Commonwealth v. Hunt
penalty that compelled the self-incrimination was automatically imposedfollowing the defendant’s refusal to self-incriminate.
In this case, there isno mandatory penalty arising from the refusal to participate—the prisoneronly faces a possibility that the Commonwealth will attempt to use therefusal as evidence
it seeks to civilly commit him as a sexually dangerousperson.
In addition, “the defendant’s refusal to participate in sex offendertreatment is not being used against him in a criminal proceeding; hisrefusal is insufficient alone to support a finding of sexual dangerousness,and the Commonwealth is merely giving ‘evidentiary value’ to hisrefusal.”
Although there was no constitutional violation and evidence that adefendant in an SDP civil commitment proceeding did not receive sexoffender treatment is admissible, it is error to admit evidence that adefendant
sex offender treatment where he could receive suchtreatment only by waiving confidentiality.
The jury may be inclined to believe that the defendant refused treatment because he did not want to betreated rather than the waiver of confidentiality.
Thus, the probativevalue of the refusal is substantially outweighed by the risk of unfairprejudice.
Therefore, the judge erred in admitting evidence that thedefendant refused sex offender treatment and should have admitted onlyevidence that he did not receive such treatment.
Unsubstantiated rumors of rape that would be relevant only if offeredfor their truth are plainly not admissible in sexually dangerous person civilcommitment proceedings.
The evidence was not contained in anadmissible incident report and there is no applicable common-law rule ofevidence.
The instruction incorrectly gave the jury the impression that all expertsagreed that pedophilia is a mental abnormality.
Two experts testified thatthe defendant may have met the criteria for pedophilia but did not meetthe legal definition of “mental abnormality.”
The judge’s instruction
See Lefkowitz v. Cunningham
431 U.S. 801, 806-808 & n. 5 (1977).
Commonwealth v. Hunt, supra at 815.
Id. at 816-818.
Id. at 819.
Id. at 820.
Commonwealth v. Hunt, supra at 823.
Id. at 824.