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In the Matter of the Care and Treatment of

January 11, 2013

IN THE MATTER OF THE CARE AND TREATMENT OF DOUGLAS GIRARD. IN THE MATTER OF THE CARE AND TREATMENT OF EUGENE MALLARD.


Appeal from Clay District Court; MERYL D. WILSON, judge.

SYLLABUS BY THE COURT

SYLLABUS BY THE COURT 1. Whether a district court failed to correctly apply the standards of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), when ruling on an evidentiary issue is reviewed de novo. 2. The Frye test requires that before expert scientific opinion may be received in evidence, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular scientific field. 3. The Frye test applies to actuarial risk assessments used by expert witnesses to help form their opinions of sex offenders' risk of recidivism.

The opinion of the court was delivered by: Nuss, C.J.

Review of the judgment of the Court of Appeals in 45 Kan. App. 2d 1109, 257 P.3d 1256 (2011).

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

The opinion of the court was delivered by

If expert opinion testimony based on scientific methods or procedures is offered as evidence in Kansas state courts, the offering party must satisfy the Frye test. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). That test requires a "showing that the basis of a scientific opinion is generally accepted as reliable within the expert's particular scientific field." State v. Shadden, 290 Kan. 803, 819, 235 P.3d 436 (2010).

In these proceedings to declare Douglas Girard and Eugene Mallard sexually violent predators, they ask us to instead apply the Daubert test to the actuarial risk assessments used by the State's expert witnesses in helping to predict the odds of their reoffending. See Daubert v. Merrell Dow Pharmaceuticals, Inc.,509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). The Daubert test essentially makes Frye'stest of "general acceptance" simply one factor to be considered in the admissibility calculus. 509 U.S. at 594.

In both their cases, the district court essentially ruled that Frye applied to the actuarial risk assessments. It admitted the scientific opinion testimony which was partially based on these statistical calculations of risk. The Court of Appeals affirmed, with a majority holding that neither Frye nor Daubert applied because the actuarial assessments were not scientific. In re Girard, 45 Kan. App. 2d 1109, 1111, 257 P.3d 1256 (2011). We granted the defendants' consolidated petitions for review and have jurisdiction under K.S.A. 20-3018(b).

We hold Frye applies and the actuarial risk assessments survive Frye'sscrutiny. The district court therefore is affirmed.

FACTS

Girard and Mallard were both convicted of aggravated indecent liberties with a child. The State filed petitions for their continued confinement as sexually violent predators under K.S.A. 59-29a01 et seq. To obtain this designation the State was required to prove, among other things, that the men were likely to commit repeat acts of sexual violence because of a mental abnormality or personality disorder. See K.S.A. 59-29a02(a). Both men filed motions in limine to exclude the State's expert witnesses' testimony predicting the odds of Girard and Mallard reoffending. The motions were heard at their respective commitment hearings.

The State's psychologists evaluated both men and opined they met the criteria to be considered sexually violent predators.Their evaluations relied in part on two actuarial risk assessment instruments, the STATIC-99 and the MnSOST-R. The evaluators used these instruments to determine the rate, expressed as a percentage, at which offenders with characteristics similar to Girard and Mallard had reoffended. The assessments themselves do not expressly provide a recidivism estimate for the particular offender being evaluated. According to the State's expert, John Reid, the instrument-based assessments are simply among the factors considered by the evaluators in their sexual predator determinations for the defendants. Other factors include treatment reports, mental health and criminal records, and personal interviews.

In both cases, Reid testified that the actuarial risk assessment instruments, and their use, are generally accepted as reliable within the psychological community. In Girard's hearing, Reid testified that according to a clinical research study, 95.1% of evaluators reported using such instruments "most of the time" or "always." According to ...


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