Wednesday, February 23, 2011

Mississippi Justice Takes Cheap Shot at the Flynn Effect (and Flynn Himself)-Guest blog post

This is a guest blog post by Kevin Foley, a regular contributor at the ICDP blog.

The Mississippi Supreme Court recently held that Frederick Bell is entitled to an evidenciary hearing on his claim that he is intellectually disabled. One unhappy justice dissented to this part of the majority opinion, and in doing so, took an inappropriate cheap shot at the Flynn Effect and Dr. Flynn himself.

As for Dr. Flynn, the dissent stated that, “The 'Flynn Effect' is a theory advanced by a political scientist who, under the Mississippi Rules of Evidence, could not be qualified as an expert on mental retardation by 'knowledge, skill, experience, training, or education . . . .' Miss. R. Evid. 702.” Bell v. State, No. 2010-DR-01907-SCT (Miss., Feb 3, 2011) (J. Randolph, concurring and dissenting, at note 20). The justice implied that Dr. Flynn would not even be permitted to take the stand to testify about the Flynn Effect, since he is not “an expert on mental retardation.” But the validity of the Flynn Effect, as a scientific concept, does not rest on any expertise Dr. Flynn might have as a mental retardation expert. As Dr. Kevin McGrew's Flynn Effect bibliography (available on this blog) shows, Dr. Flynn's research which concluded with what is now known as the Flynn Effect has reached a very high level of respectability in the intelligence testing field. The dispute is not with the Flynn Effect itself; the dispute concerns the cause of the effect; whether is should be used to adjust scores in high stakes litigation; whether it will continue apace; and whether it should be assumed to apply to later versions of extant test batteries. No one has convincingly argued that Dr. Flynn was not competent to conduct the research that led to the Flynn Effect.

As for the concept itself, the Mississippi justice argued, “Furthermore, the scientific validity of the “Flynn Effect,” utilized by Dr. Zimmerman, repeatedly has been rejected by the Fifth Circuit Court of Appeals. See id. [referring to the Chase case] (citing In re Salazar, 443 F.3d 430, 433 n.1 (5th Cir. 2006)).” This statement is not accurate. The Fifth Circuit Court of Appeals has not rejected the Flynn Effect, it has simply not addressed the issue head-on. In the Fifth Circuit case cited by the dissenting Mississippi justice, the federal appeals court specifically stated, “Even assuming that the Flynn Effect is a valid scientific theory and is applicable to Salazar's individual I.Q. score and we express no opinion as to whether this is actually the case . . .” In re Salazar, 443 F. 3d 430 (5th Cir. 2006). More recently, in Maldonado v. Thaler, 625 F. 3d 229, 238 (5th Cir. 2010) the court stated only that it had not recognized the Flynn Effect to be a valid scientific concept. And in Wiley v. Epps, 625 F. 3d 199, 214 (5th Cir. 2010) the court did not “reject” the validity of the Flynn Effect, and it would have been hard pressed to do so, in light of the fact that, “All three experts who testified at the evidentiary hearing stated that the Flynn effect is generally accepted in the scientific community”. Not addressing an issue is a lot different than holding that an issue (or concept) is invalid from a scientific standpoint.

Moreover, on page 30 of Bell, this justice claimed that the Flynn Effect is “a suspect theory” and that the defense expert's opinion using the Flynn Effect was a “fallacious, inadmissible opinion” under Mississippi Rule of Evidence 702, the state's counterpart to the U.S. Supreme Court's Daubert standard. The justice's conclusions in this regard were a stretch indeed. Experts both prosecution and defense - are testifying about the Flynn Effect all over the country, in both federal and state courts. Whether the courts have decided to apply the Flynn Effect to adjust IQ scores is one thing; refusing to admit testimony about the Flynn Effect because it is an untested pseudoscientific theory is another matter completely.

The most the Fifth Circuit stated with regard to the Flynn Effect and its validity was, “We need not resolve the weight, if any, to be given to the Flynn effect, however, because the district court also found that even without it the evidence supported a finding that Wiley had significant subaverage intellectual functioning.” Id. at 214.

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