Psychological Experts in sexual assault cases

1. Psychological Experts in sexual assault cases

2. Refresher on Expert foundation • Barbosa foundational requirements: • Assist trier of fact as information beyond common knowledge; • Witness is qualified in relevant area; • Expert opinion is based on facts and data reasonably relied on by experts to form opinions; • Underlying theory is reliable; and • Theory applied to the facts reliably.

3. Experts to assist in credibility evaluation of complaining witness Expert cannot offer opinion on credibility of another witness. CW v. Montanino, 409 Mass. 500 (1991). • Ex: Testimony that complaining witness’s memory was reliable or unreliable as a result of the diagnosis/characteristic. • Save this for closing argument Expert does not cross the line when educating the jury about things that could affect credibility (e.g. psychological issues, like dissociative disorder)

4. THE COMMONWEALTH’S EXPERT • Commonwealth’s expert is offered to explain the phenomenon of delayed disclosure in child sexual assault cases • Expert will testify that it is common for children to delay in disclosing sexual assaults • Expert will testify to the common process of disclosure, in which children partially disclose, or test the waters, to see what the reaction is, and then further disclose or recant their disclosure

5. The commonwealth’s expert NEED FOR THIS TESTIMONY: “As the expert’s testimony demonstrates, the routine indicia of witness reliability—consistency, willingness to aid the prosecution, straightforward rendition of the facts—may, for good reason be lacking. As a result, jurors may impose standards of normalcy on child victim/witnesses who consistently respond in distinctly abnormal fashion.” CW v. Dockham, 405 Mass 618 (1989).

6. THE COMMONWEALTH’S EXPERT • Testimony of “general behavior characteristics” of sexually abused children OK for expert testimony because emotional and behavioral characteristics are beyond jury’s common knowledge. CW v. Federico, 425 M 844 (1997). • BUT can’t say whether alleged victim subject to sexual abuse • BUT can’t explicitly compare behavior of complainant to general child abuse victim behavior characteristics

7. THE COMMONWEALTH’S EXPERT • BUT can’t implicitly vouch for victim’s credibility by linking behavior characteristics of sexually abused children with virtually identical list of symptoms by complaining witness • “The vivid portrait of the child who does not disclose was, in essence, a portrait of Sam.” CW v. Deloney, 59 MAC 47 (2003). • Use of victim’s treating physician as expert witness is particularly dangerous. • SeeCW v. Quinn, 469 M 641 (2014): Treating therapist testified that when first started treating teenager, she was “very shut down”; then later testified “general” symptoms of a teenager sexually abused as a child included behavior that “a lot of times they’re very shut down.” • CW v. McCaffrey, 26 Mass. App. Ct. 583 (1994) (recommending that sexual abuse experts “have no connection with and make no references to the child victim or her family”)

8. THE COMMONWEALTH’S Expert • Use of hypothetical questions whose components mirror the underlying facts of the case creates impermissible vouching. CW v. Perkins, 39 Mass. App. Ct. 577 (1995). • Can’t provide profiles or testimony as to the typical attributes or characteristics of the perpetrators of sexual abuse • This can occur when experts testify to the dynamics that exist in households with child sexual abuse. SeeCW v Aspen, 85 Mass. App. Ct. 278 (2014), CW v Poitras, 55 Mass. App. Ct. 691 (2002)

9. The commonwealth’s expert Where’s the line between “vouching” and “educating?” • CW v. Richardson, 423 M 180 (1996): “The line between permissible and impermissible opinion testimony in child sexual abuse cases is not easily drawn.” This is a nuanced and complicated area on where this line falls, great chapter in the materials (Chapter 13) that goes through this in detail.

10. The commonwealth’s expert DELONEY IDENTIFIES THE CONUNDRUM: How relevant is too relevant? “We understand that the jury’s fact-finding role is jeopardized where the expert’s description of typical characteristics matches the characteristics of the specific victims upon whom the jury’s attention is focused. “But if there is not at least some relationship between the general characteristics and the actual case being tried, then there is presumably no justification for the admission of the ‘general’ expert testimony in the first place. “So the question remains how to distinguish in a given case between that expert testimony that fulfils a legitimate educational function helpful to the fact finder, and that expert testimony that unlawfully coaches the fact finder whether to accept or reject the testimony of particular witnesses.”

11. The commonwealth’s expert DELONEY tries to articulate the line: • OK: explaining to the jury that child abuse victims may behave in ways that to lay persons may seem illogical. • NOT OK: describing what a typical victim looks or acts like, and that suggests that child victims in a particular case have acted typically when compared to a “norm” of child victims

12. THE COMMONWEALTH’S EXPERT OTHER POTENTIAL EXPERT WITNESSES • Experts who testify regarding the processes of memory and how it is affected by repeated, traumatic events • Experts who testify regarding particular psychological diagnoses of the victim, e.g., PTSD or dissociative amnesia/recovered memory • Adult sexual assault cases—battered woman syndrome, CW v Goetzendanner, 42 Mass. App. Ct. 637 (1997)

13. Defense approach:The commonwealth’s expert DISCLOSURE • Commonwealth’s obligations under Rule 14: • (a)(1)(A)(iv): “Intended expert opinion evidence, other than evidence that pertains to the defendant's criminal responsibility and is subject to subdivision (b)(2). Such discovery shall include the identity, current curriculum vitae, and list of publications of each intended expert witness, and all reports prepared by the expert that pertain to the case.” • (a)(1)(A)(vii): “[S]tatements of persons the party intends to call as witnesses.”

14. Defense approach:The commonwealth’s expert DISCLOSURE • Consider filing a discovery motion to get more information • Consider requesting due dates for disclosures to give you sufficient time to assess

15. Defense approach:The commonwealth’s expert RESEARCH THE EXPERT • Google • Pull their publications, read what you can (executive summaries can be really helpful) • Find an intern to help • Use research resources at law schools, Westlaw/Lexis • Listserv inquiries for those who have transcripts or experience with particular expert

16. Defense approach:The commonwealth’s expert HIRE YOUR OWN EXPERT TO EVALUATE • An experienced expert in the same field will be instrumental in assisting you evaluate the Commonwealth’s expert • Emerging areas in research • Controversial areas • Weakness or lack of support for theory • Methodology or reliability issues for possible Daubert

17. Defense approach:THE COMMONWEALTH’S EXPERT DAUBERT • Shanley footnote: “[W]e have not grandfathered any particular theories or methods for all time, especially areas where knowledge is evolving, and new understanding may be expected as more studies and tests are concluded.” • Questionable reliability as difficult to empirically test

18. Defense approach:THE COMMONWEALTH’S EXPERT CROSS-EXAMINATION • Use your own expert to assist in preparation • Ex: Other explanations for “general characteristics” of sexually abused children? • Common areas: • Bias (only work for Commonwealth?) • Lack of reliability in process

19. THE DEFENSE EXPERT DEFENSE using the expert testimony takes a “constitutional dimension” when case rests on credibility of complaining witness: “Where a defendant seeks to admit expert testimony regarding the credibility of an alleged victim’s testimony, especially where, as here, the Commonwealth’s case rests almost entirely on the credibility of the alleged victim, a judge’s evidentiary decision assumes a constitutional dimension because our ‘Constitution requires that a defendant be permitted to introduce evidence which may materially affect the credibility of the [alleged] victim’s testimony.’ Commonwealth v. Ruffen, 399 Mass. 811, 816 (1987).” Commonwealth v. Polk, 462 Mass. 23, 33 (2012).

20. The defense expert Do you have a gap that you need a bridge for? • Polk, 462 M 23 (2012): Uses the Commonwealth’s mechanisms for dissociative amnesia and recovered memory in Shanley and presents the issue of memory and confabulation (replacement of a gap in a person's memory by a falsification that he or she believes to be true) to question the credibility • Ex: Gap of complaining witness who reports being blacked out and other witnesses (including defendant) who say her intoxication was not “extreme” • Ex: Ianello, 401 M 197 (1987): Defense tried to present expert to testify to literature that children rarely lie about sexual abuse except in two contexts, including one involving child custody battles. (Trial court exclusion ruling upheld).