(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued September 10, 1996 -- Decided December 11, 1996
Handler, J., writing for the Court.
The issue in this case is directed to the role of expert testimony in raising challenges to a
registrant's Scale score and the scope of community notification.
Registrant, G.B., was indicted for aggravated sexual assault, sexual assault, endangering the welfare
of a child, and child abuse. He subsequently pleaded guilty to one count of second-degree sexual assault.
G.B. was sentenced to five years at the Adult Diagnostic and Treatment Center at Avenel (“Avenel”). In
1994, during his sentence at Avenel, the Legislature enacted the Registrant Community Notification Law
(“RCNL” or “Megan's Law”), the overall purpose of which is to protect the community from the dangers
of recidivism by sex offenders. The RCNL requires that convicted sex offenders found to be “repetitive and
compulsive” register with local authorities and that the community be notified about certain sex offenders
classified as moderate or high risk. In 1995, the Supreme Court upheld the constitutionality of the RCNL.
G.B. was released from Avenel in June l995. Invoking the RCNL, the county prosecutor undertook
to classify him according to his risk of reoffense by applying the Scale promulgated by the Attorney General.
Under the Scale, the prosecutor ascribed to G.B. a numerical score of fifty-eight, resulting in a Tier Two or
“moderate-risk” classification, which, under the RCNL, triggers targeted or selective community notification
by the State.
G.B. sought judicial review of the prosecutor's determination. At an in camera judicial hearing, he
challenged the factual underpinnings of the State's calculation of his Scale score and the proposed scope of
community notification. The trial court rejected his arguments. G.B. also sought to challenge the predictive
value of the Scale for determining the risk of reoffense and the correctness of the Scale score as applied to
the circumstances of his offense. To support his claims, G.B. sought to introduce evidence from three
experts, including a psychiatric expert to evaluate his actual risk of reoffense. The trial court ruled that
expert testimony was unwarranted because the material factors in the Scale did not call for expert testimony.
G.B. appealed the trial court's decision.
The Appellate Division concluded that G.B. should be permitted to retain an expert and to present
testimony at the hearing to show that the variable factors in the Scale calculations as related to him, should
result in a lesser Tier classification. The Attorney General petitioned the Supreme Court for certification,
alleging that the Appellate Division's decision was too broad in permitting expert testimony and too lenient
in allowing a registrant's Scale score to be overridden. The Supreme Court granted the Attorney General's
petition for certification.
HELD: In limited circumstances, a registrant may introduce expert testimony at the judicial hearing in order
to establish the existence of unique aspects of his or her offense or character that render the Scale score
assigned under the Registrant Community Notification Law suspect.
1. Because the RCNL implicates significant personal rights, the judiciary has an important nondelegable
responsibility to ensure a proper balancing of the rights of registrants with the interests of the community.
(pp. 8-10)
2. Registrants may raise objections to the notification of classification in a judicial hearing in which the
State has the burden of going forward with its prima facie case, consisting of the evidence justifying the
proposed risk level and manner of notification. (pp. 11-13)
3. The State's prima facie case may be built on reliable hearsay. Once the State has proven its prima facie
case, the burden shifts to the registrant to prove, by a preponderance of the evidence, that the State's
determination does not conform to the law. (pp.13-14)
4. Although the Scale score is an important tool that the State can utilize both in meeting its initial burden
of coming forward with a prima facie case and in rebutting evidence introduced by a registrant contrary to
the State's position, a court should not rely solely on a registrant's point total when it conducts a judicial
review of a prosecutor's tier level classification or manner of notification decisions. Rather, tier
classifications are best made on a case-by-case basis. (pp.14-18)
5. The Scale, which is sufficiently probative and reliable to fulfill the State's burden of presenting a prima
facie case, is to be afforded substantial weight and will have binding effect unless and until a registrant
presents subjective criteria that would support a court not relying on the tier classification recommended by
the Scale. (pp. 18-19)
6. Only in the unusual case where relevant, material, and reliable facts exist for which the Scale does not
account, or does not adequately account, should the Scale score be questioned. Those facts must be
sufficiently unusual to establish that a particular registrant's case falls outside the “heartland” of cases.
(pp.19-22)
7. Even a registrant whose Scale score was properly computed and whose case does not fall outside the
“heartland” of cases in terms of his risk of reoffense may seek to narrow the scope of community
notification. (pp. 22-23)
8. A registrant is entitled to lodge three distinct challenges to his tier designation, all of which must relate to
the characteristics of the individual registrant and the shortcomings of the Scale in his particular case.
(pp.23-24)
9. The trial court has the ultimate authority to decide what weight to attach to the Scale and what weight to
attach to expert testimony, which may take the form of reports or affidavits. Trial courts, however, must
ensure that tier designation hearings are not converted into prolonged battles of the experts. (pp. 24-27)
10. If a trial court determines that the proffered evidence is not relevant to the issues raised, then it shall
explain on the record the decision to exclude the evidence.
11. Here, the expert evidence proffered by G.B., if believed, could tend to establish that his case includes
important factors not addressed or adequately addressed by the Scale score calculation. (pp.28-30)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE STEIN, concurring, had a separate view concerning the constitutionality of the retroactive
application of the Community Notification Law.
JUSTICES POLLOCK, O'HERN, GARIBALDI and COLEMAN join in JUSTICE HANDLER's
opinion. JUSTICE STEIN filed a separate concurring opinion. CHIEF JUSTICE PORITZ did not
participate.
SUPREME COURT OF NEW JERSEY
A-
27 September Term 1996
IN THE MATTER OF REGISTRANT G.B.:
APPLICATION FOR JUDICIAL REVIEW OF
NOTIFICATION AND TIER DESIGNATIONSee footnote 1
Argued September 10, 1996 -- Decided December 11, 1996
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
286 N.J. Super. 396 (1996).
The opinion of the Court was delivered by
HANDLER, J.
This is another case concerning a set of bills collectively
known as Megan's Law. The focus of the appeal is on the use of
expert testimony in determining under that law the risk of
reoffense posed by a paroled convicted sex offender.
We thus far have upheld the legislation requiring sex
offenders to register with law enforcement, N.J.S.A. 2C:7-1 to -5, and the act requiring law enforcement, in certain
circumstances, to notify community groups and individuals of the
presence of sex offenders, N.J.S.A. 2C:7-6 to -11. Doe v.
Poritz,
142 N.J. 1 (1995). More recently, we upheld the Attorney
General's sex-offender classification guidelines, known as the
Registrant Risk Assessment Scale ("RRAS" or "the Scale"). In re
C.A.,
146 N.J. 71 (1996). Moreover, we have held that although
the Scale is entitled to deference, it is not immune from
challenge. Rather, it is merely a useful guide to determine the
amount of notification that a community should receive. The
responsibility for ultimately determining the proper scope of
notification is left to the trial court after a hearing on the
matter. Id. at 83; Doe v. Poritz, supra, 142 N.J. at 12, 107.
The issue in the case presently before us is a relatively
narrow one directed to the role of expert testimony in raising
challenges to a registrant's Scale score and the scope of
community notification. We hold that, in limited circumstances,
expert testimony may be introduced at the judicial hearing in
order to establish the existence of unique aspects of a
registrant's offense or character that render the Scale score
suspect. If believed, such evidence would lead to the
conclusions that the Scale does not adequately represent the risk
of recidivism for that particular registrant and that, therefore,
in such circumstances the scope of notification should be more
limited than that indicated by the registrant's Scale score and
attendant tier classification.
Registrant G.B. was indicted for aggravated sexual assault, sexual assault, endangering the welfare of a child, and child abuse. The indictment stemmed from allegations that registrant had engaged in multiple sexual encounters with his minor female cousin over a seven-year period when she was between the ages of five and twelve; the encounters were alleged to have occurred in the family home. In a statement to the police in November 1991, registrant admitted to several of the alleged encounters, including instances of fellatio and one incident of intercourse. Subsequently, he pleaded guilty, pursuant to a plea agreement, to one count of second-degree sexual assault in violation of N.J.S.A. 2C:14-2b; the prosecutor agreed to dismiss the remaining charges. Registrant was sentenced to five years at the Adult Diagnostic and Treatment Center at Avenel ("Avenel").
In 1994, during registrant's sentence at Avenel, the Legislature enacted the Registrant Community Notification Laws ("RCNL" or "Megan's Law"). N.J.S.A. 2C:7-1 to -11. The overall purpose of the law was to protect the community from the dangers of recidivism by sex offenders. N.J.S.A. 2C:7-1a. The RCNL requires that convicted sex offenders found to be "repetitive and compulsive" register with local authorities. N.J.S.A. 2C:7-2. The law also specifies that the community be notified about certain sex offenders classified as moderate- or high-risk. N.J.S.A. 2C:7-8c. In 1995, this Court upheld the constitutionality of the RCNL. Doe v. Poritz, supra, 142 N.J. 1.
Registrant was released from Avenel in June 1995. Invoking
the RCNL, the county prosecutor undertook to classify him
according to his risk of reoffense. As a means of determining
registrant's risk of reoffense, the prosecutor applied the Scale
promulgated by the Attorney General pursuant to the RCNL. The
Scale is composed of four categories: Seriousness of Offense,
Offense History, Characteristics of Offender, and Community
Support. Encompassed in these categories are thirteen factors
deemed relevant by the Attorney General to the risk of reoffense.
The Attorney General assigns a score to each registrant for each
of the thirteen factors. A registrant is given a score of zero
in each category if he is low risk, a one for moderate risk, and
a three for high risk. The thirteen factors are then assigned
varying weights, which are totalled to compute an overall Scale
score. Those registrants receiving a score of at least seventy-four (out of a maximum of 111) are initially considered by the
Attorney General to be "high-risk" or Tier Three. Registrants
receiving scores between thirty-seven and seventy-three are
considered "moderate-risk" offenders and fall within Tier Two,
while those registrants scoring below thirty-seven are considered
"low-risk" and are included within Tier One. See In re C.A.,
supra, 146 N.J. at 82-83; see also id. at 111 (reprinting Scale
calculations sheet).
Under the Scale, the prosecutor ascribed to G.B. a numerical
score of fifty-eight, resulting in a Tier Two or "moderate-risk"
classification. Under the RCNL, moderate-risk offenders trigger
targeted or selective community notification by the State.
N.J.S.A. 2C:7-8c. Accordingly, the prosecutor determined that
all schools within a two-mile radius of registrant's residence,
as well as several other community organizations, would be
notified of G.B.'s identity and presence.
The prosecutor based the classification on registrant's
Avenel records, police reports, and witness statements. Several
factors contributed to the Tier Two classification. First, the
prosecutor determined that because of the nature of the contact
between registrant and the victim and the victim's age, he posed
a high risk to the community. Specifically, the prosecutor
relied on the victim's allegation (and registrant's subsequent
admission to the police) of penetration and the significant
duration of the sexual relationship (approximately seven years).
Second, the prosecutor cited registrant's prior convictions for
burglary, theft, and illegal possession of a firearm as evidence
of his "anti-social" behavior. Finally, the prosecutor pointed
to registrant's poor treatment record at Avenel and his current
lack of community and family support.
Registrant sought judicial review of the prosecutor's
determination. At an in camera judicial hearing, he challenged
the factual underpinnings of the State's calculation of his Scale
score and the proposed scope of community notification.See footnote 2
First, he argued that his degree of contact with the victim
should not include penetration because he had pleaded guilty only
to second-degree sexual assault and because the only evidence of
penetration consisted of unconfronted allegations by the victim
and registrant's uncounseled admission to the police. Second, he
argued that because he had pleaded guilty only to one count of
sexual assault, the duration of the sexual contact should be
classified as less than one year (the lowest classification).
Third, he asserted that his conviction for unlawful possession of
a firearm was a regulatory offense and not indicative of anti-social behavior. Fourth, he contended that his community support
was strong in that he had lived in the area for years. Finally,
he asserted that the State's proposed community notification was
overly broad and arbitrary in its blanket inclusion of all
schools within a two-mile radius of his home.
The trial court rejected these arguments. It concluded that
ample evidence existed of penetration and multiple years of
sexual encounters and that actual convictions were unnecessary to
justify reliance on these factors. Moreover, it accepted the
description of unlawful possession of a firearm as "anti-social"
and the State's contention that registrant had little community
support. Lastly, the court found that notification of schools
and select other organizations within two miles of registrant's
home was not "arbitrary, capricious, unfair or unreasonable."
Registrant also sought to challenge the predictive value of
the Scale for determining the risk of reoffense and the
correctness of the Scale score as applied to the circumstances of
his offense. To support these claims, he sought to introduce
evidence from three experts: a psychiatric expert to evaluate
his actual risk of reoffense; a statistical expert to analyze
reoffense by sexual offenders, to evaluate whether registrant is
the type of sexual offender likely to reoffend, and to determine
the proper scope of community notification; and a human factors
expert to study whether a nexus exists between community
notification and the harm that the RCNL seeks to prevent. After
considering registrant's request, the trial court ruled that
expert testimony was unwarranted. Specifically, the court found
that "if we are going to place great weight on the risk
assessment scale, the testimony of these experts would be
irrelevant because the factors in the Scale, at least the ones
that are material here, do not call for expert testimony."
Registrant then appealed.
The Appellate Division concluded that "the registrant should
be permitted to retain an expert and to present testimony at the
hearing to show that the variable factors [in the Scale
calculations] as related to him, should result in a lesser Tier
classification."
286 N.J. Super. 396, 407 (1996). Thus, the
Appellate Division held that "registrant may attempt to prove
that the variable factors applicable to him, demonstrate that he
is so unlikely to reoffend, that he should be classified as a
Tier One offender, notwithstanding his actual Scale score."
Ibid. (emphasis added).
The Attorney General petitioned this Court for certification
alleging that the Appellate Division's decision was too broad in
permitting expert testimony and too lenient in allowing a
registrant's Scale score to be overridden. We granted
certification limited to those issues,
144 N.J. 174 (1996), and
now affirm.
We must consider the use of expert testimony and the weight to be accorded Scale score calculations under the RCNL within the framework of the role of the judiciary in overseeing this statutory scheme. As we have previously made clear in both Doe v. Poritz, supra, 142 N.J. 1, and In re C.A., supra, 146 N.J. 71, because the RCNL implicates significant personal rights, the judiciary has an important nondelegable responsibility to ensure a proper balancing of the rights of registrants with the interests of the community.
In upholding the constitutionality of the RCNL, we concluded
in Doe v. Poritz that (1) society may protect itself from
convicted sex offenders; (2) it may do so as long as the
protective means chosen are reasonably designed to safeguard the
public and are not punitive; and (3) the laws in their
application must in fact serve to protect society and not be
punitive. 142 N.J. at 12.
In evaluating the statute, we determined that the liberty
interests implicated by it were significant:
We believe a privacy interest is implicated
when the government assembles those diverse
pieces of information into a single package
and disseminates that package to the public,
thereby ensuring that a person cannot assume
anonymity -- in this case, preventing a
person's criminal history from fading into
obscurity and being wholly forgotten. Those
convicted of crime may have no cognizable
privacy interest in the fact of their
conviction, but the Notification Law, given
the compilation and dissemination of
information, nonetheless implicates a privacy
interest. The interests in privacy may fade
when the information is a matter of public
record, but they are not non-existent.
Due to the significant liberty and privacy interests at stake, the Court concluded that the judiciary had a special responsibility to ensure their adequate protection. We acknowledged the genuine threat to those interests posed by Tier Two and Tier Three classifications. Because "the statute sufficiently impinges on liberty interests to trigger both procedural due process and the fairness doctrine in our state," we held that "those [individuals] subject to the statute are
entitled to the protection of procedures designed to assure that
the risk of reoffense and the extent of notification are fairly
evaluated before Tier Two or Tier Three notification is
implemented." Id. at 30.
The judiciary's role was defined as overseeing the
classification and notification of those registrants considered
moderate- or high-risk who raised objections to their
classification. To ensure due process, the Court required that
sex offenders receive written notice of their tier classification
and proposed scope of notification, and information concerning
their right to retain counsel. Id. at 30-31. We also required
prosecutors to make their files available to registrants and
provided that offenders would have two weeks to object to the
proposed classification and notification. Ibid.; see
Registration and Community Notification Laws Bench Manual 46
(October 16, 1995) (hereinafter "Bench Manual").See footnote 3
For registrants who raised objections to the notification,
the Court provided a judicial hearing at which a judge would be
able to evaluate the merits of the parties' contentions. At the
hearing, the State was given the burden of going forward with its
prima facie case, consisting of that evidence justifying the
proposed risk level and manner of notification. Doe v. Poritz,
supra, 142 N.J. at 32. Once the prosecutor met the burden of
going forward with the prima facie case, the offender bore the
burden of persuading the court by a preponderance of the evidence
that the proposed tier designation and notification did not
conform with the laws and the Scale. Ibid.; Bench Manual, supra,
at 60. As long as the prosecutor satisfied his or her burden,
the trial court had to "affirm the prosecutor's determination
unless it [was] persuaded by a preponderance of the evidence that
it [did] not conform to the laws and Guidelines." Doe v. Poritz,
supra, 142 N.J. at 32. If the court overruled the prosecutor's
proposed tier designation, it had to state on the record the
reason why the proposed designation did not conform to the law.
Id. at 31-32; Bench Manual, supra, at 60.
The admission of evidence at the hearings was left to the
sound discretion of the trial court, and the court was granted
"broad powers in controlling the conduct of the summary
proceedings." Bench Manual, supra, at 54.
The court shall control the manner of the
summary proceeding, which shall be in camera,
including determining whether and to what
extent production of witnesses and cross
examination shall be required or allowed,
basing its determinations on the apparent
complexity of the matter, the extent of doubt
concerning the correctness of the level and
manner of notification selected by the
prosecutor, as well as the apparent need for
prompt determination, presumptively present
in all cases. The rules of evidence shall
not apply and the court may rely on
documentary presentations, including expert
opinions, on all issues.
In order to ensure that the laws were applied in a manner consistent with procedural due process and sufficiently protective of the liberty interests at stake, the Court imposed several important procedural requirements on the statutory scheme, including the following: (1) that registrants' behavior in the community following imprisonment be a factor in tier classifications; (2) that risk of reoffense, as demonstrated by psychological profiles, be used to decrease tier classifications as well as to increase such classifications; (3) that Tier Two classifications occur only after individualized determinations of which organizations will be notified; (4) that, for Tier Two classifications, only organizations that care for or supervise women or children be notified (as opposed to all who are likely to encounter the registrant); (5) that, for Tier Three classifications, only those likely to encounter the registrant be notified (as opposed to broad, public notification); and (6) that judicial review follow all Tier Two and Tier Three classifications.See footnote 4 Id. at 29-30. The Court concluded that judicial review was necessary to protect the substantial
interests at stake and was to be based on the trial court's
independent review of the merits of the case.
In order for the State to meet more easily its prima facie case at the hearing and in order to comply both with the statute, N.J.S.A. 2C:7-8a, and with this Court's mandates in Doe v. Poritz, supra, 142 N.J. at 24 n.2, the Attorney General promulgated the Registrant Risk Assessment Scale. We upheld that Scale in In re C.A., supra, 146 N.J. at 100-09.
The Court in In re C.A. reiterated the point made in Doe v. Poritz that reviewing courts have an "obligation of providing procedural due process to ensure the appropriateness of a tier classification." Id. at 94 (citing Doe v. Poritz, supra, 142 N.J. at 39). That obligation requires courts to hold an evidentiary and investigatory hearing, ibid., at which any trustworthy evidence is admissible. Id. at 95.
The Court reaffirmed the structure of the hearing. The State has the initial burden of presenting a prima facie case, which may be built on reliable hearsay. Id. at 95-97.
Once the State has proven its prima facie case, the burden of proof and persuasion shifts to the registrant, and the court "shall affirm the prosecutor's determination unless it is persuaded by a preponderance of the evidence that it does not conform to the laws and Guidelines." Doe v. Poritz, supra, 142 N.J. at 32. If the [registrant] produces proof, whether in the form of reliable hearsay, affidavit, or an offer of live testimony, that is sufficient to raise a "genuine issue of material fact," that the
tier classification and the manner of
notification are inappropriate, then the
trial court should convene a fact-finding
hearing and permit live testimony. Brill v.
Guardian Life Ins. Co. of America,
142 N.J. 520, 534 (1995).
Once the registrant produces sufficient evidence to raise a
question of material fact, the court must conduct a full
evidentiary hearing at which time the State can supplement its
proofs or rely solely on its hearsay allegations. Ibid. The
court then must weigh the evidence and make a determination as to
whether the registrant has met his burden of persuasion.
In In re C.A., we recognized that the Scale score was an
important tool that the State could utilize both in meeting its
initial burden of coming forward with a prima facie case and
subsequently in rebutting evidence introduced by a registrant
contrary to the State's position. Moreover, "[t]he Scale gives
prosecutors a reasonably objective measure on which to assign
registrants to the low, moderate, or high tier classification."
Id. at 108. The Scale, however, was found to be only one
possible consideration. "The Scale . . . is not a scientific
device. It is merely a useful tool to help prosecutors and
courts determine whether a registrant's risk of re-offense is
low, high, or moderate." Ibid.
Because the Scale is merely a tool, we held in In re C.A.
that "a court should not rely solely on a registrant's point
total when it conducts a judicial review of a prosecutor's tier
level classification or manner of notification decisions." Ibid.
Therefore, "a court must review the correctness of the level and
manner of notification selected by the prosecutor." Ibid. Even
though "the Scale provides a useful guide for the prosecutors and
court to evaluate risk of re-offense," the court must still make
"a value judgment" in determining the proper tier classification
and scope of community notification. Id. at 109. Thus, courts
are not "to blindly follow the numerical calculation provided by
the Scale, but rather to enter the appropriate tier
classification" based on all of the evidence available to them.
Ibid. The determination of tier classification and scope of
notification "are best made on a case-by-case basis within the
discretion of the court." Ibid.
In sum, in In re C.A., we explained how the classification
process would work. Sex offenders who the State initially
determines, through the use of the Scale or other tools, should
be classified as moderate- or high-risk are to receive notice
informing them of the opportunity to object. At a hearing, the
State must introduce evidence justifying its initial
determination; in most instances that evidence will consist of
the Scale score calculations with the factual bases underlying
those calculations. A registrant then has the opportunity to
present contrary evidence to persuade the court that the proposed
tier classification is inappropriate. Based on all the evidence
adduced and any further evidence secured by the court itself, see
id. at 109, the court shall make appropriate findings and
conclusions. In re C.A., therefore, affirmed the principal first
enunciated in Doe v. Poritz that the ultimate determination of a
registrant's risk of reoffense and the scope of notification is
reserved to the sound discretion of the trial court.
No one disputes that a registrant must be permitted to challenge the factual bases underlying the Scale score calculations. Thus, as occurred with G.B. below, a registrant can introduce evidence to show, for example, that the duration of the offense was not as long as the State maintains in its Scale calculations. Of course, as we noted in In re C.A., the State is free to rely on hearsay statements to support its assertions and does not need to base its calculations surrounding the underlying offense solely on the facts of conviction. 146 N.J. at 88-93; see In re G.B., supra, 286 N.J. Super. at 403. However, the State's evidence is not immunized from challenge simply because the prosecutor can rely on hearsay and non-record facts. Rather, as the Attorney General recognizes, the ultimate determination of the facts underlying the Scale score calculations is left to the trial court after considering all relevant evidence.
Clearly, a registrant also can raise challenges to the "variable" factors that go into determining the Scale score. As noted earlier, the Scale consists of four categories that are accorded varying weights: seriousness of offense, offense history, characteristics of offender, and community support. Each of these categories employs different factors. The first
two categories, seriousness of offense and offense history, have
been termed "nonvariable factors"; the other two categories,
characteristics of offender and community support, have been
described as "variable factors." In re E.A.,
285 N.J. Super. 554, 561 (App. Div. 1995); see also In re C.A., supra, 146 N.J.
at 104-05 (terming the different factors "static" and
"dynamic").See footnote 5 Thus, a registrant, like G.B. here, can assert
that his community support is greater than that recognized by the
State in its Scale calculations. Again, the ultimate
determination is left to the trial court after considering all
relevant evidence.
More contentious is whether a registrant can raise
challenges to his tier classification beyond those challenges,
already described, which go solely to the propriety of the Scale
calculations. As should be evident by the discussion of Doe v.
Poritz and In re C.A., a registrant can make such challenges.
The Scale is only a tool, albeit a useful one. It does not
graduate to an irrebuttable presumption simply because it is
properly and accurately computed. Rather, the Scale provides a
guideline for the court to follow in conjunction with other
relevant and reliable evidence in reaching an ultimate
determination of the risk of reoffense posed by the registrant
and the appropriate notification due the community.
The Scale, though, is more than just a piece of evidence.
As previously recognized, it is sufficiently probative and
reliable to fulfill the State's burden of presenting a prima
facie case. In re C.A., supra, 146 N.J. at 107. Thus, the Scale
is presumptively accurate and is to be afforded substantial
weight -- indeed it will even have binding effect -- unless and
until a registrant "presents subjective criteria that would
support a court not relying on the tier classification
recommended by the Scale." Id. at 109. Moreover, "[a]ny
classification that is inconsistent with the classification based
on the Scale is subject to judicial review by either side through
appeal and any finding will have to be supported on the record."
Ibid.
Registrant here also attacks the Scale itself. He
challenges the predictive value of the Scale score calculations.
In fact, registrant maintains that the Scale does not accurately
measure the risk of reoffense. Registrant's general contention
has already been rejected by this Court in In re C.A., and we
continue to find the claim to be without merit. We exhaustively
reviewed the factors that went into the Scale and the weight that
those factors were afforded. Id. at 100-09. With one notable
exception,See footnote 6 we held that "the Scale is an appropriate and
reliable tool," which provides "a reasonably objective measure on
which to assign registrants to the low, moderate, or high tier
classifications." Id. at 107-08. Thus, a registrant ought not
to be allowed to continue to press the claim that the Scale is
presumptively unreliable. Rather, we continue to maintain that
the Scale is presumptively reliable.
Of course, in a particular case, a registrant may be able to
establish that the Scale score for that registrant does not
accurately reflect the risk of reoffense. In such a case,
however, the registrant is limited to showing that the Scale did
not accurately weigh certain factors as related to him or that
the Scale did not take into account certain peculiar factors of
the registrant's offense or history that might be relevant in
determining his risk of reoffense. Such evidence would certainly
be admissible.
We believe that few cases will involve facts that render the
Scale score suspect. In fact, as previously stated, a Scale
score calculation based on reliable evidence and properly
performed is presumptively reliable. Only in the unusual case
where relevant, material, and reliable facts exist for which the
Scale does not account, or does not adequately account, should
the Scale score be questioned. Those facts must be sufficiently
unusual to establish that a particular registrant's case falls
outside the "heartland" of cases.
We cannot define what those facts might be, but we can
provide some examples. Here, G.B.'s offense occurred in the
family home. The Scale calculations did not take this
circumstance into account when computing his risk of reoffense.
Registrant contends, with some support, that sexual offenders who
commit their offenses within the family home pose less risk to
the community than do other sexual offenders. See Robert J.
McGrath, "Sex Offender Risk Assessment and Disposition Planning:
A Review of Empirical and Clinical Findings," 35 J. Offender
Therapy & Comp. Criminology 328, 334 (1991) (stating that the
rate of recidivism among most incest offenders is approximately
10 percent or less, that the rate for rapists is between 7.7
percent and 35.6 percent, but that the rate for exhibitionists is
40.7 percent); Frank Tracey, et al., "Program Evaluation:
Recidivism Research Involving Sex Offenders" in Joanne G. Greer &
Irving R. Stuart, The Sexual Aggressor: Current Perspectives on
Treatment 211-12 (1983). Of course, we express no opinion here
about the validity of that proposition. Rather, we note that
arguments based on such evidence, if found persuasive by a court,
may support a claim that the Scale calculations, although
accurately performed, do not accurately establish the risk of
reoffense for a particular registrant. In such circumstances, a
Scale score may be "overridden."
Another, more common, example of facts not currently taken
into account by the Scale that may warrant a lowering of a
particular registrant's tier category concerns a registrant's
psychological state. In some instances, an expert evaluating a
registrant may believe that the registrant's psychological
profile makes him substantially less likely to reoffend than the
general sex offender.See footnote 7 The Scale takes into consideration
psychiatric profiles and other variable factors in such a way
that the categories may only add points to an offender's overall
score (albeit fewer than the points to be added from the
nonvariable categories). In other words, positive psychiatric or
psychological profiles and positive post-sentence behavior can
never lower an offender's overall score. Rather, positive
numbers attributable to such variable factors serve only to add
points, albeit fewer points, to a registrant's score. See Bench
Manual, supra, at 23-25. Given the Scale's failure to consider
positive psychiatric profiles and positive post-sentence behavior
as true mitigating factors that can reduce the projected risk of
reoffense, expert testimony may be essential for an accurate tier
designation, even to the point of overriding the Scale score.
The benefit of allowing testimony to override a tier
designation is that it can assist a court in arriving at a fairer
and more accurate tier determination. Although experts opine
that actuarial predictors are the best indicators of recidivism,
it seems incongruous, given the statute's allowance for
registrants to present evidence, see Doe v. Poritz, supra, 142
N.J. at 30, to afford a seemingly rehabilitated offender no
opportunity to alter his tier designation and corresponding scope
of notification.
A separate challenge that potentially could be raised to the
Scale score concerns the scope of community notification. Thus,
even a registrant whose Scale score was properly computed and
whose case does not fall outside the "heartland" of cases in
terms of his risk of reoffense may seek to narrow the scope of
community notification. Although we have allowed this type of
challenge, In re C.A., supra, 146 N.J. at 109, we foresee few
cases in which such a challenge will be successful. Indeed, the
scope of notification for each tier categorization has been
strictly defined by the Attorney General. See Bench Manual,
supra, at 62-63. We uphold these notification provisions.
However, in the unusual case, facts may exist that warrant a
narrowing of the notification (or, perhaps, even the expansion of
the notification).
We also conclude, in respect of the scope of notification,
that the variable factors should contribute, perhaps through
expert testimony, to narrow tailoring of community notification
to each registrant's individualized situation. In cases of
incest-type offenders, for example, registrants may be able to
show that normal Tier Two or Tier Three notification is
inappropriate, given the intrafamiliar nature of the offense.See footnote 8
In sum, we hold that a registrant is entitled to lodge three
distinct challenges to his tier designation. First, a registrant
may introduce evidence that the calculation that led to the Scale
score was incorrectly performed either because of a factual
error, because the registrant disputes a prior offense, because
the variable factors were improperly determined, or for similar
reasons. Second, a registrant may introduce evidence at the
hearing that the Scale calculations do not properly encapsulate
his specific case; or phrased differently, a registrant may
maintain that his case falls outside the "heartland" of cases
and, therefore, that he deserves to be placed in a tier other
than that called for by the prosecutor's Scale score. Finally, a
registrant may introduce evidence that the extent of notification
called for by his tier categorization is excessive because of
unique aspects of his case. Challenges to the Scale itself, or
challenges to the weight afforded to any of the individual
factors that comprise the Scale, are not permitted. Instead, all
challenges must relate to the characteristics of the individual
registrant and the shortcomings of the Scale in his particular
case.
We consider finally the admissibility, form, and weight of expert testimony in making any of the types of challenges that may be brought. For many of the challenges, expert testimony will be neither necessary nor helpful. For the remaining challenges, expert testimony in the form of reports or affidavits will suffice. The trial court has the ultimate authority to decide what weight to attach to the Scale and what weight to attach to expert testimony. It has the nondelegable responsibility to determine a registrant's tier classification and the scope of community notification.
This allocation of authority between courts and experts is firmly grounded. In In re D.C., 146 N.J. 31 (1996), the Court considered how trial courts should view their role in the presentation of expert testimony when a liberty interest is at stake. That case concerned the involuntary civil commitment of a
paroled convicted sex offender, D.C. The Court, in concluding
that D.C.'s commitment had comported with due process and
fundamental fairness, was careful to warn trial courts not to
allow their decisional processes to be overwhelmed by expert
testimony:
The final determination of dangerousness lies
with the courts, not the expertise of
psychiatrists and psychologists. Courts must
balance society's interest in protection from
harmful conduct against the individual's
interest in personal liberty and autonomy.
The ultimate decision on dangerousness is,
therefore, a legal one, not a medical one,
even though it is guided by medical expert
testimony.
We went on to state that "[courts must] reach a reasoned
determination informed by and founded on [expert] evidence, but
[are] not required to accept all or any part of the expert
opinions." Id. at 61. Similarly, in State v. Krol,
68 N.J. 236
(1975), the Court defined the scope of civil involuntary
commitment proceedings and periodic review hearings applicable to
criminal defendants acquitted by reason of insanity. The Court
made clear that the trial court, not the psychiatric expert, was
the decisionmaker:
It should be emphasized that while courts in
determining dangerousness should take full
advantage of expert testimony presented by
the State and by defendant, the decision is
not one that can be left wholly to the
technical expertise of the psychiatrists and
psychologists. The determination of
dangerousness involves a delicate balancing
of society's interest in protection from
harmful conduct against the individual's
interest in personal liberty and autonomy.
This decision, while requiring the court to
make use of the assistance which medical
testimony may provide, is ultimately a legal
one, not a medical one.
See also State v. Michaels, 136 N.J. 299, 321-22 (1994) ("[T]he relevance of expert opinion focusing essentially on the propriety of the interrogation should not extend to or encompass the ultimate issue of the credibility of the individual child as a witness."); State in the Interest of C.A.H. & B.A.R., 89 N.J. 326, 343-44 n.5 (1982) ("[E]xpert opinion on [a juvenile's] rehabilitative prospects . . . in a [juvenile] waiver hearing
. . . . cannot be a substitute for the court's ultimate, highly discretionary decision, reached through an application of all of the statutory criteria to all of the relevant evidence, that the waiver of juvenile court jurisdiction is appropriate."); State v. Fields, 77 N.J. 282, 307-08 (1978) ("The final decision on the need for and appropriate extent of restrictions on the committee's liberty is for the court, not the psychiatrist.") (emphasis added).
In addition to taking care not to abdicate decision-making responsibility to experts, trial courts must ensure that tier designation hearings are not converted into prolonged battles of the experts. A significant number of registrants may attempt to introduce expert testimony tending to rebut their Scale scores. Routinely allowing expert testimony to dominate the proceedings and to override tier designations could compromise the goals of reliability and consistency in tier designations.
However, trial courts are quite capable of restricting such
battles and keeping control of the proceedings. As the Court
stressed in Doe v. Poritz:
[t]he procedures we have adopted are intended
to assure fairness in implementing the law;
they are not to thwart its implementation,
and they should not be converted into long
drawn-out contests between experts.
Certainly we do not foreclose or discourage
the production of expert testimony on both
sides, but we grant to the court substantial
power, beyond that permitted or used in
ordinary litigation, to allow, reject,
control, and limit expert testimony in order
to render these proceedings administratively
effective, practical, and timely.
Accordingly, we hold that a registrant shall be permitted to
introduce expert evidence about his tier classification: (i) if
such evidence tends to establish that the Scale score does not
accurately or adequately take into account significant aspects of
the registrant's character or prior offense; (ii) if such aspects
would be relevant and material to the trial court's determination
of tier classification; and (iii) if such evidence would, in the
trial court's discretion, assist in the disposition of the case.
Such evidence can be introduced, at the trial court's discretion,
in the form of hearsay, written opinion, deposition-type
testimony, or live testimony. If the trial court determines that
the proffered evidence is not relevant to the issues raised, nor
essential to their resolution, then it shall explain on the
record the decision to exclude the evidence.
Here, registrant attempted to introduce the testimony of three experts. As explained by registrant's attorney:
[W]e seek three types of experts. I'd like to obtain a psychiatric expert to look at my client and evaluate the risk of recidivism, particular with respect to him, and also you'll see our objections later going to notification, who should be notified under tier two, if Your Honor finds him to be tier two classification. In that vein, I'd like to hire a statistical expert to review statistical analysis of recidivism and whether or not the studies and analyses indicate that my client is the type of person to recidivate, and more importantly, with respect to tier two notification, whether statistically, if he were to recidivate, or a person like him were to recidivate, whether it would be with persons who are members of the organizations that the Prosecutor's Office seeks to notify. And finally judge, I'd like to hire a human factors expert who will -- who will be able to conduct a study and analysis of whether or not notification at all bears any nexus to the prevention of the type of harm that the law seeks to preclude.
Application of the standards we have set forth to the expert testimony at issue here indicates that the proffered testimony of the psychiatric expert could tend to establish that registrant's case includes important factors not addressed or not adequately addressed by the Scale score calculations. Thus, if the psychiatric testimony is believed, registrant's case may not be accurately or fairly characterized by the Scale score. The statistical expert's testimony potentially could strengthen the psychiatric expert's testimony by showing that the factors the psychiatrist relies on are statistically relevant and important factors that should be considered in weighing the registrant's risk of reoffense. That possibility, and its probative worth,
however, would be subject to the trial court's assessment. The
human factors expert, on the other hand, apparently would have no
insights regarding any peculiar aspects of registrant's case.
Rather, the human factors expert's proffered testimony merely
would go to the accuracy of the Scale score in predicting the
general risk of recidivism. We have upheld the Scale's
predictive potential, In re C.A., supra, 146 N.J. at 107, and the
trial court would have no reason to revisit that decision.
This case, in particular, is one in which registrant
attempted to overcome a principal deficiency in the Scale -- the
failure to give any meaningful role to the variable factors and
the failure to take into account the risk of recidivism posed by
a sexual offender whose offenses all occurred in the family home.
Presumably, registrant's experts would have testified that
registrant does not pose a substantial risk of reoffense because
certain variable factors, as applied to him, make him far less
likely to reoffend than other sex offenders. Also, registrant's
experts could have testified that the scope of notification, as
applied to him, was unreasonable given the fact that incest-type
offenders are not as likely to reoffend in the community-at-large. That testimony, if believed, could warrant a lower tier
classification or more limited community notification, and,
therefore is admissible.
For the foregoing reasons, we affirm the judgment of the Appellate Division and remand the case to the trial court for further proceedings not inconsistent with this opinion.
JUSTICES POLLOCK, O'HERN, GARIBALDI, and COLEMAN join in
JUSTICE HANDLER's opinion. JUSTICE STEIN filed a separate
concurring opinion. CHIEF JUSTICE PORITZ did not participate.
SUPREME COURT OF NEW JERSEY
A-
27 September Term 1996
IN THE MATTER OF REGISTRANT G.B.:
APPLICATION FOR JUDICIAL REVIEW OF
NOTIFICATION AND TIER DESIGNATION
STEIN, J., concurring
Although I have a separate view concerning the
constitutionality of the retroactive application of the Community
Notification Law, L. 1994, c. 128, see Doe v. Poritz,
142 N.J. 1,
111-47 (1995) (Stein, J., dissenting), I am in substantial accord
with the Court's disposition of the issues presented by this
appeal.
NO. A-27 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
IN THE MATTER OF REGISTRANT G.B.:
APPLICATION FOR JUDICIAL REVIEW OF
NOTIFICATION AND TIER DESIGNATION
DECIDED December 11, 1996
Justice Handler PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY Justice Stein
DISSENTING OPINION BY
Footnote: 1 The initials used in the caption are fictitious. The Court has, for the purposes of confidentiality, refrained from identifying the names of those involved as well as the attorneys, municipality, and county in question. Footnote: 2 Registrant also challenged on constitutional grounds the validity of his classification and notification. He contended that the community notification portion of the RCNL was unconstitutional because, as applied to him, it violated due process and the ex post facto and double jeopardy bars. He also requested a stay of the classification
hearing until a specialized Megan's Law unit of the Public Defender's Office was able to
represent him and argued that the denial of a stay would violate his right to equal
protection. Further, he argued that the Attorney General's guidelines were void because
they had not been promulgated in accordance with the Administrative Procedure Act.
The court summarily rejected these arguments, and the Appellate Division affirmed the
trial court's rulings.
286 N.J. Super. 396 (1996). Our grant of certification did not
encompass these issues, and, therefore, we do not address them.
Footnote: 3 The notice would inform the offender of the date of a conference between 21 and
24 days from the date of anticipated service. Bench Manual, supra, at 46. The notice
would also inform the registrant that at the conference, the court could decide the
matter or require that there be further hearings to do so. Ibid.
The initial conference/hearing was intended to "narrow the issues," to address all
discovery requests, and to decide on the use of experts. Id. at 56. If there were no
material issues to decide, then the court could enter the appropriate order and
summarily dispose of the case, placing its findings as to tier designation and manner of
notification on the record. Id. at 56-57.
Footnote: 4 The Court in Doe v. Poritz specifically instructed the
Attorney General to revise the Guidelines in accordance with its
opinion, particularly as to the manner in which the Scale
considers psychological or psychiatric profiles. 142 N.J. at 24
n.5; see In re C.A., supra, 146 N.J. at 106. The Attorney
General has not yet made those revisions.
Footnote: 5 As the In re E.A. court explained:
Pertinent factors are both nonvariable and
variable. Nonvariable factors are those that
relate to all registrants. Variable factors
are those that relate to the specific
registrant and his community. More
specifically, the nonvariable factors
recognize the commonality of circumstances
that relate to all registrants. They are
factors based on common sense; factors that
any reasonable person would recognize relate
to the likely whereabouts of an adult in
today's society. Variable factors recognize
case-by-case circumstances that relate to the
specific registrant before the court. They
also relate to individualized circumstances
of a community that may be encountered in the
process of affording the public with proper
notice.