Mass. R. Evid. 1103
Mass. Guid. Evid. 1103
Subsection (a). This subsection is derived from Johnstone, petitioner, 453 Mass. 544, 547 (2009) (discussing G. L. c. 123A, §§ 12-14), and Green, petitioner, 475 Mass. 624 (2016). Expert witness testimony by a credible qualified examiner is required for a judge or a jury to make the determination that a person is sexually dangerous, and the jury must be instructed to that effect. Green, petitioner, 475 Mass. at 625-626. The Commonwealth has the burden of demonstrating its expert witnesses are qualified examiners for the purpose of G. L. c. 123A, § 1. Commonwealth v. Gaughan, 99 Mass. App. Ct. 74, 79 (2021) ("[witnesses'] testimony about their extensive experience in conducting SDP examinations permitted the judge to infer that both witnesses had, at a minimum, the required experience in 'diagnos[ing]' sexually aggressive offenders"). See Chapman, petitioner, 482 Mass. 293, 304 (2019) (where "both qualified examiners independently conclude that the individual is not sexually dangerous, the Commonwealth is unable to prolong an individual's confinement beyond the sixty-day examination and diagnosis period").
The current Massachusetts law, G. L. c. 123A, was adopted in 1999, St. 1999, c. 74, §§ 3-8, and is the successor to an earlier statutory scheme for the civil commitment of sexually dangerous persons (St. 1958, c. 646) that was repealed by St. 1990, c. 150, § 304. As a result, the population of the Massachusetts Treatment Center includes persons who are confined under commitment orders made prior to 1990 and subsequent to 1999. Each population has a right to file a petition in the Superior Court each year that requires a redetermination of whether they remain sexually dangerous. See G. L. c. 123A, § 9. The law provides for trial by jury and affords the individual the right to counsel, the right to present evidence, and the right to cross-examine adverse witnesses. Unless the Commonwealth proves that the person remains sexually dangerous beyond a reasonable doubt, the person must be released. See Commonwealth v. Nieves, 446 Mass. 583, 587, 593-594 (2006) (explaining the statutory procedures governing commitment and discharge under G. L. c. 123A). See also Commonwealth v. Curran, 478 Mass. 630, 636 (2018) (right of incompetent defendant to raise defenses in these proceedings includes right to provide expert testimony regarding lack of criminal responsibility). The criteria for commitment are set forth in the definition of a "sexually dangerous person" found in G. L. c. 123A, § 1. See Commonwealth v. Boucher, 438 Mass. 274, 275-281 (2002).
Subsection (b). "It is settled that hearsay not otherwise admissible under the rules of evidence is inadmissible at the trial of a sexually dangerous person petition unless specifically made admissible by statute" (citations omitted). Commonwealth v. Markvart, 437 Mass. 331, 335 (2002). Thus, the catch-all provision found in G. L. c. 123A, § 14(c) ("Any other evidence" tending to show that the person is sexually dangerous), is not interpreted to make any and all hearsay evidence admissible in SDP proceedings. McHoul, petitioner, 445 Mass. 143, 147 n.2 (2005). See also Id. at 151 n.6 ("For example, there is no hearsay exception that would allow a party to introduce his own prior statements in the various reports and records; if offered by the petitioner, his own statements would not be the admission of a party opponent."). Live-witness testimony based on direct experience, the substance of which may also be memorialized in a report, is not hearsay and is not affected by G. L. c. 123A, § 14(c). Commonwealth v. Bradshaw, 94 Mass. App. Ct. 477, 481 (2018). It is equally settled that documents made admissible by statute in SDP proceedings such as police reports, psychological assessments, notes about treatment, and the like, are not subject to redaction simply because they contain hearsay statements. See McHoul, petitioner, 445 Mass. at 147-148, 151 n.6.
"When the Legislature identified the specific records and reports that were to be admissible in sexually dangerous person proceedings, it did so with full knowledge that they routinely contain information derived from hearsay sources. Having made such records and reports 'admissible,' the Legislature did not intend that the documents be reduced to isolated shreds of partial information that would result from the application of hearsay rules to each individual entry in the documents."
Id. at 150. See also Commonwealth v. Reese, 438 Mass. 519, 527 (2003) (G. L. c. 123A, § 14[c], does not supersede the requirements of the learned-treatise exception to the hearsay rule).
Miscellaneous Evidentiary Rulings. The Supreme Judicial Court and Appeals Court have addressed several other evidentiary questions that relate to these specialized proceedings. See Johnstone, petitioner, 453 Mass. 544, 550 (2009) (although the annual report of the Community Access Board as to a civilly committed person's sexual dangerousness is admissible in discharge proceedings under G. L. c. 123A, § 9, the Commonwealth cannot proceed to trial unless at least one of the two qualified examiners opines that the petitioner is a sexually dangerous person); Commonwealth v. Connors, 447 Mass. 313, 317-319 (2006) (alleged sexually dangerous person who exercises right to refuse to speak to qualified examiners may not proffer expert testimony based on statements made to own experts); Commonwealth v. Nieves, 446 Mass. 583, 587, 593-594 (2006) (civil commitment of an incompetent person under G. L. c. 123A is not unconstitutional even though no effective treatment is available); Commonwealth v. Callahan, 440 Mass. 436, 439-442 (2004) (G. L. c. 123A, § 13[b], which requires that certain material about a person alleged to be a sexually dangerous person be given to the qualified examiners, does not supersede the patient-psychotherapist privilege); Wyatt, petitioner, 428 Mass. 347, 355-359 (1998) (questions concerning the relevancy and probative value of evidence offered in proceedings under G. L. c. 123A are within the discretion of the trial judge in accordance with Sections 401-403 of this Guide); Commonwealth v. Gaughan, 99 Mass. App. Ct. 74, 81 (2021) (specific unanimity instruction not required when two qualified examiners testified that defendant was likely to reoffend and was sexually dangerous person but diverged as to defendant's precise diagnosis); Commonwealth v. Bradshaw, 94 Mass. App. Ct. 477, 482 n.8 (2018) (in SDP proceedings, evidence of uncharged sexual misconduct against other children was "inherently relevant and probative on the question of the likelihood of reoffending in the future"); Commonwealth v. Dinardo, 92 Mass. App. Ct. 715, 722 (2018) (report of Commonwealth's expert psychologist retained prior to filing of petition to commit defendant as a sexually dangerous person, and who was not a designated qualified examiner or defendant's treating psychiatric specialist, admissible at trial pursuant to G. L. c. 123A, § 14[c]); Gammell, petitioner, 86 Mass. App. Ct. 8, 9 (2014) (qualified examiner was permitted to testify at trial as to his opinion regarding the credibility of statements made by petitioner during evaluation of sexual dangerousness); Kenney, petitioner, 66 Mass. App. Ct. 709, 714-715 (2006) (admissibility of juvenile court records in SDP cases); Commonwealth v. Bradway, 62 Mass. App. Ct. 280, 287 (2004) (if reports of qualified examiners are admitted pursuant to G. L. c. 123A, § 14[c], the author of report must be made available for cross-examination). While G. L. c. 123A, § 14(c), authorizes the admission of reports made by qualified examiners without the usual analysis of the Daubert - Lanigan foundation requirements, the trial judge may consider other objections to admissibility such as the lack of qualifications of the examiner, due process considerations, and bias or conflict of interest so severe as to disqualify the examiner. Commonwealth v. Baxter, 94 Mass. App. Ct. 587, 590 (2018). The Commonwealth may not offer evidence that an offender has chosen not to participate in available nonconfidential sex offender treatment when the offender's reason for declining treatment is that participation would have required the offender to make admissions about prior sex offenses that could be used in future legal proceedings; however, evidence that the offender chose not to participate in such treatment for other reasons is admissible as probative of the offender's dangerousness or risk of reoffense. Commonwealth v. Hunt, 462 Mass. 807, 810-811, 818-819 (2012); Pariseau, petitioner, 102 Mass. App. Ct. 67, 72-73 (2023).
Hearsay Evidence Excluded. Police reports and out-of-court statements of witnesses from cases in which the charges have been dismissed or nolle prossed or in which the defendant was found not guilty are not statements of "prior sexual offenses," as set forth in G. L. c. 123A, § 14(c), and thus are inadmissible as hearsay. See Commonwealth v. Markvart, 437 Mass. 331, 335-336 (2002). Cf. Commonwealth v. Mackie, 100 Mass. App. Ct. 78, 87-88 (2021) (police reports underlying crime of assault and battery to which defendant pleaded guilty not admissible under Section 14(c) where Commonwealth did not prove that crime was sexual in nature). However, this does not mean that the testimony of witnesses with personal knowledge of the facts in cases that were dismissed or nolle prossed cases would be inadmissible in SDP cases. See Markvart, 437 Mass. at 337. Similarly, " Markvart does not limit a witness's ability to testify about uncharged sexual misconduct during a trial on a sexually dangerous person petition." Commonwealth v. Bradshaw, 94 Mass. App. Ct. 477, 481-482 (2018).
Subsection (b)(1). This subsection is derived from G. L. c. 123A, §§ 6A, 9, and 14(c). In proceedings for the initial commitment of a person under Section 12 (including the preliminary, probable cause hearing) and the discharge of committed persons under Section 9, the Legislature has removed many of the barriers against the admissibility of hearsay evidence. See G. L. c. 123A, §§ 6A, 9, 14(c). The case law has harmonized these sections so that the general rule is that hearsay admissible in a proceeding under G. L. c. 123A, § 12, is also admissible in a proceeding under Section 9. These statutory provisions permit psychiatrists or psychologists who are qualified examiners, see G. L. c. 123A, § 1, to testify as experts without an independent determination by the court that they are qualified and that their testimony meets standards of reliability under Section 702, Testimony by Expert Witnesses. See Commonwealth v. Bradway, 62 Mass. App. Ct. 280, 285-289 (2004) (admission of testimony and reports of qualified examiners as to a person's sexual dangerousness does not require the court to assess reliability under the standards established in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 [1993], and Commonwealth v. Lanigan, 419 Mass. 15 [1994]). Cf. Ready, petitioner, 63 Mass. App. Ct. 171, 172-179 (2005) (in a Section 9 proceeding, the trial judge was correct in excluding the results of the Abel Assessment for Sexual Interest test administered by an independent expert witness for the petitioner on grounds that it was not generally accepted by the relevant scientific community and thus not reliable under the Daubert - Lanigan standard).
Hearsay Evidence Expressly Made Admissible by Statute. Under G. L. c. 123A, § 6A, reports by the community access board of evaluations of residents of the Massachusetts Treatment Center are admissible in proceedings for discharge under G. L. c. 123A, § 9. Under G. L. c. 123A, §§ 9 and 14(c), reports prepared by qualified examiners are admissible. The phrase "psychiatric and psychological records" in G. L. c. 123A, § 9, includes the reports prepared by psychiatrists and psychologists who have been retained as expert witnesses by the petitioner in connection with a Section 9 petition for examination and discharge. Santos, petitioner, 461 Mass. 565, 573 (2012). The cognate phrase in G. L. c. 123A, § 14(c), will be interpreted in the same manner. Id. at 573 n.10. There also is a broad exemption from the hearsay rule found in G. L. c. 123A, § 14(c), which states that the following records are admissible in proceedings under G. L. c. 123A, § 12, for the initial commitment of an offender as a sexually dangerous person:
"Juvenile and adult court probation records, psychiatric and psychological records and reports of the person named in the petition, including the report of any qualified examiner, as defined in section 1, and filed under this chapter, police reports relating to such person's prior sexual offenses, incident reports arising out of such person's incarceration or custody, oral or written statements prepared for and to be offered at the trial by the victims of the person who is the subject of the petition and any other evidence tending to show that such person is or is not a sexually dangerous person shall be admissible at the trial if such written information has been provided to opposing counsel reasonably in advance of trial."
See also Commonwealth v. Morales, 60 Mass. App. Ct. 728, 730 (2004) ("[Department of Social Services] reports and grand jury minutes containing information about victims of sexual offenses committed against them by a defendant convicted of those offenses are directly admissible in evidence at trials on petitions brought under G. L. c. 123A, § 14[a]"). Under G. L. c. 123A, § 9, either side may introduce in evidence the report of a qualified examiner, the petitioner's "juvenile and adult court and probation records," the petitioner's "psychiatric and psychological records," and the Department of Correction's updated annual progress report pertaining to the petitioner. Constitutional challenges to the Legislature's relaxation of the rule against the admissibility of hearsay in SDP cases were considered and rejected by the Supreme Judicial Court in Commonwealth v. Given, 441 Mass. 741, 746-748 (2004).
When Hearsay Evidence Is the Basis of Expert Testimony. In Commonwealth v. Markvart, 437 Mass. 331, 336-339 (2002), the Supreme Judicial Court applied Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986), see Section 703(c), Bases of Opinion Testimony by Experts, and harmonized the demands of the more general law of evidence and the special statutory exemptions from the hearsay rule found in G. L. c. 123A, §§ 9 and 14(c). The Supreme Judicial Court held that in an SDP proceeding, a qualified examiner could base an expert opinion on police reports and witness statements pertaining to the sex offender even though the information is not in evidence, as long as the information could be admitted if the witnesses were called to testify. Markvart, 437 Mass. at 337-338. Because the statutes, G. L. c. 123A, §§ 9 and 14(c), make the reports of these qualified examiners admissible, any independently admissible hearsay contained in such reports that is not admitted during the trial must be redacted from the reports before it is presented to the jury. Id. at 339. The reason why redaction is required in such cases is not because the qualified examiner's report contains hearsay within hearsay, but rather because the report is the equivalent of an expert witness's direct testimony which cannot be used as a vehicle for putting before the jury facts not in evidence. See McHoul, petitioner, 445 Mass. 143, 148 n.4 (2005).
Subsection (b)(2). This subsection is derived from Commonwealth v. Given, 441 Mass. 741, 745 (2004). The Supreme Judicial Court explained that in proceedings under G. L. c. 123A, § 9 or § 12, G. L. c. 123A, § 14(c), makes admissible evidence of uncharged conduct when it is closely related in time and circumstance to the underlying sexual offense. Id. Cf. Id. at 746 n.6 ("We do not consider or decide whether statements in a police report that include information concerning uncharged misconduct completely unrelated in time and circumstance to the underlying sexual offense must be redacted.").
Standard of Review. "Given the fundamental liberty interest at stake in sexual dangerousness proceedings, we consider it appropriate to review arguments that are raised for the first time on appeal. When evaluating such unpreserved arguments, we apply the same standard governing criminal cases: review for a substantial miscarriage of justice." R.B., petitioner, 479 Mass. 712, 717 (2018).
Section 103(e), Rulings on Evidence, Objections, and Offers of Proof: Substantial Risk of a Miscarriage of Justice.