By Christopher Zoukis

The Virginia Supreme Court has reversed a jury's finding that a convicted sex offender was not a sexually violent predator who must be civilly committed.

On Aug. 12, 2014 the Commonwealth of Virginia moved to involuntarily commit Brady Arnold Proffitt, Jr. as a sexually violent predator. In order to commit Proffitt pursuant to the Sexually Violent Predators Act, Va. Code § 37.2-900, the Commonwealth needed to prove two elements -- that Proffitt had been convicted of a sexually violent offense, and that due to a mental abnormality or personal disorder, Proffitt had a difficulty controlling his predatory behavior, making it likely that he would engage in future sexually violent acts.

The issue in this case was with the second element. The Commonwealth elicited the testimony of expert Dr. Doris Nevin, who had diagnosed Proffitt with sexual sadism, anti-social personality disorder and alcohol use disorder. Dr. Nevin opined that Proffitt was likely to commit further sexually violent acts if released.

In an attempt to buttress the doctor's opinion, the Commonwealth called two of Proffitt's victims, M.J. and A.G., to the stand. Proffitt objected to these witnesses, arguing that his convictions were already in evidence and that the testimony from these witnesses would "incense and charge the jury emotionally" and do nothing but throw fuel on the fire.

The Commonwealth argued that these witnesses could establish Proffitt's "M.O." and that their testimony would "strengthen" Dr. Nevin's diagnosis. The trial judge ruled that this testimony was not relevant to the issue of whether Proffitt was likely to reoffend or his diagnosis, as the doctor had already established that. Further, the trial judge determined that the testimony would inflame the jury. As such, M.J. and A.G. were not allowed to testify.

The jury found in favor of Proffitt, determining that the evidence had failed to prove that Proffitt was a sexually violent predator. The Commonwealth appealed on the grounds that M.J. and A.G. should have been allowed to testify.

Reviewing the trial judge's decision, the Virginia Supreme Court reached the striking conclusion that the judge had abused his discretion by not allowing M.J. and A.G. to testify. The court concluded that the testimony was relevant because it could have "strengthened" Dr. Nevin's diagnosis. Further, the court determined that the prejudicial effect of the testimony did not outweigh its relevance.

The court strained credulity to reach these conclusions. For example, the court did not provide a satisfactory explanation as to how Dr. Nevin's diagnosis could be "strengthened." Dr. Nevin made the diagnosis, and testified to it. The concept of "strengthening" a doctor's diagnosis by allowing inflammatory testimony as to the acts that led to the diagnosis is curious indeed.

Further, despite the court's determination that the relevance of this testimony outweighed its prejudicial effect, there is no doubt that the testimony of Proffitt's victims would inflame the jury. He was convicted of forcibly raping these two individuals. A jury's ability to fairly weigh evidence would surely be impacted by allowing such highly charged testimony into evidence. Given the fact that evidence as to each element of the statute was admitted, the trial court was correct -- the testimony of these victims was not relevant, and was instead highly prejudicial.

Case:  Commonwealth of Virginia v. Proffitt, Virginia Supreme Court, Case No. 151514 (October 27, 2016).

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