Nov. 18, 2009 – A jury may consider evidence that would normally be barred in a traditional criminal trial when considering the probability that a defendant will commit future violent sexual acts.

In State v. Kaminski, 2008AP2439, the Wisconsin Court of Appeals rejected Carl Kaminski’s argument that due process requires extension of preliminary relevance requirements of Wis. Stat. section 904.04 (2)

A history of offenses

In support of its petition alleging that Kaminski was a sexually violent person in need of commitment to the Department of Health and Families Services under Wis. Stat. ch. 980, the state presented two psychologists.

Dr. Janet Hill of the Department of Corrections diagnosed Kaminski with an antisocial personality disorder that predisposed him to engage in sexual offenses. Dr. Richard Elwood of the DHFS confirmed Hill’s assessment.

The two experts evaluated Kaminski’s risk by considering his relevant conduct, including offenses for which he was acquitted or the charges were dismissed. Specifically, the psychologists looked to

• A presentence report indicating that Kaminski was taken to jail in 1984 for the alleged sexual assault of a female resident at the juvenile group home at which he was living. Apparently, no charges were brought.
• A conviction for second-degree sexual assault of a child in 1996.
• Allegations of sexual assault of a 27-year-old female in 1998. An administrative law judge determined the allegation was not credible and charges were subsequently dismissed.
• A charge of sexual intercourse with a 15-year-old girl in 2003 that an administrative law judge found proven by a preponderance of the evidence, but could not be proven before a jury.

Kaminski moved for a new trial, arguing that evidence of the 1984 and 1998 incidents were unreliable and should have been excluded. The court denied the motion and Kaminski appealed.

Not a criminal proceeding

In an opinion authored by Judge Edward Brunner, the court of appeals rejected Kaminski’s efforts to analogize the commitment procedure to a criminal trial’s strict rules for admissibility of “other acts” evidence.

At a criminal trial, other acts evidence is admissible under sec. 904.04 (2)(a) if offered for an acceptable purpose such as establishing motive, opportunity, identity, or absence of mistake, the court of appeals explained. The evidence must also be “relevant” under sec. 904.01 by relating to a fact or proposition of consequence to the determination of the action and possessing a tendency to make that fact or proposition more or less probable than it would be without the evidence.

In State v. Gray, 225 Wis. 2d 39 (1999), the court of appeals observed, the Wisconsin Supreme Court noted a “symmetry” between the preliminary relevancy requirement of 904.04 and the acknowledgment in sec.  901.04 (2) that some evidence is admissible only on condition that its proponent demonstrate a foundational fact.

If a preliminary relevancy rule applied to Kaminski’s proceeding, the state would have to prove by a preponderance of the evidence that he committed the acts alleged in 1984 and 1998.

But the court of appeals said Gray’s preliminary relevancy requirement in a criminal trial does not extend to proceedings under Wis. Stat. ch. 980 because they are civil in nature. One determined to be “sexually violent” is confined for treatment, not punishment, the court remarked.

“Still, Kaminski argues that a civil commitment for any purpose ‘constitutes a significant deprivation of liberty that requires due process protection,’” the court continued. “From this, he claims it reasonably follows that Gray’s preliminary relevance requirement must be imported from the criminal context to apply in ch. 980 proceedings.”

The court rebuffed Kaminski, pointing out the foundational reliability requirement of sec. 904.04 (2) does not apply to ch. 980 proceedings because that rule “looks back to analyzing proof of acts that have already occurred. It does not look forward to assess the substantial probability of future conduct, which is the relevant question [in chapter 980 proceedings].”

Sufficient due process

Kaminski received all the process he was due, the court said, applying the cost-benefit analysis test for additional procedures set out in Matthews v. Eldridge, 424 U.S. 319 (1976).

The risk of an erroneous deprivation of Kaminski’s liberty interest is “minimal” because the existing commitment procedure provides “elaborate” protections that would not be significantly enhanced by additional of a preliminary relevancy rule.

Jury not tainted

Kaminski argued that the jury was lead to believe its decision was less consequential after it heard a passing mention from expert Hill that committed persons are reevaluated each year for improvement.

The court said that Hill’s “vague and undeveloped” references to subsequent assessments would not lead a jury to discount the serious liberty deprivation of at least one year confronting Kaminski. Further, the court reasoned that “[t]reatment necessarily suggests a corrective process designed to ameliorate the adverse condition” so that a jury would “could reasonably infer that Kaminski, once committed, would receive occasional reevaluations as part of the treatment regimen.”

Jury can consider best interests

Kaminski argued that Hill’s testimony implicitly suggested that commitment was in his best interest and that of the community. He drew a comparison to the termination of parental rights (TPR) proceedings in which invocation of the “best interests of the child” taints a jury’s assessment of the elements underlying the termination petition.

The court rejected the analogy, citing key differences between the commitment proceeding and the termination of parental rights. For example, the court said, a judge has discretion in finding the most appropriate disposition for a child in a TPR case, but no such leeway exists once the fact finder determines whether the respondent is a sexually violent person.