Illinois Supreme Court Adopts De Novo Review for Frye Rulings and Upholds Admissibility of Risk Assessment Evidence for Sex Offenders

From scattered press reports, we learn that on December 16, 2004, the Illinois Supreme Court upheld the admissibility of actuarial risk assessment tools to estimate the probability that a sex offender will commit additional acts of sexual violence if released into the community. In proceedings under the Illinois Sexually Violent Persons Commitment Act, the state offered expert psychologists to testify to the respondent's dangerousness, based on instruments including the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R), the Static-99, the Violent Risk Assessment Guide (VRAG), the Sex Offender Risk Assessment Guide (SORAG), and the Hare Psychopathy Checklist-Revised. The respondent argued that the actuarial risk assessment methodology was novel, and that the trial court should have conducted a Frye hearing. The Illinois Supreme Court disagreed, concluding that the methodology enjoys general acceptance, and noting that courts in at least 19 states have upheld testimony based on similar methods.

Bad news for sex offenders, no doubt, but the story doesn't end there. The court also announced a change in the standard of appellate review for Frye rulings, from the previous "abuse of discretion" standard to de novo review. From the opinion:

Although not raised by the parties, we wish to begin our discussion by clarifying the appropriate standard of review for a trial court's Frye rulings.

In Illinois, the admission of expert testimony is governed by the standard 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 trial only if the methodology or scientific principle upon which the opinion is based is "sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye, 293 F. at 1014. In this context, "general acceptance" does not mean universal acceptance, and it does not require that the methodology in question be accepted by unanimity, consensus, or even a majority of experts. Donaldson, 199 Ill. 2d at 78. Instead, it is sufficient that the underlying method used to generate an expert's opinion is reasonably relied upon by experts in the relevant field. Donaldson, 199 Ill. 2d at 77. Significantly, the Frye test applies only to "new" or "novel" scientific methodologies. Donaldson, 199 Ill. 2d at 78-79. Generally speaking, a scientific methodology is considered "new" or "novel" if it is " 'original or striking' " or "does 'not resembl[e] something formerly known or used.' " Donaldson, 199 Ill. 2d at 79, quoting Webster's Third New International Dictionary 1546 (1993).

Historically, this court has applied an across-the-board abuse of discretion standard when reviewing Frye rulings. See, e.g., Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 76 (2002); People v. Miller, 173 Ill. 2d 167, 187 (1996). After careful consideration, we believe that the better approach is that advocated by Chief Justice McMorrow in her Miller special concurrence, namely, that reviewing courts may rely upon materials that were not part of the trial record to determine whether a Frye hearing is required and, if so, whether the scientific technique at issue is generally accepted in the 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 trial court's admission of expert scientific testimony. The decision as to whether an expert scientific witness is qualified to testify in a subject area, and whether the proffered testimony is relevant in a particular case, remains in the sound discretion of the trial court. The trial court's Frye analysis, however, is now subject to de novo review. In conducting such de novo review, the reviewing court may consider not only the trial court record but also, where appropriate, sources outside the record, including legal and scientific articles, as well as court 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 several reasons, foremost of which "is the fact that the general acceptance issue transcends any particular dispute." See Miller, 173 Ill. 2d at 204 (McMorrow, J., concurring). Indeed, " '[t]he question of general acceptance of a scientific technique, while referring to only one of the criteria for admissibility of expert testimony, in another sense transcends that particular inquiry, for, in attempting to establish such general acceptance for purposes of the case at hand, the proponent will also be asking the court to establish the law of the jurisdiction for future 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 that transcends individual cases invariably leads to inconsistent treatment of similarly situated claims. See Miller, 173 Ill. 2d at 204-05 (McMorrow, J., concurring). Because "[t]he general acceptance of a scientific technique does not change from one courtroom to another," the legal assessment of that general acceptance should not change from court to court either. Miller, 173 Ill. 2d at 205 (McMorrow, J., concurring).

In addition, Chief Justice McMorrow correctly noted that a de novo standard that permits reliance on materials outside the trial record is not, in this context, problematic. See Miller, 173 Ill. 2d at 205 (McMorrow, J., concurring). Under the Frye standard, the trial court is not asked to determine the validity of a particular scientific technique. Rather, the court's responsibility is to determine the existence, or nonexistence, of general consensus in the relevant scientific 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 hearsay normally associated with citations to empirical or scientific studies whose authors cannot be observed or cross-examined.' " Miller, 173 Ill. 2d at 205 (McMorrow, J., concurring), quoting Jones, 548 A.2d at 42.

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

Finally, we note that several other state supreme courts employ a de novo standard when reviewing Frye rulings. See, e.g., State v. Tankersley, 191 Ariz. 359, 365, 956 P.2d 486, 492 (1998); Castillo v. 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).

Justice Freeman dissented, troubled that the majority had acted sua sponte in changing Illinois law on the the standard of review. See In re Commitment of Simons, No. 97026 (Ill. Dec. 16, 2004).