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Arizona State Hospital v. Klein - 2/5/2013

Arizona Court of Appeals Division One Holds That Arizona Rule of Evidence 702 Applies to Mental-Health Testimony at an Evidentiary Hearing on a Petition for Discharge Filed by a Person Committed under the Arizona Sexually Violent Persons Act.

In 2000, Charles P. completed a ten-year prison term for attempted molestation of a child.  The superior court then found that he was a sexually violent person under the Arizona Sexually Violent Persons Act (“SVPA”) and committed him to the Arizona Community Protection and Treatment Center (“Center”).  Psychologists at the Center performed annual reviews of Charles’s treatment progress.  In a 2011 report, Drs. Goldenstein and Stapleton noted that Charles had “made only minimal progress” since his last evaluation and that his placement in a less restrictive environment would endanger community safety.

Charles petitioned the court for a discharge, arguing that, contrary to the doctors’ report, he no longer fit the criteria for designation as a sexually violent person.  The court set an evidentiary hearing on the discharge petition, for which the Center designated Dr. Goldenstein as its testifying mental-health expert.  At Charles’s request, the court set a hearing, pursuant to Arizona Rule of Evidence 702 (as amended in 2012) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to evaluate Dr. Goldenstein’s competence and his method for determining that Charles should not be discharged.  The court stayed proceedings to allow the Center to petition the Court of Appeals for special action relief.

The Court of Appeals accepted jurisdiction, but denied relief.  On the issue of jurisdiction, the Court noted that the matter raised by the petition was one of pure statutory construction and that Dr. Goldenstein was the primary evaluator for seventy-seven other committed persons, making the issue likely to arise again.

On the merits, the Court rejected the Center’s argument that Rule 702 and Daubert do not apply to SVPA discharge hearings.  Under the SVPA, the Center (standing in the shoes of the State) has the burden to prove by a preponderance of the evidence that the person’s mental disorder has not changed and that the person remains a danger and will likely commit further acts of sexual violence if discharged.  The scheme also contemplates that the testimony of “competent professionals” will be presented at the hearing.  The Center claimed that an expert testifying at a discharge hearing need only meet the definition of a “competent professional” under the SVPA and need not meet the requirements of Rule 702 and Daubert.

The Court noted, however, that the Rules of Evidence apply in the superior courts, with certain exceptions not relevant to this case.  Ariz. R. Evid. 101(a).  The Court also noted that the SVPA explicitly provides that the Rules of Evidence apply in discharge hearings.  Thus, the Court concluded that an expert testifying at a discharge hearing had to be both a “competent professional” as defined by A.R.S. § 36-3701(2) and qualified to give expert testimony under Rule 702.

The Court also rejected the Center’s argument that the superior court abused its discretion by setting a pretrial Daubert hearing to evaluate Dr. Goldenstein’s testimony.  Construing Arizona Rule 702 in accordance with its federal counterpart, the Court concluded that, although the factors set out in Daubert may not apply to cases like this involving psychological testimony, the court nevertheless serves a gatekeeping function to determine the reliability of expert testimony.  In fulfilling this role, the court has “great discretion to decide whether to set a pretrial hearing to evaluate the proposed [expert] testimony.”  Particularly when the case involves a bench trial, the rule does not require a pretrial hearing, but the court’s discretion allows it to conduct such a hearing, and the court in this case did not abuse its discretion.

Judge Johnsen authored opinion; Judges Thompson and Winthrop concurred.

Posted by: Kathy O'Meara

Posted On: 2/28/2013