Flanagan v. State

• Decision Date: 09 September 1993
• Docket Number: No. 78923,78923
• Citation: 625 So.2d 827
• Court: Florida Supreme Court
• Parties: 18 Fla. L. Weekly S475 Dennis FLANAGAN, Petitioner, v. STATE of Florida, Respondent.

Page 827

625 So.2d 827

18 Fla. L. Weekly S475

Dennis FLANAGAN, Petitioner, v. STATE of Florida, Respondent.

No. 78923.

Supreme Court of Florida.

Sept. 9, 1993.

Rehearing Denied Oct. 25, 1993.

Nancy A. Daniels, Public Defender and Kathleen Stover, Asst. Public Defender, Tallahassee, for petitioner.

Robert A. Butterworth, Atty. Gen. and Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for respondent.

GRIMES, Justice.

Dennis Flanagan was convicted of sexually battering his mentally retarded nine year-old daughter, T.F. The First District Court of Appeal, sitting en banc, affirmed the conviction and certified the following questions as being of great public importance:

(1) IS EXPERT SCIENTIFIC TESTIMONY WHICH DOES NOT MEET THE TEST OF FRYE V. UNITED STATES, 293 F. 1013 (D.C.CIR.1923) FOR ADMISSIBILITY OF NOVEL SCIENTIFIC EVIDENCE OTHERWISE ADMISSIBLE AS BACKGROUND INFORMATION IN A CRIMINAL TRIAL?

(2) IS PEDOPHILE/CHILD SEX OFFENDER PROFILE EVIDENCE ADMISSIBLE IN A CRIMINAL TRIAL?

Flanagan v. State, 586 So.2d 1085, 1124-25 (Fla. 1st DCA 1991). We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution.

One of the witnesses who testified against Flanagan at trial was Dr. Goslin, a psychologist for the HRS Child Protection Team, who evaluated T.F. twice. After discussing her initial evaluation of T.F., Dr. Goslin described typical problems in interviewing a young child, noting for example that it is common for children who were sexually abused to have trouble pinpointing the time of the abuse and keeping the incidents separate. Goslin then talked about common characteristics of the home environment where child sexual abuse occurs and about the characteristics of abusers. It was this latter testimony which was objected to by Flanagan and which troubled a majority of the judges on the district court of appeal. ¹

We begin our analysis of the admissibility of this testimony with the basic principle that novel scientific evidence is not admissible in Florida unless it meets the test established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). See Stokes v. State, 548 So.2d 188, 195 (Fla.1989). Under Frye, in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery "must be sufficiently established to have gained general acceptance in the particular field in which it belongs." 293 F. at 1014.

Of course, not all expert testimony must meet this test in order to be admissible. As discussed by Judge Ervin below, 586 So.2d at 1109-11, pure opinion testimony, such as an expert's opinion that a defendant is incompetent, does not have to meet Frye, because this type of testimony is based on the expert's personal experience and training. While cloaked with the credibility of the expert, this testimony is analyzed by the jury as it analyzes any other personal opinion or factual testimony by a witness. Profile testimony, on the other hand, by its nature necessarily relies on some scientific principle or test, which implies an infallibility not found in pure opinion testimony. The jury will naturally assume that the scientific principles underlying the expert's conclusion are valid. Accordingly, this type of testimony must meet the Frye test, designed to ensure that the jury will not be misled by experimental scientific methods which may ultimately prove to be unsound. See Stokes, 548 So.2d at 193-94 ("[A] courtroom is not a laboratory, and as such it is not the place to conduct scientific experiments. If the scientific community considers a procedure or process unreliable for its own purposes, then the procedure must be considered less reliable for courtroom use.").

Here, it is virtually uncontested that sex offender profile evidence cannot meet this test. The State does not attempt to prove this evidence meets Frye by citing cases or authority showing this type of profile to be accepted in the scientific community, and the only evidence on this point at trial was Dr. Goslin's testimony that this type of information is generally relied on by people working in the field of child sexual abuse to determine what households are at risk and to aid in treatment. However, even Goslin went on to say that the profile could not be used to prove or disprove that a person was a child abuser. After examining relevant academic literature and case law, we find that sexual offender profile evidence is not generally accepted in the scientific community and does not meet the Frye test for admissibility. For an excellent and thorough discussion of this issue, see Judge Ervin's opinion below. Flanagan, 586 So.2d at 1112-20 (Ervin, J., concurring in part and dissenting in part).

Inexplicably, the majority opinion below held that this evidence was admissible without meeting Frye because it was introduced as "background information." Flanagan, 586 So.2d at 1100. We are somewhat confused by this holding. If the evidence was not admitted as substantive evidence of guilt, then it was irrelevant. This is not to say, of course, that an expert witness is not allowed to explain his credentials and the background of any relevant tests or opinions. However, in this case the entire subject matter of this portion of the expert's testimony related to what the district court of appeal termed background information. The courtroom is not a classroom to be used to educate a jury on an entire field only tangentially related to the issues at trial.

We also note that this testimony was completely inappropriate as substantive evidence of guilt. If anything, this profile evidence tended to show that because Flanagan and his house had certain traits which fit Dr. Goslin's child sex offender profile, he necessarily sexually abused his daughter....