Friday, July 6, 2012

The Cautionary Instruction: PA allows expert witnesses in sex offense prosecutions

The Pittsburgh Post-Gazette/Ipso Facto
July 6, 2012

Pennsylvania has stepped into the modern era of sex offense prosecutions. Pennsylvania is the last state in the country to allow expert witnesses to testify about a victim’s response to being sexually assaulted.

In 1988, the Pennsylvania Supreme Court ruled that expert testimony in sexual assault cases was inadmissible. The court ruled that an expert may not be used to bolster the credibility of witnesses because witness credibility is solely within the province of the jury.

The Penn State sex abuse scandal--the prosecution of Jerry Sandusky--changed that quickly and unanimously.  House Bill 1264 passed 197-0 in the House and 48-0 in the Senate and was signed not law this past Tuesday.  The change brought about by House Bill 1264 was originally proposed six years ago.

A focus on the victim’s behavior, both during and after an assault, frequently caused jurors consternation. Jurors are generally inexperienced and uneducated about victim responses to trauma. Frequently, a juror’s expectation of how victims “should” behave conflicted with the way victims actually behave. When this occurs, jurors perceive a victim’s behavior as “counterintuitive,” and therefore, compelling evidence of the victim’s lack of credibility. 

As a result of the law, an expert can explain to a jury why a victim waited years before coming forward to talk about an assault that occurred in childhood; an expert can explain why a victim maintained a relationship with the abuser; and an expert can talk about why a victim did not disclose the full scope of abuse until after several meetings with authorities.

“House Bill 1264 would permit an expert to provide testimony on the counterintuitive behavior indicative of a rape victim, as well as any recognized form of post-traumatic stress disorder in sexual assault cases as well as other common psychological reactions to trauma,” State Representative Cherelle L. Parker said this week prior to Governor Tom Corbett signing the bill into law.

Not everyone is excited about the new law. “You increase the likelihood that someone who has made false allegations is going to be believed,” Matt McClenahen, a criminal defense attorney from State College said. “It’s absolutely inappropriate to have an expert bolster the credibility of a witness by explaining away inconsistencies in the story.”

In light of the new legislation, is the use of expert witnesses to question eyewitness identifications or false confessions far off?

Just two years ago the Superior Court refused to let a defendant offer expert testimony to establish the reliability of eyewitness identification. The court ruled that the trial court was correct in denying the defendant’s request and properly refused to instruct the jury as to the inherent difficulties in making accurate cross-racial identification.

A sex abuse scandal accelerated the passage of this legislation. Yet, the ongoing revelation of wrongful convictions has done little to drive acceptance of defense-oriented expert witnesses.

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