State v. Moran, 6753-PR

Decision Date19 November 1986
Docket NumberNo. 6753-PR,6753-PR
Citation151 Ariz. 378,728 P.2d 248
Parties, 55 USLW 2342 The STATE of Arizona, Appellee, v. William MORAN, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen. by William J. Schafer, III and Robert S. Golden, Asst. Attys. Gen., Phoenix, for appellee.

S. Jeffrey Minker, Tucson, for appellant.

FELDMAN, Justice.

On November 16, 1984, a jury convicted William Moran (defendant) of one count of child molestation and two counts of sexual abuse. A.R.S. §§ 13-1404, 13-1410. The crimes allegedly were committed on his daughter. He was sentenced to fourteen years for child molestation and two and one-half years for each sexual abuse count. The court of appeals affirmed. State v. Moran, 151 Ariz. 373, 728 P.2d 243 (App.1985).

At trial, defendant's daughter recanted her allegations that she had been sexually abused by her father. There was no physical evidence of abuse. Consequently, the only evidence linking defendant with the alleged abuse was testimony of witnesses recounting the daughter's out-of-court reports of the molestation. The credibility of the daughter's out-of-court statements was bolstered by several experts testifying that the statements were truthful and that the daughter's behavior, including recantation, was typical of molested children. We accepted review to address the admissibility of the expert testimony. Rule 31.19, Ariz.R.Crim.P., 17 A.R.S. (Supp.1985). We have jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

FACTS AND ISSUES

Defendant has been married for seventeen years and, in addition to the alleged victim, has two sons. Defendant's daughter first reported the alleged sexual abuse to her high school principal. She claimed that her father had been having sexual contact with her since she was five years old. Sheriff's deputies investigating the complaint recorded the daughter's statement. Defendant was arrested and At trial, under oath, the daughter recanted her accusations. However, she admitted having told school authorities, two detectives, two therapists, her mother, her foster mother, her friend, and her friend's mother that she had been sexually abused by her father. Seven witnesses testified about the daughter's extra-judicial accusations. The jury also heard the daughter's tape-recorded statement. No other direct or physical evidence was offered to establish the charged offenses.

[151 Ariz. 380] charged with child molestation and sexual abuse.

Defendant argues that the trial court erred in admitting the daughter's prior inconsistent statements as the only evidence of guilt. In a well-reasoned opinion, the court of appeals held the statements admissible under Rule 801(d)(1)(A), Ariz.R.Evid., 17A A.R.S. 1 The court distinguished State v. Allred, 134 Ariz. 274, 655 P.2d 1326 (1982), and concluded that the prior inconsistent statements could be used as substantive evidence of the crime, even if they were the only evidence of the crime. 151 Ariz. at 375-376, 728 P.2d at 245-246. We agree with the court of appeals' analysis on this issue.

Defendant also argues that the trial court erred in allowing expert witnesses to testify (1) that they believed the daughter was telling the truth when she first reported the crime and (2) that the daughter's behavioral characteristics "matched" characteristics of other child victims of sexual abuse. Defense counsel moved before trial to preclude this type of testimony, and objected throughout trial to specific testimony about both credibility and common behavior characteristics. The trial court denied defendant's pretrial motion and all subsequent objections.

The court of appeals held the expert testimony admissible, discounting the danger that the jury would overvalue the experts' "obvious belief in the truthfulness of the daughter's" out-of-court statements. At 377, 728 P.2d at 247. The court concluded that the trial court was correct in not excluding the expert testimony merely because of a "risk of overweighting." Id. Although we agree with much of the court's reasoning, we do not agree that all the expert testimony in this case was admissible.

EXPERT TESTIMONY IN SEXUAL ABUSE CASES
A. General Principles

We recently considered the propriety of expert testimony in sexual abuse cases in State v. Lindsey, 149 Ariz. 472, 720 P.2d 73 (1986). Lindsey held that admissibility of expert testimony in sexual abuse cases is governed by the same rules of evidence applicable to all expert opinion testimony. 2 Id. at 475, 720 P.2d at 76. Under Rules 702, 703, and 403, expert testimony must (1) come from a qualified expert, (2) be reliable, (3) aid the triers of fact in evaluating and understanding matters not within their common experience, and (4) have probative value that outweighs its prejudicial Defendant did not object to the experts' qualifications or the reliability of their testimony. Therefore, as in Lindsey, we must answer two questions: first, did the expert testimony provide the jurors with useful information outside their common understanding or experience, Rule 702; and second, was the usefulness of the expert testimony "substantially outweighed by the danger of unfair prejudice," Rule 403.

[151 Ariz. 381] effect. State v. Chapple, 135 Ariz. 281, 291, 660 P.2d 1208, 1218 (1983).

Deciding whether expert testimony will aid the jury and balancing the usefulness of expert testimony against the danger of unfair prejudice are generally fact-bound inquiries uniquely within the competence of the trial court. State v. Neal, 143 Ariz. 93, 100, 692 P.2d 272, 279 (1984); State v. Mincey, 141 Ariz. 425, 441, 687 P.2d 1180, 1196, cert. denied, 469 U.S. 1040, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984); State v. Williams, 132 Ariz. 153, 160, 644 P.2d 889, 896 (1982). However, when the admissibility of expert opinion evidence is a question of "law or logic," it is this court's responsibility to determine admissibility. Chapple, 135 Ariz. at 297 n. 18, 660 P.2d at 1224 n. 18. For example, Lindsey held that certain types of expert opinion evidence will not assist juries in sexual abuse cases and therefore are inadmissible under Rule 702. 149 Ariz. at 475, 720 P.2d at 76. If we determine that certain types of opinion testimony are inherently unhelpful, then any danger of prejudice requires holding the evidence inadmissible. Id.; see also Abrams v. Interco, 719 F.2d 23, 28 (2d Cir.1983) (appellate court need not "honor a purported exercise of discretion which was infected by an error of law").

B. Types of Expert Testimony
1. Testimony About General Behavioral Characteristics

Lindsey recognized that expert testimony on recantation and other problems afflicting sexual abuse victims may explain a victim's seemingly inconsistent behavior and aid jurors in evaluating the victim's credibility. 149 Ariz. at 474, 720 P.2d at 75. Other jurisdictions, recognizing the usefulness of expert testimony in child sexual abuse cases, also allow experts to explain general behavioral characteristics of child victims. E.g., People v. Dunnahoo, 152 Cal.App.3d 561, 577, 199 Cal.Rptr. 796, 804 (Cal.Ct.App.1984) (testimony explaining delay in reporting); Smith v. State, 100 Nev. 570, 571-72, 688 P.2d 326, 326-27 (1984) (same); People v. Benjamin R., 103 A.D.2d 663, 668-69, 481 N.Y.S.2d 827, 831-32 (N.Y.App.Div.1984) (same); State v. Middleton, 294 Or. 427, 436-37, 657 P.2d 1215, 1220 (1983) (recantation, truancy, and tendency to run away from home); Commonwealth v. Baldwin, 348 Pa.Super. 368, 372-73, 502 A.2d 253, 255 (Pa.Super.Ct.1985) (reporting delays and inconsistent versions of abuse); State v. Petrich, 101 Wash.2d 566, 575-76, 683 P.2d 173, 179-80 (1984) (delay in reporting). Oregon Supreme Court Justice Roberts explained the rationale for allowing this type of expert testimony:

While jurors may be capable of personalizing the emotions of victims of physical assault generally, and of assessing witness credibility accordingly, tensions unique to the trauma experienced by a child sexually abused by a family member have remained largely unknown to the public. As the expert's testimony demonstrates the routine indicia of witness reliability--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.

Middleton, 294 Or. at 440, 657 P.2d at 1222 (Roberts, J., concurring).

We agree with Justice Roberts's analysis. "Jurors, most of whom are unfamiliar with the behavioral sciences, may benefit from expert testimony" explaining behavior they might otherwise "attribute to inaccuracy or prevarication." Lindsey, 149 Ariz. at 474, 720 P.2d at 75; accord State v. Myers, 359 N.W.2d 604, 610 (Minn.1984) (allowing expert testimony explaining "puzzling aspects of the child's conduct and

[151 Ariz. 382] demeanor which the jury could not otherwise bring to its evaluation of [the victim's] credibility"). Such evidence may harm defendant's interests, but we cannot say it is unfairly prejudicial; it merely informs jurors that commonly held assumptions are not necessarily accurate and allows them to fairly judge credibility. See State v. Chapple, supra.

2. Particularized Testimony About the Alleged Victim's Credibility

Although Lindsey allowed expert testimony explaining child victims' seemingly strange behavior, the court placed strict limits on more particularized opinion evidence in sexual abuse cases. We held that expert testimony may not be admitted "to 'tell the jury' who is correct or incorrect, who is lying and who is truthful." 149 Ariz. at 474, 720 P.2d at 75; accord United States v. Azure, 801 F.2d 336, 339 (8th Cir.1986) (expert testimony that victim was "believable" improperly admitted under Rule 702); Kruse v. State, 483 So.2d 1383, 1387-88 (Fla.Dist.Ct.App.1986); Middleton, 294 Or. at 438, 657 P.2d at 1221. Nor may the expert's...

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