State v. Scheffelman , 250 Mont. 334 ( 1991 )

JUSTICE TRIEWEILER,

concurring in part and dissenting in part:

I concur with the majority’s conclusions that the victim’s prior consistent statements were admissible under Rule 801(d)(1)(B), M.R.Evid., and that the District Court did not abuse its discretion when it refused to permit inspection of the victim’s psychological records. However, I do not agree with all that is said in the majority’s discussion of prior consistent statements.

I dissent from that part of the majority’s opinion which holds that the testimony of Linda Crummet was inadmissible and reverses the defendant’s conviction on that basis.

The State of Montana, the County Attorney, and the District Court had a right to rely on this Court’s prior decisions in State v. French (1988), 233 Mont. 364, 760 P.2d 86, and State v. Geyman (1986), 224 Mont. 194, 729 P.2d 475, when they offered and admitted the testimony of Ms. Crummet.

In French, we held that a school counselor with a master’s degree in counseling and a bachelor’s degree in education who had counseled a young victim of sexual abuse was qualified to testify that in her opinion the victim had been truthful when she described the defendant’s abusive acts to her. There were no foundational requirements established by that case for such testimony, and the rules of evidence are purposely liberal regarding the necessary qualifications for expert testimony. See Rules 701, 702, 703, and 704, M.R.Evid.

In this case, the State went to greater lengths to qualify Ms. Crummet than was done with the expert who testified in French. It established that she is a clinical social worker with a master’s degree in social work who specializes in working with sexual abuse victims. At the time of trial, she had been a specialist in that field for a period of from eight to nine years and had counseled over 1000 children who had been victims of sexual abuse.

Ms. Crummet had attended as many as 30 classes which dealt with the subject of recognizing victims of sexual abuse and during many of those courses was instructed on techniques for evaluating the credibility of children who claimed to be victims. She was certified by the National Association of Social Workers and licensed as a social worker by the State of Montana. She was employed as a clinical social worker by Eastern Montana College, in addition to engaging in private practice.

In fact, the defendant in this case stipulated to Ms. Crummet’s expertise in the area of social work, and the District Court found, without objection, that she was qualified as an expert in the area of child sexual abuse.

When Ms. Crummet was asked for her opinions regarding the victim’s credibility, defendant objected for two reasons. He stated that the question called for her to express an opinion which invaded the province of the jury. However, that issue had clearly been resolved by our previous decisions in French and Geyman. He also objected that her testimony included hearsay statements made by the victim. However, that issue was addressed by the majority under its discussion of prior consistent statements. For these reasons, Ms. Crummet was permitted by the District Court to express her opinions regarding the victim’s credibility.

Interestingly, on appeal, defendant raised no objection to Ms. Crummet’s qualifications for expressing the opinions that she expressed. Defendant’s argument was limited to his claim that Ms. Crummet was improperly allowed to relate the victim’s prior statements.

Based on the aforementioned foundation, Ms. Crummet related what characteristics she has been trained to look for in evaluating an alleged victim’s complaints of sexual abuse and testified that she found several of those characteristics in this victim. She expressed the opinion that, based upon her experience in the ten interviews that she had with the victim, the victim had been abused and the description of that abuse related to her by the victim was truthful. At no time during any of her testimony did defendant raise the objections which now form the basis for the majority’s reversal of defendant’s conviction.

The District Court had no opportunity to consider those objections before allowing Ms. Crummet’s testimony and the prosecutor had no opportunity to consider the majority’s analysis before she decided to offer Ms. Crummet’s testimony.

I question the significance of the new foundational requirements imposed by the majority. However, of greater concern is my belief that all trial lawyers, whether representing the State or private individuals, have a right to know the rules for foundationing expert testimony in advance. If this Court wants to change the rules, then it should do so prospectively.

In this case, the State followed all the rules that it was aware of at the time of trial and still finds its hard-earned conviction of defendant overturned due to another “mid-course correction” by this Court.

Furthermore, I disagree with the majority’s analysis of Ms. Crummet’s testimony on the basis of an article in the Nebraska Law Review. Ms. Crummet observed symptoms in the victim’s behavior which were consistent with victimization by defendant. The majority observes that these symptoms are consistent with other “anxiety producing events” which were present in the victim’s life. However, those observations are more appropriate for cross-examination than as a basis for excluding her opinion as a matter of law. In this case, Ms. Crummet was thoroughly cross-examined regarding other possible causes for the victim’s symptoms. However, after having had the benefit of that cross-examination and the benefit of personally observing the witness, the jury concluded that she properly attributed those symptoms to sexual abuse.

The argument that this victim’s symptoms may have been attributable to some cause other than sexual abuse was appropriate in the District Court. It is not a proper basis for reversal of the jury’s verdict.

For these reasons, I would conclude that, in offering the testimony of Linda Crummet, the State satisfied all foundational requirements of which it had previously been apprised and would affirm the judgment of the District Court.