850 S.E.2d 393
Va. Ct. App.2020Background
- Victim testified she was sexually abused by a close family member (Stevens) from about age 4 to 6; she did not disclose the abuse until 2017 when she was 20.
- Commonwealth called Lisa Johnston, a child forensic interviewer, as an expert on child abuse, disclosure, and related memory issues; she testified delayed disclosure and blurred memories in young children are common.
- Defense called psychiatrist Susan Fiester, who similarly testified children often delay reporting and have memory difficulties; Stevens testified and denied the allegations.
- Jury convicted Stevens of nine sexual-offense counts; the trial court imposed sentences totaling 57 years (with 3 years suspended and post-release supervision); sentencing order contained a clerical error about the total.
- Stevens appealed, challenging (1) Johnston’s qualifications as an expert, (2) admission of her testimony about delayed disclosure, and (3) admission of testimony about memory formation.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Stevens) | Held |
|---|---|---|---|
| Whether Johnston was qualified to testify as an expert on child abuse/disclosure | Johnston had specialized training, long experience (~300 forensic interviews), peer review, and ongoing study — sufficient under Va. R. Evid. 2:702 | Johnston lacked specialized qualifications, and was unqualified because the accuser was an adult at trial and Johnston is a child forensic interviewer | Trial court did not abuse discretion; Johnston was qualified to testify about child abuse and disclosure because the abuse and much of the reporting delay occurred during the victim’s childhood |
| Admissibility of testimony about delayed disclosure (risk of impermissible bolstering) | Testimony explaining why children delay reporting is admissible; plus Commonwealth notes waiver argument because defense elicited similar testimony | Testimony impermissibly bolstered the victim’s credibility and should have been excluded | Stevens waived the objection by presenting similar evidence through his own expert (Fiester); appellate court did not reach the merits |
| Admissibility of testimony about memory formation (scope of expertise) | Johnston’s training, literature review, and experience with many child interviews qualified her to testify about how young children form and retain memories | Johnston exceeded her expertise by testifying about memory formation beyond her role as a disclosure/forensic interviewer | Trial court acted within its discretion; Johnston’s testimony about child memory formation was within the scope of her expertise |
Key Cases Cited
- Wakeman v. Commonwealth, 69 Va. App. 528 (2018) (standard for reviewing expert-qualification rulings)
- Kilby v. Commonwealth, 52 Va. App. 397 (2008) (admissibility of expert testimony in sexual-abuse contexts)
- Davison v. Commonwealth, 18 Va. App. 496 (1994) (therapist’s limited basis for expert testimony found insufficient)
- Isaac v. Commonwealth, 58 Va. App. 255 (2011) (same-evidence waiver principle and its categories)
- Hubbard v. Commonwealth, 243 Va. 1 (1992) (party waives objection by later introducing same-character evidence)
- Justiss v. Commonwealth, 61 Va. App. 261 (2012) (expert must show knowledge beyond ordinary persons)
- Conley v. Commonwealth, 273 Va. 554 (2007) (definition of expert qualification under Va. law)
- Pettus v. Gottfried, 269 Va. 69 (2005) (scope of waiver when evidence deals with the same subject)
- Burns v. Board of Supervisors, 227 Va. 354 (1984) (evidence-waiver principle when party permits evidence without timely objection)
- Scialdone v. Commonwealth, 279 Va. 422 (2010) (preservation of issues about expert qualifications)