Christopher P. Girardot v. United States , 2014 D.C. App. LEXIS 174 ( 2014 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-CO-144
CHRISTOPHER P. GIRARDOT, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF2-3822-06)
(Hon. Zinora Mitchell-Rankin, Trial Judge)
(Argued November 19, 2013 Decided June 12, 2014)
Alice Wang, Public Defender Service, with whom James Klein and Jaclyn
Frankfurt, Public Defender Service, were on the brief, for appellant.
Stephen F. Rickard, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, and Elizabeth Trosman, Amy Zubrensky, and
Ann K. H. Simon, Assistant United States Attorneys, were on the brief, for
appellee.
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and PRYOR,
Senior Judge.
FISHER, Associate Judge: Appellant Christopher Girardot argues, for the
second time before this court, that he is entitled to a new trial because the trial
2
court excluded expert testimony. We hold that the trial judge did not exercise her
discretion erroneously and therefore affirm.
I. Factual Background
During Mr. Girardot‟s bench trial in 2006, the government relied upon the
testimony of two victims, eight-year-old J.B. and ten-year-old C.N.1 After hearing
the evidence, the trial court found appellant guilty of two counts of misdemeanor
sexual abuse, in violation of D.C. Code § 22-3006 (2001). Prior to trial, appellant
had sought to introduce the testimony of Dr. Susan Robbins, “an expert in
children‟s cognitive processes, and the pressures and factors that can prompt a
child to make false complaints of sexual abuse.” Girardot I, 996 A.2d at 343. We
remanded appellant‟s case for a more thorough inquiry, instructing the trial court to
consider all three prongs of the Dyas test for evaluating the admissibility of expert
testimony.2 Girardot I, 996 A.2d at 349.
1
For a description of their testimony, see Girardot v. United States, 996
A.2d 341, 344-45 (D.C. 2010) (Girardot I).
2
Dyas v. United States, 376 A.2d 827, 832 (D.C. 1977).
3
At an evidentiary hearing held on June 22 and June 23, 2011, Judge
Mitchell-Rankin heard more than six hours of testimony and argument concerning
Dr. Robbins‟ qualifications. Dr. Robbins returned to court and gave her
substantive testimony on September 26, 2011. The trial court explained: “We‟re
going to proceed as if the issue of qualifications has been resolved to get to the
substantive . . . testimony.” That testimony, which included direct examination,
cross-examination, and redirect, spans 150 pages of transcript.
On February 2, 2012, Judge Mitchell-Rankin issued a twenty-three page
order, comprehensively addressing the Dyas factors and again ruling that the
testimony would be excluded. The court also stated that “Dr. Robbins‟ testimony
did not provide any information that was helpful in evaluating the statements made
by J.B. and C.N.” Judge Mitchell-Rankin therefore found, in an alternative ruling,
that “the testimony would not lead [her] to reach a different conclusion as to
whether the Defendant was guilty beyond a reasonable doubt.”
II. The Dyas Analysis
“Although the admission of expert testimony falls within the discretion of
the trial judge, . . . because the right to confront witnesses and to present a defense
4
are constitutionally protected, . . . „the defense should be free to introduce
appropriate expert testimony.‟” Benn v. United States, 978 A.2d 1257, 1269 (D.C.
2009) (citations omitted). We will, however, “defer to the trial court‟s exclusion of
expert testimony when it is based on a reasoned and reasonable exercise of
discretion[.]” Id. at 1276. “[T]here is an important tradeoff for giving the trial
court such latitude: that court must take no shortcuts; it must exercise its discretion
with reference to all the necessary criteria.” Ibn-Tamas v. United States, 407 A.2d
626, 635 (D.C. 1979) (emphasis in original) (citations omitted). Thus, “the court‟s
determination must be case-specific, based on the proffered expert testimony,” and
“upon a consideration of each of the three separate criteria identified in Dyas.”3
Benn, 978 A.2d at 1278.
3
There are “two levels of analysis to a trial court‟s ruling on expert
testimony.” Ibn-Tamas, 407 A.2d at 632. First, expert testimony must meet the
following criteria:
(1) the subject matter “must be so distinctively related to
some science, profession, business or occupation as to be
beyond the ken of the average layman;” (2) “the witness
must have sufficient skill, knowledge, or experience in
that field or calling as to make it appear that his opinion
or interference will probably aid the trier in his search
for truth;” and (3) expert testimony is inadmissible if “the
state of the pertinent art or scientific knowledge does not
permit a reasonable opinion to be asserted even by an
expert.
(continued…)
5
A. “Beyond the Ken”
In Girardot I, “we remand[ed] . . . so that the trail court may re-visit the first
Dyas prong and, as it ha[d] not yet done, apply the second and third Dyas prongs to
the defense proffer of Dr. Robbins‟s proposed testimony.” 996 A.2d at 349. The
first Dyas factor is whether the subject matter to be addressed by the expert
testimony is “beyond the ken of the average layman.” Dyas, 376 A.2d at 832(emphasis omitted). Simply put, an expert “cannot testify to matters which „the
jury itself is just as competent‟ to consider.” Ibn-Tamas, 407 A.2d at 632. In our
previous examination of this case, we held that the “beyond the ken of a layman
[or lay person]” standard applies to bench trials. Girardot I, 996 A.2d at 348.
(…continued)
Dyas, 376 A.2d at 832 (emphasis in original) (quoting E. Cleary, McCormick on
Evidence § 13, at 29-31 (2d ed. 1972)). Second, “[e]xpert testimony admissible
under the criteria of Dyas . . . is still subject to exclusion if the danger of unfair
prejudice substantially outweighs its probative value.” Jones v. United States, 990
A.2d 970, 977 (D.C. 2010); see (William) Johnson v. United States, 683 A.2d
1087, 1099 (D.C. 1996) (en banc) (adopting “the policy set forth in Federal Rule of
Evidence 403—„evidence [otherwise relevant] may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice‟”).
6
On remand, Girardot argued that “Dr. Robbins‟ proposed testimony is
beyond the ken of the average layperson because it is simply the defense corollary
of the expert testimony that the Court of Appeals [has previously] concluded was
beyond the ken of the average lay person” when offered by the government.
Appellant was referring to our cases holding “that the behavioral characteristics
and psychological dynamics of child molestation victims are beyond the ken of the
average juror.” Jones v. United States, 990 A.2d 970, 978 n.17 (D.C. 2010) (citing
Mindombe v. United States, 795 A.2d 39, 42 (D.C. 2002), and Oliver v. United
States, 711 A.2d 70, 73 (D.C. 1998)). In Mindombe, we held that a child victim‟s
response to sexual abuse could be misperceived by the jury and, therefore, an
expert‟s explanation “serves a useful and necessary purpose at trial.” 795 A.2d at
47. Similarly, in Oliver, we held that an expert‟s “testimony was relevant because
it assisted jurors in understanding the psychology of an abused child‟s
recantation.” 711 A.2d at 73. Appellant asserts that, to level the playing field, the
defense should “be permitted in appropriate cases to present expert testimony on
psychological factors that can lead children to make false reports of sexual abuse.”
Finding the “defense corollary” argument to be unsound, Judge Mitchell-
Rankin distinguished Mindombe and Oliver, pointing out that Dr. Robbins‟
7
testimony would “not address the psychological and behavioral characteristics of
sexually abused children.” This was not the end of her analysis, however.
The trial judge identified the premises underlying Dr. Robbins‟ opinions and
analyzed “„the extent to which the [proffered] testimony will provide information
that is not likely to be known by lay jurors.‟” Quoting Benn, 978 A.2d at 1267.
The witness had described the problems inherent in “leading or suggestive
questioning, repetitive questioning, multiple choice questioning, and encouraging
certain responses through praise and attention.” The court concluded that “there is
simply nothing counter-intuitive, inherently unique or scientific about the
proposition that children can be misled and confused by the[se] types of
questions”—“it is a matter of common sense[.]” Moreover, “[a]ny perceived bias
on the part of the interviewer or in the format of the questioning can be fully
explored by counsel through the presentation of evidence and effective cross
examination. Well developed litigation skills and not expert testimony are
required under these circumstances.”
In sum, Judge Mitchell-Rankin was “satisfied that the average layperson is
„just as competent‟ as the proffered expert to address the issues presented in this
case because the criteria . . . are no different than those which the average
8
layperson commonly uses to determine credibility, reliability and accuracy of
information, and truth and falsity of a claim[.]”
Appellant argues that because Dr. Robbins‟ testimony involved summarizing
the methods and results of psychological studies, it was necessarily beyond the ken
of an average layperson. See Benn, 978 A.2d at 1277 (“[I]t cannot be said that
psychological studies regarding the accuracy of an identification are within the ken
of the typical juror.” (citation omitted)). However, there can be no categorical rule
requiring admission simply because academic studies will be discussed. Instead,
the trial court must examine the basic principles on which the witness will rely. In
this case, having listened at length to Dr. Robbins, the court concluded that “[t]he
operative principles are a matter of common knowledge and are not difficult to
understand. Couching these principles in technical terms does not render them
otherwise.”
B. “Sufficient Skill, Knowledge, or Experience”
The second Dyas factor requires that the witness have “sufficient skill,
knowledge, or experience in that field or calling as to make it appear that his
opinion or inference will probably aid the trier in his search for truth.” Dyas, 376
9
A.2d at 832 (emphasis omitted). Judge Mitchell-Rankin found, however, that
“Dr. Robbins‟ educational experience, work experience, and professional
designations do not, individually or in the aggregate, demonstrate that she has
sufficient skill, knowledge or experience in the field relevant to this case.”
During the first appeal, Dr. Robbins was described as “an expert in
children‟s cognitive processes, and the pressures and factors that can prompt a
child to make false complaints of sexual abuse.” Girardot I, 996 A.2d at 343. The
defense sought to demonstrate “that (1) for psychological reasons related to a
child‟s cognition, children may make false allegations about child abuse, and
(2) scientific studies, which have delineated these cognitive factors and
psychological dynamics, will be helpful to the trial court in resolving this case[.]”
Id. at 347. However, the testimony which materialized on remand varied
significantly from this proffer. Appellant argued below and again before this court
that Dr. Robbins, a tenured professor of social work with more than thirty years of
experience, was qualified to identify and discuss problematic questioning that
occurred during the forensic interviews of J.B. and C.N.
In eleven pages of its order, the trial court carefully identified the gaps in
Dr. Robbins‟ background and experience. In particular, Judge Mitchell-Rankin
10
explained that Dr. Robbins had not diagnosed or treated children who have been
victims of sexual abuse. She had not completed any coursework in cognitive
psychology or forensic interviewing. Although her work experience includes
training forensic interviewers in more than fifty workshops and watching over one
hundred recorded forensic interviews, she has never “conducted or directly
observed a forensic interview of a child.” “In fact,” the trial court noted,
“Dr. Robbins testified that she has no clinical experience with child patients other
than in the context of providing family therapy that was unrelated to the issue of
child sexual abuse.”
As an academic, Dr. Robbins had published “approximately fifty articles and
book chapters on topics such as substance abuse, club drugs, recovered memory,
satanic ritual abuse, social work pedagogy, and issues facing the Native American
community.” Despite addressing this wide range of topics, “she has not authored a
single article or applied for any research grants on the subjects of child sexual
abuse, false allegations of child sexual abuse, forensic interview techniques, or the
suggestibility of child witnesses.”
Although she acknowledged that reading alone may provide expertise,
Judge Mitchell-Rankin was concerned that Dr. Robbins had not read the latest
11
editions of some of the sources she cited and was unaware that an article on which
she relied had been withdrawn. When pressed to explain how the studies she
listed, which focused primarily on preschool children, demonstrated the
suggestibility of older children, Dr. Robbins claimed that there was newer research
on that subject which she had failed to cite. Dr. Robbins confirmed, however, that
“there are not enough studies [on the suggestibility of older children] to have a true
consensus.” The trial court found that this testimony failed “to demonstrate (or
even attempt to explain) how any of [the] research is applicable to children
between the ages of eight and ten, the pertinent age range in the subject case.”
Judge Mitchell-Rankin explained that “the conceded lack of consensus in the
academic community is relevant to the second Dyas prong because it suggests that
Dr. Robbins does not have sufficient knowledge, based upon „reading alone,‟ to
render an opinion that would likely assist in the search for truth.”
C. The State of the Scientific Knowledge
Under the third prong of Dyas, “expert testimony is inadmissible if „the state
of the pertinent art or scientific knowledge does not permit a reasonable opinion to
be asserted even by an expert.‟” 376 A.2d at 832. This inquiry “begins—and
ends—with a determination of whether there is general acceptance of a particular
12
scientific methodology, not an acceptance, beyond that, of particular study results
based on that methodology.” Ibn-Tamas, 407 A.2d at 638.
During her testimony, Dr. Robbins failed to connect her opinion to specific
studies that were relevant to the suggestibility of eight and ten year olds. The
articles on the list that she provided to the court pertain to children of preschool
age. When challenged on this discrepancy, Dr. Robbins explained that in “certain
situations . . . adults are even more suggestible than children. It depends on the
methodology, it depends on the study . . . . [T]he newer research is suggesting that
what we thought before, that the older children and adults are not suggestible,
that‟s simply not the case.”
When asked whether any of this newer research was on the list of sources on
which she had relied, Dr. Robbins replied, “[n]o, it is not.” After glancing at her
list, she then said, “I need to change my answer because I just found that one of
these sources does have it.” Dr. Robbins indicated a source on the list, saying, “I
don‟t have that article with me. And I don‟t have any other references on this list
about adult suggestivity because this workshop [for which the list was originally
prepared] was never about adults.” The government‟s attorney produced the
13
indicated study and showed it to Dr. Robbins. After looking at it, Dr. Robbins
said, “[o]kay, this is not the article I was thinking of.”
As Judge Mitchell-Rankin explained, Dr. Robbins‟
claim that the studies are “coming to a consensus” is
insufficient to justify a conclusion that there is general
acceptance in the relevant scientific community
concerning the methodology for identifying the extent to
which children between the age of eight and ten are
suggestible, nor does it justify a conclusion that there is
general acceptance of a specific methodology of
questioning eight- and ten-year-old children during
forensic interviews.
Appellant “argu[ed] that because the methodology involving preschool-aged
children is generally accepted, so too is the methodology used in the . . . studies
involving children between the ages of eight and ten.” The trial court found that
“[t]his argument . . . is unsupported by Dr. Robbins‟ testimony and the literature
cited in her reference list.”
III. Reviewing for Abuse of Discretion
14
In recent years we have remanded several cases for further proceedings
where the trial court had excluded expert testimony proffered by the defense. In
some instances, the evidence had been excluded almost as a categorical matter.
See Russell v. United States, 17 A.3d 581, 588 (D.C. 2011) (remanding “to allow
the trial court to give individualized consideration to the defense‟s proffer in the
context of the facts in this case”); Benn, 978 A.2d at 1261 (observing that the trial
court “came dangerously close to employing a per se rule of exclusion”). In other
cases, the trial court applied incorrect legal principles. See Minor v. United States,
57 A.3d 406, 409 (D.C. 2012) (agreeing that “the trial court abused its discretion
because the underpinnings for its exclusion of the testimony go solely to the weight
of the expert testimony and not to its admissibility under Dyas”).
Despite this recent trend, we have not created a regime of per se
admissibility to replace a practice of routine exclusion. We still recognize that
“[w]hether to admit expert testimony is committed to the discretion of the trial
court; a ruling either admitting or excluding such evidence will not be disturbed
unless manifestly erroneous—i.e., for abuse of discretion.” Benn, 978 A.2d at
1273 (internal quotation marks and citation omitted); see In re Melton, 597 A.2d
892, 901 (D.C. 1991) (en banc) (“The admission or exclusion of expert
testimony . . . is committed to the trial court‟s broad discretion.”).
15
“The concept of „exercise of discretion‟ is a review-restraining one.”
(James) Johnson v. United States, 398 A.2d 354, 362 (D.C. 1979). We make “two
distinct classes of inquiries when reviewing a trial court‟s exercise of discretion.”
Id. at 367. First, we ask “whether the exercise of discretion was in error[.]” Id. If
we conclude that it was, we then must determine “whether the impact of that error
requires reversal. It is when both these inquiries are answered in the affirmative
that we hold that the trial court „abused‟ its discretion.” Id.Judge Mitchell-Rankin did not err in exercising her discretion. She
diligently applied all three prongs of the Dyas test after carefully eliciting the
witness‟s qualifications and her substantive testimony. The judge was aware of her
discretionary authority and exercised it in a case-specific inquiry. This was just the
sort of “reasoned and reasonable exercise of discretion” to which we will defer.
Benn, 978 A.2d at 1276. 4 Appellant insists, however, that there was only one
permissible outcome based on this record. We disagree. “[T]he core of
„discretion‟ as a jurisprudential concept is the absence of a hard and fast rule that
4
The reader will have noted that the trial judge spent an extraordinary
amount of time complying with our remand order. We applaud her diligence, but
we are not suggesting that such a time-consuming inquiry will be required in all
cases in order to pass appellate muster.
16
fixes the results produced under varying sets of facts.” (James) Johnson, 398 A.2d
at 361. In other words, “[d]iscretion signifies choice.” Id.The record in this case does not mandate that Dr. Robbins‟ testimony be
admitted. Nor does the Constitution require it. “[T]he Constitution guarantees
criminal defendants „a meaningful opportunity to present a complete defense[,]‟”
Holmes v. South Carolina, 547 U.S. 319, 324 (2006), and this includes the right to
present appropriate expert testimony. Benn, 978 A.2d at 1269. But invocation of
that right does not displace the rules of evidence, nor does it rob a trial judge of
discretion. “[W]ell-established rules of evidence permit trial judges to exclude
evidence if its probative value is outweighed by certain other factors such as unfair
prejudice, confusion of the issues, or potential to mislead the jury.” Holmes, 547
U.S. at 326. The Dyas test is one of those well-established rules, and it cannot
fairly be said that this test is “arbitrary or disproportionate to the purposes [it is]
designed to serve.” Id. at 324 (citation omitted) (describing rules of evidence
which abridge the right to present a defense).
In other words, the right to present evidence “is not unlimited” and may
“bow to accommodate other legitimate interests in the criminal trial process.”
United States v. Scheffer, 523 U.S. 303, 308 (1998) (citations omitted). One such
17
legitimate concern, embodied in the Dyas test, is that expert testimony serve its
proper function and not usurp the role of the jury. “[B]ecause expert or scientific
testimony possesses an „aura of special reliability and trustworthiness,‟ the proffer
of such testimony must be carefully scrutinized.” Ibn-Tamas, 407 A.2d at 632(citation omitted); see 1 Kenneth S. Broun et al., McCormick on Evidence § 13, at
90 (7th ed. 2013) (“In the past three decades, the use of expert witnesses has
skyrocketed. . . . Some commentators claim that the American judicial hearing is
becoming a trial by expert.”). After such careful scrutiny, Judge Mitchell-Rankin
determined that Dr. Robbins‟ testimony did not meet the Dyas test. Because we
uphold this exercise of discretion, we need not address her alternative ruling
assessing the impact Dr. Robbins‟ testimony would have had on the verdict.
IV. Conclusion
The judgment of the Superior Court is hereby
Affirmed.