The Appellate panel continued in relevant part:
B. The evidence presented by J.G. and C.C.
Under existing case law, a registrant can challenge his or her individual classification, but cannot challenge the RRAS itself. Nevertheless, we do not read In re G.B. or its progeny as forever precluding a challenge to the RRAS provided the challenge is based on empirical studies or data developed since 1996. Moreover, the studies or data would need to be sufficiently reliable such that others within the community of professionals evaluating, treating, and assessing the risk of re-offense by sex offenders would rely on those studies or data. In re Accutane Litigation (2018).
Accordingly, we analyze the challenges presented by J.G. and C.C. on two levels: (1) the RRAS as applied to them; and (2) the RRAS itself. Neither J.G. nor C.C. presented credible evidence to show that the RRAS as applied to them was improper. They also both failed to present any studies or data that call into question the continued validity of the RRAS as applied to one-time child pornography offenders.
1. The As-Applied Challenges
As already summarized, both J.G. and C.C. rely on the testimony of Dr. Witt in presenting their as-applied challenges. Dr. Witt evaluated both J.G. and C.C., reviewed materials related to both offenders, and opined that they presented a low risk of re-offending. In offering that opinion, Dr. Witt relied primarily on the self-reports provided by J.G. and C.C. Both trial courts found that J.G.’s and C.C.’s self-reporting was incomplete and minimized their past behavior. Moreover, both trial courts rejected as unreliable Dr. Witt’s testimony and opinions concerning the low risk presented by J.G. and C.C.
The trial courts’ findings in that regard are supported by evidence in the record and we discern no basis for disturbing those factual findings. See In re A.R. (2018) (holding that there is no abuse of discretion when a trial court’s factual findings are supported by “sufficient credible evidence in the record”); In re A.I., (App. Div. 1997) (holding that appellate courts review tiering determinations for abuse of discretion). Without Dr. Witt’s testimony, neither J.G. nor C.C. has established a factual basis to challenge the scoring of the RRAS as applied to them.
Empirical evidence has been successfully used in recent years to challenge the framework for challenging eyewitness identification evidence. Henderson, the case in which the framework was successful challenged, was decided in 2011. The precedent that it overturned existed for 34 years. If it takes 34 years to develop empirical evidence to overturn the RRAS framework, that will not occur until 2030.
