State v. Kony.
138 Haw. 1
| Haw. | 2016Background
- Defendant Last Kony was charged with multiple counts of sexual assault of a minor (victim was 15); at trial the victim testified to three incidents between May and August 2011 with delayed reporting until August.
- The State called Dr. Alexander Bivens, a clinical psychologist, to testify about dynamics of child sexual abuse, specifically delayed disclosure; the court allowed testimony limited to delayed reporting and told defense to object question-by-question.
- Dr. Bivens gave generalized statistical testimony (e.g., percentages about offender-victim relationships, over 95% of offenders male, 85% of victims had preexisting relationships with abusers, two‑thirds of adult survivors never disclosed before 18) and described common reasons for delayed reporting.
- Defense objected at in limine to all testimony as irrelevant and during trial only to portions addressing much younger children and certain memory examples; defense did not object on grounds that the statistics were misleading, prejudicial, or amounted to impermissible profiling.
- Kony was convicted; the ICA affirmed. On certiorari the Hawai‘i Supreme Court affirmed the conviction, holding Dr. Bivens’ testimony about delayed reporting was relevant under State v. Batangan, but Kony forfeited appellate review of objections that the statistical/profile evidence was misleading or unduly prejudicial.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Kony) | Held |
|---|---|---|---|
| Admissibility of expert testimony re: delayed reporting | Testimony assists jury to understand why child victims often delay disclosure; relevant under Batangan | Testimony is no longer beyond jurors’ common knowledge and thus irrelevant | Court: Admission of testimony about delayed reporting was relevant and proper under Batangan and HRE Rule 702; affirmed |
| Preservation of objections to statistical/profile evidence | N/A (State argued defendant failed to timely and specifically object) | Defense contended initial in limine objection preserved all later objections | Court: Defendant failed to preserve Rule 403/profile/statistics objections because court expressly limited testimony and invited contemporaneous objections; appellate review waived |
| Whether statistical testimony can be misleading or unduly prejudicial under HRE Rule 403 | N/A at merits (State relied on relevance and limited scope) | Statistical percentages mislead jury, risk profiling/bolstering credibility, and may improperly shift burden to probability | Court: Although not deciding the preserved merits, court explained Rule 403 requires careful weighing of probative value vs unfair prejudice for statistical expert evidence; such evidence can be misleading and must be controlled |
| Whether expert testimony impermissibly vouched for victim or profiled defendant | State: Expert had no case-specific information, so did not vouch or opine on guilt | Kony: Testimony impermissibly bolstered victim and profiled defendant as a likely offender | Court: Not reviewed on the merits (forfeited); Court reiterated Batangan caution that such testimony may bolster credibility and must be evaluated under Rule 403 when properly preserved |
Key Cases Cited
- State v. Batangan, 71 Haw. 552, 799 P.2d 48 (Haw. 1990) (expert testimony may help juries understand "seemingly bizarre" conduct of child sexual abuse victims such as delayed reporting)
- State v. Vliet, [citation="95 Hawai'i 94, 19 P.3d 42"] (Haw. 2001) (standards for admissibility of expert testimony and relevancy review)
- Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (U.S. 1993) (trial judge's gatekeeping and Rule 403-type scrutiny of expert evidence)
- United States v. Chischilly, 30 F.3d 1144 (9th Cir. 1994) (caution about courtroom presentation of statistical evidence and need for vigilance under Rule 403)