Expert Witness Testimony Deemed Admissible in Criminal Trial For Sexual Assault

Case: In the Matter of the Care and Treatment of Michael Goddard, Appellant, v. State of Missouri, Respondent, Missouri Court of Appeals, Southern District. August 10, 2004.

Background: In this case, Defendant Michael Goddard challenged the use of expert testimony in his criminal trial for sexual assault. In November 1989, Goddard pled guilty to sexual abuse of a child and was sentenced to four years suspension and probation, which prohibited him from being alone with children under the age of seventeen. Goddard violated his probation molesting the children of his then girlfriend and refusing sex offenders’ treatment. This case revolved around the statutory definition of “Sexually Violent Predator” and the standards for involuntary commitment authorized under Missouri state law. Through the use of expert testimony, including actuary tables, the court ruled that Goddard was a sexually violent predator and was ordered confined by the Department of Mental Health (“DMH”).

On appeal, Goddard argued that the trial court made an erroneous evidentiary ruling by allowing testimony regarding risk prediction based on the results of “actuarial instruments.” When asked whether Goddard would recidivate, the prosecution’s medical actuarial expert, Dr. Rintu Khan, testified that it was his medical opinion, within a reasonable degree of certainty, that because of Goddard’’s mental abnormality, he was “more likely than not to engage in future predatory acts of sexual violence” if not confined for treatment.

Expert Witness: The State of Missouri sought the expert opinion of a licensed medical professional who relied on actuarial data (“Static-99” and “MnSOST-R”). The state sought to use Dr. Khan’s medical expertise in establishing the elements of the Goddard’s mental abnormality. Based on his experience in clinical psychology and actuarial evidence, Dr. Khan testified that Goddard should be deemed a sexually violent predator.

Daubert Challenge: Goddard asserted that the testimony by Dr. Khan should be barred under the Daubert doctrine. Specifically, Goddard argued that the actuarial instruments used were not evidence that an expert in the field could “reasonably rely upon” in forming an opinion. Goddard argued that any opinion based on the actuarial instruments was inadmissible because the instruments themselves were not “reasonably reliable to predict risk of sexual offense.” The “actuarial instruments” at issue were derived from a cross-sectional study of sex offenders made throughout the country. These studies examined the characteristics of repeat offenders and assigned to them a score. According to Dr. Khan, by using statistical analysis, the medical professional can get a “rough estimate” of whether the test subject will re-offend.

Conclusion: After reviewing the trial court’s evidentiary ruling, the Court held that the use of the actuarial instruments described were consistent with Daubert. Goddard did not challenge the expert’s capacity as an expert, but instead argued that the actuarial instruments used in Dr. Khan’s analysis were improper.

The actuarial data used by Dr. Khan helped him form an opinion as to the Appellant’s mental abnormality. Missouri law defines “sexually violent predator” as a person suffering from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility. If a court or jury determines beyond a reasonable doubt that a person is a sexually violent predator, such person should be be committed to the custody of the director of the department of mental health, according to Missouri law.

Dr. Khan testified that it was his opinion, within a reasonable degree of medical certainty, that because of Goddard‘s mental abnormality, he was “more likely than not to engage in future predatory acts of sexual violence” if not confined for treatment. The expert reached this conclusion based on a number of factors which included Appellant’s track record and history, in addition to the “actuarial instruments” that were the basis of Goddard’s Daubert challenge.

The court assessed the admissibility of the evidence by focusing on the reliability of the actuarial assessment instruments for male sexual offenders, Static-99 and MnSOST-R. Scientific testimony must not only be relevant, but also reliable. Daubert identifies four factors that the Court may consider in assessing reliability, including (1) whether a theory or technique can be and has been tested; (2) whether a theory has been subjected to peer review and publication; (3) whether a “particular scientific technique” has a known or potential rate of error; (4) and whether the theory or technique enjoys general acceptance within the relevant scientific community.

The reviewing court determined that the testimony based on the actuarial instruments were such that they had a reliable basis in knowledge and experience of the relevant discipline. Upon using the actuarial information, the State introduced two textbooks demonstrating the scientific validity of the actuarial instruments. This credited the evidence for having an established and testable validity. Additionally, the State’s introduction of a peer review articles, wherein the actuarial techniques were assessed, also contributed to the Daubert factors. Finally, the State provided testimony and exhibits demonstrating the wide use of the instruments in the relevant scientific community and their general acceptance as is articulated in the fourth Daubert factor.

Appellant’s contentions seemed to be based in part on Dr. Khan’s statements during direct examination that Static-99 and MnSOST-R, two of the actuarial models, were widely used but not necessary to his conclusion. Dr. Khan stated “I think the majority of the clinicians base their evaluations on their opinion and just use the actuarial in a way to support them and not the other way around.” Dr. Khan admitted that his opinion as to the Appellant’s medical condition would be the same without the actuarial charts. In clarifying this apparent contradiction, the Court emphasized that the challenged evidence was the “actuarial instruments” and thus the proper question under a Daubert challenge was the validity and reliability of such evidence. In denying Goddard’s Daubert challenge, the Court underlined that an actuarial instrument’s reliability in the scientific community is substantiated with objective evidence demonstrating reliability and not necessarily by the expert’s own testimony.