Lead Opinion
This appeal arises from a decision on the habeas corpus petition of Bruce McCafferty (McCafferty) challenging the constitutionality of his conviction for a sexual contact offense. This court affirmed that conviction on direct appeal. State v. McCafferty,
The facts of this case are stated in McCafferty I. He was convicted on the charge that he knowingly engaged in sexual contact with another person under fifteen years of age, in violation of SDCL 22-22-7.
McCafferty initiated this habeas corpus action against Herman Solem (State), Warden of the South Dakota State Penitentiary. The habeas court granted McCafferty’s petition for writ of habeas corpus on the grounds that his conviction was based on the erroneously admitted testimony of two expert witnesses who offered expert testimony on the believability or credibility of the victim. However, the habeas court denied McCafferty’s petition to the extent that his convictions were based on the allegedly erroneous admission at the trial of evidence of his prior felony convictions and the trial court’s refusal to appoint a psychiatrist or psychologist to examine the victim.
State appeals only that part of the judgment relating to the admissibility of the experts’ testimony on the believability of the victim, stating the issue: whether it is error for an expert witness to give an opinion regarding the believability of a child sexual abuse victim “unavailable” at trial. McCafferty notices for review that part of the judgment relating to the admission of his prior convictions and the trial court’s refusal to appoint a psychiatrist to examine the victim.
The remedy of post-conviction habe-as corpus is restricted by the provisions of SDCL 21-27-16 and the prior decisions of this court. The statutory provisions were fairly well summarized in our decision, State v. Erickson,
We first address the issue raised by State on the admissibility of the experts’ testimony in the form of an opinion as to the believability of a victim of child sexual abuse. This specific issue has not been previously addressed by this court.
In this case, the testimony of the witnesses presently under attack was:
Pam Haugland, a preschool teacher, who testified as follows:
Q Would you say you had established some rapport with [S.F.]?
A Yes, very much.
Q Has she on other occasions opened up to you?
A Oh, yes.
Q Did you feel that you could rely on what she told you or believe what she told you?
A Definitely.
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Q Did you ask her anything else, Mrs. Haugland, or pursue this any further?
A Oh, we talked a lot and talked about different, that kind of thing, and the touching and feeling game. And I just at this point felt I better find out if there’d been any penetration, or anything of this nature. And I asked her if Daddy ever put anything in her. And she was very honest, “No. Just kleenex.”3 And I truly don’t know what [S.F.] meant about that. Then she stopped talking pretty much about that. Very honest.
Dr. Curran, a clinical psychologist, testified as follows:
Q Have you ever had any trouble with [S.F.] in the past telling you things that were not true?
A No, I can’t say that I have.
Q You think you can tell when kids are trying to pull the wool over your eyes?
A Not always. I think kids are pretty good. One area, you know, based on the psychological research, is that in areas of child sexual abuse, it would be less than one percent of the population lie about that. And it would take a pretty sophisticated cognitive system to create that. And I don’t think [S.F.] has that kind of system functioning yet that she could create that.
Because of the special circumstances in child sexual abuse cases, several evidentia-ry rules have developed. Testimony relating to the child’s statements concerning sexual contact are admissible if the court finds sufficient indicia of reliability. Matter of C.L.,
The general rule, however, is that one witness may not testify as to another witness’ credibility or truth-telling capacity because such testimony would invade the exclusive province of the jury to determine the credibility of a witness. Of recent years, the impact of allowing this type of testimony in child sexual abuse cases has been considered, coupled with the general rule. “[Ejxpert testimony particularly courts the danger of undue prejudice or of confusing the issues or misleading the jury because of its aura of special reliability and trustworthiness.” State v. Logue,
These cases were not, however, bright-line tests. They emerged slowly and haltingly out of the problems surrounding the prosecution of child sexual abuse cases. Over the past decade, courts have struggled with how far to allow experts to go in explaining whether children generally lie about sexual abuse, while attempting to protect the rights of the defendant. See Hutton, Child Sexual Abuse Cases: Reestablishing the Balance Within the Adversary System, 20 Univ. of Mieh.J.L.Ref. 491, 498-501 (1987). At the time of McCafferty’s trial, courts were permitting experts to express their opinions as to the believability of children because these cases were recognized as being “different.” State v. Kim,
In McCafferty I, we recognized that cases involving very young sexual abuse victims are special cases for confrontation clause purposes and that the legislature had adopted a “tender years” exception to the hearsay rule for just such cases. Indeed, we seem to have stated empirically that “a young child is unlikely to fabricate a graphic account of sexual activity because such activity is beyond the realm of his or her experience.”
Following the lead of the United States Supreme Court in Linkletter v. Walker,
In State v. One 1966 Pontiac Auto,
Applying those criteria to the facts at hand, we believe it is ill-advised to retrospectively apply 1985-plus cases on expert testimony to a trial that occurred in 1983.
First, as was noted earlier, the purpose of cases such as Azure, supra, was to clarify how far an expert could comment on a child witness’ truthfulness. These are not cases where courts are attempting to deter prosecutorial overreaching. Rather, they are attempts to refine due process rights, while at the same time deal with the difficulties involved with inarticulate and often terrified victims of child sexual abuse. We cannot say that any legitimate purpose would be served by imposing this refinement of an evidentiary rule retrospectively.
Second, the trial judge had precedent to rely on saying that Haugland’s and Curran’s testimony was admissible. Kim, supra; Myers, supra. Our guidance in McCafferty I seemed to say that children could not fabricate a graphic account of sexual abuse. To claim now that a trial judge sitting in 1983 should have seen this shift in the law is ridiculous. This trial judge, and many others, relied on valid precedent to admit this type of expert testimony. We believe it would be folly to retrospectively overturn those rulings.
We next examine McCafferty’s issues on notice of review: whether he was deprived of a fair trial and due process when the trial court denied his motion for the appointment of a psychiatrist to aid in his defense and when the trial court admitted evidence of a prior felony conviction. Both of these issues were raised on direct appeal, although without the constitutional trappings.
‘This court will not permit an accused to appeal his judgment of conviction and speculate upon his chances of securing a reversal and then, after the judgment of conviction is affirmed, come into court in a habeas corpus proceeding and raise the same issue on other grounds which might entitle the petitioner to a new trial or his release from custody.’
State v. Jameson,
With regard to the first issue, failure to appoint a psychiatrist, we considered that issue under our prior decision in State v. Wounded Head,
Likewise, we find Little v. Armontrout,
Ake and Caldwell4 taken together hold that a defendant must show more than a mere possibility of assistance from an expert. Rather the defendant must show a reasonable probability that an expert would aid in his defense and that denial of expert assistance would result in an unfair trial.
In McCafferty I, we determined that “McCafferty has not made a substantial showing of need and justification nor asserted that [victim] has mental or moral
We think that the rule established by our decisions adequately fulfills the due process requirements as set out in Little, supra, and we affirm the habeas court on the decision on that issue.
Finally, with regard to the second issue on notice of review, the admission of testimony regarding McCafferty’s prior felony record, we again note that we considered that issue in McCafferty I. In this appeal, McCafferty concedes that the due process guarantee of fundamental fairness is not violated by admission of evidence of a defendant’s prior convictions unless the potential for prejudice outweighs its probative value, citing us to Spencer v. Texas,
In McCafferty I, we determined that, because defense counsel had failed to renew his suppression motions at the proper times, the trial court had failed to make a ruling on the record on the motion to suppress and we remanded that issue to the trial court for further proceedings. The trial court’s findings of fact and conclusions of law evidencing the weighing process in favor of admission of the evidence resulted in the second judgment that was summarily affirmed.
McCafferty’s sole argument on this appeal is that the admission of evidence reflecting unfavorably on McCafferty’s credibility was too unfairly prejudicial because of the admission of the expert testimony supporting the victim’s credibility. As in the discussion of the first issue, on the admissibility of the expert testimony, we must view the issue in the context of the law as it existed at the time of the trial. Our rule on admissibility is at least as stringent as the federal requirements for due process. From this prospective, we cannot say that the trial court was in error in admitting the prior felony evidence for the purpose of impeachment. We affirm the habeas court on that issue.
We affirm the habeas court on the notice of review issues and reverse on the issue of admissibility of testimony and remand with instructions to quash the writ of habeas corpus.
Notes
. Subsequent to McCafferty's conviction, SDCL 22-22-7 was amended by the 1984 Legislature to read: "Any person ... who knowingly engages in sexual contact with another person ... under the age of sixteen years is guilty of a Class 4 felony.” (Amendment underlined.)
. Both notice of review issues were raised and affirmed on direct appeal in McCafferty I,
. In a statement to police, McCafferty had admitted that "he may have inserted [his] finger into her vagina[.]” McCafferty I,
. Caldwell v. Mississippi,
Dissenting Opinion
(dissenting).
We have before us a basic question, not novel to appellate courts of this land, regarding the subject “Behavioral Science Testimony”. Basically, we are confronted with this question: Should this state permit, in its courtrooms, behavioral science testimony that a particular child told the
I respectfully dissent to the decision written by Morgan, J., for the reason that it deprives a defendant, accused of sexual abuse, of a fair jury trial. Therefore, I would affirm the decision of Judge Hertz, the trial judge in this criminal action. Admitting the testimony of Dr. Curran, the clinical psychologist (also a nun) and Mrs. Haugland, a teacher, deprived McCafferty of not only a fair trial but also due process. Fundamental fairness was violated here by evidentiary error. If such a violation is “material in the sense of a crucial, critical, highly significant factor”, then a constitutional transgression has been established. Collins v. Francis,
On September 13, 1989, this Court filed its opinion in State of South Dakota v. Bachman,
I voted for Logue; I believed in its language and its spirit. I now see its holding shattered.
In Bastow v. General Motors Corp.,
Credibility ... is for the jury — the jury is the lie detector in the courtroom.... It is now suggested that psychiatrists and psychologists have more [expertise in weighing the veracity of a witness] than either judges or juries, and that their opinions can be of value in determining [credibility]. Perhaps. The effect of receiving such testimony, however, may*597 cause juries to surrender their own common sense in weighing testimony; second, it may produce a trial within a trial on what is a collateral but still an important matter.
This was also the message in United States v. Azure,
It appears to me that there is a diversity of appellate opinion of expert testimony on child sexual abuse. However, courts nearly approach unanimity when they are called upon to approve of expert testimony on credibility. Most of the courts, in fact a great majority thereof, reject the testimony of these behavioral science experts when they testify directly on the credibility of individual children. These are some of my authorities: People v. Ross,
Furthermore, the courts have refused to permit these behavioral science experts to offer opinions on credibility of sexually abused children as a class. Reinhardt, supra; People v. Matlock,
As my authorities above indicate, I am in accord with Justice Sabers’ recitation of what constitutes “the clear weight of authority” to say the least, and to his specific citation on the treatise written by McCord as found in 77 J.Crim.L. & Criminology 1, 43 (1986).
Inceptually, I addressed the fundamental fairness issue. Though I did not cite it before, this Court has previously announced a rule on fundamental fairness which bears mentioning instanter. It is found in State v. Webb,
Therefore, I would stand by South Dakota precedent, namely Logue, and with the near unanimity of the courts in this land thereby uphold Judge Hertz and reject the rationale of the majority opinion.
Dissenting Opinion
(dissenting).
I would affirm the habeas court because the offensive testimony went to McCafferty’s guilt or innocence. The habeas court determined and stated:
[S.F.] indicated in out-of-court statements to Haugland and Curran that McCafferty had sexually abused her. [S.F.] was unavailable as a witness; consequently, any decision by the jury as to her credibility would have necessarily been based on statements of other wit*599 nesses. Specifically, Haugland and Cur-ran testified directly as to [S.F.] ’s truthfulness. Typically, the truthfulness of the victim or the accused bears heavily upon, and is intertwined with the guilt or innocence of the defendant. State v. Myers, 382 N.W.2d ... [91,94 (Iowa 1986)]. The statements that [S.F.] was honest and believable, of course, indicated that McCafferty was lying about the alleged sexual abuse and therefore was guilty. [S.F.j’s credibility was an important issue in this case. There can be no doubt that the believability of [S.F.] ’s story was bolstered by the testimony of Dr. Curran and Haugland. As aforementioned, [S.F.] did not testify at the trial. Other than some clinical findings and somé statements made by Petitioner, her testimony came to the jury in the form of hearsay statements from Dr. Curran and Mrs. Haugland. In United States v. Azure, ... [801 F.2d 336 (8th Cir.1986) ], the alleged victim testified at trial and in front of the jury, and this testimony was then declared to be honest and truthful via the expert testimony of Dr. ten Bensel. Here, in this case, the jury never did have an opportunity to judge [S.F.j’s credibility. The jury had nothing to rely on other than the testimony of Dr. Curran and Mrs. Haugland. The trial court gave the pattern jury instruction on expert witness’ testimony, presumably because of the testimony given by Dr. Curran. Additionally, it is noted that when Dr. Curran first took the stand, the prosecutor elicited the fact that not only was she a well qualified clinical psychologist, but also that she was a sister in the Sacred Heart Convent in Yankton, South Dakota. Thus, with this background established, any testimony relating to [S.F.j’s credibility would be greatly enhanced in the eyes of the jury. Since the guilt or innocence of McCafferty inherently turned on the question of [S.F.j’s credibility, it cannot be said that beyond a reasonable doubt the jury would have convicted even in the absence of the error.
This court finds that the error in admission of the testimony of [S.F.j’s truthfulness was not harmless error. Rather, the admission of this evidence constituted a due process violation as the error was of such magnitude as to deny the Petitioner fundamental fairness at his criminal trial.
The habeas court was clearly correct in concluding that “the testimony did go to McCafferty’s guilt or innocence.”
The fatal defect in the majority opinion is its conclusion that the cases relied upon by the habeas court constitute a retrospective “refinement of an evidentiary rule.”
In contrast, numerous courts considering child sexual abuse cases prior to McCafferty’s trial found such testimony to be inadmissible. E.g., Commonwealth v. Carter,
The clear weight of authority has always been against admission of “an expert’s opinion that a child sexual abuse complainant is telling the truth.” McCord, Expert Psychological Testimony about Child Complainants in Sexual Abuse Prosecutions: A Foray into the Admissibility of Novel Psychological Evidence, 77 J.Crim.L. & Criminology 1, 43 (1986). As a result, McCafferty’s claim does not require the trial judge to have foreseen a shift in the law, since there has been no shift. McCafferty merely seeks the application of the correct law to his case. Indeed, it was not until recently that the state strained against the rule to urge admissibility. In its brief, the State does not argue that in 1983 courts were admitting expert testimony regarding a witness’ veracity, but instead attempts to argue that courts are beginning to admit such testimony. Thus, even the State recognizes that in August of 1983 the testimony of Haugland and Cur-ran was generally inadmissible.
The final irony is that the majority mistakenly reverses the habeas court by applying incorrect law retrospectively.
The majority opinion is also defective in concluding that overturning McCafferty's conviction "would have disastrous effects on the criminal justice system.” This argument is pure conjecture on the part of the majority as there is no evidence of any other person whose trial included expert testimony about the truthfulness of the victim. In fact, since such testimony has always been inadmissible it is unlikely that there is another person.