In Re Detention of Bolton

(The People of the State of OF PAUL B. BOLTON In re DETENTION Bolton, Defendant-Appellant). Illinois, Plaintiff-Appellee, B. v. Paul 4 — 02—0515 District No. Fourth Opinion filed November Kennedy, Champaign, appellant. for

Daniel B. (William Browers, Attorney General, Chicago Anne S. Madigan, L. Lisa General, counsel), Attorneys Hoffman, Bagby, and Anne Assistant Lisa People. JUSTICE COOK delivered the of the court: Defendant, Bolton, Paul B. appeals April 16, 2002, jury verdict finding him to a sexually be violent pursuant to Illinois’s Sexu- (Act) (725 ally Violent Persons Commitment Act through ILCS 207/1 (West 2000)). We reverse and remand. I. BACKGROUND April 7, 1994, On defendant pleaded guilty to criminal sexual as- (720 13(b) (West 1994)), sault ILCS a X felony, Class for molesta- 5/12— child, tion and oral sex a stepsister, began his which he admitted (Defendant when she yeárs was 6 old and he years was 12 old. was 1976.) born Defendant years’ was sentenced to four proba- intensive 19, 1995, tion. On June defendant was found in proba- violation of his tion for attempting five-year-old girl to lure a to an area secluded a tarp for a sexual accordingly offense. He was years’ sentenced to 12 (DOC). imprisonment Department in the Illinois of Corrections Defendant mandatory was scheduled for supervised release on Febru- ary

Prior to release, defendant’s Jacqueline Buck, Dr. a N. licensed psychologist clinical working special for the DOC, evaluation unit of reviewed defendant’s DOC file to determine whether he met the criteria for sexually a violent person under the Act and was therefore in need of a clinical interview. The purpose of a clinical interview is to identify leaving sex offenders who are high DOC and have a risk civilly reoffend in order to Department commit them to the of Human Services for sex-offender treatment.

On December Dr. Buck defendant and interviewed decided not to refer defendant for commitment under the Act because he had completed years almost two of sex-offender treatment at the Big Muddy Facility. January 2001, Correctional Swope, Amanda defendant’s ex-girlfriend child, and mother of his telephoned DOC and expressed concern for safety of herself and her child after call, defendant’s release. Due to this Dr. Buck reevaluated defendant using information she did not making have when her initial decision. Dr. Buck found this significant information and referred defendant for February 26, 2001, commitment. On petition seeking the State filed a finding a sexually that defendant was a violent and should be pursuant committed to the Act. trial, Reidda,

At the State presented Dr. Buck and Dr. Phil licensed clinical psychologist working Psychologists for Affiliated Limited, organization independently contracted State perform persons probable-cause evaluations on for whom an Act determination has been made. Both Dr. Buck and Dr. Reidda found (American Association, Psychiatric met the defendant DSM—IV—TR IV—TR, of Mental Disorders Diagnostic and Statistical Manual DSM— (1) 2000)) sexu- diagnostic pedophilia, criteria for at xxxiii rev. ed. (2) females, ally type; paraphilia, attracted to nonexclusive females, sexually nonconsenting attracted to specified, otherwise (4) disorder, personality type; voyeurism; nonexclusive antisocial disorder, severe; severe. personality narcissistic that he has They testified defendant has a mental disorder such behavior, and there is a substantial difficulty controlling serious his violence in the probability engage defendant will acts sexual ILCS significant place. future unless intervention has taken See 725 207/5(f) (West 2000). on the results of They opinions based their tools, psychological tests and actuarial as well as clinical interview juvenile criminal, sexual, and a review of and adult defendant’s treatment history. Davis, presented Larry

Defendant Dr. M. physician licensed specializing in psychiatry purpose who had examined defendant for the litigation. diagnosed this Dr. Davis defendant pedophilia, with sexu- females, ally type, voyeurism. attracted to nonexclusive He did not believe there was a substantial defendant probability would sexu- ally reoffend. He based on his evidence defendant’s treat- ment at Big Muddy Facility. high Correctional Due to defendant’s intelligence, activity, ongoing therapy, further education and direct experience punishment, of DOC he felt that defendant’s behavior addition, controllable. In experts Dr. Davis contended that the field agree that the reoffense rate for incestuous sexual molesters is than lower nonincestuous molesters. The fact that defendant’s victims are female also lowers his reoffending. likelihood of Dr. Davis did not rely on actuarial tools to defendant’s assess risk recidivism. presented Campbell,

Defendant also Dr. Terence a licensed clinical psychologist psychological who reviewed defendant’s evaluations. Dr. Campbell length regarding history testified at criticisms many opinions actuarial tools used in this case. He based of his on two published analyzed articles after Dr. Buck and Dr. Reidda defendant. Campbell argued by Dr. the correlation the risk used between factors statistically significant; Dr. Buck and Dr. Reidda and recidivism was not cross-examination, the correlation could occur alone. On Dr. chance Campbell admitted that one of the he relied on concluded that articles (Violence Guide) Risk and Static-99 tools were Appraisal VRAG predict found to violent and sexual recidivism. He admitted that the actuarial He tools used this case are the best available. testified nation, although they the tools are used all over the are not necessarily being accurately. used Doren,

The State called rebuttal witness Dr. Dennis a licensed psychologist, testify regarding the actuarial tools. He testified that the concept goes psychology years of actuarial tools back in almost 100 the first intelligence with test. 14 of the 15 states have sex- statutes, offender civil-commitment at least some of the evaluators use actuarial part tools as of their assessment process. Association for (ATSA) the Treatment of Sexual Offenders a policy has that evalua- tors should use validated actuarial risk-assessment tools. He did not experimental consider actuarial tools to be nationally because internationally complete, well tested. Each instrument but the research improve upon product. continues to

juryA returned committing a verdict in favor of defendant as a sexually violent pursuant to the Act. On June the trial court found commitment to institutional facility, care a secure Department Services, of Human to be the least-restrictive treatment alternative and ordered defendant accordingly. appeal committed This followed.

II. ANALYSIS (1) appeal: Defendant raises four issues on whether the trial court in refusing erred defendant’s proposed jury regarding instructions his (2) ability behavior, to control his sexual whether defendant’s court- appointed counsel was ineffective for failing object to the introduc prior activity tion of evidence of sexual that did not consist of “sexu (725 ally violent offenses” as that term is defined in the Act ILCS 207/ 5(e) (West 2000)), whether the Act is unconstitutional it require Department fails to provide of Human Services to treat designed ment recovery pertinent disorder, effect from the mental whether the trial in denying court erred defendant’s motion (see (D.C. States, for a Frye hearing Frye v. United 293 F. 1013 Cir. 1923)) regarding expert testimony reject based on actuarial data. We issues, agree defendant’s first three but we the trial court erred in denying Frye hearing. defendant’s motion for a

Defendant, brief, supplemental in a asks this court to consider whether the trial improperly court denied defendant’s motion for a Frye evidentiary hearing admissibility on the of the actuarial tests witnesses, relied or referred to expert the State’s Dr. Buck proffered sexually- and Dr. Reidda. The trial court found that risk not or violent-person assessments were “new” “novel” scientific subject Frye admissibility trial, evidence standards. At both doctors relied, part, upon scoring their and evaluation of defendant on tools, including the Sex Offender Screen- certain actuarial Minnesota (MnSOST), Screening Tool—Revised ing Tool Minnesota Sex Offender

1227 (MnSOST-R), VRAG, Hare Checklist —Revised Psychopathy the the Static-99, Meta-analysis, to (PCL-R), the and the Hanson and Bussiere probability defendant’s of recidivism. opinion regarding form an expert’s that an recent cases have determined Two Illinois MnSOST-R, MnSOST, (Rapid RRASOR testimony upon the predicated Offense), Static-99 does not of Sexual tests Risk Assessment 3d admissibility. Taylor, App. v. 335 Ill. satisfy Frye People the test for (2002) (Second 920, District); In re Deten N.E.2d 932 782 557, 669, 675, Ill. 3d N.E.2d 562 Hargett, tion 338 786 (Third District). Illinois, governed by the is expert admission Frye methodology principle or scientific standard: whether sufficiently which the is based is established to have gained general belongs. in the field in it acceptance particular which Co., 63, 77, Donaldson v. Central 2d Illinois Public Service 199 Ill. 767 (2002) (see (199 314, n.1, N.E.2d footnote 1 Ill. 2d at 80 also n.1, 767 N.E.2d at 325-26 court not of a yet adoption has considered Pharmaceuticals, new standard consistent with Daubert v.Merrell Dow Inc., 579, 469, (1993)); 509 Frye U.S. 125 L. Ed. 2d 113 S. Ct. 2786 v. (D.C. 1923). States, United F. 1013 Cir. acceptance General 293. methodologies require does not universal and the trial acceptance, judge applies Frye only test if principle, technique, the scientific or test offered expert support his or her conclusion is “new” or Donaldson, 78-79, “novel.” 767 N.E.2d at 324. General acceptance and reliability separate questions. are not two reliability determination of the of an expert’s methodology naturally inquiry general acceptance subsumed into its scientific Donaldson, community. 199 Ill. 2d at

There is a preliminary question Frye applies whether at all to psychological Ward, 368, 373, testimony. People See 71 Cal. 4th Rptr. (psychological Cal. evaluation is a learned professional art rather than the exact science with which concerned). Circuit, however, The Seventh held has that Daubert “is applicable experts, just applies to social science as it experts hard Tyus Management, sciences.” v. Urban Search 102 F.3d 1996); Daubert, Cir. 509 U.S. at 125 L. Ed. 2d at 113 S. “scientific, Ct. at (gatekeeping function to all forms of applies technical, or other specialized knowledge” (emphasis original omitted)); Carmichael, 137, 141, Kumho Tire Co. v. 526 U.S. 143 L. (1999) (Daubert only Ed. 2d 119 S. Ct. applies “ ” to testimony knowledge, based on ‘scientific’ but also to “ ” “ based on specialized’ knowledge”). ‘technical’ and ‘other Court, Frye, The United States Supreme discussing without has 1228

unenthusiastically psychiatrists’ declared that predictions of future violence are are persuaded admissible. “We not that such is almost entirely unreliable and that adversary factfinder and the system uncover, will competent not be to recognize, and take due ac- shortcomings.” Estelle, count of its 880, 899, v. 463 U.S. 77 L. Barefoot (1983) (the 1090, 1108, 3383, Ed. 2d 103 S. Ct. 3397-98 American Psychiatric Association had filed an brief stating amicus that unreliable). psychiatric predictions long-term dangerousness were As a Barefoot, result of it been has concluded that a psychologist’s or psychiatrist’s opinion as to an dangerousness individual’s future is generally admissible when that is based upon clinical observa tion or the personal evaluator’s experience. Taylor, App. 335 Ill. 3d at 976, jurisdictions 782 N.E.2d at 929. Some gone on to conclude that actuarial subject instruments are not Frye analysis because they are part psychologist’s of a psychiatrist’s or methodology to predict dangerousness. See, future e.g., Court, Garcetti Superior v. 85 508, App. 543, 214, Cal. 4th Rptr. (2000), 102 Cal. 2d 238 rev’d & by Cooley Court, remanded Superior 228, v. 29 Cal. 4th 654, 57 P.3d Rptr. (2002); 127 Cal. 2d 177 1 J. Strong, McCormick on Evidence (5th 1999) (same 206, § at 764 ed. argument was in support made examinations). polygraph tests, however, Actuarial presented as to the jury case, in this quality add a of mathematical objective or certainty to what subjective otherwise the opinion of the expert witness. There is an inconsistency argument that actuarial instruments subject are not Frye because are a part psychologist’s of the art but actuarial instruments are better than the psychologist’s clini judgment cal alone. agree Taylor

We with the well-reasoned decision that psychological psychiatric testimony or of an expert predicated upon subject actuarial instruments is scientific evidence Frye. Taylor, 335 976, Ill. 3d App. Taylor at 782 N.E.2d at 929. pointed to other Illinois holding Frye govern decisions that should the admissibility psychological psychiatric expert testimony predicated is not solely on the evaluator’s own experience. clinical observation and Marriage Taylor, 975-76, 335 Ill. 3d at App. citing 782 N.E.2d at In re Jawad, Ill. 3d 1012-13 (2001), Shanahan, People v. 323 Ill. (2001) (“battered N.E.2d child syndrome”); see also People Zayas, v. 131 Ill. 2d 546 N.E.2d 513 (hypnotically inadmissible); by psychiatrist People refreshed obtained Baynes, (polygraph testimony 88 Ill. 2d 430 N.E.2d 1070 inadmissible). may

There a danger upon actuarial instruments intrude a false jury, they may instill proper functioning infallibility. of scientific Donald carry misleading confidence or a sense 86-87, son, expert’s N.E.2d at 329. Where the principles comprehensible jury, methods involve that are to a inducing concerns influence and exerting over the evidence undue hand, battle of the the other experts have less force. On when esoteric, technique types nature of the is more as with some of statisti analyses, subjective cal judgments misleadingly presented or when science, stronger showing probative as hard value should be required. Strong, § 1 J. McCormick on Evidence ed. 1999). concluded, supreme Donaldson, “extrapola court tion,” similar, establishing a and effect relationship cause based identical, theories, yet scientific studies and did not require test. “[Extrapolation fallibility nature admits its lack of —the specific of a effect support establish existence known cause and Donaldson, relationship.” at at 767 N.E.2d 329. That is instruments, not true of actuarial which are presented as reliable determining methods of future dangerousness.

Are these actuarial instruments no different from actuarial tables for life expectancy? Life expectancy single, easily tables look to a factor, identified age, and past experience announce what has been. The actuarial First, tests before us are more complicated. the relevant factors must be identified. Is the age? sex of the offender relevant? His Whether he likes broccoli? ignored? Can certain factors ever be Selec tion of the appropriate factors is not simply computa mathematical Next, tion. it must be determined weight assign what to the various factors, and then it must be determined how to score the results. Does a score of 23 equate high probability reoffending? with a It is not necessary to a Frye hearing motion, conduct on Newton’s laws but reasoning employed inductive presents these actuarial tests different question. The fact that many statistics have been used for years does mean impossible any controversy not that it is to arise. People Miller, See 173 Ill. 2d 670 N.E.2d 731-32 (1996) (controversy over frequency (deoxyribo statistical of a DNA acid) nucleic match within a certain population).

Some experts have testified that actuarial provide instruments significant amount of far psychologist’s information that exceeds a ability predictions to make purely expert opinion based on or clinical judgment Taylor, alone. See 335 Ill. 3d at 782 N.E.2d at 932 Leavitt). (testimony Barry of Dr. testimony may simply That reinforce the dangers relying on If psychological testimony this area. testimony is, psychologist suggested, as some have not scientific all, simply testimony evidence at but as to psychologist’s observa- tions, given greater weight lay it should be no than of a witness. Supposed “expert” testimony may provide easy ques answer to a cases, impossible custody tion that is almost to answer. In child concern has been expressed psychologists that the allows judges to difficult and simply avoid decisions defer to the recommenda psychologist. Gitlin, tion of the H. Mental-Health Professionals Child-Custody Due, Cases: Giving “Expert” Testimony Its 89 Ill. B. J. (2001). may The juries same be true for who must determine an individual a sexually dangerous person. whether concept novel,

Dr. Doren testified that the of actuarial tools is not the concept goes psychology years back in almost 100 with the intelligence first test. Dr. Doren is a and it psychologist, is not clear expertise what he has in the field of statistics. See Dura Automotive Indiana, Systems Corp., Inc. v. CTS 285 F.3d Cir. 2002) (expert incorporate subject cannot of another on a qualified). any event, for which he is not Dr. Doren’s observation is general any significance. particular methodologies too to be of employed They in this case are of recent development. have not been subjected empirical testing. They been controversial frequently criticized.

It many psychologists psychiatrists is true that utilize these Taylor, 335 Ill. It instruments. clear, however, any whether these instruments have use outside the courtroom See Reference on setting. Manual Scientific Evidence (2d 2000) (concern ed. Federal Judicial Center with result sometimes reached under when admitted was once experts pointed to a consensus in a field narrow had themselves established). agree Taylor, any We with absence of significant peer validity reliability review of the of these instru ments, accept conclusory we cannot the State’s that the assertions gained general acceptance instruments have in the scientific com they can accept ipse munities. Nor we the dixit the witnesses Taylor, experts are and know best whether these tests are valid. significant both Drs. Maskel and Leavitt testified that there was and manner in which controversy surrounding these instruments Drs. they should be used. To that must be added the Campbell and in this case. Davis

Psychologists testimony, are statistical permitted give experience categories has shown that certain of offend- example, jury given reincarcerated at a certain rate. Where the is not ers are it, however, simply but is asked to comprehensible evidence that is category accept the instrument’s conclusion that defendant is violence,” committing future acts of sexual there “very high risk of

1231 weighing its function of danger jury will abandon problem where present particular evidence. Statistical indicators pertain to volitional conduct. they conduct, pertain

“[Wlhere the statistical indicators to volitional they great weight concep- on a place the courts are cautious because tion of human autonomy dignity coldly that the statistical analysis put way, shying away undermine. To it another would everyone predictions from the statistical reflects a belief that should the statistical norm.” 1 J. opportunity depart from 1999). 210, Strong,. § McCormickon at 805 n.3 ed. Evidence

III. CONCLUSION Because the use actuarial instruments these cases has test, approved judgment been in a we reverse the trial court’s declaring defendant a sexually violent under the Act and proceedings. remand for further

Reversed and remanded.

MYERSCOUGH, EJ., concurs. APPLETON,

JUSTICE dissenting: reasons, For two I respectfully portion dissent from the majority’s opinion holding that the actuarial assessments were inadmissible under Frye: the actuarial not a instruments were test; scientific they test, even if they were a scientific were not novel.

Frye applies to deductions purportedly principle, from a scientific technique, Frye, 1014; Donaldson, 77, or test. 293 F. at 199 2d Ill. at 767 N.E.2d at 324. The actuarial that Buck and instruments Reidda used do not purport principle, technique, to be scientific or test. See R.S., In re 72, Commitment Super. N.J. 773 A.2d (2002). (2001), 134, aff’d, “Rather, 173 N.J. 801 A.2d 219 simply actuarial of organizing interpreting tables—methods a col R.S., lection of historical data.” 339 N.J. Super. 773 A.2d at 92. By observing a large what number of have had in com reoffenders mon, Isbell, one can compile a list of “risk factors.” In re Detention of (2002); Ill. Hanson, R. Assessment?, What Do Psych. We Know About Sex Risk Offender (1998). Pub. Pol. & L. One can then calculate the relative frequency with which sex offenders with those “risk factors” have thereby reoffended and other probability assess sex offenders Isbell, with the same “risk reoffend. factors” will merely help psycholo- 777 N.E.2d at 1002. The actuarial tools 1232

gist experience draw inferences from historical data or the collective device, psychologists. They purportedly other are not a scientific like a polygraph. regard,

In this the at are no different than actuarial tests issue expectancy jury tables for life admitted as evidence to for the gross pain determination of the amount for future awarded suf- fering expert present or used an economic to determine the cash pension. value of a Russell, 747, 125 2d State v. Wash. 882 P.2d 756-58

(1994), posed the defendant had the bodies of his three murder victims cetera). hand, arm, (put pinecone prove a book under the et To that the murderer of the three probably person, victims was same the State’s experts analyzed computer consisting two databases “forms, officers, listing filled out local law enforcement the various Russell, Washington characteristics of homicides in and the nation.” 69, analysis, 125 Wash. 2d at 882 P.2d at 776. On the basis of that Russell, experts rarity murder 125 posed testified “the victims.” 69, argued Wash. 2d at 882 P.2d at 776. The defendant Frye experts “improp was inadmissible under because the erly unproven methodologies determining relied on in scientific Russell, the same committed all three murders.” 125 Wash. 2d 68, Supreme Washington at 882 P.2d at 776. The Court of held that *** Frye programs “clearly inapplicable” computer was because (Rus “nothing sophisticated record-keeping systems” were more than sell, 2d in quoted 125 Wash. at 882 P.2dat Bachman v. General 760, 780, (2002), Corp., App. Motors 332 Ill. 3d 776 N.E.2d (2002). denied, appeal 202 Ill. 2d N.E.2d 154 Like the experts Russell, merely probability in Buck and Reidda drew inference of sophisticated record-keeping system. from a were, properly speaking, Even if the actuarial case tools this methodologies, they methodologies. not novel scientific scientific were “novel,” i.e., if it methodology only bars the use of a scientific “ ” unusual, Co., ‘[sjtrikingly new, Cropmate or different.’ Harris v. (1999), American quoting 302 Ill. 3d 706 N.E.2d (1975). majority Dictionary English Language The Heritage acknowledges psychology case Doren’s has been this majority The using years. actuarial tools for almost 100 dismisses however, any significance. The testimony, general as “too to be develop are of recent methodologies employed in this case particular added.) at 1230. ment,” majority says. (Emphasis 343 Ill. supreme explained: court has technique is not recognize that a ‘new’ or ‘novel’ scientific “We identify, light of constant scientific always easy especially however, a Generally, advances in our modern era. scientific ‘original striking’ or technique is ‘new’ or ‘novel’if it is or does ” something formerly (Emphasis resembl[e] ‘not known or used.’ added.) Donaldson, 325, quoting (1993). Dictionary Third Webster’s New International Thus, MnSOST,MnSOST-R, is not question simply whether the VRAG, PCL-R, Static-99, and Meta-analysis Hanson and Bussiere are of recent development. they themselves We must ask whether something formerly “resemble known or Our society used.” uses (in actuarial predict liability methods to human behavior all the time economics). insurance, for and example, methodologies Such are not new, unusual, strikingly Meehl, or different. See W. Grove & P Com- parative Efficiency (Subjective, Impressionistic) and Formal of Informal (Mechanical, Algorithmic) Prediction Procedures: The Clinical- (1996) (in Statistical Controversy, Psych. Pub. Pol. & L. 1928, the published Illinois State Board of Parole the results of what was apparently the first attempt predict to through recidivism data). actuarial Davis, expert,

Defendant’s own used an technique, actuarial although he did not explicitly say so. In support his unlikely reoffend, defendant was to Davis testified to a consensus “among the experts in the field that the reoffense rate for incestuous sexual [was] molesters lower than [that for] nonincestuous molest ers.” He also testified female, that because defendant’s victims were defendant had a lower likelihood of than if reoffending they had been “experts male. The in the field” could not have determined the “reoff ense rate” without an analysis. actuarial See J. Becker Murphy, & W What WeKnow and Do Assessing Not Know About and Treating Sex (1998) (“offenders Offenders, 4 Psych. Pub. Pol. & L. against unrelated 18.3%, females had a rate recidivism unrelated males 8.5%”). 35.2%, and incest majority cases ap endorses an actuarial proach says: when it “Psychologists permitted give statistical testimony, for example, that experience has shown that certain categories of offenders are reincarcerated at a certain rate.” 343 Ill. App. 3d at Apparently, permitted Davis is to do haphazardly what the State’s witnesses are forbidden to do more thoroughly and systematically.

Even those using who favor the actuarial tools have criticized them or pointed limitations, out their such as a lack of comprehensive- See, ness the factors e.g., Rogers, consider. R. The Uncritical Acceptance Practice, Risk Assessment in Forensic 24 L. & Human Behavior 595-96 on (emphasis risk factors to the exclusion of protective factors, relations, self-esteem, such as social religious

beliefs); Hanson, (emphasis L. at 65 on static risk Psych. Pub. Pol. & factors). criticisms, however, dynamic factors to the exclusion of Those but, recidivism approach predicting are aimed not at the actuarial rather, rigorously follow the actuarial properly at the failure to be, might and Reidda used The actuarial tools that Buck approach. reason, methodology, inadequate application of actuarial whatever (which bring out in cross- shortcoming defendant could but examination) assessments, not go weight to the of the actuarial would admissibility Frye. People Pope, their under See (1996). 1321, 1326 The two cases on which relies, Taylor Hargett, appreciate fail to majority chiefly well-established, underlying methodology distinction between methodology. and the use of that prediction particular actuarial holding psychologi In cited no case Taylor, the Second District on actuarial was psychiatric testimony relying cal or assessments the Third District cited no such Frye. Hargett, inadmissible under case, reported is the Taylor. appears Taylor other than It first predict to bar the use of actuarial tools to decision the United States uniformly jurisdictions It that courts in other appears recidivism. Strauss, 106 tools. In re Detention Wash. allowed the use of such (2001) (the relevant com 20 P.3d scientific and, therefore, and the munity generally accepts the MnSOST VRAG Holtz, unnecessary); In re Detention 653 N.W.2d Frye hearing a is of 2002) (Iowa (MnSOST, MnSOST-R, and Static-99 are 613, 619 App. P.3d admissible); Fields, 201 Ariz. Romley State ex rel. 2001) models to the use of actuarial (App. (Frye inapplicable is R.S., 801 A.2d at 220 professionals); mental health 173 N.J. at (use dangerousness to future of sex predict of actuarial instruments Garcetti, meaning Frye); of widely accepted offender is within the prediction Rptr. (psychiatrist’s 4th at 102 Cal. 2d at 238 Cal. subject Frye, regardless of whether dangerousness of future is not models). actuarial psychiatrist the used clinical or the beyond Taylor, says that majority, without citation frequently “are controversial and have been actuarial tools this case hu Any approach predicting 3d at 1230. criticized.” 343 Ill. criticized, frequently because man be controversial behavior will requires predic such daunting. Yet the law complex the task is so of their examina on the basis psychiatrists psychologists, tions. If or I not reoffending, of do defendant, his likelihood predict tion of can which, actuarial they cannot at least consider why see assessments — widely uses and evidence, the profession according to the unrebutted judgment. clinical subjective than the unaided which are less statutorily majority prefer would appear It would testimony of to be on sense and required psychologists based data, conjecture analysis imperfect rather a as methodological than may exactly or I out may point it not be. would that it is the existence As- of the actuarial models here used that led to the Illinois General sembly, as 14 other legislatures adopted well as the states have could, similar sexually-violent-person legislation, to conclude it conscience, good postincarceration with mandate detention those sexual offenders demonstrated a risk to society. who addition, comparison testimony

In majority’s expert expert custody here to the use psychological child is First, cases unwarranted and is no inappropriate. simply there comparison acceptance between psychological testimony statutorily required and such proffered by party that is as support for or her position. majority his If and Gitlin problem judgment with trial courts their to a abdicating mental health professional, problem properly judges so, their with who do psychologists who, making after investigation such as are bound provide their charge, do and factors which a competent facts judge may trial place varying making judicial weight decision. MARSH, OF Petitioner-Appellant, re MARRIAGE BROOKS MARSH, Respondent-Appellee.

FRANKIE Fourth District No. 4 — 03—0022 Argued July Opinion filed 2003. November

Case Details

Case Name: In Re Detention of Bolton

Court Name: Appellate Court of Illinois

Date Published: Nov 13, 2003

Citation: 800 N.E.2d 128

Docket Number: 4-02-0515

Court Abbreviation: Ill. App. Ct.