State v. Schimpf

DAUGHTREY, Judge,

dissenting.

In reviewing the admissibility of expert psychological testimony in a case involving child sex abuse, this court must consider some of the most perplexing questions facing the criminal justice system today. We also address an issue about which there is little uniformity of opinion by the courts around the country.1

Although analysis of the problem escalates rapidly into a state of juridicial complexity, it begins on rather mundane territory with two well-established principles: first, that a trial court has broad discretion to admit or exclude expert testimony and, second, that the decision to allow such evi*197dence cannot be disturbed on appeal unless there is a clear showing that the trial court has abused its discretion. State v. Rhoden, 739 S.W.2d 6, 13 (Tenn.Crim.App. 1987). The trial court’s discretion is not absolute, of course, and cannot be exercised as a matter of whim or caprice. Instead, the admissibility of expert testimony must be determined under an equally well-known standard — whether the evidence “will assist the trier of fact to understand the evidence or to determine a fact in is-sue_” Federal Rule of Evidence 702. See also proposed Tennessee Rule of Evidence 702 (“substantially assist”); see also City of Columbia v. C.F.W. Constr. Co., 557 S.W.2d 734, 742 (Tenn.1977).

Keeping these principles in mind — that the trial court has broad discretion to admit expert testimony based upon the facts presented in the case and that the court must determine whether, under the facts presented, the proffered testimony will assist the jury — I reach a different conclusion on the admissibility of the expert testimony in this case from that of my colleagues. After much analysis, ostensibly under State v. Williams, 657 S.W.2d 405 (Tenn. 1983), a case involving the admissibility of a laboratory expert’s testimony regarding hair comparison, the majority here has determined finally that the evidence in question was erroneously admitted because its prejudicial effect outweighed its probative value, even though the majority concedes that the expert’s testimony “was of immeasurable probative value.” I agree with this' characterization of the usefulness of Dr. Brietstein’s testimony. Because of its high degree of usefulness to the jury, and because it did not involve matters which some courts have found to be inherently unreliable, I conclude that the trial judge did not abuse his discretion in permitting Dr. Breit-stein to testify.

In deciding whether the testimony in question meets the standard of proposed Tennessee Rule of Evidence 702, i.e., whether it will substantially assist the jury in determining a question of fact, it is first necessary to identify the “question of fact” involved here. In the context of this case, that issue was whether or not certain incidents of sexual molestation had actually occurred.2 It was the state’s theory that they had taken place and the defendant’s contrary theory that they had not. Because there was no physical evidence available; because there had been a lapse of time between the events and the child’s first report; and because there was only one witness, a child who heard but did not see some kind of contact between the victim and the defendant, the case resolved itself into a classic “swearing contest,” pitting the testimony of the prosecuting witness against that of the defendant. It is important to note that while not all child abuse cases would thus resolve themselves into the single issue of credibility, this one in fact did. In simplest terms, what we have before us is a young child, five years old, who says that the defendant committed a sexual assault against him, and the defendant, a 49-year-old adult, who says in response that the child is lying and “making it up.”

For many years, conventional wisdom assumed that a child who made such an accusation was, indeed, “making it up.” The psychologists attributed reports of molestation to sexual fantasy, and the law engaged in a presumption that children who voiced such accusations were unworthy of belief.3 Freud, for example, ultimately discounted reports made by sexually abused children on the ground that the men so accused, many of them respected members of late Victorian society, simply could not have been guilty of the sexual advances reported by the children, principally their own daughters. See generally J. Masson, The Assault on Truth (N.Y.1984). Likewise, *198Wigmore’s mistrust is reflected in his admonition that “female complainants,” particularly young girls, are highly unreliable witnesses and that their testimony should be subject to special rules obviously intended to discredit them. 3A J. Wigmore, Evidence in Trials at Common Law § 924a (rev. ed. 1970).

In addition to the medical and legal assumptions that children merely fantasize about sexual assault, rather than experience it directly, prosecution of child sex abuse cases has long been fraught with other difficulties: the general tendency of juries to believe an adult witness in preference to a child witness, the inability of a small child to articulate the facts when called as a witness in court, the likelihood that the child would be improperly influenced by an adult to recant, the lack of corroborating medical evidence, and the lack of eyewitness testimony. All these factors combine, to one degree or another, to make successful prosecution so daunting that for many years complaints of child sex abuse were either not reported or, if reported, were not pursued through the criminal justice system.

Only a naif would interpret the dramatic increase in child sex abuse prosecutions around the country in the last decade to mean that child sex abuse is a recent phenomenon. Instead, it seems apparent that the increase reflects a growing consensus that children who report sex abuse are not “making it up.” Given our concern for fundamental notions of due process in the prosecution of criminal defendants, however, we seem to be groping rather awkwardly for ways in which to handle these cases in court that will protect the child victim from what amounts to added psychological abuse, while still protecting the constitutional and statutory rights of the accused. We are not, in all cases, doing a very good job. See, e.g., Coy v. State, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988).

Onto this stage steps Dr. Abraham Breit-stein, a clinical psychologist whose practice is devoted primarily to the evaluation and treatment of children, especially those who are the victims of sex abuse. Dr. Breit-stein interviewed the child in this case and administered at least two psychological tests that led him to conclude that the child had not suffered extreme emotional disturbance. But it was not necessarily the arcane results of these tests that led to the disputed testimony here. Instead, Dr. Breitstein identified various characteristics that he had found in his experience to be common to victims of child sexual abuse. These included (1) consistency between the description given in the interview and what the child had previously reported, (2) the ability of the child to provide explicit detail that could only have been learned by experience, (3) the use of language appropriate to a child in describing that experience, (4) corroboration of the details given by the child, (5) a reported emphasis by the perpetrator on secrecy, (6) the occurrence of multiple incidence over time, (7) consistency between the extent of the abuse and the level of trauma exhibited by the child, (8) the child’s ability to demonstrate what occurred using anatomically correct dolls, and (9) the presence of anger or fear on the part of the child toward the perpetrator of the abuse. Dr. Breitstein analogized these characteristics of child sex abuse to the symptoms of a cold, saying that “if a child is referred to a physician with symptoms of a cold and the child presents certain symptoms to the physician, the physician more often than not is going to say that the child has a cold or a virus, because the child is exhibiting those symptoms.”

Moreover, the “symptoms” of child abuse described by Dr. Breitstein appear, upon close analysis, to be thoroughly sensible and pragmatic in nature, and not subject to ready misinterpretation. They thus stand in contrast to nonspecific “symptoms” of child abuse relied upon by experts in other cases, such as nightmares, crying spells, bedwetting, difficulty in school, weight loss, unstable family relationships, general anxiety, and the like, which obviously could be the result of emotional trauma caused by problems other than child sex abuse. To link these symptoms with child abuse, even in the case of a young and therefore inarticulate child, might in*199deed mislead a jury. Likewise, to allow the results of psychological tests to bolster the testimony of older children, otherwise capable of testifying successfully in court and conveying their experience in an understandable way to the trier of fact, might also be misleading to a jury. But to permit a trained expert who has evaluated a substantial number of similar cases involving known abuse of small children to describe common, case-specific characteristics of those abused children and compare them to the characteristics displayed by the child in question, seems to me to be of obvious benefit to a jury, especially in a case where the child is not capable of comprehensible testimony. The alternative is to give the jury no helpful information at all, thereby causing an inability to prosecute such cases, a situation which will only encourage the continued victimization of the small and the helpless. Freud and Wigmore might applaud such a result; we should not.

Of course, there must be careful limits placed on the ability to admit such testimony. In assessing its potential helpfulness to the jury, the trial judge should consider, for example, the age and testimonial capacity of the child involved and the case-specific nature of the expert’s testimony. The defendant should have an opportunity to rebut expert testimony by the state, if necessary by calling expert witnesses of his own whose testimony is inconsistent with that of the state’s experts. Hard and fast rules are no more helpful in this area than they are generally with expert testimony, however, and the exercise of discretion by the trial court should continue to be recognized as the controlling standard.4

I conclude that the trial court’s ruling in this case should have been upheld. Dr. Breitstein’s testimony was really no different from that we see offered routinely by psychological experts, who, for example, observe the characteristics or “symptoms” of a mental patient, compare them to others in their experience, and decide whether or not the patient is délusional and therefore insane. In some cases, these experts are also called upon to determine whether or not a mental patient is faking or “malingering.” See, e.g., State v. Clayton, 656 S.W.2d 344, 349 (Tenn.1983); State v. Green, 643 S.W.2d 902, 909, 911 (Tenn. Crim.App.1982). When this occurs, the analogy to the situation before us is particularly apt: the question in both instances is whether or not the patient is “making it up.” If the expert’s opinion is helpful to the jury in the case of a suspected malingerer, it is equally valuable — and admissible — when the claim is made that a young child is “making up” reports of sex abuse.

For the reasons set out above, I would hold that the trial judge did not abuse his discretion in permitting Dr. Breitstein to testify, and I would therefore affirm the judgment of conviction.

. Cases cited by the state in which courts have allowed expert testimony concerning the effects of sex abuse in child victims include Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986); State v. Kim, 64 Haw. 598, 645 P.2d 1330 (1982); State v. Snapp, 110 Idaho 269, 715 P.2d 939 (1986); Commonwealth v. Lewandowski, 22 Mass.App. 148, 491 N.E.2d 670 (1986); State v. Myers, 359 N.W.2d 604 (Minn.1984); State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983). See also Matter of Rinesmith, 144 Mich.App. 475, 376 N.W.2d 139 (Mich.App. 1985) (use of anatomical dolls).

Cases to the contrary cited by the defendant include In re Sarah M„ 194 Cal.App.3d 585, 239 Cal.Rptr. 605 (1987); State v. Lawrence, 112 Idaho 149, 730 P.2d 1069 (App.1986); State v. Maule, 35 Wash.App. 287, 667 P.2d 96 (1983). These cases turn largely on the court's perception that the "child sex abuse trauma syndrome," like the “battered wife syndrome,” is a "scientific test” not yet recognized by the American Psychological Association and therefore inadmissible under Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The state argues in response that the Frye test has never been adopted in Tennessee. See also Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988) (testimony comparing behavior to that of known victims constitutes improper bolstering).

. The rubric that an expert cannot offer opinion testimony touching on the ultimate jury question has long since been laid to rest. City of Columbia v. C.F. W. Constr. Co., 557 S.W.2d 734, 742 (Tenn.1977); proposed Tennessee Rule of Evidence 704.

. A recent study shows, in fact, that less than two percent of reports of sexual abuse made by children were fictitious. State v. Myers, 382 N.W.2d 91, 100 (Iowa 1986) (Harris, J., dissenting).

. Accord, Anderson v. State, 749 P.2d 369, 373 (Alaska App.1988) ("difficult, and perhaps improper, to formulate a single rule to cover all such cases”); State v. Kim, 64 Haw. 598, 645 P.2d 1330, 1334, 1337 (1982) (“expert testimony respecting witness credibility not appropriate to all situations.”).