*1 minimum, the matter law, jury. submitted have been should NOBLE, JJ., join.
CUNNINGHAM SANDERSON, Appellant, Paul
David Kentucky,
COMMONWEALTH
Appellee.
No. 2007-SC-000537-MR. Kentucky. Court
Supreme
May Rehearing on Denial of
As Modified
1,Oct. 2009.
Opinion Justice Court NOBLE. trial,
After Appellant was convict- ed of two counts of Second-Degree Sod- omy and three counts of First-Degree Abuse, Sexual and was thirty- sentenced to years prison five years and five of condi- tional discharge. He raises five claims of error appeal. Appellant’s Because Child Sexual Abuse Accommodation Syn- error, claim drome constitutes reversible his conviction is reversed and the case is However, remanded for a new trial. be- cause other errors are to recur on retrial, they are also addressed.
I. BACKGROUND Appellant met Mendy Terrell and her B.T., daughter, in the late 1990s he and Mendy married Appel- December 2000. lant B.T. appeared to have a close relationship. They Appellant’s moved into house, Appellant garage built a property where he could watch television play poker with friends. B.T. testified that after moving Ap- into house, he pellant’s abused her on a weekly years, basis for six as much as per two to three week Mendy times while sleeping. was at work or He told B.T. if that he would hurt her she ever said anything place about the which took garage until the three of them moved to another house. At the new house, place in garage, the abuse took room, Mendy’s in B.T.’s and in room. years marriage Ap- Several after her pellant, Mendy pregnant. They became began marital experiencing problems after Roark, Bryant, Emily Mark P. M.W. child, gave she birth to the and a divorce Center, Bryant Bryant Law Shannon January action Ap- was filed on Roark, Paducah, KY, appellant. pellant of the house on Febru- moved out 25, 2006, General, Conway, Attorney Bryan ary allegedly Jack continued to Morrow, Attorney Office of the abuse B.T. until about a week before he Darwin General, Frankfort, KY, appellee. left. (“[D]ismissal left, upon two months after based a failure to com-
About automatic”). ply 76.12 is not spent of a child who had CR the mother years B.T. several earlier told night with B. Testimony Related to Child Sexual daughter spent when her *3 Mendy that Syndrome. Abuse Accommodation there, pornographic she watched a night According B.T. Appellant. movie with and Appellant claims the trial court im friend, B.T. the view- instigated to B.T.’s properly admitted about Child B.T., Mendy ing. When first confronted Syndrome Sexual Abuse Accommodation happened. Mendy that it then she denied (CSAAS) Mendy, from Brian Terrell Appellant, him that she called and told (B.T.’s father), Brown, and Lori a clinical pornographic knew about the movie he had psychologist. Though Mendy and Terrell girls. watched with the B.T. overheard both physical testified about B.T.’s left, part the last conversation and psychological “symptoms,” the most dam having but later confessed to watched the Brown, aging testimony came from a clini Mendy movie and told about the abuse psychologist cal who counseled B.T. and place. that taken had gave testimony that B.T.’s addition of new allegations of sexual abuse is normal. indicted, Appellant was convicted jury, thirty-five years and sentenced to Appellant objected Although three Court, prison. appeal His there- separate times to Brown’s dur fore, right. Ky. is a matter of Const. case-in-chief, ing the Commonwealth’s 110(2)(b). § Commonwealth contends this issue is im n preserved properly appellate for review.
II. ANALYSIS Indeed, appear it does not specifically used term CSAAS in his A. Compliance with 76.12. CR However, objections. reject we the Com The Commonwealth contends monwealth’s contention that Appellant is Appellant’s brief presenting theory should be stricken a new of relief ap comply peal, failure having admissibility CR conceded the 76.12(4)(c)(v), requires the brief to testimony. contrary, Brown’s To the Ap refer point pellant to the where each objected “any” record first to of Brown’s preserved. However, error was a careful before began testifying she Appellant’s review of objected again brief reveals that all two more during times her but one error preserved testimony. objections These three ade argued Therefore, palpable. Appel quately to be informed the trial court of the lant substantially complied has in fact with patent inadmissibility of Brown’s CSASS- 76.12, the provisions of can testimony. CR issue related Hardin v. Common record, wealth, determined from the (Ky.1968) and this 428 S.W.2d (“While Court will objections exercise its discretion not to were sharply not strike the brief. the point they adequately Simmons Common we think alerted ”). 232 S.W.3d (Ky.App.2007) judge proposition the trial .... (“While [Appellant’s] fully Appellant repeatedly brief did not hearsay raised as 76.12(4)(c)(v)], comply objections; with [CR dismissal basis for his testi inadmissible, comply provisions mony failure to with the in part, least be CR discretionary 76.12 is than man hearsay. rather cause it is Hellstrom v. Com monwealth, datory.”); v. Campbell County (Ky.1992) Baker Bd. Ed., (“Mr. 482 (Ky.App.2005) Veltkamp symptoms listed the but classifying directly Further, refrained from them case.” Id. it does not matter that syndrome.’ the ‘child sexual abuse Avoid- the social worker symptoms “listed the ing ‘syndrome’ the term does not trans- refrained from classifying them directly as hearsay form inadmissible into rehable syndrome.’ ‘child sexual abuse Avoid- evidence.”) scientific conclude that ‘syndrome’ We the term does not trans- Appellant’s repeated objections, although form inadmissible hearsay into reliable sci- articulated, precisely were sufficient to entific evidence.” Id. at 614. preserve this issue for our It review. Newkirk v. should also be noted that Sanderson’s con- 690 (Ky.1996), applied this Court being victions are reversed another in- *4 against the rule CSAAS testimony to ex- dependent ground,- making preserva- this perts. Newkirk first noted that “[i]n tion issue irrelevant. largely unbroken line of ... decisions this Court Commonwealth,
In Kurtz v. repeatedly S.W.3d has expressed its distrust of (Ky.2005), this quoted Court the basic expert testimony purported to de- against rule testimony: CSAAS termine criminal conduct per- based [Wjhere ceived psychological syndrome.” a victim Id. at delayed reporting had 690-91. The multiple of rationales for the improper we held the testimo- specific rule against testimony of a CSAAS in- seasoned child sex abuse investi- clude “the lack diagnostic of common, reliability, the gator stating that it her lack of general acceptance within the experience, sexually disci- abused victims pline emanates, from which such testimony delay reporting of the abuse.... We and the overwhelmingly persuasive held that “a nature party cannot introduce evi- of testimony such effectively dominating dence of the habit of a class of individu- decision-making the process, uniquely prove als either to the that another member jury.” function of the Id. at 691. of the New- way class acted the same under kirk contains a lengthy discussion similar prove circumstances or to cases, and it concludes: person the was a member of that class [Tjhe because acted the way same un- cases demonstrate unmistakably he/she der similar circumstances.” this accepted Court has not the view the CSAAS any or of its com- Id. at 414 (quoting Miller v. Common- ponents has attained acceptance (Ky.2002)). S.W.3d 571-72 in the community scientific justifying its In Hellstrom v. admission into prove evidence to sexual (Ky.1992), S.W.2d 612 this Court reversed abuse or the identity perpetrator. testimony conviction based on similar to Moreover, such evidence has been re- Hellstrom, testimony the in this case. jected grounds that it relevancy lacks the director of the Child Abuse Center at for failure to any make the existence of University the of Kentucky Medical Cen- consequence fact of probable more or (who ter degree had a Masters in clinical “ probable less than it would have been work) social testified that ‘delayed disclo- without the evidence. KRE 401. sure’ is common in these types of cases.” Id. at 693. “[bjoth Id. at 613. The Court noted that recognize sides that we have reversed a This Court further noted that if it even “
number of cases because of trial error in accepted by were to ‘become the scienti- permitting the use of regarding community fic that a child who had been the so-called ‘child abuse accommodation sexually develop abused is certain syndrome’ to bolster the prosecution’s traits, symptoms personality there this Court type This is the oth question of whether remain Newkirk; similarly this was had not been feared who
er children develop symp question the same ‘“remain[s] also where there might abused ” (quoting Lantrip Id. who had not been or traits.’ other children toms whether (Ky. S.W.2d might develop also similarly abused ” 1986)). “expressed finally, Newkirk, this Court And or traits.’ symptoms same may invade that the concern grave (quoting Lantrip, 713 at 691-92 jury by unduly influ province 817). Finally, the Common- at Id. credibility.” assessment encing its went so far as to ask whether wealth even stated there is previously has “This Court “symptoms” are what cause these expertise in the thing as no such prostitutes. children to become 694. This has Id. at Court of children.” case, “expert” testimony Brown’s health view that mental “embraced specula- with the coupled Commonwealth’s discerning experts are not professionals prostitutes, the creation of tion about truth; they accept are trained to facts and unreliable type generic the exact without critical patients their provided *5 to repeatedly this has held evidence Court those facts.” Id. examination of Therefore, this case reversible error. case, that it is Brown testified In this for a new trial because must be reversed victims of sexual normal for child of the admission of CSAAS B.T., about their abuse like to add details against Appellant. counseling for an they after have been appear time period extended Remaining C. Issues. life able to
happy in their outward and be extracurricular activities and excel in their Statutory 1. Maximum Sentence The good grades. make Commonwealth Ap- Felonies and Retroactive Class C whether what Brown described even asked plication Amendment Condition- from attempt a child’s to disconnect Discharge al Statute. sexually- the reason abused such abuse is girls prostitutes. become re- judgment “Because the has been Here, in the Common- reasons, we will foregoing versed for the sexually- abused wealth’s case-in-chief only assignments those address additional B.T., children, commonly like add details upon that are to recur retri- of error counseling analogous through over time Commonwealth, 245 al.” Bell v. S.W.3d Miller, where this to the situation Court (Ky.2008); Terry v. Common- vic- held (Ky.2005); 153 S.W.3d commonly delay reporting of their tims Springer v. Miller, error. to be reversible abuse (Ky.1999). essence, In at 577. is correct that under KRS Appellant their delaying their of some of 532.110(l)(c) 532.080(6)(b), and KRS he they when later add details. only could receive a maximum sentence addition, in the when Brown was recalled thirty-five years not the rebuttal, twenty years, she went even Commonwealth’s Appellant he was sentenced. generic characteris- which identifying further in Second-Degree convicted of two counts of of child sex abuse victims describ- tics three counts of First-De- outwardly Sodomy1 and appearing happy. them as 510.080(2). felony. Second-Degree Sodomy KRS is a Class C gree Abuse.2 Sexual case and that application its retroactive and, was an post ex law thus uncon- facto 532.110(l)(c) states, ag KRS “The stitutional. Id. at 24. The situation here gregate consecutive indeterminate Therefore, is identical. Appellant’s sen- length terms shall exceed maximum tence to conditional discharge could not longest term extended which would be years, exceed three statutory maxi- highest authorized KRS 532.080for the mum at the time offenses took any class of crimes for which of the sen place. ” imposed.... tences is The highest class The Commonwealth concedes the maxi- of crime for which Appellant was convicted possible mum sentence in this case was was Second-Degree Sodomy, a Class C twenty years’ imprisonment and three felony. In Gibbs v. years’ conditional discharge, but it argues (Ky.2006), this Court held Appellant did not make the sen- that where highest degree felony “[t]he tencing hearing part of the record. Re- conviction that Appellant received was a gardless of whether the sentencing hear- felony longest Class C ... aggregate ing was part record, made sentence could have received Court has a Appellant’s list of convictions was the length maximum authorized for a before it apply and can the statutory maxi- felony Class C under the Persistent Felo mum sentence as a matter of law. If ny Offender statute: KRS 532.080.” KRS Appellant is convicted of the same 532.080(6)(b) offenses states, “If the offense for trial, after another possible his maximum which he presently stands convicted is a *6 twenty sentence will be years’ imprison- felony, Class C or Class D a persistent ment years’ and three conditional dis- felony in degree offender the first shall be charge. sentenced to an indeterminate term of im
prisonment, the maximum of which shall 2. Social Hearsay Worker’s and not be ... more twenty years.” than Ultimate Issue Testimony. Therefore, though Appellant’s even convic reversed, tion is Appellant if he is claims that convicted of the much of the testi- trial, same mony Hyde, worker, felonies after another his maxi Carla a social was mum sentence twenty years’ hearsay cannot exceed inadmissible Hyde because testi- imprisonment. primarily fied about B.T.’s statements to her. Appellant Hyde also claims that tes- addition, In Appellant was sen tified about credibility, B.T.’s an ultimate years tenced to five of conditional dis fact to be jury. decided charge, although the version -of KRS 532.043 in effect at the time these offenses Hyde testified many things about were allegedly (prior July committed Hyde B.T. told her. testified that B.T. 2006) only allowed for a conditional dis told her Appellant that touched her in her charge years. of three The areas, situation here private that Appellant showed her Commonwealth, is on point with Purvis v. movies, pornographic that she would be 21 (Ky.2000), where a prior playing Appellant outside when would call amendment of KRS 532.043 increased the her garage into the to touch her under and maximum length of conditional discharge. clothes; on her top of that Appel she and Purvis, In that other; Court held the amend lant would lick each Appellant ment disadvantaged the in Appellant play with himself and stuff would First-Degree 510.110(2). ny. Sexual Abuse is a Class D felo- KRS con- years’ and three years’ imprisonment told her that out; and
come (under in any things, discharge of those he the statute do ditional if did not she addition, Hyde testi- allegedly at the time the offenses her. effect would hurt Also, of B.T. when she the social worker im- place). took fied about believable”; and she hearsay B.T. “seemed as to B.T.’s properly said testified her; nervous and scared.” “appropriately improperly and she statements ultimate opinion testified about her continuously held “has This Court B.T.’s testimony of social work hearsay that the and constitutes revers inadmissible ers is Therefore, judgment the conviction and unfairly it bolsters the ible error because reversed; is of the Graves Circuit Court victim.” Smith testimony remanded for a new trial. and the case is Commonwealth, (Ky. 920 S.W.2d 1995). exception recognized “There is no CUNNINGHAM, MINTON, C.J.; rule for social workers or hearsay
to the VENTERS, JJ., concur. SCHRODER ” investigations.’ Sharp their the results of ABRAMSON, J., only concurs in result 849 S.W.2d by separate opinion. Souder Common (Ky.1993) (quoting (Ky.1986), 719 S.W.2d SCOTT, J., concurs, part, B.B. v. grounds by overruled on other dissents, part, by separate opinion. (Ky.2007)). testimo Sharp, Hyde’s As was the case ABRAMSON, Justice, Concurring in “extensively repeated the out- [child’s] Only: Result and it also “contains of-court statements” only. I concur in result Justice Scott meaning extensive conclusions The time important question. raises an is Sharp, and statements.” acts the [child’s] our ripe position to reconsider Therefore, this case at 545. any appropri- whether refinement established rule that fits within the ate. in testimony of social workers is hearsay *7 constitutes reversible er admissible and Justice, SCOTT, Concurring in Part and retrial, a cannot ror. social worker On Dissenting in Part: made to testify about B.T.’s statements conclusions on the ultimate her and her Although majority’s I concur with the credibility. issue of B.T.’s issues, other analysis and resolution of the I dissent from its view of cer- respectfully III. Conclusion. tain elements of evidence often referred to conclusion, trial committed court Sexual as Child Abuse Accommodation by admitting propensity reversible error (CSAAS), Syndrome provide expla- the rule testimony, key reason nations for the otherwise inconsistent con- Accommoda- against Sexual Abuse Child and, of children properly duct thus testimony. Syndrome tion jury making in assists determinations has raised other is- as to whether such inconsistent conduct is Because retrial, of or is conduct upon to recur an indicator untruthfulness sues that are commonly experienced with abused chil- have also been addressed. these issues here, delayed I felony speak, for the con- dren. of The maximum sentence (the recantation, present- as well as their highest case class of victions in this blush, demeanors that at first felony) twenty ment with which was a Class C 617 allegations sexual appear with their offender or perpetrator inconsistent of abuse. abuse. overwhelming of other majority Like the J.Q., 554, (citing v. N.J. State 130 617 A.2d evidence, states, (1993)). I when believe that such 1196 impermissibly used establish This categories Court has all dealt but, rather, a viable to ex- abuse tool another, in one form or with a multitude of plain confusing the sometimes and com- reasons their rejection. See Kurtz v. monly patterns misunderstood behavioral Commonwealth, 413, 409, 414 S.W.3d subjected may children who have been (habit (Ky.2005) profile characteristics should be admissible. perpetrators); v. Miller Common- light “first came to article
CSAAS 566, 571, 77 S.W.3d 572 (Ky.2002) (5) published five in 1983 that described (delayed reporting denied as evi- habit commonly in sex- characteristics observed dence); Commonwealth, Newkirk v. (1) (2) ually secrecy; abused children: 690, (considered S.W.2d (Ky.1996) 691-696 (3) helplessness; entrapment and accom- psychiatric explaining rebuttal evidence (4) modation; conflicted, delayed, and un- recantation); terms victims’ child disclosure; and convincing retraction Commonwealth, Hall v. 862 S.W.2d Trainor, J.D., [or recantation].” Elisabeth 322, 323 (Ky.1993) (psychiatric testimony Admissibility Expert Testimony Of On that child was abused and was Syn- truth); Child Sexual Abuse Accommodation telling the Hellstrom v. Common- (Csaas) 85 A.L.R. wealth, Case, In Criminal drome 612, 613, 825 S.W.2d 614 (Ky.1992) (2001). 5th 595 (testimony delayed on abuse and disclo- (6) categories province jury); There are six of social Dyer sure invaded v. Commonwealth, expert testimony science that have de- 816 S.W.2d 652-654 (overruled veloped regularly prof- (Ky.1991) and have grounds been other Commonwealth, support fered to child witnesses sexu- Baker v.
al category (Ky.1998)) abuse cases. The first is (perpetrator profile); Brown Commonwealth, 502, 503, “rehabilitative” offered to ex- 812 S.W.2d (overruled plain puzzling (Ky.1991) conduct of grounds by the child on other victim meet a Stringer defense attack on the (use (Ky.1997))
child’s These prove behaviors have of CSAAS to been subsequent behavior); termed as CSAAS. The second child’s evidence, category syndrome includ- Mitchell (use evidence, supposed typical (Ky.1989) CSAAS for *8 proffered,
child not of guilt perpetrator pro- victim behavior to determination child, file); explain Commonwealth, of unusual conduct the Hester prove (recantation); to that affirmatively (Ky.1987) sexual abuse S.W.2d has third category Lantrip occurred. The is a (use
spin-off the expert (Ky.1986) prove of second the CSAAS of to abuse); to testifying typical Bussey behaviors of a child 139, 140, (use (Ky.1985) victim to specifically related the child S.W.2d of victim in the case. The fourth proof perpetrator is as of CSAAS abuse close, testimony Although the child has in fact been we have come see profile). abused, Newkirk, testimony yet and the fifth is we have 937 S.W.2d at the category recognize child is credible. The final the of evi- validity to (rehabili- involves on actual of of profile category the dence the first use drome[,] jurors provides psycho- a tation) explain the only offered “to when logical explanation certain behavior of child victim to conduct the puzzling following sexual abuse. in small children credi- a attack child’s meet defense Expert admissibility necessary testimony is because TrainoR, Such Of bility.” Testimony children exhibit conduct that these often On Abuse Accom- Child Sexual jurors’ expe- the life Syndrome inconsistent with is In Criminal (Csaas) modation understanding human riences or of na- time did. I believe it’s we supra. Case, ture children. have the our reasons been general “In (Graves, J., As dissenting). at 696 the Id. the of reliability, lack diagnostic lack of out, pointed recantation dissent also “the discipline the acceptance within general widely accepted is and confirmed symptom emanates, such from which by research credible studies renowned overwhelmingly nature of persuasive the by experts.” well credentialed institutions effectively dominating the such Id. process, uniquely the decision-making appellant impeach Newkirk, “Permitting to [an] jury.” function of the credibility on the basis of the child victim’s Interestingly the enough, at 691. [, delayed report- a a previous recantation have come was our consider- closest we demeanor,] his ing of the incident or with- commonality by of recantation ation of the the allowing out also Commonwealth to Newkirk, analyzed abuse victims present testimony phenome- explaining the split 4-3. Id. at 696. where the Court perpe- the gives alleged non of recantation Newkirk, the trial court allowed ex- advantage an unfair exploit trator to the “for pert testimony regarding recantation process of how some child sexual abuse purpose rebutting any the of attack limited respond to abuse.” Id. at the upon victim’s] based [the Willett, Justice, (Barry Special dissenting). abuse, allegations of her of her recantation noted, Special Justice Willett in New- As explaining why terms an by kirk: might recant.” Id. at 697. victim lay adults, hearing a of the When Moreover, the evidence was admitted sub- typical in a court; horrible details child sexual limiting ject to a admonition the case, abuse is confronted with child testify to being witness called “[t]his recanting victim his or her previous alle- purpose explaining psy- the limited of sexual it gations is understand- chological dynamics surrounding a recan- they apply able tend to an following tation accusation the sexual adult standard to child victim’s be- abuse. not for the This evidence is offered in an havior effort understand what purpose proving whether [the victim] motivates the victim recant his or her Re- was was abused.” Id. reality The allegations. of child sexual cantation, delayed reporting, and inconsis- respond abuse is that children different- victims, tent all involve demeanors child ly than do adults to both the abuse and and, conduct the child there- puzzling disclosing process fore, attack support defense proper authorities. child’s As was noted *9 dissent in Newkirk: Moreover, at 698-99. as noted in Id. Gatch, 206, v. 635 Wimberly So.2d 213
Kentucky few remains as one (La.1994): rejects jurisdictions still all testimo- clinically have regarding phenomenon frequently preconceived Adults person a traumatized identified demonstrated the Child ideas about how infliction Syn- Abuse will react after trauma. Sexual Accommodation
619 454, 1037, Rojas, 177 Ariz. victim of sexual abuse does 868 P.2d 1042 The child (1993) according (“[Ejxpert testimony to adult that helps ju- react to the situation with auton- rors evaluate concepts credibility of self-determinism victims’ and ex- fact, omous, choices. their plains why may rational victims of sexual abuse vastly admissible.”); differ from patterns inconsistently behavioral behave Sandoval, expectations. 994, adult People Cal.App.4th v. 164 (2008) (“Such 634, Cal.Rptr.3d 79 639 ex- reasons, allow For these most states pert testimony ju- is needed to disabuse testimony offered “rehabilitative” commonly misconceptions rors of held the vic- explain puzzling conduct of explain about child sexual and to tim in to meet the defense’s attack order the emotional of abused chil- antecedents victim’s See United seemingly self-impeaching dren’s behav- 1329, Bighead, v. 128 F.3d 1331 States ior.”); Mintz, 829, People v. 165 P.3d 831 Cir.1997) (9th (“[T]estimony signifi- had (“An (Colo.Ct.App.2007) expert may testi- probative cant value in that it rehabilitat- fy typical as to the demeanor and behav- (without for) vouching the victim’s ed displayed by ioral traits a sexually credibility after she was cross-examined child.”); Spigarolo, State v. 210 delayed reporting about the reasons she 359, 112, 122 Conn. 556 A.2d and about the inconsistencies her testi- (“[Tjhe overwhelming majority of courts Elk, mony.”); States v. Two 536 United that, have held where the defendant has (8th Cir.2008) (“In 903, 890, F.3d 904 sought impeach testimony of the cases, qualified ‘a ex- child sexual abuse inconsistencies, minor victim based pert can inform the of characteris- disclosures, partial ”) recantations relat- sexually (quot- tics in abused children.’ incidents, ing alleged the state 794, Eagle, States v. 515 F.3d United may present expert (8th State, opinion evidence that Cir.2008)); 529 800 Sexton such behavior minor sexual abuse vic- 1041, (Ala.Crim.App.1988) So.2d 1049 common.”); State, tims is Wittrock v. (“The necessity in- (table) A.2d 1103 1993 WL if creases there are certain inferences (such (Del.Super.Ct.1993) (unpublished opinion) impli- made the defense as the (“Expert testimony is admissible in such delay cation that the child’s since it instances assists the trier of fact fabrication), or certain the abuse indicates psychological dynamics to evaluate the unusual behavior of the child witness and behavior patterns go which should not be allowed to unre- not within layperson’s experi- a common recognized when there exists a butted it.”) permitting ence while also the trier of phenomenon may explain fact to determine the States, 293 F. (quoting Frye United (D.C.Cir.1923) (internal testimony”); victim’s and other witness’ citation States, Mindombe v. United 795 A.2d omitted)); State, Bostic v. P.2d (D.C.2002) (“[Ejxpert is ad- (Alaska Ct.App.1989) reversed government missible in cases where the State, grounds by other Bostic v. successfully proffers that the facts and (Alaska 1991) (“[Ejxpert testi- P.2d 344 presented at trial are like- evidence mony generally describing characteristic ly lay juror’s to be inconsistent with a ex- abused children behavior how a pectations as to child sexual legitimate purpose when of- could serve a trauma- respond victim should to such negate fered to a claim or inference that State, event.”); 519 So.2d tizing Ward complaining witness’ behavior (“The (Fla.Dist.Ct.App.1988) given case was inconsistent with a truth- abuse.”); ful State v. court determined that accusation sexual *10 620 jury prohibit unconvincing disclosure are the helpful be norm commenting atypical, from on the and that immediate disclosure is
ed the witness
child.”);
actions,
v.
in civil
McCoy
delayed
the child victim’s
truthfulness
493,
492,
State,
will
Ga.App.
partial
278
629 S.E.2d
disclosure
not be counte
(“Since
(2006)
nanced,
‘[l]aymen would not
in law or
to victimize
equity,
494
time.”);
syndrome
expert
without
a
understand
child
second
Commonwealth v.
47,
testimony,
they
Deloney,
nor would
be
to
59 Mass.App.Ct.
794 N.E.2d
(2003) (“It
613,
a
believe that
child who denied a sexual
620
is within the trial
assault,
discretion,
judge’s
subject
proper
or who was reluctant
to discuss
to
limit
assault,
assaulted,’
instructions,
an
in fact had been
expert
to admit
testimo
trial court
in permitting
did not err
on the
behavioral characteris
(internal
testify.”
children.”);
expert
sexually
witness to
ci
tics of
abused
State
(Minn.Ct.
omitted));
807,
Batangan,
McCoy,
tation
State v.
71 v.
400 N.W.2d
810
652,
48,
(1990)' (“Thus,
(testimony
Haw.
799 P.2d
49
App.1987)
typical
be
expert
testimony explaining
while
‘seem havioral
victim
characteristics of
of child
State,
ingly
admissible);
bizarre’ behavior of child sex abuse
abuse was
Hall v.
611
915,
(Miss.1992)
helpful
victims is
the jury
and should So.2d
919
(“[T]estimony
admitted, conclusory opinions
expert
as to certain behavior com
sexually
abuse did occur and that
the child vic mon to
abused children is prop
report
er.”);
Price,
568,
tim’s
of abuse is truthful and be
State v.
572
(“General
lievable is of no
the jury,
(Mo.Ct.App.2005)
assistance to
profile testi
therefore,
admitted.”);
mony
should not be
a generalization
describes
of behav
Hodor,
853,
People
Ill.App.3d
341
275 iors and other
commonly
characteristics
353,
(2003)
828,
Ill.Dec.
792 N.E.2d
860
found in victims of sexual abuse which is
(proper
admissible.”);
for
testify “concerning usually
witness to
Geyman,
State v.
194,
(1986)
patterns
typically
475,
behavioral
224
manifested
Mont.
729 P.2d
479
(“We
victims of sexual
or whether
expert
hold that
is ad
victim’s behavior was
rec
consistent with
missible for the purpose
helping
ognized
State,
syndromes.”);
jury
Steward v.
to assess the
of a child
(Ind.1995) (Rehabili
490,
652
victim.”);
N.E.2d
sexual assault
State v. Roen
tative aspects
“merely
feldt,
30,
197,
of CSAAS
informs
241 Neb.
486 N.W.2d
jurors
(1992) (“The
that commonly
assumptions
held
reasoning
allowing
rule
necessarily
accurate and allows
an expert
testify
about
sexual abuse
(in
jury] to fairly judge credibility.”
[the
...
generalities
jurors
is that
have
‘[f]ew
omitted));
ternal citation
familiarity
State v. See
sufficient
with child sexual
vanhsa,
(Iowa
354,
495 N.W.2d
dynamics
Ct.
abuse to understand the
of a
(witness
App.1992)
properly
“testified on
abusive relationship,’ and ‘the
matters which explained relevant mental
by sexually
behavior exhibited
psychological
symptoms present
contrary
children is often
to what most
children.”);
”)
sexually abused
expect.’
State
adults would
quoting People v.
Reed,
341,
Nelson,
191 P.3d
(Kan.Ct.App.
1038,
Ill.App.3d
149 Ill.Dec.
2008) (Witness
(1990) (internal
“only gave
439,
her
561 N.E.2d
opinion
omitted);
as to why
hypothetical
State,
child citation
Smith
might
(“It
recant an initial allegation of sexu Nev.
688 P.2d
al abuse.
did not render an
[Witness]
would be useful to the
...
to know
opinion about
credibility.”);
[the
it is not uncommon
them deny
child’s]
Gatch,
J.Q.,
621 419, (S.D.1999) (“[W]e jury expert’s that the testi N.W.2d 423 explain persuaded by is not intended to address the ulti also mony the rationale of other question the courts who have mate of whether victim’s allowed CSAAS testimo ny by expert ad an proper limits.”); claims are true and must within molestation State, 406, v. jury the use the Gonzales monish not to 417 Carroll, (Tex.App.1999) (“Expert purpose.”); People for that v. 95 witness testimo 375, 10, that a child victim exhibits N.Y.2d 718 N.Y.S.2d 740 N.E.2d elements (2000) (“We or characteristics that 1084, 1090 have been long empiri have held cally shown to be among common expert regarding sexual [the] ly abused children is relevant and syndrome child or admis abused similar condi sible.”); Catsam, v. 366, State 148 Vt. 534 may explain tions be admitted to behav (1987) (“Given 184, A.2d 187 the demon a might appear ior of victim that unusual strated usefulness that such evidence can jurors may expected or that not be to have in assisting the to jury assess understand.”); the Richardson, v. State 112 the complaining child wit 58, 65, 657, 662 N.C.App. 434 S.E.2d ness, join we the majority of courts that (1993) (“[T]estimony given in this case have concluded that within it is the trial describing general symptoms and charac court’s discretion to admit such evidence to teristics children circumstances.”); in appropriate State v. er explain victims’ behavior is not 671, 697, Huntington, 216 Wis.2d 575 Stowers, ror.”); State v. 81 Ohio St.3d N.W.2d (testimony 268 of expert (1998) (“An 260, 881, ex 690 N.E.2d 883 concerning victim’s delay in reporting and pert testimony that witness’s the behavior conflicting assertions was not inadmissible of an child victim of sexual abuse comment on credibility); victim’s Griego is consistent behavior observed State, 973, v. 761 P.2d (Wyo.1988) 978 sexually abused children is admissible un (Evidence “helped to explain why the vic Evidence.”); der the Ohio Rules of Dav tim immediately did not flee the scene State, 655, (Okla. v. enport 806 P.2d report her parents incident to (“Numerous Crim.App.1991) courts have authorities.”). expert testify to allowed rebuttal expert why The testimony on delay in explain reporting why as well as might delay recant or ini- Middleton, [or recants.”); a child State details,] tially omit some of [only] 427, 1215, 294 Or. 657 P.2d 1220-21 being offered to (1983) (“If rebut attacks on the qualified expert offers long victim’s So as the ex- give testimony on whether the reaction pert limits the one child is similar to the reaction explain characteristics that delays would most victims of familial child recantations, in reporting, and omission if believed this assist details, the testimony will not substi- deciding occurred, may whether a rape it expert’s] tute estimation of [the credibil- admitted.”); Commonwealth v. Bald ity Rather, for that of the jury. it is to win, 368, Pa.Super. 502 A.2d provide scientific perspective for the (1985) disapproved by Commonwealth jury according to it can evaluate Davis, 518 Pa. A.2d complainant’s testimony for itself. (1988) (“In words, other so long as the opinion Foret, (La. does not render an State v. 628 So.2d Credibility accuracy 1993) of the victim’s recitation (citing Goldstein, And Incredibility-. Psychiatric facts, his or her general testimony on the The Examina Complaining dynamics of sexual preju abuse does not tion Of The Witness, Edelman, jury.”); 1238,1240(1980)). dice Am.J.Psychia. State *12 trier fact to un- in situations “will assist the Thus, Willett noted Special Justice as to determine a derstand the evidence Newkirk, [and] in dissenting opinion his issue, qualified an fact in witness as 700: SW.2d skill, experience, expert by knowledge, the testimony explaining phe- Expert education, be training, or able [should to] [, delayed of re- nomenon recantation KRE 702. testify thereto.” and some details] omission porting reasons, should now break For these we abuse should be of child sexual majority ju- the precedent, joining limited purpose for the admissible allowing the introduction of risdictions the rebutting an child victim’s attack purposes such evidence rehabilitation credibility.... Any such only accompanying admonition and with preceded by limiting instruc- should be It purpose. the use to such is for limiting expert’s effect that testi- tion I the majori- this from reason dissent and mony is not intended should not ty’s opinion on issue. to determine whether the victim’s used true. allegation abuse sexual case, cross-examination, during
In this credibility was attacked
the child victim’s at trial of new
on the revelation details which had never before been the events Timothy MORGAN, Appellant, police to the or social workers. revealed Thereafter, the Ms. called Commonwealth E. and James Candria SCOTT Brown, the Director Clinical Service Scott, Jr., Appellees. Center, the Purchase Area Sexual Assault commonality of a child who addressed more about the follow- giving details James E. Candria Scott and counseling. She was called Scott, Jr., Appellants, again stand rebuttal address further concerning created the defense issues Buick, GMC, Pontiac, Moore delayed reporting the child had Inc., Appellee. appeared “happy” incident and to be a explained
child. Ms. Brown that this is unusual, typi- not at all and is sometimes Buick, GMC, Pontiac, Moore hand, cal. On other cross-examina- Inc., Cross-Appellant, tion, just she a child admitted because happy not mean appears does she has been Scott, E. Scott and James Candria sexually Clearly, Appellant’s at- abused. Jr., Cross-Appellees. demeanor, tack on child victim’s initial delayed 2006-SC-000693-DG, omission of details and 2006- Nos. SC-000701-DG, suggest was intended to fabrication ac- 2007-SC- 000282-DG. life cording experiences. one’s usual However, in cases of sexual estab- Kentucky. Supreme Court of and acceptable lished scientific studies May 2009. have shown that these events appear- Rehearing Denied Oct. ances common children who are Thus, knowledge abused. commonality of these events in these