Erroneous Exclusion of Admissible Expert Testimony in “Sexually Violent Predator” Trials in Texas
by John Tennison, MD, October 1, 2011
If I had not personally experienced my own expert testimony being ignored, disregarded, and misrepresented to the jury by both Texas prosecution attorneys and the judge of 435th District Court, Montgomery County, Texas, I would have found it hard to believe that such taxpayer-supported processes were occurring in Texas or any other state bound by the United States Constitution. Moreover, at least one other expert witness prior to me, Dr. Anna Shursen, had her admissible testimony erroneously excluded by the 435th District Court on two occasions. In two trials where Dr. Shursen's testimony was excluded by the 435th District Court, as well in one trial where my testimony was excluded by the 435th District Court, the Ninth District of Texas at Beaumont has overturned such erroneous exclusion of admissible expert testimony in all three instances.
The first instance came when a Memorandum Opinion (IN RE COMMITMENT OF DAVID DODSON) from the Court of Appeals, Ninth District of Texas at Beaumont, was delivered on April 22, 2010. This first opinion contained the following comments:
"We conclude that Dr. Shursen possessed the necessary qualifications to provide an opinion related to her assessment of the risk that Dodson would commit a future act of sexual violence, a component part of the broad-form issue the jury evaluated and answered."
"Additionally, at the point the State objected, the jury had already heard Dr. Shursen's opinion. "A trial court abuses its discretion in excluding expert testimony if the testimony is relevant to the issues in the case and is based on a reliable foundation." State of Tex. v. Cent. Expressway Sign Associates, 302 S.W.3d 866, 870 (Tex. 2009). On this record, we conclude the trial court abused its discretion by refusing to allow Dr. Shursen to further explain the basis of her conclusion that Dodson was not predisposed to engage in a predatory act of sexual violence, a component of his qualifying as a "sexually violent predator" as defined by statute. See TEX. HEALTH & SAFETY CODE ANN. § 841.003."
"We are also not persuaded by the State‟s argument that Dodson was not harmed by the trial court‟s ruling. While Dr. Shursen stated her conclusion that she did not believe that Dodson currently had a "behavioral abnormality" before the State lodged objections, Dr. Shursen was never allowed to explain that her conclusion had been based on her experience and testing in evaluating the risk that Dodson would reoffend."
"As the Texas Supreme Court has noted, "It is well settled that the naked and unsupported opinion or conclusion of a witness does not constitute evidence of probative force and will not support a jury finding even when admitted without objection." Dallas Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377, 380 (1956). It is the basis of the witness's opinion, and not the witness's bare opinion, that has evidentiary weight. See Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999). The fact that the trial court allowed Dr. Shursen to express her mere conclusion, but refused to allow her to explain the basis for the opinion, stripped her mere conclusion of its weight. In a case in which the State's burden was to prove beyond a reasonable doubt that Dodson was predisposed to reoffend, we are unable to conclude that admitting Dr. Shursen's opinion without also allowing her to express her reasons for reaching her opinion made the trial court's error harmless."
"The jury should have been allowed to hear Dr. Shursen's further explanation about that conclusion. Because the trial court erred by excluding relevant and material testimony on a critical issue, and because no other expert testified in Dodson's favor on the critical issues in his case, the law requires that we reverse and remand Dodson's case for a new trial."
"Because the trial court committed harmful error, we sustain Dodson's first issue."
The second instance of reversal of the exclusion of Dr. Shursen's testimony was delivered in a Memorandum Opinion (IN RE COMMITMENT OF MICHAEL WAYNE BOHANNAN) by the Court of Appeals, Ninth District of Texas at Beaumont, on July 22, 2010. This second opinion contained the following comments:
"Because we find the trial court erred by excluding the testimony of Bohannan's sole expert witness, we grant Bohannan's request for a new trial. "
"According to Bohannan, had the Legislature intended to limit the persons qualified to assess whether a person has a behavioral abnormality predisposing him to reoffend to psychiatrists and psychologists, "[i]t could have so provided." Furthermore, Bohannan asserts that the Texas Rules of Evidence do not require that an expert possess any specific type of degree, and instead, he points out that Rule 702 provides: 'If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.' "
"Prior to trial, the State filed a motion to exclude Dr. Shursen's testimony. The trial court conducted a Daubert hearing, and during the hearing, Dr. Shursen testified regarding her qualifications as an expert. According to Dr. Shursen, she has a bachelor's degree of science, and her advanced mental health degrees include a master‟s degree in counseling and a doctorate in family sciences and family therapy."
Page 7 (Footnote to Define "Daubert" Hearing)
"Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.E.2d 469 (1993) (a trial court's preliminary assessment of whether the reasoning or methodology underlying an expert's testimony is scientifically valid and relevant to the facts in issue); see also E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995)."
" 'The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles.' "
"Although the record before us in this case includes a Daubert hearing, in which the parties further explored Dr. Shursen‟s qualifications as an expert, the result we reach here is no different than the one we reached in Dodson."
"When a trial court excludes expert testimony, the Texas Supreme Court has recently explained: "A trial court abuses its discretion in excluding expert testimony if the testimony is relevant to the issues in the case and is based on a reliable foundation." State of Tex. v. Cent. Expressway Sign Associates, 302 S.W.3d 866, 870 (Tex. 2009). Even if we or the trial court disagrees with an expert's opinion, the question the court resolves in determining the admissibility of the expert's testimony is whether the expert's testimony is based on a reliable foundation and whether the testimony is relevant to the case. See id. We conclude that Dr. Shursen's proffered testimony was both relevant and based on a reliable foundation. TEX. HEALTH & SAFETY CODE ANN. § 841.003. We hold the trial court erred in excluding Dr. Shursen's opinion on whether Bohannan was likely to reoffend. "
"The trial court conducted the hearing on Dr. Shursen's qualifications after voir dire, and then struck her as an expert immediately before the parties began to present the evidence to the jury. The record further reflects that Dr. Shursen had a sufficient foundation to provide an expert opinion to the jury."
"Because the trial court committed harmful error, we sustain Bohannan's third issue. We reverse and remand Bohannan's case for a new trial."
In a third opinion delivered June 16, 2011 (IN RE COMMITMENT OF RAYMOND SCOTT HINKLE), the Court of Appeals, Ninth District of Texas at Beaumont, reversed an erroneous ruling of the 435th District Court, in which my testimony appeared to the Court of Appeals to have been "ignored or disregarded” (page 20, Memorandum Opinion).
Other highlights from this Memorandum Opinion by the Court of Appeals, Ninth District of Texas at Beaumont, include the following:
“Both the State and the trial court appear to have either ignored or disregarded Tennison's unequivocal denial of the State's questions about whether Tennison thinks that behavioral abnormality as defined by the Texas Sexually Violent Predator Statute even exists and whether Tennison thinks there is any way that an individual could have a behavioral abnormality.”
“His testimony would have provided the jury insight on one of the critical issues in the case, namely the risk that Hinkle would reoffend in a sexually violent manner.”
"Because the trial court erroneously excluded admissible expert testimony concerning a critical issue in the case, we hold that the trial court's error probably resulted in an improper judgment. State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). Because the trial court erred by excluding relevant and material testimony on a critical issue, and because no other expert testified for Hinkle on the critical issues for which expert testimony was required, we reverse the judgment and order of commitment and remand the case to the trial court for a new trial. See Tex. R. App. P. 44.1(a)(1)."
Analogy to Steven Spielberg’s "Minority Report"
My experiences dealing with state prosecutors and the 435th District Court, Montgomery County, Texas, reminded me of the Steven Spielberg movie, “Minority Report” (based on the short story, "The Minority Report" by Philip K. Dick"). One of the many fascinating issues dealt with by the movie was to show the errors and injustice that can occur when differences in opinion among experts are intentionally suppressed. In the movie, the experts were 3 “Precogs,” psychic individuals whose precognitions would foretell of murders that had not yet happened. Yet, on some occasions, 1 of the 3 Precogs would disagree with the other 2 as to whether a future murder was actually going to occur. When 1 of the 3 Precogs was of the opinion that a murder was not going to occur, the opinion (AKA the “minority report”) of that Precog was destroyed so as to create the false impression of unanimity, infallibility, and to eliminate any doubts on the part of the public.
Every time the 435th District Court, Montgomery County, Texas erroneously excludes admissible expert testimony, something analogous to the destruction of the “minority report” in Spielberg’s movie occurs.
Here is an excerpt of dialog from “Minority Report,” (at 59 minutes, 42 seconds into the movie):
Dr. Iris Hineman: "I can't help you. Nobody can. The Precogs are never wrong. But occasionally, they do disagree."
Chief John Anderton: "What?"
Dr. Iris Hineman: "Most of the time, all three Precognitives will see an event in the same way, but once in a while, one of them will see things differently than the other two."
Chief John Anderton: "Jesus Christ. Why didn't I know about this?"
Dr. Iris Hineman: "Because these minority reports are destroyed the instant they occur."
Chief John Anderton: "Why?"
Dr. Iris Hineman: "Obviously, for PreCrime to function, there can't be any suggestion of fallibility. After all, who wants a justice system that instills doubt. It may be reasonable, but it's still doubt."
Chief John Anderton: "Are you saying I've haloed innocent people?"
Dr. Iris Hineman: "I'm saying that, every so often, those accused of a PreCrime might, just might, have an alternate future."
Steven Spielberg's Comments on Preventive Detention
In an interview of Steven Spielberg filmed on the eve of the theatrical release of "Minority Report," Steven Spielberg made some comments about preventive detention. These comments are included in the supplemental material to the home video release of "Minority Report," in the section titled, "IN CLOSING: THE MORALITY OF PRECRIME." Here's what Spielberg said:
"If there was a system in place that was infallible, that was basically blessed by the Supreme Court of the United States, and voted on in a national referendum by the people of this country, that allows you to, you know, change the Bill of Rights to simply stop a murder from happening; and if there was never a flaw in the system, I would be in favor of that. But if there was the tiniest chance -- one thousandth of one percent -- that the person whose being arrested for a crime he or she has not yet committed, and incarcerated for an indeterminate amount of time, if that person could be innocent, if there was a little fly in the ointment of a PreCrime system, then none of us would ever want to see that happen, and change, you know, the rights that we have fought and died for in this country."
For an excellent discussion of the current state of implementation of “Sexually Violent Predator” laws, I highly recommend Chapter 1 of the following 2011 Oxford University Press book:
“Justice Perverted: Sex Offense Law, Psychology, and Public Policy” by Charles Patrick Ewing, J.D, Ph.D. Dr. Ewing is a graduate of Harvard Law School; was a post-doctoral fellow at Yale University's Institution for Social and Policy Studies; and earned his Ph.D. in psychology from Cornell University.