State v. Batangan, 14097

• Citation: 799 P.2d 48,71 Haw. 552
• Decision Date: 27 September 1990
• Docket Number: No. 14097,14097
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Felomino BATANGAN, Defendant-Appellant.
• Court: Supreme Court of Hawai'i

Page 48

799 P.2d 48

71 Haw. 552

STATE of Hawaii, Plaintiff-Appellee, v. Felomino BATANGAN, Defendant-Appellant.

No. 14097.

Supreme Court of Hawai'i.

Sept. 27, 1990.

Syllabus by the Court

1. Expert testimony assists the trier of fact by providing a resource for ascertaining truth in relevant areas outside the ken of ordinary laity. Specialized knowledge which is the proper subject of expert testimony is knowledge not possessed by the average trier of fact who lacks the expert's skill, experience, training, or education.

2. Although an expert's testimony on matters within the competence of the jurors may be relevant and helpful, the possibility that the jury may be unduly influenced by the expert's opinion would mitigate against admission.

3. The common experience of the jury, in most cases, provides a sufficient basis for assessment of a witness' credibility. Thus, expert testimony on a witness' credibility is inappropriate. However, sexual abuse of children is a particularly mysterious phenomenon and the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse.

4. Much expert testimony carries the potential of bolstering the credibility of one witness and conversely refuting the credibility of another. Such testimony, by itself, does not render the evidence inadmissible. The pertinent consideration is whether the expert testimony will assist the jury without unduly prejudicing the defendant.

5. While expert testimony explaining "seemingly bizarre" behavior of child sex abuse victims is helpful to the jury and should be admitted, conclusory opinions that abuse did occur and that the child victim's report of abuse is truthful and believable is of no assistance to the jury, and therefore, should not be admitted.

6. Rule 704, Hawaii Rules of Evidence, permits testimony in the form of opinion or inference even though it embraces an ultimate issue to be decided by the trier of fact. But Rule 704 does not allow the admission of opinions which would merely tell the jury what result to reach.

7. As in most child sexual abuse cases, where the only evidence consists of the victim's accusation and the defendant's denial, expert testimony on the question of who to believe is nothing more than advice to jurors on how to decide the case.

8. Courts must proceed with caution in admitting expert testimony in child sexual abuse cases. The trial court must be satisfied that the witness is indeed an expert and that the testimony is relevant. The testimony must further be shown to assist the jury to comprehend something not commonly known or understood. And experts may not give opinions which in effect usurp the basic functions of the jury. The trial court must keep in mind that an expert's opinion on the credibility of a victim is always suspect of bias and carries the danger of unduly influencing the triers of fact. Furthermore, even objective opinions of experts regarding a victim's credibility is no more reliable than the determination of the victim's credibility by the triers of fact.

Susan L. Arnett, (Lynette Mah Matsushima on the briefs), Deputy Public Defenders, for defendant-appellant.

Patricia Amy Loo, Deputy Pros. Atty., for plaintiff-appellee.

Before LUM, C.J., and PADGETT, HAYASHI, WAKATSUKI and MOON, JJ.

WAKATSUKI, Justice.

Felomino Batangan (Defendant) was accused of having sexual contact with his daughter (Complainant). Complainant alleged that when she was 6 or 7 years old, on four or five occasions, Defendant performed sexual acts on her. Complainant could not provide any specific dates or reference points in time. Nor were the acts described specific as to one incident or another. There was no evidence of physical injury and no third-party witnesses to these incidents.

Complainant did not report these incidents until several months after the occurrences. She first reported to school authorities that Defendant had physically abused her. When no injuries were found, she admitted that she had lied about the physical abuse, but instead accused Defendant of sexually abusing her. Complainant subsequently recanted her allegations of sexual abuse. At trial, however, Complainant testified that she had been sexually abused by Defendant.

Defendant was indicted on one count of second degree rape and one count of first degree sexual abuse. At the first trial, Defendant was acquitted of the rape charge, and a mistrial (due to a hung jury) was declared on the sexual abuse charge. The State proceeded to retry Defendant on the sex abuse count.

At the second trial, the State presented Dr. John Bond as an expert witness in the field of clinical psychology with a subspecialty in the treatment of sexually abused children. Dr. Bond had evaluated Complainant on one occasion three weeks prior to the second trial.

Dr. Bond testified regarding his evaluation of Complainant (her personality, intelligence, behavior) and what Complainant had related to him regarding the incidents of sexual abuse. There was also some testimony about behavior of child sex abuse victims in general. Finally, Dr. Bond testified as to how he evaluates whether a child is telling the truth about being sexually abused. He then implicitly testified that Complainant was believable and that she had been abused by Defendant.

Defendant objected to the admission of Dr. Bond's testimony. The trial court, however, determined that such testimony was admissible under State v. Kim, 64 Haw. 598, 645 P.2d 1330 (1982).

Defendant was convicted of first degree sexual abuse. He appeals on the ground that the trial court committed error in admitting Dr. Bond's testimony. We agree.

I.

We recognize that sexual abuse of children is "detestable and society demands prosecution of these abusers." State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986). Yet these cases are difficult to prosecute because of the young age of many of the victims and the absence of eyewitnesses. Id. at 97; Townsend v. State, 103 Nev. 113, 117, 734 P.2d 705, 708 (1987); Wheat v. State, 527 A.2d 269, 275 (Del.Super.Ct.1987). "Given the egregious nature of child molestation, we are tempted to stretch the rules of evidence to their utmost." State v. Moran, 151 Ariz. 378, 380, 728 P.2d 248, 250 (1986) (citations and internal ellipses omitted). However, the charge of sexual abuse by itself imposes an heinous stigma on the accused and a conviction results in a serious penalty. Wheat, 527 A.2d at 275; Myers, 382 N.W.2d at 97; see generally § 707-730 through § 707-751, Hawaii Revised Statutes (HRS).

Our rules of evidence should therefore be interpreted in light of society's interest as well as defendant's right to a fair trial. Wheat, 527 A.2d at 275; Myers, 382 N.W.2d at 97.

Rule 702, Hawaii Rules of Evidence (HRE) governs the admission of expert testimony at a trial:

Testimony by experts. 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.

Expert testimony assists the trier of fact by providing "a resource for ascertaining truth in relevant areas outside the ken of ordinary laity." Townsend, 103 Nev. at 117, 734 P.2d at 708. Specialized knowledge which is the proper subject of expert testimony is knowledge not possessed by the average trier of fact who lacks the expert's skill, experience, training, or education. Wheat, 527 A.2d at 272. Although an expert's testimony on matters within the competence of the jurors may be relevant and helpful, "the possibility that the jury may be unduly influenced by the expert's opinion would mitigate against admission." Kim, 64 Haw. at 607, 645 P.2d at 1337. Scientific and expert testimony, with their "aura of special reliability and trustworthiness," United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir.1973), courts the danger that the triers of fact will "abdicate [their] role of critical assessment," State v. Brown, 297 Or. 404, 439, 687 P.2d 751, 773 (1984), and "surrender [ ] their own common sense in weighing testimony," United States v. Azure, 801 F.2d 336, 341 (8th Cir.1986).

The common experience of a jury, in most cases, provides a sufficient basis for assessment of a witness' credibility. Thus, expert testimony on a witness' credibility is inappropriate. Kim, 64 Haw. at 607, 645 P.2d at 1337. However, sexual abuse of children "is a particularly mysterious phenomenon," State v. Castro, 69 Haw. 633, 648, 756 P.2d 1033, 1044 (1988), "and the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse," State v. Myers, 359 N.W.2d 604, 610 (Minn.1984).

While jurors may be capable of personalizing the emotions of victims of physical assault generally, and of assessing witness credibility accordingly, tensions unique to trauma experienced by a child sexually abused by a family member have remained largely unknown to the public.... [T]he routine indicia of witness credibility--consistency, willingness to aid the prosecution, straight forward rendition of the facts--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.

Moran, 151 Ariz. at 381, 728 P.2d at 251 (1986) (quoting State v. Middleton, 294 Or. 427, 440, 657 P.2d 1215, 1222 (1983) (Roberts, J., concurring)).

Child victims of sexual abuse have exhibited some patterns of behavior which are seemingly inconsistent with behavioral norms of other victims of assault. Two such types of behavior are delayed reporting of the offenses and recantation of allegations of abuse. Normally, such behavior would be attributed to inaccuracy or prevarication. People v....