State v. Gersin

668 N.E.2d 486, 76 Ohio St. 3d 491

• Court: Ohio Supreme Court
• Decided: August 28, 1996
• Docket: No. 94-2739
• Status: Published

Opinions

Pfeifer, J.

It is tragic that child sexual abuse cases are so prevalent that a body of law has been created which addresses their unique issues. Today, we are faced with yet another such case, and hold that a defendant in a child sexual abuse case may present testimony as to the proper protocol for interviewing child victims regarding their abuse. Rather than infringing upon the fact finder’s role, such testimony assists the trier of fact, and therefore is consistent with this court’s holding in State v. Boston (1989), 46 Ohio St.3d 108, 545 N.E.2d 1220.

In Boston, this court held that “[a]n expert may not testify as to the expert’s opinion of the veracity of the statements of a child declarant.” Id. at syllabus. To allow an expert to so testify, this court held, “ £infringe[s] upon the role of the fact finder, who is charged with making determinations of veracity and credibility.’ ” Id. at 128-129, 545 N.E.2d at 1240. This court emphasized that “ £[i]n our system of justice, it is the fact finder, not the so-called expert or lay witnesses, who bears the burden of assessing the credibility and veracity of witnesses.’ ” Id. at 129, 545 N.E.2d at 1240. We do not retreat from those statements in this case.

Boston also stands for the proposition that expert testimony can be helpful to a jury in a child sexual abuse case. In Boston, this court determined that expert testimony on the ultimate issue of whether sexual abuse has occurred in a particular case is helpful to jurors and is therefore admissible pursuant to Evid.R. 702 and 704. This court reasoned that “[m]ost jurors would not be aware, in their everyday experiences, of how sexually abused children might respond to abuse. Incest is prohibited in all or almost all cultures and the common experience of a juror may represent a less-than-adequate foundation for assessing whether a child has been sexually abused.” Boston at 128, 545 N.E.2d at 1239.

Gersin sought to introduce testimony from Dr. Klein regarding established protocols for interviewing children who are the alleged victims of sexual assault. We must consider whether such evidence is relevant, whether it is admissible as expert testimony, and whether Boston allows its admission.

Relevant evidence is any evidence which has a tendency to make any fact that is of consequence to the determination of the action more probable or less probable than it would be without it. Evid.R. 401 and 402. Prosecution witnesses relied upon Theresa’s interviews in their testimony. How that information was obtained and the accepted protocols on how to obtain such information certainly are relevant.

Likewise, testimony on those protocols is admissible as expert testimony. As this court noted in Boston, an expert may testify on the ultimate question of whether sexual abuse has occurred in a given case because most people are unfamiliar with the nuances of a child sexual abuse case. Similarly, most jurors are unaware of how such child abuse experts arrive at their conclusions. Necessarily, in child sexual abuse cases, experts must rely on the version of events given to them by small children. Special interviewing processes are necessary to get information from child victims, who are often immature, inarticulate, frightened, and confused about the abuse they have received. Most jurors lack the knowledge of accepted practices in interviewing child victims, and expert testimony on the issue is therefore admissible.

Finally, this court’s holding in Boston does not make Klein’s proposed testimony inadmissible. An expert testifying as to interviewing protocols does not usurp the role of the jury, but rather gives information to a jury which helps it make an educated determination. An expert like Klein would testify as to what interview techniques are endorsed by certain professional organizations. Child sexual abuse cases are a special lot. A major distinguishing aspect of a child sexual abuse case is how the victim came to relate the facts which led to the bringing of criminal charges. A defendant not only should be able to cross-examine prosecution witnesses regarding how they obtained their information, but also should have the chance to present expert testimony as to how such information is ideally obtained. Prosecutors are free to cross-examine, or to question the idea that there is only one blanket method of interviewing that should be applied to every child.

Meanwhile, the ultimate issue of the particular child’s veracity is left to the jury. It was not the intent of Boston to stack the deck against defendants in sexual abuse cases, or to hide information from jurors. Even those who prey on the defenseless are entitled to a fair defense. Boston was about protecting the role of the jury. Relevant, expert information can only help a jury do its job.

We therefore affirm the judgment of the appellate court.

Judgment affirmed.

Moyer, C.J., Young, F.E. Sweeney and Cook, JJ., concur. Douglas and Resnick, JJ., dissent. William W. Young, J., of the Twelfth Appellate District, sitting for Wright, J.