Understanding sexual violence:
Prosecuting adult rape and sexual assault cases
Tab 8: What do sexual assault forensic examiners do, and what can they do for you?
Sexual Assault Forensic Examiner Slides can be seen in .html or Power Point
Donna A. Gaffney, RN, DNSc, FAAN
The Role: The sexual assault examiner is a specially trained nurse or physician who provides comprehensive treatment to survivors of sexual violence. This professional is not merely a technician who collects evidence, but a knowledgeable and compassionate health care provider who understands every aspect of the victim’s experience. The sexual assault examiner’s skillful assessment techniques, thorough understanding of the dynamics of rape and the mechanics of injury provide a solid foundation for accurate evaluation of injury. Although this role prioritizes the importance of the victim’s treatment and recovery, sexual assault examiners also recognize the importance of objective documentation and the need to provide testimony based on their professional expertise.
The Educational Preparation: The sexual assault examiner is well prepared in medical and forensic sciences as well as the legal aspects of sexual assault. The first training programs were developed over twenty years ago by professional nurses. It is important to note that information relevant to the assessment and treatment of sexual assault victims and the collection of evidence is generally not included in basic nursing and medical education curricula. Today there are accepted educational standards which guide the structure and information contained in sexual assault examiner courses. Programs must be a minimum of 40 hours and grounded in the most current research and theories in the field. There are also requirements for clinical skill development, ongoing education and supervision. Professionals working with child survivors must complete an additional 40 hour course. New Jersey, Texas and Maryland have mandated their own educational criteria for any professional who practices as a sexual assault examiner in their states.
Titles, abbreviations and acronyms:
The role of the Sexual Assault Examiner
Educational preparations of Sexual Assault Examiners
(Note: The curriculum content listed below was developed by Donna Gaffney for "The Assessment and Evaluation of the Adult Sexual Assault Survivor," 1995. The course is five full days and offers 44 continuing education contact hours for participants. Course development was funded through the New York State Department of Health, and training was supported by the NY Division of Criminal Justice Services.)
Evaluation of competency of Sexual Assault Examiners
Program locations and variations
Referemces
American Nurses Association (1997) The Scope and Standards of Forensic Nursing Practice. ANA: Washington, DC.
Gaffney, Donna. (1995) The Assessment and Evaluation of the Adult Sexual
Assault Survivor. (Unpublished curriculum and resource manual).
Gaffney, D. (1997) Community Based Sexual Assault Intervention Programs.
Sexual Assault Reports, 1 (September)
Gaffney, D. (1999) Educating Clinicians: The Case for Scholarship and Science. At-Risk Children and Families. Vol. 2, No. 5.
International Association of Forensic Nurses. (1996) Sexual Assault Nurse
Examiner Standards of Practice. IAFN: Pitman, NJ.
International Association of Forensic Nurses. (1998) Educational Standards for Sexual Assault Nurse Examiner Training Programs. IAFN: Pitman, NJ
Ledray, Linda E & Arndt S. (1994) Examining the Sexual Assault Victim;
A New Model for Nursing Care. Journal of Psychosocial Nursing & Mental Health Services. 32 (2): 7-12.
From the "Full Story"
Amanda Brown sought medical attention ten days after the incident. She wanted to make sure that Cates did not give her an STD. She did not tell her doctor she was raped. The doctor noted there was no physical injury or disease but identified that she exhibited a depressed demeanor, which was very different from prior visits when she was lively and engaged.
What really happened
Amanda was at home on her semester break and she became increasingly concerned that she had an STD. She didn’t feel right, had some burning on urination and itching in the genital area. She was continually thinking about the assault and became more and more despondent, quieter and did not visit with her friends who were also home from college on semester break. In desperation she finally made an appointment with her doctor.
What could have happened if Amanda Brown’s Doctor was trained in S.A.F.E. techniques
Amanda Brown has been a patient of Dr. Angela Diaz since she was a child. Amanda had her first pelvic examination and pap smear before she entered college. The nineteen-year-old has never had a serious boyfriend and when offered birth control pills she vehemently refused saying it was against her religion. Amanda was a bit apprehensive before the exam but when Dr. Diaz gave her strategies for relaxation she was cooperative, comfortable, and easily engaged in a conversation about gynecologic health.
It had been 18 months since this first pelvic examination and Dr. Diaz became concerned there was something very different about this visit. In addition to recognizing that Amanda’s mood was dysphoric, she also presented with vague symptoms indicating a urinary tract infection and became evasive when asked why she had concerns about an STD. Dr. Diaz did not initially notice any physical genital injuries but she did observe some minor findings.
While examining Amanda, Dr. Diaz noticed a long scabbed abrasion (3" x 1/4") on the outer aspect of her left thigh. When Dr. Diaz asked Amanda how it happened, she stated, I don’t know how it got there." When Amanda described her symptoms of burning on urination, Dr. Diaz was quite confident that she had become sexually active. Amanda adamantly denied sexual activity but still asked if she could have a sexually transmitted disease.
In addition, Amanda seemed very fidgety on the exam table. As Dr. Diaz inserted the speculum Amanda started to bite her lip, became tearful and clenched her fists. She pulled away and pushed her pelvis downward, making visualization nearly impossible. The muscle tension in Amanda’s legs and perineal area made it extremely difficult to adequately examine Amanda. This was in marked contrast to what the doctor remembered from Amanda’s first pelvic exam.
Dr. Diaz decided she needed to do a complete evaluation and assessment for sexual abuse/assault. She began by explaining to Amanda that she would like to talk to her a bit more and do a thorough examination and take some samples, but only after they talked. She took Amanda to her office and moved her chair from behind her desk and sat facing Amanda. She talked about her observations and that she was concerned. She also told Amanda that anything she discussed would be confidential unless Amanda decided to share it with anyone else. Amanda immediately said, "You’re not going to tell the police are you?" Amanda looked at the floor and did not make eye contact with Dr. Diaz, and then became tearful. Dr. Diaz assured her she could take as long as she needed, that she would stay with her until they were finished. Dr. Diaz calmly and sensitively asked Amanda to explain the reason for her coming to the office.
"Tell me what happened that you think you might have an STD?"
"Nothing, I was just worried."
"When did the worrying start?"
"Almost two weeks ago."
"Tell me what happened at that time."
No answer.
"Try to think back, it was before the holidays, and you were probably finished with classes and maybe taking exams. What day of the week was it? What else was going on that day?"
No answer, and biting her lip.
"Amanda, tell me what you are thinking about."
She starts to cry.
"It’s okay to cry, I’ll wait until you can talk."
"I had my last exam that day and then I had to go to rehearsal, it was our holiday musical...."
(Dr. Diaz nods)
"This guy, he was in the play too, he offered to drop me off at home after rehearsal...it was late so I said okay. I can’t believe I did that, I am so stupid."
"You’re not stupid...lots of people give friends rides home...go on."
Amanda then proceeded to describe the events of that night. As Dr. Diaz listened carefully to Amanda’s description of the events, she noted her demeanor, facial expression, eye contact and posture. She also noted how the information contained in the history would inform her history and the physical examination.
| The Assault History | History and Physical | ||
|---|---|---|---|
| Amanda told Dr. Diaz she drank two rum and cokes and smoked "a joint." | Have you had alcohol in the past? How much do you usually drink? Describe for me how you felt then? Could you speak? Were you able to walk? How fast did you drink the R & Cs? Have you smoked marijuana before? Have you ever smoked pot before? |
||
| Two other times, that’s all… | How did it make you feel? |
||
| I felt really tired, we were sitting on his bed. There was no place else to sit, and then he started to kiss me. | What was your reaction to that? What did you say or do? |
||
| That part was okay. | What did he do? |
||
| Then he put his hands on my boobs, here, and tried to unhook my bra. | What did you do then? What did you say? |
||
| I told him to "stop."I even tried to get off the bed but my legs were like rubber and the room started to spin around me. |
What did he do next? | ||
| I struggled with him… | What do you mean by struggle? Describe for me exactly what you did. |
||
| I pushed him away, but he is so much bigger and stronger than me it was like trying to get out from under a boulder. And it hurt. One of my fingers bent back and my nail broke off and started to bleed. | Where did it hurt? Show me. (Identify possibility of bruises) (Inspect hands and compare nails) |
||
| Then he said, "You know you want it, that’s why you are here." | What did you do then? |
||
| I couldn’t believe he would say such a thing, I went to his room because he needed to get his gas card. I was so upset. I mean I kind of liked him. I just can’t believe I was so stupid, it was all my fault. | You were not stupid, and it was not your fault. You agreed to go to his room, that’s all. Tell me what happened next. |
||
| He grabbed my sweater and pulled it off. It was new, and I was worried he would wreck it and then my mother would be mad. She would ask me how it got so stretched out and then she would know. | (Ask later about the sweater) It sounds like there were lots of things going through your mind. What did you do then? |
||
| I told him to "stop" that I had to go home or I would be in trouble but he pushed me back on the bed and then (she pauses, starts to cry...) | I can see it is hard for you to talk about that night. (Diaz allows silence) |
||
| ...he...he...got on top of me. I kept telling him to stop, I even asked him "Why are you doing this? I want you to stop. I am serious, stop." |
What did he do when you told him to stop? |
||
| He looked different, all of a sudden he looked really mean… | Describe for me how he looked different. |
||
| He looked mean and I thought he would just explode... He clenched his teeth, his eyes got narrow and dark. I’ve never seen him like that, I thought he would do something to me....I was really afraid. |
What did you do when he looked so mean? | ||
| I started to cry but I was so afraid, I couldn’t even move. I just laid there. (Starts to cry) | What happened then? |
||
| He just grabbed my skirt, shoved it up... | (Examine thigh again, take measurements) |
||
| Then he grabbed my underpants and pulled them off. It hurt, he scratched me or something. I couldn’t see but when you asked me before about the scab on my leg, I think that’s where he hurt me. I couldn’t see because he pinned my arms over my head. I couldn’t move, he was so big. |
Go on, Amanda. | ||
| He...he...(cries again) put his knees between my legs, I couldn’t close my legs, I tried. I kept trying. |
|||
| He touched me. | Amanda, where did he touch you? |
||
| Down there. | Where "down there"? |
||
| He stuck his fingers inside me. | Where inside you? |
||
| You know, where I get my period. | Your vagina? |
||
| Yea...... | What else happened? |
||
| He forced himself into me. | What do you mean forced himself? |
||
| He put his "thing" into me and pushed hard. | Do you mean his penis? |
||
| Yea... | Amanda, could you tell if he ejaculated? If he "came" inside of you?
|
||
| I don’t know. He groaned and then stopped. | What did he do then? |
||
| He just got dressed as if nothing had happened. I went into the bathroom, there was blood and stuff on my legs. I just wiped myself and got dressed. |
How did you wipe yourself? | ||
| I used my underwear. | What happened to the underwear? |
||
| I threw them in a corner in my closet. I never want to see them again. | Are the underpants still there? |
||
| I don’t know, I guess so, I couldn’t put them in the laundry basket, my mother would see....(cries again)...my parents would be so angry. | Amanda, I know you’re worried about your parents but I must make sure that you are okay. I would like to examine you again. We’ll go slowly so you will feel as comfortable as possible. We can stop whenever you need to. |
||
| (She nods her head ‘yes’) |
|||
| What about STDs? | We will do some tests and give you some medicine to make sure you do not get any diseases. We will also be sure that you are not pregnant. |
||
| I don’t think I could be, I just finished my period the day before...this...happened... | I will do a test anyway, just to be sure. I will also explain how to help your body heal. You will have to decide if you are going to report this. You can think about it while I examine you. This should not have happened to you. |
||
| I am afraid what people will think if I tell... | It is very hard to talk about these things. I want you to meet our rape crisis counselor later. She will answer any questions you might have and can assist you in that process. But for now, let’s be sure you are okay. You did the right thing by coming here today. This is not your fault. Let’s go into the next room. |
The physical examination
Dr. Diaz brought Amanda into her examining room. She did a complete head to toe examination and inspected every part of her body. She identified the abrasion on Amanda’s thigh, measured it and took a photograph as well as drawing a body diagram on the medical record. She also found several old bruises (yellowing) on Amanda’s inner thighs and her inner knee. Each time Dr. Diaz noted an abnormal area she pointed it out to Amanda and asked what could have caused the injury. Amanda was able to fill in more details from that night. Dr. Diaz completed the pelvic examination, and there were no injuries or abnormalities noted. She took swabs for STD testing and blood work for HIV and pregnancy testing. She gave Amanda medication for her urinary tract infection, STD prophylaxis, instructions for self-care, and an appointment for a follow up visit in two weeks. She then referred her to the rape crisis counselor.
The Resource Book materials relevant to this section are listed below:
Expert Witness slides can be found in .html or Power Point.
Women who claim they were sexually assaulted are often viewed with skepticism. Challenges to a sexual assault victim’s credibility are common in the courtroom and in the community.1 Sexual assault victims also often act in ways that are counterintuitive. Although the elements of resistance and corroboration have been removed from state statutes, many jurors still believe that a sexual assault victim should fight back and immediately report the incident. Stereotypes and myths about rape cause many to shift their focus from the rapist to the victim. In addition, where the defense is consent, prosecutors often need help rebutting the "he said - she said" argument. For these reasons, expert testimony is often useful in sexual assault cases to explain the victim’s counterintuitive behavior, to explain the complexities of sexual assault, and to respond to the defendant’s claim that the incident was consensual.
Prosecutors across the country have used experts in sexual assault cases to address several key issues. Experts can address such issues as:
NOTE: An expert should not testify about a particular witness’s credibility or whether an assault did or did not happen. Experts should never testify as to whether they believe the victim is telling the truth or whether they believe the victim was sexually assaulted. This type of testimony almost always results in a mistrial of the case or the reversal of a conviction on appeal.
There are several key terms which prosecutors must understand in dealing with sexual assault victims and preparing experts to testify in these cases. Unfortunately, there is a great deal of confusion about these terms, and courts have used the terms rather indiscriminately and in certain circumstances, incorrectly, when ruling on the admissibility of expert testimony in sexual assault trials.
Issues related to confidentiality and privilege are very important in sexual assault cases.
Even if you are not planning to call an expert to testify at trial, there are many ways you can use an expert to help you prepare for trial and to help support the victim through the process. Some examples are:
The case annotations contained in Expert Testimony in Sexual Assault Cases: Selected Case Law from Around the Country, provide numerous examples of cases in which courts found expert testimony admissible and cases in which the courts held that the evidence was not admissible. This section mentions a few other issues that emerge in these cases.
1. Laura E. Boeschen, Bruce D. Sales, & Mary P. Koss, Rape Trauma Experts in the Courtroom, 4 Psychology, Pub. Pol'y & Law 414 (1998).
2. This section was adapted from The Practical Use of Expert Witnesses in Cases Involving Violence Against Women, by Anne Munch, Esq., presented at the fourth Annual STOP Violence Agaist Women Conference, Baton Rouge, Louisiana, April 123, 2000.
3. Boeschen, supra note 1, at 416.
4. American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders (4th ed. 1994).
5. Boeschen, supra note 1, at 417.
6. Id., at 418.
7. Id., at 419.
8. Id.
9. Id., at 420.
10. This section is adapted from Boeschen, supra note 1, at 424-428.
11. Scott Wyatt & Donald G. Linton, Acquaintance Rape Investigation and Prosecution 54-58 (1999)
Use this checklist to prepare your expert for trial.
Before any expert testifies at the trial, you should meet with the expert and establish the scope and breadth of the expert’s testimony. Interview your expert as soon as you possibly can. In this pre-trial meeting, discuss the following with the expert:
You need to have sufficient information about an individual to offer him or her as an expert witness. If you do not lay the proper foundation, the court will not qualify your witness as an expert. If the witness is not qualified as an expert, the witness cannot offer opinion testimony. During your preliminary meetings, ask the expert the following types of questions so you will have the information you need to lay the foundation for the expert’s testimony at trial:
Educational/Professional Background:
Area of Practice:
Previous Expert Testimony:
If an expert has not testified before, the prospect can be very intimidating. You and your expert should contact other experts who have testified and ask them about their experiences, especially during cross-examination. Contact other prosecutors, professional associations, local state sexual assault coalitions or local rape crisis programs to get names of others who have testified.
Tell your expert to use plain language while testifying. Jurors do not have the benefit of the expert's education and it is critical that the jurors understand what the expert is saying. If the expert has to use technical terms, remind the expert to explain the term's meaning in plain English before continuing his or her testimony.
During your pre-trial meeting, talk to your expert about the general practices of the opposing attorney and judge. If you can, tell the expert about defense counsel's demeanor during cross-examination. Also provide the expert with the opportunity to observe the courtroom before the expert is scheduled to testify. If time permits, conduct a practice direct examination and cross-examination with the expert.
Experts may feel that they do not need to prepare as carefully if they have testified before. It is crucially important for you to explain that each case is different, as is each attorney. You need to prepare each expert witness regardless of the number of times that witness has testified in the past.
Use what you have learned from your expert to craft questions for voir dire, to plan your direct examination of the victim and to plan your cross-examination of the defendant. Find out whether the defense attorney intends to call an expert and get that expert's name. If the defense is planning on calling an expert witness, use your expert to help you prepare for cross-examination. You and your expert should be familiar with the defense expert's background, credentials and written materials. Obtain a copy of the defense expert's curriculum vitae and review it with your expert. In addition, get transcripts of the defense expert's prior testimony and copies of any publications. Ask your expert to read the defense expert's articles and suggest areas for cross-examination. Also ask your expert to find out about the defense expert by contacting professional organizations or other sources to provide additional background information.
If your expert is charging a fee for his or her testimony, discuss the fee ahead of time with your expert. You may want to ask your expert about the fee during direct examination to avoid difficult cross-examination on the issue. If not, warn the expert to expect to be asked about the fee in cross-examination. The expert must be prepared to explain his or her fee in matter-of-fact terms, without getting defensive.
Tell your expert exactly what information you need to have developed during direct testimony. After you have reviewed your questions with your expert, ask if you have missed any key areas of inquiry. Find out if there are other specific questions you should ask the expert at trial. Explain that you would appreciate any insight that will strengthen your case or help you avoid surprises. Use your expert to teach you about your case.
In addition, explain the key phrases or terminology you will use or need your expert to use while testifying. Requirements vary from state to state about what key phrases are necessary before an expert can state an opinion. Explain the legal significance of such legal phrases as "within a reasonable degree of medical certainty" and "consistent with." Also explain the distinction between something that is "possible" or "probable."
Prosecutors should be sure to explain to their experts whether the experts will be asked to provide background information about common reactions of sexual assault victims, opinion testimony, or testimony based on hypothetical questions. The type of permissible expert testimony varies widely from jurisdiction to jurisdiction and it is important that the expert understand the permissible parameters before testifying. Each type is summarized below:
Here, experts can testify about general relevant principles. The judge or jury is then left to apply the principles to the facts of the case. Background information about such common characteristics as delayed reporting, self-blame, lack of physical injury, fragmented memories, recanting and minimization helps the judge or jury understand key issues of the case and allows them to choose whether to apply what they have learned in deciding the case before them.
In general, experts can give opinions where lay witnesses cannot. Before an expert can express an opinion, the expert must possess a reasonable certainty about the stated opinion. The expert's opinion should not be based on guesswork or speculation, but the expert need not be absolutely certain. Different jurisdictions use different standards to determine the admissibility of expert testimony. Be sure you are familiar with your state's requirements and explain them to your expert during your pre-trial meetings.
Remember experts should not give opinions about whether the victim in the particular case is telling the truth or has been sexually assaulted.
Traditionally, many states forced experts to express their opinions only in response to a hypothetical form of questioning. Today, these types of questions are not used as often because they can be cumbersome and confusing. When used, these questions may be offered by either side, and may sound something like this:
"Please assume the following facts…" (A set of facts will be given that may mirror the facts of the case.) "In your opinion, are these facts consistent or inconsistent with someone who has experienced sexual assault?"
Warn your expert that if the defense attorney uses a hypothetical question during cross-examination at trial, the expert should listen very carefully to the question and articulate all distinctions the expert perceives between the hypothetical question and your set of facts.
There has been a great deal of research over the last several years about the psychological sequelae of rape victimization and the traumatic response. Recent advances in neurobiology demonstrate that traumatic memories are actually stored and retrieved differently than non-traumatic memories. Be sure that both you and your expert are familiar with and have reviewed the current research in this area before the expert testifies.
An expert witness should be cautious about testifying about a patient in a criminal case. The dangers of violating confidentiality and privileged communication are high under these circumstances. If you do decide to ask a treating therapist to testify about a former or current patient, you must make sure that the patient has been fully informed about the confidentiality and privilege issues that may arise as a result of the therapist's testimony. This issue should be discussed in detail with the patient and the therapist. You should also file a motion asking the court to limit questioning of the therapist to the relevant time frame or topic. You need to carefully think through the implications of using a treating therapist as a witness in a criminal trial. It is often best to use an expert who has no connection to the case, so conflicts of interest can be avoided and the victim's therapeutic relationship can be protected.
Another difficult area that arises in sexual assault case is the confidentiality of the victim's therapist's records. Defense attorneys often try to gain access to the victim's records. Victims' therapy records may have information, unrelated to their sexual assault, which they do not want disclosed. If the therapist is associated with a hospital or mental health center, the therapist's Risk Management Department may become involved with any request for the facility's records. Each state's law varies on this issue, so you need to be familiar with your state's privilege and confidentiality laws. It is important that you do what you can to protect the victim's privacy and the confidentiality of her therapy records.
Because statistics can be so persuasive and they are commonly attacked on cross-examination, it is important that experts use accurate, reliable figures when testifying. The expert should be prepared to discuss where he or she obtained the statistics and how the results were determined. Experts should also cite statistics from the original source (professional journal, original research, government publication, etc.), NOT from a magazine or newspaper article.
Tell your expert where to park ahead of time. If possible, have someone from your office meet the expert at the courthouse door and bring the expert to the courtroom. If no one is available, give clear and specific directions from the courthouse door to the courtroom. Explain to the expert what he or she should do upon arrival (wait outside the courtroom or come inside and sit down).
Explain that trials are often continued and schedules are often delayed. Tell the expert that you will make every effort to provide him or her with advance warning of any delays and accommodate the expert's schedule, but that it is not always possible. Explain that the judge, not you, controls the court calendar. Keep in touch with your expert.
When offering a witness as an expert, you must establish the witness's qualifications to the court's satisfaction. Usually this is accomplished by demonstrating the witness' knowledge and skill in a particular area. Some factors that the court may consider are:
At trial, you will ask your expert questions that cover these topics, and offer the witness as an expert. The defense attorney then has an opportunity to question or challenge the qualifications, or voir dire, the witness.
It is ultimately up to the judge to determine whether the person has been properly qualified as an expert. Never assume that the judge will permit an expert to testify.
1. This section was adapted in part from The Practical Use of Expert Witnesses in Cases Involving Violence Against Women, by Anne Munch, Esq., presented at the Fourth Annual STOP Violence Against Women Conference, Baton rouge, Louisiana, April 13, 2000.
2. This section was adapted in part from The Practical Use of Expert Witnesses in Cases Involving Violence Against Women, by Anne Munch, Esq., presented at the Fourth Annual STOP Violence Against Women Conference, Baton rouge, Louisiana, April 13, 2000.
If the victim received medical attention after the assault, prosecutors frequently call medical experts to testify at trial. These experts, either emergency room physicians, or, if your community has a Sexual Assault Forensic Examiner (SAFE) program, the SAFE nurse, describe their medical findings from their examination of the victim. The following suggestions are adapted from Dr. Michael Weaver's Optimizing Physician/Nurse Role in the Criminal Justice System1, which is included in your Resources Book in Volume I, Tab 7, "Expert Witnesses." From a physician's point of view, these recommendations are ways in which prosecutors can make it easier for the medical clinician to testify in a sexual assault trial.
Checklist for Prosecutors Using Medical Experts 6
1. This section is adapted from Michael Weaver, Optimizing Physician/Nurse Role in the Criminal Justice System, National Non-Stranger Sexual Assault Symposium Proceedings Report, Denver Sexual Assault Interagency Council (April, 2000). Michael Weaver, M.D., FACEP, is a member of the Kansas city Sexual Assault Task Force and has lectured for the National College of District Attorneys on issues related to sexual assault.
2. Id., at 60.
3. Id.
4. Id.
5. Id., at 60-61.
6. id., at 60-61 (adapted from Dr. Weaver's Important Checklist Elements).
Give this checklist to your expert to help him or her prepare for trial.
You have been asked to testify as an expert witness in a criminal sexual assault trial. Here are some basic guidelines, which will help you prepare for your testimony. These guidelines are very general. Each state has different rules about whether experts can testify and what they can talk about when they are on the witness stand. Ask the prosecutor who has requested your testimony to explain the specific requirements for this particular trial. The following suggestions are offered to help you prepare to testify:
Before testifying at the trial, you should meet with the prosecutor and establish the scope and breadth of your testimony. This meeting should take place as soon as possible after you have been contacted to testify. In this meeting, be prepared to talk about the following issues:
The prosecutor needs to have sufficient information about you to offer you as an expert witness at trial. Be prepared to discuss with the prosecutor the following questions about your background:
Educational/Professional Background:
Area of Practice:
Previous Expert Testimony:
The prospect of testifying in court can be very intimidating, particularly if you have not testified many times before. Even if you have testified numerous times, each attorney has a different style of questioning and cross-examination. Judges have different styles of managing their courtrooms and each case has different facts and nuances. You should contact other experts who have testified and ask them about their experiences, especially during cross-examination. Contact other prosecutors, professional associations, local state sexual assault coalitions or local rape crisis programs to get names of others who have testified.
In addition, ask the prosecutor about general practices of the opposing counsel and judge and ask to observe the courtroom before you testify. If time permits, ask the prosecutor to conduct a practice direct examination and cross-examination with you.
Find out whether the other side intends to call an expert and get that expert's name. Be familiar with that expert's background and credentials. Be prepared to suggest areas of inquiry for cross-examination of the other expert.
If you are charging a fee for your testimony, discuss the fee ahead of time with the prosecutor, and agree on the amount. Be prepared to discuss your fee during your testimony, either during your direct examination or on cross-examination. The prosecutor may want to ask you about the fee during direct examination to avoid difficult cross-examination on the issue. Be prepared to explain your fee in matter-of-fact terms, without getting defensive.
Find out from the prosecutor exactly what information you need to develop during your direct testimony. After the prosecutor has reviewed the areas of inquiry with you, tell the prosecutor if he or she has missed any key issues you would like to discuss. The prosecutor is relying on your insight to strengthen the case and avoid surprises at trial. Suggest other specific questions you think would be helpful. Keep in mind, however, that it is up to the attorney to decide which questions to ask.
Make sure the prosecutor explains the key phrases or terminology that he or she will use or needs you to use while testifying. Requirements vary from state to state about what key phrases are necessary before an expert can state an opinion. Make sure the prosecutor explains the legal significance of such legal phrases as "within a reasonable degree of medical certainty" and "consistent with." Also be sure you understand the legal distinction between something that is "possible" or "probable."
You need to use plain language while testifying. Jurors do not have the benefit of your education and it is critical that the jurors understand what you are saying. If you have to use technical terms, explain the term's meaning in plain English before continuing your testimony.
Remember you should never give opinions about whether the victim in the particular case is telling the truth or has been sexually assaulted.
"Please assume the following facts…" (A set of facts will be given that may mirror the facts of the case.) "In your opinion, are these facts consistent or inconsistent with someone who has experienced sexual assault?"
If a hypothetical question is used during your cross-examination, listen very carefully to the question. Explain all distinctions you perceive between the hypothetical question and your set of facts before answering the question.
There has been a great deal of research over the last several years about the psychological sequelae of rape victimization and the traumatic response. Be sure that you are familiar with, and have recently reviewed, the current research in this area before testifying.
An expert witness should be cautious about testifying about a client in a criminal case. The dangers of violating confidentiality and privileged communication are high under these circumstances. If you do decide to testify about an on-going client, you must make sure that the client has been fully informed about the confidentiality and privilege issues that may arise as a result of your testimony. This issue should be discussed in detail with the prosecutor as well. It is often best to use an expert who has no connection to the case, so conflicts of interest can be avoided.
Another difficult area that arises in sexual assault cases is the confidentiality of the victim's therapist's records. Defense attorneys often try to get access to the victim's records. Victims' therapy records may have information, unrelated to their sexual assault, which they do not want disclosed. If you are associated with a hospital or mental health center, your Risk Management Department may get involved with any request for the facility's records. Each state's law varies on this issue, so you need to be familiar with your state's privilege and confidentiality laws. It is important that you do what you can to protect the victim's privacy and the confidentiality of her therapy records. Make sure you discuss these issues with the prosecutor, if the apply in your case.
Because statistics can be so persuasive and they are commonly attacked on cross-examination, it is important to use accurate, reliable figures in your testimony. Be prepared to discuss where you obtained the statistics and how the results were determined. Cite statistics from the original source (professional journal, original research, government publication, etc.), NOT from a magazine or newspaper article.
Find out from the prosecutor where you should park and exactly where you should go when you arrive at the courthouse. Most courthouses have numerous courtrooms and you need to be sure you know where to go. Get clear and specific directions from the courthouse door to the courtroom. Find out what you should do upon arrival (wait outside the courtroom or come inside and sit down).
It is important that you understand that trials are often postponed and schedules are often delayed. You can ask the prosecutor to provide you with advance warning of any delays and accommodate your schedule, but that that is not always possible. You need to understand that the judge, not the attorneys, controls the court calendar. Witnesses often take longer than anticipated, cross-examination may take longer than expected and many other issues arise that affect a trial schedule. Keep in touch with the prosecutor and be patient. Delays are inevitable and unavoidable.
1. This checklist was adapted from The Practical Use of Expert Witnesses in Cases Involving Violence Against Women, by Anne Munch, Esq., presented at the Fourth Annual STOP Violence Against Women Conference, Baton Rouge, Louisiana, April 13, 2000.
(December, 2000)
This material contains a collection of case annotations related to the admissibility of expert witness testimony and issues of confidentiality and privilege. The annotations deal primarily with cases in which the victim was an adult, rather than a child. Since issues related to child victims are so different, the only annotations included in which the victim was a child are ones where the holding would also apply to adult victims. These annotations come from selected states throughout the country where NJEP has presented its Understanding Sexual Violence curriculum to judges. The document also contains annotations of more recent cases that address these issues.
The Attorney’s Caveat: This is a rapidly changing area of the law and each jurisdiction is different. You need to carefully review your own state’s statutes and case law before you attempt to introduce expert testimony in a sexual assault case.
Lane v. Commonwealth, Record No. 2161-98-2 (Va. App. Sept. 28, 1999).
Facts: The defendant was convicted of rape and forcible sodomy of his stepdaughter. At trial, the detective who investigated the case testified as an expert on recantation in child abuse cases. In addition, the court allowed the victim’s mental health counselor to testify about Posttraumatic Stress Disorder. The defendant appealed his conviction, objecting to the testimony of these two witnesses.
Holding: The trial court properly admitted the testimony of both witnesses. First, the detective had investigated three hundred sexual assault cases and had undergone specialized training in the area of sexual abuse and children’s recantation of abuse allegations. Therefore, the trial court did not abuse its discretion in permitting the detective to give an expert opinion on the likelihood of recantation. Second, the counselor’s testimony about sexual assault triggering PTSD was proper because she did not opine that the victim had been abused. Rather, the witness testified that the victim’s PTSD diagnosis was consistent with sexual abuse. Accordingly, the defendant’s conviction was affirmed.
People v. Thompson, 699 N.Y.S.2d 770, 267 A.D.2d 602 (N.Y. App. Div. 1999).
Facts: The defendant was convicted of rape and sexual abuse of his sixteen-year-old niece. The victim alleged that the defendant raped her in 1995, and sexually abused her again in 1997. The victim did not report the first rape until the time of the second incident. At trial, the defendant objected to the State’s expert testimony regarding rape trauma syndrome because the expert did not examine or interview the victim. The defendant also objected to the conviction as a whole, claiming that the weight of the evidence did not support a conviction because the victim delayed reporting the first rape for eighteen months.
Holding: The testimony of the expert was admissible even though he did not interview the victim, because the testimony was limited in scope to explaining behavior that might appear unusual to a lay juror not ordinarily familiar with the patterns of response exhibited by rape victims. Furthermore, the State’s expert testified that it was not unusual for a rape victim to postpone the reporting of an incident and that familiarity with the attacker may contribute to a victim’s reluctance to disclose. Accordingly, the defendant’s conviction was affirmed.
State v. Allewalt, 517 A.2d 741 (Md. 1986).
Facts: The defendant was convicted of rape in the second degree. The defendant was the boyfriend of the victim’s daughter and was living in the victim’s home at the time of the assault. After consuming fifteen to twenty beers one evening, the defendant returned home, forced his way into the victim’s bedroom, carried her down the hall to another bedroom, threw her onto a bed and raped her. The defendant claimed that the sex was consensual. The State called an expert forensic psychiatrist, who had examined the victim, to testify about Posttraumatic Stress Disorder. The doctor testified that PTSD is recognized as the emotional reaction to a traumatic event, that he examined the victim at the State’s request, and that he believed that the victim suffered from PTSD. When asked by the State, "Based on what she told you, what would be the trauma that forms the basis for your opinion?" The doctor replied, "The only trauma that she claims that she went through at that time was being raped." Id., at 755. The defendant appealed his conviction, contesting the admission of the doctor’s testimony. The Court of Special Appeals, Maryland’s intermediate appellate court, found that PTSD testimony was inadmissible because its prejudicial impact in a rape case outweighs its probative value, and overturned the defendant’s conviction.
Holding: The Court of Special Appeals imposed an unreasonably high standard for the admissibility of medical opinion evidence. There is no dispute that psychiatrists and psychologists recognize PTSD as an anxiety disorder. One of the diagnostic criteria for PTSD is the "existence of a recognizable stressor that would evoke significant symptoms of distress in almost everyone." Id., at 754. The psychiatrist was well within his special training and experience when he diagnosed the victim with PTSD, and when he opined that the "recognizable stressor" was the rape described to him by the victim. The Court of Special Appeals’ finding was based on the assumption that the jury would be confused and might conclude that, because rape was one of the possible causes of PTSD, it had in fact caused the disorder in the victim. The doctor never used the term "rape trauma syndrome," and he was careful to point out that severe traumas, other than rape, can produce the disorder that warranted the diagnosis of PTSD. In addition, the doctor did not express an opinion about the victim’s credibility.
State v. Brodniak, 221 Mont. 212, 718 P.2d 322 (1986).
Facts: The defendant was convicted of sexual intercourse without consent for raping a woman he met at a bar. At trial, he claimed that they engaged in consensual sexual acts, but that he did become violent at the end of the encounter. At the State’s request, a psychologist examined the complainant to determine her psychological condition and to recommend treatment. The psychologist concluded that the complainant’s "condition was consistent with all of the symptoms of the Posttraumatic Stress Disorder known as rape trauma syndrome." Id., 718 P.2d at 326. The psychologist also testified about malingering and the low probability of false reports. The defendant claimed that the psychologist’s testimony should have been excluded, arguing, inter alia, that the testimony was an improper comment on the victim’s credibility.
Holding: Rape trauma syndrome is a proper subject for expert testimony in a sexual intercourse without consent case. Where all that is disputed is the consent element, the evidence is relevant to the question of whether there was consent to engage in a sexual act which the parties agree occurred. In cases from other jurisdictions in which RTS evidence was excluded, the experts all testified that the victim suffered from RTS and, therefore, concluded expressly or implicitly, that the victim had been raped. A qualified expert may explain RTS to the jury and express an opinion that the victim suffers from the syndrome, but may not testify otherwise as to the witness’ credibility or believability. In this case, the expert’s testimony about malingering and the statistical percentage of false accusations was improper comment on the complainant’s credibility and should not have been admitted. In light of the overwhelming evidence of the defendant’s guilt, however, the error was harmless.
State v. Doporto, 935 P.2d 484 (Utah 1997).
Facts: The defendant was convicted of sodomy on a child. An expert witness testified about the nature of behavior frequently exhibited by child sexual abuse victims. He explained that children typically do not report abuse until several years later. He also briefly related some common behavioral changes in children who are sexually abused, particularly guilt, isolation, and poor performance and disruptive behavior in school.
Holding: An expert witness may testify that a "victim’s behavior was consistent with symptoms that might be exhibited by one who has been sexually abused," as long as the expert does not testify about any kind of sexual abuse profile or that the victim's symptoms demonstrated that the victim had been sexually abused. Id., at 495. The expert’s testimony fell within permissible bounds.
State v. Kinney, No. 99-122 (Vt. Oct. 13, 2000) (case still subject to motions for reargument and formal revision).
Facts: The defendant was convicted of kidnapping and rape. At trial, he objected to the testimony of an expert who testified about rape trauma syndrome and the typical behaviors of adult rape victims. The expert also testified about the rarity of false reporting of rape. The defendant objected to the testimony about false reporting because the expert had not examined the victim. In addition, the defendant objected to the admission of expert testimony about rape trauma syndrome.
Holding: The trial court properly admitted the expert’s testimony. Expert evidence of rape trauma syndrome and the associated typical behavior of adult rape victims is admissible to assist the jury in evaluating the evidence and, frequently, to respond to the defendant’s claim that the victim’s behavior after the alleged rape was inconsistent with the victim’s claim that she was raped. Rape trauma syndrome is professionally recognized as a type of Posttraumatic Stress Disorder, and the behavioral characteristics of rape victims have been the subject of numerous professional studies. Here, the expert never interviewed the victim and offered no opinion about whether the victim suffered from rape trauma syndrome or exhibited any of the behavior of a rape victim. However, the expert’s testimony about the rate of false reporting of rape was improperly admitted because the jury could infer from her testimony that scientific studies have shown that almost no woman falsely claims to have been raped and convict the defendant on that basis. However, the failure to exclude this testimony did not result in reversible error, and the defendant’s conviction was affirmed.
State v. Liddell, 211 Mont, 180, 685 P.2d 918 (1984).
Facts: The defendant claimed that he had a prior sexual relationship with the complainant and that she consented to sexual intercourse on the night in question. She testified that she invited him to her home for the express purpose of telling him to leave her alone and that she never had consensual sex with him. A psychiatric nurse testified at trial about the victim’s severe headaches and her Posttraumatic Stress Disorder.
Holding: Psychiatric testimony is admissible to aid a jury in determining whether there was consent to engage in a sexual act which the parties agreed did occur. It remains up to the jury to determine whether the evidence is credible.
State v. Mason, 283 Mont. 149, 941 P.2d 437 (1997).
Facts: The complainant, who was nineteen years old, reported that her granduncle sexually abused her when she was thirteen. At trial, her school counselor and therapist testified about their counseling relationships with her and that they observed certain behavioral characteristics, such as depression, guilt and anger, which are symptomatic of sexual abuse victims.
Holding: The counselors did not testify regarding whether the complainant was telling the truth or give their opinions as to her credibility. The testimony did not corroborate her testimony. Instead, it set forth the counselors’ personal observations regarding her behavior, which was relevant to the issue of whether the offenses charged actually occurred.
United States v. Halford, 50 M.J. 402 (C.A.A.F. 1999).
Facts: The defendant raped the victim after they attended a party and drank together. Later in the evening, another man who had been romantically pursuing the victim discovered that she had sexual intercourse with the defendant, and he responded by physically assaulting her. Then, the other man and two of his friends raped the victim again. The victim did not report any of the rapes until a week later when she was hospitalized because of a drug overdose. During his opening statement, the defense attorney argued that the victim was not believable because of inconsistencies in her statement, retractions, lack of physical evidence and her refusal to talk about the crime. At trial, the government offered evidence from a psychologist who treated the victim. The psychologist testified about behavioral characteristics of rape victims in order to counter the defendant’s attacks on the victim’s credibility.
Holding: The expert’s testimony was properly admitted to allow the government to explain the victim’s behavior when the defendant attacked it. In addition, the doctor did not express an opinion about the victim’s credibility or whether a rape had occurred. Once the defense indicated that its theory was to attack the victim’s credibility, it was appropriate for the prosecution to put the victim’s inconsistencies and retractions and her refusal to cooperate in context. Under this theory, the probative value of the doctor’s testimony outweighed any prejudice to the defendant. Accordingly, the defendant’s conviction was affirmed.
Lane v. Commonwealth, Record No. 2161-98-2 (Va. App. Sept. 28, 1999).
Facts: The defendant was convicted of rape and forcible sodomy of his stepdaughter. At trial, the detective who investigated the case testified as an expert on recantation in child abuse cases. In addition, the court allowed the victim’s mental health counselor to testify about Posttraumatic Stress Disorder. The defendant appealed his conviction, objecting to the testimony of these two witnesses.
Holding: The trial court properly admitted the testimony of both witnesses. First, the detective had investigated three hundred sexual assault cases and had undergone specialized training in the area of sexual abuse and children’s recantation of abuse allegations. Therefore, the trial court did not abuse its discretion in permitting the detective to give an expert opinion on the likelihood of recantation. Second, the counselor’s testimony about sexual assault triggering PTSD was proper because she did not opine that the victim had been abused. Rather, the witness testified that the victim’s PTSD diagnosis was consistent with sexual abuse. Accordingly, the defendant’s conviction was affirmed.
People v. Hampton, 746 P.2d 947 (Colo. 1987).
Facts: Non-stranger rape. The victim reported the assault 89 days after it occurred. The person in charge of the police department’s Victim Services Unit was qualified as an expert in victimology. She never examined the victim, but she testified about rape victims’ general reactions, the reasons for delayed reporting, and rape trauma syndrome.
Holding: The evidence was admissible under the C.R.E. 702 "helpfulness" standard. Given the limited scope of the testimony and the defendant’s theory of the case, which raised the issue of the victim’s delayed reporting, the testimony was permissible. The court rejected the use of the Frye test here. The case also discusses the relationship between PTSD and rape trauma syndrome.
State v. DeSantis, 155 Wis. 2d 774, 456 N.W.2d 600 (Wis. 1990).
Facts: The state called a counselor from the local rape shelter to testify, over the defendant’s objection, about the general behavior of sexual assault victims. The witness was not asked about the complainant’s behavior or to compare the complainant’s behavior to other rape victims’ behavior. The witness described the series of emotional phases sexual assault victims generally go through that may bear on a victim’s willingness to press charges.
Holding: In previous cases, we have upheld the introduction of expert testimony on the behavior of sexual assault victims to educate the jury when the complainant’s conduct is seen as inconsistent with the claim of sexual assault. Expert testimony will be permitted if it serves the "particularly useful role of disabusing the jury about widely held misconceptions about sexual assault victims." Id., 456 N.W.2d at 609. The trial court did not abuse its discretion by admitting the evidence in this case.
State v. Robinson, 146 Wis. 2d 315, 431 N.W.2d 165 (Wis. 1988).
Facts: The defendant was awaiting the start of a county jail sentence for sexually assaulting a minor when he sexually assaulted the complainant. She was pregnant at the time. The defendant and the complainant had had a consensual sexual relationship that ended a month before the assault. At trial, a worker from the rape crisis center was qualified as an expert and testified about her observations of the complainant, about the complainant’s fear of retaliation, and that it was common for rape victims to exhibit a flat affect after the assault.
Holding: The witness had six years of experience at the rape crisis center and had personally dealt with seventy to eighty victims. The court did not abuse its discretion in qualifying her as an expert. The witness was not asked to draw any inferences or offer any opinions about the complainant based on what she had observed in working with other sexual assault victims. The expert testimony in this case was helpful to the jury because the defendant attempted to capitalize on the misconception that all sexual assault victims are emotional following the assault. The testimony helped the jury understand reactions with which it perhaps was not familiar. The use of expert testimony in relating observations of the way other sexual assault victims actually behave served a particularly useful role by disabusing the jury of some widely held misconceptions about sexual assault victims.
State v. Alvarado, No. 18235-5-III (Wash. App. Oct. 3, 2000).
Facts: The defendant was convicted of first-degree rape. At trial, the emergency room nurse who first examined the victim testified that, in her opinion, the red marks found on the victim’s neck and shoulders were consistent with a sexual assault. She also indicated that the choke marks and the hold marks on the victim’s shoulders were not consistent with someone who had had consensual sex. In addition, the emergency room physician who examined the victim testified, without objection, that based on her medical assessment, the victim had been sexually assaulted. On appeal, the defendant claimed ineffective assistance of counsel and challenged the admission of the expert testimony.
Holding: The testimony of the medical experts was properly admitted. First, an opinion may be admitted if it is based solely on inferences from the physical evidence and on the expert’s experience. Here, the medical experts opinions were based solely on their experience and on their inferences from the physical evidence. Accordingly, the defendant’s conviction was affirmed.
State v. Rogers, 992 P.2d 229 (Mont. 1999).
Facts: The defendant met the victim at a bar, where they talked, had drinks and danced. The victim refused the defendant’s sexual advances throughout the evening. When she left the bar, the defendant followed her in his vehicle and forced her to stop. He then grabbed the victim’s arm and threatened to hurt her if she did not do what he wanted. The victim told the defendant, "If you’re gonna do this, do it in my truck." Id., at 230. Then the defendant got into the victim’s truck and forced her to have oral and vaginal intercourse. The victim asked the defendant to use a condom, but he declined. After the assault, the defendant and the victim spoke for a short while in her truck. Even though the victim was hesitant to report the assault, a friend later convinced her to do so, and she was taken to a hospital where she was examined by the emergency room physician. At trial, the State introduced testimony, over the objection of the defendant, of two other women who claimed to have been previously sexually assaulted by the defendant. In addition, the State introduced testimony of the emergency room physician who examined the victim. On appeal, the defendant objected to the testimony of the previous victims and the ER physician.
Holding: The State did not need to qualify the ER physician as an expert in rape trauma syndrome because of his twelve years of experience and previous exposure to rape victims. The ER physician did not specifically testify about rape trauma syndrome. Rather, the physician testified about whether the victim’s emotional state at the time of examination was consistent with that of other women he had examined who reported being raped. The physician did not testify about the victim’s credibility. He carefully limited his testimony to his observations of her, as compared with other women he had examined who reported being raped. However, the court did find in favor of the defendant on the prior bad acts testimony because there was not enough of a similarity between the three incidents for the defendant’s behavior to qualify as a common plan or scheme.
Commonwealth v. Pickford, 370 Pa. Super. 444, 536 A.2d 1348 (1987).
Facts: The complainant and the defendant had a consensual sexual relationship, which had ended three weeks prior to the rape. The trial court refused to allow expert testimony about rape trauma syndrome, but did allow lay testimony regarding the complainant’s post-rape behavior.
Holding: It is within the layperson’s ability to understand the possible and probable effect of a forcible rape upon a person. The lay testimony was admissible.
Farley v. People, 746 P.2d 956 (Colo. 1987).
Facts: A counselor from the police victim services unit testified regarding the victim’s demeanor after having interviewed the victim on the day of the assault. The counselor expressed her opinion that the victim’s reactions were typical of victims of sexual assault and that her behavior was consistent with that of a rape victim. She was not offered as an expert witness. The defendant’s objections to her opinion testimony were overruled.
Holding: The testimony did not constitute rape trauma syndrome evidence. The counselor was neither offered nor accepted as an expert. The witness offered her opinion, based upon her prior experience with rape victims, that the victim’s reactions were very consistent with being a rape victim. The testimony was permissible opinion evidence from a lay witness under C.R.E. 701.
State v. Hickmott, Case No. 98 CA 01 (Ohio App. Feb. 5, 1999).
Facts: The defendant was convicted of four counts of rape. The defendant has lived with the victim intermittently for ten years and he was the father of her four children. On appeal, the defendant argued that the trial court erred by allowing the victim to testify that she suffered from Posttraumatic Stress Disorder, without expert testimony.
Holding: The trial court properly admitted the victim’s statement because the victim’s mental condition after the incident was highly relevant and probative to the issue of whether or not she was a willing participant in the sexual activity. The fact that the victim put a label on her mental condition that may have a technical meaning did not render that testimony unfairly prejudicial. Accordingly, the defendant’s conviction was affirmed.
Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988).
Facts: The defendant posed as a police officer and sexually assaulted the complainant. She could not identify the defendant two weeks after the assault, but did identify him four years later. Ann Burgess testified, as an expert, about rape trauma syndrome in general and that the complainant had rape trauma syndrome. Dr. Burgess also related her opinion about how RTS bore upon the identification process.
Holding: Expert testimony on rape trauma syndrome is inadmissible to explain that such trauma could prevent a victim from making a timely identification of her assailant.
Nichols v. State, 177 Ga. App. 689, 340 S.E.2d 654 (1986).
Facts: The doctor who examined the victim at the hospital testified as to her injuries and, when asked whether force was used, replied that, in his opinion, "this patient...[had] been raped." Id., 340 S.E.2d at 656. The defendant had sought to prevent the doctor from expressing his opinion that the victim had been raped.
Holding: The correct test is whether the question is a proper one for opinion evidence, and not whether it goes to the ultimate issue. Although it is permissible for the expert to give his opinion as to facts in issue or even the ultimate issue where the question is a proper one for opinion evidence, the expert is not permitted to state a legal conclusion as to the ultimate matter at issue. The conviction was reversed.
Smith v. State, 259 Ga. 135, 377 S.E.2d 158 (1989).
Facts: Following testimony by several defense witnesses that they would not believe the child victim under oath, the trial court permitted the state’s child-abuse expert to testify that, in her opinion, the victim told the expert the truth regarding the allegations against the defendant.
Holding: The rule is that an expert may not testify as to his or her opinion as to the existence vel non of a fact unless the inference to be drawn from facts in evidence is beyond the jurors’ ken. Here, the victim’s truthfulness or credibility was not beyond the jurors’ ken. Therefore, the trial court erred in permitting the testimony.
Commonwealth v. Wilson, 529 Pa. 268, 602 A.2d 1290 (1992), cert. denied, 504 U.S. 977 (1992).
Facts: The defendant sought to subpoena records maintained by the rape crisis center that treated the complainant, claiming that the confidentiality statute only prohibited the subpoena of a sexual assault counselor as a witness.
Holding: The statutory privilege must extend to the subpoena of records and other documents developed throughout the counseling relationship. Any other interpretation of the statute would render the entire privilege meaningless. The statutory privilege is constitutional.
State v. J.G., 261 N.J. Super. 409, 619 A.2d 232 (1993).
Facts: The defendant and his friend sexually abused the defendant’s four children, aged one to eight, while his blind wife was at a 20-day training course. After the children disclosed what happened, the wife and three of the children received counseling at a private mental health center. The defendant issued a subpoena for the files and the center, unaware of the privilege, released them to the defendant’s attorney. The trial court quashed the subpoena, ordered the return of the privileged information and directed defense counsel not to reveal the contents of the file.
Holding: The victim-counselor privilege was enacted by the legislature in 1987. The protection afforded by the privilege is broad enough to encompass both direct and indirect victims of crimes of violence. Therefore, it protected the mother’s counseling records, even though she was not a victim, as well as the children’s records. We are reluctant to require an in camera inspection where, as here, the statute grants an absolute privilege. The center’s inadvertent release of the confidential files did not constitute a waiver of the privilege.
State v. Maniero, 189 Wis. 2d 80, 525 N.W.2d 304 (Wis. App. 1994), review denied, 531 N.W.2d 326 (Wis. 1995).
Facts: The defendant was charged with improperly touching his fifteen-year-old babysitter on numerous occasions over a five-month period. After making the allegations, the complainant was admitted to an in-patient psychiatric unit because she was emotionally distraught and suicidal. The defendant sought access to the complainant’s psychiatric records. The trial court did an in camera review of the records and refused to disclose them to the defendant.
Holding: The only cause identified by the complainant’s treating professionals for her depression and suicidal ideation was the alleged sexual assault. That was the entire focus of her stay and treatment at the psychiatric unit. State v. Maday, 179 Wis. 2d 346, 507 N.W.2d 365 (Wis. App. 1993), review dismissed, 510 N.W.2d 139 (Wis. 1993), is not controlling. In Maday, the state was responsible for generating the psychological evidence at issue, whereas here the complainant sought treatment independent of the state. More importantly, the state here did not introduce any expert testimony regarding the complainant’s psychiatric condition after making the allegations, nor did it rely on any of her psychiatric records. The court’s review of the records was sufficient to protect the defendant’s due process rights while protecting the complainant’s privacy rights.
Commonwealth v. Neumyer, 432 Mass. 23, 731 N.E.2d 1053 (2000).
Facts: At the probable cause hearing, the victim testified that the defendant raped and indecently assaulted her early one morning in the backseat of her car. She also testified that she only remembered portions of the incident due to her intoxicated condition. Later that day, she asked her friend how the friend would define "rape." The victim then called the rape crisis center, with her friend present, and told the counselor that she thought she had been raped, but didn’t know what rape was. The counselor suggested that she go to the hospital. The victim went to the hospital the next day and called the police from there. On cross-examination at the preliminary hearing, the victim responded that she and the counselor discussed how to define rape. The defendant filed a motion asking for an in camera review of the rape crisis center records. The rape crisis center refused to produce the records, asserting that they were privileged under the Massachusetts statute that protects disclosure of a victim’s sessions with a sexual assault counselor. The court held the rape crisis center in contempt and imposed a fine of $100.00 per day for each day that the center did not produce the records. The defendant then pled guilty. The rape crisis center appealed the trial court’s order finding the center in contempt.
Holding: The case was not moot since the contempt order still stood after the defendant pled guilty. That portion of the records that set forth the time, date, and fact of a communication between the victim and the rape crisis counselor was not protected by the sexual assault counselor privilege. The defendant’s proffer was sufficient to establish the necessary relevancy and materiality to warrant in camera review of the records. The key point in the affidavit was that the victim only formed the opinion that she was raped after speaking with the counselor. The judge accurately considered the calls the "turning point" and concluded that a finder of fact could be influenced by the content of these calls "which caused the complainant to become certain of her situation." Id., 731 N.E.2d at 1060. In addition, the exact content of the calls was material that might not be obtained elsewhere. The proffer was clearly sufficient to support the trial court’s determination that there was a good faith, specific, and reasonable basis for believing that the records could contain exculpatory evidence that would be relevant and material to the defense, and that this material could not be obtained from other sources. We agree that the legislature intended the widest scope possible for this privilege, but the privilege must be limited by the constitutional rights of the defendant. (But see, the strongly worded dissent which asserts that the decision will result in a virtually automatic in camera inspection for an entire class of privileged material, despite the legislature’s intent to create a privilege with no exceptions.)
State v. Trammell, 231 Neb. 137, 435 N.W.2d 197 (1989).
Facts: The defendant was convicted of first-degree sexual assault and of being a habitual criminal. The victim was a forty-year-old woman who "had a nervous breakdown when she was [thirteen] years of age and was institutionalized on three different occasions." Id. at 139, 435 N.W.2d at 199. Her last admission was when she was twenty-seven years old. She testified that she was taking Prolixin on an intermittent basis as a sedative and to "calm her nerves." The emergency room physician testified that Prolixin was usually prescribed to control psychosis. He also stated that psychotic individuals not on medication can display psychotic behavior and appear normal shortly thereafter, and that individuals who took the medication for several years and then stopped taking it could return to their psychotic condition. The state sought to prevent the defendant from adducing evidence regarding the victim’s past physical or mental illnesses or her previous hospitalizations. She refused to waive her physician-patient privilege with respect to her prior hospitalizations or her current treatment, other than that necessitated by the assault. The defendant claimed that the trial court erred in not allowing him to discover and present evidence of the victim’s past and present psychiatric condition.
Holding: The records of the victim’s hospitalization twelve or thirteen years ago and her treatment at that time deal with matters too remote to have any relevance in this case and, consequently, there was no error in refusing to permit the defendant to explore those issues. Yet, the victim’s current treatment records are relevant. The victim was a witness, not a party, and therefore has not placed her mental condition in issue. The fact, however, that the privilege protects disclosure of confidential communications between the victim and those who are treating her for her mental condition does not leave the defendant without a remedy. In such situations, if the witness refuses to waive the privilege, the witness cannot testify because the defendant is prevented from full cross-examination. The trial court committed reversible error "in permitting the victim to testify without permitting the defendant to discover and produce evidence concerning the current treatment of the victim’s mental condition." Id. at 143, 435 N.W.2d at 201.
Commonwealth v. Davis, 437 Pa. Super. 471, 650 A.2d 452 (1994), aff’d, 674 A.2d 214 (Pa. 1996).
Facts: The defendant tried to introduce evidence from the child complainant’s family therapy sessions. The victim consented, but the other family members did not.
Holding: The privilege was waived when the complainant and her family allowed the prosecutor to have access to the records.
State v. Brodniak, 221 Mont. 212, 718 P.2d 322 (1986).
Facts: The defendant was convicted of sexual intercourse without consent for raping a woman he met at a bar. At trial, he claimed that they engaged in consensual sexual acts, but that he did become violent at the end of the encounter. At the State’s request, a psychologist examined the complainant to determine her psychological condition and to recommend treatment. The psychologist concluded that the complainant’s "condition was consistent with all of the symptoms of the Posttraumatic Stress Disorder known as rape trauma syndrome." Id., 718 P.2d at 326. The psychologist also testified about malingering and the low probability of false reports. The defendant claimed that the psychologist’s testimony should have been excluded, arguing, inter alia, that the testimony was an improper comment on the victim’s credibility.
Holding: Rape trauma syndrome is a proper subject for expert testimony in a sexual intercourse without consent case. Where all that is disputed is the consent element, the evidence is relevant to the question of whether there was consent to engage in a sexual act which the parties agree occurred. In cases from other jurisdictions in which RTS evidence was excluded, the experts all testified that the victim suffered from RTS and, therefore, concluded expressly or implicitly, that the victim had been raped. A qualified expert may explain RTS to the jury and express an opinion that the victim suffers from the syndrome, but may not testify otherwise as to the witness’ credibility or believability. In this case, the expert’s testimony about malingering and the statistical percentage of false accusations was improper comment on the complainant’s credibility and should not have been admitted. In light of the overwhelming evidence of the defendant’s guilt, however, the error was harmless.
State v. Kinney, No. 99-122 (Vt. Oct. 13, 2000) (case still subject to motions for reargument and formal revision).
Facts: The defendant was convicted of kidnapping and rape. At trial, he objected to the testimony of an expert who testified about rape trauma syndrome and the typical behaviors of adult rape victims. The expert also testified about the rarity of false reporting of rape. The defendant objected to the testimony about false reporting because the expert had not examined the victim. In addition, the defendant objected to the admission of expert testimony about rape trauma syndrome.
Holding: The trial court properly admitted the expert’s testimony. Expert evidence of rape trauma syndrome and the associated typical behavior of adult rape victims is admissible to assist the jury in evaluating the evidence and, frequently, to respond to the defendant’s claim that the victim’s behavior after the alleged rape was inconsistent with the victim’s claim that she was raped. Rape trauma syndrome is professionally recognized as a type of Posttraumatic Stress Disorder, and the behavioral characteristics of rape victims had been the subject of numerous professional studies. Here, the expert never interviewed the victim and offered no opinion whether the victim suffered from rape trauma syndrome or exhibited any of the behavior of a rape victim. However, the expert’s testimony about the rate of false reporting of rape was improperly admitted because the jury could infer from her testimony that scientific studies have shown that almost no woman falsely claims to have been raped and convict the defendant on that basis. However, the failure to exclude this testimony did not result in reversible error, and the defendant’s conviction was affirmed.
Harwood v. State, 195 Ga. App. 465, 394 S.E.2d 109 (1990), cert. denied, (Ga. 1990).
Facts: The defendant was charged with sexually molesting his five-year-old daughter. He admitted molesting his older daughter for ten years, from the time she was four until she experienced a false pregnancy at fourteen. He claimed that he had rehabilitated himself in the years before the birth of his younger daughter. At trial, the state called a psychologist and asked his opinion, based on hypothetical questions. The psychologist testified that given the hypothetical man’s history, in the absence of treatment, the mere passage of time meant the incestuous behavior was more likely to reoccur when the opportunity presented itself. He also testified that no one "is simply going to learn how through the passage of time to control these types of actions." Id., 394 S.E.2d at 110.
Holding: There is no merit to the defendant’s argument that the trial court erred in admitting the evidence. "[T]he recurrence of compulsive behaviors and the likelihood of a person with compulsive behavior rehabilitating himself without treatment are subject matters not within the scope of the ordinary laymen’s knowledge and experience, and thus evidence regarding these matters was properly admissible under OCGA § 24-9-67." Id.
State v. Friedrich, 135 Wis. 2d 1, 398 N.W.2d 763 (Wis. 1987).
Facts: The defendant was convicted of second-degree sexual assault of his fourteen-year-old niece by marriage. On appeal, he claimed that the trial court abused its discretion in refusing to allow a psychologist to testify that the defendant did not fit the "psychological profile" of known incest offenders. His expert administered tests, interviewed the defendant and compared the defendant’s psychological profile with that of known "incestuous" sex offenders. The expert concluded that the defendant’s psychological profile was "diametrically opposed or different from the profile established for incestuous fathers and sexual offenders." Id., 398 N.W.2d at 767.
Holding: The trial court found that the proffered testimony went to the matter of assessing witness credibility. The trial court had a reasonable basis for excluding the expert testimony. Whether or not the proffered testimony would be admissible as evidence of a character trait of the accused, under Wis. Stat. § 904.04(1)(a), we need not decide because the attorney did not raise the issue.
State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Wis. App. 1998).
Facts: The defendant was convicted of having sexual contact with his stepdaughter’s five-year-old son. Prior to trial the defendant asked permission to introduce evidence of his character through expert testimony of a psychologist who had examined him. The psychologist would have testified that the defendant did not show any evidence of any diagnosable sexual disorder and, absent a diagnosable disorder, it was unlikely that such a person would molest a child. The trial court ruled that the expert could only testify if he could say that if the defendant sexually assaulted this child, he would have a diagnosable disorder. The expert could not, so the trial court excluded the testimony. The trial court did, however, allow a psychologist to testify as a lay witness that the psychologist did not believe that the defendant had "the characteristics that sexual abusers, pedophiles, have." Id., 589 N.W.2d at 682.
Holding: The admissibility of expert opinion testimony as to a defendant’s character for sexual deviance is an open question in Wisconsin. The expert’s testimony would have assisted the jury in determining the likelihood that the defendant committed the charged offense. Moreover, the evidence code expressly recognizes a defendant’s right to present evidence of a pertinent character trait. Wis. Stat. § 904.04(1)(a). This evidence may be presented through testimony as to reputation or by testimony in the form of an opinion.
Prior case law holds that arguments or evidence about character profile, which seek to explain conduct or the absence of it, must be supported by competent underlying expert testimony. Character evidence about the accused may only be offered by the accused. The state may only offer countervailing evidence by way of rebuttal. The conviction was reversed since "there exists a reasonable probability that the exclusion of [the expert’s] testimony contributed to [the defendant’s] conviction." Id., 589 N.W.2d at 683.
State v. Cavallo, 88 N.J. 508, 443 A.2d 1020 (1982).
Facts: The defendants were convicted of abducting a woman from a bar and raping her. They claimed that she went with them willingly to engage in consensual sexual activity. At trial, one of the defendants sought to offer expert testimony that he did not have the psychological traits of a rapist. The trial court refused to permit the testimony.
Holding: For the purposes of determining relevancy, we treat the proffered testimony as reliable. Assuming the reliability of the expert’s conclusions, his testimony makes it more likely than otherwise that the defendant did not rape the victim. Consequently, the proffered testimony was relevant.
Having concluded that it was relevant, we must now determine whether the proffered testimony satisfied the special limitations placed on expert testimony. Since there were no questions raised as to the psychiatrist’s general qualifications, the relevant inquiry is whether the testimony satisfied New Jersey’s "standard of acceptability for scientific evidence." Two assumptions underlie the proposed testimony: (1) that there are particular mental characteristics peculiar to rapists; and (2) that psychiatrists, by examining an individual, can determine whether or not he possesses those characteristics. The evidence was excluded based on a determination that it lacked the indicia of reliability and, therefore, was likely to confuse and divert the jury, rather than inform it. The defendants did not meet their burden of showing that the scientific community generally accepts the existence of identifiable character traits common to rapists. They also did not demonstrate that psychiatrists possess any special ability to discern whether an individual is likely to be a rapist. Until the scientific reliability of this type of evidence is established, it is not admissible.
State v. Miller, 709 P.2d 350 (Utah 1985).
Facts: The defendant was convicted of sexually abusing a child. He claimed that the trial court erred in excluding his proffered expert psychiatric testimony. The expert proposed to describe the typical psychological profile of individuals who sexually abuse children. The expert also planned to testify about the tendency of prepubescent girls, and to a lesser extent, prepubescent boys, to interpret certain situations as sexually threatening to them when the circumstances are actually completely innocent. The defendant also sought to introduce character evidence regarding his past moral conduct toward children.
Holding: The expert testimony about the characteristics of sex offenders, in conjunction with the proffered testimony from the defendant, would have been relevant to a pertinent train of his character, namely, the incongruity of his personality traits with those of individuals capable of and likely to commit sexual offenses against children. Notwithstanding the relevance, however, the trial court was within its discretion in excluding the evidence under the provisions of Utah R. Evid. 403. The trial court’s decision to exclude the second portion of the expert’s testimony, which related to the character or credibility of the accused, was not manifestly erroneous.
State v. Finlayson, 956 P.2d 283 (Utah App. 1998), aff’d, 994 P.2d 1243 (Utah 2000).
Facts: The defendant was convicted of aggravated kidnapping, forcible sodomy, and rape. The victim was a Japanese student who had only been in the United States for approximately ten months and spoke little English. The defendant, who was fluent in Japanese, asked her to tutor him at his apartment. He asked for permission to kiss her. When she refused, he picked her up, carried her to the bedroom and sexually assaulted her. After she attempted to escape, he handcuffed her. He admitted at trial she said "no" and that he used the handcuffs, but claimed he used them only as a "joke." At trial, he sought to introduce expert testimony about traditional Japanese culture, to support his theory that the victim lied about the rape to "save face" because he did not want to have a serious relationship with her.
Holding: The defendant sought to introduce evidence and argue that the victim would act in conformity with traditional Japanese values simply because she was Japanese. The only possible relevance would be to attack her credibility. For this kind of evidence to be admissible, the defendant was required to lay a sufficient relevancy foundation. Here, he would have to show that she was aware of these "Japanese values," and that she was likely to act in conformity with them. Absent a proper foundation, the trial court was correct in refusing to permit the testimony.
The Resource Book materials relevant to this section are listed below:
Presented by Prosecutor Presentors
Directions: Take fifteen minutes to jot down your responses to the questions below and discuss your responses with your tablemates. Be prepared to oppose the defense attorney’s motion. After the discussion, a reporter from each table will report on these responses to the full group. The reporter will be the participant whose last name is closest to the letter B, who was not a reporter for the earlier exercises. You are to assume the following facts for the purposes of this exercise only. Allow 15 minutes for the report back.
During trial preparation you discover that the defense attorney may attempt to introduce the following:
1. How do you handle these possible defense tactics?
Defense Counsel has moved to compel the State to turn over Ms. Brown’s sweater and skirt.
2. What is your response to the motion?
3.Are you obliged to obtain these items from Ms. Brown?
Directions: Participants are divided in half. Half the room is assigned to respond to question 1 and the other half is assigned to question 2.
Take fifteen minutes to discuss your responses to the assigned question below with your tablemates. After the discussion, a reporter from each table will report on these responses to the full group. The reporter will be the participant whose last name is closest to the letter F, who was not a reporter for an earlier exercise. You are to assume the following facts for the purposes of this exercise only. Allow 15 minutes for the report back.
Rather than Amanda Brown offering any verbal or physical resistance, she simply sat on the bed and did not say anything to the defendant. She just stared into space, her body stiffened and she cried during the incident.
During the interview she describes the defendant’s demeanor as very angry.
Ms. Brown describes the event as if she watched it from a corner of the room. She says she felt as if it was happening to someone else, but she also felt that her life was in danger.
1. Resistance is not an element of the crime, but jurors often equate lack of resistance to consent. Using what you have learned in previous units of this curriculum, how would you use Amanda Brown’s "frozen fright" reaction in your case-in-chief?
2. You want an expert witness to testify that Amanda Brown’s reaction is consistent with frozen fright or dissociation which are frequently seen responses in victims of sexual assault. Under your state law, what arguments would you make to convince the judge to admit this testimony?
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