State v. Black

537 A.2d 1154, 1988 Me. LEXIS 44
CourtSupreme Judicial Court of Maine
DecidedFebruary 24, 1988
StatusPublished
Cited by50 cases

This text of 537 A.2d 1154 (State v. Black) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Black, 537 A.2d 1154, 1988 Me. LEXIS 44 (Me. 1988).

Opinion

ROBERTS, Justice.

Andrew Black appeals his conviction of gross sexual misconduct, 17-A M.R.S.A. § 253(1)(B) (1983 & Supp.1987), after a jury trial in Superior Court, Lincoln County. Among the issues Black raises, we discuss only the use of videotaped testimony, the admission of expert testimony and the sufficiency of the evidence. Because we conclude that certain expert testimony was erroneously admitted, we vacate the judgment.

I.

Black is charged with engaging in a sexual act on or about August 2, 1985, with one John Doe (fictitious name), who was not his spouse and who had not attained his fourteenth birthday. In January of 1987, John was a patient at the Augusta Mental Health Institute. On motion of the State to present John’s testimony to the jury by videotape, the court heard the testimony of a staff psychologist concerning the harm to John’s emotional and psychological well-being that would result from a) testifying in open court and b) testifying in the presence of Black. John’s testimony, which was presented to the jury at the time of trial, was videotaped in the presence of a Superi- or Court Justice and counsel. Black, who was placed in a separate room, was able to watch and hear John testify; he was also able to communicate with his attorney by means of an intercom device.

Because we vacate the judgment on another ground, we do not address Black’s assertion that his constitutional right of confrontation was violated by the use of the videotaped testimony of the victim. We have recently held that a showing of unavailability of the witness may present a sufficient justification for depriving a defendant of face-to-face confrontation, State v. Twist, 528 A.2d 1250 (Me.1987). In Twist the finding of unavailability was based on clear and convincing proof that the witnesses’ “emotional or psychological well-being would be substantially impaired *1156 if they were to testify at trial.” Id. at 1257. The constitutional requirement that the witness be unavailable must be demonstrated to exist at the time of trial. It is not sufficient to establish unavailability at the time of the motion hearing unless that occurs near in time to the trial. Obviously, prior to use of the videotape in any retrial of Black the record must reflect the then status of the victim-witness. Our review of the record made at the motion hearing more than a year ago would serve no useful purpose.

II.

Prior to the testimony of Kathleen Jill-son, a psychiatric nurse at Jackson Brook Institute, the State advised the court that the purpose of her testimony would be 1) to explain to the jury the reason for timing and sequencing inconsistencies in John’s testimony, and 2) to describe certain “indicators” or “things that she observed about [John] which ... are consistent with a child who has been sexually abused.” At least the latter purpose established the State’s intention to rely on Jillson’s testimony in order to identify John as a victim of sexual abuse. The State adheres to that position on appeal. The defense expressly objected to Jillson’s testimony on the ground that “there has been no evidence of acceptance in the scientific community on this particular issue.”

Under the Maine Rules of Evidence, a qualified expert possessing specialized knowledge may testify in order to assist the trier of fact to understand the evidence or to determine a fact in issue. M.R.Evid. 702. The subject matter on which the expert testifies must be one that is not within the common knowledge of the trier of fact, “the expert must be able to provide some insight beyond the kind of judgment an ordinarily intelligent juror can exert.” Field & Murray, Maine Evidence § 702.1 (1987). Although the proponent need not always show general scientific acceptance, State v. Williams, 388 A.2d 500, 503-04 (Me.1978), “in order to be admissible the proffered expert testimony must be demonstrated to have sufficient reliability to satisfy the evidentiary requirements of relevance and helpfulness, and of avoidance of prejudice to the defendant or confusion of the factfinder.” State v. Philbrick, 436 A.2d 844, 861 (Me.1981) (emphasis in original); M.R.Evid. 403, 702. We conclude that part of Nurse Jillson’s testimony was admissible and part was inadmissible.

The States offered Jillson’s testimony in part, to explain timing and sequencing inconsistencies in John’s testimony. Such testimony may be helpful to the jury because it is not within a lay person’s common knov/ledge that a person who suffers some type of traumatic experience may have difficulty relating that experience in a chronological, coherent and organized manner. We recognize, however, that expert testimony offered to explain inconsistent testimony or conduct of the victim can have the effect of bolstering that person’s credibility. Such evidence can have a profound impact on the outcome of the trial, particularly, as in the present case, when the prosecution offers the evidence to establish its case in chief. Consequently, the prosecution may introduce expert testimony to assist the trier of fact in understanding an inconsistency in the victim’s conduct or testimony only to rebut an express or implied defense assertion that such inconsistency makes it improbable that either a crime was committed o: that this defendant committed the crime.

In the instant case, however, defense counsel extensively cross-examined the victim concerning the timing and sequencing of the unlawful acts Black allegedly performed on him; in so doing, counsel was attempting to show that John’s story was incredible and therefore the alleged acts never took place. In this circumstance, the trial court, exercising its discretionary supervision over the order in which evidence is presented, may allow the prosecution to present expert testimony to explain seemingly inconsistent, testimony by the victim as part of its case in chief.

Although part of Jillson’s testimony was properly admitted, we agree with Black that the court should not have permitted her to testify that the alleged victim of *1157 sexual abuse displayed identifying characteristics in order to show that the child was in fact abused. Whether described in terms of “indicators,” “syndromes,” “patterns,” or “clinical features” the objective of such evidence is to establish on the basis of present conduct that in the past someone has been subjected to a specific trauma. We conclude that the present record fails to demonstrate the scientific reliability of such evidence. 1

Jillson testified that she obtained a baccalaureate degree in nursing science from the University of Maine and a master’s degree in child psychology from the University of Westchester. For approximately twenty years Jillson has worked in mental health, primarily with physically and sexually abused children and has taught educational courses and studied to maintain her certification as a clinical specialist. No objection is raised to Jillson’s professional qualifications.

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Bluebook (online)
537 A.2d 1154, 1988 Me. LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-black-me-1988.