by David M. Reutter

The Court of Appeal of California, Fourth Appellate District, concluded that a trial court erred by excluding the defense’s only expert witness from testify in a civil commitment proceeding under the Sexually Violent Predator (“SVP”) Act, Welfare and Institutions Code § 6600, et seq., thereby denying the defendant’s federal right to due process.

The Court held “that in the context of SVP cases, in determining whether to exclude expert witness testimony, the trial court must consider both applicable statutory law, including the relevant portions of the [SVP Act] and the 2004 Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.) and the defendant’s constitutional due process right to present such evidence.

The Court’s opinion was issued in an appeal by Larry Allen Jackson, who a jury found to be an SVP. The trial court ordered him committed to the California Department of State Hospitals for an indeterminate term.

The SVP Act requires the “prosecution to prove three elements beyond a reasonable doubt: (1) The person has suffered a conviction of at least one qualifying ‘sexually violent offense;’ (2) The person has ‘a diagnosed mental disorder that makes the person a danger to the health and safety of others;’ and (3) the mental disorder makes it likely the person will engage in future predatory acts of sexually violent criminal behavior if released from custody.” § 6600; see §§ 6603 and 6604; People v. Shazier, 331 P.3d 147 (Cal. 2014).

The California Supreme Court has explained that in SVP cases “expert testimony is critical” because “the primary issue is not, as in a criminal trial, whether the individual committed certain acts, but rather involves a prediction about the individual’s future behavior.” People v. McKee, 223 P.3d 566 (Cal. 2010). Furthermore, the Civil Discovery Act provides that the defendant is allowed to retain and designate “expert trial witnesses.” §§ 2034.210 – 2034.290. And the SVP Act states that the defendant has “a right to retain experts or professionals to perform examinations … [and] also has a right to present the resulting evidence to the jury.” § 6603(a); Albertson v. Superior Court, 23 P.3d 611 (Cal. 2001).

At trial, the prosecution moved to exclude Jackson’s expert witness Dr. Christopher J. Fisher. The trial court granted the motion because defense counsel failed to timely (1) reserve an expert designation after trial was continued and discovery was reset in July 2020, (2) disclose to the prosecution Fisher’s February 2020 meeting with Jackson at which Jackson first admitted to Fisher that he had committed the two qualifying prior sex offenses and his sex abuse of T., and (3) produce to the prosecution the notes Fisher took regarding the February 2020 meeting with Jackson.

The trial court’s order was based upon its reading of § 2304.300 of the Code of Civil Procedure, which instructs that “the trial court shall exclude from evidence the expert opinion of any witness” if a party is found to have violated the expert witness disclosure requirements.

The Court noted that exclusion is an extreme sanction reserved for egregious discovery abuse, i.e., those that are carried out willfully in order to gain a tactical advantage at trial. People v. Edwards, 17 Cal. App. 4th 1248 (1993). Even assuming Jackson’s discovery violations were unreasonable, reading the word “shall” in § 2034.300 in a vacuum “directly conflicts with (1) Jackson’s specific right in this SVP proceeding to present an expert witness at trial under § 6003, subdivision (a) and (2) his constitutional due process right to present such evidence and be provided the opportunity to tell his side of the story,” the Court explained. It further said it “strains credulity” to contend Jackson’s failure to re-serve notice for a third time in seven months surprised or prejudiced the prosecution in his calling Fisher as an expert witness.

The Court turned to the due process factors due to an SVP defendant under People v. Otto, 26 P.3d 1061 (Cal. 2001): “(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail; and (4) the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible government official.”

The Court noted that neither the parties nor the Court itself have identified any published legal authority regarding “what process is due in the context of expert witness testimony preclusion in SVP trials.”

It then proceeded to apply the Otto factors to SVP proceedings. First, there is no question that “the private interests that will be affected by [a civil commitment under the SVP Act] are a significant limitation on [the defendant’s] liberty, the stigma of being classified as an SVP, and subjection to unwanted treatment.” Second, the “preclusion of expert testimony on behalf of the defense would seriously limit the defendant’s ability to respond to the prosecution’s expert testimony.” Third, the SVP Act “articulates the strong government interest in protecting the public from those who are dangerous and mentally ill. ... The government has no interest in protecting the public from non-SVPs.” Finally, “[i]f the trial court precludes a defendant’s expert witness from testifying at an SVP trial, it is hard to see how the defendant can present his or her side of the story of whether the defendant will engage in predatory acts of sexually violent criminal behavior if released from custody.” Thus, the Court concluded that defendants have a due process right to present expert witness testimony at trial.

Turning to the present case, the Court concluded that the trial court erred by barring Jackson’s expert witness as a remedy of Jackson’s discovery violations, stating it does “not regard this issue as a close one.”

First, the Court explained that discovery statutes are designed to curtail surprises, but any argument that Jackson’s violations resulted in the prosecution being taken by surprise “strains credulity” because the record shows that the prosecution had ample notice that Jackson intended to use Fisher as an expert witness (see opinion for detailed discussion of the many facts leading the Court to this conclusion).

Second, the Court faulted the trial court for choosing the “nuclear option” of excluding Jackson’s only expert witness rather than opting for a less severe remedy. This resulted in Jackson going to trial without any expert witness to rebut the prosecution’s two experts on the sole dispositive issue at trial, which constitutes a denial of constitutional due process, the Court chided. Without an expert witness, the Court stated that “Jackson had no chance of prevailing at trial.” Thus, the Court ruled that he is entitled to a new trial.

Accordingly, the Court reversed and remanded to the trial court for a new trial. See: People v. Jackson, 2022 Cal. App. LEXIS 114 (2022). 

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