Let them Frye: Frye hearings for determination of 'mental disorders' in the Sexually Violent Persons Act.

• Author: Henkel, Hannah

Specific laws aimed at the confinement of mentally disabled sexually violent persons have existed for years. Originally, these laws aimed to rehabilitate a person within a mental hospital and help him with his disorders, aiming to help him enter back into society. However, throughout the years, the laws morphed into ways to keep convicted criminals from society after their prison sentence ended for fear of potential future crimes. In Illinois, the courts find a man falls within the sexually violent persons law when he remains too dangerous to be released after his criminal confinement. A person must have a "mental disorder" to fall under this law, and questions remain on how these disorders are established. In Illinois, a psychologist often makes a "mental disorder diagnosis. " This Comment argues the state should have the psychologist qualified as an expert using a Frye hearing before the expert can classify the person with a "mental disorder" within the sexually violent persons law. This way, the person is classified using a legal classification, not just the prevailing psychological definition of the day.

TABLE OF CONTENTS INTRODUCTION 362 I. THE SEXUALLY VIOLENT PERSONS ACT: ITS IMPLEMENTATION, ITS PURPOSE, AND THE INHERENT LIBERTY ISSUES THE STATUTE RAISES 366 A. Development of the Sexually Violent Persons Acts 366 B. SVPA in Illinois and Use of Medical Experts 369 C. The DSM Assessment 370 D. Liberty Arguments Within the SVPA 374 II. THE FRYE STANDARD 375 A. "General Acceptance" Within the Scientific Community 376 B. Frye Hearings and the SVPA 378 III. FRYE IN ILLINOIS 380 A. The New Precedent with In re New 380 B. Carving a New In re New 382 C. The New In re New 386 IV. THE IMPORTANCE OF FRYE IN ACTUARIAL RISK ASSESSMENT TESTS 388 V. NEW NEEDS FOR FRYE 389 CONCLUSION 392 INTRODUCTION

Innocent until proven guilty: it is a precept of the American legal system. However, for some, laws impose incarceration merely because the person has potential to commit harm based on prior acts. People's entire lives are placed under strict legal scrutiny to determine if they remain too dangerous for society. If they remain dangerous, the result is incarceration, and people remain there until they prove they are safe to return to society.

The United States has two forms of confinement: civil and criminal. Criminal confinement deals in punitive law: courts impose punishment upon guilty persons based on a specific prior act (actus reus) and a sufficient mental state (mens rea) for each element enumerated in the violation. (1) Civil confinement, however, deals in civil remedies; areas of the court's discretion where the punishment is not specifically punitive, but relates to court procedures and shielding people from harm. (2) While the court's use of civil remedies is typically based in restitution, civil confinement is used as a punishment, or to proactively stop a person from doing something the court deems illegal. (3) A judge generally imposes civil confinement when the issue deals with a person 1) violating the rules of the court, 2) failing to comply with a judicial finding, or 3) remaining too dangerous for release after his or her criminal confinement. (4)

The Sexually Violent Persons Act in Illinois (hereinafter "SVPA") is within the third category of civil confinement: a person remains too dangerous to be released and return to society. (5) When the state determines a particular inmate is dangerous, the attorney general brings civil charges under the act. Typically this happens right before the inmate is released. If a jury finds the defendant guilty for uncertain future bad acts, he becomes a "post-convicted criminal." (6) Generally, the SVPA aims to prohibit a person from returning to society if he has a mental disorder and presents a high risk of recidivism due to his disability. (7) An inmate falling under the SVPA remains in custody within the Department of Human Health and Services (hereinafter "DHS") until a judge finds him safe to move into society. (8)

Although the SVPA deals in civil remedies, because the issue arises under confinement, the courts add elements of criminality, including "proof beyond a reasonable doubt" that the person falls under the SVPA. (9) For a state inmate to fall under the Illinois SVPA, the state must charge and prove: 1) the person was convicted of a sexually violent offense; 2) the person suffers from a mental abnormality or personality disorder; and 3) the mental abnormality makes it likely he or she will commit future acts. (10) The Illinois legislature defines "mental disorder" as "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence." (11) Illinois's SVPA allows both the state prosecuting the person under the Act and the defense to diagnose the person with a mental disorder during the proceedings using medical experts, i.e. psychologists. (12)

This Comment addresses the issue that courts often take the psychologist's views of mental disorders as factual when the psychologist uses the Diagnostic and Statistical Manual (hereinafter "DSM"). The DSM establishes criteria to diagnose various mental illnesses; it is widely used in the mental health profession. (13) However, a psychologist's diagnosis of a "mental disorder" under the DSM fails to differentiate general mental illnesses from "mental disorders" sufficient to satisfy the second element of the SVPA. To prevent the very confusion problematic for judge and juries, this Comment uses the term "mental illness" to indicate various diagnosed disorders listed in the DSM based on a psychologist's professional evaluation. The term "mental disorder" is limited to conditions satisfying the SVPA's prong of finding a man has a "mental disorder," which has its own statutory language and legal definition. (14) Thus, while the DSM's definition of mental illness is an important part of the process of finding a mental disorder, it should not satisfy the element of "mental disorder" without any further inquiry. Such confusion can lead to men being imprisoned after their time served, regardless of if they have a legal "mental disorder" or not.

Because the courts often fail to differentiate the psychologist's subjective definition of "mental illness" from a legal "mental disorder" determination, this Comment argues courts in Illinois should have Frye hearings to ensure psychologists are experts by determining if the psychologists' diagnoses of "mental illness" under the DSM are applicable to the SVPA. (15) A Frye hearing looks at a psychologist's tests and diagnoses and determines that a psychologist's opinion has general acceptance within the field of psychology, qualifying the psychologist as an expert witness for testimony. (16) Under the Frye hearing suggestion, Illinois courts would be able to determine what constitutes a "mental disorder" under the SVPA and what falls under a mental illness with the DSM. (17)

Part I of this Comment addresses the SVPA, its implementation, its purposes and goals, and the inherent liberty issues the statute raises. It moves on to explain why a "mental disorder," as defined by the SVPA, includes various ambiguities and gives psychologists no specific direction in their diagnoses. Further, the section looks at the DSM, its use as a legal device, and problems associated with equating its definition of "mental disorder" as a legal "mental disorder" without question. The distinction is paramount due to the SVPA's definition of mental disorder being statutory language, and the DSM being a psychologist's general diagnostic tool.

Part II analyzes Frye hearings, directly looking at psychologists' methods and tests for determining a mental illness, including how the test affects the "mental disorder" determinations under the SVPA. The section further analyzes the movement in Illinois to use Frye hearings to determine if the person being charged under the SVPA has a mental disorder.

Part III analyzes current Illinois court findings on Frye hearings and movement in favor of allowing a hearing for expert opinions. While discussing the general overview of Illinois cases, it focuses on the current Illinois case for SVPA in the Frye context, In re New.

Lastly, in Parts IV and V, this Comment takes the preceding parts and reexamines how important true "expert testimony" is to show that an individual has a mental disorder and he is more likely than not to commit future acts under the SVPA. In the end, the SVPA should ensure that those who are charged under the Act are provided correct procedures. When discussing the overarching issues, I look at actuarial methods determining risk of recidivism and their required Frye hearings to reinforce the Comment's overall argument of implementing the hearings for expert testimony.

1. THE SEXUALLY VIOLENT PERSONS ACT: ITS IMPLEMENTATION, ITS PURPOSE, AND THE INHERENT LIBERTY ISSUES THE STATUTE RAISES

   Part I deals with the SVPA and its original implementation, discussing the initial purpose of the Act to help those inflicted with a mental disease. It then looks at the changes that occurred over time, warping the intensions of the initial statute and morphing the law to protect society against potential threats. It moves forward to describe psychologists' purpose in SVPA trials, and their reliance on the DSM and issues that arise under the social document. It ends by looking at the inherent liberty issues with the developing laws created after sexually violent persons acts' renewed popularity in recent years.

   1. DEVELOPMENT OF THE SEXUALLY VIOLENT PERSONS ACTS

      "Special Commitment" laws first came into effect in the 1930s. (18) By the 1960s, more than twenty-five states adopted them, often terming them "sexual psychopath laws." (19) In the beginning, these laws aimed to place specific people in involuntary psychological hospitals because they were "at high risk for recidivism but at...