Civil practice – SDP – Dismissed charges

Where a jury found that a petitioner remained sexually dangerous, it was error to admit the sexual sadism disorder diagnoses of three psychologists called by the commonwealth, as (1) all three experts relied on the alleged facts underlying dismissed sexual offense charges against the petitioner in 2002 and 2003, and (2) it cannot be determined from the record whether those alleged facts were “independently admissible” under Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986), and Commonwealth v. Markvart, 437 Mass. 331, 337 (2002).

Vacated and remanded for a new trial.

“… We recognize that trial judges have broad discretion to admit or exclude expert evidence, Commonwealth v. Waite, 422 Mass. 792, 804 (1996), and that discretion extends to how the admissibility of contested basis evidence is determined. Nevertheless, we conclude that the judge abused his discretion by admitting the qualified examiners’ reports and testimony without first determining, at a voir dire, the independent admissibility of the basis evidence on which they relied. …

“The qualified examiners’ reliance on the dismissed 2002 and 2003 sexual offense charges was evident from their unredacted reports. …

“As the proponent of this evidence, the Commonwealth was required to establish that the expert opinions satisfied the requirements of Markvart and Department of Youth Servs. …

“We recognize that, under Markvart, ‘there is nothing about the fact that the earlier case’ was dismissed or nol prossed that ‘would automatically preclude the qualified examiner from relying on those materials consistent with the principles articulated’ in Department of Youth Servs. Markvart, 437 Mass. at 338. At the same time, we reject any suggestion that hearsay statements in a police report are always ‘independently admissible’ under Markvart, simply because they reflect what a complainant or other witness told the police at the time about the alleged offense. Were that the case, there would never be any limitation on qualified examiners’ reliance on alleged facts in police reports for dismissed sexual offense charges — a premise that the court in Markvart implicitly rejected when it concluded that it could not ‘make any determination as to the propriety of an expert’s reliance on those materials in [that] particular case’ based on the record before it. … The court further specified that a qualified examiner’s reliance on police reports and witness statements must be ‘consistent with the requirements and limitations’ of Department of Youth Servs., Markvart, supra at 339, and noted that ‘a voir dire may be required to determine whether there would, at the time of trial, still be a way that the facts set forth in the documents could be admitted in evidence.’ … In the absence of such a threshold determination here, there was an inadequate basis for the judge to conclude that the alleged facts were independently admissible, and the admission of the expert evidence that relied on them was therefore error under Department of Youth Servs. and Markvart. …

“For the reasons detailed above, we vacate the judgment, set aside the verdict, and remand this case for a new trial.”

Tomaso, petitioner (Lawyers Weekly No. 11-046-26) (27 pages) (Toone, J.) The case was tried before Michael J. Pineault, J., in Superior Court. Frederic G. Bartmon for the petitioner; Brian P. Mansfield for the commonwealth (Docket No. 24-P-1327) (July 2, 2026).

Click here to read the full text of the opinion.