120 N.E.3d 1263
Mass. App. Ct.2019Background
- John Doe was convicted in New York (2009) for possession of child pornography after police found videos of young children; while awaiting sentencing he later admitted to touching a four‑year‑old in a friend’s apartment, was arrested, and criminal charges were nol prossed.
- Police and child protective services interviewed the child; the child consistently reported that Doe touched his penis and that Doe exposed himself; Doe made multiple spontaneous admissions to his friend and to police.
- Doe moved to Massachusetts, registered with the Sex Offender Registry Board (SORB), and was initially recommended for level three classification; he requested a de novo administrative hearing.
- At the SORB hearing the examiner admitted and credited police reports and other hearsay, found by a preponderance that Doe molested the child, and concluded by clear and convincing evidence that Doe posed a moderate risk warranting level two public registration.
- Doe sought judicial review in Superior Court; the court affirmed the SORB decision and the Appeals Court affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/reliability of hearsay (police reports of uncharged assault) | Hearsay police reports and out‑of‑court statements were unreliable and should not support finding of molestation | Examiner permissibly admitted hearsay in administrative hearing because it bore sufficient indicia of reliability (detail, consistency, corroboration) | Examiner reasonably relied on the hearsay; reports had adequate indicia of reliability and could be credited |
| Standard of proof for subsidiary facts (e.g., whether molestation occurred) | Subsidiary facts underlying classification must be proved by clear and convincing evidence | Subsidiary facts require only preponderance; only the ultimate classification must be proved by clear and convincing evidence | Subsidiary facts proven by preponderance of the evidence; classification itself by clear and convincing evidence |
| Sufficiency/substantial evidence for level two classification | Evidence insufficient to show moderate risk or public‑safety need for public registry | Conviction for child pornography plus the molestation (and aggravating factors) sufficiently support moderate risk and public‑safety interest | Substantial evidence supported examiner’s finding of moderate risk and level two classification |
| Weight of admissions and alleged intoxication/delusion defense | Doe’s intoxication/delusional state undermined reliability of his admissions | Examiner reasonably discounted intoxication excuse; admissions were spontaneous and corroborated | Examiner permissibly rejected Doe’s delusion claim and credited admissions |
Key Cases Cited
- Doe v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73 (2015) (discusses admissibility and reliability factors for hearsay in SORB hearings)
- Doe v. Sex Offender Registry Bd., 459 Mass. 603 (2011) (examiner not bound by courtroom rules of evidence; hearsay may be considered if reliable)
- Doe v. Sex Offender Registry Bd., 473 Mass. 297 (2015) (clear and convincing standard required for SORB classification)
- Covell v. Department of Social Servs., 439 Mass. 766 (2003) (detailed, consistent reports of abuse can be substantial evidence despite hearsay)
- Commonwealth v. Bukin, 467 Mass. 516 (2014) (reliable hearsay may support revocation or similar administrative findings)
- Jackson v. Virginia, 443 U.S. 307 (1979) (discusses constitutional basis for criminal proof beyond a reasonable doubt)