The Lack of Evidentiary Standards in Texas Sexual Predator Civil Commitment Proceedings

Abstract

The current legal landscape of evidentiary standards in Texas is one of inconsistency and uncertainty. The civil commitment proceedings of sexually violent predators are governed by the Texas Rules of Evidence -- until they are not. The Texas Health and Safety Code provides for the admission of evidence that is otherwise inadmissible under the Texas Rules of Evidence, which results in inconsistency and uncertainty in the application of the Texas Rules of Evidence in civil trials. The most concerning aspect of the inconsistency and uncertainty that is produced by the application of the Texas Health and Safety Code is the admissibility of penile plethysmographs. However under the Texas Rules of Evidence, expert testimony that relies solely on penile plethysmographs would not be admissible under a Rule 702 Daubert v. United States analysis. If penile plethysmographs are only one factor out of many considered by the expert witness, then the basis for the expert’s opinion -- the offender’s penile plethysmograph results -- would be inadmissible under Rule 705 and Rule 403. Furthermore, the holding of Old Chief v. United States should be expanded to allow for stipulations for the basis of the expert’s opinion when the basis of the expert’s opinion fails the Rule 403 balancing test. In addition to revising the Texas Health and Safety Code, the Texas Legislature should expand the use of stipulations to allow for the basis of the expert’s opinion to be stipulated to. By explaining the use of stipulations, the basis of the expert’s opinion, while otherwise inadmissible, would still assist the jury by helping them understand the expert’s opinion. While the current legal landscape if inconsistent and uncertain, the Texas Legislature has the ability to act and ensure basic evidentiary standards are upheld by revising Chapter 841 of the Texas Health and Safety Code. This Article aims to outline the evidentiary inconsistencies between the Texas Rules of Evidence and the Texas Health and Safety Code in relation to the admissibility of penile plethysmographs in the civil commitment proceedings of sexually violent predators. Furthermore, this article contains recommendations concerning how these inconsistencies should be managed in order to ensure consistent trial outcomes and preserve the integrity of the court.