Child Sexual Assault Expert Lies about Conclusions of Study
We have written previously about the prolific use of “child sexual abuse experts” in child sexual assault cases. In particular, we have criticized the testimony such experts from the Harris County Children’s Assessment Center (“CAC”). While seldom providing any specific source, these experts testify that the professional “literature” and “studies” reveal child sexual abuse victims rarely ever make “false” allegations about such abuse. The experts confidently inform juries that the rate of false allegations in child sexual abuse cases is about “three percent.” While our Texas Court of Criminal Appeals has held that such generalized testimony does not constitute impermissible “bolstering” of a child sexual abuse victim’s testimony, criminal defense attorneys who have faced this kind of “expert” testimony in emotionally-charged child sexual assault cases understand clearly that such testimony does lend tremendous bolstering-like credibility to the child’s testimony.
As Judge Alex Kozinski of the Ninth Circuit Court of Appeals said in a dissenting child sexual assault opinion nine years ago, “the testimony of a victim—particularly a very young one—is a highly tenuous ground on which to rest a conviction. A jury might develop a reasonable doubt from the total absence of corroborating [expert] evidence. If the jury nonetheless convicts, we are bound by that determination.” 1/
Judge Kozinski was dissenting in the case of Emanuel Sistrunk who was convicted in an Oregon state court in 1985 for the forcible rape of an 11-year-old girl. He was given a 30-year sentence with fifteen of those years being a statutory minimum. The child victim in the Sistrunk case, as in most child sexual abuse cases, knew her attacker because, according to her, he had sexually abused her once before. The child provided a rather detailed account of the events leading up to and subsequent to the attack.
State prosecutors called an “expert” witness named Dr. Jan Bays who, as a three-judge Ninth Circuit panel concluded, “testified falsely.” 2/ The appeals court added that Dr. Bays testified about “a scientific study [which] proved that ‘it is very, very rare that a child lies about sex abuse’ and that the chance of such a lie is only with teenagers, ‘never with the younger children.’ She testified the study established that ‘if the child comes forward with the story, themselves [sic], then it is the truth. If the child is younger than a teenager, then it is the truth.’” 3/
The study cited by Dr. Bays was conducted by David P.H. Jones and J. Melbourne McGraw. Titled “Reliable and Fictitious Accounts of Sexual Abuse in Children,” the study was published in March 1987 in 2 Journal of Interpersonal Violence. 4/ It was a two-phase study. Phase 1 reviewed 576 reports of child sexual abuse made to the Denver Department of Social Services in 1983. Jones and McGraw examined both the founded and unfounded reports of case workers. The researchers drew the following conclusions:
- 70 percent of the reports proved to be accurate.
- 8 percent proved to be fictitious.
The researchers then conducted Phase 2 of their study, examining a sample of fictitious reports of child abuse. This phase identified 21 fictitious cases of child abuse identified at the Kempe National Center between 1983 and 1985. During that two-year period, there were 696 “reliable” cases of child abuse. From the fictitious accounts identified in Phase 1, a total of 8 were made by five children—four of whom were “disturbed female teenagers who had been sexually victimized by an adult in the past” while “the fifth child was a 4 year old and produced an account with his mother that appeared fictitious.” Of the 21 fictitious reports identified in Phase 2, five were made by girls between ages of 3 and nine, which significantly contradicted Dr. Bays’ testimony. 5/ Phase 2 revealed certain “clinical features” marked the 21 fictitious reports:
- Lack of emotion and absence of coercion and threat in the child’s account;
- Absence of details; and
- The existence of post-traumatic stress disorder cause by some previous experience. 6/
The Jones/McGraw article made the following general conclusions:
- There was no “absolutely reliable test” to determine the accuracy or inaccuracy of those reports determined to be founded.
- “The definition of fictitious used in this study was that [social work] professionals did not consider that the abuse had occurred. This is subject to error.” 7/
Nonetheless, Dr. Bays extrapolated on these ambiguous findings to deliberately mislead Sistrunk’s jury by saying “children rarely lie” when the study expressly concluded that “children of all ages made false allegations” and the study itself “suggest[ed] that the results be used as a basis for further study and not as a definitive basis for proving that a case is or is not true.” 8/ While an en banc panel of the Ninth Circuit would subsequently reject the three-judge panel’s conclusion that Dr. Bays had lied under oath, the full court nonetheless found she had misrepresented the findings of the study. 9/
We do not present the Dr. Bays episode as evidence that child sexual abuse experts testify falsely in child sexual abuses cases, but rather to illustrate that these “experts” often testify with a personal agenda or bias. For example, Dr. Bays used her “expert” experience in the Sistrunk case to co-author an article in a law review which suggested that “clinical experience and systematic studies confirm that deliberately false allegations of sexual abuse are infrequent.” 10/ Such articles enhance these experts’ professional credentials in the child sexual abuse arena, making them even more compelling candidates to testify as prosecution “experts.” Judge Kozinski, in some detail, explained the “pitfalls” of the testimony of these experts:
“Emanuel Sistrunk has served almost fifteen years for a crime he probably did not commit. Sistrunk was convicted of raping Jane Roe, an eleven-year-old-girl. Roe testified that the crime occurred in a garage owned by a third party unconnected to either Sistrunk or herself. No one else saw Sistrunk with the victim, or anywhere near the garage on the day of the crime. The prosecutors presented no semen, blood, hair, DNA or fibers connecting Sistrunk to the crime. A trench coat allegedly worn by the perpetrator, and used by him during the crime, was never recovered. The prosecutor’s entire case hinged on Roe’s testimony and her identification of Sistrunk as the rapist.
“The testimony of a victim—particularly a very young one—is a highly tenuous ground on which to rest a conviction. A jury might develop a reasonable doubt from the total absence of corroborating evidence. If the jury nevertheless convicts, we are bound by that determination. However, when the state’s case is so heavily dependent on a single witness, errors affecting the witness’s credibility take on enormous significance. Here, there is strong reason to believe that the jury’s decision to believe Roe beyond a reasonable doubt was heavily influenced by the false testimony of a prosecution expert.
“The expert witness issue is clear-cut and dispositive. Admission of the expert testimony was highly questionable to begin with. The expert had nothing to say about the crime, nor about any connection Sistrunk might have had to it. Her only function was to lend credence to Roe’s testimony. To that end, Dr. Jan Bays testified about a supposedly scientific study she had conducted which—she claimed—showed that ‘it is very, very rare that a child lies about sex abuse’ and ‘never with the younger children.’ Supplanting the jury’s fact-finding responsibilities by anointing the prosecution’s star witness with the aura of scientific infallibility is highly suspect.
“What is new is the discovery that the expert lied. As the majority bluntly puts it, the ‘study’ in question ‘does not say what Dr. Bays testified that it said, nor is it a scientific study establishing anything at all.’ In other words, the expert fabricated the supposedly scientific proof on which she relied in persuading the jury that the prosecution’s witness was being truthful. We have here not merely improper vouching, not merely supplanting of the jury by an expert, but doing so by means of perjury. Because the prosecution’s case against Sistrunk depended on having the jury believe that the complaining witness was both accurate and truthful, I cannot agree that Dr. Bays’s testimony was merely ‘icing on the cake.’ Jurors seldom have experience with sexually abused children. If an expert testifies, based on an allegedly scientific study, that such children never lie, jurors would be hard put to reach the opposite conclusion.” 11/
We completely concur with Judge Kozinski’s devastating observations. When testifying for the Harris County District Attorney’s Office, experts from the Children’s Assessment Center routinely tell juries about “studies” and “literature” which support their “opinions” that children “rarely, if ever” lie about sexual abuse. The Emanuel Sistrunk case illustrates, especially Judge Kozinski’s dissent, why criminal defense attorneys must hold the “experts” accountable by making them identify the studies, when and where they were published, and the methodology utilized by the researchers to support their conclusions. Allowing CAC-type experts to simply tell juries about unidentified “studies” and “literature” that say children rarely ever lie about sexual abuse is unacceptable.
Once the Harris County District Attorney identifies a child sexual abuse expert as one of its witnesses, and particularly if that witness is associated with the CAC who has testified in the past about unidentified “studies” and “literature” supporting their opinions, criminal defense attorneys should file a specific motion for discovery—a “standing discovery order” notwithstanding—attempting to compel the prosecution to identify any studies, reports, or literature its “experts” may cite in support of their opinions before the jury. If that is unsuccessful, a motion in limine barring references to such testimony, until a hearing out side the presence of the jury regarding their admissibility as expert testimony, should be filed and ruled on.
Because of episodes like Dr. Jan Bays, and a legion of other prosecution experts, identified as giving false or misleading testimony, criminal defense attorneys now have a responsibility to “fact-check” these so-called “experts” before they take the witness stand and poison the jury with their “scientific-sounding” testimony.
This “fact-checking” process is necessary in child sexual abuse cases because other researchers have found that “false accusations of sexual abuse are also increasing although there is disagreement as to the frequency and nature of false claims. However, many professionals believe that false accusations have become a serious problem in vindictive and angry divorce and custody battles. Consequently, such false accusations have received much publicity and there have been articles about this in the literature.” 12/
Allowing “expert” testimony to go to the jury unchallenged is no longer acceptable. These experts have presented too much false and misleading testimony to Texas juries to grant them carte blanche to tell juries about “studies” and “literature” unchallenged. These experts must be held accountable by fact-checking investigation before they ever testify. The very integrity of our jury system’s commitment to reasonable doubt demands as much.
1/ Sistrunk v. Armenakis, 271 F.3d 1174 (9th Cir. 2001).
2/ Id., at 1177.
5/ Sistrunk v. Armenakis, 292 F.3d 669, 674 (9th Cir. 2002) [En Banc]
6/ 271 F.3d at 1177
9/ 292 F.3d at 674
10/ Meyers, Bays, et al., Expert Testimony in Child Sexual Abuse Litigation, 68 Nebraska Law Review, 1, 115 (1989).
11/ Id., 271 F.3d at 1182
12/ Wakefield, Hollida & Underwager, Ralph, Personality Characteristics of Parents Making False Accusations of Sexual Abuse in Custody Disputes, IPT Journal, Vol. 2 (1990) http://www.ipt-forensics.com/journal/volume2/j2_3_1.htm#refs
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair