Schutz v. State

WOMACK, Judge,

concurring.

Children are not small adults. The younger they are, the less like adults they are. If the courts treat children as though they are adults, the courts are treating them wrongly. *78 The younger the children are, the more they are being mistreated.

Texans have made progress in recognizing that child witnesses must be treated differently from adult witnesses. The legislative and executive branches have enaetéd several laws in this area. The corroboration requirement in sexual assault was deleted for child victims, 1 and the period of limitation in such eases was extended. 2 Those statutes showed the legislature’s recognition that children do not always quickly tell someone that they havé been abused. Child victims of certain offenses have been allowed to give evidence on videotape, 3 by closed-circuit television, 4 or by statement to an adult, 5 because it was recognized that there are better ways to get the truth from a child than by marching the child to the witness stand in open court to be questioned as an adult.

This Court has not been altogether inactive. We approved closed-circuit televising of a child witness’s testimony in all kinds of cases, even though it was not authorized by statute, for the same reasons the legislature approved it for victims of certain offenses. 6

Today the Court takes more steps forward. It permits the introduction of expert testimony about the ability of young children, as a class, to testify. Ante at 70-71 & Appendix at No. 2. It recognizes that credibility can be'put in issue by questions, even when the answers are not impeaching. Ante at 72 & Appendix at No. 4. And the Court approves the introduction of expert “testimony about the common symptoms or traits of a child who is fantasizing or being manipulated coupled with testimony that the child in question does not exhibit those symptoms or traits.” Ante at 76, Appendix at No. 4 ; also see ante at 70.

Yet the Court still finds error in allowing the expert to testify that the child in question was not fantasizing or being manipulated, and it remands the case to the court of appeals for harm analysis. The result of that analysis is a foregone conclusion. The Court’s rule is, when a child witness has been impeached, it is not error to admit testimony of the major premise of a syllogism (children who are fantasizing or being manipulated behave in certain ways) and the minor premise (this child did not behave in those ways), but it is error to admit testimony of the inevitable conclusion (this child was not fantasizing or being manipulated). Could jurors, who have heard the expert’s opinion on the major premise and the minor premise, not be aware that the expert must hold the inevitable opinion about the conclusion? The conclusion is ineluctable after the premises have been admitted. It would be more natural and straightforward to admit the expert’s opinion on the conclusion. I would not be deterred from doing so by the reasons the Court gives today.

The Court says it is justified in excluding the expert’s opinion on the credibility of a child witness because “expert testimony must aid—not supplant—the jury’s decision.” Ante at 59 (citing Duckett v. State, 797 S.W.2d 906, 914 (Tex.Cr.App.1990)). I would not follow the dictum of Duckett , or the holding of its successor, Yount v. State, 872 S.W.2d 706 (Tex.Cr.App.1993), which exclude the expert’s opinion on the credibility of the child who reports sexual abuse. First, the expert opinion could supplant the jury’s decision only if it were accompanied by an instruction from the court that the jury must agree with the expert’s assessment. State v. Geyman, 224 Mont. 194, 199 , 729 P.2d 475, 478 (1986). Second, this dictum is merely a restatement of the common-law rule that expert opinion must not “invade the province of the jury” or “embrace an ultimate issue.” Texas Rule of Criminal Evidence 704 expressly did away with that common-law rule as, ironically, this Court recognized in Duckett, supra, at 914 .

Third, the Court’s view that an expert’s opinion on credibility does not assist the jury is based on its notion that jurors are just as capable as experts in drawing conclusions *79 about credibility. 7 It is important to remember what this Court forgot in cases such as Yount v. State, supra: The issue is not. the credibility of witnesses generally or even the credibility of child witnesses generally. It is whether a child who says she has been sexually abused is fantasizing or being manipulated. This is not within the everyday experience of lay persons. Even if it were within the experience of some lay persons, none of them would be on the jury; the parties will have removed from the jury every person who has personal experience with sexually abused children. It would be helpful for the jury to hear the ultimate opinion of someone who has been trained and experienced in dealing with such children, and who dealt with the particular child at a time closer to the alleged event and in a setting that is more conducive than a courtroom to getting accurate evidence from children.

Fourth, Texas Rule of Criminal Evidence 403, which makes relevant evidence admissible unless its probative value is substantially outweighed by the danger of unfair prejudice, supports the admission of the expert’s ultimate opinion. (Ironically again, the Court in Duckett v. State, supra, at 914, recognized that Rule 403 “significantly altered” the law for admitting evidence.) If the jury has heard what the Court has today held to be proper—the expert’s opinion that manipulated or fantasizing children display certain characteristics which the victim in this case does not display—how could there be any substantial danger of further prejudice in the expert’s opinion that this child has not been manipulated or fantasizing? As I have pointed out above, the conclusion is ineluctable after the premises have been admitted.

The Court says that there is disagreement on the subject of improving the reliability of children’s testimony, “[0]ur rejection of expert testimony on truthfulness is based in part on a belief that psychology is not an exact science but involves much uncertainty and is often subjective.” 8 This is true of many fields of expertise, such as medicine. The standard for the admission of expert testimony is not its “seientificness”; it is whether the expert has specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue. Texas Rule of Criminal Evidence 702.

Finally I want to record my surprise at the Court’s skepticism about the value of psychological opinion. This skepticism has nowhere been evident on the question of predicting future dangerousness in capital murder trials. 9 The American Psychiatric Association says such prediction is not within the expertise of psychiatrists, 10 and this Court has held that lay persons (or at least persons with no formal training) are also qualified to predict future dangerousness. 11 But this Court admits opinions on the subject from psychologists and psychiatrists. Chambers v. State, 568 S.W.2d 313, 324 (Tex.Cr.App.1978) (rejecting argument, in “well-written brief citing many authorities on the subject of psychiatric diagnosis,” that the discipline of psychiatry is not sufficiently advanced to permit predictions of future violent behavior), ce rt. denied, 440 U.S. 928 , 99 S.Ct. 1264 , 59 L.Ed.2d 484 (1979). Accord, e.g., Barefoot v. State, 596 S.W.2d 875, 887 (Tex.Cr.App.1980) (“This Court is well aware that the ability of psychiatrists to predict future dangerousness is the subject of widespread debate. However, we are not inclined to alter our previously stated view”), cert. denied, 453 *80 U.S. 913 , 101 S.Ct. 3146 , 69 L.Ed.2d 996 (1981). It would be more consistent with these decisions to admit the expert’s ultimate conclusion on the testimony of child witnesses.

The Court says that Montana is in the minority in holding that children require special consideration. 12 Although it may be in the minority, the Montana Supreme Court’s holding recognizes that child witnesses are different from adult witnesses, it is faithful to the rules of evidence, it is logical, it meets the needs of the jury, and it furthers the goals of the justice system. I would be willing to follow Montana’s lead on this issue, and today I join the Court’s opinion which moves in that direction.

McCORMICK, P.J., joins this opinion.

. Tex.Code Crim. Pro. art. 38.07.

. Tex.Code Crim. Pro. art. 12.01(2)(D).

. Tex.Code Crim. Pro. art. 38.071.

. Ibid.

. Tex.Code Crim. Pro. art. 38.072.

. Gonzales v. State, 818 S.W.2d 756 (Tex.Cr.App.1991).

. Ante at 69, citing Yount v. State, supra.

. Ante at 69.

. Tex.Code Crim. Pro. art. 37.071, § 2(b)(1).

.

"In the view of amicus, this kind of inquiry about long-term future violence essentially does not involve medical analysis, and is not within the realm of established psychiatric expertise .... The psychiatrist's medical training and experience do not qualify him to provide reliable testimony about the likelihood of long-term future harmful acts.”

Brief Amicus Curiae, for the American Psychiatric Association, Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979), quoted in J. Robitscher, The Powers of Psychiatry 205 (1980).

. Jackson v. State, 822 S.W.2d 18 (Tex.Cr.App.1990) (classification deputy at county jail); Matson v. State, 819 S.W.2d 839 (Tex.Cr.App.1991) (operator of halfway house); Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.1980) (former district attorney); Duffy v. State, 567 S.W.2d 197 (Tex.Cr.App.1978) (priest).

. Ante at 79 n. 11.