Due to the length and technical nature of the full text of this article, a summary of "The Use of Expert Witnesses in Child Sexual Abuse Cases," is provided below preceding the article in its entirety.

THE USE OF EXPERT WITNESSES

Summary Compiled by Curtis Holmes and Sharon McGee

Expert witness testimony is often an essential evidentiary component in establishing child sexual abuse in court. Children who are sexually abused may exhibit a variety of physical, emotional, psychological, and behavioral symptoms as a result of their abuse. Experts in the field of child sexual abuse often rely upon these symptoms in drawing inferences and conclusions regarding a child's allegations of abuse. Assessment of these various symptoms and indicators requires expertise that is ordinarily beyond the knowledge of judges and laymen. Consequently, expert testimony is needed to establish the probative value of such behaviors and symptoms as they relate to the child's victimization. The admissibility of such testimony, in the form of an opinion or otherwise, depends upon whether the information offered is relevant to an issue before the court and will assist the trier of fact in understanding an issue or subject matter that is ordinarily beyond the knowledge and experience of the average juror.

In order to qualify as an expert, a witness must demonstrate sufficient knowledge of the subject matter through specialized training or practical experience to be able to render an opinion upon which the court can reasonably rely. Qualification of an expert is within the sound discretion of the court. Once relevancy has been determined and an expert's qualifications have been properly established, subsequent challenges to the expert's techniques and the basis for his or her opinion will ordinarily focus on how much weight the expert's opinion should be given.

Expert witness testimony is governed by special evidentiary rules that have been recently modified under both the Federal Rules of Evidence and Georgia case law. Professionals in the field of child sexual abuse need to be informed regarding these rules so their testimony in court can be presented in a manner which is both probative and admissible.

 Both Georgia case law and the Federal Rules of Evidence have significantly eroded traditional rules limiting expert opinion testimony to personal knowledge of the case or facts admitted at trial. An expert may now base his or her opinion on facts and data that are not otherwise admissible as evidence. Under the Federal Rules, as long as the facts and data are of a type reasonably relied upon by experts in the field when formulating inferences and conclusions on the subject matter, the opinion itself is admissible. Similarly, an expert in Georgia may base an opinion on partial hearsay. As long as the probative value of the evidence outweighs its prejudicial effect, the testimony is admissible. Any margin of error or uncertainty in the expert's specific conclusions goes to the weight accorded the testimony, not its admissibility.

 In child sexual abuse cases, an expert's opinion should be based upon the reasonable clinical certainty necessary to make diagnostic and treatment decisions. A party may challenge the admissibility of expert testimony that is based upon theories, techniques, or technologies that are unreliable or have not yet reached a scientific stage of verifiable certainty. Under the Federal Rules of Evidence, an expert must be prepared to demonstrate that the testimony offered is the product of reliable principles and methods which have also been reliably applied to the facts of the case. In Georgia, a challenge of this nature must be made at the time such testimony is offered and the testimony may then be subjected to what is known as a Harper review. Under Harper, a trial court may determine whether a theory, procedure, or technique has reached a scientific stage of verifiable certainty by taking judicial notice of other court decisions or reviewing any evidence presented at trial. In child sexual abuse cases, expert medical and behavioral science testimony may be subject to a Harper challenge and review.

 Appellate courts in Georgia have established that testimony based upon the Child Sexual Abuse Accommodation Syndrome (CSAAS) is reliable under Harper. However, CSAAS testimony is not limited to purposes of rehabilitation or rebuttal since Georgia courts do not appear to make a distinction between pure CSAAS testimony and other behavioral science testimony that is otherwise probative of abuse. Given the evolving nature of evidentiary law governing expert witness testimony, it would be prudent for professionals in the medical and behavioral science fields to present testimony in court that distinguishes between these two forms of evidence.

 Behavioral science testimony may be probative of abuse, especially when accompanied by a credible disclosure on the part of a child. The probative value of such testimony is highest when there is a coalescence of symptoms that are strongly associated with sexual abuse, along with nonsexual symptoms that are commonly observed in sexually abused children and medical evidence of sexual abuse. Probative value declines as sexual symptoms and medical evidence decrease in proportion to nonsexual symptoms.

 In general, lay and expert witnesses alike are not permitted to testify regarding the "ultimate issue" before a court of whether or not a child has been sexually abused. While experts in Georgia have, on occasion, been permitted to provide opinion testimony that touches on the "ultimate issue," such testimony has been limited to circumstances where it appears that the inferences and conclusions are clearly beyond the ken of the average layman. Medical, psychological, and behavioral science experts in child sexual abuse cases should relate their opinion testimony in a manner that does not invade the province of the jury. Rather than offering an opinion that a particular child has been sexually abused, these experts should relate that their conclusions and findings are "consistent with" or "inconsistent with" sexual abuse or other trauma. This form of opinion testimony does not violate the "ultimate issue" rule in Georgia. However, under no circumstance should an expert testify regarding the credibility or believability of a particular victim or witness. Such testimony may be grounds for reversal of a verdict and is not subject to the contemporaneous objection rule. Assessment of the credibility of witnesses is not beyond the ken of average jurors, and therefore, is deemed within their sole province to determine.

 Sexual abuse may be proved by the testimony and statements of a child victim alone or with the assistance of expert medical, psychological, and behavioral evidence testimony that is probative of abuse. Physicians can provide opinion testimony that is based upon the child's history, statements, and medical examination, even if the physician's examination of the child reveals no concrete physical evidence supportive of the child's allegations. Psychologists, therapists, social workers, and other professionals with expertise in the investigation, assessment, and treatment of child sexual abuse may also provide opinion testimony that includes psychological and behavioral science evidence of a probative nature.

 Expert witness testimony may also be used in a non-substantive manner for the purpose of rehabilitating a child witness whose credibility has been impeached. Such testimony may be used to explain behaviors on the part of a child, which, to a lay juror, may appear inconsistent with the child's allegations of abuse. An expert may also be called upon to explain cognitive and developmental differences in children and adults for the purpose of establishing the need for special procedures related to examination of a child in court or to counter arguments that such differences make children, in general, unreliable as witnesses. Inasmuch as the improper use of leading questions may unnecessarily taint children's statements and disclosures regarding sexual abuse, experts may provide opinion testimony in court related to proper and improper interviewing techniques in such cases.

 Testimony that a child or other party does or does not fit a "common profile" or class of individuals is generally prohibited. Such testimony is viewed as scientifically unreliable and as inappropriate commentary designed to attack or bolster a witness's credibility. Occasionally, however, experts are allowed to testify regarding the common behaviors of a particular class of offenders in general to explain certain evidence or to demonstrate intent, motive, plan, scheme, or bent of mind.

 Allegations of sexual abuse by a parent that arise during separation and divorce or in conjunction with contested custody proceedings should be investigated as thoroughly as any other allegation of child sexual abuse. While experts should be cautious for signs of coaching or improper influencing of a child by a parent, there is little evidence to support the notion that the majority of sexual abuse allegations in such cases are fabricated. Expert witnesses who are called upon to assess and evaluate such allegations should currently avoid such theories as "Parental Alienation Syndrome" that have not yet been tested by objective methods, properly peer reviewed, or determined to be scientifically reliable in court.

The material contained in this section, which appears in its entirety below, is designed to assist and guide every professional in the system who might be called upon to testify as an expert witness in a case involving child sexual abuse. In addition to educating professionals concerning the procedural and substantive rules governing expert witness testimony, the full text which follows offers guidance on how to avoid the pitfalls of improper testimony, which may ultimately result in verdict reversal on appeal. Particular emphasis is placed upon medical, psychological, and behavioral science evidence that might fall under special evidentiary rules governing the admissibility of the testimony that is arguably based upon novel scientific theories and techniques.

The many ways in which experts may be called upon to provide expert testimony in child sexual abuse cases is thoroughly discussed, along with a comparison of Georgia case law that is relevant to the topic. Professionals are given guidance as to the form and nature of expert testimony that has been deemed admissible in Georgia, as opposed to testimony that has been determined by appellate courts to be inadmissible. Finally, special concerns regarding expert testimony in child sexual abuse cases that may arise in the context of contested custody cases is discussed, along with recommendations designed to improve the validity of expert testimony in such cases.