Lead Opinion
OPINION OF THE COURT
In this case, we are asked to consider whether, and to what extent, a court may admit hearsay evidence when it serves as the underlying basis for an expert’s opinion in an article 10 proceeding. The circumstances of this case require a reversal and a new trial. The Due Process Clause protects against the admission of unreliable hearsay evidence, where such hearsay is more prejudicial than probative, regardless of whether it serves as the basis for an expert’s properly proffered opinion testimony.
I. Facts and Procedural History
A. Floyd Y.’s Article 10 Proceeding
In January 2001, the Oswego County Court convicted Floyd Y. of four counts of sexual abuse in the first degree and four counts of endangering the welfare of a child (Penal Law §§ 130.65 [3]; 260.10 [1]). The jury found that Floyd Y. had abused his two stepchildren four times between June 1996 and February 1998. During his incarceration, Floyd Y. received therapy through a sex offender treatment program. In December 2005, prior to his release from prison, the Department of Correctional Services (DOCS) invoked Mental Hygiene Law § 9.27 and transferred Floyd Y. to Kirby Psychiatric Center without a hearing. At the time, DOCS routinely made such transfers even though it lacked statutory authority to do so (see State of N.Y. ex rel. Harkavy v Consilvio,
In 2007, the legislature enacted the Sex Offender Management and Treatment Act (SOMTA) (L 2007, ch 7, § 2), which authorized the State to place any “dangerous sex offender requiring confinement” in civil management (Mental Hygiene Law §§ 10.03 [e]; 10.07 [f]). Shortly thereafter, the State invoked Mental Hygiene Law § 10.06 and ordered Floyd Y. examined by Dr. Michael Kunz, a psychiatric expert. The evaluation report filed by Dr. Kunz stated that, in his opinion, Floyd Y. “met the criteria for Pedophilia” and thus qualified for civil management under article 10. Accordingly, the State filed an article 10 civil management petition against Floyd Y.
Under article 10 of the Mental Hygiene Law, the State must establish at trial, by clear and convincing evidence, that a detained sex offender suffers from a mental abnormality as defined in that statute (see Mental Hygiene Law §§ 10.07 [d]; 10.03 [e]). Prior to his jury trial, Floyd Y. sought to exclude testimony of the State’s proffered expert witnesses, Dr. Mortiere, who would testify as one of Floyd Y.’s treating physicians at Kirby, and Dr. Kunz, who would testify as the State’s statutory “psychiatric examiner” under Mental Hygiene Law § 10.06 (d). The parties heavily contested the extent to which the State could present hearsay evidence through the testimony of these experts. Floyd Y. argued that the experts’ opinions were inadmissible because they relied on unproven, unreliable accusations against him and that the testimony would include impermissible hearsay. The State disagreed. Supreme Court ultimately ruled against Floyd Y. and admitted both the opinion testimony and the underlying basis hearsay.
Dr. Mortiere was the State’s star witness. At trial, Dr. Mortiere opined that Flоyd Y. suffered from pedophilia, antisocial personality disorder, and polysubstance dependence. She further testified that the coexistence of those conditions increased the likelihood that he would reoffend. Dr. Mortiere based her opinion on victim affidavits, police reports, court records, three reports written by Dr. Kunz, a report by Floyd Y.’s expert Dr. Singer, and her own personal experience as Floyd Y.’s treating psychologist. Some of her testimony concerned the abuse for
Although Dr. Mortiere lacked personal knowledge of the events, she nevertheless testified that Floyd Y. had committed sexual abuse against nine individuals, and she rеcounted the details of each alleged abuse. She described the alleged abuse of the 23-year-old victim of Floyd Y.’s 1992 sexual assault conviction; the teenage babysitter who was the victim of Floyd Y.’s 1995 harassment plea; her twin sister, who was the victim of alleged sexual abuse in 1994; the eight-year-old friend of the family who alleged an abuse in 1996 for which Floyd Y. was acquitted; the 17-year-old sister-in-law with whom Floyd Y. admittedly had inappropriate telephone conversations; the eight-year-old daughter of an ex-girlfriend whose claims of a 1998 abuse did not result in criminal charges; the 15-year-old daughter of Floyd Y.’s ex-girlfriend, who alleged abuse in 1998; and Floyd Y.’s stepchildren, who had been the victims of his 2001 conviction for sexual abuse. Dr. Mortiere opined that Floyd Y.’s continued denial of many of these incidents tended to show that he had a mental abnormality.
In addition to her rendition of these abuse allegations, Dr. Mortiere also told the jury about her therapeutic relationship with Floyd Y. Dr. Mortiere discussed Floyd Y.’s course of therapy and characterized his participation, describing his lack of progress in sex offender treatment and his belligerence toward her and other staff, particularly female staff. She disputed the statements of other doctors in Floyd Y.’s treatment history that appeared to suggest that he had been making progress because she believed him to be deceitful and driven, in part, by his desire to avoid being “locked up.”
The State’s other expert witness, Dr. Kunz, testified that Floyd Y. suffered from pedophilia, polysubstance abuse, and antisocial personality disorder, and met the criteria for mental abnormality. Dr. Kunz based his testimony on personal interviews with Floyd Y, clinical records, and written reports concerning Floyd Y.’s alleged sex crimes. Like Dr. Mortiere, Dr. Kunz testified about past incidents of Floyd Y.’s sexual abuse, including several uncharged instances.
The trial court gave the jury limiting instructions on its consideration of experts’ testimony regarding accusations. The court told the jury to consider “any testimony as to the accusations that ended in dismissal and acquittal only for the purpose of evaluating the experts’[ ] findings and understanding the basis of their conclusions.” The court further instructed the jury that testimony concerning out-of-court statements was admitted to inform the jury as to the basis of the experts’ testimony and was “not to be considered as establishing the truth of those out of court statements. You are to use such testimony only for the purpose of evaluating the expert’s findings.” The court also instructed the jury that “[t]he opinions stated by each expert . . . were based on particular facts as the expert obtained knowledge of them and testified to them befоre you or as the attorney who questioned the expert asked the expert to assume.”
The jury found that Floyd Y. suffered from a mental abnormality. Following a dispositional hearing, the court assigned him to the Office of Mental Health for confinement in a secure facility. B. Floyd Y.’s Appeal to the Appellate Division
On appeal to the Appellate Division, Floyd Y. argued that Supreme Court erred when it allowed the experts to testify to unreliable hearsay, and that Dr. Mortiere’s testimony violated the psychologist-patient privilege. The Appellate Division found that Supreme Court properly admitted some, but not all, of the basis hearsay under the “professional reliability exception” and rejected the psychologist-privilege argument (Matter of State of New York v Floyd Y,
The Aрpellate Division focused on four acts referenced by Dr. Mortiere that did not result in a charge or a conviction, and concluded that two uncharged accusations were reliable. The accusation from Floyd Y.’s 17-year-old former sister-in-law was reliable because Floyd Y. admitted that the events happened.
The Appellate Division found the other two accusations unreliable and therefore “of questionable probative value.” First, the 1996 accusation involving the eight-year-old friend of the family was unreliable because Floyd Y. was acquitted. Second, the 1999 accusation involving the eight-year-old daughter of an ex-girlfriend was unreliable because no charges were ever brought against Floyd Y. (Id. at 87-88.) The Appellate Division concluded that Supreme Court erred when it allowed these accusations into evidence, but the error was harmless because the evidence was a small fraction of the case against Floyd Y. and Supreme Court gave proper limiting instructions (id. at 88). The Appellate Division also concluded that Mental Hygiene Law § 10.08 (c) abridged the psychologist-patient privilege (id.).
II. Floyd Y.’s Constitutional Challenge
Floyd Y. appeals to this Court as of right under CPLR 5601
Floyd Y. argues that Supreme Court violated his right to due process by allowing experts to introduce unreliable, testimonial hearsay without giving him the opportunity to cross-examine the out-of-court declarants. Floyd Y. likens his article 10 trial to a criminal proceeding and argues that he should have had the same confrontation rights enjoyed by criminal defendants (cf. Pointer v Texas,
A. Civil Confinement Proceedings
When a sex offender commitment statute is punitive in nature, the respondent enjoys the same due process rights as a criminal defendant (Specht v Patterson,
The Mathews test “is a flexible concept” that weighs three factors: (1) the private interest of the litigant; (2) the risk of erroneous deprivation in the absence of substitute procedures; and (3) the State’s interest in avoiding additional procedures (People v David W.,
Here, it is indisputable that Floyd Y.’s interest is significant. The Federal and State Constitutions protect individual liberty, and it is one of our most cherished and protected rights. The potential for indefinite confinement threatens a liberty interеst of the highest order (Hendricks,
The second factor, which considers the risk of erroneous deprivation in the absence of substitute procedures, also weighs in favor of Floyd Y. Article 10 provides the State with access to a broad range of information about a sex offender and provides for expert assessments by a psychiatric examiner. This extends from the point when the State determines whether to proceed with a civil management proceeding, through the proceeding itself, and continues during the period of civil management (Mental Hygiene Law §§ 10.06 [d]; 10.08 [a], [b], [c], [g]; 10.09 [b], [c], [d], [f]; 10.11 [a] [1], [2]). The risk that this information could be misused, or introduced at trial even when it is unreliable, calls for substantial procedural protection.
It is true that article 10 provides for a host of procedural protections. The respondent has a right to counsel (Mental Hygiene Law § 10.08 [g]; People ex rel. Rogers v Stanley,
However, article 10 does not explicitly limit the hearsay testimony of experts even though it essentially envisions a
With respect to the third factor in the Mathews analysis, the State’s interest is significant, but it is outweighed by the other two factors. Article 10 already requires a civil trial with expert witnesses and counsel. Requiring the State to show that hearsay basis information is both helpful to the jury and meets a certain threshold of reliability is not unduly burdensome.
Floyd Y.’s liberty interests were squarely at issue in his article 10 proceeding because an adverse determination can lead to indefinite detention. As a consequence, we must be cognizant of Floyd Y.’s due process rights and ensure that those rights are preserved (see Crane,
In the civil context, reliability can be assured in many ways. The Due Process Clause has no inflexible standard for judging reliability, and substitutes for live confrontation are acceptable even in proceedings that implicate liberty (Morrissey v Brewer,
Although we have held that hearsay may play a role in an expert’s testimony because the expert may base an opinion on hearsay if it “is of a kind accepted in the profession as reliable in forming a professional opinion” (People v Goldstein,
Contrary to our concurring colleagues’ contention, basis hearsay does not come into evidence for its truth, but rather to assist the factfinder with its essential article 10 task of evaluating the experts’ opinions. In order to assess an expert’s testimony, the factfinder must understand the expert’s methodology and the practice in the expert’s field. In this case, for example, Dr. Mortiere testified that experts in her field “rely heavily upon witness statements, affidavits, [and] victim statements . . . because in treatment there are issues of confronting a sexual offender with exactly what happened.” Understanding her diagnosis and her treatment of Floyd Y. requires understanding the information she considered when making her diagnostic and treatment decisions. As our concurring colleagues concede, out-of-court statements are routinely admitted at trial for purposes other than to demonstrate their truth (concurring op
To the extent that a factfinder’s assessment might turn on its acceptance of basis evidence as true, article 10 provides the respondent with an opportunity to challenge the State’s expert by presenting a competing view of the basis evidence through the testimony of the respondent’s expert.
The different approaches adopted by other jurisdictions illustrate the difficulty in setting the right balance between admitting and excluding hearsay basis evidence (see generally Duffy, 75 Alb L Rev at 792-797). On one end of the spectrum, Virginia, Kansas, and Massachusetts prohibit experts from introducing any inadmissible hearsay at sex offender proceedings. (Lawrence v Commonwealth, 279 Va 490, 494-497,
Due process requires any hearsay basis evidence to meet minimum requirements of reliability and relevance before it can be admitted at an article 10 proceeding. In article 10 trials, hearsay basis evidence is admissible if it satisfies two criteria. First, the proponent must demonstrate through evidence that the hearsay is reliable. Second, the court must determine that the “probative value in helping the jury evaluate the [expert’s] opinion substantially outweighs [its] prejudicial effect” (cf. Fed Rules Evid rule 703). These reliability and substantial relevance requirements provide a necessary counterweight to the deference juries may accord hearsay evidence simply because an expert has propounded it. The requirements prevent an expert from serving as a passive conduit for hearsay, yet allow the jury to evaluate expert opinions by considering reliable and probative evidence. This rule gives the judge an active role in managing the article 10 proceeding and preserving its integrity.
III. The Hearsay Basis Evidence
Applying this two-step analysis to the facts of this case, we conclude that the trial court improperly permitted the State’s experts to introduce certain unreliable hearsay, as well as some hearsay with a patina of reliability that nevertheless was more prejudicial than probative as a matter of law. These errors denied Floyd Y. due process.
The State submitted hearsay through Drs. Mortiere and Kunz regarding nine alleged sexual abuse victims. Admission of hearsay about sexual abuse supported by adjudications of guilt did not violate due process. Specifically, Floyd Y. was convicted of or pleaded guilty to crimes arising out of his treatment of four of the alleged victims: a 23-year-оld woman (sexual abuse in the second degree); a teenage babysitter (harassment); and his two stepchildren (sexual abuse in the first degree). The evidence of reliability in those cases was a criminal justice adjudication unfavorable to Floyd Y.
Floyd Y.’s admissions also provided the independent basis for the reliability of some of the hearsay. Floyd Y. admitted that he
Conversely, unlike adjudications and admissions of guilt, an acquittal cannot provide the basis for reliability. Charges that resulted in acquittal are surely more prejudicial than probative on the question of the respondent’s mental abnormality. Therefore, in the case of the eight-year-old friend of the family, Floyd Y’s acquittal of criminal charges bars admission of those accusations, absent some other basis to substantiate them. Similarly, unchargеd accusations should have been excluded. Here, police were unable to substantiate the accusations of the eight-year-old daughter of Floyd Y.’s ex-girlfriend, and this hearsay should have been excluded. The uncharged allegations made by the teenage babysitter’s twin sister were not supported by extrinsic evidence or Floyd Y.’s own admissions, and should not have been admitted as hearsay.
Criminal charges that resulted in neither acquittal nor conviction require close scrutiny. Police charged Floyd Y. in connection with the accusation of the 15-year-old daughter of his ex-wife, but those charges were dropped in connection with Floyd Y.’s parole agreement promising to stay away from the girl. The parole agreement provides sufficient reliability to weigh in favor of admission of this hearsay. However, unlike an adjudication of guilt, the parole agreement does not conclusively prove the allegations. Supreme Court should have taken care to ensure that they were substantially more probative than prejudicial. In such a case, the better course would have been to require live confrontation of the declarant to ensure the statement’s reliability.
The admission of the unreliable hearsay was not harmless error. The State alleged that Floyd Y. was a pedophile and presented evidence that he had abused four prepubescent children. However, two of those allegations were based on hearsay that violated Floyd Y.’s due process rights. There is a reasonable possibility the jury could have reached another verdict had it not heard testimony that Floyd Y. had committed those two sex offenses (People v Crimmins,
Notes
. Floyd Y. does not challenge the evidence concerning this alleged victim in the present appeal.
. In concurrence, Judge Smith contends that “[t]he primary purpose of article 10 is to prevent sex offenders from committing more sex crimes” and that it thus amounts tо a criminal sanction (concurring op at 119). While it is true that article 10 seeks to reduce recidivism through confinement, it also provides “treatment modalities” to address the underlying mental abnormality that makes a sex offender likely to reoffend (see Mental Hygiene Law § 10.01 [b]). If the confinement and management required by article 10 did not provide therapy to treat a sex offender’s mental abnormality, then the statute could not survive constitutional scrutiny. It would, instead, be a “shadow criminal law” requiring criminal procedural protections (cf. Allen v Illinois,
. Under Mental Hygiene Law § 10.07 (b), the respondent may waive the right to a jury trial, in which case the court shall conduct the trial.
. The concurrence believes that the respondent’s expert testimony is useless in offsetting the hearsay’s impact on the jury because the expert cannot opine as to the veracity of the basis evidence. Of course it is also the case that the State’s expert cannot assert the truth of the basis evidence, and from the respondent’s perspective, this is but one of the weaknesses of the State’s case that can be mined during the article 10 proceeding. Through the respondent’s own expert the jury hears why the State’s expert testimony is unconvincing, including why it is not credible. Moreover, cross-examination of the State’s expert provides additional opportunity to challenge the opinion and emphasize its weaknesses, including the expert’s reliance on this type of basis evidence.
. In light of our disposition of this appeal, we need not reach and express no opinion as to whether article 10 abrogates the psychologist-patient privilege.
Concurrence Opinion
(concurring).
I
The majority reverses the Appellate Division’s order on the grоund that the “Due Process Clause protects against the admission of unreliable hearsay evidence” (majority op at 98). But hearsay, reliable or not, is generally inadmissible under New York law, and the hearsay in this case falls within no exception to the rule. I would therefore reverse on hearsay grounds, and would not reach the constitutional question.
A
At a jury trial to determine whether Floyd Y, a detained sex offender, suffered from a “mental abnormality” as defined in article 10 of the Mental Hygiene Law, the State’s expert witnesses opined that he did suffer from such an abnormality, and as support for their opinions were permitted to relate to the jury accusations by several alleged victims of Floyd’s sex crimes. The victims did not testify. The admission of the experts’ testimony to what the victims said raises two questions: Were the victims’ statements hearsay? And if so, was the testimony nevertheless admissible under the so-called “professional reliability” exception to the hearsay rule?
We answered the first question yes in People v Goldstein (
B
In Goldstein, we also discussed, but did not decide, another hearsay issue: Do statements like those recounted by Hegarty in Goldstein (or by the State’s experts in this case) fall within an еxception to the hearsay rule? The arguably applicable exception is that an expert is permitted to rely on hearsay in forming his or her opinion, so long as the material relied on “is of a kind accepted in the profession as reliable” (People v Sugden,
This question was not argued by the parties in Goldstein, and Goldstein was decided on Confrontation Clause, not hearsay, grounds. As we observed, both parties in Goldstein seemed to assume that, as a matter of New York law, if her opinion was properly admitted “Hegarty was free, subject to defendant’s constitutional right of confrontation, ... to repeat to the jury all the hearsay information on which it was based” (
“[I]t can be argued that there should be at least some limit on the right of the proponent of an expert’s opinion to put before the factfinder all the information, not otherwise admissible, on which the opinion is based. Otherwise, а party might effectively nullify the hearsay rule by making that party’s expert a ‘conduit for hearsay’ ” (id., quoting Hutchinson v Groskin, 927 F2d 722, 725 [2d Cir 1991]).
This case, unlike Goldstein, squarely presents the question of whether, and if so when, the proponent of an expert’s testimony may put “basis” hearsay before the jury.
C
As a matter of principle, I see no reason why basis hearsay should be allowed. In general, exceptions to the prohibition on hearsay have been recognized only when the hearsay fits within
While our Court has apparently never decided this issue, the Appellate Division did in Wagman v Bradshaw (
“[W]hile the expert witness’s testimony of reliance upon out-of-court material to form an opinion may be received in evidence, provided there is proof of reliability, testimony as to the express contents of the out-of-court material is inadmissible.”
In their New York Evidence Handbook, Professors Martin, Capra and Rossi agree with Wagman. They say:
“Where the expert relies on information not in evidence, it is the expert’s opinion, not the underlying information, that is disclosed to the jury. The [rule permitting experts to rely on hearsay evidence] does not permit the proponent to bypass the hearsay rule by having an expert rely on hearsay only to disclose that hearsay to the jury in the guise of providing a foundation for the expert’s opinion” (Martin, Capra & Rossi, New York Evidence Handbook § 7.3.4 at 625 [2d ed 2003] [footnote omitted]).
Under New York law as stated in Wagman and the Evidence Handbook, the hearsay in this case was improperly admitted, and Floyd Y. is entitled to a new trial.
D
The rule in the federal courts appears to be more flexible— i.e., more tolerant of the admission of hearsay underlying expert opinions. Since the issue is open in our Court, we are free if we like to adopt the federal approach as a matter of state law. If we were to do so, however, the result in this case would be the same: the hearsay should not have been admitted.
Under rule 703 of the Federal Rules of Evidence:
“An expert may base an opinion on facts or data in the case that the expert has been made aware of orpersonally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.”
Rule 703 thus creates a balancing test—albeit one weighted against the admission of basis hearsay. The hearsay must be excluded unless its probative value “substantially outweighs” its prejudicial effеct. As the committee that drafted this language explained, it “provides a presumption against disclosure to the jury of information used as the basis of an expert’s opinion and not admissible for any substantive purpose, when that information is offered by the proponent of the expert” (2000 Advisory Comm Notes, Fed Rules Evid rule 703).
In this case, the courts below, though they did not cite rule 703, may have intended to apply a similar balancing test, for they permitted the experts to relate hearsay information after ruling that the information was “reliable.” But if the lower courts were following a rule 703 approach, they erred by equating “probative value” with reliability and “prejudicial effect” with unreliability.
The basic point of the hearsay rule is that a party to litigation is entitled to test by cross-examination a statement that is presented to the jury as true, and that it is for the jury to decide, having listened to the cross-examination, whether the statement is reliable. To say that hearsay is admissible—i.e., that cross-examination is unnecessary—because a court thinks the statement is reliable is to usurp the functions of the cross-examiner and the factfinder, and to defeat the point of the rule. In other words, the hearsay rule permits a party to test, by cross-examination, whether an apparently reliable statement is as good as it looks. As the United States Supreme Court put it in Crawford v Washington (
Thus, it is a mistake to suggest that, because a hearsay statement seems to be reliable, its “probative value” outweighs its “prejudicial effect.” The policy underlying the rule is that, in general, hearsay is without probative value as to the truth of the matter stated by the out-of-court declarant. And the more likely the jury is to accept the statement for its truth—i.e., the more reliable the statement appears to be—the greater the prejudice.
Rule 703 should therefore be interpreted to require not an assessment of the reliability of an out-of-court statement, but the sort of balancing frequently performed in other contexts—a determination of whether the utility of an out-of-court statement for a legitimate, nonhearsay purpose outweighs the danger that the jury will accept the statement for its truth. For example, in our recent decision in People v Morris (
If rule 703 governed this case, the admissibility of the out-of-court statements by Floyd Y.’s alleged victims would depend on whether their probative (nonhearsay) value—helping the jury evaluate the testimony of the State’s experts—“substantially outweighs” their prejudicial (hearsay) effect—the risk that the jury would take the statements as true. But in this case, as in Goldstein (
The statements at issue in this case were inadmissible hearsay under New York law, whether our Court follows the rule stated in Wagman or the less restrictive federal rule.
E
The majority opinion in this case says little about the hearsay rule and the professional reliability exception as they are generally applied in civil and criminal trials. It discusses neither the New York authorities I have cited nor Federal Rule 703. Rather, it seems to create a special rule for cases brought against detained sex offenders under article 10 of the Mental Hygiene Law, endorsing a “flexible approach that allows the admission of hearsay but requires courts to make an independent reliability assessment” (majority op at 108). Why the hearsay rule should be more flexible in article 10 cases—why a jury in such a case should be presented with basis hearsay that would be inadmissible if an expert were testifying in an ordinary civil suit based on an automobile accident—is not explained. If anything, the quasi-criminal nature of article 10 proceedings, which I discuss in section II below, would call for a strict, not a flexible, approach.
The majority says that “in many cases, including article 10 trials, the admission of the hearsay basis is crucial for juries to understand and evaluate an expert’s opinion” (majority op at 107). This misses a basic point. Reliance on inadmissible evidence is a weakness, not a strength, in an expert’s opinion; an opinion that a jury cannot “understand and evaluate” without hearing inadmissible evidence is a worthless opinion.
The professional reliability exception to the hearsay rule says that an expert’s reliance on inadmissible evidence does not make the opinion inadmissible; but such reliance does open the opinion to attack. The opponent of the party presenting the expert may, if he chooses, try to discredit the witness by showing that her opinion depends on facts that have not been, and cannot be, proved in the courtroom. But to allow the proponent
The point is illustrated by one of the leading New York cases on the professional reliability exception, People v Stone (
The majority says that “basis hearsay does not come into evidence for its truth” (majority op at 107), but never explains how the victims’ statements in this case could possibly bolster the State’s experts’ opinions if the jury did not accept the statements as true. Nor is it clear why, if the hearsay in this case was not admitted for its truth, the majority is so concerned with whether it is reliable. The majority adds that even if the jury “might” accept basis evidence as true, that is not a problem because the respondent in an article 10 case may present “a competing view” by calling his own expert (majority op at 108). But the doctors who testify at article 10 trials are not experts in veracity. They cannot tell a jury whether an alleged victim’s statement is true or false—and if they could, the hearsay rule does not permit the substitution of an expert’s opinion for cross-exаmination.
The concern underlying the majority’s hearsay analysis seems to be that excluding basis hearsay will “undermine” the jury’s “truth-seeking function ... by keeping hidden” important information (majority op at 107). The hearsay rule does sometimes do that, but we have rejected the idea of recognizing an “amorphous” reliability exception to it (People v Nieves,
II
Since the majority decides this case on due process grounds, I will also express my view on the constitutional issue. I agree with the majority’s result, but not its reasoning. I would hold that a respondent in a proceeding under article 10 of the Mental Hygiene Law is constitutionally entitled to the same right of confrontation as a defendant in a criminal case.
The majority’s analysis proceeds on the premise that article 10 proceedings are civil, not criminal, and applies the balancing test of Mathews v Eldridge (
Proceedings under article 10 may be civil, but they bear a significant resemblance to criminal cases. Most obviously, they are brought only against pеople who have committed crimes (or have committed acts that, but for the offender’s mental condition, would be criminal) (Mental Hygiene Law § 10.03 [g]); and they can and usually do result in the confinement of the respondent to a “secure” facility (Mental Hygiene Law § 10.03 [e]; see NY St Off of Mental Health, 2012 Ann Rep on the Implementation of Mental Hygiene Law Article 10 at 4 [Apr. 2013] [OMH Report] [241 out of 340 cases resulted in a finding that confinement was required]). Indeed, a respondent in an article 10 proceeding faces a threat to his liberty more severe than that faced by most criminal defendants: He may be confined until a court finds that he “no longer is a dangerous sex offender requiring confinement” (Mental Hygiene Law § 10.09 [e])— which could be for the rest of his life. According to the Office of Mental Health, of 288 people who entered treatment in secure
Proceedings under article 10 of the Mental Hygiene Law are much more similar to criminal prosecutions than are proceedings under article 9, the statute generally providing for civil commitment of mentally ill people who present a danger to themselves or others. The dominant purpose of article 10, unlike that of article 9, is the protection of the community from criminal conduct. I grant that protecting the community is an important purpose of article 9 also; but in many article 9 cases the protection of the mentally ill person himself or herself is at least equally important. Article 9 proceedings are the sort of case that the Supreme Court distinguished from criminal cases in Addington v Texas (
“[I]t is not true that the release of a genuinely mentally ill person is no worse for the individual than the failure to convict the guilty. One who is suffering from a debilitating mental illness and in need of treatment is neither wholly at liberty nor free of stigma. ... It cannot be said . . . that it is much better for a mentally ill person to ‘go free’ than for a mentally normal person to be committed” (citations omitted).
This language from Addington cannot be applied to article 10 cases. No one will say with a straight face that article 10 proceedings are brought, to a significant degree, for the benefit of the sex offender, or that a sex offender who is spared from article 10 confinement has missed an opportunity to improve his life. The primary purpose of article 10 is to prevent sex offenders from committing more sex crimes.
Because of the quasi-criminal quality of article 10 proceedings, I find it unacceptable to subject the confrontation rights of respondents in such proceedings to the balancing test of Mathews v Eldridge. The Mathews test was originally designed, as the Supreme Court pointed out in Allen v Illinois, as a way of deciding the procedural safeguards required “before a рerson
It is beyond dispute that Floyd Y. was not given in this case the kind of confrontation right that is required in criminal cases. His situation is indistinguishable from that of the defendant in Goldstein, for whom we ordered a new trial because his right of confrontation had been infringed. For that reason I would, if I were to reach the question, agree with the majority that the order of the Appellate Division must be reversed on constitutional grounds.
Order reversed, without costs, and a new trial ordered.