The Meaning of “Likely�?
According to David Self, M.D.
(A Letter to the Editor of the Journal of the American Academy of Psychiatry and the Law from John T. Tennison, MD)
According to Dr. David Self, an expert psychiatric witness for the prosecution in numerous Sexually Violent Predator trials in Texas, the word, “likely,� which is not defined in the Texas Sexually Violent Predator Statute, means “more than a mere possibility.�?(Reference 1)
With regard to his definition of “likely,� Dr. Self has claimed the following in sworn testimony:
“It came out of one of the appellate decisions, and I don’t remember which one.� (Reference 2)
Yet, the origin of Dr. Self’s definition for “likely� does not appear to be from any Texas appellate decision. Rather, Dr. Self’s definition appears to have been derived from a larger, 21-word description from a Texas appellate decision in which the 4 words, “beyond a mere possibility,� were present. Here is the full 21-word description:
“The term ‘likely,�?as ordinarily defined, means ‘probable.�?nbsp; Something that is probable is beyond a mere possibility or potential for harm.� (Reference 3)
If the four words, “beyond a mere possibility� are lifted out of this description, and if the word “beyond� is changed to “more than,� we then derive the definition that Dr. Self claims he got from an appellate decision.
Dr. Self’s definition of “likely� allows for any probability whatsoever, as long as it is greater than zero. That is, any probability greater than zero is a “possibility,� and such a probability can be infinitesimally small and still be greater than a yet-smaller probability. No matter how small, such a probability remains a “possibility.� Thus, any probability greater than zero will always be “more than a mere possibility,� and thus, any probability greater than zero will satisfy Dr. Self’s definition of “more than a mere possibility.�
Another way to convey this point is to ask the simple question:
"Can you name a probability other than zero that is not "more than a mere possibility"?
Since all probabilities other than zero are possibilities, it is impossible to name a non-zero probability that is not "more than" some yet smaller, non-zero probability. chanel replica sale Thus, Dr. Self's definition allows for any non-zero probability, no matter how small, as long as that probability is of a value other than zero.
Clearly, the original 21-word description cited above does not appear to be describing such an inclusive range of probabilities. chanel replica handbags Yet, this has not stopped Dr. Self on multiple occasions from using his “more than a mere possibility� definition when he opines in sexually violent predator trials about whether someone is “likely� to commit a predatory act of sexual violence.
As a forensic psychiatrist who is ethically-bound to strive for objectivity, and who wants his own testimony and that of any other psychiatric experts to contribute to fair, ethical, and lawful decisions by juries who rely on such testimony, I hope all psychiatrists will consider the possible impact of Dr. Self’s unusual definition of “likely� in the context of civil commitment trials, where the likelihood of someone being committed as a “sexually violent predator� is highly influenced by the way juries understand the word “likely� as used in the statute. chanel replica Moreover, such an interest in fair, ethical, and lawful decisions is not the unique domain of psychiatric expert witnesses, but should be the concern of anyone who is a citizen in a society where the rule of law is expected to yield justice for everyone.
As compared to more conventional definitions of the word “likely,� Dr. Self’s definition for the word “likely� lowers the conventional threshold of how the word “likely� is commonly understood. In doing so, Dr. Self’s definition of “likely� increases the probability that persons will be civilly committed against their will as “sexually violent predators� for what, in almost every case in Texas, has proven to be a lifetime of civil commitment.
Further Considerations of the Word "Likely"
In an opinion (IN RE COMMITMENT OF STEVEN WEATHERREAD) delivered November 29, 2012, the Court of Appeals, Ninth District of Texas at Beaumont (Reference 4), made further clarifications on the word "likely" as used in the Texas Sexually Violent Predator Statute.
In WEATHERREAD, the court opinion stated, "'When words are not specifically defined by the Legislature, they are to be understood as ordinary usage alllows, and juors may freely read the statutory language to have any meaning which is acceptable in common speech.'"
The opinion noted that a psychologist for the prosecution, Dr. Proctor, told a jury that "....to him the word 'likely' means 'probable' and 'that something that is probable is beyond a mere possibility for potential for harm.'" With the exception of substituting "for" for "or" between the words "possibility" and "potential," Dr. Proctor's description rolex replica of the meaning of "likely" is otherwise identical to the original description of "likely" found in BEASLEY v. MOLETT. Unlike Dr. Self's definition of "likely," which allows for any probability greater than zero, Dr. Proctor's definition appears to be within the range of "ordinary usage" of the word "likely" which is "acceptable in common speech."
To give examples in WEATHERREAD of ordinary usage which are acceptable in common speech, the court quoted BRYAN A. GARNER, from A DICTIONARY OF MODERN LEGAL USAGE (2nd ed., 1995):
"[L]ikely has different shades of meaning. chanel replica sale Most often it indicates a degree of probability greater than five on a scale of one to ten. chanel replica handbags The probability is, of course greater when the word is prededed by a qualifier such as quite, very, or extremely. But it may also refer to a degree of possibility that is less than five on that same scale."
To give additional examples of ordinary usage which are acceptable in common speech, the court also quoted other definitions of "likely" from WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (2002):
"1: of such a nature or so circumstanced as to make something probable [examples omitted] 2a: seeming to justify belief or expectation [examples omitted] b: having a better chance of existing or occurring than not : having the character of a probability [examples omitted]."
As can ben seen from the citations from both the DICTIONARY OF MODERN LEGAL USAGE (2nd ed., 1995) and WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (2002), Dr. Self's definition of the word "likely" is not consistent with "ordinary usage" nor would Dr. Self's definition of "likely" be "accetable in common speech."
1. Deposition of Dr. David Self, Page 55, line 14,
June 13, 2014, IN THE DISTRICT COURT OF MONTGOMERY COUNTY, TEXAS, 435TH JUDICIAL
2. Deposition of Dr. David Self, Page 57, lines 21-22, June 13, 2014, IN THE DISTRICT COURT OF MONTGOMERY COUNTY, TEXAS, 435TH JUDICIAL DISTRICT
3. Court of Appeals of Texas, Beaumont, BEASLEY v. MOLETT, William J. BEASLEY, et al., Appellants, v. Maria MOLETT, Appellee., No. 09-01-078 CV., Decided December 19, 2002. See: http://caselaw.findlaw.com/tx-court-of-appeals/1333206.html
4. IN RE COMMITMENT OF STEVEN WEATHERREAD, opinion delivered November 29, 2012, the Court of Appeals, Ninth District of Texas at Beaumont (pages 6-7)