State v. Herbert ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
)
v. ) I.D. No. 2005000034
)
JOHN HERBERT, )
)
Defendant. )
Submitted: June 3, 2022
Decided: August 8, 2022
Upon Consideration of the State’s Motion in Limine,
GRANTED.
Upon Consideration of Defendant’s Motion in Limine,
DENIED.
MEMORANDUM OPINION
Nicholas R. Wynn, Esquire, Deputy Attorney General, DEPARTMENT OF
JUSTICE, Wilmington, Delaware. Attorney for the State of Delaware.
James Liguori, Esquire, LIGUORI & MORRIS, Dover, Delaware. Attorney for
Defendant John Herbert.
BUTLER, R.J.
Defendant John Herbert has been indicted on child sexual abuse charges. The
Court previously denied Herbert’s motion to dismiss the indictment. 1 The parties
now move in limine for rulings on reports offered by two defense psychologists. The
motions require the Court to apply Wheat v. State2 and Powell v. State3 as well as
the evidentiary gatekeeping requirements that qualify a witness as an expert. Under
those standards, the Court concludes that the defense’s reports are inadmissible.
Accordingly, the State’s motion to exclude one report is granted and Herbert’s
motion to admit the other report is denied.
BACKGROUND
Herbert’s three-year-old daughter, A.H., alleges that Herbert allowed or
directed her to “play with” his penis.4 That allegation has led to two charges: (1)
Unlawful Sexual Contact First Degree;5 and (2) Sexual Abuse of a Child by a Person
in a Position of Trust, Authority, or Supervision Second Degree.6
1
See generally State v. Herbert, 2022 WL 811175 (Del. Super. Ct. Mar. 17, 2022).
2
527 A.2d 269 (Del. 1987) (articulating rules governing admission of expert
testimony in intrafamilial child sexual abuse cases).
3
527 A.2d 276 (Del. 1987) (applying rules set forth in Wheat).
4
For a more complete background, which includes an ill-fated “pork tenderloin,”
see Herbert, 2022 WL 811175, at *1.
5
See generally 11 Del. C. § 769(a) (2010).
6
See generally id. § 778A (2022).
2
Relevant here, both charges require proof that Herbert (1) caused A.H. to
touch his penis; and (2) intended the touching to be “sexual in nature.” 7 Herbert
seeks to defeat these elements through testimony from two psychologists: Dr. Amy
Cooney-Koss and Dr. Joseph Zingaro. Dr. Cooney-Koss would dispute evidence of
an act—i.e., whether any touching occurred. And Dr. Zingaro would dispute
evidence of intent—i.e., whether Herbert wanted any touching to be sexual in nature.
A. The Proposed Testimony of Dr. Cooney-Koss
Dr. Cooney-Koss is a forensic psychologist. As part of her practice, she
analyzes interviews conducted by the Children’s Advocacy Center (“CAC”). A.H.
was interviewed by CAC at least three times. Dr. Cooney-Koss prepared a report
on those interviews.8
Dr. Cooney-Koss’s report is structured as a commentary that provides
midstream feedback on recorded statements made by A.H. to her CAC interviewer.
This format enables Dr. Cooney-Koss to contrast A.H.’s narrative with narratives
she considers “typical” or “common” in child sex abuse cases.9 Dr. Cooney-Koss
posits that if a child alleges sexual abuse, but the child’s post-abuse behavior does
not match that of an average child sex abuse victim, then the allegation is not
7
Id. § 761(g)(1)(b)–(c) (2021). Although the charges use a “reasonable person”
standard, see id., the Court previously held that an objective standard does not
override evidence of Herbert’s subjective intent, Herbert, 2022 WL 811175.
8
Ex. A to State’s Mot. in Lim. [hereinafter “Cooney-Koss Report”].
9
Id. at 3.
3
credible. Thus, Dr. Cooney-Koss’s conclusions are directed almost exclusively to
A.H.’s credibility as a reporter of her abuse.
According to Dr. Cooney-Koss, A.H.’s descriptions of her alleged abuse and
her overall attitude toward it are too “light and playful” to suggest that Herbert
sexually abused her.10 Similarly, Dr. Cooney-Koss finds A.H.’s memory and
version of the events to be “not consistent,”11 “vague,” 12 “illogical,”13
“implausible,”14 and “contradictory.”15 Dr. Cooney-Koss even says that some of the
ways in which A.H. claims Herbert abused her would be physically impossible. 16
Dr. Cooney-Koss ultimately opines that A.H. does not exhibit qualities or
symptoms of a child who has been sexually abused. 17 Accordingly, Dr. Cooney-
Koss would advise the jury to disbelieve A.H.:
[N]o one, including myself, is able to determine the veracity of the
alleged victim’s statements with certainty . . . . [But] there tend to be
characteristics of victims . . . that more commonly occur . . . .
[I]f A.H.’s statements about her father’s actions are hypothetically
accepted, they are not consistent with how sexually abusive crimes . . .
are typically perpetrated . . . . The totality of inconsistencies in A.H.’s
statements . . . as compared to other confirmed cases of sexual abuse
raise serious concerns about the fidelity of her [allegations] . . . .
10
Id. at 7.
11
Id. at 8.
12
Id. at 6.
13
Id. at 9.
14
Id.
15
Id. at 5.
16
See, e.g., id. at 7.
17
E.g., id. at 7–8.
4
In conclusion, A.H.’s presentation and statements during the CAC
videos offer data that is worthy of consideration when the finder of fact
is attempting to ascertain the credibility of the allegations . . . . I have
identified several irregularities in most of the allegations A.H. made . .
. . 18
B. The Proposed Testimony of Dr. Zingaro
Herbert’s other expert is Dr. Zingaro. Dr. Zingaro is the clinical director of a
counseling center in Milford, Delaware. He concentrates his practice on family
psychology and identity issues.
Herbert has not asserted a psychiatric defense. Herbert’s motion to dismiss
the indictment was directed to the state of mind—i.e., intent—criminalized by the
charged offenses. 19 Nonetheless, Dr. Zingaro examined him to determine whether
he has “clinical psychopathology.”20
Dr. Zingaro made a report that excludes mental “disease or defect.” He then
offers an explanation as to what Herbert may have been thinking at the time of the
allegations. 21 But Dr. Zingaro’s report does not read like a psychological
assessment. Instead, the report operates as vehicle for transmitting testimony about
the state of Herbert’s “normal” mind from various individuals who would prefer not
to be cross-examined in court.
18
Id. at 8–9.
19
See Herbert, 2022 WL 811175, at *3, *7–9.
20
Ex. A to State’s Opp’n to Def.’s Mot. in Lim. at 4 [hereinafter “Zingaro Report”].
21
See generally id. at 1–5.
5
Dr. Zingaro’s report journalistically compiles statements and anecdotes about
Herbert’s upbringing and personality that were provided by Herbert, his parents, his
past employers, and his therapist. These witnesses relayed to Dr. Zingaro that
Herbert was raised by “scientists” who taught him to be culturally open-minded and
to explore sexuality without fear of societal taboo. 22 Dr. Zingaro does not analyze
these accounts. He simply observes that Herbert had a “unique” childhood, which,
in turn, might have inspired him to be an unconventional parent.23 Dr. Zingaro thus
suggests that Herbert likely intended any touching between him and A.H. to be
“intellectual” or otherwise innocuous, but not sexual in nature.24
C. These Motions
The parties have moved in limine based on the defense’s reports. The State
seeks to exclude Dr. Cooney-Koss’s report, arguing that it offers opinion prohibited
by Wheat v. State25 and Powell v. State.26 Herbert opposes the State’s motion and
has filed one of his own. He seeks to admit Dr. Zingaro’s report, arguing that it will
assist the jury in understanding Herbert’s intent by painting a more complete picture
of Herbert’s background. The State opposes Herbert’s motion. The motions are
now ripe for decision.
22
Id. at 3–4.
23
Id. at 5.
24
Id.
25
527 A.2d 269 (Del. 1987).
26
527 A.2d 276 (Del. 1987).
6
STANDARD OF REVIEW
On a motion in limine, the Court balances evidentiary objections against “the
end of ascertaining the truth[.]”27 The Court will exclude evidence that is irrelevant
or inadmissible under the Rules of Evidence or applicable precedent.28
Rule 702 governs expert testimony.29 “When a party offers expert testimony,
the court must determine whether the proffered expert’s knowledge will assist the
trier of fact.” 30 In doing so, the Court “must act as a gatekeeper” to ensure that the
“expert’s opinion [is] based upon a proper factual foundation and sound
methodology[.]” 31 This inquiry is “flexible.” 32 It is “tied to the facts of a particular
case” and depends on “the nature of the issue, the expert's particular expertise, and
the subject of his testimony.”33 Accordingly, the Court has “considerable leeway”
in deciding whether expert testimony is admissible.34
27
Del. R. Evid. 102.
28
Id. R. 402.
29
See generally id. R. 702.
30
Pavey v. Kalish, 2010 WL 3294304, at *3 (Del. Aug. 23, 2010) (citing Del. R.
Evid. 702). See generally Kumho Tire Co., Ltd v. Carmichael, 526 U.S. 137, 141
(1999); Daubert v. Merrell Dow. Pharms., Inc., 509 U.S. 579, 590–91 (1993).
31
Perry v. Berkley, 996 A.2d 1262, 1267 (Del. 2010).
32
Gen. Motors Corp. v. Grenier, 981 A.2d 531, 536 (Del. 2009).
33
Bowen v. E.I. du Pont de Nemours & Co., Inc., 906 A.2d 787, 794–95 (Del. 2006)
(internal quotation marks and citations omitted).
34
Garden v. State, 815 A.2d 327, 338 (Del. 2003) (internal quotation marks omitted),
overruled on other grounds by Rauf v. State, 145 A.3d 430 (Del. 2016).
7
The proponent of the expert testimony must establish its admissibility by a
preponderance of the evidence.35 In determining the admissibility of expert opinion,
the Court considers whether
(i) the witness is qualified as an expert by knowledge, skill experience,
training or education; (ii) the evidence is relevant and reliable; (iii) the
expert's opinion is based upon information reasonably relied upon by
experts in the particular field; (iv) the expert testimony will assist the
trier of fact to understand the evidence or to determine a fact in issue;
and (v) the expert testimony will not create unfair prejudice or confuse
or mislead the jury. 36
Relevance and reliability orient this analysis. 37
To be relevant, expert testimony must help the jury “understand the evidence
or . . . determine a fact in issue.”38 So an expert opinion is not relevant unless it
“fits” the case, i.e., makes “a valid . . . connection” from its conclusion to the
“pertinent” issues.39 To be reliable, expert testimony must “be supported by
appropriate validation—i.e., ‘good grounds,’ based on what is known.”40 As a result,
“an expert's testimony is unreliable even when the underlying data are sound if the
expert draws conclusions from that data based on a flawed methodology.”41 “The
35
E.g., Sturgis v. Bayside Health Ass’n Chartered, 942 A.2d 579, 584 (Del. 2007).
36
Cunningham v. McDonald, 689 A.2d 1190, 1193 (Del. 1997) (internal quotation
marks and citations omitted).
37
E.g., Tumlinson v. Advanced Micro Devices, Inc., 81 A.3d 1264, 1269 (Del. 2013).
38
Daubert, 509 U.S. at 591 (internal quotation marks omitted).
39
In re Asbestos Litig., 911 A.2d 1176, 1199 (Del. Super. Ct. 2006) (internal
quotation marks omitted).
40
Daubert, 509 U.S. at 590.
41
Tumlinson, 81 A.3d at 1270 (internal quotation marks omitted).
8
polestar [of admissibility] must always be . . . the evidentiary . . . reliability of the
principles that underlie a proposed submission.” 42
Technical qualifications alone do not make an expert’s opinion admissible.
An expert may be qualified to opine on some matters but disqualified from opining
on others.43 So expert opinion is inadmissible not only if it lacks requisite
credentials, but also if it “embraces matters in which” non-experts are “just as
competent . . . i.e., matters not beyond the ken of the average layman.” 44 Nothing in
the Rules of Evidence requires the Court “to admit . . . the ipse dixit of the expert.”45
ANALYSIS
This case involves “intrafamilial” child sexual abuse. 46 On June 11, 1987, the
Delaware Supreme Court issued two decisions—Wheat and Powell—that defined
the extent to which an expert may testify in intrafamilial child sexual abuse cases.
Since then, only two Delaware cases—Wittrock v. State47 and State v. Floray48—
have discussed Wheat and Powell in a way relevant to the parties’ motions.49
42
Minner v. Am. Mortg. & Guar. Co., 791 A.2d 826, 843 (Del. Super. Ct. 2000).
43
See Tumlinson, 81 A.3d at 1270.
44
Wheat, 527 A.2d at 272–73 (internal quotation marks omitted).
45
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
46
See generally State v. Redd, 642 A.2d 829, 832 (Del. Super. Ct. 1993) (defining
“intrafamily” as “within a family” (citing Black’s Law Dictionary (6th ed. 1990))).
47
1993 WL 307616 (Del. July 27, 1993).
48
715 A.2d 855 (Del. Super. Ct. 1997), aff’d, 720 A.2d 1132 (Del. 1998).
49
Compare, e.g., State v. Ward, 2022 WL 576820, at *6–7 (Del. Super. Ct. Feb. 22,
2022) (statistical evidence of genital injuries); Felton v. State, 2003 WL 21529302,
at *2–3 (Del. July 3, 2003) (statistical evidence of correlation between CAC
9
Although limited in number, these cases do establish some rules that govern here.
And each of those rules assumes that the proffered evidence meets Rule 702’s
threshold requirements.
As explained below, Dr. Cooney-Koss’s report is inadmissible under Wheat
and Powell and Dr. Zingaro’s report is inadmissible under Rule 702.
A. Dr. Cooney-Koss’s testimony is inadmissible.
Dr. Cooney-Koss will highlight “irregularities” in A.H.’s allegations and
question their “fidelity.” 50 But under Wheat and Powell, an expert cannot directly
or indirectly attack the complaining witness’s credibility. Dr. Cooney-Koss’s report
does both. So it must be excluded.
1. Under Wheat and Powell, expert testimony is inadmissible if it directly
or indirectly attacks the complaining witness’s credibility.
a. Wheat and Powell limited experts in intrafamilial child sexual
abuse cases to testimony that contextualizes a complaining
witness’s allegations or conduct but otherwise prohibited experts
from making credibility determinations.
interviews and arrests); Redd, 642 A.2d at 831–33 (applicability of Wheat and
Powell to cases outside the intrafamilial child sexual abuse context); State v. Webb,
1993 WL 331074, at *2 (Del. Super. Ct. Mar. 19, 1993) (statistical evidence
involving eyewitnesses); Cobb v. State, 765 A.2d 1252, 1256–57 (Del. 2001)
(interaction between Wheat and Powell and evidence of bad acts); Condon v. State,
597 A.2d 7, 9–12 (Del. 1991) (applicability of Wheat and Powell to “intra-
household” child sexual abuse).
50
Cooney-Koss Report at 9.
10
Decided on the same day, Wheat and Powell 51 addressed the use of expert
testimony in intrafamilial child sexual abuse cases. The complaining witnesses in
Wheat and Powell alleged that they were raped by their stepfathers. But they also
took acts that, at least in 1987, could have been viewed as “superficially
inconsistent” with their allegations. 52 The complaining witness in Wheat recanted
her allegation and the complaining witness in Powell waited over a year before
reporting hers.
To prove that recantations and reporting delays are consistent with
intrafamilial child sexual abuse, the State introduced expert testimony. On their
own, recantation and late reporting do not implicate a witness’s credible (or
incredible) testimony concerning an incident. Yet, the experts “evaluate[d] the
complainant[s’] credibility in terms of statistical probabilities.” 53 In Powell, for
example, the expert testified that 99% of child sexual abuse complainants tell the
truth. 54 These statistics “indirectly but pointedly” bolstered the complaining
witnesses’ truthfulness. 55
51
The Court cites primarily to Wheat because Powell merely follows Wheat, which
announced the controlling law and appears to have been written first.
52
Wheat, 527 A.2d at 273.
53
Id. at 274.
54
Powell, 527 A.2d at 279.
55
Wheat, 527 A.2d at 274.
11
The Supreme Court found that “tensions unique to the trauma experienced by
a child sexually abused by a family member have remained largely unknown to the
public[.]” 56 As a result, an intrafamilial child sexual abuse victim may do or say
things that, “to average laypeople,” may seem “superficially bizarre, seemingly
unusual, seemingly inconsistent, or normally attributable to inaccuracy or
prevarication.” 57 To educate jurors on why this may happen, the Supreme Court
approved “limited” expert testimony.58 Wheat and Powell held that expert testimony
is admissible only to provide background on the psychosocial principles involved in
intrafamilial child sexual abuse so as to contextualize the complaining witness’s
testimony and behavior. 59
Under Wheat and Powell, expert testimony is admissible only if the
“complainant's behavior or testimony” is (i) “to the average layperson,”
“superficially inconsistent with the occurrence of [sexual abuse;]” (ii) “otherwise
inadequately explained” by common experience; and (iii) “especially attributable to
56
Id. at 273 (internal quotation marks and citation omitted).
57
Id. (internal quotation marks and citations omitted).
58
Id. at 274. Although Wheat and Powell’s concerns may seem a bit dated, the
Supreme Court did imagine that developments in psychological research and social
norms would “obviat[e] the need” for expert testimony one day. See Powell, 527
A.2d at 279 n.3. In other words, the Supreme Court anticipated that behavior it
considered inconsistent in 1987 would become commonplace somewhere down the
road. Consistent with that prediction, the question of whether experts will be useful
is today fact-specific and not controlled by the presence of phenomena that may have
been considered strange in the past. See Wittrock, 1993 WL 307616, at *2.
59
Wheat, 527 A.2d at 275.
12
intrafamily child sexual abuse rather than simply stress or trauma in general.”60
Testimony as to all three prongs must be given “in general terms and directed to
behavior factors in evidence[.]” 61 Testimony as to the attribution prong also must
“demonstrate[] a special nexus to the crime charged[.]”62
Still, the Supreme Court recognized that expert testimony “carries the
potential for credibility enhancement.”63 “Because of its tendency to bolster the
believability of the complainant, and, conversely, to cast doubt on the denial of the
defendant, use [of expert testimony] . . . might be unduly prejudicial.”64 To
counteract this effect, the Supreme Court further held that experts in intrafamilial
child sexual abuse cases “may not directly or indirectly express opinions on the
veracity of” the complaining witness’s allegations or conduct.65 Under Wheat and
Powell, an expert may testify to “general principles of social or behavioral science”
that may “assist the jury in determining the child’s credibility.” 66 But the expert
cannot sit as the thirteenth juror or determine the truth on the jury’s behalf.
Applying its test, the Supreme Court in Wheat and Powell found that the
experts’ statistical models improperly enhanced the complaining witnesses’
60
Id. at 273–75.
61
Id. at 275.
62
Id. at 274.
63
Id.64
Id.65
Id. (emphasis added).
66
Id.13
credibility.67 Ordering new trials, the Supreme Court emphasized that an expert in
an intrafamilial child sexual abuse case cannot be used as a “lie detector.”68
b. Post-Wheat and -Powell cases confirm that these rules apply
outside the context of recantations and delays and to experts that
attack, as well as support, the complaining witness’s credibility.
Wheat and Powell did not answer all the questions concerning expert
witnesses in intrafamilial child sex abuse cases. For one, Wheat and Powell dealt
only with recantations and reporting delays. 69 A.H. did not recant or delay reporting
her allegations. For another, Wheat and Powell were concerned with prosecution
experts and not defense experts. 70 Dr. Cooney-Koss is a defense expert, not a
prosecution expert.
Subsequent caselaw examined these issues. Wittrock v. State71 expanded the
list of witness inconsistences subject to Wheat and Powell’s anti-credibility rules.
And State v. Floray 72 collapsed any distinction between prosecution and defense
experts that Wheat and Powell may have implied.
67
Id. at 274.
68
Id. at 275 (internal quotation marks omitted).
69
See id. at 274 (“We accept . . . and recognize the materiality of expert testimony[]
in cases where there has been a delay in reporting the incident and/or a recantation,
which seeks to explain the significance of such a delay or recantation.”).
70
See Redd, 642 A.2d at 832 n.1 (“The Court . . . does not reach the question of
whether or not, in an intrafamily child sexual abuse case, a defendant may introduce
. . . expert testimony where the State has not sought to do the same.”).
71
1993 WL 307616 (Del. July 27, 1993).
72
715 A.2d 855 (Del. Super. Ct. 1997) (Floray I), aff’d, 720 A.2d 1132 (Del. 1998)
(Floray II).
14
In Wittrock, the complaining witness alleged that she had been raped by her
stepfather, the defendant. The witness, however, did not recant or delay. She instead
exhibited Stockholm Syndrome: 73 she “cared for” the defendant and “wished to be
adopted by him[.]”74 The trial court permitted an expert to explain how these
comments related to intrafamilial child sexual abuse.
On appeal, the defendant argued that the expert should have been excluded
because Wheat and Powell confine expert testimony to recantations and reporting
delays.75 But the Supreme Court disagreed. The Supreme Court clarified that
“[d]elay in reporting and recantation are the primary, but not the only, examples of
behavior and statements which allow expert testimony[.]” 76 Instead, “whether an
expert's testimony will be useful depends upon the child's behavior or statements.”77
The Supreme Court also reaffirmed that, no matter the inconsistency at issue, an
expert cannot veer into the realm of credibility determinations:
73
See generally What is Stockholm Syndrome?, WebMD,
https://www.webmd.com/mental-health/what-is-stockholm-syndrome (last updated
Apr. 13, 2021) (“Stockholm Syndrome is an emotional response. It happens to some
abuse and hostage victims . . . . Someone who has Stockholm Syndrome might have
confusing feelings toward the abuser, including: love, sympathy, empathy, and [a
desire] to protect them.” (formatting omitted)).
74
Wittrock, 1993 WL 307616 at *2.
75
Id.76
Id. (citing Wheat, 527 A.2d at 274).
77
Id.15
An expert may testify about child sexual abuse syndrome where the
complainant has displayed behavior or made statements [that], though
the average layperson would not recognize as consistent with the
occurrence of sexual abuse, are actually attributable to intrafamily child
sexual abuse. Expert testimony is admissible in such instances since it
assists the trier of fact to evaluate the psychological dynamics and
behavior patterns of alleged victims not within a layperson's common
experience while also permitting the trier of fact to determine the
credibility of the victim's and other witness' testimony. Thus, in cases
of alleged child sexual abuse experts may testify to general principles
of social or behavioral science, but may not make credibility
determinations. 78
Because the expert in Wittrock “explained the significance” of the complaining
witness’s “actions and statements without passing judgment on [her] credibility[,]”
the Supreme Court found the expert’s testimony proper under Wheat and Powell.79
Floray separately confirms that Wheat and Powell’s anti-credibility rules
apply equally to the other side of the coin: when an expert attacks, rather than
supports, the complaining witness’s truthfulness.
The defendant in Floray was accused of sexually abusing his seven-year-old
daughter and her ten-year-old friend. The defendant thought an expert would “assist
the jury in determining . . . the victim[s’] credibility . . . in the face of [his] denials.”80
So he moved to admit expert testimony “regarding the propensity of children . . . to
falsify allegations of sexual misconduct.”81
78
Id. (citations omitted).
79
Id.80
Floray I, 715 A.2d at 857.
81
Id. at 863.
16
The Court denied the motion. Applying Wheat and Powell, the Court ruled
that the defense’s expert could not opine on the complaining witnesses’ credibility.82
Doing so would “impermissibly invade the province of the jury by commenting on
the truthfulness of the witnesses[.]”83 On appeal, the Supreme Court affirmed. It
agreed that “[t]he issue [of] the credibility of the child witnesses . . . was properly
left to the jury.”84 In reaching these conclusions, the Floray decisions did not
distinguish between prosecution and defense experts. Wheat and Powell’s anti-
credibility rules apply across the board.
In sum: Wheat and Powell cabined the use of an expert in intrafamilial child
sexual abuse cases to generalized psychosocial testimony that situates in a
behavioral context the complaining witness’s allegations and conduct. Wheat and
Powell preclude experts, whether offered by the State or the defense, from opining
directly or indirectly on the complaining witness’s credibility or truthfulness.
2. Dr. Cooney-Koss’s report directly and indirectly attacks A.H.’s
credibility.
Dr. Cooney-Koss’s report is inadmissible under Wheat and Powell. Her report
does not speak in general terms or discuss principles of intrafamilial child sexual
82
Id. at 862–63. The Court identified several other reasons why the expert’s
testimony would be improper, including that the defendant “made no showing that
the alleged victims . . . displayed any behavior [that] the average lay person would
need assistance in understanding[.]” Id. at 864.
83
Id. at 863.
84
Floray II, 720 A.2d at 1163.
17
abuse. Nor does it seek to place A.H.’s allegations and conduct in a behavioral
context. And it does not identify any nexus—let alone a “special nexus”—
connecting A.H.’s supposedly unbelievable demeanor and statements to the unique
problems caused when a father allegedly sexually abuses his daughter. 85 To the
extent Dr. Cooney-Koss’s report ever mentions these factors and concepts, the report
binds them inextricably to credibility determinations reserved solely for the jury.
Rather than assist the jury, Dr. Cooney-Koss intends to join it. Dr. Cooney-
Koss engages in a line-by-line rebuttal of A.H.’s allegations that is reminiscent of
the “lie detector” technique Wheat and Powell abolished.86 She then compares the
allegations with “typical” or “common” cases, reasoning unsoundly that what is
unusual is necessarily untrue.87 Taken together, Dr. Cooney-Koss deems A.H.’s
allegations illogical, self-contradictory, and physically impossible. Wheat and
Powell bar all these direct credibility attacks. The rest of Delaware law does too.
85
Wheat, 527 A.2d at 274.
86
Id. at 275.
87
See, e.g., id. at 273 (“Exposing jurors to the unique interpersonal dynamics
involved in prosecutions for intrafamily child sexual abuse can provide jurors with
possible alternative explanations for complainant actions and statements that are, to
average laypeople, . . . normally attributable to inaccuracy or prevarication.”
(emphases added) (internal quotation marks and citations omitted)); see also
Tumlinson, 81 A.3d at 1269–70 (directing admissibility analysis to “principles and
methodologies, not [to] the conclusions they generate” and explaining that an
expert’s testimony is unreliable if the expert draws conclusions from a flawed
methodology (internal quotation marks omitted)); Perry, 996 A.2d at 1267(requiring expert testimony to be based on a “sound methodology”).
18
“It is settled in Delaware that experts may not usurp the jury’s function by opining
on the witness’s credibility.” 88
To be sure, Dr. Cooney-Koss does not actually call A.H. a liar. In her opinion,
A.H. is just not telling the truth. But “[a] doctor cannot pass judgment on the alleged
victim's truthfulness in the guise of a medical opinion[.]”89 Jurors are the experts on
the truth.90 There is no room for another.
To contend otherwise, Herbert advances Dr. Cooney-Koss’s resume. Dr.
Cooney-Koss’s report is admissible, Herbert insists, because Dr. Cooney-Koss is an
experienced psychologist who knows things about sexual abuse that jurors do not.
But Dr. Cooney-Koss’s bona fides are beside the point. Expert testimony that is
qualified in form (i.e., properly credentialed) nevertheless may be disqualified in
substance (i.e., improperly focused). 91 Although Dr. Cooney-Koss is concededly
experienced, she was precluded from using her experience to attack A.H.’s
credibility. She did anyway. The jury, not Dr. Cooney-Koss, will decide whether
88
Waterman v. State, 956 A.2d 1261, 1264 (Del. 2008).
89
Floray I, 715 A.2d at 863 (emphasis added) (cleaned up).
90
See, e.g., Poon v. State, 880 A.2d 236, 238 (Del. 2005) (“It is the sole province of
the fact finder to determine witness credibility[.]”); Redd, 642 A.2d at 835(“[Q]uestions of a victim’s credibility are reserved exclusively for a jury.”).
91
See Grenier, 981 A.2d at 529 (“[A]n expert's methodology must be not only
reliable intrinsically but also be reliably applied to the facts of the specific case[.]”
(citations omitted)).
19
A.H.’s story is false. Accordingly, her report is inadmissible and the State’s motion
is granted.
B. Dr. Zingaro’s testimony is inadmissible.
The Court now turns to Dr. Zingaro. Recall that Dr. Zingaro’s report is about
Herbert, not A.H. This puts his report outside Wheat and Powell.92 Even so, no
expert is exempt from Rule 702’s gatekeeping requirements. 93 Those requirements
render Dr. Zingaro’s report inadmissible.94
1. Dr. Zingaro’s “expert” opinion on Herbert’s mental health is
irrelevant and his observations about Herbert’s background do not rest
on scientific or specialized knowledge.
Under Rule 702, an expert’s knowledge and methods must be scientific or
specialized and the opinion they generate must be relevant.95 Here, Dr. Zingaro
92
Although Dr. Zingaro does not cite to Dr. Cooney-Koss’s report, there are times
when Dr. Zingaro seems to allude to it. Compare Cooney-Koss Report at 3
(criticizing A.H.’s use of the word “cute” to describe Herbert’s penis and offering
that children have an unrefined conception of time), with Zingaro Report at 3 (“The
family did not use ‘cute names’ for sexual body parts.”), and Zingaro Report at 5
(“Children’s concept of time is not the same as an adult’s concept of time.”). The
State does not argue, and the Court does not find, that these parities bring Dr.
Zingaro’s report within Wheat and Powell.
93
See Wheat, 527 A.2d at 272 (conducting Rule 702 analysis of expert’s
qualifications before discussing intrafamilial child sexual abuse opinions).
94
Because Dr. Zingaro’s report is inadmissible under Rule 702, the Court need not
reach the State’s argument that the report proffers inadmissible “profile” evidence.
See generally Floray I, 715 A.2d at 860–61.
95
See Del. R. Evid. 702(a); cf. Tumlinson v. Advanced Micro Devices, Inc., 106 A.3d
983, 991 (Del. 2013) (expert testimony inadmissible if it is either irrelevant or
unreliable).
20
examined Herbert and concluded that he is not a clinical psychopath. But the State
has not challenged Herbert’s mental health. And Herbert has not raised his mental
health as a defense. So it does not matter whether he is a psychopath or not.96
Accordingly, Dr. Zingaro’s “expert” psychiatric opinion is irrelevant.
Having concluded that Herbert does not suffer with a mental disease or defect
that might constitute a defense to the charge, Dr. Zingaro’s report nonetheless opines
on Herbert’s probable intent in committing the acts alleged. It is true that expert
opinion is not “objectionable merely because it embraces an ultimate issue to be
decided” by the jury, including the defendant’s intent. 97 Indeed, the Delaware Rules
of Evidence rejected the federal rule prohibiting an expert from opining on the
defendant’s state of mind.98 Even so, an expert’s opinion is inadmissible if it would
96
See, e.g., Tumlinson, 106 A.3d at 990 (“Expert testimony [that] does not relate to
any issue in the case is not relevant and, ergo, non-helpful.” (internal quotation
marks omitted)).
97
See Del. R. Evid. 704; see also Hudson v. State, 956 A.2d 1233, 1240 (Del. 2008).
98
Compare Fed. R. Evid. 704(b) (“In a criminal case, an expert witness must not
state an opinion about whether the defendant did or did not have a mental state or
condition that constitutes an element of the crime charged or of a defense. Those
matters are for the trier of fact alone.”), with Del. R. Evid 704 cmt. (“In 2001, the
Permanent Advisory Committee on the Delaware Uniform Rules of Evidence
considered adopting F.R.E. 704(b) . . . . The Committee found F.R.E.
704(b) inconsistent with D.R.E. 704 and, therefore, recommended against adopting
a similar provision.”).
21
“confuse the issues or mislead the jury[.]”99 Those dangers are heightened when
expert opinion overlaps the jury’s function of discerning the defendant’s intent. 100
Here, Dr. Zingaro cleared Herbert’s mental health. Herbert never argued
otherwise. Instead, he seeks to cast doubt on the statutory element of his intent.
Accordingly, Dr. Zingaro’s psychiatric opinion will mislead or confuse the jury by
suggesting that only diagnosed psychopaths can form the intent to commit child
sexual abuse.101
Shorn of references to psychopathy, Dr. Zingaro’s report simply transcribes
hearsay statements made by Herbert and his family and then concludes that Herbert
had a “unique” childhood. It does not take a doctoral degree or decades of clinical
practice to tell a client’s life-story.102 Indeed, Dr. Zingaro does not offer a scientific
or specialized explanation as to why Herbert’s unique childhood may have caused
99
Tolson v. State, 900 A.2d 639, 645 (Del. 2006) (citation omitted).
100
See Bates v. State, 386 A.2d 1139, 1144 (Del. 1978) (observing that, although
expert opinion on defendant’s intent is permissible, it can tend to “create confusion
in the minds of the jurors” and accordingly cautioning that such opinion should be
“closely scrutinized” before being admitted).
101
See Gray v. State, 441 A.2d 209, 224–25 (Del. 1981); State v. Salasky, 2013 WL
5487363, at *28 (Del. Super. Ct. Sept. 26, 2013); State v. Wallace, 2007 WL 545563,
at *12–13 (Del. Super. Ct. Jan. 26, 2007).
102
See Ward v. Shoney’s, Inc., 817 A.2d 799, 803 (Del. 2003) (“[T]he objective of
the gatekeeping requirement is . . . to make certain that an expert . . . employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an
expert in the relevant field.” (emphasis added) (internal quotation marks omitted)).
22
him to view any sexual touching that occurred between him and A.H. as educational
or innocuous. Dr. Zingaro merely recounts Herbert’s biography as it was fed to him.
Properly understood, then, Dr. Zingaro’s thoughts on Herbert’s personality
comprise lay opinions, not expert opinions. 103 Without the patina of a psychiatric
resume, Dr. Zingaro’s report is little more than a conduit for out-of-court statements
from lay witnesses who attempted to explain that Herbert meant nothing sexual by
any touching that may have occurred. By cloaking those layman’s terms in technical
jargon, Dr. Zingaro effectively bolsters the credibility of hearsay witnesses.104 He
cannot do that. Accordingly, the report is inadmissible.
None of this is to suggest that the underlying details about Herbert’s life are
inadmissible on the issue of his intent. Because Herbert’s background is a matter of
personal knowledge, Herbert and those close to him are free to testify. And he is
certainly free to tell the jury that he meant nothing sexual in his behavior. Herbert
has not claimed that he or his family would be unable or unwilling to do that. Either
103
See Del. R. Evid. 701(a), (c), 702; see also Mulkey v. State, 1990 WL 72574, at
*2 (Del. May 15, 1990) (finding that testimony of social worker designed to “lay a
factual background” for out-of-court statements was not “expert opinion evidence”).
104
See Re v. State, 540 A.2d 423, 427 (Del. 1988) (“When an expert relies on the
statements of another person in formulating an opinion, that person’s credibility is
at issue . . . . In judging the credibility of the speaker, the jury should have the benefit
of the information [that] might illuminate the speaker’s propensity for truthfulness
or the lack of it.” (citations and footnote omitted)).
23
way, Rule 702 blocks Herbert’s attempt to use Dr. Zingaro as a mouthpiece for his
and his family’s lay opinions.
2. Herbert’s contrary caselaw does not support admission.
To propose a different result, Herbert cites a New Jersey case, State v. Burr.105
Burr is inapposite.
In Burr, the defendant was accused of molesting his underage piano students.
He also had Asperger’s Disorder. Asperger’s Disorder causes “severe and sustained
impairment in social interaction” and “socially . . . inappropriate behavior[.]”106
The defendant in Burr could not be convicted unless he intended to obtain
sexual arousal or gratification from his touching. 107 So he sought to introduce expert
testimony to contextualize his “odd behavior”—which included sitting young girls
on his lap and “touching their private parts” 108—within Asperger’s Disorder. The
expert opined that the defendant’s touching likely was intended as an (ill-considered)
way to relate to his students, not as an effort to “groom” or sexually abuse them.109
105
948 A.2d 627 (N.J. 2008).
106
Id. at 628 n.2 (internal quotation marks and citations omitted). Asperger’s
Disorder or Syndrome was deformalized in 2013 by the American Psychiatric
Association and now is considered part of the autism spectrum. See generally
Autism Spectrum Disorder, CDC, https://www.cdc.gov/ncbddd/autism/hcp-
dsm.html (last updated Apr. 6, 2022).
107
See generally N.J. Stat. Ann. §§ 2C:14-1(d), 2C:14-2(b) (West 2022). In contrast,
the General Assembly purposefully removed a gratification element from the
definition of sexual contact. See Herbert, 2022 WL 811175, at *7.
108
Burr, 948 A.2d at 630.
109
See id. at 630, 632–33.
24
The Supreme Court of New Jersey found this testimony admissible because it was
relevant to the question of the defendant’s intent and “lessen[ed] [his] chance of
being misunderstood by the jury.” 110
This case is different. The defendant in Burr raised a state of mind defense
that depended on specialized knowledge about a mental illness. It therefore was
appropriate for an expert to opine on the ways in which the defendant’s mental health
may have impacted his conduct and intent. By contrast, Herbert’s own expert found
that he does not have a mental illness. Unlike the defendant in Burr, there is no
evidence-based reason to think Herbert is unable to understand that allowing a three-
year-old girl to “play with” an adult man’s penis is illegal.
Rather than a social disorder, Herbert’s state of mind defense depends on his
“countercultural” lifestyle and ideas about the world.111 Those beliefs are personal
choices, not psychological symptoms, and so do not require guidance from an expert
to be understood.112 To the contrary—and as Dr. Zingaro’s report demonstrates—
Herbert’s beliefs about sexuality are adequately explainable by him and his family.
110
Id. at 632–34.
111
Zingaro Report at 2. See also Herbert, 2022 WL 811175, at *3 (“It . . . appears
[Herbert] is concerned that a jury may convict him simply because his subjective
belief was not what a reasonable person may have had in mind.”).
112
Cf. Burr, 948 A.2d at 634 (The defendant “must be permitted the opportunity to
present at trial evidence that tends to prove that he has a medical basis for such
behaviors in order to explain himself and his condition and, thereby, to lessen the
chance of being misunderstood by the jury.” (emphasis added)).
25
For that reason, excluding Dr. Zingaro will not, as Herbert fears, suppress
evidence of Herbert’s “whole person.”113 The defendant in Burr could not have
called lay witnesses. Specialized knowledge was required to explain how
Asperger’s Disorder could cause the defendant’s conduct. So precluding his expert
would have been tantamount to excluding all evidence of his state of mind.
Here, precluding Dr. Zingaro will not eliminate Herbert’s right to dispute his
state of mind. Herbert’s “whole person” is the product of various biographical
experiences. So he and his family are best poised to discuss them. Herbert cannot
use expert opinion to bolster with “scientific-sounding terminology” the credibility
of a defense that is fully supportable by and understandable to non-experts.114
Accordingly, Dr. Zingaro’s report is inadmissible.
CONCLUSION
Dr. Cooney-Koss’s report is inadmissible under Wheat and Powell because it
directly and indirectly attacks A.H.’s credibility. And Dr. Zingaro’s report is
inadmissible under Rule 702 because its psychiatric conclusions are irrelevant and
its remaining findings are not proper subjects of expert opinion. Accordingly, the
State’s motion in limine is GRANTED and Herbert’s motion in limine is DENIED.
113
Def.’s Mot. in Lim. at 13 (quoting Burr, 948 A.2d at 633).
114
Schueller v. Cordrey, 2017 WL 631769, at *2 (Del. Super. Ct. Feb. 15, 2017)
(internal quotation marks omitted). See also Hopkins v. Astrazeneca Pharms., LP,
2010 WL 1267219, at *1 (Del. Super. Ct. Mar. 31, 2010) (“[E]leventh hour scientific
and medical research” cannot be used to bolster credibility. (citation omitted)).
26
IT IS SO ORDERED.
Charles E. Butler, Resident Judge
27