We decide whether a criminal defendant charged with committing lewd and lascivious acts upon a child may introduce a psychologist's opinion testimony, based upon an interview and professional interpretation of standardized written personality tests, that defendant displays no signs of "deviance" or "abnormality." Under existing law and the facts of this case, the evidence bears on a defense claim that the charged acts did not occur. Professional testimony regarding the absence of sexual deviance also is authorized under statutory rules permitting a criminal defendant to introduce evidence of his "good character."
Of course, such evidence must satisfy traditional limits governing the admission of expert testimony — a qualified witness, testifying on an appropriate "subject," and relying upon professionally reasonable "matter." We conclude that a qualified psychologist's diagnosis does not offend such standards solely because it is grounded upon interviews and standardized tests. To the extent the proffered testimony in a particular case is cumulative or unduly prejudicial, the trial court has broad discretion to limit or exclude it.
However, we see no reason to subject this testimony, or the matter upon which it is based, to the special restrictions governing admission of new,
Here, the trial court committed prejudicial error in excluding, on Kelly/Frye grounds, expert testimony proffered by the two defendants whose convictions are under review. Insofar as the Court of Appeal's decision upholds these convictions, it will be reversed.
Four defendants — John Stoll, Grant Self, Margie Grafton, and Timothy Palomo — were jointly tried and convicted in the aggregate of thirty-six counts of lewd and lascivious conduct against a total of seven young boys. (Pen. Code, § 288, subd. (a).) The crimes, which encompassed a wide variety of touching made criminal under this section, occurred in Bakersfield, California, between June 1983 and June 1984.
Evidence adduced at trial in late 1984 and early 1985, indicated that defendants sometimes acted together and sometimes acted apart in committing the crimes. Since we granted review only as to defendants Grafton and Palomo, we will focus on evidence offered by and against them.
A. Evidence Admitted at Trial
Defendants Grafton and Palomo were romantically involved and lived together during the pertinent time period. They socialized with the third defendant — Stoll — and his girlfriend, nondefendant Rochelle. Stoll lived with Rochelle in June and July 1983, and then moved into his own house on Center Street. Beginning in March 1984, the fourth defendant — Self — rented a small house behind the swimming pool on Stoll's property. Self knew the other defendants.
For context, we note that 17 of the 36 counts involved Stoll, who was found to have committed most of them without codefendant participation. Chris testified that he was twice sodomized by Stoll while the latter was living with Chris's mother, Rochelle. J. testified that he was sodomized and/or orally copulated by his father, Stoll, on six different occasions at the Center Street house. Testimony by Grafton's sons, A. and D., also implicated Stoll in a total of three acts of sodomy against these two boys at the same address. Stoll further was found guilty of two separate sexual encounters based upon testimony by neighbor children, Victor (fondling, oral copulation, and sodomy) and Eddie (fondling). (No other defendant was charged with crimes against Eddie.)
We also note that Self was convicted of 10 counts, most of which he was found to have committed on his own. Two convictions were based upon testimony by J. and D., respectively, that Self performed acts of sodomy and oral copulation with them in Stoll's bedroom on Center Street. Self also was found guilty of five separate lewd encounters (digital anal penetration and/or fondling) with a girlfriend's grandson (Jerimy) at other locations. (No other defendant was charged with crimes against Jerimy.)
Defendant Grafton suffered five convictions. One of them (count 9) allegedly was committed by her alone, against Stoll's son, J., who was six years old at trial. J. testified that once, he and Grafton were alone and naked in his father's bedroom on Center Street, and he "rubbed" Grafton's breast.
Grafton also was convicted (count 24), along with Stoll, based on the following testimony by Victor, who was eight years old at trial: while playing with J., A., and "another boy" by the pool at Stoll's house, Victor went inside for a drink. Stoll grabbed Victor, threatened to kill him if he screamed, and took him into the bedroom. Stoll removed both his own and Victor's clothes. Grafton came into the room and took off her clothes. Stoll photographed Victor and Grafton, as well as three other boys. Victor "touched" Grafton's breasts, and orally copulated Stoll. Stoll then told Victor to go home. According to Victor, he returned home and "went to sleep" even though it was still "daytime." At trial, Victor's mother, Mrs. M., confirmed that on two afternoons in May and/or June 1984, Victor
Only one of defendant Palomo's four convictions (count 25) was found to have been committed without codefendant involvement. As to this count, Grafton's son A., who was nine years old at trial, testified that on one occasion, he and his brother D. were on the couch at home, preparing to go "hunting." Palomo also was present. Palomo placed his hands inside A.'s pants, "fiddled" with A.'s penis, and "rubbed" A.'s rear end.
All four defendants were found guilty of crimes committed against Chris, J., and A., at a group event. (Counts 1, 2, 3.) Although the information also alleged that defendants molested D. at the same time (count 4), the jury did not reach a verdict on that count, and it was ultimately dismissed by the People. (D. was seven, and Chris was eight years old, at time of trial.)
No witness (Chris, J., A., or D.) gave the same account of the group event. They agreed that all defendants and several children were naked together at Stoll's house, but disagreed as to which children were present. Three witnesses (Chris, A., and J.) placed the event in the living room. Two witnesses (Chris and A.) said the children were given Kool-Aid or soda that made them dizzy. As to counts 1 and 3 against Chris and A., respectively, each of these boys testified about sex acts committed against him by one or more defendants.
Cross-examination of the same four witnesses revealed inconsistencies in each of their stories. For example, Chris gave conflicting testimony concerning the day on which counts 1 through 3 occurred (i.e., in August 1983, when his mother Rochelle went to Catalina, or on January 14, 1984, when she attended a darts trophy banquet). Chris also said that he told an unspecified "lie" at both the preliminary hearing and on direct examination at trial. Likewise, J., A., and D. admitted that they "lied" at the preliminary hearing when they denied knowing about nude photographs and/or sexual activity between children and adults. J. also disclosed that he had been untruthful at one point during direct examination at trial (i.e., in telling the prosecutor that he did not recall Palomo being in one of apparently two nude photography sessions).
Stoll's ex-wife informed the sheriff's department in mid-June 1984 that J. had mentioned sex acts with A., D., and a male adult.
Two days later, Ericsson and Murillo placed A. and D. into a county child protection facility. Acting as a team in which Murillo was the lead interviewer, the two investigators had three meetings with A. and two separate meetings with D. over a ten-day period. Most of them took place at the sheriff's office. Each brother was told about J.'s accusations, confirmed that they were true, and described sex acts with Stoll and Self.
For the most part, D. gave "evasive" answers to questions about Grafton's participation in nude photography or sexual activity, telling investigators that Grafton knew about these events but hoped they would stop. In contrast, D. testified at trial on counts 1 through 3, that Grafton was one of the adults who participated in nude group picture-taking.
In his first interview, A. also denied that Grafton had been involved in any nude picture-taking. However, when asked to discuss Grafton in the last interview, A. described the group event in terms similar to his trial testimony on counts 1 through 3. However, although he testified at trial that he vaginally penetrated Grafton, A. told investigators that he and Grafton had engaged in mutual genital-touching. A. also told investigators that Palomo had touched A.'s penis and rear end while the pair were sitting on the couch at home. Unlike his trial testimony on count 25, A. did not disclose that D. was present at the time.
Based in large part on statements made by A., the investigating team interviewed Chris and Victor one time each. Each boy was asked if "some people" had been "touching" him. Chris described sexual encounters with Stoll and Self. Chris also gave investigators an account of the group sex event inconsistent with his trial testimony on counts 1 through 3, insofar as the pretrial version was more generalized as to sexual activity (i.e., the men sodomized the boys) than the trial version.
Similar to his trial testimony, Victor told investigators during a home interview about two encounters — one in which he was sodomized by Stoll, and another involving both Stoll and Grafton. However, as to the second one, Victor described a broader range of sexual conduct with Grafton than the breast-touching described in his trial testimony on count 24 (i.e., telling investigators he "kiss[ed]" Grafton's breasts, and the two of them touched each other's genitals).
Murillo testified that she had a master's degree in marriage, family, and child counseling, had worked six years with child protective services, and
Grafton and Palomo each testified and denied the charges.
During Stoll's case-in-chief, Dr. Roger M. Mitchell, a psychologist, testified at length as an expert on "protocols" commonly used by the psychological community for minimizing the traumatic effect of the investigation upon child sex abuse victims, and decreasing the likelihood that interviewees will distort facts. Such guidelines assertedly call for a comfortable environment (e.g., a therapist's office or the child's home), and a carefully balanced number of interviews (e.g., "three or four") so that the interviewer can begin to see patterns without appearing too demanding or coercive.
B. Excluded Testimony of Defense Psychologist
Grafton called Dr. Mitchell in her case-in-chief. The prosecutor successfully requested an offer of proof on the nature of the proposed testimony. Outside the jury's presence, Grafton's counsel explained that, based upon professional experience, interviews, and the administration of certain psychological tests, Dr. Mitchell would give an expert opinion as to whether Grafton possesses any "pathology" in the nature of "sexual deviation." Counsel insisted that the testimony was admissible as "character evidence," because it tended to show that Grafton has no predisposition to commit
Relying on Kelly, supra, 17 Cal.3d 24, and People v. Bledsoe (1984) 36 Cal.3d 236 [203 Cal.Rptr. 450, 681 P.2d 291], the prosecutor essentially replied that a defendant must first show that a psychological "profile" of a child molester exists, and that its absence in a particular person is generally accepted by other experts to mean that the person has not molested children. Defense counsel countered that the proffered testimony need only meet, and did meet, the requirements for expert opinion testimony set forth in section 801, subdivisions (a) and (b), i.e., it would "assist" the trier of fact, and was based on "matter" upon which experts may "reasonably rel[y]." Defense counsel cited the pre-Evidence Code case of People v. Jones (1954) 42 Cal.2d 219 [266 P.2d 38], for the proposition that expert opinion that a defendant displays no signs of sexual deviance is admissible as character evidence in a Penal Code section 288 prosecution.
The trial court ruled that a Kelly/Frye "reliability" showing of an unspecified nature must be made before the jury would be allowed to hear Dr. Mitchell's testimony. In the ensuing hearing under section 402, subdivision (b),
Grafton's counsel then elicited the following testimony on direct voir dire examination: approximately one week earlier, Grafton was administered two "standardized" measures of "personality function," the Minnesota Multiphasic Personality Inventory (MMPI), and the Millon Clinical Multiaxial Inventory (MCMI). The MMPI — the "primary" test — was copyrighted in 1943 and, following several revisions, is still "the most widely used psychological test" on both a local and national level.
Dr. Mitchell continued: the MMPI is "always" used by psychiatrists and psychologists to diagnose patients at various stages of clinical treatment. It
According to Dr. Mitchell, the basic test measures 10 "general possibilities for abnormality in psychological function."
Dr. Mitchell indicated that the test probably has a "competence level of point nine" for "normal" persons, whereas the "usual" standard in psychological testing is "point seven and above." Dr. Mitchell agreed with counsel's "lay" assessment that the test has better than a "70 percent chance of being right" in such circumstances. However, the witness also acknowledged that the test is "completely invalid" when given to "disturbed" or "psychotic" individuals. One of Dr. Mitchell's patients, an "admitted" child molester, had tested "within normal limits" on the MMPI.
Dr. Mitchell described the MCMI on direct examination as follows: it was copyrighted in 1976, and had achieved "widespread acceptance" in the three or four years preceding trial. It is widely used in Kern County, but less frequently at the national level. It "overlaps the MMPI in diagnosing degree of general psychopathology," and is designed to identify symptoms "in the format of the D.S.M. III [American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Third Edition]."
On cross-examination by the prosecutor, Dr. Mitchell testified: neither he nor other qualified experts use the two tests as a "lie detector" to reach an absolute determination as to whether an individual is guilty of charged crimes. Rather, his opinion of Grafton was based upon a "diagnostic process" combining "many, many pieces of data," including professional experience with other individuals in similar situations, knowledge of Grafton's and Palomo's test results, knowledge about the charges against them, and his personal assessments of them. (Italics added.) Dr. Mitchell said his examination of Grafton was "extensive," such that the MMPI and MCMI were "not by any means the sole determinor" of his opinion. (Italics added.) Rather, it reflects, in many respects, a "subjective judgment" that is not based on "an absolute cut and dried scientific approach." (Italics added.)
The prosecutor then asked whether there are any studies in which "known guilty people have been given the MMPI test ... in a child molest case, and their profile as a child molester appears on the ... test." Dr. Mitchell replied that "there are studies which relate to general trends and characteristics of individuals with sexual deviancy, and their typical manner of scoring on this measure." Although he did not identify these studies by name, he was certain that most of them involved convicted offenders.
Dr. Mitchell identified one MMPI measure of antisocial adjustment, the "psychopathic deviant" scale, as being "commonly elevated" in "criminal
Upon further questioning by the prosecutor, Dr. Mitchell stated that many studies had been conducted on factors influencing the "reliability" of both tests. That term, he said, refers to the extent to which test results will be repeated if the same person takes the test again under similar circumstances. According to Dr. Mitchell, countless unspecified studies indicate that persons "under extreme psychological stress do not score reliably on the MMPI."
Because Grafton "self-administered" the test in jail, Dr. Mitchell could not answer prosecution questions about her testing environment (e.g., timing of exam and possible consultation with others). When asked whether "accepted medical procedure" required him to personally monitor test administration, Dr. Mitchell simply said it "depends upon the circumstances."
When the prosecutor asked whether the scientific community generally accepts the MMPI as a valid measure of psychopathology, Dr. Mitchell said, "yes, by all means it does." The prosecutor's attempts to discern the scope of Dr. Mitchell's knowledge in this regard were inconclusive.
At one point during cross-examination, defense counsel objected when the prosecutor characterized Dr. Mitchell as having testified that Grafton "did not fit within the profile of a child molester." The court overruled the objection. Dr. Mitchell corrected the prosecutor's characterization, saying his actual opinion was that Grafton showed no "possibility for sexual deviancy in her personality profile." (Italics added.)
Following redirect examination and further argument by both counsel, the trial court excluded the proffered testimony. Adopting the prosecutor's
Grafton's counsel immediately urged the court to reconsider on grounds that Dr. Mitchell did not refer to, or rely upon, any "profile." Counsel also insisted that if Dr. Mitchell were allowed to testify, he would eliminate all reference to the truth or falsity of the charges and focus only on the lack of "sexual deviation." The court denied Grafton's request.
Palomo's counsel then stated that he too intended to call Dr. Mitchell for the purpose of testifying that Palomo had tested "within the range of normal heterosexuality." The court refused to allow the testimony on grounds that its exclusionary ruling applied to Palomo as well.
C. Verdict and Appeal
As noted, the jury entered guilty verdicts against Crafton on five counts (1, 2, 3, 9, 24), and against Palomo on four counts (1, 2, 3, 25).
Concurring in the judgment, Justice Best agreed with the dissent that the proffered opinion had been erroneously excluded under Kelly/Frye. However, he found that a more favorable defense verdict was not reasonably probable under People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]. Presiding Justice Franson dissented on grounds that Kelly/Frye has never been applied to expert opinion offered to prove mental or psychological state, citing People v. McDonald (1984) 37 Cal.3d 351, 372-373 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011]. Since the defense centered on "personal denials," the dissent found that exclusion of this relevant character evidence was prejudicial under the Watson standard.
(3) (See fn. 16.) DISCUSSION 16
The Attorney General argues that Dr. Mitchell's use of tests and an asserted "profile" constitutes a new scientific technique subject to Kelly/Frye. He insists that defendants have failed to show that this technique is generally accepted in the psychiatric or psychological community for the purpose offered here — to uncover personality traits that are linked to noncommission of the charged criminal acts.
Grafton and Palomo insist that a close reading of this record reveals that testimony on only one narrow trait was offered. Referring variously to that trait as lack of sexual deviance, homosexuality, incestuous desires, or pedophilia, defendants argue that expert opinion as to its existence has always been admissible, without reference to Kelly/Frye, to show that a defendant is not likely to commit criminal sexual misconduct. As we will discuss, defendants provide a more accurate picture of the law and facts.
Contrary to the Attorney General's reading of this record, Dr. Mitchell indicated that no psychological "profile" entered into his diagnosis. (See p. 1161, fn. 22, post.) Rather, much as in People v. Jones, supra, 42 Cal.2d 219, the proffered opinion was that Grafton (and presumably Palomo) displays a "normal personality function," and shows no "indications of deviancy." Dr. Mitchell's emphasis on "low indication for antisocial or aggressive behavior" implied that Grafton is "unlikely" to commit the charged acts or any serious crime. This link between personality and behavior is buttressed by Dr. Mitchell's suggestion that such diagnoses are routinely used in many contexts to determine whether troublesome behavior has occurred in the past or may occur in the future. The trier of fact is free to decide the weight, if any, to afford this opinion. However, we cannot say as a matter of law that it has no logical bearing on the defense case.
No precise legal rules dictate the proper basis for an expert's journey into a patient's mind to make judgments about his behavior. In effect, however, California courts have deferred to a qualified expert's decision to rely on "standardized" psychological tests such as the MMPI to reach an opinion on mental state at the time acts were committed. (See People v. Coleman (1985) 38 Cal.3d 69, 78-81 [211 Cal.Rptr. 102, 695 P.2d 189] [MMPI and Rorschach Test]; People v. Cruz (1980) 26 Cal.3d 233, 248 [162 Cal.Rptr. 1, 605 P.2d 830] ["standard tests"]; People v. Coogler (1969) 71 Cal.2d 153, 165 [77 Cal.Rptr. 790, 454 P.2d 686] [MMPI and Rorschach Test]; People v. Nicholas (1980) 112 Cal.App.3d 249, 275 [169 Cal.Rptr. 497] [MMPI]; People v. Phillips (1979) 90 Cal.App.3d 356, 360 [153 Cal.Rptr. 359] [MMPI and achievement/intelligence tests]; People v. Cox (1978) 82 Cal.App.3d 221, 223 [147 Cal.Rptr. 73] [MMPI]; People v. Humphrey (1975) 45 Cal.App.3d 32, 35 [119 Cal.Rptr. 74] [MMPI].) Such deference is no less appropriate here. Indeed, voir dire testimony indicated that qualified professionals routinely use raw material from the MMPI and MCMI as a basis for assessing personality, and drawing behavioral conclusions therefrom.
While the standards imposed by the Kelly/Frye rule are clear, the definition of a "new scientific technique" is not. In Kelly, supra, 17 Cal.3d at pages 29-30, for example, the parties did not dispute that the Frye test applied to an identification process in which an expert analyst compares "voiceprints," or graphs of human voices, produced by a "spectrograph" machine. Because the inventions and discoveries which could be considered "scientific" have become virtually limitless in the near-70 years since Frye was decided, application of its principle has often been determined by reference to its narrow "common sense" purpose, i.e., to protect the jury from
This approach has produced two discernible themes. First, Kelly/Frye only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law. The courts are willing to forego admission of such techniques completely until reasonably certain that the pertinent scientific community no longer views them as experimental or of dubious validity. This all-or-nothing approach was adopted in full recognition that there would be a "`considerable lag'" between scientific advances and their admission as evidence in a court proceeding. (Kelly, supra, 17 Cal.3d at p. 31, citation omitted.)
The second theme in cases applying Kelly/Frye is that the unproven technique or procedure appears in both name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury. The most obvious examples are machines or procedures which analyze physical data. Lay minds might easily, but erroneously, assume that such procedures are objective and infallible. (See e.g., People v. Coleman (1988) 46 Cal.3d 749, 774-775 [251 Cal.Rptr. 83, 759 P.2d 1260] ["hemostick" method of presumptive testing for presence of blood]; People v. Brown (1985) 40 Cal.3d 512, 528-535 [220 Cal.Rptr. 637, 709 P.2d 440] [electrophoretic testing of body fluid and blood stains to identify donor]; see also People v. Shirley (1982) 31 Cal.3d 18, 51-52 [181 Cal.Rptr. 243, 723 P.2d 1354] [listing cases which have applied the Frye test to polygraph examinations, "truth serum," Nalline testing, human bite marks, and microscopic identification of gunshot residue particles].)
Kelly/Frye also has been applied to less tangible new procedures which carry an equally undeserved aura of certainty. In People v. Shirley, supra, 31 Cal.3d at page 66, we applied the Kelly/Frye rule to, and barred admission of, "post-hypnotic" testimony of a rape complainant. We explicitly rejected the Attorney General's claim in that case that the Kelly/Frye rule was limited to techniques analyzing "physical evidence." (Id. at p. 52.) We noted that, given the rule's prophylactic purpose, nothing precludes its application to "a new scientific process operating on purely psychological evidence." (Id. at p. 53.) As thoroughly explained in Justice Mosk's majority opinion, the danger of hypnotically refreshed testimony lies in the tendency of the process to "actively contribute to the formation of pseudo-memories, to the witness' abiding belief in their veracity, and to the inability of the witness (or anyone else) to distinguish between the two." (Id. at p. 53.)
California courts have routinely admitted defense expert opinion analogous to the one offered here, with no suggestion that Kelly/Frye applies. In some of these cases, expert testimony of defendant's personality was admitted to prove that defendant was not likely to commit certain acts in the future. (See, e.g., People v. Burnick (1975) 14 Cal.3d 306, 312 [121 Cal.Rptr. 488, 535 P.2d 352] [MDSO proceeding: defendant is not "homosexual" or "pedophilic" but is depressed, "highly immature," and "`predominately heterosexual'"]; People v. Monroe (1985) 168 Cal.App.3d 1205, 1214 [215 Cal.Rptr. 51] [proceeding to challenge registration as sex offender: defendant is not "`dangerous'" or "`sexual[ly] deviant'"].)
In other cases, the testimony was introduced as circumstantial evidence that the defendant did not harbor the requisite criminal intent or mental state at the time he committed the charged act. (See, e.g., People v. Robbins (1988) 45 Cal.3d 867, 874 [248 Cal.Rptr. 172, 755 P.2d 355] [guilt phase/capital trial: defendant with "`primary diagnosis'" of "pedophilia" unintentionally murdered uncooperative molestation victim during "unthinking rage"]; People v. Hendricks (1988) 44 Cal.3d 635, 641 [244 Cal.Rptr. 181, 749 P.2d 836] [penalty phase/capital trial: defendant murdered in fit of "`homosexual rage'"]; People v. Memro (1985) 38 Cal.3d 658,
Moreover, as Dr. Mitchell testified, diagnostic use of written personality inventories such as the MMPI and MCMI has been established for decades. Modern courts have not resisted reference to these tests. As already noted, defense expert opinion on an impressive range of psychiatric diagnoses has been admitted without reference to Kelly/Frye where the expert made known at trial that he relied, in part, on the MMPI or analogous tests. (See, e.g., People v. Coleman, supra, 38 Cal.3d at p. 78 [defendant is subject to "`psychotic decompensation,'" or "`break-down[s] involving gross distortion'" in "`interacting with the world, behaving, [and] mood'"]; People v. Coogler, supra, 71 Cal.2d at p. 165 [defendant is a "borderline schizophrenic" who "under stress may become psychotic"].)
We see no reason to depart from this settled approach. As discussed, criminal defendants are authorized to use character evidence, including expert opinion, to prove "conduct in conformity." (§ 1102, italics added.) This principle applies where lack of deviance is offered as circumstantial evidence that a defendant is unlikely to have committed charged acts of molestation. (People v. Jones, supra, 42 Cal.2d at pp. 224-225.)
Contrary to the dissent's claim, expert reliance on the MMPI and MCMI for this particular purpose is not a "revolutionary" development. (Dis. opn., post, p. 1167.) As the dissent concedes, standardized personality tests previously have been used in forming expert opinion admitted to show that an accused did not harbor the requisite "mental state at the time the alleged acts were committed." (Dis. opn., post, p. 1167, italics added.) Here, defendants offered similar expert testimony to suggest that they did not commit the requisite act. In either case, the fundamental purpose of the testimony is the same — to raise a reasonable doubt as to guilt of charged crimes. The dissent offers no legal or logical basis for conditioning application of the Kelly/Frye rule upon the particular theory by which the accused seeks "to exclude [himself] from the relevant class of offenders." (Dis. opn., post, p. 1167, original italics omitted.) It would be anomalous to view the MMPI and similar tests as a "new" technique at this late date.
More importantly, the MMPI and MCMI are obviously a springboard for a far more normative and subjective diagnostic process. That this process is a learned professional art, rather than the purported exact "science" with which Kelly/Frye is concerned, is well illustrated by the witness's guarded testimony here. Dr. Mitchell left no doubt that he relied heavily upon patient interviews, case history, and past experience in forming his educated, but debatable, opinion.
Along these lines, we reiterate that issues of test reliability and validity may be thoroughly explored on cross-examination at trial. (See § 721, subd. (a).) The prosecution also may call, in rebuttal, another expert of comparable background to challenge defense expert methods. (See, e.g., People v. Rosenkrantz, supra, 198 Cal. App.3d at p. 1199.) Even the dissent acknowledges cases in which the test-based opinion of the defendant's expert was admitted into evidence, and then rebutted by the prosecution's expert. (People v. Coleman, supra, 38 Cal.3d at pp. 78-81; People v. Cruz, supra, 26 Cal.3d at pp. 247-248.)
Bledsoe involved a rape prosecution in which the victim and defendant gave conflicting testimony on the issue of consent. In the prosecution's case-in-chief, the victim's rape counselor testified that, in her expert opinion, the victim had been suffering from "rape trauma syndrome." (36 Cal.3d at pp. 243-244.) The counselor described the concept as an "`acute stress reaction to the threat of being killed'"; it often progressed in three phases encompassing such varied behavior as agitation, fear, masked feelings, acting as though nothing has happened, looking normal to others, and depression. (Id. at pp. 242-243.) Defendant objected at trial on "relevance" grounds. (Id. at p. 241.) On appeal, the parties debated whether the evidence satisfied the Kelly/Frye test, with no one disputing that such test was the appropriate standard. (See id. at pp. 245-247 & fn. 7.)
In Bledsoe, we first noted that other evidence at trial had established that the victim promptly reported the attack, immediately displayed emotional upset, and bore bruises and other signs of injury. We therefore inferred that the expert's testimony was not offered for the limited purpose of explaining any post-rape conduct (e.g., delayed reporting) which a lay jury might otherwise view as inconsistent with a forcible rape claim. Under our view of the facts, expert testimony describing the syndrome and applying it to this victim was used to prove that "a rape in the legal sense had, in fact, occurred." (36 Cal.3d at p. 248, italics added.)
Bledsoe understandably concluded that the counselor's testimony was erroneously admitted for this purpose. A careful reading of Bledsoe reveals that our primary concern was the logical irrelevance of the evidence: (1) the "syndrome" was designed solely as a nonjudgmental means by which to "identify, predict and treat" the victim's emotional problems; (2) since counselors rarely question the victim's factual account, the syndrome is an
Bledsoe acknowledged a handful of out-of-state cases applying the Frye test to evidence of "rape trauma syndrome" on grounds that juries might view this therapeutic diagnosis as "scientific" proof a rape had occurred. (See 36 Cal.3d at p. 248.) However, Bledsoe did not hold that the Kelly/Frye test applied to the expert opinion in that case, nor did we discuss the test's relationship to "syndrome" or other expert psychological evidence in general.
Faced with the question here, we are persuaded that Kelly/Frye did not preclude admission of Dr. Mitchell's proffered testimony. Expert opinion that defendants show no obvious psychological or sexual problem is circumstantial evidence which bears upon whether they committed sexual acts upon children, and is admissible "character" evidence on their behalf. The testimony and the matter upon which it is based also meet traditional standards for competent expert opinion, without need for additional screening procedures applicable to new, novel, or experimental "scientific" evidence not previously accepted in court. We conclude the trial court erred in using Kelly/Frye to exclude the testimony proffered by Grafton and Palomo.
Of course, there were no direct nonvictim accounts of the pertinent charged events. Mrs. M. corroborated her son Victor's testimony insofar as he claimed that two upsetting events — neither of which she witnessed — occurred while he was playing with Center Street friends. On the other hand, testimony by Chris's mother, Rochelle, lent support to Grafton's partial alibi defense.
It is true that at least one child-witness gave an unequivocal eyewitness account of Grafton's and Palomo's respective roles in each count under review (counts 1, 2, 3, 9, 24, 25). As to the group event charged in counts 1 through 3, the four witnesses confirmed that all defendants and several children were naked together at Stoll's house; two witnesses agreed that sexual "touching" of an unspecified nature had been committed against a third child that day.
Nevertheless, in several key respects, these same four children contradicted each other's account of the same event. Unlike Chris and A., D. was adamant that no adult committed sex acts upon him or any child. The other witness, J., could not remember having been sexually abused on that occasion, despite Chris's and A's testimony to the contrary. Also, Chris recalled no nude picture-taking, while the three other children disagreed as to the identity of the alleged photographer.
Further, the defense mounted a thorough attack on the credibility of each witness. Four of the children who testified against Grafton and Palomo (Chris, J., A., and D.) admitted that they had "lied" at the preliminary hearing. Chris and J. further conceded that their trial testimony contained at least one untruth. Pretrial statements of these four children, as well as the fifth child, Victor, contradicted their trial testimony as to the type of, or circumstances surrounding, the sex crimes at issue here. Finally, investigators specifically directed J., A., and D. to discuss sexual contact with defendants, including Grafton. Both A. and D. were told about J.'s accusations before they answered investigators' questions.
In light of the foregoing, the jury might well have been swayed by expert opinion testimony that neither Grafton nor Palomo was the "type of person" to commit the charged acts. The pair claimed to be romantically
Insofar as it upholds the convictions against defendants Grafton and Palomo, the judgment of the Court of Appeal is reversed.
Mosk, J., Broussard, J., Panelli, J., and Kennard, J., concurred.
I respectfully dissent. As will appear, the standardized "personality function" tests at issue here, if used in the manner proposed by the two defendants in this case, are in all essential respects indistinguishable from polygraph, voiceprint or other scientific tests aimed at proving, or disproving, guilt. For that reason, these standardized tests must meet the usual Kelly/Frye standard for admissibility.
I readily acknowledge the admissibility of opinion evidence tending to show that the defendant's character or trait of character makes it unlikely that he or she committed a charged offense. (See Evid. Code, § 1102, subd. (a); People v. Jones (1954) 42 Cal.2d 219, 222 [266 P.2d 38] [defendant lacked usual characteristics of sex deviants].) I also recognize that such evidence may be presented in the form of expert testimony (see Evid. Code, § 801), which ordinarily is not subject to the Kelly/Frye admissibility standards (see People v. McDonald (1984) 37 Cal.3d 351, 372-373 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011]).
But the present case involves more than a simple expert opinion to the effect that defendant Grafton was a "normal" heterosexual whose character lacked the potential for sexual deviation. Instead, Dr. Mitchell, defendant's expert, was prepared to testify that he largely based his opinion of normality on certain standardized written tests, self-administered to defendant in her jail cell, which supposedly measured the subject's "general possibilities for abnormality in psychological function." According to Dr. Mitchell, the primary test, the Minnesota Multiphasic Personality Inventory (MMPI), consisting of 566 written questions, had several built-in "validity scales" designed to assure accuracy and detect lies by the person taking the exam. Dr. Mitchell observed that many experts believe the test makes it virtually impossible to conceal an abnormal personality profile.
After reviewing the test results and interviewing defendant in her cell for two hours, Dr. Mitchell was prepared to state his opinion that she had a "normal personality function," and "is falsely charged in this matter." He
On cross-examination, the prosecutor developed the following: Dr. Mitchell could identify no studies indicating whether child abusers have ever registered "normal" on the subject tests. He conceded that some experts believe the MMPI may not identify "situational" child abusers, i.e., those offenders reacting to situational stress, rather than chronic, long-term abusers. Indeed, Dr. Mitchell acknowledged that persons acting under extreme emotional stress may not score reliably on that test. He also confirmed that although the reliability of these tests depends on the circumstances under which they are administered, neither he nor anyone else was present when the tests were completed by defendant Grafton in her jail cell.
Dr. Mitchell was unable to cite any studies on the validity of the subject tests as applied to individuals charged with either child abuse or incest. He acknowledged that on one occasion an admitted child molester had registered "normal" on an MMPI test he had given.
On this record, we might reasonably hold that the trial court, without abusing its discretion, could have excluded the evidence as unduly prejudicial to the People under Evidence Code section 352, or that in any event no prejudice to defendant could have resulted from its exclusion. I confine my dissenting remarks, however, to the Kelly/Frye issue. In my view, the concessions and omissions disclosed through cross-examination of Dr. Mitchell lend substantial force to the trial court's ruling that the subject tests were inadmissible because they failed to meet the Kelly/Frye standard of general acceptance in the scientific community.
The trial court excluded the proffered testimony on Kelly/Frye grounds because the defense failed to show the standardized test on which Dr. Mitchell relied was generally accepted in the scientific community. I would affirm that ruling.
I note initially that expert testimony is subject to the overriding requirement of reasonable reliability. Under present law, expert opinion evidence is limited to opinions based on matter perceived by or personally known to the witness "that is of a type that reasonably may be relied upon by an expert in forming an opinion...." (Evid. Code, § 801, subd. (b).) The court is
In my view, Kelly/Frye is unaffected by Proposition 8 (adding article I, section 28, subdivision (d) to the state Constitution). I doubt this "Truth-in-Evidence" provision was intended to deprive the trial courts of their traditional power to exclude unreliable scientific or expert testimony. By its terms, the provision is limited to "relevant" evidence, and evidence failing to meet Kelly/Frye's reliability standard reasonably could be deemed irrelevant to the issues. I also note that the provision recites that it was not intended to affect any existing statutory rule of evidence relating to hearsay, or Evidence Code sections 352 or 1103. As the majority acknowledges, these exceptions may indicate an intent to preserve the general character or opinion evidence restrictions. (See People v. Harris (1989) 47 Cal.3d 1047, 1082 [255 Cal.Rptr. 352, 767 P.2d 619].)
The Kelly/Frye test is merely an application of the "reasonable reliability" standard to purported "scientific" methods of establishing guilt or innocence. Contrary to the majority's implication, nothing in our opinions in People v. McDonald, supra, 37 Cal.3d 351, or People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240], would flatly exempt expert testimony of the kind involved here, where such testimony rests in large part on the results or readings of a scientific test, process or procedure.
In Kelly, involving voiceprint identification procedures, we observed that generally, admissibility of expert testimony based on a new scientific technique involves a two-step process whereby (1) the reliability of the expert witness's methods are established, and (2) the witness is properly qualified as an expert to state an opinion on the subject. (17 Cal.3d at p. 30.) Kelly adopted the test for reliability of the technique itself from Frye v. United States (D.C. Cir.1923) 293 Fed. 1013, 1014 [54 App.D.C. 46, 34 A.L.R. 145]: The technique "must be sufficiently established to have gained general acceptance in the particular field in which it belongs."
Kelly noted that the foregoing "general acceptance" standard is particularly appropriate when the scientific evidence, presented by experts, is apt to be given considerable, perhaps undue, weight by lay jurors impressed with the "posture of mystic infallibility" which such evidence frequently may present. (17 Cal.3d at pp. 31-32, quoting an earlier case.) Kelly held that neither case law nor scientific articles satisfactorily established that the voiceprint technique had been generally accepted in the scientific community.
Close on point is People v. Bledsoe (1984) 36 Cal.3d 236 [203 Cal.Rptr. 450, 681 P.2d 291], in which we found error in admitting evidence of "rape trauma syndrome" to assist in proving that a rape occurred. A careful reading of that case reveals, contrary to the majority's interpretation herein, a strong implication that diagnosis of the syndrome constituted a new scientific technique which must satisfy the Kelly/Frye test. As we held in Bledsoe, "Because the literature does not even purport to claim that the syndrome is a scientifically reliable means of proving that a rape occurred, we conclude that it may not properly be used for that purpose in a criminal trial." (Id. at p. 251, italics added.) The diagnostic tests at issue here are essentially indistinguishable. Indeed, in my view, the need for Kelly/Frye compliance is even more compelling than in Bledsoe, for unlike rape trauma syndrome evidence, the "personality function" test results proffered here were offered not merely to prove that a crime occurred, but to prove that defendant Grafton could not have committed it. In other words, the essential thrust of the "character" evidence was directed to the crucial issues of guilt or innocence.
The majority nonetheless disputes the application of Kelly/Frye to the standardized tests that formed the basis for Dr. Mitchell's testimony. The majority observes that "[t]he methods employed are not new to psychology or the law, and they carry no misleading aura of scientific infallibility." (Ante, at p. 1157.) I disagree on both counts.
First, in my view a new application of these standardized tests is indeed involved here. As indicated previously, I acknowledge that California
Dr. Mitchell indicated that these tests are used in clinical practice as diagnostic and treatment tools, but he did not suggest that they are commonly used in criminal proceedings to identify, or exclude, deviant personalities. As stated in the majority opinion of the Court of Appeal herein, "Dr. Mitchell ... failed to establish the general acceptance of reliability [of the testing at issue] in the particular field to which it belongs. A test may be widely utilized as a tool or a guide while recognizing and accepting the fact the procedure lacks the desired certainty."
As conceded by defense counsel at oral argument, no cases exist which sanction such a revolutionary application of standardized test procedures as was attempted in this case. I think it ironic that all three of the cases from our court cited by the majority herein as supporting reliance on standardized psychological tests, such as the MMPI involved here, contained references to doubts or concerns regarding the value of such tests. In People v. Coogler (1969) 71 Cal.2d 153, 166-167 [77 Cal.Rptr. 790, 454 P.2d 686], in which the prosecution produced no evidence to rebut the defendant's showing of diminished capacity (based in part on the MMPI), we observed that "a jury could properly reject the [defense] expert's conclusions because of doubt as to the material upon which these conclusions were based." In People v. Cruz (1980) 26 Cal.3d 233, 248 [162 Cal.Rptr. 1, 605 P.2d 830], we noted that one of the psychiatrists testifying at the defendant's trial "explained to the jury why he did not use [standardized] psychological tests: He believed, based on years of experience, that they were not reliable." (Italics added.) And in People v. Coleman (1985) 38 Cal.3d 69, 80 [211 Cal.Rptr. 102, 695 P.2d 189], we pointed out that a testifying psychiatrist "characterized the use of psychological tests such as the ... Minnesota Multiphasic Personality Inventory as lacking in reliability and inappropriate for use in forming an opinion on whether an accused possessed a certain mental state at some time in the past." (Italics added; see also People v. John W. (1986) 185 Cal.App.3d 801, 804-805 [229 Cal.Rptr. 783] [expert testimony doubting utility of MMPI in detecting deviant sexuality].)
Second, as for Kelly/Frye's element of an "aura of infallibility" surrounding the disputed technique, Dr. Mitchell's offer of proof included his opinion that the tests he relied on were accurate, having a better than 70 percent chance of being right and, according to some experts, being virtually impossible to conceal one's deviant character from the tester. Dr. Mitchell described as a "fair characterization" a colleague's observation that "achieving a normal profile in the MMPI is like walking through a minefield and coming out intact." Significantly, according to Dr. Mitchell, built-in "validity scales" supposedly assured that no intentional concealment of a deviant personality could occur. Quite clearly, a jury could be unduly swayed by such claims of accuracy and invincibility.
It is apparent that, based on Dr. Mitchell's description, the standardized tests combined elements of (1) a lie detector, aimed at uncovering untruthful test responses, and (2) a "personality print," i.e., a supposedly foolproof scientific method of matching a suspect's personality traits with the offense in question, much in the same way that voiceprints, fingerprints, blood or semen samples, are used to match or exclude a suspect.
The majority concedes that polygraph and voiceprint techniques are unquestionably subject to Kelly/Frye. In my view, Dr. Mitchell's "validity scales" and "personality print" should be subject to the same scrutiny. (See also Seering v. Department of Social Services (1987) 194 Cal.App.3d 298, 311 [239 Cal.Rptr. 422] [child sexual abuse accommodation syndrome subject to Kelly/Frye]; In re Amber B. (1987) 191 Cal.App.3d 682, 690-691 [236 Cal.Rptr. 623] [use of anatomically correct dolls to support psychiatric opinion of child molestation subject to Kelly/Frye].) In both Seering and Amber B. the courts stressed the likelihood that a jury would place undue weight on the scientific nature of the underlying evidence.
I do not suggest the results of these tests are necessarily inadmissible. The purpose of Kelly/Frye is not to exclude evidence but to test its reliability by giving the members of the scientific community "the determinative voice"
With due respect, I am concerned about the potential consequences arising from the majority's holding. I foresee complicated and time consuming "mini-trials" devoted not to the factual issue of guilt or innocence of the accused, but focusing instead on his "personality profile" and its correlation with the profile displayed by the average child molester, robber, arsonist, or whomever. Presumably, the People would have the opportunity to rebut the defendant's showing, using their own experts and standardized tests. (See Evid. Code, § 1102, subd. (b).) The prospects for sidetracking the trial's "main event" are enormous.
I would affirm the Court of Appeal's decision upholding defendant's conviction.
Kaufman, J., concurred.
A. testified that Stoll touched his penis, and that he (A.) orally copulated Stoll. A. also said he touched Grafton's breast and "put [his] penis in her private" (count 3).
The jury received standard aiding and abetting instructions. (CALJIC Nos. 3.00, 3.01 (1984 rev.) (4th ed. pocket pt.).)
A. testified that Stoll, Grafton, and Palomo took pictures while the "kids and adults [were] naked, doing sex things."
D. testified that Stoll's adult roommates (David and/or Bonny) took pictures while the defendants and children were naked.
As noted, Chris could not recall any picture-taking.
Grafton and Palomo revive this theme in their briefs in this court. They make repeated references to a document entitled "Report on the Kern County Child Abuse Investigation," which apparently was issued by the Attorney General in September 1986 — almost two years after trial in this case ended. Palomo asks that we take judicial notice of this material because it: (1) provides general guidance on "proper investigative techniques in child sex abuse cases, and (2) shows that children in an unspecified Kern County sex abuse investigation were "suggestively interviewed."
We decline Palomo's request. (See Evid. Code, § 459, subds. (a), (b).) The material has no bearing on the limited legal question at hand. And, since it does not refer in any way to these parties, witnesses, or charges, the report adds nothing to the factual record. The facts of this particular investigation were thoroughly explored at trial.
We need not decide whether section 28(d) affected the Kelly/Frye rule, or the pertinent Evidence Code sections (§§ 210, 801, 1102.) Section 28(d) has no effect on the outcome of this case because, as discussed in the opinion, the type of professional testimony proffered here has always been admissible under these authorities. The parties and lower courts have assumed that these prior rules remain intact in the wake of section 28(d).