The Admissibility of Expert Opinion and the Bases of Expert Opinion in Sex Offender Civil Management Trials in New York

By Duffy, Colleen D. | Albany Law Review, Winter 2011 | Go to article overview

The Admissibility of Expert Opinion and the Bases of Expert Opinion in Sex Offender Civil Management Trials in New York


Duffy, Colleen D., Albany Law Review


I. INTRODUCTION

"According to the Assistant District Attorney and the police, the methods employed in the instant offense were similar to a dozen earlier complaints of rape and attempted rape in Van Courtland Park between 1976 and 1978, which abated entirely following the defendant's arrest herein." (1)

"He [David] took his private part and put it in my butt." (2)

A comment about the decrease in rapes since a defendant was arrested in an unsigned 1978 presentence report attributed by the author of the report to an unidentified assistant district attorney; (3) an excerpt of a note in a business record created by a social worker at Montefiore Medical Center in 2002 in connection with a sex abuse allegation against a father with respect to his children which purports to recite a comment by a seven-year-old child about his father touching the child's genitalia; (4) charges of anal and oral sodomy of two young boys in a complaint filed in family court in 1969, sworn to, not by the complainants but, by their parents (who were not present during the assault), where the case was resolved upon an admission to robbery; (5) a 1976 police report detailing the description by a complaining witness of an alleged rape where that same complaining witness a few months later recanted, under oath, the identification of the arrested perpetrator at a court proceeding, resulting in a dismissal of the charges; (6) the contents of a 2010 interview between a state expert witness and the same alleged victim of that now more than thirty-year-old crime, in which that complainant "recanted the recantation" telling the expert that she had no doubt that respondent was the person who attacked her, but she was frightened during the hearing and that is why she recanted. (7)

What do these types of material have in common? The common thread is the question of whether such material and information--almost never admissible in a criminal trial--is admissible in a sex offender civil management jury trial against a respondent, not for the truth of the matters asserted therein, but for the purposes of showing the jury the basis forming an expert's opinion in the case to assist them in evaluating that opinion.

In such cases, an expert witness proffered by the petitioner, the New York State Attorney General ("Attorney Genera]"), (8) testifies that, in his or her expert opinion, the respondent in the action is a detained sex offender who now suffers from a mental abnormality, as that term is defined in Mental Hygiene Law, Article 10--the statutory scheme detailing New York's Sex Offender Management and Treatment Act. (9) The expert is likely to opine about the condition, disease, or disorder, if any, that he or she believes the respondent suffers from, and whether the respondent is predisposed to the commission of conduct constituting a sex offense, as well as whether the respondent has serious difficulty in controlling such conduct. (10)

Typically, before rendering such opinion, the witness proffered by the petitioner as an expert testifies as to his or her qualifications, and then, once qualified as an expert, expresses his or her opinion and is questioned about the material and information that formed the basis of that opinion.

Ordinarily, the materials reviewed by the petitioner's expert include Department of Corrections ("DOCS") materials relating to the respondent who is the subject of the sex offender civil management proceeding. (11) These materials can include any medical records made during the respondent's incarceration and/or confinement, presentence reports prepared in connection with any sexual offenses and nonsexual offenses of which the respondent has been convicted, the respondent's "rap sheet," (12) parole reports, police reports, materials regarding the respondent maintained by the Office of Mental Health ("OMH"), court transcripts, and the reports and evaluations of other psychiatric evaluators. …

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