(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 March 26, l996 -- Decided July 31, 1996
GARIBALDI, J., writing for the Court.
In October 1994, the Legislature enacted a group of bills, collectively known as "Megan's Law," to
protect the community from the dangers of recidivism by sexual offenders. In Doe v. Poritz, this Court
upheld the constitutionality of two of those bills, the Registration Law that requires certain sexual offenders
to register with law enforcement, and the Community Notification Law (collectively referred to as RCNL).
In this appeal, the Court considers whether a nonconviction offense may be considered in determining a
convicted sex offender's tier classification under the RCNL, and whether the prosecutor's use of documentary
hearsay evidence to prove that alleged offense offends procedural due process and the doctrine of
fundamental fairness. The Court also addresses issues that relate to the validity of the Registrant Risk
Assessment Scale.
The RCNL contemplates three levels of community notification, depending on the degree of the risk of re-offense. If the risk of re-offense is low, notification must be to law enforcement agencies likely to encounter the person registered (Tier One). If the risk of re-offense is moderate, organizations in the community and law enforcement agencies are to be notified (Tier Two). If the risk of re-offense is high, the public shall be notified in accordance with the Attorney General's Guidelines, in addition to the notification of law enforcement authorities and community organizations (Tier Three).
The Attorney General (AG) promulgated Guidelines and procedures for the notification that identify
factors relevant to the determination of the risk of re-offense, including those enumerated in the RCNL, and
the appropriate tier-level of notification. A registrant is rated by the local county prosecutor pursuant to the
Guidelines and the Registrant Risk Assessment Scale (Scale). A Committee of mental health experts and
members of law enforcement, convened by the AG, drafted the Scale and the accompanying Registrant Risk
Assessment Manual (RRA Manual), that explains the Scale. The Scale focuses on two factors: the
seriousness of the offense should the offender recidivate; and the likelihood that the offender will recidivate.
The Scale identifies thirteen factors, including the eight statutory factors, as well as other factors deemed
relevant to the risk of re-offense. Those factors are assigned to one of four larger categories: "Seriousness
of Offense," "Offense History," "Characteristics of Offender," and "Community Support." Each registrant is
assigned a score for each of the thirteen factors depending on an objective appraisal of that registrant.
Because historical factors tend to be the most powerful predictors of future offenses, the Scale gives greater
weight to the "Seriousness of Offense" and "Offense History" factors than to the "Characteristics of Offender"
and "Community Support" factors. The final score determines what Tier the registrant will be placed in.
In Doe v. Poritz, this Court held that a hearing is required prior to notification under Tiers Two and
Three. The RCNL judicial hearing process under Doe v. Poritz is not governed by the Rules of Evidence,
and the reviewing court may rely exclusively on documentary evidence on all issues. The prosecutor has the
burden of going forward with prima facie evidence that justifies the proposed level and manner of
notification. Assuming that burden is met, the registrant then has the burden of producing evidence
challenging the prosecutor's determinations on both issues. If the State has satisfied its burden of going
forward, the court should 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.
On June 14, 1991, C.A. pled guilty to fourth degree sexual assault and burglary and received two
year probationary term for digital penetration of a female victim. Two days later, A.Z. reported to police
that she had been raped by C.A. In his defense, C.A. claimed that he did not rape A.Z.; rather they had
engaged in consensual sex in exchange for drugs. Based on A.Z.'s complaint, the State obtained an
indictment, charging C.A. with sexual assault, robbery, and weapons offenses. On January 30, 1992, another
woman reported a rape committed by C.A. He was charged with aggravated sexual contact. Pursuant to a
plea agreement, C.A. pled guilty to third-degree aggravated criminal sexual contact for the January 30th
incident in exchange for a dismissal of the earlier indictment concerning the rape of A.Z. C.A. was
sentenced to five years' imprisonment, with a two-and-one-half year period of parole ineligibility.
Prior to his release from jail, C.A. was notified that, pursuant to his score under the Scale, he would
be classified as Tier Three. C.A. argued that he should be classified in Tier Two and requested a judicial
hearing, alleging substantive and procedural deficiencies. C.A. contended that the scoring was incorrect
because: he never used a weapon; he was acquainted with all of his victims; and he only had two victims
since A.Z. should be excluded as the dismissed charge was not an offense for purposes of coverage under the
RCNL. C.A. further contended that the State's documentary hearsay was not credible and requested an
evidentiary hearing in which the victim, A.Z., among others, would testify. The trial court affirmed the Tier
Three classification, finding that the nonconviction offense could be counted, the documentary evidence
submitted was sufficiently reliable to establish that the A.Z. incident occurred, and a hearing was not
required.
On appeal, the Appellate Division agreed that the nonconviction offenses could be counted, and that
documentary evidence could be used to evaluate nonconviction offenses. The court, however, in reversing
and remanding, noted that documentary evidence should only be admitted into evidence when adjudged
reliable based on the totality of the circumstances surrounding the statements being considered. The court
concluded that, because C.A.'s story created a direct factual conflict, a hearing was required. The Appellate
Division held that neither side could serve process on the victim without leave of court, to be granted only on
a clear and convincing demonstration of a compelling need for that witness's testimony.
The Supreme Court granted C.A.'s petition for certification.
HELD: Balancing C.A.'s procedural due process rights and the right to fundamental fairness with the
community's right to protect itself against the risk of re-offense, C.A.'s prior nonconviction offense
may be considered in determining his tier classification and the State may prove that offense solely
by reliable documentary hearsay evidence. C.A. presented sufficient evidence to create a material
factual question about the nature and circumstances of the offense that may have had a significant
effect on his Tier classification. In addition, the Registrant Risk Assessment Scale is a reliable and
useful tool that the State can use to establish its prima facie case concerning a registrant's tier
classification and manner of notification. The procedures provided in a civil hearing concerning a
registrant's tier classification and manner of notification together with the requirement for judicial
review of those decisions adequately protect the registrant's rights to procedural due process and to
fundamental fairness.
1. The Scale's inclusion of nonconviction offenses as relevant to the risk of re-offense accords with the views
of other courts and commentators, is statutorily authorized, and is a rational implementation of the AG's
delegated power. (pp. 13-21)
2. Hearsay that is reliable, even though not deemed sufficiently reliable to be admitted under the Rules of
Evidence, should be admissible and sufficient to allow the State to sustain its burden of presenting a prima
facie case. Admission of reliable hearsay is compatible with C.A.'s right to procedural due process and
fundamental fairness. Trial courts must carefully evaluate the proffered hearsay to ensure that the hearsay is
reliable under the totality of circumstances surrounding that statement. (pp. 21-26)
3. If a defendant 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. The hearing format suggested in Reyes for probation violation hearings is the appropriate
procedure in notification cases when the offender has raised a genuine issue of material fact. Neither side
may compel the victim's testimony without leave of court, which should be granted only in the rarest cases.
(pp. 26-28)
4. Because the hearsay statements were reliable, they were properly admitted and would be sufficient to
sustain the State's burden of proof in presenting a prima facie case that C.A. deserved to be classified as Tier
Three. Nonetheless, C.A. raises a genuine issue of material fact in his claims that he did not use a knife and
that A.Z. engaged in a consensual trade of sex for drugs. He, therefore, should be granted a hearing to
determine whether he has established by the preponderance of evidence that the offense did not occur or
that he did not possess a knife during the offense. If C.A. establishes those facts, then the Scale must be
recalculated. This procedure is in accordance with Doe v. Poritz and the RCNL and properly and fairly
balances the procedural due process rights of the registrant with the needs of the community, as well as
protecting the rights of the victim. (pp. 28-31)
5. The AG's decision to include factors in the Scale that relate to the quality or nature of a re-offense is
consistent with the RCNL and Doe v. Poritz. The Scale's "Seriousness of Offense" and "Offense History"
categories are considered static because they relate to the registrant's prior criminal conduct. The
"Characteristics of Offender" and "Community Support" are considered to be dynamic categories because they
are evidenced by current conditions. The Committee's decision to weight the static factors higher than the
dynamic factors is consistent with the majority of scientific literature that concludes that the static factors
used in the Scale are the best predictors of risk of re-offense. Although the weights assigned to the
categories in the Scale have not been scientifically proven to be valid, the State has produced sufficient
evidence demonstrating that the factors used in the Scale are reliable predictors of recidivism and are
weighted in the Scale according to their relative effectiveness as predictors. (pp. 35-40)
6. Empirical validation of the Scale is neither feasible nor practicable. Based on the record presented, the
Scale is an appropriate and reliable tool and is consistent with the requirements of the RCNL and Doe v.
Poritz. The Scale gives prosecutors a reasonably objective measure on which to assign registrants to a tier
classification. Although a tier classification made on the basis of the Scale should be afforded deference, a
court should not rely solely on a registrant's point total when it conducts judicial review of the correctness of
a prosecutor's tier level classification or manner of notification decisions. (pp. 40-45)
The judgment of the Appellate Division in is AFFIRMED.
JUSTICES HANDLER, POLLOCK, O'HERN, and COLEMAN join in JUSTICE GARIBALDI'S
opinion. JUSTICE STEIN concurs only in the judgment of the Court.
SUPREME COURT OF NEW JERSEY
A-l
42 September Term l995
IN THE MATTER OF THE REGISTRANT,
C.A.: APPLICATION FOR JUDICIAL
REVIEW OF NOTIFICATION AND
TIER DESIGNATION,
Registrant-Appellant.
Argued March 26, l996 -- Decided July 31, 1996
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
285 N.J. Super. 343 (l995).
The opinion of the Court was delivered by
GARIBALDI, J.
In October 1994, the Legislature enacted a group of eleven
bills, collectively known as "Megan's Law," in memory of a seven
year-old girl allegedly killed by a convicted sexual offender.
In Doe v. Poritz,
142 N.J. 1, 109 (1995), we upheld the
constitutionality of two of those bills, the Registration Law
that requires certain sexual offenders to register with law
enforcement, N.J.S.A. 2C:7-1 to -5, and the Community
Notification Law, N.J.S.A. 2C:7-6 to -11 (collectively referred
to as RCNL). In this appeal, we further interpret and apply
those laws. Specifically, we consider whether a nonconviction
offense may be considered in determining a convicted sex
offender's tier classification under the RCNL, and whether the
prosecutor's use of documentary hearsay evidence to prove that
alleged offense offends procedural due process and the doctrine
of fundamental fairness. We also address issues, not directly
raised in this appeal, that relate to the validity of the
Registrant Risk Assessment Scale that the Court sua sponte
requested the parties and amici curiae to address.
We explained the purpose behind Megan's Law in detail in Doe v. Poritz, supra, 142 N.J. at 12-20. The Legislature enacted Megan's Law to protect the community from the dangers of recidivism by sexual offenders. N.J.S.A. 2C:7-la. The Legislature also wanted to provide law enforcement agencies with additional information about sex offenders in their community because that information is "critical to preventing and promptly resolving incidents involving sexual abuse and missing persons." N.J.S.A. 2C:7-lb. The statute provides that sex offenders shall register with local authorities. N.J.S.A. 2C:7-2a. The sex offenses that trigger required registration are set forth in N.J.S.A. 2C:7-2b.
After registration by the offender, the chief law enforcement officer in the municipality where a registrant intends to reside is required to provide notification in accordance with N.J.S.A. 2C:7-8. That statute contemplates three
levels of notification "depending upon the degree of the risk of
re-offense." N.J.S.A. 2C:7-8a.
(1) If risk of re-offense is low, law
enforcement agencies likely to encounter the
person registered shall be notified;
(2) If risk of re-offense is moderate,
organizations in the community including
schools, religious and youth organizations
shall be notified in accordance with the
Attorney General's guidelines, in addition to
the notice required by paragraph (1) of this
subsection;
(3) If risk of re-offense is high, the public
shall be notified through means in accordance
with the Attorney General's guidelines
designed to reach members of the public
likely to encounter the person registered, in
addition to the notice required by paragraphs
(1) and (2) of this subsection.
All registrants are subjected to at least Tier One notification,
which requires registration with law enforcement agencies. Doe
v. Poritz, supra, 142 N.J. at 22.
N.J.S.A. 2C:7-8a requires the Attorney General, after
consultations with members of the advisory council, to
"promulgate guidelines and procedures for the notification
required pursuant to the provisions of this act. The guidelines
shall identify factors relevant to risk of re-offense and shall
provide for three levels of notification depending upon the
degree of the risk of re-offense." The Legislature instructed
the Attorney General that
Factors relevant to risk of re-offense shall
include, but not be limited to, the
following:
(1) Conditions of release that minimize risk
of re-offense, including but not limited to
whether the offender is under supervision of
probation or parole; receiving counseling,
therapy or treatment; or residing in a home
situation that provides guidance and
supervision;
(2) Physical conditions that minimize risk of
re-offense, including but not limited to
advanced age or debilitating illness;
(3) Criminal history factors indicative of
high risk of re-offense, including:
(a) Whether the offender's conduct
was found to be characterized by
repetitive and compulsive behavior;
(b) Whether the offender served the
maximum term;
(c) Whether the offender committed
the sex offense against a child.
(4) Other criminal history factors to be
considered in determining risk, including:
(a) The relationship between the
offender and the victim;
(b) Whether the offense involved
the use of a weapon, violence, or
infliction of serious bodily
injury;
(c) The number, date and nature of
prior offenses;
(5) Whether psychological or psychiatric
profiles indicate a risk of recidivism;
(6) The offender's response to treatment;
(7) Recent behavior, including behavior while confined or while under supervision in the
community as well as behavior in the
community following service of sentence; and
(8) Recent threats against persons or
expressions of intent to commit additional
crimes.
Pursuant to that delegation of power, the Attorney General
issued guidelines to determine the risk of re-offense and
appropriate tier level of notification. The Attorney General's
guidelines currently provide that a registrant is rated by the
local county prosecutor pursuant to the guidelines and the
"Registrant Risk Assessment Scale" (Scale). To develop that
Scale, the Attorney General convened a committee composed of
mental health experts as well as members of the Law Enforcement
Committee, which drafted the Scale and the accompanying
Registrant Risk Assessment Manual (RRA Manual),See footnote 1 which explains
the Scale. The Scale focuses on two factors, "the seriousness of
the offense should the offender recidivate," and "the likelihood
that the offender will recidivate." Registrant Risk Assessment
Manual at 2.
The Scale, attached hereto as Appendix A, identifies
thirteen factors, including the statutory factors as well as
other factors deemed relevant to the risk of re-offense. Those
factors are assigned to one of four larger categories:
"Seriousness of Offense," "Offense History," "Characteristics of
Offender," and "Community Support." Each registrant is assigned
a score for each of the thirteen factors depending on an
objective appraisal of that registrant, with a zero for low risk,
one for moderate risk, and three for high risk.
The Attorney General determined that "the historical factors
-- particularly those related to extensiveness of antisocial
behavior -- tend to be the most powerful predictors of future
offenses." Id. at 4. As a result, the Scale gives greater
weight to the "Seriousness of Offense" and "Offense History"
factors than to the "Characteristics of Offender" and "Community
Support" factors. After adding up the total (adjusted) score for
a registrant on every factor, a registrant who receives a score
of at least 74 (out of a maximum of 111) is considered Tier
Three, while one who scores at least 37 is considered Tier Two,
and below 37 is Tier One.
In Doe v. Poritz, supra, 142 N.J. at 107, we concluded that a hearing is required prior to notification under Tiers Two and Three. The Court, recognizing that the RCNL impinges upon interests that trigger the protections of procedural due process and the State's own fairness doctrine, required judicial review of those decisions to "assure that the risk of reoffense and the extent of notification are fairly evaluated before Tier Two [moderate risk] or Tier Three [high risk] is implemented." Id.
at 30. The RCNL judicial hearing process under Doe v. Poritz,
supra, is not governed by the rules of evidence. The reviewing
court may rely exclusively on documentary evidence "on all
issues." Id. at 31. The court has the authority to determine
(l) the extent of witness production; (2) the extent of cross-examination; and (3) the use of expert testimony. Ibid. Those
determinations are to be based on the "apparent complexity of the
matter [and] the extent of doubt concerning the correctness of
the level and manner of notification selected by the prosecutor.
Ibid. At the same time, Doe v. Poritz further prescribed a two-step procedure for evidence production. In the first step, the
prosecutor has the burden of going forward with prima facie
evidence that "justifies the proposed level and manner of
notification." Id. at 32. In the second step, assuming the
prosecutor's burden is met, the registrant then has the burden of
producing evidence challenging the prosecutor's determinations on
both issues. Ibid. Once the State has satisfied its burden of
going forward, 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."
Ibid. The court's determination is independent and based on its
own review of the case on the merits.
On July 22, 1988, C.A.See footnote 2 entered the room of his sleeping
victim, a friend's girlfriend whom he had known for several
months; when she awoke, he was digitally penetrating her and
fondling her breasts. He pled guilty to fourth degree sexual
assault and burglary and was sentenced on June 14, 1991 to a two
year probationary term.
Two days later, on June 16, A.Z., "a middle class resident
of the suburbs . . . driving in a drug area late at night,"
called the police from a telephone booth to report that she had
been raped by C.A. In re Registrant C.A.,
285 N.J. Super. 343,
350 (App. Div. 1995). When the police arrived, they searched the
area and found C.A. hiding behind some wood; he was arrested
after a brief struggle.
A.Z. told the patrol officer at the scene that
She was in her listed auto stopped at a red
light on Johnston at Greenwood facing [sic]
north.
At that time, [C.A.] opened her unlocked
passenger door, got in, pulled out a small
hunting type knife, held it up in front of
him and told her that she was going to take
him where he wanted to go. They drove north
on Johnston . . . [C.A] had her park in an
alley then told her to get into the back seat
and take off her pants, underwear and pull
out her tampon. At no time did he threaten
her or show her the knife. He then got in
the back seat and had . . . vaginal
intercourse. . . .
[C.A.] then choked her about the neck
with both his hands. He let her go and told
her to give him a 18" gold chain she wore
around her neck. She gave it to him. He
then got into the driver's seat and drove to
[another street] while she sat in the back.
He parked the car, took the keys and told her
not to move.
She told another detective the same story. She was
eventually admitted to a hospital and treated for depression and
post-traumatic stress disorder. She told the doctors the same
story that she had told police; she also told the doctors that
she had previously been raped eleven years earlier.
C.A. told police that he did not rape the victim but had
known her for some time because she had often come to purchase
drugs from him. He claimed that A.Z. had asked him to procure
drugs, that he had driven her in her car to find drugs, and that
they smoked the drugs and engaged in consensual sex. She gave
him the gold chain to purchase additional crack, but, when he
returned with the drugs, he hid because he saw the heavy police
presence. C.A. also denied possession of a knife, and the police
did not recover a knife from the scene.
When the police discussed this version with A.Z., she agreed
to take a polygraph test. However, she never appeared for the
test. Later, at the hospital, she admitted drug use since age
sixteen (including the use of crack cocaine that she had
purchased on the street.)
Based on A.Z.'s complaint, the State obtained an indictment
charging C.A. with sexual assault, robbery, and weapons offenses.
On January 30, 1992, another woman called the police to
report a rape committed by C.A. She told the police that C.A.,
whom she had seen before but did not know, had stopped her as she
walked on the street and forced her into an alley. He took her
money and demanded that she remove her clothing; he then had oral
and vaginal intercourse with her after threatening to kill her.
C.A. claimed, as he did with A.Z., that he was friendly with the
victim and had engaged in consensual sex in exchange for drugs.
The victim acknowledged prior drug use but insisted that she was
raped. He was charged with aggravated sexual contact.
Pursuant to a plea agreement, C.A. pled guilty to third
degree aggravated criminal sexual contact for the January 30
incident. Under that plea agreement, the earlier indictment
charging him with sexual assault, robbery, and weapons offenses
involving the victim A.Z. was dismissed. C.A. was sentenced to a
five-year custodial sentence with a two and one-half year parole
disqualifier.
In October 1995, as C.A. was preparing for his release from
prison, the State notified him that, because he had received a
score of 83 under the Scale, he would be classified in Tier
Three. C.A. argued that his Tier Three classification was wrong
and he should have been classified in Tier Two. Specifically,
C.A. disputed the prosecutor's scoring under factor one, "degree
of force" (l5 points); factor four, "victim selection" (9
points); factor five, "number of offenses/victims" (9 points);
and factor nine, "response to treatment" (6 points).
C.A. requested a judicial hearing on his Tier Three
classification. He alleged substantive and procedural
deficiencies. First, he contended that the dismissed charge
involving A.Z. was not an offense for purposes of coverage under
the RCNL and could not be counted in computing his Scale score.
Second, he contended that, even if the charge could be counted,
A.Z.'s assertions were unreliable because of her history of
alcohol and drug abuse and her admission that she had previously
lied to hospital personnel. C.A. also denied that a knife was
used, claiming that the incident was a consensual sex for drugs
transaction. Thus, he claimed that the scoring was incorrect
because he never used a weapon, because he was acquainted with
all of his victims, and because, excluding A.Z., he only had two
victims. C.A. further contended that the State's documentary
hearsay was not credible and requested an evidentiary hearing in
which the victim, A.Z., and the State's other hearsay declarants
would testify. If successful in excluding his alleged offense
against A.Z., C.A.'s score would have been reduced from 83 to
below 73, moving him into Tier Two.
The prosecutor argued that the Scale specifically permits
the consideration of documentation other than a criminal
conviction. He relied on the RRA Manual, which provides that the
scoring
may take into account any information
available and encompass all credible
evidence. Thus, a determination of the
number of victims or offenses may be based
upon documentation other than a criminal
conviction. Such documentation may include,
but is not limited to, criminal complaints
not the subject of a conviction but which are
supported by credible evidence, victim
statements, admissions by the registrant,
police reports, medical, psychological or
psychiatric reports, pre-sentencing reports,
and Department of Corrections discharge
summaries.
[Registrant Risk Assessment Scale Manual at
5.]
The trial court found that the nonconviction offense could
be counted and further found that a hearing was not required.
The court decided that the documentary evidence submitted was
sufficiently reliable to establish that the incident occurred,
especially "three separate statements to three separate persons .
. . that while she was in an emotional state, she gave
information each of the three times that a knife was used in that
incident."
The Appellate Division reversed and remanded. In re C.A.,
supra,
285 N.J. Super. 343. The panel agreed with the trial
court that nonconviction offenses could be counted, and that
documentary evidence could be used to evaluate nonconviction
offenses. Id. at 347-48. The court further observed that,
because this was not a criminal case, the Sixth Amendment Right
to Confrontation did not apply. Id. at 348. However, the panel
decided that documentary evidence should only be admitted into
evidence when adjudged reliable based on the totality of the
circumstances surrounding the statements being considered. Ibid.
If the State established a prima facie case based on those
documents justifying the proposed level of notification, then the
offender could rebut the claim; if there was a direct factual
conflict, then a hearing would be appropriate. Id. at 349-51.
While providing for a hearing, the Appellate Division held that
neither side could serve process upon the victim without leave of
the court, "which shall be granted only upon a clear and
convincing demonstration of a compelling need for that
[witness's] testimony." Id. at 350. Because the plausible story
told by C.A. created a direct factual conflict, a hearing was
required. Ibid.
C.A. filed a petition for certification, arguing that
nonconviction offenses could not be counted and that, even if
they could be counted, documentary hearsay evidence should not be
sufficient to establish such incidents under his right to
procedural due process and fundamental fairness. We granted
C.A.'s petition for certification.
143 N.J. 328 (1996).
C.A. contends that the trial court's inclusion of an alleged offense for which C.A. was never convicted was improper, and that only convictions should be counted in evaluating the risk of re-offense and determining the appropriate tier of notification. As
discussed supra at __ (slip op. at 12), the RRA Manual
specifically includes nonconviction offenses. Thus, the question
is whether the RRA Manual's inclusion of nonconviction offenses
is authorized under the statute.
N.J.S.A. 2C:7-8a delegates the legislative power to identify
factors "relevant to risk of re-offense" to the Attorney General
and an advisory council. That statute enumerates certain factors
relevant to risk of reoffense that "shall [be] include[d]" in the
guidelines, but provides that the guidelines need "not be limited
to" the enumerated factors. N.J.S.A. 2C:7-8b. The question
presented is whether nonconviction offenses are one of the
enumerated factors, and, if they are not, whether the inclusion
of such offenses is an appropriate exercise of the Attorney
General's delegated power.
The notification statute does not list nonconviction
offenses as a separate enumerated factor. N.J.S.A. 2C:2-7-8b(l)-(8). However, the Legislature has identified those "criminal
history factors" that it found "indicative of high risk of re-offense." N.J.S.A. 2C:7-8b(3). They include:
(a) whether the offender's conduct was
characterized by repetitive and compulsive
behavior;
(b) whether the offender served the maximum
term;
(c) whether the offender committed the sex offense
against a child.
"Other criminal history" factors identified by the statute
to be considered in determining risk include:
(a) The relationship between the offender and
the victim;
(b) Whether the offense involved the use of a
weapon, violence or infliction of serious
bodily injury;
(c) The number, date and nature of prior offenses.
Based on those statutory provisions, we find that the
Legislature intended nonconviction offenses to be part of the
statutory factors of "criminal history" and "other criminal
history". Therefore, nonconviction offenses are to be considered
in evaluating a registrant's risk of re-offense, provided there
is sufficient evidence that the offense occurred.
Further, we observe that, even if nonconviction offenses
were not deemed to be part of the enumerated statutory factors,
the inclusion of such offenses in the Scale was still an
appropriate exercise of the Attorney General's delegated power.
As an initial matter, the statutory delegation of power to the
Attorney General to identify other factors relevant to risk of
re-offense is constitutionally proper. "[T]he Guidelines were
prepared in response to a specific statutory mandate and their
contents are largely dictated either explicitly or implicitly by
the language of the statute." Doe v. Poritz, supra, 142 N.J. at
98-99. In reviewing the Attorney General's decision to include
certain non-statutory factors pursuant to this delegation, we
"will not . . . set [it] aside on the ground that it transgressed
the statute unless the transgression is plain; the presumption is
in favor of validity." New Jersey Guild of Hearing Aid
Dispensers v. Long,
75 N.J. 544, 561 (1978)(quoting Lane v.
Holderman,
40 N.J. Super. 329, 335 (App. Div. l956), aff'd,
23 N.J. 304 (1957)).
As described infra at __ (slip op. at 38), experts
generally agree that the best predictor of a registrant's future
criminal sexual behavior is that registrant's prior criminal
record. Accordingly, prior nonconviction offenses should be
considered in the risk calculation provided that there is
sufficient reliable evidence that the offense did happen.
Others have recognized, in different contexts, that
nonconviction offenses are relevant in determining the risk of
re-offense or recidivism. In United States v. Dunnigan,
507 U.S. 87, 97,
113 S. Ct. 1111, lll8,
122 L. Ed.2d 445, 455 (1993), the
United States Supreme Court approved a sentence enhancement based
on the defendant's nonconviction offense of perjury by reasoning
that
[i]t is rational for a sentencing authority
to conclude that a defendant who commits a
crime and then perjures herself in an
unlawful attempt to avoid responsibility is
more threatening to society and less
deserving of leniency than a defendant who
does not so defy the trial process. The
perjured defendant's willingness to frustrate
judicial proceedings to avoid criminal
liability suggests the need for
incapacitation and retribution is heightened.
. . .
Similarly, others have argued that, "if incapacitation or
reform is at issue, sentencing authorities must attempt
predictors of an offender's future behavior. In such systems,
. . . the best results depend upon an opportunity to take the
defendant's 'whole life' into view, especially significant events
such as past crimes -- whether or not they have ever ripened into
convictions." Kevin R. Reitz, Sentencing Facts: Travesties of
Real-Offense Sentencing,
45 Stan. L. Rev. 523, 553
(1993)(rejecting that argument); accord State v. Green,
62 N.J. 547, 571 (1973)(permitting sentencing court to review defendant's
arrest record because "the sentencing judge might find it
significant that a defendant who experienced an unwarranted
arrest was not deterred by that fact from committing a crime
thereafter."); see also Leonard N. Sosnov, Due Process Limits on
Sentencing Power: A Critique of Pennsylvania's Imposition of a
Recidivist Mandatory Sentence without a Prior Conviction,
32 Duq.
L. Rev. 461, 506 (1994)(justifying enhanced sentence based upon
prior arrest resulting in pre-trial intervention because
"individuals who have previously accepted [PTI] . . . may present
a somewhat higher risk of another incidence of DUI after
conviction").
Numerous state and federal courts have sustained civil
remedies based on nonconviction offenses. We held in Doe v.
Poritz, supra, 142 N.J. at 40-74, that notification pursuant to
Megan's Law is not punishment for a criminal action but rather is
a civil remedy to ensure public safety. See, e.g., In re
McLaughlin,
144 N.J. 133, 143 (1996)(denying application for
admission to bar in part on the basis of prior act that was
"illegal," even though there was no conviction for that prior
act); see also United States v. Ursery, 1
996 WL 340815, *3, *6
(U.S. June 24, 1996)(approving of civil forfeiture for narcotics
violation although conviction was not obtained until after civil
proceedings were completed).
We have approved of civil penalties for conduct when the
individual was acquitted on charges of committing that offense.
Thus, in In re Pennica,
36 N.J. 401, 418 (1962), we held that
"acquittal of a member of the bar following trial of a criminal
indictment is not res judicata in a subsequent disciplinary
proceeding based on substantially the same charge or conduct."
Similarly, in In re Darcy,
114 N.J. Super. 454, 458 (App. Div.
1971), the Appellate Division allowed civil disciplinary
proceedings against a civil servant despite a prior acquittal on
those same charges. See also New Jersey Division of Youth and
Family Services v. V.K.,
236 N.J. Super. 243, 252 (App. Div.
1989) (sustaining civil decision terminating parental rights due
to abuse, despite parent's prior acquittal on same charges),
certif. denied,
121 N.J. 614, cert. denied,
495 U.S. 934,
110 S.
Ct. 2178,
109 L. Ed.2d 507 (1990); Township of East Hanover v.
Cuva,
156 N.J. Super. 159, 163 (App. Div. 1978) (approving civil
injunction for violation of township ordinance despite prior
acquittal on same charge); Kugler v. Banner Pontiac-Buick, Opel,
Inc.,
120 N.J. Super. 572, 579-80 (Ch. Div. 1972) (allowing civil
penalty for violation of Consumer Fraud Act despite acquittal on
same charge); Freudenreich v. Mayor of Fairview,
114 N.J.L. 290,
292-93 (E & A 1934) (permitting disciplinary action for police
officer despite prior acquittal); cf. Helvering v. Mitchell,
303 U.S. 391, 397-99,
58 S. Ct. 630, 632-33,
82 L. Ed. 917, 920-22
(1937) (sustaining civil suit to recover tax deficiency despite
prior acquittal).
Federal courts have enhanced criminal sentences based on
nonconviction offenses whether the result of an acquittal, e.g.,
United States v. Manor,
936 F.2d 1238, 1243 (11th Cir. 1991)("an
acquittal based on a reasonable doubt standard should not
preclude a contrary finding [at sentencing] using the
preponderance of the evidence standard"); cf. State v. Megargel,
278 N.J. Super. 557, 568 (App. Div. 1995)(sustaining enhanced
Graves Act sentence for weapons possession despite acquittal on
weapons possession charge because, inter alia, "the judge's
findings were based on a lower standard of proof"), rev'd on
other grounds,
143 N.J. 484 (1996), a dismissed count pursuant to
a plea bargain, e.g., United States v. Camuti,
950 F.2d 72, 74
(1st Cir. 1991)(considering conduct involved in two counts
dropped as result of plea bargain to enhance sentence), or
conduct never charged, e.g., United States v. Andrews,
948 F.2d 448, 448-450 (8th Cir. 1991)(considering defendant's involvement
in prior uncharged robberies to enhance sentence on conviction
for robbery).
"Nearly all jurisdictions allow courts to consider such
nonconviction charges when sentencing." Reitz, supra,
45 Stan.
L. Rev. at 534. One commentator has noted, "[c]onstitutional
challenges to [enhanced] punishment for nonconviction offenses
have met with consistent rebuffs in the federal courts."
Elizabeth T. Lear, Is Conviction Irrelevant?,
40 U.C.L.A. L. Rev.
1179, 1183 (1993)(arguing that courts should not be allowed to
consider nonconviction offenses).
The Scale's inclusion of nonconviction offenses as relevant
to the risk of re-offense accords with the views of those courts
and commentators and is statutorily authorized and a rational
implementation of the Attorney General's delegated power pursuant
to N.J.S.A. 2C:7-8. We therefore sustain it.
If nonconviction offenses may be used, how should their existence be established? C.A. contends that a factual hearing must always be held in order to establish that such an offense did in fact occur, and that the use of only hearsay and documentary evidence at such a hearing deprives him of his right to procedural due process and fundamental fairness.
We have previously concluded that notification implicates
"protectible liberty interests in privacy and reputation," and
therefore triggers the constitutional right to procedural due
process. Doe v. Poritz, supra, 142 N.J. at 106. We have also
held that New Jersey's doctrine of fundamental fairness, which
"require[s] procedures to protect the rights of defendants at
various stages of the criminal justice process even when such
procedures were not constitutionally compelled," applies to
notification hearings "to require procedural protections that
will ensure that his classification . . . [is] tailored to his
particular characteristics and are not the product of arbitrary
action." Id. at 108-09.
The precise protections needed to ensure due process depend
on a careful balancing of three factors known as the Mathews v.
Eldridge test:
first, the private interest that will be
affected by the official action; second, the
risk of an erroneous deprivation of such
interest through the procedures used, and the
probable value, if any, of additional or
substitute procedural safeguards; and
finally, the Government's interest, including
the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would
entail.
[Doe v. Poritz, supra, 142 N.J. at 107
(quoting Zinermon v. Burch,
494 U.S. 113,
127,
110 S. Ct. 975, 984,
108 L. Ed.2d 100,
115 (1990)(quoting Mathews v. Eldridge,
424 U.S. 319, 335,
96 S. Ct. 893, 903,
47 L. Ed.2d 18, 33 (1976))).]
The minimum requirements of due process are notice and an
opportunity to be heard. Id. at l06. Applying the Matthews v.
Eldridge test in Doe v. Poritz, supra, we added additional
procedures and concluded:
We attempt by these procedures to reach a
difficult accommodation between the State's
legitimate and substantial interest in
effecting prompt notification and the
offender's legitimate interest in assuring
accurate evaluation of the risk of reoffense
and the proper determination of the manner of
notification.
The Court vested reviewing courts with the obligation of
providing procedural due process to ensure the appropriateness of
a tier classification. Id. at 39. That obligation carries with
it broad powers to control the summary hearing on the level and
manner of the tier notification. Id. at 31. According to Doe v.
Poritz, judges are to structure the hearing based "on the
apparent complexity of the case [and] the extent of doubt
concerning the correctness of the level and manner of
notification selected by the prosecutor." Id. at 3l.
The hearing is not like an administrative hearing but is
more like an evidentiary and investigatory hearing. It is civil,
not criminal, and remedial, not adversarial. A fine balance must
be drawn between the registrant's rights to due process and
fundamental fairness and the community's right of protection
against the registrant's risk of re-offense, but the balance to
be drawn is not the same balance as drawn in a criminal
proceeding. In recognition of the countervailing governmental
interests, Doe v. Poritz, supra, did not grant registrants the
full panoply of rights applicable to a criminal proceeding. Id.
at 34. Instead, we expressly held that the "rules of evidence
shall not apply." Ibid. The Court further held that the
reviewing court may "rely on documentary presentations on all
issues." Ibid. In recognizing the need for procedural
safeguards, the Doe Court did not analyze the circumstances under
which admission of hearsay evidence is permissible, but simply
authorized the trial court to determine whether witnesses will be
produced and cross-examinations allowed. Id. at 3l.
Although it is undisputed that the framework contemplated by
Doe v. Poritz permits the State's use of hearsay evidence,
nevertheless, to protect the registrant's constitutional rights,
"relaxed standards for admissibility are not to be equated with
automatic admissibility," State v. Davis,
96 N.J. 6ll, 623
(l984). Our rules of evidence insist that only statements
subject to cross-examination, or other statements where
"circumstantial guarantees of trustworthiness" exist, should be
admitted as evidence. 2 McCormick on Evidence §253, at l30
(citation omitted) (4th ed. 1992); see also Idaho v. Wright,
497 U.S. 805, 820,
110 S. Ct. 3139, 3l49,
111 L. Ed.2d 638, 655
(1990) (explaining that "if the declarant's truthfulness is so
clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, then the hearsay rule
does not bar admission.") C.A. contends that, since hearsay is
so unreliable, there is an increased risk of error and the
additional safeguard of requiring admissible evidence would
increase accuracy and should be required.
Because the main difficulty with hearsay is reliability,
hearsay that is reliable, even though not deemed sufficiently
reliable to be admitted under our rules of evidence, should be
admissible and sufficient to allow the State to sustain its
burden of presenting a prima facie case. If the hearsay is
reliable, then the risk of error is low and the utility of
additional safeguards (i.e., excluding hearsay because
unreliable) is low and does not outweigh the important government
interests mitigating in favor of the admission of hearsay.
Admission of reliable hearsay is compatible with C.A.'s right to
procedural due process and fundamental fairness. In the future,
when prosecutors plea-bargain sex offenses that may later form
the basis for tier classification under the RCNL, they should
take care to ensure that the factual basis of the sexual offenses
that are dropped pursuant to the plea bargain are established by
reliable evidence.
We expect that trial courts will carefully evaluate the
proffered hearsay to ensure that the hearsay is reliable under
the totality of circumstances surrounding that statement. In re
C.A., supra, 285 N.J. Super. at 348 (citing Idaho v. Wright,
supra, 497 U.S. at 819, 110 S. Ct. at 3148, 111 L. Ed.
2d at 654-55). Based on the circumstances surrounding the statement and
any corroborating evidence, trial courts should determine whether
the hearsay is sufficiently reliable to accept it as substantive
evidence. A determination about the reliability of hearsay
evidence should be made on a case-by-case basis. The
determination about use of an anonymous phone tip to police will
certainly be different than the current case, where A.Z.
voluntarily identified herself and provided a report immediately
after the incident that was consistent with her other statements.
Each case will depend on its facts, and, in order to protect the
constitutional rights of all registrants, only hearsay evidence
that appears reliable should be admitted.
Other courts have approved of the use of hearsay in somewhat
analogous situations. For example, in Zannino v. Arnold,
531 F.2d 687, 692 (3d Cir. 1976), the Third Circuit approved of the use
of hearsay by a parole board to find that a prisoner had been
part of a large-scale conspiracy and not worthy of parole.
"Though hearsay, they could legitimately be taken into account by
the Parole Board." Ibid. Similarly, "the admission and
consideration of reliable hearsay evidence in probation violation
proceedings is both fair and practical." State v. Reyes,
207 N.J. Super. 126, 139 (App. Div.)(emphasis added), certif. denied,
103 N.J. 499 (1986). Likewise, N.J.S.A. 52:14B-10 provides that
our administrative agencies may admit hearsay evidence, even
though many administrative cases involve the deprivation of
liberty or property, e.g. In re Polk,
90 N.J. 550, 562-63 (1982),
and implicate the constitutional right to due process.
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 defendant 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). "This is not to suggest that every facially unbelievable and bizarre story advanced by a registrant as a basis for an evidentiary hearing will compel such a hearing. A judge might well conclude that a registrant's unsubstantiated claim that an elderly grandmother or nun was engaged in a consensual sex for drugs transaction is unworthy of belief." In re C.A., supra, 285 N.J. Super. at 350.
We adopt the hearing format suggested in Reyes, supra, 207 N.J. Super. 126, for probation violation hearings as the appropriate procedure in notification cases when the offender has raised a genuine issue of material fact. At the hearing, "the
State may be permitted to rely initially on hearsay evidence but
supplement its proofs . . . concerning matters which the
[offender] contests by eliciting evidence on cross-examination or
by the introduction of contrary evidence." Reyes, supra, 207
N.J. Super. at 139. The State may, if it wishes, decide not to
provide additional proof and rely solely on its hearsay evidence,
and the "court may conclude that the State's hearsay evidence is
sufficient to overcome live testimony offered on behalf of the"
offender. Id. at 139 n.5.
We also agree with the Appellate Division that neither side
may compel the victim's testimony without leave of the court. In
re C.A., 285 N.J. Super. at 350. The State often avoids a trial,
particularly in a sex offense case, so that the victim will not
be forced to testify. We are therefore reluctant to compel a
victim to testify unless it is absolutely necessary. The trial
courts should only seek to compel such testimony when there is a
real need for the testimony that cannot be met in an alternative
manner. We expect that only in the rarest of cases will a court
compel the testimony of a victim. In those cases, we suggest
that, when possible, the trial court itself conduct all
questioning of the victim.
We have little difficulty concluding that the proffered documentary hearsay evidence in this case was reliable and was properly considered by the trial court. The State offered three
reports (two by police officers and one by a doctor at a
hospital) detailing the incident as related by A.Z. We readily
accept these reports as reliable insofar as they relate that A.Z.
actually told that story to these individuals. We presume that
police officers and medical doctors will accurately report on the
statements given to them. Indeed, because of that indica of
reliability, those reports would ordinarily be admitted in court
as an exception to the hearsay rule under N.J.R.E. 803(c)(6),
although A.Z.'s statements inside those reports would not be
admitted under that rule, see Sas v. Strelecki,
110 N.J. Super. 14, 22 (App. Div. 1970).
However, we must also determine whether there is sufficient
evidence of reliability in A.Z.'s statement -- i.e., we know
that she said it to the police and hospital, but is what she said
true? Again, we find that the proffered evidence was
sufficiently reliable. A.Z. reported the story immediately after
the incident occurred, when she voluntarily telephoned the
police, while in an emotional and upset state, to report a rape.
Cf. Biunno, Current N.J. Rules of Evidence, Comment 1 on N.J.R.E.
803(c)(2) (1994-95) ("Excitement caused by the observation of a
startling event insures the reliability of a spontaneous
statement about it made at or near the time of the event's
occurrence.") She then told the story again when she was
admitted to a hospital for post-traumatic stress disorder, when
she "was more interested in obtaining a diagnosis and treatment
culminating in a medical recovery than . . . in obtaining a
favorable medical opinion culminating in a legal recovery."
Biunno, supra, Comment on N.J.R.E. 803(c)(4).See footnote 3 The time and
place when A.Z. made her statements lend credence to their
reliability.
Furthermore, the fact that A.Z. reported the same story to
several police officers, as well as the hospital, is further
proof of the statement's reliability. "As the trial judge
stated, nothing on the face of the documentary evidence suggested
inconsistencies or credibility problems." In re C.A., 285 N.J.
Super. at 348. Because the hearsay statements were reliable,
they were properly admitted and would be sufficient to sustain
the State's burden of proof in presenting a prima facie case that
C.A. deserved to be classified as Tier Three.
Based on our review of the record, however, C.A. does raise
a genuine issue of material fact in his claim that he did not use
a knife and that A.Z. engaged in a consensual trade of sex for
drugs. He should therefore be granted a hearing. At that remand
hearing, the trial court should allow C.A. to present his version
of the incident, either through reliable hearsay, an affidavit,
live testimony, or other credible evidence. The State can decide
to rely on the hearsay evidence that it has already presented to
establish its prima facie case. The State may also present
additional evidence if it deems such evidence necessary, and, if
C.A. presents live testimony, may challenge his story on cross-examination. After the hearing, the trial court should decide
whether C.A. has established, by the preponderance of evidence,
that the offense did not occur or that he did not possess a knife
during the offense. If C.A. establishes those facts, then the
Scale must be recalculated.
This procedure is in accordance with Doe v. Poritz and the
Registration and Notification Laws and properly and fairly
balances the procedural due process rights of the registrant with
the needs of the community, as well as protecting the rights of
the victim.
Although the validity of the Scale was not directly raised in this appeal, the Court sua sponte requested the parties and various amici curiae to address whether the Scale and the current guidelines comport with the RCNL and Doe v. Poritz. We now discuss the concerns expressed by the parties and the amici curiae about the validity and reliability of the Scale. Generally, those concerns fall into two categories: whether the quality and nature of the re-offense (seriousness of the offense) is an appropriate consideration of risk of re-offense under the RCNL and Doe v. Poritz, and whether the authors of the Scale
assigned the proper weight to each of the four basic categories.
We also examine the proper use of the Scale.
As previously stated, supra, at ___ (slip op. at 5), the Attorney General, pursuant to N.J.S.A. 2C:7-8, adopted guidelines. In Doe v. Poritz, supra, 142 N.J. at 24 n.2, we found these original guidelines to be deficient because they failed to include several risk factors required by the Community Notification Law. On September 14, 1995, the Attorney General promulgated new guidelines to meet the requirements contained in Doe v. Poritz. As discussed supra at ___ (slip op. at 5-6), the new guidelines include the Registrant Risk Assessment Scale and the RRA Manual. The Scale and the guidelines were designed to provide prosecutors with an objective standard on which to base the community notification decision mandated by statute and to assure that the notification law is applied in a uniform manner throughout the State.
All of the parties and amici agree that the Scale and RRA Manual are premised on the belief that the statutory measurement, the risk of re-offense, includes a combination of two factors: the damage likely to be caused by re-offense, if it occurs, (the quality of the re-offense) and the likelihood of re-offense. The authors of the Scale contend that the quality of re-offense is in
large part determined by the seriousness of the registrant's prior offense record. The Registrant and amici, however, dispute the State's contention that the use of quality of re-offense criteria conforms with the risk factors provided by the Legislature in the RCNL. According to the Public Defender, the Legislature did not envision the creation of a scale that would classify registrants according to the potential gravity or nature of future sex offenses. The Public Defender argues that it was the Legislature's intent that tier classification be based solely on the likelihood of re-offense without regard for the degree of harm or lack of harm that might result