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IN RE: the Application of The STATE of New York, Petitioner, v. Roderick LANCASTER, Respondent, for Civil Management Pursuant to Article 10 of the Mental Hygiene Law.
The State of New York (petitioner) has filed a petition for civil management of respondent pursuant to Article 10 of the Mental Hygiene Law. On September 16, 2013, this Court found that there is probable cause to believe that respondent is a sex offender requiring civil management pursuant to Mental Hygiene Law § 10.06(k).
Jury selection in the mental abnormality trial for this Article 10 proceeding was scheduled for May 11, 2015. However, approximately two weeks before that trial was scheduled to commence, respondent moved for an order precluding any evidence during the mental abnormality trial regarding the use of two actuarial instruments, known as the PCL-R (Psychopathy Checklist Revised) and SSPI (Screening Scale Pedophilia Interests). In the alternative, respondent sought a Frye hearing to determine whether petitioner will be permitted to introduce evidence regarding these instruments at trial. [Frye v. United States, 293 F. 1013 (DC Cir. 1923) ].
Respondent sought this relief on the grounds that these instruments are not generally accepted in the psychological community for the purpose of determining whether an individual suffers from a “mental abnormality.” Petitioner opposed the motion, and argues that respondent had failed to make a prima facie showing that the use of these actuarial instruments at a mental abnormality trial rests upon a novel theory that is not generally accepted within the relevant scientific community.
Respondent's eve-of-trial motion seeking the preclusion of these actuarial instruments was precipitated by the Second Department's decision a few weeks earlier in State v. Ian I., 127 AD3d 766 (2d Dept. 2015). In that case, the court denied respondent's motion for a Frye hearing regarding the admissibility of the PCL-R instrument during an Article 10 mental abnormality trial. The Second Department reversed, holding that, “while the use of actuarial risk assessment instruments is scientifically accepted as a means to measure the risk of recidivism, the use of such instruments to determine the existence of a mental abnormality is novel, and the State's bare statement to the contrary was insufficient to satisfy the ‘general acceptance’ test of admissibility.” [id. at 768].
Relying on Ian I., the court held that respondent was entitled to a Frye hearing concerning the admissibility of the PCL-R and SSPI instruments at the mental abnormality trial. That hearing commenced on May 13, 2015, and continued on June 12, July 7, July 8, July 20, and August 14, 2015. Following the completion of that hearing, both parties submitted written closing arguments that have also been considered by the court in rendering this decision.
At the hearing, Drs. Joel Lord, Kostas Kostavdakis and Stuart Kirschner testified on behalf of the petitioner. Drs. Barry Rosenfeld, Daniel Murrie and Bryan Abbott testified on behalf of the respondent. The court credits the testimony of all of the expert witnesses who testified during the Frye hearing. In fact, neither party mounted any meaningful challenge to the veracity of any of these experts. The court now makes the following finding of fact.
Findings of Fact
Joel Lord, who has a Ph.D. in clinical psychology, testified on behalf of petitioner as an expert witness in the field of psychology. Specifically, Dr. Lord is currently the Supervisor for the Psychological Examination Unit for the New York State Office of Mental Health. He has worked at several psychiatric hospitals over his 30-year career and has administered the PCL-R on more than 200 occasions. He offered his expert opinion that the PCL-R is generally accepted as an assessment tool in Article 10 cases, and that it is regularly used by OMH evaluators to determine whether an offender suffers from a “mental abnormality” for purposes of Article 10.
Dr. Lord also opined that the SSPI is generally accepted in the psychological community as a diagnostic tool to assess the presence or absence of pedophilia with regard to a given patient. He stressed that it is not used as a “stand alone” instrument to diagnose pedophilia, and that the patient's record is the most important factor in making such a diagnosis. But Dr. Lord stressed that, while the SSPI is not a comprehensive instrument, it is a useful tool that guides a clinician in the direction of pedophilia, or away from it, as appropriate. Dr. Lord's opinion with regard to both instruments was offered within a reasonable degree of psychological certainty.
Kostas Katsavdakis, who has a Ph.D. in clinical psychology, also testified on behalf of the petitioner as an expert in the field of psychology. Dr. Katsavdakis is one of only 14 board-certified forensic psychologists in New York state. He has been treating sex offenders in his private practice for almost 15 years, and has administered both the PCL-R and the SSPI as part of his assessment protocols.
Dr. Katsavdakis is a member of the faculty at John Jay College of Criminal Justice, where he teaches a class on forensic assessment and psychopathy. Dr. Katsavdakis offered his professional opinion that the PCL-R is an assessment tool that is generally accepted and used in the field of psychology. He also discussed the fact that, since the advent of Article 10, he has performed over 60 evaluations of inmates, approximately 30 at the request of the Attorney General and approximately 30 on behalf of Mental Hygiene Legal Services. He has used the PCL-R on each and every evaluation because he believes it assists him in assessing whether a given individual suffers from a mental abnormality or not.
Dr. Katsavdakis also stressed that there is no instrument to date that is designed specifically to assess for mental abnormality, which is a legal definition rather than a psychological term. He further testified that the PCL-R is one of many tools that are available to mental health professionals when assessing the presence or absence of mental abnormality. Other states such as Texas, California and Florida, also utilize the PCL-R in making similar determinations in civil confinement proceedings. He concluded his testimony by indicating that he is not aware of any studies that recommend against the continued use of the PCL-R to assess mental abnormality in Article 10 proceedings.
Dr. Katsavdakis has also administered the SSPI, which he described as a “brief screening instrument.” Dr. Katsavdakis offered his opinion that this instrument is generally accepted in the psychological community as a screening instrument, although he believes that it is not considered to be an actuarial risk assessment tool. He has administered three or four SSPIs in Article 10 cases, and has used it in his clinical practice on approximately 20 other occasions. In his expert opinion, the SSPI is primarily used to corroborate data when diagnosing pedophilia. He was not aware of any controversy in the psychological community regarding its use as a “quick and dirty” screening tool, and testified that current research supports its validity as such an instrument. All of these opinions were offered by Dr. Katsavdakis within a reasonable degree of psychological certainty.
Dr. Stuart Kirschner testified on behalf of the petitioner as an expert in the field of forensic psychology. He is a retired professor from John Jay College of Criminal Justice and is currently a practicing forensic psychologist. Dr. Kirschner opined that the PCL-R is the single best actuarial instrument in determining “dangerousness.” He has used the PCL-R professionally on more than 100 occasions in CPL 330.20 and Article 10 proceedings. He testified that, in his opinion, the PCL-R should be used in conjunction with another instrument that is specifically designed for sex-offenders, such as the SVR-20 and the Static 99-R. Dr. Kirschner also testified that the PCL-R is the best predictor of sexual recidivism that is available to clinicians. In conclusion, he opined to a reasonable degree of psychological certainty that the PCL-R is an instrument that is generally accepted as an assessment tool in the psychological community in determining the presence of “mental abnormality” in Article 10 cases.
However, Dr. Kirschner was a bit more skeptical about the use of the SSPI as a screening tool for purposes of determining mental abnormality. Specifically, Dr. Kirschner testified that he believes that the SSPI does not add much to the Static 99-R instrument in Article 10 cases. He also offered an opinion that the SSPI is generally accepted as an assessment tool in the psychological community when assessing pedophilic interests, as long as it was not the sole assessment tool utilized by the clinician. According to Dr. Kirschner, no other instrument assesses pedophilic interests.
Dr. Barry Rosenfeld, a Professor and Department Chair for the Psychology Department at Fordham University, testified as an expert in the field of clinical and forensic psychology on behalf of the respondent. Like Dr. Katsavdakis, he is one of the few board-certified forensic psychologists in New York state. Dr. Rosenfeld has also taught undergraduate and graduate level courses at Fordham University (including at the Law School) for more than 15 years. He is retained in 6-8 Article 10 cases annually, and has been qualified to testify as an expert witness in the field of forensic psychology on several occasions in New York courts.
Dr. Rosenfeld opined that, while it is true that the PCL-R appears to be generally accepted in the psychological community to evaluate for mental abnormality, it is used in the wrong manner. In his opinion, the PCL-R is being used for the risk assessment portion of mental abnormality, but should only be used for the “pre-disposition to commit sex offenses' prong of the mental abnormality definition.
Dr. Rosenfeld also disagreed with the state's experts regarding the general acceptance of the SSPI. Specifically, he testified that while the SSPI has utility as a screening instrument, it is not generally accepted in the psychological field as an instrument to assess for mental abnormality. Both of these opinions were rendered within a reasonable degree of scientific certainty.
Daniel Murrie, Ph.D., is the Director of Psychology at the Institute of Law, Psychiatry and Public Policy and an Associate Professor of Psychiatry at the University of Virginia School of Medicine. He received his Ph.D. in clinical psychology from the University of Virginia in 2002, and has been a member of the faculty there since 2008. Prior to joining the UVA faculty, Dr. Murrie practiced in Texas for approximately ten years. During his career he has performed between 200-250 sex offender evaluations in Virginia and Texas. He was qualified as an expert in the field of sex-offender research and the use of assessment instruments.
While Dr. Murrie admitted that the PCL-R fills a role in assessing risk, he testified that it is not a reliable indicator of sexual recidivism in the field. He co-authored a study that was published in a American Psychological Association periodical in 2011 entitled “Field Validity of the Psychopathy Checklist - Revised in Sex Offender Risk Assessment.” After examining the PCL-R scores that forensic evaluators assigned to more than 300 male sexual offenders who underwent evaluations during a civil commitment evaluation process, the study concluded that no PCL-R score was a significant predictor of sexually violent recidivism. Thus, even though the PCL-R may have strong predictive validity in a controlled research environment (i.e., the lab), Dr. Murrie testified that this does not translate into strong predictive validity when the PCL-R is administered in the field. Dr. Murrie also cited other published studies that have also questioned the validity of the PCL-R instrument when it is applied in the field.
However, Dr. Murrie also testified that he surveyed 100 randomly selected forensic evaluators regarding their use of the PCL-R.1 This survey revealed that 75% of these clinicians use the PCL-R regularly as a risk assessment instrument. This survey also revealed that approximately 45% of these clinicians use the PCL-R for mental abnormality evaluations. While Dr. Murrie agreed that the psychological community has not completely discarded the PCL-R as an assessment tool for mental abnormality, he expressed the opinion that this acceptance is weakening. In conclusion, Dr. Murrie opined that the PCL-R is generally accepted in the psychological community for evaluating risk, but that its acceptance as a tool for predicting sexual re-offending has decreased within the psychological community.
Brian Abbott has a PhD. in clinical psychology. Dr. Abbott's career stretches back more than 30 years. Over the last 13 years, he has practiced as a forensic psychologist in California.
Dr. Abbott has performed over 1,700 sexually violent predator (SVP) evaluations over his lengthy career. Dr. Abbott has also published six peer-reviewed publications regarding the use of actuarial instruments and the use of risk data in the predictive world. Dr. Abbott was qualified as an expert in forensic psychology and psychological assessment tools. In the past, he has usually been retained by defense counsel in SVP proceedings, often testifying regarding the admissibility of certain assessment instruments at Frye hearings. His specialty appears to be in the Static 99-R instrument. Although Dr. Abbott received a 14-hour training on the use of the PCL-R in July of 2003, he has not received Dark Stone training (which is generally recognized as the top-notch training protocol for using the PCL-R).
Dr. Abbott testified that he uses the PCL-R to evaluate “dangerousness” in non-SVP cases, but no longer uses it in SVP screenings. He testified that the PCL-R is inconsistent when predicting sexual recidivism. He has not referenced either the PCL-R or the SSPI in any of the eleven articles that he has either authored or co-authored in this field of study over the past seven years.
Dr. Abbott opined that, since the definition of mental abnormality is a legal term, rather than a psychological concept, the PCL-R is an inappropriate tool to assess sex offenders under Article 10. He feels that the PCL-R is valuable only to assess the risk of violent recidivism. His expert opinion was that the PCL-R is not generally accepted in the psychological community to measure either the “predisposition” or the “serious difficulty in controlling such conduct” prongs of the statutory “mental abnormality” definition.
Dr. Abbott also stated that the SSPI is not generally accepted in measuring whether an individual has a mental abnormality under Article 10. He noted certain flaws in the 2001 study that supports the use of the SSPI, and pointed out that the 2001 study has not been replicated since its publication.
Conclusions of Law
There are two questions before this court. First, is the PCL-R generally accepted in the psychological community for the purpose of assisting an expert in assessing mental abnormality in Article 10 proceedings? Second, is the SSPI generally accepted in the psychological community for the purpose of assisting an expert in assessing mental abnormality in Article 10 proceedings?
As the proponent of the disputed testimony, the petitioner bears the burden of establishing that the PCL-R and SSPI are generally accepted in the relevant scientific community for these purposes. [Zito v. Zabarsky, 28 AD3d 42 (2d Dept. 2008) ]. Specifically, the “long recognized rule of Frye v. United States is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure ‘has gained general acceptance’ in its specified field.” [People v. Wesley, 83 NY2d 417, 422 (1994) ]. “The test is not whether a particular procedure is unanimously endorsed by the scientific community, but whether it is generally accepted as reliable.” [People v. Middleton, 54 NY2d 42, 49 (1981). See also Cornell v. 360 West 51st Street Realty, LLC, 22 NY3d 762, 780 (2014) (citation omitted) (“While the Frye test turns on acceptance by the relevant scientific community, we have never insisted that the particular procedure be unanimously indorsed (sic) by scientists, rather than generally acceptable as reliable”) ].
“General acceptance does not necessarily mean that a majority of the scientists involved subscribe to the conclusion. Rather, it means that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions.” [Ratner v. McNeil-PPC, Inc., 91 AD3d 63, 71 (2d Dept. 2011). See also LaRose v. Corrao, 105 AD3d 1009, 1009 (2d Dept. 2013) (“The test's limited purpose is to ascertain whether the expert's conclusion is based upon accepted scientific principles, rather than simply the expert's own unsupported beliefs”) ]. Therefore, “the main purpose of a Frye inquiry is to determine whether the scientific deduction in a particular case has been sufficiently established to have gained general acceptance in a particular field, not․ to verify the soundness of a scientific conclusion.” [Alston v. Sunharbor Marine, LLC, 48 AD3d 600, 602 (2d Dept. 2008). See also Lugo v. New York City Health and Hospitals Corp., 89 AD3d 42, 56 (2d Dept. 2011) (citation omitted) (“Put another way, the court's job is not to decide who is right and who is wrong, but rather to decide whether or not there is sufficient scientific support for the expert's theory”) ].
Based on the record developed at the Frye hearing, this court finds that the PCL-R is generally accepted in the relevant scientific community for the purpose of assessing “mental abnormality” in Article 10 proceedings.
There are three elements to the term “mental abnormality” as defined in § 10.03(i) of the Mental Hygiene Law:
1. A congenital or acquired condition, disease or disorder;
2. That affects the emotional, cognitive or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense; and
3. That results in that person having serious difficulty in controlling such conduct.
All three experts called to testify on behalf of petitioner agreed that the PCL-R is generally accepted in the psychological community for the purpose of assessing mental abnormality in Article 10 proceedings. While Dr. Rosenfeld, who testified for the respondent, did not concur with that opinion, he did admit that the PCL-R was generally accepted as a tool to measure “risk.” He also agreed that the term “risk” was a component of two of the elements of “mental abnormality” as defined by Article 10 — i.e., the “predisposition” and “serious difficulty in controlling such conduct” prongs of the statutory definition.
Much of the testimony from respondent's experts centered around their belief that the PCL-R is not a valid indicator for accurately determining the risk that a sex offender will re-offend. It seems to this court that the respondent is confusing the subjective beliefs of these experts concerning the predictive value of the PCL-R with the question that is squarely before this court — i.e., whether the PCL-R is a generally accepted tool within the psychological community for assessing whether an individual suffers from a “mental abnormality” as defined by statute.
The evidence received during the Frye hearing proves that the PCL-R is generally accepted by the relevant scientific community to determine whether a sex offender suffers from a mental abnormality. Specifically, Dr. Lord's testimony demonstrates that the PCL-R is regularly used by the evaluators at the OMH Psychological Examination Unit as a tool to determine whether a detained sex offender suffers from a mental abnormality. Dr. Katsavdakis agreed that the PCL-R is generally accepted in the psychological community for assessing mental abnormality, and testified that he has used the PCL-R for that purpose in every Article 10 evaluation that he has performed at the request of either the Attorney General or Mental Hygiene Legal Services. Dr. Kirschner also agreed that the use of the PCL-R to assess mental abnormality is generally accepted in the psychological community, although he testified that he believes that it should not be used in isolation and should instead be used in conjunction with an instrument that is specifically designed for sex offenders. Dr. Rosenfeld also agreed that the PCL-R is generally accepted in the psychological community, although he personally believes that it should only be used to assess whether a sex offender is predisposed to commit sex offenses under the second prong of the mental abnormality definition. Although Dr. Murrie has criticized the use of the PCL-R in the field, his own random survey of clinicians across four states (that did not include New York) confirms that the PCL-R is being used on a regular basis to assess sex offenders for mental abnormality. Finally, although Dr. Abott testified that the PCL-R should not be used to assess the “predisposition” and “serious difficulty in controlling such conduct” prongs of the mental abnormality definition, his personal beliefs do not discredit the evidence that was received proving that the PCL-R is a generally accepted tool within the psychological community for assessing whether an individual suffers from a mental abnormality. Therefore, the petitioner will be permitted to introduce evidence regarding the PCL-R during the mental abnormality trial.
The aforementioned experts all disagreed on the general acceptance of this screening tool. Drs. Lord and Katsavdakis testified, without qualification, that the SSPI is accepted as only a screening instrument. Both asserted that it is not to be utilized as a stand-alone tool in assessing pedophilia. Dr. Kirschner was more cautious because he preferred to use the Static-99 in Article 10 cases. He did agree that it is generally accepted and that no other instrument exists to assess pedophilia interests.
Drs. Rosenfeld and Abbott opined that the SSPI is not generally accepted in Article 10 cases involving pedophilia. In fact, Dr. Abbott noted that there were flaws in the 2001 study that supports the use of the SSPI as a screening instrument in this area and that this flawed study has not been replicated since 2001.
However, the court finds that petitioner has carried its burden under Frye of establishing that the SSPI is generally accepted in the psychological community in regard to assisting clinicians in assessing “mental abnormality” in Article 10 proceedings. It should be noted that it is only currently used in the field as a screening instrument and not as a stand-alone tool in assessing the presence or absence of pedophilia. In this limited application, the court finds that it has passed the Frye test of general acceptability.
ORDERED, that the respondent's motion to preclude testimony or evidence regarding the PCL-R instrument during the mental abnormality phase of this Article 10 trial is denied; and it is further
ORDERED, that the respondent's motion to preclude testimony or evidence regarding the SSPI instrument during the mental abnormality phase of this Article 10 trial is also denied.
A conference date with counsel is scheduled for January 26, 2016 at 2:00 p.m. Please bring information regarding the availability of your expert witnesses to the conference so that a trial date can be set.
The foregoing constitutes the Decision and Order of this Court.
1. This survey included clinicians from the states of Texas, Virginia, Washington and Wisconsin. This survey did not include any clinicians from New York.
Peter M. Forman, J.
Response sent, thank you
Docket No: 5545/13
Decided: January 08, 2016
Court: Supreme Court, Dutchess County, New York.
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