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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 05-JUN-2024 08:33 AM Dkt. 11 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,
vs.
ZETH BROWDER, Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. 3CPC-XX-XXXXXXX)
JUNE 5, 2024
McKENNA, EDDINS, AND DEVENS, JJ.; AND GINOZA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY EDDINS, J.
I.
During closing argument in this sexual assault case, the
prosecution told the jury that its decision “comes to one
question. Is [complaining witness] believable?” Then, while *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
discussing the court’s credibility instruction, the prosecution
explained that the witness’ testimony “is consistent with
someone who’s been traumatized.”
Recently we vacated a conviction in a sexual assault case
after the prosecution during closing argument told the jury that
its decision “comes down to one question, is [complaining
witness] believable?” Then, while discussing the court’s
credibility instruction explained that the witness’ testimony
“is consistent with a child who is traumatized.” State v.
Hirata, 152 Hawaiʻi 27, 29, 520 P.3d 225, 227 (2022). This court
held that the “traumatized” statement was prosecutorial
misconduct that eroded the defendant’s constitutional right to a
fair trial. Id. at 33, 520 P.3d at 231.
In the present case, the Intermediate Court of Appeals
validated the prosecutor’s remarks. We do not.
The prosecuting attorney crossed the line in Hirata. Here
too. The remarks constituted prosecutorial misconduct.
We hold that the prosecuting attorney expressed a personal
belief about the witness’ credibility and added new evidence
during closing argument, thereby undermining the defendant’s
right to a fair trial.
II.
The State alleges that Zeth Browder sexually assaulted the
complaining witness (CW) (an identifier commonly used in
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Hawaiʻi’s trial courts), an elderly woman, while she was camping
in her tent in a county park.
The State charged Browder by indictment. It alleged he
committed first degree sexual assault, Hawaiʻi Revised Statutes
(HRS) § 707-730(1)(a) (2014), third degree sexual assault, HRS
§ 707-732(1)(f) (2014), first degree burglary, HRS § 708-
810(1)(c) (2014), kidnapping, HRS § 707-720(1)(e) (2014), and
evidence tampering, HRS § 710-1076(1)(a) (2014).
Third Circuit Court Judge Robert Kim presided over
Browder’s trial. The trial occurred two years after Chanse
Hirata’s continuous sexual assault of a minor trial, and one
year before this court’s Hirata opinion.
The same deputy prosecuting attorney tried both cases.
The jury found Browder guilty of all charges.
Browder appealed. He raised multiple points of error.
The ICA vacated Browder’s conviction and ordered a new
trial based on other comments the prosecutor made during closing
argument. The State didn’t appeal the ICA’s decision on those
comments. Nor did it appeal the ICA’s conclusion that those
comments may have affected the trial’s outcome and therefore
Browder should be retried.
The ICA rendered a split decision on the prosecutor’s
“consistent with someone who’s been traumatized” comment. The
majority held that the statement was not misconduct. Judge
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Leonard disagreed, saying the remark mirrored the one this court
found improper in Hirata. Browder appealed on this issue. We
accepted cert to examine the ICA majority’s view that the
prosecutor’s “traumatized” comment was permissible.
Thus, the only issue before us is whether the prosecutor’s
“consistent with someone who’s been traumatized” comment was
prosecutorial misconduct. So we limit our recitation of the
facts.
Browder’s case went to trial in late 2021. The State
called several witnesses who interacted with the woman after the
alleged crime: the first person she reported the assault to, two
responding police officers, two detectives, and a nurse who
performed a sexual assault examination. Each witness described
the woman as distressed, using words like “scared,” “crying,”
“very emotional,” and “shooken up” to describe her demeanor.
The CW testified. The defense’s cross-examination aimed to
highlight purported inconsistencies in her prior statements.
Before the closing arguments, the court read the standard
instruction about witness credibility. See Hawaiʻi Standard Jury
Instructions Criminal 3.09.
The prosecutor’s closing referenced the credibility factors
in the jury instruction. She described the CW’s testimony as
“emotional,” “crying,” and “scared.” Then, like in Hirata, the
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prosecutor declared that the CW’s manner of testifying was
“consistent with” a “traumatized” person.
The complaining witness in Browder’s case is an elderly
woman. In Hirata, the complaining witness was a child. That
difference is inconsequential.
Browder’s case and Hirata have four key similarities.
First, the prosecution told the jurors that the case turned on
credibility. Hirata, 152 Hawaiʻi at 29, 520 P.3d at 227.
Second, witnesses testified that the child and elderly woman
were highly emotional during post-assault interactions. Third,
the child and elderly woman testified in highly emotional ways.
Id. Fourth, the prosecutor’s closing arguments described the
complaining witness’ testimony as “consistent with” a
traumatized person.
Here is what the prosecutor said in both cases:
Hirata, 152 Hawaiʻi at 29, 520 This case (emphasis added): P.3d at 227: . . . . And it also comes down to one . . . . [U]ltimately this case comes question, is [CW] believable? to one question. Is [CW] believable?
Now, the Court gave you the jury Now, [the Circuit Court] just read instructions that you all have in you a number of jury instructions, front of you, and on page 8, there and on page 9 you’ll find a number of are a list of factors that you can credibility factors that you can use consider when you deliberate to to determine the credibility of determine if a witness is credible. witnesses. So you look at their demeanor, their candor, lack of motive, and if what I’m not gonna reread everything again they say makes sense. for you, but when you look at some of them like her demeanor, her candor, So when you look at the factors – and her lack of motive and is [sic] what I’ll go through them with you, ladies she says makes sense, then the State and gentlemen – the answer is clear submits that, yes, the answer to this to this question. Yes, [CW] is question is that [CW] is believable. believable. And because [CW] is And because [CW] is believable as
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believable, it’s – it is the stated on page 11 of your jury testimony that has a convincing force instructions, the testimony of even a upon you that counts, and the single witness if believed is testimony of even a single witness, sufficient to prove a fact. if believed, can be sufficient to prove a fact. So now let’s look a little bit closer at the credibility factors and the So let’s go through the factors of evidence that you heard over the last [CW]’s credibility. Her appearance, week. demeanor, her manner of testifying. She came here last week. You saw So looking at [CW]’s appearance, her. She’s 11 years old. She was demeanor, manner of testifying you nervous and understandably so. And saw her and you got to meet her over she tried to be brave up there on the the course of two days of stand. She answered all of my questioning. questions. She answered all of the defense attorney’s questions. Almost She’s 80 years old. She was nervous, three hours up there. shaking on the witness stand. She was emotional and crying. She was And then at the end of almost those scared. She told you she was scared three hours, she couldn’t be brave that morning. She was scared at the anymore, and you saw her when she got hospital. She was scared even a week emotional. She broke when the and a half later, and she was still defense attorney continued to call – scared in court. This is consistent to question her credibility and if with someone who’s been traumatized. she was making this up, and her answer to you was this really happened. It’s consistent with a child who is traumatized.
The ICA’s majority (and the dissent) believe the summations
meaningfully differ, making the appellate outcomes differ. We
held in Hirata that the “consistent with a child who is
traumatized” remark improperly expressed the prosecutor’s
personal belief and improperly introduced new evidence during
closing argument. Hirata, 152 Hawaiʻi at 33, 520 P.3d at 231.
The ICA views Browder’s case as different. It said, “the
prosecutor’s argument. . . was not based on the prosecutor’s own
evaluation and opinion of CW’s reaction to being cross-examined,
as in Hirata, but was supported by reference to the evidence or
facts supporting the assertion” (cleaned up).
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The ICA felt the prosecutor did not express a personal
opinion related to the witness’ credibility. Rather, telling
the jury that the complainant testified consistent-with-a-
traumatized-person was just an evidence-rooted inference. The
ICA referenced several witnesses who described the woman as
“crying,” “scared,” “sad,” and “very shaky.” In the ICA
majority’s view, that evidence of post-assault emotion flips the
outcome.
Judge Leonard doesn’t see the difference. Like we do here,
her concurrence split-screens passages from the closing
arguments, placing the closings side-by-side. She reasoned that
Hirata “is indistinguishable from this case with respect to the
prosecutor’s statement to the jury that the complaining
witness’s . . . appearance, demeanor, and manner of testifying
was consistent with someone who’s been traumatized.” To Judge
Leonard, “[t]he rule of law applied to the prosecutor in Hirata
is equally applicable to her in this case.”
It is. We hold that the prosecuting attorney’s consistent-
with-someone-who’s-been-traumatized remark expressed a personal
belief about the credibility of the State’s key witness and
undermined Browder’s right to a fair trial. The remark also
resulted in a constitutionally unfair trial because prosecutors
“are also forbidden from introducing new information or evidence
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in closing argument.” Hirata, 152 Hawaiʻi at 33, 520 P.3d at
231.
III.
A. State v. Hirata
Hirata held that a near-identical “consistent with someone
who’s been traumatized” remark was prosecutorial misconduct.
152 Hawaiʻi at 33, 520 P.3d at 231. Hirata gave two independent
reasons.
First, a prosecuting attorney’s personal views about the
evidence are out-of-bounds. “[T]his court has often directed
prosecutors to not express personal beliefs about the evidence.”
Id. See also State v. Salavea, 147 Hawaiʻi 564, 582, 465 P.3d
1011, 1029 (2020) (prosecutors must “refrain from expressing
their personal views as to a defendant’s guilt or the
credibility of witnesses”). A prosecutor’s assertions of
personal knowledge “are apt to carry much weight against the
accused when they should properly carry none.” State v. Clark,
83 Hawaiʻi 289, 304, 926 P.2d 194, 209 (1996).
Second, prosecutors “are also forbidden from introducing
new information or evidence in closing argument.” Hirata, 152
Hawaiʻi at 33, 520 P.3d at 231 (emphasis added); see also State
v. Basham, 132 Hawaiʻi 97, 113, 319 P.3d 1105, 1121 (2014)
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(“Closing arguments are not the place to introduce new evidence
outside the safeguards of the Hawaiʻi Rules of Evidence.”).
Hirata drew on this court’s decisions in Salavea and
Basham, which in turn relied on the American Bar Association
(ABA) Standards for Criminal Justice. Salavea, 147 Hawaiʻi at
582 n.23, 465 P.3d at 1029 n.23; Basham, 132 Hawaiʻi at 114-15,
319 P.3d at 1122-23. The ABA Standards state that arguing from
personal belief and adding new evidence are separate reasons to
find misconduct. “The prosecutor should not argue in terms of
counsel’s personal opinion, and should not imply special or
secret knowledge of the truth or of witness credibility.” ABA
Standard 3-6.8(b) (emphasis added). When prosecutors imply
secret knowledge, they imply extra facts not in evidence.
Hirata held that a prosecutor’s remark is improper if it
expresses a personal belief about a witness’ credibility or
introduces new evidence, not just when it expresses a personal
belief about credibility and introduces new evidence. The
prosecuting attorney in Hirata “improperly expressed her
personal belief about CW’s credibility and injected new
evidence.” Hirata, 152 Hawaiʻi at 33, 520 P.3d at 231 (emphasis
added). Both reasons were independent grounds to find
prosecutorial misconduct. Contrary to the dissent and ICA, a
prosecutor’s improper personal belief is not cured because it
was supported by evidence. See id. at 35, 520 P.3d at 233 (“[A]
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statement may improperly imply a personal opinion even if
specific facts or evidence are invoked.”) (cleaned up).
Witness observations about an alleged victim’s emotional
state do not justify a prosecutor’s suggestion to the jury that
the victim testified truthfully because she was “traumatized.”
They did not in Hirata. And they do not here. The Hirata jury
heard from the CW, the person who the CW first disclosed the
sexual abuse to (the child’s mother), a police officer, a
detective, a doctor, and an expert on the dynamics of child
sexual abuse. Hirata, 152 Hawaiʻi at 29, 520 P.3d at 227.
The witnesses described the child in post-assault interactions
as “scared” and “crying.” That evidence was available to the
jury in Hirata. Still Hirata concluded that the prosecutor’s
comment was misconduct.
B. Browder’s Case
Hirata held that the “consistent with” a “traumatized”
person remark was improper for both reasons – improper personal
opinion and new evidence during closing. 152 Hawaiʻi at 33, 520
P.3d at 231.
There’s no difference in Browder’s case. Hirata controls.
In both cases, the jury listened as the DPA claimed that
the alleged victim testified “consistent with someone who’s been
traumatized.” But, as in Hirata, the jury heard no evidence
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that could legitimately support the prosecutor’s claim that the
CW testified consistent with a traumatized person. Id.
Like Hirata, there was no evidence about post-assault
“trauma” or evidence regarding the condition or state of being
“traumatized.” Id. There was extensive evidence about the
witness’ demeanor, her distraught emotional state. But there
was nothing to establish “trauma” as a concept or to diagnose
the witness with being traumatized. Nor was there foundation
for the idea that the CW remained “traumatized” when she
testified two and a half years after the alleged sexual assault.
There was also no evidence about how a traumatized person may or
may not testify or act while testifying. See id. at 33 n.14,
520 P.3d at 231 n.14.
Hirata had an expert who testified generally about the
dynamics of child sexual abuse, but did not opine specifically
on how traumatized children testify in court or on that case’s
individual child. Id. The Hirata jury could apply the expert’s
general testimony to the evidence it heard.
Here, there was less for the jury to consider, because
there was no expert. This jury lacked any expert psychological
testimony to go on. This jury could only rely on its own
preexisting ideas of what “trauma” is and what effects,
psychological or otherwise, it has on someone who has been
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“traumatized.” Thus, the prosecutor’s comment had less support
in this case than it did in Hirata.
“Trauma,” and the state of being “traumatized,” are loaded
terms. They mean more than distraught or upset. They mean more
than a person showing emotional distress, such as by crying or
shaking. They connote a lasting psychological condition.
The State, in its briefing to the ICA in this case, defined
trauma as “Psychiatry. A startling experience which has a
lasting effect on mental life; a shock.” Trauma, The Random
House Dictionary of the English Language, 1507 (The Unabridged
Edition 1973). The State also defined trauma as “Psychiatry. A
painful emotional experience, or shock, often producing a
lasting psychic effect.” Trauma, Webster’s New World
Dictionary, 1423 (Third College Edition, 1988). More modern
dictionaries define it as “a disordered psychic or behavioral
state resulting from severe mental or emotional stress or
physical injury.” Trauma, Merriam Webster Dictionary.
https://www.merriam-webster.com/dictionary/trauma
[https://perma.cc/DQH6-EG59]. Or, “[s]evere emotional or mental
distress caused by an experience.” Trauma, The American
Heritage Dictionary of the English Language, 2022.
https://www.ahdictionary.com/word/search.html?q=trauma
[https://perma.cc/P9S3-PZ3Q].
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“Trauma,” and the state of being “traumatized,” have a
specialized psychological meaning. The Diagnostic and
Statistical Manual of Mental Disorders (DSM-5), describes
several kinds of traumatic psychological conditions, which can
present with varying symptoms. American Psychiatric
Association, Diagnostic and Statistical Manual of Mental
Disorders, 265-290 (5th ed. 2013). For example, post-traumatic
stress disorder, which can result in long-term effects after
exposure to sexual violence. Id. at 271-80.
“Trauma” or “traumatized” doesn’t always mean exactly one
thing. Id. In some cases, survivors of sexual violence behave
with an unemotional, calm demeanor. See People v. Taylor, 552
N.E.2d 131, 133-34 (N.Y. 1990) (citing Ann Burgess & Lynda
Holmstrom, Rape Trauma Syndrome, 131 Am. J. Psychiatry 981, 982
(1974)). Emotionless self-presentation may also be “consistent
with someone who’s been traumatized.” See Taylor, 552 N.E.2d at
134 (“It is also apparent that there is no single typical
profile of a rape victim and that different victims express
themselves and come to terms with the experience of rape in
different ways.”).
The phrasing of the prosecutor’s comment contributes to its
impropriety. “Consistent with” sounds like expert-speak. In
this case, the State’s medical expert, Nurse Davis, opined that
the CW’s description of the assault was “consistent with” the
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results of Davis’ medical examination. “Consistent with”
prompts a jury to think of “traumatized” in technical, medical,
and diagnostic terms. Not the supposedly common-sense meaning
the dissent claims.
“Consistent with” also suggests facts not in evidence. For
a witness’ behavior to be “consistent with someone who’s been
traumatized,” some behaviors must be consistent with trauma.
Trauma also must have some relevance. In short, “trauma,” and
being “traumatized,” must mean something. The prosecutor’s
comment invites the jury to supply its own meaning outside of
properly admitted evidence.
For sure, a prosecutor during closing argument “is
permitted to draw reasonable inferences from the evidence and
wide latitude is allowed in discussing the evidence.” Clark, 83
Hawaiʻi at 304, 926 P.2d at 209. Free-flowing syntax often adds
flair to a closing argument. But here, the consistent-with-a-
traumatized-person comment was not improvised or extemporaneous.
Rather, it was deliberate. As in Hirata, the remarks boosted
the CW’s credibility.
Examining the persuasive impact of “consistent with someone
who’s been traumatized” shows why it is out of bounds. It
invokes, for a juror familiar with trauma, that trauma may cause
lapses in memory. See, e.g., Arthur H. Garrison, Rape Trauma
Syndrome: A Review of a Behavioral Science Theory and its
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Admissibility in Criminal Trials, 23 Am. J. Trial Advoc. 591,
619 (2000) (summarizing academic studies). A knowledgeable
juror may discount any gaps or inconsistencies they perceive in
the CW’s testimony.
A juror without that background may view the testimony
differently. See Taylor, 552 N.E.2d at 136 (“[W]e believe that
patterns of response among rape victims are not within the
ordinary understanding of the lay juror.”). Without an expert
to explain the impacts, signs, and symptoms of trauma and to
opine on whether the CW exhibits trauma, each juror may
interpret the prosecutor’s remark differently based on their
individual experience. See id. (“[C]ultural myths still affect
common understanding of rape and rape victims.”).
Because an ordinary juror may hold myths or misconceptions
about the trauma-infused testimony of sexual assault survivors,
State v. David is inapposite. That case held that requiring
expert testimony to introduce evidence about (1) blood alcohol
concentration’s connection to alcohol consumption and (2) the
association between alcohol consumption and aggressive behavior
undercut the defendant’s right to present a defense. State v.
David, 149 Hawaiʻi 469, 477, 481, 494 P.3d 1202, 1210, 1214
(2021). BAC and the relationship between alcohol and aggression
are within the common knowledge of the average adult. Id.
Thus, this court concluded that jurors should apply “their
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general knowledge of how humans operate in the world.” Id. at
478, 494 P.3d at 1211.
David is different. Ordinary adults understand the effects
of alcohol. Many – we suspect most - adults don’t have
experience listening to a rape survivor recount their
experience. An adult’s common knowledge does not include how
sexual assault survivors testify in a public courtroom. That
experience is more specific than the average adult’s “general
knowledge of how humans operate in the world.” Id.
The dissent’s fundamental premise is that an adult sexual
assault survivor’s manner of testifying is within the average
adult’s common understanding. We don’t share that view.
The dissent also seeks to separate this case from Hirata
because the prosecutor’s traumatized comment was “thoroughly
supported by evidence” and because the defense attacked CW’s
credibility. This is no distinction at all. The prosecutor and
defense attorney in Hirata did the same things.
After the “traumatized” comment, the Hirata prosecutor
described evidence from other witnesses about the CW’s post-
assault emotional state: “She was upset, emotional;” “[s]he was
nervous. She was quiet, withdrawn;” “[s]he broke down. She was
crying, and she was weeping.” The prosecutor also described
evidence about CW’s physical injuries.
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The dissent canvasses the transcript here and concludes
that the prosecutor’s discussion of the evidence justified her
“traumatized” comment. It quotes Salavea: “A statement about a
witness’s credibility that is made without reference to the
evidence or facts supporting the assertion amounts to an
expression of personal opinion.” 147 Hawaiʻi at 582, 465 P.3d at
1029. But Salavea’s statement doesn’t mean that if a prosecutor
assembles some evidence, then any personal opinion is allowed.
Closing arguments frame facts. In almost any trial where a
prosecutor makes a prejudicial remark, the comment will be
tethered to the facts in some way.
Here, we decline to greenlight a prosecutor’s prejudicial
comment just because the prosecutor detailed facts about an
adult’s emotional state.
The dissent also concludes that because Browder’s counsel
attacked CW’s credibility, the prosecutor’s “traumatized comment
was appropriate.” In Hirata, defense counsel also questioned
the CW’s credibility: “[T]he first thing let’s talk about is the
reason. . . why [CW] said what she said. . . . [I]t’s attention
from her mom.” The defense continued: “So caution, jurors, just
because [CW] said it doesn’t make it true.” “[L]et’s talk about
some of the inconsistencies” in the CW’s testimony.
In this case, defense counsel attacked the CW in stark
terms, accusing her of “lying.” We do not condone counsel’s use
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of the words “lie” and “lying.” See State v. Austin, 143 Hawaiʻi
18, 50–51, 422 P.3d 18, 50–51 (2018) (opinion of the Court by
Pollack, J.) (recognizing many problems with a prosecutor’s
assertion that a witness was lying). Still, we believe that the
defense’s objectionable word choices do not validate the
prosecutor’s improper argument. And, the defense’s credibility
challenge does not separate this case from Hirata.
Challenging the credibility of prosecution witnesses is a
routine feature of most criminal trials. Not challenging the
credibility of a witness may lead to claims that defense
counsel’s representation fell below an objective standard of
reasonableness. The right to cross-examination, and a closing
argument that questions credibility, does not pave the way for
prejudicial prosecutorial commentary.
Here, the “traumatized” comment also adds evidence that the
assault occurred as the CW described it. Evidence of the CW’s
emotional behavior, combined with the prosecutor’s “traumatized”
comment, suggests that the CW was in fact traumatized. So, the
CW must have experienced a traumatic event, a juror may think.
Thus, the CW’s psychological condition becomes more evidence
supporting her description of the sexual assault. And, it
resembles prejudicial victim-impact evidence. Hirata, 152
Hawaiʻi at 35, 520 P.3d at 233.
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Contrary to the dissent’s reading, we do not encourage a
prosecution expert to discuss CW’s “trauma” in every sexual
assault case. Hirata expressed concern that, in many cases,
evidence of CW’s trauma may be impermissible victim-impact
evidence. Id. at 33 n.13, 520 P.3d at 231 n.13.
The prosecutor’s diagnostic and causal opinion about trauma
may carry undue weight. A prosecutor’s words have an outsized
influence on a jury. Id. at 33, 520 P.3d at 231. The
prosecutor’s personal opinion, enhanced by their experience in
sex-crimes cases, enters the jury’s decision-making calculus.
See Salavea, 147 Hawaiʻi at 582, 465 P.3d at 1029 (prosecutor’s
personal opinions “tend to exploit the influence of the
prosecutor’s office”); Clark, 83 Hawaiʻi at 304, 926 P.2d at 209
(“[I]mproper suggestions, insinuations, and especially
assertions of personal knowledge are apt to carry much weight
against the accused when they should properly carry none.”).
Trust me, the prosecutor says, I know what a traumatized person
looks and acts like.
But Hirata recognized that a prosecutor’s consistent with a
traumatized person comment requires evidentiary support. There,
the prosecutor’s “traumatized” comment lacked “evidence that
could legitimately support” it because “[n]o witness testified
about CW’s mental health or psychological condition.” Hirata,
152 Hawaiʻi at 33, 520 P.3d at 231.
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This court has recognized that expert testimony on the
dynamics of sexual abuse “may play a particularly useful role by
disabusing the jury of some widely held misconceptions so that
it may evaluate the evidence free of the constraints of popular
myths.” See State v. Batangan, 71 Haw. 552, 558, 799 P.2d 48,
52 (1990) (cleaned up). Expert testimony can assist the jury in
applying technical psychological concepts. But injecting the
concept of “trauma” and the diagnosis that a witness has been
“traumatized” without supporting expert testimony asks the jury
to draw on popular myths, not avoid them.
Prosecutors have “a duty to seek justice, to play fair and
square.” Hirata, 152 Hawaiʻi at 33, 520 P.3d at 231. Since
statehood, this court has fiercely protected a criminal
defendant’s constitutional right to a fair trial. See State v.
Yoshino, 50 Haw. 287, 290, 439 P.2d 666, 669 (1968). We do so
again.
IV.
We vacate the part of the Intermediate Court of Appeals’
memorandum opinion that allowed the prosecutor to say that the
witness testified “consistent with someone who’s been
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traumatized.” The case is remanded to the Circuit Court of the
Third Circuit.
Walter J. Rodby /s/ Sabrina S. McKenna for petitioner /s/ Todd W. Eddins Stephen K. Tsushima /s/ Vladimir P. Devens for respondent