In the criminal law, there are experts and then there are experts. While you will find no shortage of people willing to line up and testify for a hefty fee that things are just as you wish them to be, some have more credibility than others. Falling in the former camp are those who deal with scientific evidence, like DNA or ballistics (and even then…). Squarely in the latter camp are those who are nothing more than anecdotal data compilers who then come to conclusions about that data through biased lenses: the so-called “forensic child abuse experts”. Really, they’re no more than lay witnesses who state their observations in their particular “practice”. Most don’t conduct research of their own, or write peer reviewed scientific papers or have more than the most basic medical training, if that.

And yet they’re allowed to testify with impunity about their so called “expertise”, which surprisingly happens to exactly coincide with whatever behavior the complaining witness exhibits. Courts have bent over backwards to permit this “expert” testimony, going so far as to classify it as non-scientific, thus placing it squarely outside the realm of Daubert scrutiny. [In CT, see State v. Sorabella, which doesn't answer the question of whether Daubert scrutiny is still required for this anecdotal expert testimony pursuant to Kumho Tire.]

As noted before, these “experts” are at the ready to correlate the behavior of a complaining witness to someone who has been sexually abused. The complainant waited 10 years to disclose their abuse? Consistent with being abused. The complainant disclosed a week later? Consistent. The complainant gave an incomplete story with inconsistent and confusing details? Consistent. The complainant gave a detailed story with repeated consistency? Consistent. Complainant doesn’t act scared around the defendant? Consistent. Complainant is terrified of the defendant? Consistent.The complainant is left-handed? Consistent.

[Now this is not to say that all complainants who allege sexual abuse are lying or have not, in fact, been abused. I'm not saying anything of the sort. What I'm saying is that when any behavior is consistent with being sexually abused, such behavior in and of itself is a poor indicator of the truth or veracity of that complaint. You know, logic.]

These “experts” are also generally unable to acknowledge their bias or their steadfast views and beliefs. They’re magically unable to understand the simplest questions posed by defense counsel, while all it takes from the prosecutor is a perfunctory “go on” for them to deliver a lengthy rousing speech on their “area” of expertise. The bias is unmistakable, and yet.

So are there any limits on this “expert” testimony? Certainly courts have deemed them able to testify about general characteristics and unable to testify about whether the particular complainant was, in fact, abused. But what about the middle ground? Are they permitted to testify not only about the general characteristics but also about the specific behaviors exhibited by the particular complainant?

Recently released State v. Favoccia [PDF] attempts to answer this question. Perhaps the Court thinks that it has clarified the scope of the “expert” testimony, but the inescapable answer one is left with after reading the opinion is “fuck if I know”.

First, the general facts: defendant was charged with sexually abusing a teen. At trial, the State called a child sex abuse “expert” Lisa Melillo who first testified as to the general characteristics of complainants: accidental disclosure, delayed disclosure, general behavior around the perpetrator and how they would make themselves appear physically. I disagree that an “expert” should be allowed to testify to this, but fine. That’s another battle. Melillo was then asked, over objection, whether the complainant in the particular case accidentally disclosed or delayed disclosure and so on. Naturally, she answered in the affirmative.

The majority correctly rejects this testimony and deems it improper (yes, there were two dissents [both PDFs]). But it refers to the above testimony as indirect vouching for the credibility of the complainant. How stating that the complainant exhibits the characteristics of someone who is sexually abused is indirect vouching is beyond my feeble mind.

This is where it gets nutty. After engaging in a discussion of “sister states’” rulings, the court writes:

Reconciling the well reasoned sister state decisions with our own case law, we conclude that our concerns about indirect vouching expressed in State v. Grenier, supra, 257 Conn. 806, and State v. Iban C., supra, 275 Conn. 635–36,require us to limit expert testimony about the behavioral characteristics of child sexual assault victims admitted under State v. Spigarolo, supra, 210 Conn. 378–80, to that which is stated in general or hypothetical terms, and to preclude opinion testimony about whether the specific complainant has exhibited such behaviors. 39 Consistent with the syllogism noted by the Appellate Court; see State v. Favoccia, supra, 119 Conn. App. 19 n.9; 40 ‘‘there is no material distinction between express testimony that the child has been sexually abused, and implicit testimony that outlines the unreliable behavioral reactions found with sexually abused victims, followed by a list of the complainant’s own behavioral reactions, that points out that the two are consistent, and then invites the jury to add up the points to conclude that the child has been sexually abused.’’ People v. Peterson, supra, 450 Mich. 386 (Cavanagh, J., dissenting); accord Steward v. State, supra, 652 N.E.2d 499.

Umm. Do you understand what you’re saying, Supreme Court? How is this functionally different from that which you’ve permitted? An “expert” will testify about general characteristics of people who have been sexually abused. Then the complainant will testify about those very things. Is that duck not a duck? Oh sure, the court goes to pains to make it clear that the jury still has to decide whether the complainant actually exhibited those behaviors, like, you know, delayed disclosure. But that’s just bullshit. Because this is no less a way of creating that syllogism that the court pretends to reject and jurors are left with the impression that if someone who is abused does X and the complainant does X then the complainant was sexually abused.

The problem isn’t with the “expert” testifying about this particular complainant, it’s with the “expert” testifying at all. Given the fear the jurors have when it comes to sex cases and their reluctance to acquit, especially in cases involving minors, courts must be especially careful to not exacerbate the uneven-ness of the playing field. This decision does nothing to address that.

This duck is still quacking.

Image via.

[I don't think I need to say this, but just to be certain: everything expressed in this post is an opinion and that opinion is mine and not of the Office of the Public Defender.]