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SVP Commitments – Evidence – Misconduct, § 904.04(2) – Proof of, Reliance on by Expert

State v. Carl Kaminski, 2009 WI App 175
For Kaminski: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: An 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.

State experts relied on several prior acts to conclude that Kaminski was uncontrollably (sexually) violent. Kaminski challenged two of these acts: an allegation of sexual assault an ALJ had determined wasn’t credible; and another alleged assault which received bare mention in a PSI but was otherwise undocumented, ¶¶5, 7. 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.The court starts 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. But it is one thing to say that, unlike criminal procedure, SVP trials aim at the very idea of the person’s propensity for violence; quite another to say that propensity can be established through unreliable means. 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. Those “elaborate protections” include pretrial probable cause findings, a pretrial DHFS evaluation and, ultimately, a “full trial.” It’s just that the “full trial” doesn’t require any proof of the very evidence on which the judgment will be based. 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. Let the patented Case Summaries Translator™ work its magic on this passage: “Requiring actual proof of the basis for committing someone for life would only get in the way of the very purpose of the commitment procedure, which is to make preventive detention as easy as possible.”

Enough snark. It’s certainly true that relevance requires only a tendency to make a consequential fact more probable, § 904.01 (which seems to be the thrust of the court’s analysis, if not expressed quite that way). But that principle 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. Evidence of the incidents in question was rank hearsay; this didn’t disqualify their use by the testifying experts, but it sure makes their substantive admissibility hard to fathom. The question, in other words, isn’t necessarily whether the incidents were themselves substantively admissible to prove propensity—as was the issue in Franklin and Wolfe—but, rather, whether they were the type of data that experts in the field couldrely on, § 907.03. Whether experts reasonably rely on data as sparsely supported as here would make a nice question, but it’s not one the court is curious enough to address. And to the extent that the court is saying it doesn’t really care about the existence of much if any proof of the underlying data, then it is unconcernedly saying that the very foundation for an SVP commitment is farcical.

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