State v. Kim

• Decision Date: 27 May 1982
• Docket Number: No. 7899,7899
• Citation: 645 P.2d 1330,64 Haw. 598
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Tim C. H. KIM, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1330

645 P.2d 1330

64 Haw. 598

STATE of Hawaii, Plaintiff-Appellee, v. Tim C. H. KIM, Defendant-Appellant.

No. 7899.

Supreme Court of Hawai'i.

May 27, 1982.

Syllabus by the Court

1. In a trial by jury, the jury is the sole judge of the credibility of witnesses.

2. Admission of testimony to support or impeach the credibility of a witness is controlled by the rules of evidence governing the admission of expert testimony generally.

3. The purpose of expert testimony respecting witness credibility is not to substitute his or her estimation of credibility for that of the jury. Rather, it is to provide a scientific perspective for the jury according to which it can evaluate the witness' testimony for itself.

4. The critical inquiry with respect to the admission of expert testimony is whether such testimony will assist the trier of fact to understand the evidence or determine a fact in issue. Generally, in order to so assist the jury an expert must base his testimony upon a sound factual foundation; any inferences or opinions must be a product of an explicable and reliable system of analysis; such opinions must add to the common understanding of the jury; and the probative value of such testimony must not be outweighed by the likelihood of prejudice, confusion, or waste of time.

5. Prior to admitting expert testimony respecting credibility the trial judge should be satisfied that the expert's contacts with the evaluated witness were such that he had an opportunity to make a thorough and objective assessment; that the method by which any diagnosis or conclusion was reached was of sufficient reliability to meaningfully contribute to the jury's assessment of the witness' credibility; and that admission is not precluded by considerations found in Rule 403, Haw.R.Evid.

6. The decision of whether or not to admit expert testimony rests within the sound discretion of the trial court.

7. Trial court did not abuse its discretion by permitting a child psychiatrist who had interviewed a thirteen-year-old complaining witness in a statutory rape case to testify that the complainant's conduct, account of the incident, and mental and emotional conditions approximated that of other child rape victims he had interviewed.

Keith M. Kiuchi, Deputy Public Defender, Honolulu, for defendant-appellant.

Colleen K. Hirai, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., NAKAMURA, J., MARUMOTO, Retired Justice, in place of LUM, J., excused, and OGATA and MENOR, Retired Justices, assigned by reason of vacancies.

RICHARDSON, Chief Justice.

On February 25, 1980, Appellant Kim (hereinafter Appellant) was convicted by a jury of rape in the second degree. He now appeals that conviction, alleging that the trial court erred in allowing expert psychiatric opinion testimony to support the credibility of the complaining witness. We find that the admission of such testimony did not constitute a reversible error and therefore affirm the conviction.

I.

Appellant was accused of having sexual intercourse with his thirteen-year-old stepdaughter in violation of HRS § 707-731 (1976). ¹ The child complainant was the only witness to the alleged crime which, according to the complainant, took place on July 2 or 3, 1979. ² The complainant informed her mother of the alleged offense on July 11 and was taken for a physical examination at Kapiolani Children's Medical Center on July 13. On July 20, 1979, she was examined further by Dr. Eberhard Mann, a pediatrician and child psychiatrist employed as a consultant by the medical center. In the course of his psychiatric examination, Dr. Mann also interviewed the appellant and his wife, the complainant's mother. It is to Dr. Mann's trial testimony concerning his examination that the Appellant now objects.

During trial Appellant attempted to impeach the complainant's credibility by asking her if she had any "boyfriends", and, after she denied having them, introducing a letter she had written which eventually led to an admission that she did. ³ The trial court ruled that this effort at impeachment placed the complainant's credibility sufficiently at issue so as to allow Dr. Mann's supportive testimony on the issue of credibility. ⁴ The trial judge specifically limited his testimony to that issue. Appellant nonetheless objected to the testimony on the ground that its prejudicial effect would outweigh any probative value. The objection was overruled.

Dr. Mann's testimony, after he had been qualified as an expert in pediatrics and child psychiatry and affirmed that he had interviewed the complainant, her mother, and the Appellant, was as follows:

Q Based upon your experience, Dr. Mann, have you had an opportunity to-in the past-to assess the credibility of reported rape cases by children involving family members?

A Yes.

Q Approximately how many times have you done this?

A I would say about 70 times, 70 cases.

Q And, as a result of your interviews and examinations of these witnesses, have you arrived at conclusions with respect to the truthfulness of these reported rape cases involving family members?

A Yes.

Q Upon what do you base your conclusions as to the credibility of such claims?

A There are several factors. One is the consistency of the account of the alleged sexual abuse. There are some common emotional reactions we frequently find in victims, which consists of a fear of safety, fear of future sexual abuse, feelings of depression or anxiety, embarrassment to have the alleged happenings known to peers or other people around them, a negative view of sex, some doubts that one parent might be strong enough to protect further sexual abuse.

It's also important to see whether the mental status is basically normal. That means there is no disturbing thinking. That memory functions are intact, and that there is a good sense of right or wrong or fairness and no excessive fantasizing.

Q Now, as a result of your experience and training in this area, did you come to the conclusion as to the truthfulness of the rape case reported by (the complainant) regarding the incident of July 2nd or 3rd, 1979?

A Yes. I found her account to be believable.

Q And was this a result of your interviewing not only (the complainant) but also the defendant and Mrs. Kim in this case?

A Yes.

Q Now, in arriving at that conclusion, what factors did you consider?

A Many of the factors I listed before. I found (the complainant's) account quite consistent. She was very much preoccupied with a fear of safety, which took on some almost phobic dimensions, telling me that she locked herself in her room and shut the windows when she was alone out of fear that the alleged might come back and she might be re-abused. She was quite depressed, showed a negative attitude to sex and seemed somewhat naive in sexual matters, which made it very unlikely that she would have fantasized acts in that specific manner.

Also sense of fairness, I think, made it unlikely that she would make up a story just to get back at somebody.

Appellant now asserts that the trial court erred in permitting Dr. Mann to testify in that: 1) permitting the expert's opinion as to credibility invaded the exclusive province of the jury; 2) the subject matter was not properly one which required expert testimony; and 3) the testimony's potential evidentiary value was outweighed by its prejudicial effect.

II.

In a trial by jury, the jury is the sole judge of the credibility of the witnesses. State v. Kekaualua, 50 Haw. 130, 433 P.2d 131 (1967). Expert accrediting or impeaching testimony has been recognized to represent a potential threat to this function inasmuch as such testimony may constitute "an invitation to the trier of fact to abdicate its responsibility to ascertain the facts relying upon the questionable premise that the expert is in a better position to make such a judgment." Comm. v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976). Thus, such testimony has on occasion been held inadmissible as an "invasion of the province of the jury." See, e.g., United States v. Jackson, 576 F.2d 46 (5th Cir. 1978) (psychiatrist's opinion regarding witnesses' ability to distinguish truth from fantasy); Holliday v. State, 389 So.2d 679 (Fla.App.1980) (psychiatrist's testimony that witness was not a pathological liar).

We are, however, reluctant to categorically preclude all such testimony, since we agree with the virtually unanimous opinion of commentators that under certain circumstances expert psychiatric testimony may reveal to the trier of fact characteristics or conditions of the witness which may assist the jury's assessment of credibility. See e.g., Goldstein, Credibility and Incredibility: The Psychiatric Examination of the Complaining Witness, 137 Am.J.Psychia. 1238 (1980); Saxe, Psychiatry, Psychoanalysis, and the Credibility of Witnesses, 45 Notre Dame Lawyer 238 (1970); Juviler, Psychiatric Opinions as to Credibility of Witnesses: A Suggested Approach, 48 Cal.L.Rev. 648 (1960); McCormick, Evidence, § 45 (1972). While a danger may always exist that expert opinion testimony respecting credibility may cause a jury to surrender its credibility assessing function, this danger is, we believe, diminished insofar as such testimony is consistent with its purpose:

The purpose underlying the testimony of an expert is not to substitute his or her estimation of credibility for that of the jury. Rather, it is to provide a scientific perspective for the jury according to which it can evaluate the complainant's testimony for itself.

Goldstein, Credibility and Incredibility, supra, 137 Am.J.Psychia. at 1240.

Various courts have discussed the circumstances under which the satisfaction of this purpose might be achieved while at the same time preserving the jury's function. One jurisdiction for example permits such testimony only in cases involving sexual offenses, Ballard v. Superior Court of San Diego, 64 Cal.2d 159, 49 Cal.Rptr. 302, 312, 410...