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.
