State v. Bachman

HENDERSON, Justice

(dissenting).

I respectfully dissent. The testimony of Dr. Williams, regarding rape trauma syndrome, deprived Bachman of a fair trial by imbuing the girls’ testimony with an undeserved scientific aura of truth. Therefore, I would reverse.

The majority opinion relates that neither Dr. Williams nor Dr. Curran “testified that either A.E. or J.E. had been molested by Bachman and neither testified that the girls were absolutely telling the truth.” This statement may have been true of Dr. Curran, who had not examined the girls, but Dr. Williams testified that the girls did *278 not exhibit “any mental- symptoms indicating any psychosis, delusions, hallucinating, or other mental impairment or emotional impairment at this time.” This testimony was direct commentary on the girls’ credibility as witnesses, which is the exclusive province of the jury. See, State v. Huber, 356 N.W.2d 468, 476 (S.D.1984); State v. Bonrud, 246 N.W.2d 790, 793 (S.D.1976). The prejudice of Dr. Williams’ testimony outweighed its probative value and had too much potential to mislead the jury. This conclusion is not based on the “ultimate fact doctrine”, which this Court rejected in State v. Logue, 372 N.W.2d 151 (S.D.1985). Rather, it is premised on a concept explained in» Logue :

[Wjithin the context of a criminal trial, “[sjcientific or expert testimony particularly courts the [danger of undue prejudice or of confusing the issues or misleading the jury] because of its aura of special reliability and trustworthiness.” [United■ States v. Amaral, 488 F.2d 1148, 1152 (9th Cir.1973)] (citation omitted). Permitting the social worker to testify as an “expert” that it was her opinion that the alleged victim gained his sexual knowledge from having sex with appellant, lent a stamp of undue legitimacy to her testimony. Admittedly, the trial court has broad discretion in qualifying an expert but, here, we are not dealing with scientific data which will aid the jury in an area wholly beyond their understanding. Clearly, the social sciences do not claim empiricism or the scientific exactitude that physics and medicine aspire to. We believe that the possibility of prejudice substantially outweighed the probative value of this testimony, and that the trial court clearly abused its discretion in admitting it.

Logue , at 157. (emphisis added).

Dr. Williams also testified that she believed A.E.’s bad dreams, which according to A.E., by Williams’ account, “to most extent referred to the alleged incident[,]” i.e., with Bachman, were “reflective of the syndrome that’s frequently found in a physical or sexual abuse cases.” Thus, Williams connected Bachman to abuse of the girls; 1) A.E. had bad dreams about the charged incident; 2) these dreams, Dr. Williams believed, indicated sexual abuse. The predicate, necessarily, was that Bach-man was guilty. Unlike State v. Swallow, 350 N.W.2d 606 (S.D.1984), where a counselor testified in generalized terms about pedophilia, Dr. Williams specifically connected the girls, A.E. particularly, to sexual abuse and “the alleged incident.” *

In State v. Taylor, 663 S.W.2d 235 (Mo.1984), the Missouri Supreme Court, en banc, deemed a psychiatrist’s testimony that a witness did not fantasize a rape and suffered from rape trauma syndrome to be reversible error:

The jury was competent to determine the victim’s credibility; therefore, Dr. Ama-nat’s testimony designed to invest scientific cachet on the critical issue was erroneously admitted. Otherwise, trials could degenerate to a battle of experts expressing substance of witness’ veracity-

Taylor , at 241. Similarly, Dr. Williams testified about the significance of A.E.’s flashback memory, which “is not something an individual has control over.” The only purpose of such testimony is to imper-missibly enhance the credibility of the witness, A.E. See, Commonwealth v. Gallagher, 519 Pa. 291, 295-297 , 547 A.2d 355, 358 (1988). The risk of expert testimony that a complaining witness suffers from rape trauma syndrome is obvious: “[T]he use of such terminology is likely to mislead the jury into inferring that such a classification reflects a scientific judgment that the witness was, in fact, raped.” People v. Coleman, 48 Cal.3d 112, 143-44 , 255 Cal. Rptr. 813, 830 , 768 P.2d 32, 49 (1989) (quoting People v. Bledsoe, 36 Cal.3d 236 , 203 Cal.Rptr. 450 , 681 P.2d 291 (1984)). In Coleman , the California Supreme Court re *279 iterated its ban, enunciated in Bledsoe , on testimony of the type given here:

We recognized the propriety of introducing evidence on rape trauma syndrome under some circumstances to “provid[e] the jury with recent findings of professional research on the subject of a victim’s reaction to sexual assault” (citation omitted), but such evidence is “limited to discussions of victims as a class, supported be references to literature and experience (such as an expert normally relies upon) and does not extend to discussion and diagnosis of the witness in the case at hand (citation omitted).

Coleman, id. In short, Dr. Williams’ testimony was erroneously admitted under Coleman and its forerunner, Bledsoe .

As developed to date, the nature of rape trauma syndrome, does not permit its use as proof that a rape occurred, which was the underlying message of Dr. Williams’ testimony as explained in Bledsoe:

There is, however, a fundamental difference between rape trauma syndrome and both the battered child syndrome and the other scientific methods of proof that have in the past been evaluated against the Frye [ 293 F. 1013 (D.C.Cir.1923) ] standards of reliability. Unlike fingerprints, blood tests, lie detector tests, voice-prints or the battered child syndrome, (footnote omitted) rape trauma syndrome was not devised to determine the “truth” or “accuracy” of a particular past event — i.e., whether, in fact, a rape in the legal sense occurred — but rather was developed by professional rape counselors as a therapeutic tool, to help identify, predict and treat emotional problems experienced by the counselors clients and patients.

Bledsoe, supra, 36 Cal.3d, at 249-50 , 203 Cal.Rptr., at 459 , 681 P.2d, at 300 . This evidence clearly is too unreliable for admission, as “permitting a person in the role of an expert to suggest that because the complainant exhibits some of the symptoms of rape trauma syndrome, the victim was therefore raped, unfairly prejudices the appellant by creating an aura of special reliability and trustworthiness.” Bledsoe, supra, Cal.3d at 251-52, 203 Cal.Rptr., at 460 , 681 P.2d at 301 .

In conclusion: Bachman’s conviction should be reversed and remanded for new trial. Dr. Williams’ testimony was unfairly prejudicial, having the appearance of scientific exactitude which it did not, in fact, possess. The concerns expressed in Logue and Bledsoe are compelling in this case. As in Logue , the weak evidence and abhorrent nature of the crime charged makes me believe that the triers of fact were unduly inclined to rely upon expert opinion. See, Logue, supra, at 158 . As I indicated in my special concurrence in State v. Hallman, 391 N.W.2d 191, 196-7 (S.D.1986):

What I am driving at is this: Incest victims or rape trauma victims cannot be singled out, specifically, in a given factual scenario, by professional experts as having had a crime perpetrated upon them. The dynamics involved in a like crime may be testified to by experts but for certain limited purposes. Such a purpose would be to support that a class of victims typically make poor witnesses and are reluctant to disclose sordid episodes. Another example would be to permit a professional expert to reveal to the jury that professional research reveals’certain findings on the subject of a victim’s reaction to sexual assault, given to rehabilitate the complaining witness, (citations omitted).

Therefore, I dissent.

A.E. had a septate hymen, making penetration impossible; there were no physical signs of rape on A.E.; yet, supposedly, she was raped 40 to 45 times in approximately 40 to 45 days by eight men. Even the trial court commented that her story was "somewhat incredible” and also referred to the girls’ statements as an "incredible story”.