In re Girard

Separate trial courts convicted Douglas Girard (defendant) and Eugene Mallard (defendant) of aggravated indecent liberties with a child, and the government (plaintiff) petitioned for each man’s continued confinement as a sexually violent predator (SVP). Kansas law governing SVP determinations required the government to prove, among other factors, that due to a mental abnormality or personality disorder, the defendant would likely repeatedly commit sexually violent acts. Both Girard and Mallard filed motions in limine to prevent the same expert witness, John Reid, from opining that Girard and Mallard were SVPs. Each court denied the motion and allowed Reid to testify at Girard’s and Mallard’s commitment hearing. Reid testified that evaluators made SVP determinations by considering interviews, treatment reports, mental-health records, criminal records, and two actuarial risk-assessment instruments (the instruments). The instruments were used to compare each defendant to offenders with similar characteristics and generate the percentage rate at which similar offenders had reoffended. The instruments did not specifically estimate the defendant’s likelihood of reoffending. According to Reid, the psychological community generally accepted the instruments as reliable. At Girard’s hearing, Reid cited a clinical study’s findings that 95 percent of evaluators used the instruments during most or all SVP evaluations and 73 percent of evaluators believed the instruments were essential to SVP evaluations. Mallard presented an expert psychologist, Stanley Irving Mintz, who argued that, although psychiatrists and psychologists widely used the instruments, the instruments were controversial within the psychological community and opinions about them widely varied. After the commitment hearings, the courts found that Girard and Mallard were SVPs and committed them to an SVP treatment program. The Kansas Court of Appeals consolidated Girard’s and Mallard’s appeals and affirmed the SVP determinations. The Kansas Supreme Court granted Girard and Mallard’s petition for review to determine whether Reid’s expert testimony about the instruments was admissible.