State v. Alberico

• Decision Date: 30 August 1993
• Docket Number: Nos. 20282,20357,s. 20282
• Parties: , 62 USLW 2247 STATE of New Mexico, Petitioner, v. Ralph ALBERICO, Respondent. STATE of New Mexico, Petitioner, v. Richard MARQUEZ, Respondent.
• Court: New Mexico Supreme Court

Page 192

861 P.2d 192

116 N.M. 156, 62 USLW 2247

STATE of New Mexico, Petitioner, v. Ralph ALBERICO, Respondent.

STATE of New Mexico, Petitioner, v. Richard MARQUEZ, Respondent.

Nos. 20282, 20357.

Supreme Court of New Mexico.

Aug. 30, 1993.

Rehearing Denied Sept. 28, 1993.

[116 N.M. 158] Tom Udall, Atty. Gen., Max W. Shepherd, Asst. Atty. Gen., Santa Fe, for petitioner.

Winston Roberts-Hohl, Santa Fe, for respondent.

Rothstein, Walther, Donatelli, Hughes, Dahlstrom & Cron, Dan Cron, Santa Fe, amicus curiae.

OPINION

FROST, Justice.

In this opinion, we address the subject of the admissibility of expert opinion testimony regarding alleged victims of sexual abuse who suffer from post traumatic stress disorder. As a necessary sub-issue, we must also discuss in general the admissibility of scientific evidence by way of expert opinion testimony under our Rules of Evidence.

For almost three-quarters of a century, the admissibility of expert opinion testimony in American jurisprudence has been governed largely by the rule set out in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and that has been the rule in New Mexico as well. See State ex rel. Human Servs. Dep't v. Coleman, 104 N.M. 500, 503, 723 P.2d 971, 974 (Ct.App.1986). For the past several years, there has been much criticism of the Frye doctrine, which has been uttered in mantra-like fashion by lawyers and judges alike as a precondition for the admission of expert testimony. Today we abandon the Frye test as a predicate for the admissibility of scientific evidence by way of expert opinion testimony, relying instead on our Rules of Evidence.

I. PROCEDURAL HISTORY

We granted the State's writs of certiorari in these two cases¹ to review the Court of Appeals decisions overturning the convictions of the defendants. Both Ralph Alberico and Richard Marquez were convicted of criminal sexual penetration. Alberico was also convicted of kidnapping. The Court of Appeals reversed the convictions, holding that the trial court in each case erred by admitting expert opinion testimony to the effect that the alleged victim suffered from post traumatic stress disorder (PTSD) consistent with sexual abuse.²

In granting certiorari in Alberico, we requested that the parties brief two issues: May a properly qualified mental health professional testify (1) that in the expert's opinion an alleged victim of sexual abuse suffers from PTSD; and (2) that the alleged victim's symptoms are consistent with those suffered by someone who has been sexually abused. In Marquez, we requested the parties to brief the first issue above, but we phrased the second issue differently: Whether a properly qualified mental health professional may testify that the alleged victim's symptoms were the result of sexual abuse. We also granted leave to the New Mexico Criminal Defense Lawyers Association to file an amicus curiae brief in both cases.

We reverse the Court of Appeals opinion in Alberico and reinstate Alberico's conviction. We affirm, on different grounds, the Court of Appeals reversal of Marquez's conviction. While we hold that it was not error to admit expert testimony regarding PTSD in Marquez, the State's expert opinion testimony went beyond what we hold to be permissible today, which constituted reversible error.

II. FACTS

A. State v. Alberico

The complainant was a fifteen-year-old acquaintance of Alberico, and she claimed that he raped her. Alberico did not dispute that he had intercourse with the complainant, but he claimed that she consented. During its case in chief, the State introduced testimony from a clinical psychologist, Dr. Barbara Lenssen. The prosecution stated that the purpose of Lenssen's testimony was to prove that a crime was committed. Dr. Lenssen's qualifications as an expert were not contested; it is the content of her testimony that is the issue.

During voir dire outside the presence of the jury, Dr. Lenssen testified that PTSD is a diagnosis for a psychological condition that may result from an incident that is beyond the normal range of experience and which would be distressing to anyone. The American Psychiatric Association published a list of diagnostic criteria for PTSD in its manual entitled Diagnostic & Statistical Manual of Mental Disorders (3d Rev. ed. 1987) ("DSM III-R"), and Dr. Lenssen patterned her evaluation of the complainant after the DSM III-R. One of the traumatic experiences that may cause PTSD, she stated, is rape. PTSD that is induced by rape is sometimes referred to as "rape trauma syndrome" or RTS. She stated that PTSD and RTS as diagnoses are generally accepted by national organizations of both psychiatrists and psychologists. She also stated, however, that while RTS is generally accepted in the research community by clinical psychologists, it is not listed in the DSM III-R manual like PTSD.

In addition, Dr. Lenssen testified that in evaluating an alleged victim, a psychologist will try to verify or validate her credibility, but that such an evaluation falls short of being able to determine whether or not the alleged victim is telling the truth. Apparently, psychologists make no attempt at a final determination of truthfulness in the legal sense, but rather check the victim's story for inherent reliability, what they refer to as internal consistency.

Over the objection of defense counsel, the trial judge ruled that the State laid a proper foundation for the PTSD testimony and that such testimony was inherently reliable. As to relevancy, the trial judge ruled that PTSD testimony was admissible and would help the jury determine whether a crime had been committed, but was not admissible to bolster the credibility of the complainant. The judge concluded that PTSD testimony was based on well-recognized scientific principle and that its probative value outweighed its potential prejudicial effect.

Before the jury, Dr. Lenssen stated that she interviewed the complainant twice and her mother once. She also administered two psychological tests to the complainant. From her evaluation of the complainant's symptoms, Dr. Lenssen diagnosed her as suffering from PTSD consistent with someone who suffered from sexual abuse or rape. She did not identify Alberico as the probable perpetrator or inculpate him in any way.

On cross-examination, Dr. Lenssen was asked if she could determine if the complainant was lying, and she responded that she could not. She testified that the validation or verification process tries to determine whether a complainant's story is consistent with symptoms of sexual abuse. Dr. Lenssen stated that she assumes that a complainant's reports are true. Also in response to cross-examination, she testified that no other factors appeared to have contributed to the complainant's symptoms. Dr. Lenssen did not employ the term "rape trauma syndrome" during her testimony before the jury.

B. State v. Marquez

The complainant was the seventeen-year-old adopted daughter of Marquez. She complained of a pattern of sexual abuse by her stepfather beginning when she was eight or nine years old and culminating in the criminal sexual penetration of which he was convicted. Marquez denied involvement in any sexual abuse and claimed that the complainant fabricated her allegations.

Before trial pursuant to the defense's motion to exclude PTSD evidence, the district court held a hearing to determine whether PTSD testimony would be admitted. Dr. Ned Siegel testified for the defense and stated that the DSM III-R itself contains a cautionary statement to the effect that clinical categories or terms may not be synonymous with the same terms in a legal sense. He also noted that in making the PTSD diagnosis, the psychologist must believe what the victim says to make a diagnosis, but he also stated that psychologist's role is not to determine whether the victim is telling the truth. Dr. Siegel explained that in a clinical setting truthfulness is different from credibility, stating that in psychology, credibility is more akin to consistency. He also stated that it is possible to pinpoint the cause of PTSD symptoms, although that task may be difficult when different stressors overlap.

Dr. Lenssen testified for the State and claimed that it was not unusual to use DSM III-R in criminal cases involving the issues of competency or sanity. She also stated that the diagnosis can pinpoint a specific stressor because different stressors manifest themselves in different symptoms. She eliminated other possible causes for the symptoms observed in the complainant and diagnosed her as suffering from PTSD caused by incest.

Dr. Sam Roll also testified for the State, and he also stated that it was not unusual to use DSM III-R in criminal or civil cases. He stated that psychologists do not have a truth-telling machine, but that they do check for internal consistencies in a victim's report. Dr. Roll opined that none of the other stressors in the complainant's life were sufficient to create the severity of the symptoms that he observed in her behavior. Like Dr. Lenssen, Dr. Roll noted that different stressors can cause different symptoms and that most of the complainant's stressors were normal human experiences such as the divorce of her parents and the death of friends. He pointed out that sexual abuse is not within the normal range of human experience, and he diagnosed the complainant as suffering from PTSD that was highly consistent with long-term sexual abuse by a figure of trust.

In support of his motion to exclude PTSD evidence, Marquez argued that the psychologists had to assume that the complainant was telling the truth to make a diagnosis, which usurped the jury's function of passing on her credibility. The defense also claimed that having experts testify as to the complainant's credibility would prejudice the defendant. The prosecution countered that the issue was not whether the complainant was telling the truth, but rather whether the expert testimony...