FOOTNOTES

Footnotes / References

Footnotes/References in a separate screen

1 Dannye Holley, The Supreme Courts: Did September 11th Accelerate Their Sanctioning the Constitutionality of Criminalizing Suspicions, 7 PIERCE L. REV. 39, 60 (2008).

2 Eric S. Janus & Robert A. Prentky, Sexual Predator Laws: A Two-Decade Retrospective, 21 FED. SENT’G REP. 90, 95 (2008).

3 ERIC S. JANUS, FAILURE TO PROTECT: AMERICA’S SEXUAL PREDATOR LAWS AND THE RISE OF THE PREVENTIVE STATE 5 (2006).

4 Daniel F. Montaldi, The Logic of Sexually Violent Predator Status in the United States of America, 2 SEXUAL OFFENDER TREATMENT 1 (2007).

5 Robert A. Prentky et al., Sexually Violent Predators in the Courtroom: Science on Trial, 12 PSYCHOL. PUB. POL’Y & L. 357, 360 (2006).

6 Id. at 358 (defining good science as referring to “the faithful and rigorous adherence to the findings, limitations, and the conclusions of published, peer-reviewed articles in scientific journals. Bad science refers to the intentional or uninformed distortion, misinterpretation, or selective reporting of findings from scientific articles”).

7 Technically, because the sex offender laws at issue in this paper are not criminal in nature, the individuals are not criminal defendants, but civil respondents in most cases. The term defendant is used herein to more easily identify the individual to which an SVP law is applied.

8 See infra text accompanying notes 79-81.

9 Joseph L. Lester, Off to Elba! The Legitimacy of Sex Offender Residence and Employment Restrictions, 40 AKRON L. REV. 339, 345 (2007).

10 This is not the first time that a crackdown on sex offenders through legislation has occurred.
In 1947, J. Edgar Hoover, then director of the FBI, publicly declared that the

"rapidly increasing" rate of sex crimes needed to "be placed under the spotlight and its evils disclosed so that something may be done to correct a situation that leaves maimed and murdered women lying in isolated areas, which leaves violated children in a state of hysteria, and which is a perpetual nightmare to the loved ones and friends of the victims."

J. Edgar Hoover, How Safe is your Daughter? 144 AM. MAG. 32, 32 (1947)

(as quoted in Roxanne Lieb et al., Sexual Predators and Social Policy, 23 CRIME & JUST. 43, 53 (1998)).

For a history of the origin of 20th century laws to detain sexual psychopaths, see generally

Tamara Rice Lave, Only Yesterday: The Rise and Fall of Twentieth Century Sexual Psychopath Laws, 69 LA. L. REV. 549 (2009).

The prior generation of sexual psychopath laws differed from current civil commitment statutes in that the former required rehabilitative treatment in a mental health facility in lieu of punitive incarceration.

Dawn J. Post, Assessing Future Dangerousness in Sexual Predators for Purposes of Indeterminate Civil Commitment, 21 HAMLINE J. PUB. L. & POL’Y 177, 185 (1999).

Most of the former laws were repealed in the 1970s when criminal justice policy initiatives shifted from rehabilitation models. Id.

	Meaghan Kelly, Lock them Up – And Throw Away the Key: The Preventive Detention of Sex Offenders in the United States and Germany, 39 GEO. J. INT’L L. 551, 553 (2008);
	Wayne A. Logan, Sex Offender Law and Policy: Criminal Justice Federalism and National Sex Offender Policy, 6 OHIO ST. J. CRIM. L. 51, 60 (2008).

12 CENTER FOR SEXUAL OFFENDER MANAGEMENT, LEGISLATIVE TRENDS IN SEX OFFENDER MANAGEMENT 1 (November 2008), http://www.csom.org/pubs/legislative_trends.pdf [hereinafter “CSOM”].

13 E.g.,

	Lauri Crimaldi, Pols to Target Perv Law Loophole: Bills Urge GPS, Parole for Life, BOSTON HERALD, February 4, 2008, at 004 (describing 40 bills then before the state legislature to pass more stringent restrictions on sex offenders and identifying specific cases of harm by released sex offenders);
	Laura Mansnerus, On Politics: Stoking “Moral Panic” on Sex Offenders, N.Y. TIMES, May 29, 2005, at 2 (describing media hype over Medicare payments for Viagra for sex offenders and how horror stories about pedophiles had an impact on legislative calls for stricter sex offender laws, despite the existence of other important pending issues).

14 CHRIS GREER, SEX CRIME AND THE MEDIA: SEX OFFENDING AND THE PRESS IN A DIVIDED SOCIETY 186 (2003).

15 See, e.g.,

	Jimmy Ryce Involuntary Civil Commitment for Sexually Violent Predators Treatment and Care Act, Fla. Stat. § 394.910 (2009);
	Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 42 U.S.C. § 14071 (West 2003);
	Megan’s Law, N.J. Stat. Ann. § 2C:7-1-7-11 (West 2009).
	See Michael Vitiello, Punishing Sex Offenders: When Good Intentions Go Bad, 40 ARIZ. ST. L.J. 651, 676 (2008) (maintaining that sex offender “[p]olicies are crafted in haste, often as symbolic gestures to honor the crime victims whose suffering has inspired them”).

16 Lisa L. Sample & Colleen Kadleck, Sex Offender Laws: Legislators’ Accounts of the Need for Policy, 19 CRIM. JUST. POL’Y REV. 40, 59 (2008).

17 Id. at 51.

18 MICHAEL R. RAND, U.S. DEP’T. OF JUSTICE, CRIMINAL VICTIMIZATION, 2007 at 3 (December 2008).

19 Leonore M.J. Simon, The Myth of Sex Offender Specialization: An Empirical Analysis, 23 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 387, 397 (1997).

20 Janus, supra note 3, at 4.

21 Jill S. Levenson et al., 7 Public Perceptions about Sex Offenders and Community Protection Policies, ANALYSES OF SOC. ISSUES & PUB. POL’Y 137, 153-154 (2007).

	Janus & Prentky, supra note 2, at 90;
	Erica Beecher-Monas & Edgar Garcia-Rill, The Impact of Behavioral Genetics on the Criminal Law: Genetic Predictions of Future Dangerousness: Is There a Blueprint for Violence?, 69 L. & CONTEMP. PROBS. 301, 317-318 (2006).

23 Compare

	152 CONG. REC. H5723 (daily ed. July 25, 2006) (statement of Rep. Sensenbrenner) (referring to the growing problem of online sexual predators) with
	Janis Wolak et al., Online “Predators” and their Victims: Myths, Realities, and Implications for Prevention and Treatment, 63 AM. PSYCHOL. 111, 112-13, 119 (2008) (reporting that public fears are erroneous as online predators are usually open about their sexual interest, are rarely violent, and prevention may be better served by teaching young people safe internet practices).

24 As mandated by the Adam Walsh Child Protection and Notification Act of 2006, the U.S. Department of Justice created the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, whose mission is to “protect the public.” U.S. Department of Justice, http://www.ojp.usdoj.gov/smart/about.htm.

	Lester, supra note 9, at 347-348;
	John Douard, Sex Offender as Scapegoat: The Monstrous Other Within, 53 N.Y.L. SCH. L. REV. 31, 38-39 (2008).

26 See, e.g.,

	Fla. Stat. ch. 775.21 (3)(A) (“Repeat sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Sexual offenders are extremely likely to use physical violence and to repeat their offenses, and most sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. This makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant.”);
	140 CONG. REC. H5612, H5612 (daily ed. July 13, 1994) (statement of Rep. Dunn) (campaigning on the Congressional floor for a registration and notification bill and claiming that the rate of recidivism of sex offenders is “astronomical. We know that.”);
	152 CONG. REC. H5725 (daily ed. July 25, 2006) (statement of Rep. Foley) (referring to sexual predators as a “growing and dangerous threat to our children”). Representative Mark Foley, shortly after making this public statement, was caught in a scandal for sending pornographic e-mails to teenage male pages, and eventually resigned.
	Ellen Goodman, You Can’t Make this Stuff Up: The Self-Proclaimed Party of Moral Values Can’t Keep its own House in Order, PITT. POST-GAZETTE, Oct. 6, 2006, at B-7.

27 Other, though less common, laws include a ban on certain employment, such as

at a day care, Idaho CODE ANN. § 18-8310(1) (2009);

restrictions on working near specified locations, such as around schools, Ala. Code § 15-20-33(a) (2009);

GPS monitoring,

	GA. CODE. ANN. § 42-1-12(B)(9) (2009),
	LA. REV. STAT. ANN. § 560.4 (West 2009); and

chemical castration, Matthew V. Daley, A Flaws Solution to the Sex Offender Situation in the United States: The Legality of Chemical Castration for Sex Offenders, 5 IND. HEALTH L. REV. 87 (2008) (citing statutes).

28 K.S.A. § 59-29a02(a) (2008).

29 521 U.S. 346, 371 (1997).

30 Id. at 361-363.

31 United States v. Abregana, 574 F. Supp. 2d 1123, 1139-1140 (D. Haw. 2008).

32 K. GOOKIN, WASHINGTON STATE INSTITUTE FOR PUBLIC POLICY, COMPARISONS OF STATE LAWS AUTHORIZING INVOLUNTARY COMMITMENT OF SEXUALLY VIOLENT PREDATORS: 2006 UPDATE, REVISED 1 (2007), http://www.wsipp.wa.gov/rptfiles/07-08-1101.pdf.
But see

Monica Davey & Abby Goodnough, Doubts Rise as States Hold Sex Offenders after Prison, N.Y. TIMES, Mar. 4, 2007, at 11
(reporting about 2,700 sex offenders subject to civil commitment).

33 Eric. S. Janus & Robert A. Prentky, Forensic Use of Actuarial Risk Assessment with Sex Offenders: Accuracy, Admissibility and Accountability, 40 AM. CRIM. L. REV. 1443, 1447 (2003) (finding 5% of committed offenders released).

34 Amber Leigh Bagley, An “Era of Human Zoning”: Banishing Sex Offenders from Communities Through Residence and Work Restrictions, 57 EMORY L.J. 1347, 1348 (2008).

35 GA. CODE ANN. § 42-1-12(a)(16) (2009).

36 See Shawndra Jones, Setting Their Record Straight, Granting Wrongly Branded Individuals Relief from Sex Offender Registration, 41 COLUM. J.L. & SOC. PROBS. 492, 496 (2008).

37 Some courts have overturned local regulations, though, that are seen as pre-empted by state statute.
See., e.g.,

	Fross v. County of Allegheny, No. 08-1405, 2009 U.S. Dist. LEXIS 24472, at *25 (D. Pa. March 21, 2009);
	People v. Oberlander, No. 02-354, slip op. at 11 (N.Y. Sup. Ct. Jan. 22, 2009).

38 See, e.g.,

	ALA. CODE § 15-20-26(a) (Lexis Nexis Supp. 2007);
	GA. CODE ANN. §42-1-15(a)-(b) (Supp. 2008);
	KY. REV. STAT. ANN. §17.545(1)(West Supp. 2008);
	OKLA. STAT. ANN. tit. 57 § 590(A) (West. Supp. 2008).

ARK. CODE ANN. § 5-14-128(a) (2006);

FLA. STAT. §947.1405(7)(a)(2) (2007);

IOWA CODE § 692A.2A(1) (2007);

LA. REV. STAT. ANN. §§

	14:91.1(A)(2) and
	15:560.1(3) (2009).

40 See Lester, supra note 9, at 350-351 (listing various laws and restrictions).

	Asmara Tekle-Johnson, In the Zone: Sex Offenders and the Ten-Percent Solution, 94 IOWA L. REV. 607, 621 (2009) (listing areas of effectively banning sex offenders);
	Kari White, Where Will They Go? Sex Offender Residency Restrictions as Modern Day Banishment, 59 CASEW. RES. L. REV. 161, 168-169 (2008) (showing maps whereby officials highlighted the few areas remaining after factoring in the residency restrictions).

42 See Lester, supra note 9, at 374-380 (listing statutes with information about area and time spans).

43 The federal Sex Offender Registration and Notification Act of 2006 (SORNA) may change this.
SORNA would require states, under penalty of losing certain funding, to follow a unitary system of sex offender registration based not on individual assessments of future risk, but on the type of offense of conviction.
Generic titles of offenses are categorized into 3 levels and the time for registration is based on the level.
Still, there is reason to believe that the SORNA requirements will not significantly overhaul the registration system and entirely replace future dangerousness assessments.
SORNA’s registration requirements were originally intended to be substantially implemented by states as of July 27, 2009 (or lose the funding).
But, within weeks of the deadline, few states had acted to implement the regulations because of its burden and cost and, with pressure, the Attorney General delayed the deadline a year.

Sen. Leahy Applauds Extension for State Compliance with Sex Offender Registration and Notification Act, U.S. FED NEWS, June 3, 2009.

	Lester, supra note 9, at 381-384 (listing statutes with punishment information);
	GA. CODE ANN. §42-1-15 (2008) (penalizing violation with up to 30-year sentence).

45 Caleb Durling, Never Going Home: Does it Make us Safer? Does it Make Sense?: Sex Offenders, Residency Restrictions, and Reforming Risk Management Law, 97 J. Crim. L. & Criminology 317, 323 (2006).

46 Smith v. Doe, 538 U.S. 84, 105-106 (2003).

47 See e.g.,

	Doe v. Miller, 405 F.3d 700, 719 (8th Cir. 2005);
	People v. LeRoy, 828 N.E.2d 769, 778-782 (Ill. App. Ct. 2005).

48 Lindsay A. Wagner, Sex Offender Residency Restrictions: How Common Sense Places Children at Risk, 1 DREXEL L. REV. 175, 175 (2009).
See also
John A. Fennel, Punishment by Another Name: The Inherent Overreaching in Sexually Dangerous Person Commitments, 35 N.E. J. ON CRIM. & CIV. CONFINEMENT 37, 62 (2009); Douard, supra note 25, at 37.

49 BERNARD E. HARCOURT, AGAINST PREDICTION: PROFILING, POLICING, AND PUNISHING IN AN ACTUARIAL AGE 188 (2007).

50 Yoav Sapir, Against Prevention? A Response to Harcourt’s Against Prediction on Actuarial and Clinical Predictions and the Faults of Incapacitation, 33 LAW & SOC. INQUIRY 253, 260-261 (2008) (book review).

51 CSOM, RECIDIVISM OF SEX OFFENDERS 5 (May 2001), http://www.csom.org/pubs/recidsexof.pdf.

52 PATRICK A. LANGAN ET AL., U.S. DEP’T OF JUST., OFF. OF JUST. PROGRAMS, RECIDIVISM OF SEX OFFENDERS RELEASED IN 1994, at 1 (2003).

53 Id.

54 Id.

55 Id. at 2.

56 RHIANA KOHL ET AL., URBAN INST., MASSACHUSETTS RECIDIVISM STUDY: A CLOSER LOOK AT RELEASES AND RETURNS TO PRISON 14 (2008), http://www.urban.org/UploadedPDF/411657_massachusetts_recidivism.pdf.

57 Id.

58 CSOM, supra note 51, at 1.

59 GENEVA ADKINS ET AL., IOWA DEP’T OF HUM. RIGHTS, THE IOWA SEX OFFENDER REGISTRY AND RECIDIVISM 10 (2000)
(defining recidivism as reconviction or parole violation with a sample of over 400 sex offenders released or probationers),
http://www.iowa.gov/dhr/cjjp/images/pdf/01_pub/SexOffenderReport.pdf.

60 ROBERT BARNOSKI, WASH. STATE INST. FOR PUB. POL’Y, SEX OFFENDER SENTENCING IN WASHINGTON STATE: SEX OFFENDER RISK LEVEL CLASSIFICATION TOOL AND RECIDIVISM 2 (2006) (defining recidivism as reconviction for a felony with a sample of almost 700 released sex offenders),
http://www.wsipp.wa.gov/rptfiles/06-01-1204.pdf.

61 STATE OF OHIO, OFFICE OF CRIM. JUST. SERVICES, REPORT TO THE OHIO CRIMINAL SENTENCING COMMISSION, SEX OFFENDERS 13-14 (2006) (defining recidivism as being reincarcerated after release with an otherwise unidentified sample).

62 Timothy Fortney et al., Myths and Facts about Sexual Offenders: Implications for Treatment and Public Policy, 2 SEXUAL OFFENDER TREATMENT 1 (2007).
See also,
State of Ohio, supra note 61, at 14
(admitting “It is a common misconception that sex offenders have a high recidivism rate”).

63 Sex offense types where recidivism may vary include incest-only, adult female rape, and non-contact offending.

64 Langan et al., supra note 52, at 1.

65 RAND, supra note 18, at 6.

66 HOWARD N. SNYDER, U.S. DEP’T OF JUST., SEXUAL ASSAULT OF YOUNG CHILDREN AS REPORTED TO LAW ENFORCEMENT: VICTIM, INCIDENT, AND OFFENDER CHARACTERISTICS 10 (2000).

67 Id.

68 RAND, supra note 18, at 6.

69 James Vess, Sex Offender Risk Assessment: Consideration of Human Rights in Community Protection Legislation, 13 LEGAL & CRIMINOLOGICAL PSYCHOL. 245, 246 (2008).

70 See, e.g., Jill S. Levenson & Leo P. Cotter, The Effect of Megan’s Law on Sex Offender Reintegration, 21 J OF CONTEMP. CRIM. JUST. 49, 61 (2005)
(reporting a study of the experience of half of 180+ registered offenders reporting that the information in the public registries was erroneous).

71 Amy L. Anderson & Lisa L. Sample, Public Awareness and Action Resulting from Sex Offender Community Notification Laws, 19 CRIM. JUST. POL’Y REV. 371, 388 (2008).

72 Jeffrey C. Sandler et al., Does a Watched Pot Boil? A Time-Series Analysis of New York State’s Sex Offender Registration and Notification Law, 14 PSYCHOL. PUB. POL’Y & L. 284, 297 (2008).
See also

	Barnoski, supra note 63, at 2-3 (finding the level of risk classification of sex offenders and the existence of the notification program had no impact on recidivism rates);
	JEFFREY T. WALKER ET AL., ARK. CRIME INFO. CENTER, THE INFLUENCE OF SEX OFFENDER REGISTRATION AND NOTIFICATION LAWS IN THE UNITED STATES 15 (2005) (finding no reduction in state rates of rapes after passage of sex offender registry laws, suggesting no deterrent result), http://www.arkansas.gov/search/gsearch.php?profile=acic&cache=CEEr179SW8...
	Adkins, supra note 62, at 10 (finding no statistically significant difference between pre-registry and post-registry sex offenders released in committing sex or non-sex offenses);
	Bob Edward Vásquez et al., The Influence of Sex Offender Registration and Notification Laws in the United States: A Time-Series Analysis, 54 CRIME & DELINQ. 175, 188 (2008) (concluding overall there was no measurable or consistent deterrent effect);
	Elizabeth J. Letourneau & Kevin S. Armstrong, Recidivism Rates for Registered and Non-registered Juvenile Sexual Offenders, 20 SEXUAL ABUSE: A J. OF RES. & TREATMENT 383, 400 (2008) (finding no differences in sexual re-offending in a matched sample of registered and non-registered juvenile offenders);
	MINN. DEP’T OF CORRECTIONS, RESIDENTIAL PROXIMITY AND SEX OFFENSE RECIDIVISM IN MINNESOTA: APRIL 2007, at 24 (2007) (concluding after tracking 224 sex offenders released between 1990 and 2002 who were re-incarcerated for a sex crime that “not one of the 224 offenses would likely have been affected by residency restrictions"), http://www.doc.state.mn.us/publications/documents/04-07SexOffenderReport....

73 See Richard Tewksbury, Exile at Home: The Unintended Collateral Consequences of Sex Offender Residency Restrictions, 42 HARV. C.R.-C.L. L. REV. 531, 532-537 (2007).

	Id. (citing empirical studies concerning repercussions of registration and residency restrictions among various groups of offenders);
	Lester, supra note 9, at 359-362 (reviewing problems created by and exacerbated by residency restrictions on sex offenders, their families, communities, and police resources).

75 BARBARA K. SCHWARTZ & HENRY R. CELLINI, THE SEX OFFENDER: NEW INSIGHTS, TREATMENT INNOVATIONS AND LEGAL DEVELOPMENTS (vol. II) xvii (1997).

76 Heather R. Hlavaka & Christopher Uggan, Does Stigmatizing Sex Offenders Drive Down Reporting Rates? Perverse Effects and Unintended Consequences, 35 N. KY. L. REV. 347, 363 (2008).

77 See Vitiello, supra note 15, at 685.

78 Amy Baron-Evans, Still Time to Rethink the Misguided Approach of the Sex Offender Registration and Notification Act, 20 FED. SENT’G REP. 357 (2008).

79 Gookin, supra note 32, at 1.

80 DAN GUNDERSON, CORRECTIONS OFFICIALS CRITICAL OF EXPANDED SEX OFFENDER MONITORING (Minn. Public Radio broadcast Feb. 22, 2006)
(stating that Minnesota Department of Corrections officials estimate that monitoring sex offenders "costs $20 per day for each offender"),
http://minnesota.publicradio.org/display/web/2006/02/16/gpstracking/.

81 See CONG. BUDGET OFF., COST ESTIMATE: H.R. 4472 CHILDREN'S SAFETY AND VIOLENT CRIME REDUCTION ACT OF 2005 (2006), http://www.cbo.gov/ftpdocs/70xx/doc7061/hr4472.pdf.

82 See also Janus, supra note 3, at 146-147
(arguing that while SVP laws serve an expressive message rejecting sexual violence, by highlighting the most heinous sexual assaults by strangers they also downplay the more common types of sexual violence).

83 CSOM, RECIDIVISM OF SEX OFFENDERS 4 (May 2001).

84 Some commentators have weighed the empirical flaws in actuarial predictions against the ability of expert testimony to assist judges in making future dangerousness assessment and have concluded that the public health need to protect future victims justifies their use. Post, supra note 10, at 244-245.

85 See, e.g., People v. Lopez, No. H029248, 2006 Cal.App.Unpub.LEXIS 11573, at *5 (Cal. Ct. App. Dec. 21, 2006).
As a general rule, the evidentiary ban on hearsay evidence is vitiated when it comes to experts and the information they rely upon, at least to the extent that experts in their particular field reasonable rely on that type of evidence.
See, e.g., FRE 703.

86 N.J. Schweitzer & Michael J. Saks, The Gatekeeper Effect: The Impact of Judges’ Admissibility Decisions on the Persuasiveness of Expert Testimony, 15 PSYCHOL. PUB. POL’Y & L. 1, 13 (2009)
(describing the result of the authors’ empirical study about the influence a judge’s decision to admit expert testimony on potential jurors’ acceptance of such testimony and concluding that if Daubert’s intent was to limit junk science, it may have the opposite impact since the study participants were more likely to value expert testimony if a judge admitted it because they believed the judge independently acted and competently verified the quality of the evidence provided by the expert).

87 Social sciences are those that use scientific methods in the study of humans as social creatures, such as sociology, anthropology, psychology, criminology, political science, among others.

88 Laurens Walker & John Monahan, Social Frameworks: A New Use of Social Science in Law, 73 VA. L. REV. 559, 582-83 (1987)
(offering that recent uses of social science in law is uniquely about permitting experts to use a theory of human behavior to provide a social framework to assist the trier of fact in understanding the relevant issues while disabusing them of any myths they may have).

89 JOHN MONAHAN & LAURENS WALKER, SOCIAL SCIENCE IN LAW: CASES AND MATERIALS 395 (6th ed. 2006).

90 Mark S. Brodin, Behavioral Science Evidence in the Age of Daubert: Reflections of a Skeptic, 73 U. CIN. L. REV. 867, 868-869 (2005).

91 Andrew J. Taslitz, Myself Alone, Individualizing Justice through Psychological Character Evidence, 52 MD. L. REV. 1, 75 (1992).

92 Alice B. Lustre, Post-Daubert Standards for Admissibility for Scientific and Other Expert Evidence in State Cases, 90 A.L.R. 5TH 453, at *2 (2009).

93 Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). The Frye expert offered evidence in the form of results from an early version of a lie detector to show the defendant’s innocence. Id.

94 Andrew R. Stolfi, Why Illinois Should Abandon Frye’s General Acceptance Standard for the Admission of Novel Scientific Evidence, 78 CHI-KENT L. REV. 861, 876 n.110 (2003).

95 Act of January 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926.

96 509 U.S. 579 (1993).

97 Id. at 587-88.

98 Id. at 590. Subsequently, in Kumho Tire Co. v. Carmichael, the Court clarified that the same Daubert-led standards applied to all expert testimony, including that based on skill or experience, not just of the scientific variety. 526 U.S. 137, 151 (1999).

99 Daubert, 509 U.S. at 590 n. 9.

100 Id. at 597.

101 Id. at 593-94.

102 Id. at 601 (J. Rehnquist, dissenting).

103 Brodin, supra note 90, at 36.

104 Daubert, 509 U.S. at 592.

105 Janus & Prentky, supra note 33, at 1462.

106 James Aaron George, Offender Profiling and Expert Testimony: Scientifically Valid or Glorified Results?, 61 VAND. L. REV. 221, 233 (2008).

107

	Kumho Tire Co., 526 U.S. at 151.
	Erica Beecher-Monas & Edgar Garcia-Rill, Danger at the Edge of Chaos: Predicting Violent Behavior in a Post-Daubert World, 24 CARDOZO L. REV. 1845, 1854 (2003).

108 Lustre, supra note 92, at 2
(summarizing

	“Twenty-five states have affirmatively adopted the Daubert or similar test for use in their courts, or had previously abandoned Frye and had developed a similar test;
	Fifteen states and the District of Columbia adhere to Frye;
	Six states have not rejected Frye in toto but apply the Daubert factors; and
	four states developed their own tests”).

109 See e.g., Donaldson v. Cent. Ill. Pub. Serv. Co., 767 N.E.2d 314, 324 (Ill. 2002).

110 E.g., People v. Kelly, 549 P.2d 1240 (Cal. 1976).

111 Harris v. Cropmate Co., 706 N.E. 2d 55, 64-65 (Ill. 1999)

112 ANDRE A.MOENSSENS ET AL., SCIENTIFIC EVIDENCE IN CIVIL AND CRIMINAL CASES 12 (5th ed. 2007).

113 463 U.S. 880, 884 (1983).

114 Id. at 884 n.1.

115 Id. at 885.

116 Id. at 920 (Blackmunn, Brennan and Marshall, J. dissenting).
The psychiatrist who testified in the case was Dr. Grigson, nicknamed “Dr. Death,” who became infamous for the frequency of his testifying for the prosecution in Texas death penalty sentencing trials (testifying in over 150 death penalty cases before retiring) and for the strength and eloquence of his testimony usually about the unlikelihood of murderers being rehabilitated.

Hugh Aynesworth, Texas “Dr. Death” Retires after 167 Capital Case Trials: Felt Murderers Would Kill Again, THE WASH. TIMES, Dec. 21, 2003, at A02.

For example, in the instant case, Dr. Grigson testified that there was a “one hundred percent and absolute” risk that Barefoot would commit violent crimes in the future.

463 U.S. at 919 (Blackmunn, Brennan and Marshall, J. dissenting).

Despite not having ever examined Barefoot personally, given hypothetical information matching Barefoot’s case facts, Dr. Grigson declared such a person would be a highly dangerous sociopath who could not be cured.
Id.

The jury sentenced Barefoot to death.

Dr. Grigson was later expelled by the APA for diagnosing mental illness without personally assessing the individual and for his testifying that he could predict with 100% accuracy the likelihood of violent recidivism.

Laura Bell, Groups Expel Psychiatrist Known for Murder Cases: Witness Nicknamed Dr. Death says License to Practice Won’t be Effected by Ethics Allegations, DALLASMORNING NEWS, July 26, 1995, at 21A.

117 Barefoot, 463 U.S. at 906.

118 Id. at 899.
There is some evidence that the majority may be right here. In a mock-juror design, researchers concluded that jurors’ were much more likely to question an expert’s testimony on future dangerousness after it was subject to cross-examination or a competing expert testified.

Daniel A. Krauss & Bruce D. Sales, The Effects of Clinical and Scientific Expert Testimony On Juror Decision Making in Capital Sentencing, 7 PSYCHOL. PUB. POL’Y & L. 267, 302 (2001).

These researchers also found that the mock jurors’ assessment of the purported defendant’s future dangerousness increased significantly after psychological expert testimony. Id. at 299-300.

119 Barefoot, 463 U.S. at 901.

120 Id. at 935-936.
See also

Erica Beecher-Moss, The Epistemology of Prediction: Future Dangerous Testimony and Intellectual Due Process, 60 WASH. & LEE. L. REV. 353, 361 (2003) (contending that the Barefoot decision erroneously obviated the Daubert-led evidentiary standards and has led to less truthful results as judges after Barefoot largely without challenge admit in capital sentencing trials a broad scope of expert testimony on future dangerousness that is inherently unreliable);

Mitzi Dorland & Daniel Krauss, The Danger of Dangerousness in Capital Sentencing: Exacerbating the Problem of Arbitrary and Capricious Decision-making, 29 LAW & PSYCHOL. REV. 63, 102-103 (2005)
(maintaining that expert opinions on future dangerousness in capital cases is so unreliable that it leads to arbitrary and capricious decisions).

121 Barefoot, 463 U.S. at 901 n.7.

122 Id. at 897-898.

123 Id. at 897.

124 Id. at 899.

125 The categorical approval of expert witness testimony on future dangerousness in capital cases was cited with approval in Payne v. Tennessee, 501 U.S. 808, 823 (1991)
(approving the prosecution’s use of victim impact statement in the sentencing phase of a capital trial).

126 Beecher-Monas & Garcia-Rill, supra note 22, at 311-312.

127 477 U.S. 399, 415 (1986) (citing Barefoot, 463 U.S. at 899).

128 Id.

129 Id. at 399 n.3.

130 Ake v. Oklahoma, 470 U.S. 68, 85 (1985).

131 Id. at 84.

132 Erica Beecher-Monas & Edgar Garcia-Rill, Danger at the Edge of Chaos: Predicting Violent Behavior in a Post-Daubert World, 24 CARDOZO L. REV. 1845, 1857 (2003).

133 Prentky et al., supra note 5, at 371-372.

134 John Monahan, A Jurisprudence of Risk Assessment: Forecasting Harm among Prisoners, Predators, and Patients, 92 VA. L. REV. 391, 405 (2006).

135 Fennel, supra note 48, at 52.

136 JOHN MONAHAN ET AL., RETHINKING RISK ASSESSMENT: THE MACARTHUR STUDY OF MENTAL DISORDER AND VIOLENCE 142 (2001).

137 Kevin S. Douglas & Jennifer L. Skeem, Violence Risk Assessment: Getting Specific about Being Dynamic, 11 PSYCHOL. PUB. POL’Y & L. 348, 352 (2005).

138 Fennel, supra note 48, at 52.

139 Fred S. Berlin et al., The Use of Actuarial in Civil Commitment Hearings to Predict the Likelihood of Future Sexual Violence, 15 SEXUAL ABUSE: J. OF RES. & TREATMENT 377, 378 (2003).

140 R. KARL HANSON, THE DEVELOPMENT OF A BRIEF ACTUARIAL RISK SCALE FOR SEXUAL RECIDIVISM, 1997-04, at 14 (1997), http://ww2.ps-sp.gc.ca/publications/corrections/199704_e.pdf.

141 Id. at 16.

142 Id. at 4.

143 Id.

144 Id. at 18.

145 Id. at 14.

146 Id. at 6.

147 Since the samples included no scores of 6, the experience table does not include separate risk estimates for it.

148 Id. at 16.

149 R. Karl Hanson, Leslie Helmus, & David Thornton, Predicting Recidivism Amongst Sexual Offenders, 1 LAW& HUM. BEH. [] (2009).

150

	ANDREW HARRIS, AMY PHENIX, R. KARL HANSON, & DAVID THORNTON, STATIC-99 CODING RULES REVISED – 2003, at 3 (2003), http://ww2.ps-sp.gc.ca/publications/corrections/pdf/Static-99-coding-Rul....
	R. Karl Hanson & David Thornton, Improving Risk Assessments for Sex Offenders: A Comparison of Three Actuarial Scales, 24 LAW& HUM. BEHAV. 119, 122 (2000).

151 The authors indicated they chose this name to highlight the tool was developed in 1999 and includes only static factors.

Hanson & Thornton, supra note 150, at 122. STATIC-2002 is a newer instrument, in which the authors altered some of the original 10 factors and added factors involving

	juvenile sex offending,
	rate of sexual offending,
	any young unrelated victims,
	any community supervision violation, and
	years free prior to index crime.

Amy Phenix, Dennis Doren, Leslie Helmus, R. Karl Hanson, & David Thornton, CODING RULES FOR STATIC- 2002 4, http://www.static99.org/pdfdocs/static2002codingrules.pdf.

However, STATIC-99 remains the most used actuarial tool in sexual predator cases

(Leslie Helmus, R. Karl Hanson, & David Thornton, Reporting STATIC-99 in Light of New Research on Recidivism Norms, 21 THE FORUM 38, 38 (2008)) and, indeed,

no cases available in LEXIS as of July 2009 included any reference to STATIC-2002.

152 Harris et al., supra note 150, at 67.

153 Id.

154 Id. at 69.

155 Id.

156 These numbers are from the original STATIC-99 forms. The authors recently (October 2008) updated the tables because of their recognition that recidivism numbers have generally dropped so they adjusted the original numbers.

Helmus et al., supra note 151, at 38.

However, the newer tables have been criticized for not being cross validated nor peer reviewed.
See generally
Brian R. Abbott, Applicability of the New STATIC-99 Experience Tables in Sexually Violent Predator Risk Assessments, 4 SEXUAL OFFENDER TREATMENT (2009).

157 Harris et al., supra note 150, at 4.

158 Id. at 5.

159 Id.

160 Stephen D. Hart, Actuarial Risk Assessment: Commentary on Berlin et al., 15 SEXUAL ABUSE: A J. OF RES. & TREATMENT 383, 385 (2003).

161 Berlin, et al., supra note 139, at 381 (2003).

162

	Reinhard Eher et. al., Failure of STATIC-99 and SORAG to Predict Relevant Reoffense Categories in Relevant Sexual Offender Subtypes: A Prospective Study, 8 SEXUAL OFFENDER TREATMENT 1 (2008);
	Jan Looman, Comparison of Two Risk Assessment Instruments for Sexual Offenders, 18 SEXUAL ABUSE: A J. OF RES. & TREATMENT 193 (2006);
	Grant T. Harris et al., A Multi-state Comparison of Actuarial Risk Assessment of Sex Offenders, 15 PSYCHOL. ASSESSMENT 413, 416 (2003).

163 Stephen D. Hart et al., 190 (supp. 49) Precision of Actuarial Risk Assessment Instruments: Evaluating the “Margins of Error” of Group v. Individual Predictions of Violence, 190 BRITISH J. OF PSYCHIATRY s60, s60 (2007).

164 LEAM A. CRAIG ET AL., ASSESSING RISK IN SEX OFFENDERS: A PRACTITIONER’S GUIDE 55 (2008).

165 Douglas & Skeem, supra note 137, at 348.

166

Douglas & Skeem, supra note 137, at 348;

John Matthew Fabian, To Catch a Predator, and then Commit him for Life: Sexual Offender Risk Assessment—Part Two, 33 CHAMPION 22, 37 (2009).

167 Rebecca L. Jackson & Derek T. Hess, Evaluation of Civil Commitment for Sex Offenders, 19 Sexual Abuse 425, 434 (2007).

168 Janus & Prentky, supra note 33, at 1497.

169 Daniel C. Murrie et al., Rater (Dis)Agreement on Risk Assessment Measures in Sexually Violent Predator Proceedings: Evidence of Adversarial Allegiance in Forensic Evaluation, 15 PSYCHOL. PUB. POL’Y & L. 19, 21 (2009).

170

	CAL. PEN. § 290.4(b) (2008) (presuming STATIC-99 for male offenders);
	VA. CODE ANN. § 37.2-900(B) (2009) (requiring STATIC-99 score of 4 if the offense involved a young child or 5 otherwise; alternatively permitting a clinical assessment if the state officials believes no scientific actuarial instrument is available).
	Two Virginia Supreme Court justices warned that this requirement will “encourage a battle between expert witnesses with regard to whether an inmate received ‘a correctly computed score’.
	Miles v. Commonwealth, 274 Va. 1, 1-2 (2007) (concurring opinion).

171 Prentky et al., supra note 5, at 371.

172 Prentky et al., supra note 5, at 360.

173 Id.

174 AM. ACAD. OF PSYCHIATRY & THE LAW, AMERICAN ACADEMY OF PSYCHIATRY AND THE LAW ETHICS GUIDELINES FOR THE PRACTICE OF FORENSIC PSYCHIATRY 3 (1993); AM. PSYCHIATRIC ASSOC., ETHICS PRIMER 69.

175 This article’s focus upon a social science does not mean that there are not similar issues with experts in the hard sciences testifying.

Michael J. Saks & David L. Faigman, Failed Forensics: How Forensic Science Lost its Way and How it Might Find it, 4 ANN. REV. OF L. & SOC. SCI. 149, 159 (2008).

For instance, In the 2008 Annual Review of Law and Social Science, experts who have worked with issues on science in the law for years summarized:

“It has been suggested that over the decades, forensic examiners have been pressured to make statements as extreme as they can get – 100 % certainty, zero error rates, identification to the exclusion of all others in the world – not because such statements grow out of science, but because they serve the needs of those who use their work,”

meaning the government.

Further, these experts observe, judges tend to be inclined to permit the evidence despite more current knowledge about the validity and reliability of the evidence because of tradition and deferring to prior appellate decisions.
Id. at 153.

176 Abbott, supra note 156, at [].

177 Id.

178 Id.

179 Id.

180 Hart et al., supra note 163, at s62.

181 Id.

182 David DeMatteo & John F. Edens, The Role and Relevance of the Psychopathy Checklist-Revised in Court: A Case Law Survey of U.S. Courts (1991-2004), 12 PSYCHOL. PUB. POL’Y & L. 214, 215 (2006).

183 R. Karl Hanson & Monique T. Bussiere, Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies, 66 J. OF CONSULTING & CLINICAL PSYCHOL. 348, 349 (1998).

184 Hanson & Thornton, supra note 150, at 126.

185 Id.

186 JACOB COHEN, STATISTICAL POWER ANALYSIS FOR THE BEHAVIORAL SCIENCES (2nd ed. 1988).

187 See Berlin et al., supra note 139, at 379.

188 Id.

189 CHRISTOPHER SLOBOGIN, PROVING THE UNPROVABLE: THE ROLE OF LAW, SCIENCE, AND SPECULATION IN ADJUDICATING CULPABILITY AND DANGEROUSNESS 107 (2007).

190 Harris et al., supra 150, at 413.

191 Slobogin, supra note 189, at 107.

192 R. KARL HANSON & KELLY MORTON-BOURGON, DEP’T OF THE SOLIC. GEN. OF CANADA, PREDICTORS OF SEXUAL RECIDIVISM: AN UPDATED META-ANALYSIS 32 (2004).

193 R. KARL HANSON & KELLY MORTON-BOURGON, DEP’T OF THE SOLIC. GEN. OF CANADA, THE ACCURACY OF RECIDIVISM RISK ASSESSMENTS FOR SEXUAL OFFENDERS: A META-ANALYSIS 32 (2007).

194 Id.

195 Hanson & Thornton, supra note 150, at 126.

196 Howard E. Barbaree et al. Evaluating the Predictive Accuracy of Six Risk Assessment Instruments for Adult Sex Offenders, 28 CRIM. JUST. & BEH. 490, 516 (2001).

197 Fennel, supra note 48, at 54.

198 Id.

199 Hanson & Thornton, supra note 150, at 125.

200 Fennel, supra note 48, at 54.

201 Helmus, et al., supra note 151.

202 R. Karl Hanson & Kelly Morton-Bourgon, The Accuracy of Recidivism Risk Assessments for Sexual Offenders: A Meta-Analysis of 118 Prediction Studies, 21 PSYCHOL. ASSESSMENT 1, 4 (2009).

203 Prentky et al., supra note 5, at 373.

204 Prentky et al., supra note 5, at 373-374.

205

Eher et. al., supra note 162
(testing STATIC-99 on child sexual abusers and rapists);

Looman, supra note 162
(finding variances of STATIC-99 on treated high risk offenders).

See also

	Abbott, supra note 156 (citing additional studies showing subgroup differences);
	R. Karl Hanson, Does STATIC-99 Predict Recidivism in Older Sexual Offenders? 18 SEXUAL ABUSE 343 (2006) (finding a base-rate of 2% in 5 years for over age 60, compared to 15% for under age 40).

206 FBI, CRIME IN THE UNITED STATES: BY REGION, GEOGRAPHIC DIVISION, AND STATE, 2006, 2007, (defining rape to include only forcible carnal knowledge of a female).

207

	Hanson & Morton-Bourgon, supra note 202, at 7.
	See also Hanson, Helmus & Thornton, supra note 149 (comparing samples and finding the U.S.-based sample had the lowest ROC of .61 compared to samples in Canada and the U.K.).

208 Fennel, supra note 48, at 58
(maintaining that Canada’s sexual assault rates are more than twice that of the U.S.).

209 Leam Craig et al., Limitations in Actuarial Risk Assessment of Sexual Offenders: A Methodological Note, 6 BRITISH J. OF FORENSIC PRACTICE 16, 18 (2004).

210 LEAM CRAIG ET AL., ASSESSING RISK IN SEXUAL OFFENDERS 41 (2007) (providing formula for result).

211 Prentky et al., supra note 5, at 374.

212 Eher et al., supra note 162.

213 Peter R. Jones et al., Risk Classification and Juvenile Dispositions: What is the Start of the Art?, 79 TEMPLE L. REV. 461, 495 (2006).

214 See generally

	TOM JAGTENBERG, THE SOCIAL CONSTRUCTION OF SCIENCE: A COMPARATIVE STUDY OF GOAL DIRECTION, RESEARCH EVOLUTION AND LEGITIMATION (1983) (arguing that researchers do not merely find knowledge in external ways, but that science is socially constructed through the result of goal oriented action by the researchers and its accreditation is also negotiated);
	ERICA BEECHER- MONAS, EVALUATING SCIENTIFIC EVIDENCE: AN INTERDISCIPLINARY FRAMEWORK FOR INTELLECTUAL DUE PROCESS 38 (2007) (recognizing that “scientific paradigms are – like legal paradigms – socially constructed through a process of discussion and consensus-building about theories, experimental methods, instrumentation, and validation”).

215 Richard Wollert, Low Base Rates Limit Expert Certainty when Current Actuarials are used to Identify Sexually Violent Predators: An Application of Bayes’s Theorem, 12 PSYCHOL. PUB. POL’Y & L. 56, 58 (2006).

216 Harris et al., supra note 150, at 416. See also Barbaree et al. supra note 196, at 499 (reporting correlation coefficients for inter-rate reliability of .94 for RRASOR and .90 for STATIC-99).

217 Murrie et al., supra note 169, at 39.

218 Id. at 40
(cautioning that these results are not definitive to show litigant bias).

219 Douglas P. Boer, Ethical and Practical Concerns Regarding the Current Status of Sex Offender Risk Assessment, 3 SEXUAL OFFENDER TREATMENT 1 (2008).

220 Pamela R. Blair et al., Is There an Allegiance Effect for Assessment Instruments? Actuarial Risk Assessment as an Exemplar, 13 CLINICAL PSYCHOL.-SCI. & PRAC. 346, 354 (2008).

221 Id. at 353.

222 Hanson & Morton-Bourgon, supra note 202, at 7.

223 Harris et al., supra note 150, at 3.

224

	Douglas Mossman, Another Look at Interpreting Risk Categories, 18 SEXUAL ABUSE: A J. OF RES. & TREATMENT 41, 60-61 (2006);
	Shoba Sreenivasan et al., Predicting the Likelihood of Future Sexual Recidivism: Pilot Study Findings from a California Sex Offender Risk Project and Cross Validation of STATIC-99, 35 J. OF AM. ACAD. OF PSYCH. & L. 454, 466 (2007).

225 U.S. v. Fields, 04-50393 (5th Cir. 2005), http://www.apa.org/psyclaw/us-v-fields.pdf, 12-13.

226 AM. PSYCHIATRIC ASSOC., ASSESSING THE RISK OF VIOLENCE: POSITION STATEMENT, 200109,
http://www.psych.org/Departments/EDU/Library/APAOfficialDocumentsandRelated/
PositionStatements/200109.aspx.

227

	Hart, supra note 160, at 387;
	Wollert, supra note 215, at 72-73 (arguing that the current actuarial tests “are of limited value” for civil commitment hearings in large part because of their error rates, in particular for offenders other than young adults);
	Scott I. Vrieze & William M. Grove, Predicting Sexual Recidivism, 32 LAW & HUMAN BEH. 266, 276 (2008);
	Robert A. Prentky, Howard Barbaree, Eric Janus, Barbara K. Schwartz & Martin P. Kafka, Sexually Violent Predators in the Courtroom: Science on Trial, 12 PSYCHOL. PUB. POL’Y & L. 357, 383 (2006);
	Boer, supra note 219 (arguing that the only thing risk researchers agree upon is the general description of types of risk assessments, such as clinical, actuarial, and structured professional judgments).

228 Wollert, supra note 215, at 78.

229

	Charles P. Ewing, “Dr. Death” and the Case for an Ethical Ban on Psychiatric and Psychological Predictions of Dangerousness in Capital Sentencing Proceedings, 8 AM. J. L. &MED. 407, 418 (1983);
	Boer, supra note 219;
	JOHN MONAHAN, THE CLINICAL PREDICTION OF VIOLENT BEHAVIOR 13-16 (1981) (contending that the extreme deprivation of liberty that civil commitment causes raises the spectre of ethical concerns for psychologists and psychiatrists participating in the legal system);
	Prentky et al, supra note 5, at 383;
	Hart et al., supra note 180, at s64.

230 Theodore Donaldson & Richard Wollert, A Mathematical Proof and Example that Baye’s Theorem is Fundamental to Actuarial Estimates of Sexual Recidivism Risk, 20 SEXUAL ABUSE: A J. OF RES. & TREATMENT 206, 214 (2008).

	231 Berlin et al., supra note 139, at 382 (arguing it is dangerous precedent to use group membership as a corollary to individual risk assessment).
	See also Reinhard Eher et. al., Failure of STATIC-99 and SORAG to Predict Relevant Reoffense Categories in Relevant Sexual Offender Subtypes: A Prospective Study, 8 SEXUAL OFFENDER TREATMENT 1 (2008) (stating that even if the instruments are statically confirmed as better than chance, their practical value in legal settings should be questioned).

232 Janus & Prentky, supra note 2, at 90.

233 Beecher-Monas & Garcia-Rill, supra note 22, at 306.

234

	In re Stevens, 803 N.E.2d 1036, 1044-1045 (Ill. Ct. App. 2004) (ruling, in the alternative, even if a scientific principle, it is not novel, has been generally accepted by professionals who assess future dangerousness of sex offenders, and was subject to cross-examination);
	People v. Therrian, 113 Cal.App.4th 609, 616 (2004);
	In re Thorell, 72 P.3d 708, 755 (Wash. 2003);
	In re Taylor, 134 P.3d 254 (Wash. App. 2006).

235

	State v. Fields, 35 P.3d 82, 88 (Ariz. 2001);
	Wilson v. Phillips, 73 Cal.App.4th 250 (1999).

236

	State v. Fields, 35 P.3d at 89.
	See also People v. Miller, 2005 Cal.App.Unpub.LEXIS 3130, at *15 (stating that the expert’s testimony about using RRASOR and STATIC-99 “did not carry a misleading aura of infallibility”).

237

	People v. Castillo, 170 Cal.App.4th 1156, 1165 (2009) (describing the state expert as “applying the scientifically validated ‘Static-99’ analysis to predict the likelihood that Castillo would commit future sex offenses”);
	In re J.Z.M., 2008 N.J.Super.Unpub.LEXIS 1343, at *8 (describing STATIC-99 as a “well-validated actuarial instrument”).

238 Garcetti v. Superior Court, 102 Cal. Rptr. 2d 214, 240 (2001).

239

	In re Simons, 821 N.E.2d 1184 (Ill. 2004);
	Ortega-Mantilla v. Florida, 898 So 2d 1164, 1168 (Fla. 2005);
	In re Rudolph, 2004 Wash.App.Unpub.LEXIS 1203, at *4n.2;
	Lee v. State, 854 So.2d 709, 712 (Fla. Ct. App. 2003);
	In re R.S. 801 A.2d 219, 220 (N.J. 2002);
	In re Holtz, 653 N.W.2d 613, 619 (Iowa App. 2002);
	In re Rosado, 2009 N.Y. Misc. LEXIS 1741, at 56.

240 In re J.P., 772 A.2d 54, 62 (N.J. App. Ct. 2001) (excluding STATIC-99).

241 Ortega-Mantilla, 898 So.2d, at 1168.

242 In re Simons, 821 N.E.2d at 1192.

243 Id. at 1193.

244 Roeling v. State, 880 So.2d 1234 (Fla. App. 2004).

245 In re Simons, 821 N.E.2d at 1193.

246 Id.

247 2008 U.S.Dist.LEXIS 1387, 1387 (D. Mass. 2008)
(basing decision solely upon precedent in In re Simons).

248 In re Goddard, 144 S.W.3d 848, 853 (Mo. Ct. App. 2004).

249

	In re Shearer, 2006 Iowa App.LEXIS 34, at *12;
	In re Ashlock, 2002 Iowa App.LEXIS 1060, at *12.

250 In re R.S., 773 A.2d 72, 90 (N.J. Super. 2001)
(concluding that since Barefoot accepted the reliability of clinical judgment as to future dangerousness, then actuarial evidence must also be admissible).

251 State v. Romley, 35 P.3d 82, 88 (Ct. App. Ariz. 2001)
(acknowledging state’s continued allegiance to Frye and denying Frye applied to the evidence).

252

	In re Thorell, 72 P.3d 708, 755 (Wash. 2003);
	People v. Litmon, 2002 Cal.App.Unpub.LEXIS 8195, at 56-57;
	In re Hauge, 812 N.E.2d 571, 573 (Ill. App. 2004).

253

	Orozco v. Ahlin, 2008 U.S.Dist.LEXIS 108797, at *51 (D. Cal.);
	In re Field, 813 N.E.2d 319 (Ill. App. 2004).

254 Clotfelter, 2002 WL 31116960, at *10 (Cal. App.).

255 In re P.F., 712 N.W.2d 610, 616 (N.D. 2006), aff’d, 744 N.W.2d 724 (2008).

256 See Burton v. State, 884 So.2d 1112, 1118 (Fla. Ct. App. 2004)
(arguing that humans’ predictions about other human’s behavior is likely novel and more care should be taken in defining the relevant scientific community beyond the small set of professionals who profit from the tests they proliferate).

257 Lee v. State, 845 So.2d 709, 717 (Fla. Ct. App. 2003) (concurring opinion).

258 In re Burton, 884 So 2d 1112, 1119-1120 (Fla. Ct. App. 2004).

259 In re Murrell, 215 S.W.3d at 117 (dissenting opinion).

260

	In re Anderson, 730 N.W.2d 570, 583-590 (N.D. 2007) (dissenting opinion) (providing citations to peer reviewed studies and lamenting about the uncritical use of the actuarial assessments which he argued had become substitutes for judicial judgments);
	In re Murrell, 215 S.W.3d at 115.

261 512 F.3d 421 (7th Cir. 2008).

262 Id. at 424.

263 Id.

264 Id. at 425 (citing Janus & Prentky).

265 In re Simons, 821 N.E.2d, at 1194.

266 Commonwealth v. Parks, 2005 Mass.Super.LEXIS 225, at *12.

267

	People v. Myers, 2005 Cal.App.Unpub.LEXIS 4872, at *10;
	Black v. Voss, 557 F.Supp.2d 1100, 1108 (D. Cal. 2008) (quoting lower court);
	Carmony v. Hunter, 2006 U.S.Dist.LEXIS 92099, at *51 (D. Cal. 2006).

268 2006 R.I.Super.LEXIS 187.

269 Id. at *3.

270 Id. at *2.

271 Id. at *8.

272 Id. at *8.

273 Id. at *9.

274

	ARIZ. REV. STAT. § 36-3701(b)(7) (2009);
	CAL. W & I § 6600 (2009);
	MASS. GEN. LAWS ch. 6, § 178C (2009);
	PA. CONS. STAT. ANN. § 6403(a)(3) (2009);
	S.C. CODE ANN. § 44-48-30(1)(b) (2008);
	TEX. HEALTH & SAFETY CODE ANN. § 841.003(a)(2) (2009);
	VA. CODE ANN. 37.2-900 (2009).

275 MO. REV. STAT. § 632.480(5) (2009).

276

	275 ILL. COMP. STAT. ANN. § 207/15(b)(5).
	Wisconsin’s legislature changed its standard from “substantially probable” to “likely.” 2003 Wisc. Act § 183, s2.

277 MINN. STAT. § 253B.02(18)(b) (2008).

278

	IOWA CODE § 229A.2(4) (2008);
	WISC. STAT. § 980.01(1m) (2008).

279

	FLA. STAT. ANN. § 394.912(4) (2008);
	KANSAS STAT. ANN. § 59-29a02(c) (2008);
	NEB. REV. STAT. ANN. § 71-174.01(2) (2009);
	N.J. STAT. ANN. § 30:4-27.26 (2009).
	With a slight variation, N.H. REV. STAT. ANN. § 135-E:2(XI) (2009).

280 Abbott, supra note 156, at [].

281 Cooley v. Superior Court, 57 P.3d 654, 658 (2002).

282 Martin v. Reinstein, 987 P.2d 779, 800 (Ariz. App. 1999).

283

Fennel, supra note 48, at 40. He cites

	RON SUSKIND, THE ONE PERCENT DOCTRINE: DEEP INSIDE AMERICA’S PURSUIT OF ITS ENEMIES SINCE 9/11 62 (2006) (referring to then Vice-President Dick Cheney’s stance that preventive measures were justifiable if there were even a 1% chance of a security threat) and
	George G. Woodsworth & Joseph B. Kadane, Expert Testimony Supporting Post-Sentence Civil Incarceration of Violent Sexual Offenders, 3 LAW, PROBABILITY & RISK 221, 226 (2004).

284

	N.Y. CORRECT. LAW § 168-l (McKinney 2009);
	MASS. GEN. LAWS ch.6 § 178K(2) (2008);
	MONT. CODE ANN. § 46-23-509 (2009);
	OKLA. STAT ANN. Tit. § 582.5 (West 2009).

285 In re Ewoldt, 634 N.W.2d 622, 624 (Iowa 2001).

286 Id. See also In re Pierce, 748 N.W.2d 509, 513 (Iowa 2008)
(determining the state need not show immediate risk, so measures of lifetime risk were acceptable).

287

	In re Murrell, 215 S.W.3d 96, 105 (Mo. 2007);
	Beasley v. Molett, 95 S.W.3d 590, 600 (Tex. App. 2002).

288 See also In re Wilson, 2007 Iowa App. LEXIS 1333, at *5.

289 In re K.S., 2008 N.J. SuperUnpub.LEXIS 627, at *10.

290 Id.

291

	People v. Therrian, 113 Cal.App.4th 609, 612 (2003);
	In re Wilson, 2007 Iowa App.LEXIS 1333, at *2;
	In re Murrell, 215 S.W.3d 96, 109 (Mo. 2007);
	People v. Deberry, 2008 Cal.App.Unpub.LEXIS 11, at *8n.3;
	In re Harless, 2007 Iowa App.LEXIS 66, at *6;
	In re Rush, 2009 N.D. 102;
	In re Lalor, 2003 WI App. 68, P13 ( 2003);
	In re G.R.H., 758 N.W.2d 719, 723 (N.D. 2008).

292 In re Taylor, 134 P.3d 254, 257 (Wash. Ct. App. 2006)
(based on STATIC-99 score of 52% re-offense rate in 15 years).

293 Cooley, 58 P.3d at 659.

294

	State v. Twiggs, 2007 Ohio 1302, at *11 (Ohio Ct. App.) (acknowledging lower court’s belief that the STATIC-99 score was the “most clear and convincing evidence” to establish sexual predator status for registration);
	State v. Dyer, 2007 Ohio 4901, at *25 (Ohio Ct. App.) (stating lower court was heavily influenced by state experts agreeing on high STATIC-99 scores in registration case).
	State v. Butler, 2006 Ohio 4492, at *9 (Ohio Ct. App.) (indicating that the STATIC-99 52% risk “weighed heavily” in the lower court’s determination of sexual predator status in registration case).

295 People v. Flores, 144 Cal.App.4th 625, 630 (2006).

296

	Garcetti, 102 Cal. Rptr. 2d at 228 (noting state expert deriving a 52% score from STATIC-99 then adding 5 percentage points based on other risk factors), rev’d by Cooley, 57 P.3d;
	Commonwealth v. Cowen, 897 N.E.2d 586, 590n.3 (2008).

297

	U.S. v. Shields, 597 F. Supp.2d 224, 236 (D.Mass. 2009);
	People v. Stewart, 2003 Cal. App.Unpub.LEXIS 4207, at *8;
	People v. Pacini, 2003 Cal.App.Unpub.LEXIS 325, at *34.

298 People v. Langhorne, 2005 Cal.App.Unpub.LEXIS 11150, at *13 ( 2005)

299 Hart et al., supra note 163, at s64.

300 Pentky et al, supra note 5, at 380.

301 Pedroza v. State, 773 So.2d 639, 641 n.3 (Fla. Ct. App. 2000).

302 Id. at 643.

303

	People v. Field, 813 N.E.2d 319, 322, 325 (Ill. Ct. App. 2004);
	People v. Avilla, 2008 Cal.App.Unpub.LEXIS 6125, at *23.
	People v. Wallace, 2006 Cal.App.Unpub.LEXIS 1039, at *5;
	People v. Jackson, 2004 Cal.App.Unpub.LEXIS 2390;
	In re Commitment of R.S., 339 N.J.Super. 507, 524 (2001).
	See also People v. Taylor, 830 N.E.2d 855, 857 (Ill. App. Ct. 2005) (citing state expert that RRASOR and STATIC-99 are each “a reliable tool” and generally accepted, while defense expert testified they are not generally accepted, but “young pioneering efforts of novel science” and since not tested in diverse samples, not “settled science”)

304 In re R.S., 773 A.2d 72, 82 (N.J. Super. 2001)
(also implying the use of them were an ethical problem).

305 People v. Stewart, 2003 Cal.App.Unpub.LEXIS 4207, at *9.

306

	U. S. v. Abregana, 574 F. Supp.2d 1145, 1155 (D. Hawaii) (state expert disagreeing with two defense experts with a 2 point gap in STATIC-99 scores (state expert assigning a 5) and a one point gap in RRASOR scores (state expert assigning a 4) because of a disagreement in what to base as the index offense to factor in prior to Index offense);
	In re Good, 745 N.W.2d 88, 88 (Wis. Ct. App. 2008) (experts differing on STATIC-99 and RRASOR scores because of disagreement about whether to count an act as a sexual violence).
	Kilgore v. Hurst, 64 Va.Cir. 376 (2004) (noting disagreements between state and defense experts on RRASOR concerning whether to count a prison sex infraction and on STATIC-99 as to the factor of not having lived with a partner for 2 years considering his youth and incarceration);
	State v. McKee, 160 Cal.App.4th 1517, 1552 n.23-25 (2008) (using STATIC-99, state experts scoring a 3, defense expert a 2);
	Sigman v. Rogers, 2008 U.S.Dist.LEXIS 71127, at *23 (summarizing trial judge’s review of the experts’ scoring on STATIC-99 as being “either a four, a five, a six, or a seven, depending how you read the directions for scoring,” with the state arguing a minimum of six and the defense expert conceding as high as five).

307 People v. Rose, 2007 Cal.App.Unpub.LEXIS 10017, at *8.

308 People v. Torres, 98 Cal.App.4th 205, 209 (2002).

309 See, e.g., FRE 704.

310

	In re Stringer, 2006 Minn.App.Unpub.LEXIS 831, at *10;
	State v. Bieck, 2004 Ohio 3562, at *8 (Ct. App.).

311

	In re Savala, 2004 Wash.App.LEXIS 1443, at *10;
	State v. Mruk, 2006 Ohio 590, at *5 (Ct. App.).

312 In re Rustman, 2006 Minn.App.Unpub.LEXIS 683, at *6.

313 In re Simons, 821 N.E.2d at 1188.

314

	People v. Johndrow, 2009 Cal.App.Unpub.LEXIS 1077, at *4-5 (2009) (indicating expert based the assessment of “high risk” on STATIC-99 and another actuarial instrument);
	In re L.X.B., 2009 N.J.Super.Unpub.LEXIS 1461, at *3 (noting state expert basing “high risk” judgment on STATIC-99 score of 8);
	In re Simons, 821 N.E.2d 1184, 1187 (Ill. 2004) (based on multiple actuarial tests, including STATIC-99);
	In re Taylor, 830 N.E.2d 855, 857-858 (Ill. App. 2005) (describing state experts stating that the actuarial results, including RRASOR and STATIC-99 “indicated that [he] was likely to re-offend”).

315 State v. Carter, 2007 Ohio 2644, at 14 (Ohio Ct. App. 2007).

316

	People v. Pacini, 2003 Cal.App.Unpub.LEXIS 325, at *34;
	People v. Castillo, 170 Cal. App. 4th 1156 . 1165 (2009).
	People v. Jackson, 2004 Cal.App.Unpub.LEXIS 2390, at *6;
	Garcetti v. Superior Court, 85 Cal.App.4th 508, 523 (describing the STATIC-99 tables as establishing the minimum risk for re-offending);
	In re Pierce, 748 N.W.2d 509, 513 (Iowa 2008) (state expert arguing the STATIC-99's 52% re-offense rate was “conservative” since victims under-report).

317

	People v. Hernan, 2008 Cal.App.Unpub.LEXIS 7697;
	Shields, 597 F.Supp.2d at 238-239;
	People v. Allen, 44 Cal.4th 843, 853 (2008);
	Huftile v. Hunter, 2009 U.S.Dist.LEXIS 5311, at 16 (E.Dist. Cal.) (citing state expert referring to another expert as believing that the STATIC-99 experience rates would double if charges* were considered in addition to convictions).

318 Hanson & Thornton, supra note 150, at [].

319 In re Shearer, 2006 Iowa App.LEXIS 34, at *11 (2006).

320 In re Civ. Commitment of Luhmann, 2007 Minn.App.Unpub.LEXIS 890, at *10 (2007)
(noting expert also testifying the defendant’s high scores for likelihood of recidivism was supported by his socio-economic status).

321

	State v. McKee, 160 Cal.App.4th 1517, 1552 n.23 (2008).
	See also In re Stokes, 745 N.W.2d 631, 633 (N.D. 2008) (while one state expert used RRASOR and STATIC-99, other state expert declined to use those tests arguing they would be “spuriously low” as applied to the defendant as previous allegations that he tried to talk to adolescents did not result in official charges).

322 People v. Langhorne, 2005 Cal.App.Unpub.LEXIS 11150, at 17.

323

	In re Burgess, 147 S.W.3d 822, 829 (Mo. App. 2004) (upholding finding the “more likely than not” standard met despite actuarial results far less than 50% based on the defendant’s failure to participate in treatment or assessment);
	People v. Clotfelter, 2002 WL 31116970, at 8 (Cal. App. 2002) (state expert, while admitting that STATIC-99 had its “shortcomings” also stated she believed the STATIC-99 instrument under-estimated the risk as to the defendant because of the presence of other factors).

324

	State v. Garner, 2008 Ohio 1949;
	State v. Vanek, 2007 Ohio 6194, at 12; In re Hehn, 745 N.W.2d 631, 636 (N.D. 2008) (“We have previously made clear that we will not engage in a ‘contest over percentage points’ when it comes to determining whether an individual meets the requirements for civil commitment”);
	People v. Murphy, 2001 Cal.App.Unpub.LEXIS 2770, at *19 (despite state’s experts using RRASOR and STATIC-99 to get risks of less than 50%, court ruled experts could use additional factors when they opined they believed the risk to be greater than 50%);
	State v. McKinniss, 795 N.E.2d 160, 163 (Ohio App. 2003) (confirming a sexual predator designation despite a low risk from RRASOR);
	In re M.D., 757 N.W.2d 559, 562 (N.D. 2008) (declining to find that low actuarial scores was dispositive).

325 In re J.R., 762 N.W.2d 305, 326 (Neb. 2009).

326

	State v. Johns, 2004 Ohio 5124, at *10 (App.).
	Contra Commonwealth v. Monroe, 2008 Mass. Super. LEXIS 480, at 23 (ruling in favor of the defendant where the state’s expert conceded a 0 score on STATIC-99, the court found the expert’s clinical assessment that the defendant was likely to recidivate anyway* was unsupported by objective evidence).

327

	Cooley, 58 P.3d at 660 (state expert “conceding” that STATIC-99 had “only moderately reliable as an overall instrument,” “but is the best we can come up with” and defense expert noting it was “weak and inexact,” has no know base rate of recidivism, overlapping predictors that might overestimate risk, and has not been standardized to Hispanic population);
	Therrian, 113 Cal.App.4th at 613 (state expert testifying the developers of STATIC-99 “never said it was perfect” while defense expert calls it a work-in-progress and its reliability unknown);
	People v. Taylor, 830 N.E.2d 855, 857 (Ill. App. Ct. 2005) (state expert stating that RRASOR and STATIC-99 are each “a reliable tool”, while defense expert testifies they are “young pioneering efforts of novel science” and since not tested in diverse samples, not “settled science”);
	In re Traynoff, 831 N.E.2d 709, 714 (2005) (state expert noting that while STATIC-99 was a “work in progress” it was strongly relied upon, while defense expert noted there was controversy within the mental health field on using actuarial tools and described them not as tests with manuals but as research instruments).

328 Shields, 597 F.Supp.2d at 238-239
(indicating disagreement on STATIC-99’s estimation whereby state expert concludes age is not a protective factor in this case to believe the tool over-estimates the defendant’s risk while the defense expert concludes the opposite).

329 People v. Thomas, 2002 Cal.App.Unpub.LEXIS 11548, 8.

330

	People v. Avila, 2008 Cal.App.Unpub.LEXIS 6125, at *23;
	People v. Rose, 2007 Cal.App. 10017, at 14-15;
	People v. Rose, 2007 Cal.App. 10017, at *14-15 (defense expert testifying that STATIC-99 “only accounts for roughly 11 percent of the reasons why someone sexually re-offends,” that STATIC-99 was mostly based on young adult samples of child molesters in England and Canada);
	People v. Thomas, 2002 Cal.App.Unpub.LEXIS 11548, at 8 (citing defense expert clarifying that the actuarial tools provided group* data, not individual assessment, and that STATIC-99 was based on a highly disturbed group thereby should be used cautiously).

331 People v. Hernan, 2008 Cal.App.Unpub.LEXIS 7697, at *7
(defense expert testifying STATIC-99 may over-predict sexual recidivism for the U.S. population by 3 or 4 times).

332 State v. Fowler, 694 N.W.2d 446, 451 (Ct. App. Wisc. 2005).

333

	People v. Vercolio, 843 N.E.2d 417, 420 (Ill. App. Ct. 2006);
	People v. Edmonton, 103 Cal.App.4th 557, 562 (2002).

334

	In re Stevens, 803 N.E.2d 1036, 1043 (Ill. App. Ct. 2004);
	In re Sandry, 857 N.E.2d 295, 302 (Ill. Ct. App. 2006).

335

	People v. Jackson, 2004 Cal.App.Unpub.LEXIS 2390, at *11-12 (defense expert criticizing STATIC-99 as having a wide margin for error, is systemically biased because it fails to consider protective factors, is biased against older offenders, and has not been validated on African-Americans);
	People v. Wolfenberger, 2003 Cal.App.Unpub.LEXIS 9850, at *12 (defense expert stating that STATIC-99 had not been validated on that state’s population and RRASOR was “worthless”);
	Cooley, 58 P.3d at 660 (defense expert stating has not been normed on Hispanics);
	People v. Flores, 144 Cal. App. 4th 625, 630 (2006) (defense expert stating inapplicable as not normed on castrated men).

336 Pritchett v. Hunter, 2008 U.S.Dist.LEXIS 106899, at *12.

337

	Defendants have not succeeded in challenging the actuarial instruments as not relevant since they are based on group data rather than individual risk.
	See, e.g., In re Murrell, 215 S.W.3d 96, 112 (Mo. 2007).

338

	Contra State v. Garner, 2008 Ohio 1949, at *45 (citing precedence that STATIC-99 cannot provide an individualized assessment of future offending);
	In re Wilson, 2007 Iowa App.LEXIS 1333, at 5 (describing the actuarial instruments as comparing the defendant to “a group of people with shared characteristics”);
	In re Murrell, 215 S.W.3d 96, 113 (Mo. 2007) (ruling that it was improper for the expert to use the actuarial percentage as relating directly to the defendant’s chance of re-offending, but that this was not dispositive as the defense did not object).

339 People v. Hubbart, 88 Cal.App.4th 1202, 1214 (2001).

340 In re Taylor, 134 P.3d 254, 257 (Wash. Ct. App. 2006).
See also

	In re Murrell, 215 S.W.3d 96, 111 (Mo. 2007) (referring to expert claiming the actuarial tool was “relevant to the risk of recidivism for the individual as well as the test group”);
	People v. Troglin, 2005 Cal.App.Unpub.LEXIS 9649, at *2 (2005) (describing STATIC-99 as an “actuarial tool that estimates an individual's risk for sexual re-offense”);
	People v. Suarez, 2008 Cal.App.Unpub.LEXIS 9144, at *5 (referring to expert describing STATIC-99 as measuring the “likelihood that a person will engage in sexually violent behavior);
	Therrian, 113 Cal.App.4th at 612 (describing “the total score of the [STATIC-99] is a percentage chance of the defendant’s likelihood of being convicted for a future sexual offense”).

341 In re Burton, 884 So.2d 1112, 1113 (Fla. Ct. App. 2004).

342

	Cooley v. Superior Court, 58 P.3d 654, 659 (Cal. 2002) (“score of 6 on the STATIC-99 test put him in the ‘high risk’ category for re-offense, with a 52 percent minimum risk of re-offense within 15 years”);
	Therrian, 113 Cal.App.4th at 612 (opinion describing the STATIC-99 total score being the “percentage chance of the defendant’s likelihood of being convicted for a future sexual offense);
	Helm v. Ahlin, 2009 U.S.Dist.LEXIS 41572, at *7 (D. Cal. 2009) (summarizing state expert’s testimony that the STATIC-99 “score indicates [Petitioner] has "high risk" of re-offending”);
	Garcetti v. Superior Court, 85 Cal.App.4th 508, 525 (2000) (quoting expert as testifying that after using the actuarial tools, the defendant “comes out over [a] 50 percent’ recidivism risk”).
	People v. Zinlu, 2007 Cal.App.Unpub.LEXIS 8730, at *5 (stating the “STATIC-99 score indicated that he had a 39 percent risk of re-offense in five years”);
	People v. Tribble, 2004 Cal.App.Unpub.LEXIS 10133, at *5 (indicating that the STATIC-99 score translated to a risk of defendant re-offending);
	In re Anderson, 730 N.W.2d 570, 581 (N.D. 2007) (describing RRASOR as “used to determine that [he] will engage in future sexually predatory conduct”).

343 In re N.H., 874 N.Y.S.2d 733, 740 (2008).

344 People v. Taylor, 830 N.E.2d 855, 857-858 (Ill. App. 2005).

345 State v. McKee, 160 Cal.App.4th 1517, 1552 n.23 (2008).

346 Harris et al., supra note 150.

347

	State v. Vanek, 2007 Ohio App.LEXIS 5433, at *7;
	State v. Ellison, 2002 Ohio 4024, at 5 (Ct. App.) (ruling that STATIC-99 evidence could “be at odds with Ohio’s statutory scheme” which requires an individualized* determination);
	In re Civil Commitment of K.S., 2008 N.J.Super.Unpub.LEXIS 627, at* 9 (2008).

348 People v. Field, 813 N.E.2d 319, 322 (2004).
The expert stated that he used the Hanson & Bussiere meta-analysis, which he described as itself an actuarial instrument, and concluded that the defendant having 7 of the 22 identified correlates in the meta-analysis was indicative of the defendant’s future dangerousness.
However, the meta-analysis he cites is not intended as an instrument and, indeed, the authors themselves describe that work as “a quantitative review of the sexual offender recidivism literature.”
Hanson & Bussiere, supra note 183, at 349.
While Hanson and Bussiere discuss the various (far more than 22) correlates with sexual recidivism, they also indicated that “we do not recommend simply summing the items.” Id. at 358.

349 In re Sandry, 857 N.E.2d 295, 287, 302 (Ill. App. 2006).
See also
B.W. v. State, 2009 Ind.App.LEXIS 967, at *7n.6
(upholding registration requirement with expert basing risk assessment in part on STATIC-99 despite defendant being a juvenile).

350 In re Anderson, 730 N.W.2d 570, 582 (N.D. 2007).

351

	In re Stevens, 803 N.E.2d 1036, 1043 (Ill. Ct. App. 2004);
	In re Simons, 821 N.E.2d 1184, 1187 (Ill. 2004) (attributing such category to the STATIC-99 “creators”).

352 In re Lieberman, 378 Ill.App.3d 585, 596 (2007).

353 An expert testified that a score of 4 on STATIC-99 translated to “high risk” (In re Commitment of Fisher, 164 S.W.3d 637, 642 (Tex. 2005)), despite STATIC-99 classifying a 4 as “medium-high.”

354 Therrian, 113 Cal.App.4th at 613.

355

	In re Murrell, 215 S.W.3d 96, 109 (Mo. 2007) (testifying expert described STATIC-99 as “developed by looking at the characteristics of approximately 4,000 sex offenders to see which characteristics they possessed were associated with the likelihood of re-offense within 15 years, as defined by reconviction”);
	People v. Flores, 144 Cal.App.4th 625, 629 (2006) (stating the expert described STATIC-99 as being based on data from 31,000 sex offenders);
	People v. Torres, 98 Cal.App.4th 205, 210 n.4 (2002) (indicating expert distinguished RRASOR and STATIC-99 declaring that RRASOR was not developed using actual recidivism statistics, but that STATIC-99 was);
	Shields, 597 F.Supp.2d at 237 (describing state expert as testifying that RRASOR’s 5-year rate of 49.8% was the observed rate while only the 10-year rates were extrapolated);
	In re Simons, 821 N.E.2d 1184, 1187 (Ill. 2004) (describing state expert as testifying STATIC-99 was “based upon a study of thousands of sex offenders from England, Canada, and the United States”).

356 See also

	People v. Elam, 2003 Cal.App.Unpub. LEXIS 5621, at *8 (stating that expert testified that defendant’s score was a “6 out of 6” on STATIC-99);
	Cooley, 57 P.3d at 659 (describing expert as attributing to STATIC-99 a factor that considers “whether the most recent sex offense involved the use of violence”).
	In re R.S., 773 A.2d 72, 79 (N.J. Super. 2001) (state expert testifying that STATIC-99 included a factor about substance abuse).

357

	Therrian, 113 Cal.App.4th at 612 (indicating the STATIC-99 experience table is the risk of conviction on a new sexual offense);
	State v. Hornack, 2003 Ohio 426, at *8 (Ohio Ct. App.) (referring to state expert stating that STATIC-99 experience tables do not include charges).

358 Black v. Voss, 557 F.Supp.2d 1100, 1106 (D. Cal. 2008)
(defense expert testifying she used RRASOR but not STATIC-99 because the latter measures risk for criminal offending and not sexual deviance).

359

	People v. Clotfelter, 2002 WL 31116970, at *7 (Cal. App. 2002) (noting state expert had previously scored the defendant with a 3 on the STATIC-99, but in preparing for trial realized she could have added 2 more points because of evidence of prior sex offenses, which ended up meaning a 13 percent recidivism rate rising to 40 percent);
	In re J.P., 772 A.2d 54, 59 (N.J. App. Ct. 2001) (referring to state expert who admitted scoring STATIC-99 incorrectly by double counting an offense);
	Miles v. Commonwealth, 272 Va. 302, 308 (2006) (state conceded expert incorrectly by assigning an additional point in RRASOR that was not warranted by the number of prior convictions resulting in defendant’s release from civil commitment as the statute specifically required a minimum RRASOR score);
	Shelton v. Commonwealth, 645 S.E.2d 914, 915 (Va. 2007) (state expert initially giving defendant a RRASOR score of 5, then testifying at the probable cause hearing it was wrong and should be a 2, but then at trial adjusting the score to 3);
	People v. Allen, 44 Cal.4th 843, 854 (2008) (state expert originally assigning a 6 on STATIC-99 and later raising it to an 8 because of more information).

360 U. S. v. Abregana, 574 F.Supp.2d 1145, 1155 (D. Haw.)
(state expert disagreeing with two defense experts with a 2 point gap in STATIC-99 scores (state expert assigning a 5) and a one point gap in RRASOR scores (state expert assigning a 4) because of a disagreement in what to base as the index offense to factor in prior to Index offense).

361

Clotfelter, 2002 WL 31116970, at *7-9
(state experts disagreeing on which offense to classify as the index offense and on what type of offense (here, a parole violation and a hospital rule violation));

People v. Stewart, 2003 Cal.App.Unpub.LEXIS 4207, at *7
(state experts giving a score of 3 vs. 5 on RRASOR and 5 vs. 6 on STATIC-99);

State v. Combs, 720 N.W.2d 684; 687, 689 (Wisc. Ct. App. 2006)
(four state experts giving scores of 2, 3, and 4 on RRASOR, and from 4 to 8 on STATIC-99; one expert gave a “6/7/8” score, explaining it depended on how he scored certain items).

See also

	In re Simons, 821 N.E.2d 1184, 1188 (Ill. 2004);
	Therrian, 113 Cal.App.4th at 612.

362 2009 Cal.App.Unpub.LEXIS 1427, at *14.

363

	People v. Paredes, 2009 Cal. App.Unpub.LEXIS 3274, at *3;
	People v. Lopez, 146 Cal.App.4th 1263, 1269 (2006) (state expert’s prediction based solely on the instruments);
	People v. Edmonton, 103 Cal.App.4th 557, 561 (2002).

364

	Barbaree et al., supra note 196;
	Harris et al., supra note 150, at 3.

365 Michael C. Seto, Is More Better? Combining Actuarial Risk Scales to Predict Recidivism among Adult Sex Offenders, 17 PSYCHOL. ASSESSMENT 156 (2005).

366 Id. at 165.

367 Howard E. Barbaree, et al., Different Actuarial Risk Measures Produce Different Risk Rankings for Sexual Offenders, 18 SEXUAL ABUSE: A J. OF RES. & TREATMENT 423 (2006).

368 Sigman v. Rogers, 2008 U.S.Dist.LEXIS 71127, at *44-45 (D. N.J. 2008).

369

	Fennel, supra note 48, at 61;
	Simon, supra note 19, at 402.

370 Jennifer L. Mnookin, Idealizing Science and Demonizing Experts: An Intellectual History of Expert Evidence, 52 VILL. L. REV. 763, 793 (2007).

371 D. Michael Risinger, The Irrelevance, and Central Relevance, of the Boundary Between Science and Non-Science in the Evaluation of Expert Witness Reliability, 52 VILL. L. REV. 679, 683 (2007).

372 George, supra note 106, at 252
(arguing that this places the opposing attorney in a position of either having to challenge the admissibility of the expert’s opinion based on reliability grounds or submitting one’s own expert and then just challenging the weight of the evidence offered by the original expert).

373 Nicole Yell, The California Sexually Violent Predator Act and the Failure to Mentally Evaluate Sexually Violent Child Molesters, 33 GOLDEN GATE U.L. REV. 295, 297 (2003)
(arguing that the California Sexually Violent Predator Act is not used often enough because the state does not civilly commit a majority of its sexually violent predators and, therefore, the statute does not protect children).

374 Janus & Prentky, supra note 33, at 1445-1446.
See
Burton v. State, 884 So.2d 1112, 1120 (Fla. Ct. App. 2004) (concurring opinion)
(referring to the high error rate in actuarial tests for future dangerousness and arguing that in the sexual predator arena,
“We have embarked on the first steps into a new world, arguably a science fiction world, in which judges and juries are asked to prevent crimes years before they occur.”).

375

	Boer, supra note 219 (arguing that there is more concern in the literature about which method of risk assessment is preferred than what should be the focus of the debate, which includes whether public safety is actually served and ethics in mental health attempts at risk assessment);
	Janus, supra note 3, at 6-7 (maintaining that the actuarial assessment debate is improperly focusing on the small number of sex offenders who are at risk of being predators instead of understanding and preventing the larger issue of sex crimes committed by greater number of non-predator criminals, such as those engaged in so-called acquaintance rape).

376

	Lester, supra note 9, at 372-373;
	NATHAN JAMES ET AL., CIVIL COMMITMENT OF SEXUALLY DANGEROUS PERSONS 32-35 (2008);
	Molly T. Geissenhainer, The $ 62 Million Question: Is Virginia’s New Center to House Sexually Violent Predators Money Well Spent?, 42 U. RICH. L. REV. 1301, 1328-1333 (2008).

377 Janus & Prentky, supra note 33, at 1459
(contending that legislatures will continue to mandate risk assessments in sexual predator laws and that judges will “undoubtedly continue to oblige them”).

378 See ALAN D. GOLD, EXPERT EVIDENCE IN CRIMINAL LAW: THE SCIENTIFIC APPROACH 17 (2003)
(contending that the frequency of junk science being offered as credible in criminal cases means that judges and lawyers must gain a scientific literacy to distinguish good science from bad).

379

Post-Daubert, others have written general guides to educate judges and lawyers on their scientific literacy.

FEDERAL JUDICIAL CENTER, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (2d ed.) (2000)
(including chapters on

	a Reference Guide on Statistics (David H. Kaye and David A. Freedman, 85) and
	a Reference Guide on Multiple Regression);

ERICA BEECHER-MONAS, EVALUATING SCIENTIFIC EVIDENCE: AN INTERDISCIPLINARY FRAMEWORK FOR INTELLECTUAL DUE PROCESS (2007).

Another paper offers specific questions to ascertain the level of expertise the offered expert has in relation to the expert opinion at issue.

David M. Godden and Douglas Walton, Argument from Expert Opinion as Legal Evidence: Critical Questions and Admissibility Criteria of Expert Testimony in the American Legal System, 19 RATIO JURIS 261, 277-279 (2006).