More Evidence that Courtroom Use of STATIC-99 is a Joke

EvidenceProf Blog has a post about the use of Static-99 in a case before the 7th Circuit (link corrected thanks to Jim in the comments):

The Seventh Circuit was recently presented with STATIC-99 evidence in the case, United States v. McIlrath, 2008 WL 90084 (7th Cir. 2008). 31-year old  Christopher McIlrath was on an internet chat room and thought he was chatting with a 15 year-old girl.  He wrote her that he would travel to her state to have sex with her, but the "girl" was actually a detective conducting a sting, and he arrested McIrath upon his arrival.  McIlrath thereafter pleaded guilty to traveling across state lines to have sex with a minor and was sentenced to 46 months imprisonment.  This sentence came after the trial judge discounted forensic psychologist Eric Ostrov's use of STATIC-99 to determine that McIlrath's characteristics matched the characteristics of offenders 9 to 13 percent of whom were found to have repeated their offense.

McIrath subsequently appealed this sentence, claiming that he should have been sentenced just to home confinement.  The Seventh Circuit rejected his argument, first noting that the rules of evidence do not apply to sentencing hearings, meaning that it did not need to address whether STATIC-results are admissible.  The court also noted in passing that in several cases, such as In re Commitment of SImons, 821 N.E.2d 1184, 1192 (Ill. 2004), courts have found STATIC-99 results to be reliable enough to be admissible as expert evidence.  The Seventh CIrcuit, however, found that there are a plethora of problems with STATIC-99:

     -even its advocates only claim that it has "moderate predictive accuracy;"

     -estimates of recidivism are bound to be too low when one is dealing with underreported crimes such as sex offenses; and

     -STATIC-99 has too limited a number of potentially relevant characteristics.

The Seventh Circuit then found that McIlrath had not addressed these criticisms and held that "without any effort by the defendant's lawyer to establish the reliability of Dr. Ostrov's methodology -- or even to explain it -- the judge was entitled to discount his prediction."  Now, as noted, this was not a decision that addressed the admissibility of STATIC-99 results, and maybe McIrath's lawyer simply dropped the ball.  But it certainly seems like the Seventh Circuit was holding that STATIC-99 results are too unreliable to be admissible as expert evidence, and it should be interesting to see how courts in future cases deal with this evidence.

I think it is very positive that the Seventh Circuit addressed the shortcomings of the STATIC-99 tool in a case that it didn't necessarily have to.  There are other ways for prosecutors to introduce expert testimony about risks of recidivism without resorting to bad shortcuts like STATIC-99.

Comments

[Mark]

"-estimates of recidivism are bound to be too low when one is dealing with underreported crimes such as sex offenses; and"

isn't the Seventh Circuit making assumptions there? I understand the point they are trying to make but that is an opinion not a fact. I don't know if I'm just being nit-picky but there is a big difference between those with founded sex abuse claims and those that say they were molested but no proof. Granted they are probably right but it makes me nervous when the courts are relying on information that isn't considered actual facts.

[jim]

The correct link for the 7th Circuit opinion is:

http://www.ca7.uscourts.gov/tmp/A70OTX7V.pdf

[Ilah]

Sex crimes ARE underreported. Some victim advocacy groups have reported a decrease in reporting that coincides with the increase of ancillary sex offender laws. And unreported crimes are most likely to be committed by those who have never been caught, and would therefore not figure in to any recidivism numbers.

That being said, I too am glad to see STATIC challenged.