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Court of Appeal:
Expert Hired by Prosecution Can’t Testify at SVPA Trial
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal, in a 2-1 opinion, has thwarted an effort by the Orange County District Attorney’s Office to bolster chances that a child molester, upon release from prison, will continue to be confined for the purpose of treatment.
The panel’s majority on Monday declared that the prosecution may not put on testimony by an expert it hired that, if freed, the inmate would be apt to engage again in predatory sexual conduct.
Monday’s decision comes in the case of Nicholas James Needham, a registered sex offender. Needham was convicted in Orange Superior Court of sexually molesting a 5-year-old in a public restroom and had been convicted in federal court on child pornography charges.
Orange Superior Court Judge Linda S. Marks, sitting on assignment, authored the majority opinion, in which Presiding Justice Kathleen O’Leary joined. Justice Thomas M. Goethals dissented.
Peremptory Writ Granted
Marks’s opinion grants a peremptory writ of mandate issue directing the Superior Court to exclude the testimony of the prosecution’s privately retained expert witness who examined Needham and concluded that he remains dangerous.
The District Attorney’s Office in 2016 brought a petition to have Needham declared a sexually violent predator (“SVP”), subject to continued detention under the Sexually Violent Predator Act (“SVPA”) after two experts appointed by the state Department of State Hospitals (“DSH”) agreed that he constituted a continuing menace. After that, however, one of the experts changed his mind; two others were appointed, and they were split in their views.
After all four testified at a hearing, it was determined that there was probable cause to believe that Needham is a SVP and a trial was ordered—but then one of the experts who had initially concluded that Needham should be detained further formed a contrary view.
Testimony Authorized
It was at that point that the District Attorney’s Office brought in its own expert. Orange Superior Court Judge Elizabeth G. Macias ruled that he could testify.
Needham sought a writ to block that testimony. The Court of Appeal initially denied Needham’s petition, but the California Supreme Court directed it to issue an order to the Superior Court show cause why relief should not be granted; it complied; this time, it determined that a writ should issue.
Marks wrote:
“The SVPA represents an extraordinary deprivation of a person’s liberty: it enables the state to indefinitely detain a person, not for a crime actually committed, but for a crime that may be committed in the future. To be sure, the clear and present danger posed by sexually violent predators warrants such a scheme. But given the obvious dangers to essential liberty interests inherent in the SVPA, it must be carefully implemented and applied only where there is a high degree of certainty that it is warranted.”
Balancing Interests
She continued:
“Balancing these competing interests, the Legislature has prescribed a detailed process that centers around multiple evaluations by independent experts—as many as eight of them.
“The statutory scheme deliberately limits when an SVP petition may be filed and brought to trial, as well as the evidence available to the prosecution. In light of this system, we conclude that the expert-witness provisions of the Civil Discovery Act do not apply and that the People have no right to retain an expert witness to testify at trial.”
The judge went on to say:
“To permit the People to retain a testifying expert would create the possibility that an expert with a clear bias—an expert hired to support the People’s view, rather than provide an independent analysis—could lead to the deprivation of a person’s liberty even where some independent experts find it unwarranted, or for reasons independent experts find unconvincing. That result is inconsistent with the design of the SVPA procedure.”
Goethals said in his dissent:
“It is…well settled that, since SVPA proceedings are civil in nature…, the Civil Discovery Act of 1986…applies to them….Since the CDA permits parties to retain and designate expert trial witnesses…, it follows logically and legally that both sides in an SVPA action have such a right. No published opinion has held to the contrary.”
He added:
“Today, many civil trials evolve into battles of expert witnesses. The designation and use of such experts are controlled by the CDA. The parties have the opportunity to challenge pretrial the admissibility of their opponent’s proposed expert testimony via motions filed pursuant to Evidence Code sections 402 and 405. If the testimony is admitted, the experts are subjected to the crucible of cross-examination. And then the trier of fact decides who to believe. I am not convinced that proceeding in this well-established manner threatens the fairness of future SVP proceedings.”
The case is Needham v. Superior Court, 2022 S.O.S. 3508.
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