State v. Catsam

• Citation: 148 Vt. 366,534 A.2d 184
• Decision Date: 14 August 1987
• Docket Number: No. 85-522,85-522
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Peter S. CATSAM.

Page 184

534 A.2d 184

148 Vt. 366

STATE of Vermont v. Peter S. CATSAM.

No. 85-522.

Supreme Court of Vermont.

Aug. 14, 1987.

Shelley Hill, Windsor County State's Atty., and M. Patricia Zimmerman, Law Clerk, White River Junction, on the brief, for plaintiff-appellee.

Charles S. Martin and Susan Dunbar, Law Clerk, Barre, on the brief, of Martin and Paolini, for defendant-appellant.

Before ALLEN, C.J., HILL, PECK and GIBSON, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

HILL, Justice.

The defendant, Peter Catsam, appeals his conviction of sexual assault in violation of 13 V.S.A. § 3252(3). We reverse and remand for a new trial because of the improper introduction at trial of prejudicial expert testimony.

The complainant, S.S., was ten years old at the time of the alleged sexual assault. The defendant had known the complainant's mother for about three years before the alleged incident, and had carried on an intimate relationship with her up until approximately the time of the reports by S.S. of sexual assault. The defendant had a good relationship with the complainant to the point where, according to the child's mother, he acted in many ways like her father. Defendant would often help to put S.S. to bed and tell her bedtime stories. It was during one of these occasions that the alleged sexual assault took place.

S.S. did not report the incident until approximately six months after it allegedly occurred. She never saw a doctor concerning the alleged assault, and there was no physical evidence to corroborate her allegations.

The prosecution called three witnesses at the trial. The complainant testified about the assault, and was the only source of direct testimony about the assault since there were no other witnesses. The complainant's mother testified that defendant had been in complainant's bedroom trying to help her get to sleep on the night of the alleged assault. A mental health clinician testified as an expert for the State as well. The defendant testified and denied the allegations, using fabrication of the charges as his primary theory of defense.

Defendant alleges three evidentiary errors below: (1) introduction of improper expert testimony on the truthfulness of child sexual assault victims; (2) improper exclusion of his cross-examination of the complainant regarding a prior sexual assault against her by a third party; and (3) improper admission of evidence of his prior sexual assaults on the complainant.

I.

Defendant's first claim of error is that expert testimony that children who suffer from post-traumatic stress disorder (PTSD) do not fabricate stories about sexual assault was improperly admitted. The prosecution introduced the testimony of Sharon Termini, a mental health outpatient clinician. The court found that she was qualified to give expert testimony because of her experience treating child sexual assault victims through her work as a social worker and clinician. Ms. Termini testified that, over a two and one-half year period, she had worked with approximately 300 sexually abused children. She testified that all the sexually abused children that she had worked with suffered from PTSD.

Ms. Termini testified that PTSD is a profile of a child who has been sexually abused and includes both emotional and physical characteristics. According to her testimony, children displaying symptoms of this syndrome are generally anxious, depressed, guilt-ridden, and withdrawn. She also testified that it is common with children who have been sexually abused to delay reporting the abuse.

The prosecutor then asked the expert the following question: "Based on your training and your familiarity with this syndrome, would you say that children generally tend to tell the truth about sexual abuse?" Defense counsel objected, but was overruled. The prosecutor then rephrased the question several times, but never got an answer from the expert because of repeated defense objections. Finally, the prosecutor asked: "Do children make up stories about sexual abuse as part of the syndrome that you describe?" The expert answered: "Not in my experience. No." Ms. Termini then testified that based on her training, experience, and evaluation of the complainant, it was her opinion that the child suffered from PTSD.

The defendant does not challenge the qualifications of the expert, the admission of her testimony relating to the emotional and physical symptoms of PTSD, or her opinion that the complainant suffered from the disorder. His challenge is directed instead at the expert's opinion that sufferers of the disorder generally do not make up stories about sexual abuse. He contends that this testimony constitutes an expert opinion on the credibility of the complaining witness, which usurps the jury's role of determining the credibility of witnesses, thereby depriving him of a fair trial.

We first address the admissibility of profile or syndrome evidence in child sexual assault cases because it is an issue of first impression in Vermont. The rule governing the admission of expert testimony provides:

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.

V.R.E. 702. Courts with near unanimity have recognized that this type of expert testimony can "assist [the jury] to understand the evidence," id., introduced in a child sexual assault case. State v. Lindsey, 149 Ariz. 472, 473-74, 720 P.2d 73, 74-75 (1986); State v. Kim, 64 Haw. 598, 608, 645 P.2d 1330, 1338 (1982); State v. Myers, 359 N.W.2d 604, 609-10 (Minn.1984); State v. Middleton, 294 Or. 427, 436-37, 657 P.2d 1215, 1220 (1983); Commonwealth v. Baldwin, 348 Pa.Super. 368, 377-78, 502 A.2d 253, 257-58 (1985). The unique psychological effects of sexual assault on children place the average juror at a disadvantage in understanding the behavior of the victim. Middleton, 294 Or. at 436-37, 657 P.2d at 1220. The confusion, shame, guilt, and fear that often result from such abuse may cause a "victim to react and behave in a different manner from many other crime victims, especially when the sexual abuse victim is forced to testify to the acts in open court." Baldwin, 348 Pa.Super. at 377, 502 A.2d at 258. Jurors who themselves have never experienced such emotions may be better able to assess the credibility of the complaining witness with the benefit of a better understanding of the emotional antecedents of the victim's conduct provided by the expert testimony.

Given the demonstrated usefulness that such evidence can have in assisting the jury to assess the credibility of the complaining child witness, we join the majority of courts that have concluded that it is within the trial court's discretion to admit such evidence in appropriate circumstances. ¹ See Poyner v. State, 288 Ark. 402, 405-06, 705 S.W.2d 882, 884 (1986); Kruse v. State, 483 So.2d 1383, 1385 (Fla.Dist.Ct.App.1986); Kim, 64 Haw. at 608-10, 645 P.2d at 1338-39; Myers, 359 N.W.2d at 609-10; State v. Geyman, 729 P.2d 475, 479 (Mont.1986); Smith v. State, 100 Nev. 570, 572-73, 688 P.2d 326, 327 (1984); Middleton, 294 Or. at 436-37, 657 P.2d at 1221; Baldwin, 348 Pa.Super. at 374-79, 502 A.2d at 257-58.

The challenged expert testimony, however, went beyond the psychological and emotional profile of PTSD sufferers and an opinion as to whether the testifying complainant suffers from the disorder; the expert testified regarding the tendency of PTSD sufferers to tell the truth about incidents of sexual abuse. The State argues that that testimony comes within the profile evidence rule, since it can aid the jury's assessment of the complainant's credibility, and does not constitute a direct comment on the credibility of the complainant. We disagree.

When viewed as a whole, the testimony of Ms. Termini was tantamount to a direct comment that the complainant was telling the truth about the alleged sexual assault for which the defendant was charged. By testifying first that sufferers of PTSD generally do not fabricate claims of sexual abuse, and then that the complainant suffers from PTSD, her testimony left one clear and unmistakable inference to be drawn: the complainant would not fabricate this allegation. The fact that the expert does not testify directly to the ultimate conclusion does not ameliorate the difficulty with the opinion on credibility. Other courts have concluded, as do we, that expert testimony that child victims of sexual abuse generally tend not to fabricate incidents of abuse is the equivalent of a direct comment on the credibility of the testifying complainant. See Lindsey, 149 Ariz. at 474, 720 P.2d at 75 (testimony that " 'most people in the field feel that it's a very small proportion [of incest victims] that lie' " is "tantamount to expert evidence on the question of guilt or innocence"); State v. Myers, 382 N.W.2d 91, 92-93 (Iowa 1986) (testimony that "[s]tatistically ... children have not lied in [the area of child sexual abuse]" and that "it is my opinion that it is very rare for a child to lie about [sexual abuse]" is "comparable to telling the jury that the complainant would not lie about matters concerning sexual abuse"); see also McCord, Expert Psychological Testimony About Child Complainants in Sexual Abuse Prosecutions: A Foray into the Admissibility of Novel Psychological Evidence, 77 J.Crim.L. & Criminology 1, 53 (1986) ("Expert opinion that it is rare for children to fabricate or fantasize claims of sexual abuse ... vouches for the complainant's credibility because it concludes that the complainant is almost certainly telling the truth.").

Once the false distinction is recognized between the challenged expert testimony in this case and an expert's direct comment on the credibility of a complaining witness, review of the court...