Affidavit of Ralph Underwager, Ph.D.|
Institute for Psychological Therapies
(Sample: Supports Motion in Limine to exclude prosecution expert testimony
as not admissible because it is not generally accepted in scientific community
and cannot be properly done)
Before me, the undersigned authority, on this day personally appeared Ralph
C. Underwager, known to me to be the person whose name is subscribed to
the following instrument, and having been duly sworn, upon his oath, deposes
and states as follows:
I have prepared this affidavit at the request of Mr. John Doe, Esq. attorney
. Mr.Doe asked that I prepare a brief analysis of the effect of the recent
Hawaii Supreme Court ruling (Hawaii v. Montalbo, March 27, 1992) propounding
five factors to determine whether scientific evidence should be admitted
at trial. He also requested that I make an application of these five factors
to the specific case of Hawaii vs. Smith. Mr. Doe has also indicated to
me that three possible areas presented as scientific evidence are at issue.
They are the concept of the sexual abuse accommodation syndrome, the use
of behavioral indicators to suggest prior events of abuse, and the use of
the diagnosis of Post Traumatic Stress Disorder to infer backward to a putative
abuse event. Mr. Doe also supplied me with a copy of a letter, dated July
9, 1992, signed by Jane Deer, Deputy Prosecuting Attorney, stating the subject
matter of expert testimony to be offered by Mr. B.S., M. D.
I. My name is Ralph C. Underwager. I am over the age of eighteen (18) years
of age, and I am fully competent in all respects to execute this Affidavit.
I received my B. A. in 1951 and my M. Div. from Concordia Seminary, St.
Louis, MO in 1955 and was in the parish ministry of the Lutheran Church
- Missouri Synod before entering the University of Minnesota in 1962 as
recipient of the Wheat Ridge Foundation Fellowship in Mental Health. I received
my Ph.D. from the University of Minnesota in 1970 in clinical psychology
with a medical minor and a collateral field in child development and child
therapy. My training at the University of Minnesota corresponds to the American
Psychological Association, Div. 12, clinical psychology, guidelines (1985)
for the optimal training for psychologists to be able to provide competent
psychological mental health services to children.
I have been active for many years in writing, conducting research, treating
both victims and perpetrators of child sexual abuse, and giving presentations
of our research and work at professional conferences. I have been qualified
as an expert in over 225 trials dealing with child sexual abuse in 42 states,
the military justice system and five foreign countries. A copy of my CV
II. The five factors which the Supreme Court adopted are:
1) The evidence will assist the trier of fact to understand the evidence
or to determine a fact in issue;
2) the evidence will add to the common understanding of the jury;
3) the underlying theory is generally accepted as valid;
4) the procedures used are generally accepted as reliable if performed properly;
5) the procedures were applied and conducted properly in the present instance.
III. The concept of sexual abuse accommodation syndrome does not meet any
of the requirements of the five factors. The concept was advanced by Roland
Summit, M. D., not as an aid to understanding nor as a determinant of fact
but rather, by his own description, as a consciousness raising experience
for mental health professionals to sensitize them to what Summit believed
was a tendency to minimize or be unaware of the prevalence of sexual abuse.
He maintains he never intended the concept to be used to make any diagnosis
or determination of fact and that people who attempt to use it in that fashion
are misusing his concept. There is no factual basis for this concept at
all. There is no scientific quantifiable evidence to support it. It is only
a speculative, subjective, and personal conceptualization. It cannot add
to the common understanding of the jury. It is not generally accepted in
the scientific community. It has been specifically rejected even for further
study by the Revision Committee of DSM III-R and judged to be without scientific
merit (Corwin, 1988). The Supreme and Appellate courts in several states
have ruled that the use of this concept is not permitted because it does
not meet the requirement to be generally accepted in the scientific community.
Most recently the Report No. 8 of the San Diego County Grand Jury, June
29, 1992, which investigated the handling of sexual abuse cases for several
years, decries the use of the sexual abuse accommodation syndrome, holds
it not generally accepted, and regards it as confusing and harmful to children
The concept of sexual abuse accommodation syndrome cannot be used in a proper
manner by anybody. It is not possible for any human being to properly use
any procedure, no matter what it is, for which it cannot be demonstrated
that there is a better than chance (> .50) reliability of the outcomes.
There is no evidence that this concept improves upon chance. Rather, a recent
analysis of decision making in sexual abuse allegations suggests it may
contribute to a grotesquely unacceptable level of false positives, that
is concluding there was abuse when there was not (Horner & Guyer, 1991a,
b). If a procedure cannot be shown to improve upon chance level, the only
operative principle is chance and any procedure from casting chicken bones,
reading goat entrails, flipping coins, or hours of sophistry can be followed
by chance events. There is no way this concept can be applied or conducted
properly in the present instance of the Smith matter.
IV. The concept of behavioral indicators that can be used to establish whether
or not a person has been sexually abused also does not meet any of the five
requirements of the Supreme Court. There is no scientific quantifiable data
that establishes a causal relationship between any of the behaviors on the
various lists and a prior experience of sexual abuse. There is no scientific
quantifiable data that demonstrates a rate of any of these behaviors in
a sample advanced as sexually abused that exceeds the base rate of those
behaviors in the nonsexually abused population. The behaviors are at most
stressor responses which can be associated with many, many stressor experiences
other than abuse. To offer nondiscriminatory evidence suggesting through
an expert that it can be used to make a discrimination is to generate great
confusion, misperception, and damage the ability of a jury to reach the
most rational decision possible (Arkes & Harkness, 1983; Bell &
Loftus, 1989; Cutler, Dexter, & Penrod, 1989; Faigman, & Baglioni,
1988; Faust, 1989; Saks, & Kidd, 1980-81; Kovera, Levy, Borgida, &
Further, to attempt an argument inferring from a known present event backward
in time to unknown alleged event to establish the facticity of the prior
unknown but alleged event is the logical error of affirming the consequence
(Gambrill, 1990). It is not a proper form of argumentation. This means the
use of the behavioral indicators cannot be done properly nor can they be
applied properly in the present instance.
V. The diagnosis of Post Traumatic Stress Disorder is found in the DSM III-R
of the American Psychiatric Association. It is generally accepted in the
scientific community that traumatic stress can have serious negative consequences
for individuals. It is also generally known to the public and this observation
alone may not be a proper subject of expert testimony. The first requirement
to make a diagnosis of PTSD is that there be a known stressor experience
beyond the stress level often experienced. It is an improper use of this
diagnosis to infer backward in time from present observations to an unknown
but hypothesized stressful event in the attempt to buttress with an aura
of medical practice a claim that the alleged prior event was a real experience.
This is shown by the VA experience of finding significant numbers of veterans
claiming PTSD after Vietnam, demonstrating the symptoms, only to find out
their service records showed either no Vietnam tour or no combat experience.
Once again this is a logical error, the fallacy of affirming the consequence.
Also there is no indication that the specific instance of the Smith case
includes the required symptoms, either in the type or in the frequency,
that DSM III-R mandates in order for the diagnosis to be made. Therefore
this diagnosis cannot be properly applied in this present instance.
VI. The summary of Dr. B.S.'s testimony includes one area for which there
is agreement and quantifiable evidence, that is the lack of documentable
physical symptoms when there has been sexual abuse. This is what leads Henry
Krugman, M. D., Director of the Kempe Center, to write "The medical
diagnosis of sexual abuse usually cannot be made on the basis of physical
findings alone. With the exception of acquired gonorrhea or syphilis, or
the presence of forensic evidence of sperm or semen, there are no pathognomic
findings for sexual abuse" (Krugman, 1989, p. 165-166). However, the
described testimony appears to run counter to the available scientific data
when the claim is made than an absent hymen means probable sexual intercourse.
Paradise (1989) examines the significance of hymenal tissue and concludes
that attempting to use physical findings of the hymenal tissue will produce
65% false positives in cases of penile penetration and 73% false positives
in cases of digital penetration. There is no evidence supporting the conclusion
that hymenal tissue or the absence thereof can be used to conclude a high
probability of sexual intercourse.
The balance of the statements summarizing the testimony of Dr. B.S. either
have no scientific data supporting them or there is some small body of contradictory
research data which means there is no general acceptance in the scientific
community. There are some persons who make similar statements as opinions
or speculations but there is no quantified data to support them.
Use of concepts or phrases such as "often", "most commonly",
"not unusual", "are likely" imply some quantification
and some data. If there is no quantification but only reliance upon personal
experience and non systematic personal observations this is not science
but personal speculation. It is not proper nor is it acceptable in the scientific
community to use clinical experience or clinical observations to support
such claims. There is over forty years of research demonstrating that clinical
observations and experience are unreliable and cannot be used as anything
other than a possible source for hypotheses which then must be carefully
examined by a quantified approach (Einhorn & Hogarth, 1978; Brehmer,
1980; Dawes, 1989; Dawes, Faust, & Meehl, 1989; Stanovich, 1992; Turk
& Salovey, 1985). This same criticism applies to any opinions offered
as testimony which are based upon anecdotes (Herbert, 1977).
While testimony based upon experience may be legally admissible, it cannot
be offered under the rubric of science nor as being generally accepted in
the scientific community. Reliance upon experience alone may, in fact, increase
error (Faust, 1986; Gambrill, 1990). In the absence of any support for accuracy
such speculative, non scientific opinion cannot assist the jury nor add
to their understanding except to increase an erroneous understanding. Use
of experience alone as support for opinion is not scientifically sound nor
is it accepted. Therefore the use of experience as a base for an opinion
is not able to be done properly nor is there any basis for seeing it as
reliable.. Therefore in the present instance it is not a procedure that
can be applied or conducted properly as a scientific procedure.
I declare that the foregoing is true and correct.
Executed this ______________ in Northfield, Minnesota.
Ralph Underwager, Ph.D.
Licensed Consulting Psychologist
Subscribed and sworn to before me by Ralph C. Underwager on this ninth day
of July, to certify which witness my hand and seal of office.
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