LEGAL GUIDE
Written by attorney Lauren Johnson | May 20, 2010

WHY THE KELLY-FRYE ADMISSIBILITY STANDARD MUST BE USED IN ASSESSING RISK IN CHILD WELFARE LAW

When we talk about what has been called “Risk Assessment in Juvenile Dependency cases," what we are really talking about is predicting the future. Risk refers to the prediction of future events and risk in juvenile dependency refers to predicting the future with regard to child abuse or neglect. Often, a juvenile court is faced with the opinion of a social worker who attorneys for the county are asking be deemed an expert in modern day soothsaying.

Frequently, the purported scientific evidence of predicting the future in juvenile dependency matters does not meet the Kelly-Frye standards for admissibility. Kelly-Frye applies to the evidence being offered in juvenile cases for the several reasons. First, the Kelly-Frye test applies in dependency matters. Welfare and Institutions Code section 355 states that a finding of dependency must be supported by evidence that is legally admissible in the trial of civil cases. The Kelly-Frye rule has been applied in civil cases in California, as it is stated in Amber B. which cites examples, and, therefore, the rule of Kelly-Frye applies in dependency proceedings.

Under the Kelly-Frye rule, evidence based on a new scientific method is admissible only upon a showing that the procedure has been generally accepted as reliable in the scientific community in which it was developed. However, frequently a different scientific method is of risk assessment is utilized to “assess risk" in this juvenile dependency case. That different method often is a social worker’s opinion, in disguise. In other cases, social workers claim computer programs can produce an analysis of risk assessment for them. An attempt to employing a method of “risk assessment" using a computer program to predict the future may be a behavioral science of its own, but it is not one accepted in the scientific community. Risk assessment of predicting the future evidence should be scrutinized under Kelly-Frye. So should any behavioral science that purports to be based on a scientific process and theory that a social worker can predict the future using factors or matrices, enter them into a computer program, and the program spits out the result as to risk.

Risk assessment evidence is unlike expert evidence on, for example, religion or baseball, in that an expert in these areas can only testify as to the past history of these subjects. For example, an expert on baseball could testify as to dates, players, and scores in past games, but could not testify as to the future probability of a team winning or the outcome of that year’s World Series. Opinion evidence of that sort would require a specialized field of knowledge similar to risk assessment, in that it would be predicting the future. I cannot say whether such an expert would exist in the baseball context, or would be admissible under Kelly-Frye standards, but it may be worth researching for cases involving such questions.

However, there is no established scientific evidence that computer-generated “risk assessments," coupled with the social worker’s opinon about “risk assessment," meets the Frye standard for admissibility. I compare the case at hand to Amber H. In Amber H a psychologist gave a direct opinion that a child had been molested based on her behavior in playing with anatomically correct dolls. I represented a parent in a case in which the social worker gave a direct opinion that there existed a substantial risk that the child was in danger of physical and emotional harm if returned to the parents, based on the child’s answer- and method of answering- to a question the social worker posed. The applicability of Kelly-Frye turned in that case on the evidence that was being offered, rather than the degree the individual who is offering the evidence has obtained.

We know that Kelly-Frye evidence is clearly applicable where evidence is produced by a machine such as a lie detector test or by a physical testing procedure such as blood type. But unlike methods that past the test of reliability, a computer program, coupled with the “intuition" of a social worker, is cannot be relied on to assess risk. The Kelly-Frye rule encompasses psychological profiles which are based on studies showing a correlation between certain traits and characteristics and certain forms of behavior. But a computer program can only account for “factors" that the social worker has determined somehow correlate to risk.

This analysis is not reliable unless the trial court has information with regard to whether the method of “risk assessment" meets the Kelly-Frye standard, and that there is general acceptance in the relevant scientific community, that the risk assessment instruments have been adequately designed or researched, that the instrument utilized has been empirically tested, much less validated, or that there exists a clear consensus or lack thereof in the field as to what one should consider when assessing risk. The burden to show that the evidence meets the Kelly-Frye standard is on the party offering the evidence, not those objecting to it.

No civilized society would tolerate the arrest and detention of its citizens on the basis of a checklist coupled with “intuition" indicating that a crime is likely to be committed at some point in the future. Yet society tolerates an entirely similar situation in child protection when it allows junk science like “risk assessment" to be offered as evidence in juvenile dependency matters.

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