Newkirk v. Commonwealth

BARRY WILLETT,

Special Justice, dissenting.

I respectfully dissent. I would affirm the conviction and hold that the trial court committed no error in admitting the rebuttal testimony of John Sullivan, M.D.

The majority opinion has mischaracterized. the testimony of Dr. Sullivan as impermissible expert testimony relating to Child Sexual Abuse Accommodation Syndrome (CSAAS). Based on six opinions in which this court has reversed criminal convictions because CSAAS testimony was erroneously admitted *697into evidence,1 the court reverses appellant’s conviction. Unfortunately, the majority opinion fails to distinguish between the general prohibition of the admissibility of expert testimony relating to CSAAS and rebuttal testimony regarding the phenomenon of recantation.

The expert testimony at issue was from child psychiatrist John Sullivan, M.D. Prior to trial, the trial court conducted a lengthy hearing on the Commonwealth’s motion to introduce expert testimony at trial regarding recantation. Three competent experts, a child psychiatrist, a clinical social worker, and a licensed clinical psychologist, testified in the hearing that recantation is a common phenomenon among child sexual abuse victims and that it is widely accepted within their respective scientific fields. Appellant failed to present any expert testimony at the hearing to rebut the opinions of the Commonwealth’s experts.

The trial court granted the Commonwealth’s motion to introduce expert testimony at trial regarding recantation ruling it would:

allow the Commonwealth to introduce expert testimony for the limited purpose of rebutting any attack on [the victim’s] credibility based upon the recantation of her allegations of her abuse, by explaining in general terms why an alleged victim might recant.

At trial, the appellant brought the credibility of the victim into question by impeaching2 her on the basis of her recanting the allegations of her sexual abuse prior to trial. The trial court allowed Dr. Sullivan’s testimony with the following limiting admonition:

This witness is being called to testify for the limited purpose of explaining the psychological dynamics surrounding a recantation following an accusation of the sexual abuse. This evidence is not offered for the purpose of proving whether [victim] was or was not sexually abused.

Before beginning the substance of his testimony Dr. Sullivan made clear to the jury that he had not treated the victim and that he was not there to give an opinion on whether or not she had been abused. He then explained what recantation is and testified that recantation is “very widely accepted” among “any mental health professionals who work with children.” Dr. Sullivan stated that recantation is a common occurrence with sexually abused children and told the jury of the most common reasons for a child to recant. He went on to testify that children cannot always articulate their reasons for recanting and will sometimes not provide reasons. He reiterated that he had not discussed anything with the victim or her parents, did not know the facts of the case, and had no idea if recantation applied in this case.

The majority opinion finds that Dr. Sullivan’s testimony should have been excluded on the basis that it both lacked relevance and invaded the province of the jury by expressing an opinion on the ultimate issue of guilt or innocence. Thus, I will first analyze whether Dr. Sullivan’s testimony was relevant.

KRE 401 reads as follows:
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Professor Lawson reminds us that the law of evidence tilts heavily toward admission of evidence rather than exclusion. Lawson states “an item of evidence is relevant (thus admissible absent intervention by some exclusionary policy) if it has any tendency to increase or decrease the probability of a pertinent factual proposition.” Robert G. *698Lawson, The Kentucky Evidence Law Handbook, § 2.05, p. 53 (3rd Ed.1993).

The majority opinion fails to consider that the appellant’s guilt or innocence is not the only fact that is of consequence in this action. “Credibility of witnesses is a ‘fact of consequence’ for purposes of relevancy. A wide array of evidence is admissible only because it renders testimonial credibility more probable or less probable than it would be without the evidence.” Id. at 55. This Court recognized in Sanborn v. Commonwealth, Ky., 754 S.W.2d 534, 545 (1988), that the “credibility of a witness’ relevant testimony is always at issue.” Thus, Dr. Sullivan’s rebuttal testimony which concerned the credibility of the witness/victim clearly falls within the KRE 401 definition of relevancy.

Next, we turn to whether Dr. Sullivan’s testimony invaded the province of the jury by expressing an opinion on the ultimate issue. Despite the conclusion of the majority opinion to the contrary, Dr. Sullivan’s testimony served to explain the phenomenon of recantation rather than to opine about the appellant’s guilt or innocence. Dr. Sullivan did not testify that Newkirk abused the child, thus he did not testify regarding the “ultimate issue” of Newkirk’s guilt or innocence. Dr. Sullivan likewise did not testify that the child had been abused, nor that her recantation was evidence that she was abused, nor that the child’s original statement before her recantation was the truth.

Rather, the doctor merely explained why some child sexual abuse victims may recant their allegations of sexual abuse at some point in the process of the criminal prosecution of the alleged perpetrator. The trial judge admonished the jury that Dr. Sullivan was being called to testify for the limited purpose of explaining the psychological dynamics surrounding a recantation following an accusation of sexual abuse. The trial judge further admonished the jury that the evidence was not being offered for the purpose of proving whether the child victim was or was not sexually abused. It was then up to the jury to determine whether this child had recanted because her first statement was untrue or because of some other reason. Dr. Sullivan’s testimony allowed the jury to perform its proper function in determining the child’s credibility after being provided pertinent information.

Permitting the appellant to impeach the child victim’s credibility on the basis of a previous recantation without also allowing the Commonwealth to present testimony explaining the phenomenon of recantation gives the alleged perpetrator an unfair advantage to exploit the process of how some child sexual abuse victims respond to abuse. Dr. Sullivan’s rebuttal testimony is akin to that in Reed v. Commonwealth, Ky., 738 S.W.2d 818, 821 (1987) in which this court held that when a witness’s credibility has been attacked by charges of recent fabrication, rebuttal evidence may be introduced to rehabilitate the credibility of the witness. This court also held that the opinion of an expert on the ultimate issue is admissible where such evidence assists the trier of fact. Carpenter v. Commonwealth, Ky., 771 S.W.2d 822, 825 (1989).

After determining that Dr. Sullivan’s evidence is relevant the next inquiry is whether it complies with KRE 702 which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.

The first question regarding the admissibility of Dr. Sullivan’s testimony under KRE 702 is whether the substance of his testimony will assist the jury to understand the evidence or determine a fact in issue. It has long been the rule in Kentucky that the substance of the expert testimony must be of such a character as not to fall within the range of common experience and observation and therefore not be intelligible to jurors without the aid of opinion testimony. Greer’s Adm’r v. Harrell’s Adm’r, 306 Ky. 209, 213, 206 S.W.2d 943, 946 (1947).

When a jury of lay adults, hearing the horrible details in a typical child sexual abuse case, is confronted with a child victim recanting his or her previous allegations of sexual abuse, it is understandable that they would *699tend to apply an adult standard to the child victim’s behavior in an effort to understand what motivates the victim to recant his or her allegations. The reality of child sexual abuse is that children respond differently than do adults to both the abuse and the process of disclosing the abuse to the proper authorities.

The Louisiana Supreme Court, in Wimberly v. Gatch, 635 So.2d 206, 213 (La.1994), explained why expert testimony can help the trier of fact understand a child’s behavior:

Adults frequently have preconceived ideas about how a traumatized person will react after infliction of the trauma. The child victim of sexual abuse does not react to the situation according to adult concepts of self-determination with autonomous, rational choices. In fact, their behavioral patterns vastly differ from adult expectations. (Citations omitted.)

Expert testimony under these circumstances is neither diagnostic nor probative of the ultimate issue in the case. Dr. Sullivan’s testimony had neither the intent nor effect of diagnosing sexual abuse and therefore did not improperly invade the province of the jury. To the contrary, Dr. Sullivan’s testimony served to assist the jury to understand why some child victims of sexual abuse may recant their allegations of abuse. In the instant case, it is clear that the jury was having difficulty understanding why the child victim had recanted her allegations of sexual abuse. At the conclusion of the victim’s direct examination in the Commonwealth’s case, a juror was allowed to ask the victim why she testified she had been raped but had told other people it did not happen. The victim responded, “I don’t know.”

When expert scientific testimony is proffered, the trial court must next “make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology can be applied to the facts in issue.” Mitchell v. Commonwealth, Ky., 908 S.W.2d 100, 101 (1995) (in which this court adopted the standard of review for scientific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).

Dr. Sullivan is a child psychiatrist, board certified in both psychiatry and neurology. He received two years of post-medical school fellowship training in child psychiatry. Dr. Sullivan, in addition to being in private medical practice in child psychiatry, was Medical Director of Brooklawn Treatment Center and Medical Director of the Children’s Unit at Our Lady of Peace Hospital. The majority of his medical practice and experience dealt with treating child victims of sexual abuse. The appellant’s trial counsel offered to stipulate to Dr. Sullivan’s expertise. In addition to Dr. Sullivan, two other competent experts testified at the hearing. One was a clinical social worker and child psychology professor at the University of Kentucky, and the other was a licensed clinical psychologist.

The trial court conducted a lengthy “preliminary hearing on the matter utilizing the standards set forth in Daubert.” Mitchell at 102. All the experts kept current with the literature in the area of child sexual abuse and had published or were in the process of publishing in their fields. The experts testified that recantation is not used to determine whether sexual abuse had occurred or not, but is considered at the treatment stage. The experts further testified that most lay persons would not understand the phenomenon of recantation. Dr. Sullivan testified that recantation is “widely accepted” in the field of psychiatry. He described recantation as being recognized for “decades,” but that the research in the area had taken off in the last 15 to 20 years. Lane Veltcamp, a licensed clinical social worker and child psychology professor at University of Kentucky who has published a book on child abuse and neglect testified that recantation is “something we see on a regular basis” and is “accepted across the country as something frequently seen in children who have been abused.” He stated that recantation has been recognized since the mid-1970’s and is a regular topic at conferences across the country. Sally Lawson Brensale, Ph.D., a licensed clinical psychologist who has attended and presented at numerous child abuse conferences, testified that recantation is “com*700mon,” that it is “certainly accepted” in her field, and that it has been recognized in the field of psychology since the mid- or late-1970’s.

Following this lengthy hearing, of exactly the type required in Mitchell, the trial court granted the Commonwealth’s motion to allow testimony regarding recantation for the limited purpose of rebutting the victim’s testimony based on her recantation of the abuse allegations. The trial court determined that the phenomenon of recantation enjoyed general acceptance within the psychiatric and psychological communities and noted that numerous courts have allowed an expert to testify in rebuttal to explain why a child recants. He further found that testimony regarding recantation would assist the jury in understanding the possible behavior of a child victim of sexual abuse. Thus, he correctly determined that the testimony met the requirements of KRE 702. The appellant failed to present any evidence to the contrary.

The standard of review on appeal is whether the trial court abused his or her discretion in deciding the admissibility of the evidence. Mitchell at 102. The trial court did not abuse his discretion in admitting the rebuttal testimony of Dr. Sullivan.

Other jurisdictions have allowed the admission of expert testimony to explain in general terms, for the limited purpose of rebutting an attack on the victim’s credibility, why an alleged victim of sexual abuse might recant. See Davenport v. State, 806 P.2d 655, 659 (Okl.Cr.1991) (“Numerous courts have allowed an expert to testify in rebuttal to explain ... why a child recants.”) and cases cited therein.

As stated in State v. Foret, 628 So.2d 1116, 1130 (La.1993), which quotes from Goldstein, “Credibility and Ineredibilify: the Psychiatric Examination of the Complaining witness,” 137 Am.J.Psychia. 1238, 1240 (1980):

The expert testimony on why victims might recant or delay reporting is being offered to rebut attacks on the victim’s credibility. So long as the expert limits the testimony to general characteristics that would explain delays in reporting, recantations, and omissions of details, the testimony will not “substitute [the expert’s] estimation of credibility for that of the jury. Rather, it is to provide a scientific perspective for the jury according to which it can evaluate the complainant’s testimony for itself.”

Expert testimony explaining the phenomenon of recantation by some victims of child sexual abuse should be admissible for the limited purpose of rebutting an attack on the child victim’s credibility, if the expert testimony can meet the requirements for admissibility set forth in KRE 702 and Mitchell, supra. Any such testimony should be preceded by a limiting instruction to the effect that the expert’s testimony is not intended and should not be used to determine whether the victim’s sexual abuse allegation is true.

GRAVES and WINTERSHEIMER, JJ., join this dissent.

. Bussey v. Commonwealth, Ky., 697 S.W.2d 139 (1985); Lantrip v. Commonwealth, Ky., 713 S.W.2d 816 (1986); Hester v. Commonwealth, Ky., 734 S.W.2d 457 (1987); Mitchell v. Commonwealth, Ky., 777 S.W.2d 930 (1989); Hettstrom v. Commonwealth, Ky., 825 S.W.2d 612 (1992); and Hall v. Commonwealth, Ky., 862 S.W.2d 321 (1993).

. Appellant elicited from the victim facts relevant to her recantation both on cross examination in the Commonwealth’s case and on direct examination in his case-in-chief.