Expert Comments Derail Sex-Abuse Convictions

     DES MOINES, Iowa (CN) – Expert witnesses cannot comment on the behavior of child sexual abuse victims in a trial against their alleged assailant, the Iowa Supreme Court has ruled.
     The seven-member, all-male court issued three opinions Friday concerning the same basic issue: forensic interviewers and caregivers cannot tell a jury whether the alleged victim in a case exhibited signs of sexual abuse.
     As a result, three alleged abusers have been granted a retrial in the state’s district courts.
     In each of the three cases, girls were allegedly sexually abused by a family member or the romantic partner of a family member, all males, according to the opinions.
     When the cases were brought to trial, a therapist, doctor and forensic interviewer, respectively, explained symptoms of child sexual abuse.
     In one case, Mary Casey, a psychologist who worked with a 10-year-old allegedly abused by her grandfather, told the jury her observations of the victim.
     “Casey testified she observed some “telltale” physical manifestations such as the child dressing in layers, cutting her hair, dressing ‘very boyish,’ and reacting to triggers such as seeing her grandfather’s car,” the court wrote.
     In another case, Kiesa Kay, a forensic interviewer described to the jury a victim’s demeanor during their interactions.
     “Her demeanor was completely consistent with a child who has been traumatized, particularly multiple times,” Kay said, according to one opinion.
     These comments, the defense unsuccessfully argued at trial, amount to an expert witness testifying as to the credibility of a victim, which is not allowed under Iowa case law. The appeals court in each case overturned the district court’s ruling, and the state sought further review.
     Kevin Cmelik, director of the criminal appeals division of the Iowa Attorney General’s office, said the decisions affirmed an existing rule concerning expert testimony.
     “An expert can still testify to a general class of individuals and how a general class of individuals is affected by, say, child sexual abuse accommodation syndrome or delayed reporting syndrome, and how that affects a certain class of people,” Cmelik said.
     But it is up to the “fact witnesses” – those who observed the child’s behavior, such as parents – to tell a jury whether the victim exhibited the associated behaviors, Cmelik said.
     The justices agreed with Cmelik’s assessment.
     “Although we are committed to the liberal view on the admission of psychological evidence, we continue to hold expert testimony is not admissible merely to bolster credibility,” one opinion states.
     The district courts abused their discretion in allowing an expert witness to testify as to the likely truth of victims’ statements, the justices said.
     “In our system of justice, it is the jury’s function to determine the credibility of a witness,” the justices said.
     Chief Justice Mark Cady and Justices Thomas Waterman and Edward Mansfield dissented in two of the cases, on the basis that the defendants were not harmed by the expert witnesses’ credibility testimony. Waterman also concurred specially in one case, joined by Justice Bruce Zager.
     “I also write separately to emphasize the majority opinion should not be read to foreclose the possible use of such expert testimony in rebuttal if the defendant opens the door by suggesting the victim’s behavior is inconsistent with that of an abused child,” Waterman wrote.
     The Supreme Court declined to answer questions about the opinions.
     “We let the opinions speak for themselves,” Iowa Judicial Branch spokesman Steve Davis said.
     Elizabeth Barnhill, executive director for the Iowa Coalition Against Sexual Assault, expressed dismay over the rulings.
     “I think that expert witness testimony is really important in helping juries understand sexual assault and what happens to victims,” Barnhill said. “The information from exams at Child Protection Centers is also very important. I think the decisions will require careful training of anyone who will speak to the court in this capacity.”

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