People v. Stoll

Dec. S003576. [No. 1989.] PEOPLE, Plaintiff

THE and Respondent, al., ANDREW STOLL et Defendants and Appellants. JOHN Counsel Bell, Jr., Defender, by

Frank Public under appointment O: State Defender, Court, Knox, L. State Public Thomas Acting Monica Supreme Carroll, Defender, R. S. Smith and Michael State Public Laurance Deputy Court, Robert under Fiedler appointments Supreme Snedeker,; Appeal, the Court of Hanley, John M. under appointments and Appellants. Defendants General, White, Chief Attorney

John K. de Steve Assistant Kamp, yan General, Kirkland, Kerry, W. A. Thorpe Edgar Jane N. Scott Attorney General, Attorneys Respondent. for Plaintiff and Deputy Opinion

EAGLESON, J. charged decide whether a criminal defendant We a psychol- lewd and acts a child introduce committing lascivious upon testimony, based an interview and inter- ogist’s professional tests, written that defendant pretation personality displays of standardized Under law and the facts signs “abnormality.” existing “deviance” or case, charged of this on a defense claim that the acts did evidence bears not Professional the absence of sexual deviance occur.; regarding statutory is a criminal defendant to permitting also authorized under rules ¡evidence introduce of his character.” “good course, satisfy

Of such must traditional limits governing evidence witness, on an testimony—a qualified testifying admission of expert appro- We reasonable “matter.” priate “subject,” relying upon professionally does not offend such stan- diagnosis conclude that qualified psychologist’s it tests. solely dards because interviews and standardized grounded upon To the in a case is cumulative proffered particular extent limit or it. unduly the trial court has broad discretion to exclude prejudicial, However, subject testimony, see no this or the matter upon we reason new, based, which to the restrictions admission of special governing it is novel, or experimental scientific techniques previously accepted 1013, (Frye courts. v. United States (D.C. 1923) Cir. 293 Fed. 1014 [54 App.D.C. 34 A.L.R. 145]; Kelly (1976) Cal.3d Cal.Rptr. (hereafter 549 P.2d Kelly/Frye).) We adhere to settled 1240] law this viewing testimony as competent but disputable “expert opinion,” rather than new “scientific” evidence that must be reliable it proven before is admitted. Even where a defense is based in expert’s diagnosis part tests, standardized written jurors can be entrusted to consider it with a eye. discriminating have relied on such Experts long tests forming opin- ions introduced to raise a reasonable doubt as to a defendant’s guilt of crimes.

Here, the trial court committed error in prejudicial on Kel- excluding, ly/Frye grounds, expert testimony proffered by two defendants whose convictions are under review. Insofar as the Court of decision Appeal’s convictions, these upholds it will be reversed.

Facts Stoll, Four Self, Grafton, defendants—John Grant Margie and Timothy Palomo—were jointly tried and convicted in the aggregate thirty-six counts of lewd and lascivious conduct against a total of seven boys. young Code, 288, (Pen. crimes, subd. (a).) The encompassed § wide vari- ety of section, touching made criminal Bakersfield, under this occurred in California, between June 1983 and June 1984.

Evidence adduced at trial in late early 1984 and indicated that defendants sometimes acted together and sometimes acted in commit- apart ting the crimes. Since we granted only review as to defendants Grafton and Palomo, we will focus on evidence offered by and them.1 against Crimes in which all defendants were found to have participated will be described last. A. Evidence Admitted at Trial

Defendants Grafton and Palomo were romantically involved and lived together during time pertinent period. They socialized with the third girlfriend, defendant—Stoll—and his nondefendant Rochelle. Stoll lived with Rochelle in June and July and then moved into his own house on Center Street. Beginning March the fourth defendant—Self—rent- ed a small house behind the swimming pool Stoll’s Self property. knew the other defendants.

1 petition Stoll did not petition for review. Self’s was denied. by estranged two an

Five Grafton: her sons against children testified ex-wife, son, Chris; husband, by J.; Rochelle’s and D.; A. and son Stoll’s Street, on Center Victor. boy Except who lived near Stoll’s house neighbor Victor, (The boys’ ages Palomo. same children also testified against Chris, A., and D. baby-sat below.) Stoll sometimes at time of trial are stated critical during period. ¡the context, Stoll, of who was

For note that 17 counts involved we codefendant participation. have committed most them without found to Stoll the latter was that he was twice sodomized while Chris testified mother, J. he Rochelle. testified that was sodomized living with Chris’s Stoll, father, occasions at the by his on six different orally copulated and/or sons, D., A. Testimony by implicat- Grafton’s and also Center Street house. boys at the same sodomy against Stoll total three these two ed in a acts encounters guilty was sexual separate address. Stoll further found two children, testimony by (fondling, copula- Victor oral neighbor based upon tion, (No charged and other defendant was sodomy) (fondling). Eddie against Eddie.) with crimes counts, he

We note that Self convicted of most which was was also his Two were based found to have committed on own. convictions D., sodomy J. that Self acts of testimony by and respectively, performed Center also with them in Stoll’s bedroom on Street. Self was copulation oral (digital of five encounters anal guilty separate penetration found lewd at other locations. fondling) girlfriend’s grandson (Jerimy) with and/or against Jerimy.) was with crimes (No other defendant (count 9) five One of them alleg- Defendant Grafton suffered convictions. alone, son, J., years six edly committed her Stoll’s who was against was once, J. alone and naked in old at trial. testified that he and Grafton were Street, on Center and he “rubbed” Grafton’s breast. father’s bedroom Stoll, (count 24), also convicted with based along Grafton was Victor, years old at trial: while testimony by who following eight J., house, A., boy” by and “another Stoll’s Victor pool playing Victor, him if for a threatened to kill he grabbed went inside drink. Stoll screamed, him removed both his own and and took into bedroom. Stoll into room took her clothes. Stoll Victor’s clothes. Grafton came off Grafton, Victor boys. Victor and as well as three other photographed breasts, orally and Stoll. Stoll then told copulated “touched” Grafton’s Victor, he “went Victor home. returned home and go According trial, mother, it was At Victor’s Mrs. sleep” though “daytime.” even still M., June Victor May confirmed that two afternoons and/or bath, friends, and went to bed came home after with took playing “upset” “unusual” for him. eating pattern without dinner—an was found Only (count 25) one Palomo’s convictions of defendant four count, As to this have been committed without codefendant involvement. A., trial, that on years Grafton’s son who was nine old at testified one home, occasion, preparing go he his brother D. on the couch at and were also Palomo his hands inside A.’s Palomo was “hunting.” present. placed rear A.’s “rubbed” A.’s end. pants, “fiddled” with and penis, Chris, All four against defendants were found crimes committed guilty J., A., and at a event. group (Counts 3.) Although information also D. alleged (count 4), jury defendants molested at same time did count, not ultimately reach a on that it by verdict and was dismissed seven, old, People. (D. years trial.) was and Chris at time of eight J., A., No witness (Chris, gave the same account of the D.) group event. They that all agreed defendants and several children were naked house, together at Stoll’s but as disagreed to which children were present. A., Three (Chris, J.) witnesses and the event in placed living room. Two witnesses (Chris A.) and said the children given were Kool-Aid or soda that A., made them dizzy. As to 3 against counts and Chris and respectively, each of boys these testified acts about sex committed him against one or more defendants.2 J. Although could remember whether adults day him count A. Chris and testified that “touchfed]” unspecified sex acts were J.3 against committed When D. was asked at trial child, whether he (count 4), any other day, was touched that he said addition, A., “no.” In three witnesses and (J., D.) testified that photographs of defendants and children were taken they while were engaged sexual or, least, However, activity while boys naked. these disagreed three as to 2 orally Stoll; Chris testified he was copulated (Chris) sodomized and that he so orally Self; domized copulated (Chris) that he “sucked” breast Grafton’s and “felt” her genitals; and (count 1). that Chris and Palomo “touched” each other A. penis, (A.) orally testified that touched copulated Stoll and that he Stoll. A. also said 3). he touched “put penis private” (count Grafton’s breast and in her [his] jury 3.00, aiding abetting (CALJIC received standard instructions. Nos. 3.01 (1984 rev.) (4th pt.).) pocket ed. 3 children, Chris testified Stoll “things” specifically did sex with the other J., activity “touched” J. A. engage confirmed that he saw Stoll in sexual but could not (count 2). remember what it was boy—Chris—remembered and the fourth identity of the photographer, at all.4 picture-taking in inconsistencies same witnesses revealed

Cross-examination four testimony con gave conflicting stories. For Chris example, each their in day through (i.e., August on occurred cerning the which counts Catalina, 14, 1984, January when or on mother Rochelle went when his he an unspe Chris also said that told trophy banquet). she a darts attended examination at hearing at and direct preliminary cified “lie” both Likewise, J., A., they at the preliminary and D. admitted that “lied” trial. sexual knowing about nude hearing they photographs when denied and/or had J. disclosed that he been activity between children and adults. also telling at trial in (i.e., at one direct examination during untruthful point in did recall Palomo one two being apparently he prosecutor nude photography sessions). were elicited on investigation

The details of the official witnesses, County Kern prosecution direct and cross-examination y Ericsson, worker, Velda child services protective Sheriff and Deput Murillo.5 in that J. the sheriff’s mid-June 1984 department

Stoll’s ex-wife informed interview, A., D., sex and a male adult.6 In a home had mentioned acts with A., D., and Self. When asked activity J. told Murillo about sexual with Stoll, said, J. things, had other She among whether in sex engaged about weeks earlier. J. also de- he had been sodomized his father two 4 pictures J. children were naked. testified that Self took while the adults and Grafton, Stoll, pictures “kids adults A. testified that and Palomo took while the [were] naked, doing things.” sex (David Bonny) pictures while the de- D. adult took testified Stoll’s roommates and/or fendants and children were naked. noted, any picture-taking. not recall As 5 Chris could trial, argued suggestive closing that Murillo used In their statements at defendants interviewing techniques the children to fabricate claims of sexual coercive which caused against defendants. abuse They repeated in briefs this court. make ref- Grafton and Palomo revive this theme their in County Investigation,” “Report Kern Child Abuse erences a document entitled on the years apparently Attorney September two was issued General 1986—almost judicial this because after trial in this case asks that we take notice of material ended. Palomo cases, (1) investigative techniques child provides general guidance “proper sex abuse it: County investigation “sug- unspecified in an sex were shoWsthat children Kern abuse gestively interviewed.” Code, 459, (a), (b).) request. (See The material has no We decline Palomo’s Evid. subds. § And, way bearing legal question it does not refer these on the limited hand. since witnesses, nothing charges, report record. The facts this parties, adds to the factual investigation thoroughly explored particular at trial. were 6 earlier, day investigate department to certain molesta A or two Stoll asked the sheriff’s falsely against he had been leveled him. tion accusations which claimed

1145 When J. scribed nude sessions in which Grafton picture-taking participated. conduct, in whether and had sexual his engaged was asked he Grafton on he testimony answer was inconsistent with his trial count insofar as Graf- (i.e., told Murillo about a of sexual conduct he touched range wider ton’s breasts and she genitals, penis). “kissed” later, A. days county and D. into a

Two Ericsson and Murillo placed was the child as a team in which Murillo lead facility. Acting protection interviewer, A. two had three with and two investigators meetings ten-day D. over separate meetings with Most of them took at period. place accusations, the sheriff’s office. Each brother was told about J.’s confirmed true, were they and sex Stoll Self. described acts with and For the most D. part, gave “evasive” about Graf- questions answers ton’s in nude participation activity, telling sexual photography investiga- tors that Grafton about events hoped they knew these but would In stop. contrast, D. testified at trial on 1 counts Grafton was one of through who adults in nude participated group picture-taking. interview,

In A. his first also denied that Grafton had been involved in However, nude picture-taking. when asked to discuss Grafton in the interview, last A. described the group event in terms similar to his trial However, on testimony counts 1 3. through he although testified trial Grafton, that he vaginally A. penetrated told investigators he and Grafton had engaged in mutual A. also told genital-touching. investigators that Palomo had touched A.’s penis and rear end were pair while sitting on the couch at home. Unlike his trial testimony count A. did not disclose that D. was at the time. present A.,

Based in large part statements made the investigating team interviewed Chris and Victor one boy time each. Each if was asked “some been people” had him. “touching” Chris sexual described encounters with Stoll Self. Chris also gave investigators an account of the sex group event inconsistent with his trial 1 on counts insofar through as the pretrial version more generalized activity to sexual the men (i.e., sodomized than the boys) trial version.

Similar his trial testimony, Victor told investigators during home interview about Stoll, two in encounters—one which he was sodomized However, and another involving both Stoll and Grafton. as to second one, Victor described a broader of sexual conduct with range Grafton than breast-touching described his trial on count (i.e., telling breasts, he investigators Grafton’s and the two of them touched “kiss[ed]” each other’s genitals).

Murillo testified that she had a master’s degree marriage, family, and services, child counseling, had years worked six protective child She explained one molestation victims. interviewed over thousand had details their anxiety guilt, feel and seldom “volunteer” they often department had the sheriff’s Ericsson testified that he been with abuse. on-the-job child or sex training received formal or years; but had Ericsson, a he executed According before this case. investigations abuse interview, J.’s but found several hours after search warrant at Stoll’s house children, and on the no No medical exams were performed photographs. were not tape-recorded. their interviews charges.7 denied the Grafton and Palomo each testified and

Grafton body predated her that the the a scar on the side of jury large showed crimes, Victor testified did not exist. Grafton but which Chris and and banquet the same darts trophy further she attended explained Rochelle, by on the dates mentioned at trial by attended Catalina, trip Rochelle, son, testimony Grafton’s was corroborated Rochelle’s Chris. However, Ro during a Grafton’s case-in-chief. who was called as witness on both that there other occasions (like Chris) chelle indicated were baby-sat and Grafton had Chris. Stoll Mitchell, case-in-chief, Dr. M. a tes Stoll’s

During Roger psychologist, commonly psycho an on used the length expert “protocols” tified investigation traumatic effect of the community minimizing for the logical victims, that interview sex abuse and the likelihood upon decreasing child assertedly call for a environment guidelines distort facts. Such comfortable ees will (e. carefully the and a home), a office or child’s g., therapist’s so the interviewer four”) number “three or (e.g., balanced of interviews or coercive.8 Dr. demanding can to see without too begin patterns appearing “leading ask children it is “somewhat appropriate” Mitchell stated that but did not define that questions',” concept. Testimony Psychologist

B. Excluded of Defense Dr. Mitchell in her case-in-chief. The success Grafton called prosecutor testimony. fully an offer of the nature the requested proof proposed that, based jury’s upon Grafton’s counsel presence, explained Outside interviews, psy and the administration certain professional experience, tests, as to whether expert opinion Dr. Mitchell chological give would nature of “sexual deviation.” Grafton possesses “pathology” evidence,” insisted that the admissible as “character Counsel to commit because it tended to show that Grafton has predisposition 7 charges. testify. alibi and all Self did not He relied on an Stoll also took the stand denied brother, by, provided covering place seemed three dates which some of victims prior allegation had a seri some of the crimes. The court found true an that Self committed Code, 288a, felony (Pen. (c)) meaning Penal section ous subd. within the Code 667. § 8 interviews, primarily suggested preferred practice tape-record is to Dr. Mitchell repeated it the need for interviews that could traumatize the child. because minimizes Const., I, (d); acts. Cal. art. subd. Evid. (Citing lewd incestuous § Code, 1102; statutory all are to Evidence further unlabeled references § Code.) Kelly, 17 Cal.3d Bledsoe

Relying essentially 291], Cal.3d 236 Cal.Rptr. prosecutor P.2d a replied defendant must first show that a psychological “profile” exists, child is generally molester that its absence in particular person other mean accepted by that the has not molested chil- experts person only dren. Defense proffered testimony counsel countered that the need meet, meet, and did requirements set forth i.e., in section subdivisions it “assist” the trier (a) (b), would fact, “reasonably and was based “matter” which experts rel[y].” Defense counsel cited the case pre-Evidence Code Jones 38], Cal.2d 219 P.2d for the that proposition expert opinion that defendant is displays signs sexual deviance admissible as char- in acter evidence a Penal Code section 288 prosecution.

The trial court ruled that a an Kelly/Frye “reliability” showing unspe- cified nature must be made the jury before would be to hear Dr. allowed testimony. Mitchell’s In the ensuing hearing under section subdivision Dr. (b),9 Mitchell listed first qualifications—an issue which has never in been dispute.10 serious

Grafton’s counsel then elicited the following testimony on direct voir dire earlier, examination: approximately one week Grafton was administered function,” two “standardized” measures of “personality the Minnesota Multiphasic Personality Inventory and Millón (MMPI), Clinical Multi- Inventory axial (MCMI). The MMPI—the “primary” test—was copyright- and, revisions, ined following several is still “the widely most used test” psychological on both a local and national level.

Dr. Mitchell “always” continued: the MMPI is used and psychiatrists psychologists diagnose patients stages various of clinical treatment. It 9 (b) Section provides subdivision “preliminary when the existence aof fact” is in dispute, “may question admissibility the trial court hear and determine the of the of evidence presence hearing jury out . . . .” Ph.D., 10Dr. Mitchell direct testified on voir dire has a examination he is licensed to practice in psychology, private clinical been practice and had in in Bakersfield for about six years preceding basically trial. He specialist performing psychologi described himself as a in matters,” cal parties “legal examinations of in including various defendants and victims in “rape” prosecutions. Although and “child precise molestation” nature and number of record, such matters is clear Dr. “frequently” qualifies from Mitchell stated that he “expert County psychologist” an Superior in Kern Court. Dr. Mitchell estimated he is week, process probably every “involved in maybe the court once a once two weeks [or] .. . .” regularly, “daily,” Dr. Mitchell stated he and practice indeed relies in his on the (i.e., tests, methods interpretation used here administration and psychological of certain personal interviews). situations re-employment in “employment “frequently” given

also is [and] the indus- studies “promotion with conjunction polygraph,” [a] in correctional facilities. job applicants try,” as( well as inmates Mitchell, 10 “general possibili- Dr. the basic test measures According to It 566 questions consists of abnormality in function.”11 psychological ties for answer. The each for a “true or false” variety subjects, calling on a wide is, like Dr. further ex- Magazine.” “I Mitchell first Mechanics question scales” which deter- “validity MMPI has several built-in that the plained accurately the traits it measuring the test is mine extent scales, said, detect whether the taker is help to measure. These he purports “lie” in a “virtuous” appear falsely light. attempting level of “competence Dr. the test has probably Mitchell indicated that “usual” standard in psycho- “normal” whereas the persons, nine” for point coun- above.” Dr. Mitchell agreed seven and logical testing “point “70 chance of that the test has better than a “lay” percent sel’s assessment However, the witness also acknowl- in such circumstances. being right” “disturbed” or given the test is invalid” when edged that “completely “admitted” One of Dr. Mitchell’s patients, individuals. “psychotic” molester, MMPI. had tested “within normal limits” on the child as follows: it Dr. described the MCMI on direct examination Mitchell in the in had “widespread acceptance” was and achieved copyrighted County, in but widely three four trial. It is used Kern years preceding or MMPI in diagnosing less at the national level. It “overlaps frequently identify designed symptoms and general psychopathology,” of is degree Psychiatric Diag “in of the D.S.M. III Association’s the format [American Disorders, His of Mental Third nostic and Statistical Manual Edition].”12 validity and MCMI manual and studies showed unspecified of the reading and standards.” reliability “quite high accepted be within results, Dr. Mitchell Grafton’s test reviewing

After discussing charges against for in all jail, interview'ed her two hours 11 abnormality “hysterical adjustment, problems of as de Dr. Mitchell listed these areas of function,. abnormality bodily sociopathy psychopathy, . pression, . in . or . i. indications of identification, abnormality thinking gender development . . . in of or indications abnormal anxiety adjustment reality testing degree impulsivity processes, in and and of or to levels of hypomanic . . . difficulties and social withdrawal.” 12 Mitchell, According diagnostic degree a categories Dr. include the to which such withdrawn,” others.” The person is or schizoid or or “avoidant of contact with ‘[asocial submission, assertedly dependency gregariousness or or histrionic MCMI also measures trends, narcissism, behavior, pas compulsive conforming and development, antisocial path a negativistic categories personality include disorder on sive/aggressive traits. Other scale, ological presentation clinical of the individual. and immediate defendants. Based on his “individual of test interpretation” results, Dr. Mitchell opinion” interview was “professional likely has her function, throughout Grafton “has a normal personality [had] lifetime, falsely added.) in He and ... is this matter.” charged13 (Italics immediately clarified this last to mean that Grafton has phrase “[not] deviancy in the in of kind . . . engaged any sexual shows past [and] . deviancy any indications in other . . Especially personality [in function. behavior, a light low indication antisocial or I must aggressive of] is . . unlikely. conclude that it she be in events been would involved the she’s ” charged (Italics added.) with. He added that on opinion his was based also Palomo, the results of similar examinations of and his knowledge of Grafton-Palomo relationship.

On cross-examination Dr. Mitchell he prosecutor, testified: neither nor other use qualified experts the two tests as a “lie an detector” reach absolute determination whether individual is guilty Rather, crimes. his “diagnostic Grafton based pro- ” data, cess” many combining “many, pieces including professional expe- situations, rience with other individuals similar knowledge Grafton’s results, them, Palomo’s test about the knowledge charges against his personal assessments of them. Dr. (Italics added.) Mitchell said “extensive,” examination of Grafton was such that the MMPI and MCMI were “not by any means the sole determinor” of his opinion. (Italics added.) Rather, reflects, many it respects, “subjective judgment” that ” based “an absolute cut and dried approach. (Italics added.) scientific

The prosecutor then asked whether there are studies guilty “known have been people given the MMPI test. . . in a child molest case, and their as a profile child molester . . . test.” Dr. appears Mitchell replied that “there are studies which relate to general trends characteristics of individuals with deviancy, sexual typical their manner of scoring on this measure.” he did Although identify by not these studies name, he was certain that most of them involved convicted offenders.

Dr. Mitchell one identified MMPI measure adjustment, of antisocial the scale, “psychopathic deviant” as being “commonly elevated” “criminal 13 psychologist, testify A called expert personality as an on the existence of certain traits behavior, and likelihood of generally testify certain not competent to toas the “truth” or “falsity” charges. of Although opinion testimony solely criminal is not made be inadmissible cause “it embraces the (§ 805), giv ultimate issue be decided of the trier fact” ing Here, opinion course, such an qualified (See must be otherwise 720.) to do so. of noth § ing in the voir suggested qualified dire legal opin Dr. Mitchell was to render a ion as to beyond whether all elements of the proven crimes be could a reasonable against However, doubt immediately Grafton and Palomo. since Dr. Mitchell retracted his charges, assessment of explore the we need this issue further. He also said deviancy problems.” cases and and “in sexual

populations” jail of their are because “charged depressed persons molest[ation] linking studies he was aware When asked whether circumstance.” results, answered, “no.” Dr. Mitchell to “normal” test known child abusers Dr. Mitchell stated prosecutor, further Upon questioning “reliability” influencing had conducted on factors many studies been said, term, extent to which test results will That he refers to the both tes]ts. circum test under similar person again if the same takes the repeated be ' Mitchell, indicate Dr. countless studies According unspecified stances. reliably not score “under extreme stress do psychological that persons the MMPI.” Dr. could jail, the test Mitchell

Because Grafton “self-administered” testing (e.g., her environment tim- questions about prosecution not answer When asked whether others). consultation with ing possible exam him monitor test ad- “accepted required personally medical procedure” ministration, it the circum- “depends Dr. Mitchell said simply stances.” community generally

When the asked whether the scientific prosecutor Dr. Mitchell the MMPI as a valid measure of accepts psychopathology, said, “yes, by to discern the attempts all means it does.” prosecutor’s Dr. in this were inconclusive.14 knowledge regard Mitchell’s scope cross-examination, objected At one defense counsel when point during Dr. testified that Grafton having characterized Mitchell as prosecutor fit within the of a child molester.” The court overruled profile “did not characterization, saying Dr. Mitchell corrected the objection. prosecutor’s that Grafton showed no sexual devi- “possibility his actual ” added.) in her ancy personality profile. (Italics counsel, argument by further both Following redirect examination and ¡court testimony. Adopting prosecutor’s the trial excluded the proffered 14 study giving example, prosecutor if Dr. Mitchell was aware one For asked validity rating. objected been percent foundation had MMPI a 70 Defense counsel effectively responded (see (b)), Dr. Mitchell that the laid subd. but was overruled. § “outdated,” findings study only prosecutor that had recited its “out of named was not but the body “developing opinion” that MMPI results context.” Dr. Mitchell was aware of a “chronic,” “situational,” mol might opposed a as to child not disclose that an individual was examination, of, name, As Dr. aware but did not studies which ester. on direct Mitchell was However, had general molesters. he had identified certain characteristics in convicted child named, described, by knowledge prosecutor. not At one other studies but the of several objection. in point during exchange, The court defense counsel renewed his foundation this to defer concerns until redirect examination. structed counsel defense

1151 the reasoned the defense had not met its burden terminology, court that 24, Kelly, under Cal.3d a a child establishing profile 17 that community, or a generally accepted person molester the scientific who not fit actually does the has not molested children. profile immediately grounds

Grafton’s counsel the court urged to reconsider on to, rely that Dr. Mitchell refer upon, any “profile.” did not Counsel also if testify, insisted that Dr. Mitchell were allowed to he would eliminate all the falsity only reference to truth or on lack of charges focus the “sexual request. deviation.” The court denied Grafton’s

Palomo’s counsel then stated that he too to call Dr. intended Mitchell for that Palomo had tested of nor- purpose testifying range “within mal heterosexuality.” The court to grounds refused allow the exclusionary its ruling Palomo as well. applied C. Verdict Appeal noted,

As jury entered guilty verdicts Crafton against on five counts 2, 3, 9, (1, 2, 3, 24), and against (1, 25).15 Palomo four counts In a consolidated Court of appeal, the affirmed the as all Appeal judgment defendants three Justice Martin’s separate opinions. lead con- test, cluded that the proffered testimony Kelly/Frye failed the because the MMPI and MCMI were not shown have been generally accepted as measures, accurate personality administered in properly this case. Justice Martin further observed that even if lack of deviance qualified “good evidence, character” the tests were not of material type rely can reasonably make this assessment. Concurring in the Best judgment, agreed Justice dissent proffered opinion erroneously had been under Kelly/Frye. excluded How- ever, he found that a more favorable defense was reasonably verdict under probable v. Watson 46 (1956) Cal.2d P.2d 243]. Presiding Justice Franson dissented on grounds Kelly/Frye has never been applied expert opinion offered to prove mental or psychological state, citing People McDonald (1984) 37 Cal.3d 372-373 [208 Cal.Rptr. P.2d A.L.R.4th Since the cen- defense 1011]. denials,” tered on “personal dissent found that exclusion of this relevant character evidence prejudicial under the Watson standard. 15 Each represented defendant was his or her own at trial appeal. counsel and on Stoll 40-year prison 31-year

received a state term. 16-year Self received term. Grafton received 14-year term. Palomo received a term.

1152

Discussion16 and an Dr. use tests General Mitchell’s Attorney argues The Kel- to subject a new scientific technique constitutes “profile” asserted is technique failed to that this defendants have show ly/Frye. He insists that community for the psychiatric in the generally psychological accepted non- are linked to traits that offered here—to uncover personality purpose criminal acts. of the commission record reveals insist that a close of this reading

Grafton and Palomo variously Referring one trait was offered. testimony only narrow desires, deviance, homosexuality, incestuous ¡lack pedo- trait as sexual always has as its existence argue expert opinion defendants philia, admissible, that a defendant to show Kelly/Frye, without reference to been discuss, As we will likely commit criminal sexual misconduct. is not and facts. a more accurate law provide picture defendants outset, char claim that the relevant At the defendants’ Jones, v. In 1102.) People must be sustained. (§§ acter evidence 219, 222, in the of expert found error exclusion prejudicial 42 Cal.2d we where offered “not a sexual deviate” that defendant is opinion, acts a child. Jones he did not commit lewd and lascivious prove that and Institutions Code sections now-repealed that certain Welfare noted Penal Code section connection between conviction under logical assumed a (42 psychopath.” as “sexual diagnosis 288 and subsequent psychiatric is also reason Jones concluded that the inference 224.) opposite Cal.2d at p. able, has that defendant i.e„ of such a tends to “disposition” prove absence committed 224-225.) the crime. at pp. {Id. I, (section (d), of California Constitution 16We that article section subdivision note states, alia, proceed 28(d)) shall not be excluded in criminal inter that “relevant evidence Code, . . . . ing,” “[n]othing in this affect . . Evidence but' that section shall Section[ ] statutory res 28(d) repeal judicially created and rules 1103.” was intended to “both Section tricting except expressly . cases . . insofar as of relevant evidence criminal [it] admission Cal.Rptr. 767 preserves . 1082 (People them . . .” Harris Cal.3d dictum, stated, added.) 28(d)’s reference to Evidence 619], P.2d italics Harris that section restricting evidence of (permitting and admission of certain character Code section victim) “by preserved" (restricting char implication have the rule in section crime 1081.) (47 p. prove disposition). Cal.3d at acter evidence rule, pertinent Ev 28(d) Kelly/Frye or the affected the We need not decide whether section 210, 801, 1102.) 28(d) this (§§ on the outcome of Section has effect idence Code sections because, testimony proffered here type professional opinion, in the case discussed parties have assumed always and lower courts has been admissible under these authorities. 28(d). of section prior these remain intact in the wake th rules

1153 Section 1102 an accused present expert opinion allows sex charged this kind to indicate his commit a offense.17 nondisposition Jones, 1965, v. 42 supra, This section was enacted Cal.2d People after 299, 219, 1965, 2, (Stats. ch. the p. 1336.) accompanying decided. As § clear, statute Law Revision Commission comment makes the codified opinion “good Jones's rule introduction of defense permitting Ann. of charged (29B character” to show noncommission crimes. West’s 1102, 12-13; Evid. Code Ann. Evid. Code (1966 ed.) Deering’s (1986 pp. § 1102, ed.) 293-295.) thus endorsed “lack of pp. Legislature implicitly § in a deviance” as a relevant character trait lewd and lascivious conduct case, even cited in “sexual Jones were though psychopathy” provisions same, years. e.g., overhauled as well as former Welf. & prior, (See, Code, 1963, 5, 5501, 1913, 3907, Inst. by amended Stats. ch. p. repealed § § 391, 3, 1965, 1965, 1630, 391, 5, by Stats. replaced by ch. Stats. ch. p. p. § § 1643 [mentally (MDSO) disordered sex offender later revised provisions; and repealed].)18 record,

Contrary Attorney to the Dr. reading General’s of this Mitchell indicated that no entered into his psychological “profile” diagnosis. (See p. 1161, 22, Rather, Jones, fn. much as in v. post.) People Cal.2d the proffered was that opinion (and Grafton presumably Palomo) displays function,” “normal personality and shows no of deviancy.” “indications Dr. Mitchell’s on “low emphasis aggressive indication antisocial or behav- ior” that Grafton is implied “unlikely” to commit acts or serious crime. This link between personality by behavior buttressed Dr. Mitchell’s suggestion that such diagnoses routinely are used in many contexts to determine whether troublesome has behavior occurred in the past may occur in the future. The trier of fact is free decide the weight, However, any, to afford this opinion. we cannot as a matter say of law if that it has no logical bearing the defense case.

We also with agree defendants evidence proffered satisfies limits by placed section (a), subdivision on all expert opinion testimo- 17 action, Section provides: “In a criminal evidence of the defendant’s character or a trait of his opinion character in the form of an reputation evidence of his is not made inad by missible if (a) by Section 1101 such evidence prove is: Offered defendant his con [¶] [¶] conformity duct such character!;] (b) character or prosecu trait Offered Jefferson, tion to rebut (a).” (See evidence adduced under defendant subdivision also 2 33.1, 33.4, 1174-1175, (2d 1982) Cal. Evidence pp. 1180-1188.) Benchbook ed. §§ People 18In v. John W. 185 Cal.App.3d Cal.Rptr. 783], 806-808 the court suggested repeal of the sexual psychopathy and MDSO schemes undercut Jones, supra, 42 Cal.2d insofar as expert opinion Jones authorizes admission defense However, on lack of deviance. the John W. court overlooked codification character evi dence rule in section 1102. To the W. extent John is inconsistent with our on this point, disapproved. it is subject be to a that such

ny. requires That subdivision “[r]elated an expert that sufficiently beyond experience opinion is common We have this (Italics added.) interpreted assist the trier of fact.” would “only it would add when language expert opinion exclusion require . v. (People . . .” pt all common fund of information nothing jury’s to the McDonald, Here, 367, testimony by added.) 37 at italics Cal.3d supra, p. Palomo in homosexual or incestu- Victims Grafton and alleged implicated children, in at least one adult-child including participation ous acts with not have been aware encounter. Since the could otherwise jury sex group misconduct, Dr. Mitchell’s testi- inconsistent with such traits personality mony jury point. to “assist” the on a potential pertinent l^ad 801, not subdivi testimony also does offend section proffered based, in standardized written (b)i part, upon sion because it was simply that ex requires interviews. This subdivision patient tests and personality testimony (including knowledge, expe be on matter” opinion pert “[b]ased rience, to the by or known witness education) personally and “perceived admissible, hearing, to him at or before the whether not made known by an reasonably upon forming is a be relied type relates,” his as other subject except to which opinion upon (Italics added.) wise law.” “precluded for an into journey

No rules dictate the basis precise legal proper expert’s effect, however, his In mind to make about behavior. judgments patient’s qualified rely California courts have deferred to decision expert’s reach an opinion tests such as MMPI to psychological “standardized” v. Coleman (See People state at the time acts were committed. on mental 69, 102, 38 78-81 695 P.2d (1985) Cal.Rptr. Cal.3d 189] [211 [MMPI 1, 233, 26 248 Test]; (1980) Cal.Rptr. Rorschafch v. Cruz Cal.3d People [162 v. 71 Cal.2d tests”]; People Coogler (1969) 605 P.2d 830] [“standard Test]; People 165 454 P.2d and Rorschach Cal.Rptr. [MMPI [77 686] [MMPI]; 112 v. Nicholas 275 (1980) Cal.App.3d Cal.Rptr. [169 497] 356, 360 Cal.Rptr. 90 People Phillips (1979) Cal.App.3d 359] [153 v. Cox 82 tests]; (1978) v. achievement/intelligence People [MMPI 221, 223 v. [MMPI]; Humphrey Cal.App.3d Cal.Rptr. People [147 73] Such deference [MMPI].) Cal.App.3d Cal.Rptr. 74] Indeed, qualified no less here. voir dire indicated appropriate MMPI and MCMI as a routinely use raw material from the professionals behavioral conclusions assessing personality, drawing basis for therefrom.19 19 case, attempted Grafton’s During prosecutor in this to discern whether voir dire “accepted procedure.” Since Dr. followed medical “self-administration” two tests exists, “procedure” whether we cannot determine whether

Mitchell never indicated set professionally “unreasonable” this factor alone made his reliance on Grafton’s test results end, obser Dr. Mitchell entitled to base his To the same of, a routine by, during psychologi vations and statements made the patient Cruz, 248; v. Santa 26 Cal. 3d at (SeePeople supra, p. cal interview. course, may be cross-

Coogler, 164.) any expert 71 Cal.2d at Of supra, p. reasoning underlying opinion. examined at trial as to the material and into evidence does subd. Admission of (§721, (a).) expert opinion conclusions “rejecting] expert’s the trier of fact from preclude [they] (Coog of doubt to the material were based.” because ler, 166.) p. Attorney

The General that even if the argues proffered authorities, satisfies the it also must meet California’s version of foregoing Frye, (hereafter Frye test), the rule first announced in 293 Fed. 1013 supra, admissibility (Kelly, for the of “new scientific technique[s].” supra, 24, Cal.3d We 30.) disagree. rule, Kelly/Frye by

The hallmark of the and the point emphasized here, establish, General Attorney “usually by is that the must proponent “ expert testimony,” ‘sufficiently that the is established to have technique ” gained general in the field in which acceptance particular belongs.’ it 30, 1014, (Kelly, 17 Cal.3d at at supra, p. quoting Frye, 293 Fed. supra, p. italics omitted.) proponent also must establish that “the witness fur such nishing testimony” is an “properly qualified expert give as [such] (17 at opinion.” Cal.3d italics The third and final p. omitted.) require ment, here, Attorney which the General also suggests was not met is for the to show that proponent “correct scientific were used in the procedures case.” particular (Ibid.) clear,

While the by standards imposed Kelly/Frye rule are definition of a “new scientific Kelly, is not. In 17Cal.3d at technique” supra, 29-30, pages did example, parties Frye that the test dispute to an applied identification in which an process analyst expert compares voices, or “voiceprints,” of human a graphs produced “spectrograph” machine. Because the inventions and discoveries which could be considered virtually “scientific” have become in years Frye limitless the near-70 since decided, was application of its has often been determined refer- principle i.e., ence to its narrow “common jury sense” from purpose, protect (b). Assuming under section problem subdivision such a foundational could be estab- this, shall, “may, upon objection [opinion] lished in a case such as the trial court exclude testimony” significant part” “improper” (§ is based “in whole or in matter. ital- Where, however, added.) ics the trial opinion court determines as a matter of law that the is matter, sufficiently supported by appropriate other the witness be allowed to “state his excluding (Ibid.; improper.” after from consideration the matter determined to be see Jefferson, Benchbook, 29.5, 1027-1029.) also 2 supra, pp. Cal. Evidence § “ ” which, “new,” novel, convey or techniques though ‘experimental,’ “ ” 30-32, omit certainty.’ citation (Kelly, supra, pp. aura ‘misleading McDonald, 372-373.) ted; supra, pp. 37 Cal.3d at also see, First, Kelly/Frye themes. This has two discernible produced approach based, limited class of which only applies theory is new to science on a or technique, process, whole part, and, so, willing forego evén the law. The courts are admission more certain scien- reasonably pertinent such until techniques completely or of dubious validi- community tific views them longer experimental that there recognition Thisi full ty. all-or-nothing approach adopted “ ” be scientific advances and their ad- lag’ would ‘considerable between at p. in a court Cal.3d {Kelly, mission as evidence proceeding. omitted.) citation' Kelly/Frye unproven is that the applying

The second theme cases description provide in both name and technique procedure appears only accurately recognize some definitive truth which the need expert are relay jury. procedures to the The most obvious machines or examples Lay easily, erroneously, data. but analyze physical might which minds and infallible. v. procedures objective (See e.g., People assume that such are 83, 749, 46 Coleman Cal.3d 774-775 759 P.2d (1988) Cal.Rptr. 1260] [251 blood]; of of testing presence People method presumptive [“hemostick” 637, v. Brown 40 528-535 P.2d Cal.3d 709 Cal.Rptr. 440] [220 body identify donor]; of fluid and blood stains to see [electrophoretic testing v. 31 Cal.3d 51-52 Shirley (1982) Cal.Rptr. also People [181 the test [listing Frye P.2d cases which have to applied polygraph 1354] examinations, serum,” marks, and mi testing, “truth Nalline human bite croscopic gunshot particles].) identification of residue to

Kelly/Frye tangible procedures also has been less new applied In v. carry certainty. Shirley, supra, undeserved aura of equally People to, Kelly/Frye Cal. 3d at the rule and barred admission applied we page of, testimony rejected a We rape explicitly of “post-hypnotic” complainant. Attorney Kelly/Frye the General’s claim in that case that the rule was 52.) limited evidence.” at We techniques analyzing “physical (Id. p. to that, its nothing noted the rule’s given prophylactic purpose, precludes to “a new scientific application process operating purely psychological majori As in Justice Mosk’s (Id. p. 53.) thoroughly evidence.” at explained in the ten ty hypnotically refreshed lies opinion, danger dency “actively pseudo- to to the formation process contribute[] memories, veracity, inability belief in their and to the abiding witness’ (or anyone else) (Id. p. of the witness between two.” distinguish 53.) blindsides the effectively

However, feature which special absent some distinction This subject Kelly/Frye. testimony is not jury, opinion expert McDonald, in decision in our unanimous recently confirmed in the exclusion error found prejudicial 351. There we 37 Cal.3d the ac undermining factors testimony on the psychological expert defense a Kel any need for In dispensing eyewitness identification. curacy a witness case, Mosk noted in that Justice ly/Frye showing “[w]hen an expert— if he qualifies stand—even on the gives personal healthy testimony with a of his their acceptance jurors temper . . . fallible. are beings that all human knowledge of their born skepticism testi medical Kelly/Frye rule . . never applied . We have [¶] is as subject matter psychiatrist the witness is mony, even when mind or the prediction state of reconstitution of past esoteric as the form of mental of an unusual diagnosis or even the future dangerousness, Psychiatric American manual of the diagnostic illness not listed 69, 86-87 122 Cal.App.3d v. Phillips (1981) Association (People (McDonald, supra, syndrome by (‘Munchausen’s proxy’)).” Cal.Rptr. 703] 372-373.) at pp. 37 Cal.3d none of the con here raises proffered

The psychological are new by Kelly/Frye. employed addressed methods cerns law, of scientific they carry misleading aura or the psychology infallibility. analo- routinely expert opinion courts have admitted defense

California here, In Kelly/Frye suggestion applies. to one offered with no gous cases, was admit- personality these of defendant’s expert some of in certain acts likely was not to commit ted to defendant prove 306, 312 14 Cal.3d (1975) v. Burnick (See, e.g., People future. [121 488, defendant is not “homo- 535 P.2d Cal.Rptr. proceeding: 352] [MDSO “ immature,” and “highly ‘predo- sexual” or but is “pedophilic” depressed, 1205, v. Monroe 168 minately ”]; (1985) Cal.App.3d heterosexual’ People as sex challenge registration 1214 Cal.Rptr. [proceeding [215 51] “ “ ” ‘sexual[ly] ”].) deviant’ ‘dangerous’ offender: defendant is not or cases, evidence In introduced as circumstantial other intent or mental defendant not harbor the criminal requisite that the did v. Robbins (See, e.g., People at the time he committed the act. charged state 867, 172, [guilt 755 P.2d Cal.Rptr. 45 Cal.3d 874 (1988) 355] [248 “ ” of “pedophilia” ‘primary diagnosis’ trial: defendant with phase/capital victim during molestation unintentionally murdered uncooperative 635, 44 641 v. Hendricks Cal.3d (1988) “unthinking rage”]; People [244 181, mur- trial: defendant P.2d [penalty phase/capital 749 Cal.Rptr. 836] “ 38 Cal.3d (1985) v. Memro ”]; People in fit of ‘homosexual rage’ dered 1158 832,

658, trial: de [guilt 700 P.2d phase/capital 693 Cal.Rptr. 446] [214 from a syndrome” brain but suffers organic or “psychosis fendant has i.e., disorder,” who he is a “homosexual pedophile” personality “severe v. Rosenkrantz 198 “rage”]; People a “fit” or during murdered 1187, murder trial: de Cal.Rptr. [noncapital Cal.App.3d 403] “adjustment severe disorder with obscured reasoning process fendant’s reactions, feature,” “Egodystonic certain “stress” mixed embtional and/or Code, by Stats. ch. Pen. as added homosexuality”]; but see § 3, p. 5030.) § testified,

Moreover, personality Dr. use written diagnostic as Mitchell for decades. MMPI and MCMI has been established inventories such as the noted, already tests. As have resisted reference to these Modern courts has range diagnoses impressive psychiatric defense expert opinion made Kelly/Frye the expert reference to where been admitted without relied, (See, MMPI tests. analogous on the part, known at trial that he Coleman, subject v. 38 Cal.3d at e.g., “ supra, p. People [defendant ” “ distor- involving gross ‘psychotic decompensation,’ *break-down[s] “ ” world, v. ”]; mood’ behaving, with the ‘interacting tion’ [and] schizophre- is a “borderline Coogler, 71 Cal.2d supra, p. [defendant become psychotic”].) nic” who “under stress I discussed, As from this settled depart approach. We see no reason i evidence, including to use character criminal defendants are authorized added.) italics conformity.” (§ “conduct in expert opinion, prove is offered as circumstantial where lack of deviance applies This principle unlikely have committed acts of a defendant is evidence that Jones, 224-225.) 42 Cal.2d at pp. (People molestation. claim, MCMI reliance on the MMPI and

Contrary expert to the dissent’s “revolutionary” development. (Dis. opn., is not a purpose for this particular concedes, tests personality previ- As the dissent standardized post, p. 1167.) that an admitted to show ously forming been used have, state at time the alleged harbor the “mental requisite accused did not Here, added.) italics de- committed.” (Dis. opn., post, p. acts were did not com- they suggest fendants offered similar expert case, the testimo- In either the fundamental of purpose mit the act. requisite crimes. guilt a reasonable doubt as to ny is the same—to raise conditioning application or basis for legal logical The dissent offers no seeks “to theory by which the accused Kelly/Frye' rule upon particular p. (Dis. opn., post, from the relevant class of offenders.” exclude [himself] the MMPI be anomalous to view omitted.) italics It would original at this late date. technique and similar tests as a “new”

1159 an expert’s mistake juror would that no reasonable are persuaded We also “truth” on issues infallible as a source of tests reliance on standardized Here, Mitch- Dr. example, for guilt. or criminal predisposition, personality, diagnosing in accurate essentially 70 percent the MMPI was ell stated that the witness Although to others. invalid” as but “completely some patients, methods, instance in which one he recounted faith in his own expressed Thus, the MMPI. had tested “normal” child sex offender “admitted” scales,” were test results—which “validity testimony regarding despite “foolproof.” made to appear actually described below—were never 1168.) p. (Dis. opn., post, obviously a are springboard the MMPI and MCMI

More importantly, this pro- That process. and subjective diagnostic a far more normative for art, exact “science” the purported rather than cess is a learned professional concerned, the witness’s illustrated is well Kelly/Frye is with which heavily that he relied Dr. Mitchell left no doubt testimony here. guarded interviews, forming history, and past experience case upon patient educated, debatable, but opinion. validity lines, reliability and that issues of test these we reiterate

Along 721, subd. (See at trial. on cross-examination may thoroughly explored be § call, rebuttal, expert compara- another also (a).) prosecution v. (See, e.g., People methods. defense challenge expert ble background Rosenkrantz, acknowl- Even the dissent 1199.) 198 at supra, Cal.App.3d p. was expert the defendant’s the test-based cases which edges evidence, expert. the prosecution’s into and then rebutted admitted Cruz, Coleman, 78-81; v. supra, at pp. People Cal.3d (People supra, find no we Contrary suggestion, to the dissent’s 247-248.)20 Cal.3d at pp. evidence similar defense in which an to introduce attempt California case rebuffed.21 expert allowing present rebuttable test-based concerned that the defense to 20The dissent is tangential time-consuming “mini-trials” in criminal will lead to character evidence cases seen, However, 1169.) such de guilt (Dis. opn., post, p. as we have innocence. the issue of Moreover, guilt the dis long pertinent or innocence. fense evidence has been admissible as subject Kelly/Frye will personality tests be proposal that foundational standardized sent’s concedes, like the even if tests problem it foresees. As the dissent not solve the “mini-trial” Kelly/Frye scrutiny, experts still be defense would unable to survive MMPI and MCMI were foundations, and diagnostic opinions on other “reasonable” their insofar as based free to state course, case, opportunity pertinent rebuttal. In prosecution would still have the competing experts, or to exclude limit the number of trial has broad discretion to court (§ 352.) confusing expert altogether. cumulative 21 W, pages Cal.App.3d suggests the court in v. John The dissent 803-806, relied expert opinion grounds that the upheld of defense exclusion Kelly/Frye. MMPI, technique under procedure is a “new” and “unreliable” and that this Rather, components of the 1168.) were three (See post, p. Such is not the case. there opa., dis. interview; (1) (2) administration psychologist’s the defendant in John W.: examination of testimony the proffered The General insists that Attorney nonetheless Bledsoe, However, 236. that Cal.3d inadmissible under not controlling. case is in which the victim and defendant

Bledsoe involved a rape prosecution In case testimony the of consent. the prosecution’s issue gave conflicting in-chief, that, the testified in her expert opinion, the victim’s counselor rape syndrome.” at (36 pp. trauma Cal.3d suffering “rape victim had been from “ an ‘acute reaction concept counselor the as stress 243-244.) The described phases it three encom the of killed’ often being progressed throat fear, as acting masked feelings, varied behavior as agitation, such passing others, depression. and looking has normal though nothing happened, (Id. objected grounds. at Defendant at trial “relevance” 242-243.) pp. debated whether the evidence satisfied at On the (Id. p. 241.) appeal, parties test, that such test was the Kelly /Frye appropriate the with one disputing 7.) id. 245-247 & fn. standard. at pp. (See Bledsoe, trial In evidence at had established we first noted that other victim, attack, immediately the emotional displayed

the promptly reported of We therefore inferred that signs injury. and bore bruises other upset, testimony purpose explaining was not offered for the limited the expert’s lay jury might which a delayed conduct post-rape (e.g., reporting) our as with a forcible claim. Under view rape otherwise view inconsistent facts, it to this describing syndrome applying had, fact, oc- legal “a in the sense rape victim was used prove added.) curred.” Cal.3d at italics (36 p. was concluded that the counselor’s

Bledsoe understandably A careful of Bledsoe reveals erroneously reading admitted for this purpose. (1) our concern was the irrelevance the evidence: logical primary by which to solely nonjudgmental as a means “syndrome” designed since (2) and treat” the victim’s emotional “identify, predict problems; account, syndrome is an rarely question counselors! the victim’s factual MMPI; physiological of “an electronic test known two administrations (185 Cal.App.3d 804.) psychologist explained The the lat penile plethysmograph.” p. at any changes penis” in the test a “device that fits over the man’s and “measures ter consists of of, pictures and listens to audio penis, to the erection” while the man views blood flow describing, activity psychologist in noted tapes adults and children. The John W. sexual defendant, had percent male sex offenders to whom test that the like 20 convicted administered, (Id. 805.) psychologist “nonresponsive” category. p. at in the been tested that, defendant, opinion, been moles in his who had with child offered to testify tation, 804.) concluding (Id. p. properly that the trial court “was not a sexual deviant.” In Kelly/Frye grounds, Appeal made opinion on the Court in John W. excluded the expert’s only “penile” psychologist physical test. It observed that the referring it was to the clear that deviancy, helpful he personally not MMPI was a indicator of sexual and that did believe the (See rely forming opinion. pp. 804-805.) it in id. at therefore did (i.e., consent legal issue of deciding of the intricate means inappropriate that the victim faith believed reasonably, good and in the defendant whether is not); syndrome the (3) that she did good her consented despite belief faith vic- limited to of trauma” not by range a “broad emotional characterized feelings is not of the victim’s a assessment tims of and counselor’s rape; namely de- third the party, of whether a necessarily an accurate measure 249-250, & fn. fendant, Cal.3d at manner. (36 pp. acted in legally culpable 12.) Frye the applying

Bledsoe a handful out-of-state cases acknowledged syndrome” juries might that grounds test to evidence of trauma “rape had occurred. as “scientific” a proof rape view this therapeutic diagnosis However, that the Kel- Bledsoe did not hold (See p. 248.) Cal.3d case, we discuss the to in that nor did ly/Frye opinion test applied expert “syndrome” evidence psychological test’s or other relationship con- Assuming, simply like that the test did we general.22 apply, the parties, not trauma prove rape cluded that the would be able prosecution community to by counseling syndrome generally prove accepted criminal guilt. here, not Kelly/Frye

Faced we did question are persuaded testimony. Mitchell’s proffered Expert opinion admission Dr. preclude show no or sexual circum- psychological problem defendants obvious they stantial evidence which committed sexual acts upon bears whether children, and is evidence on their behalf. admissible “character” upon based meet traditional and the matter which it is also need additional competent standards for without screen- expert opinion, new, novel, ing “scientific” evi- procedures applicable experimental court erred in dence in court. We conclude the trial previously accepted Grafton using Kelly/Frye by and proffered exclude Palomo.

Moreover, in this No evi prejudicial physical error was case. any five Grafton against dence corroborated witnesses who testified Bledsoe, that, “syn Attorney argues under 36 Cal.3d use of 22The General diagnosis “profile” terminology professional mental seem drome” health makes jury, Kelly/Frye. adopted per rule “scientific” and We no such se in Bled thus invokes soe, despite persuaded its reference to concerns raised out-of-state cases. We are not “profiles” juries evaluating presented psychological incapable properly are references to event, “syndromes.” any Attorney proffered opinion. In misconstrues the and General acknowledged “general trends com Dr. Mitchell that studies disclose and characteristics” triggered (e.g., typically as certain scales are mon to convicted child molesters insofar test However, at trial “psychopathic “depression”). as noted defendants deviant” studies, “profile” these nor appeal, all-encompassing Dr. Mitchell did not extract from discussed, rely As on the absence of “indi did he on them here. we have focused deviancy” test inter personalities, interpretation based on an cations defendants’ view results. A., J., boys D.) and stated that (Victor, Palomo. four of these Although and at separate at Stoll’s house on least two nude were taken photographs occasion^, an search conducted during no were discovered official photos child, J., No medical examina- several hours after the first interviewed. he been J. that had though investigators tions were even told requested, recently two before the interview. sodomized as as weeks course, the pertinent nonvictim accounts of Of there were no direct testimony M. her insofar as charged events. Mrs. corroborated son Victor’s of which she witnessed— upsetting he claimed two events—neither ¡while On the other he was with Center Street friends. occurred playing Rochelle, hand, mother, to Grafton’s testimony by Chris’s lent support alibi defense. partial unequivocal eyewitness

It is least gave true one child-witness count under respective account of and Palomo’s roles each Grafton’s 9, 2, 3, in counts (counts 25). group charged As to the event review and several the that all defendants through four witnesses confirmed house; together agreed at Stoll’s two witnesses children naked were had committed “touching” against sexual of an nature been unspecified day. third child that

Nevertheless, key in several these same four children contradict respects, A., and D. was each of the same event. Unlike Chris ed other’s account The other committed sex acts him or child. adamant that adult witness, J., on that occa sexually not remember been abused having could Also, sion, contrary. Chris recalled testimony Chris’s and A’s despite children as disagreed no nude while the three other picture-taking, identity the alleged photographer.

Further, credibility of each attack on thorough defense mounted Grafton and Palomo against witness. Four of the children who testified A., J., they preliminary had “lied” at the (Chris, D.) admitted testimony J. their contained Chris and further conceded that trial hearing. children, as as the at least one untruth. Pretrial statements of these four well of, Victor, fifth contradicted their trial to the type child Finally, investiga here. the sex crimes at issue surrounding, circumstances J., A., de D. sexual contact with tors directed to discuss specifically fendants, J.’s accusa Both A. and D. were told about including Grafton. they investigators’ questions. tions before answered swayed by jury might In well have been light foregoing, of per- nor Palomo was the “type that neither Grafton romantically claimed to be son” to commit the acts. charged pair the other two than far fewer crimes involved, were to Grafton’s lent credence have testimony would Dr. Mitchell’s defendants. reasonably it consider We therefore guilt. denials of personal and Palomo’s testimony affected of the proffered exclusion that erroneous probable Watson, 836.) 46 Cal.2d (People judgment. Grafton and defendants against the convictions as it upholds

Insofar reversed. Palomo, is Appeal of the Court judgment the J., Kennard, Panelli, J., Mosk, J., Broussard, J., concurred. the standardized As will

LUCAS, appear, dissent. respectfully C. J.I here, in the manner proposed if used function” tests at issue “personality case, indistinguishable respects are in all essential in this the two defendants aimed at proving, scientific tests or other polygraph, voiceprint from reason, the tests must meet these standardized For that guilt. disproving, admissibility. for Kelly/Frye standard usual admissibility tending evidence opinion the readily acknowledge

I unlikely makes it or trait of character that the defendant’s character show Code, Evid. subd. a offense. charged (See he or she committed that § 219, 222 P.2d 42 Cal.2d (1954) Jones (a); People 38] [defendant [266 I also that such deviants].) recognize sex usual characteristics of lacked Code, Evid. (see in the form of may be presented evidence admissibility stan- Kelly/Frye not to the ordinarily subject which is 801), § 351, 372-373 37 Cal.3d v. McDonald (see People dards 1011]). 46 A.L.R.4th 690 P.2d Cal.Rptr. to the a simple expert opinion

But the case involves more than present character heterosexual whose effect that defendant Grafton was “normal” Instead, Mitchell, Dr. defendant’s deviation. lacked the for sexual potential normality based his testify largely that he prepared expert, tests, defendant in her self-administered to on certain standardized written cell, subject’s “general possibilities measured the jail supposedly Mitchell, to Dr. According function.” abnormality in psychological test, Personality Inventory (MMPI), Minnesota Multiphasic primary “validity scales” had several built-in questions, written consisting the exam. taking accuracy person and detect lies to assure designed virtually it the test makes many that believe experts Dr. Mitchell observed abnormal personality profile. to conceal an impossible in her cell for defendant interviewing After the test results reviewing hours, that she had a to state his opinion Dr. Mitchell was prepared two function,” in this matter.” He falsely charged and “is “normal personality has not by opining probably latter defendant response qualified kind,” unlikely “it deviancy in the sexual “engaged past Dr. Mitchell testified . in” the offenses. . . she be involved would mea- MMPI as valid community accepts the generally the scientific But, prosecutor’s majority explains, as the psychopathology. sure of knowledge Dr. in this were regard learn the of Mitchell’s attempts scope ante, at (Maj. 1150.) opn., p. “inconclusive.” cross-examination, Dr. developed following: prosecutor

On child abusers have identify indicating no studies whether Mitchell could ex- subject tests. He that some “normal” conceded registered ever abusers, i.e., identify “situational” child may believe the MMPI perts chronic, stress, long-term rather than reacting those offenders situational Indeed, ex- under persons acting Dr. Mitchell acknowledged abusers. test. He also reliably not score treme embtional stress ¡that reliability on the circum- depends the of these tests although confirmed administered, anyone neither he nor else was they under which are stances in cell. by jail the defendant Grafton her completed when tests were present any validity subject the of the Dr. Mitchell was unable to cite studies on or He to with either child abuse incest. tests individuals applied regis- an admitted child molester had on one occasion acknowledged given. on MMPI test he had tered “normal” an record, court, reasonably this hold that the trial without might On we discretion, unduly prejudi- could have excluded evidence as abusing its 352, or that in event no to the under Evidence Code section People cial my I defendant could have resulted from its exclusion. confine prejudice to remarks, view, however, In the con- dissenting Kelly/Frye my to the issue. cross-examination of Dr. Mitchell cessions and omissions disclosed through were subject to the court’s that the tests ruling lend substantial force trial they Kelly/Frye general because failed to meet the standard of inadmissible community. scientific acceptance (in testimony Kelly/Frye grounds on

The trial court excluded the proffered on Dr. failed show standardized test which because the defense to community. I would accepted Mitchell relied was in the scientific generally ruling. affirm that to the initially testimony subject overriding require-

I note expert law, evidence is reliability. of reasonable Under present expert opinion ment to known perceived by personally limited based matter or opinions may relied an reasonably expert “that is of a be type witness Code, 801, .” . . . subd. The court is forming (Evid. (b).) an opinion §

1165 witness, concerning the matter testifying, prior to examine the entitled testimony (id., exclude 802), opinion is based opinion § 803). (id., an opinion” not a basis such on matter “that is proper § based I, view, 8 article (adding is unaffected my Kelly/Frye Proposition In 28, “Truth-in- I doubt this Constitution). to the (d) subdivision state section tradi- courts of their was intended to the trial provision deprive Evidence” By its testimony. expert unreliable scientific or tional to exclude power evidence, terms, failing and evidence is limited to “relevant” provision be deemed irrele- reliability reasonably could Kelly/Frye's to meet standard it was I also that the recites that provision vant to the issues. note hearsay, rule of any existing statutory relating to affect evidence intended majority acknowledges, 352 1103. As the Evidence sections or or Code character preserve general indicate an intent exceptions these v. Harris 47 Cal.3d evidence restrictions. (See People 619].) 767 P.2d Cal.Rptr. [255 reliabili- merely test is “reasonable Kelly/Frye application or inno- establishing standard “scientific” methods of ty” guilt to purported Contrary majority’s nothing cence. to the our implication, opinions McDonald, v. Kelly (1976) 37 Cal.3d People flatly 1240], Cal.3d 24 P.2d Cal.Rptr. exempt would here, kind large where such rests in involved test, the results or of a scientific part readings process procedure. we that Kelly, In identification observed involving voiceprint procedures, testimony a new tech- admissibility expert of based on scientific generally, reliability whereby (1) expert involves a the of the nique two-step process established, are the is (2) properly qualified witness’s methods witness subject. Kelly an Cal.3d at opinion (17 30.) as an to state on the expert p. from v. United reliability Frye the of the itself adopted technique test 1014 34 A.L.R. (D.C. States Cir. 293 Fed. 1923) App.D.C. [54 The “must be have sufficiently gained general established to technique 145]: in in which belongs.” the field it acceptance particular Kelly noted the standard is foregoing “general particu- that acceptance” evidence, to larly experts, apt when the scientific is appropriate presented considerable, undue, lay weight by jurors be given perhaps impressed may such evidence mystic infallibility” frequently the of which “posture 31-32, an held that (17 case.) Kelly Cal.3d at earlier present. pp. quoting that satisfactorily neither case law nor scientific articles established been in the scientific communi- accepted had voiceprint technique generally ty.

1166 McDonald, erred in excluding

In we held that trial court simply that undermine testimony might on the factors expert psychological defense Kelly/Frye We accuracy apply identifications. declined eyewitness of testimony, this has never been expert noting applied to such that standard that in McDonald we distin Significantly, kind. expert can expert (where jurors between guished general their of the “healthy proffered employ skepticism” temper acceptance “machine,” by a but presented produced evidence opinion) mechanism, i.e., (where “an ‘scientific’ instrument or apparently procedure'" that evidence well con infallibility may the “aura often surrounds such tentative”). (37 pp. ceal the fact it remains Cal.3d that experimental 372-373, course, Shirley in v. People Of as we made clear added.) italics 1354], 723 is not Kelly/Frye P.2d (1982) Cal.Rptr. Cal.3d [181 manipulation physi limited to “machines” or that involve the techniques Testimony cal a new scientific process “operating evidence: based on (Id. subject evidence” be test. Kelly/Frye would purely psychological 53.) at p. Cal.Rptr.

Close on Bledsoe 36 Cal.3d point 450, 681 291], admitting “rape F.2d in which found error in evidence of we that A careful trauma to assist in a occurred. syndrome” proving rape reveals, herein, contrary majority’s case to the reading interpretation a new strong syndrome constituted implication diagnosis satisfy Kelly/Frye scientific test. As we held technique must Bledsoe, not even to claim that the “Because the literature does purport occurred, means that a syndrome scientifically is a reliable proving rape be used in a criminal we conclude that it for that properly purpose are diagnostic trial.” italics tests at issue here added.) at p. (Id.j Indeed, view, essentially my Kelly/Frye the need for indistinguishable. Bledsoe, more than for unlike trauma compliance rape is even compelling evidence, results here syndrome proffered function” test “personality occurred, but merely prove were offered not crime to prove words, could not committed it. In other the essen defendant Grafton have the issues of tial thrust of the “character” evidence was directed to crucial guilt or innocence. Kelly/Frye the to the majority application

The nonetheless disputes for Dr. Mitchell’s testimony. standardized tests that formed the basis are not new to majority employed observes that methods psychology “[t]he law, they carry infallibility.” or the aura of scientific misleading at I (Ante, p. 1157.) disagree on both counts.

First, in a new of these standardized tests is indeed my view application I acknowledge involved As indicated that California here. previously,

1167 mental aof defendant’s subject on the have allowed courts he could the likelihood state, indicating evidence character including Moreover, that some I realize offenses. have committed tests, similar standardized based on expert opinion courts have admitted a defendant’s here, diagnosis a psychiatric to form administered those (See maj. opn., committed. acts were alleged at the time the mental state tests to formulate 1154, But such ante, cited.) using and cases at p. than is far different mental state of the defendant’s diagnosis psychiatric in much the relevant class them to exclude using of offenders defendant from test or voiceprint. manner as a blood the same as in clinical practice are used that these tests

Dr. Mitchell indicated com- tools, they are he did not suggest but and treatment diagnostic exclude, identify, person- deviant monly used in criminal proceedings herein, Court of Appeal majority opinion alities. As stated in the reliability general acceptance . . “Dr. Mitchell. failed to establish [of A be it test belongs. field to which in the testing particular issue] fact accepting recognizing utilized as a tool or a while widely guide certainty.” lacks the desired the procedure no cases exist which argument, counsel at oral

As conceded defense as test revolutionary procedures of standardized application sanction such a from that all three of the cases in case. I think it ironic this attempted reliance on standard- majority supporting court cited herein as our here, tests, refer- contained such as the MMPI involved ized psychological In the value of such tests. regarding People ences to doubts or concerns 790, 153, in 686], 454 P.2d 71 Cal.2d 166-167 Coogler (1969) Cal.Rptr. [77 the defendant’s show- no evidence to rebut prosecution produced which MMPI), we observed (based diminished on the ing capacity part because of conclusions jury reject expert’s “a could properly [defense] In based.” these conclusions were doubt as to the material 830], 605 P.2d Cal.Rptr. v. Cruz Cal.3d People (1980) [162 trial at the defendant’s testifying noted that one of the psychiatrists we he not use jury why psychological to the did “explained [standardized] ” believed, reliable. they were not years He based on of experience, tests: 38 Cal.3d v. Coleman added.) And (Italics 189], testifying psychiatrist out that pointed 695 P.2d we Cal.Rptr. . . . Minnesota as the tests such psychological “characterized the use reliability and Inventory lacking inappropriate Personality Multiphasic a certain an accused forming possessed use in an whether opinion for v. John added; see also (Italics at some time in the past.” mental state testi- [expert 804-805 Cal.Rptr. 185 (1986) Cal.App.3d W. 783] [229 sexuality].) MMPI in deviant mony utility detecting of doubting 1168 herein, of the cases

Contrary foregoing to none majority’s implication were MMPI or similar standardized tests psychological indicated that the involved community, attempts and none the scientific generally accepted of through guise factual innocence to the defendant’s prove Indeed, I have found in which such only evidence. case “character” excluding the evi- ruling made in an affirmance a attempt resulted W., Thus, I would p. 806.) v. John 185 Cal.App.3d dence. (People on Dr. Mitchell do indeed involve conclude the standardized tests relied “new,” scope scientific within the Unprecedented technique proper a Kelly/Frye.,

Second, surround- Kelly/Frye's infallibility” element of an “aura of his opin- Dr. Mitchell’s offer of included ing technique, proof disputed accurate, thq a better than 70 having percent ion that tests he relied on were and, virtually to some right experts, being impos- chance of being according tester. Dr. Mitchell de- sible to conceal one’s deviant character from the á characterization” a observation that “achiev- colleague’s scribed as “fair a in the MMPI like minefield and walking through a normal ing profile Mitchell, built-in “valid- intact.” to Dr. coming Significantly, according out a concealment of deviant ity scales” assured no intentional supposedly i swayed by clearly, unduly a be personality Quite jury could occur. could accuracy invincibility. such claims of and that, Dr. the standardized description,

It is based on Mitchell’s appdrent detector, uncovering elements of a lie aimed at untruth- (1) tests combined i.e., a (2) print,” supposedly foolproof ful test responses, “personality with the offense scientific method of traits matching suspect’s personality way blood voiceprints, fingerprints, much the same question; match or exclude a semen are used to samples, suspect. are un- majority voiceprint techniques concedes that polygraph view, “validity In Dr. Mitchell’s subject Kelly/Frye. my

questionably scrutiny. subject (See should be same “personality print” scales” and (1987) Social Services Seering Department Cal.App.3d also syndrome sub- sexual abuse accommodation Cal.Rptr. [239 422] [child re 690-691 ject Kelly/Frye]; In Amber B. Cal.App.3d anatomically correct dolls to support psychiatric [use 623] Cal.Rptr. In subject Kelly/Frye].) Seering of child molestation both that a would undue jury place Amber B. the courts stressed the likelihood evidence. underlying on the scientific nature weight necessarily inadmissible. The I do not the results of these tests are suggest reliability by its is not to exclude evidence but test Kelly/Frye purpose community “the determinative voice” giving the members of scientific 31, quoting 17 Cal.3d at Kelly, p. that issue. deciding (SeePeople F.2d 743-744 1974) Cir. (D.C. United States v. Addison from showing research body be a of scientific There well 199].) App.D.C. ac- function” are generally of “personality the standardized measures scientifically reliable tests of sexual by mental experts health cepted record, however, conspicu- such evidence is On this deviancy normality. or ously absent. aris- consequences the potential due I am concerned about respect,

With consuming I and time foresee majority’s holding. complicated from the ing guilt issue of innocence devoted not to factual “mini-trials” accused, and its correlation on his “personality profile” but instead focusing molester, arsonist, robber, average child profile with the displayed have the to rebut Presumably, opportunity would whomever. (See tests. their own and standardized using experts

defendant’s showing, Code, the trial’s sidetracking (b).) prospects Evid. subd. § are “main event” enormous. affirm decision defendant’s Appeal’s upholding

I would the Court conviction.

Kaufman, J., concurred.

Case Details

Case Name: People v. Stoll

Court Name: California Supreme Court

Date Published: Dec 18, 1989

Citation: 783 P.2d 698

Docket Number: S003576

Court Abbreviation: Cal.