Sanchez, Matter of

• Decision Date: 13 December 1988
• Citation: 535 N.Y.S.2d 937,141 Misc.2d 1066
• Parties: In the Matter of Sondra SANCHEZ * A Child Under Eighteen Years Alleged to be Neglected by Lydia Q.* Juan S.* Respondents.
• Court: New York Family Court

Page 937

535 N.Y.S.2d 937

141 Misc.2d 1066

In the Matter of Sondra SANCHEZ ^*

A Child Under Eighteen Years Alleged to be Neglected by

Lydia Q.*

Juan S.* Respondents.

Family Court, City of New York,

Bronx County.

Dec. 13, 1988.

Peter L. Zimroth, Corp. Counsel (Paula J. Hepner, Sp. Asst. Corp. Counsel, Dept. of Social Services, of counsel), New York City, for petitioner.

Joyce Y. Hartsfield, New York City, for respondent Uncle.

Maryna Lansky, New York City, for respondent Aunt.

Bonnie Rabin, Legal Aid Society, New York City, Law Guardian.

JEFFRY H. GALLET, Judge.

At issue here is whether, as part of her examination of an expert "validator" in a child abuse proceeding, an Assistant Corporation Counsel may ask the expert's opinion on whether or not he believes the child/complainant told the truth in relating her allegations of sexual abuse.

Facts

Sondra has resided with her aunt virtually all of her troubled life. During her first 14 years, she was a psychiatric in-patient at Manhattan Children's Psychiatric Center (MCPC), Metropolitan Hospital, New York Hospital/Payne-Whitney Clinic, Bellevue Hospital, Mt. Sinai Hospital and Columbia Presbyterian Hospital. She was diagnosed as being psychotic on several occasions.

Among the allegations in the petition are a charge against her uncle for sexually molesting her and against her aunt for failing to protect her from sexual molestation by her uncle, her cousin, and a psychiatrist at MCPC. The petitioner's first witness was the child's therapist at MCPC, Dr. Jonathan Kurfirst. Dr. Kurfirst, a Ph.D. in psychology and a New York State licensed psychologist, has considerable experience in the treatment of adolescents and was qualified as an expert witness. During his extensive testimony, Dr. Kurfirst testified as to the child's statements to him [Family Court Act § 1046(a)(vi) ], his diagnosis and treatment of the child, various symptoms and behavioral patterns of sexually abused children and the effect of her borderline personality disorder on the child's ability to tell the truth at certain specific times.

The Corporation Counsel asked Dr. Kurfirst, whether, in his opinion, the child was telling the truth when she told him of the incidents of sexual abuse. Both respondents objected to the question and the objection was sustained.

Expert Testimony-Generally

Under varying circumstances, opinion testimony can be elicited from both "expert" and "lay" witnesses. (See generally Shaw, Canudo on Evidence Laws of New York, Gould Publications Binghamton, New York, 1988, pp. 192-206B.). Lay witnesses have been permitted to give expert opinions on areas of general knowledge such as the emotional state of people being observed (Pearce v. Stace, 207 N.Y. 506, 101 N.E. 434), another person's age (Hartshorn v. Metropolitan Life Ins. Co., 55 A.D. 471, 67 N.Y.S. 13), the estimated speed of an automobile (Marcucci v. Bird, 275 A.D. 127, 88 N.Y.S.2d 333; People v. Heyser, 2 N.Y.2d 390, 161 N.Y.S.2d 36, 141 N.E.2d 553) and whether a person appeared to be intoxicated, feeble or ill (Rawls v. American Mutual Life Ins. Co., 27 N.Y. 282; Allen v. Glens Falls Ins. Co., 5 A.D.2d 1020, 173 N.Y.S.2d 316; Burke v. Tower East Restaurant, 37 A.D.2d 836, 326 N.Y.S.2d 32). However, most opinion testimony is rendered by "experts."

An expert is a person with sufficient background, experience and/or study to express an opinion on questions of fact relating to skills, science, medicine, business or technology not within the range of ordinary training or experience. Meiselman v. Crown Heights Hospital, Inc., 285 N.Y. 389, 34 N.E.2d 367; Dougherty v. Milliken, 163 N.Y. 527, 57 N.E. 757. The scope of expert testimony is limited by the "Frye rule" which holds that "... while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye v. U.S., 293 F. 1013, 1014; People v. Hughes, 59 N.Y.2d 523, 466 N.Y.S.2d 255, 453 N.E.2d 484. The basis for the opinion must reflect an acceptable level of certainty and exclude speculation or guesswork. De Long v. County of Erie, 60 N.Y.2d 296, 469 N.Y.S.2d 611, 457 N.E.2d 717; Matott v. Ward, 48 N.Y.2d 455, 423 N.Y.S.2d 645, 399 N.E.2d 532.

Expert Testimony--Psychological

It is beyond cavil that expert psychiatric and psychological testimony is admissible in cases dealing with the sexual abuse of children. Matter of Nicole V., 71 N.Y.2d 112, 524 N.Y.S.2d 19, 518 N.E.2d 914; People v. Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790, 502 N.E.2d 577. The questions which must be decided in each case are the qualifications of the particular "expert" rendering the testimony and its admissibility under the general rules dealing with opinion evidence.

The American Psychiatric Association publishes the Diagnostic and Statistical Manual of Mental Disorders (Third Edition-Revised), commonly known as "DSM-III-R." That volume, which is generally accepted in the medical and psychological communities, sets forth the diagnostic criteria for mental illnesses. The strongest psychological opinion evidence would, therefore, be a diagnosis made by a psychiatrist or licensed psychologist of an illness defined in DSM-III-R. Indeed, it would seem that that diagnosis could appropriately be made by a psychiatrist or psychologist who had never before seen the particular ailment. Matter of Lou R., 131 Misc.2d 138, 499 N.Y.S.2d 846.

Unfortunately, we live in an imperfect world and frequently less than perfect expert testimony is elicited. When properly qualified, school psychologists, psychologists who have not yet met the rigorous state licensing requirements, and social workers, after each has demonstrated the requisite background, have been permitted to opine in the psychiatric and psychological area. In addition, opinions given often do not reach the certainty of a full DSM-III-R diagnosis.

Validation Testimony

The term "validation testimony" is misleading. What it is generally considered to refer to is expert psychiatric or psychological testimony of a mental illness or unusual behavioral manifestation which would lead an expert to believe that a child has suffered sexual abuse. As with all expert testimony, it must be assigned appropriate weight by the trier of the facts and considered in making a final determination.

The area of validation testimony is complicated by the fact that child abuse is rarely done in front of witnesses and frequently leaves no physical evidence. Many of the victims of child abuse are by definition of an age where they either cannot give sworn testimony or cannot accurately recall and report incidents that happened sometime before. Accordingly, the legislature enacted Family Court Act § 1046(a)(vi). That section permits a court to receive the child's hearsay statements. It further mandates, however, that a finding cannot be made absent corroboration.

FCA § 1046(a)(vi) provides that the child's statements can be corroborated by evidence "tending to support the reliability" of such hearsay. The so-called "validation" testimony is merely corroboration evidence.

Unfortunately, some lawyers have ascribed a mystical quality to the term "validation testimony." They are not correct. Validation testimony is medical, psychological and/or behavioral evidence. It is required to meet the same tests for admissibility as any other expert testimony. For example, if a child told a police officer or a protective caseworker that his father slashed him on the shoulder with a razor, the court could receive as corroboration testimony a statement from a physician that she or he treated a slash wound on the child's shoulder and that the wound was consistent with a razor cut.

Similarly, if a child tells a police officer or a protective caseworker that she was sexually abused by her father, a court can receive a diagnosis of post-traumatic stress disorder, a recognized DSM-III-R diagnosis which is consistent with sexual abuse. A proper diagnosis of mental illness is equal to a proper diagnosis of physical illness or injury.

Less conclusive medical or scientific evidence would be admissible in either case. In the first example, the court would accept evidence of scarring, residual pain, restricted arm movement and other similar, but less conclusive, evidence of a slash wound. Similar, less than perfect, evidence has been accepted as "validation" testimony in sexual abuse cases. Matter of Nicole V., supra; Matter of Rose B., 79 A.D.2d 1044, 435 N.Y.S.2d 185; Matter of E.M., 137 Misc.2d 197, 520 N.Y.S.2d 327; Matter of Michael G., 129 Misc.2d 186, 492 N.Y.S.2d 993.

The "validation" testimony of physicians (Matter of Rose B., supra; Matter of Michael G., supra ), school psychologists (Matter of Linda K., 132 A.D.2d 149, 521 N.Y.S.2d 705; Matter of Rose B., supra ), child protective caseworkers (Matter of Nicole V., supra ), sheriff's deputies (Matter of Nicole V., supra ), nurses (Matter of Rose B., supra ), psychologists (Matter of E.M., supra ) and social workers (Matter of Rose B., supra; Dutchess County Dept. of Social Servs. v. Bertha C., 130 Misc.2d 1043, 498 N.Y.S.2d 960; Matter of Tara H., 129 Misc.2d 508, 494 N.Y.S.2d 953) has been accepted as to such matters as academic behavior (Matter of Rose B., supra; Dutchess County Dept. of Social Servs. v. Bertha C., ...