State v. York

564 A.2d 389, 1989 Me. LEXIS 237

• Court: Supreme Judicial Court of Maine
• Decided: September 19, 1989
• Status: Published

Opinions

ROBERTS, Justice.

Edward York appeals from judgments of convictions of three counts of gross sexual misconduct, 17-A M.R.S.A. § 253 (Supp. 1989), entered on a jury verdict in the Superior Court (Knox County, Chandler, J.). York challenges as obvious error the use of expert testimony to identify an eight-year-old girl as the victim of intrafamily sexual abuse. We vacate the convictions.

The eight-year-old girl testified that York sexually abused her on three different occasions while he was living with the family in Rockland. The State then presented testimony from Leslie Deveau, a licensed clinical social worker in private practice at the Mental Health Center in Rockland. De-veau possessed a masters degree in clinical social work and was accredited by the Academy of Certified Social Workers. She testified that her license permitted her to diagnose and treat mental illness and emotional disorders, that she had nine years’ experience, and that, within the past three years, approximately fifty percent of her caseload involved sex abuse victims.

Deveau testified that within her profession there are recognizable characteristics of the sexually abused child, such as being withdrawn, pliable and depressed, or being angry, using provocative language, and exhibiting sexually stereotyped behavior. Deveau was first asked to evaluate the victim in this case by a child care center in 1983, after staff members observed unusually sexualized behavior. Deveau spent several sessions with the victim at an evaluation center in 1983, approximately 30 sessions with her in 1985, and was seeing her at the time of trial.

Deveau testified that the victim fell into that category of sexually abused children who outwardly exhibited sexual behavior. She observed the victim’s use of makeup, sexual conversation, sexual play with dolls, inappropriate kissing, and sexual aggression directed toward her mother’s boyfriend. She testified that this behavior was characteristic of someone who had been sexually abused within the family and that such behavior would not be demonstrated by someone who had not had that experience. Because York did not object to any of this testimony, he must establish on appeal that its use constituted obvious error. M.R.Crim.P. 52(b); M.R.Evid. 103(d).

In State v. Black, 537 A.2d 1154 (Me.1988), we recognized a distinction between, expert testimony concerning counter-intuitive evaluation of victim behavior that may appear inconsistent with the victim’s testimony, and expert testimony that purports to establish on the basis of present conduct that in the past someone has been the victim of specific trauma. Id. at 1156-57. We held that regardless of how appropriate might be the use of the “clinical features of sexual abuse” in the context of therapy, the use of such features was unwarranted in the context of a criminal trial. Id. at 1157. In Black, as in the case at bar, the anecdotal clinical experience of the witness lacked any evidence of solid empirical research. Contrary to the State’s contention, Deveau’s testimony that these “clinical features” are generally accepted in her profession does not establish the scientific reliability of her conclusions. Her testimony only demonstrates that these features may be appropriate for use in clinical treatment.

In State v. Lawrence, 541 A.2d 1291 (Me.1988), we applied the principles of Black despite the absence of a defense objection. We concluded that to permit jury reliance on unproven scientific techniques to bolster otherwise uncorroborated child testimony would deprive Lawrence of a fair trial. Id. at 1293. Although conceptually the proponent of expert testimony could rely on the absence of objection as admitting the adequacy of the scientific foundation for its admission, we tacitly recognized in Lawrence that no such scientific foundation is available. Published commentaries often note the absence of solid empirical research regarding child sexual abuse. See e.g., Boresi, Syndrome Testimony in Child Abuse Prosecutions: The Wave of the Future, 8 St. Louis U.Pub.Law Rev. 207 (1989).

We do not base our decision on the qualifications of the witness; they are not challenged. We have consistently interpreted M.R.Evid. 702, however, to require more than a qualified witness. The rule requires that expert testimony, to be admissible, must assist the trier of fact and that in turn requires a demonstration of sufficient reliability. In State v. Nye, 551 A.2d 844 (Me.1988), we upheld the exclusion of evidence of a psychological study offered by the defense. Appearing in 2 Journal of Interpersonal Violence 27 (1987), the article entitled Reliable and Fictitious Account of Sexual Abuse to Children reported a clinical survey of reliable and fictitious allegations. Because the survey was uncontrolled and subject to error in the identification of reliability, the authors suggested that “the results be used as a base for further study and not as a definitive basis for proving that a case is or is not ‘true.’ (We are aware that our study has already been misused in court for this latter purpose.)” See Nye, 551 A.2d at 846. Cf. State v. Gordius, 544 A.2d 309, 311 (Me.1988) (in child sex abuse case defense failed to provide empirical research to establish correlation between investigatory techniques and inaccuracies in reporting); State v. Michaud, 513 A.2d 842, 849 (Me.1986) (medical professional may not testify to legal conclusion that defendant was insane); State v. Tellier, 526 A.2d 941, 943 (Me.1987) (expert’s testimony that false confessions are a known phenomenon that may occur so abstract, vague and speculative that probative value virtually nil); State v. Fernald, 397 A.2d 194, 197 (Me.1979) (defense failed to demonstrate proffered expert testimony beyond common knowledge).

As in Lawrence, the expert testimony in this case was used to corroborate the child’s testimony. Aside from some evidence that York had the opportunity to commit the offenses, the testimony of the child was otherwise uncorroborated. The impact of expert testimony in these circumstances is undoubtedly substantial enough to have deprived York of a fair trial. See State v. Naoum, 548 A.2d 120, 125 (Me.1988).

The entry is: Judgments vacated.

WATHEN, GLASSMAN and CLIFFORD, JJ., concur.