Friday, January 11, 2008

Judge Posner on the Static 99

In sentencing proceedings, experts often rely on an instrument known as the "Static 99" to estimate the risks of recidivism for sex offenders. Although Rule 702 does not apply at the sentencing phase in federal cases, the sentencing guidelines do call for information considered at sentencing to meet a standard of "probable accuracy."* In a Seventh Circuit opinion issued yesterday, Judge Posner devotes substantial discussion to the Static 99, its uses, and its limitations. See United States v. McIlrath, No. 07-1266 (7th Cir. Jan. 10, 2008) (Posner, Wood, & Williams, JJ.).

* See U.S.S.G. § 6A1.3 (“In resolving any dispute concerning a fact important to a sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”).



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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.