People v. Beckley
People v. Beckley
Opinion of the Court
In these two cases, consolidated on appeal, each defendant was convicted by a jury of first-degree criminal sexual conduct.
i
A. PEOPLE v BECKLEY
Defendant, Robert Lee Beckley, was convicted of first-degree criminal sexual conduct for having sexual intercourse with his fifteen-year-old daughter. At the time of the incident, the victim had been living with her father; her parents were divorced.
She testified that on the evening of May 29, 1983, her father returned home, under the influence of alcohol,
According to the victim, the incident lasted
A few days later, the victim, accompanied by her grandmother, made a trip to defendant’s home so that she could pick up her belongings. On the trip, Wilda Beckley, testified that the victim said, " 'By the way, Grandma, that mess the other night, ... I made a mountain out of a molehill. . . . My dad didn’t do anything to me.’ ” The victim denied making such a statement.
The act of intercourse was not revealed until approximately one year later when the victim wrote about the incident in a journal for a high school English assignment. According to the victim, during the interim year she had told some of her friends about the passes, but had continued to deny that any intercourse had taken place. Apparently, the only person she told about the entire incident was her boyfriend. Further during the one-year time period between the incident and disclosure, she continued to see her father on various occasions. However, the victim and her father were never alone together._
The victim was the first witness called by the prosecution to testify. On cross-examination, the defense tried to discredit the victim’s allegations by suggesting that the complainant’s behavior was inconsistent with a person who had been victimized. Four specific items of behavior of the complainant were brought out on cross-examination: (1) the delayed disclosure, (2) the medium of disclosure, (3) the complainant’s continued desire to see the alleged offender, and, (4) the victim’s initial tendency to deny sexual intercourse.
Following testimony by the victim, the prosecution sought permission to call Robin Smietanka as an expert witness.
Ms. Smietanka testified that the bulk of psychiatric literature suggests that victims of sexual abuse exhibit certain patterns of behavior that are indicators of the abuse. Specifically, she commented on the four instances of behavior observed in the complainant.
On cross-examination the defense also centered its questioning on the victim’s lack of memory about conversations with persons concerning the incident. Ms. Smietanka testified that such inconsistencies were not necessarily indicative of a lie, but of an attempt on the part of the victim to minimize the event. Thus they were not inconsistent with behavioral patterns of sexually abused persons.
Defense counsel drew out the fact that the complainant’s parents had gone through a bitter divorce, that the complainant’s mother was very vindictive, and that within days preceding the journal entry defendant had hurt complainant’s feelings. Ms. Smietanka testified that these factors would be significant; however, "[t]he additional factors that you have asked about would certainly need to be explored, but just based on what you said, it would not rule out a sexual abuse.”_
On recross-examination the defense again tried to emphasize that the symptoms exhibited could be from another source. For example, whether or not school trouble could be the result of some other problem in the child’s life. Ms. Smietanka testified that it would be less likely to see school trouble as a symptom of sexual abuse. However, she did suggest that many of the same symptoms seen in a child of sexual abuse could be seen when the parents are divorcing.
Following the testimony, the defendant moved for a mistrial or to strike the testimony. The ground upon which the defense relied was that the witness’ testimony enhanced the credibility of the witness to the extent that she supported what the complainant was relating about the ultimate question in the case. The trial judge denied defendant’s .motion on the ground that the scope of the witness’ testimony was widened by defense counsel rather than by the prosecution.
Defendant’s conviction arises out of an incident involving her six-year-old daughter. Defendant was convicted of first-degree criminal sexual conduct on an aiding and abetting theory and sentenced to thirty to sixty years.
The victim accused her mother of holding down her arms and legs and forcing her to perform fellatio on defendant’s live-in boyfriend, Roy Erving. The incident came to the attention of the authorities when the victim was locked out of her home during January, 1985. It was at this time that she was placed in foster care. Initially, only Roy Erving was accused and it was not until June, 1985, that the victim raised allegations against her mother. This occurred when the victim began counseling at Lutheran Child and Family Services, during a group session called "Daughters United.”
The defendant has generally denied the allegations raised against her. In November, 1984, she moved out of the house that she and Roy shared for six years. Thereafter, defendant had ceased to have any type of relationship with Roy and argued that therefore there would be no reason for her to allow him to perform sexual acts on her daughter.
The prosecution’s first witness was Lynn Butter-field, a psychologist employed by Lutheran Child and Family Services. The trial court certified Ms. Butterfield as an expert over defendant’s objection.
On cross-examination defense counsel tried to elicit testimony that would suggest that the "symptoms” that the victim was experiencing were the direct result of being placed in foster care. Further, that she was lying in an attempt to get back at her mother and Roy for breaking up. In response, Ms. Butterfield testified that placing a child into a new setting could produce feelings of fear, lack of trust, and anxiety. As to the question about whether or not the victim was lying, Ms. Butterfield stated that such a conclusion could not be eliminated.
On redirect examination the prosecutor brought out testimony as to whether or not children had the ability to invent sexual acts. In response Ms. Butterfield testified generally that children basically have no knowledge of sexual acts and therefore there is no way a child could invent a specific sexual act without experiencing it. However, she qualified the answer, stating that much of what a child knows or is able to relate concerning sexual acts depends on the child.
The prosecution called a second expert, Dr. Shinedling, over defendant’s objection.
Consistent with Ms. Butterfield’s testimony, Dr. Shinedling testified that a child who had not experienced a sexual act typically could not fabricate the story. He qualified the statement by suggesting that the ability to fabricate would depend on the age of the child. However, sexually inexperienced children would tend to view a sexual act as something other than what it actually was. Concerning a sexually abused child’s disclosure patterns, he stated that it was rare for a sexually abused child to volunteer any information.
Thereafter, Dr. Shinedling testified regarding the tests he had specifically given the victim. The only conclusion that Dr. Shinedling drew, in terms of an opinion, were about the victim’s intelligence level. He suggested that the victim was borderline dull to normal range of intelligence.
ii
The Court of Appeals upheld the admissibility of the expert testimony in both cases.
A rape counselor’s testimony is admissible, un*705 der established precedent, for the narrow purpose of rebutting an inference that a complainant’s postincident behavior was inconsistent with that of an actual victim of sexual abuse, incest or rape, A cautionary instruction must be given to the jury. The evidence herein fits squarely into these categories. [161 Mich App 120, 129; 409 NW2d 759 (1987).]
The Badour panel ruled that the trial court did not abuse its discretion because Ms. Butterfield did not testify regarding "rape trauma syndrome.” Rather, she testified merely regarding a child’s behavior following an alleged incident of sexual abuse. 167 Mich App 186, 196; 421 NW2d 624 (1988).
The common arguments in each case, raised by defendants in this Court, attack the admissibility of the expert testimony on the following grounds: (1) the testimony is unreliable because it fails to meet the Davis/Frye
hi
Because "syndrome”
State v Kim, 64 Hawaii 598; 645 P2d 1330 (1982), has adopted the most liberal approach to admissibility. In Kim, the defendant was convicted of second-degree rape of his thirteen-year-old stepdaughter. After informing her mother, the complainant was taken for a medical examination. The examiner was Dr. Mann, a pediatrician and child psychiatrist. At trial, the defense attempted to impeach the complainant’s credibility. There
On appeal, after announcing the general rule that the jury is the sole judge of credibility, the court ruled that any danger that the jury would surrender its function is diminished if the testimony remains consistent with its specific purpose. The Kim court allowed Dr. Mann to testify with respect to this particular complainant. In fact, he opined that he found the victim’s account "believable.” Id. at 601.
Further, the Kim court specifically required that all information on which the syndrome was premised must be submitted to the jury for its assessment. It reasoned that such information was necessary to "enable the jury to evaluate the mode as well as conclusions of the expert . . . .” Id. at 606.
The court in Kim recognized that there were dangers in allowing syndrome testimony. The dangers that the court identified were that the expert may usurp the jury’s function, a battle of the experts may result, and there may be an invasion of the victim’s privacy. However, the ultimate ruling of the court was that the value of evidence outweighed any of these dangers.
The continuum of expert testimony for rehabilitative purposes runs from the approach adopted in Kim to a more conservative approach where testimony is allowed only on specific behavioral instances to which the defendant has opened the door in an attempt to discredit the victim’s testimony. This conservative approach permits syn
In People v Bowker, 203 Cal App 3d 385; 249 Cal Rptr 886 (1988), the California court applied this approach to test the admissibility of syndrome-type evidence. The court ruled that because syndrome evidence could be misconstrued as a predictor of child abuse, testimony of an expert should be limited to popular "myths” which would have an effect on the jury’s consideration as to the credibility of the witness. The use of expert testimony was also limited to rebuttal evidence following an attack by the defendant on the complainant’s credibility. The court ruled that the evidence must be targeted at a specific "myth” and gave examples of the appropriate use of the testimony. It stated that if the misconception were disclosure, the prosecutor’s evidence would be designed to show that delayed reporting is not inconsistent with child sexual abuse. Further, recantation was another myth which the court specifically gave as an example of how the testimony could be used on rebuttal. One further limitation was placed on the use of such information. The court stated that "[bjeyond the tailoring of the evidence itself, the jury must be instructed simply and directly that the expert’s testimony is not intended and should not be used to determine whether the victim’s molestation claim is true.” Id. at 394. The instruction is intended to protect against the misapplication of the evidence as a diagnostic tool to determine that the complainant is a victim of child sexual abuse.
Between Kim, which allows syndrome evidence generally, an evaluation of the child victim characteristics, and an opinion on the believability of the victim, and Bowker, which allows testimony concerning only those specific characteristics attacked
The only common factor where courts have accepted some use of syndrome evidence, is that the evidence is admissible only to rehabilitate the victim’s testimony. However, each case differs with regard to the limitations placed on the use of the rebuttal testimony.
We find that the rebuttal limitation as expressed by the majority of jurisdictions is the preferable approach. Although similar to the conservative theory announced in Bowker, we find that the Court of Appeals in Beckley best describes what the rule should be in Michigan. Accordingly we would hold that evidence of behavioral patterns of sexually abused children is admissible "for the narrow purpose of rebutting an inference that a complainant’s postincident behavior was inconsistent with that of an actual victim of sexual abuse, incest or rape.”
IV
In Michigan, MRE 702 governs the admissibility of expert testimony:
If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence*711 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.
Admissibility under this rule requires that the evidence comply with a three-part test. First, the expert himself must be qualified. Second, the evidence must serve to give the trier of fact a better understanding of the evidence or assist in determining a fact in issue. Finally, the evidence must be from a recognized discipline. The determination of whether a witness is qualified to render an expert opinion rests within the discretion of the trial court. Such a determination will not be reversed absent an abuse of discretion.
A
We turn first to an examination of the credentials of the experts who testified in these cases.
MRE 702 defines an expert in general terms, and expertise can be satisfied by a wide array of qualifications. A witness is qualified as an expert by virtue of knowledge, skill, experience, training, or education in a pertinent field. "[WJithin the scope of the rule are not only experts in the strictest sense of the word, . . . but also the large group sometimes called 'skilled’ witnesses . . . .”
Robin Zollar Smietanka, the expert in Beckley, is a certified social worker. She earned a Bachelor of Science degree in special education and a double Master of Arts degree in education and psychol
Lynn Butterfield, an expert in Badour, is a family counselor at Lutheran Child and Family Services. She earned a Bachelor’s degree in psychology and a Master’s degree in counseling psychology. She has been working with children for over five years and approximately ninety percent of her caseload is with sexually abused children.
Dr. Martin Shinedling, another expert in Bad-our, is a psychologist working for Planning for Living. He earned Bachelor’s and Master’s degrees at California State University at Los Angeles and a doctorate in clinical psychology at Brigham Young University. Further, he is licensed to practice psychology in Michigan.
It is clear from the record, that the experts herein have the appropriate educational background as well as extensive firsthand experience with sexually abused children. Accordingly, the trial court in qualifying each individual as an expert, did not, in our view, abuse its discretion.
B
In addition to assessing a witness’ qualifications, the trial judge must also make a determination as to the relevancy of the evidence.
This Court has applied the standard announced in MRE 702 as early as 1874 where Justice Campbell wrote:
[Expert] testimony is not desirable in any case where the jury can get along without it; and is only admitted from necessity, and then only when it is likely to be of some value. [People v Morrigan, 29 Mich 4, 8 (1874).]
The test applied in Morrigan was further defined by this Court in People v Zimmerman, 385 Mich 417, 427; 189 NW2d 259 (1971). The Zimmerman Court stated that necessity constitutes the essential factor in determining admissibility. However, basing admission of expert testimony on "need” has been criticized,
"Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. 'There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.’ ” [Id. Citations omitted.]
Advocates of the use of expert testimony in sexual assault cases suggest that without expert testimony jurors cannot properly assess an individual’s reaction to a sexual assault.
The findings of professional research suggest that there are many seemingly inconsistent responses to the trauma of the incident which require some form of explanation. Further, there is considerable authority suggesting that society has a prevailing distrust of the female who complains of rape.
Given the possibility of these misconceptions, it would be helpful and appropriate to allow expert testimony in child sexual abuse cases.
Additionally, the evidence is relevant and helpful to a jury because of the nature of the crime. In most criminal sexual conduct cases there are no nonparticipant witnesses to the crime, which reduces the cases to weighing the defendant’s credibility against that of the victim’s.
c
The final inquiry under MRE 702 is whether the testimony is derived from a "recognized scientific, technical, or other specialized knowledge . . . .” Defendants do not argue, nor do we suggest, that the mental health discipline is not a recognized field of specialized knowledge. It is undeniable that there is an emerging cadre of social and behavioral scientists and clinicians who specialize in the treatment and the study of the victims of child sexual abuse. It would further deny reality not to recognize this field of practice and study. However, defendants do object to any expert testimony based on child sexual abuse syndrome because there is no fixed syndrome which is recognized by the profession.
Although not specifically mentioned in the evidentiary rule, the Davis/Frye test has been en-grafted by case law to determine whether a novel scientific principle or technique is "recognized” within the relevant scientific community. It is a test whereby the trial court, in determining admissibility, judges the reliability of the scientific principle or technique as a threshold matter. The foundational requirement for admissibility under the Davis/Frye test is that the proponent of the evidence must show that the scientific principle or technique has gained such general acceptance within the scientific community as to render the
Although the Frye test has been criticized by commentators, this Court reaffirmed its application in People v Young, 418 Mich 1; 340 NW2d 805 (1983).
Psychologists, when called as experts, do not talk about things or objects; they talk about people. They do not dehumanize people with whom they deal by treating them as objects composed of interacting biological systems. Rather, they speak of the whole person.[45 ]
Thus, it is difficult to fit the behavioral professions within the application and definition of Davis/ Frye.
This principle is best illustrated by the admissibility of a psychiatrist’s testimony in a criminal trial on the issue of insanity. See, e.g., People v Martin, 386 Mich 407, 421; 192 NW2d 215 (1971). In Martin, we recognized that the "field of human medicine” has a limited use as evidence in a criminal trial because it lacks reliability. However, we did not exclude the evidence, nor did we submit the evidence to scrutiny under the Davis/Frye test.
We would hold that so long as the purpose of the evidence is merely to offer an explanation for certain behavior, the Davis/Frye test is inapplicable.
v
Having set forth the standards governing admissibility of the testimony, we turn now to the limitations on its use.
The use of expert testimony in the prosecution of criminal sexual conduct cases is not an ordinary situation.
A
We note first that child sexual abuse syndrome evidence is essentially a therapeutic tool. The syndrome is merely "umbrella terminology” which serves only to define the broad range of possible physical, psychological, and emotional reactions that a child victim could potentially experience.
The existence of the syndrome assumes the presence of abuse and merely seeks to explain an individual child’s reaction to it. For example, in People v Gray, 187 Cal App 3d 213; 231 Cal Rptr 658 (1986), a child psychologist testified that the syndrome itself could not be diagnosed or tested, but rather was an attempt on the part of psychologists to identify traits and characteristics of child sexual abuse. Similarly, Justice Benke, concurring in People v Bowker, supra, defined syndrome as "nothing more than a set of symptoms which tend to occur together” but which do not resolve the question whether abuse occurred. 203 Cal App 3d 397.
Admitting evidence that a syndrome exists can be prejudicial to a defendant because the experts are in general agreement that there is no single specific set of characteristics that can be attributed to every individual in diagnosing child sexual abuse.
Indeed, the evidence has a very limited use and should be admitted cautiously because of the danger of permitting an inference that as a result of certain behavior sexual abuse in fact occurred, when evidence of the syndrome is not a conclusive finding of abuse. Although syndrome evidence may be appropriate as a tool for purposes of treatment, we would hold that it is unreliable as an indicator of sexual abuse.
As reliability diminishes, the prejudicial effect of the evidence increases. Evidence, although relevant, is excluded when its probative value is substantially outweighed by any unfair prejudice.
In keeping with the purpose for which the evidence is admissible (i.e., to provide background data relevant to an evaluation of this victim’s behavior), the party offering the testimony must identify the specific behavior or statement at issue in the case. Further, because there is no fixed syndrome
B
Once qualified to give an expert opinion, MRE 702 does not limit the scope of the expert’s testi
A person qualifies as an expert under the scientific study of behavior when there is "mastery of a specialized field of knowledge about a group of either children who have been sexually misused, or adults who have sexually misused children.”
We emphasize that the purpose of allowing expert testimony in these kinds of cases is to give the jury a framework of possible alternatives for the behaviors of the victim at issue in the case in relation to the class of abuse victims. In this respect, the expert’s role is to provide sufficient background information about each individual behavior at issue which will help the jury to dispel any popular misconception commonly associated with the demonstrated reaction. Thus to assist the jury in understanding the unique reactions of victims of sexual assault, the testimony should be limited to whether the behavior of this particular victim is common to the class of reported child abuse victims. The expert’s evaluation of the individual behavior traits at issue is not centered on what was observed in this victim, but rather whether the behavioral sciences recognize this behavior as being a common reaction to a unique criminal act. Therefore we would hold that because a witness qualifies as an expert because of
We also note that MRE 704 provides that the opinion provided by the expert can "embrace! ] an ultimate issue to be decided by the trier of fact.”
Nevertheless, there is a meaningful distinction between expert testimony that a particular child was sexually abused, and expert testimony that a child demonstrates behaviors commonly observed in the class of sexually abused children. In the latter case, the expert does not offer a direct opinion on the ultimate question of whether abuse occurred.[57 ]
Therefore, any testimony about the truthfulness of this victim’s allegations against the defendant would he improper because its underlying purpose would be to enhance the credibility of the witness. To hold otherwise would allow the expert to be seen not only as possessing specialized knowledge in terms of behavioral characteristics generally associated with the class of victims, but to possess
It was for similar reasons that we limited the use of psychological evidence in People v LaLone, 432 Mich 103, 109; 437 NW2d 611 (1989). In LaLone, we tested whether hearsay statements regarding the identity of the perpetrator of a crime were admissible under the MRE 803(4) hearsay exception. The witness in LaLone was a psychologist who "treat[ed] mental and emotional disorders rather than physical ones.” Evidence is admissible under MRE 804(3) because of its reliability, i.e., patients normally do not fabricate with regard to the cause of an injury or when they may have pain. The statements made to a doctor are cloaked with a sense of reliability because accuracy is necessary for diagnosis and treatment. Further, we noted that those in the mental health profession generally work with statements that are both true and untrue in diagnosing and treating a patient for a mental disorder. Mental health professionals generally only receive information from the patient. They start with the basic assumption that the history they receive is what the patient believes to be the truth, not necessarily what actually is the truth. Thus, in LaLone, we ruled that statements made to a psychologist were less reliable than those made to a physician and were not within the specific language of the rule which allows evidence of information necessary for medical treatment or medical diagnosis._
"It should be kept in mind that those who write about sexual abuse of children are normally child advocates who research and write with the paramount goal of protecting abused children.”
VI
In Beckley, the trial judge specifically stated that the prosecution could present expert testi
Because the "profile” of this victim included only four specific responses to the alleged incident, the trial judge accordingly limited the expert’s testimony. Although the expert’s testimony was limited, on cross-examination, redirect examination and recross examination the testimony went beyond the scope of the appropriate limitation. The net result of Ms. Smietanka’s testimony was exposure of the jury to a wide range of behavioral characteristics attributed to the "syndrome” generally. However, Ms. Smietanka did not specifically testify with regard to the "syndrome,” but rather spoke only in terms of general behavioral patterns. Further, the word syndrome was not used, nor was there any mention of definitional behaviors commonly associated with child sexual abuse syndrome. Thus the jury was not left with the impression that there exists a collective set of behaviors attributable to sexually abused children. In this light, Ms. Smietanka continued to be objective and was acting in an advisory role.
Additionally we note that Ms. Smietanka, as the treating professional, was allowed to give an opinion as to the particular child victim. Specifically, on cross-examination she testified:
*731 Q. Is there anything that is in fact inconsistent with sexual abuse?
A. Yes. There are some things that are very inconsistent with sexual abuse, and those are indicators that you look for when you are doing an initial diagnosis to set up a treatment plan.
Q. I see. Are any of those things that you’ve seen in this case?
A. In this case I have not seen things that would lead me to believe that this particular child was not sexually abused. I have seen things that would lead me to believe that, given the set of experiences and the circumstances, that they would fit the criteria for someone who has been sexually abused.
This is an example of a line of questioning which, on direct examination, would be inappropriate. However, it was defense counsel who opened the door to this line of questioning and who elicited this response from the testifying expert. Defendant’s question was direct, and he left open the possibility that the expert would respond negatively and in a manner that could be construed as an expert conclusion with regard to the truthfulness of the victim’s allegations. On direct examination, similar testimony crosses the line of acceptability, yet in this case reversal is not required in view of the fact that the response was brought out by defendant. Defendant cannot now complain that the expert’s testimony served to vouch for the complainant’s credibility when he allowed and in fact drew out the response. To hold otherwise would allow defendant an appellate parachute to escape conviction because of damaging testimony that turns the tide toward the believability of the complainant’s allegations. Although we would hold that it is only appropriate to allow a background explanation of the behaviors at issue, the increased scope of the testimony under the facts of
Accordingly, in Beckley, we would affirm the rulings of the lower courts.
In Badour the trial court disallowed testimony concerning the "fixed syndrome” as a predictor of sexual abuse because it lacks sufficient scientific reliability. However, the trial judge ruled "that an expert, on their [sic] own experience, and training, and knowledge, can make observations and give . . . their conclusions about those observations, even to the degree that, in their opinion, these children, or this child, showed indicia of being sexually abused.”
Unlike Beckley, the trial court in Badour was not sensitive to the need to restrict the expert’s testimony and failed to address the purpose for which the evidence was admitted. The trial court allowed expert testimony without consideration regarding whether the behaviors of this victim were an issue in the case. Further, the trial court made no determination as to whether the evidence would be helpful to rebut any inference that would necessarily result when the complainant’s post-incident behavior became an issue in the case. We do note that the trial judge did not have an opportunity to exercise discretion in this area because the expert was the first witness called to testify. Even so, the net effect of the trial court’s ruling was to allow the expert to give testimony beyond that necessary to help the jury to understand the victim’s behavior. The testimony was not limited to background information; thus, the expert’s role was heightened from that of advisor to one of advocate. The consequences of the ruling were to allow the expert to vouch for the complainant’s credibility which left the jury with the
Because the testimony in Badour exceeded the scope of the rules announced, we would reverse and remand the case for a new trial.
CONCLUSION
On the basis of the origins, the purpose, and the limitations of the so-called child sexual abuse syndrome, we are unwilling to have such evidence introduced as a scientific tool, standing on its own merits as a doctrine or bench mark for determining causality in child sexual abuse cases. However, we think, as do so many jurisdictions who have grappled with the phenomenon, that behavior attributed to the syndrome has a place in expert evidence jurisprudence in child sexual abuse cases. There has developed a body of knowledge and experience about the symptomatology of child abuse victimization. We therefore conclude and would hold that persons otherwise properly qualified as experts in dealing with sexually abused children should be permitted to rely on their own experience and their knowledge of the experience of others to rebut an inference that specific behavioral patterns attributed to the victim are not uncharacteristic of the class of child sexual abuse victims. Such witnesses should be permitted to testify regarding characteristics of sexually abused children so long as it is without reference to a fixed set of behaviors constituting a "syndrome.” It should, therefore, be the knowledge of the expert that carries the day, not the "syndrome” doctrine. Expert testimony should be admissible only to the extent that it is directed towards providing an explanation of a specific behavior attributable to the complainant.
Badour should be reversed and remanded for a new trial, and Beckley affirmed.
MCL 750.520b; MSA 28.788(2).
People v Beckley, 430 Mich 858 (1988); People v Badour, 432 Mich 851 (1989).
Defendant admits having a drinking problem.
The victim testified that she was crying and very upset; however, her grandmother stated that she was not crying and was her "usual self.”
Prior to trial, the prosecution filed a motion to endorse Smietanka as an expert witness. The testimony given at the pretrial hearing was substantially the same as that given at trial.
In Stull, a rape counselor was allowed to testify on the basis of her training and observations of the complainant as to whether or not her behavior was consistent with the profile of a rape victim. 127 Mich App 19.
In June, 1984, the victim was referred to Ms. Smietanka for diagnosis and treatment by the Muskegon County Department of Social Services. Ms. Smietanka counseled her on three occasions.
"Daughters United is a group for child victims of sexual abuse.” Daughters United facilitates a "group atmosphere, talking about what happened to them, their feelings about it, the girls are in . . . different phases of dealing with a child sexual abuse problem; and that helps — the group work helps the individuals to make progress, as well as seeing them individually also.”
Testimony about specific behavior exhibited by the victim was also received from Regina Woods, the complainant’s foster mother.
Although objected to at trial, the propriety of Dr. Shinedling’s testimony is not at issue on appeal.
“Syndrome type” testimony is behavioral characteristics collectively associated with the syndrome which would suggest that the
People v Beckley, 161 Mich App 120; 409 NW2d 759 (1987); People v Badour, 167 Mich App 186; 421 NW2d 624 (1988).
People v Davis, 343 Mich 348; 72 NW2d 269 (1955); Frye v United States, 54 App DC 46; 293 F 1013 (1923).
Because of the resolution of the other issues raised, we find it unnecessary to address this issue.
The "syndrome” theory in these cases is most commonly labeled "child sexual abuse accommodation syndrome.” Other documented syndromes include: battered child syndrome, battered wife syndrome, battering parent syndrome, separation trauma and rape trauma syndrome. See, generally, Cohen, The unreliability of expert testimony on the typical characteristics of sexual abuse victims, 74 Georgetown L J 429, 448-451, citing State v Danielski, 350 NW2d 395 (Minn App, 1984).
The American Psychiatric Association (apa) does not recognize child sexual abuse accommodation syndrome as a mental disorder. Rather the Diagnostic & Statistical Manual of Mental Disorders (3d rev ed) (dsm-hi) defines "syndrome” generally. The dsm-iii is the apa’s official manual of recognized mental disorders. "Syndrome” is defined as "a group of symptoms that occur together and that constitute a recognizable condition.” The term " '[s]yndrome’ is less specific than 'disorder’ or 'disease.’ The term 'disease generally implies a specific etiology or pathophysiological process.” Dsm-ui, Appendix C, p 405.
Although the dsm-iii does not specifically define child sexual abuse accommodation syndrome, it does explain and recognize post-traumatic stress disorder. Some experts rely on this disorder as a framework for diagnosing and treating persons manifesting sexual abuse syndrome.
A syndrome, however, is not considered a diagnosis by the medical community; rather, it is a collection of related symptoms. Whether the pattern of symptoms can constitute a diagnosis is determined in part by whether a common underlying pathological process can be identified as the causal agent of the pattern of symptoms. Further, the underlying pathological process must be recognized as a disorder within a standard diagnostic manual. The symptom pattern is not assigned the label of a diagnosis, but rather, the symptom pattern is evidence of the underlying pathological process to which it is causally connected. For these reasons, it is not medically proper to diagnose the existence of a syndrome. [Lorenzen, The admissibility of expert psychological testimony in cases involving the sexual misuse of a child, 42 U Miami L R 1033, 1046-1048 (1988).]
We note that there is an admissible per se approach which is most readily identified with adult cases where "rape trauma syndrome” evidence is admitted to show lack of consent. However, this theory has not been applied to child sexual abuse cases. See, e.g., State v Huey, 145 Ariz 59; 699 P2d 1290 (1985), State v Marks, 231 Kan 645; 647 P2d 1292 (1982), State v Allewalt, 308 Md 89; 517 A2d 741 (1986), and State v Liddel, 211 Mont 180; 685 P2d 918 (1984).
The Kim court, in a footnote, without saying it was controlling, observed that the trial court refused to allow the testimony as substantive evidence. Id. at 600, n 4.
See, generally, State v Hall, 406 NW2d 503 (Minn, 1987).
FRE 702, advisory committee notes. See also People v Whitfield, 425 Mich 116; 388 NW2d 206 (1986).
People v Kosters, 175 Mich App 748; 438 NW2d 651 (1989).
People v Stull, 127 Mich App 14; 338 NW2d 403 (1983), lv den 422 Mich 939 (1985).
People v Reinhardt, 167 Mich App 584; 423 NW2d 275 (1988), lv den 430 Mich 874 (1988).
People v Stricklin, 162 Mich App 623; 413 NW2d 457 (1987).
People v Draper, 150 Mich App 481; 389 NW2d 89 (1986), lv den 431 Mich 867 (1988).
The issue in Jenkins was whether or not a psychologist was competent to give a medical opinion with regard to a mental disease or defect. The defendant raised an insanity defense and presented three psychologists who testified that he had a mental disease on the date of the alleged offenses. The trial court instructed the jury to disregard this testimony. However, the appellate court stated:
The general rule is that "anyone who is shown to have special knowledge and skill in diagnosing and treating human ailments is qualified to testify as an expert, if his learning and training show that he is qualified to give an opinion on the particular question at issue.” "It is not essential that the witness be a medical practitioner.” [Id. at 307, quoting 32 CJS, Evidence, § 537, pp 261-262 (1942).]
Michigan has regulation and licensing requirements for the practice of psychology. MCL 333.18201 et seq.; MSA 14.15(18201) et seq.
Only in Badour did the defendant object to the experts’ qualifications.
MRE 401, 402.
MRE 702.
Expert opinions should only be excluded when " 'they are unhelpful and therefore superfluous and a waste of time.’ ” Zimmerman, 385 Mich 473 (Williams, J., dissenting). See also People v Bowker, 203 Cal App 3d 385, 396; 249 Cal Rptr 886 (1988), where Justice Benke, concurring, wrote that the proper test was "whether the proffered evidence will be of any assistance or appreciable help to the fact-finder.” He quoted from a California Supreme Court case which further explained the appropriate standards:
"The emphasized words . . . make it clear that the admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would 'assist’ the jury. It will be excluded only when it would add nothing at all to the jury’s common fund of information, i.e., when 'the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness.’ ” [Id. at 396-397, quoting People v McDonald, 37 Cal 3d 351, 367; 208 Cal Rptr 236; 690 P2d 709 (1984). Emphasis in Bowker, citations omitted.]
The American Psychiatric Association, in its definition of post-traumatic stress disorder has stated that understanding the "development of characteristic symptoms following a psychologically distressing event ... is outside the range of usual human experience . . . DsM-m, n 15 supra, § 309.89, p 247. Rape and assault are included within the list of stressors which could produce posttraumatic stress disorder.
In State v Middleton, 294 Or 427; 657 P2d 1215 (1983), the
Generally, courts draw comparisons to crimes against property. In State v Myers, 359 NW2d 604, 610 (Minn, 1984), the court reasoned that jurors have the competence within their common experience to test the credibility of witnesses for "most crimes.” For example, "[i]f the victim of a burglary failed to report the crime promptly, a jury would have good reason to doubt that person’s credibility.” However, the court found that assessment of a witness in a sexual abuse case was out of the common experience of the jury.
Similarly, in State v Middleton, n 34 supra, the court reasoned that a jury would have good cause to doubt the credibility of a burglary victim who after making an initial report recanted the allegation several times before trial. Further, in Middleton, the court stated that it was within the common experience of jurors to weigh the credibility of victims of a physical assault because they are capable of personalizing the emotions and trauma. However, familial sexual abuse produces a "unique trauma” beyond a juror’s understanding. Id. at 440. (Roberts, J., concurring.)
Comment, Checking the allure of increased conviction rates: The admissibility of expert testimony on rape trauma syndrome in criminal proceedings, 70 Va L R 1657 (1984).
Girdner, Out of the mouths of babes, 5 Cal Law 57 (June, 1985).
See, generally, Cacciola, The admissibility of expert testimony in intrafamily child sexual abuse cases, 34 UCLA LR 175, 178-179 (1986).
In People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973), this Court recognized that the principle issue in cases involving criminal sexual conduct is the credibility of the complainant. See also People v LaLone, 432 Mich 103; 437 NW2d 611 (1989).
See n 15.
People v Barbara, 400 Mich 352, 376; 255 NW2d 171 (1977).
State v Rimmasch, 775 P2d 388, 396 (Utah, 1989).
In Young, results of a blood analysis obtained through the use of serological electrophoresis were admitted into evidence for the purpose of showing that defendant fit within the class of people who could have committed the charged offense. The trial court did not hold an evidentiary hearing as to the admissibility of the evidence. This Court remanded the case to the trial court for the purposes of conducting an evidentiary hearing to determine the admissibility of the test results. The Court noted that
[although we do not doubt that the technique of electrophoresis enjoys general acceptance as a diagnostic and a research tool, the record before us is devoid of impartial and disinterested expert opinion that serological electrophoresis is sensitive and specific in measuring what it purports to measure. [Id. at 22.]
People v Soltis, 104 Mich App 53; 304 NW2d 811 (1981), modified on other grounds 411 Mich 1037; 309 NW2d 186 (1981) (spectropho
Lorenzen, n 16 supra at 1035.
We do not dispute the analysis employed by Justice Boyle in an ordinary case where expert testimony is admissible. However, for the reasons stated above, these cases present unusual circumstances.
We recognize that the use of syndrome type, expert testimony, is still in its embryonic stage, and thus, as behavioral science experts continue to accumulate information on children’s behavioral reactions there is the possibility that syndrome testimony will become a more reliable source of evidence. To this extent, as the science develops, it may move us to reevaluate the question and allow admission of the evidence beyond the limitations expressed today.
People v Bledsoe, 36 Cal 3d 236; 203 Cal Rptr 450; 681 P2d 291 (1984).
Myers, Child Witness Law & Practice (New York: John Wiley & Sons, 1989 cumulative supplement), § 4.17C.
In Bledsoe, n 48 supra, the court concluded:
Given the history, purpose and nature of the rape trauma syndrome concept, we conclude that expert testimony that a complaining witness suffers from rape trauma syndrome is not admissible to prove that the witness was raped. We emphasize that our conclusion in this regard is not intended to suggest that rape trauma syndrome is not generally recognized or used in the general scientific community from which it arose, but only that it is not relied on in that community for the purpose for which the prosecution sought to use it in this case, namely, to prove that a rape in fact occurred. Because the literature does not even purport to claim that the syndrome is a scientifically reliable means of proving that a rape occurred, we conclude that it may not properly be used for that purpose in a criminal trial. [36 Cal 3d 251. Cited with approval in People v Pullins, 145 Mich App 414, 421; 378 NW2d 502 (1985).]
In fact, those experts who have tried to establish some universal symptomology of sexual abuse victims sometimes
Myers, Expert testimony in child sexual abuse litigation, 68 Neb LR 1, 61 (1989).
See comment, n 36 supra, for a detailed description of the studies conducted concerning sexual abuse syndrome.
The analysis set forth in Justice Boyle’s concurring opinion centers only upon relevancy as a rationale for admissibility of syndrome-type evidence. As in many other evidentiary situations, because evidence is relevant and will aid the jury in understanding the issues does not preclude other considerations that argue for limitation.
This Court in People v Petrella, 424 Mich 221, 267; 380 NW2d 11 (1985), expressly recognized that "[djespite the behavioral patterns of rape victims that have been observed (labeled by some as 'rape trauma syndrome’), we are not persuaded that it is psychologically or sociologically sound to assume that there is a 'normal’ or 'average’ emotional reaction to being raped.”
Lorenzen, n 16 supra at 1043-1044.
Myers, n 49 supra.
People v Moran, 151 Ariz 378, 385; 728 P2d 248 (1986), citing People v Bledsoe, n 48 supra at 250; United States v Azure, 801 F2d 336 (CA 8, 1986).
State v Myers, n 35 supra at 610.
74 Georgetown L J, n 15 supra at 440.
While obviously outside the realm of expert testimony, a child abuse professional is not precluded from giving otherwise admissible testimony about the child victim.
Concurring Opinion
I concur in the lead opinion to the extent that it holds 1) that the Davis/Frye test is inapplicable to the expert testimony in question, 2) that syndrome evidence is not admissible to prove that sexual abuse occurred, 3) that an expert may not testify that a child is telling the truth, and 4) that an expert may testify that the behavior of the complainant in the particular case is consistent with that of children who report sexual abuse.
I write separately because I am concerned that the rationale employed in the lead opinion may create restrictions on the use of expert testimony in child sexual abuse cases that unnecessarily limit an expert’s ability to assist the factfinder. Expert testimony should be admitted where relevant and helpful to the jury in evaluating the witness’ credibility. Among the many ways in which relevance may be made clear are motions in limine, voir dire, opening statement, the child’s direct examination, the testimony of other prosecution witnesses, cross-examination of the child, or by the defendant’s proofs. An expert may not testify that the child was abused. An expert may not render an opinion that the defendant was the abuser. A qualified expert may, however, compare the behavior of the complainant with that exhib
i
The sole issue presented today is whether the expert testimony, as it relates to an issue in the case, would be helpful to the factfinder. Expert testimony which does not relate to any issue in the case is not relevant and therefore not helpful. Helpfulness is the touchstone of admissibility expressed in both MRE 702 and FRE 702:
The helpfulness test subsumes a relevancy analysis. In making its determination, the court must proceed on a case-by-case basis. Its conclusions will depend on (1) the court’s evaluation of the state of knowledge presently existing about the subject of the proposed testimony and (2) on the court’s appraisal of the facts of the case. [3 Weinstein & Berger, Evidence, ¶ 702(02), p 702-18.]
Thus, the proper resolution of these cases begins with relevancy. Relevancy exists only as a relation between an item of evidence and a matter properly provable in the case. The kind of fact to which proof may properly be directed is a fact that is of consequence to the determination of the action. MRE 401. "The fact to be proved may be ultimate, intermediate, or evidentiary.” 1 Weinstein & Berger, supra, pp 401-3 through 401-4. However, as the advisory committee to the federal rules stated, "The fact to which the evidence is directed need
In these instances, the test is not whether the proffered evidence tends to prove or disprove any consequential fact, but rather whether the evidence will aid the court or jury in determining the probative value of other evidence offered to affect the probability of the existence of a consequential fact. [Id.]
The lead opinion recognizes that expert testimony will assist the jury in evaluating the testimony of the child witness, noting various "misconceptions” about a child’s behavior following sexual abuse and that sexual abuse prosecutions often amount to a credibility contest between the victim and the defendant.
ii
The lead opinion’s inclination to limit the specificity of the expert’s testimony is founded on a misapprehension of the nature and purpose of expert testimony in general. The lead opinion emphasizes that "the expertise of the witness does not center upon the complainant in any individual case,” and reasons that "because a witness quali
An observer is qualified to testify because he has firsthand knowledge of the situation or transaction at issue. The expert has something different to contribute. This is the power to draw inferences from the facts which a jury would not be competent to draw. [McCormick, Evidence (3d ed), § 13, p 33.]
Thus, I would not relegate the expert to a role which is merely advisory. I would permit the expert to testify that the particular child’s behavior is consistent with behavioral characteristics observed in children assumed to have been abused. The limitation suggested by the lead opinion’s reasoning is inconsistent with its own finding that expert testimony in child abuse cases is admissible
[The doctor] might have aided the jurors without usurping their exclusive function by generally testifying about a child’s ability to separate truth from fantasy, by summarizing the medical evidence and expressing his opinion as to whether it was consistent with [the victim’s] story that she was sexually abused, or perhaps by discussing various patterns of consistency in the stories of child sexual abuse victims and comparing those patterns with patterns in [the victim’s] story.
The lead opinion’s formulation, and to an even greater extent the dissent’s, would impose on the expert a variation of the sterile inquiry previously imposed on character testimony, where the witness will be qualified and then answer one or two sanitized questions.
In sum, I would hold that an expert should not be permitted to appropriate the jury’s function by testifying that a child witness is truthful. Nor may the behavioral expert in a child abuse case testify on the basis of behavior for the purpose of establishing that a sexual abuse occurred. An expert witness may testify in child sexual abuse cases where the expert’s testimony would assist the factfinder in evaluating the child’s credibility. The expert may testify on a sufficient foundation that the child’s behavior is consistent with the behavior of other children who have allegedly been assaulted.
It is the province of the trial court to weigh against the necessity for expert testimony the
in
I agree with the lead opinion’s result in Badour, but briefly address why reversal is compelled. I would reverse because the defendant objected to the testimony on the ground that it was offered to show that the child had been abused, and the testimony revealed that the prosecutor’s purpose in offering it was simply to show that the child had been abused and that the defendant had participated in it. The defendant later raised a question regarding the victim’s motive in testifying that might have made the evidence helpful on the
Beckley, by contrast, demonstrates a near-perfect model for proper procedure in the use of such evidence. Following a pretrial hearing, the trial court held that it "would appear that the defense intends to raise the issue of whether an incest victim would have acted as the complainant did . . . .” The expert, Robin Zollar Smietanka, was to be allowed to testify whether she saw anything in the complainant which was inconsistent with the profile of an incest victim. She was specifically precluded from testifying that she thought the complainant was telling the truth or whether in fact the complainant had been an incest victim.
Robin Smietanka’s testimony on direct examination that the complainant’s behaviors were typical of a child who had been sexually abused was properly admissible to aid the jury in evaluating the credibility of the witnesses. In Beckley, the helpfulness of expert testimony in evaluating credibility became apparent in the pretrial motion and from the defendant’s opening statement. The complainant’s seemingly unusual behavior was revealed on direct examination of the complainant and was the subject of attack on cross-examination. Smietanka’s conclusion that the complainant’s behavior was consistent with sexual abuse
CONCLUSION
I concur in the express limitations on expert testimony which the lead opinion articulates: that the expert may not render an opinion that sexual abuse occurred or vouch for the credibility of the child witness. Yet the lead opinion seems uncomfortable in its conclusion, on one hand suggesting that because the expert’s qualifications derive from general knowledge and not from knowledge of the case in which the expert is qualified the focus of the expert’s testimony should remain general, while explicitly holding that the expert may testify regarding "familiarity or understanding of the victim’s behavior at issue.” Ante, p 727.
I would hold that where aspects of a child’s behavior create credibility issues about which a qualified expert is prepared to testify, the expert’s testimony is admissible if the trial court determines that it will aid the factfinder, so long as the expert does not render an opinion that sexual abuse occurred or vouch for the credibility of the
Ante, pp 716-717.
Wheat v State, 527 A2d 269, 275 (Del, 1987) (an expert may provide "background” to assist the jury in determining a child’s credibility where there has been delayed reporting or recantation); State v Kennedy, 320 NC 165; 357 SE2d 359 (1987) (expert testimony is admissible to help the jury understand behavior patterns of sexually abused children and assist it in assessing the credibility of a victim); Rodriquez v State, 741 P2d 1200, 1204-1205 (Alas App, 1987) (expert testimony was held admissible to provide “background information” to aid the jury in evaluating testimony of witnesses and to explain the unusual behavior of the complainant); State v Hall, 406 NW2d 503, 505 (Minn, 1987) (where the victim is an adolescent, expert testimony regarding reporting conduct and continued contact with the assailant is admissible in the discretion of the trial court).
The diagnosis of sexual abuse is problematic for those in the field. Children do not exhibit uniform reactions to sexual abuse. Haugaard & Repucci, The Sexual Abuse of Children (San Francisco: Jossey-Bass Publishers, 1988), p 135. Conclusive physical evidence is available only in a minority of cases, id., p 151, leaving as a basis for "diagnosis” the child’s statements and behaviors. The difficulty here, however, is that the behaviors identified with sexual abuse may be caused by stresses other than sexual abuse. Id., p 143; de Young, A conceptual model for judging the truthfulness of a young child’s allegation of sexual abuse, 56 Am J Orthopsychiatry 550, 555 (1986).
Those who deal with sexually abused children readily admit that judging the veracity of a child who complains of sexual abuse is a problem within the mental health profession. Even for these experts, assessment of the credibility of a child’s accusation is "a complicated and inexact process.” Haugaard & Repucci, n 3 supra, p 179. The difficulty of the problem is attested to by the profusion of articles addressing the question of how to assess the truthfulness of a child’s accusation of sexual abuse. See, e.g., Faller, Criteria for judging the credibility of children’s statements of their sexual abuse, 67 Child Welfare 389 (1988); de Young, n 3 supra; Wehrspann, Steinhauer & Klajner-Diamond, Criteria and methodology for assessing credibility of sexual abuse allegation, 32 Can J Psychiatry 615 (1987).
Ante, pp 726-727.
The helpfulness analysis must encompass not only the behavior of the victim, but the victim’s age and the charge. As Badour correctly indicates, the mere fact that the complainant is under age does not authorize the admissibility of expert testimony.
Concurring in Part
(concurring in part and dissenting in part). I concur with the result the lead opinion reaches in People v Badour. I dissent, however, in People v Beckley.
Under the lead opinion, expert testimony on the child sexual abuse accommodation syndrome
In California, the very state to which this Court looks for guidance in this case, experts testifying as to syndrome evidence must confine their remarks to the class of child abuse victims in general. People v Roscoe, 168 Cal App 3d 1093; 215 Cal Rptr 45 (1985).
The Attorney General’s argument only height*746 ens this tension. Relying largely on People v Roscoe, supra, 168 Cal App 3d 1093, he asserts the sole effect of [People v] Bledsoe [36 Cal 3d 236; 203 Cal Rptr 450; 681 P2d 291 (1984)] as applied to [child sexual abuse accommodation syndrome] evidence is to prohibit experts from testifying that the particular victim was abused. He contends the same testimony is admissible as long as the expert’s remarks are confined to the class of abuse victims in general. (Roscoe, supra, 168 Cal App 3d 1099-1100.) In our view, however, this argument misconstrues the rationale underlying Bledsoe and reads Roscoe far too broadly. The Supreme Court cannot have intended the Bledsoe exception to give with one hand what had been previously taken away by the other. [Bowker, supra at 392-393.]
Consequently, an expert testifying on the basis of syndrome evidence is precluded from making any reference to the particular complainant or specific facts before the court.
Under the rule the lead opinion would adopt today, the danger is too great that the trier of fact will improperly infer that an expert testifying on the basis of syndrome evidence is, in effect, concluding that the particular complainant before the court has been abused. It is this very danger that the California rule, which the lead opinion purports to adopt, was intended to prevent. The child sexual abuse accommodation syndrome is a therapeutic tool. The syndrome assumes abuse, and the relevant scientific community does not rely upon syndrome evidence to prove that abuse in fact has occurred. As the Court in Bowker noted, the inherent danger in failing to narrowly circumscribe an expert’s testimony to the general class of child abuse victims is that syndrome evidence can all too easily be misconstrued as constituting a method of proving or predicting child abuse:
Fundamentally, Bledsoe must be read to reject the use of [child sexual abuse accommodation syndrome] evidence as a predictor of child abuse. It is one thing to say that child abuse victims often exhibit a certain characteristic or that a particular behavior is not inconsistent with a child having been molested. It is quite another to conclude that where a child meets certain criteria, we can predict with a reasonable degree of certainty that he or she has been abused. The former may be appropriate in some circumstances; the latter . . . clearly is not. [Bowker, supra at 393. Emphasis in original.]
The ultimate purpose of child sexual abuse accommodation syndrome evidence is to dispel the myths and misconceptions surrounding sexual as
The line of questioning that took place in Beckley demonstrates that when an expert is permitted to refer to the particular complainant and facts of the case, a criminal defendant faces substantial prejudice that no curative instruction can undo. Under these circumstances, the practical effect is to extend the use of syndrome evidence to the improper purpose of proving or predicting sexual abuse, a use for which syndrome evidence no longer proves sufficiently reliable.
Q. Mrs. Smietanka, do you know [the child]?
A. Yes, I do.
Q. How did you come to know [her]?
A. [She] was referred to me by Carol King, who is a Protective Services’ worker out of the Children’s Unit of the Muskegon County Department of Social Services. Mrs. King called me and asked me if I would see [the child] for the purpose of diagnosis and treatment in regards to alleged sexual abuse or incest.
Q. Are you aware of the fact that after the incident that’s alleged in this case that [the child] reported only that her father had made passes at her, referring to some inappropriate kisses, and that that’s all she initially reported in this case?
A. Yes, I am aware of that.
Q. Well, based upon your rather extensive practice and your familiarity with the literature and so on and your knowledge of that particular behavior and the other circumstances in which that behavior manifested itself, and by that I mean [the child], her age, her sex and so on, do you have any opinion as to whether that kind of behavior would be typical of a victim of such sexual abuse such as [this child]?
A. That behavior would be typical of a victim of the age and characteristics of [this child]. Many times disclosure is delayed for an extended period of time. Many times disclosure is made to what we would call like a third-party source. That would be somebody outside of the family. And many times disclosure is not full disclosure. A child will let go of so much information in an attempt to get a behavior to stop or to make sure that that behavior does not occur again without wanting to fully disclose the intimate details or the extensiveness of the behavior.
*750 Q. Are you familiar with the fact that the victim in this case . . . waited a year before reporting the fact of intercourse, before reporting that it was more than passes, that there was in fact intercourse, after a delay of a year?
A. Yes, I am familiar with that.
Q. Do you have any opinion as to whether that type of behavior would be typical or normal for a victim who was sexually abused at [this child’s] age?
A. From both my own caseload experience and from the literature, that would be a fairly common response of a child to wait ....
Aside from the obvious prejudice deriving from the prosecution’s repeated references to the complainant as a "victim,” a jury could reasonably infer that Ms. Smietanka, who testified that she had personally examined the complainant for purposes of diagnosis and treatment, was, at the very least, predicting that the complainant in fact had been sexually abused. The proper purpose of Ms. Smietanka’s testimony was merely to dispel the misconceptions that the specific postincident behavior traits at issue, such as delayed disclosure and the complainant’s initial tendency to deny sexual intercourse, were inconsistent with those postincident behavior traits exhibited by children who in fact had been sexually abused. The prosecution could have dispelled these misconceptions just as effectively without the repeated references to the child or the facts of this case. Under this limitation, the very real potential for unfair prejudice to the defendant would truly be kept at a minimum while permitting the people to effectively uncover the truth.
The sexual abuse of children is among the most cruel and heinous of criminal acts. The criminal preys upon the very weaknesses that children are
At the very same time, a fundamental value deeply cherished by our society is the right to a fair and impartial trial. The fairness of the procedures under which a criminal prosecution is conducted is zealously guarded to as high a degree as are the justness and righteousness of the substantive rule of law upon which a conviction is based. Because the additional probative value to be gained by permitting an expert to refer to the complainant and particular facts before the court is ever so slight when compared to the increased and substantial degree of prejudice a criminal defendant will face under the lead opinion, I dissent.
See ante, p 710 (Brickley, J.).
Expert testimony is, of course, not admissible to prove that the complainant in fact has been sexually abused. As the majority and concurring opinions correctly note, "syndrome” evidence is not a scientific technique that determines whether a child has been abused. Rather, it is a therapeutic tool developed to explain postincident behavior.
Credibility questions arise whenever the defendant denies the victim’s story, explicitly or implicitly suggesting misrecollection or fabrication. If, in every such case, the jury could be informed that a doctor had diagnosed the complainant, based upon the specific facts in the case, as a child molest [sic] victim (or rape victim, or whatever), then the protection against misuse of psychologists’ testimony erected by [People v] Bledsoe [36 Cal 3d 236; 203 Cal Rptr 450; 681 P2d 291 (1984)] would be largely dismantled.
Where the expert refers to specific events, people, and personalities and bases his opinion as to credibility on his diagnosis of this witness, then the conclusion that the witness is credible rests upon the premise that the diagnosis is accurate, and that in fact molestation had occurred. The jury in effect is being asked to believe the diagnosis, to agree that the doctor’s analysis is correct and that the defendant is guilty. Such a result would subvert the sound rule adopted by a unanimous Supreme Court in Bledsoe. It follows, therefore, that the expert testimony authorized by Bledsoe to permit rehabilitation of a complainant’s credibility is limited to discussion of victims as a class, supported by references to literature and experience (such as an expert normally relies upon) and does not extend to discussion and diagnosis of the witness in the case at hand. [Roscoe, supra at 1099-1100. Emphasis added.]
In Bledsoe our Supreme Court held that the rape trauma syndrome does not meet the Kelly-Frye[*] standard of admissibility as a scientifically accepted test for establishing whether a rape occurred. Therefore, such evidence is not admissible to prove guilt in a criminal trial. In Roscoe this court extended Bledsoe to child molest [sic] cases and, as defendant states, clarified the manner in which expert testimony explaining trauma behavior may be introduced. As we explained, the opinion testimony should be based upon the literature in the field and general, professional experience of the witness rather than upon an analysis and diagnosis based upon a review and evaluation of the facts in the case at hand. [People v Jeff, 204 Cal App 3d 309, 337; 251 Cal Rptr 135 (1988).]
[* People v Kelly, 17 Cal 3d 24; 549 P2d 1240 (1976); Frye v United States, 54 App DC 46; 293 F 1013 (1923).]
The function of rape counselors "is to help their clients deal with the trauma they are experiencing” and "the historical accuracy of the client’s descriptions of the details of the traumatizing events is not vital in their tasks”; the counselors "are taught to make a conscious effort to avoid judging the credibility of their clients.” (Id. [People v Bledsoe, 36 Cal 3d], 250.)
The diagnosis, while scientifically acceptable for treatment purposes, is not the product of a rigorous process the goal of which is determining truth or falsity (unlike fingerprint, lie detector, or blood tests). To admit the diagnosis to prove what events occurred leading up to the therapeutic treatment would be to misuse it for a purpose never intended by those in the discipline who developed the concepts. [Roscoe, supra at 1097.]
Reference
- Full Case Name
- People v. Beckley; People v. Badour
- Cited By
- 180 cases
- Status
- Published