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Name: People v. Fortin
Case #: B271184
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 06/06/2017

Trial court did not abuse its discretion in excluding results of the “Abel Assessment for Sexual Interest” (Abel test) in molestation case where test has not yet gained acceptance in the scientific community. Defendant was charged with molesting two young girls. At trial, the court allowed the defense expert to opine that defendant lacked a sexual interest in prepubescent children, but did not allow testimony about the results of defendant’s performance on the Abel test to prove his lack of sexual interest in children. Defendant was convicted of child molestation and false imprisonment by violence. He appealed. Held: Affirmed. When a party seeks to admit evidence based on a new scientific technique, establishing reliability is the overriding factor and courts look to whether the new technique is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” (People v. Leahy (1994) 8 Cal.4th 587, 594.) The Abel test is a new scientific technique that involves showing the test-taker photographs of people of different ages in bathing suits, and measuring the time spent looking at photos of underage children. The test has been rejected in federal court, has been deemed unreliable by the supreme courts of five other states, and has several evidentiary shortcomings: it has not been peer-reviewed; it can be thwarted by the test-taker; and it is designed to measure “persisting” sexual interest in convicted sex offenders, not to determine whether a person is likely to be a sex offender. Furthermore, all test results have to be sent to Dr. Abel himself for interpretation, which hinders cross-examination because the defense expert witness would be acting as a surrogate for Dr. Abel, rather than providing his own individual interpretation of defendant’s test results. Because the Abel test has not gained general acceptance as a way to prove or disprove a person’s sexual interest in children, the trial court did not abuse its discretion in excluding defendant’s test results in this case.

The full opinion is available on the court’s website here: