Sheridan
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- Lynch
Thе question raised in this appeal is whether in a discharge hearing under
A single justice of the Appeals Court heard the Commonwealth’s petition for interlocutory relief, stayed the proceedings below, and reported tо that court the following question: “What is the quantum of vote necessary for a jury verdict in a proceeding under
We begin our analysis with the language of the statute.
“Any person committed to the treatment center shall be entitled to file a petition for examination and discharge once in every twelve months. ... In any hearing held pursuant to the provisions of this section, either the petitioner or the commonwealth may demand that the issue be tried by a jury. If a jury trial is demanded, the matter shall proceed acсording to the practice of trial in civil cases in the superior court.”
The statute provides for a less than unanimous verdict, since that is the “practice of trial in civil cases,” as set out by
“[W]hile G. L. c. 123A proceedings are technically classified as civil prоceedings, the potential deprivation of liberty *778mandates that due process protections apply.” Commonwealth v. Travis, 372 Mass. 238, 250 (1977). See Commonwealth v. Knowlton, 378 Mass. 479, 487 (1979); Andrews, petitioner, 368 Mass. 468, 486 (1975); Commonwealth v. Page, 339 Mass. 313, 317-318 (1959). Accordingly, we must go beyond the language of the statute to determine whether its apparent intent is constrained by the requirements of due process under the State or Federal Constitutions. “In determining what process is due . . . this court ‘must balance the interests of the individual affected, the risk of erroneous dеprivation of those interests and the government’s interest in the efficient and economic administration of its affairs.’ ” Commonwealth v. Barboza, 387 Mass. 105, 112, cert. denied, 459 U.S. 1020 (1982), quoting Thompson v. Commonwealth, 386 Mass. 811, 817 (1982). See also Mathews v. Eldridge, 424 U.S. 319, 334-335 (1976).
Using the foregoing analysis, we have required “significant procеdural protection” in c. 123A proceedings. Hill, petitioner, ante 147, 151 (1996). See Commonwealth v. Proctor, 403 Mass. 146, 148 (1988) (former convictions without counsel inadmissible in c. 123A hearing); Commonwealth v. Knowlton, supra (right to competency hearing prior to SDP hearing); Commonwealth v. Travis, supra at 249-250 (higher standard for vacating judgment than most civil cases); Andrews, petitioner, supra at 484, 489 (burden of proof is on Commonwealth; standard of proof is beyond a reasonable doubt); Commonwealth v. Lamb, 365 Mass. 265, 270 (1974) (psychotherapist-patient privilege); Commonwealth v. Bladsa, 362 Mass. 539, 541 (1972) (evidentiary protections); Peterson, petitioner, 354 Mass. 110, 114 (1968) (petitioner in c. 123A proceeding entitled to adequate prior notice, hearing, compulsоry process, and assistance of counsel).3 These procedural safeguards “satisfy not only the heightened need for accuracy when so much is at stake, but also the rеlated but distinct need to assure a person subject to government power that he has not been a mere passive object of an in*779quiry; however thorough, but an equal pаrticipant whose voice has fully been heard.” Hill, petitioner, supra at 152.
Not all of the procedures which protect criminal defendants are required in c. 123A proceedings, however. Most significаntly, we have declined to find a constitutional right to trial by jury in such proceedings. Commonwealth v. Barboza, supra at 113 & n.6. Accord Gagnon, petitioner, 416 Mass. 775, 778 (1994). See also Hill, petitioner, supra at 153-154 (prohibition against double jeopardy does not apply); Gomes v. Gaughan, 471 F.2d 794, 800-801 (1st Cir. 1973) (no right to counsel or hearing before sixty-day observation period). “We perceive no significant protection to be given a respondent in such a proceeding by virtue of a trial by jury. The procedural requirements of G. L. c. 123A provide ample protection of the individual’s due process rights.” Commonwealth v. Barboza, supra at 113. We have also observed that “historically based safeguards” such as the right to trial by jury, the right to indictment by a grand jury, the privilege against self-incrimination, and the prohibition against double jeopardy, do not apply. Hill, petitioner, supra at 152.
Despite these pronouncements, Sheridan insists that, once he invokes his statutory right to trial by jury, due process requires that the jury reach their verdict unanimously. He argues that the importance of accuracy in c. 123A proceedings is high where, as here, ‘the “potential deprivation of liberty is . . . massive,” Commonwealth v. Travis, supra at 249, and that a unanimous verdict requirement will increase the accuracy of the proceedings, while imposing little or no burden on the Commonwealth. In addition, Sheridan argues, a unanimous verdict requirement serves to ensure that the Commonwealth proves its case beyond a reasоnable doubt. To support this argument, he points to dictum in a recent case which links unanimity with the “beyond a reasonable doubt” standard. See Commonwealth v. Conefrey, 420 Mass. 508, 512 n.7 (1995).4 But see Apodaca v. Oregon, 406 U.S. 404, 411-412 (1972) (unanimous verdicts in State criminal tri*780ais not required under Fourteenth Amendment tо the United States Constitution) and Johnson v. Louisiana, 406 U.S. 356, 362-363 (1972).
We do not accept Sheridan’s arguments. First, Conefrey is a criminal case, and so is not controlling in a case involving a c. 123A proceeding. We do not agree that a unanimous jury verdict is necessary to determine that the Commonwealth proved its case beyond a reasonable doubt in a civil context. A c. 123A hearing and a criminal trial serve different purposes. The conviction of a criminal is punishment; the determination that someone is a sexually dangerous person is not. See Hill, petitioner, supra at 153. “[T]he primary objective of c. 123A ... is to care for, treat, аnd, it is hoped, rehabilitate the sexually dangerous person, while at the same time protecting society from this person’s violent, aggressive, and compulsive behaviors.” Sheridan, petitioner, 412 Mass. 599, 604 (1992). Requiring а higher burden of proof in a c. 123A hearing than in most civil cases does not thereby equate the purpose of that standard in SDP hearings with its purpose in criminal cases. Second, we are dealing here with a statutory right to jury trial, not a constitutional one. See Commonwealth v. Barboza, supra. The statute creating the right explicitly mandates the use of civil practice in SDP hearings. We shall nоt override the legislative mandate without a compelling constitutional basis. Finally, even if we assume that, as Sheridan argues, unanimous verdicts are more accurate than nonunanimous ones, we need not require the most accurate procedure, only that procedure which comports with due process. See Trigones v. Attorney Gen., 420 Mass. 859, 863-864 (1995).
Here, the nonunanimous verdict of a civil jury satisfies the due process requirement. Disagreement is not in itself the equivalent of a failure of proof by the State, “nor does it indicate infidelity to the reasоnable-doubt standard.” Johnson v. Louisiana, supra at 362. In the context of a civil c. 123A proceeding, where constitutional due process requires no jury at all, see Commonwealth v. Barboza, supra, we find it difficult to say that due process is not achieved with a verdict of ten jurors out of twelve. Accordingly, we conclude that the *781jury in a c. 123A proceeding need not reach unanimity, if five-sixths of the jurors agree on a vеrdict.5
So ordered.
Notes
For a discussion of the background of the case, see generally Sheridan, petitioner, 412 Mass. 599 (1992) (affirming dismissal of earlier discharge petition).
The record does not make clear when the request for jury trial was made. Nevertheless, neither рarty disputes that the 1994 amendment applies to this case.
While most of the articulated procedural protections afforded petitioners in proceedings under G. L. с. 123A (1994 ed.) are those associated with criminal practice, we have also stated that certain aspects of civil procedure also apply. See Commonwealth v. Pimental, 362 Mass. 854 (1972) (petitioner entitled to benefit of interrogatories and depositions applicable in civil cases).
“[T]he requirement of a unanimous jury is related to the requirement that the government prove the defendant’s guilt beyond a reasonable doubt. . . . Both requirements guarantee that jurors reach a ‘subjective state of certitude’ about a defendant’s guilt befоre rendering a verdict. See In re Winship, 397 U.S. 358, 364 (1970). If all jurors agree as to a defendant’s guilt, their unanimity indicates that the government indeed did prove its case beyond a reasonable doubt. A less thаn unanimous jury, in *780contrast, tend to show that a reasonable doubt exists as to the crime charged.” (Citátions omitted.) Commonwealth v. Conefrey, 420 Mass. 508, 512 n.7 (1995).
In certain circumstances a civil trial in the Superior Court may proceed after empanelment with fewer than twelve jurors, but not fewer than ten, without the consent of the parties. See