Appeal from the Circuit Court of Lake County. No. 00--MR--857 Honorable Raymond J. McKoski, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Hutchinson
Respondent, Dale Taylor, appeals from the jury's verdict finding him to be a sexually violent person pursuant to the provisions of the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 2000)). On appeal, respondent contends (1) the Act is unconstitutional under the United States Supreme Court's recent decision in Kansas v. Crane, 534 U.S. 407, 151 L. Ed. 2d 856, 122 S. Ct. 867 (2002), and (2) the trial court abused its discretion in permitting the State's experts to testify regarding certain actuarial instruments they utilized to predict the likelihood that respondent would reoffend. We address the first of these contentions in the unpublished portion of the opinion. We reverse and remand for a new trial.
In 1992 respondent pleaded guilty to the charge of aggravated criminal sexual assault, and the trial court sentenced him to 18 years' imprisonment. On September 28, 2000, five days before respondent's scheduled mandatory supervised release, the State filed a petition to commit respondent pursuant to section 40 of the Act (725 ILCS 207/40 (West 2000)). The petition alleged that respondent was suffering from the following mental disorders: (1) paraphilia, not otherwise specified, with non-consenting females, (2) alcohol dependence, and (3) severe antisocial personality disorder. The State alleged that respondent was dangerous to others because his mental disorders created a substantial probability that he would engage in future acts of sexual violence. Accompanying the petition, the State provided a mental health evaluation of respondent prepared by psychologist Dr. Agnes Jonas.
Respondent moved in limine to bar any expert testimony regarding the results of certain actuarial instruments utilized to predict the likelihood that respondent would reoffend, including the Minnesota Sex Offender Screening Tool (MnSOST), the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R), the Static-99, and the Rapid Risk Assessment of Sexual Offense (RRASOR). Respondent argued that the validity and reliability of these tests have not been established and that the tests have not been accepted by the scientific community. Respondent concluded that the tests failed to meet the standards for admissibility enunciated under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
The trial court subsequently conducted a Frye hearing. At the hearing, respondent called forensic psychiatrist Dr. Lynn Maskel. Dr. Maskel testified that the majority of her practice involved consultation on sexually violent persons cases. She reported that she had attended numerous conferences featuring the researchers who created the MnSOST, MnSOST-R, the Static-99, and the RRASOR. Dr. Maskel has had discussions with the authors of these actuarial instruments as well as with other practitioners who have utilized these instruments.
Dr. Maskel testified that the foundational literature utilized in the field of forensic psychiatry to predict sexual offender recidivism is the "meta-analysis" compiled by Hanson and Bussiere. In their " meta-analysis," Hanson and Bussiere surveyed 61 different studies on the issue of sexual offender recidivism. The meta-analysis surveyed the studies and compiled certain common factors that were correlated with sexual offender recidivism. Dr. Maskel explained that the meta-analysis cannot be used to predict the absolute risk for sexual reoffense. Rather, the meta-analysis provides a list of factors that a psychologist or psychiatrist may wish to consider in predicting sexual offender recidivism.
Dr. Maskel next testified about the actuarial instruments known as the MnSOST and the MnSOST-R. Dr. Maskel explained that the MnSOST-R is an updated version of the MnSOST and that the lead author of the instruments has suggested that the MnSOST no longer be used. To utilize the MnSOST-R, the psychologist or psychiatrist examines the sexual offender's background and looks for the presence of 16 factors. The examination may be performed either through clinical interviews or by reviewing the offender's medical file and records. The examiner totals the number of factors present to arrive at a score and then compares the score with a corresponding table that lists the percentage that the individual is likely to reoffend over the next six years. In this case, Dr. Jonas used the MnSOST-R instrument and scored respondent a 12, which indicated that there was a 75% probability that respondent would reoffend within six years.
Dr. Maskel explained that there is significant controversy in the field of psychology and psychiatry as to whether the MnSOST-R is an actuarial instrument or a psychological test. Dr. Maskel explained that actuarial instruments are based on statistical studies and are not subject to rules applied by the psychological community to determine the accuracy and reliability of psychological tests and evaluations. Dr. Maskel further explained that proponents of the use of MnSOST-R in sexually violent person cases assert that the MnSOST-R is an actuarial instrument and not a psychological test. Dr. Maskel did not opine whether she believed the MnSOST-R was an actuarial instrument or a psychological test.
Dr. Maskel further testified that, although the MnSOST-R is supposed to be an objective test, there is a fair amount of subjectivity in scoring. In Dr. Maskel's experience, when multiple examiners have applied the instrument to the same individual, each examiner has arrived at a different score. Dr. Maskel also noted that, at a seminar she attended, the authors of the MnSOST-R themselves disagreed how to score certain factors. Dr. Maskel stated that the MnSOST-R has not been published in a peer-review journal and that the author has not released the raw data so that other researchers could replicate the study. Dr. Maskel stated that the MnSOST-R was based on a sample of 256 people in Minnesota and opined that, with such a small sample, idiosyncratic differences could produce large error rates. Dr. Maskel indicated that vigorous controversy exists in the psychological field over the use of the study and that it has not been accepted as "settled science." In Dr. Maskel's opinion, the MnSOST-R is not an adequate tool to predict sexual offender recidivism.
Dr. Maskel next testified concerning the actuarial instruments known as the RRASOR and Static-99. Dr. Maskel indicated that the RRASOR had been completely integrated into the Static-99 and that the author of the RRASOR had advised that the RRASOR no longer be used. In administering the Static-99, the examiner reviews the sexual offender's background considering 10 factors, including the age of the offender, the number of prior convictions, and whether any of the offender's victims were outside the family. These factors are considered "static" factors, as they are historical data that remain fixed. Based on the presence or absence of these factors, the examiner is able to compute a score. Using this score, the examiner looks to a corresponding statistical table to determine the likelihood that the individual will reoffend. The Static-99 was created based upon a study of a population from Canada, England, and Wales. In this case, Dr. Jonas applied both the RRASOR and Static-99 instruments to respondent. Using the RRASOR, Dr. Jonas scored respondent a 3, which indicated that there was a 37% probability that respondent would reoffend within 10 years. Using the Static-99, Dr. Jonas scored respondent a 7, which indicated that there was a 52% probability that respondent would reoffend within 15 years.
Dr. Maskel testified that she had the opportunity to speak with the author of the Static-99 at a seminar she attended in Chicago. At the seminar, the author indicated that the Static-99 was not a final work product and that he was anticipating adding some dynamic factors to the instrument. Dr. Maskel indicated that the RRASOR had never been published in a peer-review journal and that the Static-99 had been the subject of only one article. Dr. Maskel testified that there had been problems administering the RRASOR and Static-99 and that different examiners were reaching different results after evaluating the same individual.
Dr. Maskel opined that the MnSOST-R, RRASOR, and Static-99 instruments had not been accepted by the psychological or psychiatric community, but were instead "young pioneering efforts of novel science." Dr. Maskel testified that, absent replication of these studies in more diverse populations, these studies could not be considered "settled science." However, she acknowledged that the methods used by psychologists and psychiatrists in the field vary greatly and that some evaluators utilize actuarial instruments. Dr. Maskel explained:
"Some evaluators would use a pure actuarial or mechanical method. On top of that, some evaluators espouse what would be called a clinically adjusted actuarial method, and that is that you take the actuarial instruments and you make adjustments from clinical opinion so that you can change up or down your assessment from the actuarial instruments.
There are some evaluators and research psychologists who think that the pure actuarial method is preferred. There are some that believe the clinically adjusted method is preferred. The pure actuarialists would criticize the individuals who want to clinically adjust it by saying that there are problems with clinical opinions and so you dilute the actuarial instruments by offering clinical opinion. There's a lot of controversy."
On cross-examination, Dr. Maskel acknowledged that psychologists and psychiatrists are utilizing the MnSOST-R, RRASOR, and Static-99 instruments to make predictions of sexual violence. Dr. Maskel also acknowledged that the MnSOST-R and Static-99 are two of the best instruments designed to predict sexual offender recidivism. Dr. Maskel disputed that the debate over these instruments was not whether to use them but how much weight to give them. Dr. Maskel stated that there was vigorous controversy about whether the MnSOST-R, RRASOR, and Static-99 should be used at all. Dr. Maskel admitted that ...