In Re Detention of Berry
248 P.3d 592
Wash. Ct. App.2011Background
- Berry challenged SVP commitment; held five prior sexually violent offenses (1975, 1979, 1988) including rape, kidnapping with sexual motivation, and a deadly weapon context.
- State petitioned for commitment as SVP under RCW ch. 71.09 in February 2003 before Berry’s anticipated release.
- Berry moved for summary judgment or a Frye hearing on the diagnosis paraphilia NOS nonconsent; the court denied.
- At trial, Dr. Phenix diagnosed Berry with severe antisocial personality disorder and paraphilia NOS nonconsent with sadistic traits, relying on history, interviews, DSM-IV-TR, and actuarial risk tools.
- Dr. Wollert testified for Berry that paraphilia NOS nonconsent is not generally accepted, not defined, unreliable, and did not apply to Berry.
- Jury found Berry to be an SVP, and the court entered a commitment order; Berry appeals on Frye-related and other issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Frye hearing was required for paraphilia NOS nonconsent. | Berry argues the diagnosis is novel and requires Frye. | Berry contends the diagnosis is novel scientifically and not generally accepted. | Frye not required; diagnosis not novel; admissible as weighty evidence. |
| What standard applies to a trial court’s denial of a Frye hearing. | Berry asserts de novo review should apply and scrutinizes denial. | State argues de novo review or legal question depending on reasoning. | De novo review applies to the Frye denial. |
| Whether admission of paraphilia NOS nonconsent was reversible error given weight of the evidence. | Weight of the evidence issue; Berry cross-examined and presented counterexpert. | Diagnosis admissible; issues go to weight, not admissibility. | No evidentiary error; admissible; weight addressed at trial. |
Key Cases Cited
- In re Detention of Young, 122 Wash.2d 1, 857 P.2d 989 (1993) (1993) (establishes Frye standard in context of psychological evidence)
- In re Detention of Thorell, 149 Wash.2d 724, 72 P.3d 708 (2003) (2003) (actuarial risk assessments not subject to Frye; weight over admissibility)
- State v. Gregory, 158 Wash.2d 759, 147 P.3d 1201 (2006) (2006) (questions on Frye review for trial court decisions)
- Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923) (1923) (establishes general acceptance standard for novel scientific evidence)
- In re Personal Restraint of Young, 122 Wash.2d 1, 857 P.2d 989 (1993) (1993) (guides interpretation of Frye applicability to psychology/psychiatry)
- In re Detention of Post, 145 Wash.App. 728, 187 P.3d 803 (2008) (2008) (distinguishes evidentiary challenge preserving issue for review)