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Court Discusses Hearsay in Establishing Criminal History


On this proceeding, the court argues on the matter that in what extent can a psychiatrist rely on out-of-court materials, such as pre-sentence reports and department of parole records, in compiling a history of sex offenses committed by a man in order to formulate a psychiatric opinion and whether the man has a mental abnormality as that term is defined in the law.

A man was convicted of attempted rape in the first degree of a 13-year-old victim. The decision of the offense is considered established and may not be arguable. The records from the proceeding are acceptable at trial. In addition, the man’s criminal history includes a number of additional convictions. Previously, the man was convicted with rape in the third degree were the victim was a 15 years old. The underlying facts supported by court felony complaint sworn under oath by victim, grand jury decision, presentence report and certificate of conviction. The man was also convicted with rape and sodomy in the first degree when he engaged in forcible sexual intercourse with his 12-year-old daughter. Moreover, the man was convicted with impairing the morals of a minor when he allegedly fondled the 11-year-old victim. Lastly, the man also convicted with attempted assault when he allegedly fondled the eight-year-old victim.
At trial, the complainant presents the testimony of a licensed social worker who compiled the documents settling forth the man’s criminal history. The woman’s testimony established that she collated the documents from various sources and compiled a report used by the office of mental health colleagues in the proceedings. Afterward, the testimony of the complainant’s expert psychiatrist established that he relied upon the same documents, as well as his interview with the man, in formulating his expert opinion.

A New York Criminal Lawyer said consequently, the complainant’s expert testified that the man suffers from pedophilia, paraphilia and antisocial personality disorder. However, the pedophilia diagnosis hinged on the evidence of sexual contact with prepubescent girls and the only evidence of such misconduct is the two incidents happened previously.

On trial, the court asked the psychiatrist if he didn’t have the facts of the man’s previous offence would his conclusions as to the man’s three diagnoses, as well as the fact that he had a mental abnormality, will be the same. A Westchester County Criminal Lawyer said the psychiatrist then responded and states that the man would still have the mental abnormality.

It reveals that if the previous incidents were excluded from consideration, the diagnosis of pedophilia could not stand and the expert would instead classify the man as suffering from paraphilia and antisocial personality disorder. Consequently, the attorney general’s office argues that the documentary evidence is sufficiently reliable for the expert to render a diagnosis. The man however argues to the contrary that reliance on the documents is not reasonable.

Based on records, the sex offender management and treatment act does not by its terms clarify to what extent hearsay may be employed at trial of a petition for civil management, either generally, or for the purpose of providing a basis for expert opinion. Further, the mental hygiene law contains some evidentiary rules specific to civil management proceedings. The section provides that any relevant written reports of psychiatric examiners shall be acceptable, regardless of whether the author of the report is called to testify, so long as they are certified. Moreover, under the law the examining psychiatrist’s report is acceptable at the probable cause hearing or at proceedings relating to the imposition of strict and intensive supervision. At trial, the expert’s report is acceptable only if the expert is unavailable or if good cause is shown. No argument has been offered that good cause exists for introduction of the report. Since the same rules of evidence have been applied to expert reports as well as to in court testimony at trial, the fact that the expert’s report containing multiple layers of hearsay may be admissible in evidence does not mean that every entry in the report is acceptable.

A New York Sex Crimes Lawyer said based on records, even if the reliability of the hearsay evidence is established, the hearsay evidence may not form the sole basis for the expert’s opinion on an ultimate issue in the case. Rather, the hearsay evidence may only form a link in the chain of data which led the expert to his or her opinion.

Consequently, on other states with similar sex offender civil management acts have at times permitted experts to rely on trustworthy hearsay in establishing the man’s criminal history, so as to render a diagnosis. However, in many of those states, hearsay is specifically permitted by law, and thus those determinations are of limited guidance.

Similarly, as to previous offense, the certificate of conviction indicates that the man pleaded guilty to attempted assault, which again, has not been shown to require a finding of sexual misconduct. The attempted assault convictions by their nature are not sex offenses. The complainant’s expert admitted at trial that he could not charge any sexual activity from the fact of the convictions alone. No proof was included in a signed complaint, or even a criminal complaint to substantiate the alleged underlying facts. Nor was any evidence submitted to establish that the original court records were examined in connection with the preparation of the reports. The court would have possibly been able to find or infer the presentence report that had been prepared in connection with sentencing proceedings for the same underlying offense, that the probation department examined original records and sworn statements in compiling the data. No such finding or inference is possible.

The man stated to the psychiatrist that he had nothing to say with regard to one of the attempted assault convictions, and denied any sexual contact as to the other offense and the statements remained unsupported. Of particular concern is the fact that the entire diagnosis of pedophilia depends upon the unconfirmed reports. As the psychiatrist admitted, without the reports, there is no basis for a finding of sexual conduct toward prepubescent girls, and thus no basis for the finding of pedophilia. The entire diagnosis of pedophilia is based upon unreliable hearsay evidence. The unreliable hearsay evidence is not merely a link in a chain of data supporting a diagnosis of pedophilia, but the entire foundation for such testimony.

Subsequently, the record have been made at the time of the act, transaction, occurrence or event, or within a reasonable time assuring that the recollection is fairly accurate and the entries routinely made. The records were made some 6 years or 30 years after the events surrounding the attempted assault convictions, which is clearly not a reasonable time after the occurrence. The element of contemporary has been found lacking when the record is created a matter of months after an event.

As a result, the documents relied upon to establish the facts underlying the rape and sodomy conviction and rape in the third degree convictions were properly relied upon by the expert, who stated that it was accepted practice to rely on such documents, in view of their reliability. The documents relied upon to establish the facts of the attempted assault convictions at it is not reliable, and the expert’s conclusion based on the documents that the man suffers from pedophilia is disregarded by the court and excluded from the evidence in the case.

Victims of any crime such as rape usually suffer from anger and fear but the most difficult to handle with is the feeling of being embarrass in facing other people. If you want to help your love one in obtaining their rights, you can have the Kings Sex Crime Lawyer to assist you all throughout the process. If you prefer to have the Kings Criminal Lawyers at Stephen Bilkis and Associates the team will always be ready to provide you with legal assistance.

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