Rule 702 Expert Testimony v. Bolstering, Child Sexual Abuse Accommodation Syndrome
By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair
In 1983, Roland Summit in a published paper coined the phrase “Child Sexual Abuse Accommodation Syndrome” (CSAAS). See: 7 Child Abuse and Neglect 177 (1983).Summit’s syndrome set forth five specific characteristics children may exhibit following sexual abuse. Summit intended that CSAAS be utilized by law enforcement and child protective services investigators, as well as clinicians, to explain the coping behavior of children sexually abused by adults. He did not intend for CSAAS to be used, as it has been in some states, as a diagnostic tool to tell juries in criminal trials that sexual abuse has in fact occurred. The five CSAAS characteristics are listed below:
Secrecy – The child is told by adult that the sexual abuse must be kept secret. Secrecy is generally accomplished through threats such as “daddy will go to jail;” “momma will not believe you and will get angry;” or “I’ll kill you and the rest of the family.” Secrecy can also be achieved through positive reinforcement such as “this is our special secret”; or “you must not tell anyone because they won’t understand.”
Helplessness – Sexual abuse instills fear and powerlessness in a child. They feel helpless to stop the abuse. The abuse usually comes from a power figure (a father, uncle, or priest) that make the child feel too vulnerable to stop it.
Accommodation – The demand for secrecy by the abuser and the child’s sense of helplessness can make the child feel trapped in a hopeless situation. She/he, therefore, may create a need to accommodate the abuse which can lead to psychological torment that the victim is somehow the “bad person” who created the abuse.
Delayed Disclosure – More commonly known in the Texas legal system as “delayed outcry,” the child may not disclose the sexual abuse for years because of fear of personal harm, or because of the perceived harm it could cause her/his family, or because of fear that no one will believe her/him. This may cause the child to act out in rage or anger because she/he feels that no one in authority has protected her/him. This can delay the disclosure of abuse for years until there is a period of personal crises in the child’s life or crises within the family unit.
Retraction – Disclosure inevitably creates turmoil. The child may be subjected to disbelief by the outside world, including law enforcement. Shame and humiliation become inevitable psychological byproducts of the disclosure. “The world knows,” the child thinks. And when the “world” does not truly support the child’s disclosure, she/her may retract the sexual abuse allegation.
The Texas Court of Criminal Appeals recognized Summit’s CSAAS in 1990 in Duckett v. State, 797 S.W.2d 906 (Tex.Crim.App. 1990), disapproved on other grounds by Cohn v. State, 849 S.W.2d 817, 819 (Tex.Crim.App. 1993). Duckett was convicted of indecency with a child and sentenced to 80 years in prison based on two prior felony convictions. Id., at 907. The Fort Worth Court of Appeals in 1988 had reversed Duckett’s conviction on grounds that the trial court had improperly permitted an “expert witness” employed by the Department of Human Services to testify about the “dynamics of intrafamily child sexual abuse.” Id. The court of appeals, in an unpublished decision, concluded that the opinions of the “expert” were not admissible under Rule 702 of the Texas Rules of Evidence and the trial court had abused its discretion by allowing the testimony. Id. The Court of Criminal Appeals granted the State’s petition for discretionary review to determine whether the trial court had in fact abused its discretion by admitting the testimony. Id.
The victim in the Duckett case was the defendant’s six and one-half year old niece who testified the sexual abuse first began in the family bathroom when her uncle entered, removed her clothes, and rubbed her genitalia with his hands and penis. Duckett’s defense attorney was able to establish on cross examination serious discrepancies in the child’s testimony, including the fact that the child had named two other family member as having committed the abuse. The court of criminal appeals, however, concluded that the victim’s trial testimony was essentially “clear in naming [Duckett] as the perpetrator, but she did have some difficulty in remembering certain facts or events about which she had made statements during the earlier video session.” Id.
The victim’s mother testified that she took the child to a doctor after the child complained of itching and irritation of the vagina. The doctor testified at trial that his general and pediatric pelvic examination revealed nothing out of the ordinary and that the child had not mentioned to him anything about being sexually molested. Id., at 908.
To counter the potentially damaging impeachment testimony from the doctor, “the State called John Brogden, a certified social worker and advanced clinical practitioner who holds a certificate as an instructor with the Texas Commission on Law Enforcement Officer’s Standards and Education in the area of child sexual abuse investigation.
Brogden testified that children who are sexually abused almost always go through certain phases over the period of time of abuse and in its aftermath. After discussing each phase or ‘element’, Brogden then proceeded to apply these abstract elements to the particulars of the instant case. Establishing that the expert had heard the various witnesses testify, had read the police reports and viewed the videotaped interview taken with the complainant, Brogden was asked whether he ‘found any of these elements in this case?’
Over defense objection that allowing such testimony would constitute an invasion of the province of the jury, bolstering the State’s witness and was both prejudicial and immaterial to the case, Brogden was permitted to opine he found every element existing in the case. Questions thereafter focused first on the individual element or phase in terms of manifestations in general, and second, specific questions regarding manifestations illustrating the particular phase in the case at bar.
He was asked to give his opinion why abuse victims in general would fail to report improper sexual advances, and testified children often indirectly report abuse by way of complaining of physical ailments in the area of the genitalia. The State then questioned Brogden specifically as to whether he had ‘seen some manifestation of that (indirect report) in this case?’ Again overruling the same objection as made previously by the defense, the trial court allowed the witness to respond in the affirmative and to further specify S.S.’s complaints of itching and irritation as evidence demonstrating her manifestation of this element or phase.
Element by element and over objection, the State was allowed to question Brogden first in general terms and then solicit his opinion how each element was manifested by specific facts in the instant case. In particular, Brogden was questioned why the complainant would change her recollection of the events between the time of the offense and trial, and whether it was unusual not to discover some physical manifestation of trauma around the genital area. He responded to the first question by stating that forgetfulness is part of the repression phase. To the latter query, Brogden cited certain statistical studies showing in over 80% of child molestation cases, there is no physical evidence of assault. In sum, the witness was permitted not only to identify the six elements or phases but also was allowed to testify how specific facts fit within each abstract element. He was not asked and did not volunteer an opinion whether the complainant was in fact telling the truth. He did explain why children in general would act in a manner consistent with that of S.S.” Id., at 908-09.
The Duckett court pointed out that the “elements” discussed by Brogden were Summit’s five characteristics in CSAAS. The following states, like Duckett, have recognized Summit’s CSAAS:
New York – People v. Grady, 506 N.Y.S.2d 922 (N.Y.Sup.Ct. 1986).
Nevada – Smith v. State, 688 P.2d 326 (Nev. 1984).
Oregon – State v. Middleton, 657 P.2d 1215 (Or. 1982).
Minnesota – State v. Myers, 359 N.W.2d 604 (Minn. 1984).
California – People v. Roscoe, 215 Cal.Reptr. 45 (Cal.App. 5th Dist-1985).
Kansas – State v. Reser, 767 P.2d 1277 (Kan. 1989).
Wyoming – Stephens v. State, 774 P.2d 60 (Wyo. 1989).
Montana – State v. Geyman, 729 P.2d 475 (Mont. 1986).
The following states allow Summit-inspired expert testimony but only for rehabilitative purposes of state witnesses and not as direct evidence attesting to the veracity of a particular witness:
Washington – State v. Madison, 770 P.2d 662 (Wash. 1989).
Maine – State v. Black, 537 A.2d 1154 (Me. 1988).
Alaska – Rodriquez v. State, 741 P.2d 1200 (Alaska Ct.App. 1987).
Delaware – Wheat v. State, 527 A.2d 269 (Del. 1987).
Iowa – State v. Myers, 382 N.W.2d 91 (Iowa 1986).
Arizona – State v. Moran, 728 P.2d 248 (Ariz. 1986).
Pennsylvania – Commonwealth v. Baldwin, 502 A.2d 253 (Pa. 1985).
Colorado – People v. Gaffney, 769 P.2d 1081 (Colo. 1989).
Florida – Tingle v. State, 536 So.2d 202 (Fla. 1988).
Utah – State v. Eldredge, 773 P.2d 29 (Utah 1989).
The Duckett court ruled that Summit-inspired testimony is admissible in Texas for limited purposes under Rule 702 which provides:
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence and to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
The Duckett court reaffirmed its longstanding rule that the decision of whether expert testimony should be admitted is left to the sound discretion of the trial court. Id., at 910.
The Duckett court observed that while most courts have rejected prosecutorial efforts to have Summit-inspired expert testimony sanctified as “substantive evidence” of abuse, these same courts have been receptive to the use of such testimony to “rehabilitate a child victim’s credibility.” Id., at 912. The Duckett court elected to follow the rehabilitation approach, citing with approval a group of commentators who stated:
“’The accommodation syndrome has a place in the courtroom. The syndrome helps explain why many sexually abused children recant allegations of abuse and deny that anything occurred. If use of the syndrome is confined to these rehabilitative functions, the confusion clears, and the accommodation syndrome serves a useful forensic function’.” Id., at 913. See also: Meyers, et al., Expert Testimony in Child Sexual Abuse Litigation, 68 Neb.L.Rev. 1, 68 (1989).
Against this cautionary backdrop, the Duckett court found the trial court had not abused its discretion by permitting Brogden to testify under Rule 702:
“In the case at bar, witness Brogden’s testimony consisted of statements which (1) provided the jury with information concerning the six elements or phases of what the Court of Appeals termed the so-called ‘Child Sexual Abuse Syndrome’, and (2) applied those six elements to the facts of the case. There is no doubt that the State indirectly bolstered the credibility of the complaining witness. Yet our review of the pertinent portions of the record discloses the prosecution, except for the one time noted, did not attempt to cross the line and have its expert give a direct opinion on the truthfulness of the child. In an in camera hearing prior to Brogden taking the stand before the jury, the trial judge was careful to define the parameters of permissible questioning, warning both witness and prosecution to stay within the abstract generalities of the elements or phases of intrafamily child sexual abuse and to apply those elements in abstract terms showing the behavior of the child was consistent with the elements. These instructions were followed. S.S. testified that she had been sexually abused by appellant. Her testimony at trial differed from earlier statements. The defense was able to point out inconsistencies, changed testimony, denial or non-disclosure, and confusion on the part of the complainant to such a degree that a question would naturally arise as to the reason for her superficially bizarre or illogical behavior. Explaining this seeming illogical behavior by identifying its emotional antecedents could help the jury better assess the witness’ credibility. Given the information was of such specialized nature which is not normally within the common understanding of a lay jury, in that it was the nature of explanation why S.S.’s behavior was not of such bizarre or illogical nature under the circumstances as generally known in comparison with those characteristics of known abused children, and even though the problem may be one of increasing social awareness, we find it was of a type which could have assisted the trier of fact in determining the fact questions raised by the conflicting testimony of the complainant and her mother …” Id., at 915-16 [Internal citations omitted].
On appeal Duckett had not argued that bizarre and illogical behavior in a child subjected to familial sexual abuse would not occur or that the State’s expert witness was not qualified to testify about such behavior. He simply argued that the jury was capable of deciding whether his niece’s behavior was consistent with sexual abuse without Brogden’s CSAAS explanation. The court of criminal appeals brushed aside this argument, stating:
“ … we have no bright-line standard separating issues within the comprehension of the jurors from those that are not. When the evidence is of such content as to be classified as ‘specialized’ within a particular discipline, a presumption may be drawn that the evidence is not of common experience. The admission of expert testimony is within the discretion of the trial court. Therefore, if a qualified expert offers to give testimony on whether the reaction of one child is similar to the reaction of most victims of familial child abuse, and if believed this would assist the jury in deciding whether an assault occurred, it may be admitted and the trial judge does not abuse his or her discretion in doing so unless the evidence otherwise fails to pass the test for admissibility.” Id., at 971.
After finding that Brogden’s testimony was admissible under Rule 702, the Duckett court turned its attention to the issue of whether Brogden’s testimony had improperly bolstered the State’s case. The court reaffirmed the well-settled evidentiary rule in Texas that the State may not bolster or support its own witnesses unless they have been impeached on cross-examination. Id., at 918 [citing Farris v. State, 643 S.W.2d 694 (Tex. Crim. App. 1982]. The Duckett court pointed out that the defense had already brought into issue the credibility of the victim and her mother before Brogden testified. The defense had accomplished this impeachment task through its strategy to transfer the blame for the abuse to someone else. Id. The appeals court then drew a fine line clarification between improper direct and permissible indirect bolstering of State witnesses:
“The material matters or issues upon which the complainant was impeached were directly related to witness Brogden’s testimony. For that reason, we hold the trial court did not abuse its discretion in admitting the expert witness’ rehabilitative testimony over a defense objection of bolstering. The Court of Appeals incorrectly focused upon the indirect result of the testimony – bolstering of the complainant’s credibility – without reference to the context in which the testimony was allowed … the fact that an expert witness’ testimony may have the indirect result of bolstering another witness’ credibility is not the test for admission under Rule 702 but may be relevant to determination of admissibility under the general rules of relevancy and probative value of evidence … Here, although Brogden’s testimony did have the effect of bolstering the child testimony, such testimony would, if otherwise proper, be admissible to rebut the impeachment of a child in the majority of jurisdictions passing on the question.
“In conclusion, we have today held the trial court properly admitted Brogden’s testimony under Rule 702. The content of the knowledge at issue concerns various so called elements or phases of what may be termed ‘Child Sexual Abuse Syndrome’. Brogden was shown to be an expert in the field of child sexual abuse, having worked or supervised some twelve to fifteen hundred cases and observed hundreds of children testify. Although he did not personally examine the complainant, he was present in the courtroom and heard the testimony of the principal witnesses. The defense having effectively impeached the complainant’s credibility as a witness, the State was allowed, if otherwise admissible, to solicit the expert information and opinion of Brogden to help the jury understand why S.S. changed her testimony and appeared confused. In this regard, Brogden provided information on a topic not of general knowledge to the average layperson. Child abuse, especially of the sexual kind, is not a new problem to society. We have learned, much to our dismay, the problem is larger than ever thought, largely because child sexual abuse was in the past a hidden crime – a taboo topic of conversation. But it cannot be said that each of us understands all facets of the problem, including why a child who has been abused will act in a certain manner which to the layman may appear unreasonable or inconsistent with a claim of abuse. Brogden’s information was both relevant and admissible under the rules of evidence, because it was specialized information of value in assisting the jury to understand the evidence regarding the complainant’s conduct.” Id., at 920 (Emphasis Original). See also: Escamilla v. State, 2006 Tex. App. LEXIS 762 (Jan. 31, 2006); Dennis v. State, 178 S.W.3d 171 (Tex. App.-Houston [1st Dist.] 2005);
Hernandez v. State, 53 S.W.3d 742 (Tex.App.-Houston [1st Dist.] 2001, pet. ref’d) [both cases endorsing CSAAS testimony].
We close this blog with the following caveat: a defendant must timely and specifically object to any claim of improper expert witness testimony. See: Acree v. State, 2008 Tex.App. LEXIS 6391 (Aug. 22, 2008). As the Acree court aptly pointed out:
“Acree argues that Burress was improperly allowed to testify about her opinion as to whether the child was telling the truth about the alleged assault. Citing Duckett v. State, Acree alleges such testimony was admitted in error. Burress was asked, ‘After reviewing all of the materials in this case and talking to [S.O.], do you have an opinion as to whether or not she is the victim of a sexual offense?’ Burress stated that the question was for the trier of fact, but she had not seen anything to cause her to question or disbelieve the initial outcry and information given to the nurse. No objection was made to this question or the testimony. The only objection cited by Acree was made several pages earlier in the record when Burress was asked what the child ultimately told her. Since no objection was made to this evidence, any objection to the testimony was forfeited and we cannot consider it on appeal.” Id., at LEXIS 11-12.
The Court of Appeals in Cloud v. State further underscored the need for a specific objection to expert testimony. See: 2007 Tex. App. LEXIS 3299 (Tex. App.-Houston [1st Dist.] 2007). Cloud argued to the appeals court that the prosecution had engaged in prosecutorial misconduct when it asked “blatantly improper questions, the answer to which suggest that the complainant was truthful and the answer to which would expressly indicate that the complainant was truthful.” Id., at LEXIS 6. The alleged misconduct occurred during the questioning of Detective J. Fitzgerald assigned to the Children’s Assessment Center as a child abuse investigator:
PROSECUTOR: What happens—what do you do if you do not believe the child?
FITZGERALD: If we get one I don’t believe the child, I inform the district attorney that’s working the case, we take the case and review then with, my feelings this is not a valid case [sic].
PROSECUTOR: Would you testify on a case where you did not believe the child?
DEFENSE COUNSEL: Objection. That calls for an improper response, your honor.
THE COURT: Sustained.
DEFENSE COUNSEL: Instruction to disregard that, your honor.
THE COURT: Don’t consider that question. You may continue.
See: LEXIS at 7.
The Cloud court agreed that the questions posed to Fitzgerald had been an improper attempt by the prosecution to bolster the victim’s testimony.
“However, defense counsel did not object to the prosecutor’s first question about what Fitzgerald would do if he did not believe a child complainant, nor did he object to Fitzgerald’s answer that he would talk to the prosecutor and tell him that he felt the case was not ‘valid.’ Thus, appellant has failed to preserve error on this portion of the ‘bolstering’ evidence.” Id., at LEXIS 8-9.
The Cloud court then turned its attention to the second question—“Would you testify on a case where you did not believe the child?”—where defense made a timely objection that was sustained by the trial court.
“When matters are injected into the trial that have no perceived relevance and are potentially prejudicial to the appellant, appellate courts presume that an instruction to disregard the evidence will be obeyed by then the jury. The exception to the above statement occurs when it appears that the matter injected is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds.
“Appellant argues that the motion to disregard in this case was insufficient to cure the error caused by the prosecutor’s misconduct in asking the bolstering questions. However, to preserve error for prosecutorial misconduct, the appellant must (1) make a timely and specific objection; (2) request instruction to disregard the matter improperly placed before the jury; and (3) move for mistrial. Even if an error is such that it cannot be cured by an instruction, appellant is required to object and request a mistrial on the grounds of prosecutorial misconduct. Appellant did not request a mistrial. As such, his point of error is waived.” Id., at LEXIS 10.
Acree and Cloud are instructive on the issue that defense counsel must listen to Summit-inspired expert testimony very carefully and be prepared to make both a timely and specific objection when he/she feels that the prosecutor has crossed the evidentiary line from indirect bolstering of a victim’s credibility as approved in Duckett to direct bolstering of a victim’s credibility as condemned in Cloud. More importantly, defense counsel must be prepared to distinguish at a moment’s notice the difference between an inadvertent and a deliberate crossing of that evidentiary line by the prosecutor so that he/she can make a specific objection for prosecutorial misconduct and timely request as mistrial because of it.
The use of Child Sexual Abuse Accommodation Syndrome by prosecutors is extremely dangerous and usually intentionally bolstering. It is disturbing that the CSAAS factors are premised upon the belief that a child never lies or fabricates allegations of sexual assault. In fact, the state’s experts will often also testify that kids just don’t lie about sexual assault. Using CSAAS, if a child lies about parts of their story, they are telling the truth about the sexual abuse and should be believed. If a child delays outcry for years, they are to be believed. If a child tells immediately, they also are to be believed. If a child later recants and admits lying about the abuse, their first allegations are to be believed. Bottom line, all allegations of sexual abuse by children are to be believed, regardless of the child’s history of lying or fabrication, regardless of inconsistent statements, regardless of recanting, regardless of admissions that the allegations are not true, regardless of contradictory evidence etc. When experts and prosecutors go into a case with this mind set, fertile ground for wrongful convictions and imprisonment have been sowed, truth be damned.
By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair