State v. Cressey

• Citation: 137 N.H. 402,628 A.2d 696
• Decision Date: 15 July 1993
• Docket Number: No. 92-018,92-018
• Parties: The STATE of New Hampshire v. Wayne CRESSEY.
• Court: New Hampshire Supreme Court

Page 696

628 A.2d 696

137 N.H. 402

The STATE of New Hampshire v. Wayne CRESSEY.

No. 92-018.

Supreme Court of New Hampshire.

July 15, 1993.

Jeffrey R. Howard, Atty. Gen. (Cynthia L. White, Asst. Atty. Gen., on the brief, and Diane Nicolosi, Asst. Atty. Gen., orally), for the State.

W. Kirk Abbott, Jr., Asst. Appellate Defender, Concord, by brief and orally, for defendant.

BROCK, Chief Justice.

The defendant, Wayne Cressey, was convicted of three counts of aggravated felonious sexual assault, RSA 632-A:2 (1986 & Supp.1989) (amended 1992), and one count of felonious sexual assault, RSA 632-A:3 (1986), after a jury trial in the Superior Court (Mohl, J.). On appeal, the defendant argues that the trial court erred in admitting the testimony of the State's expert psychologist to prove that the child victims had been sexually abused. We reverse the convictions on this ground and, therefore, address the defendant's other claims on appeal only to the extent that they are likely to arise again in a new trial.

The defendant and his wife, Betsy Cressey, were given custody of their nieces, Lisa, Julie, and Lorie, while living in Ossipee in 1983. The children's father had been institutionalized since an automobile accident in 1981. The children's mother was killed in another automobile accident in 1982. In 1985, Betsy Cressey also died from complications of injuries sustained in an automobile accident. Lisa, Julie, and Lorie remained in the defendant's care, and he eventually remarried in 1987.

At trial, Lisa testified that the defendant began to sexually abuse her when she was approximately eight years old. The pattern of abuse that continued over the next six years included acts of sexual touching, fellatio, and intercourse. Lisa's sister, Julie, also testified that when she was eleven years old she was involved in two sexual encounters with the defendant, which included sexual touching and digital penetration.

Lisa had not mentioned the defendant's abusive acts to anyone until October 1989, when she disclosed them to a woman for whom she babysat. She was fourteen years old at the time. Lisa testified that the defendant had warned her not to tell anyone about the incidents because she would be separated from her sisters and he would go to jail. Julie had not disclosed any incidents of sexual abuse until February 1991, shortly before a trial was scheduled to begin on the charges involving Lisa. In her interviews with police and counselors prior to that time, Julie had denied having sexual contact with the defendant.

The defendant's first claim on appeal is that the trial court erred in admitting the testimony of the State's expert witness, Dr. Kathleen Bollerud. Dr. Bollerud is an expert in the areas of psychology and child sexual abuse. She interviewed Lisa and Julie prior to trial, and her testimony was a substantial part of the State's case-in-chief. She testified in general about the effects that sexual abuse has on children and about the symptoms and behaviors commonly exhibited by sexually abused children. She testified in particular about the interviewing techniques she used with Lisa and Julie and about her evaluation of each child. Ultimately Dr. Bollerud stated that the symptoms exhibited by each child were consistent with those of a sexually abused child.

To evaluate the admissibility of Dr. Bollerud's expert testimony, we must return to the basic evidentiary rules regarding experts. New Hampshire Rule of Evidence 702 states:

"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."

Subsumed in the requirements of Rule 702 is the premise that expert testimony must be reliable to be admissible. For only if the expert's testimony is reliable can it assist the jury in understanding the evidence or determining a fact in issue. The requirement that an expert's testimony be reliable is reflected in the evidentiary practices of properly establishing an expert's qualifications, see, e.g., State v. Coleman, 133 N.H. 713, 715-16, 584 A.2d 755, 757 (1990), and subjecting technical evidence to the scrutiny of the test set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), see State v. Vandebogart (DNA), 136 N.H. 365, 373, 616 A.2d 483, 489 (1992).

We therefore recognize that an expert's testimony must rise to a threshold level of reliability to be admissible under New Hampshire Rule of Evidence 702. Cf. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, ----, 113 S.Ct. 2786, ----, 125 L.Ed.2d 469 (1993). (We do not reach the issue addressed in Daubert, however, of whether the Frye test has been superseded in New Hampshire by our adoption of New Hampshire Rule of Evidence 702.) The reliability of evidence is of a special concern when offered through expert testimony because such testimony involves the potential risks that a jury may disproportionately defer to the statements of an expert if the subject area is beyond the common knowledge of the average person, and that a jury may attach extra importance to an expert's opinion simply because it is given with the air of authority that commonly accompanies an expert's testimony. The determination of whether particular expert testimony is reliable and admissible rests, in the first instance, within the sound discretion of the trial court. Cf. Johnston v. Lynch, 133 N.H. 79, 88, 574 A.2d 934, 939 (1990).

The importance of Dr. Bollerud's testimony, coupled with the air of authority it gains from being presented by a highly qualified expert, requires us to scrutinize her methods and conclusions carefully in assessing the reliability of her statements. In reaching her conclusions, Dr. Bollerud relied on several different types of information. She interviewed each child, asking open-ended questions about their lives, backgrounds, family situations, and the alleged abuse. Dr. Bollerud then used a disassociative events scale to identify and assess any of the children's behaviors that could be interpreted as manifestations of disassociative behavior resulting from post-traumatic stress. The disassociative events scale used by Dr. Bollerud consists of a checklist of twenty-eight possible indicators of disassociative behavior, such as depersonalization, hypervigilance, and numbing.

Finally, Dr. Bollerud evaluated the children through a technique of art therapy. She testified that this technique involves the children being asked to do a standard series of drawings, which serve to "reveal the unconscious psychological world of the child." Dr. Bollerud first asked each child to draw a person, then a person of the opposite sex of the person in the first drawing, and then a picture of the child's family. Finally she asked the children to draw themselves before, during, and after the abuse. She then interpreted the drawings analyzing the characters and scenes that were drawn, as well as the types of lines and drawing styles in each drawing. Dr. Bollerud testified that a child drawing a person of the opposite sex in the first drawing, drawings of people with no secondary sex characteristics, drawings of people with no hands, feet, or arms, and the presence of genitals in a drawing are some of the many potential indicators of abuse.

As a result of her information gathering, Dr. Bollerud found Lisa to be exhibiting the specific symptoms of "feeling that her body was not her own; forgetting time; having amnesias; feeling as if she was in another world; describing nightmares and dreams about sexuality; flashbacks; being intensely preoccupied with sexual abuse"; and having a fragmented sense of self. Dr. Bollerud also found indicators of sexual abuse in Lisa's drawings, including her drawing a person of the opposite sex in the first drawing; a lack of secondary sex characteristics; missing hands and arms, with more missing in the drawings of herself and the defendant; the drawing of genitalia and sexual acts with the defendant when asked to draw the abuse; the drawing of a transparent figure; and an "adoration in her ability to draw as she was drawing the more emotionally charged pictures."

With respect to her evaluation of Julie, Dr. Bollerud found her not to be suffering from a disassociative disorder, although she did manifest some symptoms of post-traumatic stress such as hypervigilance, efforts to avoid thinking about what had happened to her in the past, a fear of males, and compulsive overeating. Dr. Bollerud also testified that some of the pictures that Julie drew had no indicators of sexual abuse. Other drawings, however, contained a figure with empty, uncolored eyes; figures with heavy belts around their waists; some figures lacking in secondary sex characteristics or having misshapen feet; and black marks representing her "gross feelings" after the abuse. Dr. Bollerud noted these characteristics as indicators of sexual abuse or emotional distress.

From all of the information gathered and observations made during her evaluations of Lisa and Julie, Dr. Bollerud ultimately testified that the children exhibited symptoms consistent with those of children who have been sexually abused. She emphasized in her testimony that her approach in evaluating children suspected of being sexually abused is to consider a wide variety of factors and gather as much information as possible, using a number of different means. She acknowledged that she did not, nor could not, rely solely on one behavior or response to conclude that a child has been sexually abused. Instead, she viewed all of the results, interpreted them in light of her expertise in the field, and based her conclusions on all the information before her.

We hold that Dr. Bollerud's expert testimony is not sufficiently reliable to be admitted in a criminal trial...