Expert Testimony in Child Sexual Abuse Cases: Avoiding the "Profile" Trap
I. INTRODUCTION
Evidentiary dangers lurk in the shadows of expert testimony in child sexual abuse cases. The unwary counsel, venturing forth in good faith to educate the finder of fact about specific issues, may snag a trap, causing the case to come to grief, a victim of unfair prejudice to the accused, improper opinion testimony, or other impermissible evidence. Below are some survival tips for counsel who present expert testimony in child sexual abuse cases, from avoiding the pitfall dug by "profile" evidence concerning the accused, to refusing the poisoned lure of expert comments on victim truthfulness.
Expert testimony is inevitably required to assist in the understanding of facts and issues presented in a child sexual abuse case. Unfortunately, the testimony intended to inform or educate can easily become as confusing as the evidence it seeks to illuminate. In addition, expert testimony in child sexual abuse cases seems peculiarly susceptible to a variety of evidentiary evils, ranging from comments on the credibility of either the alleged victim or the accused, to opinions that the offense actually occurred. Finally, the impact of expert testimony can be considerable, with a heightened risk of unfair prejudice to the accused if the testimony is improper. These factors all contribute to the difficulty in presenting expert testimony in child sexual abuse cases and require prosecutors in particular to structure presentation of such evidence with an eye to possible appellate issues.
Expert testimony in child sexual abuse cases may involve descriptions of the child abuse accommodation syndrome, [1] rape trauma syndrome, [2] post-traumatic stress disorder, [3] battered woman syndrome, [4] or any one of a number of names given to describe the symptoms or behavior of a victim. The expert witness typically describes examples of behavior that victims of an offense (rape, sexual assault, domestic abuse, incest) generally tend to exhibit. [5] The expert explains why the behavior or symptoms in question occur, and may compare the actions or symptoms of the victim in the case to the general picture described. Used correctly, such testimony becomes an educational process for the finder of fact, enabling the judge or members to understand seemingly contradictory or inexplicable behavior.
II. PROFILE EVIDENCE
The same expert testimony, however, dealing with the same facts, may encroach upon forbidden territory. One such danger lies in presenting evidence of a pattern of behavior relating to the accused, evidence that amounts to a "profile" of a child abuser. The case of United States v. Banks [6] is a classic example of the "profile trap." In Banks, a prosecution for sodomy and rape of a seven-year-old, the Government presented the testimony of the child and five expert witnesses. The experts testified about interviews and therapy of the victim, clinical findings of the victim's medical examination, and videotaped interviews of the victim with social workers. Finally, the Government presented an expert psychologist who testified concerning "risk factors" which "increase the risk for a child to be the victim of sex abuse." [7] These factors included the presence of only one biological parent, the presence of a stepfather, and evidence of sexual dysfunction between the parents. Neither the expert witness nor trial counsel ever used the word "profile" in front of the members.
The Government used the "risk factors" evidence in closing argument, arguing that the sexual dysfunction between the accused and his wife was "consistent with what you would expect in families where the dad is abusing the child." [8] The United States Court of Military Appeals found that use of the expert testimony amounted to impermissible use of a "profile" of a family containing a child abuser and set aside the findings and sentence. [9] Note, however, it was not the admission of the so-called "risk factors" that led to reversal, but the Government's improper use of that testimony.
The chain of deduction that the court objected to was simple. By presenting expert testimony that factors A, B, and C increased the risk of child abuse in the home, and by then arguing that factors A, B, and C were established in the case at hand, the logical deduction was that abuse occurred.
Comparing the "risk factors" to the criminal profiles used in federal drug-courier cases, [10] the court denounced the use of this type of evidence as substantive evidence of guilt or innocence: "We find error. . . in trial counsel's use of expert opinion to proffer to the members a characteristic 'profile' of child sexual abuse and then reliance on this 'profile' to bolster the Government's case to establish . . . guilt." [11] This reliance, compounded by the trial judge's specific instruction to consider "factors which increase the probability of sexual abuse in the family," [12] led to the court's decision.
Throughout his opinion, Judge Wiss indicated that the same facts the expert testified about would have been admissible under a different theory. [13] The fact that sexual dysfunction existed in the accused's marriage, for example, could have been introduced not to show that the accused fit a category of potential abusers, but to establish motive for the charged offenses. Similarly, the court suggested that the evidence used to build the "profile" could have been used to support the credibility of the victim or to explain the victim's unusual behavior. Although the court does not specify how the evidence could have been used in such a fashion, there is clearly the suggestion that such evidence should focus on the victim rather than the accused.
Finally, the court reaffirmed its holding of some six years earlier in United States v. August [14] that "use of any characteristic 'profile' as evidence of guilt or innocence in criminal trials is improper." [15] In August, the Government presented a Family Advocacy counselor who testified that the "usual" child sexual abuser was in the grade of E-6 or above, had 15 or more years in military service and was considered to be one of the commander's best troops, all of which factors the accused met. The court ruled it error to admit such testimony. Citing August, the court in Banks stressed that inadmissible profile evidence does not merely address a profile where the factors relate only to a "character trait" of the accused. The factors in the profile may be any information or data so as to place appellant in an alleged "group" of persons who have committed offenses in the past. [16]
Banks may be viewed as a cautionary tale about the use of expert testimony in child sexual abuse cases. Expert testimony may explain, educate, and illustrate symptoms of behavior, but it may not be presented in such a way that forces the logical conclusion of guilt. Equally, expert testimony may not deal with the character of the accused, i.e., that the accused fits a recognized "profile," when the accused has not first put character in issue. [17]
III. OTHER USES OF EXPERT TESTIMONY
With the warning given by Banks in mind, some typical uses of expert testimony in child sexual abuse cases are outlined below. It should be noted that expert testimony must always meet the test as set out in United States v. Houser. [18] This six-part test includes (1) a qualified expert; (2) a proper subject matter; (3) a proper basis for the expert's opinion; (4) the relevance of the testimony to the particular case; (5) the reliability of the evidence; and (6) whether the probative value of the testimony is substantially outweighed by the considerations outlined in Military Rule of Evidence (M.R.E.) 403. Moreover, with regard to the reliability of the evidence, practitioners by now should be aware of the demise of the old standard that evidence had to be generally accepted within the scientific community. [19] General acceptance within a scientific community is now merely one factor of several to be considered with regard to the relevancy and reliability of the proffered evidence. [20] This six-part test incorporates the interconnected requirements of M.R.E. 401 (relevant evidence), [21] M.R.E. 403 (not resulting in unfair prejudice, confusion or misleading the finder of fact), and M.R.E. 702 (a qualified expert who can assist the finder of fact). Once the six-part Houser test has been met, expert testimony can be presented. Below are some areas where expert testimony may cause a trial to come to grief.
A. Steering Clear of the "Profile Trap"
Testimony which discusses any aspect of the accused, whether marital or family status, [22] rank or time in service, [23] or relationships within the family [24] and which is then compared to generalized opinions or statistics about offenders is to be avoided. Virtually any attempt to explain an accused's behavior or action by expert testimony as to what offenders "normally" or "habitually" do runs the risk of being classified as inadmissible profile testimony. This caveat extends not only to the findings portion of a case, but to sentencing as well. In United States v King, [25] an expert witness testified as to different "types" of pedophiles generally and went on to diagnose the accused as a "regressive pedophile." [26] The court was so incensed at the "gratuitous generalizations" of the expert that it reversed the sentence, adding, "People accused of a crime - as well as their alleged victims - are discrete individuals . . . They are not some mosaic or composite of 20 or 30 years worth of other people." [27]
B. Avoiding the Snare: Using Family Dynamics Testimony
As Banks illustrates, the use of testimony concerning family dynamics in child abuse situations is fraught with danger. Such testimony can easily evolve on the stand into a profile of a family that includes a child abuser. A similar situation arose in United States v. Johnson, [28] where a government witness testified regarding the "dynamics of an incest family's interrelationship." The court noted its concern with this whole area, writing, "The problem with much of this testimony is that it proves nothing. It is meaningless that circumstances A, B, C, D and E are often found in incestuous families or in sexually abused children if the same patterns are also present where there has been no sexual abuse." [29]
A safer approach in dealing with expert testimony on family dynamics is to use such testimony to prove motive for the misconduct. [30] Another use is to provide the family dynamics as a background for an explanation of the victim's behavior. [31] With either of these approaches, a tailored instruction limiting members' consideration of the family dynamics to counsel's intended use will go a long way towards avoiding potential prejudice. [32]
C. Staking Out the Territory: Explaining Victim Behavior
Expert testimony on characteristics shown by child sexual abuse victims is by now generally accepted. [33] Sometimes presented under the label "accommodation syndrome" and sometimes not labeled at all, the United States Court of Military Appeals (known as the United States Court of Appeals for the Armed Forces since 1994) outlined the use of this type of evidence in United States v. Suarez: "If a proper foundation is laid, use of certain types of syndrome evidence has been permitted to see if a victim's story mirrors patterns of consistency found in other victims." [34] Such failure can explain facts that may be otherwise confusing to finders of fact, such as a victim's recantation; a failure to report the incident; keeping the events secret (or "accommodation"); claimed loss of memory about traumatic events; and the victim's perceived "consent" to the acts. The courts have found evidence about behavior patterns in other victims as "logically relevant," noting that "[w]ithout the [expert] testimony the members are left with their own intuition." [35] The victim's behavior patterns may in fact be counter-intuitive to a layperson's perception of how a victim should react, making the need for expert testimony all the more apparent.
D. Scenting Danger: The Expert Comment on Credibility
It has long been established in military courts that an expert witness may not comment upon the credibility of a witness or become a "human lie detector." [36] This is no less true in cases involving child sexual abuse. Thus, where an expert opines that the victim is "not faking" symptoms of a stress disorder, the courts have found it an improper comment on the victim's credibility. [37] Similarly, where an expert testifies that it was "doubtful" a victim would make threats as the accused alleged her to have done, the court has found plain error for the same reason. [38] Finally, when an expert comments on the "reliability" of the testimony of a victim he examined, the court has found such comment improper. [39]
There is no prohibition against testimony about the credibility of children in general and their ability or inability to tell elaborate lies at a young age. Thus in United States v. Tolppa, [40] the court allowed an expert to address the area on a hypothetical basis ("Would it be likely for a child of five to say . . . .?"). The court stated: "Although an expert should not be allowed to testify about the truthfulness of a particular child victim's report of sexual abuse, he may be allowed to testify about a child's ability to separate truth from fantasy." [41] Expert testimony about the truth-telling capabilities of a particular age group is thus admissible.
One caveat: an unfortunate choice of words used in questioning an expert in this area can lead to the very comment on credibility that trial counsel is trying to avoid. In United States v. King, [42] trial counsel asked the expert witness whether five-year-olds were "capable of fabricating any or all of this" and "[D]o five year olds make this up?" [43] Use of one word, "this," took the testimony from admissible general testimony about the types of things five-year-olds are capable of fabricating, to inadmissible testimony about whether the victim could fabricate the alleged incident. [44]
E. Refusing the Bait: Avoiding a Diagnosis that "It Happened"
An actual diagnosis that the victim is suffering from a "syndrome" is to be avoided. [45] Although it may be difficult to resist after the expert has testified as to the general behavior pattern of an abuse victim and then identified specific traits of the victim which correlate, the one question too many - "Is this witness suffering from this syndrome?" - is improper. The error arises because the expert is inferentially testifying that the event occurred. [46] Note that the expert can testify that the victim bears the symptoms of one who has been sexually abused, [47] or "show[s] characteristics consistent with" a syndrome, [48] or "act[s] in conformity with" characteristics of a disorder. [49] These types of opinions, which stop just short of testifying that the victim shows the effects of the alleged offense, are relevant and admissible.
F. Staying Downwind of Danger: Using Limiting Instructions.
Perhaps the most effective use of expert testimony in this field involves pairing tightly-focused expert testimony with tailored limiting instructions. [50] Suarez continues to be a good example of this practice. There the trial judge instructed the members no less than three times regarding how the expert testimony (in that case, on the accommodation syndrome) should be received. [51] It is important that both expert and counsel avoid use of the testimony for anything other than its stated purpose. As the holdings in both Banks and King illustrate, trial counsel's use and reliance upon certain types of evidence can turn otherwise admissible testimony into a profile - whether or not the expert actually intended that conclusion. The act of drafting a tailored instruction can serve to focus counsel on the proper areas for consideration.
G. Defense and Other Permissible Uses of Profile Evidence
Despite the many admonitions of caution surrounding this type of evidence, there are indications that profile evidence can be used in two situations: when offered by the defense under the provisions of M.R.E. 404(a) or when offered by the Government to rebut potentially misleading evidence. [52] With regard to defense use of profile evidence, the same six-part test for expert testimony set out in Houser applies. An important case in this area is United States v. Combs. [53] On trial for the unpremeditated murder of his infant son, the accused sought to produce a forensic psychologist to testify that he fit the profile of a child abuser and that child abusers use force to discipline, rather than to kill, their victims. The court found this line of testimony to constitute inadmissible profile evidence. However, the court concluded that much of what the psychiatrist had to say about the accused's mental condition and symptoms associated with diagnosis was admissible. [54] As to use of profile evidence in rebuttal, the court in Banks pointed out the "narrow and limited" circumstances of admissibility. [55] One possible use might be to rebut the "good soldier" defense; but again, the testimony would be better presented in general terms - Is it unknown for a child abuser to be a stellar troop? - and paired with appropriate instructions.
IV. CONCLUSION: STAYING ALERT
In presenting expert testimony in child sexual abuse cases, trial counsel must take an active role in determining the shape and content of the evidence presented - more, perhaps, than in virtually any other area of criminal law. It is, after all, the role of trial counsel to be attuned to the dangers associated with improper expert evidence. At trial, the expert must be kept on safe ground, where his or her testimony will educate the finder of fact and explain puzzling or misleading facets of victim behavior. Inattention on the part of trial counsel may result in an expert wandering into dangerous territory, causing confusion, prejudice, and reversible error. By staying alert, by paying careful attention to the content of the testimony, and, as Banks teaches, by proper use of expert testimony, the "profile" and other traps can be avoided.
*Captain Angilvel (B.A., B.C.L., McGill University) is an Assistant Staff Judge Advocate, RAF Mildenhall, United Kingdom. She is a member of the North Carolina State Bar.
1. See generally United States v. Coleman, 41 M.J. 46 [cited at] (C.M.A. 1994); United States v. Suarez, 35 M.J. 374 [cited at] (C.M.A. 1992); Josephine A. Bulkley, The Prosecution's Use of Social Science Expert Testimony in Child Sexual Abuse Cases: National Trends and Recommendations, J. CHILD SEXUAL ABUSE 73 (1992); John E. B. Myers ET. AL., Expert Testimony in Child Sexual Abuse Litigation, 68 NEB. L. REV. 1 (1989); and Roland C. Summit, The Child Sexual Abuse Accommodation Syndrome, 7 CHILD ABUSE AND NEGLECT 177 (1983). But cf. Summit, Abuse of the Child Sexual Abuse Accommodation Syndrome, J. CHILD SEXUAL ABUSE 153 (1992) (author clarifies the uses and nature of child sexual abuse accommodation syndrome).
2. See generally United States v. Houser, 36 M.J. 392 [cited at] (C.M.A. 1993); United States v. Reynolds, 29 M.J. 105 [cited at] (C.M.A. 1989); United States v. Carter, 26 M.J. 428 [cited at] (C.M.A. 1988).
3. U.S. v. Johnson 35 M.J. 17 [cited at] (C.M.A. 1992).
4. See generally Richard B. O'Keeffe, Jr., Uses of Battered Person Evidence in Courts-Martial, The Army Lawyer (Sept. 1993); Joan M. Schroeder, Note, Using Battered Woman Syndrome Evidence in the Prosecution of a Batterer, 76 Iowa L. Rev. 553 (1991).
5. See, e.g., United States v. Pollard, 38 M.J. 41 [cited at] (C.M.A. 1993) (expert testimony was used to explain why a child victim might recant a former disclosure of abuse and explain that recantation was part of a "pattern of behavior" seen in child abuse cases).
6. 36 M.J. 150 [cited at] (C.M.A. 1992).
7. Id. at 154.
8. Id. at 162.
9. Id. at 170.
10. See, e.g., United States v. Beltran-Rios, 878 F.2d 1208 (9th Cir. 1989); United States v. Hernandez-Cuartas, 717 F.2d 552 (11th Cir. 1983).
11. 36 M.J. at 163.
12. Id. at 163-64.
13. Id. at 163.
14. 21 M.J. 363 [cited at] (C.M.A. 1986).
15. 36 M.J. at 161.
16. Id. at 163.
17. See Manual for Courts-Martial, Military Rules of Evidence [hereinafter M.R.E.] 404(a) pt. III (1984).
18. 36 M.J. 392 [cited at] (C.M.A. 1993).
19. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
20. United States v. Garcia 40 M.J. 533 [cited at] , 536 (A.F.C.M.R. 1994), citing Daubert v. Merrell Dow Pharm., 113 S.Ct. 2786 [cited at] (1993).
21. Manual for Courts-Martial, supra note 17, pt. III.
22. Banks, 36 M.J. at 150 (accused's status as stepfather).
23. August, 21 M.J. 363 [cited at] (accused's grade of "E6 or above" and "fifteen or more years in service").
24. United States v. Pagel 40 M.J. 771 [cited at] (A.F.C.M.R. 1994).
25. 35 M.J. 337 [cited at] (C.M.A. 1992).
26. Id. at 342.
27. Id. But see United States v. Stinson, 34 M.J. 233 [cited at] (C.M.A. 1992), where an expert testifying during sentencing, having never interviewed the accused and knowing little of his background or personal history, stated that the accused had a high risk of reoffending. This was admitted into evidence. This was a judge-alone case in which the judge himself commented on the expert's lack of personal knowledge. Under these facts, the court found no abuse of discretion in allowing the testimony. See also United States v. Talbert, 33 M.J. 244 [cited at] (C.M.A. 1991), another sentencing case, where an expert referred to the accused as a type of "preferential child molester." The court found this evidence "questionable," but harmless.
28. 35 M.J. 17 [cited at] (C.M.A. 1992).
29. Id. at 21 (footnote omitted).
30. Banks, 36 M.J. at 163.
31. United States v. Palmer 33 M.J. 7 [cited at] (C.M.A. 1991).
32. See United States v. Johnson, 35 M.J. 17 [cited at] , 22 (C.M.A. 1992).
33. Garcia, 40 M.J. at 533.
34. 35 M.J. 374 [cited at] , 376 (C.M.A. 1992).
35. United States v. Houser, 36 M.J. 392 [cited at] , 399 (C.M.A. 1993). See also United States v. Hansen, 36 M.J. 599 [cited at] (A.F.C.M.R. 1992).
36. United States v. Arruza, 26 M.J. 234 [cited at] (C.M.A. 1988); U.S. v. Petersen, 24 M.J. 283 [cited at] (C.M.A. 1987).
37. United States v. Bostick, 33 M.J. 849 [cited at] (A.F.C.M.R. 1989).
38. United States v. Partyka, 30 M.J. 242 [cited at] (C.M.A. 1990).
39. United States v. Harrison, 30 M.J. 330 [cited at] (C.M.A. 1990).
40. 25 M.J. 352 [cited at] (C.M.A. 1987).
41. Id. at 354 (citation omitted).
42. 35 M.J. 337 [cited at] (C.M.A. 1992).
43. Id. at 341.
44. Id. at 342.
45. United States v. Savage, 30 M.J. 863 [cited at] (1990).
46. Bostick, 33 M.J. at 849; Harrison, 30 M.J. at 849.
47. Palmer 33 M.J. at 12.
48. Suarez, 35 M.J. at 376.
49. Johnson, 35 M.J. at 21.
50. Id. at 22.
51. 35 M.J. at 376.
52. Pagel, 40 M.J. at 776.
53. 39 M.J. 288 [cited at] (C.M.A. 1994).
54. Id. at 291.
55. 36 M.J. at 162.