focus on the results of them but rather on that that that is used to reach the solution which means that it's well that something like d n a testing but not so well something like diagnosis donal's and also instructs us that as long as the test for example maybe testing a protein in the blood or something that would be a percentage or whatever that would be a methodology and diagnosis of cancer that doesn't seem to fit with mental illness there's not that kind of numerical measurement in terms of mental illness but it would appear that the methodology in mental illness cases  would be the observations of the clinician and the application of the factors set out in the diagnostic and statistical manual so for example i'll move on to the general satisfaction and again we rely on donaldson and donaldson makes clear that when you're looking at whether or not something is generally accepted the question is whether it's reasonably relied upon by experts in the scientific community donaldson also makes clear that there's no to go through every single state or federal jurisdiction that has already approved this diagnosis but what the string cites show is that this diagnosis has been widely accepted in those parts this diagnosis was not invented by the experts in this case it's not only  admitted li opinion with whether the condition exists which some cases are obviously of help that whether a condition exists is subject to a fry hearing you're using these other cases to bolster the fact that the condition doesn't it indeed exist and therefore no your honor for counsel my name is stephen potts i represent the respondent appling in this case john junior this morning i'll press two issues the first issue is why frye versus united states the general substance test does apply to the existence of the psychological condition in a context as well well as why fry versus united states applies and the diagnostic and issues with regards to medical conditions as well which is very  question of whether a person suffers from a mental disorder a question of fact or law i think that i think that there's i think that there's two different i think that there's two different questions in that question itself i think that first with the decide does a mental disorder actually exist at all then the doctors in the context of s t p cases are going to use their experience in their professional judgment to look at symptoms and conditions and what the person demonstrates through their behaviors and through their and through their interviews and testing whether that person actually has the condition so both of those answers reflect back so i think that the issue of whether something is generally cept that is a factual determination that we need to make based on evidence that's presented in a fright hearing when you have an instance like this where you have a diagnoses there really hasn't been tested through the did present even any cites and their brief to judge mchale arguing that this diagnosis was generally accepted in the psych psychological immunity their answer was well five doesn't apply and even if it does it's generally accepted community and only now before this court has the state got to the point where they they decided that they needed to provide some psychological literature and case law which our position is doesn't support the general condition in fact does exist so that a diagnosis could be made that it's present in an individual and s p p context or for that matter in any context so that's really the problem here is that the problem for the state is they want to talk about what the experts did and they want to talk about how they used the general method but that's not the issue the issue is does he feel it exists as a condition at all and that goes back to  whole cloth a diagnoses and say somebody has this condition well it's not in the d s m but they have a condition because if they did that then they would have no foundation on which to base the fact that somebody should be involuntarily committed on the s statute potentially for life that this condition that they're saying this person has that controls their or their behaviors it in fact even exists it and one of the things about the  the state doesn't want to discuss is when we get to the general acceptance issue in this case the d s m five work group on paraphilia is defeated whether or not you but feel you should be included the  exact agnosis that we have in this case and they did not include in the d s m five so it stretches the bounds of purview of the in my opinion that you can say that something is is generally accepted as a matter of law when it was included however you know that that argue means you're saying is that that is the authoritative document that all clinicians are supposed to use in diagnosis when there's other things and there's facts  outside of that is that what you're saying what i'm saying is that if it's not in there then it doesn't exist i'm not saying that judge what i'm saying is i'm saying that this court shouldn't decide as a matter of law that a mental disorder exists when it was specifically not included in that manual because we don't have any other facts before the score with from which this court should make that conclusion if there's something else out there in the i never brought up in this case until the reply brief in this case and that's never been presented its never been argued that that is an a manual that includes just a gnosis so at the very least we should have some testimony and evidence as to why it's not included in the d s m five it should be allowed to be used and that it's generally accepted in the psychological community it's just there's just not enough information and none of that's been tested b cross examination or anything else for that matter as to why this condition exists which goes back to the to my original position which is i think it's clear that under under all the fry cases and specifically if you at if you look at the pure opinion analysis that was conducted by the corps with that has been roundly criticized came out of florida that's really what the state's advocate they're advocating for a pure opinion analysis where you could have a doctor in a medical malpractise case come in and say i examined this person and this person's got a condition that no other doctor as ever diagnosed a person with and that because that is pure opinion it would have to be admitted and couldn't be subject to a fry analysis that is bad law and it shouldn't be adopted by the score because there should be that the issue is whether the condition or the causation of a specific condition is the result of something and and what we have here is we have the doctors interviewed john and they looked at his documents and they looked at other things and they came to the conclusion he has a condition so does that condition actually exist at all our position is that it doesn't our position is that it is it is at the very least an outlier diagnosis that wasn't included in the d s five and there's really little if any support now under the current state of psychology in the united states that this court should find as a matter a lot that it would be generally accepted in the psychological community our opposition is that it's it's it's almost tantamount to junk science with regards what it actually is one of the things that you look at i think that is instructive about this is that at trial dr fogle testified and one of the things he testified to is he testified well there's this condition and this condition as he and it's paraphilias interest in adolescent boys but one of the things he testified to is he didn't know what any of the boys look like and he him and he hadn't even seen pictures of any of the boys and he didn't know what any of the persons that he was supposed to find out in order to make this diagnosis were like and then he made the diagnosis diagnoses are mixed diagnoses with other conditions which form the basis of the the commitment in those cases and also we have a change in that we have it we have a change in the science but we have a conclusion that this exists the existence of this condition isn't going to being looted in the d s m five which happened subsequent to many of those cases being decided which while the court should look at those cases i know that in i think maybe in the federal case there was significant there was some evidence that was presented by the experts that were appointed in those cases in that case to testify about the condition as far as the other states i'm sorry i don't know the judge so you're have an information that it needs we need more information and that's what the fry hearing should do that's what we should have basically saying that any diagnosis that's not included in the  psychological diagnosis quote unquote that's not included in there that should raise a lot of red flags that it's not actually a diagnosis at all because in the context of these cases i've actually had experts testify that they would never diagnose a condition that's not exclud from from experts as to where we are with the development of the psychology the psychological science and where we are with regards to whether this is a condition that is accepted as existing in individuals out there that court could feel comfortable with allowing a jury here that somebody should be indefinitely committed based on that you know that would be presented right or would that be presented when the when they want  isn't it just an age distinction well it's clearly not no it's not because it's clearly not pedophilia we're not talking about pedophilia diagnosis you know and that's what i'm saying isn't it just an age distinction pedophilia is a certain age minors and  above that is in between well that would be the issue as to whether or not it's a mental a mental disorder yes it that the issue is whether or not that traction of two  it but i don't think it's and i think that that that's that's that's the issue but i think it's a lot more complicated than that because the but one of the questions that present itself is how do we even know how does somebody just how do you apply whether or not somebody has this condition at all and that well i know that in the brief i went on in length about that issue i think that that's something that points out the fact that it that if you can if there's a begin with the general acceptance question and again donaldson indicates that you don't need to have a majority of experts in order to show that something is generally accepted just to clarify some of the facts of the case the state experts in this case diagnosed him with all we don't have there were no pictures at the s p p trial of exactly what mr news victims looked like but we actually have a pretty good idea of what his sexual attraction entails because he described this in great detail to the state experts  that he admitted to the state experts that in his mind the reason that he was attracted to them is because he thought about them as he that is the question of what it is that use a tractor to is not really in question now in first question is is this issue even probable so my question is i asked you earlier about methodology and you said to me that a opinion the diagnosis could be made it and in testimony there would end up being some sort of clash between how does the diagnosis not that within the opinion testimony exception in terms of the d s m and i see that one of the reasons why there was debate about the d s m five is now counsel mentioned dr blanchard he is one of the leading experts in the united states on this he was really a diagnosis i believe he was actually part of the work group for the d s m i v that made this proposal and a lot of the debate does come from him and from people who agree with him but he's not the sole expert is not the person who invented this as stated before this diagnosis has been around for decades the literature shows the debate taking place between the experts and that's one reason why the of that we would have had a right here and if we brought in the same experts were cited in the briefs they would say exactly what they said in their written submissions so the fact that this debate is already out there and is a bill before the courts result means that maybe not the man to t yes and that's one thing that the scientific literature and instruct us on several of the papers that worse cited talk great deal about the ways that we the ways that we test to see a person has a condition and whether or not there is a distinct group of people who have this sexual attraction to this particular age group over any other type of sexual attraction several of the blanchard articles have talked about this even though the happen on any sort of medical malpractise case almost any case that has the scientific diagnosis or conclusion of where there is a battle of the experts someone asked for frys so we're asking for a narrower interpretation of and we don't think that the record is sufficiently developed for us to make a decision then does that defeat your argument that we in that particular circumstance have to send it back for for a year or if this court looks at the you made the comment that you're looking for a narrow interpretation but what i want to know is the fright the standard is based on or hers acreage in the only rule of evidence seven o two are you asking for in a narrow narrow or something