State v. Davis , 64 Ohio App. 3d 334 ( 1989 )

I concur in the majority's disposition of the first assignment of error and in the judgment. However, I must write separately to express my concerns with the majority's overreaching condemnation of expert testimony in child sex abuse cases.

In State v. Boston (1989), 46 Ohio St.3d 108,545 N.E.2d 1220, the Ohio Supreme Court approved of the use of properly qualified expert testimony to assist the jury in determining whether sexual abuse occurred in a given case. Id. at 128,545 N.E.2d at 1239. The court reasoned that "[m]ost jurors would not be aware, in their everyday experiences, of how sexually abused children might respond to abuse," and that "the common experience of a juror may represent a less-than-adequate foundation for assessing whether a child has been sexually abused." Id. at 128, 545 N.E.2d at 1239.

Relevant clinical and scientific literature discloses that many sexually abused children demonstrate common behavioral, cognitive, and emotional reactions to their abuse. Myers, Child Witness Law and Practice (Supp. 1989), Section 4.17C. Thus, the presence of such behaviors or reactions in an alleged victim can be probative of abuse. Granted, some of these behaviors or reactions can be associated with a wide range of psychological problems and are not dispositive of the occurrence of sexual abuse. Evidence need not be dispositive, however, in order to be logically relevant and admissible. Evid.R. 401, 402. Accordingly, I would hold that so long as the probative value of the testimony in a given case outweighs the danger of unfair prejudice, see Evid.R. 403, a properly qualified expert should be allowed to testify concerning behaviors commonly seen in abused children. Such testimony could then be supplemented by that of persons familiar with the behavior of the alleged victim. It would then be up to the jury to determine whether the alleged victim was in fact abused. Such a role would preserve the vote of the jury as fact-finder and avoid the potentially inconsistent application of the age-based rule proposed by the majority. (What is a "very young victim"?)

The danger, of course, of allowing testimony concerning behavior common to sexually abused children is that such testimony often implicates the credibility of the alleged victim. For example, a common behavioral reaction of an abused child is the fabrication and/or variation of his or her story concerning the alleged abuse. Myers, supra. It is all too tempting for the prosecution to put on an expert to testify to the effect that the victim lied and therefore he or she is telling the truth about the alleged abuse. Such testimony is clearly prohibited, however, for it infringes upon the role of the fact-finder, who is charged with making determinations of veracity and credibility. Boston, supra, at 128-129,545 N.E.2d at 1240. The prosecution can avoid this temptation by keeping the expert's testimony focused on general responses of the typical child abuse victim and avoiding testimony which indicates that the specific victim is credible. See Boston,supra, at 132, 545 N.E.2d at 1243, fn. 21 (Patton, J., dissenting).

In the present case, the prosecution properly confined its examination of Evans to the general reactions and responses of the typical child abuse victim. The majority quotes testimony of Evans and asserts that she impermissibly bolstered the credibility of the victim. The testimony quoted by the majority, however, has been taken out of context. A review of the record shows that this testimony was in response to a hypothetical question about an allegedly abused child. Thus, Evans's testimony did not represent an opinion as to the credibility of the particular victim in this case. The only victim-specific testimony concerning credibility occurred during the cross-examination of Evans by defense counsel. Accordingly, I would find Evans's testimony to be admissible.