STATE of Utah, Plaintiff and Appellee, v. Phillip RIMMASCH, Defendant and Appellant.
No. 20760.
Supreme Court of Utah.
May 17, 1989.
HOWE, Associate C.J., concurs in the dissenting opinion of HALL, C.J.
have to yield to the power of the Legislature to promote the public health, safety, morals, and welfare” (footnote omitted).).
R. Paul Van Dam, Earl F. Dorius, Salt Lake City, for plaintiff and appellee.
ZIMMERMAN, Justice:
Defendant Phillip Rimmasch was charged and convicted after a bench trial of forcible sexual abuse, rape, forcible sodomy, and incest. These charges arose out of alleged incidents of sexual activity between defendant and his daughter. Rimmasch‘s sentence was stayed, and he was placed on probation for eighteen months, on condition that he undergo psychological treatment. He appeals his conviction, arguing, inter alia, that the trial judge erred in admitting certain testimony by expert witnesses called on behalf of the prosecution in which one or more of them affirmed the truthfulness of his daughter‘s version of events, testified to the psychological profile of the typical victim of child sexual
We are aware that child sexual abuse is of great concern to the American public. The Utah legislature, like many around the country, has responded to this concern by enacting a number of measures designed to make apprehension and conviction easier and punishment more severe. Some of these measures have relaxed legal rules that might have operated to bar admission of some otherwise reliable testimony. See
However, the fact that child sexual abuse has emerged as a critical problem about which the public is seriously concerned does not mean all legal rules that may constitute obstacles to increasing the conviction and incarceration rates of those accused of such crimes, as opposed to those actually guilty, can properly be brushed aside. Fundamental changes in longstanding evidentiary rules should not be made lightly, even when it is claimed that those rules may stand in the way of convictions. See State v. Moran, 151 Ariz. 378, 380, n. 2, 728 P.2d 248, 250 n. 2 (1986). “No matter how defenseless the child, or how strong the policy of protecting victims of abuse, justice is not served by ‘proving’ sexual abuse through misleading and unreliable testimony.” Note, The Unreliability of Expert Testimony on the Typical Characteristics of Sexual Abuse Victims, 74 Geo.L.J. 429, 451 (1985) [hereinafter Georgetown Note].
There is no reason to recite the facts of this case in any great detail. Rimmasch allegedly engaged in a long-term intimate relationship with his daughter beginning when the girl was approximately seven and continuing until she was thirteen or fourteen. The specific charges filed related to one incident that occurred during this period.
At trial, the daughter, then seventeen years old, described the alleged incident of sexual activity. The father denied the accusation, and various members of the family, as well as family acquaintances, testified in support of the father. In addition to the daughter‘s testimony, the prosecution relied heavily on the testimony of four expert witnesses: Dr. William Palmer, Dr. Johanna McManemin, Dr. Ann Tyler, and Thomas Harrison. All four experts repeated the statements the daughter had made during interviews as to what had happened between her and her father. Each expert expressed his or her observations and opinions about whether the daughter was the victim of abuse. All four opined that the daughter had, in fact, been abused; some went further and said that she was a victim of incest and that her father was the culprit. The testimony of these four experts takes up almost two-thirds of the trial transcript and occupied several trial days.
At the conclusion of the trial, the judge found Rimmasch guilty. In so doing, he
On appeal, the dispositive issues relate to the testimony of the experts. The specific issues we address concern the propriety of the expert witness testimony to the following effect: the daughter was telling the truth; there is a psychological profile of the typical child victim of sexual abuse; the daughter conformed to the profile; and on the basis of that conformance and/or a subjective assessment of the daughter‘s credibility, the experts could opine that the daughter had been abused, that the daughter was a victim of incest, and that the father was the perpetrator of the abuse.
We first consider the claim that the experts improperly testified as to the truthfulness of the daughter‘s version of events. We will then consider the rest of the issues together. This division is largely a matter of convenience, attributable to the fact that the first claim can be disposed of under
I
The truthfulness issue presents two subsidiary questions: whether the experts actually testified that the daughter was telling the truth about the incident with her father; and, if so, whether the testimony was properly admitted.
Rimmasch contends that the experts testified to his daughter‘s truthfulness by actually stating that she was telling the truth and by conveying to the fact finder, via their opinions on abuse, a belief in her truthfulness. Such testimony, Rimmasch argues, invades the province of the jury and is improper under
We address the State‘s alternative hypothesis first.
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness....
This rule permits testimony concerning a witness‘s general character or reputation for truthfulness or untruthfulness but prohibits any testimony as to a witness‘s truthfulness on a particular occasion. See, e.g., United States v. Azure, 801 F.2d 336, 341 (8th Cir.1986) (construing
Some members of this Court have previously recognized that an expert may not express a direct opinion on whether a witness was truthful on a particular occasion. In State v. Lairby, 699 P.2d 1187 (Utah 1984), we were also presented with a child abuse case. In the lead opinion, authored by Justice Durham and joined by the Chief Justice, it is stated, albeit in dictum, that “Dr. Liebroder might have been able to testify about Wanda Lairby‘s psychological capacity for untruthfulness or delusional testimony, but Dr. Liebroder could not have offered any views on the testimony actually given.” Id. at 1199 (emphasis added).
The State urges that we not follow this dictum in Lairby but instead follow State v. Kim, 64 Haw. 598, 645 P.2d 1330 (1982). Kim is the only decision we have found that holds an expert‘s direct statement of
Arguably, [
Haw.R.Evid. 608(a)(1) ] would preclude the admission of Dr. Mann‘s statement since it arguably provided not only his opinion as to the character of the witness, but an opinion as to whether the witness spoke truthfully on a specific occasion....We do not find this to be the case.... Essentially, the difference between an opinion as to character for truthfulness and an opinion as to the believability of a witness‘s statement is the difference between “I think X is believable” and “X‘s statement is believable.” We feel the admissibility of either statement should not turn on niceties of phraseology but on the probative value of the testimony. 64 Haw. at 609 n. 14, 645 P.2d at 1339 n. 14.
We disagree. Even if the distinction between opinions about a witness‘s character for truthfulness and opinions about the truthfulness of a witness‘s particular statements was based merely on “niceties of phraseology,” that distinction is embodied in the plain language of
The next question is whether the experts offered testimony that runs afoul of
To put this discussion in context, we set out two portions of Dr. Tyler‘s testimony that Rimmasch contends go directly to his daughter‘s credibility. In the first instance, Dr. Tyler was asked by the prosecutor to explain the basis for her opinion that the daughter had been sexually abused. Dr. Tyler responded: “Well, specifically, in
One of the things that we do when we are doing a clinical interview and looking at the reality of the statements is to consider the alternative hypothesis, which is that the individual is not telling the truth; and based on the richness of the detail and the uniqueness of some of the incidents that she described, I can‘t see that—well, then, if you would consider the alternative that [the daughter] is not telling the truth, then you would have to look at the consequences of the lie and what—why she would lie. And in talking with [the daughter] and reviewing her test data, I think she has only to lose.... [S]o I don‘t know what she would have to gain.
Does this testimony amount to giving a direct opinion on the truthfulness of the daughter‘s description of the incidents of sexual abuse at issue? Although it is arguable that this testimony amounts only to a statement of the basis of the expert‘s opinion on abuse, we conclude that the prosecutor, in eliciting this testimony and focusing on the reasons why Dr. Tyler thought the daughter was telling the truth, crossed the line and elicited a direct opinion on the daughter‘s truthfulness at the time she made her allegations of abuse. Through the first statement, the fact finder learned that Dr. Tyler, as an expert, had concluded that the daughter was telling the truth because of the amount of detail and clarity the daughter used in relating the alleged occurrences of sexual abuse. The second statement told the fact finder that one of the reasons Dr. Tyler thought the daughter‘s accusations of abuse against her father were truthful was because the doctor could envision no motive for the daughter to lie. We hold that the court violated
dence Dr. Tyler‘s testimony that the daughter told the truth when she described the alleged sexual abuse.
Rimmasch contends that the three other experts also gave testimony that was not admissible under
II
We now address the remaining challenges to the expert testimony. These concern the trial court‘s admission of opinion testimony that the daughter was the victim of sexual abuse and, according to some experts, that the abuse was a result of incest committed by her father. These opinions were based largely upon comparisons of the daughter‘s characteristics with those of the “typical” abused child and upon the experts’ subjective appraisals of the daughter‘s truthfulness during interviews. It is the grounding of opinions on these comparisons and appraisals that defendant challenges.
A brief overview of the expert testimony and the trial court‘s disposition of Rimmasch‘s objections to this testimony will set the stage for evaluating the propriety of its admission.3
Mr. Harrison was a member of a team of psychologists and social workers who first evaluated the daughter in 1983. At that time, she had been referred to the team because of conflicts with her family and misbehavior. The team administered a series of psychological tests to the daughter, and Mr. Harrison interviewed her twelve or more times immediately following the 1983 referral. Although he testified that the type of behavioral and psychological problems experienced by the daughter in 1983 can be caused by sexual abuse, the test results were consistent with other types of disorders and other causes.4 In 1983, the daughter did not allege sexual abuse, and the team did not conclude that she had been abused.
In 1984, Mr. Harrison again interviewed the daughter at the request of the prosecution. This time she alleged sexual abuse, and at trial, Mr. Harrison was of the opinion that she was the victim of incest and that she had been an incest victim in 1983
The fact that there were no opposing experts does not justify an inference that the experts’ testimony was reliable. Rather, the lack of defense experts highlights the importance of imposing on the proponent of scientific evidence the burden of establishing a proper foundation as a prerequisite to admissibility, especially in a criminal case. The prosecution has ready access to expert witnesses, whereas criminal defendants are generally “‘without the economic means to marshall scientific witnesses for a battle of the experts.‘” Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half Century Later, 80 Colum.L.Rev. 1197, 1244 (1980) [hereinafter Giannelli] (quoting State v. Williams, 388 A.2d 500, 506 (Me. 1978) (Nichols, J., concurring)).
when he first saw her. His conclusion was based in part on her conformance with the psychological profile of a sexually abused child, in part on her ability to demonstrate the alleged acts of abuse with anatomically correct dolls, and in part on his subjective appraisal of her veracity during the interview in which she described the alleged incidents of abuse.
Dr. Tyler interviewed the daughter twice. She and Dr. McManemin administered various psychological tests to the daughter. In furtherance of their diagnosis and treatment of the daughter, they also conducted interviews with other members of the family.
In her testimony, Dr. Tyler described various behavioral and psychological traits that she characterized as being typical of sexually abused children. She said that the daughter evinced a number of these, including “the running away, the poor school behavior, the ambivalence, the self-destruction, the damaged goods self-blame, [the] nightmares, [and] the promiscuity.” She then opined that the daughter had been sexually abused “by her father,” that she was a “victim of incest.” This judgment was based on a comparison of the daughter‘s traits, as evidenced by her behavior, the interviews, and the psychological tests, with those of the profile of a typical victim, as well as Dr. Tyler‘s subjective judgment of the daughter‘s credibility made during the interviews in which the daughter described the alleged incidents of abuse.
During her testimony, Dr. Tyler stated that the fact that the traits of an alleged victim conformed to the profile of a typical abused child would not be enough, without more, to warrant a conclusion that abuse
Dr. Tyler‘s testimony was similarly qualified regarding the results of the psychological tests administered to the daughter. The results of the tests could, at most, be said to have raised a red flag on the abuse issue, suggesting further research; the test results alone were not enough to permit one to say that abuse had occurred. She stated that her ability to render an opinion on abuse was heavily dependent on the interviews she had conducted with the daughter in which she judged the veracity of the daughter‘s version of the facts against the backdrop of the profile comparison and the psychological test results.
Dr. McManemin was an associate of Dr. Tyler‘s. In her testimony, she claimed more for the psychological test results than Dr. Tyler. Dr. McManemin asserted that the test results, in and of themselves, showed that it was “very likely” that the daughter had been abused. Like Dr. Tyler, Dr. McManemin compared the characteristics of the daughter with the profile “typical” of an abused child, specifically an incest victim. Among the characteristics she found to be exhibited by the daughter and which she stated were indicative of abuse were “[being] somewhat different than the other family members,” “looking for support outside the family,” “running away,” “stealing,” “a negative attitude toward sex,” and “bed wetting” at ages of less than seven or eight.
Dr. McManemin then went on to give an opinion based on the test data and the profile that the daughter had been “sexually abused repeatedly.” She opined, based on the additional information furnished by the interview with the daughter, that the abuser was her father. She even went further and testified that the whole family exhibited the characteristics of a family in which child sexual abuse was present.
Throughout the testimony of these key experts, which consumed almost two-thirds of the trial, little foundation was offered or demanded by the court as to the scientific basis for the profile of the typical sexually abused child, the ability of the profile to sort the abused from the nonabused with any degree of accuracy, or the ability of the experts to judge whether the daughter was telling the truth during the interviews.
The trial court admitted the expert testimony over the objections of defense counsel on the basis of several assumptions. First, the trial court appears to have concluded that no detailed foundation was necessary because certain statements in the lead opinion in State v. Lairby, 699 P.2d 1187, 1198-1201 (1984), sanctioned the admission of expert testimony about the characteristics of sexually abused children, comparisons of those characteristics with the victim in the case at issue, and the giving of an opinion on whether abuse occurred, even when that opinion is based in part on a subjective judgment of the veracity of the child during interviews. Second, the trial court appears to have been persuaded that the testimony was analogous to “battered child syndrome” evidence that we held admissible in State v. Tanner, 675 P.2d 539 (Utah 1983). Finally, and perhaps most fundamentally, the court appears to have resolved any doubts about the admission of this expert psychological testimony on whether abuse had occurred, in the absence of significant physical symptoms, by accepting the view implicit in the prosecutor‘s argument that any weaknesses in the foundation went to the testimony‘s weight, not to its admissibility.
Before we can properly evaluate Rimmasch‘s challenge to the trial court‘s admission of the expert testimony, we must determine the standard by which the admissibility of expert scientific testimony is to be judged. And this determination requires that we address initially the question of whether the lack of an adequate foundation for expert testimony precludes the admission of that evidence or whether
The admission of expert testimony is generally governed by
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
While this is the general rule for the admission of all expert testimony, where expert testimony is based upon novel scientific principles or techniques, courts have long imposed additional tests of admissibility that antedate the federal rules. The most commonly used is that set forth in Frye v. United States, 293 F. 1013 (D.C. Cir.1923). Under Frye, “in addition to satisfying the traditional requirements of relevancy and helpfulness to the trier of fact, the proponent must show general acceptance of the principle or technique [upon which the testimony is based] in the scientific community.” McCormick, McCormick on Evidence § 203, at 605 (E. Cleary, 3d ed. 1984) [hereinafter McCormick]; see, e.g., Phillips v. Jackson, 615 P.2d 1228, 1233 (Utah 1980). As we noted in Phillips, the purpose of a more restrictive test for judging the admissibility of scientific testimony is to assure, as a threshold matter, that the evidence is sufficiently reliable to go to the finder of fact. Id.
One danger being guarded against is the tendency of the finder of fact to abandon its responsibility to decide the critical issues and simply adopt the judgment of the expert despite an inability to accurately appraise the validity of the underlying science. See McCormick at 607-08; 3 J. Weinstein & M. Berger, Weinstein‘s Evidence ¶ 702[03], at 702-42, -43 (1988) [hereinafter Weinstein]. The Frye “general acceptance” test accomplishes this reliability screening because “[v]erification of the basic principle and its application through widespread replication and practical usage is an appropriate indicium of reliability.” Phillips v. Jackson, 615 P.2d at 1233 (citations omitted).
In recent years, the Frye test has been criticized as being too restrictive because, inter alia, in some circumstances it can operate to deny admission of evidence based on newly discovered principles that may be reliable but so new that they cannot be said to have attained general acceptance in what may be deemed to be the relevant scientific community. See Phillips v. Jackson, 615 P.2d at 1234-35; Kofford v. Flora, 744 P.2d 1343, 1361 (Utah 1987) (Durham, J., concurring in the result); McCormick at 606-08; McCormick, § 203, at 69 (Supp.1987). In Phillips, this Court was asked to determine whether proffered scientific evidence based on HLA tests purporting to determine accurately the probability that a specific individual is the parent of a specific child was sufficiently reliable to be admitted and to fix the standard by which such a determination would be made. There, we followed the modern trend and abandoned exclusive reliance on Frye.5 “Inherent reliability,” rather than “general acceptance,” became the touchstone of admissibility under Phillips. 615 P.2d at 1234. However, Phillips did state that even if satisfaction of the “general acceptance” test was not a sine qua non of admission, “a showing of gen-
It is against this background that the parties in the present case make their contentions regarding the standard that governs the admission of expert scientific testimony. Rimmasch argues that the proper test is that established by Phillips: “An analysis of the admissibility of scientific evidence, while taking into account general scientific acceptance and widespread practical application, must focus in all events on proof of inherent reliability.” Id. at 1234. Rimmasch asserts that the trial court erred in admitting the expert opinion testimony that the daughter was abused based on the profiles and on the experts’ subjective appraisals of the truthfulness of the daughter because the court did not first require an adequate foundational showing that the scientific premises upon which such testimony was based are inherently reliable, as required by Phillips. See also Kofford, 744 P.2d at 1347. And, Rimmasch asserts, there was certainly no showing that the scientific principles or techniques in question were generally accepted in the relevant scientific community and therefore eligible for judicial notice. See Kofford, 744 P.2d at 1348.
The State responds that the “inherent reliability” threshold requirement for scientific evidence announced in Phillips in 1980 has been superseded as a result of the 1983 adoption of
The precise issue presented here—whether all threshold reliability requirements for scientific testimony, either of Frye or of Phillips, were done away with by the adoption of
To frame our analysis of Rimmasch‘s claims, one more point needs to be made regarding expert scientific evidence. The question of the admissibility of such evidence may be presented in two different ways: a request that the trial court take judicial notice of the “inherent reliability” of the testimony‘s foundational principles or techniques or, alternatively, a request that the trial court determine that these principles or techniques are inherently reliable after an evidentiary hearing addressing the issue.7
Kofford is a case in which the question of judicial notice was presented. There, we considered HLA test evidence for the first time since Phillips. Kofford demonstrates that a very high level of reliability is required before judicial notice can be taken. In Kofford, after reviewing the literature and the decisions of other courts, we concluded that, without exception, scientific scholars agreed that the HLA test was reliable as long as the test was conducted properly. 744 P.2d at 1348. We also noted that numerous courts had reached the same conclusion, i.e., that the HLA test was generally accepted in the scientific community as a reliable means for determining paternity. Id. Because the principles underlying HLA evidence met the
Frye standard of general acceptance, we concluded that it was a suitable subject for judicial notice. Id.; see
The second situation a court may encounter occurs when the basic principles underlying proffered expert scientific testimony are not suitable for judicial notice because their reliability is not beyond being reasonably questioned. Under Phillips and Kofford, the proponent of scientific evidence that does not qualify for judicial notice must make an initial foundational showing that convinces the trial court that the principles or techniques underlying the proffered testimony meet Phillips’ standard of inherent reliability before the trial court can proceed to consider the normal foundational questions appropriate to any expert testimony. Phillips, 615 P.2d at 1236; Kofford, 744 P.2d at 1347. In the absence of such an initial showing, the evidence is to be excluded. Moreover, a showing of the inherent reliability of the underlying principles or techniques must be made in each case in which similarly grounded evidence is offered.8 Cf. Kofford, 744 P.2d at 1348.
In sum, if this Court‘s position on the spectrum of opinions held by the various
With the proper standard in mind, we now proceed to consider Rimmasch‘s remaining challenges to the admissibility of the experts’ testimony. These challenges can be grouped around two somewhat interrelated issues. First, Rimmasch argues that the trial court erred when it permitted three of the four experts to give their opinions that the daughter was abused or was the victim of incest when their opinions were not based on physical evidence, but on her conformance with a profile typical of children who purportedly had been abused. This testimony, Rimmasch argues, is without adequate foundation in the record.
weighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
In making this determination, the relative probative value of the proffered scientific evidence of a fact in issue becomes important. For example, if the scientific proof is based on undeniably valid scientific premises, has a high degree of power to accurately determine the existence or nonexistence of a fact in issue, and is easily replicable and its application to similar situations has been tested and validated often, then the dangers of unfair prejudice, confusion of the issues, misleading the jury, etc., attendant to its introduction would have to be great indeed to preclude its admission. See Phillips v. Jackson, 615 P.2d at 1236-37. But if there were weaknesses in the testimony on some or all of these points, then it would be relatively easier to show that the dangers of admission outweighed the probativeness of the testimony.
Similarly, the potential for unfair prejudice, etc., posed by the admission of various types of expert scientific evidence can vary widely and must be considered in making the helpfulness determination. Among the important variables are the nature of the evidence offered, the quality of the other evidence available to the finder of fact, and the centrality of the issue to which the scientific evidence is directed. For example, when the principles underlying scientific evidence are easily demonstrable or are readily understood by lay persons, there is relatively less danger that the finder of fact will be confused by the presentation or unduly impressed with the apparent “scientific” nature of the evidence. McCormick at 609; 3 J. Weinstein & M. Berger, Weinstein‘s Evidence ¶ 702[03], at 702-42 to -43 (1988) [hereinafter Weinstein]. This may justify the admission of evidence with relatively less probative power. “On the other hand, when the nature of the technique is more esoteric, as with some statistical analyses and seriologic tests, or when the inferences from the scientific evidence sweep broadly or cut deeply into sensitive areas, a stronger showing of probative value should be required.” McCormick at 609. Such a “sensitive area” is one central to the core of the fact-finding process—whether one witness or another is telling the truth. Id.; Evidence in America § 51.3.
Consideration of the first issue, the propriety of the profile testimony, is best broken down into two separate questions: first, whether a court may take judicial notice that the scientific principles and techniques underlying the experts’ profile testimony are inherently reliable; second, if not, whether the prosecution laid a sufficient foundation for the admission of such expert testimony. The reason we deal first with the question of judicial notice is that on appeal, we sustain a trial court‘s evidentiary ruling on any available ground, even though it may be one not advanced below. See, e.g., State v. Gray, 717 P.2d 1313, 1316 (Utah 1986); State v. Gallegos, 712 P.2d 207, 209 (Utah 1985); State v. Bryan, 709 P.2d 257, 260 (Utah 1985). If the inherent reliability of the scientific principles and techniques underlying the testimony in question is eligible for judicial notice, even though the trial court did not recognize this fact, then we need not consider the adequacy of the foundation actually laid.
In Kofford, we held that the reliability of scientific principles and techniques underlying HLA testing were legitimate subjects of judicial notice because they had been recognized generally by the legal and scientific communities. 744 P.2d at 1348. Some courts have admitted profile testimony to prove that abuse has occurred; however, unlike the situation in Kofford, there is no unanimity in the legal community as to the inherent reliability of a child sexual abuse profile to show that abuse has actually occurred with respect to a specific alleged victim. Compare State v. Kim, 64 Haw. 598, 645 P.2d 1330, 1338-39 (1982) (admitting); Kruse v. State, 483 So.2d 1383, 1385-86 (Fla.Dist.Ct.App.1986) (admitting); Allison v. State, 179 Ga.App. 303, 308-09, 346 S.E.2d 380, 385 (1986) (admitting) with People v. Roscoe, 168 Cal.App.3d 1093, 1098-1101, 215 Cal.Rptr. 45, 49-50 (1985) (excluding); State v. Hudnall, 293 S.C. 97, 100, 359 S.E.2d 59, 61-62 (1987) (excluding); People v. Pullins, 145 Mich.App. 414, 420-21, 378 N.W.2d 502, 505 (1985) (excluding); see State v. Taylor, 663 S.W.2d 235, 240-42 (Mo.1984) (rape trauma syndrome evidence inadmissible to prove rape occurred); Myers at § 4.16; Comment, Syndrome Testimony in Child Abuse Prosecutions: The Wave of the Future?, 8 St. Louis U.Pub.L.Rev. 207, 218 (1989); Comment, The Admissibility of Expert Psychological Testimony in Cases Involving the Sexual Misuse of a Child, 42 U. Miami L.Rev. 1033, 1048-50 (1988); McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 Or.L.Rev. 19, 41 (1987).
The trial court may have concluded, based on a discussion in the lead opinion in State v. Lairby, 699 P.2d at 1200-01, of the admissibility of expert psychological opinion testimony on whether a particular child had been sexually abused, that this Court had resolved any threshold reliability doubts and had determined that expert testimony of the type offered here is admissible in Utah trial courts. Lairby does not constitute such a determination. The referenced language in the lead opinion was dictum only.
The record also suggests that the trial court may have been persuaded that, as a matter of law, the threshold reliability of the proffered expert testimony was adequately established by analogizing it to “battered child syndrome” evidence held admissible in State v. Tanner, 675 P.2d 539 (Utah 1983). This analogy is not factually or legally convincing. The battered child syndrome consists of “a brief set of narrow, specific, and predominantly physical symptoms” that constitute an accepted medical diagnosis suggesting that the cause of the injuries in question was not accidental. Georgetown Note at 448; see State v. Tanner, 675 P.2d at 542-43. In Tanner, we concluded that “the concept of the battered child syndrome is grounded in scientific research and is widely accepted in
In contrast, the child abuse profile consists of a long list of vague and sometimes conflicting psychological characteristics that are relied upon to establish the fact of injury in a specific case as well as the cause. And neither the record nor our independent research demonstrates that there is general acceptance of child abuse profile evidence as a determinant of abuse either by the legal community, as noted above, or by the scientific community, as discussed below. Tanner cannot therefore support the trial court‘s admission of the profile evidence.
Not only is there a lack of any concensus about the ability of the profile to determine abuse, but the scientific literature raises serious doubts as to the reliability of profile testimony when used for forensic purposes to demonstrate that abuse actually occurred. Scholars acknowledge that no uniformly identifiable psychological profile applies to sexually abused children as a class.10 They make two related points. First, children may have widely varying reactions to abuse, so that “typicality” is hard to determine. The truth of this proposition is attested to by the fact that exist-
ing profiles use very general descriptive terms, such as “guilt” or “anxiety” or “nightmares,” to describe the characteristics of abused children. For similar reasons, some lists of characteristics of abused children include contrasting traits, such as “regressive behavior” and “pseudo-mature behavior,” “acting out” and “withdrawal.” Myers § 4.15, at 153; see Georgetown Note at 451-53 (discussion of several proposed profiles). The second criticism directed at profiles is that psychological characteristics often said to be indicative of abuse may also describe persons suffering from a wide range of emotional problems unrelated to sexual abuse. See McCord, Expert Psychological Testimony About Child Complainants in Sexual Abuse Prosecutions: A Foray into the Admissibility of Novel Scientific Evidence, 77 J.Crim.L. & Criminology 1, 23 (1986); Georgetown Note at 444-48. The vagueness and overinclusiveness of these profiles mean that in the view of many experts, they are not particularly helpful in deciding whether abuse has occurred.11
Suffice it to say, then, that the literature in the area is disparate and contradictory and that child abuse experts have been unable to agree on a universal symptomology of sexual abuse, especially a precise symptomology that is sufficiently reliable to be used confidently in a forensic setting as a determinant of abuse. See Cerkovnik, The Sexual Abuse of Children: Myths, Research, and Policy Implications, 89 Dick.L.Rev. 691, 705-08 (1985) (compilation of studies on victims of sexual abuse); Georgetown Note at 439-48. It is also fair
A brief review of the experts’ testimony confirms that they based their opinions
that the daughter was abused on a psychological profile indistinguishable from those discussed above. The characteristics of the daughter relied upon as points of conformance with the profile included the following: running away, poor school behavior, ambivalence, self-destructive attitudes, nightmares, promiscuity, poor self-image, negative attitude toward sex, and bed wetting at a young age.12 Illustrative of the generality of the profile is Dr. McManemin‘s statement that “toileting accidents are usually a symptom of sexual abuse.”13
has a tendency to mislead and confuse a finder of fact by suggesting that the issue to be decided is whether the accusing child possesses these characteristics, rather than whether the child experienced the specific instances of abuse described. See State v. Rammel, 721 P.2d 498, 501 (Utah 1986) (“Even where statistically valid probability evidence has been presented[,] courts have routinely excluded it when the evidence invites the jury to focus upon a seemingly scientific, numerical conclusion rather than to analyze the evidence before it and decide where the truth lies.“); State v. Lindsey, 149 Ariz. 472, 474-75, 720 P.2d 73, 75 (1986) (expert‘s opinion as to credibility may not be indirectly adduced by allowing the expert to quantify the percentage of victims who are truthful in their initial reporting of abuse despite subsequent recantation); Powell v. State, 527 A.2d 276, 279 (Del.1987) (admission of expert testimony that 90 percent of child abuse victims were telling the truth was error).
Furthermore, the issue in cases where child sexual abuse has been charged is not whether the child has been abused, but whether the child has been abused by this particular defendant. See Bussey v. Commonwealth, 697 S.W.2d 139, 141 (Ky.1985) (where evidence showed that child may have been abused by someone other than defendant, profile testimony was immaterial). When the fact finder is allowed to focus on the child‘s psychological characteristics rather than on the alleged incidents of sexual abuse, the danger exists that the defendant will be convicted merely because the child appears to have been sexually abused; the fact finder will have a tendency to presume that the person on trial was the abuser. In State v. Saldana, 324 N.W.2d 227 (Minn.1982), a rape prosecution, the court stated:
The jury must not decide this case on the basis of how most people react to rape or on whether Fuller‘s reactions were the typical reactions of a person who has been a victim of rape. Rather, the jury must decide what happened in this case, and whether the elements of the alleged crime have been proved beyond a reasonable doubt.
Having concluded that the trial court here could not properly have taken judicial notice of the inherent reliability of the scientific principles and techniques upon which the profile testimony was based, we must next determine whether the trial court properly admitted the evidence and the opinion grounded upon it based on the foundational showing made by the state. According to Phillips, that foundational showing must explore with careful precision such questions as the correctness of the scientific principles underlying the testimony, the accuracy and reliability of the techniques utilized in applying the principles to the subject matter before the court and in reaching the conclusion expressed in the opinion, and the qualifications of those
In fairness to the experts here, Mr. Harrison and Dr. Tyler both acknowledged that the symptoms upon which they based their finding of conformance with the profile were ambiguous and could be attributable to other causes. Indeed, Mr. Harrison had done just that in 1983. And Dr. Tyler testified that conformance with the profile alone would not justify concluding that abuse was more likely than not the cause of the daughter‘s psychological and behavioral problems. Unless the symptoms and characteristics manifested by a particular child are likely caused only by sexual abuse, it is a faulty syllogism to permit an expert to base an opinion that the child was sexually abused on such evidence. Myers, supra note 10, at 158. For example, in
actually gathering the data and analyzing it. See Phillips, 615 P.2d at 1235.
In fine, the trial court should carefully explore each logical link in the chain that leads to the expert testimony given in court and determine its reliability. Only with such information can the overall decision on admissibility be made intelligently. In the absence of such a showing by the proponent of the evidence and a determination by the court as to its threshold reliability, the evidence is inadmissible. See Phillips, 615 P.2d at 1233-36; Kofford, 744 P.2d at 1347; State v. Maule, 35 Wash.App. 287, 295-96, 667 P.2d 96, 100 (1983); In re Amber B., 191 Cal.App.3d 682, 691, 236 Cal.Rptr. 623, 629 (1987).
The difficulty presented by the record in the instant case is that the trial court did not follow the approach dictated by Phillips and the State made no real effort to lay a foundation that would permit a determination of reliability. Instead, the court appears to have accepted the State‘s argument that reliability concerns went only to the weight to be given the evidence, not to its admissibility. As noted above, we reject that view. But even though the trial court followed the wrong standard, is there sufficient record evidence so that we can say Phillips was satisfied and that an adequate foundation was laid for a determination that the evidence was reliable? The answer is no.
Dr. Tyler was the first expert witness to testify. When defense counsel called for a proffer concerning Dr. Tyler‘s testimony, the prosecutor stated that Dr. Tyler would
In re Cheryl H., 153 Cal.App.3d 1098, 200 Cal.Rptr. 789 (1984), an expert testified that the three-year-old complaining witness had exhibited behavior with anatomically correct dolls and talked about sex in ways that indicated that she was a victim of sexual abuse. The appellate court noted that such behavior “appears to be unique to children subjected to child abuse.” 153 Cal.App.3d at 1117, 200 Cal.Rptr. at 800. If the court was correct and if a foundation was established showing that such behavior is unique to child victims of sexual abuse, then it was logical to conclude that a child manifesting that behavior was a victim of sexual abuse, and the court properly admitted such testimony. See Myers, supra note 10, at 158.
At the conclusion of the voir dire, the State asked the court to rule that Dr. Tyler was an expert and could give the proffered opinion. The court made such a finding, over the objection of defense counsel.14 No additional foundation for the sexually
abused child profile testimony was laid by any of the other expert witnesses. In each case, defense counsel renewed his foundational objection to the opinion testimony and had that objection overruled.
Although the court made a finding that Dr. Tyler and the other expert witnesses were experts, it made no determination that the scientific principles and techniques upon which their testimony was to be grounded were reliable. This is understandable because there was no evidence before the court from which any such determination could be made. In fact, the little information given about the strength of the profile by Dr. Tyler should have led the court to conclude that the profile testimony was insufficiently determinative of abuse to be found reliable enough to pass the threshold admissibility requirement of Phillips, which is subsumed by
For the foregoing reasons, we find that the trial court violated
The Court: Your objection will be noted. You may proceed.
Each expert, in explaining the basis for his or her opinion that the daughter had been abused, told the court that he or she relied not only on the daughter‘s conformance with an abuse profile, but also on his or her individual appraisal of the daughter‘s demeanor and affect during interviews in which she told her version of the events. We have already determined that there is insufficient foundation in the record to permit a finding of the necessary threshold reliability of the abuse profile. The next question is whether the experts’ appraisal of the daughter‘s credibility is based on scientific principles or techniques that are sufficiently reliable to permit the admission of testimony based upon that appraisal.
It is helpful to review the experts’ testimony on this particular point before analyzing its admissibility. Dr. Palmer had found the physical evidence to be inconclusive of abuse or even intercourse. After the examination, he interviewed the daughter about her sexual history, at which time she described the alleged incidents of abuse by her father. When asked by the prosecutor whether he thought that the daughter was a victim of incest, Dr. Palmer stated, “My opinion would be that based upon what she told me during the evaluation,
As has been noted by one authority, “[o]pinions which are based in large measure on a subjective analysis may have less probative value because it may be difficult to evaluate the skill of the expert in extrapolating a judgment from the scientific data.” Weinstein, supra note 8, at 702-42 (citing United States v. Williams, 583 F.2d 1194, 1198 (2d Cir.1978) (spectrography is qualitatively different than polygraph evidence, because in polygraph analysis, the examiner must extrapolate from the data a judgment of something that is not directly measured by the polygraph test, whereas spectrography involves no such subjective interpretations of the data), cert. denied, 439 U.S. 1117, 99 S.Ct. 1025, 59 L.Ed.2d 77 (1979)); see also McCormick, supra note 5, at 609-10.
the appropriateness of her affect in my experience that she has been the victim of sexual abuse within her family.” (Emphasis added.)
Mr. Harrison was a member of a team of psychologists and social workers who evaluated the daughter in 1983. The psychological tests and interviews constituting this evaluation showed symptoms that were consistent with not only sexual abuse but other causes and types of disorders. The daughter did not allege sexual abuse at that time, and the team did not conclude that she had been abused.
In 1984, Mr. Harrison again interviewed the daughter at the request of the prosecution. This time, the daughter did allege sexual abuse. During the course of the interview he had her replicate the sex acts with anatomically correct dolls.16 Mr. Harrison concluded that she was a victim of incest. When asked to explain what constituted the basis for this opinion, Mr. Harrison stated:
The information [the daughter] gave me ... from the interview, that she was able to not just give me cognitive, verbal data, not just able to tell me about an act, but she was able to put it in the context of a relationship, a family, a chronological order, and she showed the appropriate affect.
Dr. McManemin administered psychological tests to the daughter and interviewed her. She opined that the daughter had
with anatomically correct dolls was not, in and of itself, as significant as it would be if a younger child had that ability. Mr. Harrison‘s testimony shows that the daughter was asked to use the dolls not to determine whether she knew about sex, but as a test of her credibility, i.e., to see whether she would become confused in trying to illustrate her narrative. In dealing with a much younger child, anatomically correct dolls might be used to test something other than credibility, specifically, whether the child has a knowledge of sexual matters beyond the norm. The opinion for two members of the Court in State v. Lairby implied that expert testimony concerning a child‘s verbal indicators of sexual knowledge beyond the norm might be admissible. 699 P.2d at 1200, 1201 & n. 15; see supra note 12. Of course, a proper foundation would have to be laid.
Dr. Tyler‘s testimony has been reviewed in some detail earlier. Her opinion that the daughter had been abused and that the father was the abuser was grounded largely on her appraisal of the daughter‘s credibility. In fact, she testified that absent the interviews, she would not have had enough information to form an opinion.
The foregoing demonstrates that for each expert, his or her opinion that the daughter had been abused and that the father was the perpetrator was based on a subsidiary opinion that the daughter was telling the truth when she made statements about the abuse. The admissibility of this opinion must be appraised under
potential for unfair prejudice. See supra note 8.
On the first issue, there is no basis for taking judicial notice of the reliability of the principles or methodologies underlying the experts’ credibility appraisals. As a general matter, scientific expert testimony that purports to determine whether a witness is truthful on a particular occasion is not admissible, largely because there has been no demonstration that such a determination can be accurately made. See, e.g., State v. Rebeterano, 681 P.2d 1265, 1268-69 (Utah 1984) (polygraph examination results admitted only on stipulation waiving objection to admissibility); State v. Tuttle, 106 Utah Adv.Rep. 6, 10 (April 12, 1989) (hypnotically enhanced testimony not admissible); State v. Rammel, 721 P.2d 498, 500-01 (Utah 1986) (error to admit testimony of police officer as expert on likelihood of suspect lying).
On a more specific level, nothing has come to our attention suggesting a general acceptance of the proposition that those who regularly treat symptoms of sexual abuse are capable of determining with a high degree of reliability the truthfulness of allegations that one has been abused. In fact, the better view of the matter is to the contrary. As Professor Myers states in his treatise, “The more persuasive decisions reject expert testimony on the truthfulness of allegations of abuse or on the credibility of a particular child.” Myers at 161; see id. at 166. Cases that support this position are plentiful. See, e.g., State v. Lindsey, 149 Ariz. 472, 475-76, 720 P.2d 73, 76 (1986); State v. Taylor, 663 S.W.2d 235, 239 (Mo.1984) (en banc); State v. Fitzgerald, 39 Wash.App. 652, 656-57, 694 P.2d 1117, 1121 (1985); Kruse v. State, 483 So. 2d
one person allows a psychiatrist not only to draw valid conclusions about the mental state and behavior of that person but to draw equally valid conclusions about the conduct of another person.
153 Cal.App.3d at 1118, 200 Cal.Rptr. at 801. The court went on to conclude that the psychiatrist‘s opinion that the father abused the child was inadmissible. Dr. McManemin‘s opinion and that of the other experts purporting to identify the culprit would appear to be subject to the same objection.
It should not be surprising that those who undertake to treat persons who may have suffered sexual abuse have no peculiar competence to judge the credibility of their patients. Symptoms may be treated effectively without knowing for certain their precise cause. This is not to denigrate the talents of experts such as those who testified in this case. Working hypotheses relied upon by therapists may be useful for treatment purposes; however, that does not mean that they are reliable enough to be used for forensic purposes. See McCormick § 206, at 636 n. 97; Georgetown Note at 452.
Since the inherent reliability of the principles underlying the credibility determinations of the experts in this case have not been shown to be eligible for judicial notice, the next question is whether the record contains enough foundation to permit us to conclude that the evidence was properly admitted. Under our decisions in Phillips and Kofford, the burden is on the party proffering the evidence to demonstrate that it has the requisite degree of reliability. In the present case, the State made no effort to show that these experts were capable of reliably determining whether the daughter was telling the truth either from the content of the story or from the daughter‘s affect when telling it. And the testimony of the experts themselves does not support such a finding. They only testified that they had experience dealing with abused children and that on the basis of that experience, they had
formed an opinion that the daughter had been abused based in part on their judgment of her credibility.
The trial court admitted the evidence over objection, apparently on the erroneous assumption noted earlier, that the lack of foundation went to the weight, not to the admissibility, of the evidence. As a result, a foundation demonstrating the necessary reliability is entirely lacking. We are therefore forced to conclude that the trial court erred in permitting the experts to give opinions on abuse based on their purportedly scientific appraisals of the daughter‘s truthfulness when she made her allegations. This testimony should have been excluded under
We now consider the harmfulness of the evidentiary errors. If, in the absence of the evidentiary errors, there is a reasonable likelihood of a more favorable outcome for defendant, we must reverse the conviction. State v. Verde, 770 P.2d 116, 122 (Utah 1989); State v. Bell, 770 P.2d 100, 106 (Utah 1988); State v. Hackford, 737 P.2d 200, 204 n. 1 (Utah 1987); State v. Knight, 734 P.2d 913, 919-20 (Utah 1987);
Erroneous admissions of evidence are not as critical in a bench trial as where a jury is involved;18 however, the errors in this case had a pervasive impact on the trial. This case hinged on a determination of credibility. The daughter accused her father of sexual abuse. There was no physical evidence to corroborate the daughter‘s charges. The father denied the accusations, and witnesses testified in support of his version of the facts. On the other hand, the daughter‘s version of the events was bolstered principally by the testimony of the four experts challenged here. Their testimony was the primary focus of the trial. In substance, all four experts told the court that in their respective opinions, the daughter had been sexually abused by
The foregoing factors alone almost dictate the conclusion that the improperly admitted testimony had a substantial impact on the verdict. Our judgment that the improper expert testimony likely affected the outcome is confirmed by the trial judge‘s statement at the conclusion of the case. “It is the opinion of the Court that the State through the testimony of the alleged victim together with corroborating testimony of the expert witnesses called by the State has made out a prima facie case against the defendant and in favor of a verdict of guilt.” (Emphasis added.) Accordingly, we find that absent the error in admitting the testimony of the experts, there is a reasonable likelihood of a result more favorable to Rimmasch. The conviction must be reversed and the matter remanded for retrial.
HOWE, Associate C.J., and STEWART, J., concur.
DURHAM, Justice (concurring):
I join in the majority opinion but write separately to emphasize important conceptual distinctions between inadmissible opinion on credibility and other expert opinion
Notes
which only indirectly reflects on credibility and is not inadmissible on that ground. I write also to express my views on the specific analytic content of the “inherent reliability” standard.
The majority opinion correctly concludes that experts cannot testify directly about the credibility of a witness on a particular occasion.
The majority opinion refers to two portions of Dr. Tyler‘s testimony as examples of direct opinion testimony. The second example, which contained testimony that Dr. Tyler “could envision no motive for the daughter to lie,” was properly characterized as a direct comment on truthfulness and thus was inadmissible. The first example, however, contained testimony that only indirectly reflected on truthfulness. The following dialogue occurred on direct examination when the prosecutor asked Dr. Tyler to relate the basis for her opinion that the daughter had been abused:
Q. And in addition to listening to her and making note of what she was saying,
The opinion of a psychiatrist/psychologist is premised, in part, upon the statements of a patient and only differs from a physician‘s opinion in that the psychiatrist makes diagnoses concerning the human mind, while the physician ministers to the human body. Both use a patient‘s statements as an aid in reaching a final diagnosis. A psychiatrist does not purport to be an expert lie detector. The psychiatrist attempts to use available tests, patient histories, and psychological premises to identify problems and the causation of those problems just as the physician does.
did you also observe her as she was talking?
A. Yes.
Q. Based upon this and the tests that you have described that were given and scored, do you have an opinion, yes or no, as to whether [the daughter] was sexually abused?
A. Yes.
Q. And what is the basis for that opinion?
A. The basis for the opinion is the combination of the profile, the tests and the clinical interview with [the daughter], and the interviews with her siblings and her mom.
Q. All right. I would like you to tell us what specifically in the interview, in the tests, in your observations of [the daughter] in her telling what had occurred you are relying on in forming your opinion.
A. Well, specifically, in my opinion, one does not give this kind of information with the amount of details and the amount of clarity unless one has experienced it.
(Emphasis added.)
Dr. Tyler‘s response to the prosecutor‘s questions emphasized two factors among many that psychiatrists/psychologists weigh when diagnosing child sexual abuse—the amount of clarity and detail in the child‘s statements. It was not impermissible, under a
Psychiatrists are trained to evaluate the behavioral content of their patients’ communications. Thus, how a child describes abuse is as important to the trained clinician as what the child says during the interview. Factors such as facial expression, eye contact, richness of memory, unusual emotional reaction to neutral questions about sexual matters, developmentally abnormal sexual behavior, and age-inappropriate knowledge of sexual acts provide a basis upon which trained clinicians diagnose sexual abuse. See White, Behavioral Comparisons of Young Sexually Abused, Neglected, and Nonreferred Children, 17 J. Clinical Child Psychology 53-61 (1988); Kolko, Behavioral/Emotional Indicators of Sexual Abuse in Child Psychiatric Inpatients: A Controlled Comparison with Physical Abuse, 12 Child Abuse & Neglect 529-41 (1988). Other observable characteristics common to victims of child sexual abuse include
- consistency between the description given in the interview and what the child had previously reported,
- the ability of the child to provide explicit detail that could only have been learned by experience,
- the use of language appropriate to a child in describing that experience,
- corroboration of the details given by the child,
- a reported emphasis by the perpetrator on secrecy,
- the occurrence of multiple incidence [sic] over time,
- consistency between the extent of the abuse and the level of trauma exhibited by the child,
- the child‘s ability to demonstrate what occurred using anatomically correct dolls, and
- the presence of anger or fear on the part of the child toward the perpetrator of the abuse.
State of Tennessee v. Schimpf, No. 272, slip op. at 6, 1989 WL 25788 (Tenn.Crim.App. at Knoxville, Sept.1988) (Daughtrey, J., dissenting).
These characteristics “stand in contrast to nonspecific ‘symptoms’ ... relied upon by experts in other cases, such as nightmares, crying spells, bedwetting, difficulty in school, weight loss, unstable family relationships, general anxiety, and the like, which obviously could be the result of emotional trauma caused by problems other than child sex abuse.” Schimpf, slip op. at 6. Profile testimony based on specific observable characteristics, such as those summarized in the preceding paragraph, may well be admissible under our “inherent reliability” standard.
Before expert psychological testimony can be admitted in child sexual abuse cases, an adequate foundational showing must be made. The scientific principles and techniques upon which the testimony is grounded must be shown to be inherently reliable
Because admissibility decisions surrounding psychological evidence are complex, I think that the majority‘s mere articulation of an admissibility standard is insufficient. In order to assist trial courts in applying the inherent reliability standard in future cases, I believe that we should examine in more detail the content of that standard.
In Phillips v. Jackson, 615 P.2d 1228, 1234 (Utah 1980), inherent reliability “became the touchstone of admissibility” of expert scientific testimony. Majority opinion at 396. According to the majority opinion‘s interpretation of Phillips, the foundational showing necessary in an inherent reliability analysis is one that carefully examines questions such as the correctness of the principles underlying the scientific testimony, the accuracy and reliability of the methods utilized in application of the principles to the subject matter before the court, and the qualifications of the experts who gathered and analyzed the data. “In fine, [the majority concludes] the trial court should carefully explore each logical link in the chain that leads to the expert testimony given in court and determine its reliability.” Majority opinion at 403.
The questions explored by this Court in Phillips provide only limited guidance to trial judges who must apply the inherent
reliability standard. Furthermore, the inherent reliability standard articulated in Phillips was designed with “hard” physical science evidence in mind and thus fails to take into account a number of factors which are relevant when determining admissibility of “soft” psychological testimony. I believe that Professor David McCord‘s “four-factor balancing test,” which takes into consideration the unique characteristics of psychological testimony, would lend coherence to our inherent reliability analysis. McCord‘s approach examines factors particularly pertinent to psychological evidence in a manner which indicates how the factors apply in relation to each other. See McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 Or.L.Rev. 19 (1987); McCord, Expert Psychological Testimony About Child Complainants In Sexual Abuse Prosecutions: A Foray Into The Admissibility Of Novel Psychological Evidence, 77 J.Crim.Law & Criminology 1 (1986).
The four factors which are considered sequentially under Professor McCord‘s suggested approach are necessity, reliability, understandability, and importance. The necessity factor directs the court‘s attention to how necessary the offered testimo-
qualified” to give an opinion as to the daughter‘s truthfulness.
Although the record substantiated the defendants’ first argument, they made no objection at trial to the expert‘s qualifications to testify and thus waived their right to appeal that point. The defendants’ second argument was correct as well. However, they were precluded from challenging this failure “because every time the prosecution attempted to introduce such testimony, defense counsel objected and was erroneously sustained by the trial judge on the ground of hearsay.” Id. at 1200. As a result of the defendants’ improper hearsay objections, the expert was precluded from laying necessary foundation. In rejecting the defendants’ second argument, we stated, “Defendants may not improperly object to the admission of evidence and complain on appeal about its omission.” Id. at 1201. We rejected the defendants’ third argument as meritless. Thus, the questions now before this Court were not discussed, even in dicta, in Lairby.
At the threshold level, it must be asked if the testimony will add to the jurors’ knowledge. Psychological expert evidence frequently adds to a jury‘s understanding by providing new ways of looking at issues, by helping jurors utilize knowledge that they may already have, or by correcting jurors’ assumptions that are based upon common but erroneous perceptions. Thus, most psychological evidence will meet this threshold inquiry.
The second level of necessity inquiry is, however, the key one. Four sub-inquiries need to be made in determining how great the necessity for the testimony is: (1) Is there a close “fit” between the facts of the case and the subject matter of the expert testimony? (2) What is the level of jury insight on the issue at hand? Is there a substantial difference between the level of insight offered by the expert and the level of insight the court believes the jury is likely to have? (3) Has the opponent attempted to highlight “weaknesses” in the opposition‘s case? If so, expert testimony may be needed to explain why those weaknesses are not what they seem. (4) Do less objectionable alternative forms of testimony exist? Id. at 96-98. Answers to these sub-inquiries will vary from case to case.
The reliability factor has two components: accuracy and consistency. Courts must make this determination even though the subjective nature of psychological diagnoses often makes it difficult. Three sub-inquiries are especially important here: (1) Looking at the substance of the testimony and comparing it with the credentials of the expert giving it, is it plausible that this expert can make this diagnosis? Do clear diagnostic criteria exist? (2) What is the degree of acceptance by the pertinent scientific community of the accuracy of this particular scientific method? (3) How general is the testimony? The more general
the testimony, the more likely the evidence is reliable. Id. at 98-99.
The understandability factor refers to the ability of the jurors to understand the testimony and give it proper weight. Three sub-inquiries illuminate this factor: (1) How far removed from the jurors’ common experience is the subject matter of the testimony? The closer it is to the common experience, the more likely the jurors are to understand it and give it proper weight. (2) Does the opponent have access to experts and specialized literature allowing him or her to effectively cross-examine the proponent‘s experts and put the experts’ conclusions into perspective? (3) To what extent will the testimony overawe the jury? Testimony couched in statistical terms is more likely to overwhelm the jury than other forms of psychological evidence. The more subjective the conclusion, the less likely it is to overwhelm the jury. Id. at 100-01.
The last factor to consider is the importance of the expert testimony. The question that must be answered is, how crucial to the resolution of this case is the issue on which the expert testimony is being offered? If the expert opinion would be dispositive of the case if believed, then it ranks very high on the importance scale and must be carefully scrutinized. For example,
an expert diagnosis that a child complainant is a sexual abuse victim is very important, since whether the child was abused is one of the two key issues in a child sexual abuse case (the other being who perpetrated the abuse). By contrast, expert testimony that it is not uncommon for a child sexual abuse complainant to recant the accusation is of lesser importance because even if believed it does not dispose of the case. The jury still has to decide whether the complainant was in fact a child sexual abuse victim.
Id. at 101.
After identifying issues concerning the necessity, reliability, understandability, and importance of the proffered expert testimony, courts should undertake a balancing of
The balancing is necessary because none of the factors alone absolutely controls the analysis. Further, some factors may even cut in opposite directions. The subjective nature of the conclusions involved with nontraditional psychological evidence demonstrates this problem. Because the conclusions are subjective, they are less reliable. This cuts against admissibility. On the other hand, since the jury is likely to understand that the conclusions are subjective, the jury is less likely to be overawed by them, and this cuts in favor of admissibility.
Two pairs of factors are particularly interdependent in the balancing process. First, there is a strong correlation between reliability and importance. The greater the importance of the testimony, the greater should be its guarantees of reliability in order to gain admission. Testimony which is dispositive, or virtually dispositive of a case if believed, should have strong guarantees of reliability. On the other hand, if the testimony is less important, and thus will not be dispositive of the case, then the court usually should be willing to accept a lesser degree of reliability.
The second important interaction is between reliability and necessity. If the necessity for the evidence arises because of the opponent‘s actions, then the court should tolerate a lesser degree of reliability as the proponent is in a sense forced to offer the evidence to repair damage, and the opponent opened the door for the presentation of such evidence.
Id. at 102.
Admissibility decisions regarding psychological evidence will always be complex. However, Professor McCord‘s four-factor balancing test would at least “assure that courts are asking the right questions and taking the proper factors into consideration when making those difficult decisions.” Id. at 108.
HALL, Chief Justice (concurring and dissenting):
I agree that the trial court erred in admitting the opinion evidence of the State‘s expert witness. However, I am not persuaded that the error was other than harmless.
The case was tried to the court, sitting without a jury, and the evidence of the 17-year-old victim, standing alone, is sufficient to meet the State‘s burden of proof. I am thus of the view that in the absence of the evidentiary error, there would not have been a reasonable likelihood of a more favorable outcome for defendant.
I would affirm the conviction and judgment.
In Lairby, the defendants claimed that the trial court erred in admitting expert opinion testimony that their four-and-a-half-year-old daughter was a victim of sexual abuse. Defendants argued that (1) no foundation was given as to the expert‘s qualifications to diagnose the occurrence of sexual abuse in the absence of physical injuries; (2) insufficient foundation was laid as to whether statements made by the daughter to the expert were typically relied upon by experts; and (3) no foundation was provided to show why this expert was “more
Although relevant, evidence may be excluded if its probative value is substantially out-
The most casual examination of these symptoms reveals, however, that many of them are associated with other developmental and psychological problems of childhood and adolescence. For example, the fact that a child suffers from nightmares, loss of appetite, regression, and depression says very little, if anything, about sexual abuse. A myriad of other factors can cause such symptoms, and it would be improper for an expert to base an opinion relating to sexual abuse on such ambiguous symptoms alone.Myers, supra note 10, at 157; accord Golding, Mental Health Professionals and The Courts, supra note 9, at 32 n. 28; Georgetown Note, supra note 10, at 442 (quoting Rosenfeld, The Clinical Management of Incest and Sexual Abuse of Children, 22 Trauma 2, 3 (Oct.1980)), and Johnson, The Sexually Mistreated Child: Diagnostic Evaluation, 3 Child Abuse and Neglect 943, 947 (1979); McCord, supra note 10, at 23. Myers goes on to state that in the context of a prosecution for sexual abuse of a child, “a finding of sexually abused child syndrome [based on such ‘highly ambiguous symptoms‘] should be regarded as of de minimis evidentiary value but of great potential prejudice.” Myers, supra note 10, at 158. Profile testimony that portrays the characteristics of the typical victim of sexual abuse also
Mr. O‘Connell: Maybe with the expertise, okay. I think she is probably an expert in the field. I do not think that maybe she can draw this sort of a conclusion. I would object to her drawing the conclusion until we know that it is a conclusion based on some kind of data that one can draw a conclusion. I don‘t know there‘s any foundation on that. I don‘t dispute she is a psychologist or she studied in this area.
The Court: I think her testimony to this has been that she can logically draw that kind of opinion and conclusion from the data.
....
Ms. Lewis: Could I ask the Court, then, at this time to make a finding with reference to this witness’ expertise and ability based upon that to render an opinion.
The Court: All right. I will make that sort of finding that, based upon her education, experience, she‘s an expert in the field of clinical psychology, that‘s what you are?
The Witness: I am a licensed marriage and family therapist with training in psychology.
The Court: That, then.
Mr. O‘Connell: Just for the record I object to the finding, if it goes to—that she is qualified to render a conclusion as to whether or not sexual abuse actually occurred in this case without further foundation.
In In re Cheryl H., 153 Cal.App.3d 1098, 200 Cal.Rptr. 789 (1984), the court stated:
Dr. Powell‘s opinion that Cheryl‘s father was the abuser extends the subject matter of a psychiatrist‘s expert opinion far beyond anything that has yet been approved by California courts. It assumes peering into the mind of