Justice Patterson concluded in relevant part: In combination with disclosures concerning the State’s experts, those enumerated categories of documents enable a person facing an SVPA commitment hearing to present evidence and counter the State’s proofs. Those documents go to the heart of the State’s burden of proof by clear and convincing evidence.
The State’s experts’ reports should fully disclose the substance and foundation of the expert’s opinion in advance of the hearing, and, in combination with the expert’s CV, should set forth the expert’s qualifications to render the opinion. The report should contain a complete statement of the expert’s opinion regarding the need for civil commitment, and the basis for that opinion. The expert should state any diagnosis relevant to the opinion and explain the basis for each diagnosis. If the expert has utilized a risk assessment instrument that has been deemed reliable and admissible in a decision by this Court or the Appellate Division, the report need not generally establish the reliability of that risk assessment instrument. However, the expert must identify any risk assessment instrument used in the evaluation, address any relevant static and dynamic factors, and summarize any findings with respect to the likelihood that the person will reoffend.
An individual subject to civil commitment who contends that the State’s expert report is deficient may challenge that report under the net opinion rule or other relevant grounds. In a given case, discovery other than the discovery described above must be sought in a motion filed with the trial court on notice to the State, on a showing of exceptional circumstances. The court, in its discretion, may enter an order granting or denying the person’s application to take such additional discovery. The Court exercises its rulemaking authority to promulgate a rule limited to prehearing discovery by the individual subject to civil commitment under the SVPA as discussed above, effective thirty days after the date of this decision. The trial court’s decision is affirmed, and the matter is remanded to the trial court.
An interesting issue will be how courts handle the likely influx of adjournment requests by the defense regarding SVPA hearings that are scheduled within 30 days of this opinion. The defense has little to lose and potentially a lot to gain from the additional discovery to be provided by this new rule.