Historically, under New York criminal law, an expert witness was entitled to base his or her expert opinion only upon facts personally known to the expert or contained in the evidence at a trial. That traditional approach was liberalized by the New York Court of Appeals in the cases of People v Stone (1974) and People v Sugden (1974).
In Sugden, the Court ruled that in addition to the traditional bases on which an expert’s opinion could rely, an opinion could be based on “material, albeit of out-of-court origin, if it is of a kind accepted in the profession as reliable in forming a professional opinion” or information coming from a witness subject to full cross-examination at trial. The first of these additional bases for expert opinion has come to be known as the “professional reliability exception.” In Hambsch v New York City Tr. Auth. (1984), the Court of Appeals explained that the professional reliability exception requires “evidence establishing the reliability of the out-of-court material.”
Here, Dr. EF’s opinion regarding the respondent’s propensity to escalate his exhibitionism and voyeurism to a hands-on or contact offense relied upon unspecified “studies”. Clearly, it was not reliable and cannot be credited weight. Dr. EF’s description of the said studies did not satisfy any of the requirements of the professional reliability exception. She did not identify, in any manner, how the studies were conducted or what their specific conclusions were. She did not indicate that any of these studies were considered reliable in any respect within her profession. She did not provide any information or any opinion which might indicate that any of these studies had, in fact, produced reliable results.
The result of the Static 99 which showed that respondent was at a high risk to reoffend was also not given credit. Even assuming that the Static 99 result would qualify as a sound basis for an opinion under the professional reliability exception, it was not clear from the testimony of Dr. EF what the Static 99 concluded the respondent was at a high risk to do and whether that high risk related to the commission of a sex offense as defined under article 10.
Regardless, the evidence in the instant case, and Dr. EF’s opinion were based on much more than the problematic sources. When the bases for Dr. EF’s opinion which were clearly problematic are put aside, there was still probable cause to believe that PH has a propensity to commit the kind of hands-on offense he committed in 1993 and has serious difficulty in controlling his behavior in committing such an offense.
First, the respondent’s voyeurism and exhibitionism are conducts with compulsive quality. Given PH’s consistent history over decades of exposing himself and masturbating in public, despite numerous arrests, convictions, prison terms and sex offender treatment programs, it seems apparent that if he were to be released to the public again, and stimulated again by the presence of women who would sexually arouse him, he would simply do what he has so consistently done throughout his adult life. Neither arson nor assault was in question here.
Second, PH’s behavior has, as Dr. EF testified, a predatory and stalking quality. According to Dr. EF, respondent “focuses” on his victims through voyeurism and that focus then seems to lead inexorably to public masturbation. That was most apparent in the instant offense but is also apparent in his other public lewdness convictions.