*1 417 Mass. 536 Joseph vs. Kenneth Commonwealth Hudson. Suffolk. November 1993. 14, 1994. April Liacos, C.J., Wilkins, Abrams, Nolan, Present: Lynch, O’Connor, Greaney, & JJ. Witness, Evidence, conduct, Expert, Credibility. Expert opinion, Sexual
Credibility of witness. Child Abuse. rape judge At the trial of an indictment for of a child the allowed testimony concerning rape syndrome, trauma where the testi- mony was relevant assist the credibility; where it was not used as affirmative evidence to guilt [540-543]; improperly and where did not bolster the victim’s O’Connor, J., C.J., Liaсos, dissenting,
credibility whom with [543]. joined.
There was no merit to a criminal defendant’s prop- contention certain
erly expert testimony explaining aspects admitted of the victim’s behav- unfairly prejudiced ior him or denied him a fair trial. [543]. J., C.J., dissenting, joined. with whom Liacos, O’Connor, found and returned in the Court De- Superior Indictment partment August 1989. Grabau,
The case was tried Charles J. before M. Court granted request Judicial for direct Supreme review. appellate Keehn, H.
Benjamin Committee for Public Counsel Ser- vices, for the defendant. Medvedev,
Marina Assistant District for the Attorney, Commonwealth. defendant, Hudson, J. The Kenneth Joseph ap-
Lynch, his of four in- peals from convictions counts of seven-count a child charging age dictment under sixteen rape v. Hudson. ap We the defendant’s for direct years.1 granted application review. pellate
We summarize the before the At the time of jury. evidence trial the victim was sixteen old and in the eleventh years grade. The victim’s mother married the defendant when the old, from age was five and approximately years victim nine, five until she was the defendant. repeatedly raped by She claimed that over incidents of sexual abuse oc- twenty curred On occa- during year that four and one-half period. sion kill the victim and her threatened to mother if the victim told of his actions.
The victim did not tell her mother about of the inci- any dents until before the defendant and the victim’s mоther just incidents, the time of the the victim went separated. During addition, to the “a lot” because of stomach hospital pain. she recurring nightmares imagined suffered from where she that the mother then force the vic- defendant would kill her tim to have sexual with him and kill her. The intercourse stomach until 1989. pain nightmares persisted cross-examination,
On the defendant attacked the victim’s suggested The tenor of the credibility. questioning not evident until she be- abdominal pain gan the victim’s abdominal menstruating and intimated that was caused in her menstrual pain by irregularities cycle other medical reasons. further that suggested The defendant current friend boy victim’s difficulties with her mother’s caused her to run from home. away
The at the schools the mother stated that the authorities victim attended informed her that the victim com- constantly mother, to her doctors According of stomachaches. plained “in her head.” believed that the victim’s stomachaches were occurred, She said that these incidents years some she noticed in the victim’s behavior. At changes point the victim from home for five or six hours. away ran charging rape a child acquitted 1The on three counts defendant was age under the of sixteen.
Mass. 536 victim left a note stating that “she was tired of her night- mares and she was leaving.” Webber,
Dr. Mark N. the victim’s physician, stated that the victim’s internal examination was similar to that of a sex- active ually adоlescent. trauma, He observed no evidence of which would be as if expected the sexual occurred activity five or six years 1989, visit, earlier. During May, Dr. Webber noted that sad,” victim looked “very quiet, would not make significant eye contact. Because it was the victim’s fourth visit and he was unable to find any physical victim, with problem Dr. Webber suggested she consult with a psychiatrist. Schwartz,
Dr. Karen who psychologist as an qualified *3 children, on sexually abused described posttraumatic stress (PTSD). disorder PTSD, Dr. Schwartz stated that аs described in the Diagnostic and Statistical Manual of Mental (3d Disorders 1987), ed. rev. is a disorder devel- primarily oped describe situations where veterans would experience symptoms years after a traumatic to Dr. episode. According Schwartz the diagnosis of PTSD rests on four cate- symptom gories. outset, At the there must be a traumatic event. Dr. Schwartz testified that sexual abuse could be a traumatic event. She stated that the degree trauma has somе corre- lation to how closely related the offending is to the person victim. Dr. Schwartz then described the other of PTSD types First, symptoms. there is a reexperiencing phenomenon where individuals have memories that intrude into their daily lives. Reexperiencing could take form phenomena of nightmares. The second category is a form of psychic or numbing avoidance of stimuli associated with the trauma. An example psychic numbing includes a abused sexually who, later, adolescent years reveals the abuse but shows no emotion. The third involves category hypervigilance hyper- arousal. In children and adolescents this could take the form of headaches or stomachaches. Dr. Schwartz noted that symptoms the disorder are on the dependent developmen- tal level of the traumatized. At one person ages, .different could to see a different constellation of expect In symptoms. Schwartz to a Dr. response hypothetical question, explained because “it that abdominal is “not pain syndrome specific,” more than an does to one point specific syndrome [not] his other.” She testified that more information on a patient’s needed. Dr. Schwartz tory functioning level of would be did note that it would be a “red of a number of differ flag” ent things including taking history, trauma. Dr. patient’s whether she Schwartz said that she would ask the patient had bеen abused. She further stated that the sexually symp toms manifest themselves in different within the ways pre school adolescent population, school-age population, to Dr. with PTSD population. According Schwartz people sometimes will not exhibit until months or symptoms years after the trauma. Dr. Schwartz noted that it they experience that children were fairly typical delay reporting they cross-examination, abused. On Dr. Schwartz admit that, ted if a sexual abusе and exhibits vari patient reports ous goal her is to treat the and not to de symptoms, patient termine whether the In her telling truth. patient view, whether the victim was truthful was an in appropriate quiry legal arena but not for her She further purposes. testified that all Dr. Schwartz also subjective. admitted because an individual exhibits certain symp toms, stomachaches, such as that does not automatically *4 that she was the victim of sexual abuse. She testified that the of and variety things could be caused symptoms by that, times, often of a child’s the occur as part normal Dr. did not connect her testi development. Schwartz to the victim or the defendant.2 mony admitting defendant erred in ex- argues judge of sexu-
pert testimony concerning the characteristics typical raises three ally abused children. On appeal, issues, the concerning (1) syn- the that: expert testimony describing drome evidence the abused child typical sexually should not be admissible as affirmative evidence of the de- mentioned 2The fact that Dr. Schwartz treated the victim was mother. cross-examination and redirect examination of the victim’s 540
fendant’s guilt; (2) the expert be- improper cause it constituted opinion evidence which bolstered the vic- tim’s credibility; (3) and the admission of the syndrome evidence was prejudicial. We conclude that judge did not abuse his discretion admitting and expert testimony affirm the convictions. trial,
Prior to a voir dire was conducted to determine whether an expert could on PTSD in testify a child rape case. Dr. Schwartz and Dr. Douglas testified. At Gallaway dire, conclusion of the voir noted judge although decision, he had not made a final he was leaning toward ad- mitting expert testimony. judge Another assigned the trial. The defendant filed a motion in concerning limine motion, expert testimony. ruling Before on the the trial judge informed the he wished parties a voir dirе of the ex- He pert. instructed the not to prosecutor discuss the expert during his opening statement. After a voir dire of Dr. trial, Schwartz on the third she was to tes- day permitted as an tify expert.
1. The admission of lies in the expert testimony “largely Maltais, discretion of judge.” the trial v. Commonwealth 79, 387 Mass. (1982). 93 We have held that testi- if, discretion, “is admissible in the mony judge’s subject is not within the knowledge common or common experience Francis, of the v. jury.” Commonwealth 98 (1983).
This court has that сourts have recently opined uniformly allowed on the expert testimony typical symptoms sexually abused children because the com- beyond information mon vic- knowledge jurors and of assistance in tim witness’s credibility. Dockham, the ex- (1989). Mass. abused children “often dis-
pert explained delay disclosures, closure of sexual abuse or make retract gradual statements, Id. at 628. The ex- the abuse.” repress as, described such “sex- pert signs behavioral and symptоms, *5 functions, ualized sexual fears and knowledge of adult play, in involved anxieties related to body parts, people, places 541 v. Hudson. Commonwealth addition, stated that “sexu the expert abuse.” In the sexual withdrawal, trust, de children exhibit ally impaired abused shame, Id. anxiety, hypervigilance.” pression, guilt, 412, we (1990), 421 Mamay, v. to admit discretion judge’s within the trial held that was y ex to syndrome trauma concerning expert rape testimon to the office of the victims who returnеd the conduct of plain assaulted sexually been having defendant after physician him. in ex solidarity judicial precedent
There is a similar in fact sex the victim was the evidence to cluding prove 554, (1993), 563-564 State v. 130 N.J. J.Q., abused. ually for the testimony “Courts rarely permit and cases cited.3 abuse, but al substantive evidence of establishing purpose Id. at 566. The testimony.” low it to rehabilitate the victim’s factor, therefore, of such determining admissibility critical in the case. evidence is its relevance to the issues contention that We do not the defendant’s accept affirmatively Dr. Schwartz’s was used her did refer to the victim or guilt. directly Dr. Schwartz not The testi- about PTSD. generally She testified symptoms. suggestions to rebut the defendant’s was admissible mony a troub- that the victim was made cross-examination related to men- led whose medical were teenager, problems struation, life could lead to false and whose home unhappy did state that thе victim claims of Dr. Schwartz not rape. that the de- had been abused nor did she ever posit Alberico, 1993) (N.M. (expert testi- 3But see State v. 210 861 P.2d abuse; reasoning because mony probative on PTSD is of sexual identifying symptoms certain technique PTSD valid for scientific abuse, symptoms a com- “[allowing testify that PTSD expert an rebutting purpose of the defense that mon reaction to assault for the sexual with sexual incident are inconsistent the victim’s reactions to the testify аllowing assault is no different from abuse”). Contrast Common- are consistent with sexual Dunkle, concerning (1992) (expert wealth Pa. admissible because such typical sexually abused children not behavior of diagnostic tool nor relevant generally accepted as is neither evidence).
Commonwealth v. Hudson. Furthermore, fendant was the cross-examination, abuser. on Dr. Schwartz admitted that because an merely individual ex- hibits certain symptoms of the disorder not does automati- cally that she was victim the of sexual abuse.
This case us with a fact presents similar to pattern Com Dockham, monwealth supra. There the expert testified to the typical of one symptoms sexually abused one explain behavior victim’s as well as his disclosure of delayed abuse. Dockham, Similar the expert here is testimony permissible the victim’s explain behavior and in postassault symptoms cluding her and nightmares. stomachaches Because there was trauma, no physical evidence of this hinged case the weight the the jury assigned to of the victim and testimony the defendant. the victim’s Although are not as Dockham, as those of striking the victim in the knowledge they found frequently among suffering those from PTSD was not information within the common understand ing of As in jurors. this information is relevant to assist the the jury and credi out, bility. Although, judge as the dissent did not points charge the not expert affirmative abuse, of sexual for evidence no was made request limiting objection charge instruction no was made to the on this ground.4
However, the judge did instruct the jury:
“You the bound of an ex- jurors opinion are not by decide the for you cannot case pert. experts fact finding cannot take jury. They [usurp]; away your however, can, function. assist They opinion you will decide the case. You you to find facts which upon as weigh must of the would you expert it, other witness. You any may reject you may reasons reject your judgment given if in opinion whole. Or for are unsound. You it in may accept you testimony by also reference of the 4The dissent refers to the object prosecutor closing argument. in his The defendant did not at trial to argument on this basis. it in reject it in accept part part. Depending the reasonableness or unreasonableness of the upon tes- of that timony individual.”
We conclude that the judge did not abuse his discretion by *7 admitting Dr. Schwartz’s testimony because that information the common of “beyond knowledge jurors and of assis- tance in a victim assessing witness’s and credibil- Dockham, v. ity.” Commonwealth at 629. supra 2. “It is a fundamental that ‘a witness cannot be principle asked to of his credibility assess or that of ” other witnesses.’ v. 398 Mass. Triplett, 561, Dickinson, 567 (1986), Commonwealth v. quoting 394 view, Mass. (1985). 706 In the defendant’s Dr. stomachaches, Schwartz’s testimony, especially relating served to endorse the credibility of the victim. See Common- Montanino, wealth v. (1991). Dr. Schwartz never or rendered аn explicitly impliedly as opinion to the truthfulness of general the victim or to the veracity fact, sexually abused children. In she testified that whether a child was truthful was not for her determination. We con- clude, therefore, that Dr. Schwartz’s did not im- bolster the properly victim’s credibility.
3. Because we hold that the expert testimony behavior, admissible to explain the victim’s we re- aspects ject the defendant’s final contention that its admission un- fairly denied him a fair trial. prejudiced
Judgments affirmed.
Liacos, C.J.,
O’Connor,
(dissenting,
joins).
with whom
J.
The court concludes that
psychologist’s description
posttraumatic
(PTSD)
stress disorder
“was admissible to re-
but the defendant’s
made
cross-examina-
suggestions
tian that
[alleged]
victim was a troubled
whose
teenager,
menstruation,
medical
were related to
and whose
problems
home life could lead to false claims of
Ante
unhappy
rape.”
at 541. Presumably, the defendant’s suggestions to which the
court rеfers were
in
contained
defense counsel’s questions
rather than in
victim’s testimony. It also appears
that the “medical problems” to which the court refers were
stomachaches. The court further concludes
“[s]imilar
Dockham,
Stomachaches and do not constitute Dockham, and therefore Commonwealth v. on which supra, relies, the court so and heavily Commonwealth Mamay, relies, (1990), Mass. 412 on which the court also ante at 540-541, both which of deal with a victim witness’s be only havior, do not the court’s conclusion that the PTSD support in this case was admitted. testimony properly Dockham, In the admission in challenged evidence de- of which the court psychiatrist’s testimony “Dr. scribed as follows. Brant testified that abused children often abuse or make delay grad- disclosure of sexual disclosures, statements, ual and the repress retract in- signs abuse. The behavioral and she described functions, clude sexualizеd of adult sexual play, knowledge fears and anxieties related to body parts, people, places Dockham, at 628. involved in the sexual abuse.” supra vic- involved about a child typical Dockham expert which, if not understood the by jury, tim’s behavior pattern led the to disbelieve the child’s might jury have reasonably case, the For in that the informed testimony. example, expert is not un- that a child’s in sexual abuse jury delay reporting usual, the thereby disabusing jurors аny misperception that, if sexual abuse had have had the might reasonably they testified, more it would have been child occurred as the evidence was The court held that the promptly reported. the is beyond “because the information admitted assistance in and of knowledge jurors common It is Id. at 629. credibility.” victim witness’s court in the five cases cited the clear from abundantly Dockham, holdings, summaries of with parenthetical because it ex- was held admissible the expert that, if victim’s behavior left unexplained, plained him or her. Id. led the to disbelieve might have unfairly at 629-630. no (1990), Mass. 412 is
Commonwealth v. Mamay, holding in this case than more of the court’s supportive of the two The rationale Commonwealth v. supra. in the at an Mamay, expert cases is the same. supra was allowed to tes- field of and sexual assault rape syndrome and sexual assault will report that not all victims tify rape they and that often the first immediately person event said will tell is someone close to them. The also doctor-patient in the context of a trust such as a relationship, which between the relationship relationship re- Mamay, victim and the defendant some victims further contact with the turn to the trusted for relationship affirming judgment, of the assault. In perpetrator discretion judge’s prop- court held that was within “[i]t common jury’s it was erly beyond conclude *9 a situation victim would return to to know knowledgе why or Id. In in which been assaulted sexually raped.” she had held that testi- as in the court Mamay, idea, of the reason- jury to disabuse the was admissible mony information, that contrary in absence of ably accepted with the claims victim’s conduct was inconsistent alleged stand. the victim on the witness making Mamay clearly and The in Dockham expert testimony key of the credibility of the relevant to the critical question Dock- witnesses, admissible. Neither and was thereforе held however, PTSD that Mamay suggests, ham nor should be suggestions admissible to rebut in a cross-exam- iner’s questions to an put asserted sexual abuse victim that his or her nightmares stomachaches and may have been caused by events or conditions unrelated to sexual abuse. In- deed, rebuttal evidence is admitted ordinarily only rebut other evidence. The court’s conclusion PTSD testi- in this case was mony admitted be properly fairly jus- cannot tified as following from Dockham аnd Mamay.
The court quite recognizes the “solidarity judi- cial precedent excluding in to prove evidence that [PTSD] the victim was in fact abused.” sexually Ante at quoting court, State J.Q., 130 N.J. The neverthe- (1993). less, holds the PTSD evidence admissible in this case to “re- habilitate victim’s Ante at The testimony.” 541. rehabili- tation is said to occur a result the PTSD evidence .as rebutting certain suggestions made defense counsel in the victim, of cross-examining alleged course by explain- and ing alleged victim’s “behavior” symptoms, thereby assisting the assessment of the victim’s jury’s credi- course, Of if PTSD evidence were bility. admissible prove abused, that a witness had been the evi- complaining sexually would dence also tend to that the witness’s prove complaint However, agrees, was truthful. as the evidence court PTSD is not admissible to abuse It is sexual occurred. rea- then, how sonable could PTSD evidence have inquire, legitimately assisted the case.
credibility in this The court’s bereft of opinion explanation.
The testified psychologist night- that stomachaches been mares of a child who has typical symptoms said, or She abused has other trauma. suffered forms of are a cause stom- organic things “There number can achaches, and I shouldn’t about being physician, testify not domain, you that. In the see psychological psychiatric school from anxiety. stomachaches from phobia, separation children, Something stress and can young anxiety. from or in often show going family. be in school People through and their stress anxiety bodily symptoms.” *10 417 Mass. v. Hudson. red another “[n]ightmares also testified that
psychologist mind, to at least in my which tends raise flag questions, some stressful experi- some traumatic experience, highly shed whatsoever light ence.” The no psychologist’s testimony have from defense any suggestion may whether that come teenager a counsel the victim was troubled allеged menstruation, and medical were related to problems whose home to of rape, whose life could lead false claims unhappy did not re- was accurate or inaccurate. The PTSD testimony made, but counsel have suggestions may that defense any to tending and it the information gave jury no whatsoever the alleged credibility. support was not admis- agrees The court that the PTSD testimony abused, victim sible to the suggestions and it is clear that the evidence did not rebut any made cross-examination of the victim. The PTSD evidence was to the legitimate jury of no assistance ob- assessing witness or otherwise. The defendant credibility erroneous, jected to the evidence. and can- Its admission not be deemed because cannot fairly harmless degree be said did not some confidently jury to rely on the PTSD at verdict. In his arriving evidence in summation to the the “Ladies jury, argued, prosecutor gentlemen, there’s the nightmаres, been about And things about the about if those pain, depression. disclosure, A get picture. with you picture child who was who has found the time raped and finally Then, come in.” this invitation to use hearing after abuse, jury PTSD as affirmative evidence of that, while judge they heard from the in his final instructions . . . were not bound “can experts, opinions experts which by their assist find facts opinion jury] upon [the jury will decide case.” It was made clear to the jury] [the “in if were they accept psychologist’s her without limi- whole” or “in could use part,” they opinion determining or innocence of the defendant. guilt tation in It have used no difference whether the makes as affirmative evidence admitted PTSD evidence erroneously *11 abuse, of sexual as only supportive It also credibility. is of no consequence that did not ask for a limiting instruction or object to the instruc- tion. Ante at 542. It is enough that the have relied evidence, inadmissible admitted over objection, to the de- triment of the defendant. The convictions should be reversed and the case remanded for retrial.