Toro v. State

• Citation: 642 So.2d 78
• Decision Date: 02 September 1994
• Docket Number: No. 93-1272,93-1272
• Parties: 19 Fla. L. Weekly D1843 Edwin TORO, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 78

642 So.2d 78

19 Fla. L. Weekly D1843

Edwin TORO, Appellant, v. STATE of Florida, Appellee.

No. 93-1272.

District Court of Appeal of Florida,

Fifth District.

Sept. 2, 1994.

F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Steven J. Guardiano and Kimberly D. Nolen, Asst. Attys. Gen., Daytona Beach, for appellee.

GRIFFIN, Judge.

We find no error in any of the issues raised on appeal and affirm the conviction. Specifically, we note that the lower court did not err in overruling the objection made below that the testimony of the state's expert exceeded the scope of the proffer. We have carefully reviewed the record and find that the objection was properly overruled because it was factually inaccurate and would not, in any event, have controlled the issue of admissibility.

Although this case was tried in accordance with the law controlling at the time of trial, we nevertheless write to suggest that recent developments in the law of Florida may, in the future, warrant reexamination of the kind of expert testimony used in this case. In the present case, a psychologist was called to testify about her evaluation of the victim, who was allegedly subjected to repeated acts of oral, anal and vaginal penetration by her stepfather from age eleven until age fifteen. At the time of trial, the victim was approximately eighteen years old. The victim had never been examined medically. The testimony of the state's expert psychologist was initially presented to the trial court by proffer. The psychologist testified that she interviewed the victim on four occasions. She also read the statement given to the police and the deposition taken by the alleged victim and her mother. The purpose of the interviews was to look for "symptom patterns." These symptoms consisted of a "sense of danger," sleep disturbance, decrease in occupational function (i.e. going to school), making poor choices about her friends, decreased interest in events or activities in general, irritability, anger, poor concentration, hypervigilence and exaggerated startle response (i.e. jumping when someone walked up behind her and touched her). The psychologist concluded the victim was suffering from "post-traumatic stress disorder." Neither during the proffer nor in her testimony at trial was any of this behavior connected to sexual abuse except for the psychologist's testimony that she believed that the source of the trauma that had resulted in post-traumatic stress syndrome was sexual abuse--because that is what the victim identified the trauma to be.

The admissibility of an expert's opinion that a child was the victim of sexual abuse was decided in Florida at a very early stage in the development of research and understanding of this issue. See John E.B. Meyers, Expert Testimony in Child Sexual Abuse Litigation, 68 Neb.L.Review 1, 74 (1989). It turns out that the position taken in Florida in favor of broad admissibility has been adopted by only a small minority of other courts in the United States. Lisa R. Askowitz, Restricting the Admissibility of Expert Testimony in Child Sexual Abuse Prosecutions: Pennsylvania Takes It to the Extreme, 47 U.Miami L.Review 201, 206 (1992). Very recently, the high courts of several jurisdictions, with the benefit of the last seven years of developing case law and the most recent psychiatric and psychological evidence available, have rejected the approach taken by Florida and have adopted more restrictive rules for admission of expert testimony designed to prove that a child has been the victim of sexual abuse.

Florida's approach to this issue was established in 1986, in the case of Kruse v. State, 483 So.2d 1383 (Fla. 4th DCA 1986). There, the issue was whether a physician, who was an expert in child and adolescent psychiatry, should be permitted to testify that the child victim of an alleged lewd assault was suffering from a condition known as "post-traumatic stress syndrome." The child was seven years old and there was no demonstrable physical evidence of an assault. The psychiatrist was allowed to describe post-traumatic stress syndrome to correlate her observations of the victim's behavior with commonly observed behavior patterns of other patients suffering from this syndrome. She testified to the details of the victim's and the victim's parents' statements and concluded that, based upon her psychiatric examination and the history of the child's behavior before and after the alleged assault, the child had suffered a sexual trauma. The psychiatrist acknowledged that her opinion was predicated on the validity of the history given to her by the child and the parents.

Writing for the majority in Kruse, Judge Anstead undertook an analysis of the admissibility of expert opinion testimony in light of Florida's adoption of the evidence code in 1979. The Kruse court concluded that, in light of the adoption of the evidence code, the standard for admissibility of expert testimony, governed by section 90.702, Florida Statutes, was to be based on a "relevancy standard" replacing the earlier, more restrictive requirement of "general acceptance by the scientific community" previously articulated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). 483 So.2d at 1384. Ultimately, the Kruse court set out a four-prong test to evaluate the admissibility of expert opinion testimony under this new standard and, applying that test, concluded that the opinion evidence sought to be introduced was admissible. Id. at 1384, 1388. ¹

Consistent with Kruse, in 1988, the First District Court of Appeal decided Ward v. State, 519 So.2d 1082 (Fla. 1st DCA 1988), in which a clinical psychologist testified that the "child/victim exhibited symptoms consistent with those of sexually abused children." 519 So.2d at 1083. The expert acknowledged that her opinion was based on her belief that the child was telling the truth and that without such a belief, she would not be able to identify the source of the trauma as sexual abuse. Id.

In Ward, defense counsel argued that the field of knowledge concerning child sexual abuse had not been adequately developed to permit a witness to assert a reasonable opinion that the child had been sexually abused and that, therefore, the true probative value of the testimony was outweighed by its prejudicial effect. Id. The lower court rejected that argument, ruling that the study of child sexual abuse had been sufficiently established to permit an expert to state an opinion as to whether a child's symptoms were consistent with sexual abuse. The Ward court agreed, finding no abuse of discretion in the trial court's ruling that "child abuse syndrome" is an area sufficiently developed to permit an expert to testify that the symptoms observed in the evaluated child were consistent with those displayed by victims of child abuse. Id. at 1084. The court proceeded to make its analysis of admissibility of this evidence based upon the criteria set forth in Kruse.

On the heels of Ward came Brown v. State, 523 So.2d 729 (Fla. 1st DCA 1988), where an HRS child protection team counselor who examined a five-year old was qualified as an expert in the field of child sexual abuse; and the counselor was permitted to testify concerning the signs she generally looked for to determine whether a child had been sexually abused and whether the victim in that case had exhibited any of those signs. The counselor, in fact, testified, "I do believe that [the victim] was sexually abused." Id. at 730. In affirming the conviction, the Brown court noted that it would have been more appropriate for the expert witness to have testified that the victim's behavior was "consistent with" one who had been sexually battered or abused, than to have testified that the victim was sexually abused because a jury would be less likely to misconstrue the expert witness's opinion. Id.

In 1988, the Supreme Court of Florida decided the admissibility issue in Glendening v. State, 536 So.2d 212 (Fla.1988). In that case, a "coordinator" for a child protection team had been recognized by the trial court as an expert in the area of "interviewing children regarding the subject of child abuse" and had been permitted to render an opinion "within a reasonable degree of professional certainty as to whether or not [the child] had been sexually abused." Id. at 220. The court concluded that the trial court had not abused its discretion in determining that an opinion as to whether the child was sexually abused was within the province of this expert witness. Id. at 220. The court said: "A qualified expert may express an opinion as to whether a child has been the victim of sexual abuse." Id. The court expressly based its conclusion on the analysis of the admissibility of expert testimony previously articulated in Kruse. Id. at 221. Unfortunately, although Kruse had rejected the requirement of general acceptance in the scientific community (the Frye test), ² the Glendening court made no express reference to Frye or the status of the Frye test in Florida.

Interestingly, within a year of Glendening, Judge Wentworth, who had been a member of the Ward panel, expressed reservations about the use of "child abuse syndrome" evidence:

In the same (unrelated) context as the above cited Gardner treatise, i.e. child sex abuse, we note the cautionary words of other current commentators: "When considering the theory of expert testimony discussed in this subsection, it is vitally important to avoid the confusion engendered by reference to syndromes.... At the present time, experts have not achieved consensus on the existence of a psychological syndrome that can detect child sexual abuse. Use of the word syndrome only leads to confusion, and to unwarranted and unworkable comparisons to battered child syndrome. The best course is to avoid any mention of syndromes." Meyers, Expert Testimony in Child Sexual Abuse Litigation...