ja_mageia

EVIDENCE – EXPERT OPINION – RELIANCE ON HEARSAY – “BASIS OF OPINION” EXCEPTION – UNLAWFUL EXTENSION TO SUBSTANTIVE HEARSAY TESTIMONY ABOUT FACTS OF CRIME COMMISSION – MENTAL HEALTH EXPERTS – EFFECT OF HEARSAY-BASED TESTIMONY.

A far-reaching criminal case from the Virginia Supreme Court is reported here because it concerns the admission of a kind of evidence often adduced in family law cases, and a class of criminal cases that often arise out of or merge into family law cases.  The issue was whether valid, admissible “expert opinion” testimony could be based solely on untested hearsay, and whether such “opinion” testimony can extend into areas of repeating supposedly factual testimony about a defendant’s acts and their circumstances.

Suffice it to say, in this limited space, that the Supreme Court acted definitively and boldly.  This case concerned whether a defendant in a civil commitment hearing under the Sexually Violent Predator Act, §37.2-908(C), can be confined on the basis of such hearsay testimony from an expert as a “basis of his opinion” that was founded on such hearsay.  Defendant had already gotten 45 years imprisonment for rape and sodomy but before he was about to be released, the Commonwealth brought these sexually violent predator proceedings.  Some will recall that this is very close to an issue that was recently argued before the U.S. Supreme Court, the same day that the Hague Convention case Abbot v. Abbot  was argued.  Perhaps, given the rising cost of ink, paper and everything else, including the loss of forest cover on our once-green planet, etc., it is best to set forth only the salient points in this densely-packed unanimous opinion, Lawrence v. Commonwealth, ___ Va. ___, 689 S.E.2d 748 (2/25/10).  The Court held that the provision of that statute that an expert witness can state the “basis for his opinion” does not legitimize testimony about the details of hearsay allegations of crime.  Not only that but, when that improper testimony is admitted, it cannot be cured by a Judge’s limiting instruction to the jury, and is not harmless error.  Moreover, any expert opinion that relies on assuming the truth of such unproved hearsay allegations lacks an adequate factual foundation to be admitted in evidence.  Thus it’s an abuse of discretion, and requires reversal.  It is “clearly inadmissible” because questions of admissibility are not in fact discretionary questions: they are matters of law.  Moreover, this extends to “expert” opinions about such things as “anti-social personality disorders.” And the fact that a second expert comes along and testifies that the offender has a high risk of committing future offenses will not help matters, if that second expert admits that in forming her own opinion she assumed those hearsay allegations to be true.