A jury found Pouncy to be a sexually violent predator. Under the statute, an SVP is one who, “has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.”
Unfortunately, the trial court did not offer an instruction on what a personality disorder was, leaving the jury to fend for themselves. While it wasn’t defined by statute at the time (it has since been amended), Pouncy did offer an instruction on the matter, which was rejected by the court.
We have previously noted that “the term ‘personality disorder’ has a well-accepted psychological meaning” according to the Diagnostic and Statistical Manual of Mental Disorders (DSM). In re Pers. Restraint of Young, 122 Wn.2d 1, 50, 857 P.2d 989 (1993). The phrase “personality disorder” is not one in common usage and is beyond the experience of the average juror. It is a term of art under the DSM that requires definition to ensure jurors are not “forced to find a common denominator among each member’s individual understanding” of the term. State v. Allen, 101 Wn.2d 355, 362, 678 P.2d 798 (1984). We hold that Twining was wrongly decided insofar as it held that “personality disorder” is not a term in need of definition because it is not defined in the SVP statute.
The error was not harmless, because who knows what definition the jury used. It could have been “people who look just like Pouncy have personality disorders. Looks like he meets the definition.” As the jury was left to its own devices to determine what a personality disorder was, this will go back for a new trial (which isn’t double jeopardy, because civil commitments are…well..civil.
Also at issue was the court allowing the use of impeachment evidence against an expert. What impeachment evidence, you ask? Well, a prior judge had not allowed in the same expert in a previous case. This was of course done during a Frye hearing. It was improper to, instead of using a Frye hearing of its own, for the State to come back and use the previous Frye findings as impeachment evidence, because it was using a judge’s prior credibility determination in order to impeach in the current trial. The court explained this using an analogous federal case:
When a judge attacks a witness there is no effective defense. Peer review of such witnesses is different; if an expert does not act properly that expert ought to be attacked in the normal course of scientific debate — or in the case of a trial, with the opportunity for rehabilitation and explanation. To appropriately meet the evaluations of another judge would require the jury to delve deeply into the case that judge was trying. This enterprise is not appropriate under Rule 403.
Essentially, its allowing the former judge to impeach the witness, which is improper.
