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After the completion of the examination ordered under Rule 5, the judge shall hold a hearing expeditiously to determine whether there is clear and convincing evidence that (1) the respondent is an individual with an alcohol or substance use disorder, as defined in G.L. c. 123, § 35; and (2) there is a likelihood of serious harm, as defined in G.L. c. 123, § 1, as a result of the respondent's alcohol or substance use disorder, to the respondent, the petitioner, or any other person.
The judge may inquire of the petitioner and may accept testimony or other evidence from the petitioner or any other person, including a court official.
The respondent shall have the right to cross-examine witnesses, present independent expert evidence, call witnesses, and submit documents or other evidence.
All testimony shall betaken under oath and shall be recorded or transcribed.
(2016) As discussed in the commentary to Rule 1, the 2016 legislation deleted the terms “alcoholic” and “substance abuser” and replaced them with “alcohol use disorder” and “substance use disorder.” St. 2016, c. 8, §§ 1-2, 4.
In addition, after the promulgation of the original Uniform Rules, the Supreme Judicial Court approved the standard of proof in Rule 6(a) in In re G.P. , 473 Mass. 112, 118-20 (2015). The Court also provided detailed guidance on assessing the likelihood of serious harm when adjudicating section 35 commitments proceedings. G.P., 473 Mass. at 124-29.
(2015) Among the provisions in these rules that are not set forth in the statute are the applicable standard of proof, the admissibility of hearsay, and the impermissibility of an inference to be drawn by the court from a respondent's refusal to speak with a clinician. These three topics were mentioned as matters requiring clarification in In re Jennifer Henley, Supreme Judicial Court Single Justice Opinion (July 23, 2014) (section 35 hearings involve "several important unresolved issues" regarding evidentiary standards). These issues are addressed in Rules 6 and 7.
Rule 6(a) imposes a "clear and convincing" standard of proof for these cases because this is the standard required for other temporary detention orders, specifically pretrial detention based on "dangerousness" under G.L. c. 276, § 58A. See Mendonza v. Commonwealth, 423 Mass. 771, 782-84 (1996). The Supreme Judicial Court has explained that the reason that proof beyond a reasonable doubt is required in the G.L. c. 123A and G.L. c. 123, § 8 contexts is because "civil commitment of those who are mentally ill and dangerous to themselves or others is 'potentially indefinite and even lifelong,' although the first order of commitment expires after six months and all subsequent commitments expire after one year." Abbott A. v. Commonwealth, 458 Mass. 24, 40 (2010) (quoting Mendonza, 423 Mass. at 783) (citation omitted); accord Querubin v. Commonwealth, 440 Mass. 108, 120 n.9 (2003). Shorter-term civil commitments under G.L. c. 123, § 12 and § 15, by contrast, do not require proof beyond a reasonable doubt. Mendonza, 423 Mass. at 783 n.5. A commitment order under section 35 cannot be extended beyond 90 days for any reason. Contrast Abbott A., 458 Mass. at 36-40 (pretrial detention for dangerousness under G.L. c. 276, § 58A may be extended under certain, limited circumstances). Accordingly, proof beyond a reasonable doubt is not required to satisfy the requirements of due process in section 35 proceedings.
Rule 6(b) recognizes that, after the amendment of section 35 in St. 2011, c. 142, § 18, nonmedical testimony may be presented to the court in support of a section 35 petition, in addition to the medical testimony of the clinician. Accordingly, the judge may inquire of the petitioner (or the nonqualified petitioner who brought the matter to the attention of a court official) to determine whether the petitioner has relevant evidence to present on the petition. Similarly, the judge may accept testimony or evidence from other witnesses as well. Where court officials, especially probation officers, have had contact with a respondent, they may well have useful information for the court.
Section 35 provides that the respondent "may present independent expert or other testimony." Rule 6(c) expands this right to include cross-examination and the submission of nontestimonial evidence.