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L.C.H. v T.S. (08/17/2001) sp-5449
L.C.H. v T.S. (08/17/2001) sp-5449
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
L.C.H., )
) Supreme Court No. S-9387
Appellant, )
) Superior Court No.
v. ) 3AN-98-4143 CI
)
T.S., ) O P I N I O N
)
Appellee. ) [No. 5449 - August 17, 2001]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
John E. Reese, Judge.
Appearances: Ronald L. Bliss, Bliss, Wilkens &
Clayton, Anchorage, for Appellant. Richard W. Maki and David H.
Shoup, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
Tabitha S. [Fn. 1] alleged that her step-grandfather,
Lance H., sexually abused her during five different periods of
time, beginning when she was three and continuing through the age
of fourteen. After a civil trial, a jury found Lance liable for
sexual abuse of a minor and intentional infliction of emotional
distress.
This appeal presents two questions. The first is whether
the trial court abused its discretion by allowing Tabitha's
testimony of alleged abuse, memories of which she claimed under
oath that she always remembered, over Lance's objection that her
memories were "recovered memories" and thus false. The second
question is whether the trial court abused its discretion by
allowing the expert opinion testimony of Dr. Nancy Fleisher that
explained the profile of behaviors of known child victims of sexual
abuse, the extent to which Tabitha exhibited those behaviors, and
the probability that Tabitha had been abused.
Our review of the record and the thorough briefing and
argument presented by counsel for both parties leads us to conclude
that (1) sufficient evidence supports the admissibility of
Tabitha's testimony as testimony based on personal knowledge, and
(2) Dr. Fleisher's expert testimony was proper rebuttal testimony
that did not vouch for Tabitha's veracity. The superior court
therefore did not abuse its discretion in admitting both Tabitha's
and Dr. Fleisher's testimony. Accordingly, we affirm the verdict
and judgment.
II. FACTS AND PROCEEDINGS
A. Facts
Lance H. is Tabitha S.'s step-grandfather; he married
Tabitha's maternal grandmother before Tabitha was born. Tabitha
never lived with Lance and his wife, but she did visit with them on
five occasions, when she was between ages three and fourteen.
Tabitha claimed that Lance sexually abused her during each of these
visits.
The first period of alleged abuse occurred when Tabitha
was three years old and she stayed with Lance and his wife in
Norway. During this time, Tabitha testified that Lance fondled her
while giving her a bath: she stated that while he was washing her
he touched her body and "kind of" put his fingers inside her. She
also testified to two instances in her bedroom: in one he fondled
her and digitally penetrated her; in the other he had her kiss his
penis.
The second period was when Tabitha, then ten years old,
visited Lance and his wife in Pitt Meadows, British Columbia.
Tabitha testified that Lance committed numerous sexual assaults
involving oral and vaginal penetration during this visit. She also
testified that Lance told her "this isn't happening . . ." while he
was abusing her.
Tabitha testified that the third period occurred when she
was twelve and again visiting with Lance and his wife in Pitt
Meadows. She claimed that Lance forced her to perform oral sex
upon him in the storage room at the back of Lance's deli during
that visit.
The fourth period of abuse to which Tabitha testified
occurred when she was thirteen. Lance came to Palmer to visit
while Tabitha was recovering from a broken leg. Tabitha testified
to an instance of oral sex.
The fifth and last period of abuse occurred in 1993 while
Tabitha was visiting Lance and his wife in Pitt Meadows with her
younger sister. Tabitha testified that Lance entered the laundry
room while Tabitha was doing laundry and that he raped her against
the dryer.
Lance denies that he committed any of the above acts. In
support of his innocence, Lance points to Tabitha's extensive diary
entries as evidence that the memories to which she testified were
actually based on false memories that she had recovered with the
aid of counselors, either in person or through self-help books.
The first reference in Tabitha's diaries to her belief
that she had been sexually assaulted was July 15, 1993, after her
final visit with Lance and his wife in Canada. Tabitha was
fourteen years of age when she wrote the diary entry. Other diary
entries between July and November 1993 reflect dreams about rape,
statements that she realized that she had been molested, and
references to these events in a draft letter to her mother. In
November 1993 Tabitha purchased the book The Courage to Heal, a
book about recovering from childhood sexual abuse, at the
suggestion of an aunt with whom she had discussed her concerns
about abuse. Thereafter, the diary entries through 1997 reflect
Tabitha's internal dialogue about what she thought had happened --
including her own difficulties believing what she thought she
remembered.
At trial, Tabitha also testified about numerous instances
of inappropriate sexual conduct with her by others, including by
another grandfather. Tabitha testified that her maternal
grandfather, C.D., fondled and touched her inappropriately when she
was eight years old, for a period of about a month, by inserting a
pen light, and maybe scissors, into her vagina as well as
masturbating in front of her. C.D. admitted to this conduct.
Other instances of inappropriate sexual conduct to which
Tabitha testified included several incidents from when she was five
until she was a teenager with boys who were close to her age at the
time. When she was five, a boy she was with got undressed and was
trying to undress her, but her mother intervened. When Tabitha was
twelve and visiting Lance and his wife in Pitt Meadows, she went
swimming in a pool when a group of teenage boys came up to her.
One of the boys put his fingers under her swimsuit and penetrated
her. At age sixteen, Tabitha was asked to watch a movie with the
son of her father's landlord. She went to the boy's room where
they kissed. She testified that the boy pushed her on the bed, but
that she pushed back and ran out. The last instance occurred
during a visit with an ex-boyfriend in Juneau when he pinned her
down and tried to have sex with her, but she pushed him off.
B. Proceedings
In 1998, when Tabitha was nineteen years old, she filed
suit against Lance, alleging numerous instances of childhood sexual
abuse, all of which Lance denied.
In April 1999 Lance filed his first motion in limine in
which he sought to preclude Tabitha "from testifying regarding any
incident of sexual abuse, for the reason that such testimony would
constitute 'recovered memory.'" Tabitha opposed this motion
arguing that her allegations were "not based on recovered memory"
but rather on her own personal knowledge, and supported this with
her deposition testimony. Superior Court Judge John E. Reese
denied Lance's first motion in limine, prior to jury selection,
stating
As to the recovered memory issues, those I
think are -- the way they're raised in this case, as I understand
it, that's something that is within the province of the jury, so we
will hear evidence on that. So that would also be denied. . . .
After Tabitha testified at trial, Lance moved to strike her
testimony. The trial court denied the motion, taking it as a
motion to reconsider the earlier ruling on the first motion in
limine. Lance also moved at that time for a directed verdict,
which was denied.
Lance sought to exclude the expert testimony of Dr. Nancy
Fleisher regarding the typical behavior or profile of a victim of
childhood sexual abuse and whether Tabitha's conduct was consistent
with that profile. The trial court denied Lance's motion regarding
sexual abuse profile evidence, stating that "that kind of evidence
can come in as response but not as direct evidence." During trial,
Lance objected to specific portions of Dr. Fleisher's deposition
testimony. The trial court denied all of these objections without
discussion, and Dr. Fleisher's videotaped deposition was presented
to the jury at trial.
After three days of deliberation, which included
overcoming an impasse, the jury found Lance liable for sexual abuse
of a minor and intentional infliction of emotional distress. The
special verdict form included no specific findings as to any
particular instance of alleged abuse or as to the quality of
Tabitha's memories.
Lance appeals the admission of Tabitha's testimony
regarding memories of childhood sexual abuse and of Dr. Fleisher's
expert testimony.
III. STANDARD OF REVIEW
We review "the trial court's admission or exclusion of
evidence for abuse of discretion" and reverse "such a decision only
when left with the definite and firm conviction that the trial
court erred in its decision." [Fn. 2] We review admissibility of
expert testimony for an abuse of discretion. [Fn. 3]
IV. DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Admitting
Tabitha's Testimony of Childhood Sexual Abuse by Lance.
1. There was sufficient evidence that Tabitha's
testimony was based on personal knowledge.
Lance argues that Tabitha's testimony is based on
memories which "originated in dreams and flashbacks" and is
therefore based on "recovered" memories. He contends that
testimony based on recovered memories requires preliminary
reliability findings by the trial court.
Tabitha argues that her claim was not based on a theory
of recovered memories because she always remembered the events, but
did not always have the words to describe the events. She
therefore argues that no preliminary findings were required for
testimony based on personal knowledge.
There are two general categories of cases in which adult
survivors of childhood sexual abuse file civil claims. [Fn. 4] The
first is where the adult remembers the abuse but did not come to
appreciate the connection between the childhood abuse and the
injuries she or he suffers as an adult. [Fn. 5] The plaintiffs in
these "appreciation" cases seek to prove their case on the basis of
their personal knowledge. [Fn. 6]
The second category is the "recovered memory" case, where
the adult has no recollection of the abuse until years later. [Fn.
7] In general, the plaintiffs in recovered memory cases recall
their memories of childhood abuse many years or decades after the
fact and often after therapy designed to bring back those memories
or after another triggering event. [Fn. 8] These plaintiffs seek
to offer scientific evidence of the validity of their recovered
memories in the form of expert testimony, which in turn raises
issues of admissibility of scientific evidence. [Fn. 9]
In either type of case, allegations of childhood sexual
abuse raise serious concerns about the balance between allowing an
alleged victim her or his day in court while protecting the accused
against unreliable testimony. Recovered memories of childhood
sexual abuse may be problematic in terms of scientific reliability,
but when claims are brought within the statute of limitations by a
young adult who remembers but does not appreciate until later the
causal connection between the conduct and its psychological or
emotional effect, the analysis for scientific evidence is not
implicated. The evidence rules provide ample protection against
unreliable or overly prejudicial evidence when it is based on
personal knowledge.
We conclude that the trial court did not abuse its
discretion in declining to treat this as a recovered memory case.
Tabitha claimed under oath that her testimony was based on personal
knowledge. She made no claim that she recovered memories. She
claimed that she always remembered the abuse but did not appreciate
the consequences of that conduct until she was a teenager. And she
presented evidence that she was exploring her memories of abuse
before she acquired any self-help books or began attending any
support groups. We therefore assess the admissibility of her
testimony under Alaska Evidence Rules 602, 104(a), and 403.
2. Tabitha's testimony was sufficiently reliable.
The trial court determined that the issue of Tabitha's
memories, as raised in this case, did not warrant exclusion of her
testimony. But Lance contends that Tabitha's memories were not
"ordinary" because they were the result of "dreams and flashbacks,
aided by suggestive literature and counseling." Lance argues that
the trial court erred by failing to determine the reliability of
Tabitha's testimony and analogizes this case to hypnosis cases
because of the element of suggestiveness in false recall. He
argues that the trial court should act as a gatekeeper to
scrutinize memory evidence, and that Alaska Evidence Rule 104(a)
[Fn. 10] requires examination of memory testimony, not just in
hypnosis cases, but where a witness has been subjected to
suggestive procedures that raise a substantial risk of memory
distortion.
Tabitha argues that no preliminary evidentiary hearing
was required under Rule 104(a) because she was not relying on the
scientific theory of recovered memory. Tabitha contends that the
personal knowledge requirement of Alaska Evidence Rule 602 was
satisfied by her deposition testimony submitted as an exhibit to
her opposition to Lance's first motion in limine, and that
questions about the accuracy and reliability of her memory should
be addressed through cross-examination and impeachment, not
exclusion. Tabitha notes that Lance was given full opportunity to
rebut Tabitha's testimony, including his presentation of expert
testimony by Dr. Elizabeth Loftus about the problems of recovered
memories. [Fn. 11]
Evidence Rule 602 provides in part that "[a] witness may
not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the
matter. Evidence to prove personal knowledge may, but need not,
consist of the witness'[s] own testimony." The commentary to the
Alaska Rules of Evidence states that "personal knowledge is not an
absolute but may consist of what the witness thinks he knows from
personal perception. As long as there is some evidence that the
witness has personal knowledge, the court must let the jury decide
whether or not the witness is really knowledgeable." [Fn. 12] And
the Alaska Court of Appeals concluded in Tucker v. State [Fn. 13]
that defects in recollection do not generally render witness
testimony inadmissible but are instead a proper subject for cross-
examination and impeachment. [Fn. 14] We agree with that
conclusion. The sufficiency of the evidence required to support a
finding that the witness has personal knowledge is thus minimal.
Only where the court finds that "no reasonable trier of fact could
believe that the witness perceived what he claims to have
perceived" may the court reject the testimony. [Fn. 15] That is
not the case here.
Tabitha's deposition testimony is sufficient to meet the
foundational requirement for personal knowledge. [Fn. 16] Once
that threshold is met, it is for the jury to weigh the reliability
of the evidence and witness credibility. [Fn. 17] The reliability
of evidence is tested through adversarial methods. [Fn. 18] And
the "[c]redibility of witnesses is exclusively within the province
of the trier of fact." [Fn. 19]
We conclude that the trial court was not required to make
preliminary findings because Tabitha's deposition testimony
regarding the nature of her memory was sufficient to show personal
knowledge under Rule 602. As such, her testimony was properly
subject to the traditional tests of cross-examination and
impeachment to allow the jury to determine her reliability and
credibility.
3. Tabitha's testimony was admissible under Evidence
Rule 403.
Even otherwise admissible evidence may be excluded if its
probative value is outweighed by the danger of unfair prejudice.
[Fn. 20] Lance argues that Tabitha's testimony is "inherently
unreliable" and that the trial court should have excluded it under
Rule 403 because her memory was "subject to the risk of
confabulation through suggestibility from other sources." Lance
contends that Tabitha's diaries reveal a slow, four-year evolution
of her beliefs as to the abuse to which she thought she had been
subjected, which could only be the result of the influence of the
book The Courage to Heal and of her support group. He points to
the continued uncertainty reflected in her diaries into mid-1997 as
evidence of the distortion of her memories. Lance further argues
that Tabitha's testimony is tainted because it is impossible to
distinguish a true memory from a false one without other
corroborative evidence. He then argues that there is no
corroborative evidence because the only evidence is Tabitha's own
statements of abuse. Lance argues that the prejudice from the
"mere stigma of the accusation" of sexual abuse is disproportionate
and contends that the concern here is the suggestibility of human
memory.
Tabitha contends that the prejudice from her testimony is
not the kind of "unfair" prejudice Rule 403 is designed to guard
against. As to Lance's argument that corroborative evidence is
required, Tabitha argues that corroboration was not required in
this case and notes that it is common that there are no
eyewitnesses to sexual abuse. But even if corroboration were
required, Tabitha argues that her testimony was corroborated by the
following: (1) her mother's testimony regarding change in Tabitha's
behavior after visits with Lance and his wife; (2) the testimony of
an employee of Lance that Tabitha looked sad and lonely; (3)
Tabitha's sister's testimony about Tabitha's protective conduct
during their visit with Lance and his wife; and (4) the testimony
by Tabitha's girlfriend about her conversation with Tabitha, just
days after Tabitha's last visit to Pitt Meadows, in which Tabitha
made reference to concerns about abuse.
We conclude that prejudice from the risk of
suggestibility does not outweigh the probative value of the
testimony in this case. Tabitha's testimony was certainly
prejudicial, but it was not unfairly so. [Fn. 21] The risk of
suggestibility here is not the influence or suggestions of ongoing
one-on-one therapy or hypnosis; instead, it stems from Tabitha
purchasing and reading a book (at the recommendation of an aunt
after discussions about Tabitha's concerns about abuse) and from
attending counseling and support group sessions. This is no
different from the suggestibility to which people are subject in
their everyday lives. Lance is correct that allegations of sexual
abuse are stigmatizing, but in a case where sexual abuse is the
basis for the claim, evidence of such abuse that otherwise meets
the requirements of the evidence rules cannot be kept out merely
because it has a stigmatizing effect.
In summary, this is not a case that must be analyzed
based on a recovered memory theory. Here, the claims were brought
based on personal knowledge, of which there is sufficient evidence,
and the problems of the reliability of memories were properly used
as a defense. In a case like this that is brought relatively close
in time to the alleged abuse there is no reason to take credibility
and reliability assessments of the witness's personal knowledge
from the jury.
B. The Coon Analysis Is Not Applicable to Dr. Fleisher's
Testimony.
Lance argues that the expert testimony presented by Dr.
Nancy Fleisher of child sexual abuse profile behaviors should be
deemed inadmissible under State v. Coon [Fn. 22] because it lacks
scientific validity.
Tabitha argues that Dr. Fleisher's expert opinion
testimony was based on "her overall professional evaluation . . .
in light of her training and experience as a clinical
psychologist." She notes our conclusion in Broderick v. King's Way
Assembly of God Church that expert opinion about sexual abuse
victims is generally accepted, [Fn. 23] and contends that this
refutes Lance's contention that such profile evidence is not
scientifically valid.
Dr. Fleisher's testimony is the kind of opinion testimony
by a doctor about child sexual abuse that we have previously found
to satisfy the admissibility requirements for expert testimony.
[Fn. 24] Her testimony was based on her clinical observations of
Tabitha. Such testimony is admissible if:
(1) the evidence is relevant (Rule 401);
(2) the witness is qualified as an expert
(Rule 702(a));
(3) the trier of fact will be assisted (Rule
702(a));
(4) the facts or data upon which the opinion
is based are of a type reasonably relied upon by experts in the
particular field in forming opinions upon the subject (Rule 703);
and
(5) the probative value of the evidence is
not outweighed by its prejudicial effect (Rule 403).[ [Fn. 25]]
We conclude that the trial court could properly have taken judicial
notice of the admissibility of such evidence based on our opinion
in Broderick, and that the scientific validity of her testimony was
not implicated in this case. [Fn. 26]
C. The Trial Court Did Not Err in Admitting the Expert
Testimony of Dr. Fleisher Because It Was Not Improper Profile
Testimony that Vouched for Tabitha's Credibility.
Lance argues that it was prejudicial error to allow the
testimony of Dr. Fleisher because it (1) told the jury that Tabitha
fit the profile of a victim of sexual abuse and (2) vouched for
Tabitha's credibility.
Tabitha contends that Dr. Fleisher's testimony was
admissible to rebut Lance's claim that Tabitha fabricated her
allegations of abuse and that it did not improperly vouch for
Tabitha's credibility.
1. Background of child sexual abuse profile evidence
In child sexual abuse cases, there is usually little
corroborating physical evidence of the alleged abuse; the child may
not report the abuse until several years have passed and the matter
often comes down to the alleged victim's word against the word of
the alleged abuser. [Fn. 27] The profile of a sexually abused
child was first proposed by Dr. Roland Summit in 1983 as Child
Sexual Abuse Accommodation Syndrome (CSAAS). [Fn. 28] The CSAAS
model was designed to aid in treatment of children already known to
have been abused, not to diagnose abuse. [Fn. 29] Thus profile
testimony is not to be used to prove that abuse has occurred. [Fn.
30] On the other hand, evidence of post-traumatic stress disorder
may be presented. [Fn. 31]
There are generally four categories of expert testimony
that might be presented in these cases: (1) an explanation of
typical behaviors or symptoms of known sexually abused children
that are apparently inconsistent with abuse, such as delayed or
inconsistent reporting, to rebut claims that those behaviors show
no abuse occurred; (2) an explanation that some behaviors are
commonly observed in sexually abused children and that the child in
the case fits those behaviors; (3) expert opinion that the child
has been abused based on the expert's evaluation; and (4) expert
opinion, based on his or her evaluation, that the child has been
abused and that the allegations of abuse are therefore truthful.
[Fn. 32] For purposes of discussion, we label these categories of
testimony respectively as (1) rehabilitative or rebuttal testimony;
(2) profile or syndrome testimony; (3) ultimate issue testimony
(under Alaska Evidence Rule 704); and (4) vouching testimony.
Whether Dr. Fleisher's testimony was proper boils down to when
expert testimony on an ultimate issue becomes improper vouching
testimony.
2. Admissibility of expert testimony in child sexual
abuse cases
In Alaska, profile evidence of victims of sexual abuse is
admissible and may include expert opinion testimony that the
alleged victim's behaviors are consistent with abuse and conform to
a clinical finding of abuse. [Fn. 33] But it must be in response
to a claim that the conduct in question is inconsistent with claims
of sexual abuse, and it may not go so far as to vouch for the
credibility of the complaining witness. [Fn. 34]
Under Broderick, an expert may express an opinion that a
person was abused and that the behaviors of that person conform to
clinical findings of abuse. [Fn. 35] In Broderick, we reversed a
grant of summary judgment, concluding that a triable issue of fact
had been raised by a doctor's affidavit that had been rejected by
the superior court. We noted that expert testimony that "purports
to establish by scientific principles that another is telling the
truth treads on dangerous legal ground." [Fn. 36] However, we
concluded that expert testimony in which the expert "stated his
opinion that [the child] was abused and that her behavior . . . was
clinically consistent with the finding that she had been sexually
molested" did not vouch for the child's credibility. [Fn. 37] We
also concluded that under Evidence Rule 702, expert testimony that
expresses "an opinion on the issue of whether the child had, in
fact, been sexually assaulted or abused" was proper because it
enlightened the jury on a "critical and relevant subject of an
esoteric nature." [Fn. 38]
Profile testimony may be used to rebut a claim that the
complaining witness is lying about the alleged abuse in order to
provide an alternative explanation to the jury about seemingly
self-impeaching behaviors, but it may not vouch for the witness's
credibility. [Fn. 39] In Russell v. State, the court of appeals
noted that a party may not offer "evidence that there is a
psychological 'profile' characteristic of sexual abuse or sexual
assault victims to prove that the victim in a particular case fits
this profile, and thus that the victim must be telling the truth
when he or she claims to have been abused or assaulted." [Fn. 40]
The Russell court did conclude, however, that such "profile"
testimony is admissible "in response to a defense claim that the
victim's conduct was inconsistent with a claim of sexual assault or
sexual abuse." [Fn. 41] In Russell, profile testimony of battered
woman syndrome was admissible because "it explained why [the
complaining witness] might stay in an abusive relationship and
place herself in situations where she could be abused." [Fn. 42]
The court also concluded that such testimony "explained why [the
complaining witness] might not physically resist Russell's attempt
to have sexual intercourse with her." [Fn. 43]
On the other hand, profile testimony in which an expert
states that a person fits the profile and that the person is
therefore telling the truth is impermissible vouching testimony.
[Fn. 44] Examples of such impermissible testimony include
testimony that an alleged victim's report is consistent with valid
reports of abuse [Fn. 45] and testimony that a detailed account of
abuse means such abuse occurred. [Fn. 46] In Cox v. State, the
court of appeals concluded that expert testimony that "reports of
sexual abuse were not inconsistent with the kinds of reports which
other young victims of sexual abuse have made" was proper insofar
as it rebutted defense inferences that the complaining witness's
behavior indicated she was lying about the alleged abuse. [Fn. 47]
But the expert also vouched for the alleged victim's credibility
when he testified that "because [the alleged victim] gave a
detailed account of the sexual abuse, [she] had been sexually
abused," and this approached plain error. [Fn. 48] The court of
appeals held that the trial court's refusal to allow surrebuttal to
this testimony was improper given the highly prejudicial nature of
the testimony. [Fn. 49]
3. Dr. Fleisher's profile testimony was properly
admitted as rebuttal testimony.
While conceding that expert testimony that sexual abuse
victims fit a psychological profile is admissible as rebuttal
evidence, Lance argues that it is inadmissible in this case because
Dr. Fleisher's testimony "went beyond the limits of permissible
'profile' testimony."
Tabitha's opposition to Lance's arguments on profile
testimony breaks into two parts: (1) Dr. Fleisher's testimony "as
to the behavior patterns commonly exhibited by sexual abuse
victims," and (2) Dr. Fleisher's testimony that "[Tabitha]'s
symptoms were consistent with a history of sexual abuse and that it
was probable that she had been abused." As to the behavior pattern
testimony, Tabitha notes that Lance's defense consisted, in part,
of his contention that Tabitha's behaviors and diaries were proof
that her claims against him were false and the product of her
imagination. She argues that she was entitled to respond to
Lance's defense with "expert testimony to show that her conduct was
not inconsistent with the occurrence of the claimed abuse." [Fn.
50] Tabitha next contends that when Lance claimed (through the
testimony of Dr. Younggren) that her undisputed symptoms were
caused by factors other than sexual abuse by Lance, she was then
entitled to rebut this claim with the testimony of Dr. Fleisher
that her symptoms were consistent with a history of severe sexual
abuse, not necessarily explained by the other instances, and as to
the probability that she had been abused.
Because Lance claimed that Tabitha's behaviors were
inconsistent with her claims of abuse by him and showed that her
memories were false and that her symptoms were caused by the
conduct of others, it was not an abuse of discretion for the trial
court to allow Dr. Fleisher's testimony for the purpose of
rebutting those claims. It is undisputed that Tabitha was abused
by another grandfather and that she experienced other instances of
inappropriate sexual conduct by other people. However, Dr.
Fleisher's opinion testimony as to profile evidence, whether
Tabitha fit that profile, and whether it was likely abuse had
occurred, was admissible to rebut Lance's defense.
4. Dr. Fleisher's testimony did not improperly vouch
for Tabitha's credibility.
Lance argues that Dr. Fleisher's testimony was used to
bolster Tabitha's truthfulness in her claims that Lance had abused
her by the presentation of expert opinions that vouched for
Tabitha's behavior and testimony.
Tabitha agrees that case law does not permit an expert to
vouch for another witness's credibility. But she argues that the
challenged testimony does not fall within this proscription. [Fn.
51]
Alaska Evidence Rule 704 allows expert opinion testimony
on an ultimate issue provided it assists the trier of fact under
Rule 702 and is based on facts or data reasonably relied on by
experts in the particular field under Rule 703. Dr. Fleisher was
asked by Tabitha's counsel to conduct an evaluation of Tabitha.
Dr. Fleisher has a Ph.D. in clinical psychology, and her
qualifications as an expert are not in dispute. Among other
professional activities, in conjunction with acting as a consultant
to agencies, she works with children who have been physically,
sexually, or emotionally abused. Dr. Fleisher reviewed existing
reports and conducted numerous psychological tests of Tabitha, as
well as a clinical interview. When asked if the symptoms she
observed in Tabitha were the kind she had seen before in her
practice, she answered in the affirmative.
For the following reasons, we conclude that Dr.
Fleisher's testimony was based on her personal observations and
clinical experience, and as such both assisted the trier of fact
and met the requirements of Rule 703. We also conclude that Dr.
Fleisher's expert testimony did not improperly comment on the
veracity of Tabitha because, as presented in this case, it was
proper ultimate issue testimony.
a. Probability testimony
Tabitha argues that Dr. Fleisher's testimony that it was
probable that Tabitha had been sexually abused is not improper
comment on veracity even though it does tend to corroborate
Tabitha's testimony. She also argues that Lance waived any claim
of error to Dr. Fleisher's testimony regarding her opinion as to
the probability that Tabitha had been sexually abused because he
opened the door on cross-examination and then emphasized it in his
closing argument.
The challenged testimony is as follows:
Cross-Examination of Dr. Fleisher:
Q: So it makes it very difficult, don't you
agree, for anyone to know the truth of what actually occurred in
this case, under the circumstances as you know them?
A: I'm not sure if--are you asking if it's
difficult to know the details of what happened?
Q: For the truth of whether or not [Lance
H.] actually sexually abused [Tabitha S.]?
A: It is difficult, yes.
Q: . . . [Tabitha S.] is mistaken in her
belief that she was abused by [Lance H.]?
A: Is it possible? Was your question, is it
possible?
Q: Yes, let me restate the question so it's
clear. Is it possible that [Tabitha S.] is mistaken in her belief
that she was abused by [Lance H.]?
A: Yes, it is possible.
Redirect Examination
Q: Doctor, you've just testified that it's
possible, but is it likely?
A: No, it's not probable. Like I said,
anything is possible. And what you look for, again, is a cluster
of symptoms. When you say, is it possible that the depression was
created by something else? Yes, it's possible. Is it possible
that the anxiety was created by something else? Yes, it's
possible. That's why we don't look at just one symptom or one
trait. We look at the entire personality structure. And if you
look at her entire personality structure, it fits very closely to
a victim of severe and prolonged sexual abuse.
Q: Okay.
A: So it's possible that she doesn't
remember the details or has remembered some and not others, but is
it probable that she was not sexually abused? I don't think so.
I think it's probable that she was severely sexually abused.
Recross-Examination
Q: My question was, can the psychological
sciences determine who caused the sexual abuse . . .
A: No.
Q: . . . in a sexual abuse victim?
A: No.
Lance objected specifically to the redirect questioning by
Tabitha's attorney. But the court overruled the objection.
Dr. Fleisher's testimony does not constitute
impermissible vouching because her opinion, which was based on her
direct observations, review of existing reports, analysis of the
numerous psychological tests she gave Tabitha, and her own clinical
interview of Tabitha, did not directly comment on the veracity of
Tabitha's allegations. She conceded that it was possible that
Tabitha was mistaken about the alleged abuse by Lance, and that it
was possible that Tabitha's symptoms had other causes. But it was
her opinion that Tabitha fit the profile of one who has been
severely abused and that it was probable that such abuse had
occurred. Dr. Fleisher did not state that she thought Tabitha was
telling the truth, or that her opinion was based on Tabitha's
statements. Her opinion was based on facts and data reasonably
relied on by experts in her field and could reasonably be construed
to assist the trier of fact, especially where opposing expert
testimony is also offered, as it was in this case.
Most importantly, Lance had full opportunity for cross-
examination, re-cross, and impeachment. And it was during cross-
examination that Lance's attorney asked whether it was possible
that Tabitha was mistaken about the alleged abuse. The province of
the jury to determine credibility was not invaded.
Dr. Fleisher's expert opinion testimony as to the
probability that Tabitha had been abused meets the requirements of
the evidence rules, does not constitute improper vouching, and is
the kind of testimony allowed under Broderick. [Fn. 52] Dr.
Fleisher's testimony may have embraced an ultimate issue but it did
not cross the line to improper vouching.
b. Consistent behavior testimony
Lance contends that Dr. Fleisher's testimony that
Tabitha's symptoms were consistent with sexual abuse improperly
vouched for the veracity of Tabitha's claims.
As discussed above, profile testimony is admissible when
offered to rebut a defense claim that the alleged victim's conduct
was seemingly inconsistent with abuse. [Fn. 53] Lance's defense
included such a claim. Thus, while Dr. Fleisher's rebuttal
testimony that Tabitha's behaviors were consistent with the profile
does tend to support Tabitha's testimony, it is testimony
admissible under Broderick [Fn. 54] and does not invade the
province of the jury to assess credibility in this case. The
superior court did not abuse its discretion in allowing this
testimony.
c. Flashback testimony
Lance argues that Dr. Fleisher's testimony that Tabitha
is "actually tormented by regular and frequent flashbacks of the
traumatizing sexual abuse that she talked about" directly vouches
for Tabitha's credibility.
Tabitha contends that Lance's objection to Dr. Fleisher's
testimony that Tabitha suffered from flashbacks is meritless
because he expressly confirmed, including in his opening statement,
that he was not contesting her symptoms. In addition, she argues
that Lance "affirmatively embraced Tabitha's flashbacks as part of
his defense" and should thus be deemed to have waived any objection
to this testimony.
While Lance has a point that no person can actually know
what torments another, in this case the parties do not dispute the
existence of flashbacks. The statement therefore does not serve to
vouch for Tabitha's credibility because both parties admitted that
she, in fact, had flashbacks. There was no abuse of discretion in
allowing this testimony.
5. Dr. Fleisher's testimony was not unfairly
prejudicial.
Lance argues that cases like this one are "essentially a
'swearing match' . . . [and that] victim profile evidence is
unfairly prejudicial."
The challenged testimony, while prejudicial, is not
unfairly so. It was not improper profile testimony, it was subject
to cross-examination and refutation by other expert witnesses, and
it did not improperly vouch for Tabitha's veracity. And it fits
within the rehabilitative or rebuttal use of profile testimony
allowed in Alaska. [Fn. 55] Lance opened the door to the
probability testimony by asking Dr. Fleisher if Tabitha could be
mistaken in her belief that the alleged abuse by Lance had
occurred. And other experts in this case, Drs. Loftus and
Younggren, testified that it was not possible for them to determine
whether or not the abuse had in fact occurred. Finally, the jury
was given an instruction that they were the sole judge of whether
they believed an expert's testimony.
The use of profile evidence may suggest to the jury that
such evidence is diagnostic of sexual abuse and that the
complaining witness's behavior consistent with the profile is
affirmative evidence of sexual abuse. [Fn. 56] However, we
conclude that any prejudice by such testimony in this case is
outweighed by its probative value.
V. CONCLUSION
The trial court did not abuse its discretion in allowing
the testimony of either Tabitha or Dr. Fleisher. The evidence
supports the conclusion that Tabitha's testimony was properly
admitted as testimony based on personal knowledge. And the
challenged expert testimony was properly admitted as rebuttal
profile evidence and did not constitute improper vouching. The
verdict and judgment are therefore AFFIRMED.
FOOTNOTES
Footnote 1:
Because of the sensitive nature of the factual allegations in
this case, we employ pseudonyms throughout this opinion in
referring to the parties.
Footnote 2:
Belluomini v. Fred Meyer, Inc., 993 P.2d 1009, 1016 (Alaska
1999) (citation omitted).
Footnote 3:
See State v. Coon, 974 P.2d 386, 398 (Alaska 1999).
Footnote 4:
These are to be distinguished from suits brought by the
alleged perpetrator against the victim's psychotherapist based on
the claim that false memories of alleged abuse were implanted or
created during therapy. See, e.g., Trear v. Sills, 82 Cal. Rptr.
2d 281 (App. 1999).
Footnote 5:
See, e.g., Messina v. Bonner, 813 F. Supp. 346, 348 (E.D. Pa.
1993); Parker v. Board of Educ., 582 N.W.2d 859, 863 (Mich. App.
1998).
Footnote 6:
See id.
Footnote 7:
See, e.g., Logerquist v. McVey, 1 P.3d 113, 115 (Ariz. 2000);
Doe v. Roe, 955 P.2d 951, 956-60 (Ariz. 1998); State v.
Quattrocchi, 681 A.2d 879, 881-84 (R.I. 1996); Lemmerman v. Fealk,
534 N.W.2d 695, 696 (Mich. 1995).
Footnote 8:
See, e.g., Doe, 955 P.2d at 957.
Footnote 9:
See, e.g., Logerquist, 1 P.3d at 115.
Footnote 10:
Alaska Rule of Evidence 104(a) provides in relevant part that
"[p]reliminary questions concerning the qualification of a person
to be a witness . . . shall be determined by the court." The
commentary to Rule 104(a) allows the trial judge to act as a
preliminary trier of fact "when relevant evidence may be excluded
under some rule of evidence and factfinding is necessary in the
application of the rule."
Footnote 11:
While the trial court eventually decided that this was not a
recovered memory case, Lance was given a full opportunity to
present evidence to support his defense that Tabitha did not have
personal knowledge of the events about which she testified.
Footnote 12:
Commentary to Alaska R. Evid. 602 (citation omitted).
Footnote 13:
721 P.2d 639 (Alaska App. 1986).
Footnote 14:
Id. at 642.
Footnote 15:
27 Charles Alan Wright & Victor James Gold, Federal Practice
and Procedure sec. 6027, at 244 (1990).
Footnote 16:
When asked during her deposition if she had always had
memories of abuse, Tabitha answered in the affirmative. She also
said that as she got older she acquired the words to describe what
she had experienced.
Footnote 17:
See Sherbahn v. Kerkove, 987 P.2d 195, 200 (Alaska 1999).
Footnote 18:
See Reutter v. State, 886 P.2d 1298, 1305 (Alaska App. 1994).
Footnote 19:
Broderick v. King's Way Assembly of God Church, 808 P.2d 1211,
1220 (Alaska 1991) (internal quotation marks and citation omitted).
Footnote 20:
See Alaska R. Evid. 403.
Footnote 21:
For example, Tabitha's most questionable, and prejudicial,
claims are from her first visit with Lance and his wife in Norway
when she was three. Caregivers to young children bathe them and in
so doing engage in intimate touching of the child. If the bath
incident were the only one Tabitha remembered from age three, then
it might be reasonable to exclude such testimony by a nineteen-
year-old as unfairly prejudicial. However, in this case, there is
evidence that Tabitha remembered other instances of inappropriate
conduct from that time period.
Footnote 22:
974 P.2d 386 (Alaska 1999).
Footnote 23:
808 P.2d at 1216.
Footnote 24:
See id.
Footnote 25:
Coon, 974 P.2d at 393.
Footnote 26:
See id. at 398 ("[W]hen an area of expertise is well-known
and has been fully considered by the courts, a trial court may take
judicial notice of its admissibility."). We take this opportunity
to note that we have not yet decided how far Coon extends; for
example, we have not had to decide whether it applies to scientific
techniques or theories beyond those that are novel. However, the
parties have not raised that issue here.
Footnote 27:
See, e.g., State v. W.L., 650 A.2d 1035, 1038 (N.J. Super.
App. Div. 1995) ("The trial was, in effect, a credibility contest
between father and daughter."); see also Lisa R. Askowitz & Michael
H. Graham, The Reliability of Expert Psychological Testimony in
Child Sexual Abuse Prosecutions, 15 Cardozo L. Rev. 2027, 2033-34
(1994); Rosemary L. Flint, Note, Child Sexual Abuse Accommodation
Syndrome: Admissibility Requirements, 23 Am. J. Crim. L. 171, 178-
79 (1995).
Footnote 28:
See generally Roland C. Summit, The Child Sexual Abuse
Accommodation Syndrome, 7 Child Abuse & Neglect 177 (1983).
Footnote 29:
See, e.g., id.; see also Askowitz & Graham, supra note 27, at
2039-40; Flint, supra note 27, at 176-77.
Footnote 30:
See id.; see also State v. J.Q., 599 A.2d 172, 186-87 (N.J.
Super. App. Div. 1991).
Footnote 31:
The experts in this case discussed post-traumatic stress
syndrome, but noted that they had not diagnosed Tabitha as having
it because the existence of a triggering event was in dispute and
to be decided by the jury. See generally Broderick v. King's Way
Assembly of God Church, 808 P.2d 1211, 1216-17 (Alaska 1991).
Footnote 32:
See Askowitz & Graham, supra note 27, at 2035.
Footnote 33:
See Broderick, 808 P.2d at 1216.
Footnote 34:
See Russell v. State, 934 P.2d 1335, 1343 (Alaska App. 1997).
Footnote 35:
808 P.2d at 1216.
Footnote 36:
Id. (quoting Rodriquez v. State, 741 P.2d 1200, 1204 (Alaska
App. 1987)).
Footnote 37:
Id.
Footnote 38:
Id. at 1217 (quoting Townsend v. State, 734 P.2d 705, 708
(Nev. 1987)).
Footnote 39:
See Russell, 934 P.2d at 1343.
Footnote 40:
Id. at 1343.
Footnote 41:
Id.
Footnote 42:
Id. at 1344.
Footnote 43:
Id.
Footnote 44:
See id. at 1343.
Footnote 45:
See Nelson v. State, 782 P.2d 290, 297-99 (Alaska App. 1989)
(concluding that expert testimony, that victims' reports of sexual
abuse were consistent with valid reports of sexual abuse, was
inadmissible because it "effectively informed the jury that, in his
expert opinion, [they] were telling the truth and had been abused
by Nelson").
Footnote 46:
See Cox v. State, 805 P.2d 374, 378-79 (Alaska App. 1991).
Footnote 47:
Id. at 378.
Footnote 48:
Id.
Footnote 49:
See id. at 379.
Footnote 50:
Tabitha notes that Lance's own expert testified that abusers
often state "it's not real" or "it's not happening." She also
notes that another of her experts, Dr. Harper, also testified that
Tabitha's symptoms were consistent with abuse by Lance, but that
Lance has not appealed the admissibility of that testimony.
Footnote 51:
Tabitha claims that Lance did not properly object to Dr.
Fleisher's testimony at trial and that the objection was therefore
not properly preserved for appeal. Lance responds that he
extensively objected to all the profile evidence, including on the
basis of vouching, and that this is sufficient for appeal purposes.
Lance's objection was ongoing and thus preserved.
Footnote 52:
Broderick v. King's Way Assembly of God Church, 808 P.2d 1211,
1216 (Alaska 1991).
Footnote 53:
See Russell v. State, 934 P.2d 1335, 1343 (Alaska App. 1997).
Footnote 54:
Broderick, 808 P.2d at 1216.
Footnote 55:
See, e.g., Russell, 934 P.2d at 1343-44.
Footnote 56:
See, e.g., State v. J.Q., 599 A.2d 172, 184 (N.J. Super. App.
Div. 1991).
