Toro v. State, No. 93-1272

CourtCourt of Appeal of Florida (US)
Writing for the CourtGRIFFIN
Citation642 So.2d 78
Parties19 Fla. L. Weekly D1843 Edwin TORO, Appellant, v. STATE of Florida, Appellee.
Decision Date02 September 1994
Docket NumberNo. 93-1272

Page 78

642 So.2d 78
19 Fla. L. Weekly D1843
Edwin TORO, Appellant,
v.
STATE of Florida, Appellee.
No. 93-1272.
District Court of Appeal of Florida,
Fifth District.
Sept. 2, 1994.

F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Steven J. Guardiano and Kimberly D. Nolen, Asst. Attys. Gen., Daytona Beach, for appellee.

GRIFFIN, Judge.

We find no error in any of the issues raised on appeal and affirm the conviction. Specifically, we note that the lower court did not err in overruling the objection made below that the testimony of the state's expert exceeded the scope of the proffer. We have carefully reviewed the record and find that the objection was properly overruled because it was factually inaccurate and would not, in any event, have controlled the issue of admissibility.

Although this case was tried in accordance with the law controlling at the time of trial, we nevertheless write to suggest that recent developments in the law of Florida may, in the future, warrant reexamination of the kind of expert testimony used in this case. In the present case, a psychologist was called to testify about her evaluation of the victim, who was allegedly subjected to repeated acts of oral, anal and vaginal penetration by her stepfather from age eleven until age fifteen. At the time of trial, the victim was approximately eighteen years old. The victim had never been examined medically. The testimony of the state's expert psychologist was initially presented to the trial court by proffer. The psychologist testified that she interviewed the victim on four occasions. She also read the statement given to the police and the deposition taken by the alleged victim and her mother. The purpose of the interviews was to look for "symptom patterns." These symptoms consisted of a "sense of danger," sleep disturbance, decrease in occupational function (i.e. going to school), making poor choices about her friends, decreased interest in events or activities in general, irritability, anger, poor concentration, hypervigilence and exaggerated startle response (i.e. jumping when someone walked up behind her and touched her). The psychologist concluded the victim was suffering from "post-traumatic stress disorder." Neither during the proffer nor in her testimony at trial was any of this behavior connected to sexual abuse except for the psychologist's testimony that she believed that the source of the trauma that had resulted in post-traumatic stress syndrome was sexual abuse--because that is what the victim identified the trauma to be.

The admissibility of an expert's opinion that a child was the victim of sexual abuse was decided in Florida at a very early stage in the development of research and understanding of this issue. See John E.B. Meyers, Expert Testimony in Child Sexual Abuse Litigation, 68 Neb.L.Review 1, 74 (1989). It turns out that the position taken in Florida in favor of broad admissibility has been adopted by only a small minority of other courts in the United States. Lisa R. Askowitz, Restricting the Admissibility of Expert Testimony in Child Sexual Abuse Prosecutions: Pennsylvania Takes It to the Extreme, 47 U.Miami L.Review 201, 206 (1992). Very recently, the high courts of several jurisdictions, with the benefit of the last seven years of developing case law and the most recent psychiatric and psychological evidence available, have rejected the approach taken by Florida and have adopted more restrictive rules for admission of expert testimony designed to prove that a child has been the victim of sexual abuse.

Florida's approach to this issue was established in 1986, in the case of Kruse v. State, 483 So.2d 1383 (Fla. 4th DCA 1986). There, the issue was whether a physician, who was an expert in child and adolescent psychiatry, should be permitted to testify that the child victim of an alleged lewd assault was suffering from a condition known as "post-traumatic stress syndrome." The child was seven years old and there was no demonstrable physical evidence of an assault. The psychiatrist was allowed to describe post-traumatic stress syndrome to correlate her observations of the victim's behavior with commonly observed behavior patterns of other patients suffering from this syndrome. She testified to the details of the victim's and the victim's parents' statements and concluded that, based upon her psychiatric examination and the history of the child's behavior before and after the alleged assault, the child had suffered a sexual trauma. The psychiatrist acknowledged that her opinion was predicated on the validity of the history given to her by the child and the parents.

Writing for the majority in Kruse, Judge Anstead undertook an analysis of the admissibility of expert opinion testimony in light of Florida's adoption of the evidence code in 1979. The Kruse court concluded that, in light of the adoption of the evidence code, the standard for admissibility of expert testimony, governed by section 90.702, Florida Statutes, was to be based on a "relevancy standard" replacing the earlier, more restrictive requirement of "general acceptance by the scientific community" previously articulated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). 483 So.2d at 1384. Ultimately, the Kruse court set out a four-prong test to evaluate the admissibility of expert opinion testimony under this new standard and, applying that test, concluded that the opinion evidence sought to be introduced was admissible. Id. at 1384, 1388. 1

Consistent with Kruse, in 1988, the First District Court of Appeal decided Ward v. State, 519 So.2d 1082 (Fla. 1st DCA 1988), in which a clinical psychologist testified that the "child/victim exhibited symptoms consistent with those of sexually abused children." 519 So.2d at 1083. The expert acknowledged that her opinion was based on her belief that the child was telling the truth and that without such a belief, she would not be able to identify the source of the trauma as sexual abuse. Id.

In Ward, defense counsel argued that the field of knowledge concerning child sexual abuse had not been adequately developed to permit a witness to assert a reasonable opinion that the child had been sexually abused and that, therefore, the true probative value of the testimony was outweighed by its prejudicial effect. Id. The lower court rejected that argument, ruling that the study of child sexual abuse had been sufficiently established to permit an expert to state an opinion as to whether a child's symptoms were consistent with sexual abuse. The Ward court agreed, finding no abuse of discretion in the trial court's ruling that "child abuse syndrome" is an area sufficiently developed to permit an expert to testify...

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8 practice notes
  • Hadden v. State, Nos. 87574
    • United States
    • United States State Supreme Court of Florida
    • February 6, 1997
    ...issue in Judge Ervin's dissenting opinion in Hadden, Judge Harris's opinion in Beaulieu, and Judge Griffin's opinion in Toro v. State, 642 So.2d 78 (Fla. 5th DCA 1994). We hold that upon proper objection prior to the introduction of a psychologist's expert testimony offered to prove the all......
  • People v. Peterson, Nos. 98941
    • United States
    • Supreme Court of Michigan
    • October 3, 1995
    ...because such evidence "can have an impact on the minds of the jury far disproportionate to its foundation in science." Toro v. State, 642 So.2d 78, 83 (Fla.App., 1994) (citation Indeed, Beckley held that behavioral reactions were too unreliable for an expert to testify that the complainant ......
  • Hadden v. State, No. 93-436
    • United States
    • Court of Appeal of Florida (US)
    • February 14, 1996
    ...courts of expert testimony in child sex abuse cases, the Fifth District has also upheld the admissibility of such evidence. Toro v. State, 642 So.2d 78 (Fla. 5th DCA 1994). By contrast, the Second District has rejected such expert opinion testimony in cases involving older children on the g......
  • Harrison v. State Of Fla., No. 1D08-4366.
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 2010
    ...deemed admissible in child sexual abuse cases as an aid to assessing the reliability of the child victim's account. See Toro v. State, 642 So.2d 78 (Fla. 5th DCA 1994) (collecting cases). To make a decision regarding general acceptance of expert testimony under Frye v. United States, 293 F.......
  • Request a trial to view additional results
8 cases
  • Hadden v. State, Nos. 87574
    • United States
    • United States State Supreme Court of Florida
    • February 6, 1997
    ...issue in Judge Ervin's dissenting opinion in Hadden, Judge Harris's opinion in Beaulieu, and Judge Griffin's opinion in Toro v. State, 642 So.2d 78 (Fla. 5th DCA 1994). We hold that upon proper objection prior to the introduction of a psychologist's expert testimony offered to prove the all......
  • People v. Peterson, Nos. 98941
    • United States
    • Supreme Court of Michigan
    • October 3, 1995
    ...because such evidence "can have an impact on the minds of the jury far disproportionate to its foundation in science." Toro v. State, 642 So.2d 78, 83 (Fla.App., 1994) (citation Indeed, Beckley held that behavioral reactions were too unreliable for an expert to testify that the complainant ......
  • Hadden v. State, No. 93-436
    • United States
    • Court of Appeal of Florida (US)
    • February 14, 1996
    ...courts of expert testimony in child sex abuse cases, the Fifth District has also upheld the admissibility of such evidence. Toro v. State, 642 So.2d 78 (Fla. 5th DCA 1994). By contrast, the Second District has rejected such expert opinion testimony in cases involving older children on the g......
  • Harrison v. State Of Fla., No. 1D08-4366.
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 2010
    ...deemed admissible in child sexual abuse cases as an aid to assessing the reliability of the child victim's account. See Toro v. State, 642 So.2d 78 (Fla. 5th DCA 1994) (collecting cases). To make a decision regarding general acceptance of expert testimony under Frye v. United States, 293 F.......
  • Request a trial to view additional results

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