|
COM. v. DUNKLE 529 Pa. 168 (1992) Supreme Court of Pennsylvania. Submitted May 6, 1991.
In addition to expert testimony meeting the tests of relevancy and the Frye standard of admissibility, expert testimony is admitted only when the subject matter is beyond the knowledge or experience of the average layman. When the issue is one of common knowledge, expert testimony is inadmissible. Commonwealth v. O'Searo,466 Pa. 224, 352 A.2d 30 (1976). It is understood why sexually abused children do not always come forward immediately after the abuse: They are afraid or embarrassed; they are convinced by the abuser not to tell anyone; they attempt to tell someone who does not want to listen; or they do not even know enough to tell someone what has happened. In the case sub judice, the expert testified that a "[m]ajor reason would be any threats that were made to the child." Also, she stated that "[t]hey also could not disclose for fear of embarrassment, for fear they are damaged in some way, they are not a perfect person." "[T]hey do not disclose out of fear of loss that they may have to leave the home, that someone within the home may have to leave them. . . ." All of these reasons are easily understood by lay people and do not require expert analysis. In Commonwealth v. Snoke,525 Pa. 295, 580 A.2d 295 (1990) we recognized that children are different from adults and may not appreciate the need to come forward: Where no physical force is used to accomplish the reprehensible assault, a child victim would have no reason to promptly complain of the wrong-doing, particularly where the person involved is in a position of confidence. Where such an encounter is of a nature that a minor victim may not appreciate the offensive nature of the conduct, the lack of a complaint would not necessarily justify an inference of a fabrication. 525 Pa. at 303, 580 A.2d at 299. We have also recognized, however, that the reasons children come forward are perhaps not always innocent. In Commonwealth v. Lane,521 Pa. 390, 555 A.2d 1246 (1989), we stated: The real question in matters concerning youthful complainants is whether the immaturity of the child occasioned the delay as opposed to a design to deceive. In determining whether or not the delay reflects the insincerity of the complainant, the maturity is merely an additional factor to be considered by the jury in deciding the question. 521 Pa. at 398-99, 555 A.2d at 1251. In reaching this conclusion, we noted that the reasons for the delay may be innocent, or they may not be innocent, but may include blaming another to protect a guilty parent, acting out of revenge prompted by dislike.
1. See generally Summit, "The Child Abuse Sexual Accommodation Syndrome," Abuse and Neglect (1987). 2. Haugaard & Reppucci, The Sexual Abuse of Children, A Comprehensive Guide to Current Knowledge and Intervention Strategies, 177-178 (1988). 3. See, e.g., Rosenfield, The Clinical Management of Incest and Sexual Abuse of Children, 22 Trauma 2 (Oct.1980), who writes: "It is impossible to make a general statement about the effects of sexual abuse on children. Children react differently to different situations depending on a number of variables that may be operating at the time of the occurrence." Id. at 3. See also, Martin & Beezely, "Personality of Abused Children," in The Abused Child: A Multidisciplinary Approach to Developmental Issues and Treatment (H. Martin & C. Kempe eds. 1976); and Schulz, The Child as a Sex Victim: Socio-Legal Perspectives, 4 Victimology: A New Focus 177 (I. Drapkin & E. Viano eds. 1975). These studies are quoted in Note, The Unreliability of Expert Testimony on the Typical Characteristics of Sexual Abuse Victims, 74 Geo.L.J. 429, 440-441 (1985). 4. McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 Or.L.Rev. 19, 41 (1986). For a detailed discussion of the psychological research supporting this conclusion, See, McCord, Expert Psychological Testimony About Child Complainants in Sexual Abuse Prosecutions: A Foray Into the Admissibility of Novel Psychological Evidence, 77 J.Crim.L. & Criminology 1 (1986). 5. Haugaard & Reppucci, supra, note 2, p. 178. 6. Wallerstein & Kelly, Surviving the Breakup, How Children and Parents Cope with Divorce (1980). 7. In a study on psychologically maltreated children, the authors note the following behaviors that may be exhibited:
Children: feel unloved, inferior, low self-esteem, negative view of the world; anxiety and aggressiveness turned or outward; inadequate social behavior. Adolescents: feelings similar to children's but response may be more severe; may become truants, runaways, destructive, depressed, suicidal. Gabarino, Guttmann, & Seeley, The Psychologically Battered Child Table 2, Components Involved in Identification of Psychological Maltreatment, 69 (1986). 8. Wallerstein and Kelly, Surviving the Breakup, supra, note 6. 9. Id. at 57. 10. Id. 11. Id. 12. Id. at 58-62. 13. Freidrich, Psychotherapy of Sexually Abused Children and Their Families, 25 (1990) (emphasis supplied). 14. In addressing the Child Abuse Sexual Syndrome profile, the Supreme Court of Utah stated:
Suffice it to say, then, that the literature in the area is disparate and contradictory and that the child abuse experts have been unable to agree on a universal symptomology of sexual abuse, especially a precise symptomology that is sufficiently reliable to be used confidently in a forensic setting as a determinant of abuse. State v. Rimmasch,775 P.2d 388, 401 (Utah 1989). 15. Richard A. Gardner, M.D., a practicing child psychiatrist in a recent book entitled Sex Abuse Hysteria, Salem Witch Trials Revisited (1991), contends that many normal behaviors are often taken as "evidence" of child abuse, namely bedwetting in young children, nightmares, temper tantrums, and masturbation. Id. at 60-65. Furthermore, many of the so-called abnormal behaviors attributed to victims of sexual abuse in fact have "nothing to do with Sex Abuse." These include "depression, phobias, tics, obsessive compulsive rituals, conduct disorders, antisocial behavior, hyperactivity, attention deficit disorder, headaches, gastrointestinal complaints (nausea, cramps, diarrhea), musculoskeletal complaints, etc." Id. at 65. 16. In her book, Handbook on Sexual Abuse of Children, Assessment and Treatment Issues, 77 (1988), Lenore Walker includes a compilation of a study showing what percentage of sexually abused children exhibited what behaviors. This study was funded by the National Institute of Mental Health and was meant to describe the effects of sexual abuse on a sample of 369 sexually abused children.
Table 5.1 Proportion of Abused Sample Exhibiting Checklist Symptoms
Symptom % Present
Panic/anxiety attacks 5.7
Behavioral regression 3.8
Runs away/takes off 2.7
Excessive autonomic arousal 4.6
Depression 18.7
Withdrawal from usual activity or relations 15.2
Sexually victimizes others 3.0
Generalized fear 11.7
Suicidal attempts 1.9
Body image problems 7.9
Repressed anger/hostility 19.2
Daydreaming 13.8
Major Problems with police 0.3
Eating disorders 0.8
Psychotic episode -
Overly compliant/too anxious to please 13.8
Drug/alcohol abuse 2.2
Age-inappropriate sexual behavior 7.9
Hurts self physically 1.4
Minor problems with police 3.3
Fearful of abuse stimuli 30.1
Suicidal thoughts or actions 5.7
Psychosomatic complaints 10.0
Ritualistic behavior 1.1
Indiscriminate affection-giving or receiving 6.5
Low self-esteem 32.8
Places self in dangerous situations 4.9
Violent fantasies 2.4
Emotional upset 22.8
Prostitution 0.8
Obsessional, repetitive/recurrent thoughts 5.4
Shoplifting/stealing 2.2
Nonacademic school behavior problems 9.2
Nightmares/sleep disorders 20.1
Inability to form/maintain relationships 8.7
Academic problems 15.4
Aggressive behavior 14.4
(continued on next page)
Inappropriate/destructive peer relationships 7.0
As this chart graphically demonstrates, sexually abused children (1) cannot be fit into any specific behavior patterns; (2) for every symptom that was exhibited by any percentage, an even larger number do not exhibit that symptom; and (3) not one, single symptom was exhibited by a majority of sexually abused children. Clearly, these types of percentages cannot constitute probative evidence. 17. Although the Superior Court has permitted testimony about the "battered child syndrome" in Rodgers, this Court has not yet expressed an opinion on the subject. 18. We note that our courts have allowed more latitude in the elicitation of testimony from children than from adults. See e.g., Commonwealth v. Pankraz,382 Pa.Super. 116, 554 A.2d 974 (1989), appeal denied, 522 Pa. 618, 563 A.2d 887 (1989) (permitting four year old victim of father's sexual abuse to testify while sitting on her grandmother's lap did not constitute an abuse of discretion); Commonwealth v. Willis,380 Pa.Super. 555, 552 A.2d 682 (1988) (plurality opinion), appeal denied, 522 Pa. 583, 559 A.2d 527 (1989) (noting that questions directed at children on both direct and cross-examination should be direct rather than convoluted or compound questions, and that questions should be phrased in simple language).
It is a long-standing principle that "[t]he examination of witnesses has always been and still remains subject to the control of the trial court in which there is vested a large discretion." Commonwealth v. Dress, 354 Pa. 411, 414, 47 A.2d 197, 199 (1946). We are convinced that our trial judges are fully capable of ensuring that relevant and probative testimony concerning a child's reporting of sexual incidents will be properly elicited without the aid of expert witnesses. 19. Although the standard jury instructions concerning credibility do not contain an instruction about considering the child's age, we have approved of such a charge in Commonwealth v. Snoke,525 Pa. 295, 580 A.2d 295 (1990). In that case, we found that the trial judge's instructions concerning credibility were proper where he stated, inter alia, "you should consider whether the witness' testimony was [a]ffected by reason of youth." Id., 525 Pa. at 304, n. 2, 580 A.2d at 299, n. 2. 1. Maj. op. pp. 181-182. 2. Maj. op. p. 184. 3. Maj. op. p. 184. 4. Indeed, if one takes the majority at its word, there is such unanimity that it has become accepted common knowledge. 1. Superior Court ruled, in the interest of judicial economy, that this evidence would not be admissible at Dunkle's retrial. Because Superior Court determined that it could not remand the case on the basis of this issue due to waiver, it is evident that Dunkle raises the issue to this Court in an exercise of caution. 2. The majority points out that the expert witness herein was not a psychiatrist or a psychologist. Maj. op. at 171. Her lack of a professional degree has absolutely no bearing upon her qualification as an expert witness. In this Commonwealth, there is a liberal standard for the qualification of an expert witness, i.e., "if a witness has any reasonable pretension to specialized knowledge on the subject matter under investigation he may testify and the weight to be given to his evidence is for the [fact finder]." Commonwealth v. Gonzalez,519 Pa. 116, 128, 546 A.2d 26, 31 (1988) (plurality opinion). That pretension to specialized knowledge may be based upon background, training, and experience. Id. Moreover, the qualification of an expert witness is a matter within the sound discretion of the trial court. Commonwealth v. Bennett,471 Pa. 419, 370 A.2d 373 (1977). The expert witness herein, based upon her background, training and extensive experience working with the victims of child sexual abuse, was clearly qualified to state what she had observed regarding the behavioral characteristics of such victims, and the trial court did not err in qualifying her as an expert witness. Appellant's Brief and Reproduced Record at 46a-65a. 3. Expert testimony is admitted to aid a jury when the subject matter of the testimony is related to a science, skill or occupation beyond the knowledge or experience of the average layperson. Commonwealth v. Duffey,519 Pa. 348, 548 A.2d 1178 (1988). The average juror, who has had no experience observing child sexual abuse victims, knows little if anything about the psychological dynamics of intrafamilial sexual abuse and the behavioral characteristics of child sexual abuse victims. 4. The majority herein challenges the testimony relating to the general behavioral characteristics of the victims of child sexual abuse on the basis of the "Frye" standard, which was first set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Maj. op. at 832. This standard has been rejected as suffering from "serious flaws" in United States v. Downing,753 F.2d 1224, 1237 (3d Cir.1985), particularly as it relates to the admissibility of novel scientific evidence. The standard from United States v. Downing, now known as the Downing standard, focuses on the scientific methodology used in generating the evidence to determine if it can be accepted as reliable by the court even if the evidence has not received widespread acceptance in the relevant scientific community. See Rubanick v. Witco Chemical Corp.,125 N.J. 421, 593 A.2d 733 (1991); see also Commonwealth v. Garcia,403 Pa.Super. 280, 307-08, 588 A.2d 951, 964-65 (1991) (Ford Elliott, J., dissenting, joined by Del Sole, J., and Hudock, JJ.) (urging case by case review rather than the establishment of blanket prohibitions on such evidence so as not to "abandon the child in the courtroom"). Clearly, in the case sub judice, the scientific methodology employed in gathering information about the behavioral characteristics of the victims of child sexual abuse was beyond reproach as the expert witness testified to behavioral characteristics she had personally observed in over 500 such victims. Although the so-called "laundry list" of characteristics may not be sufficiently specific to the victims of child sexual abuse to satisfy the majority herein, no one has disputed the fact that these characteristics do exist and have been observed in such victims.
|
|