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Sex Offender Assessment Tool Held Inadmissible

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A recent decision out of New York holds the Static-99, a common actuarial measure of sex offender recidivism, as inadmissible under Frye. In State v. Rosado, 2009 NY Slip Op 29290 , Judge Riviezzo holds:

In the immediate case, respondent's STATIC-99 score of "4" is considered to be a medium-high risk of reoffending. Under the "new" norms, assuming future admission under Frye, that risk percentage varies from 8.2 % to 27.3% over 10 years. Interestingly, respondent's score of "4" - clearly not low, however not squarely high - provides the perfect example of the pitfalls of admitting the STATIC-99 at a jury trial. The testimony could arguably benefit respondent if, for example, the jury believed that the risk was in fact closer to 8%, but could be greatly prejudicial to respondent if the jury accepted testimony that the risk was in fact closer to 27%. However as discussed above the score of "4" has at best marginal relevance to the issue of whether respondent has a mental abnormality in the first instance, since the score only means that respondent shares certain characteristics of a group found to reoffend at a certain rate without telling the jury anything about respondent's volitional capacity. Given the tenuous connection between a STATIC-99 score and volitional capacity, a jury could easily be confused by the evidence and give it undue significance in either direction. In this case, a jury, believing this score to be low, might wrongfully conclude that respondent has no mental abnormality when in fact one might exist, even if ultimately confinement might not be required due to his "lower" risk of reoffending.  
There's lots of interesting issues discussed in this case, including NY's unique bifurcated commitment statute and whether recidivism tools such as the Static-99 can be used to establish a mental abnormality.    Interestingly, it was the state which argued for exclusion of the evidence. 

But the case is noteworthy for its extended discussion of the Static-99 tool itself.  To be fair, the disparate range of recidivism rates that the court seems concerned about center on the fact that recidivism rates generally go up over time.  The instrument itself provides different recidivism rates depending on the length of follow-up. 

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