Assignment 2: Critical Evaluation of Court Case
It is important to understand the impact an expert testimony may have in the ultimate decision made by a court. In addition, it is helpful for practitioners of forensic psychology to be able to read and understand legal cases.
Click here to review the case Commonwealth of Virginia v. Allen (2005).
The case describes an appellate legal opinion or court decision involving expert witness testimony. When a case is appealed, it goes to an appellate or to a higher court. The appellate court then reviews the findings of the lower court, which in this case was the trial court. The appellate court offered the following two opinions: The first opinion (Commonwealth of Virginia v. Allen, 2005, pp. 1–24) is the majority opinion and is the one that counts. The second opinion (Commonwealth of Virginia v. Allen, 2005, pp. 24–31) is an opinion filed by a minority of judges who concurred (agreed) in part and dissented (disagreed) in part with the majority of the judges who ruled.
After reading the appellate legal opinion, write a 2- to 3-page paper addressing the following: Discuss whether either of the expert witnesses in this case acted unethically. Support your opinion with the relevant APA or specialty ethical guidelines. Indicate whether you agree with the majority decision or the minority concurring or dissenting opinion. Explain why.
The paper should be in APA style.
Present: All the Justices COMMONWEALTH OF VIRGINIA* v. Record No. 041454
RICHARD BRYAN ALLEN
JUSTICE LAWRENCE L. KOONTZ, JR.
March 3, 2005
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge Designate
Pursuant to Code § 37.1-70.6(A), the Commonwealth
petitioned the Circuit Court of the City of Alexandria to
civilly commit Richard Bryan Allen as a sexually violent
predator. Following a hearing, the trial court sitting without
a jury determined that the Commonwealth had not met its burden
of proving by clear and convincing evidence that Allen is a
sexually violent predator. Accordingly, the trial court
dismissed the Commonwealth’s petition. The Commonwealth appeals
from this judgment, contending that the trial court erred in
admitting the testimony of Allen’s expert witness, a
psychologist who is not licensed to practice in Virginia. The
Commonwealth further contends that the trial court erred in
finding that the Commonwealth had not met its burden of proof.
* In the trial court this case was styled “Jerry W. Kilgore, Attorney General of Virginia, ex rel. Commonwealth of Virginia v. Richard Bryan Allen.” We have amended the style of the case to reflect that the Commonwealth is the real party in interest, not a relator. See Townes v. Commonwealth, 269 Va. ___, ___ n.*, ___ S.E.2d ___, ___ n.* (2005) (today decided).
On January 19, 1983, Allen was convicted of the aggravated
sexual battery of an eight-year-old girl and a nine-year-old
girl. Allen was sentenced to ten years’ imprisonment for each
offense, with the sentences to run consecutively.
Allen was released on parole on September 13, 2001. Within
days of his release, however, Allen violated the conditions of
his parole and was returned to prison to serve the remainder of
his sentence. On July 9, 2003, as required by Code § 37.1-
70.4(C), the Director of the Virginia Department of Corrections
notified the Commitment Review Committee (CRC) that Allen, who
was scheduled to be released from prison on September 14, 2003,
was subject to review for commitment because he was incarcerated
for a sexually violent offense and had been identified through a
preliminary screening test as being likely to re-offend. As
required by Code § 37.1-70.5(B), the CRC referred Allen to Dr.
Ronald M. Boggio, Ph.D., a licensed clinical psychologist, for
evaluation. Following receipt of Dr. Boggio’s evaluation
report, the CRC completed its assessment of Allen and, on August
7, 2003, forwarded to the Attorney General a recommendation that
the Commonwealth seek to have Allen committed to a secure mental
health facility as a sexually violent predator.
On August 14, 2003, the Commonwealth filed in the trial
court a petition for the civil commitment of Allen as a sexually
violent predator. The trial court appointed counsel to
represent Allen, Code § 37.1-70.2, and, upon Allen’s motion,
ordered that funds be provided for a mental health expert to aid
in Allen’s defense, Code § 37.1-70.8. Thereafter, the trial
court conducted a hearing as required by Code § 37.1-70.7. The
trial court determined that there was probable cause to believe
that Allen is a sexually violent predator and ordered that Allen
be held in custody until a full hearing on the Commonwealth’s
petition could be conducted. Although permitted by Code § 37.1-
70.9(B), neither Allen nor the Commonwealth requested a jury
trial on the commitment petition.
On December 12, 2003, the trial court conducted a trial on the Commonwealth’s petition.1 The Commonwealth presented evidence from Carmen Baylor, the custodian of records for the Greensville Correctional Center where Allen had been
1 Code § 37.1-70.9 requires that the trial be conducted within 90 days of the determination of probable cause under Code § 37.1-70.7. In a continuance order entered October 30, 2003, Allen waived his objection to the ninety-day requirement.
incarcerated. Baylor testified that while incarcerated Allen had committed 246 institutional infractions, including 15 for assault, four for indecent exposure, most recently in January 2003, and one instance of having consensual sex with another inmate.2 Barbara Ward, a senior probation/parole officer with the
Alexandria Adult Probation/Parole Office testified for the
Commonwealth that she was assigned to supervise Allen’s parole
following his initial release from prison on September 13, 2001.
Ward testified that she explained the rules of his parole to
Allen, and that he acknowledged his agreement to abide by them.
Nonetheless, Allen was late for his next meeting with Ward on
September 17, 2001 and failed to appear for the next subsequent
Ward testified she learned that Allen had been seen with a
young woman with Down’s Syndrome who was referring to Allen as
2 Allen has not assigned cross-error to the admission of evidence concerning non-sexual institutional infractions or the total number of infractions. Accordingly, we express no opinion on the admissibility of that evidence and will consider its weight in reviewing the trial court’s final judgment. But see McCloud v. Commonwealth, 269 Va. ___, ___, ___ S.E.2d ___, ___ (2005) (holding that trial court did not abuse its discretion in limiting introduction of such evidence in a jury trial on the Commonwealth’s petition to commit a prisoner as a sexually violent predator).
her “boyfriend.” After Allen was arrested for violating the
terms of his parole by failing to meet with Ward, Ward went to
Allen’s room at the halfway house where he had been staying and
discovered that he had come into possession of a pornographic
Dr. Boggio, the psychologist who had performed the pre-
release evaluation of Allen for the CRC, testified as the
Commonwealth’s mental health expert. Dr. Boggio principally
based his testimony upon the personal interview and tests he had
conducted during his evaluation of Allen. Dr. Boggio testified
that Allen recounted a lengthy history of behavioral problems
from an early age, including setting fires, police
confrontations, and hitting other children and teachers. Allen
was suspended from the New York City public schools as a result
of his violence, and lived as a runaway for a period of time.
Dr. Boggio further testified that Allen bragged about the
extent of his violent behavior and expressed no remorse. Allen
told Dr. Boggio that ever since Allen was a child he had been
known for having a “temper problem” and for being easily
angered. When Allen was a teenager, he pulled a knife on a
female co-worker who referred to him with a racial slur.
According to Dr. Boggio, Allen had a long history of
psychiatric care that began as a juvenile, including both in-
patient and out-patient treatment. Allen was expelled for
fighting from the Commonwealth Center for Children &
Adolescents, then known as the DeJarnette Center, an acute care
mental health facility operated by the Virginia Department of
Mental Health, Mental Retardation and Substance Abuse Services.
Dr. Boggio also reviewed the pre-sentence investigation from
Allen’s convictions for aggravated sexual battery, which
revealed that his behavioral problems began at age four-and-a-
half, including disruptive and aggressive behavior, and later
included sexually inappropriate behavior. Allen also reported
13 suicide attempts, beginning at age 13. Dr. Boggio also
testified that the official records indicated Allen had
diagnoses of the depressive disorder spectrum as well as
antisocial personality disorder (APD) and polysubstance
dependence. At least two of Allen’s institutional charges were
for possession or use of alcohol or illegal substances.
Allen reported to Dr. Boggio that his first sexual
experience was intercourse with two girls when he was 16; one
girl was between 11 and 13 years of age and the other was 13 or
14. Allen also told Dr. Boggio that he had an on-going sexual
relationship with an eleven-year-old girl when he was seventeen.
Allen also claimed to have had a sexual relationship with the
mother of his two victims, and admitted that he had engaged in
homosexual activity while in prison. Allen claimed never to
have been “in love” with anyone despite having had many
Dr. Boggio testified that Allen claimed he thought his
nine-year-old victim was twelve, because she was “very
developed.” He also claimed that the nine-year-old victim
initiated the sexual encounter. He denied having assaulted the
eight-year-old victim. Dr. Boggio found it important to note
that Allen had no immediate post-abuse feelings about himself,
the victims, or his behavior other than to deny involvement, and
that Allen expressed no remorse for the victims. Similarly,
Allen denied responsibility for the infractions he committed
Dr. Boggio diagnosed Allen with APD, dysthymic disorder,
and polysubstance dependence. Dr. Boggio testified, reading
from the American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders, (4th ed. Revised text
2000), regarding APD:
In order to meet this diagnosis, one has to have three
of the following: Failure to conform to social norms
with respect to lawful behaviors, as indicated by
repeatedly performing acts that are grounds for arrest
. . . deceitfulness, as indicated by repeated lying,
use of aliases, or conning others for personal profit
or pleasure . . . impulsivity or failure to plan ahead
. . . irritability and aggressiveness, as indicated by
repeated physical fights or assaults . . . reckless
disregard for the safety of self or others . . .
consistent irresponsibility, as indicated by repeated
failure to sustain consistent work behavior or honor
financial obligations . . . lack of remorse, as
indicated by being indifferent to or rationalizing
having hurt, mistreated, or stolen from another.
Additionally, the individual has to be at least 18
years of age and has evidence of conduct disorder with
onset before age 15.
Dr. Boggio testified that Allen met all of these criteria, with
the possible exception of failing to maintain a consistent work
Based on tests he administered to Allen, Dr. Boggio
testified that Allen has a composite IQ score of 103, plus or
minus 6 points, indicating that Allen is of average
intelligence. Dr. Boggio also had Allen complete the Millon
Clinical Multiaxial Inventory-III (MCMI-III). Dr. Boggio
testified that Allen’s responses to the MCMI-III showed that he
has longstanding personality defects with no coping mechanisms,
meaning that Allen would repeat problem behaviors over and over
again, despite the consequences.
Dr. Boggio also had Allen complete the Hare Psychopathy
Checklist Revised (Hare), an instrument designed to measure
psychopathic behaviors. Allen’s score on this test placed him
in approximately the 90th percentile of incarcerated
individuals, suggesting a strong indication of a psychopathy to
take advantage of and manipulate people without regard to their
feelings or thoughts, and a tendency not to show remorse for
this behavior. Dr. Boggio found the results of the Hare test
correlated with all the things that Allen had said during their
Dr. Boggio also administered the Static-99, a test used to predict sex offender recidivism, to Allen. According to Dr. Boggio, Allen’s scores on this test predicted that Allen would have a 33% likelihood of committing another sexual offense after 5 years following his release from prison, a 38% likelihood after 10 years, and a 40% likelihood after 15 years. Using a formula to extrapolate beyond 15 years, Dr. Boggio concluded that Allen would have a 62.7% likelihood of recidivism after 25 years. On the Rapid Risk Assessment for Sex Offender Recidivism test, Dr. Boggio scored Allen with a 36.9% chance of reconviction in 10 years, and a 60.8% likelihood of reconviction in 25 years.3 Dr. Boggio also testified that these tests rely
3 Dr. Boggio explained that there is a difference between recidivism, that is the committing of a crime without regard to
upon actuarial predictions and do not purport to satisfy
completely the issue the tester “is being asked to predict.”
Dr. Boggio testified that in his opinion Allen is likely to
re-offend in the future because of an inability to control those
impulses that arise because of his personality disorder. Dr.
Boggio noted that Allen’s lack of concern for others and his
tendency to act compulsively and without remorse make Allen much
more likely to be a repeat offender because he fails to see the
importance of respecting the rights of others.
Dr. Boggio did not diagnose Allen as a pedophile, but
opined that Allen has a tendency to act to satisfy his own needs
and a “belief that people can be manipulated and that people can
be taken advantage of.” Dr. Boggio testified that this
“predatory behavior” puts children as well as individuals with
impaired cognitive functioning at risk because they are easily
In conclusion, Dr. Boggio testified that in his opinion
Allen needed in-patient treatment in a secure mental health
facility. He opined that out-patient treatment would not be
appropriate because Allen has had no sex offender treatment
whether the subject is arrested and convicted, and reconviction,
that is actually being convicted for an offense.
while in prison, has no awareness that he needs help, was unable
to follow rules while on parole, and has a long history of not
being able to follow rules.
Dr. Timothy P. Foley, Ph.D., testified as an expert witness
for Allen. Dr. Foley is a psychologist licensed in Pennsylvania
and New Jersey. Although not licensed to practice in Virginia,
Dr. Foley contacted the Virginia Board of Psychology and
obtained permission to perform an evaluation of Allen in
To establish Dr. Foley’s qualifications as an expert, Allen
elicited testimony from Dr. Foley concerning his background and
experience in the field of treating sexually violent persons.
Dr. Foley testified that he had previously evaluated
approximately 250 sexually violent predators for the courts and
as a defense expert and had testified in over 200 such cases.
Dr. Foley further testified that currently he is employed by
federal district courts in both Pennsylvania and New Jersey to
assess and treat sexual offenders. He previously was the
supervisor of the sexual offender program at a state prison in
Pennsylvania for two years. Dr. Foley’s curriculum vitae, which
was admitted into evidence, showed that he is a member of the
Association for the Treatment of Sexual Abusers and has
published numerous articles concerning treatment of sexual
offenders. Dr. Foley testified that he is familiar with the
statutory standards that apply to proceedings for the commitment
of sexually violent predators in Virginia.
The Commonwealth objected to Dr. Foley being qualified as
an expert witness, asserting that “he’s not licensed in this
state or familiar with the state standards.” The trial court
overruled the Commonwealth’s objection.
Dr. Foley testified that he had reviewed Allen’s
institutional file from the Department of Corrections and other
reports. Dr. Foley also administered various tests to Allen
including the Minnesota Multiphasic Personality Inventory-2 and
the Abel Screen. Dr. Foley testified that the Abel Screen is a
valid, reliable test to determine sexual preferences and
abnormal interests. Dr. Foley concurred in Dr. Boggio’s
conclusion that Allen was not a pedophile, but opined that he
has a “socially deviant” interest in sexually mature underage
females. Dr. Foley characterized this as “a common finding
among heterosexual males.”
Dr. Foley administered a longer version of the Hare
Psychopathy Checklist to Allen. Dr. Foley testified that Allen
received a prorated score of 26.7, which is not indicative of a
psychopathic classification. Dr. Foley testified that the most
robust predictors of sexual offense recidivism are measured
sexual deviance and evidence of psychopathy, and that Allen
scored below the range of the psychopathy cutoff.
Dr. Foley testified that he also administered the Static-99
to Allen and that the results were comparable to those achieved
when Dr. Boggio administered that test. While Dr. Foley agreed
with Dr. Boggio’s general assessment of the results of the
Static-99 with regard to the likelihood that Allen would re-
offend, he characterized that result as meaning “there is less
than half a chance that Allen would be a recidivist [after] 15
years.” Dr. Foley further qualified his assessment of the
Static-99 results by stating that the base population for the
test were adults who “had committed offenses as adults and had
been on the street for a period of time,” whereas Allen had been
a juvenile at the time of his original offenses and “has never
been on the street as an adult.”
Dr. Foley agreed with Dr. Boggio’s assessment that Allen
suffers from APD. Dr. Foley testified that while Allen’s
antisocial personality traits “[p]robably . . . will remain for
the rest of [his] life,” his “propensity to act them out will
decrease with age.” Moreover, it was Dr. Foley’s opinion that
Allen “did not . . . suffer from an inability to control his
sexual impulses.” Dr. Foley testified that in his opinion
Allen’s personality disorder does not predispose him to commit
sexually violent offenses.
On rebuttal, Dr. Boggio testified that he disagreed with
Dr. Foley’s opinion regarding Allen’s propensity to re-offend.
While Dr. Boggio agreed that Allen’s propensity to act on his
sexual impulses would decrease, he opined that Allen would
remain at risk for re-offending throughout his life.
Dr. Boggio disagreed with Dr. Foley’s use of the Abel
Screen as a predictor of sexual preferences and abnormal
interests. He testified that published reliability data suggest
that the Abel Screen is not accurate. Dr. Boggio further
testified that several state and federal courts have held that
the Abel Screen is not scientifically reliable.
Dr. Boggio also disagreed with Dr. Foley’s assumption that
psychopathy is the most robust predictor of recidivism. Dr.
Boggio opined that sexual deviance and antisocial lifestyle are
more predictive of a person’s future actions, and that
psychopathy is just one part of the equation.
Dr. Boggio reiterated his opinion that, in light of Allen’s
APD, his demonstrated history of antisocial offending, and his
convictions for predatory sexual offenses, Allen is likely to
re-offend in the future. Dr. Boggio opined that this likelihood
is more than 50% based on all the actuarial data.
In its summation, the trial court noted that “each of the
experts [were] both well-qualified, both well-prepared, and
convincing.” Thus, although it expressed “a very, very
generalized fear of releasing Mr. Allen on the public,” the
trial court ruled that the Commonwealth had not proven by clear
and convincing evidence that Allen is likely to engage in
sexually violent acts in the future. Accordingly, the trial
court dismissed the Commonwealth’s petition to have Allen
civilly committed as a sexually violent predator.
On February 18, 2004, the Commonwealth filed a motion to
reconsider. The Commonwealth renewed its objection to the trial
court’s ruling permitting Dr. Foley to testify as an expert
witness because he is not licensed to practice in Virginia. The
Commonwealth further contended that Dr. Foley’s evaluation of
Allen was based on “an incorrect standard” that would require
proof that a prisoner is incapable of controlling his sexually
violent impulses, rather than proof that a prisoner is likely to
On March 24, 2004, the trial court entered an order denying
the Commonwealth’s motion to reconsider. In that same order,
the trial court reiterated its prior ruling that the
Commonwealth had not proven by clear and convincing evidence
that Allen “is a sexually violent predator within the meaning of
Virginia Code Section 37.1-70.1, et seq.” Accordingly, the
trial court dismissed the Commonwealth’s petition and ordered
that Allen be unconditionally released. This appeal followed.
This case, along with Townes v. Commonwealth, 269 Va. ___,
___ S.E.2d ___ (2005) (today decided) and McCloud v.
Commonwealth, 269 Va. ___, ___ S.E.2d ___ (2005) (today
decided), involves the procedures required to be followed in
order for the Commonwealth to have a prisoner who has been
convicted of a sexually violent offense declared to be a
sexually violent predator and to have that prisoner
involuntarily committed to a secure mental health facility upon
his release from prison. Those procedures are set out in
Chapter 2, Article 1.1 of Title 37.1, commonly referred to as
the Sexually Violent Predators Act (SVPA). Code §§ 37.1-70.1
through 37.1-70.19. We have reviewed those procedures in some
detail in McCloud and need not do so again here. This case
presents issues not addressed in Townes or McCloud.
We first address the Commonwealth’s contention that the trial court erred in permitting Dr. Foley to qualify as an expert witness at trial because he is not licensed to practice in Virginia. At the time the trial court granted Allen’s motion for funds to employ Dr. Foley as an expert, Code § 37.1-70.8(A) (Supp. 2003) provided:4 Any person who is the subject of a petition under
this article shall have, prior to trial, the right to
employ experts at his own expense to perform
examinations and testify on his behalf. However, if a
person has not employed an expert and requests expert
assistance, the judge shall appoint such experts as he
deems necessary to perform examinations and
participate in the trial on the person’s behalf.
4 In 2004, Code § 37.1-70.8(A) was amended and now requires that any expert appointed to assist a defendant “shall have the qualifications required by subsection B of § 37.1-70.5.” See Acts 2004, ch. 764. Code § 37.1-70.5(B) sets the qualifications for the professional designated by the CRC to perform the mental health examination of a prisoner identified as being subject to the SVPA and provides that the examination must be conducted by “a licensed psychiatrist or a licensed clinical psychologist, designated by the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services.” A further provision of the amended version of Code § 37.1-70.8(A) provides that a privately employed expert need only be “a licensed psychiatrist or a licensed clinical psychologist.” Because this amendment did not come into force until after Allen’s trial, we express no opinion on its effect or validity.
Where a statute designates express qualifications for an
expert witness, the witness must satisfy the statutory criteria
in order to testify as an expert. See Hinkley v. Koehler, 269
Va. 82, 87, 606 S.E.2d ___, ___ (2005); Perdieu v. Blackstone
Family Practice Ctr., Inc., 264 Va. 408, 419, 568 S.E.2d 703,
709 (2002); Sami v. Varn, 260 Va. 280, 283, 535 S.E.2d 172, 174
(2000). Nothing in Code § 37.1-70.8(A), as applicable at the
time of Allen’s trial, or elsewhere in the SVPA expressly
requires or by implication suggests that a mental health expert
employed or appointed to assist a prisoner must be licensed to
practice in Virginia. In the absence of express statutory
requirements for the qualification of an expert witness in this
particular type of proceeding, we will apply the general rules
applicable to expert testimony in other civil cases. See Code
The sole purpose of permitting expert testimony is to
assist the trier of fact to understand the evidence presented or
to determine a fact in issue. Id.; Santen v. Tuthill, 265 Va.
492, 498, 578 S.E.2d 788, 792 (2003); John v. Im, 263 Va. 315,
319, 559 S.E.2d 694, 696 (2002). Generally, a witness is
qualified to testify as an expert when the witness possesses
sufficient knowledge, skill, or experience to make the witness
competent to testify as an expert on the subject matter at
issue. See Sami, 260 Va. at 284, 535 S.E.2d at 174; Noll v.
Rahal, 219 Va. 795, 800, 250 S.E.2d 741, 744 (1979). “In
essence, all that is necessary for a witness to qualify as an
expert is that the witness have sufficient knowledge of the
subject to give value to the witness’s opinion.” Velazquez v.
Commonwealth, 263 Va. 95, 103, 557 S.E.2d 213, 218 (2002).
Without question, Dr. Foley’s education, employment experience,
and professional knowledge and skill with respect to the
identification and treatment of sexually violent offenders
qualified him to render an opinion that would assist the trial
The Commonwealth contends, however, that the trial court
further erred in not rejecting Dr. Foley’s testimony and
granting the Commonwealth’s motion to reconsider because his
testimony was based on an improper standard, thus demonstrating
that he lacked a sufficient appreciation of the requirements for
finding that Allen is a sexually violent predator under the
SVPA. We disagree.
“The admission of expert testimony is committed to the
sound discretion of the trial judge, and we will [reject] a
trial court’s decision only where that court has abused its
discretion.” Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176,
178 (1992); see also Hinkley, 269 Va. at 91, 606 S.E.2d at ___.
Similarly, when the admission of expert witness testimony is
challenged in a post-trial proceeding, the determination whether
that testimony was properly received is a matter committed to
the trial court’s discretion. When the admissibility of the
expert’s testimony is subsequently challenged on appeal, that
testimony must be viewed as a whole. See Hussen v.
Commonwealth, 257 Va. 93, 99, 511 S.E.2d 106, 109 (1999).
While the Commonwealth can point to isolated statements in
Dr. Foley’s testimony and in his written evaluation of Allen
that do not track the precise language of the definition of a
sexually violent predator in the SVPA, it also is clear that Dr.
Foley was aware of that standard. Indeed, in his written
evaluation Dr. Foley quotes language from Code § 37.1-70.1
defining the standard almost verbatim. Moreover, even if we
were to agree w