On Certification to the Superior Court, Appellate Division, whose opinion is reported at 339 N.J. Super. 507 (2001).
This appeal, a companion case to IMO the Commitment of W.Z., N.J. (2002), concerns the admissibility and use of actuarial risk assessment instruments by experts who testify in commitment proceedings under the New Jersey Sexually Violent Predator Act (SVPA or Act), N.J.S.A. 30:4-27.24 to -27.38. The issue was raised in W.Z. as well, but is addressed by the Court in this case.
Because the Court affirms the decision of the Appellate Division substantially for the reasons expressed by Judge King in that court's opinion and has added only brief additional remarks, the history and facts presented here are derived from the decision of the Appellate Division, IMO the Commitment of R.S., 339 N.J. Super. 507 (App.Div. 2001).
R.S., a man in his early thirties, has a history of sexual assault on prepubescent boys, which began when he was twenty-two. Following the completion of R.S.'s sentences at the Adult Diagnostic and Treatment Center (ADTC) in 1999, the State immediately petitioned for his commitment pursuant to the SVPA. Pending a final hearing on the State's application, R.S. was temporarily committed as provided for by the Act.
At the final commitment hearing before a judge, the State presented testimony by a psychologist and a psychiatrist. Both recommended that R.S. be committed for confinement, care, and treatment as a sexual predator. The recommendation of the psychologist was based in part on the results of actuarial assessments bearing on R.S.'s risk of recidivism.
R.S. objected to the use of actuarial instruments, so the court conducted a five-day evidentiary hearing regarding the admissibility and use of these risk assessment tools. Both sides presented expert witnesses.
Following the hearing, the court ruled that actuarial instruments were admissible because they assisted the court and satisfied the requirements of reliability. The court considered the results of the actuarial assessments along with the other evidence adduced at the hearing and concluded that R.S. posed a threat to the community because he had a mental abnormality that predisposed him to commit sexually violent acts. R.S. was committed to the State's Special Offenders Unit at the Northern Regional Unit in Kearny.
On appeal, R.S. raised only the issue of the admissibility of the actuarial assessment instruments. In its review of the admissibility questions the Appellate Division applied a de novo review standard to evaluate whether the actuarial instruments met the requirements of Frye v. United States,
The opinion of the court was delivered by: Per Curiam
This case, like its companion, IMO Commitment of W.Z., ___ N.J. ___ (2002), also decided today, involves application of the New Jersey Sexually Violent Predator Act (SVPA or Act), N.J.S.A. 30:4-27.24 to -27.38. In this case, R.S. challenges the State's use of actuarial risk assessment instruments by experts testifying in commitment proceedings under the Act. All arguments against the admissibility and use of such instruments were consolidated in this proceeding. We affirm the decision of the Appellate Division upholding "the admissibility and use of actuarial [risk assessment] instruments at SVPA hearings as a factor in the overall prediction process" substantially for the reasons expressed in the thorough and persuasive opinion by Judge King. IMO Commitment of R.S., 339 N.J. Super. 507, 534 (App. Div. 2001). We add only the following.
We have no doubt that a testifying psychologist or psychiatrist may refer to actuarial risk assessment instruments used in the formation of the expert's opinion. As the Appellate Division noted in applying the standard set forth in Frye v. United States, F. 1013, 1014 (D.C. Cir. 1923), the use of actuarial instruments in the assessment process has gained general acceptance. IMO Commitment of R.S., supra, 339 N.J. Super. at 538. We resort here to the Frye standard because of the significant liberty interest at stake. When seeking to satisfy that standard, however, a party need not show unanimous acceptance by the relevant community. State v. Harvey, 151 N.J. 117, 171 (1997). It is reliability that must be assured. IMO Commitment of R.S., supra, 339 N.J. Super. at 539 (citing State v. Cavallo, 88 N.J. 508, 518 (1982), and noting that context of the proceedings determines whether reasonable reliability exists).
Although there are critics who challenge the validity and predictability of actuarial instruments in sex offender assessments, the record expert testimony and scientific literature demonstrates that clinicians specializing in sex offender assessments generally support the use of actuarial instruments in the overall assessment process even though they do not support reliance on the actuarial instruments alone. IMO Commitment of R.S., supra, 339 N.J. Super. at 538. As the Appellate Division summarized:
The extensive expert testimony in this matter concerning validation studies, cross- validation studies, reliability studies, correlation coefficients, and clinically- derived factors attests to . . . reliability in this context, where the actuarials are not used as the sole or free-standing determinants for civil commitment. They are not litmus tests. There is no requirement that the actuarial instruments be the best methods which could ever be devised to determine risk of recidivism. What is required is that they produce results which are reasonably reliable for their intended purpose. [Id. at 539 (citation omitted).]
We conclude, as did the courts below, that actuarial risk assessment instruments may be admissible in evidence in a civil commitment proceeding under the SVPA when such tools are used in the formation of the basis for a testifying expert's opinion concerning the future dangerousness of a sex offender. The testifying expert shall be permitted to refer to such instruments in explaining how he or she reached a conclusion concerning an individual's risk assessment. In so holding, we acknowledge that a testifying expert now may rely on actuarial as well as clinical information when formulating an opinion concerning future dangerousness. We anticipate that the trial court will regard the actuarial ...