DocketNumber： No. 151
Citation Numbers： 339 Md. 480, 663 A.2d 1289
Judges： Bell, Eldridge, Rodowsky
Filed Date： 8/28/1995
Status： Precedential
Modified Date： 9/8/2022
We granted certiorari in this case to consider whether expert testimony that the alleged victim of child sexual abuse was suffering from Post Traumatic Stress Disorder (hereinafter, PTSD)
The facts relevant to the resolution of this case are not in dispute, the parties having agreed to proceed on an agreed statement of facts, pursuant to Maryland Rule 8-501(g).
According to the victim, the sexual abuse consisted of sexual intercourse and fellatio, which was initiated by the petitioner when she whs 7 years old, while the family was living in Virginia. It continued, under threat by the petitioner to
In her testimony, the victim related that on several occasions she told her mother that she was being abused by the petitioner. She stated that she also reported the abuse to her mother on the day that it last occurred and the police were called four days later. She denied having engaged in sexual activity with anyone other than the petitioner or that her vaginal area had been otherwise injured. The victim testified that, starting at the age of four or five, she had frequent vaginal infections, and sometimes it would be necessary for the petitioner or her mother to put vaseline on her.
To corroborate the victim’s testimony, the State called, in its case in chief, Gail Jackson, a clinical social worker, whose specialty was working with sexually abused children, and Dr. Nancy Davis, a psychologist with whom Jackson practiced, among others.
Jackson was then allowed to relate the behavioral characteristics she identified as common to child sexual abuse victims to her client, the victim in this case, whom she had seen in one-hour sessions approximately 30 to 35 times during a period of a little more than a year. In that regard, Jackson testified that the victim was very depressed, withdrawn, fearful, and sad. In addition, she had a lot of guilt and was “emotionally very detached.” She had, Jackson reported, a “significant number of nightmares. Dreaming of someone chasing her, not being able to see their face and that is very, very common among victims I have worked with of all ages.” The victim, according to Jackson, exhibited “a lot of ambivalence” toward her stepfather and was quite confused. Moreover, she had poor grades and was having difficulty getting along with the other children at school and, Jackson added, she was afraid of men.
Jackson conceded, on cross-examination, that these characteristics were consistent not only with sexual abuse but with the existence of other kinds of “stress disorders,” as well. She also admitted that, in the therapeutic setting, the “credibility of the person [who is] talking to you is probably of the utmost importance ... that is whether the person is telling a lie or has a reason to be in there making up a story, something like that[.]” Thereupon, on redirect examination, the State inquired into how Jackson assessed the credibility of alleged victims of sexual abuse:
*488 Q. How is it that you as [the victim’s] therapist assess not with regard to her but in any case how do you assess credibility? How can you tell malingering?
A. The consistency for which they give me the basic information. An individual who is able to consistently give me that something happened, I don’t so much look for times as I look for the consistency with what happened and over time there is that consistency. I believe that that particular individual is telling me the truth.
Dr. Davis was called as an expert in clinical psychology with a specialty in child sexual abuse. Dr. Davis did no psychological testing of the victim. Her conclusions were reached on the basis of having spoken to the victim when she came into the office to see Ms. Jackson, having reviewed Ms. Jackson’s notes and records and the medical report from the Prince George’s Sexual Assault Center, and having discussed the case with Ms. Jackson. She opined, over the petitioner’s objection,
Dr. Davis’ description of PTSD is consistent with that contained in APA, Diagnostic and Statistical Manual of Mental Disorders (3rd ed. 1980). Among the symptomology she identified were the following:
1) “a severely traumatic event ... outside the range of normal human experience that anybody would find to be*489 traumatic, and these include a wide variety of things, but very severe trauma, [like] [s]eeing somebody murdered;”
2) “re-experienc[ing] this event in their mind,” often in dreams;
3) numbing oneself to one’s feelings; displaying a flat affect; “they look almost like a robot when you talk to them;”
4) “increased arousal”—characterized “by problems such as sleep, problems staying asleep, problems concentrating, problems in school learning, and being very startled when you walk up on them ...;”
5) the symptoms must last over a month.
Dr. Davis noted the following symptoms she observed in the victim: a flat affect—“there was no expression on her face and no feeling in her voice;” the victim was ambivalent toward her mother and the petitioner; the victim felt responsible for what happened; the victim had poor grades, and problems getting along with other children at school; and the victim had sleep problems. With respect to the conclusion that the traumatic event triggering the disorder was child sexual abuse, Dr. Davis pointed to the consistency in the victim’s story, stating: “She’s been extremely consistent in her story from age five on, despite the fact that numerous people have tried to knock holes in her story by asking her again and again. She’s been consistent in what she said, and that is another thing that I look for____ She’s told a variety of people, she’s told principals, she’s told counselors. She’s told all kinds of people.... ” Dr. Davis also mentioned the medical evidence—the lack of a hymen, the fact “that she is enlarged.” Like Jackson, except that it was in the State’s case in chief, Dr. Davis was asked about credibility evaluation. In response to the question, “Dr. Davis, a lot of what you’ve been diagnosing ... assumes one thing, that she is being truthful with you and Dr.—and Miss Jackson, how do you—how do you detect malingering? How do you assess credibility? What is your personal method?”, Dr. Davis, in part, noted:
[t]hey [child victims] don’t understand the dynamics of sexual abuse that this is the way certain things happened,*490 and they tell it like an outsider might think this is the way abuse might happen. And I look for the consequences, the post-traumatic stress or whatever which with her, in my opinion, is not in any way faked. She couldn’t fake this level for this time or such severe withdrawal and shutting down of herself.
The petitioner, testifying in his own defense, denied ever having sexually abused his stepdaughter.
The petitioner challenges the admissibility of expert testimony that his stepdaughter suffered from PTSD caused by her being sexually abused, the symptoms of which were “not in any way faked.” He argues that the reliability of PTSD as evidence to prove the underlying stressor, in this case, child sexual abuse, (1) has not been established, (2) that its probative value is outweighed by its potential unfairly to prejudice and mislead the jury, and (3) that allowing an expert to testify as to the cause of PTSD is a comment on the victim’s credibility and, thus, invades the province of the jury. If PTSD testimony is admissible at all, the petitioner asserts, it is only for the limited purpose of rehabilitating the victim’s testimony by explaining aspects of the victim’s post incident behavior attacked by the defendant as being inconsistent with that of a person who has been sexually abused.
PTSD may be experienced by persons who have been in combat, natural disasters, automobile or airplane accidents, or raped, among other traumatic events. Smith, Post Traumatic Stress Disorder, 20 Trial 92 (February 1984). Thus, there is no particular stressor that triggers PTSD; it can be caused by any number of stressful experiences. The symptoms characteristic of PTSD may become apparent shortly after the traumatic event or they may not appear until several months, or even years later. APA, supra at 237. Moreover, determining from the symptoms that PTSD is the proper diagnosis ordinarily does not answer the question of what traumatic event caused it; the symptoms, in other words, are not reliable identifiers of the specific cause of the disorder.
PTSD is sometimes defined in terms of the stressor which caused it. Accordingly, when the stressor is rape, the term “rape trauma syndrome” (hereinafter, RTS) is sometimes used. See Burgess & Holmstrom, Rape Trauma Syndrome, 131 Am.J.Psychiatry 981 (September 1974); State v. Alberico, 116 N.M. 156, 861 P.2d 192, 195 (1993). But see Alphonso v. Charity Hosp. of Louisiana, 413 So.2d 982, 986 (La.Ct.App.4th Cir.), cert. denied, 415 So.2d 952 (La.1982), treating PTSD and RTS as being separate and distinct. On the other hand, in addition to triggering PTSD, the traumatic event may be the causative factor for a related, but different disorder. Child sexual abuse, a recognized stressor causing PTSD, may also be the triggering event for child sexual abuse accommodation syndrome (hereinafter, CSAAS). See Roland C. Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Child Abuse & Neglect 177 (1983). For diagnostic purposes, characteristics commonly observed in sexually abused children, different from and in addition to those normally associated with PTSD, come into play. They are: (1) secrecy, (2) helpless
The literature on the subject discusses PTSD and related disorders and syndromes in the context of treating victims of a traumatic experience. See, e.g., Woodling & Kossoris, Sexual Misuse: Rape, Molestation, and Incest, 28 Pediatric Clinics N.Am. 489, 489-90 (1981); Burgess & Holmstrom, Rape: Victims of Crisis, 47-50 (1974); Comment, The Psychologist’s Expert Witness: Science in the Courtroom?, 38 Md.L.Rev. 539, 580 n. 207 (1979). The literature concludes that a PTSD diagnosis is essentially a therapeutic aid, rather than a tool for the detection of sexual abuse, see State v. J.Q., 130 N.J. 554, 617 A.2d 1196, 1203-05 (1993); People v. Bledsoe, 36 Cal.3d 236, 203 Cal.Rptr. 450, 459, 681 P.2d 291, 300 (1984); John E.B. Myers, Expert Testimony in Child Sexual Abuse Litigation, 68 Neb.L.Rev. 1, 67-68 (1989); Comment, The Psychologist as Expert Witness: Science in the Courtroom?, supra at 580 n. 207 (Stating that the purpose of codifying the diagnostic criteria for PTSD is to “standardiz[e] the classification system with reference to empirically demonstrable phenomenon, thus enhancing the communication and research between mental health professionals.”), since such a diagnosis assumes the presence of abuse and explains the victim’s reactions to it. See In re Sara M, 194 Cal.App.3d 585, 593, 239 Cal.Rptr. 605,
Because causes other than sexual abuse may trigger PTSD—the traumatic event being unable to be verified objectively, its occurrence must necessarily be assumed—a diagnosis of PTSD does not reliably prove the nature of the stressor. This result is to be contrasted with Battered Child Syndrome (hereinafter, BCS). In making that diagnosis, one reasons from the type of injury to the cause of the injury; thus, it is probative of physical abuse. See Case Note, Expert Medical Testimony Concerning “Battered Child Syndrome” Held Admissible, 42 Fordham L.Rev. 935, 935 (1974) (medical testimony on BCS is admissible as circumstantial proof that the child’s injuries were not accidental).
Of the many jurisdictions that have considered this issue, most have analyzed the admissibility of PTSD evidence on at least one, and most often all, of the three grounds raised by the petitioner.
To be sure, some of them adopt completely the State’s position, see, e.g., Glendening v. State, 536 So.2d 212 (Fla. 1988); Kruse v. State, 483 So.2d 1383 (Fla.Dist.Ct.App.1986); State v. Reser, 244 Kan. 306, 767 P.2d 1277 (1989); State v. Myers, 359 N.W.2d 604 (Minn.1984); State v. Liddell, 211 Mont. 180, 685 P.2d 918 (1984); State v. Bachman, 446 N.W.2d 271 (S.D.1989); State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990), even when the expert may have offered an opinion as to the credibility of the victim. E.g., Kruse, 483 So.2d at 1387. While some have held such testimony inadmissible for any purpose, see, e.g., Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830, 836-37 (1992); State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986), the majority, for a variety of reasons, agree with the petitioner’s arguments.
As to the petitioner’s first contention, some courts have found the evidence scientifically reliable, see, e.g., State v. Marks, 231 Kan. 645, 647 P.2d 1292, 1299 (1982) (“An examination of the [scientific] literature clearly demonstrates that the so-called ‘rape trauma syndrome’ is generally accepted to
That impediment does not exist when the PTSD testimony is offered in a civil action only to prove damages. See Spencer v. General Electric Co., 688 F.Supp. at 1077-78; Redmond v. Baxley, 475 F.Supp. 1111, 1121-22 (E.D.Mich.1979); Division of Corrections v. Wynn, 438 So.2d 446, 448 (Fla.Dist.Ct.App.1983); Alphonso v. Charity Hospital, 413 So.2d 982, 986-87 (La.Ct.App.1982); White v. Violent Crimes Compensation
Courts that find the PTSD testimony scientifically unreliable also exclude the evidence as unduly prejudicial. Saldana, 324 N.W.2d at 229-30; State v. McQuillen, 236 Kan. 161, 169-70, 689 P.2d 822, 828 (1984). See also Spencer v. General Electric Co., 688 F.Supp. at 1076.
Still other cases, some Without addressing whether it is admissible to establish the fact of abuse, have held that PTSD evidence is admissible as rebuttal evidence to refute defense contentions that the victim’s behavior is inconsistent with that of a person who has been sexually abused or raped. State v. Moran, 151 Ariz. 378, 728 P.2d 248, 254 (1986); State v. Huey, 699 P.2d at 1294; Bledsoe, 203 Cal.Rptr. at 457, 681 P.2d at 298; People v. Fasy, 829 P.2d 1314, 1317 (Colo.1992); State v. Spigarolo, 210 Conn. 359, 556 A.2d 112, 123 (1989); Wheat v. State, 527 A.2d 269, 273-74 (Del.1987); Batangan, 799 P.2d at 52; Commonwealth v. Mamay, 407 Mass. 412, 553 N.E.2d 945, 951 (1990); Beckley, 456 N.W.2d at 405; Cressey, 628 A.2d at 703; J.Q., 617 A.2d at 1201; Alberico, 861 P.2d at 210; Taylor, 552 N.Y.S.2d at 890, 552 N.E.2d at 138; Townsend v. State, 103 Nev. 113, 734 P.2d 705, 708 (1987); Hall, 412 S.E.2d at 890; State v. Middleton, 294 Or. 427, 657 P.2d 1215, 1221 (1983); State v. Jensen, 147 Wis.2d 240, 432 N.W.2d 913, 923 (1988).
Where, however, PTSD expert testimony also addresses the credibility of the victim, it has been held inadmissible because it invaded the province of the jury. Moran, 728 P.2d at 254-56; Wheat, 527 A.2d at 274-75 (expert testimony which “in effect provided a statistical evaluation of the complainant’s present veracity ... impermissibly invaded the credibility province of the trier of fact....”); Taylor, 663 S.W.2d at 241 (“Clearly, the psychiatrist’s specific statement that the victim did not fantasize the rape was an express opinion about her
This Court has considered the admissibility of PTSD testimony on two occasions. See Acuna v. State, supra, and State v. Allewalt, supra. The former case, like the case sub judice, involved a child victim. Similarly, the expert testimony concerning PTSD was offered in the State’s case in chief, presumably, to corroborate State’s evidence that the abuse occurred. The trial court did not allow the expert to relate the victim’s behavior to that of other victims of child abuse—i.e. she was not permitted to testify that the victim’s behavior was consistent with that of other victims of child abuse. Nor did the expert testify that the victim had been sexually abused. What the trial court permitted the expert to do was to define PTSD, enumerate the symptoms of that disorder which she observed
The victim of the rape, which was at issue in Allewalt, was an adult. The defendant did not deny that intercourse had occurred; rather, he contended that the victim consented. To refute that defense, the State called, in its rebuttal case, a psychiatrist who testified that his examination of the victim led him to conclude that she suffered from PTSD. He went on to opine, based on the history given him by the victim, that the precipitating cause of the PTSD was the rape alleged by the victim. The Court held that the expert’s opinion was properly admitted. To reach that conclusion, we equated the admissibility of the PTSD diagnosis and the expert’s opinion concerning its precipitating cause with the admissibility, in personal injury cases, of a diagnosis and expert opinion on causation, based on history. Allewalt, 308 Md. at 98-99, 517 A.2d at 745-46. Relying on Beahm v. Shortall, 279 Md. 321, 368 A.2d 1005 (1977), the Court stated:
Dr. Spodak’s opinion that the PTSD which he diagnosed ... was caused by the rape which she described is as evidentiarily reliable as an opinion by an orthopedist who has been engaged only to testify ascribing a plaintiffs subjective complaints of low back pain to soft tissue, injury resulting from an automobile accident described in the history given by the plaintiff.
Id. The Court also pointed out that the expert did not purport to be able to identify the cause of the PTSD based only on the observed symptoms, but depended on the patient’s
The issue presented in Bohnert v. State, 312 Md. 266, 539 A.2d 657 (1988), a case decided after Allewalt, was the propriety of the admission into evidence of an expert opinion that a child under the age of 14 was the victim of sexual abuse. In that case, the critical issue was credibility. Rather than eyewitnesses or physical evidence to corroborate the victim, there was only testimony tending to impeach the victim from a motivational standpoint and substantively. Thus, the outcome of the case depended solely upon whom the jury chose to believe. We held, on alternative grounds, that expert testimony that the victim had been abused was improperly allowed.
The first ground related to the adequacy of the foundation for the expert opinion. We observed, in that regard, that it was woefully inadequate:
The record leads to no other conclusion than that Temple’s opinion was founded only upon what Alicia said had occurred. As far as can be gleaned from the record, the source of all the evidence concerning the incidents was the child—what she told Temple, what the mother said the child told her, what the mother’s friend said the child told her. Temple proffered no evidence as to objective tests or medically recognized syndromes with respect to the child. Nor did Temple present any evidence as to the child’s behavior compared to general behavioral characteristics of child abuse victims. There was no physical evidence on which to base the opinion. There were no eyewitnesses. The opinion was reached on the child’s unsubstantiated averments and “a certain sense about children” which Temple believed*500 she possessed. Temple’s intuitive reaction to the child’s story did not suffice to provide a foundation for the opinion that the child was, in fact, sexually abused. The opinion of Temple was not based on facts sufficient to form a basis for her opinion. There were no facts to show that Alicia’s allegations were true, so that a reasonably accurate conclusion that the child had been sexually abused could be made. The conclusion that she had in fact been abused was no more than mere conjecture or guess. The short of it is that the very groundwork for Temple’s opinion was inadequately supported.
Id. at 276, 539 A.2d at 662. We concluded, therefore, that the trial court abused its discretion in admitting the expert testimony.
The alternative reason for the holding was that the expert’s opinion was inadmissible as a matter of law. We first noted the fundamental principles that it is the jury that decides the credibility and assesses the weight to be accorded to the testimony, id. at 277, 539 A.2d at 662, citing Battle v. State, 287 Md. 675, 685, 414 A.2d 1266, 1271 (1980), and that the office of expert testimony is not to resolve conflicting evidence, otherwise it would infringe on the province of the jury. Id. at 278, 539 A.2d at 663, citing Stebbing v. State, 299 Md. 331, 349, 473 A.2d 903, 911 (1984) and Kruszewski v. Holz, 265 Md. 434, 445, 290 A.2d 534, 540 (1972), citing, Calder v. Levi, 168 Md. 260, 266, 177 A. 392, 394 (1935). We then concluded:
The opinion of Temple that Alicia in fact was sexually abused was tantamount to a declaration by her that the child was telling the truth and that Bohnert was lying. In the circumstances here, the opinion could only be reached if the child’s testimony were believed and Bohnert’s testimony disbelieved. The import of the opinion was clear—Alicia was credible and Bohnert was not. Also, the opinion could only be reached by a resolution of contested facts—Alicia’s allegations and Bohnert’s denials. Thus, the opinion was inadmissible as a matter of law because it invaded the province of the jury in two ways. It encroached on the jury’s function to judge the credibility of the witnesses and*501 weigh their testimony and on the jury’s function to resolve contested facts. Inasmuch as the opinion was inadmissible as a matter of law, it was beyond the range of an exercise of discretion.
Id. at 278-79, 539 A.2d at 663.
The case sub judice has elements reminiscent of all three of the aforementioned cases. It is not, however, identical to any one of them. Like Acuna, it involves a minor victim and expert testimony on PTSD, introduced in the State’s case in chief, to prove that the sexual abuse with which the defendant was charged actually occurred. Unlike Acuna, the expert opinion in this case went beyond explaining the characteristic elements of PTSD and relating the victim’s behavior to them; by being permitted to identify the sexual “stressor” and to testify that those behaviors on the part of the victim were not faked, the expert was enabled to opine that the victim’s claimed sexual abuse did in fact occur, thus vouching for the victim’s credibility. Moreover, unlike the defendant in Acuna, the petitioner in this case challenged not simply the general relevance of PTSD testimony, but argued that it was inadmissible for the purpose for which it was offered.
Like Allewalt, the expert witness was permitted to offer an opinion as to the traumatic event precipitating the PTSD, relying on the victim’s history as related to her by the victim and others. Unlike Allewalt, in which the critical event, i.e., sexual intercourse, was conceded, in the case sub judice, the petitioner unequivocally denied any sexual contact with the victim. Moreover, unlike Allewalt, the expert testimony was offered to prove the abuse, rather, than to rebut a contention that it never occurred. Thus, like Bohnert, the critical issue in this case is credibility and also, like in Bohnert, the expert indicated that she believed the victim. Unlike in Bohnert, however, there was evidence from a pediatrician that physical examination of the victim uncovered findings consistent with the victim having been sexually abused, although that need not have been the cause.
As we have seen, PTSD, rather than being caused by a particular event or experience, may be caused by any one of a number of events or experiences. All that is required is that the event or experience be severely traumatic. Indeed, a PTSD diagnosis necessarily assumes that there has been a traumatic experience which precipitated it. Consequently, unless identification of the specific stressor is a necessary part of the diagnosis, it would seem that expert testimony on that aspect of the diagnosis would be unnecessary, that the precipitating traumatic experience need not be defined precisely. Expert testimony that a particular event could have caused the disorder ordinarily would provide the requisite connection. But identification of the specific precipitating cause of the PTSD is necessary to the diagnosis. The diagnostic criteria, discussed in footnote one, are stressor specific. It is the precipitating trauma that must be re-experienced. Criteria B. The numbing of responsiveness is also related to the precipitating trauma, criteria C, as are at least two of the symptoms in criteria D. Thus, in order for an expert to make a diagnosis of PTSD, generally he or she must know what the recognized stressor is.
Where the stressor cannot be objectively determined, its existence depends upon the credibility of the PTSD
For the foregoing reasons, we hold that the admission of PTSD testimony to prove sexual abuse occurred was inadmissible and clearly error. Testimony by an expert that the alleged victim suffered from PTSD as a result of sexual abuse goes beyond the limits of proper expert expression. Expert testimony describing PTSD or rape trauma syndrome may be admissible, however, when offered for purposes other than simply to establish that the offense occurred. The evidence might be offered, for example, to show lack of consent or to explain behavior that might be viewed as inconsistent with the happening of the event, such as a delay in reporting or recantation by the child. See Taylor, 552 N.Y.S.2d at 888-90, 552 N.E. at 136-38. This case does not fit within any such exception.
In the case at bar, both experts commented, impermissibly, we hold, on the victim’s credibility and Dr. Davis opined,
Allewalt falls within that line of cases, on which that Court specifically relied, that holds that PTSD testimony is admissible where the defense is that the victim consented to sexual intercourse. See Marks, 647 P.2d at 1297; Liddell, 685 P.2d at 923; Huey, 699 P.2d at 1294. The Court was aware of, and concerned about, the potential for unfair prejudice which might result from allowing PTSD testimony to prove
Just as a jury can understand that evidence of the complainant’s hysteria shortly following an alleged sexual assault tends to negate consent, so a jury, with the assistance of a competent expert, can understand that a diagnosis of PTSD tends to negate consent where the history, as reviewed by the expert, reflects no other trauma which in the expert’s opinion could produce that medically recognized disorder. By requiring a full explanation on direct, by allowing liberal cross-examination, and by proper jury instructions, all of which occurred in this case, the trial court can prevent any impression that the psychiatric opinion is like a chemical reaction.
Id.
The line of cases that holds that PTSD testimony is admissible only in rebuttal to refute evidence challenging the consis
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT FOR REMAND TO THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY FOR NEW TRIAL. COSTS TO BE PAID BY PRINCE GEORGE’S COUNTY.
. PTSD is an anxiety disorder, recognized by the American Psychiatric Association (APA), characterized by four diagnostic criteria:
A. Existence of a recognizable stressor that would evoke significant symptoms of distress in almost everyone.
B. Re-experiencing of the trauma as evidenced by at least one of the following:
(1) recurrent and intrusive recollections of the event
(2) recurrent dreams of the event
(3) sudden acting or feeling as if the traumatic event were reoccurring, because of an association with an environmental or ideational stimulus
C. Numbing of responsiveness to or reduced involvement with the external world, beginning some time after the trauma, as shown by at least one of the following:
(1) markedly diminished interest in one or more significant activities
(2) feeling of detachment or estrangement from others
(3) constricted affect
D. At least two of the following symptoms that were not present before the trauma:
(1) hyper alertness or exaggerated startle response
(2) sleep disturbance
(3) guilt about surviving when others have not, or about behavior required for survival
(4) memory impairment or trouble concentrating
(5) avoidance of activities that arouse recollection of the traumatic event
(6) intensification of symptoms by exposure to events that symbolize or resemble the traumatic event[.]
APA, Diagnostic and Statistical Manual of Mental Disorders, 236-38 (3rd ed. 1980). See Smith, Post Traumatic Stress Disorder, 20 Trial 92 (February 1984); State v. Allewalt, 308 Md. 89, 100 n. 6, 517 A.2d 741, 757 n. 6 (1986).
. Two other questions were presented by the petition for certiorari—the propriety of the rulings permitting the State to present rebuttal testimony and to question alibi witnesses about their failure to contact the police after learning that the petitioner had been charged. Our resolution of the first issue makes consideration of these issues unnecessary. With respect to the latter, however, in the event of a retrial, we recommend the following cases to the trial judge: People v. Ratliff, 189 Cal.App.3d 696, 700-01, 234 Cal.Rptr. 502, 504-05 (2nd Dist.1987); State v. Bryant, 202 Conn. 676, 523 A.2d 451, 464-66 (1986); United States v. Young, 463 F.2d 934, 938 (D.C.Cir.1972); People v. Watson, 94 Ill.App.3d 550, 50 Ill.Dec. 21, 27, 418 N.E.2d 1015, 1021 (1981); Commonwealth v. Egerton, 396 Mass. 499, 487 N.E.2d 481, 486-87 (1986); People v. Fuqua, 146 Mich.App. 250, 379 N.W.2d 442, 445 (1985); State v. Silva, 131 N.J. 438, 621 A.2d 17, 22 (1993); People v. Dawson, 50 N.Y.2d 311, 428 N.Y.S.2d 914, 921, n. 4, 406 N.E.2d 771, 777, n. 4 (1980).
. Maryland Rule 8-501(g) provides, in pertinent part, that "[tjhe parties may agree on a statement of undisputed facts that may be included in a record extract or, if the parties agree, as [to] all or part of the statement of facts in the appellant’s brief.” In this case, the statement of facts is included in the petitioner's brief.
. The State also called, in its case in chief, the victim’s mother, her pediatrician, and a Fairfax County, Virginia Department of Human Development social worker. Each of them corroborated some aspect of the victim’s story.
The victim’s mother verified that the victim claimed to have been sexually abused when she was in the 2nd grade, the school principal having called her and related that fact to her. Mrs. Hutton further testified that, while in the fourth grade, the victim also told her that she was being abused. Moreover, Mrs. Hutton confirmed the victim’s version of how the present charges came to be brought.
The victim's pediatrician testified that she was told in 1986 that the victim had been abused by her father, that on several occasions her
The social worker’s testimony concerned a conference she had with the petitioner, in the presence of a Fairfax County police officer, to discuss allegations by the victim that she had been sexually abused. According to the social worker, although the petitioner denied any wrongdoing, his explanation was corroborative of the victim’s story in several aspects. In particular, the social worker testified that the petitioner acknowledged that he participated in the treatment of the victim’s vaginal infections by placing vaseline on her vagina. During one such occasion, he indicated that he put a scarf over the victim’s eyes so that she could not learn how to touch herself. On another occasion, the social worker said, the petitioner stated that he had to hold his arm across her body to apply the vaseline.
. No issue has been raised as to the propriety of a clinical social worker expressing an opinion on this subject. Consequently, we do not address that issue.
. The petitioner asked for, and received, a continuing objection as to all of the PTSD testimony and, in particular, "as to the relevance of psychiatric testimony.” See Maryland Rule 4-323(b), which provides:
(b) Continuing objections to evidence.—At the request of a party or on its own initiative, the court may grant a continuing objection to a line of questions by an opposing party. For purposes of review by the trial court or on appeal, the continuing objection is effective only as to the questions clearly within its scope.
Although there was no objection precisely at the moment that the opinion was rendered, the question calling for the witness’ opinion was clearly within the scope of the continuing objection.
. It was because the petitioner also denied having participated in the treatment of his stepdaughter’s vaginal infections, or having told the Fairfax County social worker that he did, as well as his denial of having said the things attributed to him by the social worker, that prompted the court to permit, on rebuttal, the testimony of the Fairfax County police officer. It was this testimony out of which the second issue arose.
. It was during the cross-examination of the three defense alibi witnesses that the third issue arose, i.e., whether a foundation is necessary prior to questioning an alibi witness as to why he or she did not contact the police after becoming aware of the defendant’s arrest.
. Our use of the terms "Rape Trauma Syndrome” and “Child Sexual Abuse Accommodation Syndrome” in our discussion is not intended to endorse their use by experts testifying in criminal trials, where the charged offense is rape or child abuse, sexual or physical. The use of such terms may themselves be prejudicial. We recognized that possibility in Allewalt, 308 Md. at 108, 517 A.2d at 750, just as other courts have done. See, e.g., State v. Roles, 122 Idaho 138, 832 P.2d 311, 318 n. 4 (App.1992); State v. Gettier, 438 N.W.2d 1, 6 (Iowa 1989).
. This Court has adopted the standard of admissibility for scientific evidence expert testimony announced in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). See Reed v. State, 283 Md. 374, 391 A.2d 364 (1978). Under the Frye-Reed standard, in order to be admissible, a court must determine that a scientific process or technique is generally accepted within the relevant scientific community. See Frye, 293 F. at 1014, Reed, 283 Md. at 381, 391 A.2d at 367. Recently, however, in Daubert v. Merrell Dow Pharmaceuticals, _U.S._, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court reviewed the Frye standard "in light of sharp divisions among the courts regarding the proper standard for the admission of expert testimony.” Id. at _, 113 S.Ct. at 2792, 125 L.Ed.2d at 478. It held that the adoption by Congress of Federal Rule of Evidence 702 has modified the Frye standard, reasoning:
Given the Rules’ permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention "general acceptance,” the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made “general acceptance” the exclusive test for admitting expert scientific testimony. That austere standard, absent from and incompatible with the Federal Rules of Evidence, should not be applied in federal trials.
Daubert, at _, 113 S.Ct. at 2794, 125 L.Ed.2d at 480.
On July 1, 1994, this Court adopted Maryland Rules of Evidence patterned after the federad rules. Our counterpart to Federal Rule of Evidence 702 is Md.R.Evid. 5-702. As a committee note makes clear, however, the adoption of the Rule "is not intended to overrule Reed ... and other cases adopting the principles enunciated in Frye.... The required scientific foundation for the admission of novel scientific techniques or principles is left to development through case law.”
. In a motion in limine, counsel for the petitioner argued that Dr. Davis' testimony was irrelevant. The trial court reserved its ruling. At trial, however, the trial court allowed the testimony, stating:
Okay. The record should reflect that pursuant to Courts & Judicial Proceedings Article Title 9—I forgot, its 9 something 6, that psychiatrists may render an opinion. Give an ultimate opinion in the case, so its a different posture than that statute.
But I ruled that I am going to allow it, and I even said for the Court of Special Appeals she can render an ultimate opinion.
The provision to which the trial court referred was undoubtedly Maryland Code (1974, 1989 Repl.Vol.) § 9-120 of the Courts & Jud.Proc.Article, which provides:
Notwithstanding any other provision of law, a psychologist licensed under the "Maryland Psychologists Act” and qualified as an expert witness may testify on ultimate issues, including insanity, competency to stand trial, and matters within the scope of that psychologist’s special knowledge, in any case in any court or in any administrative hearing.
The credibility of a witness, however, is not an ultimate issue. See Yount v. State, 99 Md.App. 207, 215, 636 A.2d 50, 51, cert. denied, 335 Md. 82, 642 A.2d 193 (1994) ("A witness's credibility cannot directly either convict or acquit. The issue of credibility is simply not the ultimate issue. It is not even a component part or an element of the ultimate issue.”)
. Given the nature of such testimony, it is the danger of unfair prejudice and the lack of necessity that precludes the State from proving lack of consent, an element of its case, by proof that the victim is suffering from PTSD. Where the defendant alleges consent, however, the necessity for the rebuttal evidence and the concession as to the act having occurred outweigh the prejudicial effect of that evidence. Thus, whenever the consent defense is generated, whether in the State's case or in the defendant’s case, it may be rebutted by PTSD testimony.