Background
Michael Tomaso was convicted of sexual offenses on three occasions spanning 1977 to 1991 — incidents ranging from indecent exposure to fondling a stranger on a bus. In 2009, a jury found him to be a sexually dangerous person (SDP) under G.L. c. 123A and he was committed to the Massachusetts Treatment Center. A decade later, Tomaso petitioned the Superior Court for examination and potential discharge under § 9 of the SDP statute, arguing he was no longer sexually dangerous.
At the discharge trial, the Commonwealth called three mental health professionals — two court-appointed qualified examiners and a Community Access Board (CAB) witness — each of whom opined that Tomaso remained sexually dangerous and was likely to reoffend. The load-bearing diagnosis for all three was sexual sadism disorder, defined by the DSM-5 as recurrent intense sexual arousal from the suffering of another person. The problem: all three experts built their sexual sadism diagnoses almost entirely on the alleged facts in police reports for charges that had been dismissed before trial in 2002 and 2003. The 2002 charges, from Rhode Island, were dropped for insufficient evidence with the complainant unable to be located. The 2003 Massachusetts charges were dismissed when prosecutors determined the evidence was insufficient at the time of the defendant’s 2006 plea to non-sexual offenses. Neither set of charges resulted in a conviction, admission, or any adjudicated finding of fact.
Before trial, Tomaso’s counsel moved to exclude the expert opinions or, alternatively, requested a voir dire to determine whether the underlying dismissed-charge allegations were independently admissible — a procedural safeguard recognized in Commonwealth v. Markvart, 437 Mass. 331 (2002). The trial judge denied the voir dire, ruled that experts could rely on the police reports because the alleged victims theoretically “could” testify, redacted dismissed-charge details from the jury-facing exhibits, and proceeded to trial. The jury found Tomaso remained sexually dangerous. He appealed.
The Court’s Holding
Voir dire was required and its absence was reversible error. Writing for a unanimous panel, Judge Toone vacated the judgment, set aside the verdict, and remanded for a new trial. The court applied the framework for expert basis evidence in SDP proceedings established in Department of Youth Servs. v. A Juvenile, 398 Mass. 516 (1986), and refined in Markvart: a qualified examiner may rely on facts not in evidence only if those facts are (1) personally observed, (2) already in the record or to be admitted, or (3) independently admissible and a permissible basis for expert opinion. Only the third path was at issue.
The court rejected the Commonwealth’s implicit premise that hearsay in a police report is automatically independently admissible simply because the report reflects what a complainant told officers at the time. Massachusetts has deliberately declined to adopt Federal Rule of Evidence 703, which permits experts to rely on inadmissible material that experts in the field would “reasonably rely on.” Under Massachusetts’s more restrictive standard — preserved in Department of Youth Servs. — the facts an expert relies on must themselves be admissible through competent evidence. The Commonwealth was required to show, affirmatively, that the 2002 and 2003 complainants could and would testify. It never did so. Tomaso, by contrast, had placed specific contrary evidence before the judge: a Rhode Island Attorney General pleading acknowledging the complainant could not be located, and a plea-hearing transcript where prosecutors explained why the 2003 charges were dropped. The Commonwealth’s only rejoinder — that cross-examination would cure any deficiency — was rejected as no answer at all. Probing dismissed-charge details on cross would have exposed the jury to the excluded allegations and opened the door to redirect, defeating the purpose of the pretrial order.
The error was prejudicial. In the Commonwealth’s own words at trial, the sexual sadism disorder diagnosis was based on the 2002 and 2003 dismissed-charge allegations “almost entirely, if not entirely.” Without those facts, the expert opinions became internally inconsistent: one examiner had refrained from rendering a full personality disorder diagnosis for lack of data; the other could not coherently claim Tomaso “continued sexually offending” after his last conviction in 1991 without pointing to the unproven later conduct. Sexual sadism disorder carries unique weight in an SDP trial — it is qualitatively different from an antisocial personality finding, and a jury could reasonably conclude only the former justifies continued civil commitment. The court could not say the error had “very slight effect.”
Key Takeaways
- Under Markvart and Department of Youth Servs., qualified examiners in Massachusetts SDP discharge proceedings may rely on dismissed-charge police reports only if the underlying facts are independently admissible — meaning they could actually be proven at trial through competent evidence. The theoretical availability of a witness is not enough; the Commonwealth must make an affirmative showing.
- When a petitioner requests a voir dire and presents specific evidence casting doubt on whether dismissed-charge facts could be proven — such as a complainant who cannot be located or a prosecutor’s own statement that the charge was unprovable — the trial court must hold that hearing before experts may testify.
- Cross-examination is not a substitute for the pre-trial independent admissibility determination: exploring dismissed-charge allegations on cross exposes the jury to otherwise excluded information and opens the door to redirect on those same facts.
- Massachusetts courts have deliberately not adopted Federal Rule 703’s “reasonably relied on by experts in the field” standard; experts in SDP proceedings may not use inadmissible hearsay simply because other psychologists do so.
- A sexual sadism disorder diagnosis is not interchangeable with a lesser mental-abnormality finding for harmless-error analysis: where it is the linchpin of the jury’s SDP determination, its erroneous admission warrants vacatur.
Why It Matters
Tomaso is a meaningful ruling for Massachusetts SDP practitioners on both sides. For defense counsel, the decision confirms that Markvart’s voir dire mechanism has real teeth. When a petitioner’s last sexual conviction is remote in time and the Commonwealth’s experts rely on more recent but unproven allegations to construct a current-dangerousness diagnosis, a targeted motion in limine — supported by specific evidence about witness unavailability or the circumstances of the dismissal — can force the Commonwealth to prove those facts are admissible before the jury ever hears the clinical label. Failing to make that record is a missed opportunity; making it, as Tomaso’s counsel did here, produced a full vacatur after a verdict.
For prosecutors and qualified examiners, the decision is a workflow caution. Where the complainants from dismissed charges cannot be located, have indicated they will not cooperate, or where the contemporaneous record reflects why the charges were dropped, centering a sexual sadism disorder diagnosis on those facts alone creates serious appellate exposure. The safer approach is a diagnostic picture grounded in conviction records, institutional behavior, actuarial instruments, and the pattern evidence that Massachusetts’s evidentiary rules actually permit — not on allegations that courts and prosecutors already found too weak to pursue.