Page 1
California Supreme Court:
Prosecution Cannot Compel Interview by Its Expert of Alleged Sexually Violent Predator
Majority Holds Expert May Testify as to Whether Defendant Qualifies for Commitment
By Kimber Cooley, Staff Writer
The California Supreme Court held yesterday, in a 5-2 decision, that the prosecution, in seeking commitment under the Sexually Violent Predator Act, may retain its own expert to testify at trial as to whether the defendant comes under the act but may not compel the subject of the hearing to be interviewed or participate in testing before trial.
Justice Carol A. Corrigan authored the majority opinion, joined by Chief Justice Patricia Guerrero and Justices Leondra R. Kruger, Martin J. Jenkins, and Kelli Evans. That opinion reverses a judgment of Div. Three of the Fourth District Court of Appeal.
Corrigan wrote:
“We hold that, although the People may call their retained expert to testify at trial, both to contest the testimony of other witnesses and to offer an independent opinion as to whether the defendant qualifies as a[] [sexually violent predator], the People’s retained expert may not compel a defendant to be interviewed or participate in testing before trial.”
Justice Joshua P. Groban wrote a separate opinion, in which Justice Goodwin H. Liu joined, concurring with the conclusion that the prosecution cannot compel a defendant to be interviewed by a privately retained mental health professional, but dissenting from the view that the expert may testify as to whether the subject of the hearing qualifies as a sexually violent predator (“SVP”) under the Sexually Violent Predator Act (“SVPA”). He said:
“While the majority reaches a compromise—the People may retain a testifying expert, but that expert may not interview or test the defendant—this outcome only ensures that the People’s expert is necessarily deprived of the most useful data point for drawing a conclusion on whether the defendant qualifies as an SVP; i.e., talking to and examining the defendant. The better read of the statute’s elaborate expert evaluation provisions is that the Legislature did not intend for the People to call their own testifying expert at trial.”
Statutory Provisions
The SVPA, codified at Welfare and Institutions Code §6600 et seq., sets forth how the SVP process is to be initiated, who may evaluate a person for possible SVP treatment, and the procedures governing the assessment. Under the act, if the Department of Corrections and Rehabilitation (“DCR”) determines that an inmate may qualify as an SVP, a referral is made to the Department of State Hospitals (“DSH”) for evaluation.
The evaluation is conducted by two mental health professionals, either psychologists or psychiatrists, chosen by the DSH director. Each professional must evaluate the inmate in accordance with a standardized assessment protocol to determine whether he is an SVP.
An SVP is defined in §6600(a)(1) as someone “who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.”
If the two evaluators agree, the director forwards a request to the prosecuting agency to file a petition for commitment in superior court. If they disagree, the director facilitates further examination by two independent professionals.
If the prosecution agrees that the inmate qualifies as an SVP, it files a petition in superior court for a probable cause hearing. If probable cause is found, it proceeds to trial.
Changing Minds
The dispute arose in a case in which evaluators twice changed their minds about whether the defendant, Nicholas Needham, qualified as a sexually violent predator. Needham was serving time in prison when he was identified by the DCR for evaluation as a possible SVP.
The DHS appointed two evaluators, psychologists Jeremy Coles and Michael Musacco, who each determined that Needham qualified as an SVP. Before the probable cause hearing, however, Coles submitted an updated evaluation, changing his opinion and concluding that Needham did not qualify.
The DSH appointed two other evaluators, psychologists Bruce Yanofsky and Douglas Korpi. Yanofsky concluded that Needham qualified as an SVP while Korpi opined that he did not.
Coles, Musacco and Korpi testified at the probable cause hearing. Orange Superior Court Judge Elizabeth Macias found that there was probable cause and ordered a trial.
Yanofsky later submitted an updated evaluation indicating that he changed his opinion and no longer believed Needham qualified as an SVP.
The prosecution retained psychologist Craig S. King and sought the discovery of the defendant’s evaluations and records. Macias ruled that King could interview and test the defendant, which King did. After his motions seeking to preclude the testimony of King were denied, Needham filed a writ of prohibition to prevent the testimony, which the Fourth District granted.
Updated Evaluations
Corrigan noted that the Legislature added §6603 to the Act in 2000, granting the prosecution the right to seek updated or replacement evaluations under certain circumstances, namely, if the original reports have gone stale or the experts are no longer available to testify. However, she said:
“[T]he Act aims to balance the rights of a proposed conservatee, the need to protect public safety and provide treatment, and the goal of properly litigating a commitment proceeding. It makes clear that, while the prosecutor can request that updated or replacement evaluations be conducted, the evaluations themselves must be done by DSH.”
The prosecution relied upon the Civil Discovery Act (“CDA”), found at Code of Civil Procedure §2016.010 et seq., for the contention that it may retain an expert to independently examine a defendant, noting that nothing in the SVPA specifically precluded the practice.
Corrigan acknowledged that the CDA—which supports the right to retain testifying experts—generally applies to SVP trials as civil commitment proceedings, but explained that “even if the CDA contains terms that may generally be applicable in a civil proceeding, such provisions must yield to more specific requirements of the SVPA.”
She opined:
“[A]lthough the CDA generally allows one party, upon a proper showing, to conduct a mental examination of another party…, those provisions conflict with the SVPA’s express mandates concerning the conduct of updated or replacement evaluations and the dissemination of a defendant’s confidential records….The statutory scheme expressly authorizes release to the People of all evaluations and supporting documents. But the right is limited to evaluations conducted by DSH.”
Opinion at Trial
Corrigan remarked that expert testimony is critical in an SVP proceeding which is concerned with a prediction of future behavior, a subject sufficiently beyond common experience.
The jurist said that “[a]lthough the SVPA’s detailed provisions for the conduct of evaluations precludes additional evaluations not provided for by statute, nothing in the Act limits the presentation of relevant, otherwise admissible expert testimony.”
She added:
“Although the SVPA circumscribes who may conduct formal evaluations of a defendant, it is silent as to the type of evidence that may be presented at trial. Nothing in the Act suggests a legislative intent to allow the People to continue with a commitment proceeding notwithstanding evaluators’ changed opinions but simultaneously to hamstring them by not allowing them to present expert testimony to counter the new opinions and bolster its contrary view of the case. Indeed, the Legislature could have required dismissal of the petition if the evaluators no longer agreed defendant qualified as an SVP. It did not do so. It would seem incongruous that the SVPA contemplated the People may retain an expert to assist in the prosecution of its case…yet bar the testimony of that same expert to assist the trier of fact.”
Dissenting View
Groban’s dissent objected to what he asserted to be a misreading of the SVPA. He said:
“The majority’s decision undermines the SVPA’s carefully calibrated procedural safeguards by allowing the People to simply retain their own expert who may testify free from the constraints of the statutory scheme. Under the majority’s holding, a retained expert for hire will be able to opine at trial that an SVPA defendant should be civilly committed as an SVP, even though that expert has not conducted the evaluation per the statute’s ‘standardized assessment protocol’…and has not even interviewed, met with, or tested the defendant.”
He added:
“The majority misreads the statute when it concludes that the People can retain their own expert who will simply bypass all of the procedural requirements imposed on the DSH experts in forming his or her opinion. Contrary to the majority’s belief, the statute’s detailed structure setting forth precisely how and by whom an evaluation must be conducted tells us that the People cannot simply retain an expert who testifies without having adhered to any of these procedural safeguards.”
The case is Needham v. Superior Court, 2024 S.O.S. 2173.
Copyright 2024, Metropolitan News Company