Preview:

STEVEN CLARENCE HUTTON V. STATE OF MARYLAND NO. 151, SEPTEMBER TERM, 1993 HEADNOTE: CRIMINAL LAW - EXPERT TESTIMONY - POST TRAUMATIC STRESS DISORDER EXPERT TESTIMONY THAT ALLEGED VICTIM OF CHILD SEXUAL ABUSE SUFFERED FROM POST TRAUMATIC STRESS DISORDER TO PROVE THE SEXUAL ABUSE IS INADMISSIBLE.

IN THE COURT OF APPEALS OF MARYLAND NO. 151 SEPTEMBER TERM, 1993

___________________________________

STEVEN CLARENCE HUTTON V. STATE OF MARYLAND ___________________________________ Murphy, C.J. Eldridge Rodowsky Chasanow Karwacki Bell Raker JJ. ___________________________________ Opinion by Bell, J. Murphy, C.J. and Rodowsky, J. concur. Eldridge, J. concurs in the result only.

___________________________________ FILED: August 28, 1995

We granted certiorari in this case to consider whether expert testimony that the alleged victim of child sexual abuse was

suffering from Post Traumatic Stress Disorder (hereinafter, PTSD)1 PTSD is an anxiety disorder, recognized by the American Psychiatric Association (APA), characterized by four diagnostic criteria: A. Existence of a recognizable stressor that would evoke significant symptoms of distress in almost everyone. B. Re-experiencing of the trauma as evidenced by at least one of the following: (1) recurrent and intrusive recollections of the event (2) recurrent dreams of the event (3) sudden acting or feeling as if the traumatic event were reoccurring, because of an association with an environmental or ideational stimulus C. Numbing of responsiveness to or reduced involvement with the external world, beginning some time after the trauma, as shown by at least one of the following: (1) markedly diminished interest in one or more significant activities (2) feeling of detachment or estrangement from others (3) constricted affect D. At least two of the following symptoms that were not present before the trauma: (1) hyper alertness or exaggerated startle response (2) sleep disturbance (3) guilt about surviving when others have not, or about behavior required for survival (4) memory impairment or trouble concentrating (5) avoidance of activities that arouse recollection of the
1

2 as a result of being sexually abused, was admissible to prove that the sexual abuse occurred and whether an expert's testimony that the victim's PTSD is "not in any way faked," was, in effect, a comment on the credibility of the victim and, as such, invaded the province of the jury.2 Stephen Clarence Hutton, the petitioner,

was convicted by a jury in the Circuit Court for Prince George's County of two counts each of second degree rape, second degree sexual offense, and child abuse, based, in part, upon such

testimony.

In an unreported opinion, the Court of Special Appeals

affirmed the trial court's allowance of such testimony, holding

traumatic event (6) intensification of symptoms by exposure to events that symbolize or resemble the traumatic event[.] APA, Diagnostic and Statistical Manual of Mental Disorders, 23638 (3rd ed. 1980). See Smith, Post Traumatic Stress Disorder, 20 Trial 92 (February 1984); State v. Allewalt, 308 Md. 89, 100 n.6, 517 A.2d 741, 757 n.6 (1986). Two other questions were presented by the petition for certiorari - the propriety of the rulings permitting the State to present rebuttal testimony and to question alibi witnesses about their failure to contact the police after learning that the petitioner had been charged. Our resolution of the first issue makes consideration of these issues unnecessary. With respect to the latter, however, in the event of a retrial, we recommend the following cases to the trial judge: People v. Ratliff, 189 Cal. App. 3d 696, 700-01, 234 Cal.Rptr. 502, 504-05 (2nd. Dist. 1987); State v. Bryant, 523 A.2d 451, 464-66 (Conn. 1986); United States v. Young, 463 F.2d 934, 938 (D.C. Cir. 1972); People v. Watson, 418 N.E.2d 1015, 1021 (Ill. App. Ct. 1981); Commonwealth v. Egerton, 487 N.E.2d 481, 486-87 (Mass. 1986); People v. Fuqua, 379 N.W.2d 442, 445 (Mich. App. 1985); State v. Silva, 621 A.2d 17, 22 (N.J. 1993); People v. Dawson, 406 N.E.2d 771, 777, n.4 (N.Y. 1980).
2

3 that State v. Allewalt, 308 Md. 89, 517 A.2d 741 (1986) and Acuna v. State, 332 Md. 65, 629 A.2d 1233 (1993) were controlling. now reverse. The facts relevant to the resolution of this case are not in dispute, the parties having agreed to proceed on an agreed The We

statement of facts, pursuant to Maryland Rule 8-501(g).3

petitioner is the victim's stepfather, having married her mother in 1984, when the victim was five years old. At the time of trial,

the victim was 14 years old and in the 9th grade. According to the victim, the sexual abuse consisted of sexual intercourse and fellatio, which was initiated by the petitioner when she was 7 years old, while the family was living in Virginia. It continued, under threat by the petitioner to spank her if she told her mother, she said, until she was in the 7th grade, after the family had moved to Prince George's County. The victim

testified that, while she was in the 2nd grade, the petitioner would place a scarf over her eyes, put vaseline between her legs and sometimes on his penis and engage in vaginal intercourse with her. During that year, she reported that she told a classmate In

about the abuse, who in turn told the principal of her school.

the fall of 1990, when she was in the 7th grade, the victim Maryland Rule 8-501(g) provides, in pertinent part, that "[t]he parties may agree on a statement of undisputed facts that may be included in a record extract or, if the parties agree, as [to] all or part of the statement of facts in the appellant's brief." In this case, the statement of facts is included in the petitioner's brief.
3

4 reported that the petitioner had vaginal intercourse with her and made her perform fellatio on him, two or three times a week. behavior occurred, she said, when she came home from school. In her testimony, the victim related that on several occasions she told her mother that she was being abused by the petitioner. She stated that she also reported the abuse to her mother on the day that it last occurred and the police were called four days later. She denied having engaged in sexual activity with anyone This

other than the petitioner or that her vaginal area had been otherwise injured. The victim testified that, starting at the age

of four or five, she had frequent vaginal infections, and sometimes it would be necessary for the petitioner or her mother to put vaseline on her. To corroborate the victim's testimony, the State called, in its case in chief, Gail Jackson, a clinical social worker, whose specialty was working with sexually abused children, and Dr. Nancy Davis, a psychologist with whom Jackson practiced, among others.4 The State also called, in mother, her pediatrician, and a Department of Human Development corroborated some aspect of the
4

its case in chief, the victim's Fairfax County, Virginia social worker. Each of them victim's story.

The victim's mother verified that the victim claimed to have been sexually abused when she was in the 2nd grade, the school principal having called her and related that fact to her. Mrs. Hutton further testified that, while in the fourth grade, the victim also told her that she was being abused. Moreover, Mrs. Hutton confirmed the victim's version of how the present charges came to be brought. The victim's pediatrician testified that she was told in

5 Although she was found qualified as an expert in behavioral science relative to the therapeutic treatment of children,5 Jackson was not allowed to offer a diagnosis of, or give an opinion with regard to, PTSD. Instead, she was permitted to enumerate, over the

petitioner's objection, the behavioral characteristics of children who have been sexually abused. Having indicated that she had seen

at least 600 victims of child sexual abuse in her career, she testified, in particular, that victims of child sexual abuse usually have sleep disorders - disturbances - usually nightmares

1986 that the victim had been abused by her father, that on several occasions her father had laid on top of her and put his penis on her private parts. At that time, the pediatrician indicated that the victim had no hymen and she was non-virginal. Her findings, she said, were consistent with the victim's being penetrated by an adult male during an act of sexual intercourse, although she also acknowledged that a torn or absent hymen could be the result of bicycle riding and/or, gymnastics, activities in which the victim acknowledged she engaged, or some other form of exercise in which a child of the victim's age might participate. The social worker's testimony concerned a conference she had with the petitioner, in the presence of a Fairfax County police officer, to discuss allegations by the victim that she had been sexually abused. According to the social worker, although the petitioner denied any wrongdoing, his explanation was corroborative of the victim's story in several aspects. In particular, the social worker testified that the petitioner acknowledged that he participated in the treatment of the victim's vaginal infections by placing vaseline on her vagina. During one such occasion, he indicated that he put a scarf over the victim's eyes so that she could not learn how to touch herself. On another occasion, the social worker said, the petitioner stated that he had to hold his arm across her body to apply the vaseline. No issue has been raised as to the propriety of a clinical social worker expressing an opinion on this subject. Consequently, we do not address that issue.
5

6 and "feelings of shame, of guilt, a sense of responsibility." also characterized them as being prone to anger and She

being

emotionally detached, "being flat in their affect," and having poor relationships. She stated that such children "get very confused

about time" and many of them have fears, especially of the alleged perpetrator. Further, Jackson noted that victims of sexual abuse

may experience physical ailments, "complaints of headaches, stomach aches in which a lot of it is anxiety." Another characteristic to

which Jackson testified was the avoidance of relationships with peers and activity at school. Many times, according to Jackson, "Either they will be totally sex or they will be

this behavior is indicative of shame. withdrawn from someone of the

opposite

promiscuous." which Jackson

Poor school performance is another characteristic to referred "This stems from the child being

preoccupied."

Finally, she testified that while many may appear to

be somewhat aloof and detached from their feelings, "many of them are hyper vigilant, which means that they are startled very easily. Always on guard, taking in their whole surrounding because they had to be on guard." Jackson was then allowed to relate the behavioral

characteristics she identified as common to child sexual abuse victims to her client, the victim in this case, whom she had seen in one-hour sessions approximately 30 to 35 times during a period of a little more than a year. In that regard, Jackson testified

that the victim was very depressed, withdrawn, fearful, and sad.

7 In addition, she had a lot of guilt and was "emotionally very detached." nightmares. She had, Jackson reported, a "significant number of Dreaming of someone chasing her, not being able to see

their face and that is very, very common among victims I have worked with of all ages." The victim, according to Jackson,

exhibited "a lot of ambivalence" toward her stepfather and was quite confused. Moreover, she had poor grades and was having

difficulty getting along with the other children at school and, Jackson added, she was afraid of men.

8 Jackson conceded, on cross-examination, that these

characteristics were consistent not only with sexual abuse but with the existence of other kinds of "stress disorders," as well. She also admitted that, in the therapeutic setting, the

"credibility of the person [who is] talking to you is probably of the utmost importance ... that is whether the person is telling a

lie or has a reason to be in there making up a story, something like that[.]" Thereupon, on redirect examination, the State

inquired into how Jackson assessed the credibility of alleged victims of sexual abuse: Q. How is it that you as [the victim's] therapist assess not with regard to her but in any case how do you assess credibility? How can you tell malingering? A. The consistency for which they give me the basic information. An individual who is able to consistently give me that something happened, I don't so much look for times as I look for the consistency with what happened and over time there is that consistency. I believe that that particular individual is telling me the truth. Dr. Davis was called as an expert in clinical psychology with a specialty in child sexual abuse. testing of the victim. Dr. Davis did no psychological

Her conclusions were reached on the basis

of having spoken to the victim when she came into the office to see Ms. Jackson, having reviewed Ms. Jackson's notes and records and the medical report from the Prince George's Sexual Assault Center, and having discussed the case with Ms. Jackson. She opined, over

9 the petitioner's objection,6 that the victim was suffering from PTSD. In support of that diagnosis, she explained what PTSD is,

during the course of which she further opined that the traumatic event triggering the disorder was child sexual abuse. Dr. Davis' description of PTSD is consistent with that

contained in APA, Diagnostic and Statistical Manual of Mental Disorders (3rd ed. 1980). were the following: 1) "a severely traumatic event ... outside the range of normal human experience that anybody would find to be traumatic, and these include a wide variety of things, but very severe trauma, [like] [s]eeing somebody murdered;" 2) "re-experienc[ing] this mind," often in dreams; event in their Among the symptomology she identified

3) numbing oneself to one's feelings; displaying a flat affect; "they look almost like a robot when you talk to them;" 4) "increased arousal" - characterized "by The petitioner asked for, and received, a continuing objection as to all of the PTSD testimony and, in particular, "as to the relevance of psychiatric testimony." See Maryland Rule 4323(b), which provides: (b) Continuing objections to evidence. - At the request of a party or on its own initiative, the court may grant a continuing objection to a line of questions by an opposing party. For purposes of review by the trial court or on appeal, the continuing objection is effective only as to the questions clearly within its scope. Although there was no objection precisely at the moment that the opinion was rendered, the question calling for the witness' opinion was clearly within the scope of the continuing objection.
6

10 problems such as sleep, problems staying asleep, problems concentrating, problems in school learning, and being very startled when you walk up on them...;" 5) the symptoms must last over a month. Dr. Davis noted the following symptoms she observed in the victim: a flat affect - "there was no expression on her face and

no feeling in her voice;" the victim was ambivalent toward her mother and the petitioner; the victim felt responsible for what happened; the victim had poor grades, and problems getting along with other children at school; and the victim had sleep problems. With respect to the conclusion that the traumatic event triggering the disorder was child sexual abuse, Dr. Davis pointed to the consistency in the victim's story, stating: "She's been extremely consistent in her story from age five on, despite the fact that numerous people have tried to knock holes in her story by asking her again and again. She's been consistent in what she said, and

that is another thing that I look for....She's told a variety of people, she's told principals, she's told counselors. all kinds of people...." She's told

Dr. Davis also mentioned the medical

evidence - the lack of a hymen, the fact "that she is enlarged." Like Jackson, except that it was in the State's case in chief, Dr. Davis was asked about credibility evaluation. In response to the

question, "Dr. Davis, a lot of what you've been diagnosing... assumes one thing, that she is being truthful with you and Dr. How

and Miss Jackson, how do you - how do you detect malingering?

11 do you assess credibility? Davis, in part, noted: [t]hey [child victims] don't understand the dynamics of sexual abuse that this is the way certain things happened, and they tell it like an outsider might think this is the way abuse might happen. And I look for the consequences, the post-traumatic stress or whatever which with her, in my opinion, is not in any way faked. She couldn't fake this level for this time or such severe withdrawal and shutting down of herself. The petitioner, testifying in his own defense, denied ever having sexually abused his stepdaughter.7 In addition, the What is your personal method?", Dr.

petitioner called three alibi witnesses who testified that the defendant was at work during the time when the last alleged act of abuse occurred and, so, could not have committed it.8 The petitioner challenges the admissibility of expert

testimony that his stepdaughter suffered from PTSD caused by her being sexually abused, the symptoms of faked." which were "not in any way

He argues that the reliability of PTSD as evidence to

It was because the petitioner also denied having participated in the treatment of his stepdaughter's vaginal infections, or having told the Fairfax County social worker that he did, as well as his denial of having said the things attributed to him by the social worker, that prompted the court to permit, on rebuttal, the testimony of the Fairfax County police officer. It was this testimony out of which the second issue arose. It was during the cross-examination of the three defense alibi witnesses that the third issue arose, i.e., whether a foundation is necessary prior to questioning an alibi witness as to why he or she did not contact the police after becoming aware of the defendant's arrest.
8

7

12 prove the underlying stressor, in this case, child sexual abuse, (1) has not been established, (2) that its probative value is outweighed by its potential unfairly to prejudice and mislead the jury, and (3) that allowing an expert to testify as to the cause of PTSD is a comment on the victim's credibility and, thus, invades the province of the jury. If PTSD testimony is admissible at all,

the petitioner asserts, it is only for the limited purpose of rehabilitating the victim's testimony by explaining aspects of the victim's post incident behavior attacked by the defendant as being inconsistent with that of a person who has been sexually abused. The State, urging affirmance of the judgments under review, maintains that PTSD evidence was properly admitted, in its case in chief, to prove that the sexual abuse charged actually occurred. It denies that the expert testimony in this case in any way infringed upon the jury's function of ultimately determining the credibility of the witnesses. PTSD may be experienced by persons who have been in combat, natural disasters, automobile or airplane accidents, or raped, among other traumatic events. Smith, Post Traumatic Stress

Disorder,

20 Trial 92 (February 1984).

Thus, there is no

particular stressor that triggers PTSD; it can be caused by any number of stressful experiences. The symptoms characteristic of

PTSD may become apparent shortly after the traumatic event or they may not appear until several months, or even years later. supra at 237. APA,

Moreover, determining from the symptoms that PTSD is

13 the proper diagnosis ordinarily does not answer the question of what traumatic event caused it; the symptoms, in other words, are not reliable identifiers of the specific cause of the disorder. PTSD is sometimes defined in terms of the stressor which caused it. Accordingly, when the stressor is rape, the term "rape See Burgess

trauma syndrome" (hereinafter, RTS) is sometimes used.

& Holmstrom, Rape Trauma Syndrome, 131 Am. J. Psychiatry 981 (September 1974); State v. Alberico, 861 P.2d 192, 195 (N.M. 1993). But see Alphonso v. Charity Hosp. of Louisiana, 413 So.2d 982, 986 (La. Ct. App. 4th Cir.), cert. denied, 415 So.2d 952 (La. 1982), treating PTSD and RTS as being separate and distinct. On the

other hand, in addition to triggering PTSD, the traumatic event may be the causative factor for a related, but different disorder. Child sexual abuse, a recognized stressor causing PTSD, may also be the triggering event for child sexual abuse accommodation (hereinafter, CSAAS). syndrome

See Roland C. Summit, The Child Sexual Abuse For

Accommodation Syndrome, 7 Child Abuse & Neglect 177 (1983).

diagnostic purposes, characteristics commonly observed in sexually abused children, different from and in addition to those normally associated with PTSD, come into play. helplessness, conflicted, (3) entrapment and They are: (1) secrecy, (2) (4) delayed,

accommodation, and (5)

and

unconvincing

disclosure,

retraction.

Notwithstanding that CSAAS is not simply a refinement of PTSD on the basis of its cause, because when the traumatic event is child sexual abuse, they share a common cause, the approach to

14 discovering that cause is analytically the same. And, because a

diagnosis of PTSD is certainly more general than a diagnosis of CSAAS, the reliability of expert PTSD testimony on causation can be no greater than that concerning CSAAS.9 The literature on the subject discusses PTSD and related disorders and syndromes in the context of treating victims of a traumatic experience. See, e.g., Woodling & Kossoris, Sexual

Misuse: Rape, Molestation, and Incest, 28 Pediatric Clinics N. Am. 489, 489-90 (1981); Burgess & Holmstrom, Rape: 47-50 (1974); Victims of Crisis, Science The a

Comment, The Psychologist's Expert Witness:

in the Courtroom?, 38 Md. L.Rev. 539, 580 n. 207 (1979). literature concludes that a PTSD diagnosis is

essentially

therapeutic aid, rather than a tool for the detection of sexual abuse, see State v. J.Q., 617 A.2d 1196, 1203-05 (N.J. 1993); People v. Bledsoe, 681 P.2d 291, 300 (Cal. 1984); John E.B. Myers, Expert Testimony in Child Sexual Abuse Litigation, 68 Neb. L.Rev. 1, 67-68 (1989); Comment, The Psychologist as Expert Witness: Science in the Courtroom?, supra at 580 n.207 (Stating that the purpose of codifying the diagnostic criteria for PTSD is to

Our use of the terms "Rape Trauma Syndrome" and "Child Sexual Abuse Accommodation Syndrome" in our discussion is not intended to endorse their use by experts testifying in criminal trials, where the charged offense is rape or child abuse, sexual or physical. The use of such terms may themselves be prejudicial. We recognized that possibility in Allewalt, 308 Md. at 108, 517 A.2d at 750, just as other courts have done. See, e.g., State v. Roles, 832 P.2d 311, 318 n.4 (Idaho Ct. App. 1992); State v. Gettier, 438 N.W.2d 1, 6 (Iowa 1989).

9

15 "standardiz[e] empirically the classification system with reference enhancing to the

demonstrable

phenomenon,

thus

communication and research between mental health professionals."), since such a diagnosis assumes the presence of abuse and explains the victim's reactions to it. See In re Sara M, 194 Cal. App. 3d

585, 593, 239 Cal. Rptr. 605, 610 (1987); Lantrip v. Commonwealth, 713 S.W.2d 816, 817 (Ky. 1986). Because causes other than sexual abuse may trigger PTSD - the traumatic event being unable to be verified objectively, its occurrence must necessarily be assumed - a diagnosis of PTSD does not reliably prove the nature of the stressor. This result is to In

be contrasted with Battered Child Syndrome (hereinafter, BCS).

making that diagnosis, one reasons from the type of injury to the cause of the injury; thus, it is probative of physical abuse. See

Case Note, Expert Medical Testimony Concerning "Battered Child Syndrome" Held Admissible, 42 Fordham L. Rev. 935, 935 (1974) (medical testimony on BCS is admissible as circumstantial proof that the child's injuries were not accidental). Of the many jurisdictions that have considered this issue, most have analyzed the admissibility of PTSD evidence on at least one, and most often all, of the three grounds raised by the petitioner. To be sure, some of them adopt completely the State's

position, see, e.g., Glendening v. State, 536 So.2d 212 (Fla. 1988); Kruse v. State, 483 So.2d 1383 (Fla. Dist. Ct. App. 1986);

16 State v. Reser, 767 P.2d 1277 (Kan. 1989); State v. Myers, 359 N.W.2d 604 (Minn. 1984); State v. Liddell, 685 P.2d 918 (Mont. 1984); State v. Bachman, 446 N.W.2d 271 (S.D. 1989); State v. Edward Charles L., 398 S.E.2d 123 (W.Va. 1990), even when the expert may have offered an opinion as to the credibility of the victim. E.g., Kruse, 483 So.2d at 1387. While some have held such

testimony inadmissible for any purpose, see, e.g., Commonwealth v. Dunkle, 602 A.2d 830, 836-37 (Pa. 1992); State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986), the majority, for a variety of reasons, agree with the petitioner's arguments. As to the petitioner's first contention, some courts have found the evidence scientifically reliable, see, e.g., State v. Marks, 647 P.2d 1292, 1299 (Kan. 1982) ("An examination of the [scientific] literature clearly demonstrates that the so-called `rape trauma syndrome' is generally accepted to be a common

reaction to sexual assault."); Liddell, 685 P.2d at 923 (Although rape trauma syndrome is a relatively new psychiatric development "the presence of rape trauma syndrome is detectable and reliable as evidence that a forcible assault did take place.") (quoting Marks); State v. Huey, 699 P.2d 1290, 1294 (Ariz. 1985) (rape trauma syndrome is "generally accepted") (quoting Marks).10
10

These courts

This Court has adopted the standard of admissibility for scientific evidence expert testimony announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). See Reed v. State, 283 Md. 374, 391 A.2d 364 (1978). Under the Frye - Reed standard, in order to be admissible, a court must determine that a scientific process or technique is generally accepted within the relevant

17 admitted PTSD testimony when the defense was consent. Other cases

hold that the reliability of expert PTSD testimony to prove child sexual abuse or rape has not yet been established, and, hence, is inadmissible. See Spencer v. General Electric Co., 688 F. Supp.

1072, 1073 (E.D. Va. 1988); People v. Bledsoe, 681 P.2d at 301 (rape trauma syndrome is not relied upon in the scientific

community to prove that a rape occurred); State v. Batangan, 799 P.2d 48, 51 (Haw. 1990); Lantrip v. Commonwealth, 713 S.W.2d at scientific community. See Frye, 293 F. at 1014, Reed, 283 Md. at 381, 391 A.2d at 367. Recently, however, in Daubert v. Merrell Dow Pharmaceutical, U.S. , 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),the United States Supreme Court reviewed the Frye standard "in light of sharp divisions among the courts regarding the proper standard for the admission of expert testimony." Id. at , 113 S. Ct. at 2792, 125 L.Ed.2d at 478. It held that the adoption by Congress of Federal Rule of Evidence 702 has modified the Frye standard, reasoning: Given the Rules' permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention "general acceptance," the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made "general acceptance" the exclusive test for admitting expert scientific testimony. That austere standard, absent from and incompatible with the Federal Rules of Evidence, should not be applied in federal trials. Daubert, at , 113 S. Ct at 2794, 125 L.Ed.2d at 480.

On July 1, 1994, this Court adopted Maryland Rules of Evidence patterned after the federal rules. Our counterpart to Federal Rule of Evidence 702 is Md. R. Evid. 5-702. As a committee note makes clear, however, the adoption of the Rule "is not intended to overrule Reed ... and other cases adopting the principles enunciated in Frye .... The required scientific foundation for the admission of novel scientific techniques or principles is left to development through case law."

18 817; State v. Foret, 628 So.2d 1116, 1127 (La. 1993) (CSAAS evidence is of highly questionable scientific validity and fails to pass threshold test of scientific reliability); State v. Black, 537 A.2d 1154, 1156-57 (Me. 1988); People v. Beckley, 456 N.W. 391, 404-08 (Mich. 1990); State v. Saldana, 324 N.W.2d 227, 229 (Minn. 1982) ("Rape trauma is not the type of scientific test that accurately and reliably determines whether a rape has occurred"); State v. Taylor, 663 S.W.2d 235, 240 (Mo. 1984) ("Dr. Amanat's statements that the prosecutrix suffered from rape trauma syndrome and that she had been raped are not sufficiently based on a scientific technique"); State v. Cressey, 628 A.2d 696, 699-702

(N.H. 1993)(expert's testimony regarding effects of sexual abuse on children not sufficiently reliable to be admitted as evidence that victims were sexually abused); State v. J.Q., 617 A.2d at 1209 (CSAAS not shown to be generally accepted as scientific indicator of the substantive fact of abuse); People v. Taylor, 552 N.E.2d 131, 138 (N.Y. 1990); ("Although we have accepted that rape

produces identifiable symptoms in rape victims, we do not believe that evidence of the presence, or indeed of the absence, of those symptoms necessarily indicates that the incident did or did not occur"); State v. Hall, 412 S.E.2d 885, 890 (N.C. 1992); (noting that evidence of PTSD "does not alone prove that sexual abuse has in fact occurred"); Commonwealth v. Dunkle, 602 A.2d at 832-36; State v. Hudnall, 359 S.E.2d 59, 61-62 (S.C. 1987); Frenzel v. State, 849 P.2d 741, 749 (Wyo. 1993) (CSAAS evidence has not

19 reached the stage of development to make it, alone, a reliable indicator of sexual abuse). 32. That impediment does not exist when the PTSD testimony is offered in a civil action only to prove damages. See Spencer v. See also John E.B. Myers, supra at 19-

General Electric Co., 688 F. Supp. at 1077-78; Redmond v. Baxley, 475 F.Supp. 1111, 1121-22 (E.D. Mich. 1979); Division of

Corrections v. Wynn, 438 So.2d 446, 448 (Fla. Dist. Ct. App. 1983); Alphonso v. Charity Hospital, 413 So.2d 982, 986-87 (La. Ct. App. 1982); White v. Violent Crimes Compensation Board, 76 N.J. 368, 388 A.2d 206, 216 (N.J. 1978); Skaria v. State, 442 N.Y.S. 2d 838, 84142 (N.Y. Ct. Cl. 1981); Wesley v. Greyhound Lines, Inc., 268 S.E.2d 855, 860-61 (N.C. App. 1980). Nor does it exist when the

occurrence of the precipitating traumatic event has been conceded, has not been challenged, or has been established. Courts that find the PTSD testimony scientifically unreliable also exclude the evidence as unduly prejudicial. Saldana, 324

N.W.2d at 229-30; State v. McQuillen, 236 Kan. 161, 169-70, 689 P.2d 822, 828 (1984). See also Spencer v. General Electric Co., 688 F.Supp. at 76. Still other cases, some without addressing whether it is admissible to establish the fact of abuse, have held that PTSD evidence is admissible as rebuttal evidence to refute defense contentions that the victim's behavior is inconsistent with that of a person who has been sexually abused or raped. State v. Moran,

20 738 P.2d 248, 254 (Ariz. 1986); State v. Huey, 699 P.2d at 1294; Bledsoe, 681 P.2d at 298; People v. Fasy, 829 P.2d 1314, 1317 (Colo. 1992); State v. Spigarolo, 556 A.2d 112, 123 (Conn. 1989); Wheat v. State, 527 A.2d 269, 273-74 (Del. 1987); Batangan, 799 P.2d at 52; Commonwealth v. Mamay, 553 N.E.2d 945, 951 (Mass. 1990); Beckley, 456 N.W.2d at 405; Cressey, 628 A.2d at 703; J.Q., 687 A.2d at 1201; Alberico, 861 P.2d at 210; Taylor, 552 N.E.2d at 138; Townsend v. State, 734 P.2d 705, 708 (Nev. 1987); Hall, 412 S.E.2d at 890; State v. Middleton, 657 P.2d 1215, 1221 (Or. 1983); State v. Jensen, 432 N.W.2d 913, 923 (Wis. 1988). Where, however, PTSD expert testimony also addresses the credibility of the victim, it has been held inadmissible because it invaded the province of the jury. Moran, 728 P.2d at 254-56;

Wheat, 527 A.2d at 274-75 (expert testimony which "in effect provided a statistical evaluation of the complainant's present veracity ... impermissibly invaded the credibility province of the trier of fact...."); Taylor, 663 S.W.2d at 241 ("Clearly, the psychiatrist's specific statement that the victim did not fantasize the rape was an express opinion about her credibility, and his entire testimony that the victim suffered from rape trauma syndrome carried with it an implied opinion that the victim had told the truth in describing the rape. Further, the psychiatrist's

testimony that he was specifically trained to evaluate verbal and nonverbal responses lends a special reliability to his opinion of the victim's credibility"); Townsend, 734 P.2d at 708 ("[E]xpert

21 testified, in effect, that the child's testimony was true"); Alberico, 861 P.2d at 210-11 (holding PTSD testimony inadmissible as to credibility to prove identity of the perpetrator, or as to causality); State v. Chul Yun Kim, 350 S.E.2d 347, 350-51 (N.C. 1986) (testimony that the victim has "never been untruthful with me about it. Everything that she had to say to me somehow I'd find

out later that she was telling the truth" was improper expert testimony to establish the victim's credibility as a witness); State v. Milbradt, 756 P.2d 620, 622-24 (Or. 1988) (where the issue is credibility, permitting a psychotherapist to testify concerning whether he or upon v. she the observed jury's 517 evidence province A.2d 920, of to deception assess (Pa. improperly

infringes

credibility); 1986) (expert

Commonwealth

Seese,

922

testimony as to the credibility of children similar in age to the victim is an encroachment upon the province of the jury to decide issues of credibility). 688 F. Supp. at 1078. This Court has considered the admissibility of PTSD testimony on two occasions. See Acuna v. State, supra, and State v. The former case, like the case sub judice, See also Spencer v. General Electric Co.,

Allewalt, supra.

involved a child victim. Similarly, the expert testimony concerning PTSD was offered in the State's case in chief, presumably, to corroborate State's evidence that the abuse occurred. The trial

court did not allow the expert to relate the victim's behavior to that of other victims of child abuse - i.e. she was not permitted

22 to testify that the victim's behavior was consistent with that of other victims of child abuse. Nor did the expert testify that the What the trial court permitted

victim had been sexually abused.

the expert to do was to define PTSD, enumerate the symptoms of that disorder which she observed in the victim, opine that those

behaviors were consistent with the existence of PTSD, and testify that the victim's in court behavior was consistent with the

behavior she displayed during evaluation.

Urging that the expert

PTSD testimony "is `evidentially meaningless' unless the symptoms of PTSD 'were either actually or inferentially connected to the sexual offenses argued on which the [Acuna] expert's was standing trial,'" the

defendant

that

testimony

was

irrelevant.

Relying on Allewalt, this Court concluded that there was no error "since the expert was able, through history, to connect the PTSD to the criminal conduct charged." 1233. The victim of the rape, which was at issue in Allewalt, was an adult. The defendant did not deny that intercourse had occurred; To refute that Acuna, 332 Md. at 71, 629 A.2d at

rather, he contended that the victim consented.

defense, the State called, in its rebuttal case, a psychiatrist who testified that his examination of the victim led him to conclude that she suffered from PTSD. He went on to opine, based on the

history given him by the victim, that the precipitating cause of the PTSD was the rape alleged by the victim. the expert's opinion was properly The Court held that To reach that

admitted.

23 conclusion, we equated the admissibility of the PTSD diagnosis and the expert's opinion concerning its precipitating cause with the admissibility, in personal injury cases, of a diagnosis and expert opinion on causation, based on history. 99, 517 A.2d at 745-46. Allewalt, 308 Md. at 98-

Relying on Beahm v. Shortall, 279 Md.

321, 368 A.2d 1005 (1977), the Court stated: Dr. Spodak's opinion that the PTSD which he diagnosed ... was caused by the rape which she described is as evidentiarily reliable as an opinion by an orthopedist who has been engaged only to testify ascribing a plaintiff's subjective complaints of low back pain to soft tissue injury resulting from an automobile accident described in the history given by the plaintiff. Id. The Court also pointed out that the expert did not purport to

be able to identify the cause of the PTSD based only on the observed symptoms, but depended on the patient's history. It

concluded that there was neither impermissible prejudice nor an attempt to certify the victim's credibility. Significantly, the

record reflects that the expert was asked to assume the victim's truthfulness and, upon that basis give an opinion as to whether she suffered from PTSD and, subsequently, that he was asked, not "'whether or not it occurred, but based on what she told you, what would be the trauma that forms the basis for your opinion?'" The

expert was not asked, in other words, to opine as to the occurrence of the precipitating trauma. The issue presented in Bohnert v. State, 312 Md. 266, 539 A.2d 657 (1988), a case decided after Allewalt, was the propriety of the

24 admission into evidence of an expert opinion that a child under the age of 14 was the victim of sexual abuse. critical issue was credibility. physical testimony evidence tending to to corroborate impeach the In that case, the

Rather than eyewitnesses or the victim, from there a was only

victim

motivational

standpoint and substantively.

Thus, the outcome of the case We held, on

depended solely upon whom the jury chose to believe.

alternative grounds, that expert testimony that the victim had been abused was improperly allowed. The first ground related to the adequacy of the foundation for the expert opinion. woefully inadequate: The record leads to no other conclusion than that Temple's opinion was founded only upon what Alicia said had occurred. As far as can be gleaned from the record, the source of all the evidence concerning the incidents was the child -- what she told Temple, what the mother said the child told her, what the mother's friend said the child told her. Temple proffered no evidence as to objective tests or medically recognized syndromes with respect to the child. Nor did Temple present any evidence as to the child's behavior compared to general behavioral characteristics of child abuse victims. There was no physical evidence on which to base the opinion. There were no eyewitnesses. The opinion was reached on the child's unsubstantiated averments and "a certain sense about children" which Temple believed she possessed. Temple's intuitive reaction to the child's story did not suffice to provide a foundation for the opinion that the child was, in fact, sexually abused. The opinion of Temple was not based on facts sufficient to form a basis for her opinion. There were no facts to show that Alicia's We observed, in that regard, that it was

25 allegations were true, so that a reasonably accurate conclusion that the child had been sexually abused could be made. The conclusion that she had in fact been abused was no more than mere conjecture or guess. The short of it is that the very groundwork for Temple's opinion was inadequately supported. Id. at 276, 539 A.2d at 662. trial court abused its We concluded, therefore, that the in admitting the expert

discretion

testimony. The alternative reason for the holding was that the expert's opinion was inadmissible as a matter of law. fundamental credibility principles and that it is the jury to be We first noted the that decides to the the

assesses

the

weight

accorded

testimony, id. at 277, 539 A.2d at 662, citing Battle v. State, 287 Md. 675, 685, 414 A.2d 1266, 1271 (1980), and that the office of expert testimony is not to resolve conflicting evidence, otherwise it would infringe on the province of the jury. Id. at 278, 539

A.2d at 663, citing Stebbing v. State, 299 Md. 331, 349, 473 A.2d 903, 911 (1984) and Kruszewski v. Holz, 265 Md. 434, 445, 290 A.2d 534, 540 (1972), citing, Calder v. Levi, 168 Md. 260, 266, 177 A. 392, 394 (1935). We then concluded:

The opinion of Temple that Alicia in fact was sexually abused was tantamount to a declaration by her that the child was telling the truth and that Bohnert was lying. In the circumstances here, the opinion could only be reached if the child's testimony were believed and Bohnert's testimony disbelieved. The import of the opinion was clear -- Alicia was credible and Bohnert was not. Also, the opinion could only be reached by a resolution of contested facts -- Alicia's allegations and

26 Bohnert's denials. Thus, the opinion was inadmissible as a matter of law because it invaded the province of the jury in two ways. It encroached on the jury's function to judge the credibility of the witnesses and weigh their testimony and on the jury's function to resolve contested facts. Inasmuch as the opinion was inadmissible as a matter of law, it was beyond the range of an exercise of discretion. Id. at 278-79, 539 A.2d at 663. The case sub judice has elements reminiscent of all three of the aforementioned cases. of them. It is not, however, identical to any one

Like Acuna, it involves a minor victim and expert

testimony on PTSD, introduced in the State's case in chief, to prove that the sexual abuse with which the defendant was charged actually occurred. Unlike Acuna, the expert opinion in this case

went beyond explaining the characteristic elements of PTSD and relating the victim's behavior to them; by being permitted to identify the sexual "stressor" and to testify that those behaviors on the part of the victim were not faked, the expert was enabled to opine that the victim's claimed sexual abuse did in fact occur, thus vouching for the victim's credibility. Moreover, unlike the

defendant in Acuna, the petitioner in this case challenged not simply the general relevance of PTSD testimony, but argued that it was inadmissible for the purpose for which it was offered. Like Allewalt, the expert witness was permitted to offer an opinion as to the traumatic event precipitating the PTSD, relying on the victim's history as related to her by the victim and others.

27 Unlike Allewalt, in which the critical event, i.e., sexual

intercourse, was conceded, in the case sub judice, the petitioner unequivocally denied any sexual contact with the victim. Moreover,

unlike Allewalt, the expert testimony was offered to prove the abuse, rather, than to rebut a contention that it never occurred. Thus, like Bohnert, the critical issue in this case is credibility and also, like in Bohnert, the expert indicated that she believed the victim. Unlike in Bohnert, however, there was evidence from a

pediatrician that physical examination of the victim uncovered findings consistent with the victim having been sexually abused, although that need not have been the cause. In a criminal case charging child sexual abuse, the gravamen of the State's case is proof of the abuse. Thus, it is the trier That

of fact that must determine that the sexual abuse occurred.

responsibility does not change simply because the State seeks to prove the abuse by proving that the victim suffers from PTSD. In

that case, the sexual abuse, in addition to being the critical element in the State's case against the defendant, is also the stressor which precipitates PTSD. Where PTSD is involved, the

jury's responsibility to determine whether the abuse occurred involves making the connection between the existence of symptoms consistent with PTSD and the stressor, here child sexual abuse, that is alleged by the State to have caused the victim to suffer from PTSD. As we have seen, PTSD, rather than being caused by a

28 particular event or experience, may be caused by any one of a number of events or experiences. event or experience be All that is required is that the traumatic. Indeed, a PTSD

severely

diagnosis necessarily assumes that there has been a traumatic experience which precipitated it. Consequently, unless

identification of the specific stressor is a necessary part of the diagnosis, it would seem that expert testimony on that aspect of the diagnosis would be unnecessary, that the precipitating Expert

traumatic experience need not be defined precisely.

testimony that a particular event could have caused the disorder ordinarily would provide the requisite connection. But

identification of the specific precipitating cause of the PTSD is necessary to the diagnosis. The diagnostic criteria, discussed in It is the precipitating The numbing of trauma,

footnote one, are stressor specific. trauma that must be re-experienced. responsiveness is also related to

Criteria B. the

precipitating

criteria C, as are at least two of the symptoms in criteria D. Thus, in order for an expert to make a diagnosis of PTSD, generally he or she must know what the recognized stressor is. Where the stressor cannot be objectively determined, its existence depends upon the credibility of the PTSD sufferer, and thus, expert testimony that the stressor alleged by the sufferer, in fact, caused the PTSD may be inappropriate for several reasons. First, since, in that event, the source will be the PTSD sufferer, to be able to identify a particular stressor as the precipitating

29 cause of PTSD, as opposed to determining that it could be the precipitating cause, requires the expert to believe that the PTSD sufferer has experienced the traumatic experience related; he or she, in other words, must believe the PTSD sufferer. Second,

because such a diagnosis implicates the credibility of the victim, allowing the expert to identify the traumatic event precipitating the PTSD runs a great risk in a jury trial that the jury's function will be usurped, i.e. the jury will give the expert opinion too great weight and not realize it is solely dependent on the veracity of the patient. See State v. Taylor, 663 S.W.2d at 24. Finally,

permitting an expert to determine whether a particular stressor is the causative factor in a particular case may require the expert to engage in credibility assessment, a matter outside his or her area of expertise and one historically and appropriately entrusted to the jury. In any event, it is certain that, no matter how learned

in his or her field of expertise, no expert is in a better position to assess the credibility of a witness than is the jury. See Terr,

The Child As Witness, Child Psychiatry in the Law, 207, 216 (D. Schetky & E. Benedek ed. 1980) ("lying is not easily detectable by some psychiatrists."); Rosenfeld, Nadelson & Krieger, Fantasy & Reality in Patients' Reports Of Incest, 40 J. of Clinical

Psychiatry 162 (1979) (A clinician "may still be left questioning whether the reported events are reality."); Summitt, supra at 179,

182 (a behavioral scientist notes that "a nagging uncertainty exists" regarding their ability to distinguish between fantasy and

30 reality). See also David McCord, Expert Psychological Testimony A Foray into

About Child Complainants in Sexual Abuse Prosecution:

the Admissibility of Novel Psychological Evidence, 77 N.W. Journal of Criminal Law & Criminology 1, 42-43 (1986). Indeed, the

veracity of a witness is not beyond the understanding of a juror. See People v. Sergill, 138 Cal. App. 3d 34, 39, 187 Cal. Rptr. 497, 500 (1982).11 In a motion in limine, counsel for the petitioner argued that Dr. Davis' testimony was irrelevant. The trial court reserved its ruling. At trial, however, the trial court allowed the testimony, stating: Okay. The record should reflect that pursuant to Courts & Judicial Proceedings Article Title 9 - I forgot, its 9 something 6, that psychiatrists may render an opinion. Give an ultimate opinion in the case, so its a different posture than that statute. * * * But I ruled that I am going to allow it, and I even said for the Court of Special Appeals she can render an ultimate opinion. The provision to which the trial court referred was undoubtedly Maryland Code (1974, 1989 Repl. Vol.)

Download Hutton v. Maryland.pdf

Maryland Law