In United States v. Ellis, __ M.J. ___, No. 09-0382/AF, CAAF held that the military judge didn’t abuse his discretion by allowing a government expert to testify about the accused’s risk of recidivism.  Judge Erdmann wrote the opinion of the court.  Judge Baker concurred in the result.

Ellis was convicted of sexual offenses with an actual minor and indecent communication with an individual he believed to be a minor, as well as possession of child pornography.  During the government’s sentencing case, a forensic psychiatrist testified about an instrument called Static 99 that was developed from a statistical study of men released from incarceration for sexual offenses.  He testified that “the instrument was found to have a seventy percent rate of predictive validity and was well accepted within the scientific and medical communities.”  Over defense objection, he testified that the accused “fell into the moderate high category for risk of recidivism, which reflected a thirty-eight percent chance of recidivism over a fifteen-year window of time.” 

CAAF rejected a defense challenge to the sufficiency of the psychiatrist’s basis to draw a conclusion.  The expert, CAAF observed, “reviewed the charges and specifications, the extensive stipulation of fact, the forensic analysis of the hard drive and the listing of the images identified there,” and chat logs.  The expert also “listened to the guilty plea inquiry, and reviewed the rehabilitation options at Cannon Air Force Base.”  That provided a sufficient basis for his opinion, CAAF ruled.

CAAF also ruled that challenges to the Static 99 methodology “went to weight rather than admissibility.”  But CAAF dropped a potentially important footnote observing:  “Although Static 99 is widely used, the issue as to whether it would meet the Daubert standard is the subject of ongoing judicial debate.  See Judge Posner’s critical discussion in McIlrath, 512 F.3d at 425.”

Judge Baker wrote “separately to emphasize that the result in this case is limited to the facts of this case.  Among other things, this was a military judge alone sentencing proceeding and Appellant did not object to the admission of the Static 99 information on Daubert grounds.”  While emphasizing case-specific grounds to conclude that the accused in this case received individualized sentencing, Judge Baker observed:  “A formulaic methodology used for sentencing such as the Static 99 used here would seem to convert individualized consideration into a numeric calculation based on static
factors, including matters that in the military justice system are inherently discretionary, like whether the prosecutor charges conduct ‘on divers occasions’ or through multiple counts.”

9 Responses to “CAAF issues opinion on testimony regarding risk of recidivism”

  1. Anonymous says:

    The government should be careful what it wishes for – if I were the defense bar this should be a greenlight to request an expert witness (or at least assistance) on recidivism rates in every sexual abuse case. This is dangerous and highly influential testimony that is rife for abuse and manipulation from partial government and defense expert witnesses.

  2. Phil Cave says:

    The defense should already have been doing this.
    The problem with this case is that the expert’s foundation is insufficient. It is the ongoing debate about Static-99 and the other similar tests that makes this experts opinion potentially bogus in my mind. The failure to conduct a proper and complete evaluation causes me to agree with Judge Baker. Here the prosecution used a formulaic approach, rather than a legitimate approach used in the community of sexual offender treatment providers.
    I regularly use psycho-sexual evaluations in child porn and child sex cases.
    Static-99 is only one of the “tools” to making a recidivism judgement. The nature of the offenses is important. A guilty plea is a factor in favor in evaluating the meaning of the Static-99. However, the most important elements of a recommendation are missing in this case. Psychometric testing beyond Static-99, a polygraph, a full and complete personal interview(s) and history, and interviews with family.
    Here’s a link to one of the several exhibits I attach to my motions for a psycho-sexual evaluation and expert assistance, it should give you a flavor of what’s really required.

    This format is used in Idaho. Many states and the U.S. District Courts have psycho-sexual evaluations mandated by law or policy as part of the pre-sentence reports conducted on convicted sexual offenders.
    Note, there are many being treated in the community while on probation. Limiting rehabilitation to “Canon Air Force Base” is artificial and misleading. There are very good treatment providers in the local community. So this expert should have been required to address the locally available programs, not limit to an artificial place unlikely to have any program. Also, doesn’t such a limitation violate R.C.M. 1001. Isn’t rehabilitative potential supposed to be in society in general, not just Canon AFB? Seems to me the prosecution got away with a recommendation that the person had no rehabilitative potential in the military, thus an implied recommendation for a BCD?

  3. Westerner says:

    Predicting future behavior static 99 or otherwise is simply quakery.

    None of these so call experts can say with any certainty one would re-offend in any event, I believe the pendulum needs to start swinging away from “possibility” as a yardstick for stiffer sentences its unAMerican and the courts have tolerarted this for too long.

    Its no secret sex offenders have to continue to live with the consequences of their conviction no matter their sentences, Which I believe is a travesty in itself whats the incentive to reform if you are going to branded no matter what?

  4. Middle School Bus Driver says:


    Damn straight. If you are to be branded by past crimes, other than the risk of future imprisonment, you may as well keep doing it.

  5. Anonymous says:

    So the government expert has a tool that will tell the judge whether the defendant will likely re-offend in the future? Fantastic. Better idea: Let’s determine the likelihood of recidivism by consulting the “precogs” from Minority Report.

  6. Westerner says:

    Anon1033, my sentiments indeed.

    What Quakery these courts give credence to.

  7. tdc says:

    Methinks Baker is right that a competent TDC (or ADC) could tear this to shreds.

  8. any mouse says:

    I was an engineer in undergrad, but the years away from statistics may have had its toll and I could be solving this the wrong way. The way I see it, if there is only a 70% rate of predictive validity and he is in the 38% recidivism category, that means there is a 26.6% (.7*.38) chance he will be a repeat offender. Compare this to the 30% rate of predictive invalidity and it seems like the chance that the Static 99 is wrong is greater than the chance of him being a repeat offender.

  9. Bill Herrick says:

    These kind of issues are driven by TC who have too often seen unreasonably low sentences from members (and MJ) for serious sexual offenses. I commend Colin Kisor’s article in the Naval Law review as a cogent analysis of the need for reform. Then perhaps TC won’t feel they have to explain the obvious – that child predators predate.