On certification to the Superior Court, Appellate Division, whose opinion is reported at 285 N.J. Super. 343 (l995).
The opinion of the Court was delivered by Garibaldi, J. Justices Handler, Pollock, O'hern, and Coleman join in Justice Garibaldi's opinion. Justice Stein concurs only in the judgment of the Court.
The opinion of the court was delivered by: Garibaldi
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
IN THE MATTER OF THE REGISTRANT, C.A. (A-142-95)
Argued March 26, l996 -- Decided July 31, 1996
GARIBALDI, J., writing for the Court.
In October 1994, the Legislature enacted a group of bills, collectively known as "Megan's Law," to protect the community from the dangers of recidivism by sexual offenders. In Doe v. Poritz, this Court upheld the constitutionality of two of those bills, the Registration Law that requires certain sexual offenders to register with law enforcement, and the Community Notification Law (collectively referred to as RCNL). In this appeal, the Court considers whether a nonconviction offense may be considered in determining a convicted sex offender's tier classification under the RCNL, and whether the prosecutor's use of documentary hearsay evidence to prove that alleged offense offends procedural due process and the doctrine of fundamental fairness. The Court also addresses issues that relate to the validity of the Registrant Risk Assessment Scale.
The RCNL contemplates three levels of community notification, depending on the degree of the risk of re-offense. If the risk of re-offense is low, notification must be to law enforcement agencies likely to encounter the person registered (Tier One). If the risk of re-offense is moderate, organizations in the community and law enforcement agencies are to be notified (Tier Two). If the risk of re-offense is high, the public shall be notified in accordance with the Attorney General's Guidelines, in addition to the notification of law enforcement authorities and community organizations (Tier Three).
The Attorney General (AG) promulgated Guidelines and procedures for the notification that identify factors relevant to the determination of the risk of re-offense, including those enumerated in the RCNL, and the appropriate tier-level of notification. A registrant is rated by the local county prosecutor pursuant to the Guidelines and the Registrant Risk Assessment Scale (Scale). A Committee of mental health experts and members of law enforcement, convened by the AG, drafted the Scale and the accompanying Registrant Risk Assessment Manual (RRA Manual), that explains the Scale. The Scale focuses on two factors: the seriousness of the offense should the offender recidivate; and the likelihood that the offender will recidivate. The Scale identifies thirteen factors, including the eight statutory factors, as well as other factors deemed relevant to the risk of re-offense. Those factors are assigned to one of four larger categories: "Seriousness of Offense," "Offense History," "Characteristics of Offender," and "Community Support." Each registrant is assigned a score for each of the thirteen factors depending on an objective appraisal of that registrant. Because historical factors tend to be the most powerful predictors of future offenses, the Scale gives greater weight to the "Seriousness of Offense" and "Offense History" factors than to the "Characteristics of Offender" and "Community Support" factors. The final score determines what Tier the registrant will be placed in.
In Doe v. Poritz, this Court held that a hearing is required prior to notification under Tiers Two and Three. The RCNL judicial hearing process under Doe v. Poritz is not governed by the Rules of Evidence, and the reviewing court may rely exclusively on documentary evidence on all issues. The prosecutor has the burden of going forward with prima facie evidence that justifies the proposed level and manner of notification. Assuming that burden is met, the registrant then has the burden of producing evidence challenging the prosecutor's determinations on both issues. If the State has satisfied its burden of going forward, the court should affirm the prosecutor's determination, unless it is persuaded by a preponderance of the evidence that it does not conform to the laws and Guidelines.
On June 14, 1991, C.A. pled guilty to fourth degree sexual assault and burglary and received two year probationary term for digital penetration of a female victim. Two days later, A.Z. reported to police that she had been raped by C.A. In his defense, C.A. claimed that he did not rape A.Z.; rather they had engaged in consensual sex in exchange for drugs. Based on A.Z.'s complaint, the State obtained an indictment, charging C.A. with sexual assault, robbery, and weapons offenses. On January 30, 1992, another woman reported a rape committed by C.A. He was charged with aggravated sexual contact. Pursuant to a plea agreement, C.A. pled guilty to third-degree aggravated criminal sexual contact for the January 30th incident in exchange for a dismissal of the earlier indictment concerning the rape of A.Z. C.A. was sentenced to five years' imprisonment, with a two-and-one-half year period of parole ineligibility.
Prior to his release from jail, C.A. was notified that, pursuant to his score under the Scale, he would be classified as Tier Three. C.A. argued that he should be classified in Tier Two and requested a judicial hearing, alleging substantive and procedural deficiencies. C.A. contended that the scoring was incorrect because: he never used a weapon; he was acquainted with all of his victims; and he only had two victims since A.Z. should be excluded as the dismissed charge was not an offense for purposes of coverage under the RCNL. C.A. further contended that the State's documentary hearsay was not credible and requested an evidentiary hearing in which the victim, A.Z., among others, would testify. The trial court affirmed the Tier Three classification, finding that the nonconviction offense could be counted, the documentary evidence submitted was sufficiently reliable to establish that the A.Z. incident occurred, and a hearing was not required.
On appeal, the Appellate Division agreed that the nonconviction offenses could be counted, and that documentary evidence could be used to evaluate nonconviction offenses. The court, however, in reversing and remanding, noted that documentary evidence should only be admitted into evidence when adJudged reliable based on the totality of the circumstances surrounding the statements being considered. The court concluded that, because C.A.'s story created a direct factual conflict, a hearing was required. The Appellate Division held that neither side could serve process on the victim without leave of court, to be granted only on a clear and convincing demonstration of a compelling need for that witness's testimony.
The Supreme Court granted C.A.'s petition for certification.
Balancing C.A.'s procedural due process rights and the right to fundamental fairness with the community's right to protect itself against the risk of re-offense, C.A.'s prior nonconviction offense may be considered in determining his tier classification and the State may prove that offense solely by reliable documentary hearsay evidence. C.A. presented sufficient evidence to create a material factual question about the nature and circumstances of the offense that may have had a significant effect on his Tier classification. In addition, the Registrant Risk Assessment Scale is a reliable and useful tool that the State can use to establish its prima facie case concerning a registrant's tier classification and manner of notification. The procedures provided in a civil hearing concerning a registrant's tier classification and manner of notification together with the requirement for judicial review of those decisions adequately protect the registrant's rights to procedural due process and to fundamental fairness.
1. The Scale's inclusion of nonconviction offenses as relevant to the risk of re-offense accords with the views of other courts and commentators, is statutorily authorized, and is a rational implementation of the AG's delegated power. (pp. 13-21)
2. Hearsay that is reliable, even though not deemed sufficiently reliable to be admitted under the Rules of Evidence, should be admissible and sufficient to allow the State to sustain its burden of presenting a prima facie case. Admission of reliable hearsay is compatible with C.A.'s right to procedural due process and fundamental fairness. Trial courts must carefully evaluate the proffered hearsay to ensure that the hearsay is reliable under the totality of circumstances surrounding that statement. (pp. 21-26)
3. If a defendant produces proof, whether in the form of reliable hearsay, affidavit, or an offer of live testimony, that is sufficient to raise a genuine issue of material fact that the tier classification and the manner of notification are inappropriate, then the trial court should convene a fact-finding hearing and permit live testimony. The hearing format suggested in Reyes for probation violation hearings is the appropriate procedure in notification cases when the offender has raised a genuine issue of material fact. Neither side may compel the victim's testimony without leave of court, which should be granted only in the rarest cases. (pp. 26-28)
4. Because the hearsay statements were reliable, they were properly admitted and would be sufficient to sustain the State's burden of proof in presenting a prima facie case that C.A. deserved to be classified as Tier Three. Nonetheless, C.A. raises a genuine issue of material fact in his claims that he did not use a knife and that A.Z. engaged in a consensual trade of sex for drugs. He, therefore, should be granted a hearing to determine whether he has established by the preponderance of evidence that the offense did not occur or that he did not possess a knife during the offense. If C.A. establishes those facts, then the Scale must be recalculated. This procedure is in accordance with Doe v. Poritz and the RCNL and properly and fairly balances the procedural due process rights of the registrant with the needs of the community, as well as protecting the rights of the victim. (pp. 28-31)
5. The AG's decision to include factors in the Scale that relate to the quality or nature of a re-offense is consistent with the RCNL and Doe v. Poritz. The Scale's "Seriousness of Offense" and "Offense History" categories are considered static because they relate to the registrant's prior criminal conduct. The "Characteristics of Offender" and "Community Support" are considered to be dynamic categories because they are evidenced by current conditions. The Committee's decision to weight the static factors higher than the dynamic factors is consistent with the majority of scientific literature that concludes that the static factors used in the Scale are the best predictors of risk of re-offense. Although the weights assigned to the categories in the Scale have not been scientifically proven to be valid, the State has produced sufficient evidence demonstrating that the factors used in the Scale are reliable predictors of recidivism and are weighted in the Scale according to their relative effectiveness as predictors. (pp. 35-40)
6. Empirical validation of the Scale is neither feasible nor practicable. Based on the record presented, the Scale is an appropriate and reliable tool and is consistent with the requirements of the RCNL and Doe v. Poritz. The Scale gives prosecutors a reasonably objective measure on which to assign registrants to a tier classification. Although a tier classification made on the basis of the Scale should be afforded deference, a court should not rely solely on a registrant's point total when it conducts judicial review of the correctness of a prosecutor's tier level classification or manner of notification decisions. (pp. 40-45)
The judgment of the Appellate Division in is AFFIRMED.
JUSTICES HANDLER, POLLOCK, O'HERN, and COLEMAN join in JUSTICE GARIBALDI'S opinion. JUSTICE STEIN concurs only in the judgment of the Court.
The opinion of the Court was delivered by GARIBALDI, J.
In October 1994, the Legislature enacted a group of eleven bills, collectively known as "Megan's Law" in memory of a seven year-old girl killed by a convicted sexual offender. In Doe v. Poritz, 142 N.J. 1, 109, 662 A.2d 367 (1995), we upheld the constitutionality of two of those bills, the Registration Law that requires certain sexual offenders to register with law enforcement, N.J.S.A. 2C:7-1 to -5, and the Community Notification Law, N.J.S.A. 2C:7-6 to -11 (collectively referred to as RCNL). In this appeal, we further interpret and apply those laws. Specifically, we consider whether a nonconviction offense may be considered in determining a convicted sex offender's tier classification under the RCNL, and whether the prosecutor's use of documentary hearsay evidence to prove that alleged offense offends procedural due process and the doctrine of fundamental fairness. We also address issues, not directly raised in this appeal, that relate to the validity of the Registrant Risk Assessment Scale that the Court sua sponte requested the parties and amici curiae to address.
We explained the purpose behind Megan's Law in detail in Doe v. Poritz, (supra) , 142 N.J. at 12-20. The Legislature enacted Megan's Law to protect the community from the dangers of recidivism by sexual offenders. N.J.S.A. 2C:7-la. The Legislature also wanted to provide law enforcement agencies with additional information about sex offenders in their community because that information is "critical to preventing and promptly resolving incidents involving sexual abuse and missing persons." N.J.S.A. 2C:7-lb. The statute provides that sex offenders shall register with local authorities. N.J.S.A. 2C:7-2a. The sex offenses that trigger required registration are set forth in N.J.S.A. 2C:7-2b.
After registration by the offender, the chief law enforcement officer in the municipality where a registrant intends to reside is required to provide notification in accordance with N.J.S.A. 2C:7-8. That statute contemplates three levels of notification "depending upon the degree of the risk of re-offense." N.J.S.A. 2C:7-8a.
(1) If risk of re-offense is low, law enforcement agencies likely to encounter the person registered shall be notified;
(2) If risk of re-offense is moderate, organizations in the community including schools, religious and youth organizations shall be notified in accordance with the Attorney General's guidelines, in addition to the notice required by paragraph (1) of this subsection;
(3) If risk of re-offense is high, the public shall be notified through means in accordance with the Attorney General's guidelines designed to reach members of the public likely to encounter the person registered, in addition to the notice required by paragraphs (1) and (2) of this subsection.
All registrants are subjected to at least Tier One notification, which requires registration with law enforcement agencies. Doe v. Poritz, (supra) , 142 N.J. at 22.
N.J.S.A. 2C:7-8a requires the Attorney General, after consultations with members of the advisory council, to "promulgate guidelines and procedures for the notification required pursuant to the provisions of this act. The guidelines shall identify factors relevant to risk of re-offense and shall provide for three levels of notification depending upon the degree of the risk of re-offense." The Legislature instructed the Attorney General that
Factors relevant to risk of re-offense shall include, but not be limited to, the following:
(1) Conditions of release that minimize risk of re-offense, including but not limited to whether the offender is under supervision of probation or parole; receiving counseling, therapy or treatment; or residing in a home situation that provides guidance and supervision;
(2) Physical conditions that minimize risk of re-offense, including but not limited to advanced age or debilitating illness;
(3) Criminal history factors indicative of high risk of re-offense, including:
(a) Whether the offender's conduct was found to be characterized by repetitive and compulsive behavior;
(b) Whether the offender served the maximum term;
(c) Whether the offender committed the sex offense against a child.
(4) Other criminal history factors to be considered in determining risk, including:
(a) The relationship between the offender and the victim;
(b) Whether the offense involved the use of a weapon, violence, or infliction of serious bodily injury;
(c) The number, date and nature of prior offenses;
(5) Whether psychological or psychiatric profiles indicate a risk of recidivism;
(6) The offender's response to treatment;
(7) Recent behavior, including behavior while confined or while under supervision in the community as well as behavior in the community ...