Psychiatric Testimony and the SVPA (Part 3)

Justice Fernandez-Vina continued in relevant part: The Court presumes that, as it crafted the SVPA, the Legislature was aware that the courts had interpreted the general civil commitment statute to require psychiatric testimony in support of commitment. The Legislature nevertheless used the exact same phrasing in the SVPA, without a corrective definition, thus reflecting legislative intent to require psychiatric testimony in support of commitment under the SVPA as well.

The SVPA itself maintains an important and consistent burden on the State, requiring psychiatric testimony in support of commitment at each stage in the proceedings. To initiate commitment proceedings under the SVPA, the State must present at least one clinical certificate prepared by a psychiatrist in support of commitment. N.J.S.A. 30:4- 27.2(b), -27.28(c). The SVPA further requires the State to produce psychiatric testimony at both the initial commitment hearing and at each review hearing. When viewing the statute as a whole, it would be discordant to demand more from the certifications required to commence a hearing than from the testimony provided at the hearings.

Because of the passage of time between the trial court’s decision and the issuance of this opinion, the Court affords the State an opportunity to provide a psychiatrist in support of commitment in a new review hearing. Pending the court’s determination after that rehearing, W.W. shall remain committed under the SVPA.

The end of this passage had a surprise twist that appears to favor the State and work against the defendant. Presumably, the Court would not allow the State more time to provide an expert if they were required to use the same expert that undermined their position. Therefore, it appears that the State will have to retain a new psychiatric expert and that expert will have to become familiar with the defendant. During that time, the defendant will remain committed. Moreover, if the State’s retention of a new psychiatrist means that the old psychiatrist loses work, there will be a perverse incentive for similarly-situated psychiatrists to opine in favor of the State’s position in order to maintain their employment.