State v. Fairweather

863 P.2d 1077, 116 N.M. 456, 1993 WL 477609
CourtNew Mexico Supreme Court
DecidedOctober 28, 1993
Docket21070
StatusPublished
Cited by45 cases

This text of 863 P.2d 1077 (State v. Fairweather) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fairweather, 863 P.2d 1077, 116 N.M. 456, 1993 WL 477609 (N.M. 1993).

Opinion

OPINION

FROST, Justice.

In this opinion, we once again address the admissibility of expert opinion testimony regarding post traumatic stress disorder (PTSD) pertaining to victims of sexual abuse. We accepted certification of this case from the Court of Appeals to review the defendant’s appeal in light of our recent opinion in State v. Alberico, 116 N.M. 151, 861 P.2d 192 (1993). We continue to be persuaded by the scientific validity of PTSD evidence. 1 On the basis of the limitations upon the use of PTSD evidence that we outlined in Alberico, however, we reverse the defendant’s conviction and remand this case to the district court for a new trial.

FACTS

Tom Fairweather was convicted of eight counts of criminal sexual contact of a minor, two counts of criminal sexual penetration of a minor, and two counts of kidnapping. The alleged victims of Fair-weather’s sexual abuse were his two sons who were aged four and six at the time of the alleged abuse.

Testimony at Trial

At trial, the State introduced the testimony of a clinical psychologist, Dr. Barbara Lenssen. Her qualifications were not challenged. The district attorney’s office had engaged Dr. Lenssen to evaluate the credibility and competency of the two boys before trial. The purpose of her testimony at trial, however, was not made clear.

Dr. Lenssen testified that she diagnosed the boys as suffering from PTSD consistent with sexual abuse. She recounted some of the symptoms that she observed in the boys. As a basis for her diagnosis, Dr. Lenssen stated that she interviewed the children and spent about three hours with each of them, met with their therapist and their mother, and viewed a videotaped interview of the boys by an investigator from the district attorney’s office. Dr. Lenssen also repeated several of the statements that the boys made to her during her evaluation to the effect that Fairweather sexually abused them, including oral sex and anal penetration.

Dr. Lenssen also testified about the boys’ credibility. She discriminated between a statement by one of the boys that she believed was truthful and another statement which she believed was contrived. Characterizing one of the boys’ statements, Dr. Lenssen stated that it “seemed to be very factual.” She also testified that the boys’ statements to her were “internally consistent” in that they had reported the same things to different people. Dr. Lenssen did acknowledge, however, that she made no independent investigation of the internal consistency of the children’s statements because she considered their mother to be a reliable source and because her diagnosis of PTSD “fit in” very well. On redirect examination, the prosecution asked her whether children sometimes lied about or fabricated accusations. She responded that sex acts are not within the normal realm of experience of children and that they are not good liars.

In response to a question by the prosecution on direct examination, Dr. Lenssen also testified that the sexual abuse that the boys experienced was the direct cause of their PTSD symptoms. As to one of the boys, she concluded that his PTSD was a result of the “sexual abuse which he has reported happened to him.”

Dr. David Burke also testified during the State’s case-in-chief. He was qualified as a medical doctor with a specialty in child and adolescent psychiatry without objection from the defense. He had treated the boys and had prescribed ritalin for each of them. Dr. Burke agreed with Dr. Lenssen’s diagnosis of PTSD and testified that it was caused by the sexual abuse that each of the boys had experienced. He also testified that the boys told him that they were molested by their father.

Motion in Limine

Before trial, Fairweather joined in a co-defendant’s motion in limine to exclude any testimony regarding PTSD at trial. In their motion to exclude PTSD evidence, the defendants based their objection upon the technique’s scientific unreliability and its failure to meet the Frye test. The motion also addressed the expert’s improper bolstering of the complainants’ credibility and claimed that the prejudicial effect of the testimony would outweigh its probative value.

At the hearing on the motion in limine, Dr. Ned Siegel, a clinical psychologist, testified for the defense. He explained the background of and the theoretical basis for PTSD. He also pointed out that the cautionary statement in the Diagnostic & Statistical Manual of Mental Disorders (3d rev. ed. 1987) (“DSM III-R”), which the American Psychiatric Association published, warned that the use of clinical terms “may not be relevant ... for a legal setting.” He analogized the use of DSM III— R criteria in court for the purpose of showing that a crime had taken place to fitting a square peg into a round hole. Dr. Siegel did acknowledge, however, that the cautionary statement in DSM III-R implicitly recognized that disorders like PTSD would be discussed in a forensic setting such as a criminal trial, and he conceded that DSM III-R did not rule out the use of its classification and diagnostic criteria in the courtroom.

Dr. Siegel testified that there are no unique reactions for different stressors, thus making it difficult to pinpoint the cause of the symptoms. He explained that stressors have a cumulative effect. He also claimed that it is more difficult to identify the stressor in children than in adults. Dr. Siegel pointed out that psychologists are trained to accept the statements of alleged victims and not to evaluate their credibility. He did not contest Dr. Lenssen’s diagnosis of PTSD in the two boys.

During argument on the motion in limine, the prosecution stated that the PTSD testimony would not be offered to prove the veracity of the boys’ testimony or to show that sexual abuse had occurred. According to the prosecution, its purpose was to explain certain post incident behaviors of the children. The defense argued that the jury could evaluate the boys’ behavior and their credibility without the aid of expert testimony. The trial court did not make a specific ruling on the motion in limine.

ISSUES

Fairweather argues that even though the State conceded that PTSD evidence was not admissible as to the truthfulness of the two boys, that is exactly the purpose for which the State offered the expert testimony at trial, which constituted reversible error. We agree. Fairweather also raises other issues that we deem necessary to address as they will undoubtedly resurface if he is tried again. 2 He argues that the boys’ competency to testify was not established, that he was denied his right to confront witnesses by the use of a videotaped deposition, and that the trial court failed to instruct the jury on an essential element of the crimes charged. Fairweather raises additional issues that we deem to be without merit, and thus it is unnecessary to address them.

DISCUSSION

According to the State, the purpose of Dr. Lenssen’s evaluation was to determine the competency of the two children.

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Cite This Page — Counsel Stack

Bluebook (online)
863 P.2d 1077, 116 N.M. 456, 1993 WL 477609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fairweather-nm-1993.