State v. Rimmasch

DURHAM, Justice

(concurring):

I join in the majority opinion but write separately to emphasize important conceptual distinctions between inadmissible opinion on credibility and other expert opinion which only indirectly reflects on credibility and is not inadmissible on that ground. I write also to express my views on the specific analytic content of the “inherent reliability” standard.

The majority opinion correctly concludes that experts cannot testify directly about the credibility of a witness on a particular occasion. Utah Rule of Evidence 608(a) clearly prevents such testimony. However, much expert testimony indirectly “tends to show that another witness either is or is not telling the truth.” State v. Myers, 359 N.W.2d 604, 609 (Minn.1984). That fact, alone, does not preclude admission of the testimony under rule 608(a). In child sexual abuse cases, for example, experts may testify that it is their opinion that a child has been abused if adequate foundational showings are made. See United States v. Azure, 801 F.2d 336 (8th Cir.1986). While such opinions implicitly assert a belief in the child’s story, they are not equivalent to explicit opinion that the child is telling the truth. 1

The majority opinion refers to two portions of Dr. Tyler’s testimony as examples of direct opinion testimony. The second example, which contained testimony that Dr. Tyler “could envision no motive for the daughter to lie,” was properly characterized as a direct comment on truthfulness and thus was inadmissible. The first example, however, contained testimony that only indirectly reflected on truthfulness. The following dialogue occurred on direct examination when the prosecutor asked Dr. Tyler to relate the basis for her opinion that the daughter had been abused:

Q. And in addition to listening to her and making note of what she was saying, *409 did you also observe her as she was talking?

A. Yes.

Q. Based upon this and the tests that you have described that were given and scored, do you have an opinion, yes or no, as to whether [the daughter] was sexually abused?

A. Yes.

Q. And what is the basis for that opinion?

A. The basis for the opinion is the combination of the profile, the tests and the clinical interview with [the daughter], and the interviews with her siblings and her mom.

Q. All right. I would like you to tell us what specifically in the interview, in the tests, in your observations of [the daughter] in her telling what had occurred you are relying on in forming your opinion.

A. Well, specifically, in my opinion, one does not give this kind of information with the amount of details and the amount of clarity unless one has experienced it.

(Emphasis added.)

Dr. Tyler’s response to the prosecutor’s questions emphasized two factors among many that psychiatrists/psychologists weigh when diagnosing child sexual abuse — the amount of clarity and detail in the child’s statements. It was not impermissible, under a rule 608(a) analysis, for Dr. Tyler to testify that the presence of those factors supported her conclusion that the daughter had been abused.

Psychiatrists are trained to evaluate the behavioral content of their patients’ communications. Thus, how a child describes abuse is as important to the trained clinician as what the child says during the interview. Factors such as facial expression, eye contact, richness of memory, unusual emotional reaction to neutral questions about sexual matters, developmentally abnormal sexual behavior, and age-inappropriate knowledge of sexual acts provide a basis upon which trained clinicians diagnose sexual abuse. See White, Behavioral Comparisons of Young Sexually Abused, Neglected, and Nonreferred Children, 17 J. Clinical Child Psychology 53-61 (1988); Kolko, Behavioral/Emotional Indicators of Sexual Abuse in Child Psychiatric Inpatients: A Controlled Comparison with Physical Abuse, 12 Child Abuse & Neglect 529-41 (1988). Other observable characteristics common to victims of child sexual abuse include

(1) consistency between the description given in the interview and what the child had previously reported, (2) the ability of the child to provide explicit detail that could only have been learned by experience, (3) the use of language appropriate to a child in describing that experience, (4) corroboration of the details given by the child, (5) a reported emphasis by the perpetrator on secrecy, (6) the occurrence of multiple incidence [sic] over time, (7) consistency between the extent of the abuse and the level of trauma exhibited by the child, (8) the child’s ability to demonstrate what occurred using anatomically correct dolls, and (9) the presence of anger or fear on the part of the child toward the perpetrator of the abuse.

State of Tennessee v. Schimpf, No. 272, slip op. at 6, 1989 WL 25788 (Tenn.Crim.App. at Knoxville, Sept.1988) (Daughtrey, J., dissenting).

These characteristics “stand in contrast to nonspecific ‘symptoms’ ... relied upon by experts in other cases, such as nightmares, crying spells, bedwetting, difficulty in school, weight loss, unstable family relationships, general anxiety, and the like, which obviously could be the result of emotional trauma caused by problems other than child sex abuse.” Schimpf , slip op. at 6. Profile testimony based on specific observable characteristics, such as those summarized in the preceding paragraph, may well be admissible under our “inherent reliability” standard.

Before expert psychological testimony can be admitted in child sexual abuse cases, an adequate foundational showing must be made. The scientific principles and techniques upon which the testimony is grounded must be shown to be inherently reliable *410 before expert psychological testimony is admissible. 2

Because admissibility decisions surrounding psychological evidence are complex, I think that the majority’s mere articulation of an admissibility standard is insufficient. In order to assist trial courts in applying the inherent reliability standard in future cases, I believe that we should examine in more detail the content of that standard.

In Phillips v. Jackson, 615 P.2d 1228 , 1234 (Utah 1980), inherent reliability “became the touchstone of admissibility” of expert scientific testimony. Majority opinion at 396. According to the majority opinion’s interpretation of Phillips, the foundational showing necessary in an inherent reliability analysis is one that carefully examines questions such as the correctness of the principles underlying the scientific testimony, the accuracy and reliability of the methods utilized in application of the principles to the subject matter before the court, and the qualifications of the experts who gathered and analyzed the data. “In fine, [the majority concludes] the trial court should carefully explore each logical link in the chain that leads to the expert testimony given in court and determine its reliability.” Majority opinion at 403.

The questions explored by this Court in Phillips provide only limited guidance to trial judges who must apply the inherent reliability standard. Furthermore, the inherent reliability standard articulated in Phillips was designed with “hard” physical science evidence in mind and thus fails to take into account a number of factors which are relevant when determining admissibility of “soft” psychological testimony. I believe that Professor David McCord’s “four-factor balancing test,” which takes into consideration the unique characteristics of psychological testimony, would lend coherence to our inherent reliability analysis. McCord’s approach examines factors particularly pertinent to psychological evidence in a manner which indicates how the factors apply in relation to each other. See McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 Or.L.Rev. 19 (1987); McCord, Expert Psychological Testimony About Child Complainants In Sexual Abuse Prosecutions: A Foray Into The Admissibility of Novel Psychological Evidence, 77 J.Crim.Law & Criminology 1 (1986).

The four factors which are considered sequentially under Professor McCord’s suggested approach are necessity, reliability, understandability, and importance. The necessity factor directs the court’s attention to how necessary the offered testimo *411 ny is in a particular case. Necessity is analyzed at two levels: “First, at the threshold level of whether there is any necessity; and second, if there is necessity, how great is it?” McCord, 66 Or.L.Rev. at 95.

At the threshold level, it must be asked if the testimony will add to the jurors’ knowledge. Psychological expert evidence frequently adds to a jury’s understanding by providing new ways of looking at issues, by helping jurors utilize knowledge that they may already have, or by correcting jurors’ assumptions that are based upon common but erroneous perceptions. Thus, most psychological evidence will meet this threshold inquiry.

The second level of necessity inquiry is, however, the key one. Four sub-inquiries need to be made in determining how great the necessity for the testimony is: (1) Is there a close “fit” between the facts of the case and the subject matter of the expert testimony? (2) What is the level of jury insight on the issue at hand? Is there a substantial difference between the level of insight offered by the expert and the level of insight the court believes the jury is likely to have? (3) Has the opponent attempted to highlight “weaknesses” in the opposition’s case? If so, expert testimony may be needed to explain why those weaknesses are not what they seem. (4) Do less objectionable alternative forms of testimony exist? Id. at 96-98. Answers to these sub-inquiries will vary from case to case.

The reliability factor has two components: accuracy and consistency. Courts must make this determination even though the subjective nature of psychological diagnoses often makes it difficult. Three sub-inquiries are especially important here: (1) Looking at the substance of the testimony and comparing it with the credentials of the expert giving it, is it plausible that this expert can make this diagnosis? Do clear diagnostic criteria exist? (2) What is the degree of acceptance by the pertinent scientific community of the accuracy of this particular scientific method? (3) How general is the testimony? The more general the testimony, the more likely the evidence is reliable. Id. at 98-99.

The understandability factor refers to the ability of the jurors to understand the testimony and give it proper weight. Three sub-inquiries illuminate this factor: (1) How far removed from the jurors’ common experience is the subject matter of the testimony? The closer it is to the common experience, the more likely the jurors are to understand it and give it proper weight. (2) Does the opponent have access to experts and specialized literature allowing him or her to effectively cross-examine the proponent’s experts and put the experts’ conclusions into perspective? (3) To what extent will the testimony overawe the jury? Testimony couched in statistical terms is more likely to overwhelm the jury than other forms of psychological evidence. The more subjective the conclusion, the less likely it is to overwhelm the jury. Id. at 100-01.

The last factor to consider is the importance of the expert testimony. The question that must be answered is, how crucial to the resolution of this case is the issue on which the expert testimony is being offered? If the expert opinion would be dis-positive of the case if believed, then it ranks very high on the importance scale and must be carefully scrutinized. For example,

an expert diagnosis that a child complainant is a sexual abuse victim is very important, since whether the child was abused is one of the two key issues in a child sexual abuse case (the other being who perpetrated the abuse). By contrast, expert testimony that it is not uncommon for a child sexual abuse complainant to recant the accusation is of lesser importance because even if believed it does not dispose of the case. The jury still has to decide whether the complainant was in fact a child sexual abuse victim.

Id. at 101.

After identifying issues concerning the necessity, reliability, understandability, and importance of the proffered expert testimony, courts should undertake a balancing of *412 the factors to determine whether the testimony should be admitted. As Professor McCord explains:

The balancing is necessary because none of the factors alone absolutely controls the analysis. Further, some factors may even cut in opposite directions. The subjective nature of the conclusions involved with nontraditional psychological evidence demonstrates this problem. Because the conclusions are subjective, they are less reliable. This cuts against admissibility. On the other hand, since the jury is likely to understand that the conclusions are subjective, the jury is less likely to be overawed by them, and this cuts in favor of admissibility.

Two pairs of factors are particularly interdependent in the balancing process. First, there is a strong correlation between reliability and importance. The greater the importance of the testimony, the greater should be its guarantees of reliability in order to gain admission. Testimony which is dispositive, or virtually dispositive of a case if believed, should have strong guarantees of reliability. On the other hand, if the testimony is less important, and thus will not be dis-positive of the case, then the court usually should be willing to accept a lesser degree of reliability.

The second important interaction is between reliability and necessity. If the necessity for the evidence arises because of the opponent’s actions, then the court should tolerate a lesser degree of reliability as the proponent is in a sense forced to offer the evidence to repair damage, and the opponent opened the door for the presentation of such evidence.

Id. at 102.

Admissibility decisions regarding psychological evidence will always be complex. However, Professor McCord’s four-factor balancing test would at least “assure that courts are asking the right questions and taking the proper factors into consideration when making those difficult decisions.” Id. at 108.

. Testimony of this nature does not differ from medical opinion testimony that, for example, a set of subjective symptoms related to a physician by a patient are consistent with a soft tissue injury. The physician’s testimony is admissible even though he or she is indirectly "opining” that the patient's recitation of symptoms is truthful. See United States v. Wesson, 779 F.2d 1443 (9th Cir.1986) (allowing medical testimony in a rape case to demonstrate that victim’s condition was not consistent with consensual intercourse, thereby aiding the jury in determining the credibility of the victim’s claim of rape).

The opinion of a psychiatrist/psychologist is premised, in part, upon the statements of a patient and only differs from a physician’s opinion in that the psychiatrist makes diagnoses concerning the human mind, while the physician ministers to the human body. Both use a patient's statements as an aid in reaching a final diagnosis. A psychiatrist does not purport to be an expert lie detector. The psychiatrist attempts to use available tests, patient histories, and psychological premises to identify problems and the causation of those problems just as the physician does.

. The majority opinion suggests that the trial court may have believed that this Court’s opinion in State v. Lairby, 699 P.2d 1187 (Utah 1984), contained a determination of the reliability questions surrounding expert psychological testimony. To the extent that Lairby may have been relied upon as authority for the proposition that expert psychological opinion testimony is admissible in child sexual abuse cases without adequate foundation, it has been misinterpreted.

In Lairby , the defendants claimed that the trial court erred in admitting expert opinion testimony that their four-and-a-half-year-old daughter was a victim of sexual abuse. Defendants argued that (1) no foundation was given as to the expert's qualifications to diagnose the occurrence of sexual abuse in the absence of physical injuries; (2) insufficient foundation was laid as to whether statements made by the daughter to the expert were typically relied upon by experts; and (3) no foundation was provided to show why this expert was "more qualified” to give an opinion as to the daughter’s truthfulness.

Although the record substantiated the defendants’ first argument, they made no objection at trial to the expert's qualifications to testify and thus waived their right to appeal that point. The defendants’ second argument was correct as well. However, they were precluded from challenging this failure "because every time the prosecution attempted to introduce such testimony, defense counsel objected and was erroneously sustained by the trial judge on the ground of hearsay.” Id. at 1200 . As a result of the defendants’ improper hearsay objections, the expert was precluded from laying necessary foundation. In rejecting the defendants’ second argument, we stated, "Defendants may not improperly object to the admission of evidence and complain on appeal about its omission.” Id. at 1201 . We rejected the defendants’ third argument as meritless. Thus, the questions now before this Court were not discussed, even in dicta, in Lairby .