Davenport v. State

PARKS, Presiding Judge,

dissenting:

The threshold test for determining the admissibility of testimony by a qualified expert is whether the scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue. 12 O.S.1981, § 2702. However, the determination does not end there. Before scientific evidence is admissible, there must be proof that the reliability of the tests used has gained general acceptance and recognition in the concerned scientific community. Rawlings v. State, 740 P.2d 153, 161 (Okl.Cr.1987); Smith v. State, 656 P.2d 277, 281 (Okl.Cr.1982).

The expert testimony in the case at bar created the type of situation this Court warned against in Driskell v. State, 659 P.2d 343 (Okl.Cr.1983):

We acknowledge, however, that not all scientific evidence should be admitted in *661a criminal trial. Scientific evidence “must be sufficiently established to have gained general acceptance in a particular field ...” Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923). Expert opinion without a generally accepted scientific basis may be given undue weight by the jury, thereby denying the defendant a fair trial.

Driskell, 659 P.2d at 356.

There must be a proper foundation laid for all evidence which is admitted at trial. The proponent of such evidence has the burden of showing the underlying scientific basis and reliability of an expert’s testimony. Marshall v. State, 620 P.2d 443, 445 (Okl.Cr.1980). With the exception of the self-serving statement introduced by Mr. Ernst indicating that the so called syndrome is generally recognized in the scientific community (Tr. 313), the record is devoid of any data that the trial judge could have relied upon to reach an informed conclusion. Based on this record, the prosecution blatantly failed to shoulder its burden of proving that this “syndrome” is generally accepted in the scientific community.

Several convictions for sex crimes against children have been reversed by the Supreme Court of Kentucky because the prosecution failed to establish that the child sexual abuse accommodation syndrome (CSAAS) is a generally accepted medical concept. See Mitchell v. Commonwealth, 777 S.W.2d 930 (Ky.1989); Hester v. Commonwealth, 734 S.W.2d 457 (Ky.1987); Lantrip v. Commonwealth, 713 S.W.2d 816 (Ky.1986); Bussey v. Commonwealth, 697 S.W.2d 139 (Ky.1985). Several California cases have held that the introduction of evidence concerning CSAAS was error for similar reasons. See Seering v. Dept. of Social Services, 194 Cal.App.3d 298, 239 Cal.Rptr. 422 (1987); In re Sara M., 194 Cal.App.3d 585, 239 Cal.Rptr. 605 (1987).

I believe that it would be a grave mistake for this Court to give credence to the CSAAS syndrome without first determining that the syndrome is reliable and worthy of our trust. Based upon this record, I would find that the trial court abused its discretion in allowing the testimony relating to CSAAS.

Furthermore, the record reveals that the prosecutor was permitted to distribute copies of the victim’s statement and appellant’s confession (State’s Exhibits 3 and 4, respectively) to the jury. Using these copies, the jurors were permitted to follow along as the tape recorded statements were introduced. Defense counsel strenuously objected to this procedure on the grounds that the evidence was cumulative. I agree. Although the victim’s statements to the police and appellant’s confession were clearly relevant, the manner in which the evidence was presented was substantially outweighed by the danger of needless presentation of cumulative evidence. 12 O.S. 1981, § 2403.

For the foregoing reasons, I would reverse and remand this cause for a new trial.