Appeal from the Circuit Court of Boone County. No. 99-MR-23. Honorable J. Todd Kennedy, Judge, Presiding.
The opinion of the court was delivered by: Justice Byrne
The trial court found respondent, Alan Field, to be a sexually violent person pursuant to the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 2000)) and ordered him committed to a Department of Human Services (DHS) treatment facility indefinitely. Before the trial, the court granted respondent a hearing under Frye v. United States, 293 F. 1013 (D.C. Cir.1923), to determine the admissibility of certain actuarial instruments the State's experts used to predict the likelihood that respondent would reoffend. The court found the instruments admissible and permitted the experts to testify to their results. On appeal, respondent contends that (1) the trial court abused its discretion in denying his motion to exclude the evidence under Frye and (2) trial counsel was ineffective for failing to present evidence at the hearing to show that the instruments were unreliable and experimental. We affirm, concluding that the trial court committed harmless error in admitting the evidence of the actuarial instruments at trial.
Respondent pleaded guilty to aggravated criminal sexual abuse and aggravated criminal sexual assault, and the trial court imposed concurrent five- and eight-year prison terms. On July 22, 1999, three 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 suffered from the following mental disorders: (1) pedophilia, sexually attracted to females, nonexclusive type and (2) 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. The State supplemented the petition with a mental health evaluation prepared by Dr. Marc Levinson, a clinical psychologist.
The trial court appointed the Boone County public defender's office as respondent's counsel and Dr. Donald Pearson as respondent's clinical expert. On January 19, 2001, respondent moved to bar expert testimony regarding the results of certain actuarial instruments utilized to predict the likelihood that respondent would reoffend. Respondent challenged the Hanson-Bussiere meta- analysis, the Rapid Risk Assessment of Sexual Offense Recidivism (RRASOR), the Static-99, and the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R). 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 set forth in Frye.
The trial court conducted a Frye hearing on January 25, 2001. Only one witness testified: Dr. Levinson, the State's expert who prepared the evaluation on which the petition was based. Dr. Pearson, respondent's expert, and Dr. Heaton, another State expert, were present, but neither testified. We need not discuss the reliability of the MnSOST-R results because they were not introduced at the subsequent hearing on the petition.
Dr. Levinson testified that meta-analysis refers to an actuarial instrument developed by Drs. Hanson and Bussiere. The instrument became available in 1996. In 1998, it was published in a peer review journal, the Journal of Consulting and Clinical Psychology. Levinson opined that the meta-analysis is generally accepted in the field of assessing the risk of sex offender recidivism. Levinson used the instrument as part of respondent's evaluation on May 27, 1999.
The meta-analysis is a table of 22 factors that statistically correlate with sexual offense recidivism. The correlations are based on a survey of 61 studies completed from 1943 to 1995, which involved approximately 29,000 sexual offenders in several countries. According to Levinson, each of the 22 factors had been shown to be statistically significant in at least three of the studies. Levinson acknowledged on cross-examination that all assessment instruments are susceptible to reporting false positives and that the instruments are likely to be revised and improved over time.
Dr. Levinson also used the RRASOR to evaluate respondent. The instrument became available in 1997 and was devised by the same Dr. Hanson who published the meta-analysis with Dr. Bussiere. The RRASOR is a list of 4 of the 22 meta-analysis factors that Dr. Hanson designated as easily identifiable and reliable risk predictors. The RRASOR factors are (1) the number of prior charges or convictions of sexual offenses; (2) the offender's age; (3) whether the sexual offense included male victims; and (4) whether the offender has ever been married. The RRASOR was standardized with a sample of 500 offenders and then cross-validated with another sample to determine whether the results were replicable and reliable. Dr. Levinson believed that the test was considered reliable in the scientific community. He also stated that the RRASOR is widely used by professionals who evaluate recidivism risk in sex offenders.
On cross-examination, respondent's counsel referred Dr. Levinson to a 1997 book entitled "Manual for Sexual Violence Risk 20, Guidelines for Assessing Risk of Sexual Violence." Dr. Levinson acknowledged that the book stated that there was no evidence that the RRASOR has "predictive validity with respect to sexual violence."
Dr. Levinson testified that the Static-99 is another actuarial instrument that he used to evaluate respondent on May 27, 1999. The Static-99 was developed by Drs. Hanson and Thornton, and it became available in 1999. It combines the RRASOR factors with a scale that Dr. Thornton developed in England. The authors cross-validated the Static-99 scores with an independent data sample to show that the predictions were reliable across different samples. Dr. Levinson believed that the Static-99 slightly improved upon the RRASOR as to the correlation between the scores and recidivism. He opined that the Static-99 is generally accepted in the community of professionals who evaluate sex offenders for risk of recidivism.
The trial court found that the instruments were admissible under Frye, concluding that each is generally accepted in the psychological community that deals with sex offenders. The court then heard the petition to declare respondent sexually violent.
Dr. Levinson testified that he reviewed respondent's master file before the evaluation. Respondent told Dr. Levinson that he understood the purpose of the interview and knew that he could decline to participate. Dr. Levinson based his evaluation on the Hare Psychopathy Checklist-Revised. Dr. Levinson learned that respondent had grown up in the Rockford area, attended public schools, and graduated from high school after struggling academically. As an ...