May the DA Use an Expert Witness in an SVP Trial?

In November 2018, as Marvin Sloan was finishing his prison term for a sex offense, the Sacramento County District Attorney filed a petition to commit Mr. Sloan as a Sexually Violent Predator (SVP) under Welfare & Institutions Code § 6600, et seq. 

Mr. Sloan therefore was not paroled from prison and instead remained in custody, pending his SVP trial. 

In 2019, the Sacramento County Superior Court held a probable cause hearing under Welfare & Institutions Code § 6602 for such a trial.  Dr. Jocelyn Chen and Dr. Roudabeh Rabhar both testified for the People.  The judge found sufficient probable cause to have an SVP trial.

In April 2021, as the SVP trial was about to begin, the People notified the judge that Dr. Rabhar was no longer available as an expert due to private medical and personal matters.  The People then disclosed Dr. Craig King as a replacement evaluator.

Dr. King had prepared a report on Mr. Sloan, but had never interviewed him.  Instead, he reviewed documents from the Department of Corrections and Rehabilitation, Mr. Sloan’s Department of State Hospital records, prior SVP evaluations of Mr. Sloan and documents related to Mr. Sloan’s offenses.

Mr. Sloan filed a motion to strike Dr. King’s evaluation, arguing that Dr. King’s appointment as a testifying doctor at Mr. Sloan’s trial was improper because the People failed to show Dr. Rabhar was unavailable, that Dr. King was only disclosed on the eve of trial and because Dr. King’s report was deficient because he never interviewed Mr. Sloan.

The judge allowed Dr. King to then testify at the SVP trial as an expert.  Dr. King then testified at trial and the judge found that Mr. Sloan qualified as an SVP and ordered him committed to the Department of State Hospitals.

Mr. Sloan appealed this order to the California Court of Appeal, Third Appellate District.  His sole argument on appeal was that the trial court judge (Allen H. Sumner) erred in allowing the People to use a privately retained expert to testify in trial, which violates Needham v. Superior Court (2022) 82 Cal. App. 5th 114. 

In Needham, at p. 128, the California Court of Appeal, Fourth Appellate District, in Orange County, held that the People have no right to privately retain an expert under the Sexually Violent Predators Act (SVPA).

The California Court of Appeal, Third Appellate District, agreed. 

Its ruling first explained the SVPA’s civil commitment scheme to confine and treat a limited group of criminal offenders who are “extremely dangerous as a result of mental impairment and who are likely to continue committing acts of sexual violence even after they have been punished for such crimes.”  Hubbart v. Superior Court (1999) 19 Cal. 4th 1138, 1143-1144.

The Third Appellate District then acknowledged that this scheme “is an extraordinary deprivation of a person’s liberty: it enables the state to indefinitely detain a person not for a crime actually committed, but for a crime that may be committed in the future.” Id.  Therefore, the scheme “must be carefully implemented and applied only where there is a high degree of certainty that it is warranted.”

Critical to this implementation is “multiple evaluations by independent experts.”  Needham, supra, 82 Cal. App. 5th at 120.  This process expressly provides that a person subject to an SVP petition may retain an expert witness to testify at trial (Welfare & Institutions Code § 6603(a)), but it makes no mention of the People’s right to do the same.  Needham, supra, at 125 – 127. 

This invokes the statutory principle that the “expression of one thing in a statute ordinarily implies the exclusion of other things.”  In re J.W. (2002) 29 Cal. 4th 200, 209.  Although this principle is not “applied invariably and without regard to other indicia of legislative intent” (Id.), the carefully crafted SVPA demonstrates that the Legislature intended to provide a “one-sided right” to retain a testifying expert.  Needham, at 126.

Allowing the People to bypass these safeguards by presenting testimony from their own expert would seriously undermine these safeguards.  Needham, at 127.

For these reason, the Third District therefore reversed the order declaring Mr. Sloan to be an SVP and committing him to the Department of State Hospitals.  The Third District then remanded the case back to the trial court with an order excluding the testimony of Dr. King and to conduct a new trial.