Commonwealth v. Hudson

O’Connor, J.

(dissenting, with whom Liacos, C.J., joins). The court concludes that the psychologist’s description of posttraumatic stress disorder (PTSD) “was admissible to rebut the defendant’s suggestions made during cross-examinatian that the [alleged] victim was a troubled teenager, whose medical problems were related to menstruation, and whose unhappy home life could lead to false claims of rape.” Ante *544 at 541. Presumably, the defendant’s suggestions to which the court refers were contained in defense counsel’s questions rather than in the alleged victim’s testimony. It also appears that the “medical problems” to which the court refers were stomachaches. The court further concludes that, “[s]imilar to [Commonwealth v. Dockham, 405 Mass. 618 (1989)], the expert testimony here is permissible to explain the [alleged] victim’s postassault behavior and symptoms including her stomachaches and nightmares. . . . As in Dockham , this information is relevant to assist the jury in assessing the [alleged] victim’s testimony and credibility.” Ante at 542. The court does not identify the postassault behavior to which it refers unless perhaps it means to characterize the alleged victim’s nightmares as behavior, nor does it identify or specify what, if any, symptoms it may have in mind other than stomachaches and nightmares.

Stomachaches and nightmares do not constitute behavior, and therefore Commonwealth v. Dockham, supra, on which the court so heavily relies, and Commonwealth v. Mamay, 407 Mass. 412 (1990), on which the court also relies, ante at 540-541, both of which deal only with a victim witness’s behavior, do not support the court’s conclusion that the PTSD testimony in this case was properly admitted.

In Dockham , the defendant challenged the admission in evidence of a psychiatrist’s testimony which the court described as follows. “Dr. Brant testified that sexually abused children often delay disclosure of sexual abuse or make gradual disclosures, retract their statements, and repress the abuse. The behavioral signs and symptoms she described include sexualized play, knowledge of adult sexual functions, fears and anxieties related to body parts, people, and places involved in the sexual abuse.” Dockham, supra at 628 . Dockham involved expert testimony about a typical child victim’s behavior pattern which, if not understood by the jury, might reasonably have led the jury to disbelieve the child’s testimony. For example, in that case, the expert informed the jury that a child’s delay in reporting sexual abuse is not unusual, thereby disabusing the jurors of any misperception *545 they might reasonably have had that, if the sexual abuse had occurred as the child testified, it would have been more promptly reported. The court held that the evidence was properly admitted “because the information is beyond the common knowledge of jurors and of assistance in assessing a victim witness’s testimony and credibility.” Id. at 629 . It is abundantly clear from the five cases cited by the court in Dockham , with parenthetical summaries of the holdings, that the expert testimony was held admissible because it explained the alleged victim’s behavior that, if left unexplained, might unfairly have led the jury to disbelieve him or her. Id. at 629-630 .

Commonwealth v. Mamay, 407 Mass. 412 (1990), is no more supportive of the court’s holding in this case than is Commonwealth v. Dockham, supra. The rationale of the two cases is the same. In Mamay, supra at 421 , an expert in the field of rape and sexual assault syndrome was allowed to testify that not all victims of rape and sexual assault will report the event immediately and that often the first person they will tell is someone close to them. The expert also said that, in the context of a trust relationship, such as a doctor-patient relationship which was the relationship between the alleged victim and the defendant in Mamay , some victims may return to the trusted relationship for further contact with the perpetrator of the assault. In affirming the judgment, the court held that “[i]t was within the judge’s discretion properly to conclude that it was beyond the jury’s common knowledge to know why a victim would return to a situation in which she had been sexually assaulted or raped.” Id. In Mamay , as in Dockham , the court held that expert testimony was admissible to disabuse the jury of the idea, reasonably accepted in the absence of contrary information, that the alleged victim’s conduct was inconsistent with the claims the victim was making on the witness stand.

The expert testimony in Dockham and Mamay was clearly relevant to the critical question of the credibility of the key witnesses, and was therefore held admissible. Neither Dock-ham nor Mamay suggests, however, that PTSD testimony *546 should be admissible to rebut suggestions in a cross-examiner’s questions put to an asserted sexual abuse victim that his or her stomachaches and nightmares may have been caused by events or conditions unrelated to sexual abuse. Indeed, rebuttal evidence ordinarily is admitted only to rebut other evidence. The court’s conclusion that the PTSD testimony in this case was properly admitted cannot fairly be justified as following from Dockham and Mamay .

The court quite properly recognizes the “solidarity of judicial precedent in excluding [PTSD] evidence to prove that the victim was in fact sexually abused.” Ante at 541, quoting State v. J.Q., 130 N.J. 554, 556 (1993). The court, nevertheless, holds the PTSD evidence admissible in this case to “rehabilitate the victim’s testimony.” Ante at 541. The rehabilitation is said to occur .as a result of the PTSD evidence rebutting certain suggestions made by defense counsel in the course of cross-examining the alleged victim, and by explaining the alleged victim’s “behavior” and symptoms, thereby assisting the jury’s assessment of the alleged victim’s credibility. Of course, if PTSD evidence were admissible to prove that a complaining witness had been sexually abused, the evidence would also tend to prove that the witness’s complaint was truthful. However, as the court agrees, PTSD evidence is not admissible to prove that sexual abuse occurred. It is reasonable to inquire, then, how could the PTSD evidence have legitimately assisted the jury in assessing the alleged victim’s credibility in this case. The court’s opinion is bereft of explanation.

The psychologist testified that stomachaches and nightmares are typical symptoms of a child who has been sexually abused or has suffered other forms of trauma. She said, “There are a number of organic things that can cause stomachaches, and not being a physician, I shouldn’t testify about that. In the psychological or psychiatric domain, you see stomachaches from school phobia, from separation anxiety. In young children, from stress and anxiety. Something can be going on in school or in the family. People often show their anxiety and their stress through bodily symptoms.” The *547 psychologist also testified that “[n]ightmares is another red flag which tends to raise questions, at least in my mind, of some traumatic experience, or some highly stressful experience.” The psychologist’s testimony shed no light whatsoever on whether any suggestion that may have come from defense counsel that the alleged victim was a troubled teenager whose medical problems were related to menstruation, and whose unhappy home life could lead to false claims of rape, was accurate or inaccurate. The PTSD testimony did not rebut any suggestions that defense counsel may have made, and it gave the jury no information whatsoever tending to support the alleged victim’s credibility.

The court agrees that the PTSD testimony was not admissible to prove that the alleged victim was sexually abused, and it is clear that the evidence did not rebut any suggestions made during cross-examination of the alleged victim. The PTSD evidence was of no legitimate assistance to the jury in assessing witness credibility or otherwise. The defendant objected to the evidence. Its admission was erroneous, and cannot properly be deemed harmless because it cannot fairly and confidently be said that the jury did not rely to some degree on the PTSD evidence in arriving at their verdict. In his summation to the jury, the prosecutor argued, “Ladies and gentlemen, there’s been testimony about the nightmares, about the pain, about depression. And if those things are symptoms with the disclosure, you get a picture. A picture of a child who was raped and who has finally found the time to come in.” Then, after hearing this invitation to use the PTSD testimony as affirmative evidence of abuse, the jury heard from the judge in his final instructions that, while they were not bound by the opinions of experts, experts “can . . . by their opinion assist [the jury] to find facts upon which [the jury] will decide the case.” It was made clear to the jury that, if they were to accept the psychologist’s testimony “in whole” or “in part,” they could use her opinion without limitation in determining the guilt or innocence of the defendant. It makes no difference whether the jury may have used the erroneously admitted PTSD evidence as affirmative evidence *548 of sexual abuse, or only as supportive of the alleged victim’s credibility. It also is of no consequence that the defendant did not ask for a limiting instruction or object to the instruction. Ante at 542. It is enough that the jury may have relied on inadmissible evidence, admitted over objection, to the detriment of the defendant. The convictions should be reversed and the case remanded for retrial.