In re Tommie Lee MELTON, Appellant.
No. 85-1589.
District of Columbia Court of Appeals.
Decided Oct. 4, 1991.
Argued En Banc Feb. 6, 1991.
597 A.2d 892
If the removal of Gomez from the vehicle was lawful, then the discovery and seizure of the pistol in plain view on the floor of the car, and near the location where Gomez had been sitting, were proper. Indeed, we do not understand Gomez to be making any contrary contention. Accordingly, the motion to suppress tangible evidence was correctly denied.
B. The Fifth Amendment.
The question whether Gomez’ admission that the pistol was his was secured in violation of his rights and of the prophylactic rule of Miranda, supra, need not detain us long. Miranda rights may be waived, and we will reverse the trial court‘s findings as to the voluntariness of a waiver only if they are not supported by substantial evidence. See Hawthorne v. United States, 504 A.2d 580, 586 (D.C.), cert. denied sub nom. Myrick v. United States, 479 U.S. 992, 107 S.Ct. 593, 93 L.Ed.2d 594 (1986).
Gomez testified that he did not understand what he was signing. He gave a colorful but not necessarily compelling account of how he was forced by the police to trace uncomprehended answers on to the rights card. The officers testified, on the other hand, that they explained Gomez’ rights to him and that he gave every indication that he understood them. The judge believed the officers. That Gomez was in custody and “an illiterate peasant handcuffed to a chair,” as defense counsel puts it, is not conclusive. Since Miranda rights apply only to custodial interrogation, any waiver of Miranda rights is necessarily made while in custody.
It is undisputed that in his confession, Gomez stated that he incriminated himself in order to exculpate his innocent friend. His explanation of his motive further supports the view that Gomez understood that he did not have to confess, but chose to do so for a logical and well-thought-out reason. Accord, Hawthorne, supra, 504 A.2d at 587 (remarking that the defendant “show[ed] a good deal of intelligence as to the decision he was making“). We therefore conclude that the trial judge‘s findings with regard to Gomez’ pretrial statement were supported by substantial evidence, and we uphold his refusal to suppress it.
IV
CONCLUSION
For the foregoing reasons, Gomez’ convictions must be and each is hereby
Affirmed.
Harry J. Fulton, Public Defender Service, with whom James Klein, Public Defender Service, and Page Kennedy, Public Defender Service, were on the brief, for appellant.
Janet L. Maher, Asst. Corp. Counsel, with whom Frederick D. Cooke, Corp. Counsel at the time the original brief was filed, Charles L. Reischel, Deputy Corp. Counsel, and Ann O‘Regan Keary, Deputy Corp. Counsel, were on the brief, for District of Columbia.
Jay B. Stephens, U.S. Atty., and John R. Fisher, John M. Facciola, Colleen M. Ken-
Before ROGERS, Chief Judge, and FERREN, TERRY, STEADMAN, SCHWELB, and WAGNER, Associate Judges, MACK, and BELSON,* Senior Judges.
ON REHEARING EN BANC
SCHWELB, Associate Judge:
This case presents interesting and vigorously contested issues which apparently arise with some frequency in civil commitment proceedings brought pursuant to the
On November 26, 1989, a divided panel of this court reversed the commitment order. In re Melton, 565 A.2d 635 (D.C.1989) (Melton I). The division majority was of the opinion that the psychiatric witnesses called by the District were erroneously permitted to testify that Melton was likely to injure himself or others, in that their expertise with respect to predicting dangerousness was said not to have been sufficiently established. The majority also held that the trial court had erroneously permitted these witnesses to testify regarding events of which they had learned from third parties or from hospital records, without first making the necessary finding that experts in the field reasonably and customarily rely on such materials. On November 7, 1990, we vacated the division opinion and ordered that the case be reheard en banc. In re Melton, 581 A.2d 788 (D.C.1990).
Distilled to its essence, the District‘s psychiatric evidence tended to show that when Melton was not adequately supervised, he often failed to report for the medication which was required by his condition. As a result, he was unable to care for himself, wallowed in filth, and placed his health in serious danger from diabetes, glaucoma, and alcoholism. Moreover, the psychiatrists concluded, substantially on the basis of information provided to them by others, that when Melton did not adhere to his regimen of mediсation, he constituted a danger to others, as demonstrated by punching his mother in the nose, threatening his sister with a screwdriver, and acting in an assaultive and disruptive manner.
In the context of this case, which was focused so heavily on Melton‘s deterioration when he failed to take his prescribed medication, we are satisfied that the trial judge correctly found the District‘s psychiatric witnesses to be qualified to testify with respect to whether Melton was likely to injure himself or others if he was left to his own devices and without medical supervision. Where, as here, the issue presented was Melton‘s dangerousness, the evidence on which the District‘s psychiatric witnesses relied, including statements by members of Melton‘s family and records of his past hospitalizations, was of a kind reasonably and customarily relied on by experts in the field. Although we have pronounced reservations regarding the efficacy of the trial judge‘s limiting instructions to the jury as to the purpose for which statements of third parties could properly be considered, we find no reversible error. Accordingly, we affirm the judgment.
I
THE FACTS
The procedural history of this case and the evidence presented at trial were dis-
The only witnesses at the trial were two psychiatrists who were qualified as experts in their field and who testified for the District of Columbia. The first, Dr. James Byrd, was the administrator of the ward at which Melton was placed after he was involuntarily hospitalized in this case. The second, Dr. Antoine Cornet, was a staff psychiatrist at the hospital‘s Spring Road Mental Health Clinic. Both witnesses related some facts which were within their personal knowledge, but each also relied in substantial measure on what he had learned from others and from the records of Melton‘s prior hospitalizations.
Both Dr. Byrd and Dr. Cornet testified that Melton was suffering from schizophrenia. Dr. Byrd stated that this was true “without a doubt,” that he was able to make the diagnosis on the basis of his personal observation, and that schizophrenia was the “remarkably consistent” diagnosis of all of the doctors who had treated Melton. He described schizophrenia as a “major psychiatric illness,” which causes the patient to suffer from delusions and from a distortion of reality, and which renders him unable to recognize his own disease. Dr. Byrd added that Melton‘s schizophrenia was paranoid in character, and that Melton had “delusional” feelings that others were out to harm him.
The circumstances leading up to the hospitalization that precipitated the present case were also described by both of the doctors. Several months before his rehospitalization, Melton had left the hospital against medical advice and had gone to Florida.2 When he returned in July 1985, аnd proceeded to his mother‘s house, the mother made a number of calls to the hospital reporting that he was behaving in a belligerent and disruptive manner, and she asked that something be done immediately. The mother reported, among other things, that Melton had punched her on the nose, and that she was afraid that he might harm her again.
Representatives of the hospital, including (eventually) Dr. Cornet, went to the mother‘s home and attempted to persuade Melton to come voluntarily to the hospital or to the clinic. Melton was belligerent and refused to come; his mother was visibly upset. The police were called, and an officer asked Melton to accompany him voluntarily. When Melton again refused to go, the officer brought him to the hospital in custody.
Melton‘s condition when he arrived at the hospital was not favorable. Dr. Byrd testified that Melton was “completely disheveled, extremely untidy, extremely dirty, having not bathed for weeks, urinating in his bedroom.” Dr. Cornet testified that Melton “was filthy and in very poor condition” and that “[h]is personal hygiene was terrible, so we took care of that.”
Nor were Melton‘s problems confined to grooming deficiencies. A diabetic, he had “excoriations” (bruises) on his skin, a condition which made Dr. Cornet “really concerned.” Dr. Cornet also discovered that Melton was suffering from glaucoma. Dr. Cornet testified that hospital staff members found a large bottle of pills at the home of Melton‘s mother. The bottle сontained both Orinese, a diabetic medication, and Melleril, which had been prescribed for Melton‘s mental illness; “in other words, you had medication for mental condition plus medication for diabetes mixed together in one bottle.” Melton also apparently drank alcohol to excess, and the doctors were concerned that he would do so while taking his medication and warned him against doing so.
* Judge Belson was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on July 24, 1991.
that [the improvement] was critically dependent upon Mr. Melton continuing to take his medication. And the changes that we see are changes which are quite helpful but they are in their own way fragile, in the sense that if he stops the medication he will rapidly decompensate....3 If he misses one or two injections, he will be right back to where he started from, which is psychotic and threatеning and assaultive and very bizarre and delusional.
Dr. Cornet confirmed that if Melton did not continue to receive his medication, “he won‘t be able to comprehend what‘s going on with him and chances are he might get really sick again.”
Dr. Byrd testified that the program of medication which the hospital had devised would provide Melton with
the best chance of complying with his treatment, which he had a long history of not doing. He hadn‘t been able to follow his treatment for the past ten [to] fourteen years.
Dr. Cornet also expressed doubt that, without proper supervision, Melton would continue to report for medication on his own initiative, especially when he was drinking. He stated that “Melton is not composed enough to take proper care of himself and to look for medical care when there is a need for that.”
Not all of the testimony was unfavorable to Melton‘s cause. Dr. Byrd acknowledged that Melton was sometimes able to comply with his regimen on his own, and came in to the clinic when he felt that his mother was being “crabby.” Dr. Cornet stated that on the day that Melton allegedly punched his mother, a member of the hospital staff apparently found “nothing amiss.” Dr. Cornet also acknowledged that when Melton received his medication, his insight into his illness was good, and he understood the need for treatment. Dr. Byrd agreed, but described Melton‘s ability to seek help as “superficial,” because he had no “consistent” insight into his illness; the insight vanished when Melton was not receiving medication. In any event, in light of the importance to Melton‘s mental health of his taking medication regularly and his record of unreliability unless adequately supervised, both psychiatrists testified that, if released, he would be likely to injure himself4 or others.
II
THE PSYCHIATRIC TESTIMONY AS TO DANGEROUSNESS
When the District proffered Dr. Byrd as an expert witness in the field of psychiatry, Melton‘s counsel objected on the grounds that the doctor‘s involvement in the case was “minimal” and that he had only “just finished” his training. The judge overruled the objection and found Dr. Byrd to be qualified to testify as an expert. Counsel for Melton interposed no objection to Dr. Cornet‘s qualifications, and does not contend on appeal that the trial judge abused his discretion (or, in Dr. Cornet‘s case, committed “plain error“) in holding that each of the witnesses was properly qualified as an expert.
After testifying that Melton was mentally ill, however, Dr. Byrd was asked to state his opinion whether, in light of the mental illness, Melton would be likely to injure
Although no comparable objection was made with respect to Dr. Cornet‘s testimony,5 Melton argues on appeal that the trial judge committed reversible error in permitting the two doctors to testify regarding Melton‘s alleged dangerousness to himself or others without a separate demonstration of their expertise on that subject. A majority of the panel which heard the original appeal upheld this contention. Melton I, supra, 565 A.2d at 647-49. Specifically, the panel was of the opinion that the trial judge abused his discretion by “refus[ing] to consider Melton‘s counsel‘s objection to the psychiatrists’ qualifications to predict his clients’ dangerousness.” Id. at 648.
The criteria for admitting expert testimony in this jurisdiction are set forth in the three-part test in Dyas v. United States, 376 A.2d 827 (D.C.1977), cert. denied, 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977), as follows:
(1) the subject matter “must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average [lay person]“; (2) “the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his [or her] opinion or inference will probably aid the trier in his [or her] search for truth“; and (3) expert testimony is inadmissible if “the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.”
376 A.2d at 832 (quoting EDWARD W. CLEARY, MCCORMICK ON EVIDENCE § 13, at 29-31 (2d ed. 1972)) (emphasis deleted). “The trial judge has wide latitude in the admission or exclusion of expert testimony, and his6 decision with respect thereto should be sustained unless it is manifestly erroneous.” Coates v. United States, 558 A.2d 1148, 1152 (D.C.1989). The question whether an expert has been sufficiently qualified is likewise “recognized as a matter for the trial judge‘s discretion reviewable only for abuse. Reversals for abuse are rare.” E. CLEARY, MCCORMICK ON EVIDENCE § 13, at 34 (3d ed. 1984) (emphasis added and footnote deleted).
As Judge (later Chief Justice) Burger wrote for the court in Baerman v. Reisinger, 124 U.S.App.D.C. 180, 181, 363 F.2d 309, 310 (1966),
[i]t is settled law that [a] physician is not incompetent to testify as an expert merely because he is not a specialist in the particular field of which he speaks. The training and specialization of the witness goes to the weight rather than admissibility of the evidence, generally speaking.
(Citations and internal quotation marks deleted). Ordinarily, a specialist in a particular branch within a profession is not re-
Both Dr. Byrd and Dr. Cornet are practicing psychiatrists. Each stated that he was eligible for board certification. Each had previously testified as аn expert before the Mental Health Commission, and Dr. Byrd had done so in court as well. As we show below, the prediction of dangerousness is reasonably related to the practice of psychiatry. Both witnesses were obviously more qualified with respect to this subject than an ordinary physician, and neither expressed any reservation about his ability to form an opinion regarding the question whether Melton was likely to injure himself or others.
In the present case, as we have noted, Melton‘s dangerousness to himself and others was alleged to stem from his failure, when not under the hospital‘s supervision, to take psychotropic medicine with the requisite regularity. The consequences of such failure are, in our view, so “‘distinctively related [lay person] to some science ... as to be beyond the ken of the average layman,‘” Dyas, supra, 376 A.2d at 832 (citation and emphasis omitted). It defies common sense to suggest that a lay juror knows as much as a qualified psychiatrist does about what is likely to happen if a schizophrenic patient does not receive Prolixin shots. The doctors’ testimony would therefore probably “assist the trier of fact to understand the evidence or to determine a fact in issue.”
The judge could likewise reasonably conclude that Dr. Byrd and Dr. Cornet had sufficient knowledge of the characteristics of Prolixin and of the potential consequences of Melton‘s not taking it, аs well as sufficient familiarity with other matters related to Melton‘s condition, that their testimony could “‘probably aid the [lay jurors] in [their] search for truth,‘” as required by the second prong of the Dyas test. 376 A.2d at 832 (emphasis and citation omitted). If the testimony of “the ordinary medical practitioner should be received on all matters as to which a regular medical training necessarily involves some general knowledge,” 2 WIGMORE, supra, § 569, at 785, then a fortiori, the judge did not abuse his discretion in permitting Dr. Byrd and Dr. Cornet to express expert opinions as to the probable consequences for Melton of not requiring him to report for medication. When an oncologist testifies that a malignancy, unless properly treated, is likely to metastasize and cause danger to the patient, he too is predicting the future. Nevertheless, such a cancer specialist need not demonstrate expertise with a crystal ball as well as in medicine in order to render his prognosis receivable in evidence. The same holds true for a psychiatrist.
In the final analysis, Melton‘s argument must therefore stand or fall on the notion that the present state of psychiatric knowledge does not permit the District‘s witnesses to express opinions on the question of Melton‘s dangerousness to himself or others, within the meaning of the third prong of Dyas, 376 A.2d at 832. We do not believe that this question can seriously be said to be in doubt. “[T]here is nothing inherently unattainable [even] about a [lay judicial officer‘s] prediction of future criminal conduct‘” for рurposes of preventive detention. United States v. Salerno, 481 U.S. 739, 751, 107 S.Ct. 2095, 2103, 95 L.Ed.2d 697 (1987) (quoting Schall v. Mar-tin, 467 U.S. 253, 278, 104 S.Ct. 2403, 2417, 81 L.Ed.2d 207 (1984)). A trained psychiatrist must surely be qualified, a fortiori, to assess Melton‘s dangerousness to himself or others, especially where, as here, that assessment is based on the patient‘s need for medication and his failure in the past to take it with the requisite regularity. As the Supreme Court stated in Addington v. Texas, 441 U.S. 418, 429, 99 S.Ct. 1804, 1811, 60 L.Ed.2d 323 (1979),
[t]here may be factual issues to resolve in a commitment proceeding, but the factual aspects represent only the beginning of the inquiry. Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.
(Emphasis added to last nine words).
In Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), a capital sentencing case, the defendant argued, in conformity with the views of the American Psychiatric Association (APA),8 that psychiatric testimony as to dangerousness is inherently unreliable and ought not to be admitted where a defendant‘s life is on the line. The issue was cast in constitutional terms, but the Supreme Court‘s response was sufficiently broad and emphatic to dispel any appreciable doubt as to how that Court would rule in this case:
The suggestion that no psychiatrist‘s testimony may be presented with respect to a defendant‘s future dangerousness is somewhat like asking us to disinvent the wheel. In the first place, it is contrary to our cases....
In the second place, the rules of evidence generally extant at the federal and state levels anticipate that relevant, unprivileged evidence should be admitted and its weight left to the factfinder, who would have the benefit of cross-examination and contrary evidence by the opposing party. Psychiatric testimony predicting dangerousness may be countered not only as erroneous in a particular case but also as generally so unreliable that it should be ignored. If the jury may make up its mind about future dangerousness unaided by psychiatric testimony, jurors should not be barred from hearing the views of the State‘s psychiatrists along with opposing views of the defendant‘s doctors.
Id. at 896, 898-99, 103 S.Ct. at 3396, 3397 (emphasis added).
Melton seeks to distinguish Barefoot on the ground that it involved a constitutional contention, and that psychiatric testimony as to dangerousness should be excluded as a matter of the substantive District of Columbia law of evidence. Aside from the breadth of the Court‘s language in Barefoot and its allusion to applicable rules of evidence, however, the statutory law of this jurisdiction explicitly contemplates that such determinations will be made by psychiatrists. The administrator of a public hospital may detain a person for emergency observation if the psychiatrist on duty certifies that the person
has symptoms of a mental illness and, as a result thereof, is likely to injure himself or others unless he is immediately hospitalized.
We therefore agree with the District that to accept appellant‘s theory that psychiatrists cannot predict dangerousness, and therefore should not be permitted to testify on this issue, would nullify the entire legislative scheme for treatment of mentally ill persons in the District of Columbia. The legislature has effectively decided that “‘the state of the pertinent art or scientific knowledge [permits] a reasonable opinion to be asserted ... by an expert,‘” Dyas, supra, 376 A.2d at 832 (citation omitted), and we would be impermissibly intruding upon a legislative prerogative if we were to challenge that judgment.
III
THE PSYCHIATRISTS’ RELIANCE ON OUT-OF-COURT STATEMENTS AND MATERIALS
A. General Considerations.
Early in his direct examination, Dr. Byrd was asked to describe the events which led up to Melton‘s hospitalization. Dr. Byrd concededly was not personally present when those events occurred, and Melton‘s counsel objected, characterizing the proposed testimony as hearsay. The following colloquy ensued:
THE COURT: Of course it‘s hearsay. Of course it‘s hearsay. It‘s an exception, however, Mr. Fulton [Melton‘s counsel]. Go ahead, Doctor.
MR. KELLY [Counsel for the District]: It certainly is, Your Honor.
THE COURT: Mr. Fulton, please be seated. Go ahead.
MR. FULTON: If I might, Your Honor, could we come to the bench?
THE COURT: Mr. Fulton, no. We won‘t get the case started. We‘ll never get started at the rate we‘re going. Go ahead, Mr. Kelly.
In conformity with this preemptive ruling, both psychiatrists were subsequently permitted to relate information which they received from Melton‘s mother—the alleged punch on the nose—or from hospital records which had not been introduced into evidence. The mother, who apparently left for Florida during the trial as a result of a death in the family, did not testify and was not subject to cross-examination. Melton contends that he was thus denied an important liberty interest on the basis of what he describes as hearsay evidence, that he was deprived of the opportunity to confront and cross-examine those persons who had first-hand knowledge of the facts, and that the trial judge‘s summary ruling on his objection led to the admission of the alleged hearsay without the judge having made certain preliminary findings said to be required by law.
We begin by noting that the testimony by Dr. Byrd and Dr. Cornet as to what
[a]n expert‘s opinion is derived not only from records and data, but from education and from a lifetime of experience. Thus, when the expert witness has consulted numerous sources, and uses that information, together with his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not as hearsay in disguise.
(Emphasis added.)
The problem raised by Melton cannot, however, be avoided simply by calling the evidence expert testimony rather than hearsay. Labels cannot perform juridical alchemy. By resort to expert testimony, the District was able to bring to the jury‘s attention matters that could obviously prejudice Melton, including, e.g., reports that he had punched his mother, and that on an earlier occasion he had threatened his sister with a screwdriver. Melton was never able to cross-examine those who accused him of these antisocial acts. Such a procedure presents obvious problems of basic fairness. Courts are not blind to these concerns and have attempted to fashion rules which afford reasonable latitude to expert witnesses but simultaneously protect the rights of litigants against whom expert testimony has been offered. The tension between these competing interests is at the heart of this case.
B. Rule 703.
The admission or exclusion of expert testimony, as we have noted, is committed to the trial court‘s broad discretion. Coates, supra, 558 A.2d at 1152. That discretion is guided in the District of Columbia by the principles underlying
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to [the expert] at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
(Emphasis added). See STEFFEN W. GRAAE & BRIAN T. FITZPATRICK, THE LAW OF EVIDENCE IN THE DISTRICT OF COLUMBIA 7.20 (1989), quoted in L.C.D. v. District of Columbia ex rel T-A.H.D., 488 A.2d 918, 921 n. 8 (D.C.1985) (“Rule 703 is an expression of the law as it has developed here“). According to the Advisory Committee‘s Note to
The critical inquiry, then, is whether the facts or data to which Dr. Byrd and Dr. Cornet alluded in reaching their conclusions in the present case were of a type on which experts in their profession reasonably rely.10 As the court stated in Jenkins, supra, 113 U.S.App.D.C. at 304, 307 F.2d at 641, a case dealing with the admissibility of expert psychiatric testimony,
the better reasoned authorities admit opinion testimony based, in part, upon reports of others which are not in evidence but which the expert customarily relies upon in the practice of his profession.... “This court ... will not close
the doors of the courts to the light which is given by a diagnosis which all the rest of the wоrld accepts and acts upon, even if the diagnosis is in part based upon facts which are not established by the sworn testimony in the case to be true.“[11]
The court declined to “‘shut its eyes to a source of information which is relied on by mankind generally in matters that involve the health and may involve the life of their families and of themselves....‘” Id. at 304, 307 F.2d at 641 (quoting Sundquist, supra note 11, 221 N.W. at 393); see also Reed v. United States, 584 A.2d 585, 591 (D.C.1990).
C. Psychiatric Expert Testimony.
Consistently with these principles, this court has held that psychiatrists may offer opinions based on reports not in evidence if such reports are reasonably relied upon in the practice of their profession. Testimony similar to much of that at issue here has been held to be admissible. See In re Gahan, 531 A.2d 661, 666 n. 7 (D.C.1987) (“[t]he court, as factfinder, was entitled to learn the factors underlying Dr. Carter‘s opinion that Gahan was likely to inflict harm on himself by ceasing to eat“); Attorney Grievance Comm‘n v. Nothstein, 300 Md. 667, 676-84, 480 A.2d 807, 812-16 (1984) (psychiatrist permitted to base his conclusion as to attorney‘s mental state on descriptions of attorney‘s behavior provided by the attorney‘s wife and by his partner).
In the present case, the inquiry for Dr. Byrd and Dr. Cornet was whether Melton, if left to his own devices without supervision by the hospital, would be likely to pose a danger to himself or others. In light of the wide latitude afforded to trial judges in relation to the admission or exclusion of expert testimony, the precise issue on appeal is whether the trial judge abused his discretion in ruling—albeit implicitly and without appreciable articulation12—that in assessing Melton‘s dangerousness, a psychiatrist would reasonably rely on the reports and observations of family members and the records of Melton‘s past hospitalizations.
We do not find this issue to be an especially troublesome one. The Advisory Committee‘s Notes to
a physician in his [or her] own practice bases his [or her] diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His [or her] validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.
(Emphasis added). The conclusion that a competent psychiatrist charged with assessing dangerousness would obtain information from the patient‘s relatives, as well as from his hospital records, is also dictated by what Justice Frankfurter has described as “the saving grace of common sense.”13 Where else would the doctor go for such information? Indeed, as the United States points out in its brief as amicus curiae, a psychiatrist could be roundly criticized within and without the profession for not interviewing family members; by ignoring information which the profession views as vital, the psychiatrist would, at least, undercut the reliability of his or her opinion. See, e.g., People v. Britz, 123 Ill.2d 446, 460-63, 124 Ill.Dec. 15, 22-23, 528 N.E.2d 703, 710-11 (1988), cert. denied,
This is not to say that everything a family member tells a psychiatrist is necessarily reliable or true. “[F]riends or relatives of an outpatient may seek his return to the institution because they feel uncomfortable in his presence or are dissatisfied with the progress he is making towards rehabilitation.” In re Richardson, 481 A.2d 473, 480 (D.C.1984). Psychiatrists are well aware that this may occur. See Bernard L. Diamond & David W. Louisell, The Psychiatrist as an Expert Witness: Some Ruminations and Speculations, 63 MICH.L.REV. 1335, 1353 (1965). Indeed, they consider valuable for purposes of diagnosis any or all information provided by patients or relatives, whether the information is true or false. See 4 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN‘S EVIDENCE § 803(4)[01], at 803-150 (1990).
In any event, a properly qualified expert is assumed to have the necessary skill to evaluate any second-hand information and to give it only such probative force as the circumstances warrant. In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1223, 1245 (E.D.N.Y.1985) (Weinstein, J.), aff‘d, 818 F.2d 187 (2d Cir.1987), cert. denied, 487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988); see also State v. Schreuder, 726 P.2d 1215, 1223 (Utah 1986).15 Accordingly, the court should accord an expert wide latitude in choosing the sources on which to base his or her opinions. See Soden v. Freightliner Corp., 714 F.2d 498, 505 (5th Cir.1983). But the court may not abdicate its independent responsibilities to decide if the bases meet minimum standards of reliability as a condition of admissibility. See
Because Rule 703 was intended to bring judicial practice into line with the practice of experts when they are not in court, see Advisory Committee‘s note quoted supra at page 902, the judge may not substitute his or her judgment for the expert‘s as to what data are sufficiently reliable, provided that such reliance falls within the broad bounds of reasonableness. In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 277-79 (3d Cir.1983), rev‘d on other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also United States v. Hill, 655 F.2d 512, 514-16 (3d Cir.1981) (error to exclude psychiatric testimony as to criminal defendant‘s susceptibility to entrapment), cert. denied, 464 U.S. 1039, 104 S.Ct. 699, 79 L.Ed.2d 165 (1984). “The proper inquiry is not what the court deems reliable, but what experts in the relevant discipline [reasonably] deem it to be.” Japanese Elec. Prods., supra, 723 F.2d at 276 (bracketed word added).
“The assumptions which form the basis for the expert‘s opinion, as well as the conclusions drawn therefrom, are subject to rigorous cross-examination.” Id. at 277. Juries are intelligent enough, in light of the availability of such cross-examination, to ignore what is unreliable or unhelpful. Id. at 279.16 In most cases, therefore,
D. The Test Proposed by the Panel Majority.
In its discussion of how the judge should determine whether “minimum standards of reliability,” Agent Orange, supra, have been met, the majority of the panel adopted the following test:
a trial judge will properly admit expert opinion based on hearsay testimony under Rule 703 when (1) the judge is persuaded that experts in the field commonly rely on the particular type of hearsay information in addressing the specific type of problem raised in the case before the court, and (2) the judge concludes that the information (if not admissible for its truth under an exception to the hearsay rule) is of a tyрe for which the underlying reliability of the data can be sufficiently explored through cross-examination of the testifying expert. Of course, a trial judge [3] should exclude an expert opinion, including the facts and data upon which it relies (even if of a type reasonably relied on most of the time), if admission in evidence would create a substantial danger of undue prejudice or would mislead the jury.
Melton I, 565 A.2d at 645 (emphasis added; citations and internal quotations marks omitted). The panel majority then strongly implied that in a great many cases, if not in most, a psychiatric‘s expert reliance on out-of-court statements by lay observers will not pass muster.
We are not stating categorically that expert reliance on hearsay observations by laypersons will always fail to satisfy the second prong of the test set forth supra at page 645. But, given the possibility that lay observers in some contexts (e.g., a family with a mentally ill member) may not be disinterested, and given, further, that the expert‘s inability to vouch for the lay observer‘s reliability will not necessarily undermine the expert‘s own aura of authority,17 a trial court must be very careful to evaluate whether the proffered expert testimony and its underlying sources can be effectively scrutinized before the jury.
Id. at 646. Melton urges us to adopt the panel majority‘s three-part test. We have no quarrel with the first and third prongs of this articulation, but are unable to agree with the second.
The United States has filed an excellent brief as amicus curiaе in which it has effectively marshalled the arguments against the division‘s second prong. We cannot improve upon the government‘s “Summary of Argument,” which we reproduce below in slightly edited form, annotated by authorities which, in our view, support the various propositions articulated therein:
The panel opinion‘s holding, mandating classification and compartmentalization of the ‘type’ of [information] underlying expert opinion or inference in order to determine its source and susceptibility to cross-examination, constitutes a significant, ill-advised change in this court‘s long-established jurisprudence. The decisions of this court have held that an expert‘s opinion is not inadmissible simply because it is based on [what would otherwise be] inadmissible hearsay if persons within the field of expertise customarily or reasonably rely upon such [information] in arriving at opinions. This rule is consistent with other jurisdictions’ reasoned analysis.
There are adequate safeguards to ensure the integrity and fairness of proceedings when an expert opinion relying in part on inadmissible evidence is proffered: (1) this court‘s three-part Dyas test for the qualification of experts;18 (2) this court‘s rule that the profession must customarily rely upon such inadmissible hearsay evidence;19 (3) the trial court‘s broad discretion to exclude expert testimony that is more prejudicial than probative, founded on incompetent evidence, or mere speculation;20 (4) the opposing party‘s right to cross-examine on the underlying data and introduсe contrary evidence;21 (5) the trier-of-fact‘s ability to determine the reliability and weight to be given to such evidence;22 (6) the risk of nonpersuasion borne by the party with the burden of proof;23 (7) the trial court‘s discretion to direct a verdict.... where there is insufficient evidence to support a jury‘s finding;24 and (8) this court‘s authori-ty to take corrective measures on appellate review, should the trial court abuse its discretion.
Moreover, the proposed rule would introduce new, intractable problems of law and administration.25 It does not account for expert testimony founded only in part on otherwise inadmissible hearsay; it would lead to unwieldy hearings necessitating formidable, fine distinctions between types of hearsay and whether they are ‘sufficiently’ susceptible to cross-examination; and it would prevent the jury from hearing probative expert opinions that are developed in accordance with accepted professional norms and methodology, including relevant psychiatric testimony.26
E. Probative Value, Prejudice, and the Sufficiency of the Limiting Instruction.
Even if, as we have concluded, the psychiatric witnesses testified on the basis of the kind of data on which experts in their field reasonably rely, we have some concern for another reason about the admission and use of the evidence. If we look at the substance rather than the form of what occurred, the second-hand testimony about Melton having punched his mother came to the jurors’ attention in such a way that they might well have considered it for the truth of the out-of-court statement. This may also have occurred with respect to some other incidents.
On October 17, 1985, Dr. Byrd testified that Melton
became impulsive and lost control of his temper, which is a characteristic of a schizophrenic. And he punched his mother in the nose and became very angry with her.
The trial judge gave no contemporaneous instruction as to the purpose for which this testimony was received. It was not until four days later, during his final instructions, that the judge told the jurors, with respect to testimony by Dr. Byrd and Dr. Cornet as to information given to them by other individuals, that
these statements are admitted only to demonstrate the information relied upon by the doctors in forming their conclusion. They are to be considered by you only for the purpose of evaluating the reasonableness and correctness of the doctors’ conclusions. They are not to be considered by you as actual proоf of the incidents described. They are hearsay and as such are not admissible to establish the truth of the matters asserted by them.
This court has recently noted that some students of the law of evidence consider the distinction sought to be articulated in such a “limiting” instruction as “most unlikely to be made by juries.” Samuels, supra note 10, 507 A.2d at 153 n. 5. As Judge Salzman aptly remarked for the court in that case,
[c]onceptual problems are bound to arise when a judge tells a jury that the jury may consider psychiatric diagnoses based on medical records customarily relied on in professional practice, but then tells the jury that it may not consider the ‘truthfulness’ of those records for any other purpose.
Id. With his customary eloquence, Justice Cardozo made a similar point for the Court in a somewhat different context in Shepard v. United States, 290 U.S. 96, 104, 54 S.Ct. 22, 25, 78 L.Ed. 196 (1933):
Discrimination so subtle is a feat beyond the compass of ordinary minds. The reverberating clang of those accusatory words would drown all weaker sounds. It is for ordinary minds, and not for
psychoanalysts, that our rules of evidence are framed.
See also Clark v. United States, 593 A.2d 186, 191 (D.C.1991).
The “conceptual” problems to which we referred in Samuels are especially serious with respect to a discrete dramatic act like punching one‘s mother on the nose. To tell the jurors that they are to consider the testimony about the punch as a basis for the expert‘s finding of dangerousness, but not with respect to whether Mr. Melton punched his mother, may call for mental gymnastics which only the most pristine theoretician could perform. We suspect that the reaction of that elusive individual, the reasonable person, would be that you cannot beliеve that the testimony about the punch tends to show that Melton is dangerous unless you first believe that he actually punched his mother. See Clark, supra, 593 A.2d at 193-94; Giles v. United States, 432 A.2d 739, 745-46 (D.C.1981). Since the expert apparently believed that he punched her, the jury was likely to believe it too. The distinction sought to be made may therefore become “ephemeral.” Thompson v. United States, 546 A.2d 414, 421 (D.C.1988).
The problem is a perplexing one, because it is difficult to articulate reasonable or workable limits on any rule which would exclude testimony of the kind here at issue and still vindicate the policies underlying Rule 703. In the present case, however, the appeal was at least initially predicated upon the lack of a finding by the trial judge that the out-of-court statement was of a kind reasonably relied upon by experts in the field, with only a conditional allusion to the potential difficulty the jury might have with the task of confining its consideration of such evidence to the purposes for which it was received.28 Similarly, no contention was made in the trial court that a limiting instruction would be ineffective, or even that such an instruction ought to have been given earlier, or in a different and more emphatic form.
Unfortunately, the abbreviated way in which the trial judge dealt with the so-called “hearsay” issue made it difficult for Melton‘s counsel to expound his theory fully.29 As we have previously noted, the trial judge has the authority to exclude otherwise admissible expert testimony if he or she is of the opinion that such testimony would be more prejudicial thаn probative. In the present case, at least, if Melton‘s mother had been available to testify,30 it would have been a permissible exercise of the judge‘s discretion to condition admission of the expert testimony (regarding the allegation that Melton punched the mother) on the District‘s also calling the mother to testify and on its making her available for cross-examination. Given the posture of the issue both in the trial court and on appeal, however, we conclude that Melton has failed to show that the trial judge abused his discretion in receiving the evidence. See Samuels, supra note 10, 507 A.2d at 153.
F. The Lack of an Explicit Finding by the Trial Judge.
Unfortunately, the trial judge never made an explicit finding that psychiatric
We decline to remand the case, in spite of the trial judge‘s failure to make an explicit finding on the question on which the admission of the contested evidence depended, because we are satisfied that to do so would be both unnecessary and futile. The authorities cited in this оpinion, and especially the Advisory Committee‘s note to
The proper finding should have been made explicitly, but there was more than ample basis in the record for the judge to overrule Melton‘s objection. By contrast, the record gives us no reason whatever to conclude that the statements and records which the two psychiatrists described in their testimony are not of the kind reasonably relied on by experts in the field. As the court stated under very similar circumstances in Lawson, supra note 27, 653 F.2d at 302 n. 7,
Lawson points out quite correctly that Dr. Sheldon never testified, and the district court never found, that this information was of the type reasonably relied upon by psychiatrists.[31] The court must make such a finding in order to satisfy the requirements of Rule 703. United States v. Hollman, 541 F.2d 196, 201 (9th Cir.1976); Bauman v. Centex Corp., 611 F.2d 1115, 1120 (5th Cir.1980). We may take judicial notice, however, that psychiatrists customarily use such information to make a diagnosis. See Notes of Advisory Committee to Rule 703. The district court‘s error, under the circumstances in this case, is harmless.
To remand the case simply for the purpose of requiring the judge to make the prescribed finding now would be a symbolic rather than a practical act, which we view as unnecessary and as incompatible with “[g]ood judicial husbandry,” United States v. Dogan, 314 F.2d 767, 772 (5th Cir.1963). Accordingly, we decline to prolong this already protracted proceeding further by remanding the case.
IV
CONCLUSION
For the foregoing reasons, the judgment appealed from is hereby
Affirmed.32
For the reasons expressed in the vacated division opinion, In re Melton, 565 A.2d 635 (D.C.1989), vacated, 581 A.2d 788 (D.C.1990), I would reverse and remand the case to the trial court with instructions to vacate Melton‘s civil commitment order.
I.
The first issue is how a trial court is to determine whether the “facts or data ... upon which an expert bases an opinion or inference ... [is] of a type reasonably relied upon by experts in the particular field....”
In the division opinion, Melton, 565 A.2d at 643-45, we noted two extreme views. According to the Third Circuit, considered the so-called liberal admissibility view, the trial court “must make a factual inquiry and finding as to what data experts in the field find reliable. There is no discretion to forbear from making this inquiry and finding.” In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 288, 277 (3d Cir.1983), rev‘d on other grounds, 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Under this approach, the court only considers whethеr experts customarily rely on the proffered data; no analysis is made of the reliability of the underlying data itself. The court leaves vigorous examination of the assumptions that form the basis for the opinion—including scrutiny of the underlying data—to cross-examination. See id.
At the other extreme, the “more restrictive view requires the trial court to determine not only whether the data are of a type reasonably relied upon by experts in the field, but also whether the underlying data are untrustworthy for hearsay or other reasons.” In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1223, 1244 (E.D.N.Y.1985), aff‘d, 818 F.2d 187 (2d Cir.1987), cert. denied, 487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988); see Soden v. Freightliner Corp., 714 F.2d 498, 505 (5th Cir.1983) (Rule 703 requires trial court to examine reliability of expert‘s sources).
Consistent with the division opinion, the majority and I agree with Judge Weinstein, taking an intermediate position, that the trial court not only must make findings as to what data experts in the field find reliable but also must do something more to assure such reliance is reasonable. According to Judge Weinstein:
[T]he court may not abdicate its independent responsibilities to decide if the bases [used by a qualified expert] meet minimum standards of reliability as a condition of admissibility. See
FED.R.EVID. 104(a) . If the underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion on them, an opinion which rests entirely upon them must be excluded.FED.R.EVID. 401 ,402 .
“Agent Orange,” 611 F.Supp. at 1245; see ante at 902, 904-905.
The question, therefore, is what more the trial court must do to assure that expert reliance on particular data is reasonable—i.e., to assure that “minimum standards of reliability,” “Agent Orange,” 611 F.Supp. at 1245, have been met? The majority оpinion appears to incorporate Judge Weinstein‘s views in “Agent Orange” and leaves it at that. Based on the cases Judge Weinstein cited in support of his “minimum standards of reliability” test,2 his view is closer to the
The division opinion—with which I still agree—supplied the following, more specific test for determining that the “minimum standards of reliability” have been met:
(2) the judge [must] conclude[] that the information (if not admissible for its truth under an exception to the hearsay rule) is of a type for which the underlying reliability of the data can be sufficiently explored through cross-examination of the testifying expert.
Melton, 565 A.2d at 645 (citing S. SALTZBURG & K. REDDEN, FEDERAL RULES OF EVIDENCE MANUAL 671 (4th ed. 1986)). Under this test for the most appropriate and efficient way of evaluating whether an expert‘s data meets “minimum standards” and thus is “reasonably relied upon,”
The majority‘s (and the government‘s) concern about this “cross-examination” test to assure “minimum standards of reliability” apparently is attributable to the following two paragraphs in the division opinion:
Where experts rely on lay observations of behavior or events, however, cross-examining experts about the reasonableness of their reliance on this data may be more difficult. Absent the ability of an expert to testify concerning both the manner in which a lay observer has perceived and recorded certain facts and whether that manner accords with methods of fact-gathering ordinarily relied upon, cross-examination may provide little or no insight into the reliability of the basis for the expert opinion. In such circumstances a trial judge, therefore, may reasonably conclude that a jury will be incapable of performing its function of “determining the appropriate weight to be given to the testimony,” Japanese Electronic Products, 723 F.2d at 278, and exclude the expert opinion. See Note, Hearsay Bases [of Psychiatric Opinion Testimony: A Critique of Federal Rule of Evidence 703, 51 S.CAL.L.REV. 129, 145 (1977)] (“[A]n opinion can be no better than the hypothesis or assumption upon which it is based.“).
We are not stating categorically that expert reliance on hearsay observations by laypersons will always fail to satisfy the second prong of the test set forth supra at page 645. But, given the possibility that lay observers in some contexts (e.g., a family with a mentally ill member) may not be disinterested, and given, further, that the expert‘s inability to vouch for the lay observer‘s reliability will not necessarily undermine the expert‘s own aura of authority, a trial court must be very careful to evaluate whether the proffered expert testimony and its underlying sources can be effectively scrutinized before the jury.
Melton, 565 A.2d at 646 (footnotes omitted). This discussion in Melton does not say that expert opinion based in part on “lay observations of behavior or events,” id., is automatically excluded. It is not even intended to mean that expert opinion based entirely on such lay observations is automatically excludable, although it will be suspect (and very likely excludable) unless the expert can satisfactorily explain why under the circumstances such reliance is reasonable—surely not too much to expect. The point is this: before an expert testifies, the court must be able to know that counsel, on cross-examination, will be able to get to the heart of the expert‘s analysis and that the jury will hear a more
Judge SCHWELB concludes that “[t]he panel majority‘s second prong would effect a substantial and in our view unnecessary intrusion upon the expert‘s sources.” Ante at 906. I do not understand why that is true, or indeed why the division test is more intrusive than the verification-of-reliability efforts reflected in the cases Judge Weinstein cites in “Agent Orange,” supra note 2, which the majority apparently accepts in simply adopting the Weinstein approach without elaboration.
Presumably, the majority requires the trial court to probe the experts to some extent about the reliability of the underlying data. Presumably, too, if the experts are not immediately convincing, the court will insist on deeper probing, perhaps with the help of counsel; for anything less would abdicate the trial court‘s independent responsibility. See “Agent Orange,” 611 F.Supp. at 1245. Such probing, as needed, is no less intrusive—or, as far as I can tell, materially more difficult—than the test in the vacated division opinion requiring the trial court to assure that “the underlying reliability of the [hearsay] data can be sufficiently explored through cross-examination of the testifying expert.” Melton, 565 A.2d at 645. Thus, either the majority effectively agrees with the division opinion on this issue (despite denying it) or does not come to grips with the need to assure the “minimum standards of reliability” (as it purports to do). I cannot tell from Judge SCHWELB‘s opinion where the majority really stands.3
II.
The second issue is whether the testifying psychiatrists, Dr. Byrd and Dr. Cornet, were qualified to render expert opinions on Melton‘s dangerousness to himself or to others. I agree that psychiatrists commonly testify about a person‘s dangerousness—and properly so. See Barefoot v. Estelle, 463 U.S. 880, 896-903, 103 S.Ct. 3383, 3396-3399, 77 L.Ed.2d 1090 (1983); ante at 898-899. I also agree that, under applicable caselaw, a proffered expert need not be a specialist in order to testify concerning matters requiring special expertise. See Ornoff, 549 A.2d at 732; Baerman v. Reisinger, 124 U.S.App.D.C. 180, 181, 363 F.2d 309, 310 (1966); ante at 897-898. But the flipside is this: whatever the expert‘s formal qualifications, the trial court must make sure that the proffered expert is qualified by training, knowledge, and experience to express an opinion on the subject about which he or she is called to testify. See United States v. Davis, 772 F.2d 1339, 1342-44 (7th Cir.) (psychiatrist‘s testimony properly excluded where she lacked expertise on compulsive gambling), cert. denied, 474 U.S. 1036, 106 S.Ct. 603, 88 L.Ed.2d 581 (1985); see generally Melton, 565 A.2d at 647-49. We have recently stressed this point: “‘it is the actual qualifications of the witness that count, rather than his [or her] title.... Just as the wrong title may mean that the witness is nevertheless qualified, the right title will not suffice if the witness does not have the qualifications required by the facts of thе case.‘” District of Columbia v. Anderson, 597 A.2d 1295, 1299 (D.C.1991) (quoting 3 J. WEINSTEIN & M. BERGER, WEINSTEIN‘S EVIDENCE § 702[04] at 702-51 (1990)).
In this case, the trial court refused to consider Melton‘s counsel‘s objections to the psychiatrists’ qualifications (saying “[w]e‘ve been through that before“), did not purport to exercise discretion, see Johnson v. United States, 398 A.2d 354, 363 (D.C.1979), and thus, for all we can tell, declined to apply the criteria for admitting expert testimony. See Ibn-Tamas v. United States, 407 A.2d 626, 632-33 (D.C.1979)
In a recent post-Melton probable cause hearing,
Respectfully, therefore, I dissent as to both issues presented.
In the Matter of George L. SHILLAIRE III, Respondent.
No. 86-848.
District of Columbia Court of Appeals.
Oct. 8, 1991.
In re M.G., Transcript at 11.prediction of dangerous behavior is a very uncertain one.... [I]t‘s very difficult to make predictions about dangerousness or about human behavior in general in a predictive sense. But I think that within the sрectrum of uncertainty, if you will, that there are some patients with whom one can be relatively more confident than others.
Michael S. Frisch, Asst. Bar Counsel, Washington, D.C., entered an appearance for petitioner, Office of Bar Counsel.
Robert S. Litt, Washington, D.C., entered an appearance for respondent.*
Before ROGERS, Chief Judge, TERRY and SCHWELB, Associate Judges.
SCHWELB, Associate Judge:
This case is before us for the second time. Following our decision in In re Shillaire, 549 A.2d 336 (D.C.1988) (Shillaire I), the Board on Professional Responsibility (the Board) has recommended once again that reciprocal discipline be imposed and that Shillaire be suspended for one year commencing October 31, 1986. The Board has further suggested that Shillaire be required to furnish proof of rehabilitation as a condition of reinstatement. We adopt the Board‘s recommendation.
I
The prior history of this unfortunate case is described in detail in Shillaire I. Briefly, Shillaire was an attorney admitted to practice in Michigan and in the District
* No briefs were filed in this court. Named counsel appeared before the Board on Professional Responsibility.
Notes
Indeed, some in the psychiatric community are of the view that clinical predictions as to whether a person would or would not commit violent acts in the future are “fundamentally of very low reliability” and that psychiatrists possess no special qualifications for making such forecasts. See Report of the American Psychiatric Association Task Force on Cliniсal Aspects of the Violent Individual 23-30, 33 (1974); A. Stone, Mental Health and Law: A System in Transition 27-36 (1975); Brief for American Psychiatric Association as Amicus Curiae 11-17.
In re D.L., Transcript at 8.I don‘t think I have said ‘I think, 50-percent chance or 70-percent chance this person will do this or the other thing,’ and I—I‘m quite willing to concede that I don‘t think that that‘s within the state of the art to predict over a long period of time, more than a few days of time, with statistical accuracy, that is, with anything approaching more than 50/50. Even that perhaps is doubtful, so I concede that. I think it‘s very difficult to predict future behavior beyond a day or two.
var[ies] very greatly, from case to case. I personally feel that the whole question of
Although the question of dangerousness in a civil commitment proceeding is ordinarily determined by the jury as the trier of fact, the judge may direct a verdict if no reasonable jury could find by clear and convincing evidence that the respondent is likely to injure himself or others. See[a] trial judge may, of course, consider the hearsay character of the government‘s evidence in determining whether a clear and convincing showing has been made. The trial judge may, and in appropriate cases we are confident will, require that the hearsay evidence be buttressed by otherwise admissible evidence to meet the clear and convincing standard.
It seems logical that an expert, such as a psychiatrist in formulating an opinion in a case such as this, should be permitted to interview the agents who made the investigation leading up to the indictment and secure from them relevant facts developed during the investigation. Because of his professional background, knowledge, and experience, we should, in circumstances such as these, leave to the expert the assessment of the reliability of the statements on which he bases his expert opinion. He should not be precluded, in forming an opinion, from interviewing those who for one reason or another have had occasion to investigate and study the defendant‘s background. Years of experience teach the expert to separate the wheat from the chaff and to use only those sources and kinds of information which are of a type reasonably relied upon by similar experts in arriving at sound opinions on the subject.
In his response to the amicus brief filed by the United States, Melton has adopted more broadly the concerns of the panel majority and of the dissenting opinion, Melton I, supra, 565 A.2d at 642, 654-55, that out-of-court statements regarding Melton‘s conduct would be [con]sidered by the jury for their truth because a limiting instruction would be difficult to follow.
By letter dated September 13, 1991, Melton‘s counsel advised the court that Melton‘s status has been changed from committed patient to voluntary patient. No party has asked us to dismiss the appeal as moot, and we see no reason to do so. In re Stokes, 546 A.2d 356, 357 n. 1 (D.C.1988); In re James, 507 A.2d 155, 159 n. 5 (D.C.1986); see also Honig v. Doe, 484 U.S. 305, 332, 108 S.Ct. 592, 608, 98 L.Ed.2d 686 (1988) (Rehnquist, C.J., concurring).