State v. Silvas, No.1CA-SA 22-108(App. Div. I January 24, 2023) (J.Furuya)

https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2023/1%20CA-SA%2022-0108%20State%20v.%20Polk-Silvas.pdf

SEXUALLY VIOLENT PERSON ACT/A.R.S. § 36-3703(A)  REQUIRES “SIMULTANEOUS” DISCLOSURE OF THE IDENTITY OF EACH SIDE'S MENTAL HEALTH EXPERT BUT NOT SIMULTANEOUS DISCLOSURE OF THE EXPERT REPORTS IN CIVIL COMMITMENT PROCEEDING

The defendant was convicted of armed rape and sentenced to prison where he was convicted of kidnapping a detention officer. Upon serving his sentence the State petitioned the court to have him civilly committed under the Sexually Violent Persons Act [SVPA] See A.R.S. §§ 36-3701 to -3717.  The court ordered the State to examine the defendant and then submit a report of the examination whereupon the defendant would have time to consider the report and whether to submit to a separate expert examination by an expert of his choosing with that expert's report to follow. The State objected to this ruling and brought this Special Action. The Arizona Court of Appeals accepted jurisdiction, granting the State partial relief and denying other relief.

The SVPA permits a court to civilly commit a person if it finds “beyond a reasonable doubt” the  person  has committed a sexually violent offense and is predisposed “to such a degree that he or she is dangerous to others, making it highly probable they will commit sexual violence.” The SVPA provides that the State and defendant can agree on one mental health expert to evaluate the defendant in the civil commitment action or each may choose their own separate mental health expert “to perform simultaneous evaluations of the person.” A.R.S. § 36-3703(A).

This statute requires that the defendant disclose his expert “simultaneously” with the State disclosing theirs and “any expert witness [the defendant] intends to retain must evaluate him within ‘close temporal proximity' to the evaluation conducted by the State's expert, meaning the evaluations must occur on the same day, or on different days separated by only such time as necessity demands.” 

Finally, the statute does not require “simultaneous” disclosure of the expert reports that follow the examinations. The trial court is permitted to establish a sequential order of production of expert reports