Lamb
What type of case was Lamb?
Sexually dangerous person
Name 2 methods by which a judge can satsify his/her gatekeeper role to ensure expert witness testimony is reliable
Frye: general acceptance in the relevant scientific community
Dauber-Lanigan analysis
Define legal relevance under Mass. Guide to Evidence or case law
MGE 401: evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probably than it would be without the evidence.
Comm. v. Fayerweather 406 Mass. 78, 83 "rational tendency to prove an issue in the case."
You are appointed on a commitment but your IME cannot meet with your client before a trial is scheduled. What case confirmed that you are entitled to a continuance if requested?
In re N.L. 476 Mass. 632 (2017)
c 123, 7 (c) provides that a civil commitment hearing "shall be commenced within [five] days of the filing of the petition, unless a delay is requested by the person o his counsel."
"Here the word 'unless' provides an exception to the general rule that civil commitment hearings must commence within five days of the filng of the petition. ... When a 'request' for delay is made by either the person or his counsel, tht general rule no longer applies and he hearing may commence beyond the mandatory five-day window." ..."We conclude that the plain language as well as the legislative intent of the statute require that the grant of a requested first continuance be mandatory where a denial thereof is reasonably likely to prejudice a person's ability to prepare a meaningful defense."
What type of professionals must give a Lamb warning?
physicians, psychotherapists, social workers, allied mental health workers
c. 233, sec 20B
What section of the Massachusetts Guide to Evidence codifies the foundation requirements in Daubert-Lanigan?
Section 702 of Massachusetts Guide to Evidence
Can testimony that something did not happen be of probative value?
Yes, however, it is usually less reliable than positive testimony
Your client was committed at trial but has since been discharged. The case was appealed. What case can you cite to show the matter is not moot?
In the Matter of F.C. 479 Mass. 1029
The court found that "Although an expired or terminated order may no longer have operative effect, the appeal should not be dismissed without considering the merits of the underlying order."
In what type of mental health cases must a Lamb warning be given?
In treatment plans under 123, sec 8b, guardianship cases, and section 35 matters
Under Mass Guide to Evidence and DYS v A Juvenile , when can an expert testify to an opinion based on facts and data not in evidence
1. Facts and data are independently admissible
2. Facts and data form a permissible basis for an expert opinion
3. The witness is subject cross examination designed to elicit the basis of the opinion
DYS v. Juvenile: We believe, however, that we should take a modest step by permitting an expert to base an opinion on facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion. Such a change will eliminate the necessity of producing exhibits and witnesses whose sole function is to construct a proper foundation for the expert's opinion.
If a party believes that an expert is basing an opinion on inadmissible facts or data, the party may request voir dire to determine the basis of the expert opinion. If the facts or data are admissible and of the sort that experts in that specialty reasonably rely on in forming their opinions, then the expert may state that opinion without the facts or data being admitted in evidence.
How does c. 123, sec 1 define "likelihood of serious harm?"
(1) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm;
(2) a substantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior
or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them; or
(3) a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person’s judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community.
Does a grandfather who has limited contact with his granddaughter, have standing to intervene in the granddaughter's guardianship proceeding?
Guardianship of B.V.G. 87 Mass. App. Ct. 250 (2015)
The grandfather could intervene under c.190B, sec 5-306(c) in that he could file his own petition. As to intervening as of a right, there was no showing that B.V.G. was not adequately represented by counsel, so the probate court ruling was upheld.
Can your mentally ill client who is under a commitment order waive his/her statuory Lamb privileges in Probate and Family Court?
Yes.
Does MGE 703 and DYS v. A Juvenile allow and expert to describe inadmissible data to the fact finder on direct examination?
No, see 398 Mass at 531,532
What limit is there to relevancy?
Limits include remote or speculative evidence.
i.e. In re: D.K., 2017 Mass. App. Div. 129, two months prior to hearing, 3rd prong case involving past conduct.
Can the court order placement in a nursing home where there is no finding that the alleged incompetent persons is actually incompetent?
Guardianship of D.C.
If no guardian is appointed, then there is no ability for a judge to order the transfer of a person to a nursing home.
True or false: An IME has to give a Lamb warning in a commitment matter?
Commitments: True
In Massachusetts, may an expert witness testify to their opinion about the ultimate issue? For example, can they offer an opinion about whether the client is mentally ill?
Yes, see MGE 704 "An opinion is not objectionable just because it embraces a ultimate issue. See also Commonwealth v. Wood, 419 Mass. 366, 374-375
In 2015, the Massachusetts Supreme Court, in In the Matter of G.P., 473 Mass. 112 (2015) addressed the issue of past conduct in the first two prongs of likelihood of serious harm in a M.G.L. c. 123, §35 case. Is this decision applicable to §§7 and 8 cases and how do you know it is or is not?
In In the Matter of G.P., 473 Mass. 112 (2015) discusses:
Proximity in time of evidence necessary to establish a “likelihood of serious harm” to the respondent or others for an order of commitment to issue. Specifically, evidence of past conduct and risk of harm.
In the Matter of J.C., 2018 Mass. App. Div. 63, the Court held that all of the requirements for “likelihood of serious harm” announced in Matter of G.P. are applicable in any petition under §§7 and 8 because Matter of G.P. involved the definition and application of the identical phrase “likelihood of serious harm,” appearing in M.G.L. 123, §1.
Which recent case would you cite when there is a question of the definition of "likelihood of serious harm." And, how is that defined?
In the Matter of G.P.
This is a substance abuse case under section 35.
Holdings:
1. Clear and convincing proof of the likelihood of serious physical injury (due to shorter commitment period)
2.Strict adherence to the rules of evidence do not apply.
3. Proximity in time of evidence necessary to establish a "likelihood of serious harm" to the respondent or others.
3 prongs under 123, sec 1.
Harm must be "imminent" meaning it could materialize in the reasonably short term - in days or weeks rather than in months.