SVP Commitment reversed for insufficient evidence

24 Oct

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Great opinion today from the 2nd Dist. on the sufficiency of the evidence that D suffered from a mental disorder that made him a danger to others by committing future sex crimes.

D’s diagnosis was “hebephilia” which is an interest in pubescent “minors”–neither pre pubescent nor post pubescent people…middle of the ground puberty.  WTF does that mean? Ya, good question. The diagnosis has been omitted from the DSM V because it is sketchy at best.  In this case, the prosecution expert also said he had no idea whether the particular minors D had sexual contact with were pre/post/middle of the ground pubescent because he did not see pictures of them so he had no way to know how developed they were.  Ie did they look like kids? Did they look like grown women? Did they look like teenagers?  The Court said that the expert’s testimony did not amount to substantial evidence that D suffered from this disorder.  This case is great first for the language about sufficiency of the evidence when a verdict/finding of fact relies on expert testimony and the factual basis for reaching the conclusion is not very solid.  (See also People v. Bassett).

This case is even better for because there is a really good footnote about the admissibility of evidence related to conditions omitted from the DSM V.  The footnote states that other states have found that the fact that hebephilia has been excluded from the DSM V means that the existence of the disorder not generally accepted within the scientific community and therefore inadmissible under Frye.  INTERESTING.  None of the parties had raised that issue below.  The Court did say that a disorder need not be part of the DSM V to qualify as an SVP disorder. But, still, I think the footnote is an invitation to argue that any disorder not recognized by the DSM V is not accepted in the scientific community and evidence related to it must be excluded.  On the flip side, the footnote could be used against us in the future if we want to raise some kind of mental health defense that relies on some kind of disorder not recognized by the DSM.

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