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Docket No. 97026-Agenda 7-September 2004.

In re COMMITMENT OF STEPHEN E. SIMONS (The People of
the State of Illinois, Appellant, v. Stephen E. Simons, Appellee).

Opinion filed December 16, 2004.

JUSTICE THOMAS delivered the opinion of the court:

Following a bench trial in the circuit court of Madison County,respondent, Stephen Simons, was found to be a sexually violentperson under the Sexually Violent Persons Commitment Act (the Act)(725 ILCS 207/1 et seq. (West 2002)) and committed to the custodyof the Department of Health and Human Services for control, custody,and treatment. Respondent appealed, arguing that the trial court erredin admitting certain expert testimony without first conducting a Fryehearing. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Theappellate court agreed, reversed the trial court's judgment, andremanded the cause for further proceedings. No. 5-02-0579(unpublished under Supreme Court Rule 23). We allowed the State'spetition for leave to appeal. 177 Ill. 2d R. 315(a).

BACKGROUND

On February 20, 2001, the State filed a petition to haverespondent committed to the Department of Health and HumanServices as a sexually violent person. The petition alleged thatrespondent has a history of committing sexually violent offenses,including a 1988 conviction for the aggravated criminal sexual abuseof a child under the age of 13 and a 1992 conviction for theaggravated criminal sexual assault of a child under the age of 13. In1996, respondent pleaded guilty to the criminal sexual assault of his13-year-old stepdaughter and was sentenced to 10 years in prison. Inexchange for that guilty plea, the State agreed to dismiss twoadditional charges of aggravated criminal sexual assault that werepending against respondent, one involving a 13-year-old girl and theother involving a 14-year-old girl. The petition further alleged thatrespondent was scheduled for release from prison on February 21,2001, and that he suffers from numerous mental disorders, includingparaphilia and antisocial personality disorder, that make it substantiallyprobable that he will again engage in acts of sexual violence.

A bench trial commenced, and respondent filed a motion inlimine as to the State's two expert witnesses, Dr. Jacqueline N. Buckand Dr. Paul J. Heaton. Dr. Buck and Dr. Heaton are clinicalpsychologists who evaluated respondent and were prepared to testifythat respondent is a sexually violent person as defined by the Act. Insupport of his motion, respondent argued that, in preparing theiropinions, Dr. Buck and Dr. Heaton relied upon certain actuarial riskassessment instruments, including the Minnesota Sex OffenderScreening Tool-Revised (MnSOST-R), the Static-99, the ViolentRisk Assessment Guide (VRAG), and the Sex Offender RiskAssessment Guide (SORAG). According to respondent, actuarial riskassessment is a novel scientific methodology that has yet to gaingeneral acceptance in the psychological and psychiatric communities.Accordingly, respondent argued, any expert testimony based uponactuarial risk assessment must be excluded under Frye. In response,the State argued that (1) actuarial principles are not the least bit noveland therefore are not subject to Frye; and (2) even if the particularactuarial instruments at issue are novel, they have gained generalacceptance in the relevant psychological and psychiatric communities.The trial court agreed with the State, denied respondent's motion, andallowed Dr. Buck and Dr. Heaton to testify.

Dr. Buck testified that she is a licensed clinical psychologistemployed by the special evaluation unit of the Illinois Department ofCorrections (Department). In this capacity, Dr. Buck was assigned toevaluate respondent and determine whether he would be eligible forcivil commitment under the Act following his release from prison. Dr.Buck's evaluation began with a review of the master file for each ofrespondent's several convictions. The master file includes all of therecords relating to the particular conviction, including police reports,criminal court records, Department records, and any psychological orpsychiatric evaluations. After reviewing the master files, Dr. Buck metwith the three other psychologists employed by the Department'sspecial evaluations unit to discuss respondent's case. All fourpsychologists agreed that respondent appeared to fit the criteria forcivil commitment and that a face-to-face interview should beconducted. Dr. Buck interviewed respondent for 90 minutes at the BigMuddy River Correctional Center. Based upon both the interview andher review of respondent's files, Dr. Buck concluded that respondentsuffers from paraphilia, alcohol abuse in a controlled environment, andantisocial personality disorder with narcissistic tendencies. Accordingto Dr. Buck, these mental disorders "affect a person's emotional andvolitional capacity and predispose that person to engage in acts ofsexual violence."

Dr. Buck's evaluation also included an assessment ofrespondent's probability of reoffending. She first used a personalitytest called the Hare Psychopathy Checklist-Revised. According to Dr.Buck, respondent scored a 32 on this test, placing him in a categoryof persons who are two to four times more likely to reoffend with actsof violence.

Dr. Buck then used a number of actuarial risk assessmentinstruments, including the MnSOST-R, the Static-99, the VRAG, theSORAG, and the Hanson and Bussiere meta-analysis. TheMnSOST-R was developed using a group of 256 sex offenders whowere followed for six years after their release from the MinnesotaDepartment of Corrections. Dr. Buck gave respondent a score 13 onthe MnSOST-R, which places him in the category of offenders havingan 88% chance of reoffending within six years. The Static-99 is basedupon a study of thousands of sex offenders from England, Canada,and the United States. According to Dr. Buck, the creators of theStatic-99 regard a score of six or higher as being "a very high risk."Dr. Buck gave respondent a score of seven, which places him "in thetop twelve percent of persons who were scored on this tool and whosexually reoffended." The VRAG is an instrument designed to predictviolent reoffenders, as opposed to sexual reoffenders. On the VRAG,Dr. Buck gave respondent a score of 20, which places him in thecategory of offenders having a 55% chance of reoffending within 7years and a 64% chance of reoffending within 10 years. On theSORAG, which examines the risk of sexual recidivism, Dr. Buck gaverespondent a score of 30, "which placed him at the 98th percentile interms of risk to reoffend." The Hanson and Bussiere meta-analysiswas derived from a review of 51 published studies, which collectivelycovered approximately 28,000 convicted and released sex offenders.The study evaluated more than 100 variables and identified those thatare statistically significant in terms of distinguishing offenders who arelikely to sexually reoffend from offenders who are unlikely to sexuallyreoffend. According to Dr. Buck, respondent "has a number of riskfactors that stem from the study."

Dr. Buck concluded her testimony with the opinion that, ifrespondent is released to the community, it is substantially probablethat he will reoffend with additional acts of sexual violence.

Dr. Heaton testified that he is a clinical psychologist employed byAffiliated Psychologists, Ltd., in Chicago, which has contracted withthe Illinois Department of Human Services to provide psychologicalassessments in connection with the Act. Dr. Heaton begins eachassessment with a review of all available documents, including themaster file, medical records, school records, and psychologicalevaluations. He then administers a battery of psychological tests,which is followed by a comprehensive clinical interview. Finally, aftercompiling all of the collected information, as well as any availableactuarial data, Dr. Heaton writes his evaluation.

Following his interview with and testing of respondent, Dr.Heaton diagnosed respondent with paraphilia, alcohol abuse, andantisocial personality disorder, all of which affect a person's emotionaland volitional capacity and predispose that person to commit acts ofsexual violence. Dr. Heaton then employed several actuarialinstruments to assess respondent's probability of reoffending. TheHanson and Bussiere meta-analysis identified several risk factors thatreinforced his clinical impressions. On the Static-99, Dr. Heatontestified that, although Dr. Buck scored respondent "a little bit higher"than he did, Dr. Heaton's score likewise placed respondent "in thecategory of individuals who were found to have a high risk ofreoffense." On the MnSOST-R, Dr. Heaton gave respondent a scoreof 13, which placed respondent "in the range representing a high riskfor reoffense." Based upon both his clinical evaluation of respondentand the actuarial data, Dr. Heaton concluded that respondent suffersfrom mental disorders that predispose him to act in sexually violentways and that he therefore meets the criteria for commitment underthe Act.

At this point, the State rested, and respondent declined to put onany evidence. The trial court found respondent to be a sexually violentperson under the Act and committed him to the Department of Healthand Human Services for care and treatment in a secured facility.

Respondent appealed, in part arguing that the trial court erred inadmitting the testimony of Dr. Buck and Dr. Heaton without firstconducting a Frye hearing. Relying upon the appellate court's decisionin People v. Taylor, 335 Ill. App. 3d 965 (2002), the appellate courtagreed with respondent, reversed the trial court's judgment, andremanded the cause for further proceedings. No. 5-02-0579(unpublished under Supreme Court Rule 23). We allowed the State'spetition for leave to appeal. 177 Ill. 2d R. 315(a).

DISCUSSION

Although not raised by the parties, we wish to begin ourdiscussion by clarifying the appropriate standard of review for a trialcourt's Frye rulings.

In Illinois, the admission of expert testimony is governed by thestandard first expressed in Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63, 76-77 (2002). Commonly called the "general acceptance" test,the Frye standard dictates that scientific evidence is admissible at trialonly if the methodology or scientific principle upon which the opinionis based is "sufficiently established to have gained general acceptancein the particular field in which it belongs." Frye, 293 F. at 1014. Inthis context, "general acceptance" does not mean universalacceptance, and it does not require that the methodology in questionbe accepted by unanimity, consensus, or even a majority of experts.Donaldson, 199 Ill. 2d at 78. Instead, it is sufficient that theunderlying method used to generate an expert's opinion is reasonablyrelied upon by experts in the relevant field. Donaldson, 199 Ill. 2d at77. Significantly, the Frye test applies only to "new" or "novel"scientific methodologies. Donaldson, 199 Ill. 2d at 78-79. Generallyspeaking, a scientific methodology is considered "new" or "novel" ifit is " 'original or striking' " or "does 'not resembl[e] somethingformerly known or used.' " Donaldson, 199 Ill. 2d at 79, quotingWebster's Third New International Dictionary 1546 (1993).

Historically, this court has applied an across-the-board abuse ofdiscretion standard when reviewing Frye rulings. See, e.g., Donaldsonv. Central Illinois Public Service Co., 199 Ill. 2d 63, 76 (2002);People v. Miller, 173 Ill. 2d 167, 187 (1996). After carefulconsideration, we believe that the better approach is that advocated byChief Justice McMorrow in her Miller special concurrence, namely,that reviewing courts may rely upon materials that were not part ofthe trial record to determine whether a Frye hearing is required and,if so, whether the scientific technique at issue is generally accepted inthe relevant scientific community. See Miller, 173 Ill. 2d at 204(McMorrow, J., concurring); see also Donaldson, 199 Ill. 2d at 104-07 (McMorrow, J., concurring, joined by Garman, J.). Accordingly,we hereby adopt a dual standard of review with respect to the trialcourt's admission of expert scientific testimony. The decision as towhether an expert scientific witness is qualified to testify in a subjectarea, and whether the proffered testimony is relevant in a particularcase, remains in the sound discretion of the trial court. The trialcourt's Frye analysis, however, is now subject to de novo review. Inconducting such de novo review, the reviewing court may considernot only the trial court record but also, where appropriate, sourcesoutside the record, including legal and scientific articles, as well ascourt opinions from other jurisdictions. See Miller, 173 Ill. 2d at 203(McMorrow, J., concurring).

As Chief Justice McMorrow correctly explained in Miller,allowing for de novo review in this context makes sense for severalreasons, foremost of which "is the fact that the general acceptanceissue transcends any particular dispute." See Miller, 173 Ill. 2d at 204(McMorrow, J., concurring). Indeed, " '[t]he question of generalacceptance of a scientific technique, while referring to only one of thecriteria for admissibility of expert testimony, in another sensetranscends that particular inquiry, for, in attempting to establish suchgeneral acceptance for purposes of the case at hand, the proponentwill also be asking the court to establish the law of the jurisdiction forfuture cases.' " Miller, 173 Ill. 2d at 204 (McMorrow, J., concurring),quoting Jones v. United States, 548 A.2d 35, 40 (D.C. App. 1988).Application of less than a de novo standard of review to an issue thattranscends individual cases invariably leads to inconsistent treatmentof similarly situated claims. See Miller, 173 Ill. 2d at 204-05(McMorrow, J., concurring). Because "[t]he general acceptance of ascientific technique does not change from one courtroom to another,"the legal assessment of that general acceptance should not changefrom court to court either. Miller, 173 Ill. 2d at 205 (McMorrow, J.,concurring).

In addition, Chief Justice McMorrow correctly noted that a denovo standard that permits reliance on materials outside the trialrecord is not, in this context, problematic. See Miller, 173 Ill. 2d at205 (McMorrow, J., concurring). Under the Frye standard, the trialcourt is not asked to determine the validity of a particular scientifictechnique. Rather, the court's responsibility is to determine theexistence, or nonexistence, of general consensus in the relevantscientific community regarding the reliability of that technique." 'Accordingly, because the focus is primarily on counting scientists'votes, rather than on verifying the soundness of a scientific conclusion,there will not be the concerns about witness credibility and hearsaynormally associated with citations to empirical or scientific studieswhose authors cannot be observed or cross-examined.' " Miller, 173Ill. 2d at 205 (McMorrow, J., concurring), quoting Jones, 548 A.2dat 42.

Significantly, this court in both Donaldson and Miller implicitlyacknowledged the utility of the de novo standard in the Frye context,even when purporting to apply an abuse of discretion standard. Inboth of those cases, this court went outside the trial court record toassess the validity of the trial court's Frye ruling. In Miller, forexample, the court expressly relied upon numerous court decisionsand journal articles that had been published "[s]ince the time of thepretrial hearing." Miller, 173 Ill. 2d at 189. In Donaldson, the courthad to go outside the record to ascertain the very definition of thescientific principle at issue. Donaldson, 199 Ill. 2d at 82 n.2. Thus,today's decision to formally endorse a de novo standard for Fryerulings is not so much a departure from this court's existing analyticalframework as it is a recognition of the analytical framework underwhich this court has been operating for sometime, albeit under thewrong name.

Finally, we note that several other state supreme courts employa de novo standard when reviewing Frye rulings. See, e.g., State v.Tankersley, 191 Ariz. 359, 365, 956 P.2d 486, 492 (1998); Castillov. E.I. Du Pont De Nemours & Co., 854 So. 2d 1264, 1268 (Fla.2003); State v. Shively, 268 Kan. 573, 576, 999 P.2d 952, 955 (2000);Wilson v. State, 370 Md. 191, 201 n.5, 803 A.2d 1034, 1040 n.5(2002); State v. Bailey, 677 N.W.2d 380, 398 (Minn. 2004); State v.Harvey, 151 N.J. 117, 167, 699 A.2d 596, 619 (1997); State v. Gore,143 Wash. 2d 288, 304, 21 P.3d 262, 271 (2001).

Turning now to the case at hand, we are asked to decide whetheractuarial risk assessment, as utilized by Dr. Buck and Dr. Heaton, isadmissible under Frye. The appellate court is sharply divided on thisquestion. One view is represented by People v. Taylor, 335 Ill. App.3d 965 (2002). In Taylor, as in the present case, the trial court heldthat the actuarial instruments at issue, including the MnSOST-R andthe Static-99, were not scientific methodologies subject to Frye.Taylor, 335 Ill. App. 3d at 972. In reversing, the Second District ofthe appellate court first stated:

"Whether these tools are viewed as psychological tests oractuarial instruments, they certainly constitute a scientificmethodology for predicting sexual offender recidivism. Assuch a methodology has yet to be adopted in a courtproceeding in Illinois, the State was obligated to show thatthese instruments have gained acceptance in the relevantscientific community as required under Frye." Taylor, 335 Ill.App. 3d at 977.

The next question became whether the State had met its burden ofproving that actuarial risk assessment has gained general acceptancein the psychological and psychiatric communities. Taylor, 335 Ill.App. 3d at 977. The court held that it had not. Although the courtconceded that "many psychologists and psychiatrists utilize theseinstruments to predict whether a sexual offender is likely to reoffend,"the court remained convinced that "the instruments are still in theexperimental stages and that the validity of these instruments has notbeen established." Taylor, 335 Ill. App. 3d at 978. The court wasmost concerned about the absence of published peer-reviewed studiesconcerning the validity of these instruments, as such studies "areimportant steps in the acceptance of a new methodology by thepsychological community." Taylor, 335 Ill. App. 3d at 978.

The opposite view is represented by In re Detention of Erbe, 344Ill. App. 3d 350 (2003), in which the Fourth District held that (1)actuarial risk assessment is not a novel scientific method subject toFrye, and (2) even if it is, it meets the general acceptance test. InErbe, the court methodically examined each step of the Frye inquiry,concluding at each step that testimony based upon actuarial riskassessment is admissible. First, the court held that actuarialinstruments such as the MnSOST-R, the Static-99, and the VRAG"do not purport to involve a scientific principle, method, or test towhich Frye applies." Erbe, 344 Ill. App. 3d at 364. Rather, theseinstruments " 'are simply actuarial tables-methods of organizing andinterpreting a collection of historical data.' " Erbe, 344 Ill. App. 3d at364, quoting In re Commitment of R.S., 339 N.J. Super. 507, 540,773 A.2d 72, 92 (2001), aff'd, 173 N.J. 134, 801 A.2d 219 (2002).The court then explained that, even if actuarial risk assessment doesconstitute a scientific methodology, it still is not subject to Fryebecause actuarial science is not the least bit "new" or "novel." Erbe,344 Ill. App. 3d at 365. According to the court, "[o]ur society usesactuarial methods to predict human behavior all the time," particularlyin relation to liability insurance and economics. Erbe, 344 Ill. App. 3dat 366. Moreover, the court cited a study showing that, as early as1928, the State of Illinois was using actuarial data to predictrecidivism. Erbe, 344 Ill. App. 3d at 366, citing W. Grove & P.Meehl, Comparative Efficiency of Informal (Subjective,Impressionistic) and Formal (Mechanical, Algorithmic) PredictionProcedures: The Clinical-Statistical Controversy, 2 Psychol. Pub.Pol'y & L. 293, 293 (1996). Finally, the court held that, evenassuming that Frye applies, actuarial risk assessment is generallyaccepted by professionals who assess sex offenders for risk ofreoffending. Erbe, 344 Ill. App. 3d at 367. The court emphasized that,of the numerous appellate decisions nationwide addressing theadmissibility of actuarial instruments such as the MnSOST-R and theStatic-99, only Taylor found them inadmissible. Erbe, 344 Ill. App. 3dat 368-72.

After careful consideration, we emphatically agree with Erbe'sconclusion that, whether or not actuarial risk assessment is subject toFrye, there is no question that it is generally accepted by professionalswho assess sexually violent offenders and therefore is perfectlyadmissible in a court of law. As of this writing, experts in at least 19other states rely upon actuarial risk assessment in forming theiropinions on sex offenders' risks of recidivism. See State ex rel.Romley v. Fields, 201 Ariz. 321, 328, 35 P.3d 82, 89 (2001); Peoplev. Therrian, 113 Cal. App. 4th 609, 614-16, 6 Cal. Rptr. 3d 415, 419-20 (2003); Roeling v. State, 880 So. 2d 1234, 1238-40 (Fla. App.2004); In re Detention of Holtz, 653 N.W.2d 613, 619 (Iowa App.2002); In re Care & Treatment of Teer, No. 89,652, slip op. at 3-4(Kan. App. 2004) (unpublished order); Commonwealth v. Wright, No.032449A, slip op. at 1 (Mass. Super. 2004); In re Risk LevelDetermination of R.B.P., 640 N.W.2d 351, 353-56 (Minn. App.2002); Goddard v. State, No. 25779, slip op. at 5 (Mo. App. 2004);State v. Legg, 319 Mont. 362, 366, 84 P.3d 648, 651 (2004); Slanskyv. Nebraska State Patrol, 268 Neb. 360, 370-75, 685 N.W.2d 335,345-49 (2004); In re Commitment of R.S., 173 N.J. 134, 136-37, 801A.2d 219, 220-21 (2002); People v. Girup, 9 A.D.3d 913, 780N.Y.S.2d 698 (2004) (mem. op.); In re D.V.A., 676 N.W.2d 776,778-80 (N.D. 2004); State v. McKinnis, 153 Ohio App. 3d 654, 661-62, 795 N.E.2d 160, 165-66 (2003); State v. Gibson, 187 Or. App.207, 214, 66 P.3d 560, 564-65 (2003); In re Care & Treatment ofTucker, 353 S.C. 466, 469, 578 S.E.2d 719, 721 (2003); In reCommitment of Morales, 98 S.W.3d 288, 291 (Tex. Ct. App. 2003);In re Detention of Thorell, 149 Wash. 2d 724, 753-56, 72 P.2d 708,724-25 (2003); In re Commitment of Tainter, 259 Wis. 2d 387, 399,655 N.W.2d 538, 544 (2002).

Significantly, eight of these states have directly addressed theFrye question and concluded either that Frye is inapplicable toactuarial risk assessment or that actuarial risk assessment satisfies thegeneral acceptance standard. See Romley, 201 Ariz. at 328, 35 P.3dat 89 (Frye not applicable); Therrian, 113 Cal. App. 4th at 614-16, 6Cal. Rptr. 3d at 419-20 (Frye not applicable); Roeling, 880 So. 2d at1238-40 (general acceptance standard met); Holtz, 653 N.W.2d at 619(general acceptance test met); Goddard, slip op. at 5 (generalacceptance test met); R.S., 173 N.J. at 136-37, 801 A.2d at 220-21(general acceptance test met); Thorell, 149 Wash. 2d at 753-56, 72P.2d at 724-25 (general acceptance test met); Tainter, 259 Wis. 2d at399, 655 N.W.2d at 544 (general acceptance test met). It is alsoworth noting that actuarial risk assessment is not exclusively aninstrument of the State; experts for the offender rely upon it as well.See, e.g., People v. Calhoun, 118 Cal. App. 4th 519, 522-23, 13 Cal.Rptr. 3d 166, 168 (2004); In re Detention of Walker, 314 Ill. App. 3d282, 290 (2000) (according to respondent's expert, "the research isvery clear in stating that the most accurate predictions of the risk offuture offenses are those based upon actuarial assessments ofprobability"); Legg, 319 Mont. at 366, 84 P.3d at 651; State v.Purser, 153 Ohio App. 3d 144, 150-53, 791 N.E.2d 1053, 1057-59(2003); McKinnis, 153 Ohio App. 3d at 661-62, 795 N.E.2d at 165-66; Zimmer v. State, No. 05-03-01253-CR, slip op. at 2 (Tex. App.2004) (unpublished order).

We recognize, of course, that "relying exclusively upon priorjudicial decisions to establish general scientific acceptance can be a' "hollow ritual" ' if the underlying issue of scientific acceptance hasnot been adequately litigated." People v. Basler, 193 Ill. 2d 545, 554(2000) (McMorrow, J., dissenting), quoting People v. Kirk, 289 Ill.App. 3d 326, 333 (1997), quoting 1 J. Strong, McCormick onEvidence