The question in this case is whether a medical diagnosis of child sexual abuse is admissible scientific evidence. The trial court ruled that it is. After considering testimony regarding that diagnosis, as well as other evidence that defendant had abused his girlfriend’s two children, a jury convicted defendant of three counts of sodomy. The Court of Appeals affirmed the trial court’s judgment without opinion.
State v. Southard,
Defendant moved in with his girlfriend, her five-year-old son, and her three-year-old daughter. 1 Afterwards, defendant’s girlfriend (mother) was incarcerated for possessing controlled substances, and the state placed her children initially with their maternal grandmother and later with a foster mother. Both mother and the foster mother noticed that the then six-year-old boy began engaging in actions that concerned them. They reported
“that [the boy] had been caught on several occasions with his pants pulled down andtrying to get other kids to kiss his penis. Foster Mom described multiple incidents of [his] touching other kids on their bare bottoms. Additionally, [he] would frequently expose himself to adults and children in and out of the home. Mom and Foster Mom shared that [he] frequently grabs his groin area stating that his balls are sticking. Mom and Foster Mom feel this is a habit that has developed for [him].”
While visiting his maternal grandmother, the boy disclosed that defendant made him suck defendant’s penis and that defendant had made the boy’s younger sister do the same thing. After hearing that information, grandmother spoke with the children’s mother, who in turn called the foster mother. She recommended that mother call the Department of Human Services and the police. Those agencies referred both children to the KIDS Center, a nationally accredited medical facility in Deschutes County that examines children to determine whether they have been sexually or physically abused.
In determining whether abuse has occurred, the KIDS Center follows statewide interviewing and medical procedures as well as guidelines established by the American Professional Society on the Abuse of Children. Specifically, a team consisting of a social worker and a physician examine each child who is referred to the center. The social worker receives information from the referring agency and also takes a history from the child’s parents or caregiver. After reviewing that history, the social worker conducts a videotaped interview with the child, and the physician conducts a medical examination to see if there is physical evidence of abuse.
In conducting the interview and the medical examination, the social worker and physician ask open-ended questions to avoid suggesting an answer. They also tell the child at the beginning of the interview that “it’s okay to correct us, it’s okay to say, ‘I don’t know,’ it’s okay to say, T don’t remember.’ ” The center follows that protocol because, “[otherwise, kids won’t do that, and they’ll acquiesce to possibly what the adult would suggest.” The interview is videotaped and peer-reviewed to ensure that the interviewer is asking appropriate, nonsuggestive questions and also to ensure that the interviewer is not “using certain gestures or head motions that [suggest a particular] answer.” Based on the child’s history, the interview, and the medical examination, the social worker and the physician consult with each other, and the physician diagnoses whether sexual abuse has occurred. Another member of the KIDS Center then reviews their data and conclusion. In some cases, the center consults with other state and national organizations in making a diagnosis.
In this case, the doctor who examined the boy diagnosed him as having been sexually abused. The doctor who examined the girl was unable to diagnose whether she also had been sexually abused. In the course of reaching those conclusions, a social worker spoke with the boy’s mother and foster mother, who reported the behaviors (noted above) that had concerned them. The social worker also interviewed the boy, who told her that defendant “made [him] suck on [defendant’s] private.” The boy described other details about the sexual activity and said that “it would stop when his mom came home.” He “described seeing [his sister] sucking on [defendant’s] private and recalled that [defendant] ‘peed on [his sister].’ ” He added that his sister “sucked on [defendant’s] private ‘a lot more times more than I did, because he told her to.’ ” The interviewer spoke with the girl, who denied that any sexual contact had occurred.
A physician then conducted medical examinations of each child, which did not reveal any physical evidence of sexual abuse. Dr. Largent, the director of the KIDS Center, later testified that the absence of physical evidence was not surprising. She explained that the type of sexual contact that the boy reported “doesn’t leave any physical marks most of the time, nothing that we [can] see.” The social worker and physician accordingly considered the boy’s statements to them, as well as the history that they had received from the boy’s mother and foster mother, in determining whether sexual abuse had occurred. In deciding whether to credit the boy’s reports of abuse, they considered
The state charged defendant with two counts of sodomy regarding the boy and one count of sodomy regarding the girl. Before trial, the defendant filed a motion in limine to preclude the state from introducing “any diagnosis of ‘sex abuse’ on the groun[d] that such evidence is ‘scientific evidence’ under OEC 702 and must be subject to the foundational requirements for such evidence.” The trial court held a pretrial hearing to resolve defendant’s motion. In addition to the evidence set out above, the state offered evidence at the pretrial hearing that a diagnosis of sexual abuse is generally accepted within the medical community, that there are numerous published, peer-reviewed studies verifying the techniques that the KIDS Center uses to elicit and evaluate the information, and that the KIDS Center follows established guidelines in evaluating the information that it receives.
After considering that evidence, the trial court ruled that the diagnosis of sexual abuse was admissible. At trial, a physician from the KIDS Center testified that, after consulting with the social worker who had interviewed the boy and the director of the KIDS Center, she had diagnosed the boy as having been sexually abused. The state also introduced other evidence that defendant had abused the children, and the jury found him guilty of three counts of first-degree sodomy (two counts regarding the boy and one count regarding the girl). The Court of Appeals affirmed the resulting judgment without opinion. We allowed defendant’s petition for review to consider whether, under the circumstances presented here, a diagnosis of sexual abuse is admissible scientific evidence.
On review, both parties agree that a doctor’s diagnosis of child sexual abuse is scientific evidence. Because the diagnosis “possesses the increased potential to influence the trier of fact as [a] scientific assertion[ ],” the scientific principles on which the diagnosis rests must meet a minimum level of scientific validity for the diagnosis to be admissible.
State v. Marrington,
The parties’ debate invokes familiar principles. Over the past 25 years, this court has considered, in a series of cases, when scientific evidence will be admissible in both civil and criminal proceedings.
See, e.g., Marcum v. Adventist
Health System/West,
Much of the focus in our cases has been on the second step in the analysis — determining when scientific evidence possesses sufficient indicia of scientific validity to be admissible under OEC 702.
3
And we think that, logically,
Accordingly, we begin with the question whether the evidence possesses sufficient scientific validity to be admissible, and we base our decision on the record that the parties developed below. In
Brown,
this court rejected the notion that general acceptance within the relevant scientific community is the sole criterion for determining whether scientific evidence is admissible.
Not all of the factors that the court identified in
Brown
and
O’Key
will necessarily apply in a given case, nor has the court required that all or even a majority of the applicable factors be satisfied for evidence to be admissible.
See Marcum,
In undertaking that inquiry in this case, we note that a diagnosis of child sex abuse differs from other medical diagnoses. Most medical diagnoses provide jurors with information that is beyond their common experience; the diagnoses identify the occurrence of a complex medical condition, determine its cause, or predict the future resolution of the condition.
See Marcum,
In determining whether the diagnosis possesses sufficient indicia of scientific validity to be admissible, we begin by identifying the methodology that the KIDS Center used to make its diagnosis.
See Jennings,
Taking a history from family members or caregivers is neither novel nor unusual. Gathering a patient’s history from those sources is a standard feature of medicine relied upon by doctors to diagnose a wide variety of conditions. To be sure, the inferences that an expert draws from that history (and the principles that the expert uses to draw those inferences) may be subject to challenge. In this case, the boy’s history disclosed instances of sexualized behaviors, and the doctor explained that research had shown a strong correlation between the behavior that the boy exhibited and sexual abuse. 7 Defendant, however, did not challenge at trial the research on which the doctor relied to identify that correlation, and we see nothing in the first step in the methodology that the KIDS Center used (taking a patient’s history) that would cause us to question the scientific validity of its diagnosis.
The second procedure that the KIDS Center used— interviewing the patient — is also a standard component of a medical diagnosis. Interviewing a patient is often the only way for psychologists, psychiatrists, and other doctors to gather sufficient information to diagnose (and treat) a variety of conditions. Largent explained that interviewing children presents special problems, and the KIDS Center has several procedures in place to enhance the accuracy of those interviews. All the interviewers follow the Oregon Interviewing Guidelines, a statewide guideline for questioning children about abuse. 8 The guidelines that the interviewers follow are based on generally accepted techniques for interviewing children and have been the subject of extensive peer-reviewed literature.
The KIDS Center also conducts a medical examination to look for evidence that either confirms the reported abuse or provides alternative explanations for certain physical phenomena. In this case, the results of the medical examination were neutral. The examination revealed no physical evidence of
Finally, the KIDS Center seeks to determine, based on the child’s history, the interview, and the medical examination, whether the child has been sexually abused. Because there was no physical evidence of sexual abuse in this case, the KIDS Center based its diagnosis on (1) the boy’s reported behaviors and (2) its determination that the boy’s reports of sexual abuse were credible. As noted, defendant did not challenge at trial the scientific validity of the research showing a correlation between sexual abuse and the types of behaviors that the boy exhibited. And the kinds of considerations that the KIDS Center used to determine whether to credit the boy’s statements are standard fare in assessing credibility. Largent explained that, in evaluating the boy’s credibility, the KIDS Center considered whether the words that the boy used to describe the abuse were appropriate for a child his age, whether the reports were detailed, whether the details were consistent with other historical facts, and the circumstances under which the boy first reported the abuse. In evaluating the data that it gathered, the KIDS Center followed nationally accepted protocols for diagnosing child abuse.
Considering the totality of the procedures that the KIDS Center used and based on the record developed in this case, we conclude preliminarily that the KIDS Center’s diagnosis has sufficient indicia of scientific validity to be admissible. The experts were all qualified, the techniques used are generally accepted, the procedures rely on specialized literature in the field, and the procedures used are not novel. Furthermore, the KIDS Center follows numerous safeguards to enhance objectivity and increase the accuracy of the final diagnosis.
Defendant, for his part, recognizes that a diagnosis of child sexual abuse is admissible scientific evidence when physical evidence corroborates the doctor’s conclusion. He argues, however, that, without physical evidence of abuse, a diagnosis of child sexual abuse is too unreliable to be admissible. Defendant’s argument proves too much. If physical evidence were a necessary prerequisite of a scientifically valid medical diagnosis, trial courts would be hard pressed to admit any diagnosis of mental capacity, mental suffering, or even illnesses like migraines that have no visible outward manifestation. Indeed, the rule that defendant advances would preclude introducing some of the most traditional and important forms of scientific evidence in criminal trials, such as expert testimony to prove insanity. The limitation that defendant urges would impose an arbitrary restriction on the admission of expert medical testimony.
Defendant argues additionally that the lack of “falsifiability” of the studies relied upon by the doctors at the KIDS Center makes the diagnosis invalid. The thrust of defendant’s argument is that, without controlled experimentation and the elimination of independent variables to verify the accuracy of results, the conclusions that the national studies have drawn are not scientifically valid. Ethical concerns, however, counsel against the sort of controlled experimentation that defendant would require as a basis for admitting a medical diagnosis of sexual abuse, see
State v. Perry,
After considering the methodologies that the KIDS Center used to diagnose child sexual abuse, we conclude that
the diagnosis possesses sufficient indicia of scientific validity to be admissible.
10
Put differently, we cannot say that, based on this record, a diagnosis of child sexual abuse is “bad science” that should be excluded automatically as scientifically invalid.
See O’Key,
Although we agree with the trial court that the diagnosis is scientifically valid, scientific validity is not the end of the inquiry. To be admissible, the evidence also must be relevant, and its probative value must not be substantially outweighed by the danger of unfair prejudice.
Marcum,
This court faced a similar issue in
Brown.
Although the calculus differs slightly between this case and
Brown,
we reach the same conclusion that the court did in
Brown.
In determining the probative value of the doctor’s ultimate conclusion of sexual abuse, we note that her diagnosis did not tell the jury anything that it was not equally capable of determining on its own. As noted above, whether defendant caused the boy to engage in oral sex (and thus sexually abused him) does not present the sort of complex factual determination that a lay person cannot make as well as an expert. If the jury credited the boy’s reports of oral sex (which he recounted to his grandmother, the staff at the KIDS
The risk of prejudice, however, was great. The fact that the diagnosis came from a credentialed expert, surrounded with the hallmarks of the scientific method, created
a substantial risk that the jury “may be overly impressed or prejudiced by a perhaps misplaced aura of reliability or validity of the evidence^]”
Brown,
Other jurisdictions have held, in a related context, that a doctor’s diagnosis of sexual abuse is not helpful to the jury under FRE 702 (or those jurisdictions’ counterparts to that rule) and thus is not admissible. Those courts have concluded that a medical diagnosis on the “ultimate issue of sexual abuse” does not tell the jury anything that it is not capable of determining without expert assistance.
See United States v. Whitted,
As we understand those decisions, they rest on the proposition that the degree to which the diagnosis advances the jury’s ability to evaluate the evidence is minimal and that the risk that the jury will defer to the expert’s assessment outweighs whatever probative value the diagnosis may have. As Mueller and Kirkpatrick explain,
“Where the issue and subject are ones lay jurors can appreciate and evaluate by applying common knowledge and good sense, admitting expert testimony seems the wrong thing to do and may warrant reversal if it is likely to dissuade the jury from exercising its own independent judgment or if it effectively takes over the jury’s traditional function to judge the credibility of witnesses.”
Our holding today is narrow. The only question on review is whether a diagnosis of “sexual
abuse”
— i.e., a statement from an expert that, in the expert’s opinion, the child was sexually abused — is admissible in the absence of any physical evidence of abuse. We hold that where, as here, that diagnosis does not tell the jury anything that it could not have determined on its own, the diagnosis is not admissible under OEC 403. We do not consider, and our decision today does not resolve, whether any subsidiary principles that inform that diagnosis are themselves admissible. This court has recognized that, depending on the foundation and the purpose for which the testimony is offered, expert testimony regarding aspects of child sexual abuse with which a lay person ordinarily would not be familiar may be admissible.
See Perry,
We accordingly hold that, in these circumstances, the trial court erred in admitting the diagnosis of sexual abuse. The state has not argued that the admission of that evidence was harmless, and our review of the record confirms that the state reasonably has declined to make that argument.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Notes
On review, defendant challenges the trial court’s pretrial ruling that a diagnosis of sexual abuse is admissible, and we take the facts from the evidence brought out at the pretrial hearing. Most of those facts are not disputed. To the extent that a dispute exists, we state the facts consistently with the trial court’s ruling.
Defendant does not argue that sexual abuse is not a condition recognized within the medical community, nor does he argue that doctors do not diagnose and treat that condition. Rather, he acknowledges that, if there were physical evidence of abuse, a doctor could testify regarding his or her diagnosis of sexual abuse.
OEC 702 provides:
“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.”
The seven primary factors listed in
Brown
are: (1) the technique’s general acceptance in the field; (2) the expert’s qualifications and stature; (3) the use that has been made of the technique; (4) the potential rate of error; (5) the existence of specialized literature; (6) the novelty of the invention; and (7) the extent to which the technique relies on the subjective interpretation of the expert.
The four factors listed in
O’Key
overlap, to some degree, with the seven factors set out in
Brown.
They are: (1) whether the theory or technique can and has been tested; (2) whether the theory or technique has been subject to peer review; (3) the known or potential rate of error; and (4) the degree of acceptance in the relevant scientific community.
We recognize that, in diagnosing sexual abuse, a doctor may draw on subsidiary principles from the medical and social sciences. In this case, for example, the doctor relied on the way that children typically express themselves to determine whether the boy had been coached or was using his own words to describe his experience. She also noted a strong correlation between the boy’s reported behaviors and sexual abuse. Finally, she noted that the fact that the boy had not reported the abuse immediately did not necessarily mean that he had not been abused. Defendant did not challenge at trial the validity of those subsidiary principles; rather, he aimed his attack solely at the diagnosis itself — the doctor’s ultimate conclusion that the boy had been sexually abused. We limit our discussion to the testimony that defendant challenged.
Largent was careful to say that the behaviors that the boy exhibited (asking other children to “kiss” his penis and the like) did not necessarily establish that the boy had been sexually abused. Rather, she testified only that research showed a strong correlation between sexual abuse and those types of behaviors.
The KIDS Center also uses the Oregon Medical Guidelines and a forensic analysis guide designed by the American Professional Society on the Abuse of Children.
The court explained in
Brown
that the “ ‘accuracy of the [p]olygraph technique [cannot] be determined in a psychology laboratory setting or by the use of fictitious crimes under other testing circumstances. This limitation prevails for the simple reason that it is practically impossible to simulate conditions comparable to those involved in actual case situations.’ ”
Indeed, the nature of the medical diagnosis in this case makes it difficult for defendant to argue that the diagnosis does not meet a minimum level of scientific validity; that is, it is difficult to understand why experienced professionals, under controlled conditions, are incapable of accurately making the same determination that we expect of a panel of lay jurors to make — namely, whether sexual abuse has occurred.
This court did not defer to the trial court in determining the admissibility of scientific evidence under OEC 403.
See Brown,
To the extent that the doctor employed criteria that went beyond a juror’s common experience, defendant did not object to her explaining those criteria to the jury. Specifically, defendant did not object to the doctor’s testimony regarding how a child’s age and stage of development affects his or her ability to recount experiences, the kinds of words that a child the boy’s age typically would use to describe a sexual experience, or the fact that the boy’s delayed reporting did not necessarily mean that he had not been abused. The jury was thus free to employ those criteria in making its own assessment of the boy’s credibility. The question that this case presents is whether the doctor’s ultimate conclusion of sexual abuse, standing alone, added anything helpful to the jury’s deliberations.