Appeals Court (April 30, 2008)

In M.G.L. c. 123A, §9 SDP discharge proceedings, the better practice is that judges not charge the jury that the petitioner has a statutory right to file a discharge petition every twelve months. Moreover, neither the Commonwealth nor the petitioner should hint at the statutory right in presenting their evidence.

During the petitioner's section 9 proceeding, the judge, in his pretrial instructions to the venire and in the charge to the jury, advised the jurors of the petitioner's statutory right to seek release annually for no longer being a SDP. The petitioner appealed the verdict that he remained a SDP, arguing that the annual discharge petition instructions introduced a subtle lessening of the Commonwealth's burden of proof.

The Court upheld the SDP verdict, but concluded that the better practice is to shield the jury from extraneous influences that may divert the current role of the jury, which is to determine SDP status at the time of the verdict. The Court found that the judge's instruction may have inadvertently and improperly influenced the jury to abdicate their responsibility, because another petition could be filed within a year.