Roeling v. StateRoeling v. State
Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
WEBSTER, J.
Appellant seeks review following the entry of a “Final Order of Adjudication and Order of Commitment” adjudging him to be a “sexually violent predator” within the meaning of
I.
The state filed a petition to have appellant declared a “sexually violent predator” as that term is defined in
At the Frye hearing, the parties presented the live testimony of two expert witnesses regarding the use of risk-assessment instruments as a tool in arriving at opinions as to an individual‘s propensity to commit acts of sexual violence in the future. The depositions of four additional experts were also received in evidence, all without objection. The testimony established that risk-assessment instruments are based on empirically derived actuarial data, resulting from years of research, that identify characteristics and the likelihood that one will reoffend based on the presence or absence of such characteristics. The trial court subsequently entered an order denying the motions seeking to exclude the expert testimony. In its order, the trial court said:
Based on the testimony received in evidence, this Court finds that the [state] has sufficiently established that
the actuarial instruments used in Respondents’ evaluations, as part of the assessment of their risk of recidivism, are supported by a clear majority of the members of the relevant scientific community, and are based on scientific principles that are sufficiently established to have gained general acceptance in the relevant field.... Furthermore, this Court finds that the testimony concerning the use of the actuarial instruments in Respondents’ assessments will assist the jury in understanding the evidence before it.
During appellant‘s ensuing jury trial, four psychologists testified. All were of the opinion that appellant was highly likely to reoffend. Three of the four testified that they had used one or more commonly used risk-assessment instruments as one tool in arriving at their opinions. The risk assessments used included RRASOR, Static-99 and MnSOST-R. The jury unanimously found that appellant met the criteria for involuntary commitment pursuant to the Jimmy Ryce Act, and the trial court entered its order of adjudication and commitment. This appeal follows.
II.
Initially, the state argues that use of risk-assessment instruments as a tool in arriving at opinions as to an individual‘s propensity to commit acts of sexual violence in the future need not pass the Frye test because it is in the nature of the “pure opinion testimony” which our supreme court has recognized need not pass the Frye test, citing Flanagan v. State, 625 So.2d 827 (Fla.1993), and Hadden v. State, 690 So.2d 573 (Fla.1997). The state also points out that a number of other jurisdictions that have considered this question have concluded that this type of testimony is not “novel scientific evidence” and, therefore, Frye testing is unnecessary. See, e.g., In re Detention of Thorell, 149 Wash.2d 724, 72 P.3d 708 (2003); State v. Fields, 201 Ariz. 321, 35 P.3d 82 (Ct.App. 2001); Garcetti v. Superior Court, 102 Cal. Rptr.2d 214 (Ct.App.2000), rev‘d on other grounds sub nom. Cooley v. Superior Court, 29 Cal.4th 228, 127 Cal.Rptr.2d 177, 57 P.3d 654 (2003); In re Commitment of Stevens, 345 Ill.App.3d 1050, 281 Ill.Dec. 415, 803 N.E.2d 1036 (2004); In re Detention of Holtz, 653 N.W.2d 613 (Iowa Ct. App.2002); Commonwealth v. Dengler, 843 A.2d 1241 (Pa.Super.Ct.2004). We are unable to agree with this argument.
In the first place, the state did not make this argument in the trial court. Moreover, it seems to us that the use of risk-assessment instruments is more akin to the use of “sexual offender profiles” at issue in Flanagan and the use of the “child sexual abuse accommodation syndrome” at issue in Hadden than to “pure opinion testimony,” as that term was used in those two cases. In Flanagan, the court held that expert opinion testimony based in part on “sexual offender profiles” must meet the Frye test (625 So.2d at 828); and in Hadden, the court reached the same conclusion regarding expert opinion testimony based in part on the “child sexual abuse accommodation syndrome.” 690 So.2d at 574-75. Accordingly, based on Flanagan and Hadden, we conclude that expert opinion testimony regarding an individual‘s propensity to commit acts of sexual violence in the future that is based in part on the use of risk-assessment instruments must pass the Frye test. We note that two other Florida district courts of appeal appear to have reached a similar conclusion, although neither discusses the issue. See Lee v. State, 854 So.2d 709 (Fla. 2d DCA) (concluding that the trial court did not err in admitting the testimony, after conducting a Frye hearing; and that, even if it did, any error was harmless),
III.
“[N]ovel scientific evidence is not admissible in Florida unless it meets the test established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923),” which requires that such evidence “`be sufficiently established to have gained general acceptance in the particular field in which it belongs.‘” Flanagan, 625 So.2d at 828 (quoting Frye, 293 F. at 1014). Accord Hadden, 690 So.2d at 577-78; Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995) (Ramirez II). Among other things, “[t]his standard requires a determination ... that the basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community.” Brim v. State, 695 So.2d 268, 272 (Fla. 1997). As our supreme court has explained:
The underlying theory for this rule is that a courtroom is not a laboratory, and as such it is not the place to conduct scientific experiments. If the scientific community considers a procedure or process unreliable for its own purposes, then the procedure must be considered less reliable for courtroom use.
Stokes v. State, 548 So.2d 188, 193-94 (Fla. 1989). In other words, the Frye test is “designed to ensure that the jury will not be misled by experimental scientific methods which may ultimately prove to be unsound.” Flanagan, 625 So.2d at 828 (citing Stokes).
When applying the Frye test, “the burden is on the proponent of the evidence to prove [by the greater weight of the evidence] the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand.” Ramirez II, 651 So.2d at 1168. This requires more than “[a] bald assertion by the expert that his deduction is premised upon well-recognized scientific principles,” particularly “if the witness‘s application of these principles is untested and lacks indicia of acceptability,” or “if the expert has a personal stake in the new theory or is prone to an institutional bias.” Ramirez v. State, 810 So.2d 836, 844, 844 n. 13 (Fla. 2001) (Ramirez III). As our supreme court has explained, “general scientific recognition requires the testimony of impartial experts or scientists. It is this independent and impartial proof of general scientific acceptability that provides the necessary Frye foundation.” Id. at 851.
Our standard of review when considering a trial court‘s ruling on a Frye issue is de novo, rather than abuse of discretion. Murray v. State, 838 So.2d 1073, 1077-78 (Fla.2002); Ramirez III, 810 So.2d at 844; Brim, 695 So.2d at 274. Moreover, we must address the matter of general acceptance as of the time of appeal, rather than the time of trial. Ramirez III, 810 So.2d at 844-45 (citing Hadden, 690 So.2d at 579). In reaching our decision regarding general acceptance, we “may examine expert testimony, scientific and legal writings, and judicial opinions.” Hadden, 690 So.2d at 579 (citing Flanagan, 625 So.2d at 828).
IV.
The testimony presented to the trial court provides substantial support for
The opinions relied upon by the trial court are, moreover, consistent with conclusions reached by a number of other psychologists, including those who have developed the actuarial tools and conducted cross-validation and meta-analyses to confirm their reliability. See, e.g., Judith V. Becker & Wm. D. Murphy, What We Know and Do Not Know About Assessing and Treating Sex Offenders, 4 Psychol., Pub. Pol‘y & L. 116 (1998); Douglas L. Epperson et al., Cross-Validation of the Minnesota Sex Offender Screening Tool-Revised, ATSA Presentation, San Diego, CA (Nov. 3, 2000); Martin Grann et al., Actuarial Assessment of Risk for Violence: Predictive Validity of the VRAG and the Historical Part of the HCR-20, 27 Crim. Just. & Behavior 97 (2000); Wm. M. Grove & Paul E. Meehl, Comparative Efficiency of Informal (Subjective, Impressionistic) and Formal (Mechanical, Algorithmic) Prediction Procedures: The Clinical-Statistical Controversy, 2 Psychol., Pub. Pol‘y & L. 293 (1996); R. Karl Hanson, What Do We Know About Sex Offender Risk Assessment?, 4 Psychol., Pub. Pol‘y & L. 50 (1998); R. Karl Hanson & David Thornton, Improving Risk Assessments for Sex Offenders: A Comparison of Three Actuarial Scales, 24 L. & Human Behavior 119 (2000); R. Karl Hanson & Monique T. Bussiere, Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies, 66 J. of Consulting & Clinical Psychol. 348 (1998); R. Karl Hanson & Andrew J.R. Harris, Where Should We Intervene?: Dynamic Predictors of Sexual Offense Recidivism, 27 Crim. Just. & Behavior 6 (2000); Robert D. Hare et al., Psychopathy and the Predictive Validity of the PCL-R: An International Perspective, 18 Behavioral Sci. & L. 623 (2000); Grant T. Harris et al., Appraisal and Management of Risk in Sexual Aggressors: Implications for Criminal Justice Policy, 4 Psychol., Pub. Pol‘y & L. 73 (1998); Marnie E. Rice & Grant T. Harris, Cross-Validation and Extension of the Violence Risk Appraisal Guide for Child Molesters and Rapists, 21 L. & Human Behavior 231 (1997).
Finally, courts in Florida and other jurisdictions have also considered the admissibility of expert opinion testimony regarding propensity to commit acts of sexual violence in the future which is based in part on use of risk-assessment instruments. Not one court has held such testimony inadmissible as a matter of law. Rather, the debate has been over whether the testimony must pass the Frye test.
Having carefully considered the testimony presented to the trial court, scientific and legal writings and judicial opinions, we conclude that the state has carried its burden to demonstrate by the greater weight of the evidence that expert opinion testimony regarding propensity to commit acts of sexual violence in the future which is based in part on use of the RRASOR, Static-99 and MnSOST-R risk-assessment instruments satisfies the Frye test. Accordingly, we conclude, further, that the trial court correctly denied appellant‘s “Motion to Exclude Testimony Regarding Risk Prediction” and permitted the state‘s experts to testify regarding appellant‘s propensity to commit acts of sexual violence in the future.
V.
For the reasons expressed in this opinion, the trial court‘s order denying appellant‘s “Motion to Exclude Testimony Regarding Risk Prediction” and its “Final
AFFIRMED.
KAHN and BROWNING, JJ., concur.