concurring.
I concur with the majority opinion that the decision of the Court of Appeals requires reversal. As the majority clearly states, there is no doubt that the testimony of the art therapy “expert” in this case was both improper and prejudicial to appellant. This is true independently of the fact that Dr. Graves admittedly faded to adhere to the methodology she testified would be necessary in order for an art therapist to reach a reliable conclusion.
I write separately to emphasize the importance of a trial judge’s duty to scrupulously observe the familiar principles that set forth the standard against which a novel scientific discipline is to be measured before it is properly admissible as the subject of expert testimony.
This Court has long recognized the dictates of Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which place on the proponent the burden of clearly establishing that a discipline has gained in the scientific community “general acceptance in the particular field in which it belongs.” Id. at 1014.1 In Harris v. Commonwealth, we reiterated the absolute necessity of such proof, and categorically stated that this Court is unwilling to embrace the sole testimony of an offering party’s expert as conclusive of the matter. Id. at 681. In the present case the burden of establishing the validity and reliability (and therefore, the relevancy) of art therapy was in no way met.
The testimony of Dr. Graves was also highly prejudicial to appellant. By allowing Dr. Graves to state her opinion that R.S. was sexually abused by his father, the trial court not only improperly admitted expert testimony as to ultimate facts in issue, but in so doing placed the imprimatur of the court’s authority on her conclusions. Her testimony had the effect, therefore, of invading the exclusive province of the jury on the questions of whether sexual abuse had occurred, and moreover, whether the defendant was responsible for such alleged abuse. Because of the “aura of special reliability and trustworthiness” that surrounds expert testimony in the eyes of a jury, especially in a criminal context, the appellant here was substantially and unfairly disadvantaged. Hester v. Commonwealth, Ky., 734 S.W.2d 457 (1987) (quoting State v. Logue, 372 N.W.2d 151 (S.D.1985)).
REYNOLDS, J., joins this concurring opinion.
. See, e.g., See v. Commonwealth, Ky., 746 S.W.2d 401 (1988) (HLA genetic marker paternity test); Commonwealth v. Rose, Ky., 725 S.W.2d 588 (1987) (battered wife syndrome); Honeycutt v. Commonwealth, Ky., 408 S.W.2d 421 (1966) (radar); and Shelton v. Commonwealth, 280 Ky. 733, 134 S.W.2d 653 (1940) (fingerprints).