State v. Cavaliere

663 A.2d 96, 140 N.H. 108, 1995 N.H. LEXIS 103
CourtSupreme Court of New Hampshire
DecidedAugust 9, 1995
DocketNo. 94-076
StatusPublished
Cited by10 cases

This text of 663 A.2d 96 (State v. Cavaliere) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cavaliere, 663 A.2d 96, 140 N.H. 108, 1995 N.H. LEXIS 103 (N.H. 1995).

Opinion

BROCK, C. J.

In this interlocutory appeal from ruling, see SUP. CT. R. 8, the State appeals an order of the Superior Court (Smukler, J.) [109]*109permitting the defendant to introduce, by expert testimony, evidence that he does not fit into a “sexual offender profile.” We reverse and remand.

The defendant, Francis Cavaliere, was charged with four counts of felonious sexual assault, RSA 632-A:3 (1986), and two counts of attempted felonious sexual assault, RSA 629:1 (1986); RSA 632-A:3, alleged to have been committed against a teenaged boy. Prior to trial, the defendant informed the State that he intended to call an expert witness who would testify that the defendant’s psychological profile is not consistent with that of a sexual offender. The trial court ruled the evidence admissible, holding that it is relevant under New Hampshire Rules of Evidence 401(a)(1) and 404(a), and that it is admissible under Rule 702 under the standard enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993). Finally, the court concluded that the evidence is admissible under Rule 403, finding that the probative value of the testimony would not be substantially outweighed by the danger of unfair prejudice to the State.

Because the State does not challenge the trial court’s determination that the sexual profile evidence was relevant character evidence under Rule 404(a), we begin our analysis under Rule 702. We note that the trial court accepted the parties’ stipulation to the use of the Daubert standard, rather than the Frye test. See Daubert, 113 S. Ct. at 2795; Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Accordingly, we need not decide whether the adoption of the New Hampshire Rules of Evidence superseded the Frye test, see Daubert, 113 S. Ct. at 2794; State v. Cressey, 137 N.H. 402, 405, 628 A.2d 696, 698 (1993), and we decide this case under the Daubert standard and Rule 702.

Rule 702 provides that a qualified expert witness may testify, in the form of an opinion or otherwise, “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Expert testimony admitted under this rule “must be reliable to be admissible.” Cressey, 137 N.H. at 404-05, 628 A.2d at 698. In Cressey, we outlined the reasons for this threshold reliability requirement, including the possibility that juries may defer too much to the opinion of experts if the subject matter is beyond common knowledge and everyday experience and if the opinion is given with “the air of authority that commonly accompanies an expert’s testimony.” Id. at 405, 628 A.2d at 698; see Myers et al., Expert Testimony in Child Sexual Abuse Litigation, 68 NEB. L. REV. 1, 20-21 (1989).

[110]*110The Rule 702 reliability determination lies within the trial court’s sound discretion. Cressey, 137 N.H. at 405, 628 A.2d at 698. We will reverse the determination as an abuse of that discretion only if the appealing party can demonstrate that the ruling was untenable or unreasonable and that the error prejudiced the party’s case. See id.; State v. Whittaker, 138 N.H. 524, 526-27, 642 A.2d 936, 938 (1994).

The defendant’s expert witness, Dr. Allen Brown, would have testified that the defendant lacked the psychological characteristics typically found in sex offenders. He based this opinion upon a sexual history and interviews of the defendant and upon several standardized psychological tests, including the Minnesota Multiphasic Personality Inventory — 2 (MMPI-2), the Milon Clinical Multiaxial Inventory — II (MCMI-2), and the Multiphasic Sex Inventory.

To the extent that Dr. Brown’s conclusions were based on his clinical interview of the defendant and his review of the defendant’s sexual history, the trial court granted the State’s motion to exclude his testimony. We agree. For the reasons we stated in Cressey, such subjective conclusions are not sufficiently reliable to be admissible under Rule 702. See Cressey, 137 N.H. at 407-11, 628 A.2d at 699-701.

Dr. Brown did not offer his opinion of the actual guilt or innocence of the defendant. At the hearing on the State’s pretrial motion to exclude his testimony, Dr. Brown testified as follows on direct examination:

Question: Now, what is your opinion that you’re prepared to testify at trial regarding [the defendant]?
Answer: My opinion would be — my opinion, based on the — testing from the MMPI, the MCMI, the Multiphasic Sex Inventory, from a review of the records and from an extensive interview of [the defendant] , tvouW be that "he did not show in-any of the testing or in any of the interviews the psychological characteristics which are typically found in sex ■ offenders, particularly in child molesters and also particularly in repeat child molesters.
Question: Okay. So it’s not your opinion that [the defendant] did or did not commit the charged offenses; is that correct?
Answer: That is correct. Because these tests could not tell whether or not this individual did or did not commit any particular crime. These can only [111]*111show whether or not the person has particular psychological characteristics which are most likely to be associated with someone who is a child offender, child sexual offender.

At the hearing, the State offered the testimony of Dr. Anna Salter. She testified that clinical research on sexual offenders demonstrates that such offenders are characterized by their diversity and apparent normality. Dr. Salter concluded that because of this diversity, there is no way to “rule out” a person as a sexual offender by means of these psychological tests.

The evidence offered by the defendant in this case bears a significant resemblance to the evidence we ruled inadmissible in Cressey, 137 N.H. at 406-08, 628 A.2d at 699-700. In Cressey, we held that the State could not, as part of its case in chief, present the testimony of a psychologist that children had been abused. Id. at 411-12, 628 A.2d at 702-03. We found such testimony not to be sufficiently reliable to be admissible under Rule 702 for several reasons, one of which was the fact that the doctor’s conclusions were largely based on her interpretation of non-standardized data, and that these conclusions were not sufficiently susceptible to adequate cross-examination. See id. at 409-10, 628 A.2d at 701. We also considered it important that “[t]he consensus among scholars is that there are as yet no scientifically reliable indicators of child sexual abuse. There are no symptoms or behaviors that occur in every case of child abuse, nor are there symptoms or behaviors that are found exclusively in child abuse cases.” Id. at 408, 628 A.2d at 700 (quotation and citation omitted).

Dr. Brown utilized the results of three standardized tests in his evaluation of the defendant. The first, the MMPI-2, is a 1989 revision of the MMPI, a widely used psychological test that has been employed extensively in the evaluation of sexual offenders. E.g., Taslitz, Myself Alone: Individualizing Justice Through Psychological Character Evidence, 52 MD. L. REV.

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Bluebook (online)
663 A.2d 96, 140 N.H. 108, 1995 N.H. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cavaliere-nh-1995.