People v. Beckley

Boyle, J.

I concur in the lead opinion to the extent that it holds 1) that the Davis/Frye test is inapplicable to the expert testimony in question, 2) that syndrome evidence is not admissible to prove that sexual abuse occurred, 3) that an expert may not testify that a child is telling the truth, and 4) that an expert may testify that the behavior of the complainant in the particular case is consistent with that of children who report sexual abuse.

I write separately because I am concerned that the rationale employed in the lead opinion may create restrictions on the use of expert testimony in child sexual abuse cases that unnecessarily limit an expert’s ability to assist the factfinder. Expert testimony should be admitted where relevant and helpful to the jury in evaluating the witness’ credibility. Among the many ways in which relevance may be made clear are motions in limine, voir dire, opening statement, the child’s direct examination, the testimony of other prosecution witnesses, cross-examination of the child, or by the defendant’s proofs. An expert may not testify that the child was abused. An expert may not render an opinion that the defendant was the abuser. A qualified expert may, however, compare the behavior of the complainant with that exhib*735ited by sexually abused children and offer an opinion regarding whether the behavior is consistent, if such an opinion will assist the jury. Jurors are capable of understanding that the testimony is offered solely to assist them in determining the credibility of the victim, and that the ultimate determination of whether abuse occurred is theirs alone.

i

The sole issue presented today is whether the expert testimony, as it relates to an issue in the case, would be helpful to the factfinder. Expert testimony which does not relate to any issue in the case is not relevant and therefore not helpful. Helpfulness is the touchstone of admissibility expressed in both MRE 702 and FRE 702:

The helpfulness test subsumes a relevancy analysis. In making its determination, the court must proceed on a case-by-case basis. Its conclusions will depend on (1) the court’s evaluation of the state of knowledge presently existing about the subject of the proposed testimony and (2) on the court’s appraisal of the facts of the case. [3 Weinstein & Berger, Evidence, ¶ 702(02), p 702-18.]

Thus, the proper resolution of these cases begins with relevancy. Relevancy exists only as a relation between an item of evidence and a matter properly provable in the case. The kind of fact to which proof may properly be directed is a fact that is of consequence to the determination of the action. MRE 401. "The fact to be proved may be ultimate, intermediate, or evidentiary.” 1 Weinstein & Berger, supra, pp 401-3 through 401-4. However, as the advisory committee to the federal rules stated, "The fact to which the evidence is directed need *736not be in dispute.” Id., p 401-4. Thus, evidence which is not related to a proposition such as the elements of the claim or crime that must be proved (the consequential fact), may be "admitted for other purposes including: to establish background information, [or] to evaluate the credibility of a witness . . . .” Id., ¶ 401[05], p 401-29.

In these instances, the test is not whether the proffered evidence tends to prove or disprove any consequential fact, but rather whether the evidence will aid the court or jury in determining the probative value of other evidence offered to affect the probability of the existence of a consequential fact. [Id.]

The lead opinion recognizes that expert testimony will assist the jury in evaluating the testimony of the child witness, noting various "misconceptions” about a child’s behavior following sexual abuse and that sexual abuse prosecutions often amount to a credibility contest between the victim and the defendant.1 However, the lead opinion erroneously characterizes expert testimony in these cases as "rebuttal” or "rehabilitative]” evidence (ante, p 710), going so far as to say it is never admissible as "substantive” evidence. What the lead opinion seems to mean is that it is not admissible with regard to the issue of guilt, a proposition with which I agree. However, when credibility is an issue in the case, then expert testimony addressing that issue is admissible if it will assist the jury, and it is substantive evidence. Thus, numerous jurisdictions allow the use of expert testimony to assist the jury in evaluating credibility, without reference to rehabilitation or *737rebuttal.2 The basic relevancy/helpfulness principles suggest the appropriate limitations on expert testimony in child abuse cases. First, the testimony is not admissible where offered to prove that the act occurred because experts have no demonstrated ability to reliably make such a determination.3 Second, an expert may not evaluate the credibility of the complainant; as the majority notes, psychologists are not qualified to judge veracity.4 However, the expert’s testimony is admissible to assist the factfinder in its evaluation of credibility._

*738If, as the lead opinion finds, it is clear that expert testimony is frequently helpful in evaluating the credibility of a child sexual abuse complainant, it should be equally clear that its usefulness can become apparent in a variety of ways, Inferences arising from common myths or misconceptions may arise from sources such as a mother’s statement that shows delayed reporting, a foster parent’s recital of seductive behavior, or a teacher’s revelation of sexual activity by the child victim with other children. Where there is no physical corroboration of a young child’s accusation, credibility is uniquely critical; where the testimony is halting or without affect, memory and testimonial competence are in question; where the offender and the parent have separated, there may be an inference that the child is a pawn in the adult dispute; if the offender and the parent remain together, an argument may be advanced that the accusations are motivated by the child’s having been disciplined for poor school work, rebelliousness, or sexual activity. As review of the hundreds of cases before us on application for leave to appeal evidences, the relevance and helpfulness of such testimony to the credibility question may become apparent at preliminary examination, during discovery, at pretrial motions, in the case in chief, or from the defendant’s proofs.

ii

The lead opinion’s inclination to limit the specificity of the expert’s testimony is founded on a misapprehension of the nature and purpose of expert testimony in general. The lead opinion emphasizes that "the expertise of the witness does not center upon the complainant in any individual case,” and reasons that "because a witness quali*739fies as an expert because of knowledge and experience in dealing with others who have been abused, and not on the basis of an examination of the particular victim, the expert’s testimony should be confined to an explanation of the behavior traits at issue, as defined by the science that forms the basis of the expertise.”5 The theme, not explicitly stated, is that since the expertise of the expert stems from general knowledge and not from knowledge of the particular case, the expert’s testimony should focus on generalities and not on the case at hand. However, it is typically true of any expert that expertise is derived from general experience or knowledge, rather than from experience or knowledge concerning the facts of the case in which the expert is qualified. Yet that does not preclude the expert from applying general principles or knowledge to the facts at hand. Indeed, it is the ability to do so which distinguishes an expert from a lay witness:

An observer is qualified to testify because he has firsthand knowledge of the situation or transaction at issue. The expert has something different to contribute. This is the power to draw inferences from the facts which a jury would not be competent to draw. [McCormick, Evidence (3d ed), § 13, p 33.]

Thus, I would not relegate the expert to a role which is merely advisory. I would permit the expert to testify that the particular child’s behavior is consistent with behavioral characteristics observed in children assumed to have been abused. The limitation suggested by the lead opinion’s reasoning is inconsistent with its own finding that expert testimony in child abuse cases is admissible *740to help the factfinder, since the jury will presumably be most helped by an expert who is allowed to apply expert knowledge to the case at hand. As the United States Court of Appeals for the Eighth Circuit observed in United States v Azure, 801 F2d 336, 340 (CA 8, 1986):

[The doctor] might have aided the jurors without usurping their exclusive function by generally testifying about a child’s ability to separate truth from fantasy, by summarizing the medical evidence and expressing his opinion as to whether it was consistent with [the victim’s] story that she was sexually abused, or perhaps by discussing various patterns of consistency in the stories of child sexual abuse victims and comparing those patterns with patterns in [the victim’s] story.

The lead opinion’s formulation, and to an even greater extent the dissent’s, would impose on the expert a variation of the sterile inquiry previously imposed on character testimony, where the witness will be qualified and then answer one or two sanitized questions.

In sum, I would hold that an expert should not be permitted to appropriate the jury’s function by testifying that a child witness is truthful. Nor may the behavioral expert in a child abuse case testify on the basis of behavior for the purpose of establishing that a sexual abuse occurred. An expert witness may testify in child sexual abuse cases where the expert’s testimony would assist the factfinder in evaluating the child’s credibility. The expert may testify on a sufficient foundation that the child’s behavior is consistent with the behavior of other children who have allegedly been assaulted.

It is the province of the trial court to weigh against the necessity for expert testimony the *741inherent dangers of such testimony.6 A given case may present an unwarranted potential for the trier of fact to be overly impressed with the expert merely because of the expert’s status, for the trier of fact to assume that the expert is vouching for the credibility of the child witness even when that is not the case, or that there is too great a danger that the jury will become distracted from its principal mission by a battle between experts. These are the familiar claims of prejudice, confusion, or waste of time that may lead the trial court, in its discretion, to conclude that the danger associated with the admission of expert testimony outweighs its probative value so that the evidence must be limited or excluded altogether pursuant to MRE 403. Where expert testimony is admitted, the trial court on request should give a limiting instruction to the effect that the testimony may be used to aid in assessing the credibility of the witnesses, but that it should not be used to determine whether sexual abuse occurred.

in

I agree with the lead opinion’s result in Badour, but briefly address why reversal is compelled. I would reverse because the defendant objected to the testimony on the ground that it was offered to show that the child had been abused, and the testimony revealed that the prosecutor’s purpose in offering it was simply to show that the child had been abused and that the defendant had participated in it. The defendant later raised a question regarding the victim’s motive in testifying that might have made the evidence helpful on the *742issue of credibility and specifically declined a limiting instruction. The prosecution made no affirmative use of the testimony in argument. Ordinarily reversal would not be warranted in these circumstances. Here, however, in view of the halting and incomplete testimony of the victim and the fact that the expert testimony was directed not only to the question whether abuse had occurred but to the defendant’s participation in it, I cannot conclude that the trial did not constitute a miscarriage of justice. MCL 769.26; MSA 28.1096.

Beckley, by contrast, demonstrates a near-perfect model for proper procedure in the use of such evidence. Following a pretrial hearing, the trial court held that it "would appear that the defense intends to raise the issue of whether an incest victim would have acted as the complainant did . . . .” The expert, Robin Zollar Smietanka, was to be allowed to testify whether she saw anything in the complainant which was inconsistent with the profile of an incest victim. She was specifically precluded from testifying that she thought the complainant was telling the truth or whether in fact the complainant had been an incest victim.

Robin Smietanka’s testimony on direct examination that the complainant’s behaviors were typical of a child who had been sexually abused was properly admissible to aid the jury in evaluating the credibility of the witnesses. In Beckley, the helpfulness of expert testimony in evaluating credibility became apparent in the pretrial motion and from the defendant’s opening statement. The complainant’s seemingly unusual behavior was revealed on direct examination of the complainant and was the subject of attack on cross-examination. Smietanka’s conclusion that the complainant’s behavior was consistent with sexual abuse *743was properly admissible to assist the factfinder in evaluating whether the victim’s behavior was indicative of falsehood. While the expert testified on redirect examination to what she called "victim symptoms” which had not been put at issue by examination of the complainant, her testimony was nevertheless relevant and proper, since it was responsive to the defendant’s cross-examination. State v Myers, supra, pp 611-612. The jury in Beckley was instructed that it was not to consider the expert’s testimony as bearing on whether the complainant had in fact been an incest victim. Credibility was at issue, and a proper limiting instruction was given. There was no error in Robin Smietanka’s testimony.

CONCLUSION

I concur in the express limitations on expert testimony which the lead opinion articulates: that the expert may not render an opinion that sexual abuse occurred or vouch for the credibility of the child witness. Yet the lead opinion seems uncomfortable in its conclusion, on one hand suggesting that because the expert’s qualifications derive from general knowledge and not from knowledge of the case in which the expert is qualified the focus of the expert’s testimony should remain general, while explicitly holding that the expert may testify regarding "familiarity or understanding of the victim’s behavior at issue.” Ante, p 727.

I would hold that where aspects of a child’s behavior create credibility issues about which a qualified expert is prepared to testify, the expert’s testimony is admissible if the trial court determines that it will aid the factfinder, so long as the expert does not render an opinion that sexual abuse occurred or vouch for the credibility of the *744child witness. I concur in the reversal of the decision of the Court of Appeals in People v Badour, and in the affirmance of the Court of Appeals in People v Beckley.

Riley, C.J., concurred with Boyle, J.

Ante, pp 716-717.

Wheat v State, 527 A2d 269, 275 (Del, 1987) (an expert may provide "background” to assist the jury in determining a child’s credibility where there has been delayed reporting or recantation); State v Kennedy, 320 NC 165; 357 SE2d 359 (1987) (expert testimony is admissible to help the jury understand behavior patterns of sexually abused children and assist it in assessing the credibility of a victim); Rodriquez v State, 741 P2d 1200, 1204-1205 (Alas App, 1987) (expert testimony was held admissible to provide “background information” to aid the jury in evaluating testimony of witnesses and to explain the unusual behavior of the complainant); State v Hall, 406 NW2d 503, 505 (Minn, 1987) (where the victim is an adolescent, expert testimony regarding reporting conduct and continued contact with the assailant is admissible in the discretion of the trial court).

The diagnosis of sexual abuse is problematic for those in the field. Children do not exhibit uniform reactions to sexual abuse. Haugaard & Repucci, The Sexual Abuse of Children (San Francisco: Jossey-Bass Publishers, 1988), p 135. Conclusive physical evidence is available only in a minority of cases, id., p 151, leaving as a basis for "diagnosis” the child’s statements and behaviors. The difficulty here, however, is that the behaviors identified with sexual abuse may be caused by stresses other than sexual abuse. Id., p 143; de Young, A conceptual model for judging the truthfulness of a young child’s allegation of sexual abuse, 56 Am J Orthopsychiatry 550, 555 (1986).

Those who deal with sexually abused children readily admit that judging the veracity of a child who complains of sexual abuse is a problem within the mental health profession. Even for these experts, assessment of the credibility of a child’s accusation is "a complicated and inexact process.” Haugaard & Repucci, n 3 supra, p 179. The difficulty of the problem is attested to by the profusion of articles addressing the question of how to assess the truthfulness of a child’s accusation of sexual abuse. See, e.g., Faller, Criteria for judging the credibility of children’s statements of their sexual abuse, 67 Child Welfare 389 (1988); de Young, n 3 supra; Wehrspann, Steinhauer & Klajner-Diamond, Criteria and methodology for assessing credibility of sexual abuse allegation, 32 Can J Psychiatry 615 (1987).

Ante, pp 726-727.

The helpfulness analysis must encompass not only the behavior of the victim, but the victim’s age and the charge. As Badour correctly indicates, the mere fact that the complainant is under age does not authorize the admissibility of expert testimony.