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NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Hunt, 462 Mass. 807 (2012)

CONTRIBUTING EDITOR: DANIELLE FLYNN I. Procedural History

A jury civilly committed the defendant as a sexually dangerous person following a trial in the Superior Court.1 The Appeals Court affirmed his commitment.2 The Supreme Judicial Court granted the defendants application for further review.3 II. Facts On December 3, 1990, the defendant pleaded guilty to three indictments charging rape of a child and he was sentenced concurrently to State prison for eight to fifteen years on each of the indictments.4 In 2004, the Commonwealth filed a petition seeking civil commitment of the defendant as a Sexually Dangerous Person.5 At trial, the Commonwealth offered the testimony of two examiners and a forensic psychologist, each of whom opined that the defendant suffered from pedophilia, has a mental abnormality as defined by statute, and is likely to commit further sexual offenses if not confined.6 Evidence that the defendant refused to participate in sex offender treatment programs while incarcerated was introduced and used by the experts over the defendants objections.7 The defense put on three experts, two of which opined that the defendant did not have a mental abnormality as defined by statute.8 The judge gave several jury instructions on the issues of mental abnormality and sexual dangerousness,

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Commonwealth v. Hunt, 462 Mass. 807, 808 (2012). Id. at 809. Id. Id. at 808. Id. at 809. Id. Commonwealth v. Hunt, supra at 810. Id. at 809.

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which the defendant now claims were erroneous.9 On June 3, 2008, following the trial, a jury found the defendant to be a sexually dangerous person.10 III. Issues Presented 1. Did the possibility that evidentiary use would be made of defendants refusal to participate in sex offender treatment programs constitute compulsion and violate the defendants privilege against selfincrimination because the admission of such evidence constitutes a penalty to compel testimony?11 2. Are unsubstantiated rumors of rape admissible in sexually dangerous person civil commitment proceedings?12 3. Did the judges instruction that, [i]n this case, all the experts agreed that the mental abnormality at issue is pedophilia, although the experts disagree about whether [the defendant] meets the clinical diagnostic criteria for pedophilia give the jury the false impression that all the experts agreed that pedophilia is a mental abnormality?13 4. Did the judges instruction, [y]ou may conclude that [the defendant] is likely to commit a future act of sexual misconduct if you find that [the defendant] has not committed any act of sexual misconduct during his incarceration, give improper legal validation to the prosecutors argument?14 IV. Holdings and Reasoning A prisoners participation in sex offender treatment is not compelled by the possible evidentiary use of his refusal at a civil commitment proceeding, and therefore, reference at trial to the defendants refusal to participate in sex offender treatment did not violate the defendants rights under either the United States Constitution or the Massachusetts Declaration of Rights.15 A statement is compelled where the penalties for the prisoner refusing to incriminate herself are so severe that they are capable of coercing incriminating testimony.16 In cases where the Supreme Court of the United States has found compulsion, the severe

Id. at 824-825. Id. at 809. 11 Id. at 811. 12 Id. at 821-822. 13 Commonwealth v. Hunt, supra at 824. 14 Id. at 824-825. 15 Id. at 815-816. 16 Id. at 812, quoting McKune v. Lile, 536 U.S. 24, 49 (2002) (O'Connor, J., concurring in the judgment).
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penalty that compelled the self-incrimination was automatically imposed following the defendants refusal to self-incriminate.17 In this case, there is no mandatory penalty arising from the refusal to participatethe prisoner only faces a possibility that the Commonwealth will attempt to use the refusal as evidence if it seeks to civilly commit him as a sexually dangerous person.18 In addition, the defendants refusal to participate in sex offender treatment is not being used against him in a criminal proceeding; his refusal is insufficient alone to support a finding of sexual dangerousness, and the Commonwealth is merely giving evidentiary value to his refusal.19 Although there was no constitutional violation and evidence that a defendant in an SDP civil commitment proceeding did not receive sex offender treatment is admissible, it is error to admit evidence that a defendant refused sex offender treatment where he could receive such treatment only by waiving confidentiality.20 The jury may be inclined to believe that the defendant refused treatment because he did not want to be treated rather than the waiver of confidentiality.21 Thus, the probative value of the refusal is substantially outweighed by the risk of unfair prejudice.22 Therefore, the judge erred in admitting evidence that the defendant refused sex offender treatment and should have admitted only evidence that he did not receive such treatment.23 Unsubstantiated rumors of rape that would be relevant only if offered for their truth are plainly not admissible in sexually dangerous person civil commitment proceedings.24 The evidence was not contained in an admissible incident report and there is no applicable common-law rule of evidence.25 The instruction incorrectly gave the jury the impression that all experts agreed that pedophilia is a mental abnormality.26 Two experts testified that the defendant may have met the criteria for pedophilia but did not meet the legal definition of mental abnormality.27 The judges instruction

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See Lefkowitz v. Cunningham, 431 U.S. 801, 806-808 & n. 5 (1977). Commonwealth v. Hunt, supra at 815. Id. Id. at 816-818. Id. at 819. Id. Id. at 820. Commonwealth v. Hunt, supra at 823. Id. Id. at 824. Id.

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mischaracterized their opinions.28 The erroneous jury instruction may have given inappropriate legal validation to the prosecutors argument.29 If the word even had been included in the instruction, it would have informed the jury they need not find that the defendant committed any act of sexual misconduct while in prison to find the prisoner sexually dangerous.30 Thus, the instruction was erroneous and not harmless.31

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Id. Id. at 825. Commonwealth v. Hunt, supra at 825. Id.

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