State v. Myers

382 N.W.2d 91, 1986 Iowa Sup. LEXIS 1087
CourtSupreme Court of Iowa
DecidedFebruary 19, 1986
Docket84-1908
StatusPublished
Cited by184 cases

This text of 382 N.W.2d 91 (State v. Myers) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Myers, 382 N.W.2d 91, 1986 Iowa Sup. LEXIS 1087 (iowa 1986).

Opinions

SCHULTZ, Justice.

Defendant appeals from his conviction and sentence for indecent contact with a child. See Iowa Code § 709.12(2) (1983). He contends that the trial court erred in two respects: (1) in overruling his objections to the admission of expert testimony that children almost never lie about sexual abuse; and (2) in failing to grant a mistrial after a police officer made reference to the reputations of persons with whom defendant resided. We conclude that the trial court abused its discretion in admitting the challenged expert testimony, thereby depriving defendant of a fair trial. We there[92]*92fore reverse the conviction and remand for a new trial.

The State charged defendant with having indecent contact with an eight-year-old female victim (the complainant) one night in April 1984. The incident allegedly involved sexual molestation which occurred while the complainant’s five-year-old sister and she were asleep in a hide-a-way bed at the home of an acquaintance of their mother.

At trial the prosecution first called as witnesses the complainant, her sister, and other witnesses who gave testimony tending to support each element of the charge. The prosecution then elicited opinion testimony of two expert witnesses: Martha Davis, a prosecution witness who was the principal of the elementary school attended by the complainant; and Mary Jane Mosh-er, a child abuse investigator employed by the Iowa Department of Human Services whom the defendant called as a witness and the prosecution cross-examined. The essence of their challenged testimony was that children generally tell the truth when they report that they have been sexually abused. Defendant has not challenged the qualifications of these two expert witnesses, but he contends that their opinions concerning the general credibility of children reporting sexual molestation was not a proper subject for expert testimony.

Davis, the school principal, testified:
Q. During the course of your investigation and your work with sexually abused children, have you formed an opinion as to whether or not children lie about these particular kinds of incidents?
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A. Yes, I have. First of all, I think it relates to two areas. One would be the statistics that I’ve learned of by going to special training sessions on this matter of child sexual abuse.
Statistically, the statistics show that children have not lied in this area. For example, we were given a statistic from Polk County that — I’m referring to the Polk County Child Sexual Abuse Model that is utilized in the case of an investigation — and out of about, I think it was, 75 cases, there was only one out of prosecuted cases where the child was not telling the truth.
And we’ve been given other statistics along this line. At our symposium last Wednesday that was emphasized again and again, children do not lie about this type of matter.
And the second part of my opinion has to do with my experiences, which has been the entire time I’ve been at [the elementary school], for three years, that there has not been a child who has lied about something like this. So I do believe the children.

Mosher, the child abuse investigator, had interviewed the complainant about this incident and was called as a witness by the defendant. On direct examination she related what the complainant had told her, a report somewhat inconsistent with the complainant’s trial testimony. On cross-examination of Mosher the prosecution developed the following testimony:

Q. Have you formed an opinion during the course of your investigations with regard to sexual abuse cases whether or not children in general tell the truth about these particular kinds of crimes?
A. Yes I have.
Q. And what is that opinion?
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A. In all the years I’ve worked, which is sixteen, I have only had one child that lied to me about sexual abuse, and it is my opinion that it is very rare for a child to lie about this subject.
Q. Did you form your opinion based upon certain statistics or facts that you have at your recollection?
A. I did read a statistic based on the Giaretto Program in San Jose, which was one of the first programs in the sexual abuse investigation, and their finding was that perhaps one in 2,500 children who were interviewed did not tell the truth, which would make it exceedingly rare.

Defendant made timely objection that the testimony of Davis and Mosher was not a [93]*93proper subject for expert opinion testimony. Before either witness expressed an opinion about whether children in general truthfully report incidents of child abuse, defendant’s counsel objected by stating:

Your Honor, and I do not know what her opinion is, but there is no theory of evidence, there is no theory of law, and it is just directly prohibited by the Iowa Supreme Court to ask. No one can be an expert in that area. One cannot give an opinion in that area, your Honor.

Objecting to the testimony of Mosher, defendant’s counsel stated:

Your Honor, I would like to interpose an objection for the record. That is not the proper subject for expert opinion.
The Iowa Supreme Court has said in State v. Galloway [275 N.W.2d 736, 740 (Iowa 1979) (specially concurring opinion of seven justices)] that the jury, of course, can listen to facts, but it is the jury’s job to determine credibility, and it is not — it is — just simply is not a proper subject for expert testimony.

Counsel’s objection that no person can be an expert in this area, and his specific reference to the Galloway opinion, alerted the trial court to the important concerns which we here express regarding this testimony. We believe that defendant properly preserved error on this matter at trial. See State v. Nimmo, 247 N.W.2d 228, 231 (Iowa 1976). The qualifications of these two witnesses is not in issue; the subject matter of their expert opinion testimony is our focus. The fundamental question we must answer is whether the prosecution met its burden to show that the subject matter of the testimony is admissible pursuant to Iowa Rule of Evidence 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

We are generally committed to a liberal rule which allows opinion testimony if it will aid the jury in screening the properly admitted evidence to ascertain the truth. State v. Hall, 297 N.W.2d 80, 84 (Iowa 1980). When a trial court has exercised its discretion to admit expert testimony, we will reverse only if we find an abuse of that discretion and prejudice. Id. at 86; State v. Morrison, 323 N.W.2d 254

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Bluebook (online)
382 N.W.2d 91, 1986 Iowa Sup. LEXIS 1087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-myers-iowa-1986.