Com. v. Federico

• Decision Date: 04 September 1997
• Citation: 683 N.E.2d 1035,425 Mass. 844
• Parties: COMMONWEALTH v. Liberatore Libby Vincent FEDERICO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1035

683 N.E.2d 1035

425 Mass. 844

COMMONWEALTH v. Liberatore Libby Vincent FEDERICO.

Supreme Judicial Court of Massachusetts Norfolk.

Argued Feb. 6, 1997.

Decided Sept. 4, 1997.

Robert C. Cosgrove, Assistant District Attorney, for the Commonwealth.

Maxine Sushelsky, Boston, for defendant.

Before WILKINS, C.J., and LYNCH, O'CONNOR and MARSHALL, JJ.

MARSHALL, Justice.

We must decide whether the testimony of two experts on child sexual abuse impermissibly intruded on the jury's role of assessing the credibility of the child complainants. In Commonwealth v. Dockham, 405 Mass. 618, 542 N.E.2d 591 (1989), we held that expert testimony on the general behavioral characteristics of sexually abused children was properly admitted where the defendant had argued that such testimony should have been admitted only in response to hypothetical questions based on the facts in evidence. Here, the defendant takes the antipodal position, arguing that the testimony given in response to hypothetical questions closely tailored to the facts amounted to an impermissible endorsement of the credibility of the complaining child witness. We conclude that the challenged expert testimony of one of the experts was improper in several respects, and that admission of the testimony was not harmless error.

1. In December, 1988, a Superior Court jury convicted the defendant on seven indictments charging rape of a child under sixteen years and three indictments charging assault and battery on a child under the age of fourteen years. Federico filed a motion for a new trial, which was denied in August, 1994. He simultaneously appealed from his convictions, arguing that the judge improperly allowed two experts to bolster the credibility of the complainants' claims of sexual abuse. The Appeals Court reversed, Commonwealth v. Federico, 40 Mass.App.Ct. 616, 618-619, 666 N.E.2d 1017 (1996), ruling that the testimony of both experts impermissibly intruded on the jury's role of assessing the credibility of the complainants, and that the admission of the testimony was prejudicial error. ¹ We granted the Commonwealth's application for further appellate review. ² We reverse the judgment of the Superior Court.

2. The jury could have found the following facts. In 1981, a mother whom we shall call Maria, and her two daughters whom we shall call, Julie (then aged eleven years), and Sharon (then aged nine years), began living with the defendant shortly before the defendant and Maria were married. That same year the defendant began sexually abusing both sisters; the abuse continued chronically for the next six years. ³ Neither sister revealed the abuse to anyone until March, 1988, when first Sharon, and subsequently Julie, told their mother about the abuse. A few days later Maria took Sharon, and then Julie, to a physician for an examination. A police officer and a detective also interviewed the sisters at home.

At the time of the trial in 1988, Julie and Sharon were nineteen and sixteen years old, respectively. They testified in detail about the sexual abuse to which they had been subjected by the defendant. The Commonwealth called as fresh complaint witnesses the detective and police officer who had interviewed the sisters, as well as their mother. The Commonwealth also called two experts to testify, Dr. Renee Brant, a child psychiatrist, and Dr. Jan Paradise, a pediatric gynecologist. Neither expert had treated either of the children. The prosecutor asked Dr. Brant a series of hypothetical questions in which she was asked to assume certain facts; in each case one of the facts she was asked to assume was that sexual relations had occurred between one or two girls and an adult male. She was then asked to opine as to whether the assumed facts were "consistent with" children who had been having sexual relations with an adult male (stepfather) over a number of years. In response to each hypothetical question, Dr. Brant opined that the assumed facts were "consistent with" children who had been having sexual relations with an adult.

There was evidence that there was no physical trauma to the genital area of either child. Dr. Paradise testified in response to a series of hypothetical questions. In each case she was asked to assume certain facts, one of which was vaginal penetration of a girl by an adult male, and another was the absence of physical signs of trauma to the genital area of the girl. The remaining assumed facts (different in each hypothetical question) concerned the ages of the girls, frequency and the timing of intercourse, and the timing of the physical examination of the girls in relation to the most recent act of intercourse. Dr. Paradise was then asked whether the assumed facts were "inconsistent" with each other. She opined that the assumed facts were not "inconsistent." ⁴

3. The defendant claims that the admission of the expert testimony of both Dr. Brant and Dr. Paradise impermissibly intruded on the jury's role of assessing the credibility of the child complainants and "would inescapably have the same impact on the jury as a direct reference to and comparison with the child witnesses in the case." Commonwealth v. Perkins, 39 Mass.App.Ct. 577, 583, 658 N.E.2d 975 (1995). The Commonwealth responds that the testimony was admissible because courts previously have allowed experts to testify about typical symptoms of sexually abused children, information which is beyond the knowledge of jurors. The Commonwealth not only asks that we affirm the convictions, but also argues that Commonwealth v. Perkins, supra, has been "wrongly decided." ⁵ In this case the expert testimony was particularly important, says the Commonwealth, because the two adolescent sisters did not disclose the sexual abuse for years, they remained at home with their abuser while the abuse was continuing, and they developed symptoms of anxiety and stress only after they had disclosed the abuse. This behavior, left unexplained, might unfairly suggest to a lay person that no abuse had occurred. ⁶ See Commonwealth v. Hudson, 417 Mass. 536, 540, 631 N.E.2d 50 (1994) (expert testimony on typical symptoms of sexually abused children allowed because information is beyond common knowledge of jurors and may be of assistance in assessing witness's credibility).

It hardly needs repeating that a trial judge has broad discretion to determine whether to admit expert testimony. See Commonwealth v. Colin C., 419 Mass. 54, 59, 643 N.E.2d 19 (1994); Commonwealth v. Dockham, supra at 628, 542 N.E.2d 591. Expert testimony "is admissible whenever it will aid the jury in reaching a decision, even if the expert's opinion touches on the ultimate issues that the jury must decide." Id., quoting Simon v. Solomon, 385 Mass. 91, 105, 431 N.E.2d 556 (1982). See Commonwealth v. Colin C., supra at 59, 643 N.E.2d 19; Commonwealth v. Pikul, 400 Mass. 550, 553, 511 N.E.2d 336 (1987). See also Proposed Mass. R. Evid. 702 ("If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise"). Under this principle, we have held that testimony on the general behavioral characteristics of sexually abused children may properly be the subject of expert testimony because behavioral and emotional characteristics common to these victims "is beyond the jury's common knowledge and may aid them in reaching a decision." Commonwealth v. Colin C., supra at 60, 643 N.E.2d 19. See Commonwealth v. Dockham, supra at 630, 542 N.E.2d 591. See also Commonwealth v. Day, 409 Mass. 719, 724, 569 N.E.2d 397 (1991) (expert testimony concerning "battered child syndrome" admissible because condition is not matter of common knowledge); Commonwealth v. Mamay, 407 Mass. 412, 421, 553 N.E.2d 945 (1990) (rape trauma syndrome is "beyond the jury's common knowledge," and therefore admissible). Such expert testimony may assist the jurors in assessing a victim witness's testimony and credibility:

"While jurors may be capable of personalizing the emotions of victims of physical assault generally, and of assessing witness credibility accordingly, tensions unique to the trauma experienced by a child sexually abused by a family member have remained largely unknown to the public. As the expert's testimony demonstrates the routine indicia of witness reliability--consistency, willingness to aid the prosecution, straightforward rendition of the fact--may, for good reason, be lacking. As a result jurors may impose standards of normalcy on child victim/witnesses who consistently respond in distinctly abnormal fashion."

Commonwealth v. Dockham, supra, quoting State v. Middleton, 294 Or. 427, 440, 657 P.2d 1215 (1983) (Roberts, J., concurring). ⁷

Such evidence must, however, be confined to a description of the general or typical characteristics shared by child victims of sexual abuse. Deference must be preserved for the role of the jury as the final judge of credibility; "[e]valuations of credibility are, of course, within the exclusive province of the trier of fact," Commonwealth v. Montanino, 409 Mass. 500, 504, 567 N.E.2d 1212 (1991), quoting Commonwealth v. Ianello, 401 Mass. 197, 202, 515 N.E.2d 1181 (1987), and "witnesses may not offer their opinions regarding the credibility of another witness." Commonwealth v. Montanino, supra at 504, 567 N.E.2d 1212. See Commonwealth v. Sires, 413 Mass. 292, 304, 596 N.E.2d 1018 (1992). ⁸

We have identified several broad areas of expert testimony that are most likely to run afoul of this prohibition. First, we prohibit an expert from directly referring to or comparing the behavior of the specific child complainant to general characteristics of sexual abuse victims because "[s]uch testimony impermissibly intrudes on the jury's province to assess the credibility of the...