State ex rel. Romley v. Fields
| Decision Date | 20 November 2001 |
| Docket Number | No. 1 CA-SA 01-0164.,1 CA-SA 01-0164. |
| Citation | 35 P.3d 82,201 Ariz. 321 |
| Parties | STATE of Arizona, ex rel. Richard M. ROMLEY, Maricopa County Attorney, Petitioner, v. The Honorable Kenneth L. FIELDS, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Jaime Medina; James A. Edwards; Anthony Armstrong; Joe Monsivais; Marshall Oge; William Alan Green; Murray Fields; Moises Loustaunau; Richard Ugalde; Brian Nowazek; Fletcher Blaisdell; Christopher Frey; James Alan Arnett; Newell R. Nelson; Gregory Dale Morris; Edward Ross Bowman; David Rae Herriges; Wayne Relf; Jordan Earl Madison Jr.; Leobarde H. Valenzuela; Stephen R. Hill; Eugene Glass; Charles Payne; Samuel Ivan Schwan; Paul Norman Warren; James Ian Miller; Richard Lewis Klein; Melvin E. Clifton; James R. Burson; Frank Kinsey; Eugene A. Schillhahn; Danny Adam Stolp; John Batista Torte; Charles R. Chapman; Michael Keith Smith; Robert M. Lopez; George O. Milligan; Orton G. Innis; Ronald G. Osborne; Harry L. Gross; Gary Lea Keith; Steven Harris Lerman; Michael Deran Ward; Thomas J. Vanatta; James Eric Walker; Anthony Luis Flores; David Lopez Garcia; Randy Dwayne Smith; Kevin Ray Bruns; Patricio Comacho Duenez; Michael Eugene Sutton; Corey Lee Prust; Jerry M. Contreras; Machael A. Haenel; Charles Daniel Coen; Phillip Daniel Sims; Manuel Rivera Cantu, Real Parties in Interest. |
| Court | Arizona Court of Appeals |
Richard M. Romley, Maricopa County Attorney, by Lyn D. Kane, Deputy County Attorney, Karen Black, Deputy County Attorney, Phoenix, Attorneys for Petitioner.
Stephen McLane Johnson, Daniel Raynak, Rick Tosto, Jonathan P. Schubert, Michael Vincent, Mesa, Attorneys for Real Parties in Interest.
¶ 1 The state seeks special action relief from the trial court's decision to conduct a Frye1 hearing to determine the admissibility of actuarial data relied upon by experts in rendering opinions on recidivism in Sexually Violent Persons Act ("SVPA") commitment proceedings. See Ariz.Rev.Stat. ("A.R.S.") §§ 36-3701 to -3717 (Supp.2000). We conclude that the admissibility of the actuarial data and the expert opinion relying on such data is controlled by the Arizona Rules of Evidence and not Frye. We previously issued an order vacating the decision of the trial court granting a Frye hearing and now issue this opinion explaining our order.
¶ 2 Dozens of individuals in Maricopa County filed motions requesting Frye hearings to contest the admissibility of expert opinion testimony on recidivism based on actuarial instruments in SVPA hearings. These cases were consolidated for a determination on Frye's applicability. The trial court, interpreting Logerquist v. McVey, 196 Ariz. 470, 1 P.3d 113 (2000), concluded that a Frye hearing was necessary because "[t]he experts testifying in most of these cases do not base their testimony on actuarial data created from their personal experience or knowledge, but on data derived by a technique or principle developed by others."
¶ 3 In its petition for special action, the state contends that a Frye hearing is unnecessary because the actuarials are concerned with general characteristics of sex offenders and are not "scientific" evidence subject to the Frye test of admissibility. In response, real parties in interest ("respondents") contend that Frye applies because the use of risk assessment tools based upon actuarial data to predict future acts of sexual violence is not generally accepted within the mental health community and because its use as a predictive tool is highly experimental.
¶ 4 Acceptance of special action jurisdiction is highly discretionary. See Ariz. R.P. Spec. Act. Rule 3 Committee Note; King v. Superior Court, 138 Ariz. 147, 149, 673 P.2d 787, 789 (1983). Although special action consideration should be reserved for "extraordinary circumstances," review is appropriate when no "equally plain, speedy, and adequate remedy by appeal" exists. See Ariz. R.P. Spec. Act. 1(a); A.R.S. § 12-120.21(A)(4) (1992); see also State ex rel. Gonzalez v. Superior Court, 184 Ariz. 103, 104, 907 P.2d 72, 73 (App.1995) (). We have also accepted special action jurisdiction for recurring legal questions of statewide importance, see id., and when the "question presented is one of law, one of first impression, and one upon which lower courts, lacking appellate guidance, have rendered inconsistent judgments." State v. Wilkinson, 198 Ariz. 376, 378, ¶ 5, 10 P.3d 634, 636 (App. 2000) (review granted February 13, 2000).
¶ 5 The admissibility of actuarially informed expert testimony on sex offense recidivism is an issue of statewide importance. At the time this action was filed, sixty-four individuals were awaiting trial under the SVPA at the Arizona Community Protection and Treatment Center ("ACPTC"), and forty-eight people are currently confined at the facility as sexually violent persons. Twenty-three others have been committed as sexually violent persons to ACPTC's Less Restrictive Alternative. Requests for Frye hearings on the admissibility of testimony based upon actuarial evidence have also been made in several post-commitment cases under the SVPA. See A.R.S. § 36-3709(B) (). ¶ 6 Moreover, Arizona trial courts have rendered inconsistent decisions on the necessity of subjecting this expert testimony to a Frye analysis. Because resolution of this issue will assist Arizona courts in the interpretation and implementation of the SVPA, we accept jurisdiction.
¶ 7 An SVPA commitment proceeding is initiated by the county attorney filing a petition in superior court alleging that an individual is a sexually violent person. A.R.S. § 36-3704(A). If, after reviewing the petition, the court finds probable cause to believe the person is sexually violent, it then orders that the person be detained pending trial. Id. § 36-3705(A), (B). Upon request, the person is entitled to a probable cause hearing. Id. § 36-3705(C). If the court reaffirms its finding, it is required to select a "competent professional" to evaluate whether the individual is a sexually violent person. Id. § 36-3705(G).2 Each party may also select a competent professional to evaluate the person. Id. § 36-3703(A).
¶ 8 A sexually violent person is defined as follows:
Id. § 36-3701(7) (emphasis added). The state has the burden of proving beyond a reasonable doubt that the person meets the statutory definition. Id. § 36-3707(A). To meet the § 36-3701(7) requirement, the state routinely selects a psychologist or psychiatrist to evaluate the person. Many of these professionals employ actuarial instruments3 to help form their opinions regarding the likelihood that an individual will commit future acts of sexual violence.
¶ 9 In Frye v. United States, 293 F. 1013 (D.C.Cir.1923), Frye was convicted of second degree murder at trial. On appeal, he claimed that the trial court erred when it sustained the state's objection to the proposed testimony of the defendant's expert witness regarding the result of a systolic blood pressure "deception test" — a crude precursor to the polygraph machine — on the defendant. Id. at 1013-14. Defendant argued the expert testimony evidence should have been admitted under the traditional common-law test for admissibility of expert testimony because "the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge." Id. at 1014. In sustaining the trial court's refusal to allow the testimony, the court articulated the following test to determine the admissibility of novel scientific evidence:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
Id. The court held the polygraph test results inadmissible because the test had not yet gained sufficient standing and scientific recognition among physiological and psychological authorities. Id.
¶ 10 The Frye test of "general acceptance" was adopted in Arizona in State v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962), a case also involving the admission of results of a polygraph test administered to the defendant but introduced by the state pursuant to the parties' pre-test stipulation. Our supreme court surveyed the cases and literature since Frye and concluded that polygraph test results were inadmissible absent stipulation because of the test's continuing "scientific shortcomings," id. at 279-80, 371 P.2d at 898, and lack of acceptance of the technique by "a larger segment of the psychology and physiology branches of science." Id. at 280, 371 P.2d at 898.
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