Sexually Violent Predators Laws

Facts of the Case

As part of a plea bargain, 34‐year‐old Harry Dengler pleaded guilty to aggravated indecent assault and corruption of minors after an incident with his 12‐year‐old niece in which he fondled and kissed her breasts through her clothing, fondled and inserted his finger into her vagina, and performed oral sex on her against her protests. The trial judge ordered the State Sexual Offenders Assessment Board to perform a Sexually Violent Predator (SVP) assessment under Megan's Law II. The Act defines the term “sexually violent predator” as a person convicted of a sexual offense and likely to engage in predatory sexually violent offenses due to a “mental abnormality” or “personality disorder” (42 Pa. Cons. Stat. § 9791 et seq. (2000)). The Act further outlines specific factors to be considered in the determination of a defendant's SVP designation; however, the Act does not limit the analysis to these factors.

The State Sexual Offenders Assessment Board issued a report prepared by Board member Veronique Valliere, a licensed psychologist. Mr. Dengler declined to be interviewed by a board investigator. Dr. Valliere completed her assessment by relying on available records, including court records in the case: the probable cause affidavit and court records relating to two prior sexual offenses. Dr. Valliere opined that Mr. Dengler met the criteria for classification as an SVP based on her experience and a review of the factors listed in the Act, such as “the research, his behavior, his past records, [and] his previous diagnoses.”

Under extensive cross‐examination, Dr. Valliere conceded that statutory terms, including “mental abnormality” and “sexually violent predator” were not diagnostic terms in psychiatry or psychology. Further, she conceded that there was no specific test to determine SVP status. Based on Dr. Valliere's testimony, the court found Mr. Dengler to be an SVP and sentenced him to prison and probation. In addition, on his release from prison, he was to comply with the registration provisions of Megan's Law II.

Ruling and Reasoning

Mr. Dengler appealed. The superior court unanimously affirmed the trial court, stating that it would defy logic to ask an expert witness to apply Megan's Law II in conducting an assessment and then exclude the expert's testimony merely because she employed Megan's Law II language in her assessment. Further, they said that psychological or psychiatric testimony offered at an SVP hearing was not novel scientific evidence subject to Frye.

The Supreme Court of Pennsylvania granted further discretionary review to provide guidance on this issue of first impression. Mr. Dengler argued that Dr. Valliere had based her testimony on statutory terms not generally accepted or having clinical meaning in the field of psychology. As such, he argued that the trial court erred in not subjecting Dr. Valliere's testimony to the Pennsylvania test of admissibility for novel scientific testimony derived from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Supreme Court of Pennsylvania affirmed the Superior Court and held that the trial court did not abuse its discretion in admitting the expert testimony without a Frye hearing.

As background, the court noted that experts could give testimony in the form of an opinion under Rule 702 of the Pennsylvania Rules of Evidence. Further, the court clarified that in Pennsylvania, Frye was the standard and not Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Frye standard requires that the scientific principle on which the opinion is based “must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” In discussing its decision, the court dismissed the objection to Dr. Valliere's use of the terms “mental abnormality” and “sexually violent predator,” stating they were defined in detail in Megan's Law II, making them terms of art. Thus, criticizing Dr. Valliere's testimony based on acceptance within the psychological or psychiatric community “simply misses the mark.”

The court then pointed out that Frye does not apply every time science comes into the courtroom; rather, it applies only to proffered expert testimony involving novel science. They reasoned that because the legislature provided the framework for assessing whether an offender is an SVP, it should be deemed generally accepted in the community of professionals who conduct SVP assessments. Further, because it is from the legislature, it cannot be deemed “novel science” and therefore no Frye hearing is necessary. Because Dr. Valliere followed the statutory factors, it was not novel science and no Frye test was required.

The court remarked that other jurisdictions have held, under a traditional Frye analysis, that Frye does not apply to expert psychological or psychiatric testimony regarding a sexual offender's likelihood of recidivism, because such evidence is not novel. Although the appellant pointed out numerous cases in which such testimony was held to a Frye standard, the court argued that each of these cases involved actuarial assessments. Because Dr. Valliere did not employ actuarial methods to predict recidivism, these cases were not relevant.

In his concurring opinion, Justice Baer wrote that he agreed that the evidence was not subject to a Frye analysis because the theory and methodology underlying the SVP assessment was not novel. However, he argued that statutorily defined factors do not relieve a court from conducting an independent analysis under Frye of the novelty of a given theory or method used to address those factors. For example, if the legislature based SVP designation on phrenology (head contours) to categorize defendants, the fact that the legislature made the policy would not eliminate the requirement of a Frye hearing.

Discussion

The primary issue for the forensic practitioner is that the court said that it no longer considers SVP assessments to be novel science and therefore such assessments are not subject to a Frye hearing. It explained that the legislature had defined the factors the psychiatrist or psychologist should consider, essentially removing part of the scientific argument behind the case. This analysis raises concern, considering the nature of science. As noted in Justice Baer's concurring opinion, statutorily defined factors do not necessarily relieve a court from conducting an independent analysis under Frye of the novelty of a given theory or method used to address those factors. Although it is true that several of the factors listed in Megan's Law II are currently scientifically validated risk factors for recidivism, science is a constantly evolving field, molded by ongoing research and expertise. As such, it is naïve to suggest that the legislature could keep up with the current scientific body of research to forego the need for an evaluation by the court. For example, the court specifically distinguished Dr. Valliere's approach from examiners using actuarial instruments. However, many experts in the sex offender field routinely use such actuarial instruments, which have a large body of scientific evidence supporting their use. What if the expert, based on her experience and understanding of the scientific evidence disagreed with the legislatively defined factors? For example, Megan's Law II lists the age of the victim as a factor, which has little support for recidivism in the literature.

Although we agree that the theory underlying SVP evaluations as described in the case are well validated to the extent that it is reasonable to say they no longer qualify as novel science, this conclusion is independent of the legislation.

One issue not discussed by the court that this case raises is the role of experts when testifying to what have traditionally been fact‐finder issues. In this case, the psychologist was encouraged to testify on whether a defendant qualified for legal terms of art, such as “mental abnormality” and “sexually violent predator.” The appellant correctly argued that the terms were not validated within the field of psychiatry or psychology. The traditional role of the expert has been to educate the court, not to make legal decisions about who qualifies under a legal definition. Much of the difficulty could have been avoided had the expert limited her testimony to the diagnoses that the defendant had met, the risk factors for recidivism (from the Act and otherwise), and how these relate to his risk.