435 P.3d 45
Kan.2019Background
- Matthew Cone convicted in 2012 for aggravated indecent solicitation of a child; State filed SVPA petition before his 2014 release seeking involuntary commitment as a sexually violent predator.
- State relied on expert testimony diagnosing Cone (pedophilic disorder; antisocial personality disorder) and using actuarial risk tools Static-99R and Static-2002R to estimate recidivism risk.
- District court held a Daubert hearing and admitted the Static tests; at trial State experts gave moderate-to-high risk scores (Static-99R: 5–6; Static-2002R: 8) and testified Cone lacked sufficient treatment gains.
- Defense expert challenged diagnoses and the actuarial tools’ applicability to individuals; he disputed predictive percentages and criticized use of group statistics on an individual.
- Jury found Cone a sexually violent predator; Cone moved for judgment notwithstanding the verdict and appealed, arguing (1) Static tests were inadmissible under Daubert and (2) evidence was insufficient to support SVPA commitment.
- Kansas Supreme Court affirmed the Court of Appeals and district court: actuarial tools met Daubert reliability and the evidence supported diagnoses and SVPA elements.
Issues
| Issue | Plaintiff's Argument (Cone) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Admissibility of Static-99R/Static-2002R under Daubert | Static tools are unreliable for individual prediction: scorer variability, unknown underestimation, lack of original raw data; error rate unsuitable | Tools have been repeatedly tested, peer-reviewed, re-verified, with known metrics (AUC, intraclass reliability); used as one part of an assessment | Admitted—district court did not abuse discretion; Daubert factors satisfied |
| Applicability of Daubert in SVPA proceedings | (argued evidentiary concerns about Daubert vs SVPA statutory language) | State did not cross-appeal application of Daubert; lower courts applied Daubert | Court proceeded under Daubert and assumed it applies; did not reach contrary statutory construction |
| Sufficiency of evidence for pedophilic disorder diagnosis | Experts lacked proof of requisite recent fantasies/urges; behavior could be explained otherwise | State experts relied on records, statements, and behavioral evidence; DSM-5 permits diagnosis despite denials when objective evidence contradicts denial | Evidence sufficient—jury could reasonably credit State experts' diagnoses |
| Sufficiency of evidence for SVPA commitment elements (likelihood to reoffend; lack of control) | Defense evidence rebutted risk and control findings | State experts testified to risk, lack of treatment gains, and impulse-control history; actuarial scores provided risk ranges | Evidence sufficient—viewing facts in State's favor, jury verdict sustained |
Key Cases Cited
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (trial-court gatekeeping: relevance and scientific reliability of expert testimony)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping extends to all expert testimony)
- In re Care & Treatment of Girard, 296 Kan. 372 (2013) (Kansas held actuarial risk assessments satisfy Frye and discussed admissibility in SVPA context)
- Kansas v. Crane, 534 U.S. 407 (2002) (due process limits on confinement of sexually dangerous persons)
- In re Care & Treatment of Williams, 292 Kan. 96 (2011) (elements required to commit under the SVPA)
- Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (former general-acceptance test for scientific evidence)