Judge's ocular observation not a substitute for an expert

Gerald E. Wells won in State v. Haney, No. 105,685 (Kan. April 25, 2014), obtaining a new sentencing hearing in a Lyon County criminal sodomy prosecution.  Mr. Haney pleaded no contest to a couple of sex offenses and filed a motion for downward departure.  In support of that motion, defense counsel sought and obtained funding from BIDS to have a sex offender evaluation completed.  But because the evaluation could not be completed before the scheduled sentencing, defense counsel requested a continuance.  The district court denied the continuance:

finding that the sex offender evaluation would only be relevant to the type of treatment that Haney would need if he obtained probation, which was not an option in his case. Furthermore, the court opined that the purpose of a professional sex offender evaluation could be fulfilled through another method, to-wit: "Or we can put Mr. Haney on the stand and he can testify, and I [the district judge] could look him in the eye and determine whether he's telling the Court the truth or not and determine whether that's an appropriate sentence or not."

Ultimately, the district court denied the departure.

The KSC reversed holding that such evidence would have been applicable in Mr. Haney's case:

First addressing the latter holding—that sex offender evaluations are only used to assess treatment programs for those receiving probation—we believe the district court too narrowly construed the nature and purpose of sex offender evaluations. Such evaluations are often requested during the sentencing or disposition phase of the court process in order to identify, among other things, the level of risk for sex offense recidivism. These evaluations are frequently used to assist judges with making well-informed dispositional determinations.

The KSC also rejected the notion that the district court or a defendant can serve as a substitute for an expert:

Next, we soundly reject the district court's declaration that the defendant's own testimony, coupled with the court's astute ocular observation, was an adequate substitute for an expert's evaluation and testimony. Certainly, the defendant could not qualify to give expert testimony on sex offenders in general or himself in particular. Likewise, although we presume our trial judges are imbued with a great deal of wisdom, we decline to hold that a person appointed or elected to the district court bench has qualified as an expert in sex offender evaluations. Clearly, it was an abuse of discretion for the district court to require the defendant to forego an expert's scientific testimony on risk assessment in favor of looking the judge in the eye while testifying.

This could be an important case in establishing that defense counsel can (and must) work to provide adequate defense at sentencing.