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It is important to understand the impact an expert testimony may have in the ultimate decision made by a court. In addition, it is helpful for practitioners of forensic psychology to be able to read and understand legal cases. Click to review the case (2005). The case describes an appellate legal opinion or court decision involving expert witness testimony. When a case is appealed, it goes to an appellate or to a higher court. The appellate court then reviews the findings of the lower court, which in this case was the trial court. The appellate court offered the following two opinions: After reading the appellate legal opinion, write a 2- to 3-page paper addressing the following: The paper should be in APA style. Reading  material Present: All the Justices COMMONWEALTH OF VIRGINIA* * In the trial court this case was styled “Jerry W. Kilgore, Attorney General of Virginia, ex rel. Commonwealth of Virginia v. Richard Bryan Allen.” We have amended the style of the case to reflect that the Commonwealth is the real party in interest, not a relator. See Townes v. Commonwealth, 269 Va. ___, ___ n.*, ___ S.E.2d ___, ___ n.* (2005) (today decided). 2 On December 12, 2003, the trial court conducted a trial on the Commonwealth’s petition.1 The Commonwealth presented evidence from Carmen Baylor, the custodian of records for the Greensville Correctional Center where Allen had been 1 Code § 37.1-70.9 requires that the trial be conducted within 90 days of the determination of probable cause under Code § 37.1-70.7. In a continuance order entered October 30, 2003, Allen waived his objection to the ninety-day requirement. 3 incarcerated. Baylor testified that while incarcerated Allen had committed 246 institutional infractions, including 15 for assault, four for indecent exposure, most recently in January 2003, and one instance of having consensual sex with another inmate.2 2 Allen has not assigned cross-error to the admission of evidence concerning non-sexual institutional infractions or the total number of infractions. Accordingly, we express no opinion on the admissibility of that evidence and will consider its weight in reviewing the trial court’s final judgment. But see McCloud v. Commonwealth, 269 Va. ___, ___, ___ S.E.2d ___, ___ (2005) (holding that trial court did not abuse its discretion in limiting introduction of such evidence in a jury trial on the Commonwealth’s petition to commit a prisoner as a sexually violent predator). 4 5 6 7 Dr. Boggio also administered the Static-99, a test used to predict sex offender recidivism, to Allen. According to Dr. Boggio, Allen’s scores on this test predicted that Allen would have a 33% likelihood of committing another sexual offense after 5 years following his release from prison, a 38% likelihood after 10 years, and a 40% likelihood after 15 years. Using a formula to extrapolate beyond 15 years, Dr. Boggio concluded that Allen would have a 62.7% likelihood of recidivism after 25 years. On the Rapid Risk Assessment for Sex Offender Recidivism test, Dr. Boggio scored Allen with a 36.9% chance of reconviction in 10 years, and a 60.8% likelihood of reconviction in 25 years.3 Dr. Boggio also testified that these tests rely 3 Dr. Boggio explained that there is a difference between recidi

vism, that is the committing of a crime without regard to 9 10 11 12 13 14 15 16 We first address the Commonwealth’s contention that the trial court erred in permitting Dr. Foley to qualify as an expert witness at trial because he is not licensed to practice in Virginia. At the time the trial court granted Allen’s motion for funds to employ Dr. Foley as an expert, Code § 37.1-70.8(A) (Supp. 2003) provided:4 4 In 2004, Code § 37.1-70.8(A) was amended and now requires that any expert appointed to assist a defendant “shall have the qualifications required by subsection B of § 37.1-70.5.” See Acts 2004, ch. 764. Code § 37.1-70.5(B) sets the qualifications for the professional designated by the CRC to perform the mental health examination of a prisoner identified as being subject to the SVPA and provides that the examination must be conducted by “a licensed psychiatrist or a licensed clinical psychologist, designated by the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services.” A further provision of the amended version of Code § 37.1-70.8(A) provides that a privately employed expert need only be “a licensed psychiatrist or a licensed clinical psychologist.” Because this amendment did not come into force until after Allen’s trial, we express no opinion on its effect or validity. 17 18 19 20 make its own determination of the ultimate issue of fact.5 Accordingly, we hold that the trial court did not abuse its discretion in receiving Dr. Foley’s testimony and did not err in denying the Commonwealth’s motion to reconsider. 5 On brief, the Commonwealth further argues that Dr. Foley’s testimony should be rejected because he “placed great reliance on the Abel Screen, which . . . has not been peer reviewed and which has been rejected by the majority of courts as unreliable.” The record in this particular case does not support that contention, and because the issue was not resolved, we express no opinion on whether results of an Abel Screen will be admissible in future cases. 21 22 23 Affirmed. 24 25 mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975) (quoting Cross v. Ledford, 120 N.E.2d 118, 123 (1954)); accord Judicial Inquiry & Review Comm’n v. Lewis 264 Va. 401, 405, 568 S.E.2d 687, 689 (2002). 26 27 agreement.”? Dr. Foley testified that Allen has a 33 percent chance of recidivating in 5 years, a 38 percent chance after 10 years, and a 40 percent chance after 15 years. However, that test, as well as the Rapid Risk Assessment for Sexual Offense Recidivism (RRASOR) that Dr. Boggio also administered, assesses the likelihood of reconviction, not the likelihood that a sex offender will offend again. Dr. Boggio explained that the data needed to develop an instrument that actually measures recidivism is not available for obvious reasons: offenders are not caught; charges are reduced to lesser crimes; or convictions are not obtained. Thus, the reconviction rate reflected in tests such as the Static-99 or the RRASOR is lower than the actual re-offending rate. ? 28 29 30 31