Paul Phillip Lindsey (defendant) was found guilty by a jury of two counts of incest and six counts of sexual exploitation of a minor. A.R.S. §§ 13-3608 and 13-3553. He was sentenced to concurrent terms of imprisonment: five and eight years for the incest counts and 21 years for each count of sexual exploitation. A.R.S. §§ 13-701 and 13-702. The court of appeals affirmed.
State v. Lindsey,
The issue with which we are concerned pertains to testimony offered by the state’s expert, Dr. Baker, on the behavior patterns of victims of “in-home incestuous-type molesting.” At 495,
Given the holding in
State v. Chap-pie,
the court of appeals correctly concluded that the trial court did not abuse its discretion in permitting Dr. Baker’s testimony on general patterns of behavior. At 497,
The problem that concerns us, however, is that over objection (made by motion to preclude) the expert was allowed to go beyond the description of general principles of social or behavioral science which might assist the jury in their own determination of credibility and was allowed to give specific opinions with regard to her view of credibility. These included the statement that “most people in the field feel that it’s a very small proportion [of incest victims] that lie.” Further, in response to whether Dr. Baker felt “that [the alleged victim] is consistent with someone who had been sexually abused by living at home with her father,” the expert stated "... I think the likelihood is very strong____ I feel there’s a preponderance of the evidence here.”
The court of appeals held that admission of such evidence in this case was not prejudicial error because there was no specific objection and because “the door had been opened” by defense counsel’s cross-examination. At 497-498,
Prior to trial, [defendant’s] trial counsel ... objected to the use of such expert testimony because it would invade the province of the jury. He argued that its purpose was to tell the jury that the victim ... was telling the truth. We believe this objection is the fear expressed in the dissenting opinion of Justice Hays in State v. Chappie, supra____ Although we are, respectfully, inclined to agree with Justice Hays’ concerns, we believe our supreme court has rejected these views and we are bound to follow its direction.
At 497,
If the court of appeals intended to indicate that this court approved of the admission of direct testimony on the question of credibility, it is incorrect. The purpose of allowing behavioral evidence in these cases is to give the jury information which it may use in weighing the evidence to determine accuracy or credibility of a witness. It is not to “tell the jury” who is correct or incorrect, who is lying and who is truthful. Such testimony is tantamount to expert evidence on the question of guilt or innocence. We do not permit such testimony.
So that there will be no mistake on this issue, we repeat and reaffirm our words from State v. Chapple.
We believe that the “generality” of the testimony is a factor which favors admission. Witnesses are permitted to express opinions on ultimate issues but are not required to testify to an opinion on the precise questions before the trier of fact.
In reaching this conclusion, we do not intend to “open the gates” to a flood of expert evidence on the subject.... The rule in Arizona will continue to be that in the usual case we will support the trial court’s discretionary ruling on admissibility of expert testimony on eyewitness identification. Nor do we invite opinion testimony in even the most extraordinary case on the likelihood that a particular witness is correct or mistaken in identification or that eyewitness identification in general has a certain percentage of accuracy or inaccuracy.
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If those words were not clear enough, we explicitly state at this time that trial courts should not admit direct expert testimony that quantifies the probabilities of the credibility of another witness.
Cf. State v. Buell,
Thus, even where expert testimony on behavioral characteristics that affect credibility or accuracy of observation is allowed, experts should not be allowed to give their opinion of the accuracy, reliability or credibility of a particular witness in the case being tried. Nor should such experts be allowed to give opinions with respect to the accuracy, reliability or truthfulness of witnesses of the type under consideration. Nor should experts be allowed to give similar opinion testimony, such as their belief of guilt or innocence. The law does not permit expert testimony on how the jury should decide the case.
Fuenning v. Superior Court,
In reaching this conclusion, we think it best to characterize our concern. The rules of evidence do permit expert testimony on ultimate issues. Rule 704, Ariz.R. Evid., 17A A.R.S.;
State v. Williams,
Opinion evidence on who is telling the truth in cases such as this is nothing more than the expert’s opinion on how the case should be decided. We believe that such testimony is inadmissible, both because it usurps the jury’s traditional functions and roles and because, when given insight into the behavioral sciences, the jury needs nothing further from the expert. We do not invite battles of opposing experts testifying to opinions about the truthfulness of the prosecution witness as compared to that of the defense witnesses.
Having determined that the direct testimony on credibility
(supra
pp. 494-495, 720 P.2d pp. 95-96) should not have been admitted, we turn now to the question of whether there was reversible error. The court of appeals held that there was none. It based that conclusion on two factors. The first was that, aside from the preliminary motion to preclude, there was “no objection to any of the expert testimony.” At 497,
Although we are hesitant to rely upon the doctrine of waiver, we believe that [defense] counsel did open the door and cannot now claim on appeal that the redirect testimony of the expert constituted reversible error.
At 498,
Defendant had objected to the expert testimony in issue. Prior to trial, defense counsel moved to preclude testimony from Dr. Baker “in any way concerning the credibility or truth telling capacities ... of alleged victims of child molestation.” The
*476
motion argued the inadmissibility of such testimony, citing
Frye v. United States,
However, the court expressly directed the attorneys to refrain from inquiring into the credibility of the specific alleged victim in the case before him. Defense counsel then inquired whether the court meant that the state was forbidden to inquire into the expert’s belief as to the credibility of that witness. The court indicated that was his ruling. The following colloquy then took place:
Defense counsel: Judge, ... there’s a way that [the state] is going to back door that issue that I think the Court should be aware of. And I’m not sure how the court will treat this, but what Doctor Baker will do when she’s talking about generalities, she’ll give percentages and say ...—and she did this in the interview —... ninety-nine percent or something [of these victims] are telling the truth____ And that’s just basically a back door way of getting specific.
The court: No, I think that an expert can testify in that area even where it goes to credibility, which is an ultimate issue for the jury to decide.
Defense counsel: So[,] she can get into the area that ... ninety-nine percent or whatever of these people tell the truth? The court: Yes, ... I’ll allow that.
We believe that the portion of the record quoted above, when taken together with the written motion to preclude, clearly indicates that the court was aware that counsel objected to testimony regarding the credibility both of the victim as well as of all victims in general.
It is true that no further objection was made at the trial. However, when a motion to preclude “is made and ruled upon, the objection raised in that motion is preserved for appeal, despite the absence of a specific objection at trial.”
State v. Burton,
We also disagree that the defendant’s objection was waived by defense counsel’s “opening the door” to the testimony ruled inadmissible by the trial court. During direct examination the state asked Dr. Baker the following:
Based on the work you have done ... and the literature and ... your background and training, did you have an opinion as to what proportion of victims in these sorts of cases ... are lying about this happening ... ?
Answer: Well, there aren’t too many statistics on that. The one statistic that I have found came from this Santa Clara [project]____ [T]heir figures were that it was possibly one percent that lied. But I don’t know that that’s totally accurate. But in general, most people in the field feel that it’s a very small proportion that lie.
Thus, having previously obtained the court’s ruling that such testimony would be permitted, the state had the expert quantify the proportion of victims who would tell the truth. Such testimony is directly contrary to the principles set forth in Chappie and reaffirmed earlier in this opinion. Quantification of the percentage of witnesses who tell the truth is nothing more than the expert’s overall impression of truthfulness. It goes beyond “ultimate issues” and usurps the function of the jury.
Standing alone, of course, such testimony—which falls short of an opinion about the specific witness before the jury—might *477 not be prejudicial error in a case in which there was ample extrinsic evidence of guilt. That was not the situation here. Furthermore, the error was compounded in the present case by testimony on redirect examination. At that time, the state asked the witness the following:
Question: What is your opinion as to whether there is consistency [in this victim’s testimony]?
Dr. Baker: I think the likelihood is very strong ... but based on what I have, I feel there’s a preponderance of the evidence here.
Question: Do you think it’s a pretty strong indication or just kind of moderate?
Dr. Baker: I think it’s fairly strong.
The court of appeals acknowledged that this direct testimony as to the expert’s belief in the credibility of the particular alleged victim of the crime charged would ordinarily be inadmissible. At 497,
Based on this principle the court of appeals held that defense counsel had waived the error in the redirect testimony by having opened the door on cross-examination when he questioned the expert about past examples of the alleged victim’s lying. We do not believe the invited error doctrine is applicable to the situation presented by this case. The error had already occurred in direct examination, over counsel’s objection, and he was now faced with the choice of leaving the jury with the expert’s unchallenged statement that 99 percent of victims tell the truth, or of attempting by cross-examination to elicit something from the expert that might later aid him in arguing that defendant’s daughter fell within the one percent group who do lie. We do not believe that such cross-examination opens any door. Having been damaged by erroneously admitted testimony, defendant “was entitled to adjust his strategy.”
State v. Ellerson,
“It would indeed be a strange doctrine and a rule utterly destructive of the right ... of cross-examination, to hold a litigant to have waived his objection to improper testimony because by further inquiry he sought on cross-examination to break the force or demonstrate the untruthfulness of the evidence given in chief....”
Tucker v. Reil,
The court’s ruling in the present case permitted inadmissible evidence to be adduced during direct examination. Defendant was entitled to treat that ruling as the “law of the trial” and to explain or rebut the evidence which had been admitted over his objection. Such efforts are not a waiver of the initial objection. McCORMICK ON EVIDENCE § 55 at 128 (E. Cleary, ed., 2d ed., 1972).
We conclude, therefore, that the trial court’s error in permitting the direct opinion testimony on truthfulness was prejudicial and requires us to reverse the two counts of incest. Since guilt or innocence on these counts inherently turned on the question of the daughter’s credibility, it cannot be said beyond a reasonable doubt that the jury would have convicted even in the absence of the error.
State v. Chapple,
We are not compelled to reach the same conclusion, however, with respect to *478 the six counts of sexual exploitation. These counts were based upon photographs of the daughter taken when she was approximately fourteen years of age. The jury found they depicted sexual conduct as defined in A.R.S. § 13-3551(2)(f) in violation of A.R.S. § 13-3553. Evidence at the trial indicated that the furniture shown in the photographs was defendant’s and that the site of the photography was defendant’s home. The pictures were found in a locked compartment in defendant’s home. There is no evidence that anyone else had taken the photographs. Because the exploitation counts do not turn on the question of credibility and are supported by overwhelming evidence, we affirm the conviction and sentence on those six counts.
For the foregoing reasons we remand this case for a new trial on the incest counts. The court of appeals’ opinion, insofar as it is inconsistent with our resolution of this case, is vacated.
SUPPLEMENTAL OPINION
Defendant petitioned this court for reconsideration pursuant to Rule 31.18, Ariz.R.Crim.P., 17 A.R.S., claiming that as a result of our holding there was no longer sufficient evidence to sustain the jury’s determination of defendant’s guilt on the sexual exploitation counts. We have thoroughly reviewed the record and find no merit in this assertion and have denied the motion for reconsideration.
However, in reviewing the record it became apparent that the sentences for the six counts of sexual exploitation of a minor must be reduced. In imposing the 21-year sentences for each of the six counts of sexual exploitation of a minor, the trial court treated the guilty verdicts for the two incest counts as two prior convictions. See A.R.S. § 13-604(D). Because we reversed the incest convictions, there are no priors and the sentencing range for the sexual exploitation has been reduced from 14 to 28 years (class II felony with two prior convictions) to 5.25 to 14 years (class II felony with no prior convictions). See A.R.S. §§ 13-604(D), 13-701 and 13-702(B). We therefore affirm the convictions but vacate the sentences and remand the sexual exploitation convictions to the trial court for resentencing in conformance with this supplemental opinion.