Concurring Opinion of Justice Lemmon December 7, 1993.
On October 11, 1991, a jury found Hypolite Foret, who was charged with molestation of a juvenile when the offender has control or supervision over the juvenile, guilty of attempted molestation of a juvenile (when the offender does not have control or supervision over the juvenile), a violation of LSA-R.S. 14:81.2 and LSA-R.S. 14:27. The trial court sentenced him to serve a term of three years imprisonment at hard labor. Foret appealed on several grounds, all of which were rejected by the court of appeal. The conviction
Chief amongst defendant's claims was that the trial court erred in allowing, over objection, a psychologist who had examined the victim to testify, as his report, which had been in the State's possession for over a week, was only made available to the defendant on the morning of trial. The court of appeal held that the defendant failed to make the requisite showing of prejudice as a result of the delinquent disclosure of the report and, consequently, refused to grant the defendant any relief.
Defendant applied for writs of certiorari to this court, which were granted. 620 So.2d 821 (La.1993). Upon review, this court reverses the court of appeal in its holding that the tardy delivery of the psychologist's report was not prejudicial, especially given the questionable scientific basis and highly influential nature of his testimony. As this alone is grounds for reversal of the conviction and a remand for a new trial, we will pretermit consideration of the other assignments of error.
The defendant, Hypolite Foret, was convicted of attempting to molest his step-daughter over a one-and-a-half to two-year period, when the victim was twelve to fourteen years old. The victim testified that the repeated incidences of abuse took place at the family residence when her mother was asleep or not at home. The alleged initial acts of molestation involved hugging, kissing, and rubbing the victim's breasts, culminating with the defendant rubbing under the victim's clothes and inserting his finger into her vagina.
These alleged acts of abuse were discovered upon the return of the victim after she ran away from the family home. The victim had been having problems with both the defendant and her mother, namely that they were strict and steadfastly refused to allow her to date an older (by approximately eight years) boyfriend. Upon her return home, she was interviewed by a child protection worker, Cindy Ordoyne, and, during that interview, she detailed molestations allegedly made by her stepfather. The interview set forth a series of events that resulted in the court-ordered removal of the victim from the family home and the defendant being charged with molestation of a juvenile.
At trial, the defendant denied that he had abused the victim, but believed that she might have been abused by someone else. He admitted that he may have touched the victim's private parts, but maintained that the touching occurred accidentally during horseplay or tickling. The victim's mother, siblings, and a family friend all testified that they had never seen any indication that the victim was molested by the defendant. They also testified that the victim had said many times that she wanted to get out of the house, which the victim denied ever saying. The victim also admitted that she told her mother, after her removal from the home, that "I want to come home now. I think I'm going to tell the D.A. and the judge that I lied about everything." She also claimed that these statements were made solely to comfort her mother.
The state offered two expert witnesses to support its case-in-chief. The first was a physician qualified as an expert in the field of family medicine, who testified that, although an examination of the victim after the abuse was reported yielded no positive physical evidence of abuse, the lack of positive physical evidence of abuse was not unusual in this type of case. The second witness was a child psychologist, Dr. William Janzen, Ph.D., who was qualified as an expert in the field of psychology with expertise in child sexual abuse. Defendant objected to Dr. Janzen being allowed to testify, claiming that his not being given Dr. Janzen's report until the morning of trial when the state had possessed it for a week prior to trial was a prejudicial discovery violation, as there was insufficient time to prepare an effective
Dr. Janzen testified that he interviewed the victim on three separate occasions and concluded that, in his expert opinion, she was telling the truth about being the victim of sexual abuse. He based his conclusions on the following: the victim gave detailed accounts of the acts of abuse and conversations she had with the defendant; the victim described common feelings of disgust and sadness; the victim claimed that the defendant was possessive of her and did not want her to be with other boys; the victim felt that she had done something wrong; and, finally, the defendant told her to keep the molestations a secret.
Dr. Janzen explained his methods for evaluation of sexual abuse allegations, focusing on questioning the victim:
He stated that, in this case, he gave the victim some emotional tests, but added that such tests "do not tell me anything about the allegations." The doctor observed that the victim's manner was "flat" and that she had "some sadness and unhappiness." Without regard to his previous caveat that these tests could not indicate sexual abuse, Dr. Janzen opined that her "attempts to hide her sadness" were caused by "embarass[ment] about the entire situation and she really prefers for people not to know about this."
He then went into specific details of the allegations made by the victim and, with the court's permission, named the defendant as the person whom the victim identified as her abuser. Dr. Janzen described the progression from touching on the outside of the victim's clothes to eventual fondling under the clothes. He then observed that "[t]his kind of progression is one thing that we look for in cases of sexual abuse." He further noted (in what is referred to as the "progressive" dynamic) that
He next went into what he called the "secrecy" dynamic, "that is being told not to tell someone", to wit, her mother. He followed this by a description of the "jealousy" dynamic, whereby the unabusing spouse becomes jealous of the attention the abusing spouse is giving the abused child.
Finally, he noted the "recantation" dynamic. According to Dr. Janzen, children become concerned about the effect they are having on the family and begin to regret having revealed the abuse because they have been removed from the family and because they realize that a family member may be sentenced to prison. The victim "seemed to be very distressed about what was happening to her mother," and "was upset about being in foster care and missed her mother, and so in those kinds of cases they feel very guilty and they may recant." The doctor proffered that even if a child has been sexually abused by a parent, that child can still "love" that person.
The State then posed the following question:
The defendant objected, claiming that the State was asking the expert to comment upon "the fact and [sic] issue here", but the trial court allowed the question to be answered, simply cautioning the doctor not to "identi[fy] ... any person who may be responsible." Dr. Janzen then answered:
Later summing up his direct examination, Dr. Janzen noted that, given the details related to him by the victim and considering the various dynamics of sexual abuse, his "only conclusion" was that the victim had "been sexually abused."
Based largely on the testimony of the victim, as bolstered by Dr. Janzen, the jury returned a verdict of guilty of attempted molestation.
Prior to trial, defendant moved for discovery of all reports of examinations and tests that were made by the State, pursuant to La.C.Cr.P. art. 719:
This duty to disclose is a continuing one, requiring the district attorney, if he discovers or obtains evidence prior to or during trial, to "promptly notify the other party and the court of the existence of the additional evidence." La.C.Cr.P. art. 729.3. A failure to comply with this duty can result in sanctions ranging from the granting of a continuance to prohibition of introduction of the non-disclosed subject matter. La.C.Cr.P. art. 729.5.
The court of appeal noted that, as the expert had reviewed a copy of his report prior to trial, the report was effectively "intended for use at trial." The phrase "intended for use at trial" has been given a broad meaning by this court, with a requirement that "reports [such as this one] be disclosed if related to the witness' testimony at trial." State v. Lingle, 461 So.2d 1046, 1049 (La. 1985). Thus, the report was discoverable, and the issues are whether or not it was promptly delivered and whether or not, if the delivery was not prompt, the tardiness prejudiced the defendant to an appreciable degree.
The report in question was dated September 29, 1991, and was mailed to the State on October 2, 1991. The appellate court determined that at the earliest, the state would have received the report the day after it was mailed, and, thus, had the report for seven days before giving it to defendant on the morning of trial. Although the report was not promptly given to the defendant, the appellate court was unwilling to find reversible error for the violation in the absence of a showing of actual prejudice to the defendant.
The court of appeal focused on prejudice arising from the defendant's inability to proffer his own expert to rebut Dr. Janzen. It held that the failure of the defendant to make a specific showing as to how another expert would have been able to attack the findings of the psychologist was fatal. The court of appeal failed, however, to focus on the inherent prejudice of the last minute disclosure in precluding adequate time to prepare to rebut the expert's testimony either by effective cross-examination or by offering the testimony of a defense expert. Perhaps more importantly, the court of appeal failed to consider whether this type of expert testimony was itself properly admitted into evidence, considering the significant
The reluctance to embrace this kind of testimony was brought on by a fear of prejudice resulting from potential inaccuracy and the undue persuasive value of the very evidence itself, as opposed to whether or not it was properly rebutted. This prejudicial effect might have been avoided if the trial court carefully weighed and controlled this testimony. In this case, however, the tardy disclosure of the report deprived not only the defendant, but also the trial court of the opportunity for "careful study" of the matter so as to limit the expert testimony to the areas in which courts have generally agreed that the probative value of a child sexual abuse profile outweighs its potential for prejudice. In an effort to guide trial courts in the future, we shall explore what commentators and other jurisdictions consider to be the proper, non-prejudicial use of such expert testimony. This necessarily requires us to set out the general guidelines for the admissibility of expert testimony, as well as setting forth guidelines for admission of this particular kind of expert testimony.
La.C.E. art. 702 sets forth the general rule for the admissibility of expert testimony in Louisiana:
As this provision is virtually identical to its source provision in the Federal Rules of Evidence, F.R.E. 702
"Subsumed in the requirements of Rule 702 is the premise that expert testimony must be reliable to be admissible." State v. Cressey, 628 A.2d 696, 698 (N.H.1993). A recent United States Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, Inc., ___ U.S. ___, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), set forth a means for determining reliability of expert scientific testimony and answered many questions as to proper standards for admissibility of expert testimony.
In Daubert, the court was concerned with determining the admissibility of new techniques as basis for expert scientific testimony. Formerly, the test for admissibility of expert scientific testimony was based on a "short, citation-free 1928 decision" of the District of Columbia Court of Appeals, Frye v. United States, 54 App.D.C. 46, 293 F. 1013
The court replaced Frye with a new standard that requires the trial court to act in a "gatekeeping" function to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. This requirement stems from a belief that the rules on expert testimony serve to relax "the usual requirement of first-hand knowledge" to ensure reliability on the part of a witness. ___ U.S. at ___, 113 S.Ct. at 2796. This relaxation is justified so long as "the expert's opinion (has) a reliable basis in the knowledge and experience of his discipline." Id.
The reliability of expert testimony is to be ensured by a requirement that there be "a valid scientific connection to the pertinent inquiry as a precondition to admissibility." Id. This connection is to be examined in light of "a preliminary assessment" by the trial court "of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether the reasoning or methodology properly can be applied to the facts in issue." Id. The court went on to make some suggestions as to how a court could fulfill its gatekeeping role. These involve whether or not the technique had been subjected to peer review and/or publication, the "known or potential rate of error", the existence of "standards controlling the technique's operation", the technique's "refutability" or, more simply put, testability, and, finally, an incorporation of the Frye general acceptance in the scientific community as only a factor in the analysis. ___ U.S. at ___, 113 S.Ct. at 2797.
The court also stated that other rules of evidence govern this testimony, mainly F.R.E. 403's balancing test that will exclude probative evidence if outweighed by its potential for unfair prejudice.
Id., ___ U.S. at ___, 113 S.Ct. at 2798.
Since much of the Louisiana Code of Evidence is patterned after the Federal Rules of Evidence in an attempt to facilitate a "movement towards a uniform national law of evidence", it seems appropriate for Louisiana courts to, "especially where the language of the Louisiana Code is identical or virtually identical with that used ... in the federal rules" utilize this "body of persuasive authority which may be instructive in interpreting the Louisiana Code." La.C.E. art. 102, Comment
Past decisions of this court have espoused similar sentiments regarding the admission of expert scientific testimony. In State v. Catanese, 368 So.2d 975 (La.1979), this court rejected Frye's "general acceptance" in the scientific community as the only test for the admissibility of polygraph results in criminal trials. This court held that, although the validity of polygraph evidence was not "universally accepted" in the scientific community, the evidence should be admissible in a limited fashion in post-trial proceedings. Id., at 981-82. This court noted that such scientific evidence should be admitted in those proceedings whenever the trial court, after balancing the probative value of the evidence against its prejudicial effect, determines that "the evidence is reliable and will aid in a decision." Id., at 978-79, 983. The admission of the evidence was subject to the "discretion of the trial judge." Id., at 983.
Like Catanese, Daubert refuses to precondition admissibility of expert scientific testimony solely upon its "general acceptance" in the scientific community, and is also similar to Catanese in its reliance upon the evidence's admissibility provided that the trial court properly exercise its gatekeeping function in balancing the probative value of the evidence against its prejudicial effect.
It is not lost upon us that this new standard serves to remove some of the barriers in the admission of expert testimony in many fields, including child sexual abuse cases. Nevertheless, Dr. Janzen's testimony
At the outset, we note that the tardy submission of the report prevented the trial court from exercising its gatekeeping function of determining whether or not the psychologist's opinion accorded with "the knowledge and skill of his discipline". The record is silent regarding any efforts by the trial court to determine, via some sort of evidentiary hearing, whether or not the psychologist's confidence in his ability to diagnose sexual abuse (based on the "dynamics" system known in the field as the Child Sexual Abuse Accommodation Syndrome) was well-founded.
Child Sexual Abuse Accommodation Syndrome ("CSAAS") is a psychological phenomenon prevalent amongst victims of child sexual abuse. It was posited by Dr. Roland C. Summit in the late 1970s and early 1980s, and was a listing of the factors that were "both most characteristic of child sexual abuse and most provocative of rejection in the prevailing adult methodology about legitimate victims." Summit, "Abuse of the Child Sexual Abuse Accommodation Syndrome", 1 Journal of Child Sexual Abuse 153, 154 (1992). The factors were listed so as to both describe "the luxury of the adult world not to listen and the accommodating efforts of the child not to complain." Id. The principal factors (or "dynamics") include secrecy, helplessness, entrapment and accommodation, delayed/conflicted/ and/or unconvincing disclosure, and retraction. Id. The stated purpose in the dissemination of information relating to this "syndrome" was to create a "common language" for treaters of abused children. Summit, "The Child Sexual Abuse Accommodation Syndrome", 7 Child Abuse & Neglect 177, 191 (1983).
Despite this stated purpose, the "syndrome" came to be used as a tool for determining whether or not abuse has occurred, as opposed to the intended use of the "syndrome" as a treatment device:
Myers, Bays, Becker, Berliner, Corwin, and Saywitz, "Expert Testimony in Child Sexual Abuse Litigation", 68 Neb.L.R. 1, 68-69 (1989). Commentators seized upon this as an "abuse" of the "syndrome":
Myers, et al., at 67. This reluctance to embrace such a technique as a diagnostic tool also stems from the fact that CSAAS is, itself, based upon a "summary of diverse clinical consulting experience", making it a "clinical opinion, not a scientific instrument." Summit, "Abuse of the Child Sexual Abuse Accommodation Syndrome", at 156 (hereinafter referred to as "Abuse").
This reluctance has not been shared by certain elements of the legal community, who "have tended to seize upon CSAAS as a major weapon." "Abuse", at 156. Prosecutors could use it to bolster witness' credibility, and defense attorneys were frightened because of the threat that CSAAS posed to "traditional defense arguments that legitimate victims would fight back and complain, that any good mother would know if her child was a victim, and that retractions confirm the common sense assurance that children typically lie about sexual victimization." Id. The prevalent use of CSAAS in courtrooms
The "syndrome's" "discoverer" has stated that
"Abuse", at 160. Instead, "[t]he CSAAS is used appropriately in court testimony not to prove a child was molested but to rebut the myths which prejudice endorsement of delayed or inconsistent disclosure." Id. In this opinion he is joined by commentators who take issue with the use of CSAAS as a diagnostic tool to show to a court that sexual abuse has indeed occurred:
Myers, at 68.
In the instant case, Dr. Janzen used the "dynamics" of the syndrome not as a "common language" to facilitate treatment of the disorder as Dr. Summit and other therapists in the field intended, but as a tool for diagnosing whether or not abuse had occurred.
This type of testimony also suffers from a number of difficulties inherent with all types of psychodynamic psychology. It is essentially "irrefutable", as the only way to test it is by proposing theoretical explanations for behavior and then testing the theories upon patients. See Morse, "Failed Explanations and Criminal Responsibility: Experts and the Unconscious", 68 Va.L.R. 971, 995 (1982). Regardless of opinions on the accuracy of psychodynamic theories such as the one at bar, we must agree with Professor Morse's conclusion that psychodynamic theories on the explanation of human behavior is, at best, a science that is difficult to impossible to test for accuracy. This untestability comes from its very nature as an
Finally, we must examine the "known or potential rate of error." ___ U.S. at ___, 113 S.Ct. at 2797. One of the few sources for validation of expert determinations of the
While Dr. Faller might have been content with a 32% margin of error, we are not so comfortable, especially remembering that "[t]he integrity of the criminal trial process is too important to permit it to be compromised by the admission of dynamic speculations." Morse, at 1017. This type of testimony has been labeled as "so inherently unreliable that they cannot aid decisionmaking in the criminal justice system." Morse, supra, at 1026. In Rimmasch, supra, the court noted that
775 P.2d at 401.
The controversial nature of this evidence is only exacerbated by the existence of other studies that suggest that evidence based on psychodynamic formulations are unreliable. See Morse, supra, at 1022.
Apparently, "there is a lack of consensus about the ability of (CSAAS) to determine abuse (and) the scientific literature raises serious doubts as to the reliability of (CSAAS) testimony when used for forensic purposes to demonstrate that abuse actually
Therefore, this court finds that this type of evidence is of highly questionable scientific validity, and fails to unequivocally pass the Daubert threshold test of scientific reliability. In any capacity, it is highly unlikely that it will be useful to a jury on the issue of a witness' credibility, especially as a tool for determining whether or not abuse actually occurred. Even if it were, the trial court made no such finding, and, by failing to exercise its "gatekeeping" role per Daubert, failed to satisfy what this court believes is a prudent and necessary standard for evaluation of expert testimony in criminal cases. Even assuming,
La.C.E. art. 702 sets up a scheme wherein the expert testifies only as to matters that are calculated to be helpful to the jury. Of course, this helpfulness to the jury is to be balanced by a due consideration of the probative value/prejudicial effect balancing test mandated by La.C.E. art. 403. As this provision generally follows the federal rule and is similar to other state evidentiary rules on testimony as to credibility, we look once again to federal and other state jurisprudence on this matter.
The question of whether or not such testimony on CSAAS is "helpful" to the jury in its determination of a victim's credibility has been one that, although it has generated much litigation in other jurisdictions, is
Myers, at 121-122. The rationales for excluding the evidence all seem to focus on the factfinding role of juries and that part of this role involves a determination as to the credibility of each witness. Testimony by an expert is not particularly helpful to a jury that must rely upon its own common sense as a barometer for the evaluation of truthfulness. The cases all seem to focus on, in the face of such expert testimony, fears of
United States v. Whitted, 994 F.2d 444, 447 (8th Cir.1993).
One of the early cases on this matter that has been repeatedly followed is United States v. Azure, 801 F.2d 336 (8th Cir.1986). There, the court held that a pediatrician's
801 F.2d at 340, citing United States v. Barnard, 490 F.2d 907, 912 (9th Cir.1973).
Other jurisdictions agree with this reasoning on the subject of expert testimony on abuse victims' credibility. In Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920, 922 (1986), the Pennsylvania Supreme Court noted that this type of expert testimony was "an encroachment upon the province of the jury"; the court emphatically stated that
Seese, 517 A.2d at 922. (Citations omitted.) The court also opined that, if experts were permitted to testify as to the credibility of a particular class of witnesses (abused children), then "one could imagine `experts' testifying as to the veracity of the elderly, various ethnic groups, of members of different religious faiths, of persons employed in various trades or professions, etc." Id., at 922. The result would be to
Many states have echoed this sentiment. North Carolina has, on virtually the same basis, rejected this species of expert testimony on credibility, stating that "[t]he jury is the lie detector in the courtroom and is the only proper entity to perform the ultimate function of every trial—determination of the truth." State v. Chul Yun Kim, 318 N.C. 614, 350 S.E.2d 347, 351 (1986). Kansas has also failed to embrace this sort of expert assistance as "human lie detectors for the child", asserting that it is "the function of the jury to hear the testimony of the witnesses as to what the child said, and then make a determination of the reliability of the child's statements." State v. Jackson, 239 Kan. 463, 721 P.2d 232, 238 (1986). The Supreme Court of Oregon, in what may be the most emphatic rejection of proffers of such expert testimony, has stated that
Courts have also been concerned with unfair prejudice to the defendant from this type of expert testimony. Prejudice can result from the testimony's giving "factfinder[s] ... little more than a false sense of security based on the incorrect assumption that a reasonably accurate scientific explanation [for behavior] has been provided." Morse, supra, at 1026. This testimony on credibility has the effect of "putting an impressively qualified expert's stamp of truthfulness" on a witness' testimony. Azure, supra, at 340. This "stamp" has the effect of "so bolstering a witness' testimony ... [as to] artificially increase its probative strength with the jury and ... its admission may in some situations on this basis constitute reversible error." Homan v. United States, 279 F.2d 767, 772 (8th Cir.), cert. denied, 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88 (1960).
This bolstering of credibility has the effect of unfairly prejudicing a criminal defendant, and, as such, the use of CSAAS-based testimony for the purpose of bolstering a witness' credibility creates a risk of prejudice that outweighs its questionable probative value. Given the near unanimity of other jurisdictions' disapproval of CSAAS-based testimony as a determinant of abuse, coupled with our observations of the risk of prejudice inherent in CSAAS, this court now concludes that such opinion testimony as a determinant of a victim/witness' credibility is not admissible.
Several jurisdictions have wrestled with the problem of admission of this testimony for any purpose. Some jurisdictions have allowed its admission for the limited purpose of rebutting attacks on the victim's credibility based on inconsistent statements, limited disclosures, or recantations of the testimony. See State v. Moran, 151 Ariz. 378, 728 P.2d 248 (1986); Smith v. State, 100 Nev. 570, 688 P.2d 326 (1984); State v. Hicks, 148 Vt. 459, 535 A.2d 776 (1987). Other jurisdictions have flatly refused its admission at all. See State v. Myers, 382 N.W.2d 91 (Iowa 1986); Commonwealth v. Seese, supra.
When dealing with expert testimony, the critical question is "On this subject, can a jury receive appreciable help from this person?" Comment, "Psychological Expert Testimony on a Child's Veracity In Child Sexual Abuse Prosecutions", 50 La.L.R. 1039, 1047, citing 3A J. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law § 509 (J. Chadbourne rev. ed. 1978). "Under certain circumstances, expert psychiatric testimony may reveal to the trier of fact characteristics or conditions of the witness which may assist the jury's assessment of credibility." State v. Kim, 64 Haw. 598, 645 P.2d 1330, 1334 (1982). The two most prevalent of these characteristics that may confound a jury are recantation and delayed reporting. 50 La. L.R. at 1046. The court in State v. Myers, 359 N.W.2d 604, 610 (Minn.1984), summed up the need for an expert to "place it in perspective":
The proper presentation of this sort of expert testimony must focus on explaining to a jury why "superficially bizarre" reactions such as delayed reporting, etc. take place in such cases. Wheat v. State, 527 A.2d 269, 273 (Del.1987). The opinion testimony must "seek to demonstrate or explain in general terms the behavioral characteristics of child abuse victims in disclosing alleged incidents," without giving "testimony directly concerning the particular victim's credibility." State v. Spigarolo, 210 Conn. 359, 556 A.2d 112, 123 (1989). If the testimony is limited in this fashion, then it is of assistance to the jury
Wheat, supra, at 275. See also, Frenzel v. State, 849 P.2d 741 (Wyo.1993).
The expert testimony on why victims might recant or delay reporting is being offered to rebut attacks on the victim's credibility. So long as the expert limits the testimony to general characteristics that would explain delays in reporting, recantations, and omission of details, the testimony will not
Goldstein, "Credibility and Incredibility: The Psychiatric Examination of the Complaining Witness", 137 Am.J.Psychia. 1238, 1240 (1980).
In the instant case, the expert testified as to his expert opinion on the victim's credibility, and did not limit his testimony to general information about possible psychiatric explanations for the delay in reporting. In fact, the expert based most of his opinion upon the "level of detail" of the child's description of the sexual abuse. He concluded with an objected-to summation that, in his expert opinion, the witness was telling the truth on that occasion as to whether abuse had occurred. This expert assessment of the witness' credibility was improper, making the trial court's overruling of the objection erroneous.
Finally, as there was error in the admission of the testimony, we must, before considering whether or not to reverse, determine whether or not it was harmless. La. C.Cr.P. art. 921 recognizes that not all errors require reversal, as it mandates that
This sentiment was echoed by this court in State v. Gibson, 391 So.2d 421, 428 (La.1980):
When considering the erroneous admission of evidence, this court has set out the test to be "whether there is a reasonable possibility that the evidence might have contributed to the verdict, and whether the reviewing court is prepared to state beyond a reasonable doubt that it did not." State v. Walters, 523 So.2d 811 (La.1988).
In this instance, the state's case was based largely upon the testimony of the victim. The inadmissible expert testimony served to unduly bolster this testimony and, in all probability, made it much more believable to
Child abuse is a pernicious problem in our society that must be properly addressed and extirpated. However, in our efforts to deal with this growing problem, we should balance other "competing considerations", such as a defendant's right to a fair trial. Wheat v. State, supra, at 274, citing State v. Myers, supra, at 97. After undertaking the exercise of balancing these concerns, this court has determined that CSAAS-based evidence should be admissible only for the limited purpose of explaining, in general terms, certain reactions of a child to abuse that would be used to attack the victim/witness' credibility.
We noted early on in this opinion that no evidentiary hearing was held pursuant to the trial court's gatekeeping function to determine the Daubert factors governing admissibility of the expert evidence presented in this case. Accordingly, our analysis of the issues is based on consideration of the information gleaned from prior reported cases and published literature on the subject matter. The rules established in this decision pertaining to this developing area are not necessarily static. These rules do not preclude consideration by a trial court, performing its gatekeeping function via an evidentiary hearing, of the admissibility of psychological testimony in sexual abuse cases for certain limited purposes, based on current evidence bearing on the reliability and accuracy of this type of evidence.
As the State's use of CSAAS-based testimony was not so limited at the trial court, it constituted an improper comment on the victim's credibility, and served to unduly prejudice the defendant. As this prejudice created an error that was not harmless, we must and do hereby reverse the conviction and remand the case to the district court for a new trial.
DENNIS, J., concurs with reasons.
LEMMON, J., concurs and assigns reasons.
LEMMON, Justice, concurring.
I concur in the reversal of the conviction because, for the reasons stated in Part II, the trial court erroneously allowed the testimony of a psychologist (or failed to grant a continuance) when the prosecutor did not furnish a copy of the psychologist's report to the defense until the morning of the trial. I also concur in the reversal based on Part V because the court allowed the psychologist to state his expert opinion on the credibility of the prosecuting witness' testimony that she had been sexually abused. However, I would decline to define in this case the limitations on the admissibility of testimony of a psychologist regarding his experience in the treatment of sexually abused children.
La.C.E. art. 403 is almost identical:
Morse, supra, at 1026.