W.J.C. v. County of Vilas

CANE, P.J.

(concurring). I agree with the majority that telephone testimony is admissible in involuntary commitment hearings. I write separately, however, to emphasize the constitutional distinction between criminal actions and civil commitment proceedings. For purposes of due process analysis, a civil commitment proceeding cannot be equated to a criminal prosecution. Addington v. Texas, 441 U.S. 418, 428 (1979); see also Milwaukee County v. Parham, 95 Wis. 2d 21, 25, 289 N.W.2d 326, 328 (Ct. App. 1979).

A civil commitment constitutes a significant deprivation of liberty that requires due process protection. Addington, 441 U.S. at 425. The function of due process is to minimize the risk of erroneous decisions. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The Constitution tolerates a higher threshold of error in commitment proceedings, however, than in criminal prosecutions. For example, the Constitution does not require proof “beyond a reasonable doubt” in order to commit an individual. Addington, 441 U.S. at 431. Wisconsin requires proof by clear and convincing evidence in commitment proceedings. Section 51.20(13) (e), Stats. The reasonable-doubt standard manifests concern that the risk of error to the individual be minimized at the risk that some who are guilty might go free. Addington, 441 U.S. at 428. In Addington, however, the Su *243 preme Court stated that it is not much better for a mentally ill person to go untreated than for a mentally normal person to be committed. Id. at 429. While I agree, therefore, that the critical question in this case concerns the reliability of the decisionmaking procedures, reliability should not be evaluated against criminal standards.

Although telephone testimony by expert witnesses does not conform to the procedures used in criminal proceedings, it does not violate due process. In Parham v. J.R., 442 U.S. 584, 607 (1979), the Supreme Court held that a commitment decision can be made by a psychiatrist using informal medical investigative techniques. Although the psychiatrist must consult all sources of information traditionally relied on by physicians and behavioral specialists, the diagnostic procedure is a matter left to the decisionmaker. Id. at 608-09. Due process is not violated, therefore, by diagnostic procedures that do not rely exclusively on information derived from face-to-face confrontations.

The requirements of due process do not change simply because a judicial-type commitment hearing is held before a nonspecialist decisionmaker. A state may require a formal hearing before a judge or jury, although it is not constitutionally required to do so. Id. at 607. After a formal hearing, a judge or jury must make the same medical-psychiatric decision that the specialist makes. Id. at 609. No reason justifies requiring the nonspecialist to rely on evidence derived from face-to-face confrontations, while imposing no such requirement on the specialist.

The primary purpose of face-to-face confrontation is to insure that the trier of fact has a satisfactory basis for evaluating the truthfulness of evidence. State v. Bauer, 109 Wis. 2d 204, 208, 325 N.W.2d 857, 859-60 (1982). The commitment decision, however, is essentially a medical question that turns on the meaning of *244 facts interpreted by expert psychiatrists and psychologists. Parham, 442 U.S. at 609. The correctness of opinions formed by such experts does not raise a question of honesty or truthfulness. This is indicated by the Supreme Court’s conclusion that such experts constitutionally may make the final commitment decision. Id. at 607. When a nonspecialist decisionmaker evaluates the testimony of psychiatric experts, therefore, truthfulness is not an issue. As a result, face-to-face confrontation of such experts does not serve any truth enhancing purpose. The state therefore did not violate W.J.C.’s constitutional or statutory due process rights.