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

IN CHILD SEXUAL ABUSE CASES
By Sylvia Lynn Gillotte
Research Assistance from Sheri Elizabeth Cates

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.

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."

Historically, hearsay evidence in Georgia has been an area not subject to the contemporaneous objection rule on appellate review. Appellate courts have repeatedly held that hearsay evidence, even if admitted without objection, has no probative value and cannot be considered to sustain a verdict. Consequently, it naturally follows that any expert testimony used to establish a fact which is based solely upon hearsay is a violation of the basic rules of evidence in Georgia. Such an opinion is inadmissible. Notwithstanding this hard and fast rule, there are an increasing number of court decisions that appear to permit experts to give opinion testimony that is partially based on hearsay. This is particularly true in the civil arena. Therefore, the question appears to be: "At what point does an expert's opinion become so based on hearsay that it becomes inadmissible?"

In order to understand current guidelines and what appear to be conflicting case decisions governing the admissibility of expert testimony in Georgia, it is helpful to review past decisions in this area of the law. Historically, an expert without personal knowledge of the case could only give an opinion on facts admitted at trial and presented to him or her by way of a hypothetical question. Citing McCormick on Evidence and acknowledging testimony related to property values or mental conditions as the only exceptions to the rule against hearsay as a basis for expert opinion, the Court of Appeals of Georgia expressed this traditional view in Redwing Carriers, Inc. v. Knight as follows:

"The traditional view, still followed in most jurisdictions, has been
that an expert may state an opinion based upon his firsthand knowledge
or based upon facts in the record at the time he states his opinion, or
based partly on firsthand knowledge and partly on the facts of record.
If the opinion is to be based on the facts of record, they may be in the
expert's possession by virtue of his having been present at the taking
of the testimony asserting those facts, or they may be furnished to him
prior to his statement of his opinion by including them in a hypothetical
question that asks him to assume their truth and state a requested opinion
based upon them."

In the subsequent cases of King v. Browning and Prevost v. Taylor, however, both the Supreme Court and the Court of Appeals of Georgia expressed more relaxed views of such testimony in civil cases. In King, a case involving the testimony of a land surveyor, the Supreme Court of Georgia stated that "(w)hen an expert's testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion but, rather, presents a jury question as to the weight which should be assigned the opinion." In Prevost, where the plaintiff's expert based his opinion on both his examination of the plaintiff, as well as a review of the plaintiff's medical records which had not yet been admitted into evidence, the Court of Appeals stated:

"However, that all the facts upon which the witness based his opinion
had not yet been admitted into evidence does not preclude him from
offering his opinion. The facts upon which an expert bases his opinion
may be presented either on direct or cross-examination because the basis
of the opinion relates to the weight to be given the testimony by the jury
and not its admissibility per se."

In addition, the Court in Prevost rejected an argument that Plaintiff had improperly published the text of a medical treatise to the jury by cross-examining the Defendant's expert witness. Citing Pound v. Medney, the court reasserted the proposition that "(a) party can prove by cross-examination of an opposing party's expert that a treatise is standard on the subject." While more restrictive than Federal Rule 803(18) which, when read in conjunction with Rule 703, appears to allow limited publication of treatise text even on direct examination, the law in Georgia allows experts to testify that they have relied upon such sources in formulating their opinions without permitting further discussion of the content of such material unless challenged on cross-examination.

In fact, for purposes of impeachment, a cross-examiner is allowed to confront an expert witness regarding any similar professional treatise or material so long as it can be established - through admission by the witness under examination or independent expert testimony - that the source is generally accepted as reliable and authoritative in the field. It is not necessary for the expert to have relied upon the source in question in order for it to be used in cross-examination. Additionally, since the scope of cross-examination is broad, an expert may be asked for additional opinions that are based upon relevant hypothetical questions or otherwise.

Over the last two decades, additional decisions in Georgia have been consistent with the less stringent standards set forth in both King and Prevost. The emerging position seems to support the proposition that an expert's lack of personal knowledge does not render an opinion inadmissible. Information based upon hearsay and other facts not otherwise introduced into evidence may serve as a partial basis for the expert's opinion. Lack of personal knowledge goes only go to the weight of the evidence, not its admissibility. For example, in the recent case of In the Interest of M.D., et al, the Court of Appeals of Georgia rejected the argument that an evaluating psychologist should not have been permitted to give an opinion which was not only based upon psychological tests conducted on the mother, but extensive medical records, and personal and family histories collected during the process. Citing the landmark case of King v. Browning, the court noted:

"(I)n civil cases, even when an expert's testimony is based on
hearsay, the lack of personal knowledge on the part of the expert
does not mandate the exclusion of the opinion but, rather, presents
a …question as to the weight which should be assigned the opinion.
The evidence should go to the [finder of fact] for whatever it's worth."

In a footnote, the court also pointed out that under Georgia law, statements received as part of a medical diagnosis or treatment are not considered hearsay. This is consistent with Federal Rules of Evidence which govern such statements. In Georgia, however, such statements, may be limited to "what" happened, rather than "who" caused the injury. For example, in the case of State v. Butler, the court stated, in dicta, that statements about "who" perpetrated the injury would not be pertinent to a medical diagnosis.

This is questionable reasoning in the case of child sexual abuse, however, where a doctor's treatment of the patient would ordinarily include directives and recommend-ations geared toward protecting the child from the source of further injury. Myers states:

"In child abuse litigation, courts have carved out an exception to the
rule against statements attributing fault. The majority of courts hold that
children's statements identifying the perpetrator of abuse are sometimes
pertinent to diagnosis or treatment. A minority of courts reject statements
of identification. The majority has the better argument. Treatment of child
abuse includes removing the child from the abusive setting, and to this end
the doctor often needs to know the identity of the perpetrator. If the
physician has reason to suspect that a child has a sexually transmitted
disease, it is pertinent to know who had sexual contact with the child.
If the child was threatened into silence, the source of the threats may
be pertinent to psychological treatment."

In assessing other parameters and limitations on the testimony of expert witnesses in Georgia, one must look to additional civil and criminal case decisions. For example, while an expert may not give an opinion that is based entirely or substantially on hearsay, or be used as a conduit in court to admit hearsay that has been gleaned in the course of an investigation, an opinion which is partially based on hearsay will be allowed into evidence as long as it is otherwise supported by "substantial evidence of record." In addition, an expert need not have any personal knowledge of the parties as long as the facts which form the basis for his or her opinion are admitted into evidence and presented as relevant hypothetical questions. Furthermore, the fact that an expert gives an opinion in response to a hypothetical question which is based on some facts that are never introduced into evidence goes to the weight of the testimony, not its admissibility.

Subject to the right of cross-examination, an expert may give opinion testimony without stating the basis for the opinion, or may base an opinion on facts provided by others. In addition, subject to inadmissible and improper commentary related to a victim or witness's truthfulness or credibility [See further discussion of this in II (F) below], an expert should be permitted to state the facts upon which an opinion is based. "It matters not whether such facts are sought on direct or cross-examination."

In criminal cases, a defendant's attorney is entitled to see the expert's notes and work papers prior to cross-examination. This includes any documents reviewed prior to the expert's testimony once trial in the matter has begun. Note that while an expert may need to refresh his or her memory of findings and events by occasional reference to personal notes, the party offering the witness should lay a foundation for the witness to refresh his or her recollection. The expert may also be allowed to testify directly from the notes if he or she is unable to remember the information and a foundation for past recollection recorded has been laid.

Georgia courts have also held that an expert cannot be a "mere conduit" for the opinions of other experts not called to testify, or be allowed to testify as to the "general consensus" of the community of experts in a given field. Furthermore, when relying upon common sources of knowledge within a witness's field of expertise, the expert's conclusions must be based upon his or her application of that general knowledge to the facts in dispute before the court.

While an expert's testimony may be deemed relevant, necessary, reliable, and therefore admissible under the aforementioned guidelines, it is ultimately the province of the judge or jury to determine what weight should be afforded the testimony. No matter how qualified the expert, a jury is not bound by an expert's conclusions and is entitled to instructions from a judge to that effect. In non-jury matters, where a judge may actually hear inadmissible testimony in the course of ruling on an evidentiary matter, it is presumed that the court will "sift the wheat from the chaff" and base its ruling only on the legal evidence. As long as there is ample admissible evidence to support a judge's decision, the ruling will not be overturned on appeal.

D. "STANDARD" TO BE USED IN OPINION TESTIMONY

In child sexual abuse cases, circumstances are rare that an expert can testify with absolute certainty that abuse has occurred. The problem inherently lies in the fact that children are often the only witnesses to their abuse and, more often than not, there is little or no medical evidence to substantiate their victimization. Fortunately, no expert witness is held to so high a standard. Rather, it is the following rule that applies:

"An expert opinion must be premised on a reasonable degree of
certainty. The expert cannot speculate or guess. It is clear, however,
that an expert need not be absolutely certain about a subject before
offering an opinion. All that is required is reasonable clinical certainty."

What constitutes "reasonable clinical certainty" is, of course, another question. Primarily, it may be defined as "the degree of certainty required to make diagnostic and treatment decisions." Professionals in the field of child abuse do not think or make clinical decisions based upon legal terms of proof such as a "preponderance of the evidence" or "beyond a reasonable doubt." Therefore, questions regarding the certainty of a professional's clinical opinion or impression should not be couched in those terms. "Lawyers should accept the methodology and terminology of medicine and the behavioral sciences."

Many courts have held that a diagnosis can also be based upon probability, rather than certainty, since lack of absolute scientific certainty does not deprive the opinion of evidentiary value. Evidence does not have to prove a fact conclusively in order to be relevant and helpful. Once other preliminary issues regarding the expert's ability to testify have been positively established, any margin of error or uncertainty in the expert's specific conclusions goes to weight, not admissibility.

Nevertheless, a party may challenge the admissibility of expert testimony which is based upon theories or technology that have not reached "a scientific stage of verifiable certainty." This is further discussed below.

E. NOVEL SCIENTIFIC THEORIES AND TECHNIQUES

The Federal Rules were written and adopted with a view toward relaxing previous evidentiary rules and permitting more evidence to go before the court for consideration. Former Rule 703 opened the door very widely for expert testimony. As a result, plaintiffs and defendants alike began liberally availing themselves of the use of so-called "experts" to support their legal theories in court.

As this new evidentiary approach was applied, appeals were filed in cases across the country on the ground that certain expert testimony was being improperly based upon "questionable" and/or "unreliable" scientific theories and principles. Special rules, therefore, developed as a result of numerous appellate court decisions, and ultimately resulted in formal amendments to the Federal Rules of Evidence. Prior to further discussion of these rules, however, it may be useful to discuss their potential application to child sexual abuse cases.

All science reflects an understanding of laws and principles that are continually evolving and changing as new information, research, and data are collected and studied which expands our awareness of any given topic. Consequently, what may be new and revolutionary science today, may be old and accepted knowledge tomorrow. In the interim, we flow through a continuum of knowledge and understanding that has varying degrees of reliability, depending upon which end of the continuum we are nearer.

Where science is concerned, it may take quite some time before there is substantial consensus amongst professionals regarding any given theory or technique. One example of this in the field of child abuse is described as follows:

"In 1962, Dr. C. Henry Kempe and his colleagues published their
seminal article describing battered child syndrome. Presence of the
syndrome is strong evidence that a child's injuries are nonaccidental.
When prosecutors began using expert testimony on battered child
syndrome, the reliability of the syndrome was open to question. At
that early stage of development, battered child syndrome was properly
considered a novel application of established scientific principles. The
syndrome quickly gained acceptance as a reliable method of establishing
nonaccidental injury, however, and courts uniformly approved admission
of battered child syndrome testimony. Today, it is clear that the syndrome
is accepted by medical science."

Clearly, those at the forefront of a technology or science are blazing a trail for others to follow and upon which many foundations are subsequently laid. Since the purpose of using expert testimony in court is to help the trier of fact to better understand issues which might be outside normal experience and understanding, where should a line be drawn which limits or excludes an expert's testimony that is based on a theory or technique which is "novel" or not yet "generally accepted in the scientific community?"

"One of the most complex issues raised by expert testimony on child sexual abuse is the application to such testimony of special rules governing the admissibility of novel scientific evidence." In most instances, an expert witness is used to provide either medical, psychological, or behavioral science evidence to demonstrate either an increased or decreased likelihood or probability that a child was sexually abused. Medical evidence, on the one hand, is usually straightforward because it is primarily based upon physical examination, medical history, and laboratory findings. Behavioral science evidence, on the other hand, is more of a "soft science" and is therefore viewed with more suspicion. Unlike medical evidence that is based on substantial data that is objectively verifiable, behavioral science evidence is related to the mind and emotions and is associated with more subjective qualities.

If science entails the systematic application of principles designed to yield accurate results, can medicine, psychiatry, psychology, and social work be characterized as scientific disciplines? While Myers and his professional colleagues acknowledge that "(i)n the final analysis, most observers agree that each discipline combines art and science," they argue that:

"In the context of child sexual abuse litigation – where the concern is
reliability of novel forms of evidence – it is appropriate to characterize
all of the relevant disciplines as scientific. This characterization has several
advantages. First, such a characterization acknowledges the scientific
element of expert medical and behavioral science testimony.
Second, characterizing the disciplines as scientific recognizes that
medical and behavioral science testimony based on novel principles
raise the concerns discussed …regarding novel scientific evidence.
That is, such evidence may over-awe or confuse the jury and may be
less accessible to lay analysis than more traditional forms of evidence."

They state further:

"Conceding that expert testimony on child sexual abuse can be
premised on scientific principles leads to the conclusion that the
special admissibility requirement is sometimes applicable to such
testimony. However, this conclusion does not determine when the
requirement applies. The answer to that question depends on whether
expert testimony is based on novel principles."

As a result of appellate decisions across the country addressing the question of novel scientific theories, techniques, and principles, two major lines of analysis have been advanced. One line of analysis, developing from the case of Frye v. United States, establishes the following test for admissibility which has since been called the "general acceptance test":

"Just when a scientific principle or discovery crosses the line between
the experimental and demonstrable stages is difficult to define. Somewhere
in this twilight zone the evidential force of the principle must be recognized,
and while courts will go a long way in admitting expert testimony deduced
from a well-recognized scientific principle or discovery, the thing from
which the deduction is made must be sufficiently established to have gained
general acceptance in the particular field in which it belongs."

For a variety of reasons, the Frye analysis has had many critics. In fact, the U.S. Supreme Court rejected this analysis in the case of Daubert v. Merrell Dow Pharmacy, holding that this standard had been superseded by the Federal Rules of Evidence. Inasmuch as neither Georgia nor the Federal Rules have adopted this line of analysis, further discussion of the problems associated with Frye are unnecessary. Suffice it to say that application of this test to expert testimony involving child sexual abuse would be both difficult and limiting, in particular because the "field of expertise" involving sexual abuse covers a wide range of professional disciplines. Furthermore, there is rarely universal acceptance in any science, particularly the behavioral sciences which are so commonly used to assess allegations in child abuse.

The other line of analysis that has developed from a number of different cases has been called the "relevance analysis." Under this inquiry, reliability and admissibility are not limited to a "general acceptance" standard. "Rather, the court considers a broad range of factors to determine the reliability of novel scientific evidence. Once reliability is assessed, the court balances the reliability and probative value of evidence against the possibility the evidence will cause unfair prejudice to the opposing party, or will confuse or mislead the jury." Using this analysis, "general acceptance" is but one factor to consider.

Under the "relevance analysis," a court will first evaluate the reliability of the scientific technique. Once reliability has been established, the court must then balance the probative value of the evidence against other factors mitigating against its admission. Once this process is complete, the court can either permit the testimony, exclude it, or limit it to selected topics.

This analysis is more consistent with recent additions to Rules 702 and 703 of the Federal Rules of Evidence. Revised Rule 702, which covers the use of a qualified expert to assist the trier of fact, adds a provision that the testimony must be based upon "sufficient facts or data," and be the product of "reliable principles and methods;" furthermore, it requires that the expert apply these principles and methods "reliably to the facts of the case." In addition, revised Rule 703 now clearly prohibits direct disclosure of otherwise inadmissible facts or data upon which an opinion might be based without an assessment by the court that "their probative value" will "substantially outweigh their prejudicial effect." It seems clear from this wording that a Frye test analysis was neither contemplated nor adopted by the Federal Rules of Evidence, or incorporated into recent revisions.

In Georgia, as elsewhere, a party has a clear right to challenge the admissibility of expert testimony if it appears based upon questionable theories or technologies. It is imperative, however, that an objection of this nature be made at the time such testimony is offered. Whether or not a scientific principle or technique forms the basis for competent evidence in Georgia is governed by the Supreme Court's decision in Harper v. The State. In rejecting the Frye analysis, the court stated:

"After much consideration, we conclude that the Frye rule of 'counting
heads' in the scientific community is not an appropriate way to determine
the admissibility of a scientific procedure in evidence. Instead, we…hold
that it is proper for the trial judge to decide whether the procedure or technique
in question has reached a scientific stage of verifiable certainty, or …
whether the procedure 'rests upon the laws of nature.' The trial court
may make this determination from evidence presented to it at trial by
the parties; in this regard expert testimony may be of value. Or the trial
court may base its determination on exhibits, treatises or the rationale of
cases in other jurisdictions….The significant point is that the trial court
makes this determination based on the evidence available to him rather
than by simply calculating the consensus in the scientific community."

Pursuant to the court's ruling in Harper, once a substantial number of courts have recognized a particular theory or procedure, a trial judge may take judicial notice that it has been established with verifiable certainty, and additional evidence regarding its reliability is unnecessary.

In Harper, the Supreme Court upheld a lower court's rejection of sodium amytal/truth serum results into evidence where the proponent of the testimony had not undertaken to establish its reliability as an accepted medical and psychiatric technique, and judicial notice was taken that a majority of jurisdictions had rejected such evidence. Similar rulings have been made regarding expert testimony in cases concerning the reliability of eyewitness testimony, use and reliability of the Abuscreen Ontrak Test to reveal marijuana use, and the reliability of radar and laser-based speed detection devices. It is interesting to note that the Court of Appeals' recent decision concerning speed detection devices resulted in immediate legislative changes which now recognize the scientific reliability of such devices and the admissibility of such related evidence in court.

It is important to keep in mind that a court decision that refuses to recognize a given theory or technology at one point in time, may be overturned or rejected at such time as research and/or knowledge in the field have advanced the theory or technology to a higher degree of scientific reliability and acceptance. While trial judges in Georgia must necessarily review such evidence on a case-by-case basis, lower courts are permitted to take judicial notice of any theories, techniques, or procedures which have been subjected to appellate review and been determined to be scientifically reliable. Without specific guidance from the appellate level, however, the question of whether or not a theory or technique has reached a "scientific stage of verifiable certainty" is left to the discretion of the trial judge. In making that determination, the court may be informed by the opinion of other experts.

Expert medical and behavioral science testimony is generally considered to be highly probative of abuse. The major objection to such testimony, however, is its potential unreliability when offered as substantive or direct evidence of abuse. Opponents of such testimony in sexual abuse cases often argue that there is inadequate scientific study and research to support the expert's clinical observations. However, Myers and his colleagues state that "recent research lends empirical support to the clinical conclusion that properly qualified professionals can determine whether a child's symptoms and behavior are consistent with sexual abuse." Therefore, the question remains as to whether or not testimony being offered in any given case involves a "novel scientific technique or theory" which may be subject to a Harper review. Although the standard in Georgia appears less stringent than in either Frye or Daubert, when proper objection is made to such testimony, the proponent should be prepared to establish, as outlined above, that the theory or technique upon which the expert has based an opinion has reached a "scientific stage of verifiable certainty."

For example, in the case of Smith v. State, the Supreme Court of Georgia, on Writ of Certiorari, reversed a decision by the Court of Appeals which excluded expert witness testimony related to battered woman's syndrome designed to assist a jury in understanding a battered woman's behavior and actions and to evaluate her claim of self-defense. In its decision, the Supreme Court noted that expert medical testimony concerning the battered child syndrome had been properly recognized and admitted in cases in the past. On the other hand, it does not appear that either rape trauma syndrome or post traumatic stress disorder have formally met a Harper challenge in Georgia upon which lower courts can take judicial notice. That is not to say, however, that a properly qualified expert could not testify in such a manner as to meet a Harper challenge. In fact, in the recent case of In the Interest of M.D., the Court of Appeals permitted a psychologist to provide expert testimony on a combination of his own psychological evaluation of the parents, as well as other medical histories and reports containing "hearsay," and noted in its decision that the psychologist had made a diagnosis of post-traumatic stress disorder, along with other findings.

In Georgia, there is no doubt that expert testimony concerning the "child sexual abuse accommodation syndrome" is admissible. Numerous decisions have permitted experts to testify in this regard. As long as testimony of this nature is probative of abuse and does not embrace the "ultimate issue" to a degree that improperly invades the province of the jury [see Section II(F) below], it is admissible. In the case of Rolader v. The State, the Court of Appeals of Georgia stated:

"The appellant contends that the trial court erred in allowing the therapist
to offer testimony concerning the 'child sexual abuse accommodation
syndrome' over his objection that the existence of such a syndrome had
not been established to a verifiable scientific certainty. The witness testified
that the 'child sexual abuse accommodation syndrome' was generally considered to be a valid and useful model in explaining and predicting the behavior of
child abuse victims, and there was no evidence suggesting that the theory was
not scientifically valid. It appears that testimony concerning this syndrome has been permitted in numerous other child abuse cases in this state."

Citing Harper v. State, the Court found no error in such testimony, stating that "(o)nce a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature."

A majority of other states have also recognized the value of evidence related to the child sexual abuse accommodation syndrome (CSAAS). However, most do not permit expert testimony related to CSAAS to be used as substantive evidence of abuse. Rather, they have analogized CSAAS to "rape trauma syndrome," permitting such testimony only for the purpose of rehabilitating a child's credibility and to explain behaviors on the part of a child that may appear inconsistent with the child's victimization.

Georgia's minority position on this issue appears to have resulted from a confusion on the part of expert witnesses and jurists alike regarding the nature of CSAAS as opposed to other behavioral science testimony which may be more directly probative of sexual abuse. In Georgia, most behavioral science testimony regarding child sexual abuse appears to be improperly categorized under the broad term of CSAAS evidence. A review of case decisions reveals that in addition to use of the term "child sexual abuse accommodation syndrome" (CSAAS), such testimony has also been referred to as "delayed disclosure syndrome" evidence, "child abuse accommodation syndrome" evidence (deleting the term "sexual"), or "child sexual abuse syndrome" evidence (deleting the term"accommodation"). Some decisions even make inconsistent reference to such testimony in the same opinion. Jurists' confusion related to this issue is understandable. Myers states:

"One of the greatest sources of confusion in child sexual abuse
litigation concerns syndromes. At present, there is no syndrome that
detects or diagnoses child sexual abuse. Much of the confusion regarding syndromes can be traced to misunderstanding of child sexual abuse accommodation syndrome, described by Summit in 1983. Summit
described five characteristics commonly observed in sexually abused
children: (1) secrecy, (2) helplessness, (3) entrapment and accommodation,
(4) delayed, conflicted, and unconvincing disclosure, and (5) retraction."

Myers goes on to explain that Summit's description of these five characteristics of CSAAS were never intended to serve as a diagnostic device, but rather, provide a common language for professionals treating victims of child sexual abuse and to help explain children's various coping behaviors both during and after abuse. Unlike the battered child syndrome, which is directly probative of abuse, CSAAS (as opposed to other behavioral science testimony related to child sexual abuse) is best confined to rehabilitative purposes. "The main function of CSAAS testimony is to explain the often bizarre behavior of child abuse victims, and to debunk adult myths as to how victims of abuse should behave." Nonetheless, current case law in Georgia does not limit such testimony to rehabilitation purposes.

In spite of past appellate decisions and confusion in this area, however, it is prudent for jurists and professionals alike to begin distinguishing CSAAS and other syndrome testimony from behavioral science testimony that may be more directly probative of abuse. "When expert testimony describing behaviors seen in sexually abused children is offered as substantive evidence of abuse, the expert is not describing a syndrome…certainly not Summitt's child sexual abuse accommodation syndrome." While more thoroughly discussed in section III(B) below, behavioral science testimony is often offered as substantive evidence of abuse and has been described as follows:

"(It) is comprised of observations of a number of different behavioral
traits which have been found to occur repeatedly in abused children.
While reactions to abuse can vary, sexually abused children commonly experience symptoms of anxiety, such as nightmares, fear, withdrawal,
and nervousness. These symptoms are not, of course, conclusive
evidence of sexual abuse, but they may be probative in cases where
other explanations for such behavior have been eliminated."

Since the 1970's, there has been a flood of interdisciplinary research, writing, and training regarding child sexual abuse by knowledgeable professionals in the field.
Our understanding about child sexual abuse – its dynamics, patterns, and effects - has increased dramatically over the last three decades. Today, "(a) substantial portion of the contemporary clinical literature supports the conclusion that experts on child sexual abuse can sometimes determine with reasonable clinical certainty whether a child's symptoms and behavior are consistent with sexual abuse, and are probably not the result of other events.

As further discussed below, behavioral science testimony is strongest when supported by corroborating physical evidence. However, given that conclusive medical evidence is rarely present in cases involving child sexual abuse, behavioral science testimony is usually a critical factor in helping to establish that a child has been sexually victimized. Therefore, it is imperative that any expert whose testimony is offered to provide an opinion regarding medical and/or behavioral science evidence of sexual abuse be properly qualified and prepared to meet any Harper challenge to their testimony.

F. THE "ULTIMATE ISSUE" RULE

Courts have long followed the rule that lay witnesses could not testify before a court in the form of an opinion. "What the court needed was fact based on personal knowledge, not opinion or inference." And while experts were allowed to give opinion testimony in their area of expertise, neither lay nor expert witness was permitted to express an opinion on the "ultimate issue before the jury." Questions of law and fact (e.g., "was the child sexually abused and was the defendant the perpetrator?") were deemed to be the sole province of the judge or jury.

Newly revised Rule 701 of the Federal Rules of Evidence treats opinion testimony by lay witnesses in the following manner:

"If the witness is not testifying as an expert, the witness' testimony
in the form of opinions or inferences is limited to those opinions or
inferences which a) are rationally based on the perception of the
witness, and b) helpful to a clear understanding of the witness' testimony
or the determination of a fact in issue, and c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702."

The italicized portion of Rule 701, above-referenced, constitutes a recent addition which appears to strengthen the prohibition against anyone being allowed to provide testimony of a scientific, technical, or otherwise specialized nature without first being recognized and qualified as an expert and subjected to the reliability standards and restrictions of Rule 702. This additional provision may have been considered particularly important in view of the following provisions of Rule 704:

"a) Except as provided in subdivision (b), testimony in the form of
an opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier of fact.
b) No expert witness testifying with respect to the mental state or
condition of a defendant in a criminal case may state an opinion or
inference as to whether the defendant did or did not have the mental
state or condition constituting an element of the crime charged or of a
defense thereto. Such ultimate issue are matters for the trier of fact alone."

With the exception of the subsection (b) of Rule 702, the Federal Rules have clearly abolished traditional evidentiary restrictions against either lay or expert witness testimony regarding the "ultimate issue." Beyond testimony that is of scientific or technical nature, both lay and expert witnesses are given greater leeway to give opinion testimony which touches upon the "ultimate issue" before the court and which would formerly be considered inadmissible. Of course, all such evidence is still subject to the application of Rules 701 and 702 (evidence must be helpful to the trier of fact), as well as Rule 403 (probative value of the evidence must outweigh its potential for prejudice).

Similarly, Georgia cases appear to allow an expert witness to provide certain testimony in the form of an opinion, even if it touches upon the "ultimate issue." The 1939 case of Metropolitan Life Ins. Co. v. Saul addresses both lay and expert witness testimony and still appears to be the law in Georgia. In Saul, the Georgia Supreme Court considered the issue of whether or not it was appropriate for either expert or lay witnesses to testify regarding the level of the Plaintiff's "disability," even though the issue was clearly an "ultimate question to be decided by the jury." While noting that under the general rule of law "…witnesses must testify as to facts only, and not as to their opinion deduced from facts, the latter being left as a proper function of the jury," the Court went on to rule that:

"(O)pinion evidence of experts on the final question at issue may be
received where instructions are appropriately given, as in the instant
case, to the effect that such testimony does not bind the jury, and that
they may give just such weight to it as in all the circumstances they
may see fit to do."

In this case, the court's decision to allow an expert to testify as to the Plaintiff's "total disability" is based upon the principle that a professional's testimony is sometimes necessary to help jurors understand the true nature of a situation and the issues before it, and that such expertise should not be denied juries because of "such a fine distinction in the ordinary rules of evidence." This principle was further affirmed in the more recent case of Argonaut Insurance Company v. Allen, where the Court permitted a psychiatrist to testify that an injured worker's "mental condition" (related to a disability claim) was caused by the industrial injury.

The Court in Saul also approved testimony by non-expert lay witnesses that did not draw conclusions (i.e., "total disability"), but nonetheless offered an opinion regarding the Plaintiff's inability/disability to "perform certain duties about his work" which was helpful to the jury's understanding and deliberation of the matter. It is important to note from this decision, however, that admission of opinion testimony related to the "ultimate issue" should be accompanied by a proper charge to the jury that such testimony is neither conclusive nor controlling, whether the testimony be expert or non-expert. Furthermore, such testimony may be otherwise objectionable on the grounds that the prejudicial effect of the evidence outweighs its probative value.

The legal principle established in Saul concerning expert witness testimony has not been eroded, although application of the principle is not always easy. In the 1981 case of Smith v. State, the Supreme Court of Georgia reaffirmed the principle by stating:

"We hold that the correct rule is as follows: Expert opinion testimony
on issues to be decided by the jury, even the ultimate issue, is admissible
where the conclusion of the expert is one which jurors would not ordinarily
be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman….This holding is in accord with the modern view as
exemplified by Rules 702, 704 of the Federal Rules of Evidence, supra."

Whether or not a matter is based upon a witness' specialized expertise and "beyond the ken of the average layman" so as to support expert testimony on the ultimate issue must naturally be decided on a case-by case basis. In some cases, such testimony has been deemed appropriate. In others, appellate courts have ruled the testimony improper. In cases involving child sexual abuse, the analysis becomes exceedingly difficult due to what many have viewed as inconsistent court decisions. In order to provide guidance to professionals attempting to maneuver through this quagmire, a review of the evolution of these cases is necessary.

In the 1986 case of State v. Butler, the Supreme Court of Georgia, on Writ of Certiorari from the Court of Appeals, held that it was not error to permit a pediatrician to testify that "in her opinion the child had been molested, which was an ultimate issue to be decided by the jury." The pediatrician's opinion was based upon inconclusive medical evidence, consistent with sexual abuse, as well as an unspecified history provided to her by the child.

Interestingly, there appeared to be no behavioral science testimony presented at trial in Butler. However, the pediatrician's comment that "I think most people who have a lot of training in child development or child psychology understand that children of a certain age who are old enough to know truth from a lie can't lie about anything they don't really have an experience about," was deemed by the Court of Appeals to be an improper comment regarding the child's credibility, creating an issue for review by the Supreme Court on Certiorari.

The Court of Appeals' assessment of this type of testimony is supported by Georgia evidence law which states that "(t)he credibility of a witness is a matter to be determined by the jury under proper instructions from the court." Appellate courts in Georgia have consistently ruled that neither lay nor expert witness can provide testimony which bolster's another witness' credibility. In most cases, the truthfulness of a victim or witness are not beyond the ken of the average juror. While curative instructions from the bench can sometimes render such commentary "harmless error" on appeal, most decisions hold such testimony to be grounds for reversal unless overwhelming evidence indicates that it did not substantially contribute to the jury's decision. One exception to this principle is when testimony of this nature is deliberately elicited from the expert on cross-examination.

"Unlike some aspects of expert testimony on child sexual abuse, courts approach unanimity when it comes to expert testimony on credibility." In fact, improper comments regarding the credibility of a victim or witness may not be subject to the "contemporaneous objection rule." Rather, such testimony may be subject to the "plain error" standard which permits an appellate court to examine alleged error not previously objected to at the time of trial. In the past, this rule has predominantly been used to overturn decisions which appear to be based upon hearsay evidence, the underlying principle being that hearsay evidence has no probative value and, therefore, cannot establish a fact or support a verdict. Under the "plain error" standard, unless a legitimate objection is intentionally waived, an appellate court can review evidence and reverse any erroneous ruling that appears so prejudicial as to have affected the outcome of the verdict and resulted in a clear miscarriage of justice.

Given that sexually abused children are usually the only witnesses to their victimization, the issue of their credibility can be very critical, particularly in criminal prosecutions. Concerning the issue of whether or not experts possess specialized knowledge about children's credibility, Myers and his colleagues state:

"Experts on child sexual abuse are not human lie detectors. Nor are
they clairvoyant. Nothing in the literature suggests that experts can or
should replace lay jurors as the ultimate arbiters of credibility. Yet…
on some aspects of credibility, experts possess specialized knowledge
that could assist the trier of fact. Whether the expert is permitted to
impart that knowledge is another matter."

Distinguishing Butler from cases involving opinions regarding a "particular child's credibility," a majority of the Supreme Court reversed the decision by the Court of Appeals and held that "the fact that (the pediatrician's) testimony indirectly, though necessarily, involved the child's credibility does not render it inadmissible." In a dissenting opinion, Justice Smith made a rather strong argument that such a comment was not only inappropriate bolstering of the child's credibility, but that a pediatric medical expert may not have been adequately qualified to testify on child development and psychological matters, particularly in view of the possibility that the theory (regarding children's ability to lie about things not experienced) on which she based her opinion may not have reached a scientific stage of verifiable certainty.

Less than six months after its decision in Butler, the Supreme Court of Georgia rendered its decision in the case of Allison v. The State. Like Butler, the matter was before the Court on Writ of Certiorari from the Court of Appeals. Unlike Butler, however, which dealt with medical evidence testimony related to child sexual abuse, Allison involved both CSAAS evidence and behavioral science evidence provided by the testimony of three separate experts: "a professor of behavioral sciences, a child therapist, and a clinical psychologist." In its opinion, the Court did not appear to make a distinction between these two types of evidence, broadly categorizing them as one and alternately using the terms "child sexual abuse syndrome" and "child abuse syndrome."

None of these expert witnesses was called by the state during its case-in-chief, and the defendant argued that the state had "withheld critically important witnesses" who were not proper witnesses for rebuttal. The prosecution argued that, since "the testimony was offered in rebuttal to the defendant's testimony that the victim was lying and had been coached to testify that she had been molested by the defendant," the state was not required to put these witnesses on its witness list prior to trial. Siding with the Defendant and citing error, the Supreme Court overturned the Court of Appeals, stating that it was "…apparent that the state anticipated the defendant's testimony in this regard, and that the witnesses were an important part of the state's main case, rather than true rebuttal witnesses." The court also ruled that, inasmuch as the defendant did not make a contemporaneous objection pursuant to Harper relating to the admissibility of "child sexual abuse syndrome" testimony, the trial court did not err in admitting such evidence.

Although it was neither presented as a ground for review, nor stated as a ground for reversal, the most important principle established by the Court's opinion in Allison (which has been cited throughout case decisions since that time) deals with the issue of whether or not an expert can provide testimony which touches upon the ultimate issue before the court. Here, one of the expert witnesses testified to the following: "(T)his girl does definitely appear to fall into that syndrome….In my professional opinion, she has been sexually abused." The Court ruled that the admission of this testimony, over proper objection, would have demanded reversal. However, since no contemporaneous objection was made, there was no error warranting reversal on this issue.
In its opinion, the court also reviewed its earlier position in Smith and subsequent decisions that such testimony "…is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman." Noting that expert opinions as to "factual suppositions" and inferences "drawn from medical evidence that are beyond the capacities of average jurors" have been permitted, the court went on to state the following:

"Even so, it cannot be said that our holding in Smith…is without
difficulties. In it, we may have added to a want of clarity by using,
almost interchangeably, the terms 'ultimate issue' and 'ultimate fact.'
(citation) Perhaps that may be mitigated in part by a keener appreciation
of the difference between the two. We understand fact to be that which
is or once was. Yet we sometimes have intermingled fact, in this sense,
with conclusion (which, in this sense, is not fact, but an assessment
of fact). Examples of conclusions are concepts of negligence, fraud, reasonableness, and the like. Stated differently, a conclusion is an
assessment of fact – which fact exists, with or without any such an
assessment."

Applying this analysis to the facts in Allison, the court held:

"(A)n expert may not testify as to his opinion as to the existence vel
non of a fact (in this case, whether the child had been abused sexually)
unless the inference to be drawn from facts in evidence is beyond the
ken of the jurors – that is, unless the jurors, for want of specialized
knowledge, skill, or experience, are incapable of drawing – from facts
in evidence – such an inference for themselves."

Inasmuch as the court cited Smith following this analysis, it must be assumed that the legal principle in Smith was clarified, rather then modified. Nonetheless, some might find the court's discussion regarding the distinction between "facts" and "conclusions" somewhat confusing in light of its prior holding in Butler, where the court stated that a pediatrician's opinion concerning sexual abuse "…was one of fact, and was not inadmissible as a legal conclusion." In Allison, the Court appears to base its ruling more on the fact that "(t)he jury, having the benefit of extensive testimony as to the lineaments of the child abuse syndrome, as well as testimony that this child exhibited several symptoms that are consistent with the syndrome, was fully capable of deciding – upon their own – whether the child in fact was abused, and, if so, whether Allison did it."

Since the Supreme Court's decision in Allison, numerous appellate opinions from both courts have cited the case in support of rulings limiting expert witness CSAAS and behavioral evidence opinion testimony related to the "ultimate issue" of whether or not a child has been sexually abused or molested. In fact, the Court's analysis of "child sexual abuse syndrome" testimony in Allison has since been applied to limit opinion testimony related to the "battered child syndrome."

Both Butler and Allison involved professional testimony and expertise outside the skill, knowledge, and experience of most jurors. Both opinions were based, in part, upon examination of the child victim using tools and techniques unique to their professional trade. In Butler, however, there was tangible physical evidence, consistent with sexual abuse, that was not present in Allison. One might conclude, therefore, that the presence of tangible physical evidence to which, presumably, only a physician or other qualified medical professional could testify, might justify a different evidentiary ruling. More recent decisions by the Georgia Supreme Court, however, fail to support such a distinction.

Although there have been subsequent decisions by the Court Appeals which appear to support opinion testimony by a medical expert consistent with the Supreme Court's decision in Butler, the parameters of such testimony have significantly been narrowed as a result of the Supreme Court's decision in Harris v. The State. Once again reversing a decision by the Court of Appeals on Writ of Certiorari, the Court held that a physician's opinion, based upon physical examination, regarding whether or not the victim had been sexually molested was inadmissible. In its brief opinion, the court provided no analysis of previous decisions on the issue; nor did it expressly overrule its prior decision in Butler. The Court simply stated that the issue was controlled by Allison. In an opinion written by Justice Hunt, three justices dissented, citing Butler in support of their argument.

In the recent case of Atkins v. State, the Court of Appeals of Georgia reviewed a lower court decision that allowed a pediatrician to testify that, in the absence of physical evidence confirming abuse, "the medical history given by the victim was consistent with what she would expect from a victim of molestation." In affirming the lower court's ruling, the court found that specialized training and expertise were required to make such an assessment and that this knowledge was outside the ken of jurors. Furthermore, the Court expresses what appears to be the current evidentiary rule on the matter of "ultimate issue" testimony in child sexual abuse cases. In assessing the impact of Harris on Butler, and subsequently applying it to the facts in this case, the Court states:

"Therefore, pursuant to Harris, a pediatrician, based on her physical
examination of the child as well as on the history related to her by the
child, may no longer opine directly that an act of abuse actually occurred,
despite the fact that Butler has never been overruled. On the other hand,
as pointed out by Justice Hunt in his dissent, which was joined by Chief
Justice Clarke and Justice Fletcher, a pediatrician may testify that her
findings are consistent with the occurrence of molestation."

The Court also addressed the issue of whether or not the manner in which the pediatrician testified improperly bolstered the credibility of the victim. Specifically, the pediatrician testified that "[the child] was able to give me a credible history of anal penetration," and
"…describe the trauma…[and] the physical findings were normal at the time of my exam, which is what I would've expected, based on literature. And therefore, I thought everything was very consistent, with him having been molested." In ruling that the pediatrician had not inappropriately commented regarding the victim's credibility, the Court noted that she did not opine regarding whether or not the victim had actually been molested and, in fact, repeatedly stated on cross-examination, that it was not up to her to "judge whether the history is the truth or not."

Although the court did not choose to rely on this principle when analyzing the facts in this case, prior court decisions have refused to overturn verdicts where a witness's testimony concerning the victim's veracity or credibility was in direct response to questions propounded on cross-examination and no objection was made to the testimony at that time. The legal proposition is that a party cannot assert prejudice based upon induced error.

A significant aspect of the Court's decision in Atkins is its ruling that a physician "may testify concerning the medical history [of a patient] absent objective evidence of molestation on examination." The Court discusses this ruling in the context of the Allison/Butler/Harris debate. Though lengthy, it is worthy of review:

"Allison and Harris strike a balance between the admission of evidence
essential to the jury's determination whether abuse occurred and the
prevention of an expert from usurping that determination. As the
pediatrician in Butler pointed out, 'in most cases of child molestation
there is no physical evidence of abuse.' (cite) Therefore, as in the case
now before us, most of the evidence of abuse will be comprised of the
medical history provided by the victim. The medical history, in turn, is
made up of a list of discrete medical and/or psychological symptoms.
The average juror, lacking training as a physician, psychiatrist, or
psychologist, cannot draw an inference on his or her own whether these symptoms are indicative of molestation or abuse. Therefore, an expert
should be allowed to testify that the symptoms and history described by
the child were consistent with the occurrence of molestation. And while
this evidence might indirectly reflect on the victim's credibility, it would nonetheless be admissible, as would any relevant evidence linking any
defendant to any crime.

To stop the expert from overstepping his or her bounds and invading the
province of the jury, he or she is prevented from definitively stating that molestation or abuse actually occurred. This is the appropriate result, as
the determination of this ultimate issue may turn on numerous facts in
evidence beyond the medical or psychological evidence which requires
the specialized knowledge of the expert to understand. In other words,
although it may be beyond the ken of the jury to determine whether certain physical and psychological symptoms were consistent with abuse, it would
not be beyond their ken to determine whether an expert's opinion that the symptoms were consistent with abuse in conjunction with all of the other evidence elicited at trial proves that the victim was both molested and
molested by the defendant."

Until further decisions by either court, Atkins appears to express the current principle with regard to both medical and behavioral science testimony in child sexual abuse cases touching upon the "ultimate issue." Atkins will likely have little impact on prior decisions which have been consistent with Allison. Most of these decisions have involved either CSAAS or behavioral evidence testimony as opposed to medical testimony. Many have dealt directly with "ultimate issue" testimony related to witness credibility, which is virtually always considered to be within the ken of the average juror. The one exception to this principle appears to be when an expert opinion deals with the diagnosis of a mental condition or psychiatric disorder which is directly relevant to the witness's veracity and issues in the case.

III. COMMON USES OF EXPERT TESTIMONY

Having discussed the limitations of opinion testimony in Georgia as it relates to either witness credibility or the "ultimate issue," it is important to note that an expert's testimony may still be used in both direct and indirect ways to establish the likelihood or probability that abuse occurred. From an analysis of the above-cited case decisions, an expert can either offer an opinion that physical, psychological, and/or behavioral findings and observations "are consistent with" an allegation of abuse or molestation; or, limit testimony to a description of symptoms and behaviors commonly found in sexually abused children as a class; or, provide a response in the form of a relevant hypothetical question posed by counsel; or, even refrain from providing any opinion at all, limiting testimony to an explanation of scientific facts or other principles that are relevant to an issue and allowing the judge or jury to subsequently weigh and apply these principles to any facts presented at trial.

Even though the Federal Rules of Evidence do not automatically exclude opinion testimony related to the "ultimate issue," it may be likewise be safer and more appropriate to provide opinion testimony concerning child sexual abuse in an alternative form that does not invade the province of the jury. This concept is best expressed as follows:

"Testimony in an alternative form avoids the concern that the opinion
will cross the sometimes elusive line separating fact from law. An
expert might testify that a particular child experienced age-inappropriate
sexual contact. This opinion is cast in terms of ultimate fact….Alternatively,
an expert might testify that a child's symptoms and behaviors are consistent
with child sexual abuse. This opinion is cast in factual terms, and is safely
removed from the ultimate legal issues in the case. Finally, an expert might
testify that a child demonstrates age-inappropriate sexual knowledge or
awareness. This opinion does not tread close to legal issues, and is cast in
terms that are uniquely within the expertise of experts on child sexual abuse."

The most common uses and forms of expert testimony in child sexual abuse cases are discussed below:

A. PHYSICAL EVIDENCE

A limited number of child sexual abuse cases may include the presence of physical evidence such as an STD , blood, pubic hair, sperm, acid phosphatase, or semen which are collected from either the victim's blood, body, or clothing. Such evidence may necessitate the testimony of an expert. For example, a prosecutor may attempt to use DNA typing to establish the identity and guilt of the perpetrator. Also known as "genetic fingerprinting," this technique is generally accepted as reliable by the scientific community. However, even though DNA typing as been judicially accepted as reliable science in Georgia, the "lab techniques and statistical extrapolation" that are used are still subject to preliminary scrutiny, and expert testimony will be needed before such evidence is generally admissible. Furthermore, another expert cannot give opinion testimony questioning such test methods and results unless he has personal knowledge of the relevant facts or can respond to a hypothetical question based upon results and facts which are already in evidence.

"Child sexual abuse is a recognized medical diagnosis." A medical diagnosis of child sexual abuse is primarily based upon medical history, a physical examination, and laboratory tests. Although physical examinations may be a source of substantive evidence, particularly where the use of a colposcope is employed, most studies and statistics show that medical evidence of sexual abuse is only present in a relatively small percentage of cases, even where perpetrators have admitted their guilt. Even where there is some initial trauma as a result of sexual abuse, "(h)ealing of injuries in the genital area may be complete and rapid, so that no physical evidence remains when the child is examined." In most cases, significant time has passed between the child's initial disclosure of abuse and examination by a physician. Furthermore, many forms of sexual abuse (e.g., fondling, digital penetration, oral and manual copulation, or the use of the child in pornography) do not necessarily result in physical trauma to the genitalia, or other parts of the child's body. Consequently, it is often impossible to establish physical evidence of the trauma.

Nonetheless, where such evidence does exist, it is generally admissible and highly probative of sexual abuse. In certain cases, it may even be clinically conclusive of sexual abuse, particularly where there is pregnancy or evidence of vaginal and/or anal tearing and the presence of sperm, semen, or a sexually transmitted disease. In the vast majority of cases, however, expert medical testimony which is offered to establish physical evidence of sexual abuse will be limited to physical signs and symptoms such as edema, erythema (redness), contusions, abrasions and superficial lacerations which may be "consistent" with sexual abuse or the child's allegations. In other cases, medical testimony may be geared toward establishing that the injuries or physical evidence noted upon examination are "inconsistent" with other explanations for the trauma.

Since disruption of the hymen may be a significant finding, it may be quite natural for judges and juries to expect evidence of a damaged hymen or other physical sign of sexual abuse in every case involving an allegation of penetration or intercourse. Where defense counsel intimates or argues that lack of signs of genital trauma means absence of abuse, expert medical testimony may be necessary to dispel such a myth and assist the jury in understanding the evidence.

Expert witnesses and attorneys alike should also be aware of any confusion which may result in the use of terminology in such cases. For example:

"Lawyers and medical professionals often have a different
understanding of the term penetration. Taber's Cyclopedic Medical
Dictionary defines penetrate as 'to enter or force into the interior.'
Many physicians assume penetration means forcing an object into
the outer vagina, through the hymen, and into the inner vagina.
Penetration of this sort in a child often, although not always, causes
injury to the hymen. The legal definition of penetration is quite different.
Black's Law Dictionary defines penetration as 'the insertion of the male
part into the female parts to however slight an extent; and by which
insertion the offense is complete without proof of emission.' In law
penetration is complete if the penis enters the labia majora, the fleshy lips
which protect the vagina. Penetration does not require entry into the
vagina or damage to the hymen. The legal definition of penetration
would surprise many physicians."

For example, under Georgia law, only slight penetration, including entry of the anterior of the organ, is sufficient to meet the intercourse element of incest. Arguably, a similar comparison can be made in the area of psychological evidence, where conduct by a parent constituting clear evidence of emotional abuse or maltreatment in the eyes of a therapist may fall short of legal definitions governing same.

In both acute and chronic cases of sexual abuse, the medical examination may also reveal other important physical evidence that is supportive or consistent with the child's disclosure of abuse. If physical violence was used, or the child was forcibly restrained during the act of sexual abuse, there may be signs of bleeding, bruising, abrasions, burns, or similar injuries to other parts of the child's body. The examining physician might be able to testify that the presence of foreign debris in or around the child's genitalia was consistent with the child's story concerning the environment in which the abuse allegedly occurred; or, the physician may be able to state that the child's reflexive relaxation of the anal sphincter upon examination is consistent with a history of chronic sexual abuse.

As previously stated, a medical diagnosis of sexual abuse is based upon a combination of medical history, a physical examination, and laboratory test results. "When the physical examination discloses no medical evidence of sexual abuse, the child's medical history becomes extraordinarily important."

"Medical history includes the chief complaint, history of the
present illness, past medical history, family history, psycho-
social history, and a review of body symptoms. With children,
much of the historical information is gathered from adults."

In addition, a child's credible description of pain and symptoms following abuse may be extremely relevant to an examining physician's diagnosis and treatment. "The physician who limits the evaluation to physical evidence alone is…making decisions regarding whether or not abuse occurred with 80 to 90% of the data missing." A medical history may reveal important signs and symptoms which are consistent with the child's disclosure of abuse, e.g., genital pain or discharge; a history of urinary tract infections; bowel or bladder dysfunction and/or changes in elimination habits; genital itching or irritation; nightmares; symptoms of depression; problems in school; and other behavioral or developmental problems. Such a history,

"….helps the physician exclude or confirm the diagnosis of sexual
abuse. The history helps ascertain if the child is at risk of further abuse.
For example, the history may reveal that the perpetrator is still in the
home, or still has access to the child, or that there are other perpetrators.
The history is vital to the physician's decisions about laboratory tests and
referral to specialists. The history may determine the physician's recommendations for medical or psychological therapy. Finally, the
history assists in determining a prognosis."

It is apparent that some of the medical and psychosocial history used by physicians in formulating diagnostic impressions of child sexual abuse is of a behavioral and/or psychological nature, an area of expertise which is also shared by professionals in the field of mental health. "To the extent (a) physician's opinion is based on the child's history or on results of laboratory tests, the physician should be at liberty to describe the history and the test result, and to explain how these factors influenced the opinion." "The fact that some of these out-of-court statements may constitute inadmissible hearsay does not render the physician's reliance on them unreasonable.

In Georgia, it is clear that while medical opinions concerning child sexual abuse may be limited to testimony that findings are "consistent with" the alleged abuse, expert testimony concerning a patient's condition are admissible, even when they are based in part on the physical history elicited from the patient and are unaccompanied by other physical evidence. Similarly, under Rule 803(4) of the Federal Rules of Evidence, certain statements which are made for purposes of diagnosis and treatment are excepted from the hearsay rule and are, therefore, admissible in court. Once again, however, Georgia takes the minority view by only permitting statements relating to "what" happened, as opposed to "who" may have perpetrated the injury.

Inasmuch as Atkins has recently made it clear that physicians can provide opinion testimony based upon a medical history and physical examination (which may or may not reveal any evidence of abuse), it may be necessary for an expert to explain on direct examination why an absence of physical evidence is nonetheless consistent with the child's allegations of abuse. Caution is advised, however, regarding the manner in which such testimony is elicited. In the very recent case of Gosnell v. The State, the Court of Appeals stated:

"The record in the present case shows that a pediatrician who examined
the victim testified that her physical findings were negative and there was
no evidence that the victim's anus was torn. The pediatrician was asked,
'Does that tell you that what he is saying is not true?' She responded,
'No.' While this question may have been asked merely to allow the expert
to explain her negative findings, the expert could have been asked a myriad
of other questions to elicit an explanation. The question asked and the expert's
response clearly commented on the victim's credibility and were improper."

B. PSYCHOLOGICAL AND BEHAVIORAL EVIDENCE

As mentioned in Section II(E) above, unlike medical evidence which is based upon physical examination and verifiable laboratory results, behavioral and psychological evidence is based upon certain subjective criteria that may be more difficult to assess and which may, or may not, fall into the category of "novel scientific theory." In essence, such testimony is based upon professional observations that many sexually abused children exhibit "behavioral, cognitive, and emotional reactions to their abuse." While assessment of children for possible sexual abuse based upon psychological and behavioral symptoms may require specialized knowledge and expertise and be clinically less conclusive than physical evidence gleaned from medical examinations, a "majority of professionals believe qualified mental health professionals can determine whether abuse occurred; not in all cases, but in some."

A comparison can be made between the process used and information needed to make medical diagnoses, and that which is relied upon to formulate mental health diagnoses concerning sexual abuse. In guidelines promulgated in 1988, the American Academy of Child and Adolescent Psychiatry stated the following:

"The effects of child sexual abuse are diagnosable in the same sense
that other medical conditions are diagnosable – on the basis of history,
physical examination and judicious use of various tests. Rarely is one
finding alone diagnostic of sexual abuse; rather, findings must be
interpreted within the total context of a thorough evaluation."

Similarly, the American Professional Society on the Abuse of Children issued guidelines in 1990 which stated:

"Sexual abuse is known to produce both acute and long-term
negative psychological effects requiring therapeutic intervention.
Psychosocial assessments are a systematic process of gathering
information and forming professional opinions about the source
of statements, behavior, and other evidence that form the basis of
concern about possible sexual abuse. Psychosocial evaluations are
broadly concerned with understanding developmental, familial, and
historical factors and events that may be associated with psychological adjustment. The results of such evaluations may be used to assist in
legal decisionmaking (sic) and in directing treatment planning."

The psychological effects of sexual abuse can produce many symptoms which are also found in non-abused children, or which are the result of other forms of trauma. Therefore, experts in the field of child sexual abuse must be both cautious and precise regarding inferences and conclusions that are drawn from such symptomology. Children respond to sexual abuse in a variety of ways. "There is no single reaction observed in all sexually abused children." Some demonstrate only minor reactions to their trauma, while others may exhibit a wide array of reactions commonly observed in sexually abused children. "Variables relating to the child's pre-abuse status, the experience itself, and the aftermath are thought to interact in some complex fashion to produce the reactions observed in a particular child." Certain specific factors, however, may also impact upon the level of children's reactions to sexual abuse:

"The closer the relationship between the offender and the child,
the more serious the consequences for some children. More
intrusive forms of sexual behavior, such as intercourse, may cause
more serious effects. The longer the duration of abuse, and the more
frequent the episodes, the greater the impact on many children. Use
of violence seems to be related to a negative outcome."

Evidence of sexual abuse can come from a number of different symptoms that must be weighed and evaluated by the expert in making a clinical determination of whether or not abuse occurred. "Among the many factors considered in evaluating possible sexual abuse, experts pay close attention to the behavioral, emotional, and cognitive reactions observed in approximately 80 percent of sexually abused children." A survey of professionals regularly engaged in conducting child sexual abuse evaluations indicate a strong consensus that the following are important indicators for possible child sexual abuse:
ß Medical evidence of sexual abuse
ß Age-inappropriate sexual knowledge
ß Sexualized play during interview
ß Precocious or seductive behavior
ß Excessive masturbation
ß Child's description being consistent over time
ß Child's description revealing pressure or coercion

Sexualized behavior and play, along with age-inappropriate sexual knowledge, may be particularly probative of sexual abuse in young children. Some sexualized behavior in children, however, may be within normal limits or otherwise related to a child's family system and exposure to certain sexual behavior by adults in the family. One particular study geared toward gathering data on normative sexual behavior in non-sexually abused children noted that the following sexualized behaviors appear to be less prevalent in the normal population:

ß Placing the child's mouth on a sex part
ß Asking to engage in sex acts
ß Masturbating with an object
ß Inserting objects in the vagina or anus
ß Imitating intercourse
ß Making sexual sounds
ß French kissing
ß Undressing other people
ß Asking to watch sexually explicit television
ß Imitating sexual behavior with dolls

While not always indicative of sexual abuse, such behaviors may at a very minimum indicate age-inappropriate exposure to sexually explicit adult behavior and/or material, as well as the lack of appropriate interpersonal boundaries within a family system – all of which may be detrimental to the child's emotional and psychological welfare.

Children who have been abused, sexually or otherwise, often suffer from a variety of fears and anxiety. Anxiety reactions may include "fear, sleep disturbance and nightmares, flashbacks, startle reactions and hypervigilance, regression, phobic behavior, withdrawal from usual activities, nervousness, and clingyness." Such symptoms may ultimately lead to a diagnosis of post-traumatic stress disorder (PTSD) or other significant psychological disorder indicating that the child has suffered or witnessed some traumatic event(s) negatively impacting the child both emotionally and psychologically. A diagnosis of PTSD, dissociative disorder, etc., can be a significant indicator for sexual abuse when accompanied by a credible report of abuse, or other medical, behavioral, and/or psychological evidence that supports a finding of sexual abuse. In the absence of other clear indicators, however, an expert's testimony may still be relevant to establish that the child has suffered some sort of trauma, non-specific to sexual abuse.

Proof of sexual abuse is often established in court through a combination of expert and lay testimony:

"The testimony takes the following form: (1) expert testimony
describing behaviors observed in sexually abused children as a class,
coupled with (2) lay testimony establishing that the child in the case
at hand demonstrates such behaviors. The lay testimony is usually
provided by individuals who are familiar with the child's behavior,
such as parents. Expert testimony of this type is limited to a description
of sexually abused children as a class, and does not focus on the child
in the case at hand. Indeed, the expert need have no knowledge of the
particular child…It is up to the jury to put two and two together, and to
conclude that because the alleged victim demonstrates behaviors commonly
seen in sexually abused children, the victim probably was abused."

In assessing the admissibility of expert testimony in a sexual abuse case, either alone or in combination with lay testimony, one must remember that a court must weigh the probative value of the evidence against its potential to cause unfair prejudice and/or confusion. As stated earlier, probative value in sexual abuse cases may decline as medical evidence and the presence of sexual behaviors decrease in proportion to behaviors of a non-sexual nature. Therefore, "…the proponent of expert testimony describing behaviors observed in sexually abused children should be in a position to persuade a court that the evidence is sufficiently probative and reliable to gain admission as proof of abuse."

Assuming any challenges to Harper have been met, therefore, a qualified expert in the field of child sexual abuse may clearly testify regarding psychological and behavioral indicators in a victim that are "consistent with" an allegation of abuse, even in the face of a challenge that such testimony "indirectly" bolsters the child's credibility. In the case of Odom v. The State, the Court of Appeals, apparently chastising litigants for filing "meritless claim[s] on the chance that [they] might be taken seriously" while simultaneously commenting upon "merited claim[s] of error occurring because of a prosecutor's question that inevitably call[s] for improper opinion testimony," gave the following guidelines for professionals:

"At the onset, there is absolutely nothing wrong with expert opinion
testimony that bolsters the credibility of the indicted allegations of
sexual abuse, e.g., 'the victim's physical examination showed injury
consistent with sexual abuse,' or 'the victim's psychological evaluation
was consistent with sexual abuse.' Establishing the credibility of the
indicted acts of sexual abuse is what the State's case is all about and
is the purpose for such expert testimony in the first place; the fact that
such testimony may also 'indirectly, though necessarily, involve the
child's credibility does not render it inadmissible.'"

"What is forbidden is expert opinion testimony that 'directly addresses
the credibility of the victim,' i.e., 'I believe the victim; I think the victim
is telling the truth'…or expert opinion testimony that implicitly
goes to the ultimate issue to be decided by the jury, when such issue is
not beyond the 'ken' of the average juror, i.e., 'In my opinion, the victim
was sexually abused.'(citation) Although the distinction may seem fine to
a layman, there is a world of legal difference between expert testimony that
'in my opinion, the victim's psychological exam was consistent with sexual abuse,' and expert testimony that 'in my opinion, the victim was sexually
abused.' (citation) In the first situation, the expert leaves the ultimate issue/
conclusion for the jury to decide; in the second, the weight of the expert is
put behind a factual conclusion which invades the province of the jury by providing a direct answer to the ultimate issue: was the victim sexually abused?"

C. REHABILITATIVE TESTIMONY

The testimony of an expert witness can also be used in a non-substantive manner for the purpose of rehabilitating a witness whose credibility has been impeached. For example, in addition to developing a number of the aforementioned fears and anxieties, children who are the victims of sexual abuse – particularly incest – often suffer from feelings of guilt, shame, anger, and destructiveness. They may also engage in inappropriate sexual or aggressive behavior. To the untrained eye, some of these feelings and responsive behaviors may appear inconsistent with the child's disclosure of abuse.

Expert testimony may be needed to explain certain reactions, and to rebut a claim by the defense that the victim's behavior or response is inconsistent with having experienced such trauma. For example, a child's disclosure of abuse may be delayed or appear inconsistent; or, the child may later recant. Such behaviors are commonly seen in child victims of intra-familial sexual abuse, and are consistent with the five characteristics described by Dr. Roland Summit in his discussion of the Child Sexual Abuse Accommodation Syndrome. While behaviors characteristic of the Child Sexual Abuse Accommodation Syndrome (CSAAS) are not intended to be diagnostic or directly probative of sexual abuse, expert testimony can be offered to explain these behaviors as common reactions to sexual abuse and to rebut an attack on a child's credibility.

As stated in Section II (E) above, courts in Georgia do not clearly distinguish between CSAAS testimony and other behavioral science testimony. Given the evolving status of appellate decisions in this area of the law, however, it is both prudent and appropriate for professionals to begin doing so within their own testimony in court:

"When expert testimony on behaviors observed in abused children is
offered to prove that abuse occurred, it is important to ensure that the
expert's testimony is based on behaviors that are probative of abuse.
The expert should not base the opinion on the accommodation syndrome
because the syndrome is not probative of abuse. Nor should the expert's
testimony describe a combination of behaviors, some of which are
probative of abuse and some of which are not." (emphasis added)

In general, rebuttal testimony related to CSSAS is appropriate to explain "why sexually abused children delay reporting their abuse, why children recant, why children's descriptions of abuse are sometimes inconsistent, why abused children are angry, and why some children want to live with a person who abused them." Since evidentiary rules do not permit opinion testimony designed to bolster the credibility of a witness, rehabilitation testimony in a criminal proceeding may require proper charges to the jury explaining that such testimony is not substantive evidence of abuse, nor a commentary on the victim's truthfulness about the allegations. Furthermore, "rehabilitation testimony is more readily admitted when it describes sexually abused children as a class, rather than a specific child."

Another syndrome which has been similarly used in cases involving acute sexual assault is known as the Rape Trauma Syndrome (RTS). First discussed by authors Burgess and Hamilton, RTS attempts to describe both immediate and long-term behavioral, somatic, and psychological reactions in victims of forcible rape or attempted rape. "Most courts allow expert testimony on RTS to rehabilitate victim credibility by explaining behaviors such as delay in reporting rape, which jurors might misconstrue as evidence that rape did not occur." Some courts limit testimony of experts regarding RTS to a description of behaviors observed in rape victims as a group. As with CSAAS, most courts do not allow direct testimony concerning RTS to prove abuse; however, some courts have permitted testimony regarding RTS where the defense in a prosecution of rape is consent of the victim.

In Georgia, a victim's testimony concerning rape or molestation is sufficient to support a conviction and does not have to be independently corroborated. However, when there is no independent corroboration of the victim's allegations, the victim's credibility often becomes the main focus of a defense strategy. In child sexual abuse cases, it is imperative to address attacks on the credibility of the child as early as possible. There are several reasons for this. First, the child is usually the only witness to his or her abuse. Secondly, expert opinion testimony regarding a child's truthfulness is generally not permitted. Thirdly, judges and jurors sometimes harbor misconceptions and biases concerning children that might be exacerbated by an attack on their credibility. It is important to remember that impeachment of a child's credibility can occur at any time. Although rehabilitation testimony is ordinarily offered on rebuttal, after the child's credibility has been impeached through cross-examination, "expert rehabilitation testimony is properly admitted as soon as the assault is underway." In some cases, such an assault may be apparent from the defense's opening statement to the jury.

While experts cannot provide testimonial comment regarding the credibility of a particular child, there are areas related to credibility where expert opinion testimony might be appropriate. Myers and his colleagues state:

"The literature suggest that on certain aspects of credibility, experts
possess knowledge that could assist fact finders. For example, the clinical
literature describes techniques for detecting coached statements. Such
detection techniques are unknown to average jurors. Additionally, some
experts possess knowledge about the developmental capabilities and
limitations of children which could help jurors evaluate the validity of
attacks on children's credibility."

Therefore, when a child's credibility has been undermined by inferences, suggestions, or arguments that the developmental differences between children and adults somehow render children less credible, it may be appropriate to offer expert opinion testimony in rebuttal. "There is no question that there are significant developmental differences between children and adults in numerous areas relevant to testimony…The real question is whether these differences render children of certain ages unreliable witnesses." The following are examples of the types of arguments propounded by defense attorneys that could invariably undermine the credibility of a child:

• The child's memory concerning peripheral details of the abuse is absent or faulty, thereby rendering the allegations incredible
  
• Inconsistencies in a young child's description of abuse, including the child's inability to remember "how many times" abuse was perpetrated or the chronological order of events, means the child is lying
  
• The child's inability to specify the date and time of the alleged act(s) makes the child's allegations suspect
  
• Children are more suggestible than adults, and therefore subject to coaching by adults and professionals
  
• The use of anatomically detailed dolls during interviews of the child was suggestible and renders the child's allegations suspect
  
• Young children are unable to distinguish fact from fantasy, thus their allegations of abuse are unreliable