about persons context has been quite a heap of feely a day and i know the state takes issue with that but during the deposition which is in the record on that i put in the record with regards to the deposition testimony of one of the state doctors proposed for use in first kenyans to knowledge in the psychiatric community in about two thousand and five which is at the same time that this case was filed for the detention of mr new here  specifically it's our position that this diagnosis is new or novel and it's not generally accepted in the general scientific community one of the things we'll notice in the briefs that were filed in this case is that i cited t from the very least judge yes at the very least he should have considered all these things especially in light of the fact of all material which i submitted in support of my motion lemony and the complete dearth of material that was submitted by the state to state somebody going to be out in may it's not going to have that in there and there was actually debated as to whether or not it should be is that relevant for decision whether it's in there but it's relevant to the determination of whether or not this works at the very least for a man for fry hearing to i've never seen in one of these cases that i've had this diagnosis or the first time this has been presented presented as an issue with regards to any of these cases that i've handled counsel do you have a problem with th with somewhere but then at the same time he said well it could be a different age it could be that it could be thirteen or above or fourteen or fifteen and then he also said i think one of the things he said was he had never even determine whether or not any of the alleged victims in the criminal cases or any of the people that they had an illness that he had an inappropriate contact with somebody in the department of corrections that was indicative of this notice and that that person looked he hadn't he had no idea what that person looked like this is a six foot four inch male in the department of corrections that was obviously an adult yet he used their specific set of fa confirmation of this date notices and you know what you're getting at i don't know you're getting at the argument that they're making i think you're getting at the argument that they're me in that because this is a psychiatric diagnosis that the fry analysis doesn't apply that that's just not the law we apply fry analysis all the time too when there's a st patrick's day alienation of affection it's my understanding is that current in vogue diagnosis in the in the field of divorce and domestic relations the methodology that i'm challenging here is the methodology the methodology which is used to come to the conclusion that this is actually a legitimate diagnoses and that's what we're talking about here it's the methodology of how this is diagnosed at all because in order for it to have been day it has to be there has to be some kind of standards there has to be some kind of consensus there's got to be some kind of application of a process that is objective just to make a forensic diagnosis like this when you're talking about indefinite commitment that's what we're talking about here we're talking about indefinite commitment predicated on a diagnosis that is at the very least marginal and back i would taught when you talk about profit what are you referring to the process of the balladeer and i'm talking about how this doctor determined that based on these similar that these factors you can come to the conclusion or any facts specifically he come to the conclusion that this is  simple and that this is something that he can testify as a forensic psychologist is an actual day notices at all and that's that's not what we have here we don't have any we don't have anything that's even  it's if you look at my brief specifically addressed the issue of whether or not there's even any protocol used to determine whether or not this is even a diagnosis and how it would apply it's and went into detail probably a little too much detail in my br but detail about how these things what they say they're applying other applied to other really not there's really no standards and there's really no agreement as to how any of this stuff is supposed to be done because no one agrees that it's a diagnosis it seems to report of an expert is is proffering a position that is not generally accepted in that field of expertise and it's demonstrated to the court maybe on a prime aphasia basis that judge this is india is not generally accepted in this field in here is my basis for saying and the other side doesn't counteract that prime official presentation to the court that the court is obligated to hold the fry hearing to determine whether the evidence is sufficient to allow it to be presented to the tribe or fang for third term a nation has to which expert should prevail you know what we need to give to the various sections because if the judge you have to him is not convinced or is not persuaded that or term that the property opinion is is not generally accepted in this is something within the area of the expertise of the experts that the judge has the obligation then to say no we're not even to let the fact finder here this because in this case it seems to me that your argument is i presented to the trial  to question whether these experts have a an appropriate opinion based upon a psychiatric principle and the jury should not be put in they have position of hearing this a mix up the bowl generally not accepted criteria principles opinions it's not right it doesn't provide a fair opportunity to present a case now you had to say that yes it's a civil proceeding but the burden of proof is proof beyond reasonable doubt it makes a friday determination more critical then in a civil suit where you're talking of products liability child custody other important matters but not hit that have a an element of proof beyond reasonable doubt that seems to me where you're going you said it better than i certainly have been arguments that it's exactly my position and interrupt and it comes down to what you're talking about here we're talking about liberty years when i talking about going about absolute liberty interest with what the ones that have the burden to prove that it's admissible because they're the proponent and that's exactly what should have happened at the very least the judge should a simple dies i want to hear from a doctor from the state that's going to tell me why i should allow the jury  methods it's the methods that were used to develop the actual proposed a else that's what have to be looked at and that's what we have we have a new diagnoses based on ideas and methods of last year in particular  i know that i'm running out of time if you don't have any other questions i'm going to move on to my second argument here ok now with regards to my second argument in this case the state player that johnny junior was committable based on  case that there can be commitment based on either anti social personality disorder or poly substance abuse the case the cases and the statute are absolutely clear that this is supposed to be treated where have you shown that there would be prejudice by this very well i can tell you what i think approaches isn't that necessarily been the point the fact that the jury did but when you have to keep a case personality and the sub essentially substance abuse disorders when the jury hears all that evidence and they hear testimony with regards to these disorders the jury can come to the conclusion during maybe they maybe i was a diagnosis because the cross examination and maybe they just didn't think that he had the factors and maybe they just didn't agree with the big they could find him committal based on either antisocial personality disorder alone it's hard for me to get into the brain of the jury is that i know that the jury if the jury hears about all these disorders and they're not told specifically which ones that they can make a finding on are the i think i wouldn't judge well i think the first of all i think i would have it if that if they had amended their complaint i think that would have been a tacit acknowledgement that they couldn't have the big if they couldn't see commit possibility that if you raise that because it had been raised earlier and you knew those possibly be great right so it was no surprise to you that they came in i think that i was a little surprised that they that they made that they be to me there were points in the trial where there was testimony where it seemed to be saying that polly's substance abuse disorder was maybe a little bit were contributing factor to his actual finding of it by the doctors  major threshold problem with respondents position which is that he's attacking the conclusion that two experts came to rather than the methodology that they used to come to that conclusion and as your honor noted the methodology used by these psychologists and if the ways that you generate data to the conclusions that you have come to from that data and we believe that and i'm going to exceptional right it's also not necessary to protect respondents rights in this sort of proceeding the best way to suss out a disagreement we're drawing the distinction between what's admissible and what goes to wait here no obviously distraught but does have a gatekeeper function and in a proper fry context it is this robert's mission to service the gatekeeper to prevent any new or novel methodology that has not been generally accepted from the of the jury if you disagree that diagnosis fault with the right we do disagree but that the diagnosis is the conclusion of the experts have drawn when one's really questioning the methods that any any experts  expert takes a position whatever the position and the opponent presents an expert or multiple experts to say that that position of let's assume that hypothetical that he is the only one of the picks this position no one else in the field they just know that that is allowed to go to a jury of what the jury decide between that testimony in the  morning and they could come out and say we find we accept the proponents testimony and that's good evidence you're honest i would say that juries are often called upon to deal with these controversial factual issues we don't have crime hearings every versus the industrial pollution three sixty two illinois poet there are five eighty two that specifically deals with whether a fry hearing is appropriate in use or a one on each side the middle is the only service no one in the field takes this position yes ultimately that is a jury question i agree that the a keeper function in terms of dealing with new or novel methods however this falls more into the into the category of being a conclusion that he's attempting to buy when it's an expansion of right and the best way to deal with disagreements between experts is to bring forth all the evidence and let the jury decide who is more credible juries decide between expert witnesses in many cases both criminal and civil we don't hold criterions and force the trial courts have the skipper function each time experts disagree frye isn't meant experts often do this if we had a civil case about a car accident we could have experts who disagreed about whether the brakes failed because of a manufacturing defect or because somebody actually couple lines we don't have a frank hearing about that present all the evidence we let the jury diagnosis could be cancer the methodology that you used to reach that is going to take x rays or an m r i and oh that looks like a tumor to me that the methodology the diagnosis is the conclusion that it's cancer now in this case you could say talking to him and asking him questions he's reviewing all of his records and looking at his prison just open early records and listening to everything that you told them about the boys that you fantasized about even when he was in prison and how he consistently overestimated the ages of the boys that he had sexually assaulted and came to conclusions now they were different conclusions from dr witherspoon that controversy was brought before the jury the jury had ample opportunity based on counsel's cross examination and the presentation of adverse evidence to determine whether or not they believed the state's experts versus respondents experts i think in your example if there was a civil trial if it was pretrial was presented to the court in the court was presented with overwhelming they have that says no i'm colleges can hearing would have been held to decide whether a jury should listen to an expert say i determined cancer from an actuary when the field of oncology says we don't except that i think in the civil trial the trial judge would be obligated to have a friday hearing to decide whether  it's just a matter of opinion or that's something that the field of my college he just doesn't have to accept so i'm not going to let the jury get confused or determine this because it's the had generally accepted completely wrong and it would be up to the jury to decide as juries often have to do when it comes to weighing the testimony of experts if fry hearings were meant to come to a definitive conclusion about what expert opinions are from gri good argument that this principle is not generally accepted within the psychiatric there's a logical community judge you should look at this to decide whether it hearing would be inappropriate it's not legally required and it would take a great deal of time is the first thing that comes to mind as to why you would have unnecessary for a hearing these are already lengthy and if a bride hearing is not legally required then it would be appropriate for the trial judge to say i'm not going to have right here and there's a controversy here we're going to let that clash happen and my final point is the frightening would simply be that if this court were to instructions were themselves proper they listed the statutory i want to ask you anything else and this certainly is not an issue that mr new was somehow taken by surprise by what the state's experts testify to as to his other up during the cross examine beginning at believe h d one thirty eight where they did this cross examine on the antisocial personality disorder this heat is required to lead in the petition the elements are not required to read every single piece of evidence that is specially going to come out at trial that might go to support one of the prongs and here the state's experts were clear that the anti social personality disorder does help to prove that mr new is substantially likely to  sexual violence the antisocial personality disorder shows that he's either unable or unwilling to conform his behavior to societal standards he refines over and over again and that is certainly relevant to whether he is substantially likely to proper the jury instructions don't require that the state leave each particular piece of evidence in a particular slot and if he asked  evidence there was argument that the end social personality disorder was a contributing factor to the fact that he was an s e p and that in these states closing argument and certainly that was proper there was no notice  the gate keeping function as is is the worth responsibility to prevent evidence that's not admissible or not actually probative to go to a jury to maybe make a jury determination  trust in the jury process and how the jury comes to make a decision but when a jury is presented testimony by two different experts that this is a diagnosis that i made in that you should rely on and not only that but the experts always testify in not enough for disorder well the problem is that they can't because the state should only allow to respond and one expert anyway and we're not final more than one expert in these proceedings it's always typically two experts for the state and one expert for the respondent anyway so that even compounds the error more than would normally be the case what happens but what we have here is we have a situation where the function of the trial work has to be purview of the judge's determination as to whether or not it's a few to fry that snapple law i don't know that is just it's just not we don't allow doctors to come in and personal injury cases and testify that we don't know if you're going to conclude but when you have say yet or testimony that by frankly in these kinds of proceedings we're not just talking about the diagnoses we're talking about the actuarial instruments that come into play this is pretty confusing stuff and i even understand some stuff frankly i don't understand all the stuff how can we expect a jury based on the state's argument to be the one the sticky keeper as to whether or not this guy should be committed based