State v. Obeta Using Expert Witnesses to Counter Rape Myths March 30, 2012

1. State v. ObetaUsing Expert Witnesses to Counter Rape MythsMarch 30, 2012 The webinar will begin shortly. Please note that the CLE event code for this presentation is 165445. This course has been approved for one hour of credit. You will not be able to print the slides from your computer. If you would like a hard copy of the slides, you can download them from our website: www.mnallianceoncrime.org.

2. Presenters • Kaarin Long and Tom Ragatz • Ramsey County Attorney’s Office • Caroline Palmer • Minnesota Coalition Against Sexual Assault

3. Background and Case History • State v. Saldana 324 N.W.2d 227 (Minn.1982): Expert testimony on “rape trauma syndrome” not admissible to explain behavior of adult sexual assault victim. Led to moratorium in MN on expert testimony on confusing, counter-intuitive victim behavior in cases involving adult sexual assault victims.

4. Silenced experts and victims.

5. Background and Case History • Saldana & progeny • Not in line with national consensus. • Not in line with MN law on experts on victim behaviors/reactions in other situations.

6. Background and Case History • Law Review Article • Academic treatment of the issue • Large body of national research and resources • Latest developments in behavioral research • Develop expertise on case law, research and national context • Compare and contrast with MN law

7. Background and Case History • Long, Palmer, Thome (Gonsalves): A Distinction Without a Difference: Why the Minnesota Supreme Court Should Overrule its Precedent Precluding the Admission of Helpful Expert Testimony in Adult-Victim Sexual Assault Cases, 31 Hamline J. Pub. L & Pol’y 569 (August 2010). • Article supported amicus brief

8. Background and Case History • MNCASA Amicus Policy • http://www.mncasa.org/svji_legal_amicus.html

9. Background and Case History • State v. Nathan Ododo Obeta • Facts & Trial • delay of perhaps 90 minutes • not calling 911 • no resistance • no vaginal injury • little physical injury at all

10. Background and Case History • First Appeal • 2009 Minn. App. Unpub. LEXIS 966 (Minn. Ct. App. Aug. 25, 2009) • 2009 WL 2596102 (Minn. Ct. App. Aug. 25, 2009)

12. Background and Case History • In this case, the nurse and the detective were not asked their opinions about whether they believed M.B. was a sexual assault victim or whether they believed she was telling the truth. To that extent, the statements were not offered as true “expert” opinions and did not constitute “vouching” testimony.

13. Background and Case History • First Appeal continued . . . • But the nurse and the detective were allowed to testify that, based on their experience, most women who are assaulted “have significant fear and don’t fight back,” that “they just lay there and wait for it to be over with for fear of being injured more” and that “there’s a delay” in reporting in “the majority” of sexual assault cases, thus permitting the jury to infer that M.B. was a typical victim.

14. Background and Case History • First appeal continued . . . • In Saldana, 324 N.W.2d at 229, the jury heard “discussion of the stages a rape victim typically goes through . . . Essentially an explanation of “rape trauma syndrome.” Although the statements of the nurse and the detective in this case were not so extensive and did not specifically refer to a syndrome, the statements were indirectly offered to explain M.B.’s reactions and symptoms and to allow the jury to draw inferences that M.B. was a typical rape victim.

15. Background and Case History • First Appeal continued . . . • We therefore conclude that this testimony improperly invaded the province of the jury and the district court erred in allowing it over the continuing objections of defense counsel.

16. Background and Case History • First Appeal continued . . . • Finally, while some of the individual errors may be harmless we believe that the cumulative effect of these errors deprived appellant of a fair trial. “Cumulative error exists when the cumulative effect of the . . . errors and indiscretions, none of which might have been enough to tip the scales, operate to the defendant’s prejudice by producing a biased jury.” State v. Johnson, 441 N.W.2d 460, 466 (Minn. 1989) (quotation omitted).

17. Background and Case History • First Petition for Review • Amicus support by MNCASA • Minn. R. Civ. App. P. 129: Brief of an Amicus Curiae • Rule 129.01: Request for Leave to Participate • Upon prior notice to the parties, a brief of an amicus curiae may be filed with the leave of the appellate court.

18. Background and Case History • Pre-trial hearing  • Need more developed record on: • need for expert testimony in adult victim sexual assault cases • particular behaviors that confuse jurors • traumatic events & how people react

19. Honorable Edward S. Wilson

20. State’s offer of proof : expert testimony

21. Background and Case History • State’s offer of proof: • Dr. Patricia Frazier, Department of Psychology, University of Minnesota • career studying trauma and post-trauma reactions • sexual violence, combat, other events • did a “literature review” on the research involving • frozen fear • delayed reporting • lack of physical resistance during rape • return to normalization

22. Background and Case History • State’s offer of proof continued . . . • Clarified that “rape trauma syndrome” is no more descriptive than “nervous breakdown” • Provided academic information that public (jurors) need information to properly assess witness credibility given confusing reactions • Admitted copies of two recent studies into the record on the issue of juror myths and misunderstandings

23. Background and Case History • State’s offer of proof continued . . . • Jeanne Martin Ronayne, Director, Victim Services Program of Dodge, Fillmore, Olmsted Counties • 20+ years in both corrections and victim advocacy • Provided experienced view on: • general public (jurors’) lack of understanding of sexual assault victim behaviors • various responses of sexual assault victims • including delayed reports, frozen fear, lack of resistance, and return to normalization

24. Background and Case History • We told judge he had to deny our motion – set up appeal

25. Background and Case History • Petition for Accelerated Review • Minn. R. Civ. App. P. 118: Accelerated Review by the Supreme Court Prior to a Decision by the Court of Appeals

26. Ragatz prepares for battle.

29. Obeta Decision • 796 N.W.2d 282 (Minn. 2011) • In a criminal sexual conduct case in which the defendant argues that the sexual conduct was consensual, the district court has discretion to admit expert-opinion evidence on the typicality of delayed reporting, lack of physical injuries, and submissive conduct by sexual-assault victims when the district court concludes that such evidence is helpful to the jury and the opinion has foundational reliability.

30. Obeta Decision • The issue presented in this case is whether our decision in State v. Saldana, 324 N.W.2d 227 (Minn. 1982), operates as a blanket prohibition against the admission of expert testimony about typical rape-victim behaviors to rebut a defendant’s claim that the sexual conduct was consensual. Because we conclude Saldana has been interpreted too broadly, we reverse the district court.

31. Obeta Decision • Unlike the experts in Saldana, the State’s experts in this case will not testify about the purported stages of rape trauma syndrome or opine that M.B. suffers from the syndrome. Instead, the State attempted to offer evidence of typical rape-victim behaviors to dispel commonly-held rape myths that the jury might rely on in evaluating the evidence in the case.

32. Obeta Decision • Since our decision in Saldana, we have recognized that the experiences and reactions of victims of certain crimes are outside the common knowledge of the jury. In these cases, expert testimony on typical victim behavior may be helpful to assist the jury in evaluating the facts in the case.

33. Obeta Decision • We conclude that the mental and physical reactions of an adult sexual-assault victim may lie outside the common understanding of an average juror. • We reaffirm our decision in Saldana, however, that prohibits expert testimony about rape trauma syndrome, the credibility of the complainant, or the ultimate question of whether the complainant was sexually assaulted.

34. Obeta Decision • We express no opinion on whether the State’s proposed expert testimony is relevant, helpful to the jury, and has foundational reliability.

35. Obeta Decision • The parties appear to concede that expert testimony that educates jurors about typical rape-victim behaviors is not a novel scientific theory and thus not subject to Frye-Mack. We express no opinion on whether a Frye-Mack hearing is necessary in order to admit expert testimony on typical rape-victim behaviors.

36. Practical Tips/How to Use Obeta • Responding to three possible defense arguments: • Frye-Mack • Calling a defense expert • Waiting until credibility challenged

37. Practical Tips/How to Use Obeta • Under State v. MacLennan, expert testimony on witness behavior is “social science evidence” not subject to the Frye-Mack standard for the admission of novel scientific evidence. 702 N.W.2d 219, 231-33 (Minn. 2005).

38. Practical Tips/How to Use Obeta • MacLennan continued . . . • Instead, the question is whether evidence meets the “helpfulness” test under Minnesota Rule of Evidence 702. Id. Expert testimony is helpful if it helps “explain a phenomenon not within the understanding of an ordinary lay person.” Id. at 231, 234.

41. Practical Tips/How to Use Obeta • Create Reasonable Expectations • Jurors all watch TV and movies – they expect dramatic, physically injurious, life-and-death fighting – screaming, weaponry, and a stranger. Expert testimony can normalize the expectations so that real-life sexual assault can be understood. • “Neutralizing” unfair assumptions

42. Practical TipsHow to Use Obeta • Victim Behaviors for which Expert Testimony May Be Useful • Frozen Fear (“submissive”) • Lack of Injury, including vaginal • “Delay” in reporting • “Inappropriate” emotional affect while reporting or while testifying

43. Practical Tips/How to Use Obeta • Limits on Expert Testimony • See State v. Grecinger, 569 N.W.2d 189, 195-197 (Minn.1997) and • Long, Palmer, Thome article beginning p. 652 for in-depth discussion.

44. Practical Tips/How to Use Obeta • Limits on Expert Testimony • General to sexual assault victims, versus specific to this victim • Victim’s behavior in your case drives the focus of the expert testimony, but not “diagnosing” victim. Merely testifying that X behavior is normal, common in expert’s experience – neutralizing.

45. Practical Tips/How to Use Obeta • Limits on Expert Testimony •  General (not specific) testimony, avoids: • the debate: Does she or does she not have PTSD? • adverse psychological exams on victim • orders to release previous medical/psychological records • debating what is the event that caused the harm or her symptoms

46. Practical Tips/How to Use Obeta • Limits on Expert Testimony • No opinion as to ultimate fact • No opinion that victim suffers from PTSD • No vouching for credibility of victim • No vouching for credibility of her report – “she was in fact raped” by someone

47. Practical Tips/How to Use Obeta • Limits on Expert Testimony • Not a litmus test for victims of sexual assault (See Saldana) • Not offered to argue, “this victim acts just like a rape victim so therefore she was a rape victim” • Not a profile – not claiming this victim fits the profile of a rape victim, or this defendant does (not) fit the profile of a rapist

48. Practical Tips/How to Use Obeta • Other considerations • Rules of Evidence all still apply • Must be relevant (402); not overly confusing or prejudicial (403); have proper foundation (702)

49. Practical Tips/How to Use Obeta • How to get your judge to let you present expert testimony of this type. • Make the motion specific • Name and qualifications of the expert – attach resume or CV • Specify the fact issues you want to “neutralize” • Specify the testimony that will address them • Indicate you will keep expert testimony short and to the point

50. Practical Tips/How to Use Obeta • How to get your judge to let you present expert testimony of this type. • Specify what you will not be offering (vouching, etc) • Cite to resources supporting need for this type of expert testimony • Obeta case p. 291 – pre-trial testimony and empirical information about myths held by general public – great language