Hutton v. State , 339 Md. 480 ( 1995 )

RODOWSKY, Judge,

concurring.

I join in the judgment of the Court because I agree that the rule of Bohnert v. State, 312 Md. 266, 539 A.2d 657 (1988), was violated. The State asked Dr. Davis, “How do you assess credibility?” Without specific objection, she opined that the victim could not in any way have faked the consequences of the abuse. By concurring, I give the petitioner the benefit of the doubt as to preservation both at trial, through a broad continuing objection, and in this Court, through a broad certiorari petition.

I write separately, however, because I believe that a diagnosis of PTSD is relevant to whether the crime of child sexual abuse (CSA) in fact occurred. Even more important, inadmissibility under the majority’s rationale is not limited to the diagnosis of PTSD in adult and child victims of shocking crimes. The majority’s rationale rejects, in formulating a medical or psychiatric opinion, the use of any history from the patient that is supported only by the patient’s statements. I shall address the latter aspect immediately.

I

The terribly difficult problem that all too frequently is presented in CSA cases is that, although the testimony of the victim is legally sufficient to prove the crime, there is no other eyewitness testimony or physical evidence that corroborates the child’s testimony, and that is contradicted by an adult accused. The majority furnishes three reasons for rejecting the PTSD opinion in this case. First, for the expert witness “to identify a particular stressor as the precipitating cause of PTSD, as opposed to determining that it could be the precipitating cause, requires the expert to believe that the PTSD sufferer has experienced the traumatic experience related; he or she, in other words, must believe the PTSD sufferer.” 339 Md. 480, 503, 663 A.2d 1289, 1300 (1995). I shall assume that the quote correctly states the viewpoint of mental health professionals.¹

It would seem that if an expert found all diagnostic criteria for PTSD to be present, but for the stressor, the diagnosis would not be PTSD. If the expert concluded that the described stressor in fact occurred, but was too insignificant to permit a diagnosis of PTSD, perhaps some other disorder, or no disorder, would be diagnosed. If the expert concluded that the stressor described by the client is sufficiently severe to meet the diagnostic criteria, but that the experience did not in fact occur, although the client believes that it did occur, the diagnosis, quite possibly, would be one in which delusions or hallucinations are prerequisite findings. If the expert believes that the diagnostic criteria are met, including the stressor, the diagnosis would be PTSD. If the criteria actually exist, the diagnosis would be objectively correct. Thus, it would seem that the majority’s credibility concerns arise from a possibility, the degree of which is unquantified, that the diagnostic criteria will be contained in the history which the expert accepts, but the stressor did not in fact occur. In other words there is always the possibility, to some unknown degree, that the client may deceive the expert. I can think of no other instance in the law of evidence where such a possibility renders inadmissible an expert’s opinion that has an adequate basis as measured by the standards of the expert’s field. To my knowledge, a suggestion of patient or client malingering or fraud goes to the weight of the opinion, not its admissibility, and is properly the subject of cross-examination of the expert.

If, as the majority literally says, the opinion of a health care provider may be excluded from evidence because the health care provider believes the patient’s history, then only opinions based on physical facts, independent of history, will be admissible. That is not the law. A patient’s history is essential to diagnosis and treatment. This Court, quoting Professor Wig-more, has said:

“ ‘When a physician examines a patient to ascertain his ailment and to prescribe for it, a portion of his reasons for action must be the patient’s own statements. To exclude testimony not wholly independent of this foundation for opinion is, in strictness, to exclude almost always medical testimony based on a personal examination.’ ”

Yellow Cab Co. v. Henderson, 183 Md. 546, 552-53, 39 A.2d 546, 550 (1944) (quoting Wigmore on Evidence § 688 (3d ed. 1970)). Yellow Cab Co. held admissible the opinion of a treating physician, based, in part, on history furnished by a child’s mother, that a child’s drooping eyelid was a permanent condition caused by a motor vehicle collision. Id. at 554, 39 A.2d at 550.

Similarly, in Baltimore Transit Co. v. Truitt, 223 Md. 440, 164 A.2d 882 (1960), the opinion of an attending physician was admissible to prove that a herniated disc, diagnosed in June and confirmed by surgery in August, was caused by an automobile accident of the preceding September. The opinion as to nexus was in large measure based on the patient’s description of pain and when it was experienced. Id. at 445, 164 A.2d at 885.

Further, the majority’s position is highly anomalous. Ms. Jackson and Dr. Davis, the experts in this case, qualify as treating health care providers. Ms. Jackson is a licensed clinical social worker who specializes in psychotherapy for sexually abused children. Dr. Davis is a psychologist. They are partners in practice. Ms. Jackson saw the victim in approximately forty-one therapy sessions over nearly one and one-half years. Ms. Jackson and Dr. Davis discussed the victim’s case numerous times. Under the rule of evidence codified in Maryland Rule 5-803(b)(4) the victim-patient’s “[statements made for purposes of medical treatment or medical diagnosis in contemplation of treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external sources thereof insofar as reasonably pertinent to treatment or diagnosis in contemplation of treatment,” are admissible as substantive evidence through the treating or diagnosing health care provider. See also Morgan v. Foretich, 846 F.2d 941, 948-50 (4th Cir.1988); United States v. Renville, 779 F.2d 430, 436-37 (8th Cir.1985); State v. Robinson, 153 Ariz. 191, 735 P.2d 801, 810 (1987). Although the law permits treating mental health care providers to present as substantive evidence diagnostically pertinent facts contained in the client’s history, the majority excludes the diagnosis from evidence because the expert has accepted the history in forming the diagnosis and, indeed, has crafted the treatment in light of the history.

It is true that this Court does not permit experts directly to tell a jury that they believe histories given by their patients. Bohnert v. State, 312 Md. 266, 277-78, 539 A.2d 657, 662-63. But the majority opinion in the instant matter goes far beyond Bohnert. Attending physicians who testify that they prescribed medication, therapy, or bed rest for a patient, exclusively based on the patient’s description of physical pain, impliedly give credence to those subjective complaints. Nevertheless, their medical opinions as to the cause of the objectively unconfirmable complaints have been admissible. The opinions of mental health care providers, based on the diagnosis of a mental disorder, should not be treated differently.

Very recently this Court allowed a recovery under the workers’ compensation law for PTSD. The claimant was nearly killed when a steel beam fell through the ceiling of the claimant’s workplace and barely missed her. Belcher v. T. Rowe Price Found., Inc., 329 Md. 709, 621 A.2d 872 (1993). In Belcher there were numerous eyewitnesses to the accident so that there was no issue in the litigation concerning the stressor. If, however, we assume the same type of accident, without any eyewitness but the claimant, and if we further assume a dispute as to the claimant’s proximity to the falling beam, I submit that the diagnosis of PTSD, based on history, would nevertheless be admissible to prove that the claimant actually endured a harrowing event beyond ordinary human experience. The majority, on the other hand, says that the physician’s use of the stressor, described in the history, in order to make a diagnosis embodies a credibility determination that may render the opinion inadmissible. This contradicts Belcher which, after referring to “the ever increasing knowledge in the specialties which have evolved in the field of medicine and in the disciplines of psychiatry and psychology,” tells us that “[w]e are now aware that mental injuries can be as real as broken bones and may result in even greater disabilities.” 329 Md. at 736, 621 A.2d at 885.

The second reason given by the majority for rejecting Dr. Davis’s diagnosis of PTSD has five elements. “[Bjecause such a diagnosis implicates [1] the credibility of the victim, allowing the expert to identify the traumatic event precipitating the PTSD runs a great risk in a jury trial [2] that the jury’s function will be usurped, ie.[, 3] the jury will give the expert opinion too great weight and [4] not realize it is [5] solely dependent on the veracity of the patient.” 339 Md. at 503, 663 A.2d at 1300. The first point, that diagnosis implicates credibility through the use of history, has been fully discussed above.

The second point, usurping the jury’s function, has been castigated by Wigmore.

“[T]he phrase is so misleading, as well as so unsound, that it should be entirely repudiated. It is a mere bit of empty rhetoric. There is no such reason for the rule, because the witness, in expressing his opinion, is not attempting to ‘usurp’ the jury’s function; nor could he if he desired. He is not attempting it, because his error (if it were one) consists merely in offering to the jury a piece of testimony which ought not to go there; and he could not usurp it if he would, because the jury may still reject his opinion and accept some other view----”

7 J.H. Wigmore, Evidence in Trials at Common Law § 1920, at 18-19 (Chadbourn rev. 1978). Of course, “[tjestimony in the form of an opinion or inference otherwise admissible is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact.” Maryland Rule 5-704(a). See also Cider Barrel Mobile Home Court v. Eader, 287 Md. 571, 584, 414 A.2d 1246, 1254 (1980).

The third element of the majority’s second reason, that the opinion will be given inappropriate weight, raises the issue of prejudice versus probative value that I discuss in Part II, infra.

The majority’s concern, that the jury may not realize that the PTSD diagnosis depends on the history, should not arise because experts are required, at some point, to state the bases for their opinions. Further, in my view, the accused would be entitled upon request to an instruction that, if the jury finds that any essential predicate of the PTSD opinion did not occur, the opinion must be disregarded. Such an instruction • is a logical application of the principle that an expert’s opinion is dependent on its basis. See Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 741-44, 625 A.2d 1005, 1010-12 (1993). Such an instruction is also analogous to the instruction required, upon request, under Md.Rule 5-703(b). If trustworthy, but inadmissible, facts or data are relied upon by an expert in forming an opinion, the jury is instructed that the underlying facts are not substantive evidence. Md.R.Evid. 5-703(b). That, however, is not a concern in the instant case. The jury saw and heard the victim, so that the historical basis for the diagnosis was in evidence through a witness who had personal knowledge.

The majority’s fifth element assumes that the diagnosis is solely dependent on the patient’s veracity. That is not correct in my opinion. The diagnosis, including identifying the stressor, requires the diagnostician’s expertise.

The majority’s third reason for rejecting a PTSD diagnosis is similar to the other two. It is said that “credibility assessment [is] a matter outside his or her area of expertise.... ” 339 Md. at 503, 663 A.2d at 1300. In the position statement of the American Academy of Child and Adolescent Psychiatry, Guidelines for the Clinical Evaluation of Child and Adolescent Sexual Abuse, 27 J.Am.Academy of Child & Adolescent Psychiatry 655 (1988), the tenth guideline calls upon the mental health professional to assess the child’s credibility. Id. at 656. Under Maryland’s child abuse and neglect statutes every reported case of suspected child abuse, including CSA, is investigated. Maryland Code (1984, 1991 Repl.Vol.), § 5-706 of the Family Law Article. The investigation includes “a determination of the nature, extent, and cause of the abuse.... ” § 5-706(c)(1). “The agencies responsible for investigating reported cases of suspected sexual abuse ... shall implement a joint investigation procedure for conducting joint investigations of sexual abuse.” § 5—706(f)(1). “The joint investigation procedure shall ... include appropriate techniques for expediting validation of sexual abuse complaints.” § 5—706(f)(2)(i). “Validation,” an integral part of the legislatively mandated process, includes assessing the child’s credibility. Once the matter reaches the trial stage of a criminal prosecution, however, jurors are not told how the case got that far. But, inasmuch as the expert witnesses for the State at trial are usually those who participated in the “validation,” it is inaccurate for the majority to reject a PTSD diagnosis for lack of the expert’s experience or “expertise” in evaluating the diagnostically relevant history.

II

My thesis in this Part II is that a diagnosis of PTSD, properly explained, is not unfairly prejudicial in CSA cases. The diagnosis is relevant because, if the anxiety disorder exists, the fact that CSA actually occurred becomes more probable. The diagnosis is reliable because this anxiety disorder has been recognized in the behavioral science community for some time, and because that community now recognizes CSA as a potential stressor of PTSD. Thus, so long as the expert makes clear the extent to which the diagnosis is dependent on the plaintiffs history, the evidence is not unduly prejudicial.

A diagnosis of PTSD resulting, per history, from CSA is not a scientific test for determining CSA. Similarly, the expert’s opinion in State v. Allewalt, 308 Md. 89, 517 A.2d 741 (1986), that the complainant in that case suffered from PTSD resulting, per history, from rape, did not present the opinion as if it were “a scientific test the results of which were controlled by inexorable, physical laws.” Id. at 98, 517 A.2d at 745. “Indeed, the empirical literature on effects of abuse in general does not support the idea that there are consistent psychological responses to sexual abuse.” L. Berliner & J.R. Conte, Sexual Abuse Evaluations: Conceptual and Empirical Obsten cles, 17 Child Abuse & Neglect 111, 116 (1993). See also A.B. Rowan & D.W. Foy, Post-Traumatic Stress Disorder in Child Sexual Abuse Survivors: A Literature Review, 6 J.Traumatic Stress 3, 4 (1993) (“While a unique and identifiable syndrome describing the sequelae of CSA has not been identified, research over the past decade clearly documents the long-term consequences upon survivors of CSA.” (citations omitted)).

A diagnosis of PTSD in CSA cases is helpful to the jury because it places before the jury relevant information that is additional to the evidence of the abusive conduct. By utilizing the history of the abusive conduct and of the relevant symptoms, together with observation and any required psychological testing, behavioral science experts may apply their special training, knowledge and experience to diagnose an anxiety disorder that is generally recognized in their science or discipline. By pointing out a meaningful relationship between the psychological responses of the victim and the abuse described by the victim, the experts can bring cohesion to an otherwise possibly disjointed collection of sequelae and thereby assist the jury. If the total psychological picture, as explained by the expert, makes sense to the jury, then it is more likely that the victim’s description of the stressor is the fact of the matter.

The foregoing analysis of relevance is precisely that employed by this Court in recognizing the admissibility of psychological profile evidence in Simmons v. State, 313 Md. 33, 542 A.2d 1258 (1988). Simmons was a prosecution for second degree murder in which the accused raised imperfect self-defense, i.e., his subjective belief that the force employed, although objectively unreasonable, was necessary to prevent imminent death or serious bodily harm, which would have reduced the offense to manslaughter. Simmons proffered to show through a psychiatrist that his testimony describing his subjective belief was consistent with his psychological profile. The trial court rejected the proffer because the opinion would usurp the function of the jury. Id. at 36, 542 A.2d at 1259. This Court held that the trial court abused its discretion in rejecting the proffer. We said that

'“the proffered testimony has some relevance in that consistency between the specific subjective belief testified to by Simmons and Simmons’s psychological profile tends to make it more likely that Simmons in fact held that subjective belief. Had the trial judge appreciated that the second proffer fell within the limitation described in the preceding paragraph, the judge might well have exercised his discretion to admit the evidence. See Allewalt, 308 Md. at 109, 517 A.2d at 751.”

Simmons, 313 Md. at 48, 542 A.2d at 1265.

The determinative issue in the present matter is whether the probative value of the PTSD opinion outweighs any improper prejudice. After reviewing more literature in the fields of law and behavioral science than can be set forth in this opinion, I am satisfied that diagnoses of PTSD in CSA cases can be made reliably. It further appears that sexually abused children suffering from PTSD are a subset of the set of sexually abused children and that there is a broad consensus in the behavioral science community that the subset is more readily identifiable than the set. I shall direct attention first to the larger group.

Professor John E.B. Myers and a team of medical and mental health professionals, writing in 1989, asked and gave their answer to the following question:

“Are professionals trained in the patterns, effects, and dynamics of child sexual abuse capable of determining whether a child’s behavior and symptoms are consistent with sexual abuse? As recently as ten years ago, a persuasive argument could be made that the answer was no. Today, however, many experts believe that enough is known about child sexual abuse to permit qualified professionals to formulate reliable clinical judgments about sexual abuse.”

J.E.B. Myers, et al., Expert Testimony in Child Sexual Abuse Litigation, 68 Neb.L.Rev. 1, 73 (1989).

A number of courts admit expert testimony describing the characteristics or behavior of sexually abused children generally, together with a description of similar characteristics or behavior observed in the victim. See, e.g., United States v. St. Pierre, 812 F.2d 417, 419-20 (8th Cir.1987); United States v. Harrison, 31 M.J. 330, 332 (CMA 1990); People v. Payan, 220 Cal.Rptr. 126, 130-33 (1985); In re Cheryl H., 153 Cal.App.3d 1098, 200 Cal.Rptr. 789, 800-01 (1984); People v. Koon, 724 P.2d 1367, 1369-70 (Colo.App.1986); Ward v. State, 519 So.2d 1082 (Fla.App.1988); State v. Reser, 244 Kan. 306, 767 P.2d 1277, 1279 (1989); State v. Myers, 359 N.W.2d 604, 608-09 (Minn.1984); State v. Alberico, 116 N.M. 156, 861 P.2d 192, 212 (1993);² State v. Reeder, 105 N.C.App. 343, 413 S.E.2d 580, 583-84 (1992); State v. Timperio, 38 Ohio App.3d 156, 528 N.E.2d 594, 596-97 (1987); State v. Middleton, 294 Or. 427, 657 P.2d 1215, 1218-21 (1983); State v. Edward Charles L., Sr., 183 W.Va. 641, 398 S.E.2d 123 (1990). Some courts have admitted characteristics or behavior testimony, but only to rebut or to explain victim conduct on which the defense has focused as arguably inconsistent with CSA. See, e.g., State v. Moran, 151 Ariz. 378, 728 P.2d 248, 253-54 (1986). Other courts allow PTSD evidence in CSA cases as substantive evidence on the issue of whether the abuse occurred. See Broderick v. King’s Way Assembly of God Church, 808 P.2d 1211, 1215-17 (Alaska 1991) (civil action); Kruse v. State, 483 So.2d 1383, 1387 (Fla.App.1986); Townsend v. State, 103 Nev. 113, 734 P.2d 705, 708 (1987). Still other courts have allowed expert testimony as to the credibility of the CSA victim. See, e.g., State v. Kim, 64 Haw. 598, 645 P.2d 1330, 1334-35 (1982), but see State v. Batangan, 71 Haw. 552, 799 P.2d 48 (1990); State v. Geyman, 224 Mont. 194, 729 P.2d 475, 479 (1986).

When so many courts are prepared to accept “characteristics or behavior” evidence in CSA cases, I submit that this Court should accept a diagnosis of PTSD in CSA cases because the latter is much more reliable than the former. One scholar has studied the problem by analyzing 122 appellate court decisions in which expert witness testimony on the characteristics of sexually abused children had been challenged. M.A. Mason, A Judicial Dilemma: Expert Witness Testimony in Child Sex Abuse Cases, J. Psychiatry & Law 185 (Fall-Winter 1991). Dr. Mason observes:

“The data in this study demonstrate that these appellate courts are concerned with the form in which the expert testimony is presented—i.e., not presented as a specific syndrome, or offered on rebuttal rather than affirmatively— but are reluctant to look beyond the form to examine critically the content of the testimony or the standing of this diagnostic tool within its professional community.”

Id. at 202. And further:

“The American Psychiatric Association does not include the sexually abused child syndrome in its diagnostic manual, the DSM-III-R. This fact was noted by three appellate courts in their reason for excluding the expert’s testimony____ This omission reflects the controversy in the clinical community regarding the validity of a universal symptomology of sexual abuse.”

Id. at 203.

No dispute of comparable degree exists in the behavioral science and mental health fields with respect to PTSD. It has long been recognized in the Diagnostic and Statistical Manuals of Mental Disorders of the American Psychiatric Association. Extremely significant for present purposes is the position taken in the most recent edition, DSM-IV (1994). After listing sexual assault among the violent personal assaults that can qualify as PTSD stressors for diagnostic purposes, DSM-IV adds the following language which is new in relation to prior editions: “For children, sexually traumatic events may include developmentally inappropriate sexual experiences without threatened or actual violence or injury.” American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders IV (1994), at 424. Childhood sexual abuse is referred in DSM-IV as an “interpersonal stressor” of PTSD. Id. at 425.

A.B. Rowan & D. Foy in Post-Traumatic Stress Disorder in Child Sexual Abuse Survivors: A Literature Review, 6 J. Traumatic Stress 3 (1993), did what the title of their publication states. They advise that “each of the above studies examining PTSD among children who were sexually abused found evidence of a high rate of PTSD in their samples, three out of four studies finding 42 to 50% prevalence rates.” Id. at 8. While urging further study, the authors conclude that “[a]t this time, the PTSD model appears to describe the core features of the psychological difficulties of many survivors, especially those who experienced high levels of abuse exposure.” Id. at 17. They state that “PTSD research demonstrates that the traumatic nature of the abuse is the primary etiological factor behind the person’s difficulties.” Id. at 18.

At trial in the instant matter, the fourteen year old victim testified that she had been used by the accused for oral and vaginal sex, two to three times per week, from ages seven to thirteen. She had been in therapy for over one year. There is no suggestion that the diagnosis of PTSD was made in a borderline or inappropriate case. The opinion does not purport to carry more scientific validity than was justified. The trial court correctly exercised its discretion in admitting the opinion as more probative than unfairly prejudicial.

Ill

In concluding its opinion the majority states that a diagnosis of PTSD resulting from CSA would become admissible if the defendant were to inject an issue into the case which made the testimony relevant. Indeed, in an exercise of revisionism, the majority pretends that Allewalt’s foundation rests on relevance through rebuttal. This reading of Allewalt elevates the procedural posture of the case when the evidence was admitted over the substance of the admissibility analysis. More important, the theory of “admissible in rebuttal” is logically fallacious.

As the Supreme Court of New Mexico pointed out in State v. Alberico “[t]he issue ... is whether PTSD testimony is grounded in scientific knowledge, and the scientific validity of PTSD is not dependent on whether the defense has made it an issue in the case.” 861 P.2d at 210. Part II of this concurring opinion presents why a diagnosis, based on history, of PTSD brought on by CSA is scientifically valid. Thus, the evidence is both competent and inherently relevant to the issue of whether abuse occurred. Hence, it is admissible in the State’s case in chief. If the evidence is not competent, it does not become competent because an additional ground of relevance is generated by some issue injected into the case by the accused.

In sum, experts who have diagnosed PTSD based on CSA are prevented from presenting themselves in court as human he detectors by the “don’t tell” rule of Bohnert. The diagnosis is relevant and reliable. Some basic woodshedding by prosecutors, however, would seem to be required so that experts in these cases will clearly describe history as history when stating the basis for their opinions.

Chief Judge MURPHY has authorized me to state that he joins in the views expressed herein.

1 . In the instant case Ms. Jackson testified, on cross-examination, that she agreed that whether the client is telling a lie or has reason to be making up a story is of the utmost importance because "that's what a therapeutic relationship is based upon.”

2 . In Alberico, the diagnosis was PTSD. I have classified it as a “characteristics or behavior” case because the Court held that “the expert may not testify that the victim’s PTSD symptoms were in fact caused by sexual abuse.” 861 P.2d at 212. The key words here may be “in fact.” The court pinpointed the issue to be not " ‘whether a diagnosis of PTSD or RTS is a valid means of determining whether a rape occurred;' rather, it is whether PTSD evidence is probative of whether a rape occurred.” Id., at 208. The court then, with seeming approval, referred to the testimony of the experts in the cases before it to the effect “that psychologists can isolate the cause of the symptoms because different stressors manifest themselves in different symptoms.” Id. at 209. The court stated it was "more persuaded by evidence as to the current state of the technique than by judicial determinations of validity based on evidence that is many years old.” Id. I interpret the reference to different stressors' manifesting different symptoms to apply to that diagnostic criterion of PTSD involving the persistent re-experiencing of the particular stressor.