Com. v. Jackson

PRESENT: All the Justices

COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 070524 JUSTICE G. STEVEN AGEE
June 6, 2008
KENNETH EDWARD JACKSON

FROM THE CIRCUIT COURT FOR THE CITY OF RICHMOND
T. J. Markow, Judge

The Commonwealth appeals from the judgment of the Circuit

Court for the City of Richmond, which dismissed the

Commonwealth’s petition for the civil commitment of Kenneth

Edward Jackson as a sexually violent predator (“SVP”). The

Commonwealth contends that the circuit court erred because the

requirements to establish probable cause under Code § 37.2-906

had been met. For the reasons set forth below, we will affirm

the judgment of the circuit court.

I. RELEVANT FACTS AND PROCEEDINGS BELOW

The Commonwealth timely filed a petition under Code § 37.2-

905 seeking a determination that Jackson was a SVP under the

Civil Commitment of Sexually Violent Predators Act, Code

§§ 37.2-900 et seq. (the “SVPA”). 1 The circuit court appointed

1
Although neither the statute nor its predecessor is titled
as such, we have referred to Code §§ 37.2-900 et seq. and its
predecessor, Code §§ 37.1-70.1 et seq., as Virginia’s Sexually
Violent Predators Act (“SVPA”). See Ellison v. Commonwealth,
273 Va. 254, 257 & n.1, 639 S.E.2d 209, 211 & n.1 (2007)
(affirming circuit court’s involuntary commitment under the
“Sexually Violent Predators Act (SVPA), Code § 37.1-70.1 et
seq.”); and Shivaee v. Commonwealth, 270 Va. 112, 117, 613
S.E.2d 570, 572-73 (2005) (upholding the constitutionality of
counsel for Jackson and conducted a probable cause hearing on

December 18, 2006 pursuant to Code § 37.2-906. At the hearing,

the Commonwealth introduced three exhibits: a stipulation that

Jackson was serving a criminal sentence for a sexually violent

offense, the Virginia Department of Corrections Static-99 risk

assessment scoring sheet which rated Jackson’s relative risk as

“[m]oderate-[h]igh,” and the mental health evaluation report

prepared by the Commonwealth’s expert, Dr. Dennis R. Carpenter.

Dr. Carpenter’s report consisted of two parts. Dr.

Carpenter opined in his original report that “Jackson does not

meet the criteria as a [s]exually [v]iolent [p]redator.” In a

later addendum, Dr. Carpenter reached the opposite conclusion,

primarily due to additional information he received from the

Commitment Review Committee (“CRC”) about a 1997 rape charge

against Jackson which had been dismissed. 2

The Commonwealth also introduced testimony from two

witnesses: Eric Madsen, a senior psychologist with the

Department of Corrections and supervisor of the sex offender

screening unit, and Dr. Carpenter. Madsen testified that

Jackson was referred to the CRC pursuant to Code § 37.2-903

because Jackson received a score of four on the Static-99 test

“Virginia’s Sexually Violent Predators Act (‘SVPA’), Code
§§ 37.1-70.1 through -70.19”).
2
The CRC is the body referenced in Code § 37.2-902 and
other parts of the SVPA.

2
and had been convicted of a sexually violent offense as defined

in Code § 37.2-900 because the victim was under the age of 13

and suffered physical bodily injury. This offense, a 1998

conviction for aggravated sexual battery of an eight-year old

girl, served as the requisite predicate offense for purposes of

meeting the definition of a SVP under Code § 37.2-900.

Dr. Carpenter testified that based on his review of

Jackson’s criminal and medical records, conversations with his

prior probation and parole officers, and his clinical interview

with Jackson, Jackson met the statutory requirements to be

classified as a SVP. More specifically, Dr. Carpenter testified

that based on Jackson’s criminal and sexual histories, he

diagnosed Jackson with “paraphilia NOS” or paraphilia “[n]ot

otherwise specified.” According to Dr. Carpenter, an individual

suffering from paraphilia NOS has “intense sexuality urges or

fantasies or behaviors that involve . . . engaging in sex with a

non-consenting person . . . tak[ing] place over a six month

period at least or longer.”

In addition to paraphilia NOS, Dr. Carpenter testified that

he also diagnosed Jackson with “a personality disorder NOS [not

otherwise specified] with antisocial features in addition to

. . . dependent and avoiding features.” This diagnosis

describes an individual who is “involved in a pervasive pattern

usually of unlawful behavior, that violates the rights of

3
others.” Dr. Carpenter also identified Jackson’s “extensive

substance abuse history beginning at an early age” and diagnosed

Jackson with “alcohol abuse in remission in a controlled

environment,” “cocaine dependency in a controlled environment in

remission,” and “opium [dependency] in remission in a controlled

environment.” Taking all of these factors into consideration,

Dr. Carpenter characterized the risk that Jackson would commit

another sexual offense in the future “from moderate to high.”

In arriving at his final opinion, Dr. Carpenter testified that

when both the adjudicated 1998 aggravated sexual battery

conviction was considered with the unadjudicated 1997 rape

charge, “[i]t appears that [Jackson] had established a pattern

of having inappropriate sexual behavior with minors.”

On cross-examination Dr. Carpenter admitted that in his

original report to the CRC, he concluded that Jackson was not a

SVP. He explained that when he reviewed Jackson’s criminal

record to formulate his first diagnosis, that record included

the 1997 rape charge but contained no further information about

that offense. Dr. Carpenter testified that in the absence of

further information regarding that charge, he could not conclude

that Jackson exhibited a pattern of inappropriate sexual

behavior consistent with that of a SVP.

To formulate his revised opinion about Jackson’s SVP

status, Dr. Carpenter stated that he relied upon more specific

4
information about the 1997 rape charge, which the CRC sent to

him following his original diagnosis. According to Dr.

Carpenter, the additional information from the CRC indicated

that Jackson had been charged with rape for “sexually assaulting

a 14-year-old girl in which according to the victim stated that

he had fondled her breasts and had stuck his penis in her

vagina." The victim had been examined by a nurse practitioner

who concluded, “that the physical trauma was consistent with

sexual activity/sexual assault.” Based on this additional

information, Dr. Carpenter assumed that the 1997 rape charge was

true for the purposes of his evaluation, then filed an addendum

to his original evaluation finding that Jackson met the

statutory requirements as a SVP. The circuit court acknowledged

Jackson’s argument that if Dr. Carpenter was unable to rely on

the unadjudicated 1997 rape charge, then Dr. Carpenter would be

“back to [his] original provisional diagnosis” that Jackson did

not qualify for SVP status.

Dr. Carpenter opined, in the original evaluation, that the

risk that Jackson would commit another sexual offense in the

future was lowered because of Jackson’s age and his health

status. 3 After receiving the supplemental information from the

CRC, Dr. Carpenter reassessed these factors and opined that in

3
Jackson was diagnosed with Grave’s Disease and Chronic
Renal Failure and has been on dialysis since 1995.

5
finding Jackson was a SVP, “it is evident that his present

medical conditions were not debilitating enough to prevent him

from committing his sexual offenses.”

Dr. Carpenter also testified that he had performed

approximately 40 mental health evaluations under the SVPA. On

cross-examination, Dr. Carpenter testified that of the 40

individuals examined, he found only three to be non-SVPs upon

his initial evaluation. In two of those three cases, including

Jackson’s, the Commonwealth or CRC forwarded additional

information to Dr. Carpenter, and he subsequently changed his

diagnosis to find SVP status.

At the conclusion of the probable cause hearing, the

circuit court held that “I don’t believe that probable cause is

found here. I’m going to dismiss the case at this stage.” The

circuit court confirmed its bench ruling in an order entered

December 19, 2006, which stated “the court determines that

probable cause does not exist to believe that Kenneth E. Jackson

is a sexually violent predator.” We granted the Commonwealth

this appeal.

II. ANALYSIS

A. Standard of Review

Code § 37.2-906 requires a circuit court to “determine

whether probable cause exists to believe that the [defendant] is

a sexually violent predator.” The meaning of “probable cause”

6
and the standards of a probable cause hearing under the SVPA

have not been previously addressed by this Court. The General

Assembly has also not defined “probable cause” for purposes of

the SVPA. See Code § 37.2-900 (setting forth definitions under

the SVPA). Although SVP adjudication under Code § 37.2-906(C)

is a civil and not a criminal proceeding, Code § 37.2-908(H),

see Ellison v. Commonwealth, 273 Va. 254, 256, 639 S.E.2d 209,

211 (2007) (a proceeding under Code § 37.2-900 et seq., is a

“civil proceeding”), we believe it reasonable to look to the

standards applicable to probable cause determinations in a

criminal proceeding for guidance.

Probable cause is assessed in preliminary hearings in

Virginia criminal cases “essentially [as] a screening process.”

Moore v. Commonwealth, 218 Va. 388, 391, 237 S.E.2d 187,

190 (1977). “Its primary purpose is to determine whether there

is ‘sufficient cause’ for charging the accused with the crime

alleged.” Id. Like a criminal probable cause hearing, the SVP

probable cause hearing is concerned with the liberty interest of

the defendant and whether sufficient grounds exist to warrant

further proceedings against him. We conclude that the SVP

probable cause hearing serves a similar purpose as the criminal

probable cause hearing, that of ensuring that there is

“sufficient cause” to believe the individual is a SVP.

7
 Probable cause in the criminal context is found when “there

is reasonable ground to believe that the crime has been

committed and . . . the accused is the person who committed it.”

Moore, 218 Va. at 391, 237 S.E.2d at 190. Similarly, under the

SVPA, the circuit court must determine whether probable cause

exists to believe that the defendant is a SVP. Code § 37.2-

906(C).

With such strong similarities between probable cause in the

criminal and SVP contexts, we shall apply the standard of review

in a SVPA proceeding that we use in criminal cases:

On appellate review, we give deference to the
historical facts determined by the trial court, but we
review de novo whether the legal standard of probable
cause was correctly applied to the historical facts.
Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d
595, 598 (2004); see Ornelas v. United States, 517
U.S. 690, 699 (1996).

Brown v. Commonwealth, 270 Va. 414, 419, 620 S.E.2d 760, 762

(2005). “[W]e will not disturb the factual findings of the

trial court unless plainly wrong or unsupported by the evidence.

The issue of whether . . . probable cause [existed,] however, is

a mixed question of fact and law that we review de novo.”

Robinson v. Commonwealth, 273 Va. 26, 39, 639 S.E.2d 217, 224-25

(2007) (citations omitted). Thus, the circuit court’s SVP

probable cause determination is a mixed question of fact and

law.

8
 B. The Merits

The Commonwealth does not contest that it has the burden of

proof at the SVP probable cause hearing. The SVPA places the

burden on the Commonwealth in a Code § 37.2-906 proceeding to

introduce evidence sufficient to permit the circuit court to

verify the identity of the defendant and to support a finding

that there are reasonable grounds to believe (1) the defendant

has been convicted of a sexually violent offense, and (2)

because of a mental abnormality or personality disorder, the

defendant “finds it difficult to control his predatory behavior,

which makes him likely to engage in sexually violent acts.”

Code § 37.2-900.

The Commonwealth contends that it conclusively satisfies

the burden of proof to establish probable cause under Code

§ 37.2-906(C) “when the Commonwealth produces a prima facie case

addressing the essential elements of an SVP. . . . Unless the

Commonwealth’s evidence is proven manifestly wrong or so

inherently incredible that a reasonable person could not believe

it, the trial court cannot dismiss the petition at the probable

cause hearing.” To establish a prima facie case, the

Commonwealth contends it “must present some evidence, more than

a scintilla, on each of the elements of an SVP.” In the

Commonwealth’s view, if its evidence “satisfies all of the

elements of proof necessary” and if the evidence is not “‘so

9
incredible, insubstantial, or otherwise of such a quality that

no reasonable person could rely on it to conclude that the

Commonwealth had met its burden of proof,’ then the judge must

determine that probable cause has been met.” We disagree with

the Commonwealth.

In a criminal case, there is no precedential basis upon

which to claim that a court must find probable cause, as a

matter of law, simply because the Commonwealth produces more

than a scintilla of evidence that a crime has been committed and

that the defendant committed that crime. Inherent in the

court’s function at a preliminary hearing is the exercise of the

court’s discretion in weighing the evidence to determine whether

probable cause has been shown. See Witt v. Commonwealth, 215

Va. 670, 674, 212 S.E.2d 293, 297 (1975) (“the trial court,

acting as fact finder, must evaluate the credibility of the

witnesses, resolve the conflicts in their testimony, and weigh

the evidence as a whole”). At a preliminary hearing on a

criminal charge, the court acts as the trier of fact, considers

the witnesses’ testimony, observes the reaction of the witnesses

during cross-examination, and evaluates the credibility of the

witnesses. We see no basis upon which to view a SVP probable

cause hearing differently.

Under the Commonwealth’s view, the circuit court at a SVP

probable cause hearing would be an administrative functionary.

10
Unless the evidence was “manifestly wrong or so inherently

incredible that a reasonable person could not believe it,”

probable cause would be required to be found as a matter of law.

We do not find in the plain language of the SVPA that the

General Assembly intended such a constricted view of a Code

§ 37.2-906 probable cause hearing. Indeed, the Commonwealth’s

proposed construct of a probable cause proceeding appears

partially inconsistent with the SVPA, which explicitly states

that an expert opinion introduced at a probable cause hearing

“shall not be dispositive of whether the respondent is a

sexually violent predator.” Code § 37.2-906(C).

It is a common canon of statutory construction that when

the legislature uses the same term in separate statutes, that

term has the same meaning in each unless the General Assembly

indicates to the contrary. See Virginia Elec. & Power Co. v.

Board of Supervisors, 226 Va. 382, 387-88 309 S.E.2d 308, 311

(1983) (courts “interpret the several parts of a statute as a

consistent and harmonious whole so as to effectuate the

legislative goal”); Prillaman v. Commonwealth, 199 Va. 401, 405,

100 S.E.2d 4, 7 (1957) (“statutes are not to be considered as

isolated fragments of law, but as a whole, or as parts of a

great connected, homogeneous system, or a single and complete

statutory arrangement”) (citation omitted). There is nothing in

the SVPA to indicate that the General Assembly intended any

11
different construction of probable cause in Code § 37.2-906

than, for example, Code § 16.1-127 or Code § 19.2-218. See Barr

v. Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d

672, 674 (1990) (courts “assume that the legislature chose, with

care, the words it used when it enacted the relevant statute”).

In these other probable cause determinations, the court is not a

mere gatekeeper, but is the sole judge of the credibility of the

witnesses.

The Commonwealth relies heavily on cases from other

jurisdictions with SVP statutes as support for its proposed

“more than a scintilla” and “prima facie” probable cause

standard. See Commonwealth v. Reese, 781 N.E.2d 1225, 1230

(Mass. 2003) (evidence presented must be of “suitable quality to

allow the action to proceed further”). 4 In particular, the

Commonwealth cites Massachusetts case law as precedent for its

argument in the case at bar. However, the probable cause

proceeding under Massachusetts law has fundamental differences

from a SVPA proceeding in Virginia.

Like Virginia, a SVP proceeding in Massachusetts is begun

by petition and a judge is required to hold a hearing to

4
See, e.g., State v. Robbins, 785 So.2d 620, 622 (Fla.
Dist. Ct. App. 2001)(evidence must “cause a person of ordinary
prudence to believe that the respondent is a sexually violent
predator”); State v. Watson, 595 N.W.2d 403, 420 (Wis. 1999)
(evidence “must establish a plausible account on each of the
required elements”).

12
“determine whether probable cause exists to believe that the

person named in the petition is a sexually dangerous person.”

Mass. Gen. Laws ch. 123A, § 12(c). If probable cause is found,

the defendant is committed to a treatment center where “two

qualified examiners” conduct an evaluation and report to the

court. Mass. Gen. Laws ch. 123A, § 13(a). After these reports

are filed, a second petition is required to put the question of

whether the person is “sexually dangerous” before the court.

Mass. Gen. Laws ch. 123A, § 14(a).

By contrast, a Code § 37.2-904 assessment in Virginia

includes a mental health examination, as by Dr. Carpenter,

before the probable cause hearing is conducted. Further, there

is only one petition filed under the SVPA, not two as in

Massachusetts. Thus, the probable cause hearing in a

Massachusetts SVP proceeding takes place under a significantly

different procedural setting from that in Virginia, and under a

regime in which a less exacting evidentiary basis appears

established for the hearing. That Massachusetts apparently uses

a more relaxed probable cause standard than we believe applies

in Virginia may be partly attributable to these differences in

the statutory framework between the two states.

None of the cases cited by the Commonwealth actually uses

the standard the Commonwealth promotes. In any event, we would

find such a case inapposite for construing probable cause under

13
Code § 37.2-906 without specific direction from the General

Assembly invoking a standard other than the one traditionally

applied in Virginia. Thus, even if we assumed that the

Commonwealth produced more than a scintilla of evidence to prove

the statutory elements that Jackson was a SVP, that showing

would not, in and of itself, establish probable cause. Having

rejected the Commonwealth’s proposed standard, we turn to the

record in this case to determine whether the disposition of this

proceeding below withstands scrutiny under the standard of

review we noted earlier, which directs that the circuit court’s

judgment be affirmed unless it was plainly wrong or without

evidence to support it.

The Commonwealth advanced the position that Dr. Carpenter’s

expert opinion – that Jackson was a SVP – was not contradicted

by any evidence from Jackson, and therefore, the circuit court

was required to accept that uncontradicted evidence to reach a

finding of probable cause. In the Commonwealth’s view, since

Jackson did not rebut Dr. Carpenter’s opinion with direct

evidence of his own, there was uncontradicted evidence that

Jackson was a SVP and the circuit court was thus bound to find

probable cause as a matter of law. Again, we disagree with the

Commonwealth’s reasoning.

“A litigant is bound by the uncontradicted evidence of his

opponent when not inherently improbable and counter to no

14
reasonable inference.” Hailey v. Johnson, 201 Va. 775, 778, 113

S.E.2d 664, 666 (1960) (citing Virginia Electric & Power Co. v.

Lenz, 158 Va. 732, 737, 164 S.E. 572, 573 (1932)). However, the

trier of fact may disregard testimony of a witness impeached on

cross-examination. See, e.g., Cheatham v. Gregory, 227 Va. 1,

4, 313 S.E.2d 368, 370 (1984) (“A trier of fact must determine

the weight of the testimony and the credibility of witnesses,

but may not arbitrarily disregard uncontradicted evidence of

unimpeached witnesses which is not inherently incredible and not

inconsistent with facts in the record, even though such

witnesses are interested in the outcome of the case.” (emphasis

added)); see also Blount v. Commonwealth, 213 Va. 807, 809, 195

S.E.2d 693, 695 (1973) (“[U]ncontradicted testimony may be

disregarded if the jury believes that it is untrue. In

determining whether it is untrue the jury may rely on such

factors as the manner of the witness, as the jury here was

advised in the usual credibility instruction, and the inherent

improbability of his statements.”).

Dr. Carpenter’s testimony as to Jackson’s SVP status was

not uncontradicted. He was subject to rigorous cross-

examination which pointed out, among other things, that Dr.

Carpenter had given two SVP opinions: one that Jackson was a SVP

and another that he was not. Dr. Carpenter admitted on cross-

examination that the reason he changed his original opinion,

15
that Jackson was not a SVP, was solely based on his receipt of a

report of unadjudicated conduct concerning a 1997 rape charge.

While Code § 37.2-906(C) permits the consideration at a SVP

probable cause hearing of “prior convictions or charges,” there

is no statutory mandate that an unadjudicated charge must be

taken as true for purposes of the hearing. Jackson’s counsel

effectively impeached Dr. Carpenter’s reliance on the 1997

charge based on the surrounding facts. For example, Dr.

Carpenter conceded, when considering the alleged 1997 assault by

Jackson, that “I’m not a physician so I can’t be in a position

to say whether or not that’s refutable information.”

Dr. Carpenter admitted that his change of opinion on

Jackson’s SVP status was predicated on the veracity of the 1997

rape charge because that “established a pattern of having

inappropriate sexual behavior with minors.” Without that basis,

the circuit court recognized that Dr. Carpenter’s original SVP

assessment would otherwise stand.

In SVP probable cause hearings, the defendant has limited

resources, other than appointed counsel, to contest the

Commonwealth’s case. For example, the right to the assistance

of experts under Code § 37.2-907 has not yet matured at the time

of the probable cause hearing. Nonetheless, the defendant is

not required to rebut the Commonwealth’s evidence with direct

evidence of his own in order to contradict the Commonwealth’s

16
case. As in the case at bar, the impeachment of the

Commonwealth’s expert witness, Dr. Carpenter, by effective

cross-examination, removes Dr. Carpenter’s opinion that Jackson

was a SVP from the realm of uncontradicted evidence.

This Court will not substitute its judgment on the

credibility of a witness for that of the circuit court. “[T]he

credibility of witnesses and the weight accorded their testimony

are matters solely for the fact finder who has the opportunity

of seeing and hearing the witnesses.” Schneider v.

Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736–37 (1985);

see also Coppola v. Commonwealth, 220 Va. 243, 252, 257 S.E.2d

797, 803 (1979).

Accordingly, the circuit court was entitled to weigh Dr.

Carpenter’s conflicting opinions on Jackson’s SVP status in

determining whether the Commonwealth had established probable

cause. There was evidence in the record, established by cross-

examination, that impeached Dr. Carpenter’s SVP diagnosis. As

such, we cannot say the circuit court’s decision that probable

cause had not been shown was plainly wrong or without evidence

to support it.

III. CONCLUSION

For the foregoing reasons, we will affirm the judgment of

the circuit court.

17
 Affirmed.

JUSTICE KINSER, with whom JUSTICE LEMONS joins, concurring in
part and dissenting in part.

Today, the majority decides an issue of first impression

without acknowledging that it is doing so, without any

explanation for its decision, and without citation to any

relevant authority. In concluding that a probable cause hearing

under the Sexually Violent Predators Act (SPVA), Code §§ 37.2-

900 et seq., should follow the standards applicable to probable

cause determinations in criminal proceedings, the majority holds

that “[a]t a preliminary hearing on a criminal charge, the court

acts as the trier of fact, considers the witnesses’ testimony,

observes the reaction of the witnesses during cross-examination,

and evaluates the credibility of the witnesses.” This is the

role that a court performs as a trier of fact in a criminal

bench trial. See Lane v. Commonwealth, 184 Va. 603, 611, 35

S.E.2d 749, 752 (1945) (As the trier of fact, findings of the

court regarding the credibility of the witnesses and the weight

of the evidence “stands on the same footing as the verdict of a

jury.”). This Court, however, has never previously decided

whether a court at a preliminary hearing on a criminal charge

functions in the same capacity as it does when acting as the

trier of fact in a bench trial in terms of resolving conflicts

in the evidence and judging the credibility of witnesses.

18
 We know that a “preliminary hearing is essentially a

screening process [to determine] whether there is reasonable

ground to believe that the crime has been committed and whether

the accused is the person who committed it.” Moore v.

Commonwealth, 218 Va. 388, 391, 237 S.E.2d 187, 190 (1977); see

also Foster v. Commonwealth, 209 Va. 297, 300, 163 S.E.2d 565,

567 (1968) (the only issue to decide at a preliminary hearing is

whether there is reasonable ground to believe that a crime has

been committed and that the accused was the person who committed

the crime). And, this Court has defined the term “probable

cause” as “knowledge of such a state of facts and circumstances

as excite the belief in a reasonable mind, acting on such facts

and circumstances, that the [accused] is guilty of the crime of

which he is suspected.” Gresham v. American Ry. Express Co.,

147 Va. 395, 399, 137 S.E. 471, 472 (1927); see also, Wheeler v.

Nesbitt, 65 U.S. 544, 551-52 (1861) (probable cause is “the

existence of facts and circumstances as would excite the belief,

in a reasonable mind, acting on the facts within the knowledge

of the prosecutor, that the person charged was guilty of the

crime for which he was prosecuted”); Scott v. Shelor, 69 Va. (28

Gratt.) 891, 905 (1877) (defining probable cause as “[a]

reasonable ground of suspicion, supported by circumstances

sufficiently strong in themselves to warrant a cautious man in

the belief that the person accused is guilty of the offence with

19
which he is charged”). “ ‘Probable cause, as the very name

implies, deals with probabilities.’ ” Derr v. Commonwealth, 242

Va. 413, 421, 410 S.E.2d 662, 666 (1991) (quoting Saunders v.

Commonwealth, 218 Va. 294, 300, 237 S.E.2d 150, 155 (1977)). We

also know that, pursuant to Code § 19.2-183(B), “the rules of

evidence applicable to criminal trials in this Commonwealth”

govern the introduction of evidence at a preliminary hearing,

and the accused has the right to “cross-examine witnesses,

introduce witnesses in his own behalf, and testify in his own

behalf.” Furthermore, if there is “not sufficient cause for

charging [the accused] with the offense,” the court “shall

discharge the accused.” Code § 19.2-186.

But, we did not know until today that a court at a

preliminary hearing on a criminal charge acts as a trier of fact

and that this role is “the one traditionally applied in

Virginia” at preliminary hearings. The majority offers no

explanation for this conclusion, and I find no support for it in

our jurisprudence. Indeed, the authority cited by the majority,

Witt v. Commonwealth, 215 Va. 670, 212 S.E.2d 293 (1975),

pertains to a trial court’s role as the trier of fact in

determining whether the Commonwealth has carried its burden to

show that a confession was freely and voluntarily made. Id. at

674, 212 S.E.2d at 297.

20
 I agree that the probable cause hearing mandated by the

provisions of Code § 37.2-906 is analogous to a preliminary

hearing in the criminal context and that the determination

whether there is probable cause to believe that an individual is

a sexually violent predator, as that term is defined in Code

§ 37.2-900, should be guided by the same standards used to

determine probable cause at a preliminary hearing on a criminal

charge. In my view, however, the function of the court at a

preliminary hearing in the criminal context is more

circumscribed than its role as the trier of fact in a bench

trial. As the court explained in State v. Dunn, 359 N.W.2d 151

(Wis. 1984):

A preliminary hearing as to probable cause is not
a preliminary trial or a full evidentiary trial on the
issue of guilt beyond a reasonable doubt. It is
intended to be a summary proceeding to determine
essential or basic facts as to probability.

. . . .

[A]lthough the judge at a preliminary examination
must ascertain the plausibility of a witness’s story
and whether, if believed, it would support a bindover,
the court cannot delve into the credibility of a
witness. The issue as to credence or credibility is a
matter that is properly left for the trier of fact.

. . . .

We stress that a preliminary hearing is not a proper
forum to choose between conflicting facts or
inferences, or to weigh the state’s evidence against
evidence favorable to the defendant. That is the role
of the trier of fact at trial.

21
Id. at 154-55 (internal citations omitted).

Courts in numerous other jurisdictions have similarly

defined the role of a court in a preliminary hearing to

determine probable cause on a criminal charge. See, e.g.,

People v. Fry, 92 P.3d 970, 977 (Colo. 2004) (At a preliminary

hearing to determine probable cause, “[a] judge may not engage

in credibility determinations unless the testimony is incredible

as a matter of law,” meaning testimony that is “ ‘in conflict

with nature or fully established or conceded facts.’ ” (quoting

People v. Ramirez, 30 P.3d 807, 809 (Colo. 2001))); Smith v.

O’Brien, 251 A.2d 323, 324 (N.H. 1969) (Since the purpose of a

preliminary hearing is to determine whether probable cause

exists to believe that a crime has been committed and that the

defendant committed it, “[t]he hearing is not a judicial trial

of the issue of guilt or innocence, . . . [h]ence [the] court is

not called upon to reconcile any conflicting testimony, or judge

the credibility of witnesses.”); In re A.J.S., 877 N.E.2d 997,

1001 (Ohio Ct. App. 2007) (A juvenile court at a preliminary

hearing to determine if sufficient credible evidence exists to

transfer jurisdiction to an adult court “does not find facts,

choosing one party’s evidence over the other when the credible

evidence is contradictory as to a fact or element of an

offense.” Instead, the juvenile court “evaluates the quality of

the evidence and then decides whether the credible evidence

22
adduced justifies a belief that the juvenile committed a

particular offense.”); Liciaga v. Court of Common Pleas, 566

A.2d 246, 248 (Pa. 1989) (“The committing magistrate is

precluded from considering the credibility of a witness who is

called upon to testify during the preliminary hearing.”); State

v. Talbot, 972 P.2d 435, 438 (Utah 1998) (While “a magistrate

may review the credibility of evidence presented at a

preliminary hearing, . . . the magistrate’s evaluation of

credibility . . . is limited to determining that ‘evidence is

wholly lacking and incapable of reasonable inference to prove

some issue which supports the [prosecution’s] claim.’ . . . [A]

magistrate at a preliminary hearing is precluded from evaluating

the weight of otherwise credible evidence.” (third alteration in

original) (quoting State v. Pledger, 896 P.2d 1226, 1229 (Utah

1995))); see also In re Care & Treatment of Martineau, 242

S.W.3d 456, 460 (Mo. Ct. App. 2007) (in the context of a

sexually violent predator proceeding, “the trial court does not

weigh evidence or make credibility determinations at preliminary

hearings” to determine probable cause). ∗

∗
I recognize that some courts advocate a more expansive
role for a court at a preliminary hearing. See, e.g., Jones v.
Superior Court, 483 P.2d 1241, 1245 (Cal. 1971) (In a
preliminary examination, “it is clear that it is the
responsibility of the committing magistrate to weigh the
evidence, resolve conflicts and give or withhold credence to
particular witnesses.”).

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 Thus, contrary to the majority, I conclude that it is not

part of a court’s inherent function at a preliminary hearing in

the criminal context to act as a trier of fact by weighing the

evidence and making credibility findings. Nor is it a function

of the court in a SVPA proceeding when determining probable

cause under Code § 37.2-906. Instead, in both instances, the

court, in my view, should determine whether the evidence, if

believed, supports a finding of probable cause. Dunn, 359

N.W.2d at 155. Only in those rare instances when evidence is

“incredible as a matter of law,” Fry, 92 P.3d at 977, or “is

wholly lacking and incapable of reasonable inference to prove

some issue,” Talbot, 972 P.2d at 438, should the court make

credibility determinations or weigh the evidence.

This limited role of a court when determining probable

cause, whether in the criminal context or in a SVPA proceeding,

is in accord with the function of a preliminary hearing as a

“screening process,” Moore, 218 Va. at 391, 237 S.E.2d at 190,

to “ferret[] out . . . groundless and improvident prosecutions.”

Talbot, 972 P.2d at 438. It is also consistent with the

provisions of Code § 19.2-186. That statute, as previously

pointed out, directs the court to discharge an accused if there

is “not sufficient cause for charging [the accused] with the

offense.” Id. But, if the court “considers that there is

sufficient cause only to charge the accused with an offense

24
which [the court] has jurisdiction to try, then [the court]

shall try the accused for such offense and convict him if [the

court] deems him guilty.” Id. (emphasis added). This statutory

distinction signifies that, when trying an accused, a court

functions as a trier of fact but that it does not do so when

deciding only whether there is “sufficient cause” to charge the

accused with the offense.

The majority’s decision that a court at a preliminary

hearing on a criminal charge acts as a trier of fact by weighing

the evidence and making credibility determinations has the

potential of turning preliminary hearings into “mini-trials.”

It also will likely permit defendants to use preliminary

hearings as discovery tools, a practice that is not in accord

with the purpose of a preliminary hearing. See Foster, 209 Va.

at 300-01, 163 S.E.2d at 568 (holding that “[a] preliminary

hearing may not be used for the purpose of discovery” and that

the court at a preliminary hearing did not err by refusing to

allow the defendant to present testimony about an incriminating

statement and confession because such testimony was not relevant

to the issue whether there was reasonable ground to believe the

defendant committed the charged offense); Williams v.

Commonwealth, 208 Va. 724, 729, 160 S.E.2d 781, 784 (1968)

(same).

25
 Turning now to the case before us, I thus conclude that the

circuit court was not entitled to weigh what the majority

characterizes as “Dr. Carpenter’s conflicting opinions on

Jackson’s [sexually violent predator] status.” In my opinion,

Dr. Carpenter’s testimony that Jackson met the statutory

requirements to be classified as a sexually violent predator was

not incredible as a matter of law. Thus, his testimony, along

with the other evidence presented by the Commonwealth,

established probable cause to believe that Jackson is a sexually

violent predator. See Code § 37.2-906(C). The circuit court’s

finding to the contrary was plainly wrong. The court erred in

assuming the role of a trier of fact at the probable cause

hearing.

For these reasons, I respectfully concur in part and

dissent in part. I would reverse the judgment of the circuit

court and remand this case for further proceedings under the

SVPA.

26