Future Dangerousness - Overview and Risk Assessment

Prision Risk Assessment Overview  

• Virginia 's "future dangerousness" aggravating factor requires the Commonwealth to prove–beyond a reasonable doubt–that there is a probability that the defendant "would commit criminal acts of violence that would constitute a continuing serious threat to society." Va. Code Ann. § 19.2-264.4 (C).
• Because Virginia has abolished parole, see Va. Code Ann. § 53.1-165.1, § 53.1-40.01, the only society to which a life-sentenced capital defendant can ever pose a "continuing serious threat" is prison society.
• However, to date, the Supreme Court of Virginia has rejected attempts to rebut—whether with scientific risk assessment testimony, see Porter and Morva, or with evidence of prison security measures and actual rates of prison violence—the Commonwealth's claims of future dangerousness.
  • See Summary of the Supreme Court of Virginia's future dangerousness precedent.
• Nonetheless, trial judges have admitted prison risk assessment testimony by Dr. Mark Cunningham, the nation's foremost researcher in this field, in at least two capital murder trials, Commonwealth v. John Joseph Rogers and Commonwealth v. Ricky Javon Gray, and has appointed him in many others. (Jephson Order and Portillo-Chicas Order)
• Counsel must strenuously argue for the constitutional right to rebut dangerousness by securing expert testimony that takes into account the actual setting in which the convicted offender will live out his life.

In Porter v. Commonwealth, 661 S.E.2d 415 (Va. 2008), cert. denied, 129 S. Ct. 1999 (April 20, 2009), the Virginia Supreme Court upheld a circuit court's refusal to appoint Dr. Mark Cunningham on the grounds that the defense failed to sufficiently establish that Dr. Cunningham's testimony would have focused on the defendant's own prior record, crime and background. The federal constitutional issues raised by this ruling are set out in the Porter cert papers. (Cert petition, State's Response, and Reply Brief)

The most recent Virginia Supreme Court opinion discussing this issue is Morva v. Commonwealth, 683 S.E.2d 553 (Va. 2009).  In Morva, the Virginia Supreme Court again upheld a circuit court's refusal to appoint Dr. Cunningham.  The court found that Dr. Cunningham's proposed testimony included general information about the Commonwealth's ability to prevent prisoners from committing future violent crimes and determined that such general information was inadmissible because it applies to all prisoners and was not individualized as to Morva.  Because Dr. Cunningham's proffered testimony included this inadmissible evidence, the court concluded it was not an abuse of discretion for the circuit court to refuse to appoint him as a defense expert on risk assessment. Look here for the appellant's, Commonwealth's and reply briefs, for Morva's petition for rehearing, and for Morva's Petition for a Writ of Certiorari to the United States Supreme Court. 

A template for a post-Morva motion for the appointment of Dr. Cunningham that takes into account the Morva Court's stated reasons for upholding the denial of his appointment is here.  Please note that this newest version of the motion to appoint Dr. Cunningham has been significantly edited in an attempt to comport with the Morva decision.  Accordingly, all references to the generally low base rates of recidivistic violence among capital murderers, along with all references to the security conditions that will be imposed upon the defendant if sentenced to life imprisonment, have been omitted from the motion.  While Dr. Cunningham's—or another expert's—testimony certainly still would take these obviously relevant factors into consideration, reference to such factors in the motion almost certainly would result in denial of the motion based on the Morva and Porter precedent. The Commonwealth's response to this motion, filed in Commonwealth v. Prieto, can be found here.

Defense teams litigating appointment of a risk assessment expert since Porter should contact VC3