# State v. Myers > Supreme Court of Iowa · February 19, 1986 · 382 N.W.2d 91 URL: https://www.frixlaw.com/law-library/cases/9656280 ## Case - **Full name:** STATE of Iowa, Appellee, v. Duane MYERS, Appellant - **Court:** Supreme Court of Iowa - **Decided:** February 19, 1986 - **Citations:** 382 N.W.2d 91; 1986 Iowa Sup. LEXIS 1087 - **Precedential status:** Published - **Opinion:** Dissent by Harris - **Judges:** Schultz, Harris, Wolle, Larson, Lavorato - **Cited by:** 150 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9656280 ## How later opinions describe it (automated extraction) - holding that testimony of child abuse investigator (who interviewed victim) that only one child had lied to her about sexual abuse in her sixteen-year career and reference to a study finding only one in 2,500 children falsely reported sexual abuse should have been excluded bec… - holding that it was erroneous for the prosecution to elicit testimony from a child abuse investigator that only one child had lied to her about being sexually abused in her 16 years of employment - reversing admission of expert testimony that included a statement that “out of about . . . 75 cases, there was only one . . . where the child was not telling the truth” and “one in 2500 children . . . did not tell the truth, which would make it exceedingly rare” - holding that testimony of child abuse investigator (who interviewed victim - stating experts will not be allowed to opine on matters “that either directly or indirectly renders an opinion on the credibility or truthfulness of a witness” ## Opinion text HARRIS, Justice (dissenting). I have three principal disagreements with the majority opinion and am convinced any one of them justifies an affirmance. I dissent because the majority in fact applies the wrong standard of review, because the majority holding is at odds with our forward looking liberal admissibility standard of former years, and because the case is a dramatically inappropriate catalyst for such a change. I. My strongest disagreement is on our proper scope of review. Admission of expert testimony is discretionary; we “reverse on a clear showing of abuse.... ” State v. Halstead, 362 N.W.2d 504, 506 (Iowa 1985). The majority pays lip service but does not actually apply this standard. We should find an abuse only if the “discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” State v. Morrison, 323 N.W.2d 254, 256 (Iowa 1982) (quoting State v. Buck, 275 N.W.2d 194, 195 (1979)). The majority’s analysis however accords the trial court no discretion on the admission of the challenged expert testimony. Its private preferences are at odds with those of the judge whose ruling we review and because of that we strike down as error what should be discretionary. II. We were once in the forefront when American courts emerged from the rigid refusal on the part of most courts during the last century to trust juries with expert evidence. We claim to still take a liberal view on the admissibility of expert testimony, in contrast with the hostility of nineteenth century courts, ours included, 1 to expert testimony. That hostility was grounded on a widely held judicial fear that expert testimony would somehow commandeer an essential responsibility of the jury. McCormick explains: [Ujntil about thirty-five years ago [in 1972], a very substantial number of courts had gone far beyond [the] common-sense reluctance to listen to the witness’s views as to how the judge and jury should exercise their functions and had announced the general doctrine that witnesses would not be permitted to give their opinions or conclusions upon an ultimate fact in issue. The reason was sometimes given that such testimony “usurps the function” or “invades the province” of the jury. Obviously these expressions were not intended to be taken literally, but merely to suggest the danger that the jury might forego independent analysis of the facts and bow too readily to the opinion *99 of an expert or otherwise influential witness. Although the rule had been followed in many states prior to 1942, there has been a trend since then to abandon or reject it with the result that now in a majority of state courts an expert may state his opinion upon an ultimate fact, provided that all other requirements for admission of expert opinion are met. The trend culminated in the adoption of Federal Rule of Evidence 704: Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. C. McCormick, McCormick on Evidence § 12, at 30-31 (3d ed. E. Cleary 1984). A footnote to the foregoing text credits an opinion of this court with showing the way. Referring to the trend rejecting the rule excluding such expert opinion the footnote reads: 7. The trend appears to have begun with the leading case of Grismore v. Consolidated Products, 232 Iowa 328 , 5 N.W.2d 646 (1942). See State v. Sheridan, 247 N.W.2d 232, 235-36 (1976) (“Beginning with ... Gris-more ... we have repeatedly held a general objection to opinion testimony that the question invades the province of the jury is invalid and not available.”). Until now our cases have not repudiated the liberal spirit of Grismore . In Halstead we rejected a majority rule excluding testimony relating to a non-organic mental disorder. We acknowledged the exclusion of this special line of testimony was a majority view. We nevertheless said: In our opinion the better rule, however, is that the decision on admissibility should be left to the discretion of the trial court under the circumstances of the particular case, guided by the question of whether the expert opinion will be helpful to the jury in performing its function. 362 N.W.2d at 506 . In State v. Galloway, 275 N.W.2d 736 (Iowa 1979), 2 the majority’s concurring opinion did not go nearly so far as this majority goes. The Galloway majority merely held the “trial court on retrial would be justified in sustaining an objection that [the expert’s] opinion is not the proper subject of expert testimony.” Id. at 741 . This is a far cry from holding that it would be an abuse of discretion to admit the testimony. I also strongly disagree with the majority’s conclusion that the subject matter of this testimony would not be helpful to the jury. Misinformation abounds on the subject. Where the question is a matter of common law (unlike Iowa where it is statutory), courts differ on the question of whether corroboration is required to convict in a sex crime. See Annot., 31 A.L.R. 4th 120 , 125 (1984) (“In a number of cases involving prosecutions for miscellaneous sexual offenses involving child victims ... the courts have held that corroboration of the victim’s testimony is not required.... The contrary view is taken by District of Columbia courts which have held that corroboration of the victim’s testimony is required in such cases due to the immaturity of the victim_”). If the courts in the District of Columbia are confused on the subject it was certainly within this trial court’s discretion to worry about whether the jury might also be confused. The majority places great reliance on cases which hold that expert opinion concerning guilt or innocence of an accused is inadmissible. I have no dispute with those holdings. But I strongly disagree with the majority’s characterization of the challenged testimony: “telling the jury that the complainant would not lie about matters concerning sexual abuse.” The challenged testimony did not relate to anything personal to the child who was the victim in this *100 case. The testimony was offered only to cast light upon a subject that until recent years was in some doubt: whether a class of sex crime victims tend to fantasize what has happened to them. The testimony was useful to put distance from any notion, lingering from former years, that a sex victim was somehow suspect, that sex crimes (in accordance with a discredited instruction) are easy to charge but hard to prove. The testimony did not relate to the victim’s own veracity. III. One can scarcely imagine a more unfortunate case in which to stage retreat from a liberal admissibility standard. The subject of this expert testimony is one upon which we could come close to taking judicial notice. It is a conclusion widely held and highly respected among the experts on the subject. Both experts whose testimony is challenged testified that their conclusion squared with their own experience in dealing with children. One of the two witnesses also related that the conclusion was included as a subject of instruction at special training sessions she attended. Learned treatises also attest the validity of the testimony. See, e.g., Jones, Reliable and Fictitious Accounts of Sexual Abuse in Children, 6 J. Interpersonal Violence —, — (1986) (study found only 1.56% of reports of sexual abuse made by children were fictitious). Just as the subject of the testimony is inappropriate, so likewise is the subject case inappropriate for a retreat. Evidence of defendant’s guilt was clear. He does not deserve a new trial. I would affirm. LARSON, J., joins this dissent. . A statute, Iowa Code section 3655 (1873), mandated the admission of experts’ testimony to compare handwriting with genuine specimens. Our court yielded to the statutory mandate without enthusiasm and with some lack of grace and then commented that “the evidence of experts is of the lowest order and of the most unsatisfactory character." Whitaker v. Parker, 42 Iowa 585, 587 (1876). . I did not join in the majority’s concurring opinion in Galloway . I persist in the views expressed in my Galloway opinion. I am not alone. See U.S. v. Downing, 753 F.2d 1224, 1231 (3d Cir.1985). For purposes of this opinion I can however yield to the views of the Galloway majority. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9656280. Public record. Not legal advice.