No. 3--03--0357

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

PRESIDING JUSTICE HOLDRIDGE delivered the Opinion of the court:

Pursuant to the Illinois Sexually Violent Persons Act (725 ILCS 207/1 et seq. (West 2000)), the State filed a petition alleging that the respondent, Richard Hauge, was a sexually violent person. Respondent filed a pretrial motion to preclude any evidence at hearing based upon certain actuarial instruments purporting to predict the likelihood of a sexual offender re-offending. A hearing was held under Frye v. United States, 293 F.1013 (D.C. Cir. 1923).

Following the hearing, the court denied the motion to exclude evidence, finding that the instruments in question were generally accepted in the relevant scientific community and were, therefore, admissible into evidence under the Frye test. Subsequently, the respondent filed a motion to reconsider, seeking the court's review in light of the recent holding by the Second District in People v. Taylor, 335 Ill. App. 3d 965 (2002), which held that the actuarial instruments in question did not meet the requisite standards for admissibility under Frye.

As part of the record before the trial court in the instant matter, the transcripts of the Frye hearing in Taylor were presented to the court herein below. The circuit court denied the motion to reconsider, but then certified the question of admissibility of the evidence for interlocutory consideration pursuant to Supreme Court Rule 308 ( Ill. 2d R. 308).

The court certified the following question for our review: Should the following risk assessment tools: the Minnesota Sex Offenders Screening Tool Revised (MnSOST-R); the Rapid Risk Assessment for Sex Offender Recidivism (RRASOR); the Static-99; the Violent Risk Appraisal Guide (VRAG); the Sex Offender Risk Appraisal Guide (SORAG); the Violent Risk Assessment Guide (VRAG); and the personality test, Hare Psychopathy Check List (HPCLR), be admissible as meeting the appropriate standard for scientific testimony in Illinois.

In fact, the certified question contains two separate questions: (1) are the identified risk assessment tools admissible? And (2) do those test "meet the appropriate standard for scientific testimony? For the following reasons, we answer the first question "yes." We answer the second question "no," but only because we hold that such instruments do not constitute a special scientific principal, method or test to which the Frye test applies. See, People v. Erbe, 344 Ill. App. 3d 350 (2003).

On appeal, the respondent contends that the actuarial instruments at issue are not generally accepted in the scientific community and do not meet the requirements for general acceptance under Frye.

In determining whether an expert is qualified to render an opinion based upon novel scientific evidence, Illinois courts follow the Frye test. Also known as the "general acceptance test," the Frye test provides that scientific evidence is admissible at trial only if the methodology or scientific principle upon which the test results are based is "sufficiently established to have gained general acceptance in the particular field in which it belongs." Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 77, 767 N.E.2d 314, 324 (2002). The proponent of the evidence bears the burden of demonstrating that the scientific theory relied upon by the expert has gained general acceptance in the scientific field. Donaldson, 199 Ill. 2d at 77, 767 N.E.2d at 324. A reviewing court will review the trial court's admission of expert testimony on an abuse of discretion standard. People v. Eyler, 133 Ill. 2d 173, 549 N.E.2d 268 (1989).

We note that this issue has been addressed by different panels of the Illinois Appellate Court, with differing results. As previously mentioned, the Second District recently reviewed the issue in People v. Taylor, 355 Ill. App. 3d 965, 977 (2002). In Taylor, the jury found the respondent to be a sexually violent person pursuant to the Act (725 ILCS 207/1 et seq. (West 2000)) after the trial court denied the respondent's motion in limine seeking to bar expert testimony regarding the results of actuarial instruments used by the expert to predict the likelihood that the respondent would re-offend. On appeal, the court held that psychological or psychiatric testimony of an expert predicated upon actuarial instruments is subject to the requirements of Frye.

A panel of this district in People v. Hargett, 338 Ill. App. 3d 669 (2003), agreed with the general proposition in Taylor that actuarial instruments, such as those at issue in the instant matter, are subject to the Frye test for general acceptance.

In contrast, the Fourth District, in People v. Erbe, held that actuarial instruments, such as those at issue herein, are not scientific evidence subject to Frye, that the actuarial instruments are not novel, and that the use of these instruments is generally accepted in the relevant field. Erbe, 344 Ill. App. 3d at 370. As noted by the Erbe court, these actuarial instruments merely augment the expert opinion. "The actuarial instruments merely help the professional draw inferences from historical data or the collective experience of other professionals who have assessed sex offenders for risk of re-offending." Erbe, 344 Ill. App. 3d at 371. As such, the Erbe court further noted, "[i]n this regard, the instruments are akin to actuarial tables for life expectancy admitted as evidence to a jury for the determination of the gross amount awarded for future pain and suffering or used by an economic expert to determine the cash value of a pension. Such instruments simply do not constitute a special scientific principal, method, or test to which Frye applies." Erbe, 344 Ill. App. 3d at 365.

After reviewing the competing analysis of Taylor and Erbe, we find the analysis utilized by the Erbe court to be more convincing. We also note that other jurisdictions have similarly held that an expert's use of these actuarial instruments in reaching an opinion as to likelihood of re-offending does not implicate Frye. See, Barefoot v. Estelle, 463 U.S. 880 (1983); People v. Ward, 71 Cal. App. 4th 368, 373, 83 Cal. Reptr. 2d 828 (1999); Westerheide v. State, 767 So. 2d 637, 657 (Fla. 2000); State v. Romley, 201 Ariz. 321, 35 P.2d 82, 89 (Az. App. 2001); In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996); In re Detention of Holtz, 653 N.W.2d 613, 619 (Iowa App. 2002); In re Commitment of R.S., 339 N.J. Super. 507, 773 A.2d 72, 96 (N.J. App. 2001). . We are convinced, after reviewing these cases, that it is the opinion of the expert, not his or her methodology that is being offered as evidence to the jury. Thus, the methodology is useful to the trier of fact, and is likewise subject to attack, but only as support for the expert's opinion. In the final analysis, cross-examination and rebuttal witnesses are the proper method to attack the expert's reliance upon the instruments in question in the formation of his or her opinion. Erbe, 344 Ill. App. 3d at 372.

For the foregoing reasons, we answer the certified question as previously described. The actuarial instruments at issue are admissible, but are not subject to the requirements of Frye.

Certified question answered; cause remanded.

SCHMIDT and BARRY, JJ., concur.