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September 20, 2006

Special Admissibility Rules

Occasionally states will establish special admissibility criteria different from, and generally more liberal than, those that would be imposed by the courts. In Commonwealth v. Conklin, 897 A.2d 1168 (Pa. 2006) the defendant was a convicted sex offender classified as a "sexually violent predator" (SVP). Under Pennsylvania law, such a person suffers from a "mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses." The defendant objected to the qualifications of the state’s expert, a clinical social worker, who testified that based on his "diagnostic impressions" that the defendant fit this clinical diagnosis. However, the Supreme Court held that the state was not required to provide the testimony of a licensed psychiatrist or psychologist because the statute in question stated that the opinion of a qualifying "criminal justice expert" suffices. As to a Frye challenge that the statute's admissibility criteria for expert testimony on SVP status "does not square with prevailing standards and methodology in the psychological and psychiatric diagnostic communities," the court quotes an earlier opinion that held the statute simply does not require the state to meet the diagnostic standards that are commonly accepted in the mental health field. Absent this statutory provision, it is not clear whether the court would have found the expert to be qualified to make this diagnosis.

Setting aside the question of whether there is research supporting the proposition that anyone can make a SVP diagnosis with any accuracy, the case raises the interesting question of how often states pass specific statutes or rules of evidence designed to sidestep ordinary admissibility criteria. See, for example, West's Ann.Cal.Evid.Code § 1107, admitting testimony on the effects of "intimate partner battering."

It would be useful to have a census of such statutes to better understand the circumstances in which the legislature feels compelled to take this step. I would be very interested in hearing about such statutes.

JS

September 20, 2006 | Permalink

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