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Wilkerson v. Pearson

Decided: December 12, 1985.

BENNIE YVONNE WILKERSON, PLAINTIFF,
v.
DONALD LEE PEARSON, DEFENDANT



Sorkow, J.s.c., P.J.F.P.

Sorkow

In a plenary hearing that sought to terminate a father's already supervised visitation, ordered because of allegations of sexual abuse of the parties' daughter, the mother offered an art therapist as an expert witness to prove the aforesaid allegations. Plaintiff proffers that the testimony of the art therapist would establish that the infant child was a victim of sexual molestation or abuse.

The expert's qualifications have been stipulated by counsel. Mrs. Diane Safran holds a Bachelors Degree in Psychology from the University of Michigan and a Masters Degree in Art Therapy from the University of Bridgeport, holds a certificate as a guidance counsellor, has 6 years of private practice experience as an art therapist, a certificate from Simmons College in Group and Family Art Therapy and has testified in several cases in the Family Court of Philadelphia, Pennsylvania, as an expert art therapist.

Notwithstanding the foregoing, the defendant argues that although the witness be qualified as an expert, her opinion should not be allowed into evidence because it would not meet the standards of Evid.R. 56(2) and the criteria established in State v. Cavallo, 88 N.J. 508 (1982), and State v. Kelly, 97 N.J. 178 (1984), which governs the admissibility of expert testimony.

R. 56(2) provides that an expert may testify "in the form of opinion or otherwise as to matters requiring scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or determine a fact in issue." Further, an expert's opinion testimony is admissible only if the expert is qualified pursuant to Evid.R. 19, and the opinion is based on facts reasonably relied upon by experts in the particular field.

Chief Justice Wilentz wrote in State v. Kelly, 97 N.J. at 208 [citing Evid.R. 56 (Anno.1984) comment 5]:

In effect, this Rule imposes three basic requirements for the admission of expert testimony; (1) the intended testimony must concern a subject matter

that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.

The first criteria is that the intended testimony must concern a subject matter which is beyond the understanding of the average jury or fact finder. The interpretation of an individual's drawings as an expression of non-verbal communication of thoughts stimulated by internal psychological conflicts and external pressures, is indeed, beyond the understanding of this court or the average juror if this were a trial with a jury.

The second criterion is that the field testified to must be a state of the art, such that an expert's testimony could be sufficiently reliable. To be reliable, the expert's testimony must satisfy the New Jersey standard of acceptability for scientific evidence, which is that the method of analysis used by the expert must have a "sufficient scientific basis to produce uniform and reasonably reliable results and will contribute materially to the ascertainment of the truth." State v. Cavallo, 88 N.J. at 517 [citing State v. Cary, 49 N.J. 343, 352 (1967)]; State v. Hurd, 86 N.J. 525, 536 (1981). The recognized proofs of the foregoing is by other expert testimony, scientific writings and judicial opinions. State v. Cavallo, 88 N.J. at 521.

As to the Cavallo criterion, it is found that the proffered art therapist, Diane Safran of Westport, Connecticut has been qualified and testified in several litigated cases in the Family Court of Philadelphia, Pennsylvania. And while no judicial opinion has been found in any jurisdiction on the admissibility of the subject expert's opinion such fact alone should not be a bar to admissibility. That there are scientific writings was well established. See Levick, They Could Not Talk and So They Drew, (1983); Howoritz, Handbook of Psychiatric Therapies, (1966); Brunner, Mazel, Children's Drawings as Diagnostic Aids, (1973).

It thus appears that the Cavallo criteria have been met and the expert's opinion would be ...


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