Commonwealth v. Allison

NIGRO, Justice,

concurring.

I concur in the result reached by the majority that the trial court abused its discretion in admitting a lay witness’s testimony regarding the condition of complainant’s hymen. The majority finds that the lay witness’s testimony is not admissible because it improperly tainted the jury as to the cause of the condition of complainant’s hymen, for which expert testimony is required. I write separately, however, because I believe the error goes beyond the lay witness’s semantics. I would hold that, due to the nature of this part of the body, a lay witness may not testify as to the condition of the hymen.

As a general rule, a lay witness may testify as to readily observable factual details he or she has noted regarding the apparent physical condition or appearance of another “the evaluation of which does not require a complex application of technical knowledge, [and so] can as easily be ascertained by the lay person as by a trained physician.” Commonwealth v. Green, 251 Pa.Super. 318, 323, 380 A.2d 798, 801 (1977). Testimony as to the appearance of the hymen, particularly in the case of alleged child sexual abuse, however, is not within the purview of a lay witness. The hymen is not readily observable and does require a complex application of technical knowledge only ascertainable by the trained physician.1 Med*11ical literature on child sexual abuse emphasizes that proper tension, timing, and position is necessary to adequately visualize the child’s genital area. Thus, an onlooker in the examining room, no matter where she is positioned, cannot even achieve a vantage point sufficient to observe the hymen.2 Ms. Harvey’s presence and observations in the examining room while the physician examined the genitalia of the complainant does not qualify her to testify as to the condition of complainant’s hymen.

The majority finds that the words Ms. Harvey used to describe what she says she saw in the examining room transform what would have been acceptable testimony from a lay witness into unacceptable causation testimony. The majority implies that, were words more descriptive of the tissue and less concerned with what was allegedly done to it chosen instead, the lay testimony would have been admissible. I disagree. Medical literature abounds which confirms that variations on the appearance of a normal intact hymen are so numerous that examination and determination of the condition of the hymen requires complex application of medical and anatomical knowledge by physicians. See, e.g., Henry Gray, Anatomy of the Human Body, p. 1319 (Lea & Febiger, 30th ed.1985). A lay person cannot “readily” identify or note the state of a hymen on observation. In fact, a physician not specifically trained in the anatomy of female genitalia, let alone pediatric female genitalia, should not be qualified as an expert witness in such cases. Thus, because of the nature of *12this part of the body and the fact that it is frequently misperceived, it is a matter for expert witness testimony only.

Merely because a lay witness can define an internal physical condition does not transform it into one which is readily observable.3 Ms. Harvey was not qualified to give what necessarily must be expert opinion testimony. It is on that basis that I find insufficient foundation for her testimony.

. See William F. Enos, MD, Theodore B. Conrath, BA, and James C. Beyer, MD, Forensic Evaluation of the Sexually Abused Child, 78 J. Amer. Acad. Pediatrics at 385-98 (1986). See also John McCann, MD, *11Joan Voris, MD and Mary Simon, MD, Genital Injuries resulting from Sexual Abuse: A Longitudinal Study, 80 J. Amer. Acad Pediatrics 307-317 (1993) (reporting that even physicians are handicapped by lack of information as to what constituted “normal” genital anatomy); The Boston Women's Health Book Collective, The New Our Bodies, Ourselves at 203 (1984); Marcia E. Herman-Giddens, BHS, PA, MPH, and Thomas E. Frothingham, MD, Prepubertal Female Genitalia: Examination for Evidence of Sexual Abuse, 80 J. Amer. Acad. Pediatrics at 203-208 (1987).

. See Herman-Giddens et al., supra note 1 (reporting that examination techniques for adequate visualization include, e.g., proper tension and timing with the exposure of the genitals while the child assumes a variety of specified positions).

. We note that Ms. Harvey actually mischaracterizes the hymen as "the thin layer of skin over the opening of the vagina.” The hymen is actually not "skin" but mucous membrane. This confusion is a common misunderstanding but simply underscores how easily members of a jury might accept such testimony as accurate.