The rules of thumb about expert testimony in child sexual abuse cases are (1) that an expert can’t testify that a child was, in fact, abused absent physical evidence, and (2) that an expert can testify to common characteristics or “profiles” of sexual abuse victims. A recent court of appeals case holds that even if the State doesn’t give notice of an expert’s opinion regarding victims’ characteristics, the expert has the leeway to discuss his or her own experiences with survivors of sexual abuse.
The case is State v. Davis, __ N.C. App. __, __ S.E.2d __, 2015 WL 871985 (Mar. 3, 2015). The defendant was charged with sexually abusing his stepdaughter from when she was three or four until she was thirteen. She reported the events years later and testified as an adult. Multiple 404(b) witnesses testified to similar conduct by the defendant against them.
The State called a psychologist and a mental health counselor to whom the victim had disclosed the abuse. The defendant apparently acknowledged their expertise and conceded that they could testify about their experience with the victim, but argued that they should not be permitted to offer opinions regarding the symptoms or profiles of victims of sexual abuse because the State had not provided discovery concerning the experts’ opinions on those issues. See generally G.S. 15A-903 (requiring that the State give notice of its experts, any examinations or tests they conducted, their CVs, their opinions, and the bases of their opinions). The trial judge ruled that the experts could testify to their own experiences with victims of sexual abuse but could not offer expert testimony on the symptoms or profiles of victims.
The psychologist testified that he had treated more than 1000 patients that had reported sexual abuse, and that he had seen “a wide range of responses” to abuse. He did not testify to “any single set of ‘symptoms’ . . . or a common ‘profile’ of victims of sexual abuse.” The court of appeals ruled that this testimony did not amount to “an expert opinion of the type that was required to be disclosed” before trial.
The counselor testified “in general terms that, in her observation and experience, victims of childhood sexual abuse might have difficulty trusting others, might experience anxiety, depression, or feelings of guilt or shame about the abuse, and that sexual abuse could be a ‘trigger’ for various mental illnesses, including bipolar disorder, agoraphobia, and depression. In her observation and experience, victims of sexual abuse often delayed reporting the abuse.” She did not testify that the victim fit a profile of sexual abuse victims, though the victim in this case had a history of mental illness and had delayed reporting the abuse. The court of appeals stated that because her “general testimony about sexual abuse victims was limited to her own observation and experience, it did not constitute an expert opinion that had to be disclosed in advance of trial.”
I admit that I am not completely sold on the ruling about the counselor’s testimony. The opinion seems to rely on a distinction between an expert’s “experience” (which is not covered by the discovery statute, except insofar as it provides a basis for the expert’s opinion) and “opinion” (which is covered by the discovery statute). But I wonder how well that distinction holds up. Would it be meaningful to say that Peyton Manning can testify to his own experience with football (“I’ve run 10,000 screen plays and they have only worked when there has been blocking downfield”) but not to his opinions about football (“Screen plays only work when there is blocking downfield”)? Doesn’t an extensive exposition of one imply the other? And what is the relevance of an expert’s experience if it doesn’t connect to an opinion about the case at bar?
Of course, my doubts and two dollars will buy you a cup of Starbucks coffee. The practical takeaway is that Davis gives experts leeway to talk about their experience with an issue, even if that experience isn’t disclosed in expert discovery, so long as it isn’t expressed in the form of an opinion.