State v. Lynds
Annotate this Case
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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
No. 88-597
State of Vermont Supreme Court
v. On Appeal from
District Court of Vermont
Glenn R. Lynds Unit No. 1, Windsor Circuit
December Term, 1991
George F. Ellison, J.
M. Patricia Zimmerman, Windsor County Deputy State's Attorney, White River
Junction, for plaintiff-appellee
John J. Kennelly of Carroll, George & Pratt, Rutland, for defendant-
appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
On Motion for Specificity on Remand
DOOLEY, J. On October 25, 1991, this Court reversed defendant's
conviction for sexual assault because of error in allowing the State's
expert witness to testify by deposition without being present. We remanded
the case to district court for a new trial. Following the issuance of the
opinion, the State moved that we clarify the mandate to specify that "the
remand goes back to the time of trial and not back to the time the charges
were filed."
In oral argument, the State clarified that its motion was intended to
prevent defendant from engaging in any further pretrial discovery or filing
any pretrial motions. (FN1) The State had no reason to believe that defendant
intended to engage in further discovery or motion practice. Nor did it
state any reasons specific to this case why such defense activity should be
prohibited. Instead it argued, without citation to any authority, that such
pretrial motion practice or discovery is prohibited in other states when
there is a reversal and a new trial ordered because of errors that occurred
at trial. Again, without citation to any authority, it argues that
Vermont's rule is different. It urges us to change Vermont's rule, for the
purpose of this case, by a specific remand direction.
The State's assertion of Vermont law on this question is erroneous,
because we have never ruled on the nature of criminal proceedings following
a remand.(FN2) The State's representation of the law in other jurisdictions is
also erroneous. The rule we apply, which is applicable in most, if not all,
other jurisdictions was recently detailed by the California Supreme Court:
[Reversal and remand for a new trial] even permits
amendment of the accusatory pleading . . . as well as
renewal and reconsideration of pretrial motions and
objections to the admission of evidence. . . . Absent a
statutory provision precluding relitigation, a
stipulation by the parties, or an order by the court
that prior rulings made in the prior trial will be
binding at the new trial, objections must be made to the
admission of evidence . . ., and the court must consider
the admissibility of that evidence at the time it is
offered. (Citations omitted.)
People v. Mattson, 50 Cal. 3d 826, 849-50, 789 P.2d 983, 999, 268 Cal. Rptr. 802, 818 (1990); see also Gillie v. State, 512 N.E.2d 145, 148 (Ind. 1987)
(reversal and remand acts to "place the parties in the position that they
would have occupied if no proceedings on the charges had ever occurred");
People v. Cheatham, 135 Mich. App. 620, 623, 354 N.W.2d 282, 284 (1984)
(reversal and remand nullified state's amendment of the information); West
v. State, 519 So. 2d 418, 425 (Miss. 1988) (motion to suppress based on
additional evidence must be heard following reversal and remand); State v.
Wines, 65 N.J. Super. 262, 270, 167 A.2d 650, 655 (1961) (trial court had
the same power over the conduct of the case following reversal and remand
"as when it was first handed up by the grand jury"). The same rule applies
in the federal courts. See United States v. Lee, 539 F.2d 606, 610 (6th
Cir. 1976) (following reversal and remand, defendant could withdraw waiver
of jury trial and require that case be heard by a jury); see also 5 L.
Orfield, Criminal Procedure under the Federal Rules { 33:60, at 363 (2d ed.
1987) ("parties are returned to their original positions"). In Mattson, the
court reversed the first conviction because it found that the trial court
improperly admitted a confession in violation of the self-incrimination
privilege of California's constitution. Despite this ruling, the court
affirmed the introduction of the confession at the second trial because the
State offered new evidence at a pretrial hearing to show that defendant
initiated the interviews at which he confessed. 50 Cal. 3d at 852, 789 P.2d
at 1001, 268 Cal. Rptr. at 820.
Although the State is incorrect that other jurisdictions follow the
rigid position it espouses here, most jurisdictions give the trial court
some discretion to prevent duplicative and repetitive proceedings. Under
California law, for example, the trial court has the discretion to deny
motions that were decided adversely to the party prior to the appeal in the
absence of a "showing of any change of circumstance[s] necessitating renewal
of these motions at the second trial." People v. Dorsey, 34 Cal. App. 3d 70, 73, 109 Cal. Rptr. 712, 714 (1973). See also, e.g., Bailey v. State,
521 A.2d 1069, 1093 (Del. 1987) (trial court may allow pretrial rulings made
prior to reversal and remand to stand unless they were "clearly in error or
there has been an important change in circumstance[s]") (emphasis in
original); Commonwealth v. Martin, 392 Mass. 161, 164, 466 N.E.2d 76, 78
(1984) (trial court has discretion to decide whether to reconsider ruling
made on admission of polygraph evidence at earlier trial); State v. Reldan,
100 N.J. 187, 205-06, 495 A.2d 76, 86 (1985) (whether ruling on motion to
suppress at earlier trial has become the law of the case lies within
discretion of the trial court to be exercised based on certain specified
factors); People v. Hults, 150 A.D.2d 726, 727, 542 N.Y.S.2d 18, 19 (1989)
(trial court has discretion whether to reopen a suppression motion
following a reversal and remand).
Although we have not ruled directly on the extent of trial court
control over pretrial proceedings following a reversal and remand, decisions
in analogous circumstances provide some guidance. We have required
defendants to raise pretrial issues anew when the trial is held before a
judge different from the one who decided pretrial motions, State v. Senecal,
145 Vt. 554, 558, 497 A.2d 349, 351 (1985), and we have also emphasized that
review of every pretrial issue "would be counterproductive and a waste of
judicial resources." State v. Zumbo, No. 90-073, slip op. at 2 (Vt. Nov. 8,
1991). Thus, the trial court is given discretion on whether to review a
pretrial ruling with the understanding that reconsideration is the
exception, not the rule. See State v. Bruno, 156 Vt. ___, ___, 595 A.2d 272, 274 n.1 (1991). Consistent with this view, we recently held that it
was error for the trial judge to reconsider a pretrial ruling granting a
motion to suppress in the absence of new evidence or similar circumstances.
State v. Blow, 2 Vt. L.W. 447, 447-48 (1991). We conclude that these
principles apply equally when a new trial is ordered.
We emphasize that the cases from other states involve trial court
discretion and not appellate court remand orders. Indeed, we can find no
case in which an appellate court has issued the kind of remand order the
State seeks here, at least in the absence of any compelling need arising out
of the circumstances of the case before the Court. In the absence of any
information from the parties, we do not know whether defendant will seek to
renew any pretrial orders or to engage in further discovery. We do not
know whether there will be any witnesses in addition to those who testified
at the first trial or whether there is likely to be any change in the
testimony of those who did testify. Even if we had the necessary
information, it would be foolhardy and unnecessary for us to act like a
trial court to supervise the movement of this case to the new trial.
If we were to grant this type of motion, we would run the risk that the
party that is ready to proceed immediately to retrial would move to prohibit
further pretrial events in cases where it is inappropriate to do so. We
prefer not to lock in an unwarranted tactical advantage for either side,
especially when we would do so without knowledge of the nature and extent of
that advantage and its prejudice to the other party.
We believe that the trial court has adequate discretion to prevent
repetitive, unnecessary or harassing motion practice prior to the new trial.
For example, recent criminal procedure rule amendments give the court
specific power to do so in the area of depositions. See V.R.Cr.P. 15(e),
(f).
Motion for specificity on remand denied.
FOR THE COURT:
Associate Justice
FN1. We invited the Attorney General to provide his views on this motion,
and he filed a brief amicus curiae in support of the motion. His position
was, however, different from that of the Windsor County State's Attorney
because he would allow a defendant to engage in further pretrial activity on
a showing of good cause.
The Defender General was also invited to submit an amicus curiae brief
and did so. He took the position that the motion should be denied because
the trial court has adequate power to control pretrial proceedings.
FN2. We have ruled in a civil case that "When a verdict is set aside and
a new trial granted, the whole adjudication of the first is wiped out, and
the case proceeds de novo." Enos v. Owens Slate Co., 107 Vt. 125, 128, 176 A. 121, 122-23 (1935). Even if this were a criminal case, Enos would give
us little guidance since the issue was whether the grant of a motion for
judgment notwithstanding the verdict at the end of the first trial became
the law of the case and prevented a second trial.
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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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
No. 88-597
State of Vermont Supreme Court
v. On Appeal from
District Court of Vermont
Glenn R. Lynds Unit No. 1, Windsor Circuit
April Term, 1990
George F. Ellison, J.
M. Patricia Zimmerman, Windsor County Deputy State's Attorney, White River
Junction, for plaintiff-appellee
John J. Kennelly of Carroll, George & Pratt, Rutland, for defendant-
appellant
PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
DOOLEY, J. In this appeal from a conviction for sexual assault, we
hold that the trial court erred in ruling that the prosecution's expert
witness was unavailable under V.R.Cr.P. 15 and in allowing her deposition to
be read to the jury. Since the error was not harmless, we reverse and
remand for a new trial. Accordingly, we do not reach two other arguments
raised by defendant.
In February 1988, defendant's nineteen-year-old daughter complained
that she had been repeatedly sexually abused by defendant. She alleged that
the abuse began when she was thirteen and continued for more than three
years, with the last incident occurring in September of 1985 when she was
seventeen.
In June 1988, the State retained Dr. Anna Salter, a clinical psycholo-
gist specializing in child sexual abuse, to testify as an expert witness on
the issues of delayed reporting, family dynamics of sexual abuse, patterns
of sexual abuse and effects of sexual abuse. At the time she was retained,
the State advised her that trial was scheduled for late September 1988.
After the State disclosed that it had retained Doctor Salter, the defendant
took her deposition on July 28, 1988.
By early August, the parties were notified that trial was set for
September 28. On August 10, the State wrote to Dr. Salter advising her of
the trial date. Thereafter, the State telephoned her on September 13 and
September 23, leaving messages each time but failing to reach her
personally. Finally, on September 26, the State established telephone
contact with Dr. Salter and learned that she would be in Wisconsin on the
date of trial and would not be returning until October 3, 1988.
On September 27, the day before trial, the State motioned the trial
court to declare Dr. Salter "unavailable" and admit her deposition
testimony. Once a witness is found unavailable, her deposition may be used
as substantive evidence. V.R.E. 804(b)(1); V.R.Cr.P. 15(e). The court
granted the State's motion over defendant's objection that the witness was
not unavailable under the rules of evidence and procedure and the admission
of the deposition denied his right to confront the witness. An edited
version of the deposition was read to the jury.
Defendant argues that the trial court erroneously declared Dr. Salter
"unavailable" thereby depriving him of his constitutional rights to confront
and cross-examine a witness whose testimony was offered against him. A
witness is unavailable if she is "absent from the hearing and the proponent
of [her] statement has been unable to procure [her] attendance . . . by
process or other reasonable means." V.R.E. 804(a)(5); V.R.Cr.P. 15(g).
The issue is whether the language of V.R.Cr.P. 15(g) and V.R.E. 804(a)(5),
"other reasonable means," requires the State to do more to secure the
witness's attendance than it did here.
It is important to emphasize that we are dealing with a requirement
imposed both by the applicable evidence rule and by the Confrontation Clause
of the Sixth Amendment to the United States Constitution. The requirements
are similar when a party seeks to admit the prior testimony of a witness in
place of present testimony in a proceeding. See State v. Carroll, 147 Vt.
108, 111, 513 A.2d 1159, 1160 (1986) (hearsay rules and confrontation clause
protect similar values). Thus, to meet confrontation requirements, the
witness must be unavailable despite the State having made "a good-faith
effort to obtain his presence at trial." Barber v. Page, 390 U.S. 719, 725
(1968), quoted in Carroll, 147 Vt. at 112, 513 A.2d at 1161.
The length to which the State must go in producing a witness is a
"question of reasonableness." Ohio v. Roberts, 448 U.S. 56, 74 (1980); see
also United States v. Casamento, 887 F.2d 1141, 1169 (2d Cir. 1989). The
State bears the burden of establishing the witness' unavailability. Ohio v.
Roberts, 448 U.S. at 74-75.
The State's only efforts to secure Dr. Salter's presence were an
initial letter followed by several phone calls. The State failed to reach
her until it was too late to use alternative measures to assure her
attendance. It argues that the phone calls satisfied the mandate that the
State use "other reasonable means."
Because the State knew where its witness was, "rules governing
unavailability . . . are not strictly applicable." Carroll, 147 Vt. at 113,
513 A.2d at 1161-62. Furthermore, a witness who will be inconvenienced by
appearing, Topping v. People, 793 P.2d 1168, 1171 (Colo. 1990), or proves
evasive, United States v. Lynch, 499 F.2d 1011, 1024 (D.C. Cir. 1974), is
not unavailable.
The State elected not to seek a continuance of a few days to accommo-
date Dr. Salter's schedule or to invoke the Uniform Act to Secure the
Attendance of Witnesses, 13 V.S.A. { 6646. The fact that the State limited
its effort because it assumed that Dr. Salter would testify is not a valid
excuse. The State's effort was not sufficiently diligent to satisfy the
unavailability requirement. The trial court erred in admitting the
deposition.
The State argues, however, that any error resulting from the admission
of Dr. Salter's deposition was harmless. Because of the constitutional
violation, we must use the standard applicable to a constitutional error to
determine whether the error was harmless. To avoid reversal, we must find
that the error was harmless beyond a reasonable doubt. See Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986). The standard applies in confrontation
clause cases involving an expert witness. See Satterwhite v. Texas, 486 U.S. 249, 258 (1988). Under this standard, an error cannot be harmless
"[i]f there remains a possibility that the constitutionally-proscribed
evidence impacted on the ultimate decisional process of the jury [and] . . .
the beneficiary of the error cannot refute that possibility beyond all
reasonable doubt." Brown v. Dugger, 831 F.2d 1547, 1554 (11th Cir. 1987);
see also Chapman v. California, 386 U.S. 18, 24 (1967) (adopting language of
Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963) that error is not harmless
if "there is a reasonable possibility that the evidence complained of might
have contributed to the conviction"). The State has the burden of demon-
strating harmlessness. See Arizona v. Fulminante, 111 S. Ct. 1246, 1257
(1991).
The error here was in admitting the deposition testimony of the expert
witness. To determine whether the error is harmless, we must posit a trial
without any evidence by Dr. Salter. In making this assessment, we must
consider a number of factors including "the importance of the witness'
testimony in the prosecution's case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or contradicting the tes-
timony of the witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the prosecu-
tion's case." Delaware v. Van Arsdall, 475 U.S. at 684.
All of the Van Arsdall factors show that the admission of the evidence
here was not harmless. The State put on only one witness, the victim, in
its case in chief. The victim testified that defendant had sexually
assaulted her over a four-year period. Defendant took the stand and denied
the charge and the specific events testified to by the victim. He was
supported by each of the victim's three brothers. They testified that they
observed nothing unusual during the period covered by the victim's testimony
and that the house lacked privacy. The trial was a credibility contest
between the defendant and the victim with the defendant having the
advantages of the presumption of innocence, the State's high burden of proof
and the supporting testimony. We cannot say that the State had a
particularly strong case. See Clark v. O'Leary, 852 F.2d 999, 1005 (7th
Cir. 1988) (evidence must be overwhelming for error to be harmless); Burns
v. Clusen, 798 F.2d 931, 943 (7th Cir. 1986).
There was no other evidence corroborating or contradicting the
expert's testimony and the testimony was not cumulative. There was no real
opportunity for cross-examination because there is no indication what the
direct testimony would have been. Although all the discovery questions were
asked by the defendant, they were merely explorations of what the witness
might testify to rather than cross-examination based on what the witness
would actually testify to.
The expert testimony was very important in this case. The expert
testified not only that victims of sexual abuse often delay reporting the
abuse, but also to some of the reasons why a victim fails to report the
abuse. She testified that in many cases of parental sexual abuse, the
child was not close to the mother, and stated "[a]ll of that seems to
correlate with abuse occurring as though it simply makes it more possible
for the abuse to occur." In closing argument, the State argued that the
victim fit the expert's profile: she had not reported the abuse because she
feared she would not be believed, and she was not close to her mother.
Thus, the evidence rebutted one of the reasons to disbelieve the victim, the
failure to report the abuse at or near the time it occurred, and established
a partial profile from which the State could argue to the jury. See B.
Morosco, The Prosecution and Defense of Sex Crimes { 9.08 at 9-49 (1991).
We first allowed profile evidence on delay in reporting allegations of
sexual abuse in State v. Hicks, 148 Vt. 459, 462, 535 A.2d 776, 777 (1987)
because "The behavioral patterns of child victims of sexual abuse are
generally not known to the average juror and are therefore a proper subject
for expert testimony." This was an application of the earlier holding in
State v. Catsam, 148 Vt. 366, 369, 534 A.2d 184, 187 (1987) that admitted
this type of evidence because the "unique psychological effects of sexual
assault on children place the average juror at a disadvantage in under-
standing the behavior of the victim." These holdings were a break from past
precedent that had viewed profile evidence with suspicion. Following the
rationales for the Hicks and Catsam cases, we view the expert testimony as
important to enable the jury to properly weigh the victim's testimony.
Since we cannot say that the admission of the expert testimony was
harmless, we must reverse and remand for a new trial.
Reversed and remanded.
FOR THE COURT:
Associate Justice
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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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
No. 88-597
State of Vermont Supreme Court
v. On Appeal from
District Court of Vermont,
Glenn R. Lynds Unit No. 1, Windsor Circuit
April Term, 1990
George F. Ellison, J.
M. Patricia Zimmerman, Windsor County Deputy State's Attorney, White River
Junction, for plaintiff-appellee
John J. Kennelly of Carroll, George & Pratt, Rutland, for defendant-
appellant
PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
MORSE, J., dissenting. I respectfully dissent because I conclude that
the error here was harmless beyond a reasonable doubt. Dr. Salter's
testimony, in my view, was so unimportant to the State's case that it made
no difference to the outcome of the trial. In other words, the verdict
would have been guilty even if her testimony had been excluded. See
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) ("importance of the
witness' testimony in the prosecutor's case" a critical factor in assessing
harmless error).
The victim, an adult when she testified at trial, related that
defendant had sexually assaulted her on a regular basis beginning when she
was thirteen and ending nearly four years later. Although the sexual abuse
began as inappropriate touching and kissing, the victim testified that
intercourse began when she was fourteen. Her father told her not to tell
anyone and she did not. The victim experienced fears of pregnancy, but
defendant assured her that he could not father a child. During that time,
she lived with defendant and brothers, cooked the meals and did the house-
work, with her brothers offering sporadic assistance.
The victim's mother lived at home for a few months a year. Each
spring, the parents would separate, and the mother would move out. The
assaults allegedly took place upstairs in both her and defendant's bedrooms
while her brothers were asleep. She stated that defendant's bedroom had a
door, and her bedroom did not, but the opening was covered with a blanket.
She maintained that the last incident -- the incident for which defendant
was charged -- occurred when she and defendant were home alone.
The victim said that she had not come forward earlier because she
feared no one would believe her. She decided to report the abuse because
defendant was dating a woman who had a fifteen-year-old daughter and she
was afraid the same thing would happen to the daughter. She claimed she had
not moved in with her mother because her parents had decided that once the
children were in high school they should remain with defendant in order to
spend all four years in the same school.
Defendant took the stand and denied the abuse occurred. The core of
defendant's case was that it would have been impossible for the pattern of
abuse to have occurred without someone else in the house knowing about it.
His three sons testified that other family members had bedrooms upstairs and
that a portion of defendant's home was unfinished, doors were missing, and
the walls consisted of studs and plywood. They testified that there had
been no outward signs of any problem, and that all the family members were
under the impression that defendant and the victim had a "normal father-
daughter relationship." Defendant claimed that on several occasions the
victim had the opportunity to move out of defendant's house and live with
her mother and chose not to.
The defense attempted to rebut the victim's reason for belatedly
accusing her father of abusing her -- protection of the fifteen-year-old
daughter of defendant's companion -- by calling an investigator from the
state's attorney's office. The investigator testified that he did not
investigate the situation between defendant and the fifteen-year-old. In
the course of his testimony, the investigator said it was common for victims
to come forward with allegations of sexual abuse to protect potential
victims.
In his closing, defendant's counsel argued that the victim's story was
implausible and emphasized that the investigator did not take the victim's
fear for the safety of the fifteen-year-old seriously, asking the jury,
"What does that tell you?" Defendant's counsel stressed that she remained
in her father's house and had "never said a word for the four years she
claims these assaults took place."
The testimony of the expert, Dr. Salter, covered eleven transcript
pages. She gave her credentials and title (assistant professor of clinical
psychiatry and maternal and child health at Dartmouth) and stated her
specialty was "child maltreatment." She gave the background of her
involvement with the case. The State had provided her with a case history
of the victim, whom she had never met.
Dr. Salter then discussed delayed reporting of sexual abuse. She
stated that there were numerous studies on this phenomenon and named a few
of them. She stated that only a low percentage of victims ever reported
abuse (5% told the police; 70% never told anyone) and that she was not aware
of any research on the average length of delay in reporting. Then she was
asked to explain the dynamics of delayed reporting.
EXPERT: Most children don't tell at all. Sometimes
that's because an offender threatens them or
manipulates them, and I've heard this from
both sides, from the victims and the
offenders.... [T]hey will tell kids that
they will kill their mother. They will tell
kids that no one will believe them. They
will tell kids that you asked me to do those
things. How would you like people to know.
... So, they [employ] either direct threats
or some sort of manipulation in order to
insure the child's silence.... [T]here seems
to be some psychological mechanism whereby
kids just shut down, close it in, seal it
off. Some become amnesiac.
. . .
COUNSEL: Is there a reason why this supposedly occurs?
EXPERT: ... We can all guess as to why they don't
tell. One of the guesses is that they are
egocentric, and they believe something is
wrong. That it is their fault.... Children
often doubt that they will be believed in
comparison to an adult. Children get the
message somehow or the other that they are
not supposed to tell. They don't really
understand why, but they obey their parents
out of practice and fear of the consequences.
So, that that's all speculation as to why
they don't tell. The truth is, ... in a
phenomenal number of studies, the majority of
the kids simply just don't tell.
. . .
COUNSEL: And assuming that there are two parents in
the situations, what is it about the dynamics
that precludes, prevents the child from
reporting to the other parent who also
exercises the same kind of influence?
EXPERT: Often, and I won't say this is true in every
case, but in many cases that parent is either
absent or incapacitated, extremely passive,
dependent on the abusive parent in some way.
The child may not have a close relationship
with the mother. I have known some offenders
who are very clever with driving a wedge
between the two, mother and the child, so
that there wasn't any close relationship....
What I am not saying is that that's true in
every case.
COUNSEL: It appears from what you've told me in all of
your answers there is really no scientific
basis, at least for delayed reporting, hasn't
been reduced to a science, would that be a
fair statement?
EXPERT: No. The only thing that you've asked me that
I would agree about that on is the reasons
for the delayed reporting. But delayed
reporting is a very established fact that can
be backed up by lots of studies that it
occurs.
COUNSEL: So ... you can give testimony with respect
to a ... percentage ... that might delay
in reporting or the fact that delayed
reporting often occurs, but it's the reason
for the delayed reporting that you --
EXPERT: ... that I say are speculation. You will
read a lot of authors who give you the truth.
The truth is ... they are guessing about why
children do this. And I'm sure some of the
guesses are accurate, but what we do have
to add on is the fact that they do do it.
COUNSEL: Dr. Salter, with respect to your testimony in
delayed reporting, do you have to accept as
true the allegations in order to give that
kind of testimony?
EXPERT: No.
COUNSEL: What about with regard to the family dynamics
of sexual abuse? Again, do you have to
accept the truth of the allegations before
you can give testimony with respect to any
of the facts of this case?
EXPERT: No. As I understand it, I am being asked,
for example, whether delayed reporting is or
isn't common. I don't have to accept or
really know very much about the reporting in
this specific case to answer that question.
The import of Dr. Salter's testimony was that, in general, sexually
abused children either do not report the abuse at all or delay reporting it
for a significant period of time. She explicitly stated that she was not
accepting the truth of the allegation in this case and was merely relating
what studies had shown about "whether delayed reporting is or isn't common."
This narrow type of expert testimony concerning general behavior of
victims, offered by someone who has not interviewed the victim, is consid-
ered to pose the least danger of improperly influencing the jury. See State
v. Wetherbee, ___ Vt. ___, ___, 594 A.2d 390, 394 (1991). Dr. Salter did
not describe her understanding of the profile of a sexually abused child.
See State v. Gokey, 154 Vt. 129, 131, 574 A.2d 766, 767 (1990) (physical
symptoms such as headaches, vomiting, and nausea; behavioral symptoms, such
as secretiveness, worry, anxiousness, low self-esteem, poor concentration,
day dreaming, poor school work, acting out, and difficultly relating to
other children). The only symptom described by Dr. Salter which could be
said to be consistent with sexual child abuse is the tendency of many
victims to delay reporting or not to report at all.
Further, the psychologist gave her opinion that the reasons for delayed
or lack of reporting are speculative in any particular case. She opined,
"We can all guess as to why they don't tell. . . . And I'm sure some of the
guesses are accurate . . . ." In a nutshell, the probative value of this
testimony was that studies demonstrate that delay in or absence of reporting
by sexually abused children "is a very established fact," a not-so-
surprising proposition.
The specific issue on which Dr. Salter offered testimony --
commonness of the phenomenon of reporting delay -- is generally accepted in
the field of psychology, see, e.g., Myers, Bays, Becker, Berliner, Corwin &
Saywitz, Expert Testimony in Child Sexual Abuse Litigation, 68 Neb. L. Rev.
1, 52 (1989), and I submit supported by common sense. Understandably,
defendant did not call an expert to the stand to rebut Dr. Salter's testi-
mony, nor has he brought forth any grounds for disputing her testimony or
suggested how he would have challenged it at trial had she testified in
person.
Cross-examination of this witness would not undermine the probative
force of her opinion that reasons for delayed reporting are "guesswork."
Her testimony on why abused children delay reporting was exclusively in the
realm of common knowledge. I suggest that offender threats and psycho-
logical manipulation, the egocentricity of children, their blind obedience
to parental authority, and imbalance in parental capacity -- all given as
general reasons for delayed reporting -- are subjects properly commented
upon in argument.
We have stated that "the unique psychological effects of sexual assault
on children place the average juror at a disadvantage in understanding the
behavior of the victim." State v. Catsam, 148 Vt. 366, 369, 534 A.2d 184,
187 (1987). It does not follow, however, that everything to which an
expert testifies in this area is outside the realm of common understanding.
The witness's status as an expert did not transform the facts to which she
testified into information beyond the understanding of the lay person. An
adolescent's failure to disclose the sexual abuse which her father committed
because she was warned not to tell and because she assumed no one would
believe her is a matter within the jury's ordinary human experience. See
Canas v. Maryland Cas. Co., 236 Neb. 164, 172, 459 N.W.2d 533, 539 (1990)
(The test for the necessity of expert opinion is whether "'the particular
issue can be determined from the evidence presented and the common knowledge
and usual experience' of the fact finders.").
I do not suggest that delay in reporting should never be a subject on
which an expert's opinion is permitted. V.R.E. 702 (when "specialized
knowledge will assist the trier of fact to understand the evidence," an
expert may give an opinion.) It is within the trial court's discretion to
admit this evidence. I agree that in this case, the need for it was at best
minimal, and it probably should not have been admitted. My conclusion as to
its inadmissibility is based not on the probative impact of the evidence,
but on the lack thereof. By its very nature, the testimony did not boost
the State's case enough to have made any difference.
The expert's ambivalence in many ways undermined the force her opinions
might otherwise have had, which was dubious at best. She testified that she
had no knowledge about studies on the length of delay in disclosure and that
she and those in her field can only speculate as to the reasons for delay
because they have no data to support their theories. The expert never
opined that these speculative reasons for delayed reporting were applicable
to this case. From her testimony, the jury was asked to glean only that it
was possible for many reasons to cause delay in reporting, as opposed to the
single reason offered by defendant -- that the abuse never happened. I do
not read the prosecutor's argument to the jury as claiming more from Dr.
Salter's testimony than it deserved had she not testified at all.
The information which the expert related was not relevant to
defendant's guilt nor did it suggest that the victim was truthful. Cf.
State v. Wetherbee, 2 Vt. L.W. 191, 194 (May 3, 1991) (mental health pro-
fessional who has examined the victim and then testifies as the State's
expert at trial may be perceived by jury as vouching for victim's credi-
bility). The only impact of Dr. Salter's testimony, and the only purpose
for which it was used, was to dispel any stereotypic bias that children who
delay reporting of alleged abuse must be lying. See Gokey, 154 Vt. at 133-
34, 574 A.2d at 768.
This case was to be won or lost on the strength of the victim's
testimony in relation to that of defendant and his three sons. The defense
focused primarily on the unlikelihood that years of sex between father and
daughter could have happened without the sons having heard at least some of
it. The defense particularly attacked the victim's reason for coming
forward at such a late date. The defense argued that the victim's stated
motive, protection of the fifteen-year-old, was weak and not believed by the
investigator, who did not take her fear seriously enough to investigate.
It is noteworthy that it was not Dr. Salter who proposed protection of a
potential victim as a reason for delay in reporting. It was the victim
herself. Defendant's attack on victim's motive, however, left this key
question begging an answer. If not to protect the fifteen-year-old, why did
the victim accuse her father? The defense had no theory on motive. Counsel
told the jury in final argument, "I predict, however, the State will say,
well, why would [the victim] go through this if it weren't true. And the
answer is, we don't know why."
Dr. Salter's testimony had no bearing on the victim's motive to
report, which I believe was the crux of this case. Dr. Salter's recitations
were harmless window dressing, sufficiently remote from the critical issues
so as not to affect the verdict. The majority simply gives the jury too
little credit to understand the nature of what Dr. Salter actually said.
Defendant also argues that the court erred in allowing evidence of
"prior bad acts" -- defendant's similar attacks on the victim committed over
a three-year period preceding the charged incident. Admission of this evi-
dence is a matter of discretion, which was not abused in this case. Sexual
abuse of a child by a parent rarely occurs as an isolated incident. Rather,
incest is a condition in a dysfunctional family usually consisting of a rou-
tine pattern of repeated abuse. Juries are not ignorant of the phenomenon
of incest. The trial court properly determined that the prior bad acts were
relevant under V.R.E. 404(b) and not unfairly prejudicial under V.R.E. 403,
and it gave a limiting instruction. See State v. Cardinal, ___ Vt. ___,
___, 584 A.2d 1152, 1154 (1990).
I would affirm, and have been authorized by Justice Peck to say that he
would do the same.
_________________________________
Associate Justice
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