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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 (725ILCS 207/1 et seq. (West 2000)), the State filed a petitionalleging that the respondent, Richard Hauge, was a sexuallyviolent person. Respondent filed a pretrial motion to precludeany evidence at hearing based upon certain actuarial instrumentspurporting to predict the likelihood of a sexual offender re-offending. A hearing was held under Frye v. United States, 293F.1013 (D.C. Cir. 1923).

Following the hearing, the court denied the motion toexclude evidence, finding that the instruments in question weregenerally 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 theSecond District in People v. Taylor, 335 Ill. App. 3d 965 (2002),which held that the actuarial instruments in question did notmeet the requisite standards for admissibility under Frye.

As part of the record before the trial court in the instantmatter, the transcripts of the Frye hearing in Taylor werepresented to the court herein below. The circuit court deniedthe motion to reconsider, but then certified the question ofadmissibility of the evidence for interlocutory considerationpursuant 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 SexOffenders Screening Tool Revised (MnSOST-R); the Rapid RiskAssessment for Sex Offender Recidivism (RRASOR); the Static-99;the Violent Risk Appraisal Guide (VRAG); the Sex Offender RiskAppraisal Guide (SORAG); the Violent Risk Assessment Guide(VRAG); and the personality test, Hare Psychopathy Check List(HPCLR), be admissible as meeting the appropriate standard forscientific testimony in Illinois.

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

On appeal, the respondent contends that the actuarialinstruments at issue are not generally accepted in the scientificcommunity and do not meet the requirements for general acceptanceunder Frye.

In determining whether an expert is qualified to render anopinion based upon novel scientific evidence, Illinois courtsfollow the Frye test. Also known as the "general acceptancetest," the Frye test provides that scientific evidence isadmissible at trial only if the methodology or scientificprinciple upon which the test results are based is "sufficientlyestablished to have gained general acceptance in the particularfield in which it belongs." Donaldson v. Central Illinois PublicService Co., 199 Ill. 2d 63, 77, 767 N.E.2d 314, 324 (2002). Theproponent of the evidence bears the burden of demonstrating thatthe scientific theory relied upon by the expert has gainedgeneral acceptance in the scientific field. Donaldson, 199 Ill.2d at 77, 767 N.E.2d at 324. A reviewing court will review thetrial court's admission of expert testimony on an abuse ofdiscretion standard. People v. Eyler, 133 Ill. 2d 173, 549N.E.2d 268 (1989).

We note that this issue has been addressed by differentpanels of the Illinois Appellate Court, with differing results. As previously mentioned, the Second District recently reviewedthe issue in People v. Taylor, 355 Ill. App. 3d 965, 977 (2002). In Taylor, the jury found the respondent to be a sexuallyviolent person pursuant to the Act (725 ILCS 207/1 et seq. (West2000)) after the trial court denied the respondent's motion inlimine seeking to bar expert testimony regarding the results ofactuarial instruments used by the expert to predict thelikelihood that the respondent would re-offend. On appeal, thecourt held that psychological or psychiatric testimony of anexpert predicated upon actuarial instruments is subject to therequirements of Frye.

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

In contrast, the Fourth District, in People v. Erbe, heldthat actuarial instruments, such as those at issue herein, arenot scientific evidence subject to Frye, that the actuarialinstruments are not novel, and that the use of these instrumentsis generally accepted in the relevant field. Erbe, 344 Ill. App.3d at 370. As noted by the Erbe court, these actuarialinstruments merely augment the expert opinion. "The actuarialinstruments merely help the professional draw inferences fromhistorical data or the collective experience of otherprofessionals who have assessed sex offenders for risk of re-offending." Erbe, 344 Ill. App. 3d at 371. As such, the Erbecourt further noted, "[i]n this regard, the instruments are akinto actuarial tables for life expectancy admitted as evidence to ajury for the determination of the gross amount awarded for futurepain and suffering or used by an economic expert to determine thecash value of a pension. Such instruments simply do notconstitute a special scientific principal, method, or test towhich 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 moreconvincing. We also note that other jurisdictions have similarlyheld that an expert's use of these actuarial instruments inreaching 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 Detentionof Holtz, 653 N.W.2d 613, 619 (Iowa App. 2002); In re Commitmentof 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 isthe opinion of the expert, not his or her methodology that isbeing offered as evidence to the jury. Thus, the methodology isuseful to the trier of fact, and is likewise subject to attack,but only as support for the expert's opinion. In the finalanalysis, cross-examination and rebuttal witnesses are the propermethod to attack the expert's reliance upon the instruments inquestion in the formation of his or her opinion. Erbe, 344 Ill.App. 3d at 372.

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

Certified question answered; cause remanded.

SCHMIDT and BARRY, JJ., concur.