Newkirk v. Commonwealth

NEWKIRK, Eugene Wendell

Jr., Appellant, Kentucky,

COMMONWEALTH of

Appellee.

No. 95-SC-172-MR. Kentucky.

Supreme Court of

Aug.

Rehearing Denied Feb. Eblen, Louisville, appellant.

Ann T. for Chandler, III, General, Attorney A.B. Mi- Grandon, Hamed, chael L. Lana Assistant General, Attorneys Appellate Divi- Criminal sion, General, Attorney Frank- Office fort, appellee. for Losavio, Gall-Clayton, Nancy M. Michael curiae, Louisville, Associ- for amicus National ation of Counsel Children. LAMBERT, Justice. line of decisions rendered an unbroken decade, throughout the last

from time to time expressed its dis- repeatedly this Court has purported to trust on a criminal conduct based determine 691 Prior general cantation in child sex abuse cases. syndrome.1 psychological eeived diagnostic trial court admonished been lack of our reasons have for “the limited acceptance jury that the evidence was reliability, general the lack of dy- purpose explaining psychological discipline which such testi- within the following emanates, overwhelmingly surrounding a and namics mony This evidence testimony effectively of sexual abuse. of such an accusation suasive nature proving purpose decision-making process, is not offered for dominating the sexually jury. was or was not uniquely child] function In the whether [the of the Thereafter, Dr. testified must abused.” Sullivan instant case we determine whether the and not seen the child had properly that while he had trial court allowed rebuttal testimo- Sullivan, she had been psychiatrist, by no as to whether from Dr. John a sexually abused, a common recantation was explained terms victim which he sexually among children. of sexual abused recantation of accusations abuse occurrence family He stated various reasons therefor leveled at members.2 blame, threats, imposition fear of included rape Appellant was of the and convicted home, system. legal fear of loss of and ten-year-old sodomy of his niece and sen- of Dr. The undeniable effect Sullivan’s twenty years tenced to concurrent terms of any or eliminate doubt was to diminish imprisonment. it appears From the evidence might have raised the recantation otherwise baby-sitting that niece while for his and jurors. in the of the minds brother, eleven-year-old appellant committed charged. parents’ the crimes On the return before, pre As stated this Court home, distress was child victim’s is viously various facets of this confronted a discovered and she was taken for medical Bussey the convictionin sue. We reversed examination which recent sexual in- revealed (1985), Ky., 697 S.W.2d tercourse. Ac grounds that the Child Abuse Sexual (CSAAS) Syndrome was not commodation appellant The child victim named as the community, generally accepted in the charges medical perpetrator and criminal were However, that to connect brought. unable in an interview with an appellant symptoms with the Attorney the victim’s Assistant Commonwealth’s two later, person. other Id. at 141. days rather than some the child recanted accusation accepted that if one appellant that The Court indicated even denied had committed the syndrome, Nevertheless, validity its existence against her. crimes trial help appellant’s rape would not identification she testified to acts of cross-examination, perpetrator. sodomy Id. and on admitted had told she the Assistant Common- Lantrip v. next confronted CSAAS in We Attorney had wealth’s that the acts not oc- Commonwealth, (1986), Ky., 713 S.W.2d curred. held which admission alia, reason, inter appellant’s objection prejudicial after for the

Over an ex- be question remain hearing, the court would tensive determined “there who had not been permitted to whether other children psychiatrist that a should be similarly develop also the same testify concerning “phenomenon” of re- abused reliability recognized diagnosing child sex- 1. In Hellstrom entity. S.W.2d 612 said: ual abuse as scientific Dictionary Heritage Id. The American defines signs symp- “syndrome” group as "a collectively regard- or characterize universally toms that indicate or recantation is Retraction disorder, disease, psychological ab- other ed as the behaviors associated with one of expert] condition." listed the [The normal symptoms Lantrip syndrome. sexual abuse accommodation classifying them but refrained from Commonwealth, Ky., S.W.2d syndrome.” directly as the “child abuse Note, (1986); McCarthy, Admissibili- M. Michele Avoiding "syndrome” the term does not trans- Testimony ty Expert Sexual Abuse Child hearsay into reliable scien- form inadmissible Ky. Kentucky, Syndrome Accommodation syndrome evidence. Neither the nor the tific symptoms L.J. syndrome comprise symptoms Id. at princi- or traits.” 817. The accusation was made and recanted and in pal point in Lantrip diagnos- permitted was the lack of each case the give reliability tic positive of a finding psychological disregard- basis for because children had not ing the recantation. abused well exhibit similar traits. Id. Commonwealth, Our v. decision in Mitchell Bussey Our in Lantrip broadly decisions (1989), Ky., 777 S.W.2d 930 relied on the

rejected testimony. admission CSAAS hereinabove, authority empha cited but also sized that In children who have not been Ky., Hester v. sexual ly (1987), symp abused often exhibit one or more S.W.2d 457 we encountered facts and such, toms of the Id. at 932. quite are CSAAS. As circumstances which similar to symptoms probative the prevail those were deemed to lack appellant which here. The was value of abusing the existence sexual abuse and accused of his step-daugh- guilt be irrelevant or ters. Id. as to the innocence of The children informed their teach- particular person. er at 932-33. In investigation and an was Id. Hellst undertaken. Id. Commonwealth, Ky., rom v. During 825 S.W.2d 612 investigation, videotaped state- (1992), “delayed disclosure,” ment we focused on was taken in which the children de- which, recantation, regarded like sodomy tailed as one of incidents of and sexual abuse. CSAAS, trial, however, Id. elements of and held At admission flatly the children of such evidence to error. Id. at denied the be 613-14. occurrence the acts and stated “[njeither they syn The Court noted up story that had that hopes made in having symptoms comprise drome nor the that appellant removed from the home so syndrome recognized reliability diag have in they that could see their natural father. Id. nosing child sexual as a scientific enti appellant’s objection, Over abuse a social worker ty.” quoted permitted testify approval Id. at 614. was that We when children Rimmasch, (Utah from given specific matters, State P.2d 388 details of sexual 1989), “Psychologists generally, psychi as follows: the acts have occurred. Id. at experts atrists ... at discerning 457-58. are not She “One of continued: the reasons Psychiatrists accept truth. are say children often trained happen will later it didn’t provided by patients, facts not to act put their as family pressure because the on Hellstrom, judges credibility.” patients’ them verbally, either their actions to be Rimmasch, loyal (quoting 825 S.W.2d at 614 family.” at Holding Id. 406). by holding P.2d at admission We concluded that of the to be re- expert error, “testimony probative was not versible we “The stated: admission of expert it, effect, whether sexual occurred and opinion improper [the abuse ex pert] jury by told invaded the story believe the children credibility determining express initially had witness told and disbelieve the ing given unqualified opinion on the open ultimate part court.” Id. We relied Hellstrom, issue.” 825 S.W.2d at 614. Pendleton v. (1985), S.W.2d 549 held which that a clinical point, Our most recent decision Hall v. psychologist permitted be should not to testi- Commonwealth, (1993), Ky., 862 S.W.2d 321 fy that the defendant lacked the state of repeats many principles of the familiar mind to commit the crimes. Id. at 553. “An the discussed cases cited and hereinabove. opinion as to accused had the point Hall made the farther that it was ability propensity to commit such an act is improper express witness to improper opinion because it is an on the opinion accuracy as to the of the child fact, is, guilt. ultimate innocence testimony. victim’s Consequently proper province invades clearly improper It was also for Ms. jury.” Id. opinion Ballou to in her T.H.’s likely qualifications Aside from the accurate. was most Even witnesses, psycholo- substantial there is no distinction had Ms. Ballou been licensed gist children, between the Hester and examined the the time she case, given qualif[ied] In here. each she would “not have as an ex- presentation in and its of the child and evidence pert on being specific this case rather than reliability she while terms made statements Hellstrom, here sufficiently distinguished evaluating Id. at her.” she Commonwealth, Ky., Hellstrom, from that Hester the view embraced cases. and the other specific 734 S.W.2d Supreme Court on this of the Utah trial court not.... said: question: “[These witnesses] are [They] discerning the truth. experts distinguishable from the instant Hester accept provided facts are trained to expert therein commented in that the case i.e., judges pa- class, patients, not to act particular credibility of a on the Rimmasch, credibility.” tient’s State does The Commonwealth abused children. 1989). (Utah Furthermore, 775 P.2d expert’s not wish to introduce emphasized prosecutor this as a credibility of abused children on the that, closing by stating argument his credibility group [abused or on the of Ballou, psychologist inter- “Miss testimony at trial. The Common- child’s] occasions, couple T.H. a of told general viewed seeks to introduce testimo- wealth you you that T.H. told was the what ny it is common for children to show that majority The this held abuse, truth.” of court has report and then retract sexual type this testimo- that the admission of of allegations. their Hellstrom, Id. is reversible error. Newkirk, No. 93-CR- v. Commonwealth Therefore, we on this reverse issue. (Nov. 30, 1994). 0401,slip op. at 4 Id. at 323. accept simply unable to We are un- foregoing authorities demonstrate message unmistakable court’s view. The mistakably accepted that this Court has not that, from Dr. Sullivan’s com- any the view that the CSAAS or of its accu- believe the initial general, a should general acceptance has ponents attained by child and sations made disbelieve community justifying the scientific its admis- ad- only generally reason recantation. The prove into evidence to sexual abuse sion testimony is its admitting vanced for Moreover, identity perpetrator. victim, credibility particu- relevance rejected grounds been such has larly presented has evi- when the defense relevancy it make the lacks for failure to credi- of recantation in order to attack dence any consequence fact more existence 691, People Beckley, 434 456 bility. Mich. probable probable or less than would have (1990). 391, Unless the evidence N.W.2d 399 In been without the evidence. KRE credibility, utterly it is imma- probative of is Commonwealth, language Lantrip any It would aspect case. terial (1986), 816 it be- “[e]ven 713 S.W.2d should nothing more than a theoretical simply be community accepted by come the scientific discussion. sexually is that a child who had been abused that there previously This Court has stated likely symptoms develop certain expertise in thing no such as traits, ques- sonality would remain the there Commonwealth, Ky., Hall v. of children. See of whether other children who had tion (1993). fact, 321, we have 323 862 S.W.2d . similarly develop the also abused profes- that mental health view embraced Fi- symptoms or traits.” Id. at 817. same discerning the experts at sionals are not expressed grave nally, our decisions truth; they pro- accept trained to facts are prov- concern invade exami- patients without critical vided by unduly influencing its ince those Hellstrom v. Common- nation of facts. credibility. assessment (1992). 612, wealth, Ky., 825 S.W.2d the admissi- backdrop of Dr. Sullivan both

Against of distrust this here, to bear bility hearing appears the trial type syndrome evidence of the at issue gave that he is no indication anything about this out. There must consider whether initial possibility that the departure consideration case is sufficient cause this is a by a child who later general The trial court was accusation recants from the rule. and that false accusation the rebuttal nature persuaded scholarly proponent true. A Ky., of the admissi- In Hall v. 862 S.W.2d bility syndrome evidence, argu- of such while we stated “the rule is that evidence, ing admissible, reporting that the manner of indicates a order to be great abuse, likelihood of actual must not decide an has ultimate issue fact.” admitted, nevertheless, Id. that children do lie about sexual abuse. This source fixed suggested It has been that our “ultimate allegation the false rate at between 2% and fact” decisions are inconsistent. See Michele Boat, 8%. Mark D. Everson «feBarbara W. Note, McCarthy, Admissibility Expert M. Allegations

False Sexual Abuse Chil- Testimony on Child Sexual Abuse Accom- Adolescents, dren and 28 JAm.Acad.Child «& Syndrome Kentucky, Ky.L.J. modation 230,234 AdoLPsy. 727, (1993); see also Pendleton v. Com- monwealth, (1985) Ky., 685 S.W.2d testimony, From appears his Dr. Sullivan (holding opinion testimony improper); such broadly to have assumed that all accusations Carpenter true, perhaps of child sex abuse are this (1989) (allowing testimony S.W.2d inappropriate practice is not largely regarded suggesting which could be devoted to the treatment of children who are problem.”). “solution of the ultimate Howev- believed to have been abused. For er, ambiguity there is no in our decision to however, purposes, our assumption such an proposed eliminate the Rule 704 from the inherently may unsound. While it be entire- Kentucky of Rules Evidence.- As Professor ly proper accept patient for a clinician to Lawson observed: report of proceed sex abuse at value face proposal initially enacted into law basis, to render treatment on that for foren- Assembly rejected the General but was purposes, assumption utterly sic such an is Kentucky Supreme Court its inappropriate. may not One assume the Thus, consideration of the Rules. disputed truth of a fact and thereafter use Kentucky provision Rules exist without a assumption contradictory to defeat a as- dealing on ultimate sertion, nor should the contradiction itself be Supreme issues. role Given the Court interpreted enhancing credibility as of played developments, only in these one can original assertion. Dr. Sullivan’s testi- prohibition believe that the ultimate fact mony remarkably is similar to that of the major play will role in deci- continue to Commonwealth, expert witness in Hester v. admissibility expert testimony. sions on Ky., (1987), said, 734 S.W.2d 457 who “Chil- Lawson, Kentucky Robert G. Evidence usually dren do not have a lot in— of details (3d 1993). 6.25, § Law Handbook at 311 ed. they something when are —tell like this un- actually it happened,.... less When may While there be inconsistencies in adults, they given specific have details to opinion our decisions on ultimate fact testi generally universally almost this has mony, credibility —well where the determination happened to them.” Id. at 458. synonymous guilt with the ultimate fact of innocence, expert opinion is inadmissible. A number our decisions in this arena expert may An witness that a questioned expert have also whether testimo- When, case, guilty. defendant is as this type province of this invades the expression opinion credibility an as to jury as to the ultimate In fact. Hellstrom v. equivalent opinion guilt of an as to Commonwealth, (1992), Ky., 825 S.W.2d 612 innocence, consequence of no it is that the expert testimony improperly we said that the presented general in a manner province jury by “invaded the deter- specific rather than as to the case or on mining expressing witness rebuttal rather than as evidence in chief. unqualified opinion [an] on the ultimate is- In Appellee sue.” Id. at 614. Hester v. that a Common- has observed number wealth, Ky., (1987), reject our prior S.W.2d we said decisions “[ejxpert opinion purports Frye which satisfy to resolve for its failure to standard of States, jury[, admissibility. Frye App. ultimate issue before the which v. United true,] (1923); version is is inadmissible.” Id. at Hellstrom v. 459. D.C. 293 F. 1013 see Commonwealth, (1992); excluded Ky., bert or it should have been 825 S.W.2d grounds include upon other which Mitchell v. 111 S.W.2d 930 various (1989); Ky., that the tes- Lantrip v. 713 KRE we remain convinced relevancy (1986); Bussey invaded the timony lacked S.W.2d 816 Common wealth, (1985). by expressing an Ky., It con S.W.2d guilt our issue of or innocence. tends that with decision Cecil Com on the ultimate monwealth, (1995), S.W.2d 669 regard this recognize that some will We acknowledged the standard set wherein we regressive unenlightened. opinion as forth Daubert Merrell Dow Pharmaceu wrongly that we fail to conclude Some will ticals, 2786, 125 Inc., 579, 113 509 U.S. S.Ct. recognize of child sexual abuse or the extent testimony is L.Ed.2d 469 ade of criminals rights elevate the even that we quate satisfy the revised standard ad remind those over children. We defenseless missibility. See also Mitchell v. Common every person ac- such views hold wealth, 100, 101 Ky., 908 S.W.2d committing a crime entitled to the cused of Frye Daubert abandonment test presumption of innocence and to such upon predicated text Rule 702 of proven guilt continue until presumption Rules the Federal of Evidence and ab- beyond doubt. The admission a reasonable history suggest legislative sence of pre- of theoretical viability accep- continued scientific very of the accusa- guilt sumes fact admissibility. tance the standard for Pro- contrary our fundamental tion is most Frye fessor has observed that Lawson Moreover, upon rights. if we should embark replaced by test was what be described path freely admitting expert toward general reliability “[b]e- test and that nature, difficult to of this would be Daubert, yond one this conclusion about can instance, For can turn if back. ambiguity clarity early in find more than and family adult testify that children who accuse commentary upon one find the case can more telling probably members of sexual abuse are praise criticism than for what the Court has recantation, despite subsequent the truth a in most done this critical area of evidence step-parent so accused would follow that a Lawson, Kentucky doctrine.” Robert G. expert opinion that children could introduce (3d 11.35, § Evidence Law Handbook ed. step-par- against often fabricate accusations precise Supp.1995). The of Daubert contours Likewise, symptomatic if evidence of ents. and are in and Rule 702 still formation abuse, prove to the is admissible CSAAS unwilling testimony to now are declare that necessarily symptoms absence of such would by the Dr. type of offered Sullivan satisfies prove had not be admissible to that abuse forth in the revised standard set Daubert. most unde- occurred. Such a result would be observe, however, pri- We two not even Dr. testified that sirable as Sullivan suggested mary in Daubert to deter- criteria all who have been abused children reliability mine are the scientific symptoms commonly associated with exhibit subject falsifiability principle is to and wheth- join Pennsylvania the Su- with CSAAS. We potential Dunkle, er the known or error rate in preme Court Commonwealth 693-594, evaluated. 509 at 113 S.Ct. at 168, U.S. as follows: 602 A.2d 830 529 Pa. experts 125 L.Ed.2d at 483. The a all that child abuse is We are aware admitting in favor the rebuttal testified of society sad- plague in our and one the saying no testimony pretense made wheth- today’s up in aspects growing dest subject principle at er the scientific issue Nevertheless, not think it we do America. refutability, falsifiability testing to for and disregard long- simply Court to befits this pretend poten- certainly to know the did concerning pre- the standing principles bases, At tial error rate. least on these proper ad- of innocence and the sumption question appears fall short of evidence in gain in a of evidence order mission admissibility. for the Daubert standard A greater convic- number of convictions. through proper be Regardless testimo- tion must obtained of whether in order lawful admission under Dau- and of Dr. Sullivan was admissible integrity system maintain the and adversarial fairness Our has evolved very of our jurisprudence. sophisticated expensive the bedrock into a and Kentucky for the truth. search remains as Id. 602 A.2d at 838. jurisdictions rejects one of the few that still In analysis, final the more that courts testimony regarding phenomenon all clin- experts jury prob- mit to advise the based ically identified and demonstrated as the classifications, ability, traits, syndromes and Syn- Child Abuse Accommodation Sexual the more we histor- remove from its provides jurors psychological drome which ic assessing credibility. function of While a explanation for certain in behavior small chil- may criminal be facile with his and denials following testimony dren Such abuse. explanations and timid and be necessary children because these often halting, we entrust the wisdom conduct that with exhibit is inconsistent comprise twelve men and women who jurors’ experiences understanding life responsibility to sort between the human nature in children. conflicting versions events and arrive at a credibility, an attack on After the victim’s proper verdict. prosecution offered as rebuttal appellant’s We have also considered reason the victim’s retraction. The claim of respect trial court error with symptom fully retraction satis- CSAAS admission of out-of-court statements Frye fies test. limited This police victim to investigating officers Kentucky should be allowed in at this time as hospital. the doctor who examined at the for a of recantation is need rationale inability view of victim’s recall jury’s understanding. crucial for the As is trial, specific during details testimony, jury may the case all there was no error the trial court’s admis reject accept explanation whole or police sion of her statements to the officers part. physician. Ky. v.Wise symptoms all five While App., 600 S.W.2d The trial syndrome wholly have not been embraced court has with re considerable discretion however, of psychology, the field the re- spect to the admission exclusion evi widely symptom accepted cantation dence circumstances such as these and confirmed credible studies renowned nothing here amounts to an abuse by research institutions well credentialed discretion. experts. reasons, For foregoing judgment the Jefferson Circuit Court herein re- WILLET, Special Justice, and versed and this cause a new remanded for WINTERSHEIMER, J., join in this trial not inconsistent herewith. dissenting opinion. STEPHENS, C.J., BAKER, WILLETT, Justice, Special BARRY LAMBERT, STUMBO, JJ., concur. dissenting. GRAVES, J., separate dissenting files a I I would affirm respectfully dissent. opinion Special in which Justice BARRY trial court conviction hold that the com- WINTERSHEIMER, J., WILLETT and admitting mitted no error the rebuttal join. Sullivan, testimony of John M.D. Special BARRY WILLETT files a Justice majority opinion The has mischaracterized. separate dissenting opinion in which testimony impermissi- of Dr. Sullivan JJ., WINTERSHEIMER, GRAVES testimony relating to Child expert ble Sexual join. (CSAAS). Syndrome Accommodation Abuse opinions six this court has Based on

GRAVES, Justice, dissenting. criminal because reversed convictions Respectfully, testimony erroneously I dissent. admitted proving [victim] evidence,1 appellant’s purpose of the court reverses into sexually abused. Unfortunately, majority was not conviction. gen- distinguish opinion fails to between beginning the substance of tes- Before admissibility expert prohibition of the eral jury timony made clear to Dr. Sullivan relating

testimony and rebuttal to CSAAS not treated the victim and that that he had testimony phenomenon of re- regarding the give opinion an on wheth- there to he was not cantation. He then she had been abused. er not is and testified explained what recantation expert testimony at issue was “very widely accepted” that recantation is Sullivan, M.D. Prior psychiatrist child John among “any professionals mental health trial, lengthy court conducted a the trial Dr. stated that with children.” Sullivan to work hearing motion on the Commonwealth’s sex- occurrence with recantation is common testimony regarding introduce ually and told abused children competent experts, Three recantation. child recant. worker, common for a most reasons psychiatrist,

child a clinical social cannot He went on that children psychologist, testified and a licensed clinical recanting for always their articulate reasons hearing is a common recantation provide reasons. He and will sometimes among phenomenon abuse vic- anything had not reiterated that he discussed widely accepted and that it within tims parents, or her did not know with the victim respective Appellant scientific fields. case, if and had no idea the facts present any expert at the failed to applied in this case. recantation hearing opinions rebut the Com- experts. monwealth’s majority that Dr. Sulli- opinion finds van’s should have excluded granted The trial court the Common- that it both lacked relevance and basis to introduce testimo- wealth’s motion express- invaded the ruling it regarding at trial guilt ing an on the ultimate issue of would: Thus, analyze I will first innocence. allow the Commonwealth to introduce ex- rele- whether Dr. Sullivan’s pert testimony purpose the limited vant. rebutting any cred- [the victim’s] attack on ibility upon based the recantation of her KRE 401 reads follows: abuse, allegations by explaining of her evidence hav- “Relevant evidence” means why alleged terms victim ing any tendency to make the existence of recant. any consequence to the fact is of probable determination of the action more trial, appellant brought the credibil- At than would be without probable or less ity question impeach- of the victim into the evidence. ing2 recanting her on the basis allegations prior to trial. sexual abuse us reminds law Professor Lawson trial Dr. The court allowed Sullivan’s heavily tilts toward admission of of evidence following limiting with the admonition: rather than exclusion. Lawson evidence (thus testify for item of evidence is relevant being

This witness is called to states “an by some ex- purpose explaining psy- absent intervention of the admissible the limited any tendency clusionary policy) if it to chological dynamics surrounding a recanta- of probability following an increase or decrease the accusation tion proposition.” Robert pertinent is for the factual G. abuse. This evidence not offered Commonwealth, Appellant Ky., victim facts relevant Bussey 139 2. elicited from the v. 697 S.W.2d Commonwealth, (1985); Lantrip Ky., v. examination in both on cross to recantation Commonwealth, (1986); v. S.W.2d 816 Hester on exami- case and direct the Commonwealth’s (1987); Ky., v. Com 734 S.W.2d 457 Mitchell nation in his case-in-chief. monwealth, (1989); Ky., 777 Hettst S.W.2d 930 Commonwealth, Ky., 825 S.W.2d 612 rom Commonwealth, (1992); Ky., 862 and Hall v. S.W.2d 321 Lawson, Kentucky proper The Evidence Law Hand- form its in determining function book, 2.05, (3rd Ed.1993). p. § credibility being provided perti- child’s after nent information. majority opinion to fails consider that appellant’s guilt or innocence is not the Permitting appellant impeach to only consequence fact that is of in this action. credibility victim’s basis of “Credibility of witnesses is a ‘fact of conse- previous recantation allowing without also quence’ purposes relevancy. of A wide present testimony Commonwealth to ex array only of evidence is admissible because plaining phenomenon of gives credibility proba- it renders testimonial more alleged perpetrator advantage an unfair or probable ble less than it would be without process exploit how some child recog- the evidence.” Id. at This Court respond sexual abuse victims to abuse. Dr. Commonwealth, Ky., nized Sanborn v. testimony Sullivan’s rebuttal akin to that “credibility S.W.2d that the Ky., Reed 738 S.W.2d testimony always of a witness’ relevant (1987) in which this court held that Thus, issue.” Dr. Sullivan’s rebuttal testimo- credibility when a witness’s has been at ny which credibility concerned the fabrication, charges tacked of recent re clearly falls within the KRE witness/victim may buttal evidence be introduced rehabil relevancy. definition itate the of the witness. This Next, opinion court also held that turn an to whether Dr. Sullivan’s on the ultimate testimony issue admissible where jury by invaded the such evidence assists the trier of fact. expressing opinion an Car the ultimate issue. penter Despite majority S.W.2d opin- the conclusion of the 822, 825 (1989). contrary, ion to the Dr. Sullivan’s phenomenon explain served to recanta- determining After that Dr. evi- Sullivan’s opine appel- tion than rather about the inquiry dence is relevant the next guilt or lant’s innocence. Dr. Sullivan did it complies provides: with KRE 702 which testify child, not that Newkirk abused the scientific, technical, specialized If or other testify he not regarding thus did the “ulti- knowledge will assist the trier of fact to guilt mate issue” Newkirk’s or innocence. understand the to determine a testify Dr. Sullivan did likewise not that the issue, qualified fact witness an abused, child had been nor recanta- skill, knowledge, experience, abused, tion was evidence that she was nor training education, may testify thereto original that the child’s statement before her in the form of or otherwise. recantation was the truth. question regarding The first the admissi- Rather, merely explained why the doctor bility of Dr. under KRE Sullivan’s some child sexual abuse victims recant 702 is whether the substance of allegations of sexual abuse at some jury will evi- assist the to understand the process point in prosecu- the criminal dence determine a fact in It has issue. alleged perpetrator. tion The trial Kentucky long been the rule judge admonished the that Dr. Sullivan substance of must be of being called to for the limited such within the a character as not fall purpose explaining psychological dy- range experience of common and observation surrounding following namics a recantation intelligible jurors therefore be an accusation of sexual abuse. opinion testimony. without the aid of Greer’s judge further admonished the that the Adm’r, 209, 213, Ky. Adm’r v. Harrell’s 306 being pur- not offered for the was 943, 206 S.W.2d 946 pose proving whether the child victim was adults, up jury lay hearing or not It then a abused. was When jury to a typical determine whether this child horrible details in child sexual abuse case, had recanted because her first statement was is confronted with a child victim recant- ing allegations untrue or or previous because of some other reason. Dr. of sexual abuse, they would Sullivan’s allowed the it is understandable that 2786, Inc., 579, 113 S.Ct. apply adult standard to the child 509 U.S. tend to (1993)). in to understand L.Ed.2d victim’s behavior an effort to recant his or what motivates victim psychiatrist, a child board Dr. is Sullivan reality of child sexual allegations. The neurology. psychiatry and in both certified differently respond abuse is that children post-medical years of school He received two and the adults to both the abuse than do training psychiatry. Dr. fellowship in child disclosing proper process of the abuse Sullivan, being private medi- addition authorities. practice psychiatry, was Medical cal in child Center Director of Brooklawn Treatment Court, in Supreme The Louisiana Wimber- Unit at of the Children’s Medical Director Gatch, (La.1994), ly v. So.2d majority Hospital. Lady of Peace The Our help why expert testimony explained can experience practice and dealt of his medical of fact understand a child’s behavior: trier treating of sexual abuse. with child victims preconceived frequently have ideas Adults stipu- offered to appellant’s The counsel person about how a traumatized will react expertise. to Dr. In addition late Sullivan’s after infliction of the trauma. The child Sullivan, competent experts Dr. two other not react to the victim of abuse does hearing. a clinical at the One was testified concepts according to adult situation psychology professor and child social worker autonomous, ra- self-determination University Kentucky, and the other at the fact, their tional choices. behavioral psychologist. clinical licensed expecta- patterns vastly differ adult lengthy “pre- The trial court conducted a (Citations omitted.) tions. utilizing the liminary hearing on the matter Expert testimony under these circum- forth in Daubert.” Mitchell standards set diagnostic probative is neither nor stances experts kept with the 102. All current the ultimate in the Dr. issue case. Sullivan’s in the area of child sexual abuse literature the intent effect of had neither nor process of published or were in the and had diagnosing sexual abuse and therefore did experts publishing their fields. The testi- improperly invade the is not used to determine fied that recantation jury. contrary, To the Dr. Sullivan’s not, whether sexual abuse had occurred mony jury to served to assist the understand stage. at the treatment but considered why some child victims sexual abuse lay experts further testified that most allegations recant In the abuse. phenome- persons not understand the would case, instant it is clear that Dr. testified non of recantation. Sullivan having difficulty understanding why the child “widely accepted” in the that recantation allegations victim had recanted her of sexual psychiatry. He field of described abuse. At di- the conclusion of victim’s “decades,” being recognized for but rect in the examination Commonwealth’s taken off in the in the area had research case, juror ask victim was allowed to years. Veltcamp, a li- last Lane why raped had but had she testified she been psy- and child clinical social worker censed people happen. told other it did not University Kentucky professor chology responded, “I don’t know.” victim published a book on child abuse and who has neglect recantation is “some- prof scientific testified that When fered, thing regular and is “make a see on a basis” the trial court must next country something “accepted preliminary of whether the rea across the assessment underlying frequently children who been soning methodology the testi seen scientifically He stated that recantation valid and of whether abused.” recognized the mid-1970’s and is methodology ap since reasoning can be regular topic across coun- at conferences plied to the facts issue.” Mitchell Com (1995) Ph.D., Brensale, monwealth, Sally a li- try. Lawson 908 S.W.2d (in has attended adopted psychologist clinical court the standard censed which this presented at child abuse con- in and numerous evidence set forth review scientific ferences, is “com- that recantation Dow Pharmaceuticals testified v. Merrell Daubert mon,” “certainly testimony that it is in accepted” will [the “substitute ex- field, recognized it has been in pert’s] estimation of for psychology field of since the mid- or Rather, late- jury. provide it is to a scienti- 1970’s. perspective jury according fic for the to which it can evaluate complainant’s Following lengthy hearing, exactly this testimony for itself.” Mitchell, type required the trial court granted the Commonwealth’s motion to allow Expert testimony explaining phenome- testimony regarding for the lim- non of recantation some victims purpose rebutting ited the victim’s testi- sexual abuse should be admissible based her recantation of the abuse purpose rebutting limited an attack on the allegations. The trial court determined that credibility, child victim’s if expert phenomenon enjoyed of recantation gen- mony meet requirements can for admissi- acceptance psychiatric eral within the bility Mitchell, set forth in KRE 702 and psychological communities and that nu- noted supra. Any testimony pre- such should be expert merous courts have allowed an to limiting ceded instruction to the effect testify in explain why rebuttal to a child expert’s testimony that the is not intended He testimony recants. further found that and should not be to used determine whether regarding recantation would assist the victim’s allegation sexual abuse is true. understanding possible behavior of a Thus, child victim of sexual abuse. he cor- WINTERSHEIMER, JJ., GRAVES rectly determined that the met the join this dissent. requirements appellant of KRE 702. The any present failed to evidence to the con-

trary. appeal

The standard of review on is wheth-

er court abused his or her discretion deciding admissibility of the evidence.

Mitchell 102. The trial court did not

abuse his admitting discretion in the rebuttal testimony of Dr. Sullivan. ASSOCIATION, KENTUCKY BAR jurisdictions Other have allowed the admis Petitioner, sion of explain general terms, for purpose rebutting the limited credibility, an attack on why the victim’s Benjamin HAYS, Respondent. J. alleged victim might of sexual abuse recant. No. 96-SC-427-KB. State, 655, Davenport See 806 P.2d (Okl.Cr.1991) (“Numerous courts have al Supreme Kentucky. Court expert lowed an in rebuttal recants.”) explain why ... a child and cases 21, Nov.

cited therein. Rehearing Denied Feb. Foret, As stated So.2d State (La.1993), quotes Goldstein, “Credibility Ineredibilify: Psychiat witness,” Complaining

ric Examination of the (1980): 1238, 1240 Am.J.Psychia. why victims delay reporting being recant or

offered rebut attacks on the victim’s

credibility. long So as the limits characteristics explain delays in reporting, would re-

cantations, details, and omissions of

Case Details

Case Name: Newkirk v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Aug 29, 1996

Citation: 937 S.W.2d 690

Docket Number: 95-SC-172-MR

Court Abbreviation: Ky.