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 is available.


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 and families.

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, & Penrod, 1992).

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.

_________________________________
NOTARY PUBLIC


REFERENCES



Arkes, H. R. & Harkness, A. R. (1983). Estimates of contingency between two dichotomous variables. Journal of Experimental Psychology: General, 112(1), 117-135.

Brehmer, B. (1980). In one word: Not from experience. Acta Psychologica, 45, 223-241.

Bell, B. E., & Loftus, E. F. (1989). Trivial persuasion in the courtroom: The power of (a few) minor details. Journal of personality and social Psychology, 56(5), 669-679.

Corwin, D. L. (1988). Early diagnosis of child sexual abuse: Diminishing the lasting effects. In G. E. Wyatt & G. J. Powell (Eds.), Lasting Effects of Child Abuse (pp. 251-269). Newberry Park, CA: Sage Publications.

Cutler, B. L., Dexter, H. R., & Penrod, S. D. (1989). Expert testimony and jury decision making: An empirical analysis. Behavioral Sciences & the Law, 7(2), 215-225.

Dawes, R. M. (1989). Experience and validity of clinical judgment: The illusory correlation. Behavioral Sciences & the Law, 7(4), 457-467

Dawes, R. M., Faust, D., & Meehl, P. E. (1989). Clinical versus actuarial judgment. Science, 243, 1668-1674.

Einhorn, H. J., & Hogarth, R. M. (1978). Confidence in judgment: Persistence of the illusion of validity. Psychological Review, 85(5), 395-416.

Faigman, D. L., & Baglioni, A. J. (1988). Bayes' theorem in the trial process: Instructing jurors on the value of statistical evidence. Law and Human Behavior, 12(1), 1-17.

Faust, D. (1986). Research on human judgment and its application to clinical practice. Professional Psychology: Research and Practice, 17(5), 420-430.

Faust, D. (1989). Data integration in legal evaluations: Can clinicians deliver on their premises? Behavioral Sciences and the Law, 7(4), 469-483.

Gambrill, E. (1990). Critical Thinking in Clinical Practice. San Francisco. Josey-Bass.

Herbert, V. (1977). Acquiring new information while retaining old ethics. Science, 198, 690-693.

Horner, T. M., & Guyer, M. J. (1991). Prediction, prevention, and clinical expertise in child custody cases in which allegations of child sexual abuse have been made: I. Predictable rates of diagnostic error in relation to various clinical decision making strategies. Family Law Quarterly, 25(2), 217-252.

Horner, T. M., & Guyer, M. J. (1991). Prediction, prevention, and clinical expertise in child custody cases in which allegations of child sexual abuse have been made: II. Prevalence rates of child sexual abuse and the precision of 'tests' constructed to diagnose it. Family Law Quarterly, 25(3), 381-409.

Krugman, R. D. (1989). The more we learn, the less we know "With reasonable medical certainty"? Child Abuse & Neglect, 13 (2), 165-166.

Kovera, M. B., Levy, R. J., Borgida, E., & Penrod, S. D. (1992, March). Expert witnesses in child sexual abuse cases: Effects of expert testimony and cross-examination. Paper presented at the meeting of the American Psychology-Law Society, San Diego, CA.

Paradise, J. E. (1989). Predictive accuracy and the diagnosis of sexual abuse: A big issue about a little tissue. Child Abuse & Neglect, 13 (2), 169-176.

Saks, M. J., & Kidd, R. F. (1980-81). Human information processing and adjudication: Trial by heuristics. Law & Society Review, 15(1), 123-159.

Stanovich, K. E. (1992) How to Think Straight About Psychology. New York. Harper Collins.

Turk, D. C., & Salovey, P. (1985). Cognitive structures, cognitive processes, and cognitive-behavior modification: II. Judgments and inferences of the clinician. Cognitive Therapy and Research, 9(1), 19-33.

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