Duckett v. State

DUCKETT, Andrew Jackson

Jr., Appellant, Texas, Appellee.

The STATE of

No. 330-88. Texas, Appeals

Court of Criminal

En Banc.

Oct. (court Alley appointed appeal

Richard Worth, only), appellant. Fort Mar- Curry, Atty., Tim Dist. and C. Chris Carr, shall, Watson, Brent Paul Delonia A. trial, year old Dist. the six and one-half Chapman, and David K. Asst. At Dickson Worth, Huttash, S_S_, Fort Robert testified she Attys., complainant, child Austin, Atty., uncle, State’s for the State. in bathroom her was when clothes, entered, her

appellant, removed genitalia her with his hands and rubbed FOR OPINION ON STATE’S PETITION cross-examination, penis. the de- On REVIEW DISCRETIONARY complainant had testi- fense established DAVIS, than differently on examination Judge. fied direct W.C. during her interview videotaped had she Appellant was the offense of convicted of years During the vi- about two earlier.4 V.T.C.A., Penal indecency with child. on deotaping September session 21.11(a)(1). Punishment, enhanced Code § S_S_had birthday. stated it was her convictions, by prior felony was as- two through her brought Defense counsel out years Department sessed at 80 Texas testimony birthday that her in fact was of Corrections.1 November, her mother the month but appeal, challenged appellant On direct “presents” promised her if she would had points in four of error. his conviction Smith, investiga- police meet with Jackie point sole the fourth and of error reviewed operator. in- videotape A second tor and by Appeals, argued the Court of was S_ S_identified consistency was trial court committed reversible error when trial, appellant perpetrator as the but by it permitted employed pre- on she had admitted cross-examination Department to testi- Human Services “Lawrence”, viously named as well as fy concerning dynamics intrafamily “Junior”, committing the as the individual sexual abuse. Relying on this Court’s on assault.5 She had told the authorities Hopkins decision in partially tape appellant both she and were (Tex.Cr.App.1972), Ap- the Court trial, At he had taken clothed. she stated peals unpublished in an concluded touching her. both their clothes off before expert opinion was not admissible un- discrepancy There was an additional der Rules of the Texas Evidence Criminal previously the child had the authorities told Rule 702.2 Duckett v. No. 2-86- if appellant “wring threatened to her neck” Worth, (Tex.App.-Ft. 217-CR delivered conduct, anyone of while at she told 17, 1988). February The cause was re- appellant stated threatened to trial she granted a new manded for trial. We cigarettes her with and stab her with burn petition discretionary State’s review to knife. The child’s was clear appeals determine whether the court erred naming appellant perpetrator, as the holding the trial court abused its discre- difficulty she did have some remember- admitting expert testimony regard- tion in she ing certain facts events about which ing intrafamily young chil- abuse during earlier reverse had made statements judgment dren.3 We will Appeals. Court of video session. Department complainant 1. Texas Now the of Criminal Jus- 4. An interview with the child was tice, Although videotaped September Institutional Division. 1984. trial, tape was not admitted at both the State went on to it were to The court state even if

2. state- and defense made numerous references to join jurisdictions” "small number tape. complainant on the ments made permit expert kind in child of this taped child’s The inconsistencies between the cases, the would still have to sexual abuse case part and her were statements trial expert's be remanded for another trial since the opinion testimony. witness’s the focus person- was offered without benefit had al interview with child. The Appellant also as "Junior”. The known given in court and was listened step-father complainant’s named “Law- police report videotape made access to the complaining rence". witness. 200(c)(2). Tex.R.App.P. 3. See complainant’s saying, my mother took the her He did not also “Oh God.” S_testified Patsy report

stand for the State. the results of his examination be- September doctor on did she went to the cause he not believe the child had been S_S_in 1984, leaving the care of her molested. nothing brother. She noticed unusual that potentially damaging To counter this tes- night when she returned home. In the case, timony to its the State called John however, morning, daughter her com- Brogden, a certified social worker and ad- plained itching vagi- and irritation of the practitioner vanced clinical who also holds Responding complaint, na. to the she took Tex- a certificate as an instructor with the According to Pat- the child the doctor. to as Commission on Law Enforcement Offi- S_S_had sy, the doctor informed her cer’s Standards and area Education molested, stated, Patsy been to which “Oh investigation. Brog- of child sexual abuse my Although she told her God.” husband sexually den testified children who are night, about the incident that she did not always go through almost certain abused day, call the authorities until the next be- period phases over the of time of abuse and day appellant’s cause that was the set for discussing in its aftermath.6 After each regular meeting parole with his officer. In “element”, Brogden proceed- phase or then sides, response questions Patsy by to both apply ed to these abstract elements having admitted to been of mur- convicted particulars of the instant case. Establish- having parental rights in der 1974 and lost ing the the had heard various living to both that time with children police testify, witnesses had read the re- her. She also admitted one of these chil- ports videotaped interview and viewed by had her fa- dren been complainant, Brogden taken with the S_ S_’s testimony, Contrary ther. he ele- asked whether “found of these Patsy daughter usually slept denied her in objec- in ments this case?” Over defense same bed her and her husband. with allowing tion that would province of

The defense was able to cast doubt on constitute an invasion of the complainant bolstering jury, of the and her of the State’s witness through prejudicial immaterial to mother cross examination of the and was both S_ S_Dr. case, physician Brogden permitted opine examined who every existing in the gave Robert Casanova testified he the child he found element Questioning general pediatric pelvic examination case. thereafter focused first ordinary. phase in nothing showed out of the on the individual element or terms S_S_told second, general, in itching him the and irrita- of manifestations time, going specific questions regarding manifestations tion had been on for some illustrating particular phase in the case did not mention she had been molested. give Patsy he did not tell at bar. He was asked to Casanova stated why general fail to child had been molested and did not recall abuse victims would “phas- concerning As a testified certain "elements” or silent the offender’s advances. coercion, nearly every es” occur in child sexual abuse result of this the child often becomes opportunity case. The first is the "access and may repress aggrava- or become confused period” of time in which the offender has Typically, the situation. such confu- ted with opportunity with the child. The alone point by the sion will be followed at some engagement phase”, where second is the "sexual phase”, offender's con- “disclosure wherein the multiple sexual nature occur to the events of a accidentally by disclosed third duct is either party occurring during phase, this child. The third of the child’s or offender’s observation time, "conditioning", period as was described behavior, by "purposeful disclosure” the child accept literally conditioned to where the reported him or herself. After the abuse and advances direct threat or overtures authorities, "sup- final the child enters the methods, more subtle so that the child sees pression-repression phase", wherein the offend- key acceptable. element conduct as Another attempt suppress er or his allies or alter along conditioning with is the offender’s need facts in the child’s own mind. instructions, given secrecy. The child is coercion, to remain reinforced some level telling advances, complainant was fact and testi- whether the report improper sexual why explain He did children indirectly report abuse the truth.7 fied children often consistent general act in a manner physical ailments would by way complaining S_S_ with that of genitalia. The State then the area Brogden specifically questioned guidance no Appeals, The Court he had “seen some manifestation whether subject, examined from on the this Court (indirect report) in case?” of that Brogden’s expert testi- admissibility of overruling objection as Again the same standpoint mony under Rule 702 from the defense, previously by the trial made testimony on the effect of the respond court allowed testimony has case and how similar State’s S_ specify affirmative and to further Court, past by as been treated S_’s complaints itching and irritation The court by jurisdictions. as other well demonstrating as evidence her manifesta- although Brogden give “did not noted that phase. by Element tion of this element or name, specific there can these ‘elements’ a objection, over was element and State describing phe- was be little doubt he question Brogden gener- first in allowed to as Sexual nomenon known the “Child opinion how al terms and then solicit 4, Slip p. citing Syndrome.” Abuse by specific element was manifested each authority People Grady, 133 Misc.2d v. particular, in the instant case. In facts 211, (N.Y.Sup.Ct.1986). 506 N.Y.S.2d 922 complain- Brogden questioned why was by recognized the cases cited court change ant would her recollection of the “represent growing a small but num- State the time events between offense psychological jurisdictions ber of that allow trial, and whether it was unusual not to explain and emotional physical discover some manifestation of involving sexual child’s behavior in cases genital trauma around the area. He re- Nevertheless, the court declined abuse.”8 stating sponded question by to the first controlling in the to read Rule 702 “as forgetfulness part repression prece- us overrule the State’s effort to have phase. query, Brogden To the latter cited by dent established the Court of Criminal showing studies in over certain statistical Appeals Hopkins.” interplay It is that cases, no of child molestation there is 80% the crux of possible conflict which is sum, physical evidence of assault. In shall the issue before us and to which we permitted identify was turn. now phases the six elements or but also was Admissibility expert testimony gov- testify specific facts fit allowed to how by pro- 702 which within each abstract element. He was not erned Tex.R.Crim.Evid. opinion asked and did not volunteer an vides: case); soliciting intrafamily prosecution very v. Mid (Under came close to contact in dleton, abuse State

7. S_S_was 427, telling (1982) opinion direct on whether Or. 657 P.2d 1215 the truth when was asked if in his Texas Rule trial court rule identical young age study experience, a child of "[i]s properly admitted social worker’s sticking story capable over a to fabricated complainant’s typical behavior was long period objection The defense of time?” victims); Myers, many abuse State disregard sustained and an instruction to was (Minn.1984) (Where under identical N.W.2d 604 given. The trial court overruled motion Texas, gener concerning testified rule as for mistrial. children and indi al characteristics of abused credibility by rectly complainant’s tes bolstered Appeals, 8. As noted the Court of the State tifying abu it rare for a child to fabricate Nevada, supporting position its from cited cases situations, testimony prov did not invade sive prop Oregon, Minnesota and California for the court did not err ince of and trial 702, expert testimony osition that under Rule regarding Roscoe, evidence); admitting People v. 168 Cal. characteristics in behavioral Dist.1985) (5th App.3d Cal.Rptr. 45 children be admissible or at least (trial admitting expert court erred in See Smith v. 100 Nev. harmless. complainant diagnosed (1984) (Trial stating as abuse victim properly admitted P.2d 326 judgment). delays reporting affect expert testimony explain but error did not scientific, technical, (1952). If special- Testimony, or other Vand.L.R. excluded, opinions knowledge ized will assist the trier of When are is because they unhelpful super- and therefore fact to understand the evidence or to Wigmore fluous and a waste of time. 7 issue, quali- determine a fact in a witness skill, expert by knowledge, § fied as an education, experience, training, Pierce, 414, citing 777 S.W.2d at Fed.R.

testify thereto in the form of an Advisory Evid. 702 Committee note. Since or otherwise. .particular expert knowledge at issue perspective, had to do with common we The decision whether allow witness testimony represented declined to find the testify as an is committed “specialized knowledge” within the mean- sound discretion of the trial court. Pierce rule; ing though even the witness’ (Tex.Cr.App.1989), 777 S.W.2d 399 insight into the information and cases cited therein. our recent deci- might have been of some benefit to the Pierce, supra, opportuni- sion we had the jury, type it was not the found ty proper to discuss the standard for ad- range layperson’s outside the knowl- expert testimony mission of under Rule 702 edge.9 agreed and there with the characterization given in the identical rule found the federal specifically We also our declined to base system. The threshold determination for holding Hopkins, decision on our earlier in admitting expert testimony is whether the noted, supra. Judge Campbell Hop- As “specialized knowledge assist trier kins, will the adoption supra, was decided before of fact to understand the evidence or to present our rules of and thus evidence Judge determine a fact in issue ...” Id. might given be in doubt the breadth of Campbell, writing majority Pierce, for a of the Rule 702. 415 at Court, pointed out that the drafters of Fed. point, nt. 3. More to the also explained holding R.Evid. 702 the intent of the rule in correctly states the narrow following Hopkins manner: case is not at odds with the change evidentiary in our rules.10 proper Whether the situation is a one of expert testimony the use of is to be de- Court, Hopkins deciding after assisting termined on the basis of expert psychiatric testimony benefit of of- trier. ‘There is no more certain test for purposes solely impeachment fered determining experts may be used when against great a State’s witness was not inquiry than the common sense whether enough disadvantages to to offset the its layman qualified would be untrained admission, held the trial court in that case intelligently determine and to the best excluding did discretion in not abuse its possible degree issue with- testimony. important It to note the con- is enlightenment having out those from in text which the issue was decided. The Court,

specialized understanding subject recognizing expert psychiatric while Ladd, dispute.’ Expert automatically should not be ex- involved sistency argued expert’s testimony and rule be "re- 9. Pierce could as- between case law So, too, judging suggestiveness sist the construction.” moved reasonable lineup in he was identified as the mur- prescribe adopted does new Rule particular, he would have stated derer. when an manner to rules of evidence be construed in a object placed larger object, next to alia, secure, "promotion growth inter object perceived the first will be to be smaller development of law of evidence to the end size, than its actual and vice versa. As the proceed- that the truth be ascertained noted, majority opinion author of the knowledge appear ings justly determined.” This would specialized in the context of support Judge Campbell’s observation in Pierce rule; appear the parameters it would to be well within compared regarding the breadth of Rule 702 as lay sense attributed to a common prior adoption authority with caselaw found jury. of the rules. case, If such were Tex.R.Crim.Evid. 101(c) appear require would incon-

9H cases, eluded in all purpose bolstering focused on the of the com for which plaining description due admissible to a usually criminal case: behaviors found in Reser, children. State v. Kan. purpose expert testimony is to (1989); Stephens P.2d 1277 supply knowledge which not ordi- would Kim, (Wyo.1989); P.2d 60 State v. 64 Haw. narily be available to trier of fact. (1982). P.2d 1380 See also State psychiatric While information is not Geyman, 224 Mont. 729 P.2d 475 known laymen, most there is still (1986); Saldana, State v. 324 N.W.2d 227 available to the impeach- the usual (Minn.1982) McGee, and State v. ment evidence such as criminal convic- (Minn.1982) (convictions N.W.2d 232 re prior tions and inconsistent statements to versed “rape where described trau assist the determination credibility. syndrome”, general ma testified as to char Thus, highly unlike the case of technical matching acteristics and characteristics in issues, jury, psychiatric even without bar, gave opinion case whether vic testimony will not be left ‘in the dark.’ actually raped; tim was court noted this Hopkins, Thus, at 221. it type could be admissible correctly Hopkins, be said the decision in mentally assault of a child or a supra, upon proposition was based com- person). retarded While certain courts mon in the law both before and after our would allow direct that a child present rules of evidence were enacted. was assaulted based behavioral char Expert testimony, admissible, to be must acteristics, supra, see Geyman, State v. pass the threshold test concern a still proposition other cases stand for the subject upon which the aid expert of an expert testimony would be allowed opinion will be of assistance to the trier of only expert provides opinion where the Judge fact. recognized Roberts this most upon objective based criteria with which predicates in Hopkins, supra. basic Id. particular the victim’s behavioral character at 218. Rule 702 simply is a codification of may compared. istics then be It is evi interpretation. question The real going dence to pattern demonstrate that a admitting expert testimony is whether that recognized in other sexual abuse cases testimony will assist the in reaching a Kim, exist in the case on trial. v. State just Many verdict case. times the supra. Pierre, See also U.S. v. St. 812 jury may by background be aided informa- (8th Cir.1987); F.2d 417 Myers, State v. 359 tion might explain tend to certain (Minn.1984). N.W.2d 604 behavior and jury may without which the Other courts type would allow this be “left Hopkins, the dark.” supra. expert testimony for witness rehabilitative Where testimony highly specialized is purposes directly qualify but not to nature, or technical in so as to be outside veracity See, of a witness. e.g., knowledge average layman, a Madison, 754, Wash.App. v. 53 State 770 threshhold determination admissibility (1989); Black, P.2d 662 State v. 537 A.2d proper under Rule 702 is both and consist- (Me.1988); Rodriquez 1154 741 v. prior ent with case law of this State. (Alaska P.2d 1200 Ct.App.1987); v. Wheat noted, As growing earlier a number of State, (Del.1987); 527 A.2d 269 State v. jurisdictions expert now testimony (Iowa allow to 1986); Myers, 382 N.W.2d 91 State v. explain behavioral Moran, 378, characteristics of chil- (1986); 151 Ariz. 728 P.2d 248 Baldwin, dren who have suffered sexual abuse. Pa.Super. Commonwealth v. jurisdictions 368, 502 (1985)11; Some would allow such testi- A.2d 253 v. Mid State mony dleton, (1983). though impact even there is a direct 294 Or. 657 P.2d 1215 language veracity testimony expanded 11. The in Baldwin has been further on direct Seese, expert testimony restricted. 439, In Commonwealth v. Pa. include that commented on (1986), prohibition veracity potential 517 A.2d 920 Baldwin's of a class of witnesses of appears credibility. example, It most the line courts have drawn victim’s For State testimony on Moran, supra, where there has been direct Supreme v. the Arizona credibility Thomp the victim. See approved expert Court admission of Alaska, (Alaska App. v. 769 P.2d 997 son testimony designed to rehabilitate a child 1989)(expert give witness not a direct witness, expert held an should child); opinion a on truthfulness of a state whether child’s behavior is consist- Smith, Pa.Super. v. Commonwealth ent inconsistent with abuse. (1989) (expert’s opinion 567 A.2d Hudnall, v. State 293 S.C. 359 S.E.2d ability as to ‘in charac child’s (1987), Supreme the South Carolina prejudicial ter’ tell the truth counsel disapproved testimony that sole- Court object failing ineffective for to introduc ly designed prove abuse occurred. tion); People Gaffney, v. 769 P.2d 1081 The court wrote: (witness (Colo.1989) may not offer type have Courts that admitted the believable); very Tingle that child is syndrome issue evidence at here (Fla.1988)(in rejecting 536 So.2d 202 typically explain allowed it expert’s testimony credibility post-trauma child-victim’s behavior as writes, was error for the state’s wit “[i]t where common reaction to sexual abuse directly testify ness to to the truthfulness appear impeaching, otherwise would victim”); J.C.E., 235 Mont. State for if there instance is retraction rule, (1988)(as general 767 P.2d 309 allegations delay reporting or a evaluating credibility abuse ... inadmissable, except when testifies); child victim and v. El State case, In this was admitted evidence (Utah 1989)(no dredge, P.2d 29 to bolster child's child). opinion on truthfulness of But see crime in fact occurred and was had (testimony Geyman, supra State v. explain any seemingly offered incon- purpose was assaulted admissible find response sistent the trauma. We child). helping jury assess preju- of this irrelevant and admission dicial was error. examination, fairly it is clear On close approve most do not testimo- courts at Id 61-62. ny describing ob- behavioral characteristics A few decisions hold when testi- sexually as served in abused children sub- mony describing characteristic behavior See, e.g., evidence of abuse. stantive sexually group children as a is of- abused Black, arises supra. Confusion State v. act, charged as evidence of the fered direct clear because some court decisions are less party offering the estab- evidence must than others whether the evidence has been community ac- lish the relevant scientific subjective as evidence of abuse received See, e.g., cepts opinion. for the basis case, testimony based or is limited to State, (Alaska P.2d Anderson v. 749 369 facts, resulting objective an Rimmasch, 775 Ct.App.1988); State v. by the victim that the behavior exhibited 1989). (Utah Because of the rela- P.2d 388 generally with that dis- was consistent “syndrome evi- tive newness of so-called But it played by victims of sexual assault. dence”,12 acceptance may be difficult testimony is apparent clarity such is also of important as prove child but should be no less generally permitted to rehabilitate a published enti- was 12. Dr. Summit article which victim was a member. This view Roland tled Syndrome” Child Sexual Abuse Accommodation "The Emge, Pa.Su- v. 381 followed in Commonwealth Summit, (CSAAS) The in 1983. See 139, (1988), v. per. A.2d Commonwealth 553 74 Syndrome, Abuse Accommodation Child Sexual 297, (1989), Gibbons, Pa.Super. 556 383 A.2d 915 (1983). Dr. & 177 1 CHILD ABUSE NEGLECT Garcia, Cr.L. 1249 and Commonwealth v. 47 five common- Summit described ly characteristics v. (Pa.Sup.Ct.1990). See also Commonwealth (1) (2) secrecy, observed in victims: Davis, 77, (1988). A.2d 315 Pa. 541 518 (3) helplessness, entrapment and accommoda-

913 protection against unproven prin requirement rationale testi- scientific with the ciples. proven, mony is under Rule must ei- Where scientific value admissible 702 kept must ther “assist the trier fact to understand firmly still be in mind such evi abuse, the evidence or to determine a fact is- People dence is not “test” for see Deciding Brogden’s Bowker, sue.” Cal.App.3d 203 Id. v. 249 Cal. (1988); “equivalent passing

Rptr. People Gray, 187 886 v. Cal. complaining truthfulness of the witness” App.3d 213, (1987); Cal.Rptr. 231 rath 658 (emphasis supplied), the concluded er, court syndrome pres evidence assumes the under abuse, was not admissible explains sexually ence of prohibition Hop- Rule 702 because People abused child’s reactions to it. kins, supra. Sanchez, Cal.App.3d 208 256 Cal. Rptr. (1989); M., re Sarah 194 Cal. It is axiomatic that a trial is vested court (1987). App.3d Cal.Rptr. This to admit or evi- with discretion exclude syndrome say not to evidence is not appellate dence and an should group value in a criminal case. As one reverse a trial court unless that court has of commentators has stated: admitting abused its discretion in the evi- syndrome accommodation has a dence at issue. Marras v.

place syndrome in the courtroom. The (Tex.Cr.App.1987); S.W.2d 395 Stone helps explain why many (Tex.Cr.App.1978). allegations appellate children recant abuse and The court reviews the record eye deny anything regarding If rules occurred. use of toward the relevan- cy probative syndrome proffered value of the confined to these reha- evidence, functions, any specific as clears, well rule under bilitative the confusion piece par- which a evidence syndrome the accommodation serves cel offered. As a basic a useful forensic function. premise, the evidence must be relevant to al, Meyers Expert et Testimony in Child an issue in the case. Tex.R.Crim.Evid.402. Litigation, Sexual Abuse 68 NEB.L.REV. Relevancy is defined be that which (1989). proof pertinent hy- conduces to the of Appeals Court in the instant pothesis pertinent hypothesis being —a recognized array cause sup- of caselaw which, sustained, one logically if would porting the admission of influence the issue. Hence it is relevant in cases similar to the one at bar decid- put in evidence circumstance ed the case instant on the basis of what proposition make the tends to perceived applicable to be Texas law. probable. issue either more or less recognized apparent The court also ab- (Tex.Cr. State, Plante 692 v. S.W.2d 487 any sence of conflict Hopkins between the App.1985), State, quoting from v. Waldrop 702, case and Rule but in manner a differ- 166, (App. 138 133 Tex.Cr.R. S.W.2d 969 ent we from that have discussed above. 1940). appeals upon focused the fear expressed by Hopkins Court may evidence be ex Relevant still psychiatric testimony may admission of substantially if probative cluded its value is cause of danger preju a trial become a test the credi- outweighed by the of unfair dice, bility confusion, delay, unnecessary of both defendant and vari- or cu witnesses, evidence, psychiatric juxtaposing although recog- ous that mulative we also tion, conflicted, (4) delayed, unconvincing may probative of the fact be of abuse disclosure, (5) syndrome explain seemingly contradictory con- retraction. The a child’s tool; Thus, diagnostic pres- allegedly not a one reasons from duct after abuse has occurred. syndrome ence of sexual abuse to reactions to sexual accommodation must be distin- syndrome, guished Syndrome", Child abuse. The elements which are from "Battered very accepted diagnostic suspected those Dr. is an similar to enunciated tool in case, probative physical in the are not instant therefore abuse cases. State, probative any against most offered value. See Crank

nize evidence 328, (Tex.Cr.App. party will some deleterious effect n. party’s 1988); Tex.R.Crim. case. See Rodda v. 745 S.W.2d And, expert in the testi- (Tex.App. Evid. 403. case 417-18 [14th Dist.] — Houston clearly ref’d). now do mony, 1988, pet. generally, Blakely, the rules not exclude merely IV; Limits, it encom- Relevancy such evidence because Its Article passes Goode, (1983); or embraces an “ultimate issue” Hou.L.Rev. Sharlot, Tex.R.Crim.Evid. 704. fact ease. See & TO THE Wellborn GUIDE Moreover, very na- expert testimony its EVIDENCE: TEXAS RULES OF CIVIL ture tend to show another witness CRIMINAL, Section 402.3 at 84 AND telling is or not the truth. That either (1988).

fact does not alone render At 910. opin- not inadmissible. The test is whether line bright applica- We cannot draw fact in ion embraces an ultimate cases, since ble all ease, expected for that is the or desired appropriate in many take forms and be test, specialized testimony. The result general different circumstances. As restated, expert’s testimony, is whether the however, guided by we proposition, can be believed, layman if assist the untrained will language Rule the common sense fact trier of to understand evidence Pierce, supra. special- issue, explained in Where supra, determine fact Rule knowledge jury un- un- ized will assist the and whether it is otherwise admissible admissibility. general der the evidence or will assist them rules relevant derstand issue, To to a expert may the extent the evidence relevant a fact in be determine case, evidentiary or issue in the our provide matter with the benefit allowed to require party opposing now knowledge. preva- rules Two themes of that proffered First, evidence not demonstrate rule. language lent within the the evidence but negative attributes of qualified to jury must be intelli- not negative these attributes also show how possible degree de- gently and the best probative outweigh the value substantially particular issue without benefit termine the recently As noted in of the evidence. we specialized knowl- witness’ (No. 1090-88 and Montgomery v. State Second, Pierce, edge. supra. clear 1091-88, 30, 1990) (not yet May delivered the rule must be observed. meaning of reported), evidentiary law has been Texas evidence, adoption the rules of Prior to significantly respect altered with expert testimony is reaffirmed this Court probative relevant evidence admission of decision, in its aid the admissible new rules of adoption since the of our Holloway decision. supplant evidence: (Tex.Cr.App.1981). broadens this do find Rule 702 We rules, pro the common—law Under admissibility. The reason predicate to be- re piece evidence was

ponent of a The use hind rule remains the same. probative value quired to show must limited to situ- outweighed its evidence of his offered expert’s knowledge and the ations in which State, v. prejudicial effect. See Bush beyond experience on a relevant issue (Tex.Cr.App. 444-445 decision to average juror. The that of an State, 1982). v. See also Williams jury, but the remains with the be made (Tex.Cr.App.1983). Un expertise is allowed enable rules, however, testimonial there has the der new comprehend the fact to better the trier of focus; oppo it the a shift in now is been evi- the evidence. The significance full of only demonstrate to not nent’s burden encompass- if it is dence at issue admissible negative attrib profferred evidence’s the fact; may it an ultimate es or “embraces” negative these to show also that utes but ” jury. for the fact “substantially outweigh decide attributes second, “embracing” best the jury; We illustrate distinction the while utilizing issue, by analogy merely outlined above the background offers informa- State, Rodriquez found in supra. v. reaching tion to assist the its deci- of Appeals Middleton, Alaska Court in that case held supra, sion. See also State an abuse of discretion for the trial explaining [expert testimony superficially testimony court to the admit of John Ra- represses bizarre behavior of child act who bun, a social worker who had demonstrated by identifying its emotional antecedents expertise of field child sexual abuse. general many of population child victims testify general Rabun was allowed to as to help jury could better assess credi- witness’ background patterns exploited found in bility]. give children and further permitted bar, Brog- In the case at complainant’s whether testimony den’s consisted of statements pattern statements demonstrated a consist- (1) provided the jury with informa findings ent with Rabun’s his other in- concerning phases tion the six elements or vestigations exploited of children. The of of Appeals what the Court termed the court stated: Syndrome”, so-called “Child Sexual Abuse appears signifi- It to us that there is a (2) applied those six elements cant presenting distinction between facts of case. There no doubt the witness, polygraph such as a operator, to indirectly credibility State bolstered the of testify truth, person telling that a complaining Yet witness. our review presenting a witness who can state pertinent portions of the of record dis of behavior a witness falls with- prosecution, except closes for the one pattern. in a common infra, attempt time noted did not to cross expert give

the line and have its a direct opinion on the of truthfulness the child.13 Testimony by an pur- witness that hearing prior an in-camera ports by to establish scientific principles taking jury, the stand before the the trial that another telling witness is the truth judge parameters was careful to define dangerous ground. treads on legal On permissible questioning, warning both hand, testimony the other prosecution stay witness and within provides witness which useful back- generalities abstract of the elements or ground information to aid the phases intrafamily child sexual abuse evaluating testimony of another wit- apply and to those elements in abstract ness is admissible. We conclude that the showing terms the behavior the child John Rabun was this latter was consistent with the elements. These type testimony. S_S_testi- instructions were followed. Rodriquez v. 741 P.2d at 1204. appel- fied she had been rules, In terms example the first Her testimony lant. at trial differed from impermissibly decides the issue for the earlier statements. The defense was able (Tex. Kirkpatrick credibility 13. In province 747 S.W.2d 833 on because it “invades the ref.), App. pet. appeals jury.” concurring opinion As in Kirk — Dallas appellant’s grounds reversed notes, conviction patrick Hopkins expert's made clear an improper witness’ was an solely is not inadmissible complain direct and indirect comment on the So, too, today expert’s reason. do we hold credibility. agree ant’s We with that court’s general which in effect "matches" judgment as based the admission testi "classic” behavioral characteristics with com mony directly bolstering credibility, the victim’s plainant’s patterns, behavior but does not direct disposition points relating but not the court’s victim, ly on the comment appellant’s complaints regarding the ef admissible under Rules 702 and 704 as relevant bolstering. recog fect of indirect The court probative guilt of and the ultimate issue of be clearly of nized the existence Rule 704 which the of fore trier fact. issue, opinion allows an on an ultimate but pre-rule authority stating harkened to back ex perts give opinion permitted to should be an awareness, inconsistencies, changed increasing point out testi- of social we to one non-disclosure, mony, or denial and confu- type it was of a which could have find part to complainant sion of the such on determining of fact in assisted trier naturally degree question a that a would by conflicting questions raised tes fact superficially arise to the reason for her as complainant her timony of the and mother. illogical Explaining bizarre or behavior. compare Dunnington v. See and seeming illogical by identify- this behavior (Tex.App. Paso 1987 S.W.2d 896 — El ing help could its emotional antecedents ref’d) (expert pet. testimony explaining pos credibility.14 better assess witness’ delay outcry in initial sible reasons for and special- Given the information of such spousal complicated such motiva denial not normally ized nature which is not within foreign lay juror’s experi tions or so understanding lay jury, a in the common of explanation). expert ence as to necessitate explanation in nature that it was of S_ S_’s recognize that sexual abuse of chil- We why not of behavior was such problem Appel- in dren is a our culture.15 illogical bizarre or nature under the circum- deny lant does not such as that behavior comparison generally known in stances as S_ following S_may exist exhibited with those characteristics of known abused abuse, children, though or that problem and even familial sexual evidence, theory Wigmore’s supported ex- treatise on first 14. This has admission of influential pert published or on the "battered wife" "bat- in warned in which he syndrome” jurisdictions, cases, girls young tered women’s including some women and were sex offense our own. See Fielder psychiatric not to be believed absent “careful (Tex.Cr.App.1988)(expert S.W.2d 309 Wigmore’s scrutiny.” Vestiges of influence 19.06, admissible under Art. V.A.C.C.P. rebut evidentiary requiring seen rules cor- still be appellant’s prior inference conduct in relation- testimony, of as com- roboration a sex victim’s ship husband; with her claim of fear of was inconsistent admissibility pared vic- of of explain the to extent could suffering tims other crimes. way hypothetical women endurance Freud, of Sandor Ferenc- In 1932 associate could infer is consistent with zi, paper presented “The Sexual Passion of abuser, fear was of claim of on the Character Adults Their Influence Appellant "appreciable aid” to the trier of fact. Development Although of Children." re- "subject established this was ... which jected colleagues, insights by his Ferenczi’s jury.”) assist the would ring practitioners today. He would true authority adults can subor- wrote that the product problem 15. is not a modern This elder, young dinate a child to the wishes commentator, society. According to one there unresisting changing the child into an autom- study have been at least three efforts ignored help whose cries for are often aton respond child abuse all of sexual before seriously. He taken also foresaw that phy- suppressed. were In a French as could result in dissociative treatment a child published a sician named Ambrose Tardieu adult. behavior rape Medico-Legal Study A book on entitled acknowledgment of sex- The most recent Decency, discussed thou- Assaults on where he corollary began abuse attention ual cases child sexual abuse. Tardieu sands of abuse, beginning physical reporting of about 11-year period between 1858 reviewed an also With awareness sexual increased 11,576 citing rape attempted cases of abuse, began to focus on such researchers girls rape, nearly young 80% involved of which attempts to illuminate the abuse. Unlike earlier ages of four and twelve. between problem, reporting has recent a broad most acknowledgment came in 1896 The second through late 1980s result- base and statistical presented paper Sigmund entitled when Freud increasing prosecutions in an number ed Aetiology Hysteria, he in which defined of theory” assault laws. new child sexual abuse and under hysteria by asserting his "seduction however, warn, does The commentator etiologically to childhood sexual as- related attempts prejudice earlier which defeated same response peer pressure, Freud sault. again expose problem and control theory his more well in favor of abandoned society. Meyers, Protecting facing See Children theory Oedipus Complex”, a com- "The known plete the Future Sexual Abuse: What Does From Hold?, theory of his earlier where mental reversal (1989). J.Contemp.L. also explained in terms of children not illness is Note, Syn- abused, Child Abuse Accommodation fantasizing Sexual actually sexually being Misdiagnosis Curing impact drome: experiences. Freud’s about Effects of (1989). Evidence, immediate, 25 Tulsa L.J. H. the Law as evinced John the law was witness, chal- Brogden’s testimony whose credentials were not We now hold was of a lenged, correctly. described it possi- type contemplated It is proper admission un- the jury capable ble would have of been der Rule 702. S_S_’s deciding whether behavior actual- Having Brogden’s decided testimo ly pattern fit the described ny was admissible under Rule both in However, Brogden. bright-line we no have general testimony terms of his abstract or separating standard com- issues within the opinions applying syndrome and his prehension jurors the from those that case, are not. elements to the facts of the When the evidence is of such it remains be “specialized” content as to classified as to determine whether the im discipline, presump- within properly the State’s case. We bolstered do may tion be drawn that the evidence is not weigh Brogden’s abstract experience. of common of admission identifying expla the six elements nor his expert testimony is within of the discretion phase; nation each of element or it is the Therefore, qualified the trial court. if a nature of admissible explanatory give testimony offers on whether testimony to such specialized be of content the reaction of one child is similar the great probative as to be of We value. look of reaction most victims of familial child instead to the in witness’ the abuse, and if believed would assist the opinion going form of to the “ultimate is jury deciding whether an assault oc- complainant’s credibility sue” of the vis-a- curred, may it be admitted and trial conflicting vis her statements to the au judge does not abuse his or her discretion thorities. doing so unless the evidence otherwise import It is of clear the Rule 702 and pass fails test for admissibility. permit expert opinion Rule 704 is to expert’s testimony here encom- issue, which “embraces” an ultimate re- passed specialized at least one con- view gardless incidental effect of bolster- cerning process through which ing particular party’s However, case. may encounter and deal with an abusive it specific should be remembered these situation. The record does not reflect the rules in conjunction must read with the composition was of such general regarding pro- rules relevance and knowledge elementary or common- bative value found Article IV place. What has dynam- been termed the seq Rules of Evidence. Rules et intrafamily ics of may child sexual abuse example, and discussion For ante. al- appear public now before the in the form of though may opinion objec- evidence not be articles, newspaper books and television tionable under Rule 704 it where embraces programs, attempts to educate the fact, pro- an ultimate issue there is no public only foreignness underscores the scription objection based subject society general lay and a opinion. Thus, prejudicial content of the particular. We also hasten to add regarding we do not find the standards attempt Brog- the State did to offer bolstering of a case or witness anything den’s than other expanded by passage been of the rules. one expert’s opinion what was: concern- Instead, weigh a court must the effect of S_ S_'s ing behavioral characteristics. bolstering probative in terms value While we envision the future against prejudicial effect of such evi- require upon request a defendant to be dence. given place expert opportunity same case, present argu- the jury, reject before we complainant directly her mother necessarily a practice ment that such will brought into issue the defense. It is counter-productive lead “battle ex- appellant’s perts” any strategy clear from the record properly more than what is now another, at allowed under other contested to transfer blame to conditions. was wall, at one questions regarding five The attacked raising directness. same time point, may not be fortified at another and testimony conflicting contradictory of and McCormick, Id., point.” citing distinct C. during discussed the first the child. As Evidence, (2nd Ed. Sec. McCormick opinion, the defense was able to part of this al; 1972). Cleary, et McCor Now see E. on motive and credibil- cast some doubt Evidence, (3rd Ed. mick on Sec. 49 at 116 ity complainant of and her mother. It Evidence, 1984). of In terms of the Rules version of events and was shown the child’s of evidence is probative value such surrounding the incident had circumstances diluted, prejudicial effect enhanced and videotaped changed day from the she was given impeachment circumstance stand, day to the of trial. On witness bolstering testimony the fact both confused and reticent an- she was wall. directly fortifies the breached during swering questions, especially her coun- cross-examination an able defense reading apparent is from the Court It brought out inconsistencies sel. Counsel Appeals’ opinion that its decision statements, in the child’s but also the results only instant case based Farris, supra. Hopkins both testimony compared found in her mother’s S_S_and distinguishable on the facts. Both cases are Dr. Casanova. S_ supra, particu- In Hopkins, we decided S_, fact that Finally, there specialized testimony lar was not nature given opportunity to tell the doc- when pre-rules to fit within the standard. acts, silent. tor of the abusive remained case, Farris, supra, pre-rules while another may special- have been in this State It a well settled rule admissible16, ized nature and otherwise we may support prosecution not bolster or to be inadmissible as held the evidence they been its unless own witnesses improper bolstering: impeached on cross-examination. Farris v. State, (Tex.Cr.App.1982); 643 S.W.2d 694 brief, point in its nor The State does not (Tex.Cr.App. State, Pless 576 S.W.2d 83 trial, v. point any impeachment did it at 1978). unimpeached may witness any vigorous An or child witnesses his or her tes simply bolstered because which tended to under- be cross-examination State, disbelieved; testimony. it is when mine their Smith timony be (Tex.Cr.App.1980). position having 595 S.W.2d placed in a a witness differently from earlier testified examination of the record reveals Our party permitted to bolster its that a will attempted im- or three instances of two State, 514 own case. Adams v. child peachment impeachment (Tex.Cr.App.1974). Lyons also See were not on witnesses. Such instances (Tex.Cr.App.1965). 388 S.W.2d totally un- material matters and were testimony must be related bolstering bolstering testimony of Dr. related to the impeachment to be admissible. Grigson. App.1979). O’Bryan v. As we stated in Farris, supra, (Tex.Cr. ^{[*] [*] [*] [*] [*] [*]} rehabilitating par improper a “The facts must meet are unable to hold that We Grigson was harmless. testimony of Dr. impeachment method of with rela- ticular expert, cross over from medical well in Farris came from does 16. The issue Grigson. frequent P. for the Dr. to the trier fact James the line between assistance Grigson capital prosecutions. testified body. State in deciding for that issue ultimate fantasizing concerning incapable children the ques- phrase practice better would be of acts the defendants that case kinds response terms of whether tion committing. We did not decide were accused of normally usually or herself conduct him will would have been other- whether wise manner, or whether the in such admissible, and decline to take a second of other are consistent with that child’s actions however, apparent, apple It is bite of the now. to have been been shown children who have opinion seemingly that incapable a fixed or inflexible abused. coming as it of contradiction and in, It would be unreasonable not to conclude I Another little threw inconsistency of children is nit-picking small don’t know whether it was immeasurably by bolstered testimo- you story’s whatever want to call it. The ny they utterly incapable were going of now down come and he’s to burn fantasizing cigarettes about deviate sexual inter- me with and cut with me out, course. knives. going Started he was ring my neck. Farris, 643 S.W.2d at 697.

Here, the State did not call the stand until the complainant after had police. That’s she what told the That’s impeached. been and effectively cross-examined what she told Jackie Smith. Miller Cf . story can change? How much It’s (Tex.App.-Dallas ref’d) pet. far, gone ladies gentlemen, so and in two (State case during bolstered own direct ex years they completely have undressed. of amination first witness had who They then, Sep- had their clothes on back been impeached). Contrary to the situation They gotten tember 1984. have naked Farris, supra, the State in its instant Completely now. naked on the floor. pointed brief has out both to Court They started out on the toilet. specific to the court below instances in complainant which the child effectively was impeached by vigorous cross-examination , you, like I told there’s numerous S — by the defense. impeachment Much inconsistencies, go I won’t over all. them S_S_’s had to evidence do with change said, Like I I I don’t think she tried. concerning the events of the think story many she’s been over this so alleged offense. The defense tried em they times her got primed have on it phasize apparent her by utilizing confusion up acting. so well she’s here—she’s theory Patsy or someone else was fact, In I she walked out the hall when offense, guilty of the if one had indeed went to says take break and she ‘Did I occurred, and Patsy pro had others good?’ do grammed the tell story child to a certain remembering.

which she had upon trouble The material matters issues exploited rationale throughout complainant defense was impeached which the was were arguments: final directly Brogden’s related to witness testi- reason, mony. For that we hold the trial girl This I confused. don’t think she court did not abuse its discretion admit- exactly well, knows I’m going say — ting witness’ rehabilitative testi- S_ I think this. everything believes mony over objection a defense of bolster- up she said here in the witness stand. I ing. Appeals incorrectly Court fo- think she that in believes her heart. I cused the indirect result of the testi- herself, she’s believe conditioned she’s mony bolstering complainant’s — many them, been over it so times I with reference to the con- —without it. I think she believes don’t she think text in which the was allowed. intentionally you misled one bit. As stated that an infra, fact you say meaningful I think from could testimony may have the witness’ indirect S_ standpoint trying tell the bolstering result of another witness’ credi- they I gone truth. think have over it bility is not the test for admission under many her so become times that it’s Rule 702 be relevant to determina- reality I thing. her on this don’t admissibility general under the tion you, think she tried to mislead but look relevancy probative value of rules pressure at the that’s been child. on this Rule both su- evidence. 402 and Here, although Brogden’s testimony pra. bolstering relevant and admissi- the child’s information was both did the effect evidence, ble under the rules of because it would, if other- testimony, specialized information value in as- proper, be admissible rebut wise sisting to understand the evidence impeachment majority of a child in the complainant’s regarding conduct. question. jurisdictions passing on the Brogden’s testimony applying the ab- conclusion, today we have held present to the instant case stract elements Brogden’s question. properly the trial court admitted a It is undeniable this closer aspect testimony indirectly of his embraced of testimony under Rule 702. content complainant’s question the of the credibili- knowledge at issue concerns various so the rules, interpretation ty. Under our phases of what be called elements or merely which embraces an Syndrome”. termed “Child Sexual Abuse clearly under ultimate issue is admissible expert in Brogden was to be an the shown different Rule 704. The situation would be abuse, having field of worked child Brogden permitted if had the trial court hun supervised some twelve to fifteen or S_ give S_was opinion whether he believed an of chil dred cases and hundreds observed telling the or truth could be- Although personal not testify. dren he did opinion form of would lieved. latter complainant, present he ly examine the only not the ultimate issue of embrace heard the courtroom and charged, whether the child was abused as principal the witnesses.17 The defense of line the trier assisting it would cross the of impeached complain the having effectively body replace of fact to as decision witness, the State was ant’s again opinion testimo- maker. We note admissible, allowed, if otherwise to solicit ny background and rehabilitative was of Brog- expert information and of nature, doubt had admitted after some S_ why help den to understand theory prosecu- been cast on the State’s S_ appeared or changed her the testimo- by tion defense counsel. Since Brogden regard, provid- In confused. in an ny did that line at- here not cross topic general on a not of ed information tempt for the and to decide the issue average layperson. to the Child knowledge background rehabilita- was in the nature kind, abuse, is especially of the sexual evidence, judge did not abuse tive the trial society. problem new We admitting testimony. his discretion in learned, dismay, problem much to our State, supra; Rodriquez v. State v. larger thought, largely be- than ever Kim, Middleton, supra. supra; State past abuse was cause child sexual ground for review sus- The State’s topic of conversa- hidden crime—a taboo judgment of the Court of tained.18 The that each us But it cannot be said tion. is re- Appeals is cause reversed in- problem, all facets of the understands appel- court for review of to that manded cluding a child who has been abused why remaining points of error. lant’s a certain manner which act in will CLINTON, incon- appear or BERCHELMANN unreasonable layman STURNS, JJ., concur in result. Brogden’s a claim abuse. sistent with ring procedure observed which provides that the facts or informa- Rule 703 17. testify given upon access to the witness bases and was tion opinion which an witnesses he or improper. includes that which police report videotape or inference As perceives or known ante, she is made pointed such a out Rule 703 envisions hearing. The rule foresees before the Indeed, or keep tes- procedure. in order presence the courtroom and does witness’ deciding embracing timony than rather from testimony simply because he did prohibit his witness, particular concerning a issue ultimate person at Ex- issue. not examine appear practice not to have a the better it would thereof, amination, go to the would lack personally non-diagnostic expert examine an al- admissibility. testimony, weight not its victim, leged lest his be- child abuse personal to the credi- reference tainted come agree, stated in the for the reasons We also claims. bility victim’s incorrectly Appeals opinion, the Court theory infer- the alternate its decision on based TEAGUE, Judge, dissenting. psychiatrist psychologist. not a Never- theless, though worker, even a mere social agree I holding by with the the Second Brogden professed being knowledgeable Appeals, Court of see its cause of Duckett enough “expert” topic to be an in a 2-86-217-CR, opin- numbered among controversy not without health 17, 1988, ion in February that cause dated Note, care professionals. See “The Unreli- expert testimony given that was ability Expert Typical on the Testimony equivalent this cause is the of a witness Victims,” Characteristics of Sexual Abuse passing judgment on the truthfulness of Georgetown 74 The Journal Law complaining witness. Because the ma- (1985).2 jority opinion inis conflict this hold- The facts this cause show that there ing, respectfully I dissent. independent eye were no witnesses to the Hopkins, (Tex.Cr.App. 480 S.W.2d 212 allegedly sexual abuse inflicted 1972), Hopkins, henceforth this Court stat complainant by A appellant. Dr. Robert ed following: principle “Our fear is complainant Casanova testified that of psychiatric testimony admission physical signs no showed of sexual abuse. will often cause trial to become not Thus, Brogden’s testimony was crucial to defendant, a trial of the also fully the State’s case. I believe trial major of the witness.” I find that the Brogden’s understand harmfulness ity opinion aggravates that concern. testimony, excerpts of his should Hopkins, this Court allow refused to Brogden’s be highlighted. testimony was expert psychiatric testimony to be used in loosely into phases. divided three determining of a witness. phase, Brogden In the testified in first being There Hopkins, no conflict between general something terms about he labeled subsequently and enacted Tex.R.Crim. typically “elements” found child sexu- Evid., 702,1I depart Rule see no reason to al abuse cases. He six identified elements: from the rule Hop established laid down in (1) and opportunity: Access “Where the begin kins and down a road that will allow abilty has the defendant literal to be alone any disguised “snake oil salesman” as an child”; (2) engagement: with the Sexual “expert” peddle witness wares multiple sexual “Where events of a nature State, trial courts of this which what I occur”; (3) Conditioning aspects: “Where majority opinion believe the approves of literally offender conditions child to doing. However, see compare what I advances”; accept the sexual overtures and dissenting opinion stated in the I filed (4) Repression: “Forgetting becoming or (Tex. in Werner v. 711 S.W.2d 639 dilemma”; aggaravated (5) with their Dis- Cr.App.1986). gave Also see the I reasons accidently closure: “Where the or why joined majority I opinion Field adult”; to an purposely discloses abuse (Tex.Cr.App. er v. (6) Suppression-repression: “Where 1988). suppress tries to the child’s offender The statement, issue before us concerns the repression being psychological testimo- ny Brogden, investigator against upsetting John information to defense employed by child, social worker the Texas De- where the events are often al- partment forgotten.” Brogden of Human Services. tered or technical, scientific, leading testimony, provides: 1. Rule If case on In one knowledge "expert specialized remarked other will assist the trier Ninth Circuit danger particularly of un deter- courts a substantial fact to understand evidence or to issue, special “aura of qualified prejudice" mine as an because of its a fact in fair skill, knowledge, training, expert by experience, reliability and See United trustworthiness.” Amaral, (9th education, may testify Cir. States v. 488 F.2d thereto the form 1973). opinion or otherwise. Yes, opinion majority accepts typically This A. Court’s assertion that testified to broad Syndrome.” How-

“Child Sexual Abuse ever, Brogden’s testimony does nowhere Q. try Okay, they sometimes do so-called attempt report he make reference to this report or to syndrome. majority through complaining physi- further abuse cal ailments do not in fact exist? the reader when it refers Dr. misleads describing he Roland Summit’s article what Yes, specially genitalia. A. tied to Accommo- characterizes as “Sexual Abuse There is the record that However, Syndrome.”3 dation first complaining reflects that the witness’ Syn- cause “Sexual Abuse Accommodation complaints vaginal itching were of and not by anyone in drome” was never mentioned reflects the sexual abuse. record also testimony. Upon inspection, the trial close following: large one can see that there difference (Prosecutor): Q. you And have seen Dr. between characteristics and Summit’s of that in this some manifestation Brogden’s testifying in elements. After case? “elements,” Brog- general terms to these phase. into the second den then continued phase, Brogden tied his In the second Yes, (Brogden): I seen that in A. by this cause “elements” to the facts of this case. through telling

going each element and he, signs surprisingly, not of each saw testimony.4 complainant’s element Q. and you Do find of access evidence opportunity this case? following The record reflects during the State’s case-in-chief occurred appellant’s objection:

and over A. Yes. Q. (Prosecutor): you Do find Q. please jury what you tell the Would present in this case? these elements in this case? you of that find evidence being

A. The offender alone at home with the child a time when Yes, (Brogden): every I find element A. away hospital; mother was in this present case. and alone in the bathroom child was came the bathroom. the offender into indirectly-re- Q. by counsel: “Your (Objection Do sometimes children defense Honor, object going to to this. were child abuse? port syndrome” is accommodation 3. Dr. Summit described in his article five char- analogue syndrome, child commonly abuse battered in child abuse acteristics observed diagnostic (3) physical Also (1) (2) entrap- abuse. see secrecy, helplessness, which is victims: accommodation, Testimony Myers, "Expert in Child Sexual Abuse (4) delayed, conflict- ment and ed, (1989); disclosure, Litigation, 67 (5) 68 Law Review Nebraska unconvincing and retrac- Summit, Accommoda- “The Child Abuse Sexual it that he Summit’s article makes clear tion. & Syndrome”, and 7 CHILD ABUSE NE- tion syndrome be used the accommodation intended (1983). GLECT 177 language" health care as a “common between professionals working chil- did not intend the accommoda- held that an dren. Summit Several decisions have diagnostic syn- syndrome particular child because as a device. describe tion Rather, avoiding is less abuse. drome does not detect sexual discussion abuse, e.g. People attempts likely jury. presence to confuse assumes Cal.Rptr. Cal.App.3d 658 People Gray, 231 explain v. Bowk- 187 a child's reaction it. Roscoe, (1988). (1986); Cal.App.3d er, People Cal.Rptr. Cal.App.3d (1985). Cal.Rptr. page post. "Child sexual abuse Also see He’s assuming these facts are true. major imprint traumatic behavior be- Is—and making making a statement ing things those that seem to bother — as to the they of whether things Other seem them. to both- true, are true or not we haven’t even confusing er them that are too had a chance rebut these whatsoev- repressed necessary. treatment is er.” type then continued of tes- The Court: I’ll overrule objection.) each timony running through of the ele- stating represent- ments was how each just example above is one where ed the evidence in this case. Brogden in effect testified to the truthful- complainant’s allegations. ness Q. (Prosecutor): you find Did some indi- engagement] cation of that [sexual I believe important keep that it is this case? significant mind two facts: (Brogden): A. Yes. (1) Brogden, “expert” the State’s wit- ness, rule”; exempt from “the

consequently, he was allowed lis- Q. what And that be? would complainant’s ten testimony, Specifically intriguing partic- A. in this who immediately testified he before case is you many ular what find with did. young typically children is what (2) examination, On appellant cross dry called where intercourse the of- able to elicit inconsistencies in the not, fact, attempting pen- fender complainant’s testimony, but re- what etration; basically try- offender identity mained consistent is the ing rubbing masturbate himself appellant and the location where upon the genitalia.... child’s alleged place. incident took majority opinion justified The has allow- example Another by of direct comment ing jury type to hear the above of “ex- Brogden on the com- truthfulness of the pert” testimony, proof not as substantive plainant is following excerpt shown the occured, that the offense to rehabilitate from the record. the impeached complainant. child I must Q. (Prosecutor): Now in the case of a record, possible ask: the Given what reha- young years child of four ... old and “expert” bilitative function could the above giving story who is the of what testimony serve? during have occured a sexual assault Testimony young of a child witness over the years course of two easily impeached and often consistent because of a identity on the ... of the occured, young give to offender and sex child’s tendencies inconsist- the acts that Myers, supra. ent they generally pretty are statements. See Based consistent appellant’s about that? the cross-examination of complainant, produced

the no un- inconsistencies, majority opinion usual the Young fairly “It is (Brogden): A. children time states: clear that most courts with lapses expert testimony years, post-in- approve describing to three do not two vestigations, typically laps- observed in have some behavioral characteristics sexu- Typically, ally es in re- they memories. abused children as substantive evi- However, press portions certain dence abuse.” it is common the sexual story anytime you the that that exactly knowledge abuse and the isn’t have a major young simple same as the child witness cross-examina- portions it was but same, major in story the tion will disclose some inconsistencies the testimony. leaves the de- portions being identity of the of- the child’s This the fender, crime, dubious decision of either not location fendant the putting examining difficulty children their the child witness or cross cross Nevertheless, witness, experience into examining thereby the child allow- words. type concluded that “this of evidence ing pull “expert” its out of the State proper jury inconsistency was not of benefit testify that each hat to case,” and that it was gave typical “distractfull[sic] supplied.) prejudicial.” (Emphasis opinion majority child. The concludes: court also stated that it was troubled having impeached effectively “The defense “expert” testimony the fact that the was witness, complainant’s credibility as a not introduced in order to rebut “miscon- allowed, state was if otherwise admissi- presumed ceptions about the behavior ble, information and solicit prove the victim but ... the circum- help jury under- match and details this case stances her why changed stand S— S— usually found in circumstances and details (Emphasis sup- appeared confused.” I find that the “ex- child abuse cases.” however, Brogden’s testimony, did plied.) testimony in the same pert” this cause has nothing help understand the effect; Brogden’s nothing did Rather, testimony. complainant’s its effect help understand the statements of twofold; (1), to that the com- assert really complainant, nor was it offered (2), truthfully its use plainant testified to do so. the act oc- as substantive evidence rehabilitating must meet cured. The facts phase Brogden’s The third impeachment method through each going consisted of the State wall, attacked at relative directness. inconsistency complainant’s testimo- another point, not be fortified at one something ny.5 I there is funda- find that McCormick, point. C. and distinct mentally strange saying since about (2nd. Evidence, on at 103 Ed. McCormick inconsistent, true. story is it must be 1972). the fol- The record this cause reflects Arkansas, Ark.App. In Hall v. lowing: (1985), S.W.2d 769 the Arkansas Su- (Prosecutor): Q. some Would testi- preme expert’s found that an Court between repression differences mony dynamics of child sexual tape and you on the what observed enough justify re- prejudicial abuse testify you what observed child] [the of the defendant’s conviction. versal ... [to] Hall, allegedly sexually the defendant (Brogden): A. Yes. baby-sit- young while three children abused Q. in court. ... to here training in ting psychologist A with them. major differences. dealing sexually abused children testi- Be those A. Yes. sexually typical reactions in abused fied find of those Q. Okay. you Do “expert” The testified that most children. you light of what ob- differences in family known to child abusers are usualftypical] for a served to be not to tell warns their victims the abuser victim? child sexual abuse happened to them. anyone had what No,_typical A. lack that children “expert” also testified Q. They typical? were happened. vocabulary to discuss what of the A. Yes. out that much pointed The court testimony was tailored fit “expert’s” The court particular case.

facts of that Eakman Q. Okay. you Do recall Mr. “expert’s” found that some also i.e., asking question of S— S— as help jury, to a testimony could be of though Gibbons, consistency based Pa.Super. even the defendant In Commonwealth 297, (1989), inconsistency. the court held it 556 A.2d 915 his case on testimony regarding in- admit error to tape whether or not on the she El Appeals interpreted said Paso Court sexually six ante, seven Rule [she see fn. abused] Garcia v. times? State, 712 249 (Tex.App.-El Paso Refused). P.D.R. There State A. Yes. introduced evidence the form of testimo- The record also the complain- reflects that ny of psychologist effect ant testified in court that the sexual abuse complaining telling witnesses were occured once. appeals truth. The court found that the Q. (Prosecutor): Is that consistent with the credibility determination of a witness repression you described earli- responsibility is the sole of fact trier er? credibility and that the on attacks are best Yes, A. (Brogden): it is. by rigorous made cross-examination. The gave interpretation court its of Criminal Rule 702 as follows: “We do not believe Q. Okay. you Do recall Mr. Eakman the purpose permit this behind rule is asking S— question S— the whether ‘expert’ opinion on who telling truth anything came out cf the defendant’s agree. who is I not.” penis? In a long opinions line of from various A. Yes. state, courts of appeals rule laid Q. Okay, you recall S— S— an- down in Hopkins, prohibiting testi- question, swered that did she not recall mony directly expresses or indirectly anything coming penis? out of his witness, on the aof A. Yes. See, consistently has been applied. for ex- ample, Dunnington v. Q. That’s inconsistent with what she 899 (Tex.App.-El Paso P.D.R. Re- ejaculation said tape? about fused), Dunnington, henceforth where A. Right. It is different than what she probative court held that the value of tape. said on the rebuttal of purported expert Q. Okay. you Do find the in- [above] the field of child sexual was out- abuse consistency typical repression? to be weighed potential prejudice its for Certainly. A. Typical repression, invading province jury. Also see yes. Tex.R.Crim.Evid., Rule Dunning- 403.6 In ton, the expert conditioning testified to the It is obvious to me that is sim- process subject to which offenders ply their testifying that all the inconsistencies in reasons story “spousal victims and deni- typical child’s aof child, al”. The stated: personally perceives as he such. explanations “All the aforementioned may perfectly may They be true. have Part appellant’s of was that defense he upon by been experts focused their sexually child; rather, did not abuse the research. Some effort have been appellant according to it was another rela- made quantify to ... these factors. Cer- tive, female, sexually a who abused the tainly they ‘spousal have titles such as Brogden child. typi- testified that “males conditioning process. denial’ and None cally represent percent” 95 to 98 this, however, of common- converts the child sexual effect offenders. This in is the place extraordinary. Expert tes- equivalent into the having testify of an expert that timony justified by expert’s theory is not defendant’s had a chance of 98% being prosecu- publish need to his work or the false. issues, relevant, provides: prejudice, Although 6. Rule fair or mis- 403 evi- confusion of the probative leading jury, dence be excluded if value is of undue its considerations substantially outweighed by danger delay.... of un- 926 preclude provided

tor’s need from mak- statistical abuse case which ing up justified own It is present its mind. when complainant’s evaluation of veraci fact-finding process it enhances the ty following impermissibly a recantation abrogating of it.” instead credibility province of trier fact invaded required and re “lie detector” fashion State, also v. 748 Thomas S.W.2d versal). 1988); (Tex.App.-Houston Burke [1st] State, (Tex.App.-Hous 642 S.W.2d 197 Ap- Tennessee Court Criminal State, 1982); ton Welch v. 677 peals thorough [14th] discussed the issue in a 1984); (Tex.App.-Eastland S.W.2d 562 and Schimpf, manner in State v. S.W.2d State, (Tex. Kirkpatrick v. (Tenn.Cr.App.1989), henceforth 1987). App.-Dallas There, allegedly Schimpf. defendant sexually year in three abused a five old In Farris separate incidents. The state offered the (Tex.Cr.App.1982), this court held that it Brietstein, a Dr. Abraham psychiatrist was reversible error allow a in the who claimed evalua- testify year incapable that a old six was tion treatment of chil- sexually-abused fantasizing about the sado-masochistic dren. Brietstein testified “Child Sexual defendants, acts the who were accused of words, Syndrome,” or, in “I Abuse abuse, committing allegedly child sexual using make some kind determination engaged in. This reasoned differentiating what I refer to as criteria” impermissibly child’s bol- “signs symptoms as certain and char- any rigorous stered because the lack of typical of who acteristics that are children impeachment cross-examination or sexually have been abused.” testimony. to undermine the tended child’s accurately From what was stated us in this cause has issue before Schimpf, I believe that one can infer highest courts of other been before the recognized there is no “Child Sexual Abuse states, presented is it but seldom Syndrome” ele- that contains consistent in this same context as occurred cause. Rather, syndrome is whatever ments. state, re- from with Differences state be, particular expert wants it to based evidentiary gard scope review upon elements he himself has created give it most difficult to requirements, make manufactured, plagarized or has from oth- intelligent tally.7 er’s works. expert testi states held that Some identified, Schimpf, Brietstein not six mony cannot be used to show that child is did, elements as but rather twelve accurately telling a child the truth or that The court stated: elements8 See, example, for v. More testified. State Dr. Brietstein’s “We think that land, 50 552 N.E.2d 894 Ohio St.3d had, in clearly confirmed that (Held, (1990), proper child] defendant’s [the to refuse fact, Our been abused. child com proffer he confirmed difficulty plainant susceptible suggestion guilt or jury deciding defendant’s members); family from Wheat v. influence psychologist Ct.1987) rather than for a (Del.Superior innocence A.2d 269 deciding how to treat victim. (Held, testimony in child sexual (2) (1) Consistency; are as follows: Oregon Supreme that if the These Court held 7. The Corroboration; Details; (5) (4) (3) Language; syndrome to rehabili- evidence of a state offered (6) Secrecy; Multiple credibility, syndrome Incidents: children the should be a child’s tate test, actually sexually likely to Frye Frye have been subjected States, see v. United more to the reportedly (D.C.Cir.1923), occured if the contact for the admis- abused F. occasion; Level; (8) (7) than one Trauma sibility Also see more novel scientific evidence. Tell; (9) (10) Suggestibility; Anger Milbradt, Show And Or. 756 P.2d State Motive; (12) (11) Expert’s Conclusion. (1988). testimony expert testimony. We find that Dr. The court Brietstein’s assistance of jury’s province by offering appears invaded the been offended that a wit- to have testimony credibility. expert which out can went ness who holds herself as an Credibility and, only guise of a witness is a matter take the stand under the jury jury “rehabilitation”, for the ... The had no testify credibility need as to the testimony. daily for his We complainant. submit of the The court stated the juries question of whether unlawful following: “To allow such is to activity They has occurred. rou- permit usurpation the unlawful of the cred- tinely return verdicts without the assist- ibility-finding jury. function of the This expert testimony. ance of Crouched in system jus- at the heart of our strikes was, scientific terms as it it could tice.” have confused and misled them ... Its Smith, Pennsylvania In fur- Court admission was error.” problem magnified ther noted that the Smith, In Commonwealth v. 389 Pa.Su- “ex- because the witness was called as an (1989),

per. A.2d hence- pert” witness for the state. The Court Smith, forth that court held that an attor- “expert” emphasized that an will have ney’s representation was ineffective be- much more influence on and its object cause he failed to members who had little or no contact therapist seven-year-old alleged that a vic- children, sexually which I be- was, tim opin- of child sexual abuse in the usually lieve case. therapist, ion telling of the the truth. The Black, (Me. State 537 A.2d 1154 testified, facts therapist reflect 1988), abuse, involving a case the sexual objection, without in her child, a state’s witness described child victim was believable because the frequently certain factors encountered case contained characteristics that she had sexually abused children. The then commonly concluded were in sex- observed present testified she saw these factors ually Basically, abused children. the thera- victim, alleged which was obvious that, pist according testified to her “charac- ly prove attempt that the child had teristics,” story the child’s was believable. object been abused. The defense therapist explicitly compared also ground that ed to the on the general behavioral characteristics of sexu- acceptance evidence of there had been ally specific abused children to the behav- community on the issue.9 scientific complainant. ioral characteristics of the held that in the absence of The court found that the testified to showing reliability, the evi of scientific truth, telling the child’s character improperly dence was admitted. It stated: by doing “usurped and held that so he ‘indicators,’ described in terms of “Whether credibility determining function of ‘syndromes,’ ‘patterns,’ or ‘clinical fea jury” infringement upon and that objective is to tures’ the of such evidence “jury’s sacred domain” harmed the defen- present establish on the basis of conduct linchpin dant because the victim was the past subject that in the someone has been the state’s case. The court further stated: specific conclude that ed to a trauma. We exception “We find it unwise to create an present fails to demonstrate the record credibility-determining function of (p. reliability of such evidence.” scientific alleged case in 1157). court also held child/victim testifies.” The present time there are taking I find that at jury, into consideration witness, many “syndromes” and no consensus youth make the deter- too of the can community health as to what veracity the mental mination as to the witness, actually mean or are meant to mean. they without 7, ante. 9. See fn.

928 listing many For types “syn- “expert” testimony a dant now offer that dromes,” State, see 711 generally syndrome Werner v. is no accepted there 639, (Tex.Cr.App.1986)(Teague, J., dis- community the mental health and that the senting opinion).10 “expert” being State’s witness is untruth ful if he testifies there is? Is the defen In reference to the “child sexual abuse” “expert” entitled call his to dant to witness syndrome, commonly some of the observed testify suggestiveness of to the children allegedly reactions children who were testify authority fig and their to as desire sexually regression, anxiety, abused are alleged tell them ures to? Must disturbance, out, sleep acting depression, “expert” victim to to the be forced listen just nightmares, name few. How- so, witnesses? If kind of what adverse ever, these behaviors are also associated dueling effect will these witnesses range psychological prob- with a wide Moreover, on the child? have nothing lems that have to do with sexual in “pedophile” defendant case offer now “The abuse. fact that a child suffers “expert” testimony he or she that does nightmares, regression, depression exhibit certain characteristics common to says A myriad little about sexual abuse. Ruiz, pedophiles? People See v. Cal. of other circumstances cause such behav- (1990) Myers, supra. App.3d Cal.Rptr. iors.” (Held, a im child sex-abuse defendant was above, From the I have concluded that properly putting from barred any gained by admitting benefit to ex- be testify the stand that defendant did speculative pert testimony psychi- on such typical pattern pedophile). fit Syn- atric theories as “Child Sexual Abuse “expert” permitted Should now be substantially outweighed by the drome” is testify punishment phase at that prejudicial jury. it will on a effect worthy probation? defendant Cf. point I must closing, Before out that the (Tex. Gonzales 756 S.W.2d implications majority’s P.D.R.). App.-El no Paso reaching many interesting far and raise type “expert” If the questions, following: such as the Is it now opinion holds majority in this cause is ad- “expert” permissible for an witness to tes- missible, surely “expert” then witness, tify typical that it is for a behavior any offered defendant as the unrelia- defendant, truth, or to tell the victim eyewitness bility is now ad- change story totally then their recant? Cf. missible. Welch “expert” Can the State now offer testimo- (Tex.App.Eastland P.D.R. Re- ny typical key that it is for a state’s wit- fused,) (Held, psychologist's exclusion of organized ness in an crime trial to often unreliability eye- to the change story? Will de- recant and his error). Thus, testimony not after permitted put now “ex- fendant majority opinion, it follow today’s should pert” testify on the stand to that the child “expert” testimony that relates not, according that to his complainant does of a defendant’s in-court “test,” suggestiveness typically show elements found is now admissible May children? defen- out-of-court identification Saldana, underlying only question nature 10. State v. 324 N.W.2d (Minn.1982), stated, act. in reference to that court syndrome,” symp- “rape "these trauma hand, abuse, on the other can be "Sexual toms at be reliable indicators least years or can with- traumatic attack continue psychologically traumatic event has oc- some symptoms all. as de- use of force at out curred, although they necessarily do not indi- reliably courts do not indicate scribed anything rape.” The Court held cate that event was than some unfocused behavioral more rape rape problems. trauma cases is often used trauma that evidence in Unlike or emotional syndrome, symptoms com- reli- to rebut the defendant’s claim abuse do not sexual event, precisely plainant ably point there will be one let alone consented. In these cases ante, occurred, p. Myers, identify dispute that event." no intercourse evidence. Cf. Pierce v. (Tex.Cr.App.1989) (Held, no error

refusing regard- to admit

ing suggestiveness lineup). of defendant’s

I believe rational individual can

conclude from majority opinion what

states, notwithstanding faults, all of its good actually unemployed news for those

“experts” in this State who have been look-

ing employment either as State’s or

defendants’ witnesses. reasons,

For the I respectfully above dis-

sent. parte Harvey

Ex Carrie FORTUNE.

No. 71022. Texas, Appeals

Court of Criminal

En Banc. 24, 1990.

Oct.

Case Details

Case Name: Duckett v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 10, 1990

Citation: 797 S.W.2d 906

Docket Number: 330-88

Court Abbreviation: Tex. Crim. App.