California SVP Determination Based on Hearsay Evidence Reversed
by Mark Wilson
The Court of Appeal of California, Second Appellate District reversed a Sexually Violent Predator (“SVP”) adjudication, finding that the State’s expert witnesses improperly testified about inadmissible hearsay evidence in support of their conclusion that the SVP statutory criteria were satisfied.
On May 12, 2009, California prosecutors filed a petition seeking to commit Joseph Burroughs as an SVP, pursuant to section 6601 of California’s Sexually Violent Predators Act (“SVPA”).
Dr. Nancy Webber, a clinical forensic psychologist under contract with the State to provide SVP evaluations, was contracted to evaluate Burroughs in 2009. When he refused to meet with her, Webber relied upon hearsay documentary evidence to assess whether he satisfied the SVP statutory criteria. That evidence included probation reports, police reports, his mental health history, and institutional behavior reports.
Dr. Christopher North, a licensed psychologist who performs SVP evaluations for California, Washington, and the U.S. Department of Justice, was also contracted by the State to evaluate Burroughs in 2009. Similarly, Burroughs refused to participate in evaluations performed by North, so he also relied primarily on hearsay documentary evidence including police reports, probation reports, prison records, violation reports, and other miscellaneous documents “to get as complete a picture of the inmate as possible.” North likewise concluded that Burroughs satisfied all three criteria necessary to be classified as an SVP.
At the time of Burroughs’s trial, the general rule was that “out-of-court statements offered to support an expert’s opinion” were not hearsay under California law “because they were not offered for the truth of the matter asserted.” Rather, such statements were introduced “for the purpose of assessing the value of the expert’s opinion.”
The case was continued several times before a jury trial was finally held on August 21, 2015. After denying Burroughs’ motion in limine to exclude all evidence of uncharged offenses contained in the various documents reviewed by the State’s experts and other objections, the trial court allowed Webber and North to testify extensively about hearsay information contained in the reports they reviewed to support their conclusion that Burroughs is an SVP.
On September 3, 2015, the jury returned a verdict, finding that Burroughs was an SVP within the meaning of the SVPA. He was then committed to a state hospital for an indeterminate term.
While Burroughs’ appeal was pending, the California Supreme Court issued People v. Sanchez, 374 P.3d 320 (Cal. 2016), which modified the hearsay rule by holding that an expert witness cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” Accordingly, the Court of Appeal requested that the parties submit supplemental briefings addressing the application of Sanchez.
Ultimately, the Court agreed with Burroughs that the trial court improperly allowed the State’s expert witnesses to testify as to the inadmissible hearsay statements contained in the documents they reviewed in reaching their SVP determination.
The appellate court noted that Sanchez followed the U.S. Supreme Court’s reasoning in the 2012 case Williams v. Illinois, 567 U.S. 50 (2012). In Williams, the Supreme Court instructed, “When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert’s opinion, it cannot logically be asserted that the hearsay content is not offered for its truth.” In that situation, the validity of the expert’s opinion is based upon the truth of the hearsay statement.
Following Sanchez, the Court of Appeal concluded that “admission of expert testimony about case-specific facts was error—unless the documentary evidence the experts relied upon was independently admissible.”
The Court determined that the admission of the impermissible hearsay evidence did not constitute harmless error. Instead, it ruled, “Had the inadmissible documentary evidence and hearsay testimony been excluded from trial, there is a reasonable probability that the jury would have returned a verdict more favorable to” Burroughs.
The Court of Appeal reversed the judgment of the trial court and remanded the case for further proceedings consistent with its opinion. See: People v. Burroughs, 6 Cal. App. 5th 378 (2016).
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