Section 1103.  Sexually Dangerous Person Proceedings

In proceedings for the commitment or discharge of a person alleged to be a sexually dangerous person (SDP), hearsay evidence is not admissible, except as provided in Subsections (a) and (b) of this section.

(a) Hearsay That Is Admissible. Hearsay consisting of reports or records relating to a person’s criminal conviction, adjudication of juvenile delinquency or as a youthful offender, the person’s psychiatric and psychological records, and a variety of records created or maintained by the courts and other government agencies, as more particularly defined by statute, is admissible in SDP proceedings.

(b) Hearsay That May Be Admissible. In addition to hearsay ad­mis­sible under Subsection (a), other hearsay may be admissible if it concerns uncharged conduct of the person and is closely related in time and circumstance to a sexual offense for which the person was convicted or adjudicated a juvenile delinquent or youthful offender.

NOTE

Introduction. A person who has been convicted of a sex offense may be confined indefinitely for treatment after the termination of the person’s criminal sentence if the person is found to be a sexually dangerous person in accordance with statutory procedures. See Johnstone, petitioner, 453 Mass. 544, 547, 903 N.E.2d 1074, 1076–1077 (2009) (discussing G. L. c. 123A, §§ 12–14). 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to an earlier statutory scheme for the civil commitment of sexually dangerous persons (St. 1958, c. 646) that was repealed by St. 1990, c. 150, § 304.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, 846 N.E.2d 379, 383, 387–388 (2006) (explaining the statutory procedures governing commitment and discharge under G. L. c. 123A). 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, 780 N.E.2d 47, 49–‌53 (2002). Expert witness testimony is required in order for a judge or a jury to make the determination that a person is sexually dangerous. See Com­mon­wealth v. Bruno, 432 Mass. 489, 511, 735 N.E.2d 1222, 1238 (2000).

“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, 771 N.E.2d 778, 782 (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, 833 N.E.2d 1146, 1151 n.2 (2005). See also id. at 151 n.6, 833 N.E.2d at 1153 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.”). 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 id. at 147–148, 151 n.6, 833 N.E.2d at 1151–1152, 1153 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, 833 N.E.2d at 1153. See also Commonwealth v. Reese, 438 Mass. 519, 527, 781 N.E.2d 1225, 1232 (2003) (G. L. c. 123A, § 14[c], does not super­cede 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, 903 N.E.2d 1074, 1079 (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, 850 N.E.2d 1038, 1041–‌1043 (2006) (although the allegedly sexually dangerous person has a right to refuse to speak to the qualified examiners, he or she may not offer his or her own expert testimony, based on his or her statements made to his or her own experts, while refusing to answer the questions of the qualified examiners); Com­monwealth v. Nieves, 446 Mass. at 593–594, 846 N.E.2d at 387–388 (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, 799 N.E.2d 113, 115–117 (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 supercede the patient-psychotherapist privilege); Wyatt, petitioner, 428 Mass. 347, 355–359, 701 N.E.2d 337, 343–345 (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); Kenney, petitioner, 66 Mass. App. Ct. 709, 714–‌715, 850 N.E.2d 590, 596 (2006) (admissibility of juvenile court records in SDP cases); Commonwealth v. Bradway, 62 Mass. App. Ct. 280, 287, 816 N.E.2d 152, 157–158 (2004) (if reports of qualified examiners are admitted pur­suant to G. L. c. 123A, § 14[c], the author of the report must be made avail­able for cross-examination).

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. at 335–‌336, 771 N.E.2d at 781–782. 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 id. at 337, 771 N.E.2d at 783.

Subsection (a). 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 Experts. See Commonwealth v. Bradway, 62 Mass. App. Ct. 280, 285–289, 816 N.E.2d 152, 156–159 (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, 641 N.E.2d 1342 [1994]). Cf. Ready, petitioner, 63 Mass. App. Ct. 171, 172–179, 824 N.E.2d 474, 476–480 (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, 962 N.E.2d 726, 733 (2012). The cognate phrase in G. L. c. 123A, § 14(c), will be interpreted in the same manner. Id. at 573 n.10, 962 N.E.2d at 733 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, 805 N.E.2d 1007, 1009 (2004) (“DSS 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, 808 N.E.2d 788, 793–795 (2004).

When Hearsay Evidence Is the Basis of Expert Testimony. In Commonwealth v. Markvart, 437 Mass. 331, 336–339, 771 N.E.2d 778, 782–784 (2002), the Supreme Judicial Court applied Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531, 499 N.E.2d 812, 820–821 (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. Commonwealth v. Markvart, 437 Mass. at 337–338, 771 N.E.2d at 783–784. 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, 771 N.E.2d at 784. 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, 833 N.E.2d 1146, 1152 n.4 (2005).

Subsection (b). This subsection is derived from Commonwealth v. Given, 441 Mass. 741, 745, 808 N.E.2d 788, 792–793 (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, 808 N.E.2d at 793 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.”).