ABSTRACT:

Expert witness testimony is often an essential evidentiary component in establishing child sexual abuse in court. Children who are sexually abused often exhibit a variety of physical, emotional, psychological, and behavioral symptoms as a result of their abuse that experts in the field of child sexual abuse often rely upon in drawing inferences and conclusions regarding a child's allegations. 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.

Expert witness testimony is governed by special evidentiary rules that have been recently modified, both under the Federal Rules of Evidence and Georgia case law. Professionals in the field of child sexual abuse need to be informed regarding these changes so that their testimony in court can be presented in a manner which is both probative and admissible. An expert who is deemed qualified by the court to testify on the issue of child sexual abuse may provide opinion testimony related to the subject matter. However, findings and conclusions within such an opinion must be carefully worded so that they do not invade the province of judges and jurors who are solely charged with the responsibility of assessing credibility of witnesses and rendering judgement on the ultimate issue of whether or not abuse has occurred.

This material 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, it 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 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.

OUTLINE

I. INTRODUCTION

II. RULES GOVERNING THE USE OF EXPERT TESTIMONY

A. Admissibility

B. Qualifications

C. Basis and Form of Testimony

D. Standard to be Used in Opinion Testimony

E. Novel Scientific Theories and Techniques

F. The "Ultimate Issue" Rule

III. COMMON USES OF EXPERT TESTIMONY IN CHILD SEXUAL ABUSE CASES

A. Physical Evidence

B. Psychological and Behavioral Evidence

C. Rehabilitative Testimony

D. "Profile" Testimony

IV. CUSTODY CASES INVOLVING SEXUAL ABUSE ALLEGATIONS

A. Incidence and Frequency

B. Expert Testimony and "Parental Alienation Syndrome"

V. CONCLUSION

THE USE OF EXPERT WITNESSES

IN CHILD SEXUAL ABUSE CASES

I. INTRODUCTION

The need for expert witnesses in child sexual abuse cases is best expressed as follows:

"Child sexual abuse is often exceedingly difficult to prove. Molestation occurs in secret, and the child is usually the only eyewitness. While many children are capable witnesses, some cannot take the stand.... Consequently, children's testimony is sometimes ineffective. The problems engendered by ineffective testimony and lack of eyewitnesses are compounded by the paucity of physical evidence in many child sexual abuse cases. Faced with a vacuum of evidence, attorneys increasingly turn to physicians, psychia-trists, social workers, and psychologists to provide expert testimony regarding child sexual abuse."

Depending on the jurisdiction and the proceeding involved, expert testimony can take several forms. For purposes of this material, however, attention is focused upon the use of expert testimony in juvenile court proceedings in Georgia which is deemed necessary to protect a child who has been sexually abused, as well as criminal prosecutions and custody disputes in superior courts which may involve sexual abuse allegations. Since evidentiary rules involving the use and admissibility of expert testimony have extensively evolved over time, the Federal Rules of Evidence and current Georgia law are both discussed.

II. RULES GOVERNING THE USE OF EXPERT TESTIMONY

Next to a child victim's direct or indirect testimony concerning abuse which might be deemed admissible in a court proceeding, the single most effective evidentiary vehicle in child sexual abuse cases is the use of expert testimony. There are procedural guidelines, however, which regulate the use of expert witnesses and govern the admissibility of opinion testimony. A proper understanding of these procedural rules and guidelines is necessary in order to successfully and effectively present such evidence in court.

These guidelines are broken down into the following categories for consideration by practitioners and jurists who are either presenting or assessing expert testimony in child sexual abuse cases:

A. ADMISSIBILITY

The primary reason to introduce expert testimony is to solicit information that will aid the trier of fact in evaluat-ing and understanding matters outside the scope of common experience. The phenomenon of child sexual abuse can be extremely complex and encompasses a wide range of medical and psychological information and knowledge with which most judges, lawyers, and lay people are unfamiliar. Rule 702 of the Federal Rules of Evidence, newly amended, states:

"If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if 1) the testimony
is based upon sufficient facts or data, 2) the testimony is the product of reliable
principles and methods, and 3) the witness has applied the principles and
and methods reliably to the facts of the case."

The italicized portion, above-referenced, constitutes a recent addition to Rule 702 which is apparently intended to place some limits on the use of expert testimony through insistence that such evidence be predicated upon principles and methods which can be established as reliable. The extensive impact of this revision is further discussed in Section II (E) below.

In general, whether or not the testimony of an expert will be useful in any given case is almost always left to the discretion of the trial judge before whom the testimony is proffered. While preliminary questions posed by Rule 104 of the Federal Rules of Evidence concerning relevance, the existence of a privilege, and the expert's qualifications [see II (B) below] must first be addressed, the Federal Rules generally favor the admission of expert testimony whenever a judge or jury may be assisted in better understanding the evidence presented or to determine a fact in issue. Even if there is some common knowledge or familiarity with a particular subject, an expert's testimony may be valuable to add insight and depth to a judge or jury's understanding of the matter, or to educate them as to commonly held prejudices and misconceptions which might negatively impact upon an impartial and just decision.

Georgia law states that "(t)he opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses." The Supreme Court of Georgia has ruled that such testimony must first be "relevant" and "helpful to the trier of fact." The use of an expert witness cannot be used to simply bolster a party's theory in a case, but must be necessary to explain some fact or draw inferences which are ordinarily outside the knowledge, comprehension, or experience of the judge or jury.

B. QUALIFICATIONS

In order for a person to testify as an expert witness, a judge must first make a determination that the individual being offered has sufficient knowledge of the subject matter, through special training or practical experience, that he or she is qualified to give an opinion upon which the court can reasonably rely. It is the burden of the party offering the expert testimony to establish the witness's qualifications, and a witness expected to render an opinion as an expert should be "tendered" to the court as such as early as possible. An opposing party has the right to both examine the expert on the stand as to his/her qualifications, as well as make objections on the record as to the insufficiency of the qualifications presented to the court. Failure to object to an expert's qualifications at this stage of a proceeding prevents the issue from being subsequently raised and reviewed on appeal. Whether or not an expert is "qualified" is a legal question for the court to decide, and a judge's discretion in this regard is rarely overturned on appeal.

In most jurisdictions, judicial determination of an expert witness's qualifications is usually based upon assessment of a number of factors: education; practical experience; specialized training; professional licenses, certificates or awards; teaching experience; publications; knowledge of relevant literature; professional group membership or affiliation; and prior experience as an expert witness. The Court of Appeals of Georgia has ruled that while an expert's qualifications must be objective (i.e., more than the witness's mere assertion that he or she knows an area or is an expert), no more is generally required than to establish that the expert has had education or training in a particular trade or profession and that special knowledge involving a particular subject may be drawn from experience as well as study and mental application. In other words, the expert's background must show at least some experience or training in the matters for which he or she claims expertise. However, judicial decisions in Georgia make it clear that formal academic training is not required, nor is formal licensure or certification.

In child sexual abuse cases, experts are commonly drawn from the fields of medicine, psychiatry, psychology, counseling, and social work, with expertise based upon a combination of clinical training and experience, as well as a working knowledge of relevant professional studies and literature. Conceivably, experts in the area of sexual assault might also be drawn from law enforcement, rape crisis counseling, victim-witness programs, school social work or counseling, nursing, probation counseling, sociology, or a number of other related fields.

Professor John E.B. Myers is a renowned expert in the field of evidence in child abuse and neglect cases. In a comprehensive interdisciplinary law review article entitled "Expert Testimony in Child Sexual Abuse Cases," Myers and his collaborative colleagues state that while a party may object to a witness's qualifications, "(u)nless a witness is clearly unqualified, however, deficiencies in qualifications normally go to the weight accorded the witness's testimony rather than its admissibility. A witness need not be the foremost authority on child sexual abuse, nor must the expert understand every nuance of the subject." In Georgia, questions regarding an expert's qualifications and experience may also go the expert's credibility.

Once the qualifications of an expert have been established in court, and his or her testimony has been determined to be relevant, necessary, and/or helpful to the proceedings, the expert may render a professional opinion on the subject matter. Subsequent challenges to the expert's techniques and the basis for his or her opinion will only go to how much weight the expert's opinion should be given. Inasmuch as it is inappropriate for an expert to render an opinion beyond his or her qualified area of expertise, a judge may limit the expert's qualifications and testimony to a particular issue that is before the court.

C. BASIS AND FORM OF TESTIMONY

Traditionally, experts deemed qualified by the court to testify had to base their opinions on either a) personal knowledge, or b) facts admitted at trial. An expert could not rely upon facts or information not otherwise admitted into evidence, including the statements and observations of others which might be in the nature of hearsay. The Federal Rules of Evidence have significantly departed from these restrictions. Rule 703 of the Federal Rules of Evidence, also recently amended, states:

"The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known
to the expert at or before the hearing. If of a type reasonably relied
upon by experts in the particular field in forming opinions or inferences
upon the subject, the facts or data need not be admissible in evidence
in order for the opinion or inference to be admitted. Facts or data that
are otherwise inadmissible shall not be disclosed to the jury by the
proponent of the opinion or inference unless the court determines that
their probative value in assisting the jury to evaluate the expert's
opinion substantially outweigh their prejudicial effect."

The italicized segment, above-referenced, constitutes a recent addition to the rule. The previous rule was a milestone in the evolution of evidence law in that it reflected an understanding and appreciation of the fact that the data upon which experts ordinarily rely in drawing professional opinions frequently come from a variety of sources. Under this view, depriving a jury of the opportunity to independently evaluate the facts underlying an expert's opinion is less troublesome than depriving the expert of information upon which he or she would normally rely to render the opinion. This enlightened approach is well applied to cases involving child sexual abuse. While in many instances an expert may have formulated an opinion that is based upon his or her firsthand contact with a child (e.g, during an interview, or through personal involvement with the child in therapy), firsthand knowledge about the child, or even other parties to the case, is not always necessary in order to provide valuable professional insight into an issue before the court.

If the expert's sources and data are of a type upon which others in the field "reasonably rely" in formulating opinions and inferences, then the testimony may be offered. Rule 705 further provides:

"The expert may testify in terms of opinion or inference and give reasons
therefor (sic) without first testifying to the underlying facts or data, unless
the court requires otherwise. The expert may in any event be required to
disclose the underlying facts or data on cross-examination."

Under the current revised versions of Rules 702 and 703, an expert may, for example, base his or her opinion concerning abuse on a review of various medical and psychological records from other professionals, the child's behavior as reported and documented by others, or study and assessment of one or more videotaped interviews with the child, etc. This is true even if the medical records, psychological evaluations, treatment notes, social service records, and police reports relied upon by the expert contain written statements and observations which constitute hearsay that is otherwise inadmissible in the court proceeding. As long as a) the facts and data are of a type reasonably relied upon by experts in the field of child abuse in forming opinions or inferences upon the subject, b) the facts and data are sufficient enough to formulate a professional opinion, c) the principles and methods used in drawing any inferences and conclusions are reliable, and d) the expert's application of the principles and methods to the facts and data is reliable, then the expert's opinion is admissible.

Prior to recent amendments to Rule 703, proponents of expert testimony might be tempted to use an expert to "sneak in" otherwise inadmissible evidence, resulting in court rulings that an expert could not disclose inadmissible hearsay on direct examination except for the limited purpose of explaining or clarifying an opinion. The revision of Rule 703, however, appears to address this problem by prohibiting disclosure of otherwise inadmissible facts and data unless the information is sought and revealed through cross-examination which is consistent with Rule 705; or, assuming that criteria for reliability have been met under Rule 702, the court has first established that the "probative value (of the facts and data) in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect."

Rule 403 of the Federal Rules has always allowed a judge to balance the value of any evidence against its prejudicial impact, and supports exclusion of any evidence which might otherwise be relevant if "…its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." The general principle that the "reliability of inadmissible evidence normally goes to the weight accorded an expert's opinion, not its admissibility" is likely to still apply under the revised Rules as long as it can be established that the principles and methods used by the expert are themselves reliable.

Some sources of information, however, may appear so unreasonable or unreliable that a court might exclude the testimony or determine that its probative value is substantially outweighed by its potential to unfairly prejudice the case. Myers states:

"The probative value of symptoms observed in sexually abused children
is highest when there is a coalescence of three symptoms:
1) a central core of sexual symptoms strongly associated with sexual abuse;
2) nonsexual symptoms commonly observed in sexually abused children; and
3) medical evidence of sexual abuse.
Probative value declines as sexual symptoms and medical evidence
decrease in proportion to nonsexual symptoms."

Therefore, if the evidence relied upon by an expert to establish sexual abuse consists of symptoms which are primarily nonsexual, or ambiguous at best, then a court may exclude the expert's testimony consistent with the Rules.

The Federal Rules of Evidence further open the door in two other evidentiary areas. Rule 803(4) provides that "(s)tatements made for the purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment" are not automatically excluded by the hearsay rule. In addition, Rule 803(18) states:

"To the extent called to the attention of an expert witness upon
cross-examination or relied upon by the expert witness in direct
examination, statements contained in published treatises, periodicals,
or pamphlets on a subject of history, medicine, or other science or art,
established as a reliable authority by the testimony or admission of
the witness or by other expert testimony or by judicial notice [are not
excluded by the hearsay rule]. If admitted, the statements may be read
into evidence but may not be received as exhibits. This rule is in addition
to any statutory provisions on this subject."

Although Georgia has not formally adopted the aforementioned Federal Rules of Evidence, judicial decisions governing the permissible basis of an expert's opinion are currently in flux and appear to reflect increasing similarity and reference thereto. For example, while not indicative of an outright adoption of the "reasonable reliance" standard found in Rule 703 of the Federal Rules of Evidence, recent court decisions in Georgia suggest a movement away from the more traditional approach of prohibiting expert opinion testimony that is not based upon personal knowledge or facts admitted at trial to a less restrictive rule that permits opinions which are partially based upon hearsay and other inadmissible evidence. Emphasis is placed on the weight accorded the evidence rather than its admissibility, and whether or not the probative value of the evidence outweighs its prejudicial effect.

In assessing the extent of prejudice underlying expert testimony which may be based upon inadmissible hearsay, legal scholar Paul S. Milch states the following:

"Any inadmissible hearsay that underlies an expert's opinion
has some prejudicial effect in that the opponent is not able to
cross-examine the source of the hearsay information. Numerous
factors determine whether this prejudicial effect is great or small:
the quantity of hearsay relied upon by the expert, the importance
of the hearsay facts in the expert's analysis, whether the hearsay
facts are disputed or have been substantially proven by other
means, whether such hearsay is reasonably relied upon by experts
in this field, and any other factors that help measure the extent to
which the opponent is disadvantaged by not being able to cross-
examine the sources of the hearsay facts."