State v. Weeks
Annotate this Case
STATE_V_WEEKS.91-284; 160 Vt. 393; 628 A.2d 1262
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.
No. 91-284
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Bennington Circuit
Richard Weeks September Term, 1992
Theodore S. Mandeville, Jr. J., defendant's motion for psychological
evaluation
Paul F. Hudson, J., trial on merits
Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
Attorney General, Montpelier, for plaintiff-appellee
E. M. Allen, Defender General, and Anna Saxman and Henry Hinton, Appellate
Attorneys, Montpelier, for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
Morse, J. The principal issue in this appeal from a conviction for
sexual assault is whether allowing an expert witness to comment on the child
victim's credibility and to identify the perpetrator was plain error. We
hold that it was and reverse and remand for a new trial.
I.
After a bitter divorce, defendant and his ex-wife continued to
struggle over his visitation with their daughter and only child. When the
child resisted the visits and defendant insisted on them, the mother, on
advice of counsel, sought out a psychologist, Dr. Cunningham, to determine
whether the child had been sexually abused. Dr. Cunningham examined the
child three times over a six-day period. Between the second and third
visits, he reported to the Department of Social and Rehabilitation Services
(SRS) that the child had been sexually abused. An SRS worker and a police
officer interviewed the child, and defendant was subsequently charged with
three counts of sexual assault under 13 V.S.A. { 3252(3) for incidents of
penile-vaginal contact, penile-anal contact, and digital-vaginal contact.
The child victim was six years old at the time of trial; she testified
about events that had occurred when she was somewhere between two-and-a-
half and four years old. With her mother sitting beside her, she was led
through her testimony.
State: Did you like visiting with your daddy?
Child: No.
State: Could you tell us why you didn't like it?
Child: Because he hurt me.
State: And how did he hurt you?
Child: I don't want to tell.
State: This is the last time you have to tell, [J.W.].
Can you tell them how he hurt you? Did he hurt
you on your body?
Child: (Nods head.)
State: Can you tell us where?
. . .
Child: Private place.
She then identified the private place (her vagina) and "what he used to
touch [her] with" (his penis) by making marks on anatomically correct
drawings. The court allowed these drawings "to assist in the development
of the testimony. She's, obviously, very reluctant to testify again today."
On cross examination, J.W. admitted that she had previously told defense
counsel that her daddy did not touch her and that this was a lie.
Defense: Do you remember telling me before . . .
that your daddy didn't touch you?
Child: Uh huh.
. . .
Defense: Okay. Was that a lie, back then, when you
said that daddy did not touch you?
Child: Uh huh.
Defense: So you told a lie one time about all this?
Child: Uh huh.
The child's credibility was the central issue at trial. Defendant
claimed that he had been falsely accused, that his ex-wife had fabricated
the story to keep his daughter away from him. He sought to show
inconsistencies in the child's story and to emphasize that she had recanted
to both Dr. Cunningham and defense counsel.
The State supplemented her testimony with five additional witnesses:
the child's mother and maternal grandmother, the SRS worker and the police
officer who had interviewed her, and Dr. Cunningham. The child's mother
testified that the child became increasingly unwilling to visit with her
father, that she would get sick the night before the visits and would refuse
to get dressed the next morning. The child's symptoms got worse -- she had
nightmares, would throw up her breakfast, refuse to get out of the car --
but she would not explain why she did not want to go with her father. When
the child returned from visits she did not want to take a bath and would say
she did not want to be touched. When she was put in the bathtub, she would
spread her legs apart and push toys into her vagina. The mother testified
that she never considered the possibility that her daughter had been
sexually abused. Rather, when she consulted her lawyer about whether the
visits had to continue, he suggested that she take the child to a doctor to
find out why she resisted the visits. The mother testified that, after
telling Dr. Cunningham about the abuse, the child also told her some details
about it and that her father said if she told her mother about the abuse,
her mother would hate her and he would go to jail. The grandmother
corroborated the child's resistance to visits with her father and her
increasingly sexualized behavior during baths.
An SRS worker, Kelly Smith, testified that she notified the state
police after receiving a report of sexual abuse from Dr. Cunningham and,
accompanied by Sergeant Robert Vargo, interviewed the child victim. Ms.
Smith stated that, after establishing rapport with the child and asking her
to identify body parts, she asked the child if anyone had touched her
vagina. The child responded that her daddy had. Ms. Smith related that the
child, using anatomically correct drawings, showed that defendant had
touched her vagina with his penis, nose, and hand. She also indicated that
the child told her that she was afraid she was going to get in trouble for
talking with her. Sergeant Vargo, who was present during part of the
interview, corroborated Ms. Smith's account.
Dr. Cunningham was the State's final witness. He began by describing
symptoms typical of sexually abused children. Anticipating an attack on the
child witness's credibility, he stated that delayed reporting is not
unusual, especially if the abuse occurs within the family, and that
recanting is common, a "kind of a wish that . . . it never happened." He
explained that multiple interviewing can lead children to recant because
when asked the same question a number of times, they get the message that
they will not be believed and, in essence, they give up. He also stated
that often the nonabusive parent will become upset at disclosure of the
abuse and the child will change the story to protect that parent from
further pain.
He then described his interviewing technique in great detail,
particularly the use of anatomically correct pictures. First, he showed the
child drawings of naked children and asked her to find one who looked like
her. He then asked her to name the body parts and to mark places where she
had been touched that she did not like. He then asked who had touched her
and to find a drawing of a (naked) person who looked like the abuser. He
then asked her to identify the part of the abuser's body that had touched
her.
The testimony then moved to the key area of identifying the
perpetrator. Dr. Cunningham stated that he had asked the child who had
touched her and testified
Expert: Her first answer was, daddy.
State: Did you ask her any more questions, regarding
who daddy was?
Expert: Yes. I was aware it was a divorce and that
there was another man, Mitch, living with her
and her mother. And so I asked her, is this
daddy, Mitch, or daddy, Richard. . . .
State: And what did she say?
Expert: She said daddy Ricky.
Dr. Cunningham returned to the issue of the perpetrator's identity and
stated his personal opinion that the perpetrator was not Mitch:
State: And did you specifically ask about Mitch?
Expert: Yes; I did.
State: Was she clear about that as well?
Expert: She was very clear about that. . . . I was
pressing that quite hard . . . because . . .
there was greater access of Mitch to her than
her father at the time, and I wanted to get to
that issue directly.
State: But you pretty well resolved that in your mind,
that [it] wasn't Mitch.
Expert: Yes, ma'am.
Because Mitch was the only other possibility raised, this remark was
tantamount to Dr. Cunningham's naming the child's abuser.
Dr. Cunningham's testimony on the child's credibility cannot be easily
summarized. It did not take the form of one or two isolated statements;
rather, it followed the path of his own reliance on the child's word -- how
he came to believe her to the point that he reported abuse to SRS.
Dr. Cunningham first described his process for verifying a child
victim's account of abuse. Basically, he would ask for descriptions in
various different ways (pictures, dolls, questioning) and repeat this
process over more than one interview, looking primarily at the level of
detail and the degree of consistency. He stated that consistency is
particularly important to determining whether an allegation is fabricated:
State: . . . do you try to determine whether or not
the child has been coached or these responses
suggested to her by someone else?
Expert: Yes; I do. What I look for is a consistency
between the different meetings that I have.
After relating the details of the child's first visit, Dr. Cunningham
then testified that she had described the same kinds of abuse and identified
the same abuser on the second visit. After the second visit, Dr. Cunningham
called SRS to report abuse because "I thought I had sufficient reason to
believe that [she] had been sexually abused and that consistency to
identify her father as the perpetrator." In response to State questioning,
he conceded that he was "mandated by law, if I even suspect sexual abuse, to
report it to either the police or SRS."
Dr. Cunningham testified about the child's credibility in other ways.
He testified that he knew fabrication was more likely where divorced parents
were engaged in visitation disputes and that he therefore questioned the
child directly about whether her mother had prompted her.
And she was real clear with me, that no, her mother did
not. It did happen. That if somebody said that her
mother had told her to say this to me about dad
touching, that that was a lie. And again, this is a
girl who I'd be hard pressed in high school to debate
with this child. I found her to be rather definitive.
(Emphasis added.) In response to the State asking whether, based on his
expertise, the child's disclosures could be "solely attributable to a
divorce that may have had some dispute over custody or visitation," Dr.
Cunningham stated, "I would not make that conclusion."
In talking about how children commonly characterize sexual contact, he
concluded that the child's way of describing anal/penile contact by pointing
to the appropriate anatomical drawings and saying, "he got me with this" was
"indicative of a genuine statement from her," in other words, her way of
describing the incident made him believe that it had actually occurred.
II.
Defendant argues that it was plain error for Dr. Cunningham to identify
him as the perpetrator and to imply that the child's allegations were true.
The State responds that the majority of Dr. Cunningham's testimony was
admissible under V.R.E. 804a and as expert testimony on the profile
characteristics of abuse victims.
Under V.R.E. 804a, a witness may testify to hearsay statements made by
a child ten years old or younger if the statements are offered in a sexual
assault case where the child is an alleged victim, the statements were not
taken in preparation for a legal proceeding, the child is available to
testify, and the circumstances surrounding the statements show substantial
indicia of trustworthiness. The trial court scrupulously followed V.R.E.
804a, qualifying Dr. Cunningham's testimony in preliminary hearings and
making extensive findings, and the applicability of the rule is not
questioned on appeal. The inquiry, however, does not end there.
Rule 804a has not overruled our long line of precedents on the
parameters of expert testimony, starting with State v. Catsam, 148 Vt. 366,
371, 534 A.2d 184, 188 (1987). Categorizing an expert's testimony as
admissible hearsay under V.R.E. 804a does not absolve us of responsibility
for analyzing its content. In this case, the expert's role went far beyond
merely relating the victim's account of the abuse. Rather, the expert acted
as the ultimate "truth detector," both implicitly and, on occasion,
explicitly vouching for the victim's story, a role condemned in our recent
decision in State v. Wetherbee, 156 Vt. 425, 431, 594 A.2d 390, 393 (1991),
because it undercuts the jury's function as factfinder on the victim's
credibility. Unlike Wetherbee, however, the analysis here is one of plain
error because defendant only objected to the expert's testimony on Rule 804a
grounds.
Plain error analysis is fact-based, turning largely on the specifics of
each case. State v. McCarthy, 156 Vt. 148, 154, 589 A.2d 869, 873 (1991)
(applying plain-error rule necessarily involves appellate discretion and
weighing of all relevant factors). Obviousness of the error and prejudice
to defendant are the key factors in the analysis. State v. Ross, 152 Vt.
462, 469, 568 A.2d 335, 339-40 (1989).
In order to be "obvious," an error must be one that the trial court
should easily recognize. Plain-error analysis is not static because
recognition of errors is helped by instruction. The admission of an
expert's testimony on the victim's credibility and the identity of the
perpetrator have been condemned in case after case. See, e.g., State v.
Gokey, 154 Vt. 129, 140, 574 A.2d 766, 771 (1990) (expert's testimony
repeating to jury child's description of assault and confirming child's
capacity to tell truth "impermissibly cloaked the child's testimony with a
favorable expert opinion, imbued with scientific respectability and
reliability"); Catsam, 148 Vt. at 371, 534 at 188) (expert testimony on
truthfulness of child victims of sexual abuse may unduly influence jury and
therefore is inadmissible). These cases, as well as Wetherbee, 156 Vt. at
431-34, 594 A.2d at 393-95, in which the dangers of using the psychological
expert as "truth detector" are exhaustively discussed, were decided before
the trial in this case, and the court should have known about them.
In addition, defendant was greatly prejudiced by the expert's
impermissible testimony. It would be difficult to overstate the
psychologist's influence in this case. He was the first person to whom the
child victim disclosed the abuse, the person who reported the abuse to SRS,
and far and away the State's most important witness. He testified abuse had
occurred, gave details about the abuse that the child could not relate, and
explained away discrepancies in her various accounts and her recantation.
His description literally made sense of the child's testimony because her
way of relating the events in court replicated the system that he had used
for diagnosis and which the police officer and SRS worker had used for
investigating the allegation.
In contrast to the sparseness of the child's testimony, his testimony
was articulate and expansive. Covering 77 transcript pages, more than a
third of all the testimony in a trial with eight witnesses, his testimony is
a richly detailed roadmap of how he elicited and came to believe the
child's allegations of abuse. From the outset, the jury knew, not only
that he had personally examined the victim, but that he had tested her
perceptions and credibility, and, that based on his conclusions, he reported
the abuse and defendant as the perpetrator to SRS. He not only vouched for
the victim's credibility but staked his professional reputation on it. When
Dr. Cunningham was finished testifying, no one could reasonably doubt that
he had given his unqualified endorsement of the child's believability.
The State relied heavily both on Dr. Cunningham's testimony and, very
explicitly, on the "'aura of special reliability and trustworthiness'" that
his belief in the victim gave to her story. State v. Bubar, 146 Vt. 398,
401, 505 A.2d 1197, 1199 (1985) (quoting State v. Saldana, 324 N.W.2d 227,
230 (Minn. 1982)). In closing arguments, the State first argued that the
abuse report was more credible because it originated outside the family:
It's a psychologist; it's a police officer; it's a
social worker. They are the people here who have no
interest, whatsoever, in the outcome of this case.
They are complete strangers to the Weeks family . . . .
They have no motive; they have no interest. They have
nothing to gain or lose . . . .
In rebuttal, the State again stressed Dr. Cunningham's status as an
objective expert and his capacity to detect fabrication:
Doctor Cunningham testified to you that there's no way
to explain away everything that was happening here as a
problem with the divorce and a problem with custody.
Absolutely, no way, he said. Doctor Cunningham is an
expert in this field. Now, maybe [defense counsel]
doesn't like that and maybe [defense counsel] is a
little frustrated about the fact that Doctor Cunningham
knows what he's talking about and has had a lot of
experience in this case, but that fact remains. This
Court has recognized him as an expert and he has been so
recognized about 40 other times as well. So he knows
what he's talking about.
. . .
[Defendant] picks apart Doctor Cunningham, as if Doctor
Cunningham isn't sharp enough to pick up on whether or
not a child is lying to him. . . . There are a number of
times he's come to the conclusion that a child is
fabricating . . . .
. . .
And they disparaged Doctor Cunningham's even getting
paid here. He's working for the mother. He's got a
reputation to uphold, too. He's not going to risk that
simply because he's asked to visit with a child and see
what any problems might be. I mean, let's deal with
reality here. If he didn't find anything, he would have
told you that, because he's done it before. He's found
other kids, that they have fabricated. They have been
pushed and taught by their parent. He didn't find that
in this case.
By making such extensive use of the expert's reputation and his judgment
about fabrications, the State encouraged the practice of trial by expert
that our cases condemn. See Wetherbee, 156 Vt. at 431, 594 A.2d at 393
("psychological expert [must] not be perceived by the jury as a 'truth
detector' -- someone who, by application of scientific method, determines
whether the victim is telling the truth about whether the abuse occurred and
the abuser's identity"). Where, as in this case, the expert infringes on
the jury's core function by telling it what and who should be believed, the
error is particularly acute.
Additional evidence of prejudice can be inferred from the fact that the
jury found defendant guilty only of those charges that the expert verified.
The child victim testified about only one instance of abuse, vaginal-
penile contact. The SRS worker and police officer testified about that
incident and an additional one of digital-vaginal contact, a charge on
which defendant was found not guilty and about which Dr. Cunningham did not
testify. The expert was the sole witness on an incident of anal-penile
contact, for which defendant was convicted. The expert's testimony was
considered critical by the jury on two of the three charged incidents.
The errors here were multiple and egregious. The expert made the
original diagnosis, prompting the original charge. He explained why the
victim had not reported the abuse, why she had recanted, and why the details
in her story made her persuasive. He told her story multiple times and
concluded that consistency in the telling made her persuasive. He vouched
for her credibility and confirmed her identification of the abuser. This
case dramatically extends the expert's role, letting him basically
investigate, prosecute, and judge the case. The case must be remanded for a
new trial.
III.
A.
Prior to trial, the defense sought to conduct its own psychological
evaluation of the child victim, a request denied by the court. In addition,
defendant unsuccessfully sought to disqualify the child as a witness on
grounds of incompetency and to depose her for a third time after she had
recanted to defense counsel and then refused to answer any further
questions in earlier depositions. On these latter two issues -- competency
and the efficacy of a third deposition -- the court took testimony only from
the State's expert, Dr. Cunningham. At trial, defendant sought to put Dr.
Cunningham's role in issue, arguing that his leading questions and
"suggestions" to the child during the initial interviews had persuaded her
that "things have happened" to her.
Defendant argues that under these circumstances, the court's denial of
his request for an independent psychological evaluation of the child
violated his right to due process. See State v. Percy, 149 Vt. 623, 636-38,
548 A.2d 408, 416-17 (1988) (discussing due process right to reciprocal
discovery as developed in Wardius v. Oregon, 412 U.S. 470 (1973)). Had we
upheld the expert's role in this case, we might be inclined to agree. See
State v. Ross, 152 Vt. 462, 466, 568 A.2d 335, 338 (1989) (in appropriate
cases, defendant may have own expert examine victim). On retrial, however,
Dr. Cunningham's role may be more limited, and the issue may develop
differently. We, therefore, decline to address it now.
B.
Sergeant Vargo, Ms. Smith, and Dr. Cunningham all offered hearsay
testimony describing the victim's account of an incident in which defendant
attempted to have her drink a fluid she described as milk and "peepee." In
addition, they related incidents where defendant touched the child's bottom
with his nose, "peed on her," and attempted oral sex with her. Defendant
contends that all evidence of uncharged bad acts should not have been
admitted because the State did not provide notice as required by V.R.Cr.P.
26(c) and because evidence concerning such acts was inadmissible under
V.R.E. 404(b). He further contends that the State's closing argument
improperly referred to these uncharged acts and that the court's instruction
erroneously permitted the jury to consider them. All of these objections,
raised for the first time on appeal, will not be addressed. Defendant will
have an opportunity to raise them, and the court to respond to them, on
retrial.
Reversed and remanded.
FOR THE COURT:
______________________________
Associate Justice
-------------------------------------------------------------------------------
Dissenting
NOTICE: This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.
No. 91-284
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Bennington Circuit
Richard Weeks September Term, 1992
Theodore S. Mandeville, Jr. J., defendant's motion for psychological
evaluation
Paul F. Hudson, J., trial on merits
Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
Attorney General, Montpelier, for plaintiff-appellee
E. M. Allen, Defender General, and Anna Saxman and Henry Hinton, Appellate
Attorneys, Montpelier, for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
GIBSON, J., dissenting. I am unable to agree with the majority
opinion. It ignores our plain-error precedents, and despite the majority's
rhetoric, the record presents no obvious error that affects defendant's
substantial rights. The opinion is also troubling because it not only
departs from precedent but it provides no new guidelines for the trial
courts in future cases. I therefore dissent.
The majority takes exception to the expert testimony presented in this
case. The expert played two important roles herein. First, he provided a
detailed account of the child's communications about the abuse as the first
person to whom the child disclosed that she had been sexually abused. He
explained his interviewing technique and then repeated the child's
disclosures to the jury. He also provided details about the abuse that the
child was unable to verbalize but that she had been able to demonstrate with
dolls. This testimony corroborated the child's allegations, thus fulfilling
a major purpose of V.R.E. 804a. See Reporter's Notes, V.R.E. 804a
(legislative intent to cure frequent problem of lack of corroboration caused
by traditional hearsay rules).
The expert's second role was to rebut defendant's attack on the child's
credibility. At trial, the child was cross-examined by defense counsel
about having recanted her allegations during a deposition. The expert, as
the State's last witness, testified that delayed reporting of sexual abuse
and recantation are not unusual phenomena. Such testimony is admissible and
is useful to assist the jury in assessing the complainant's credibility.
State v. Gokey, 154 Vt. 129, 133-36, 574 A.2d 766, 768 (1990). The expert
also explained that consistent and detailed allegations of abuse are not
likely to have been fabricated. His testimony provided specialized
knowledge designed to help the jury assess the evidence -- a proper purpose
of expert testimony. V.R.E. 702; see State v. Catsam, 148 Vt. 366, 371, 534 A.2d 184, 188 (1987) (expert testimony on truthfulness of child sexual abuse
victim not admissible unless it will assist jury to understand the
evidence).
Defendant argues that the expert testimony exceeded the permissible
limits of these two roles but he did not raise this objection at trial.
Review is therefore limited to plain error. State v. Sims, ___ Vt. ___,
___, 608 A.2d 1149, 1154 (1991). Under the plain-error standard, reversal
is warranted only if the error is obvious and affects substantial rights of
the defendant. Id. As the majority notes, an error is obvious if it is
one that the trial court should easily recognize. Ante, at 8. The
majority finds that two errors were obvious: (1) the expert's testimony on
the victim's credibility, and (2) the expert's testimony on the identity of
the perpetrator. I find neither "error" so obvious that the trial court
should have recognized it sua sponte, or so egregious that we should
reverse.
The expert testimony on the child's credibility does not warrant
reversal because there was no obvious error. The majority admits that this
testimony "cannot be easily summarized," explaining that "[i]t did not take
the form of one or two isolated statements; rather, it followed the path of
[the expert's] own reliance on the child's word -- how he came to believe
her to the point that he reported abuse to SRS." Ante, at 5-6. At what
point the testimony became obvious error is not stated in the majority
opinion. Of course, "[h]indsight always offers a more complete assessment
of error and its impact," State v. McCarthy, 156 Vt. 148, 159, 589 A.2d 869,
876 (1991) (Morse, J., dissenting), but the test on appeal is whether the
trial court should easily have recognized the error at the time. I do not
see how the trial court could have easily recognized the "path" of the
expert here. The error, if any, was not obvious. Further, had the
testimony been so obviously out of line as the majority would have us
believe, it would have prompted an objection or a motion to strike by
defendant's experienced defense counsel. Neither action was taken. "Yet,
this Court today holds in hindsight that the trial court sua sponte should
have stopped the State in its tracks." Id. at 159, 589 A.2d at 875-76
(Morse, J., dissenting).
Expert testimony implying that a child complainant is credible is not
error per se. Clearly, the State calls an expert to testify in support of
its case. See State v. Wetherbee, 156 Vt. 425, 434, 594 A.2d 390, 395
(1991) ("If the diagnosing expert's examination shed any doubt on the
child's credibility, it would be unnatural and uncharacteristic for the
expert to testify for the prosecution."). To this extent, the testimony of
the expert ordinarily implies that the complainant is telling the truth. It
is improper, of course, for an expert to testify directly to the
truthfulness of the complainant. Catsam, 148 Vt. at 371, 534 A.2d at 188.
Even testimony that is "tantamount to a direct comment that the complainant
was telling the truth about the alleged sexual assault" is impermissible.
Id. at 370, 534 A.2d at 187. Here, there was no such direct testimony,
however.
The majority describes the expert's testimony as "articulate and
expansive" in contrast to the "sparseness" of the child's testimony. Ante,
at 9. The difference should not be unexpected. The child was six years old
and testifying to a matter that was sensitive and embarrassing in a
courtroom setting that was unfamiliar. In his testimony, the expert
properly described the procedures he followed in examining the child.
Nowhere does he "vouch[] for the victim's credibility" or "stake[] his
professional reputation on it." Ante, at 9. The majority can point to no
testimony that goes this far.
According to the majority, the error should have been obvious to the
trial court because we have condemned this type of expert testimony in
Catsam, Gokey, and Wetherbee. In Catsam, we held that expert testimony that
children suffering from post-traumatic stress disorder do not fabricate
stories about sexual abuse was not admissible under V.R.E. 702. 148 Vt. at
370-71, 534 A.2d at 188. Because the expert also testified that the
complainant had post-traumatic stress disorder, this statement was
"tantamount to a direct comment" that the complainant did not fabricate the
sexual abuse charges. Id. at 370, 534 A.2d at 187. There is no comparable
testimony in the instant case. The expert here testified that detailed and
consistent statements given by a child are not likely to have been
fabricated. This "specialized knowledge," V.R.E. 702, helped the jury to
better understand the child's testimony and evaluate her credibility by
examining the consistency of the statements she made to the expert and to
the SRS worker. Unlike diagnosing a psychological disorder, the jury is
able to evaluate whether statements are consistent without expert opinion.
In Gokey, we held that expert testimony repeating the child's statement
that the defendant had abused her was improperly admitted under V.R.E. 702,
703 or 705. 154 Vt. at 139-40, 574 A.2d at 771-72. We reached this
decision because we concluded that testimony about the child's hearsay
statement was not profile evidence, admissible under V.R.E. 702, nor the
basis of the expert's opinion that the child exhibited symptoms common to
sexually abused children, admissible under V.R.E. 703 or 705. Id. at 138-
40, 574 A.2d at 770-72. Likewise, in Wetherbee, 156 Vt. at 430, 437, 594 A.2d at 392-93, 396, we held that it was impermissible under V.R.E. 702 to
allow a psychologist to repeat the victim's statement that the defendant was
the abuser, that such testimony went beyond the limits set forth in Gokey,
and that this error was not harmless.
Neither the rule nor the rationale of Gokey is applicable here because
the child's hearsay statements were not admitted as profile evidence or as
the basis of the expert's opinion. They were admitted as substantive
evidence under V.R.E. 804a to corroborate the child's complaint. This Court
has never held that a witness may not testify to a child's hearsay
statements identifying the perpetrator under V.R.E. 804a. See, e.g., State
v. Gallagher, 150 Vt. 341, 349, 554 A.2d 221, 226 (1988) (statements of
"cause," such as child's identification of abuser, "are more properly
admitted under Rule 804a, which requires specific findings of
'trustworthiness'").
In the instant case, the expert never testified that he believed
defendant was the perpetrator; rather, he testified that the child had told
him defendant was the perpetrator. The trial court concluded that these
statements were admissible under V.R.E. 804a. The court conducted
preliminary hearings prior to receiving testimony about the child's
statements, and it made extensive findings, as required by V.R.E. 804a.
Its findings are supported by the evidence.
Moreover, defendant's substantial rights were not affected by the
V.R.E. 804a hearsay statements identifying him as the abuser or the expert's
statement indicating that he had resolved in his mind that the abuser was
not the child's stepfather. There was no issue regarding identity in this
case. The child identified defendant as the perpetrator at trial. Two
witnesses testified that all of the child's symptoms emerged before and
after visitation with defendant. The child was taken to the expert to find
out why she resisted visitation with defendant, and she revealed to the
expert that defendant had sexually abused her.
Defendant never suggested that the child may have been abused by
another person. Rather, he sought to convince the jury that the child's
mother had fabricated the allegations to prevent his visitation with the
child. The expert's opinion that the stepfather had not sexually abused
the child was therefore consistent with the theory advanced by the defense
that no abuse had ever occurred. Indeed, any allegations of abuse by
another person would have diminished defendant's argument that the stories
were fabricated to prevent his contact with the child. "We do not know
defendant's strategy in this case, and his lack of objection may have been
an intentional trial tactic." McCarthy, 156 Vt. at 159, 589 A.2d at 876
(Morse, J., dissenting).
Our law thus does not require a reversal in this case based on any
statement by the expert identifying defendant as the perpetrator. V.R.E.
804a was designed to provide a mechanism by which out-of-court statements of
a child ten years of age or younger could be placed in evidence. By its
action today, the majority has effectively eviscerated this rule.
The majority also departs today from a long line of plain-error
precedent on the issue of expert testimony in child sexual abuse cases.
"This Court has never found an expert's impermissible comment on a child
sexual abuse complainant's credibility to be plain error." Sims, ___ Vt. at
___, 608 A.2d at 1154. In Sims, we compared the expert testimony at issue
to the expert testimony in other plain-error cases and concluded that there
was no plain error.
When the substance of the testimony in this case is
compared with that in the foregoing cases, it is
difficult to conclude that plain error was committed
here. In [State v.] DeJoinville, no plain error was
found despite the fact that the expert expressly
testified about the credibility of child sexual abuse
complainants. 145 Vt. [603,] 604, 496 A.2d [173,] 174
[(1985)]. In [State v.] Recor, the expert stated that
the consistency of the child's statements "gives me a
sense that what they are saying happened, happened."
150 Vt. [40,] 45, 549 A.2d [1382,] 1386 [(1988)]. In
[State v.] Ross, the expert not only detailed the
complainant's sexual activity with the defendant as told
to her by the complainant, and not only stated that
young children do not fabricate stories of sexual abuse,
but also expressly concluded that the complainant had
been sexually abused by the defendant. 152 Vt. [462,]
467-68, 568 A.2d [335,] 339 [(1989)].
Id. at ___, 608 A.2d at 1154. The expert testimony in the instant case is
less egregious than that in Sims, Ross, Recor, or DeJoinville.
Even if error were obvious here because similar testimony has "been
condemned in case after case," ante, at 8, the error did not affect
defendant's substantial rights. In case after case, we have found that
similar testimony did not affect the rights of the defendants in those
cases. Conducting a Sims comparison here can only lead to the conclusion
that the expert testimony does not amount to plain error. Cf. ___ Vt. at
___, 608 A.2d at 1154. The majority ignores this precedent, as it downplays
the corroborating testimony of the grandmother, police officer, and social
worker, and the graphic description by the mother of the child's increasing
symptoms of distress at her impending visits with defendant.
My final difficulty with the majority's decision lies in its impact on
future trials. The effect of the combination of discarding our established
precedents and failing to set forth guidelines for the introduction of
evidence under V.R.E. 804a will inevitably leave the courts in a state of
perplexity. The courts can no longer look to our previous cases to
determine what is or is not admissible or what may constitute an error so
grave that they must act sua sponte. Rather, the majority creates a vague
"hindsight" test, frustrating the notion that plain error should be plain in
the first instance.
I respectfully dissent. I am authorized to state that Chief Justice
Allen joins in this dissent.
_______________________________________
Ernest W. Gibson III, Associate Justice
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