Interview of Defendant by Sexual Violence Expert Can’t Be Compelled
Nicholas Needham was accused of being a sexually violent predator (SVP) in 2016. The California Department of State Hospitals (DSH) appointed two doctors to evaluate him prior to trial. Each determined that Needham had a mental illness that made him likely to engage in sexual violence. They suggested he be committed and treated. The Orange County District Attorney then petitioned for Needham’s commitment.
This led to a probable cause hearing where one of the doctors changed his mind. Two new evaluators were appointed and their opinions were split on the issue of Needham’s status as an SVP. Orange County Superior Court Judge Elizabeth Macias sided with the doctor through whom Needham qualified as an SVP and ordered a trial. Then another one of the DSH doctors also changed his mind.
To resolve the matter, the People, the real party in interest, retained its own expert, Dr. Craig King, and also sought discovery of all Needham’s records and evaluations. Macias granted their request by citing the Sexually Violent Predators Act (SVPA or the Act) § 6601 (c) (d)). These sections say that a petition may be filed if an individual is in prison at the time of filing. It also says that the defendant shall be evaluated by two practicing psychiatrists or psychologists to determine whether Needham still meets the definition of an SVP or should be considered for conditional release or discharge. Alternatively, the DSH could order conditional release to a “less restrictive alternative.”
Needham then objected to Dr. King’s testimony at trial. He filed a writ of mandate/prohibition that argued King should not have been given access to his records, that the SVPA does not authorize interviews, and that King was not qualified to give his opinion about Needham’s qualification as an SVP. The case went to the Fourth District Court of Appeal, which denied Needham’s writ petition, and he appealed again to the California Supreme Court.
In a 5-2 decision on July 1, the state’s Supreme Court held that the People could retain their own expert to testify at trial, but the defendant could not be compelled to be interviewed or participate in testing. Justice Carol A. Corrigan wrote the majority opinion which was concurred with by Chief Justice Patricia Guerrero and Justices Leondra R. Kruger, Martin J. Jenkins and Kelli Evans. Justice Joshua P. Groban wrote a separate opinion that concurred in part and dissented in part. It was joined by Justice Goodwin H. Liu.
Corrigan’s opinion began with an update on changes to the SVPA which was passed by the legislature in 1999. When the Act was passed, supporters said it sought to reduce the threat of harm to the public and provide treatment for mental disorders before and/or after incarceration. She noted that the Act did not have a punitive purpose. Rather, it sought to give needed help to those with mental disorders. She also explained that an SVP commitment requires evaluators to find that the person is “currently diagnosed (with) a mental disorder” that makes the person a danger to the health and safety of others because the person is “likely (to) engage in sexually violent criminal behavior.”
The People then argued that even if the SVPA did not authorize “updated evaluations” prior to trial, these were still proper under the Civil Discovery Act (CDA (Code Civ. Proc., § 2016.010 et seq). This act permits civil discovery via physical or mental exams for “any party for which (his or her) physical or mental condition is in controversy.” However, after the holding in a case in which the CDA assumed an SVP proceeding is civil in nature, the legislature amended the SVPA in 2000 to add the new § 6603 (d) that authorizes the prosecution to obtain update evaluation in certain cases, such as out-of-date reports or the unavailability of experts.
However, the Act also makes it clear that any new evaluations be done only by DSH. Justice Corrigan stressed that while the CDA generally applies to civil proceedings, it must “yield to (the) more specific requirements of the SVPA.” She concluded that “the Act does not give the People’s expert the authority to conduct a precommitment evaluation, nor does it authorize independent interviews or tests of the defendant at that stage of the process.”
Corrigan then discussed the crux of the case: whether the People’s retained expert may compel a defendant to participate in an interview or testing. The Supreme Court said they may not as the SVPA does not authorize independent interviews of an expert retained by the People prior to a civil commitment order imposed subsequent to a jury trial. To do so, she said, would “permit an end run around the Act’s careful and particularized balancing of the competing interests at play.” Such interviews can take place after commitment.
The opinion then further spelled out when an expert opinion of a defendant’s potential as an SVP may be used as a predictor of further behavior. It concluded that such testimony can be admitted at trial if the court considers it “proper.” Justice Corrigan also made it clear the SVPA “is silent as to the type of evidence that may be presented at trial.” Further, she emphasized that it would be up to the jury as factfinder to “evaluate the credibility of any witness, whether they be evaluators or experts retained by either side.”
The dissent believed that the majority “misread” the SVPA, which Groban believed said that the People can retain their own expert, an action that would ignore “SVPA’s carefully calibrated procedural safeguards imposed on DSH experts.
In conclusion, the Supreme Court complimented the SVPA's “highly structured process” that demands formal evaluations only be conducted by evaluators appointed by the DSH. The majority ruling repeated that while the CDA generally applies to civil proceedings, any contrary provisions of the SVPA “take precedence.” Furthermore, “A People’s retained expert is not authorized to compel a defendant to participate in interviews and testing before the defendant is committed as an SVP.” But without these procedures, either party may still call a DSH-qualified evaluator to testify.
