, but evidence need not go to every facet of a party’s case in order to be relevant. It is true that ultimately, the State needed to show that Smalley was dangerous due to a mental disorder. To that end, it adduced evidence of a mental disorder and evidence that Smalley was dangerous. It also adduced testimony from its experts as to the ways in which Smalley’s alleged mental disorder made him dangerous. Evidence of dangerousness, while insufficient on its own to support a commitment, is clearly relevant to the ultimate determination that the jury must make: dangerousness due to mental disorder.

¶21      As to Smalley’s concern that the jury may have found him sexually violent solely based on his dangerousness without properly considering the required nexus between that dangerousness and his mental disorder, we note that the jury was properly instructed on this point. Juries are presumed to follow the court’s instructions. State v. Delgado, 2002 WI App 38, ¶17, 250 Wis. 2d 689, 641 N.W.2d 490. We see no reason to think that this jury did anything other than what it was required to do.


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