CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, September 10, 2009

How I Spent My Summer Vacation: Some Thoughts on Sexually Violent Predator Laws

I spent about two weeks this past summer serving on a jury, and another four weeks explaining how I ended up getting chosen. (One answer is that, when the trial judge is a member of your school's Board of Visitors, you really don't have the option of answering questions during voir dire in a way obviously designed to avoid service.)

Our case was a petition to declare as a sexually violent predator a prisoner concluding his 20-plus year sentence for two counts of rape. The declaration would have permitted his commitment to a mental hospital. Under California law, we were to grant the petition only if we found, beyond a reasonable doubt, that the respondent suffered from a mental disorder affecting his emotional or volitional capacity that predisposed him to committing future criminal sexual acts.

Much has been written about these laws, including commentary spawned by the Phillip Garrido case and a couple of manuscripts recently posted on SSRN by Professors Logan, Levine, Yung, and Saxer and summarized over the past few weeks on CrimProf. My goal is not to provide a systematic treatment of the topic, but to report an experience that surprised me more than it probably should have.

In our trial, the state presented three experts, and the defense offered two. Everyone agreed that the respondent had some kind of mental disorder, with the disagreement being whether that disorder predisposed him to committing future criminal sexual acts. And all the experts agreed that most rapists, even those we might think quite likely to reoffend, do not suffer from a qualifying mental disorder, even if they might have some mental disorder.

In the jury room, many jurors seemed to have a hard time focusing on the question that the law asked them to answer. Most people are indifferent as to whether they are raped by a person who is predisposed to the crime by a mental disorder or not; and jurors would take little comfort in professional diagnoses if they learned that a person they had released subsequently committed another violent sex crime. We had spent several days hearing details of the respondent's prior offenses, all explored for the purpose of testing the bases of the opinions of the state's expert witnesses, of course. And so the jury had a clear picture of what could happen if it rejected the state's petition.

For many on the jury, the primary disagreement among the experts—the connection between respondent's mental disorder and his predisposition to future offenses—was lost among other conclusions: that respondent did have a mental disorder, and that there was a nontrivial chance that he would reoffend if released, just as there is a nontrivial chance that many prisoners will reoffend when released. And if the jury found in favor of the state, the verdict likely would be unassailable. While the jurors thought that the defense experts were credible, and could not point to any reason to reject their conclusions, if the jury did find for the state, the law would have presumed that we had assessed their demeanor and found them incredible.

When we concluded our duty, the world was more free but less safe. And I have no doubt that, with a somewhat different group of jurors, safety would have trumped the law.


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As an appellate attorney handling criminal appeals in CA, I read your post with great interest. Aside from the issues with efficacy of the SVP Law, this seems to support a case for expanding the scope of appellate review of criminal convictions. Most of my clients, and, I suspect, most people on the street, would expect the appeals court to be able to re-weigh the jury's conclusions concerning the verasity of witnesses, experts, etc. The idea that a jury at trial is inherently better at judging expert credibility because they heard the testimony live seems questionable to me. Plus, we now have the ability to video-record the trials, and, perhaps, take some sting out of the "you weren't there" problem for appellate courts.

Posted by: Gene Vorobyov | Sep 10, 2009 9:43:22 AM

Thanks for the reaction. My sense is that this may be a problem that just cannot be solved when the law asks a jury to decide something that doesn't jibe with an ordinary person's intuitions about what should be important. Maybe defense counsel just need to be aware of this problem and try to educate the jury about the reason for the law's focus, to the extent they can.

Posted by: Kevin Cole | Sep 10, 2009 11:21:35 AM

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