Court Rulings Relevant to Expert Testimony in Child Sexual Abuse Cases

Maryland vs. Craig

There has been a growing attempt to protect the child witness from the trauma of testifying in court by modifying court procedures, such as testifying behind a screen or on videotape in another room. This was the issue addressed in Maryland vs. Craig (110 S. Ct., 3157, 1990) where, according to the Supreme Court, if the prosecution moves to have the child witness testify behind a screen, they will have establish several things. The requisite necessity finding must be case specific. The trial court must hear evidence and determine whether the procedure's use is necessary to protect the particular child witness's welfare; find that the child would be traumatized, not by the courtroom generally, but by the defendant's presence; and find that the emotional distress suffered by the child in the defendant's presence is more than de minimis.

This Supreme Court ruling demands that there be an evidentiary hearing, prior to the trial, at which there will be testimony about the effect on the specific child of testifying in the presence of the person accused. The defense will object, since such a procedure gives the message the defendant has done something to terrify the child.

The prosecution is likely to use whatever experts have interviewed the child or provided therapy to offer testimony and opinions. This is despite the fact that there is no research separating out the single factor of the defendant's presence from all other factors in assessing the probable effects of courtroom testimony on a child.

However, if the prosecution makes such a motion, the defense should immediately move for an evaluation of the child by their own expert in order to counter the testimony of the prosecution's experts. Such an evaluation can produce useful information and may enhance the credibility of the defense expert if he or she has also evaluated the child. But the best and most accurate testimony may well be for the expert to testify that there is simply no way to tell whether the child will be traumatized in court other than to rely upon the baseline information that most children are not severely traumatized by testifying.

A mental health professional who testifies that the requirements of Maryland vs. Craig are met and therefore a screen can be used has exceeded the competency and ability of the mental health professions. There are no empirical data to support such a claim. There is no way any competent mental health professional can testify that emotional distress would be caused solely and alone by the presence of the defendant (Underwager and Wakefield, 1992). There are no techniques that can measure emotional distress with the precision required by the Supreme Court. Mental health experts should be confronted with the fact that this requirement exceeds what is possible to do. To attempt to do so violates the code of ethics for psychologists.

Idaho vs. Wright

In Idaho vs. Wright (110 S. Ct., 3139, 1990), the court addressed the issue of what kinds of hearsay are admissible in terms of the Confrontation Clause. The Court set forth a two part test for determining whether hearsay evidence may be admitted against a defendant in a sexual abuse case. First, hearsay may be admitted if it falls under a "firmly rooted" exception to the hearsay rule. Second, if the statement falls under a hearsay exception that is not "firmly rooted," then the statement is presumptively unreliable and inadmissible, and will only meet Confrontation Clause standards of admissibility if it is supported by a showing of "particularized guarantees of trustworthiness."

Mental health professionals who offer hearsay testimony concerning statements child witnesses have allegedly made about abuse should be cross-examined on the reliability of these statements. It is difficult to meet the standard of "particularized guarantees of trustworthiness" without a tape of the interview, since without a tape, there is no way to establish just what transpired in the interview. Taped interviews that are leading and suggestive can be challenged that any statements resulting from such techniques are unreliable.

New Jersey vs. Michaels

New Jersey vs. Michaels (642 A.2d 1372, N.J. 1994) is a decision from the New Jersey Supreme Court. Kelly Michaels had been convicted of sexually abusing children in a day care center and was imprisoned for 5 years before her case was overturned on appeal. The children had been subjected to highly leading, suggestive, and coercive interviews. The New Jersey Supreme Court ruled that the interrogations of the children were improper, and given substantial likelihood the evidence derived from them was unreliable, a pretrial hearing was required at which the state would be required to prove by clear and convincing evidence that the statements and testimony retained sufficient degree of reliability to warrant admission at trial.

What this ruling means is that, in situations where the interviews of the child witnesses were leading and suggestive, the attorney can move for a taint hearing where the state must prove that the interviews were not leading and coercive and that the testimony of the child witness(es) would be reliable. In the taint hearing, the state is entitled to call experts to offer testimony with regard to the suggestive capacity of the suspect investigative procedures, and the defendant may offer expert testimony of the issue of the suggestiveness to counter the state's evidence. Attorneys must be knowledgeable about the information above on memory, suggestibility, and interviewing techniques.

Daubert vs. Merrell, Dow Pharmaceuticals

The recent unanimous United States Supreme Court decision in Daubert vs. Merrell, Dow Pharmaceuticals (61 U.S.L.W. 4805, 113 S Ct 2786, 1993) in June, 1993 dramatically changes the criteria by which scientific testimony will be admitted as evidence in court. The ruling states that the major criterion of the scientific status of a theory is its falsifiability, refutability, or testability. This, in effect, replaces the Frye test (Frye vs. United States, 293 F. 1013) with the Popperian principle of falsification as the determinant of scientific knowledge.

Justice Blackmun identified four factors that the court should consider in determining whether an expert's opinion is valid under rule 702:
 

1. Whether the expert's theory or technique has been or can be tested or falsified.
2. Whether the theory or technique has been subjected to peer review or publication.
3. What the known or potential rate of error is for any test or scientific technique that has been employed.
4. Whether the technique is generally accepted in the scientific community.

Therefore, although general acceptance in the scientific community (the Frye test) is one consideration, the lack of such by itself does not preclude the proposed testimony. This will make admissible new scientific evidence that was excluded under Frye. At the same time, if properly understood and followed, this ruling is likely to render inadmissible testimony based on such concepts and theories as the child sexual abuse accommodation syndrome and claims that childhood sexual abuse has been "repressed."

Although the decision is limited to federal court, it will be applicable wherever federal rules of evidence apply. (See Underwager and Wakefield, 1993 and Stewart, 1993 for discussions of the Daubert decision.)