State v. Myers

• Decision Date: 19 February 1986
• Docket Number: No. 84-1908,84-1908
• Citation: 382 N.W.2d 91
• Parties: STATE of Iowa, Appellee, v. Duane MYERS, Appellant.
• Court: Iowa Supreme Court

Page 91

382 N.W.2d 91

STATE of Iowa, Appellee, v. Duane MYERS, Appellant.

No. 84-1908.

Supreme Court of Iowa.

Feb. 19, 1986.

Charles L. Harrington, Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., David L. Dorff, Asst. Atty. Gen., James A. Smith, Co. Atty., and Nan Horvat, Asst. Co. Atty., for appellee.

Considered en banc.

SCHULTZ, Justice.

Defendant appeals from his conviction and sentence for indecent contact with a child. See Iowa Code § 709.12(2) (1983). He contends that the trial court erred in two respects: (1) in overruling his objections to the admission of expert testimony that children almost never lie about sexual abuse; and (2) in failing to grant a mistrial after a police officer made reference to the reputations of persons with whom defendant resided. We conclude that the trial court abused its discretion in admitting the challenged expert testimony, thereby depriving defendant of a fair trial. We therefore reverse the conviction and remand for a new trial.

The State charged defendant with having indecent contact with an eight-year-old female victim (the complainant) one night in April 1984. The incident allegedly involved sexual molestation which occurred while the complainant's five-year-old sister and she were asleep in a hide-a-way bed at the home of an acquaintance of their mother.

At trial the prosecution first called as witnesses the complainant, her sister, and other witnesses who gave testimony tending to support each element of the charge. The prosecution then elicited opinion testimony of two expert witnesses: Martha Davis, a prosecution witness who was the principal of the elementary school attended by the complainant; and Mary Jane Mosher, a child abuse investigator employed by the Iowa Department of Human Services whom the defendant called as a witness and the prosecution cross-examined. The essence of their challenged testimony was that children generally tell the truth when they report that they have been sexually abused. Defendant has not challenged the qualifications of these two expert witnesses, but he contends that their opinions concerning the general credibility of children reporting sexual molestation was not a proper subject for expert testimony.

Davis, the school principal, testified:

Q. During the course of your investigation and your work with sexually abused children, have you formed an opinion as to whether or not children lie about these particular kinds of incidents?

....

A. Yes, I have. First of all, I think it relates to two areas. One would be the statistics that I've learned of by going to special training sessions on this matter of child sexual abuse.

Statistically, the statistics show that children have not lied in this area. For example, we were given a statistic from Polk County that--I'm referring to the Polk County Child Sexual Abuse Model that is utilized in the case of an investigation--and out of about, I think it was, 75 cases, there was only one out of prosecuted cases where the child was not telling the truth.

And we've been given other statistics along this line. At our symposium last Wednesday that was emphasized again and again, children do not lie about this type of matter.

And the second part of my opinion has to do with my experiences, which has been the entire time I've been at [the elementary school], for three years, that there has not been a child who has lied about something like this. So I do believe the children.

Mosher, the child abuse investigator, had interviewed the complainant about this incident and was called as a witness by the defendant. On direct examination she related what the complainant had told her, a report somewhat inconsistent with the complainant's trial testimony. On cross-examination of Mosher the prosecution developed the following testimony:

Q. Have you formed an opinion during the course of your investigations with regard to sexual abuse cases whether or not children in general tell the truth about these particular kinds of crimes?

A. Yes I have.

Q. And what is that opinion?

....

A. In all the years I've worked, which is sixteen, I have only had one child that lied to me about sexual abuse, and it is my opinion that it is very rare for a child to lie about this subject.

Q. Did you form your opinion based upon certain statistics or facts that you have at your recollection?

A. I did read a statistic based on the Giaretto Program in San Jose, which was one of the first programs in the sexual abuse investigation, and their finding was that perhaps one in 2,500 children who were interviewed did not tell the truth, which would make it exceedingly rare.

Defendant made timely objection that the testimony of Davis and Mosher was not a proper subject for expert opinion testimony. Before either witness expressed an opinion about whether children in general truthfully report incidents of child abuse, defendant's counsel objected by stating:

Your Honor, and I do not know what her opinion is, but there is no theory of evidence, there is no theory of law, and it is just directly prohibited by the Iowa Supreme Court to ask. No one can be an expert in that area. One cannot give an opinion in that area, your Honor.

Objecting to the testimony of Mosher, defendant's counsel stated:

Your Honor, I would like to interpose an objection for the record. That is not the proper subject for expert opinion.

The Iowa Supreme Court has said in State v. Galloway [275 N.W.2d 736, 740 (Iowa 1979) (specially concurring opinion of seven justices) ] that the jury, of course, can listen to facts, but it is the jury's job to determine credibility, and it is not--it is--just simply is not a proper subject for expert testimony.

Counsel's objection that no person can be an expert in this area, and his specific reference to the Galloway opinion, alerted the trial court to the important concerns which we here express regarding this testimony. We believe that defendant properly preserved error on this matter at trial. See State v. Nimmo, 247 N.W.2d 228, 231 (Iowa 1976). The qualifications of these two witnesses is not in issue; the subject matter of their expert opinion testimony is our focus. The fundamental question we must answer is whether the prosecution met its burden to show that the subject matter of the testimony is admissible pursuant to Iowa Rule of Evidence 702:

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.

We are generally committed to a liberal rule which allows opinion testimony if it will aid the jury in screening the properly admitted evidence to ascertain the truth. State v. Hall, 297 N.W.2d 80, 84 (Iowa 1980). When a trial court has exercised its discretion to admit expert testimony, we will reverse only if we find an abuse of that discretion and prejudice. Id. at 86; State v. Morrison, 323 N.W.2d 254, 256 (Iowa 1982). An abuse of discretion occurs when the trial court's ruling is based on untenable grounds. Morrison, 323 N.W.2d at 256. Consequently, when a timely and specific objection under rule 702 challenges the propriety of expert testimony on a particular subject, the proponent has the burden to establish that the testimony is admissible.

With these general principles in mind, we examine the expert testimony to determine its purpose and effect. The State urges that the testimony "was offered merely as an aid to the jury in understanding the issue of the truthfulness of children, in general, who claim to have been sexually abused." (Emphasis in original.) When viewed in light of the factual issues, this contention is unrealistic. The credibility of the eight-year-old child was a fighting issue between the parties. The gist of the principal's testimony was that during her three-year period as principal no child had lied to her about being sexually abused; the investigator opined that in 16 years of work she had only one child lie to her about sexual abuse. The prosecutor's obvious purpose in offering this expert testimony was to bolster the complainant's credibility. We believe the effect was comparable to telling the jury that the complainant would not lie about matters concerning sexual abuse.

The issue presented in this appeal is whether expert testimony that a witness would not lie is admissible under rule 702. We have not been cited nor do we find any of our cases that are on point on this issue. Our case law does provide some assistance, however.

Initially, we observe that Iowa Rule of Evidence 702 is of recent origin. It was prescribed and reported by this court to the legislature and enacted in that form taking effect July 1, 1983. See 1983 Iowa Acts ch. 219; Iowa Code § 684.19. Rule 702 merely states our prevailing case law. Iowa R.Evid. 702 committee comment 1983.

We first examine Galloway, the authority defendant called to the court's attention in his objection. A majority of this court in a special concurrence decided that the "trial court on retrial would be justified in sustaining an objection" to an offer of expert opinion testimony concerning the accuracy of eyewitness identification in general, even though the eyewitness' identification was in question. Galloway, 275 N.W.2d at 741 (Reynoldson, C.J., concurring specially). We stated:

In the final analysis, jurors daily experience the fragility of their own memories. They know recollection fades with time and is affected by the relative significance of the incident. Probably most have experienced on several occasions their own or another's misidentification in social or business relationships. Explanation of the scientifically identified mechanisms which bring about memory decay may be of academic interest, but it is of little aid to the jury in judging reliability...