“Testimony that the declarant still appeared ‘nervous’ or ‘distraught’ and that there was a reasonable basis for continuing emotional upset will often suffice [to qualify the statement as an excited utterance].”
How later courts described this case
- “Testimony that the declarant still appeared ‘nervous’ or ‘distraught’ and that there was a reasonable basis for continuing emotional upset will often suffice [to qualify the statement as an excited utterance].”
- social worker's testimony that victim probably gained his sexual knowledge from sex with defendant was reversible error
Written by the judges who cited it.
Distinguished
Distinguished by State v. Bachman, 1989 S.D. LEXIS 157 (1989)
We decline to accept Bachman’s invitation to stray from our own precedent concerning the trial court’s discretion in admitting expert testimony.4 Further, while we adhere to our holding in Logue, we believe that it is inapposite to the facts in this case.
The opinion
FOSHEIM, Chief Justice
(dissenting).
Being unable to conclude that the trial court clearly erred in admitting the social worker's statement that she believed the four-year-old victim gained his sexual knowledge from sexual contact with defendant, I dissent.
Expert testimony is admitted at the discretion of the trial judge and his ruling will not be reversed absent a clear showing of abuse of that discretion. State v. Bittner, 359 N.W.2d 121, 125-26 (S.D.1984) (citing State v. Lachowitzer, 314 N.W.2d 307 (S.D.1982) and State v. [Iron] Shell, 301 N.W.2d 669 (S.D.1981). See also Buckley v. Fredericks, 291 N.W.2d 770, 771 (S.D.1980); Kramer v. Sioux Transit, Inc., 85 S.D. 232 , 180 N.W.2d 468 (1970); State ex rel. Helgerson v. Riiff, 73 S.D. 467 , 44 N.W.2d 126 (1950). Further, it is within the judge’s discretion to determine “how far counsel must limit his questions so the [expert] opinion will be of assistance to the jury.” Kramer, 85 S.D. at 239 , 180 N.W.2d at 472 . While the foundation presented to the jury was less than ideal, the record does not indicate a want of information from which the jury could weigh and accept or reject the social worker’s conclusion.
The jury was ultimately left with sufficient information on which to assess the expert’s conclusion and accept or reject it. See Cargill, Inc. v. Elliott Farms, Inc., 363 N.W.2d 212, 215 (S.D.1985). In sexual abuse cases involving children, expert testimony on the child’s degree of sexual knowledge (in contrast to other children of *161 the same age) may be helpful to a jury, especially where the child is extremely young. See State v. Myers, 359 N.W.2d 604, 609-11 (Minn.1984). Advanced sexual knowledge is a trait commonly exhibited by sexually abused children and has been recognized in South Dakota. 1 Id. More important, discussion of this characteristic is an appropriate topic for an expert witness since jurors cannot be expected to rely on common knowledge and experience concerning the mental and physical condition of a four-year-old sexual abuse victim. See State v. Kim, 64 Hawaii 598 , 645 P.2d 1330, 1337-38 (1982). We must take care not to diminish or foreclose evidence of this nature. The ipajority opinion labels this evidence as only corroborating the credibility of the child as a witness. Under appropriate circumstances, it should be admitted as independent relevant, material evidence of sexual abuse. 2
Clearly, there was no abuse of judicial discretion in qualifying the social worker as an expert opinion. In re J.L.H., 316 N.W.2d 650, 651 (S.D.1982). Further, the sexual knowledge of the four-year-old victim was a proper subject for expert testimony because the social worker could provide the jurors “with peculiar knowledge or experience, not common to the world.” Wentzel v. Huebner, 78 S.D. 481, 493-94 , 104 N.W.2d 695, 702 (1960) (quoting Taylor v. Town of Monroe, 43 Conn. 36, 44 ). See also Buckley v. Fredericks, 291 N.W.2d 770 (S.D.1980); Walthoff v. Hall, 73 S.D. 483 , 44 N.W.2d 221 (1950). The social worker’s opinion was not necessarily conclusive. DuPratt v. Black Hills Land and Abstract Co., 81 S.D. 637, 642 , 140 N.W.2d 386, 389 (1966). The jury was not bound by the expert’s opinion. Robinson v. New York Life Insurance Co., 69 S.D. 30, 35 , 6 N.W.2d 162, 164 (1942). Finally, any factual deficiencies relate to the weight of the testimony and not its admissibility. Buckley, supra at 772 .
. "A young child is unlikely to fabricate a graphic account of sexual activity because such activity is beyond the realm of his or her experience." State v. McCafferty, 356 N.W.2d 159, 164 (S.D.1984).
. Other states have faced similar issues in recent child abuse cases. No clear trend has emerged. See State v. Myers, 359 N.W.2d 604 (Minn.1984) (expert testimony on the characteristics typically found in sexually abused children said to be only collateral evidence on the victim’s credibility); State v. Petrich, 101 Wash.2d 566 , 683 P.2d 173 (1984) (credibility of a very young alleged sexual abuse victim-witness may be an inevitable central issue); see also State v. Middleton, 294 Or. 427 , 657 P.2d 1215 (1983) (much expert testimony tends to reflect on a certain witness’s credibility and that, itself, will not render the evidence inadmissible). Compare, People v. Roscoe, 168 Cal.App.3d 1093 , 215 Cal.Rptr. 45 (5th D.Cal.Ct.App.1985) (expert’s diagnosis of boy as molestation victim held inadmissible).