¶16. In order to be admissible in a ch. 980 proceeding, all evidence must be relevant and that relevance must not be outweighed by the danger of unfair prejudice. Wis. Stat. § 904.01; Wis. Stat. § 904.03; State v. Wolfe, 2001 WI App 136, ¶39, 246 Wis. 2d 233, 631 N.W.2d 240. It is that dual test the circuit court must have applied in order to have appropriately exercised its discretion in admitting this evidence.
Applying this test, the court deems admissible the following non-sexually related items: “1) his adult criminal record for battery, thefts, and obstruction; (2) conduct reports from the department of corrections; (3) pre-sentence investigation reports; (4) evidence of his probation and parole violations; and (5) references to his juvenile record. He does not object to the admission of his prior adult criminal record of sexually related conduct.” ¶17.The challenged evidence showed “uncontrollable” criminal behavior, and institutional misconduct, but not necessarily of a sexual nature, ¶18, spelled out in more detail in the concurrence, ¶ 36.For example, “many of the [126!] conduct reports were related to hygiene problems and abnormal behavior related to the defendant’s [sic] schizophrenia.” ¶39. How is that sort of evidence relevant to a 980 trial? Because, according to the majority, the expert used this information in deriving his “diagnosis that Franklin has a mental disorder that features uncontrolled, aggressive conduct.” ¶22. But, “uncontrolled, aggressive conduct” isn’t a 980 issue, uncontrolled sexually violent conduct is. How do you get from poor hygiene to sexual aggression? This is how the majority squares the circle:
¶22. … Franklin has a long history of repeatedly being out-of-control, commencing with his juvenile court adjudications, continuing in his adult criminal conduct and in his failure to conform his behavior to established rules when on probation, parole or when within a correctional institution.12 Other courts have noted past uncontrolled behavior is relevant to whether a person will exhibit uncontrolled behavior in the future. See Wolfe, 246 Wis. 2d 233, ¶37.13 As the United States Supreme Court has explained, “[p]revious instances of violent behavior are an important indicator of future violent tendencies.” Kansas v. Hendricks, 521 U.S. 346, 357-58 (1997) (quoting Heller v. Doe, 509 U.S. 312, 323 (1993)). Here, even though all of the past examples of uncontrolled conduct did not relate to sexual acts, they were relevant to Franklin’s diagnoses of paraphilia and of schizophrenia, as both experts used this evidence to support their opinions. Additionally, as the record in this case shows, the standard risk assessment for sexual offenders takes into account all past violations of the law in attempting to evaluate the probability of future sexually assaultive behavior.14 However, those violations that are sexually related are weighted more heavily in the assessment. Both experts testified that they used these risk assessment tools. We agree that the evidence is relevant.
In the first place, the concurrence points out that the state’s expert “never suggested that any of the defendant’s nonsexual behavior related to a predisposition to sexually violent behavior,” nor drew “any conclusions at trial suggesting that the defendant’s prior nonsexual misconduct made it more likely that he would commit acts of sexual violence in the future.” ¶48. But that’s a fact-specific problem; what if the concurrence’s reading of the record is simply wrong. That would still leave the second point, the idea that prior non-sexual uncontrollability supports the idea of future sexual uncontrollability makes the constitutionality of ch. 980 “tenuous,” in the view of the dissent. ¶61. The majority’s quotes on this idea are, the concurrence says, taken out of context. ¶¶57-60. What this dispute drives at is nothing less than the fundamental nature and purpose of a 980 proceeding. Is it to provide treatment for someone with a demonstrable mental illness, or simply to provide preventative detention for someone with a demonstrable penchant for criminal behavior? Looks more and more like the latter.The majority further suggests that the evidence was relevant precisely because it was relied on. ¶20 n. 11. However, as the concurrence says, “Expert witnesses are allowed to base their testimony on evidence that is otherwise inadmissible and not properly considered by the jury.” ¶43. The court of appeals recently put it this way, in the context of reliance on hearsay, Walworth County v. Therese B., 2003 WI App 223, ¶9: “although WIS. STAT. § 907.03 allows an expert to base an opinion on hearsay, it does not transform the hearsay into admissible evidence. State v. Watson, 227 Wis. 2d 167, 198, 595 N.W.2d 403 (1999).” Reliance by the expert, then, simply doesn’t bootstrap admissibility.