Illinois Second District Appellate Court: (1) No Objection, No Matter, No Waiver. (2) Appellate Court Not Restricted By Record In Frye Assessment. (3) Standard Of Review Manifest Weight In Release of Sexually Violent Person.

A sex offender, who was committed as a sexually violent person, petitioned for release. Three rulings bear upon appellate practice:

• Whether expert testimony that relied on a penile plethysmograph (“PPG”) was admissible under the Frye standard did not require an objection at trial; the motion in limine to exclude was sufficient. So the absence of an objection at trial did not result in waiver of appellate review. The court suggests that a motion in limine alone is sufficient to preserve appellate review when the issue is whether expert evidence meets the Frye standard.
• In conducting a Frye analysis “a court of review is not bound by the record developed during trial and may consider “sources outside the record, including legal and scientific articles, as well as court opinions from other jurisdictions.”
• Standard of review to determine whether the person seeking release has made “sufficient progress” is manifest weight of the evidence.

In the end, the State’s expert evidence, which relied upon the PPG, was allowed. The trial court’s ruling of insufficient progress was affirmed. Get the whole case, In re Commitment of Sandry, 857 N.E.2d 295, No. 2-04-0870 (2006), by clicking here.