Appeals court hears challenge to qualified-examiner reports, DSM-5 findings in sexually dangerous person hearing

The Massachusetts Appeals Court heard argument over whether the record supported a lower court's finding that the respondent, Kenneth Perry, met the statutory standard for designation as a sexually dangerous person (SDP).

Defense counsel Fred Burkholder argued the evidence was thin and that qualified examiners had relied on reports and references to unconvicted allegations that had been redacted for trial. Burkholder told the panel that the expert who changed to a "not dangerous" opinion had done so based on information that was either redacted or not in the jury's view, arguing there was not sufficient admissible evidence to sustain the SDP finding.

Commonwealth counsel Jesse Crane said Dr. Peretti's expert opinion — that the respondent met DSM-5 criteria for pedophilic disorder and was likely to reoffend — was sufficient to sustain the verdict on review. Crane acknowledged the tension that arises when qualified examiners rely on records that were not presented to the jury because evidentiary rules permit examiners to consider broader records for their reports.

Justices on the panel and both counsel discussed statutory and evidentiary mechanics: how the report of a qualified examiner is formed, the limits of redaction under the governing statute, whether the DSM-5 six-month criterion was satisfied by the record, and how appellate sufficiency review treats expert testimony. Counsel for the respondent emphasized that recommended treatment and the respondent's participation in programs weighed against a finding of sustained dangerousness.

After extended questioning about the qualified examiners' bases and whether redacted material had improperly anchored the opinions, the panel heard final arguments and the case was submitted for decision.