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In re Commitment of Franklin4/1/2004
21 U.S. 346, 357-58 (1997), to support its conclusion that the defendant's prior non-sexual misconduct was relevant because " revious instances of violent behavior are an important indicator of future violent tendencies."
. The majority opinion takes the U.S. Supreme Court's language out of context.
. What the Court actually said in Hendricks was that substantive due process in sexual predator cases requires proof of more than a disposition for violence; it requires evidence of past sexually violent behavior and a mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated:
The [Kansas] statute thus requires proof of more than a mere predisposition to violence; rather, it requires evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated. As we have recognized, " revious instances of violent behavior are an important indicator of future violent tendencies."
. If anything, the Hendricks court explicitly rejected the proposition that prior uncontrolled behavior (at least under the Kansas statute, which is substantially similar to Wisconsin's) is, in itself, sufficient to demonstrate future sexual violence.
. The U.S. Supreme Court explained in a later case that Hendricks emphasized that commitment of sexual predators cannot become a law of general deterrence. According to the Court, the dangerous sexual offender whose serious mental illness subjects him to civil commitment must be distinguished from the dangerous but typical criminal recidivist. The Court wrote as follows:
Hendricks underscored the constitutional importance of distinguishing a dangerous sexual offender subject to civil commitment "from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings." . . . That distinction is necessary lest "civil commitment" become a "mechanism for retribution or general deterrence"--functions properly those of criminal law, not civil commitment.
he severity of the mental abnormality itself must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.
. I agree with the defendant that "the closer the state gets to committing individuals based on incidents or conduct unrelated to the subject's mental disorder and their risk for committing sexually violent acts in the future the more tenuous the constitutionality of Chapter 980 becomes."
. The majority opinion's attempt to support its conclusion that the defendant's prior non-sexual misconduct was relevant to the chapter 980 determination by reference to U.S. Supreme Court precedent fails.
II.
. Assuming the majority opinion is correct that the probation and parole agent's testimony regarding the non-sexual misconduct of the defendant was relevant, I disagree with the majority opinion's conclusion that "the probative value of this evidence is not substantially outweighed by unfair prejudice to [the defendant]."
. Probative value is one facet of relevance. The court has explained probative value as follows: "The second consideration in assessing relevance is whether the evidence has probative value, that is, whether the other acts evidence has a tendency to make the consequential fact or proposition more probable or less probable than it would be without the evidence."
. Probative evidence may be excluded. Wisconsin Stat
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