(dissenting).
We have before us a basic question, not novel to appellate courts of this land, regarding the subject “Behavioral Science Testimony”. Basically, we are confronted with this question: Should this state permit, in its courtrooms, behavioral science testimony that a particular child told the *596truth about being sexually abused? Relat-edly, we further must impliedly rule on this question: Should behavioral science testimony be admitted to show that sexually abused children as a class, do generally tell the truth about sexual abuse?
I respectfully dissent to the decision written by Morgan, J., for the reason that it deprives a defendant, accused of sexual abuse, of a fair jury trial. Therefore, I would affirm the decision of Judge Hertz, the trial judge in this criminal action. Admitting the testimony of Dr. Curran, the clinical psychologist (also a nun) and Mrs. Haugland, a teacher, deprived McCafferty of not only a fair trial but also due process. Fundamental fairness was violated here by evidentiary error. If such a violation is “material in the sense of a crucial, critical, highly significant factor”, then a constitutional transgression has been established. Collins v. Francis, 728 F.2d 1322, 1336-37 (11th Cir.1984), reh’g. and reh’g. en banc den., 734 F.2d 1481, cert. den., 469 U.S. 1143, 105 S.Ct. 826, 83 L.Ed.2d 818 (1984). We apply this same standard in habeas corpus relief requests. Machin v. Wainwright, 758 F.2d 1431, 1434 (11th Cir.1985). This is a habeas corpus proceeding. Our scope of review in habeas corpus proceedings is limited. State v. Erickson, 80 S.D. 639, 129 N.W.2d 712 (1964). There is, in my opinion, great danger in opening habeas corpus proceedings to all types of eviden-tiary error found in the record during the trial. However, when the error is so substantial and so great that it becomes a “crucial” and “critical” and “highly significant factor” then we must address the question: Did the accused have a fundamentally fair jury trial? Obviously, Judge Hertz did not think so. Justice Sabers does not think so. Neither do I. Under Erickson, 129 N.W.2d at 715, we may review “... whether an incarcerated defendant has been deprived of basic constitutional rights.”
On September 13, 1989, this Court filed its opinion in State of South Dakota v. Bachman, 446 N.W.2d 271 (S.D.1989). There, this Court adopted the general thesis of the propriety of testimony, during trial, by “experts” on “rape trauma syndrome”. In said Bachman decision, this special writer dissented setting forth numerous authorities against the academic premise of the majority opinion written by Miller, J. Chief Justice Wuest and Morgan, J., concurred in Bachman and Sabers, J., wrote specially to dissent and concluded by joining this special writer’s dissent. Without waxing in depth into the dissent of either myself or Justice Sabers, suffice it to say that both of us agreed with the language of State v. Logue, 372 N.W.2d 151 (S.D.1985), written by Chief Justice Wuest, which holding was seriously eroded in Bachman. The same three justices now joining in this decision are the three justices who constituted the majority in the Bachman decision. I feared the movement of this Court, in the direction that it now walks, as reflected by my special concurrence in State v. Hallman, 391 N.W.2d 191, 196-7 (S.D.1986). I feared opening the door to testimony which would permit, in effect, hearsay/expert testimony to impale a defendant with a conclusion that “he did it” — in effect. Justice Sabers, in his dissent in Bachman, specifically pointed out that the testimony therein “was also offered to establish credibility”. Have experts, in the field of behavioral science, now taken over the role of jury trials, in South Dakota via Bachman, and now this decision? The answer is: Yes.
I voted for Logue; I believed in its language and its spirit. I now see its holding shattered.
In Bastow v. General Motors Corp., 844 F.2d 506 (8th Cir.1988), that court, at 511, quoted with approval language in United States v. Barnard, 490 F.2d 907, 912-13 (9th Cir.1973), cert. den., 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974) wherein the 9th Circuit held:
Credibility ... is for the jury — the jury is the lie detector in the courtroom.... It is now suggested that psychiatrists and psychologists have more [expertise in weighing the veracity of a witness] than either judges or juries, and that their opinions can be of value in determining [credibility]. Perhaps. The effect of receiving such testimony, however, may *597cause juries to surrender their own common sense in weighing testimony; second, it may produce a trial within a trial on what is a collateral but still an important matter.
This was also the message in United States v. Azure, 801 F.2d at 340. If we are going to do away with jury trials and substitute experts, have we not abolished the most precious right that any citizen possesses via the United States Constitution or the State Constitution by which that citizen enjoys his or her liberty as a free person? “The credibility of witnesses and weighing the evidence is for the jury.” State v. Myers, 88 S.D. 378, 381, 220 N.W.2d 535, 537 (1974). Such a rule is hornbook law. This old rule is quoted with approval in Azure, cited above, which further quotes with approval, United States v. Rosenberg, 108 F.Supp. 798, 806 (S.D.N.Y.1952), affir’d., 200 F.2d 666 (2nd Cir.1952). What does this decision do to this law of evidence so firmly entrenched in our federal and state courts?! Dr. Curran testified to the truthfulness of S.F. Question: Did you feel that you could rely on what she told you and believe what she told you? Answer: Definitely. Later on, Dr. Curran testified “and she was very honest, ... ”. This testimony from a nun had to have a great impact on the jury. Its probative value was far outweighed by the danger of unfair prejudicial effect on the defendant’s case. A balancing is required under SDCL 19-12-3. State v. Dokken, 385 N.W.2d 493 (S.D.1986). The nun’s testimony placed an impermissible stamp of believability in the word of the child. This testimony absolutely destroyed the jury’s right to judge the credibility of a witness. See, State v. Thomas, 381 N.W.2d 232, Supreme Court of South Dakota, 1986, for a decision upholding the trial court which refused to admit a social worker’s written report containing an opinion of the victim’s previous disposition of (a) telling the truth or (b) lying. I still support that decision. Here, the jury necessarily had to conclude that McCafferty was lying about alleged sexual abuse and was therefore guilty. We must remember that the child did not testify during this trial. Therefore, the jury was never given an opportunity to judge the credibility of the child. Surely, the jury was not going to judge adversely the credibility and opinion of a nun. Cleverly, and to imbue the nun’s testimony with great and unassailable integrity, she was questioned and answered that she was a sister in the Sacred Heart Convent. Thus, the unfair prejudice outweighed the probative value, Dokken. In Logue, at 157, we quoted United States v. Amaral, 488 F.2d 1148 (9th Cir.1973) with approval: “Expert testimony particularly courts the [danger of undue prejudice or of confusing the issues or misleading the jury] because of its aura of special reliability and trustworthiness.” Dr. Curran testified that based upon psychological research — less than one percent of children lie about sexual abuse. The coup de grace was: The trial judge instructed the jury on expert testimony; obviously, Dr. Curran was qualified as an expert. A final layer of error: Mrs. Haug-land testified that she could believe what “S” (the victim) told her and that “S” was very honest, (emphasis supplied mine).
It appears to me that there is a diversity of appellate opinion of expert testimony on child sexual abuse. However, courts nearly approach unanimity when they are called upon to approve of expert testimony on credibility. Most of the courts, in fact a great majority thereof, reject the testimony of these behavioral science experts when they testify directly on the credibility of individual children. These are some of my authorities: People v. Ross, 745 P.2d 277, 278 (Col.Ct.App.1987); People v. Oliver, 745 P.2d 222, 225 (Col.1987); State v. Moran, 151 Ariz. 378, 728 P.2d 248 (1986). Accord: Head v. State, 519 N.E.2d 151 (Ind.1988). In our sister state of Iowa, in 1986, in State v., Brotherton, 384 N.W.2d 375, 378, it was held that testimony that a young child could not fantasize concerning a sexual act was improper indirect testimony concerning the child’s credibility. For other jurisdictions, supporting the dissents of Justice Sabers and this writer, in point, see: State v. Jackson, 239 Kan. 463, 721 P.2d 232, 238 (1986); People v. Reinhardt, 167 Mich.App. 584, 423 N.W.2d 275, 282 (1988); State v. Miller, 377 N.W.2d 506 *598(Minn.Ct.App.1985); State v. Bailey, 89 N.C.App. 212, 365 S.E.2d 651 (1988); State v. Middleton, 294 Or. 427, 657 P.2d 1215, 1221 n. 11 (1983); Commonwealth v. McNeeley, 368 Pa.Super. 517, 534 A.2d 778, 779 (1987).
Furthermore, the courts have refused to permit these behavioral science experts to offer opinions on credibility of sexually abused children as a class. Reinhardt, supra; People v. Matlock, 153 Mich.App. 171, 395 N.W.2d 274, 277 (1986); Townsend v. State, 103 Nev. 113, 734 P.2d 705 (Nev.1987); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988).
As my authorities above indicate, I am in accord with Justice Sabers’ recitation of what constitutes “the clear weight of authority” to say the least, and to his specific citation on the treatise written by McCord as found in 77 J.Crim.L. & Criminology 1, 43 (1986).
Inceptually, I addressed the fundamental fairness issue. Though I did not cite it before, this Court has previously announced a rule on fundamental fairness which bears mentioning instanter. It is found in State v. Webb, 251 N.W.2d 687 (S.D.1977). Therein, we held that the harmless error rule (this issue briefed by both parties in the case before us) ought never be used to justify unfairness at trial. I struggle to find, in the majority opinion, a dissertation on “harmless error” and seem unable to pinpoint its mention. Instead, I find in the majority opinion an extensive rationale on “retrospective” application. Again, I turn to the briefs and can find no dissertation on retrospective application of evidentiary rulings in this case. We have held, in the past, that briefs should contain a concise statement of the legal issues, related argument and citation to authority supporting the argument. See, State v. Shull, 331 N.W.2d 284 (S.D.1983); Graham v. State, 328 N.W.2d 254 (S.D.1982). Therefore, rather than to discuss “harmless error” which is briefed, the majority decision zeros in on the legal point which the parties to this appeal have not discussed in depth. This is tremendously unfair to the petitioner. It is also unfair to a person serving on the appellate court who must then turn to researching, entirely de novo. It is also against one of our oldest principles of appellate review which is that we should confine ourselves to those issues established by the briefs and not sandbag the trial court, who never had an opportunity to rule on the matter. Counsel for the petitioner is likewise sandbagged but most importantly, the petitioner has his appellate props cut out from under him. Could it be that we are seeking, via the majority opinion, to reverse? This, also, we have condemned in the past. Lytle v. Morgan, 270 N.W.2d 359 (S.D.1978). Substantive law overpowers the decision of this Court today, as reflected by the extensive authority set forth in this dissent. It appears that the majority opinion would wash away this precedent and hold it for naught, under a “retrospective” thesis. Petitioner did not dig out of the books the many cases that I have cited in my dissent to support his position. Rather, this writer has. However, petitioner clearly had his foot in the door and did provide argument and some authority that this expert testimony was improperly admitted. If this Court’s legal position in McCafferty I was wrong because of its over-expansive language, we should not be loyal to a mistake. Justice is not served by justifying a court’s ruling that does violence to a fundamental rule of fairness.
Therefore, I would stand by South Dakota precedent, namely Logue, and with the near unanimity of the courts in this land thereby uphold Judge Hertz and reject the rationale of the majority opinion.