OPINION OF THE COURT
At issue here is whether, as part of her examination of an expert "validator” in a child abuse proceeding, an Assistant Corporation Counsel may ask the expert’s opinion on whether or not he believes the child/complainant told the truth in relating her allegations of sexual abuse.
Sondra has resided with her aunt virtually all of her troubled life. During her first 14 years, she was a psychiatric inpatient at Manhattan Children’s Psychiatric Center (MCPC), Metropolitan Hospital, New York Hospital/Payne-Whitney Clinic, Bellevue Hospital, Mt. Sinai Hospital and Columbia Presbyterian Hospital. She was diagnosed as being psychotic on several occasions.
Among the allegations in the petition are a charge against her uncle for sexually molesting her and against her aunt for failing to protect her from sexual molestation by her uncle, her cousin, and a psychiatrist at MCPC. The petitioner’s first witness was the child’s therapist at MCPC, Dr. Jonathan Kurfirst. Dr. Kurfirst, a Ph. D. in psychology and a New York State licensed psychologist, has considerable experience in the treatment of adolescents and was qualified as an expert witness. During his extensive testimony, Dr. Kurfirst testified as to the child’s statements to him (Family Ct Act § 1046 [a] [vi]), his diagnosis and treatment of the child, various symptoms and behavioral patterns of sexually abused children and the effect of her borderline personality disorder on the child’s ability to tell the truth at certain specific times.
The Corporation Counsel asked Dr. Kurfirst whether, in his opinion, the child was telling the truth when she told him of the incidents of sexual abuse. Both respondents objected to the question and the objection was sustained.
EXPERT TESTIMONY — GENERALLY
Under varying circumstances, opinion testimony can be elicited from both "expert” and "lay” witnesses. (See generally, Shaw, Canudo on Evidence Laws of New York, at 192-206B [Gould Pubs 1988].) Lay witnesses have been permitted to give expert opinions on areas of general knowledge such as the emotional state of people being observed (Pearce v Stace,
An expert is a person with sufficient background, experience
EXPERT TESTIMONY — PSYCHOLOGICAL
It is beyond cavil that expert psychiatric and psychological testimony is admissible in cases dealing with the sexual abuse of children. (Matter of Nicole V., 71 NY2d 112; People v Keindl,
The American Psychiatric Association publishes the Diagnostic and Statistical Manual of Mental Disorders (3d ed rev), commonly known as "DSM-III-R”. That volume, which is generally accepted in the medical and psychological communities, sets forth the diagnostic criteria for mental illnesses. The strongest psychological opinion evidence would, therefore, be a diagnosis made by a psychiatrist or licensed psychologist of an illness defined in DSM-III-R. Indeed, it would seem that that diagnosis could appropriately be made by a psychiatrist or psychologist who had never before seen the particular ailment. (Matter of Lou R.,
Unfortunately, we live in an imperfect world and frequently less than perfect expert testimony is elicited. When properly qualified, school psychologists, psychologists who have not yet met the rigorous State licensing requirements, and social workers, after each has demonstrated the requisite background, have been permitted to opine in the psychiatric and psychological area. In addition, opinions given often do not reach the certainty of a full DSM-III-R diagnosis.
The term "validation testimony” is misleading. What it is generally considered to refer to is expert psychiatric or psychological testimony of a mental illness or unusual behavioral manifestation which would lead an expert to believe that a child has suffered sexual abuse. As with all expert testimony, it must be assigned appropriate weight by the trier of the facts and considered in making a final determination.
The area of validation testimony is complicated by the fact that child abuse is rarely done in front of witnesses and frequently leaves no physical evidence. Many of the victims of child abuse are by definition of an age where they either cannot give sworn testimony or cannot accurately recall and report incidents that happened sometime before. Accordingly, the Legislature enacted Family Court Act § 1046 (a) (vi). That section permits a court to receive the child’s hearsay statements. It further mandates, however, that a finding cannot be made absent corroboration.
Family Court Act § 1046 (a) (vi) provides that the child’s statements can be corroborated by evidence "tending to support the reliability” of such hearsay. The so-called "validation” testimony is merely corroboration evidence.
Unfortunately, some lawyers have ascribed a mystical quality to the term "validation testimony.” They are not correct. Validation testimony is medical, psychological and/or behavioral evidence. It is required to meet the same tests for admissibility as any other expert testimony. For example, if a child told a police officer or a protective caseworker that his father slashed him on the shoulder with a razor, the court could receive as corroboration testimony a statement from a physician that she or he treated a slash wound on the child’s shoulder and that the wound was consistent with a razor cut.
Similarly, if a child tells a police officer or a protective caseworker that she was sexually abused by her father, a court can receive a diagnosis of posttraumatic stress disorder, a recognized DSM-III-R diagnosis which is consistent with sexual abuse. A proper diagnosis of mental illness is equal to a proper diagnosis of physical illness or injury.
Less conclusive medical or scientific evidence would be admissible in either case. In the first example, the court would accept evidence of scarring, residual pain, restricted arm movement and other similar, but less conclusive, evidence of a slash wound. Similar, less than perfect evidence has been
The "validation” testimony of physicians (Matter of Rose B., supra; Matter of Michael G., supra), school psychologists (Matter of Linda K.,
Here, the Commissioner asks to go beyond those areas and elicit a psychologist’s opinion as to whether the psychologist believed the child’s account of certain events. No additional attempt was made to qualify Dr. Kurfirst as an expert in credibility beyond his qualification as an expert psychologist and an expert in treating mentally ill adolescents.
EXPERT TESTIMONY — CREDIBILITY
In New York State the general rule is that all questions of credibility are left to the finder of the facts. (People v Ciaccio,
The United States Court of Appeals for the Ninth Circuit was faced with the same problem in United States v Barnard (490 F2d 907) and it answered the question (at 912-913) as follows: "It is now suggested that psychiatrists and psychologists have more of this expertise than either judges or juries, and that their opinions can be of value to both judges and juries in determining the veracity of witnesses. Perhaps. The effect of receiving such testimony, however, may be two-fold:
A psychologist may, however, give testimony about a party’s ability to recall, report or tell the truth, short of an opinion on whether or not she or he believes the witness. (People v Reid,
There is no basis, at this time, to conclude that a psychologist is significantly more able to determine whether one is telling the truth than a layperson. Consequently, where, as here, the witness in question testified to the court, the determination of her credibility should properly be left with the court as finder of the fact.
Assuming the child had not testified, and that possibility existed in this case at the time the question was asked of Dr. Kurfirst, my holding would be the same. The ultimate issue of credibility remains for the finder of the facts. However, the person recounting the child’s testimony, be it an expert or lay witness, may testify as to the child’s affect and behavior while telling the story. That person, under appropriate circumstances, could testify, for example, whether the child was fidgeting or still, whether the child spoke in a monotone or with emotion, whether the child had a twitch or blush or generally whether the child acted differently from the way the child normally acts. The ultimate burden, however, would still remain with the finder of the fact to assess credibility.
Courts in other jurisdictions have held similarly that opinions as to the credibility of witnesses are not admissible. (United States v Azure, 801 F2d 336 [8th Cir 1986]; State v Brotherton,
DECISION
Accordingly, the objection is sustained and the witness may not answer as to whether or not he believes the child was telling the truth.