People v. Beckley

Archer, J.

(concurring in part and dissenting in part). I concur with the result the lead opinion reaches in People v Badour. I dissent, however, in People v Beckley.

Under the lead opinion, expert testimony on the child sexual abuse accommodation syndrome1 is admissible to rebut the inference that the complainant’s postincident behavior is inconsistent with that of a known sexual abuse victim.2 Although the prosecution may offer the expert’s testimony during its case in chief, the expert’s testimony may not be used as substantive evidence to prove the fact of sexual abuse. Consequently, the expert’s testimony is limited to an explanation of the complainant’s specific postincident behavior traits that have been challenged as being inconsistent with those of known sexual abuse victims. In addition, the expert is precluded from stating an opinion that the complainant was sexually abused. Finally, the jury must be instructed as to the limited purpose for which the expert’s testimony is offered. Because the lead opinion would permit an expert to refer to the complainant in this particular case and does not limit the expert’s testimony to a discussion of the specific postincident behavior *745traits at issue without reference to the complainant or the specific facts of this case, I dissent.

In California, the very state to which this Court looks for guidance in this case, experts testifying as to syndrome evidence must confine their remarks to the class of child abuse victims in general. People v Roscoe, 168 Cal App 3d 1093; 215 Cal Rptr 45 (1985).3 Although the court in People v Bowker, 203 Cal App 3d 385; 249 Cal Rptr 886 (1988), rejected the prosecution’s argument that syndrome evidence is admissible so long as the expert does not testify that the complainant in the case before the court has been abused, even the prosecution conceded that, whenever syndrome evidence is admissible, the expert’s testimony must be confined to the general class of child sexual abuse victims:

The Attorney General’s argument only height*746ens this tension. Relying largely on People v Roscoe, supra, 168 Cal App 3d 1093, he asserts the sole effect of [People v] Bledsoe [36 Cal 3d 236; 203 Cal Rptr 450; 681 P2d 291 (1984)] as applied to [child sexual abuse accommodation syndrome] evidence is to prohibit experts from testifying that the particular victim was abused. He contends the same testimony is admissible as long as the expert’s remarks are confined to the class of abuse victims in general. (Roscoe, supra, 168 Cal App 3d 1099-1100.) In our view, however, this argument misconstrues the rationale underlying Bledsoe and reads Roscoe far too broadly. The Supreme Court cannot have intended the Bledsoe exception to give with one hand what had been previously taken away by the other. [Bowker, supra at 392-393.]

Consequently, an expert testifying on the basis of syndrome evidence is precluded from making any reference to the particular complainant or specific facts before the court.4 See also People v Gray, 187 Cal App 3d 213, 215-222; 231 Cal Rptr 658 (1986); People v Jeff, 204 Cal App 3d 309, 329-332, 337-339; 251 Cal Rptr 135 (1988); People v Bergschneider, — Cal App 3d —, —; 259 Cal Rptr 219, 226-227 (1989); People v Stark, — Cal App 3d —, *747—; 261 Cal Rptr 479, 483-484 (1989); People v Leon, — Cal App 3d —, —; 263 Cal Rptr 77, 84-87 (1989).

Under the rule the lead opinion would adopt today, the danger is too great that the trier of fact will improperly infer that an expert testifying on the basis of syndrome evidence is, in effect, concluding that the particular complainant before the court has been abused. It is this very danger that the California rule, which the lead opinion purports to adopt, was intended to prevent. The child sexual abuse accommodation syndrome is a therapeutic tool. The syndrome assumes abuse, and the relevant scientific community does not rely upon syndrome evidence to prove that abuse in fact has occurred. As the Court in Bowker noted, the inherent danger in failing to narrowly circumscribe an expert’s testimony to the general class of child abuse victims is that syndrome evidence can all too easily be misconstrued as constituting a method of proving or predicting child abuse:

Fundamentally, Bledsoe must be read to reject the use of [child sexual abuse accommodation syndrome] evidence as a predictor of child abuse. It is one thing to say that child abuse victims often exhibit a certain characteristic or that a particular behavior is not inconsistent with a child having been molested. It is quite another to conclude that where a child meets certain criteria, we can predict with a reasonable degree of certainty that he or she has been abused. The former may be appropriate in some circumstances; the latter . . . clearly is not. [Bowker, supra at 393. Emphasis in original.]

The ultimate purpose of child sexual abuse accommodation syndrome evidence is to dispel the myths and misconceptions surrounding sexual as*748sault crimes. See ante, pp 709, 716-717 (Brickley, J.). Once an expert witness presents evidence disabusing the specific misconception at hand, such as delayed disclosure, syndrome evidence has served its proper function. This function can be accomplished just as effectively without reference to the complainant before the court. Although the lead opinion recognizes that syndrome evidence is, by nature, as highly prejudicial as it is probative, see, e.g., ante, pp 723-725 (Brickley, J.), it wholly fails to recognize that the marginal probative value of the expert’s testimony with reference to the specific complainant before the court pales in comparison to the increased and substantial degree of prejudice a criminal defendant will face.

The line of questioning that took place in Beckley demonstrates that when an expert is permitted to refer to the particular complainant and facts of the case, a criminal defendant faces substantial prejudice that no curative instruction can undo. Under these circumstances, the practical effect is to extend the use of syndrome evidence to the improper purpose of proving or predicting sexual abuse, a use for which syndrome evidence no longer proves sufficiently reliable.5 Although the lead and concurring opinions conclude that the defendant himself "opened the door” to an improper line of questioning when cross-examining *749the prosecution’s expert witness, see, e.g., ante, p 731 (Brickley, J.), the error requiring reversal in this case occurred during the prosecution’s direct examination of expert witness Robin Smietanka:

Q. Mrs. Smietanka, do you know [the child]?
A. Yes, I do.
Q. How did you come to know [her]?
A. [She] was referred to me by Carol King, who is a Protective Services’ worker out of the Children’s Unit of the Muskegon County Department of Social Services. Mrs. King called me and asked me if I would see [the child] for the purpose of diagnosis and treatment in regards to alleged sexual abuse or incest.
Q. Are you aware of the fact that after the incident that’s alleged in this case that [the child] reported only that her father had made passes at her, referring to some inappropriate kisses, and that that’s all she initially reported in this case?
A. Yes, I am aware of that.
Q. Well, based upon your rather extensive practice and your familiarity with the literature and so on and your knowledge of that particular behavior and the other circumstances in which that behavior manifested itself, and by that I mean [the child], her age, her sex and so on, do you have any opinion as to whether that kind of behavior would be typical of a victim of such sexual abuse such as [this child]?
A. That behavior would be typical of a victim of the age and characteristics of [this child]. Many times disclosure is delayed for an extended period of time. Many times disclosure is made to what we would call like a third-party source. That would be somebody outside of the family. And many times disclosure is not full disclosure. A child will let go of so much information in an attempt to get a behavior to stop or to make sure that that behavior does not occur again without wanting to fully disclose the intimate details or the extensiveness of the behavior.
*750Q. Are you familiar with the fact that the victim in this case . . . waited a year before reporting the fact of intercourse, before reporting that it was more than passes, that there was in fact intercourse, after a delay of a year?
A. Yes, I am familiar with that.
Q. Do you have any opinion as to whether that type of behavior would be typical or normal for a victim who was sexually abused at [this child’s] age?
A. From both my own caseload experience and from the literature, that would be a fairly common response of a child to wait ....

Aside from the obvious prejudice deriving from the prosecution’s repeated references to the complainant as a "victim,” a jury could reasonably infer that Ms. Smietanka, who testified that she had personally examined the complainant for purposes of diagnosis and treatment, was, at the very least, predicting that the complainant in fact had been sexually abused. The proper purpose of Ms. Smietanka’s testimony was merely to dispel the misconceptions that the specific postincident behavior traits at issue, such as delayed disclosure and the complainant’s initial tendency to deny sexual intercourse, were inconsistent with those postincident behavior traits exhibited by children who in fact had been sexually abused. The prosecution could have dispelled these misconceptions just as effectively without the repeated references to the child or the facts of this case. Under this limitation, the very real potential for unfair prejudice to the defendant would truly be kept at a minimum while permitting the people to effectively uncover the truth.

The sexual abuse of children is among the most cruel and heinous of criminal acts. The criminal preys upon the very weaknesses that children are *751most unable to overcome: helplessness and innocence. In cases of incest, the very person morally responsible for protecting a child from the dangers of life is usually the very same person who would subject the child to the cruelest of mankind’s inhumanities in order to indulge in self-gratification. Thus, society has the highest interest in protecting defenseless children from incurring substantial and permanent injury at the hands of a child abuser.

At the very same time, a fundamental value deeply cherished by our society is the right to a fair and impartial trial. The fairness of the procedures under which a criminal prosecution is conducted is zealously guarded to as high a degree as are the justness and righteousness of the substantive rule of law upon which a conviction is based. Because the additional probative value to be gained by permitting an expert to refer to the complainant and particular facts before the court is ever so slight when compared to the increased and substantial degree of prejudice a criminal defendant will face under the lead opinion, I dissent.

Cavanagh, J., concurred with Archer, J.

See ante, p 710 (Brickley, J.).

Expert testimony is, of course, not admissible to prove that the complainant in fact has been sexually abused. As the majority and concurring opinions correctly note, "syndrome” evidence is not a scientific technique that determines whether a child has been abused. Rather, it is a therapeutic tool developed to explain postincident behavior.

Credibility questions arise whenever the defendant denies the victim’s story, explicitly or implicitly suggesting misrecollection or fabrication. If, in every such case, the jury could be informed that a doctor had diagnosed the complainant, based upon the specific facts in the case, as a child molest [sic] victim (or rape victim, or whatever), then the protection against misuse of psychologists’ testimony erected by [People v] Bledsoe [36 Cal 3d 236; 203 Cal Rptr 450; 681 P2d 291 (1984)] would be largely dismantled.

Where the expert refers to specific events, people, and personalities and bases his opinion as to credibility on his diagnosis of this witness, then the conclusion that the witness is credible rests upon the premise that the diagnosis is accurate, and that in fact molestation had occurred. The jury in effect is being asked to believe the diagnosis, to agree that the doctor’s analysis is correct and that the defendant is guilty. Such a result would subvert the sound rule adopted by a unanimous Supreme Court in Bledsoe. It follows, therefore, that the expert testimony authorized by Bledsoe to permit rehabilitation of a complainant’s credibility is limited to discussion of victims as a class, supported by references to literature and experience (such as an expert normally relies upon) and does not extend to discussion and diagnosis of the witness in the case at hand. [Roscoe, supra at 1099-1100. Emphasis added.]

In Bledsoe our Supreme Court held that the rape trauma syndrome does not meet the Kelly-Frye[*] standard of admissibility as a scientifically accepted test for establishing whether a rape occurred. Therefore, such evidence is not admissible to prove guilt in a criminal trial. In Roscoe this court extended Bledsoe to child molest [sic] cases and, as defendant states, clarified the manner in which expert testimony explaining trauma behavior may be introduced. As we explained, the opinion testimony should be based upon the literature in the field and general, professional experience of the witness rather than upon an analysis and diagnosis based upon a review and evaluation of the facts in the case at hand. [People v Jeff, 204 Cal App 3d 309, 337; 251 Cal Rptr 135 (1988).]

[* People v Kelly, 17 Cal 3d 24; 549 P2d 1240 (1976); Frye v United States, 54 App DC 46; 293 F 1013 (1923).]

The function of rape counselors "is to help their clients deal with the trauma they are experiencing” and "the historical accuracy of the client’s descriptions of the details of the traumatizing events is not vital in their tasks”; the counselors "are taught to make a conscious effort to avoid judging the credibility of their clients.” (Id. [People v Bledsoe, 36 Cal 3d], 250.)

The diagnosis, while scientifically acceptable for treatment purposes, is not the product of a rigorous process the goal of which is determining truth or falsity (unlike fingerprint, lie detector, or blood tests). To admit the diagnosis to prove what events occurred leading up to the therapeutic treatment would be to misuse it for a purpose never intended by those in the discipline who developed the concepts. [Roscoe, supra at 1097.]