900 East Gilbert Street Building 7

PHYLLIS MORRIS 1 Public Defender 2 900 East Gilbert Street Building 7 San Bernardino, CA 92415 3  (909) 387-7030 FAX (909) 386-0733 4 5 By: State Bar No. 6 Deputy Public Defender 7 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN BERNARDINO 8 9 PEOPLE OF THE STATE OF CALIFORNIA ) Case No.: XXXXXXX 10 ) 11 Petitioner ) MOTION FOR KELLY/FRYE HEARING ) ON THE ADMISSIBILITY OF 12 vs. ) PARAPHILIA NON-CONSENT: ) A DIAGNOSIS THAT HAS BEEN 13 ) REJECTED BY THE APA 14 XXXXXXX ) ) Dept: S-10 15 Respondent ) Date: XXXXX16 TO: PETITIONER AND THEIR RESPECTIVE ATTORNEY OF RECORD: 17 Please take notice that on XXXXX, Respondent, XXXXX, hereby moves that this 18 court conduct a Kelly/Frye hearing to determine admissibility of testimony related to the 19 diagnosis of “Other Specified Paraphilic Disorder: Sex with Non-Consenting Adult 20 Females.” This disorder will be referenced as “paraphilia non-consent” in this motion. 21 Mr. XXXXXX requests that this court conduct the Kelly/Frye evidentiary hearing by 22 reviewing the available literature that has been published on this diagnosis. A review of 23 the literature demonstrates that paraphilia non-consent has not been accepted by the 24 relevant scientific community. Because this disorder is not generally accepted by the 25 scientific community it must not be admitted into evidence. 26 27 281 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 This motion is based on the arguments and authorities contained in this motion, 2 the documentation attached to this motion and any arguments or evidence that will be 3 presented at the hearing on this motion. 4 I. SUMMARY 5 6 “California adopted the Frye1 standard of reliability to determine the admissibility of 7 new scientific methods of proof in People v. Kelly (1976) 17 Cal. 3d 24.” (People v. 8 Bowker (1988) 203 Cal. App. 3d 385 citing Kelly.) The Kelly/Frye rule “serves its salutary 9 purpose of preventing the jury from being misled by unproven and ultimately unsound 10 scientific methods.” (People v. Shirley (1982) 31 Cal. 3d 18 at 53). 11 Under the rule of Kelly/Frye the proponent of expert testimony must demonstrate 12 that it is “sufficiently established to have gained general acceptance in the particular field 13 in which it belongs.” (People v. Kelly (1976) 17 Cal. 3d at 30.) The People intend to call 14 witnesses in Mr. XXXXX Sexually Violent Predator (SVP)2 proceedings that will testify 15 that he has been diagnosed with the mental disorder of “Other Specified Paraphilic 16 Disorder: Sex with Non-Consenting Adult Females.” The following points, authorities, 17 and exhibits demonstrate that the court should apply the Kelly/Frye test to paraphilia non- 18 consent and that paraphilia non-consent fails the Kelly/Frye test and should be excluded 19 from evidence. 20 II. ISSUES PRESENTED 21 ISSUE I: When does the Kelly/Frye test apply? 22 ISSUE II: Does Kelly/Frye apply to paraphilia non-consent? 23 ISSUE II(a): Does Kelly/Frye apply to psychological evidence? 24 25 ISSUE II(b): Is paraphilia non-consent a new scientific technique? 26 27 1 Frye v. United States (D.C. Cir. 1923) 293 Fed 1013. 28 2 See California Welfare and Institutions Code Section 6600 et. seq (SVPA). 2 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 ISSUE II(c): Does paraphilia non-consent carry the aura of scientific 2 infallibility? 3 ISSUE III: Does paraphilia non-consent pass the Kelly/Frye test? 4 5 III. FACTUAL SUMMARY 6 7 XXXXX 8 IV. POINTS AND AUTHORITIES 9 10 ISSUE I: When does the Kelly/Frye test apply? 11 12 A. Kelly/Frye Applies to Scientific Techniques New to Science and the Law that 13 Carry the Aura of Scientific Infallibility 14 15 Two principles must be considered by the trial court to determine whether 16 evidence must satisfy the Kelly/Frye test. First, Kelly/Frye only applies to expert 17 testimony based on a scientific technique that is new to science and the law. The second 18 principle is whether the technique carries the aura of scientific infallibility. These two 19 principles are discussed in the cases below. 20 2122 People v. Jackson (2016) 23 In 2016 the California Supreme Court restated the Kelly/Frye rule in People v. 24 Jackson (2016) 1 Cal. 5th 269. At issue in Jackson was whether Kelly/Frye applied to 25 scent trailing evidence. (Id.) 26 Kelly, supra, 17 Cal.3d 24, renders inadmissible evidence derived from a 27 “new scientific technique” unless the proponent shows that (1) “the 283 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 technique is generally accepted as reliable in the relevant scientific 2 community”; (2) “the witness testifying about the technique and its 3 application is a properly qualified expert on the subject”; and (3) “the person 4 performing the test in the particular case used correct scientific 5 procedures.” (People v. Bolden (2002) 29 Cal.4th 515, 544–545 (Bolden).) 6 Because our scientific understanding and our understanding of what 7 constitutes “science” is constantly evolving, the term “new scientific 8 technique” resists formal definition. (See People v. Stoll (1989) 49 Cal.3d 9 1136, 1155 (Stoll).) 10 Instead, courts rely on two principles to determine when the test applies. 11 “First, Kelly/Frye only applies to that limited class of expert testimony which 12 is based, in whole or part, on a technique, process, or theory which is new 13 to science and, even more so, the law.” (Stoll, supra, 49 Cal.3d at p. 1156; 14 see People v. Leahy (1994) 8 Cal.4th 587, 605 (Leahy).) To be new, a 15 technique must be meaningfully distinct from existing techniques. (See 16 People v. Cook (2007) 40 Cal.4th 1334, (Cook).) Unintentional departures 17 resulting from a careless attempt to follow an otherwise accepted procedure 18 do not implicate Kelly. (Cook, at p. 1345; People v. Farmer (1989) 47 19 Cal.3d 888, 913, overruled on other grounds in People v. Waidla (2000) 22 20 Cal.4th 690, 724, fn. 6.) Second, a Kelly hearing may be warranted when 21 “the unproven technique or procedure appears in both name and 22 description to provide some definitive truth which the expert need only 23 accurately recognize and relay to the jury.” (Stoll, supra, at p. 1156.) 24 Appellate courts review de novo the determination that a technique is 25 subject to Kelly. (See Leahy supra 8 Cal.4th at pp. 605–607.)(Jackson 316.) 26 People v. Stoll 27 284 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 The two principles that trial courts rely upon to determine whether the Kelly/Frye 2 test applies were identified in People v. Stoll (1989) 49 Cal. 3d 1136. In Stoll, the issue 3 was whether psychological tests such as the MMPI3 were subject to Kelly/Frye. (Id.) In 4 resolving the issue presented by the Stoll case, the California Supreme Court identified 5 two themes that have emerged in California decisions applying Kelly/Frye. 6 This approach has produced two discernible themes. First, Kelly/Frye only 7 applies to that limited class of expert testimony which is based, in whole or 8 part, on a technique, process, or theory which is new to science and, even 9 more so, the law. The courts are willing to forego admission of such 10 techniques completely until reasonably certain that the pertinent scientific 11 community no longer views them as experimental or of dubious validity. 12 This all-or-nothing approach was adopted in full recognition that there would 13 be a "'considerable lag'" between scientific advances and their admission 14 as evidence in a court proceeding. (Kelly, supra, 17 Cal. 3d at p. 31, citation 15 omitted.) 16 The second theme in cases applying Kelly/Frye is that the unproven 17 technique or procedure appears in both name and description to provide 18 some definitive truth which the expert need only accurately recognize and 19 relay to the jury. The most obvious examples are machines or procedures 20 which analyze physical data. Lay minds might easily, but erroneously, 21 assume that such procedures are objective and infallible. (See e.g., People 22 v. Coleman (1988) 46 Cal. 3d 749, 774-775 ["hemostick" method of 23 presumptive testing for presence of blood]; People v. Brown (1985) 40 Cal. 24 3d 512, 528-535 [electrophoretic testing of body fluid and blood stains to 25 identify donor]; see also People v. Shirley (1982) 31 Cal. 3d 18, 51-52 26 27 28 3 Minnesota Multiphasic Personality Inventory 5 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 [listing cases which have applied the Frye test to polygraph examinations, 2 "truth serum," Nalline testing, human bite marks, and microscopic 3 identification of gunshot residue particles].) (Stoll at 1156). 4 The Stoll Court restates the second principle later in the opinion. After expressing 5 that Kelly/Frye can apply to techniques operating exclusively on psychological evidence, 6 the court states the second principle must be present for Kelly/Frye to apply. “However, 7 absent some special feature which effectively blindsides the jury, expert opinion 8 testimony is not subject to Kelly/Frye.” (Stoll at 1157). 9 10 The two principles set forth by the California Supreme Court in Stoll and reiterated 11 in Jackson will be applied to the facts of Mr. XXXXXX ’s case below as Issue II(b) and 12 Issue II(c). However, before applying the two principles described above to paraphilia 13 non-consent, a threshold issue presents itself: whether a psychological diagnosis can be 14 subject to Kelly/Frye, this analysis is Issue II(a). 15 16 ISSUE II: Does Kelly/Frye apply to paraphilia non-consent? 17 18 A. Because Paraphilia Non-Consent is New to Science and the Law and 19 Carries the Aura of Scientific Infallibility Kelly/Frye Must Apply 20 21 Three sub-issues must be addressed to determine whether Kelly/Frye applies to 22 paraphilia non-consent. The first issue is whether Kelly/Frye applies to a psychological 23 diagnosis. The second issue is whether paraphilia non-consent is new to psychology and 24 the law. The third issue is whether paraphilia non-consent carries the aura of scientific 25 infallibility. Each of these issues is discussed below. Kelly/Frye does apply to 26 psychological diagnoses. In addition, paraphilia non-consent is new to science and 27 286 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 carries the aura of scientific infallibility. Therefore, this court must conduct a Kelly/Frye 2 hearing on the admissibility of paraphilia non-consent. 3 4 ISSUE II(a): Does Kelly/Frye apply to psychological evidence? 5 6 A. There is No Bar that Excludes Psychological Evidence From 7 Kelly/Frye Scrutiny 8 California precedent does not limit application of Kelly/Frye to scientific techniques 9 that manipulate physical evidence, but also to a process or theory operating on purely 10 psychological evidence. This clarification that Kelly/Frye included processes or theories 11 operating on psychological evidence was stated by the California Supreme Court in 12 People v. Shirley (1982) 31 Cal. 3d 18. 13 [A]s we said in Kelly , for example, the rule applies to evidence "developed 14 by" or "based upon" new scientific techniques. (17 Cal.3d at p. 31.) Nor are 15 those techniques necessarily limited to manipulation of physical evidence: 16 we do not doubt that if testimony based on a new scientific process 17 operating on purely psychological evidence were to be offered in our 18 courts, it would likewise be subjected to the Frye standard of admissibility. 19 In either case, the rule serves its salutary purpose of preventing the jury 20 from being misled by unproven and ultimately unsound scientific methods. 21 (Kelly , at pp. 31-32.) (People v. Shirley (supra.) 31 Cal. 3d 18, 53, citing 22 Kelly, emphasis added.) 23 The California Supreme Court restated the same rule permitting the application of 24 Kelly/Frye to psychological evidence seven years later in Stoll. 25 26 Kelly/Frye also has been applied to less tangible new procedures which 27 carry an equally undeserved aura of certainty. In People v. Shirley, supra, 287 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 31 Cal. 3d at page 66, we applied the Kelly/Frye rule to, and barred 2 admission of, "post-hypnotic" testimony of a rape complainant. We explicitly 3 rejected the Attorney General's claim in that case that the Kelly/Frye rule 4 was limited to techniques analyzing "physical evidence." ( Id. at p. 52.) We 5 noted that, given the rule's prophylactic purpose, nothing precludes its 6 application to "a new scientific process operating on purely psychological 7 evidence." ( Id. at p. 53.) (People v. Stoll 49 Cal. 3d 1136, 1156.) 8 The case law demonstrates that Kelly/Frye scrutiny can apply to methods operating on 9 psychological evidence. The next issue presented is whether Kelly/Frye can be applied 10 to a psychological diagnosis. 11 12 13 B. There is No Categorical Exclusion of Psychological Diagnoses From 14 Kelly/Frye Scrutiny15 A fundamental misunderstanding appears to have propagated through the 16 California case law that addresses this issue. This misunderstanding stems from two 17 1984 decisions by the California Supreme Court. The first decision, published on June 18 14, 1984 is that of People v. Bledsoe (1984) 36 Cal. 3d 236. In Bledsoe the court 19 assumed “like the parties” that Kelly/Frye applied to testimony of a rape counselor 20 relating that the victim suffered from “rape trauma syndrome.” (Stoll at 1161 citing 21 Bledsoe at 248.) The Bledsoe Court concluded that rape trauma syndrome did not 22 satisfy Kelly/Frye for the purpose of the expert testifying that the victim had indeed been 23 raped. (Id.) The Court in Bledsoe even identified the syndrome as a “therapeutic 24 diagnosis.” (Id. at 248.) The Bledsoe decision is discussed in greater detail infra. 25 The second decision published on November 21, 1984 was People v. McDonald 26 (1984) 37 Cal. 3rd 351 (overruled on other grounds by People v. Mendoza (2000) 23 Cal. 27 4th 896). In McDonald the California Supreme Court addressed whether testimony of a 288 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 defense psychologist called to explain the flaws in eyewitness identification was subject 2 to Kelly/Frye. The McDonald Court concluded that it was not subject to Kelly/Frye. The 3 McDonald court lists decisions that have “invoked the Kelly/Frye rule” including Bledsoe 4 stating. 5 In some instances the evidence passed the Kelly-Frye test, in others it 6 failed; but in all such cases "the rule serves its salutary purpose of 7 preventing the jury from being misled by unproven and ultimately unsound 8 scientific methods." (quoting Shirley, supra, at p. 53.) 9 10 Here, by contrast, no such methods are in issue. We have never applied 11 the Kelly-Frye rule to expert medical testimony, even when the witness is a 12 psychiatrist and the subject matter is as esoteric as the reconstitution of a 13 past state of mind or the prediction of future dangerousness, or even the 14 diagnosis of an unusual form of mental illness not listed in the diagnostic 15 manual of the American Psychiatric Association ( People v. Phillips (1981) 16 122 Cal.App.3d 69, 86-87 ("Munchausen's syndrome by proxy")). We see 17 no reason to require a greater foundation when the witness is a qualified 18 psychologist who will simply explain to the jury how certain aspects of 19 everyday experience shown by the record can affect human perception and 20 memory, and through them, the accuracy of eyewitness identification 21 testimony. Indeed, it would be ironic to exclude such testimony on Kelly- 22 Frye grounds on the theory that jurors tend to be unduly impressed by it, 23 when jurors are far more likely to be unduly impressed by the eyewitness 24 testimony itself. (People v. McDonald, 37 Cal. 3d 351, 373.)25 The above paragraph is recycled in subsequent decisions by the California 26 Supreme Court and Court of Appeal. Somewhat inconveniently, this paragraph from 27 McDonald is quoted in part in Stoll, and then subsequently the Stoll iteration is cited by 289 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 the Court of Appeal in People v. Ward (1999) 71 Cal. App. 4th 368, (holding Kelly/Frye 2 did not apply to SVP evaluator’s testimony generally; discussed in greater detail infra.) 3 Confusingly, although McDonald listed Bledsoe as one of the cases invoking Kelly/Frye 4 and intimates that the Court had served the salutary purpose of gatekeeper, the 5 McDonald court subsequently stated that “We have never applied the Kelly/Frye rule to 6 expert medical testimony.” (McDonald at 373.) 7 This seeming incongruence is reconciled when it is considered in the context of 8 the specific facts of McDonald. First of all, the court’s proclamation was simply that we 9 have never applied Kelly/Frye in the past. The Court did not proclaim that ‘we never 10 have and never will apply Kelly/Frye to medical diagnoses’. Secondly, the McDonald 11 ruling then goes on to look at the specific testimony of the psychologist in that case, 12 noting that the testimony related how “certain aspects of everyday experience shown by 13 the record can effect human perception and memory.” (McDonald at 373.) The Court 14 also noted that the jurors would most likely be unduly impressed by the eyewitness 15 testimony as opposed to the expert psychological testimony. (Id.) These specific details 16 of the testimony were included in the Court’s conclusion that Kelly/Frye did not apply to 17 the psychologist’s testimony on eyewitness identification. These specific factual details 18 of the testimony in McDonald were not included in the quotation of McDonald by the Stoll 19 Court, and were not discussed by the Court of Appeal in Ward. 20 21 The Stoll Court, in considering whether Kelly/Frye scrutiny should apply to use of 22 psychological personality testing, quoted McDonald that Kelly/Frye had never been 23 applied to a medical diagnosis, including psychological diagnosis. (Stoll at 1157.) 24 However, the court did not proclaim a blanket ban on the application of Kelly/Frye to 25 psychological diagnoses. Instead, the Court created room for a challenge to a 26 psychological diagnosis that presented “some special feature which effectively blindsides 27 the jury.” The Stoll Court held that use of the psychological testing in that case raised 28 none of the concerns of Kelly/Frye. (Id.) 10 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 However, absent some special feature which effectively blindsides the jury, 2 expert opinion testimony is not subject to Kelly/Frye. This distinction was 3 recently confirmed in our unanimous decision in People v. McDonald, 4 supra, 37 Cal. 3d 351. There we found prejudicial error in the exclusion of 5 defense expert testimony on the psychological factors undermining the 6 accuracy of eyewitness identification. In dispensing with any need for a 7 Kelly/Frye showing in that case, Justice Mosk noted that "[when] a witness 8 gives his personal opinion on the stand -- even if he qualifies as an expert -- 9 the jurors may temper their acceptance of his testimony with a healthy 10 skepticism born of their knowledge that all human beings are fallible. . . . 11 [para.] . . . We have never applied the Kelly/Frye rule to expert medical 12 testimony, even when the witness is a psychiatrist and the subject matter is 13 as esoteric as the reconstitution of a past state of mind or the prediction of 14 future dangerousness, or even the diagnosis of an unusual form of mental 15 illness not listed in the diagnostic manual of the American Psychiatric 16 Association ( People v. Phillips (1981) 122 Cal. App. 3d 69, 86-87 [175 Cal. 17 Rptr. 703] ('Munchausen's syndrome by proxy'))." ( McDonald, supra, 37 18 Cal. 3d at pp. 372-373.) 19 The psychological testimony proffered here raises none of the concerns 20 addressed by Kelly/Frye. The methods employed are not new to 21 psychology or the law, and they carry no misleading aura of scientific 22 infallibility. (Stoll 49 Cal. 3d 1136, 1157.) 23 2425 Notably, the analysis of the Court in Stoll shows that the court considered the two 26 necessary principles needed to apply Kelly/Frye and then concluded that the MMPI did 27 not satisfy these principles. If psychological diagnoses were categorically barred from 2811 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 Kelly/Frye the Stoll court would have simply stated that rule and moved on. Instead the 2 court cited trial testimony in which the psychologist explained that “[t]he MMPI – the 3 ‘primary’ test – was copyrighted in 1943 and following several revisions, is still ‘the most 4 widely used psychological test” on both a local and national level.” (Stoll at 1147.) The 5 expert in Stoll also testified that “the MMPI is ‘always’ used by psychiatrists and 6 psychologists to diagnose patients at various stages of clinical treatment.” (Id.) It is clear 7 from the reasoning in Stoll that the court considered the two principles before concluding 8 that “[t]he methods employed are not new to psychology or the law, and they carry no 9 misleading aura of scientific infallibility.” (Stoll at 1157.) 10 Likewise, the analysis of McDonald concluded that Kelly/Frye did not apply to the 11 testimony of an eyewitness expert by relying on the fact that the jury would not be unduly 12 impressed by this testimony. The McDonald Court’s decision relied heavily on the 13 second principle, that a psychologist testifying about how everyday experience could 14 affect human perception and memory, would not be cloaked in the aura of scientific 15 infallibility. These cases reveal that psychological evidence must satisfy both necessary 16 principles prior to the application of Kelly/Frye. These cases do not articulate a 17 categorical ban shielding psychological diagnoses from Kelly/Frye. 18 19 Stoll and McDonald do not create a blanket exclusion for psychological diagnoses. 20 In those cases the Court found that the evidence did not present the aura of scientific 21 infallibility necessitating application of Kelly/Frye. Paraphilia non-consent, when used in 22 SVP commitment proceedings, inevitably has a profound impact on the decision making 23 of the finder of fact. This “special feature” which effectively blindsides the factfinder is 24 discussed in further detail in the section below on the aura of scientific infallibility.25 For the reasons discussed above, the characterization of McDonald by Stoll and 26 Ward does not result in the exclusion of all psychological diagnoses from Kelly/Frye. The 27 fact that California cases have found that psychological evidence is not subject to 2812 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 Kelly/Frye in specific instances based on specific facts, does not constitute a blanket ban 2 shielding psychological diagnoses categorically from Kelly/Frye scrutiny. 3 People v. New (2013) 4 5 Other jurisdictions have criticized some of the reasoning of the Stoll and 6 McDonald courts for presumptively placing psychological diagnoses on a pedestal free 7 from the scrutiny of Kelly/Frye. In People v. New (2013) 992 N.E. 2d 519, the Appellate 4 5 8 Court of Illinois was presented with an SVP commitment case, in which evidence had 9 been admitted that Mr. New suffered from “paraphilia, not otherwise specified, sexually 10 attracted to early prepubescent males.” (New 992 N.E. 2d at 523.) New appealed the 11 denial of a motion in limine requesting that this diagnosis, subsequently referred to as 12 “hebephilia,” be subjected to Kelly/Frye scrutiny. “The State responds that Frye does not 13 apply to a diagnosis because a diagnosis does not constitute a scientific principle or 14 methodology.” (New at 527.) The Appellate Court of Illinois found this argument by the 15 State unpersuasive. The New court first reviewed the dictionary definitions of diagnosis 16 and diagnose, and concluded that “a Frye hearing is appropriate to determine whether an 17 emerging diagnosis is an actual illness or disorder.” (New at 529.) 18 As a noun, "a diagnosis" is defined as the "determination of a medical 19 condition (such as a disease) by physical examination or by study of its 20 symptoms. The result of such an examination or study." Black's Law 21 Dictionary 518 (9th ed. 2009). As a verb, "to diagnose" indicates process 22 and method, and is defined as the "art or act of identifying a disease from 23 its signs and symptoms." Webster's Third New International Dictionary 24 Unabridged 622 (1993). The State's argument conflates these two usages. 25 26 4 The Appellate Court of Illinois is similar to the California Court of Appeal, a state court above the trial 27 courts and below the State Supreme Court. 5 The Illinois statutory equivalent of California’s SVPA is the Illinois Sexually Violent Persons Commitment 28 Act (725 ILCS 207/1 et. seq.)13 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 As these definitions indicate, diagnosing a medical condition, in this case a 2 mental disorder, by considering characteristic signs and symptoms 3 presupposes a mental condition exists as a matter of scientific evidence. 4 Put another way, a prerequisite for a diagnosis is scientific evidence that 5 such a mental condition exists. Absent reliable scientific validation or 6 acceptance of the mental condition, its presence would be merely 7 theoretical. Before diagnosis comes identifying, naming, describing, and 8 classifying the condition. A Frye hearing is appropriate to determine 9 whether an emerging diagnosis is an actual illness or disorder. (citations 10 omitted). (New 992 N.E.2d. 528-529.) 11 In support of its argument that Frye did not apply to psychological diagnoses, the State in 12 New presented decisions from other jurisdictions. The New court found these cases 13 distinguishable and unpersuasive. 14 15 The State points to case law from other jurisdictions holding that 16 psychological diagnoses are not subject to Frye. We find their cases 17 distinguishable. In In re the Detention of Berry (160 Wn. App. 374, 248 P.3d 18 592 (Wash. Ct. App. 2011)), the Washington Court of Appeals held that the 19 diagnosis of a mental disorder was not subject to a Frye hearing because 20 psychological analysis is a generally accepted methodology, and because 21 arguments as to the validity of a diagnosis go to the weight of expert 22 testimony, not admissibility. Berry, 248 P.3d at 595-97. But this is beside 23 the point. The issue here is the validity of the mental disorder. Unless 24 established, we expose the justice system to avenues of future regret, 25 whereby a so-called mental disorder that has not reached, and may never 26 reach, a critical mass of general acceptance yet forms the basis of an 27 individual's loss of liberty. A Frye hearing was meant to preclude this kind of 28 "junk science."… [para.] 14 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 … The third case, People v. Ward, 83 Cal. Rprt. 2d 828, 71 Cal. App. 4th 2 368, held that under California law scientific evidence, but not expert 3 medical opinion, is subject to Frye. Id. at 831. The court reasoned "[n]o 4 precise legal rules dictate the proper basis for an expert's journey into a 5 patient's mind to make judgments about his behavior," and that 6 psychological evaluation is "a learned professional art" while Frye only 7 applies to "exact sciences." (Emphasis omitted and internal quotation mark 8 omitted.) Id. We do not find the characterization of psychology as an art to 9 be a meaningful one under Frye. "[T]he Frye rule is meant to exclude 10 methods new to science that undeservedly create a perception of certainty 11 when the basis for the evidence or opinion is actually invalid." (Donaldson 12 v. Central Illinois Public Service Co., 199 Ill. 2d 63, 78, 767 N.E.2d 314, 262 13 Ill. Dec. 854 (2002).) It is not the purview of the courts to exclude entire 14 fields of study from the general acceptance test because those sciences 15 are "softer," while allowing experts in those fields to present opinions that 16 create a perception of scientific certainty. Creating these exceptions opens 17 the justice system to abuse. (New 992 N.E.2d 519, 529-530.) 18 Complete analysis of the inapplicability of Ward to the issue presented in Mr. 19 XXXXXX ’s case is set forth infra. Needless to say, the Illinois Appellate Court found the 20 reasoning of Ward unpersuasive when applied to hebephilia. The same problems 21 present with hebephilia are present with paraphilia non-consent. The key flaw with 22 treating psychological diagnoses as a mysterious learned art is glaringly obvious when 23 paraphilia non-consent is used in SVP commitment cases. Paraphila non-consent has 24 no accepted or uniform criteria sets that define the disorder. This ambiguity presents 25 obvious difficulty for the layperson unskilled in the arts of psychiatry when tasked with 26 making or assessing an undefined diagnosis. In SVP cases “[h]e has a diagnosed 27 mental disorder” is an element of SVP commitment. (CALCRIM 3454.) When jurors or 2815 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 judges are presented with the task of reviewing the validity of a paraphilia non-consent 2 diagnosis there is no accepted definition that they can work from. This ambiguity leaves 3 the factfinder to undergo a complex journey into the patient’s mind and the mysteries of 4 psychological diagnosis with no signposts to guide them along the way. 5 The New Court also found the impact that SVP commitment has on the person’s 6 fundamental liberty interest was an important consideration. 7 8 Also of import, a liberty interest is at stake in proceedings under the SVP 9 Act. Liberty includes the right to "generally to enjoy those privileges long 10 recognized at common law as essential to the orderly pursuit of happiness 11 by free men" and women. (Internal quotation marks omitted.) Ingraham v. 12 Wright, 430 U.S. 651, 673 (1977). "Because involuntary commitment 13 procedures implicate substantial liberty interests, the respondent's interests 14 must be balanced against the dual objectives of involuntary admissions: (1) 15 providing care for those who are unable to care for themselves due to 16 mental illness and (2) protecting society from the dangerously mentally ill." 17 In re Lance H., 2012 973 N.E.2d 538. Thus, the purpose of civil 18 commitment is treatment, not punishment. Id. As is noted in the DSM-IV- 19 TR, a "mental disorder" denotes the boundary between "normality and 20 pathology." Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental 21 Disorders xxxi (4th ed., text rev. 2000).22 This boundary in involuntary commitment proceedings is the difference 23 between treatment and impermissible retribution. See Kansas v. Hendricks, 24 521 U.S. 346, 373 (1997) (Kennedy, J., concurring) ("[I]f it were shown that 25 mental abnormality is too imprecise a category to offer a solid basis for 26 concluding that civil detention is justified, our precedents would not suffice 27 to validate it." ). That is, if a respondent in an SVP proceeding does not 2816 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 suffer from an actual mental disorder, then there is nothing to cure, and 2 commitment is pointless. Accordingly, we hold that a diagnosis of a novel 3 condition is subject to the general acceptance test under Frye. (New 992 4 N.E.2d 519, 530.) 5 The Illinois Appellate Court’s consideration of the impact of civil commitment on 6 patients is especially profound when that reasoning is applied to California’s SVPA. The 7 decision by the California Court of Appeal in Ward was made in 1999 only three years 8 after the adoption of the SVPA. The length of SVP commitment at the time was only two 9 years. In 2006 the California Legislature amended the SVPA, changing the term of SVP 10 commitment from two years to a lifetime commitment. (WIC § 6604.) Consideration of 11 the impact on the fundamental liberty interest on patients facing SVP commitment 12 compels that psychological diagnoses as a class not be excluded from Kelly/Frye 13 scrutiny. As Justice Kennedy notes in Kansas v. Hendricks, an imprecise 14 conceptualization of mental abnormality would not justify civil commitment. (Kansas v. 15 Hendricks supra.) The need for precision is even more compelling when patients face 16 lifetime commitment. 17 18 People v. Bledsoe (1983)19 The California Supreme Court has employed Kelly/Frye to assess the use of a 20 psychological diagnosis in People v. Bledsoe (1984) 36 Cal. 3d 236. In Bledsoe the 21 Court considered the use of psychological testimony on “rape trauma syndrome” by the 22 prosecution in a rape trial. (Bledsoe at 238.) The prosecution called a rape counselor as 23 an expert witness to testify that the victim in that case was suffering from rape trauma 24 syndrome. (Bledsoe at 240.) The trial court denied Beldsoe’s objection to the testimony 25 and defense request for a 402 hearing outside of the jury’s presence. (Id. at 241.) The 26 expert witness testified that rape trauma syndrome was an acute stress reaction to 27 trauma that involved three stages, disorientation, reorganization, and integration. (Id. at 2817 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 242-243.) In Bledsoe the Court considered whether the trial court should have conducted 2 a hearing to determine whether rape trauma syndrome survived Kelly/Frye. (Bledsoe at 3 247.) Although Bledsoe failed to raise a Kelly/Frye objection at the trial court, Bledsoe 4 contented on appeal “that evidence of rape trauma syndrome is not admissible under the 5 Frye standard.” (Bledsoe at 246). The Bledsoe Court found that because Bledsoe 6 requested a 402 hearing that the issue was preserved, stating, “we think that it is 7 appropriate to consider the claim here.” (Bledsoe at 247.) 8 The California Supreme Court in making its decision considered the rulings of 9 other jurisdictions on whether rape trauma syndrome survived Kelly/Frye analysis. The 10 Bledsoe Court quotes the Minnesota Supreme Court decision in State v. Saldana (Minn. 11 1982). 324 N.W.2d 227, “[rape] trauma syndrome is not the type of scientific test that 12 accurately and reliably determines whether a rape has occurred.” (Saldana 324 N.W.2d 13 at 229.) The Bledsoe court also distinguished rape trauma syndrome from battered child 14 syndrome. 15 16 Because it was developed for an entirely different purpose than, for 17 example, the battered child syndrome, rape trauma syndrome represents a 18 distinctly different concept than the battered child diagnosis described in 19 Jackson. It does not consist of a relatively narrow set of criteria or 20 symptoms whose presence demonstrates that the client or patient has been 21 raped; rather, as the counselor in this case testified, it is an "umbrella" 22 concept, reflecting the broad range of emotional trauma experienced by 23 clients of rape counselors. Although there are patterns that have been 24 observed, the ongoing studies reveal that a host of variables contribute to 25 the effect of rape on its victims; as one recent study concluded: "[clearly], 26 the concept of a typical rape victim has no place within the context of post 27 rape adjustment." (McCahill et al., The Aftermath of Rape, supra, p. 75.) 28 (Bledsoe at 251-250.)18 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 The Bledsoe court, invoking Kelly/Frye determined that evidence of rape trauma 2 syndrome was inadmissible for the purpose it had been used for in Bledsoe’s trial: to 3 show that the victim in that case was actually a victim of rape. The Bledsoe court also 4 found that rape trauma syndrome may be admissible to provide general information to 5 help dispel stereotypes that jurors may incorrectly harbor about victim’s behavior after a 6 rape. 7 Given the history, purpose and nature of the rape trauma syndrome 8 concept, we conclude that expert testimony that a complaining witness 9 suffers from rape trauma syndrome is not admissible to prove that the 10 witness was raped. We emphasize that our conclusion in this regard is not 11 intended to suggest that rape trauma syndrome is not generally recognized 12 or used in the general scientific community from which it arose, but only that 13 it is not relied on in that community for the purpose for which the 14 prosecution sought to use it in this case, namely, to prove that a rape 15 in fact occurred. Because the literature does not even purport to claim that 16 the syndrome is a scientifically reliable means of proving that a rape 17 occurred, we conclude that it may not properly be used for that purpose in a 18 criminal trial. (Bledsoe at 251.) 19 20 The Bledsoe court invoked Kelly/Frye in resolving the therapeutic diagnosis of 21 rape trauma syndrome. Notably, the court focused on the manner in which the evidence 22 was used at trial. The expert testimony in Bledsoe resolved the ultimate factual issue 23 before the factfinder. The issue was whether Bledsoe had raped the victim, the expert 24 testified that the victim had been raped. The California Supreme Court rejected the use 25 of the diagnosis for that purpose. The Stoll Court notes that the reasoning in Bledsoe 26 considered among other factors, that “the syndrome is an inappropriate means of 27 deciding the intricate legal issue of consent.” (Stoll at 1160-1161, citing Bledsoe at 249- 28 250.) 19 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 A series of California Court of Appeal cases subsequently applied the reasoning of 2 Bledsoe to other psychological diagnoses. A common theme that emerges from these 3 cases is a concern that the proffered psychological diagnosis would resolve the ultimate 4 issue before the factfinder. 5 People v. Roscoe (1985) 6 7 In People v. Roscoe at issue was the testimony of a clinical psychologist who 8 diagnosed the complaining witness as a victim of child molestation. (People v. Roscoe 9 (1985) 168 Cal. App. 3d 1093). The Roscoe court cited to Bledsoe and determined that 10 under Evidence Code § 352 analysis, a psychological diagnosis going to the ultimate 11 factual question before the jury was inadmissible. (Roscoe at 1099.)12 Where the expert refers to specific events, people, and personalities and 13 bases his opinion as to credibility on his diagnosis of this witness, then the 14 conclusion that the witness is credible rests upon the premise that the 15 diagnosis is accurate, and that in fact molestation had occurred. The jury in 16 effect is being asked to believe the diagnosis, to agree that the doctor's 17 analysis is correct and that the defendant is guilty. Such a result would 18 subvert the sound rule adopted by a unanimous Supreme Court in Bledsoe. 19 It follows, therefore, that the expert testimony authorized by Bledsoe to 20 permit rehabilitation of a complainant's credibility is limited to discussion of 21 victims as a class, supported by references to literature and experience 22 (such as an expert normally relies upon) and does not extend to discussion 23 and diagnosis of the witness in the case at hand. 24 While we believe that this reading of Bledsoe is proper, we find as an 25 independent ground of decision that all of the above considerations 26 required the trial court to exclude this testimony under Evidence Code 27 section 352, even though this was not specifically urged in support of 2820 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 defendant's various objections. It would be possible for an expert witness to 2 tell the jury about various studies showing typical responses of victims in 3 molest situations without relying on a detailed analysis of the facts in the 4 case at hand. All of the "probative value" that the prosecution was entitled 5 to could have been preserved by so limiting the doctor's testimony, without 6 creating any "substantial danger of undue prejudice." ( Evid. Code, § 352.) 7 The doctor's discussion of the specific facts of this case in support of his 8 conclusion that the complainant was indeed a victim of molestation by the 9 defendant had all the force of a district attorney's closing argument, and 10 even greater impact since it was delivered in clinical terms by a "doctor" 11 purporting to make an objective scientific analysis. 12 - Conclusion - We conclude that the court erred in admitting the 13 psychologist's testimony diagnosing the complainant as a molestation 14 victim. (People v. Roscoe 168 Cal. App. 1093 at 1099-1100.) 15 16 In re Sara M. (1987) 17 The Califonia Court of Appeal again applied Bledsoe and specifically conducted 18 Kelly/Frye analysis of “child molest syndrome” in In re Sara M. (1987) 194 Cal. App. 3d 19 585. In light of Bledsoe, the court looked to the purpose for which the diagnosis of child 20 molest syndrome was offered. (In re Sara M. 194 Cal. App. 3d at 592.) The court 21 determined that the evidence was offered to show the child was sexually abused and 22 exhibits behavior consistent with sexually abused children. (Id.) The court thus found 23 that the Kelly/Frye test was applicable to the psychological diagnosis of “child molest 24 syndrome.” (Sara M. at 592.) The court then went on to address whether “child molest 25 syndrome” survived Kelly/Frye scrutiny for the purposes it was used in the trial. This 26 portion of Sara M. is discussed below in Issue III (whether paraphilia non-consent 27 survives Kelly/Frye.) 2821 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 People v. Bowker (1988) 2 The California Court of Appeal was tasked with determining whether the 3 Kelly/Frye and Bledsoe rule applied to “child sexual abuse accommodation syndrome” 4 (CSAAS) in People v. Bowker (1988) 203 Cal. App. 3d 385. Bowker was charged with 5 violating Penal Code § 288. At trial the prosecution called a psychologist to testify about 6 CSAAS. Following a 402 hearing, the trial judge ruled that the psychologist could only 7 discuss the syndrome as it applied to a class of victims and not to any individual victims 8 in the case. (Bowker at 389.) The court of Appeal was asked to define the limits of the 9 Bledsoe rule. 10 11 Defining the limits of the Bledsoe exception is not an easy task. There is at 12 least potential tension in a rule which would reject CSAAS testimony when 13 offered in the main case but allow similar evidence if presented for rebuttal 14 purposes. We are not alone in noting this tension: "[Courts] which 15 subjected the testimony to searching inquiries regarding relevance, 16 unfair prejudice, the Frye rule, etc. when it was offered in the case-in- 17 chief to prove that the crime occurred, often, without explanation, treated 18 the testimony much more leniently when it was offered in rebuttal to explain 19 the unusual behavior of the complainant." (McCord, Expert Psychological 20 Testimony About Child Complainants in Sexual Abuse Prosecutions: A 21 Foray Into the Admissibility of Novel Psychological Evidence (1986) 77 J. 22 Crim. L. & Criminology 1, 64, n. 1, 64, n. 317.) (People v. Bowker at 392.) 2324 The court in Bowker found that “Bledsoe must be read to reject the use of CSAAS 25 evidence as a predictor of child abuse.” (Bowker at 393). The Bowker court held that it 26 was clear that the psychologist’s testimony on CSAAS during the trial “exceeded the 27 permissible limits of the Bledsoe exception.” (Bowker at 394.) 2822 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 A central theme to the reasoning of Bledsoe, Roscoe, Sara M. and Bowker is that 2 the courts excluded a psychological diagnosis that answered the ultimate question before 3 the factfinder. This exact issue is presented in an SVP case when paraphilia non- 4 consent is the proposed diagnosis. The second element of the jury instruction for 5 commitment as an SVP is that “[h]e has a diagnosed mental disorder.” (CALCRIM 3454.) 6 When a psychiatric expert testifies that in their opinion the patient “has a diagnosed 7 mental disorder” this goes to the ultimate issue in the SVP trial. Because paraphilia non- 8 consent has no accepted definition, it leaves the judge or jury on poor footing to assess 9 the reliability or validity of the expert’s opinion. 10 In conclusion, the California cases discussed above do not represent a bar on 11 Kelly/Frye scrutiny of a psychological diagnosis. Instead, they are all in harmony in 12 considering the two principles on whether Kelly/Frye applies even in the case of a 13 psychological diagnosis. These opinions demonstrate the need determine whether 14 paraphilia non-consent is: 1) a scientific technique new to science and the law and 2) 15 carries the aura of scientific infallibility. 16 17 18 ISSUE II(b): Is paraphilia non-consent a new scientific technique? 19 20 A. Paraphilia Non-Consent is a Psychological Technique that is New to 21 Science and the Law 22 Even a scientific technique that has been used in a given field by state 23 government officials as a common practice for decades can be considered new to 24 science and the law. (People v. Leahy (1994) 8 Cal. 4th 587 at 605-606.) Two factors 25 must be considered when determining if a technique is new to science and the law. First, 26 repeated use, testing and confirmation by scientists is more important than use by 27 professionals in a specific field. (Leahy at 605). Secondly, if a given scientific technique 2823 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 has been repeatedly challenged in court in this state and other states it cannot be 2 characterized as settled in law. (Leahy at 606.) 3 In 1994 the California Supreme Court gave a detailed explanation of whether 4 horizontal gaze nystagmus (HGN) was new to science and the law in People v. Leahy. 5 The Leahy Court concluded that HGN was indeed a new scientific technique. (Leahy at 6 605.) The Court in Leahy concluded that Kelly/Frye did apply to HGN and remanded the 7 case to the trial court for an evidentiary Kelly/Frye hearing. (Id. at 612-613.) The People 8 argued that HGN was not a new scientific technique.9 The People observe that HGN testing has been used by law enforcement 10 agencies for more than 30 years. A 1988 annotation confirms that "[t]he 11 horizontal gaze nystagmus (HGN) test has been in use for 30 years, but it 12 has not been widely applied in the United States until recently." (Annot., 13 Horizontal gaze nystagmus test: use in impaired driving prosecution (1988) 14 60 A.L.R.4th 1129, 1131, italics added and fn. omitted.) This annotation 15 observes that the HGN symptom was first recognized in the 1960's in 16 connection with barbiturate use, but the earliest court decision cited by the 17 annotation as addressing the admissibility of HGN test results was decided 18 in California in 1984 ( People v. Loomis, supra, 156 Cal.App.3d Supp. 1), 19 and that case disallowed the evidence. (Leahy at 605.) 20 After finding that the use of HGN by CHP for 30 years was not dispositive, the 21 Leahy Court then identified two factors that should be considered in resolving if a 22 technique is new. First, repeated testing and confirmation by scientists. Secondly, its 23 acceptance by courts in this state and other states. 24 In determining whether a scientific technique is "new" for Kelly purposes, 25 long-standing use by police officers seems less significant a factor than 26 repeated use, study, testing and confirmation by scientists or trained 27 technicians. Unlike the psychiatric tests involved in Stoll, supra, 49 Cal.3d 2824 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 at pages 1157 to 1158, HGN testing has been repeatedly challenged in 2 court, with varying degrees of success, in this and other states, and 3 accordingly its courtroom use cannot fairly be characterized as "routine" or 4 settled in law. (See Annot., supra, 60 A.L.R.4th 29, and cases cited; People 5 v. Williams, supra, 3 Cal.4th at p. 1336, and cases cited.) Our survey of 6 decisions from states that recognize the Frye standard indicates that, 7 despite wide controversy regarding the admissibility of HGN evidence for 8 purposes of establishing probable intoxication, most courts agree that HGN 9 testing is subject to that standard. 10 Given the recent history of legal challenges to the admissibility of HGN test 11 evidence in this and other states, it seems appropriate that we deem the 12 technique "new" or "novel" for purposes of Kelly. To hold that a scientific 13 technique could become immune from Kelly scrutiny merely by reason of 14 long-standing and persistent use by law enforcement outside the laboratory 15 or the courtroom, seems unjustified. (Leahy at 605-606). 16 17 These two factors are applied to paraphilia non-consent below. 18 a. Paraphilia non-consent has not been repeatedly tested and 19 confirmed by scientists. 20 A brief look at the existing literature on the psychology of rape demonstrates that 21 that paraphilia non-consent is novel and has not been repeatedly tested and confirmed 22 by scientists. In fact paraphilia non-consent has been repeatedly rejected by the 23 American Psychiatric Association due to questionable reliability and validity. Suspiciously, 24 interest in using a paraphilia that had been rejected by the APA for inclusion in the DSM 25 suddenly blossomed with the advent of SVP commitment statutes, and state evaluators 26 tasked with identifying mental disorders corresponding with enumerated sexually violent 27 offenses. 2825 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 2 Men Who Rape: The Psychology of the Offender (1979) A. Nicholas Groth 3 In 1979 Dr. A. Nicholas Groth authored Men Who Rape: The Psychology of the 4 Offender. Dr. Groth worked as the chief psychologist at the Massachusetts Center for 5 the Diagnosis and Treatment of Sexually Dangerous Persons; he then went on to work 6 as the director of a sex offender program for the State of Connecticut’s Department of 7 Corrections. (Groth, Nicholas A. (1979) Men Who Rape: The Psychology of the Offender 8 at vii.) In this 227 page work, Dr. Groth covers rape myths, psychodynamics of rape, 9 clinical aspects of rape, patterns of rape, and guidelines for assessment and treatment. 10 (Men Who Rape.) In his chapter on the clinical aspects of rape, Dr. Roth assesses the 11 state of diagnostic classification as it stood in 1979. 12 Rape is recognized as a sexual offense, but it has yet to be officially listed 13 as a sexual deviation. Probably because of the ambiguity surrounding the 14 concept of deviation and the absence of clinical data pertaining to the 15 psychology of rape, the rationale for its inclusion under the category of 16 sexual deviation has not been apparent. Rather than being understood to 17 result from inner psychological determinants within the offender, rape is 18 more often viewed as the outcome of external situational factors. It is ironic 19 that there is an abundance of psychological literature pertaining to what is 20 essentially unconventional but consenting sexual behavior and a paucity of 21 information about those forms of sexual behavior that jeopardize the safety 22 of others. (Men Who Rape at 104.) 23 Later in the book, in the chapter titled: Guidelines for Assessment and Treatment, Dr. 24 Groth revisits the question of whether rape is a mental disorder. Dr. Groth outlines his 25 approach for assessment and treatment. 26 From the initial assessment, the psychological defects of the offender are 27 identified, together with an estimation of their seriousness, which leads then 2826 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 to the development of an individualized plan of treatment or management 2 for the patient. The diagnostic task is to determine what is wrong with the 3 offender, what has led him to commit the sexual offense, and what can be 4 done to remedy the situation. Since rape is the sexual expression of power 5 and anger, each facet of the offender’s life, each area of his development 6 and functioning should be explored to determine how traumatic or how 7 conflict-free it has been. … Rape is not a symptom of a mental illness 8 but of a personality dysfunction. (Men Who Rape: The Psychology of the 9 Offender at 214-215.) 10 At the time Dr. Groth penned the above passages in 1979, the DSM III had not yet 11 been published. When the DSM III was published in 1980, this represented the first time 12 that the American Psychiatric Association had rejected inclusion of a rape paraphilia in 13 the DSM. This was not the last. Paraphilia non-consent or paraphilic coercive disorder 14 was rejected from inclusion in the subsequent edition the DSM-III-R published in 1987. 15 Once again paraphilia non-consent was rejected in the DSM-IV published in 1994. The 16 APA rejected paraphilia non-consent for a fourth time from inclusion in the DSM-IV-TR 17 published in 2000. This however did not curtail efforts to include paraphilia non-consent 18 in the latest version of the DSM the DSM 5 published in 2013. Once again the APA 19 rejected the diagnosis. The diagnosis was not simply rejected from inclusion in the eight 20 listed paraphilic disorders with criteria sets. Paraphilia non-consent was not even 21 included among the six examples of other specified paraphilic disorders: arousal to 22 obscene phone calls, corpses, animals, feces and enemas. In addition, the APA rejected 23 paraphilia non-consent from inclusion in the section of the DSM devoted to “Conditions 24 for Further Study.” Despite rejection in the DSM-III, DSM-III-R, DSM-IV, DSM-IV-TR, and 25 the DSM-5, the incentive of state evaluators to use paraphilia non-consent in the context 26 of SVP commitment or rapists was seemingly irresistible.6 27 6 Dr. Robert Owen an evaluator working for California Department of Mental Health, has testified that he 28 was paid $1,500,000.00 in 2007 by the State of California for conducting SVP evaluations. 27 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 Evaluating Sex Offenders (2002) Dennis Doren 2 In 2002 Dennis Doren outlined six factors that could be used in making a 3 diagnosis of paraphilia non-consent. (Evaluating Sex Offenders (2002) Dennis Doren at 4 63-86.) Testimony by Dr. Doren reveals that his proposed diagnosis had not been 5 accepted by the DSM nor by any other professional organization. 6 In Brown v. Waters supra 559 F.3d 602, the Seventh Circuit Court of Appeals 7 considered whether use of paraphilia non-consent violated due process (not Kelly/Frye). 8 The Brown court quoted some of the testimony of Dr. Doren at the trial court. 9 On cross-examination, Dr. Doren admitted that the indicators used to reach 10 a diagnosis of paraphilia NOS nonconsent were not identified in the DSM; 11 instead, they were indicators Dr. Doren himself had identified to "bridge the 12 gap or deficiency [that] . . . exist[s] in the DSM[]" that he had "offered to the 13 field" in his own book on the subject of civil commitment. Wis. R.95, Tr.AA 14 at 32, 34. When asked for a professional organization that accepted 15 his clinical indicators for the diagnosis of paraphilia NOS nonconsent, 16 Dr. Doren further admitted that there "isn't a single one." (Id. at 33.) 17 (Brown v. Waters at 606.) 18 This attempt to bridge the gap between accepted clinical diagnoses in the DSM 19 and his own intuition promoted the use of a definition lacking in validity and 20 reliability. The problem with Dennis Doren’s speculation as to factors that could be 21 of assistance in making a paraphilia non-consent diagnosis is it that it created the 22 aura of validity and reliability when it was only his opinion. 23 Attached to this motion as Exhibit 8 is a copy of an 2012 Open Letter from Mental 24 Health Professionals, Sex Educators, and Researchers Urging the APA to Exclude 25 Unreliable Paraphilic Proposals from the DSM-5. This letter specifically requests that the 26 DSM-5 not include the proposed diagnosis of Paraphilic Coercive Disorder, as this “would 27 2828 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 confer back-door legitimacy to the invalid construct. Rather than a mental disorder, rape 2 is a crime for which the proper placement is prison.” (Exhibit 8 at 2.) 3 Paraphilia non-consent has not been repeatedly confirmed by scientists. Instead 4 the purported diagnosis has been repeatedly rejected by science. 5 b. Paraphilia non-consent has been challenged in court in California 6 and other states 7 As stated supra. in People v. New (2013) 992 N.E. 2d 519, the Appellate Court of 8 Illinois was presented with an SVP commitment case, in which evidence had been 9 admitted that Mr. New suffered from “paraphilia, not otherwise specified, sexually 10 attracted to early prepubescent males.” (New 992 N.E. 2d at 523.) The New court held 11 that “a Frye hearing is appropriate to determine whether an emerging diagnosis is an 12 actual illness or disorder.” (Id.) The analysis of the court in New regarding the use of the 13 wastebasket diagnosis paraphilia not otherwise specified to insert the rejected diagnosis 14 of hebephilia, is the same as the use of other specified paraphilic disorder to insert the 15 rejected diagnosis of non-consent. 16 In addition as shown supra., the court in New cited to decisions in which 17 Kelly/Frye challenges had been brought challenging paraphilia diagnoses. In Ward, the 18 California Court of Appeal obliquely addressed the vague diagnoses of pedophilia and 19 “paraphilia” and concluded Kelly/Frye did not apply. In Detention of Berry supra. (160 20 Wn. App. 374, 248 P.3d 592), the Washington Court of Appeals held that the diagnosis of 21 paraphilia NOS nonconsent was “not subject to a Frye hearing because psychological 22 analysis is a generally accepted methodology, and because arguments as to the validity 23 of a diagnosis go to the weight of expert testimony, not admissibility.” (Id. supra.) 24 25 Matter of State of New York v. Kareem M. 26 A well-reasoned decision by a trial court in New York on March 29, 2016 goes into 27 detail explaining the controversy surrounding paraphilia non-consent as a diagnosis in 2829 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 context of SVP commitment.7 (Matter of State of New York v. Kareem M. (2016) N.Y. 2 Misc. LEXIS 1029, 36 N.Y.S.3d 410.) It should be noted that the opinion is accompanied 3 by the following notice: “this opinion is uncorrected and will not be published in the 4 printed official reports. Published in table format in the New York Supplement.” 5 Nonetheless, this opinion presents testimony and published articles relevant to the issue 6 at hand. In, Kareem M., the trial court was faced with whether Other Specified Paraphilic 7 Disorder (OSPD) Non-Consent satisfied the requirements of Frye. The opinion by the 8 trial court, the “Supreme Court of New York,”8 in Kareem M. contains a comprehensive 9 review of the state of paraphilia non-consent in the psychiatric community. A copy of the 10 opinion in Kareem M. is attached to this motion as Exhibit 1. The court in Kareem M. 11 held “that these diagnoses are not generally accepted in the relevant scientific community 12 under the Frye standard.” (Kareem M. at 1-2). 13 Kareem M. was not officially published, but Kareem M. summarized previous 14 decisions by the New York State Court of Appeals (the equivalent of the State Supreme 15 Court in states such as California) that question the validity of paraphilia non-consent in 16 dicta. This summary of the Court of Appeal decisions is stated below. 17 1. The View From the Court of Appeals: 18 "Junk Science Devised For the Purpose of Locking Up Dangerous 19 Criminals" 20 In Kenneth T., the Court's four judge majority decision dismissed the 21 petition on grounds of legal insufficiency. The majority also addressed the 22 Non-Consent diagnosis at issue here, however. The Court's assertions 23 regarding that diagnosis relied on an earlier three judge dissenting opinion 24 in State v. Shannon S., 20 NY3d 99, 980 N.E.2d 510, 956 N.Y.S.2d 462 25 (2012) which opined that a different Article 10 diagnosis would likely not 26 7 The SVPA equivalent in New York is the Sex Offender Management and Treatment Act (SOMTA). 27 (Article 10 of the mental Hygiene Law) (Kareem M. at 1.) 8 In New York the trial courts are dubbed the “Supreme Court of New York” while the highest state court is 28 the New York Court of Appeals. 30 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 meet the Frye test. The Kenneth T. Court's assertions about the Non- 2 Consent diagnosis, and other appellate rulings on Article 10 Frye issues, 3 have prompted a wave of motions in New York courts about whether 4 various diagnoses and assessments applied in Article 10 cases are 5 generally accepted.6 In Kenneth T. the State's expert testified that the Respondent, who had 7 been convicted of one completed and one attempted forcible rape, had 8 Paraphilia NOS involving fantasies, urges and behaviors towards non- 9 consenting persons. The Court first asserted that "Paraphilia NOS is a 10 controversial diagnosis" and a "catch-all" category for diagnoses not 11 specifically listed in the DSM. 24 NY3d at 186. The Court went on to note 12 that the three dissenting judges in Shannon S. who were now part of the 13 Kenneth T. majority, had said the paraphilia NOS diagnosis presented by 14 two of the state's expert witnesses in that case "amoun[ted] to junk science 15 devised for the purpose of locking up dangerous criminals" and expressed 16 "grave doubt" such a diagnosis would survive a Frye hearing. Id., quoting 17 Shannon S., supra, 20 NY3d at 110 (Smith, J., dissenting). In Shannon S., 18 however, the Paraphilia NOS Non-Consent diagnosis was not at issue. The 19 expert in that case diagnosed the Respondent with Paraphilia NOS 20 Hebephelia, which he defined as a paraphilic attraction to pubescent girls. 21 (Kareem M. at 55-58, quoting State v. Shannon S. (2012) 20 NY3d 99, 980 22 at 110.) 23 Although, the decision in Shannon S. was regarding the use of paraphilia not 24 otherwise specified: hebephilia, the reasoning of the court extends by analogy to the 25 flaws inherent in paraphilia non-consent. The scholarship and case law presented by the 26 court in Kareem M. demonstrates that just like the HGN testing at issue in Leahy, 27 paraphilia non-consent “has been repeatedly challenged in court, with varying degrees of 2831 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 success, in this and other states, and accordingly its courtroom use cannot fairly be 2 characterized as “routine” or settled law.” (Leahy at 606, emphasis in original.) 3 Application of the two factors from Leahy clearly demonstrate that paraphilia non- 4 consent must be considered a scientific technique that is new to science and the law. 5 First, rather than repeated testing and confirmation by scientists, paraphilia non-consent 6 has been repeatedly rejected by the APA. Secondly, paraphilia non-consent has been 7 repeatedly challenged under Frye in other states, successfully so in Kareem M. 8 Therefore, paraphilia non-consent is a scientific technique that is new to science and the 9 law. 10 11 ISSUE II(c): Does paraphilia non-consent carry the aura of scientific 12 infallibility? 13 14 A. The Use of Paraphilia Non-Consent in SVP Proceedings Appears to 15 Provide a Definitive Truth Analogous to a Machine that Only the 16 Psychologist Can Calibrate and Read. 17 When a new scientific technique appears to provide a definitive truth, analogous to 18 a machine that only the operator can calibrate and read, such testimony carries the aura 19 of scientific infallibility requiring Kelly/Frye scrutiny. As Stoll makes clear, “absent some 20 special feature which effectively blindsides the jury, expert opinion testimony is not 21 subject to Kelly/Frye.” (Stoll at 1157.) 22 While most of these cases deal with the impact on a jury, judges and lawyers are 23 also considered lay persons when it comes to psychiatric training and expertise. The 24 need to apply Kelly/Frye gatekeeping is equally valuable when a judge sits as factfinder 25 because it cedes the question of validity to the appropriate consensus of experts in the 26 field. If upon review a new scientific technique fails to satisfy Kelly-Frye the judicial 27 factfinder can then simply disregard and exclude this evidence during the trial, this 2832 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 obviously confers a benefit to the judicial factfinder in rendering a decision at the 2 conclusion of the case. 3 a. Scientific techniques beyond the common experience of factfinders 4 present the aura of scientific infallibility 5 Although it may seem to veer from the topic at hand, a review of California cases 6 on a dog’s sniffing powers are instructive in understanding whether a technique carries 7 the aura of scientific infallibility. 8 People v. Jackson (2016) 9 In People v. Jackson, Mr. Jackson was convicted of murder, as well as other 10 charges, and was sentenced to death. (Jackson 269-284.) The evidence at issue was 11 scent trailing by a dog. Canine Officer Maggie at the police station was presented with a 12 scent pad taken from a shoe print at the crime scene. After taking the scent Maggie 13 trailed the scent through the police station and then approached suspect Jackson who 14 was seated in the police station and stopped next to him. (Jackson at 292.) Jackson 15 challenged the trial court’s rejection of his request to hold a Kelly hearing before admitting 16 evidence of the scent trailing. (Id. at 315.) The California Supreme Court found that a 17 Kelly/Frye hearing was not required. “[W]e conclude that a Kelly hearing was not 18 necessary before the jury could hear the dog trailing evidence.” (Jackson at 320.) 19 People v. Mitchell (2003) 20 However, the Court in Jackson distinguished the facts before it from the Court of 21 Appeal decision in People v. Mitchell (2003) 110 Cal. App 4th 772. (Jackson at 319.) In 22 Mitchell, the Court of Appeal held that the trial court had erred by admitting evidence of a 23 scent lineup without first holding a Kelly hearing. (Jackson at 319, citing Mitchell at 791- 24 793.) “The court in Mitchell stressed the opacity and apparent infallibility of a scent 25 lineup as a basis for applying Kelly. ‘A scent identification by [a dog] appears to provide a 26 definitive truth, with [the dog] being analogous to a machine that [the handler] (and only 27 [the handler]) can calibrate and read.’” (Jackson at 319 quoting Mitchell at 793 emphasis 2833 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 added.) The Jackson Court did not disturb the holding of Mitchell as applied to a scent 2 lineup. 3 As Jackson and Mitchell make clear, dog sniffing evidence is not categorically 4 excluded from Kelly/Frye scrutiny. Although the Jackson Court declined to apply 5 Kelly/Frye, it left the decision in Mitchell undisturbed. A key difference is apparent in 6 these two decision. That difference is trust. In Jackson, the Court felt that ordinary 7 people have enough of an understanding of a dog’s ability to follow a scent9 to allow them 8 to view the evidence of Maggie’s investigation with the appropriate skepticism that all law 9 enforcement officers can make mistakes even canine officers. Conversely, in Mitchell the 10 court noted that a scent lineup with multiple people in the same room left much of the 11 dog’s process shrouded in mystery. In effect the jurors, with little experience of selecting 12 an individual human when presented with a group of humans have to place their trust in 13 the dog’s unique expertise in such matters. If the scientific community affirmed that dogs 14 do indeed have this power, then presenting evidence of this skill to a jury would 15 appropriately carry the aura of scientific infallibility. 16 People v. McDonald (1984) 17 The issue of trust presents itself again in McDonald supra. In McDonald, the Court 18 declined to apply Kelly/Frye to psychological testimony on issues with eyewitness 19 identification. (McDonald 37 Cal. 3d 351.) In its reasoning the court found that the jury 20 would not be “unduly impressed” by testimony of how “certain aspects of everyday 21 experience” can affect memory. (McDonald at 373.) Because jurors can understand that 22 they themselves have some memory problems they can critically review the experts 23 testimony, this is similar to a juror’s experience smelling a pumpkin pie baking and trailing 24 it to the oven. There is no need for the jury to place their trust completely in a process 25 beyond their understanding. Unlike smelling pies and forgetting things, conducting a 26 voyage into a psychiatric patient’s mind while conducting a psychological evaluation 27 9 For instance a dog’s ability to smell bacon on a countertop and jump up to eat it. (A feat which has been 28 accomplished by humans as well.) 34 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 derived from a learned professional art requires knowledge, training and experience 2 beyond that which most lay persons possess. 3 b. The Unique Problem Presented by the Element “Diagnosed Mental 4 Disorder” 5 The specific problem presented in SVP commitments is obvious upon a close look 6 at the SVP jury instruction. The second element of CALCRIM 3454 requires that “[h]e 7 has a diagnosed mental disorder.” The verb “diagnosed” can prove extremely 8 problematic for factfinders attempting to scrutinize an expert’s psychiatric opinion. 9 The shroud of infallibility that cloaks a diagnosis of paraphilia non-consent is 10 especially troubling because there is no definition for this purported diagnosis. Unlike 11 mental disorders that have been recognized and endorsed by the APA in the DSM, such 12 as pedophilic disorder or sexual sadism disorder, paraphilia non-consent exists in 13 uncharted and undefined waters. While pedophilic disorder, and sexual sadism disorder 14 have clearly defined criteria sets that have been approved and endorsed by the APA, a 15 diagnosis of paraphilia non-consent is concocted using whatever strikes the expert’s 16 fancy. 17 Much like answers from a Ouija board, a paraphilia non-consent diagnosis is 18 impossible to critique. As there is no accepted definition, each evaluator intuitively 19 arrives at a diagnosis based on whatever factors or elements they personally find 20 important. If an expert witness testifies that a patient meets the definition of pedophilic 21 disorder, the jury can compare the expert’s analysis to the criteria set for pedophilic 22 disorder and judge for themselves whether the facts needed for the diagnosis have been 23 met. Jurors confronted with the diagnosis of paraphilia non-consent are in deep water. 24 They must assess the accuracy, reliability and validity of the expert’s idiosyncratic and 25 subjective assessment with no agreed upon definition for paraphilia non-consent. They 26 have no way of evaluating the expert’s opinion against objectively accepted criteria sets 27 that are approved by the APA. This distinction is immense when considering the task of 2835 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 the lay trier of fact whether they are jurors or a judge. Lay factfinders lack training and 2 expertise in psychology and have almost no basis to challenge the expert’s interpretation. 3 With no ability to review or assess the expert’s opinion, factfinders must simply assume 4 that if the expert says so then it must be so. 5 The far simpler and preferable method to determine the validity of a diagnosis is to 6 turn to the scholarship of experts in the field. It is impossible for lay jurors to accumulate 7 and replicate the vast knowledge and experience of the American Psychiatric 8 Association. It makes little sense to task laypersons with determining the validity of a 9 diagnosed mental disorder when the very purpose of the DSM is to establish criteria sets 10 for those mental disorders that can be reliably and validly diagnosed. Decades of clinical 11 expertise, study, debate and criticism by psychologists and psychiatrists world-wide has 12 led to the accumulated knowledge contained in the DSM. Asking jurors to sift through the 13 available research on this controversy and determine the validity of a psychiatric 14 diagnosis is not asking them to reinvent the wheel, but to reinvent the space shuttle. 15 People v. Bowker16 The risk presented by paraphilia non-consent in SVP cases, is similar to the 17 concerns that the court in Bowker had regarding the use of child sexual abuse 18 accommodation syndrome. (People v. Bowker supra. 203 Cal. App. 3d 385.) 19 Fundamentally, Bledsoe must be read to reject the use of CSAAS evidence 20 as a predictor of child abuse. It is one thing to say that child abuse victims 21 often exhibit a certain characteristic or that a particular behavior is not 22 inconsistent with a child having been molested. It is quite another to 23 conclude that where a child meets certain criteria, we can predict with a 24 reasonable degree of certainty that he or she has been abused. The former 25 may be appropriate in some circumstances; the latter -- given the current 26 state of scientific knowledge -- clearly is not. 27 2836 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 While the impropriety in the latter situation is clearest where the expert's 2 testimony applies the CSAAS theory to the facts of the case and concludes 3 that the victim was molested, it is also present where the expert gives 4 "general" testimony describing the components of the syndrome in such a 5 way as to allow the jury to apply the syndrome to the facts of the case and 6 conclude the child was sexually abused. In fact, there may be more danger 7 where the application is left to the jury because the jurors' education and 8 training may not have sensitized them to the dangers of drawing predictive 9 conclusions. The expert may be aware that although victims of child abuse 10 generally exhibit a particular type of behavior, that behavior is also found in 11 significant numbers of children who have not been molested. The jury may 12 not be similarly cognizant. (People v. Bowker supra. 203 Cal. App. 3d 385, 13 393.) 14 Scholarship by experts in the field of psychiatry demonstrates similar concerns. 15 16 Frances and Halon (2013) The Uses and Misuses of the DSM in Forensic Settings 17 In 2013 Dr. Allen Frances and Dr. Robert Halon published an article addressing 18 the misuses of the DSM in the forensic setting. (Frances A. & Halon R. (2013) The Uses 19 and Misuses of the DSM in Forensic Settings Psychol. Inj. And Law.) Dr. Frances and 20 Dr. Halon explain the distinction between clinical use of a diagnosis and forensic use of a 21 diagnosis. They emphasize the additional rigor that should be applied when considering 22 the accuracy, reliability, and validity of a psychiatric diagnosis when it is used in a 23 forensic setting. 24 Forensic usage should set the highest standard for accurate 25 diagnosis in expert testimony; however, we have seen too many cases in 26 which it fails to meet even the lowest. Jurors have enough trouble making 27 sense of technical psychiatric terms. It gets impossibly muddied when 2837 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 experts arrive at their diagnoses carelessly using only their clinical 2 judgement – absent data gathered in systematic and comprehensive 3 diagnostic interviews, without consideration of opposing possibilities, 4 without supporting documentation, without adequate analysis of the 5 relationship between the DSM diagnostic criteria and the legal question at 6 hand, and with the obvious appearance of attempting to support one side or 7 the other in the adversarial process…. 8 Diagnoses that have failed to earn a place in the DSM system should 9 not be dignified or validated by acceptance in the courts for decision- 10 making purposes…. [T]he use of idiosyncratic clinical judgement is not 11 appropriate for decision-making in forensic cases. The gain in clinical 12 flexibility has too great a cost in the loss of forensic reliability. The forensic 13 situation should prize reliability over creativity and discourage anything but 14 the tightest adherence to the diagnostic criteria listen in the DSM. (Frances 15 & Halon (2013) at 3.) 16 Dr. Frances and Dr. Halon go on to specifically address the use of paraphilia non- 17 consent in SVP evaluations. They explain how an error perpetuated by Dr. Dennis Doren 18 became a routine error by SVP evaluators. 19 Doren’s endorsement of “Paraphilia NOS” in SVP cases also ignored the 20 fact that it could not possibly be diagnosed with sufficient reliability or 21 accuracy given the lack of specific DSM criteria for making NOS diagnoses 22 and the inability to reliably determine what precisely was sexually arousing 23 (i.e., the aggressive behavior, per se, or the sexual contact obtained 24 through the aggression). 25 Hundreds of evaluators have followed Doren’s error, resulting in the 26 inappropriate psychiatric incarceration of thousands of rapists who have no 27 real psychiatric diagnosis. Uncritical adoption of Doren’s invention was 2838 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 initially understandable since Doren was considered an authority in the 2 field. However, there should have been a bit more critical analyses of the 3 issue before adopting it in their forensic testimony as if it were a valid 4 diagnosis. It is much more understandable that judges and juries – 5 laypersons – would accept the supposedly expert testimony even 6 though it is far off the mark. While ignorance of the fine points of 7 paraphilia diagnosis might have been understandable at the start of the 8 implementation of the SVP laws, there is no excuse for the continuing 9 unreliable and unsupported use of Paraphilia NOS in SVP cases…. Some 10 evaluators continue to diagnose Paraphilia NOS in rapists just because 11 they have raped…. Their reports and testimonies from which the layperson 12 triers must make their decisions – are filled with incorrect, idiosyncratic 13 opinions offered as definitively clinically diagnostic and as addressing the 14 statutorily defined SVP criteria.… If ever a rigorous application of Daubert 15 v. Merrell Dow Pharmaceuticals, Inc.10 and what constitutes a “relevant 16 scientific community” were needed, it is here. (Frances A. & Halon R. 17 (2013) at 6-7 [Exhibit 10].) 1819 A. Cases that Do Not apply Kelly/Frye to Psychological Evidence are Not 20 Controlling in Mr. XXXXXX ’s case: Stoll, Phillips, Johnson, and Ward 21 The following cases find that Kelly/Frye did not apply to the psychological 22 evidence at issue. All of these cases are distinguishable from the facts before the court 23 in this case. 24 25 People v. Stoll 26 27 28 10 Daubert and its progeny are the federal version of Kelly/Frye.39 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 The California Supreme Court in Stoll applied the two principles above to the 2 admissibility of the MMPI and other psychological testing. (People v. Stoll supra. 49 Cal. 3 3d 1136.) The Court found that Kelly/Frye did not apply. In Stoll, the Court ruled that the 4 trial court had erred in excluding the testimony of a defense expert that had done 5 psychological testing on the defendant. The underlying criminal case had four 6 defendants John Stoll, Grant Self, Margie Grafton, and Timothy Palomo, these 7 defendants were charged with thirty-six counts of Penal Code (PC) § 288 lewd and 8 lascivious acts against seven young boys. (Stoll at 1141.) 9 The defense called expert witness Dr. Mitchell in Grafton’s case in chief. The 10 prosecution objected based on Kelly/Frye grounds. (Stoll at 1146-1147.) “The trial court 11 ruled that a Kelly/Frye ‘reliability’ showing of an unspecified nature must be made before 12 the jury would be allowed to hear Dr. Mitchell’s testimony.” (Stoll at 1147.) During this 13 Kelly/Frye hearing outside of the presence of the jury the court heard testimony from Dr. 14 Mitchell and argument from counsel. 15 Dr. Mitchell had assessed Grafton using the Minnesota Multiphasic Personality 16 Inventory (MMPI) as well as the Millon Clinical Multi-axial Inventory (MCMI). Dr. Mitchell 17 testified The MMPI was the most widely used psychological test on both a local and 18 national level. (Stoll at 1147.) Dr. Mitchell also explained that the MCMI had achieved 19 widespread acceptance and that studies of the MCMI “showed validity and reliability to be 20 quite high and within accepted standards.” (Stoll at 1148.) Based upon the MMPI and 21 MCMI results Dr. Mitchell formed the “professional opinion” that Grafton “has a normal 22 personality function… and shows no indications of deviancy in any other personality 23 function.” (Stoll at 1149.) Dr. Mitchell concluded “that it is unlikely she would be involved 24 in the event’s she’s been charged with.” (Id. at 1149.) At the conclusion of the hearing, 25 the trial court excluded the proffered testimony reasoning that the defense had not met its 26 burden under Kelly 17 Cal 3d 24. (Stoll at 1150-1151.) 27 2840 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 The Stoll Court set forth the two principles that the technique be new to science 2 and carry the aura of scientific infallibility. (Stoll at 1156). The Court noted that 3 Kelly/Frye can apply to psychological evidence. “However, absent some special feature 4 which effectively blindsides the jury, expert opinion is not subject to Kelly/Frye.” (Id. at 5 1157). The Stoll Court held the following. 6 The psychological testimony proffered here raises none of the concerns 7 addressed by Kelly/Frye. The methods employed are not new to 8 psychology or the law, and they carry no misleading aura of scientific 9 infallibility. (Stoll at 1157.) 10 The facts in Stoll are dramatically different than the facts in the current case. 11 Specifically, and most importantly the psychological testing at issue was generally 12 accepted by the scientific community and the MMPI was the most widely used test. 13 People v. Phillips (1981) 14 In People v. Phillips (1981) 122 Cal. App. 3d 69, the question that the jury had to 15 decide was whether Priscilla Phillips was guilty of murdering one of her two adopted 16 children by force feeding the child salt to induce vomiting. Phillips had taken her adopted 17 daughter Tia to the hospital repeatedly for vomiting and diarrhea of the course of several 18 months. The last time Tia was taken to the hospital she had aspirated on her own vomit 19 and died after being admitted to the hospital. (Phillips at 75-76.) Several months later 20 Phillips repeated the same pattern with another newly adopted daughter. The doctors 21 noticed that the amount of sodium being expelled by the child was far greater than the 22 amount she was ingesting. A sample from the formula Phillips was providing to her 23 daughter revealed sodium levels approximately 30 times the expected amount. (Phillips 24 at 77.) After the discovery of the sodium in the baby’s formula, Phillips was no longer 25 allowed to feed or be near the child without supervision. The second child quickly 26 recovered, when Phillips was no longer allowed access to the formula. (Phillips at 78.) 27 2841 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 Phillips was subsequently charged with and convicted of murdering Tia after a 2 lengthy jury trial. (Phillips at 73.) Dr. Boyd Stephens the Coroner of San Francisco 3 testified “that the cause of Tia’s death was sodium poisoning, and that the amount of 4 sodium was so high it had to be administered through the gastrointestinal tract. (Id. At 5 78.) Another expert witness Dr. Malcolm Holliday, a Professor of Pediatrics at the 6 University of California testified that two to three teaspoons of sodium bicarbonate added 7 to liquid would have displayed the symptoms of Phillip’s two children. In order to suggest 8 a motive for the poisoning of her own children, the prosecution called a Dr. Martin Blinder 9 who testified to various reports in professional journals of the so called “Munchausen 10 syndrome by proxy.” (Phillips at 78.) Although Dr. Blinder did not conduct a clinical 11 evaluation of Phillips he opined based upon a hypothetical question that someone with 12 the same facts as those in Phillips case displayed symptoms consistent with 13 Munchausen syndrome by proxy. (Id. at 78.) 14 Subsequently on appeal from her conviction for murder, Phillips challenged the 15 use of a syndrome that was not recognized by the APA in the DSM. 16 Appellant does not question Dr. Blinder's qualifications to appraise the 17 reliability of these studies, nor does she suggest that information contained 18 in them could feasibly have been presented except through the reported 19 data. (Ibid.) Indeed, she does not directly question the trustworthiness of 20 these studies at all, or the accuracy of Dr. Blinder's interpretation of them to 21 the jury. Rather, she rests upon the proposition that Munchausen's 22 syndrome by proxy is an "unrecognized illness . . . not generally accepted 23 by the medical profession," and points to the fact that the syndrome is not 24 listed or discussed as a form of mental illness in the American Psychiatric 25 Association's Diagnostic and Statistical Manual of Mental Disorders. 26 We are aware of no such requirement. We are not confronted here with the 27 admissibility of evidence developed by some new scientific technique such 2842 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 as voiceprint identification (cf. People v. Kelly (1976) 17 Cal.3d 24, 30-32). 2 nor with conflict within the scientific community. In People v. Jackson 3 (1971) 18 Cal.App.3d 504, 507 the court referred to the "'battered child 4 syndrome'" as an "accepted medical diagnosis" on the basis of medical 5 literature not unlike that presented here. The studies here show intentional 6 poisoning of infants by their mothers to be another form of child abuse. In 7 the absence of some reason to doubt their validity, we find no abuse of 8 discretion in the trial court's decision to allow expert testimony based 9 thereon. (People v. Phillips (1981) 122 Cal. App. 3d 69 emphasis added.)10 The court’s brief analysis in Phillips is distinguishable from the facts of Mr. 11 XXXXXX ’s case in several important aspects. First, Phillips did not challenge the 12 trustworthiness or accuracy of the studies underlying the expert witness testimony on 13 Munchausen’s Syndrome. The only challenge she raised was that it was not included in 14 the DSM. As the Court of Appeal in Phillips notes in footnote 2 “More recent editions of 15 the manual do list Munchausen’s syndrome as a category of mentall illness.” (Phillips 16 122 Cal. App. 3d at 86 fn. 2.) Subsequent editions of the manual have maintained that 17 this is a valid diagnosis most recently identified in the DSM-5 as “Factious Disorder 18 Imposed on Another.” (Diagnostic and Statistical Manual of Mental Disorders Fifth 19 Edition (DSM-5) at 325.) Unlike the diagnosed mental disorder at issue in Phillips, 20 paraphilia non-consent has been rejected by the APA for inclusion in the last five editions 21 of the DSM. Mr. XXXXXX is also hereby challenging the validity and accuracy of a 22 diagnosed mental disorder that has no accepted definition, and no accepted criteria sets. 23 In addition, the court in Phillips specifically states that it was not confronted with 24 “conflict within the scientific community.” In this case, the use of paraphilia non-consent 25 by SVP evaluators in spite of the fact that the diagnosis has been repeatedly rejected by 26 the APA for inclusion in the DSM obviously demonstrates a conflict within the scientific 27 community. In its reasoning, the Phillips court, specifically references studies on 2843 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 Munchausen’s Syndrome, holding that “in the absence of some reason to doubt their 2 validity” that the trial court had not abused its discretion by admitting the evidence. 3 Phillips at 69. In this case there is conflict within the scientific community and the fact 4 that paraphilia non-consent has been rejected in the last five editions of the DSM is 5 clearly a reason to doubt the validity of the diagnosis. 6 Finally, the use of the mental disorder described in Phillips was only tangential to 7 the issues presented in her murder trial. The jury in Phillips was asked to determine 8 whether Phillips was guilty of murder beyond a reasonable doubt. The testimony on 9 Munchausen’s syndrome by proxy was only relevant to show a potential motive for the 10 crime. The diagnosis of Munchausen’s syndrome was not the ultimate question posed to 11 the jury in Phillips. Here, the fundamental issue is whether as a result of a diagnosed 12 mental disorder Mr. XXXXXX is likely to engage in sexually violent behavior. The 13 second element in SVP commitment is that “[h]e has a diagnosed mental disorder.” 14 (CALCRIM 3454.) When an expert trained in psychology or psychiatry testifies that 15 based on their training and experience Mr. XXXXXX has a diagnosed mental disorder 16 this testimony has the appearance of resolving the ultimate issue. For that reason the 17 use of the diagnosis of paraphilia non-consent is dramatically different than the use of 18 Munchausen’s syndrome in Phillips. 19 People v. Johnson (2015) Due-Process not Kelly/Frye Scrutiny 20 In the recent decision People v. Johnson (2015) 235 Cal. App. 4th 80 the 21 California Court of Appeal tangentially discussed the controversy surrounding paraphilia 22 non-consent. The ruling in Johnson does not control in Mr. XXXXXX ’s case. In 23 Johnson, the Court of Appeal considered a habeas petition that raised two challenges to 24 Johnson’s commitment as a sexually violent predator. The diagnosed mental disorder in 25 Johnson was “paraphilia not otherwise specified with non-consenting persons” the court 26 referred to the diagnosis as “paraphilic coercive disorder.” Johnson’s first challenge 27 argued that the petitioner’s case was completely undermined by two pieces of newly 2844 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 discovered evidence, the publication of the DSM-5 and a declaration submitted by Dr. 2 Allen Frances. Johnson’s second challenge was that revisions contained in the DSM-5 3 undermined the testimony of the state’s experts rendering their testimony false evidence. 4 Johnson at 88-89. The court rejected both habeas corpus petitions. Citing to the 7th 5 Circuit Decision in Brown v. Watters (7th Cir. 2010) 599 F.3d 602, the Johnson court 6 stated the following: 7 We think it worth reiterating that the validity of paraphilic coercive disorder 8 was fully litigated at Johnson's trial. Johnson did not object to the 9 introduction of the state's experts' testimony on the subject, and he was 10 able to cross-examine those experts and present the testimony of his own 11 experts. (See Brown v. Watters (7th Cir. 2010) 599 F.3d 602, 612 that 12 diagnosis of paraphilic coercive disorder is acceptable is “strengthened 13 where, as here, able assistance of counsel actually did expose the 14 professional debate to the jury and substantial contrary professional 15 opinions were offered” (original italics)].) Although the fifth edition of the 16 DSM and Dr. Frances's testimony might have bolstered Johnson's 17 arguments if introduced at trial, they do not completely undermine the 18 state's case or render the state's experts' testimony false evidence. 19 Regardless of the publication of the DSM-5, the record before us includes 20 substantial evidence that paraphilic coercive disorder is a legitimate 21 diagnosis and that Johnson suffers from it. (People v. Johnson, 235 Cal. 22 App. 4th 80, 91-92 emphasis added.) 23 The Court of Appeal’s ruling in Johnson is not controlling in Mr. XXXXXX ’s case. 24 The Johnson court notes that “Johnson did not object to the introduction of the state’s 25 experts’ testimony on the subject.” (Johnson at 91.) In this case Mr. XXXXXX has 26 clearly stated his objection to the introduction of evidence of paraphilia non-consent. This 27 motion explicitly requests that this court conduct a Kelly/Frye hearing on the admissibility 2845 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 of paraphilia non-consent and exclude evidence of this diagnosis. Although the Johnson 2 court found that based on the evidence presented during Johnson’s trial that there was 3 substantial evidence of paraphilic coercive disorder as a legitimate diagnosis, that fails to 4 address the question before us here in Mr. XXXXXX ’s case. For the same reason, 5 Brown v. Watters also fails to address the issue before us here in Mr. XXXXXX ’s case. 6 The issue here is not whether during Johnson’s trial the jury was presented with sufficient 7 evidence on which to base their finding. Instead, here the issue is whether the 8 professional debate regarding the validity of paraphilia non-consent should be resolved 9 by a fact-finder in a courtroom, or whether such a debate should be resolved by the 10 relevant scientific community. 11 Neither Johnson nor Brown are controlling in this case. A ruling on the sufficiency 12 of the evidence presented to a jury where no objection was made fails to resolve the 13 threshold issue. The fundamental purpose of the Kelly/Frye test is that of gatekeeper, 14 entrusting the resolution of novel and controversial areas of science to the relevant 15 scientific community. A trial court conducting a Kelly/Frye hearing is not asked to 16 participate in scientific proofs or experiments and then resolve whether a given scientific 17 theory is valid. At its heart, the purpose of Kelly/Frye is to unburden the trial court and 18 ask only that the court determine whether “the technique is generally accepted in the 19 relevant scientific community” and if the witness is a properly qualified expert that 20 correctly performed the technique. (People v. Jackson (2016) 1 Cal. 5th 269 at 315-316.) 21 In this case, Mr. XXXXXX asks that the trial court conduct a hearing to determine the 22 admissibility of paraphilia non-consent by applying the Kelly/Frye test. 23 People v. Ward (1999) 24 The primary authority cited by the People in their moving papers is People v. Ward 25 (1999) 71 Cal. App. 4th 368. As discussed above, under the section addressing whether 26 Kelly/Frye applied to psychological diagnoses, certain flaws exist that undermine the 27 precedential value of Ward generally and especially to navigate the application of 2846 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 Kelly/Frye to paraphilia non-consent. Primarily, as discussed supra., when the Ward 2 decision was published SVP commitment was only two years. Currently, with SVP as a 3 lifetime commitment, courts must consider the greater importance of their gatekeeping 4 role when experts rely upon a rejected diagnosis such as paraphilia non-consent. 5 The most glaring flaw with the reasoning of Ward is a failure to differentiate 6 between different aspects of the experts’ psychological testimony. Later use of Ward as 7 precedent is substantially handicapped by the vague conglomeration of psychological 8 testimony. This is apparent in the description of the evidence relied upon by one of the 9 experts, Dr. Lillie. 10 Lille based his evaluation of defendant on an exhaustive document review. 11 Applying the criteria of the DSM-IV used by psychologists and 12 psychiatrists, Lille diagnosed defendant as suffering from a collection of 13 mental disorders: paraphila (deviant sexual behavior), learning disorders, 14 depression, alcohol dependance, antisocial personality disorder (ASPD), 15 serious functional impairment, and an IQ of 88, well below normal. (Ward 16 at 372.) 17 The Ward court did not distinguish between the different diagnoses. Another critical 18 difference between Ward and the issue of paraphilia non-consent is the fact that the 19 doctors “applied accepted diagnostic techniques in reaching their conclusions” 20 (Ward at 375. emphasis added.) Such is not the case for paraphilia non-consent. The 21 reasoning in Ward did not distinguish between those diagnoses that were accepted by 22 the DSM-IV and those that were not. Pedophilia is generally accepted by the relevant 23 scientific community, and is listed in the DSM, with criteria defining the disorder. 24 Paraphlia non-consent is not. 25 Unlike the diagnoses in Ward that applied accepted diagnostic techniques, 26 paraphilia non-consent has no accepted definition. With no definition to assess the 27 diagnosis lay persons are presented with expert testimony that carries the aura of 2847 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 infallibility. Because paraphilia non-consent presents a unique risk of being perceived by 2 the lay factfinder as scientific infallibility in SVP proceedings, Kelly/Frye scrutiny must 3 apply. 4 5 ISSUE III: Does paraphilia non-consent pass the Kelly/Frye test? 67 A. Application of Kelly/Frye to the Use of Paraphilia Non-Consent in SVP 8 Proceedings Compels the Conclusion that this Diagnosis Is Not Generally 9 Accepted by the Scientific Community and Therefore Must Be Excluded. 10 The Supreme Court in Kelly-Frye set forth a two-step process for determination of the 11 admissibility of expert witness testimony based upon a newly-emerged scientific 12 technique. The court stated: 13 14 "[Admissibility] of expert testimony based upon the application of a new 15 scientific technique traditionally involves a two-step process: (1) the 16 reliability of the method must be established, usually by expert testimony, 17 and (2) the witness furnishing such testimony must be properly qualified as 18 an expert to give an opinion on the subject." (Original italics, People v. 19 Kelly, supra, 17 Cal.3d at p. 30.) Reliability of the evidence is established by 20 showing "the procedure has been generally accepted . . . in the scientific 21 community in which it developed[,]" ( People v. McDonald, supra, 37 Cal.3d 22 at p. 372; People v. Kelly, supra, 17 Cal.3d at p. 30) thus assuring that 23 "'those most qualified to assess the general validity of a scientific method 24 will have the determinative voice.'" (Italics omitted, citation omitted, People 25 v. Kelly, supra, 17 Cal.3d at p. 31.) (In re Sara M. supra. 194 Cal. App. 3d 26 585.) 27 2848 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 The Supreme Court of California set forth the appropriate method for a court 2 conducting a review of the evidence in People v. Shirley infra. 8 Cal. 4th 587. The court 3 in Shirley contemplates that it would be appropriate for the trial court to conduct a 4 Kelly/Frye hearing by reviewing scholarship in the relevant scientific field. In this case the 5 evidence of paraphilia non-consent has been proffered by the People and it is therefore 6 their burden to demonstrate that paraphilia non-consent is generally accepted by the 7 relevant scientific community. Mr. XXXXXX contends that, given an honest review of the 8 available literature, the People cannot make such a showing. 9 [I]n People v. Shirley, supra, 31 Cal.3d at pages 55 and 56, we indicated 10 that "considerations of judicial economy" would permit a court to scrutinize 11 "published writings in scholarly treatises and journals" in lieu of live 12 testimony. We added that the burden of showing general acceptance lies 13 with the proponent of the evidence to show a "scientific consensus" (italics 14 added), and that "if a fair overview of the literature discloses that scientists 15 significant either in number or expertise publicly oppose [the technique] as 16 unreliable, the court may safely conclude there is no such consensus at the 17 present time." ( Id. at p. 56.) We concluded in Shirley that "it … appears 18 that major voices in the scientific community oppose the use of hypnosis to 19 restore the memory of potential witnesses …." (Ibid., italics added.) 20 21 We do not read Shirley as modifying or abandoning Kelly's insistence on 22 ascertaining, if possible, whether the technique has become generally 23 accepted by a "typical cross-section" of the relevant scientific community. 24 Shirley's requirement of a "scientific consensus" by "major voices in the 25 scientific community" seems entirely consistent with Kelly in this regard. 26 (People v. Leahy 8 Cal. 4th at 611 citing Shirley at 55-56.) 27 2849 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 In consideration of judicial economy in the current case, Mr. XXXXXX encourages the 2 court to conduct a review of the pertinent scholarship on the issue of paraphilia non- 3 consent. 4 It must not be overlooked that the DSM-5 itself is a remarkable feat of assembling 5 and compiling a representation of those psychological disorders that are generally 6 accepted by the psychiatric community. “After World War II, DSM evolved through four 7 major editions into a diagnostic classification system for psychiatrists, other physicians, 8 and other mental health professionals that described the essential features of the full 9 range of mental disorders.” (DSM-5 at 6.) Also see the section in the Introduction of the 10 DSM-5 at page 6 on the DSM-5 Revision Process. 11 12 In 1999, the APA launched an evaluation of the strengths and weaknesses 13 of DSM based on emerging research that did not support the boundaries 14 established for some mental disorders. This effort was coordinated with the 15 World Health Organization (WHO) Division of Mental Health, the World 16 Psychiatric Association, and the National Institute of Mental Health (NIMH) 17 in the form of several conferences, the proceedings of which were 18 published in a 2002 monograph entitled A Research Agenda for the DSM- 19 V. … Thereafter, the task force of 28 members was approved in 2007, and 20 appointments of more than 130 work group members were approved in 21 2008. More than 400 additional work group advisors with no voting 22 authority were also approved to participate in the process…. An intensive 6- 23 year process involved conducting literature reviews and secondary 24 analyses, publishing research reports in scientific journals, developing draft 25 diagnostic criteria, posting preliminary drafts on the DSM-5 Web site for 26 public comment, presenting preliminary findings at professional meetings, 27 performing field trials, and revising criteria and text. (DSM-5 at 6-7.) 2850 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 The DSM-5 task force has already done the heavy lifting of determining those 2 diagnoses that enjoy general acceptance by the scientific community. The rejection of 3 paraphilia non-consent in the face of this rigorous process for the last 5 editions of the 4 DSM is striking. Nonetheless, this motion presents some of the most pertinent scientific 5 articles available on the validity and general acceptance of paraphilia non-consent. 6 a. Review of Relevant Scholarship as set forth in Kareem M. 7 Demonstrates that Paraphilia Non-Consent Is Not Generally 8 Accepted by the Relevant Scientific Community. 9 10 The trial court in Kareem M. conducted a commendable review of the available 11 scholarship on paraphilia non-consent. The summaries set for in Kareem M. are 12 plagiarized below. [See Exhibit 1.] These articles are includes in full in the Exhibits. 13 Articles Received in Evidence14 The Court received multiple articles in evidence written by psychologists or 15 psychiatrists who have evaluated sex offenders or conducted research in 16 the field. Some of these articles were opinion pieces reflecting the authors' 17 views on the validity of the Non-Consent diagnosis and others recounted 18 the results of research studies. The articles the Court believed were most 19 relevant are summarized here except with respect to one article which was 20 cited by the New York Court of Appeals in State v. Donald DD. and 21 Kenneth T. 24 NY3d 174, 996 N.Y.S.2d 610, 21 N.E.3d 239 (2014) 22 ("Donald DD" or "Kenneth T.") which is outlined in the discussion of that 23 case, infra. Additional articles received in evidence are outlined in an 24 Appendix to this Decision. The articles other than those in the Appendix are 25 given shorthand designations next to their titles. 26 27 "The DSM-5 and Paraphilic Disorders" (Michael First Article) 2851 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 [EXHIBIT 2]2 This article outlines issues which arose in adopting the DSM-5's paraphilia 3 section. The author notes that unlike other DSM sections, paraphilias are 4 primarily diagnosed in forensic settings. There were three particularly 5 contested DSM-5 paraphilia proposals: to add PCD and a new named 6 paraphilia called "Hypersexual Disorder" and to broaden the pedophilic 7 diagnosis to include pubescent as well as prepubescent children. None of 8 these proposals were adopted. The DSM-4 and 4-TR, according to the 9 author, had a "forensically significant editing error . . . This error, a 10 misplaced or' allowed the diagnosis of a paraphilia to be based entirely on 11 the presence of criminal sexual behavior, sidestepping the requirement that 12 the behavior be a manifestation of a deviant sexual arousal pattern" (195). 13 The DSM-5 now generally has the deviant sexual arousal pattern as its 14 centerpiece and places behaviors and fantasies in subsidiary roles. 15 Dr. First asserts the OSPD category is "intended to be used for 16 presentations that do not meet the criteria for any specific DSM-5 disorder; 17 for presentations of uncertain etiology with respect to whether the condition 18 is substance induced, due to another medical condition, or primary; and for 19 presentations where there is insufficient information to make a more 20 specific diagnosis" (198). "By virtue of their residual and often idiosyncratic 21 nature, cases diagnosed as [OSPD] . . . [including PCD] are, by definition, 22 outside of what is generally accepted by the field and thus should be used 23 in forensic contexts only with great caution" (199). 24 25 26 "Commentary: Inventing Diagnosis for Civil Commitment of Rapists" 27 (Zander Article) 28 [EXHIBIT 3]52 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 [This article was written prior to the adoption of the DSM-5 and thus in part 2 analyzed the "NOS" category under the DSM-4 and 4-TR]. Non-Consent is 3 not a diagnosis under the "International Statistical Classification of Diseases 4 and Related Health Problems" or "ICD-10". Attempts to provide a PCD 5 diagnosis in the DSM-3-TR from 1983 to 1986 resulted in "vigorous 6 opposition" from multiple organizations (461). It was understood by the 7 1980's that rape "is a violent assault motivated by the rapist's desire for 8 power and domination rather than by sexual arousal". Id. The APA Board 9 rejected the proposal in 1986 by a vote of 10-4. Two new proposals were 10 included at that time in the DSM Appendix as conditions warranting further 11 study but the Non-Consent diagnosis was not. 12 The DSM-4-TR assigned "V-codes" applicable to sexual abuse involving 13 "sexual coercion rape". V-codes do not describe a mental disorder but 14 rather problems which are "a focus of clinical attention" (463) (citations 15 omitted). This is further evidence the DSM did not intend PCD to be 16 diagnosed in the "NOS" category. While the vague standards of the NOS 17 category may be appropriate in clinical settings that category should not be 18 used in forensic settings because NOS diagnoses are "ad hoc inventions of 19 individual diagnosticians" (465). The Non-Consent diagnosis is not 20 generally accepted in the field because "it is based on a construct that was 21 deliberately rejected as unsupported by research and the behavioral 22 sciences when it was considered for inclusion in the manual of diagnosis 23 that is based on professional consensus" Id. The author asserts that 24 psychologists who use the Non-Consent diagnosis may be in violation of 25 APA ethical standards because the diagnosis is not supported by 26 established scientific and professional knowledge. Some men may rape 27 2853 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 because of a paraphilia but more research needs to be done to allow the 2 Non-Consent diagnosis to be used in forensic settings. 34 "Commentary: Muddy Diagnostic Waters in the SVP Courtroom" 5 (Prentky Article) 6 [EXHIBIT 4] 7 Diagnoses in SVP proceedings "frequently are reflexive and indefensible" 8 (456). The DSM was never intended to differentiate between categories of 9 sex offenders with the result that offenders are placed in categories (like 10 pedophilia) primarily based on behaviors and the needs of the legal system. 11 It is plausible that some rapists have a paraphilia but "in practice this newly 12 contrived diagnosis [Non-Consent] reflects bad faith, bad science, and 13 often, bad clinical judgment". Id. The diagnosis has questionable reliability 14 and there is considerable scientific evidence that rape is associated with 15 "misogynistic anger, negative or hostile masculinity, rape-related cognitive 16 distortions . . . and impersonal sex" Id. (citation omitted). 17 18 "Are Rapists Differentially Aroused by Coercive Sex in Phallometric 19 Assessments?" (LaLumiere Article) 20 [EXHIBIT 5] 21 22 A review of previous studies indicates that rape offenders as well as men 23 who report they have engaged in coercive sexual behavior, on average, 24 responded with greater sexual arousal as measured by PPG tests to 25 sexually coercive scenarios than other men. A new study compared 24 men 26 charged with a sexual assault against a woman with offenders who had 27 committed non-sexual violence against a woman and non-offending men 28 (the latter two groups being the "comparison" samples). The participants 54 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 were shown audio consenting and coercive sexual scenarios. 2 "[C]omparison participants showed a preference for consenting scenarios, 3 whereas rapists showed little discrimination between rape and consenting 4 scenarios and perhaps a slight preference for rape" (218). An interesting 5 question for future research is whether a distinction can be made among 6 three sexual arousal patterns. The first is an attraction to non-consensual 7 sex, but not necessarily sex involving physical injury or suffering. The 8 second is to sadism, the sexual arousal to suffering. The third is to 9 antisociality, the indifference to the feelings of others. 10 1112 "Sexual Arousal to Erotic and Aggressive Stimuli in Sexually Coercive 13 and Noncoercive Men" (Lohr Article) 14 [EXHIBIT 6] 15 This paper concerned two studies. Both involved 24 male college students. 16 In the first, students were equally divided into a "sexually coercive group" 17 and a control group based on their answers to questions. PPG results were 18 obtained after showing the participants a range of videotaped sexual 19 scenes ranging from consensual to sadistic. "Participants in the sexually 20 coercive group showed significantly greater physiological arousal than did 21 those in the control group in response to the rape scenarios involving verbal 22 pressure, verbal threats, physical force and sadistic rape." (239). The 23 arousal differences began when force was introduced into the videos. At 24 that point, the noncoercive group's arousal declined while the coercive 25 group's arousal remained stable or increased. This is consistent with the 26 "sexual inhibition" hypothesis of rape which suggests that sexual 27 aggression is more likely when cues of non-consent fail to inhibit sexual 2855 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 response. The data indicated, however, that "the sexually coercive group 2 preferred consensual sexual scenarios over force scenarios". (239). The 3 study also found that non-sexual aggression towards women was not 4 arousing to either group. "[T]he groups did not differ in their responsiveness 5 to videotape presentations depicting consensual activity . . . " Id. 6 In the second study, a similar group of 24 men was measured using only 7 auditory stimuli. The results of this study were consistent with the first study 8 with respect to the sexually coercive group. However, while the control 9 group exhibited some sexual arousal to force scenarios in the first study, 10 possibly due to naked slides, they exhibited no significant arousal to force 11 audio tapes. The authors opine that this is because the control group 12 required "significantly provocative" cues to result in arousal. "[C]oercive 13 males appear to be aroused by minimal sexual cues" (240). 14 15 Is a Separate Diagnostic Category Defensible for Paraphilic Coercion? 16 (Knight Article) 17 [EXHIBIT 7] 18 19 This paper, co-authored by hearing witness Dr. Raymond A. Knight, 20 explored whether PCD could be reliably distinguished from Sexual Sadism 21 by reviewing PPG studies in order to assess the DSM-5 proposal to include 22 a PCD disorder separate from Sexual Sadism. The authors concluded that 23 PCD was not a categorically separate disorder from Sexual Sadism but 24 rather a lower degree of "agonistic fantasizing and behavior on a 25 continuum" (91) and that the creation of a separate disorder for PCD under 26 the DSM-5 was therefore not justified. The authors also recommended 27 against including PCD as a subject for further study under the DSM 2856 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 because this would tend to facilitate its acceptance as a bona-fide disorder. 2 (Kareem M. 1029 at 42-52.) 3 In addition to the seven articles summarized by Kareem M., the Exhibits for this 4 motion contain an open letter and two additional articles. These are listed in the 5 Exhibits as Follows. 6 8) Open Letter from Mental Health Professionals, Sex Educators, and 7 Researchers Urging the APA to Exclude Unreliable Paraphilic Proposals from 8 the DSM-5 (2012) [EXHIBIT 8] 9 9) Frances and Wollert (2012) Sexual Sadism: Avoiding Its Misuse in Sexually 10 Violent Predator Evaluations [EXHIBIT 9] 11 10) Frances and Halon (2013) The Uses and Misuses of the DSM in Forensic 12 Settings [EXHIBIT 10] 13 14 15 b. Review of California Precedent Demonstrates that Paraphilia 16 Non-Consent is Similar to Other Psychological Diagnoses 17 Rejected by the Kelly/Frye Test 18 In re Sara M. (1987) 19 The analysis set forth by the California Court of Appeal in In re Sara M. supra. 194 20 21 Cal. App. 3d 585 demonstrated why paraphilia non-consent fails Kelly/Frye. (Sara M.) The key factors found determinative in Sara M. apply to paraphilia non-consent. 2223 The evidence adduced at the jurisdictional hearing fails to meet this 24 standard. Psychologists testified the syndrome is neither included in 25 the DSM nor recognized by the American Psychological Association 26 or any other professional organization. They described the syndrome 27 as being in the beginning stages of development and acceptance. No 2857 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 treatises on the syndrome were introduced into evidence. The 2 psychologists further testified they did not know how the symptoms 3 of the syndrome were developed; they knew of no studies comparing the 4 reactions of children known to be molested with those who claimed to be 5 molested or with those who were not molested. A basic defect of the 6 syndrome is thus apparent: the syndrome was developed on the 7 assumption the children studied were in fact molested. Moreover, while no 8 one at the hearing testified directly concerning the reason for the 9 syndrome's development, it appears to be a tool for therapy and treatment, 10 much like the rape trauma syndrome. Consequently, the same problem 11 discussed in Bledsoe may be present in the case of the child molest 12 syndrome: if it was not developed as a truth-seeking procedure but rather 13 as a therapeutic aid, it cannot be used for a different purpose, i.e., to prove 14 a molestation occurred. (In re Sara M. supra. 194 Cal. App. 3d 592-593.) 15 People v. Shirley (1982) 16 17 The court in Shirley was presented with testimony of a witness that had been 18 hypnotized to induce recollection. “Prior to the trial, counsel for defendant moved to 19 exclude all testimony of the complaining witness that was the result of her having been 20 hypnotized.” (Shirley supra at 29.) After the hearing, the trial court “denied the motion, 21 ruling that prior hypnosis of a witness affects the weight but not the admissibility of the 22 testimony.” (Id.) 23 The California Supreme Court reviewed the admission of hypnotically aided 24 witness recollection by the trial court, and concluded that Kelly/Frye did indeed apply and 25 that the prosecution had not carried its burden of demonstrating that the new technique is 26 generally accepted as reliable in the relevant scientific community. (Shirley at 54.) 27 Instead of simply ruling that Kelly/Frye applied to post hypnotic testimony, the California 2858 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 Supreme Court provided analysis of the Kelly/Frye “issue on its merits, both for reasons 2 of precedent and considerations of fairness.” (Shirley at 54-55.) The Shirley Court 3 conducted a review of the relevant literature including published writings in scholarly 4 treatises and journals. Id. at 56. The California Supreme Court concluded that the 5 professional literature on the subject, 6 demonstrates beyond any doubt that at the present time the use of 7 hypnosis to restore the memory of a potential witness is not generally 8 accepted as reliable by the relevant scientific community. Indeed, 9 representative groups within that community are on record as expressly 10 opposing this technique for many of the foregoing reasons, particularly 11 when it is employed by law enforcement hypnotists. (People v. Shirley, 31 12 Cal. 3d 18, 66 emphasis in original.) 13 14 As demonstrated by the scholarly scientific articles referenced above and provided 15 in the Exhibits for this motion, paraphilia non-consent is definitively not generally 16 accepted by the relevant scientific community. The introduction of paraphilia non- 17 consent in an SVP case is more akin to use of “child sexual abuse accommodation 18 syndrome” in Sara M. and the hypnotically aided recall in Shirley. Just as the 19 psychological evidence in those cases failed to satisfy Kelly/Frye scrutiny, here paraphilia 20 non-consent is not generally accepted by the relevant scientific community and therefore 21 must be excluded from the evidence in this case. 22 23 24 V. CONCLUSION 25 26 Counsel for Mr. XXXXXX humbly requests that this court conduct a Kelly/Frye 27 hearing on the admissibility of the diagnosis of paraphilia non-consent. The burden of 2859 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT 1 demonstrating that paraphilia non-consent satisfies Kelly/Frye lies with the proponent of 2 the evidence in this case the People. Based upon the arguments set forth above and the 3 scholarly articles attached in the exhibits Mr. XXXXXX humbly requests that this court 4 exclude testimony of paraphilia non-consent a diagnosis that has been repeatedly 5 rejected by the relevant scientific community. 6 7 8 Dated: February 23, 2017 Respectfully Submitted: PHYLLIS MORRIS 9 Public Defender 10 11 By: ______12 Nazim Sial 13 Deputy Public Defender 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2860 MOTION FOR KELLY/FRYE HEARING ON ADMISSIBILITY OF PARAPHILIA NON-CONSENT

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