Sex offender testimony: junk science or unethical testimony?

Sexual predatorstatutes require thatanoffender beeval uated for civil commitment, after completing his penal sentence, by psychiatrists, psychologists, and other mental health professionals. These professionals are usually asked todetermine whether theoffender: (1) has been convicted of sexually violent predatory offenses against twoor morevictims; (2) has a "mentalor behav ioral abnormality" that predisposes the person to the commission of criminal sexual acts; (3) is likely to en gage in sexually violent criminal behavior as a result of hismental or behavioral abnormality. Despite the fact that theAmerican Psychiatric As sociation believes that these statutes represent a mis useof psychiatry and are primarilyaimed at preven tive detention, the U.S. Supreme Court upheld their constitutionality in Kansas v. Hendricks.1 Similar statutes have been passed in about 16 states. The Supreme Court catalogued constitutionally permis sible instances in which "[s]tates have in certain nar rowcircumstances provided for the forcible civil de tainment of people who are unable to control their behavior and who thereby posea dangerto the public health and safety."2 In the aftermath, state depart ments of mental health have rushed to set up mech anisms to evaluate sex offenders who arecompleting their sentences. These officials have turned to mental health professionals to design and then perform these evaluations. Many professionals, like good soldiers, have charged into the breach and are attempting to do the best possible job. In their efforts to bolster clinical assessments, they are using a variety of new questionnaires and actuarial formulae. They are in terviewing offenders who agree to the interviews. Many offenders, understandably, refuse to be coopera tive with these assessments. The profession and the courts are learning a whole new list of acronyms for these tests, which include the following: Sexual Vio lence Risk-20 (SRV-20); Rapid Risk Assessment for Is the "best possible" job ethically and scientifi cally good enough? The courts have been increas ingly concerned with the introduction of "junk sci ence." Since 1923, Frye v. U.S. has served as a standard for determining whether expert testimony would "assist the trier of fact."3 Frye requires that expert testimony be supported by scientific princi ples or evidence that are "generally accepted" by the relevant scientific or professional communities. In the 1993 case of Daubert v. MerrellDow Pharmaceu ticals, the Supreme Court rejected the Frye test and construed Rule 702 of the Federal Rules of Evidence to create a "gatekeeper" function for federal judges.4 Daubert defined a four-prong …