On certification to the Superior Court, Appellate Division, whose opinion is reported at 252 N.J. Super. 11 (1991).
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.
This appeal concerns the use of expert opinion testimony to aid jurors in the criminal trial of a child-sexual-abuse case. The specific issue concerns expert-opinion evidence premised on the Child Sexual Abuse Accommodation Syndrome (CSAAS), and whether there is a reliable scientific explanation for certain exhibited characteristics of an abused child, such as acceptance of the abuse or delayed reporting, that would help jurors understand why a child victim would not complain to a parent or other authority figure about the abuse. We hold that CSAAS has a sufficiently reliable scientific basis to allow an expert witness to describe traits found in victims of such abuse to aid jurors in evaluating specific defenses. In this case, the expert's opinion went beyond that limited scope and included opinions on commonplace issues, such as credibility assessments derived from conflicting versions of an event and not-yet scientifically established opinions on the ultimate issues that are for jury resolution. Although the evidentiary questions arise as a matter of plain error, we agree with the Appellate Division that the introduction of such evidence was clearly capable of producing an unjust result and we thus affirm the Appellate Division's judgment ordering a new trial.
Facts and Procedural History
The background to the case is regrettably familiar, a story of childhoods unhinged by events so traumatic that even the participants cannot contemplate them. When first confronted with the possibility that defendant might have sexually abused his daughters, their mother was incredulous. After the girls
first told their mother of the alleged abuse, she cautioned them that it was important to tell the truth about their father. The girls said that they were telling the truth. Their mother testified that she had warned her daughters never to let a stranger touch them but had never told them about sexual abuse from a father, because she never thought it could happen to her children. Defendant was equally insistent that committing sexual acts with children and, in particular, his daughters is unimaginable. He testified that anybody who engaged in sexual relations with his own children would have to be "sick" and that he did not believe he was sick. Whether defendant is sick or not, the jury has found that abuse occurred.
Rather than use the initials mandated by law, we shall use fictitious names to describe the parents and children involved. We shall refer to the mother as "Karen," the father as "John," and the two children as "Connie" and "Norma." The parents appear to be of different cultures -- Karen is from the midwest and John is a recent arrival to the continental United States. They met in Indiana in 1973 or 1974 and started their life together there when Karen was thirteen and John was nineteen or twenty. John already had a child at that time. They soon moved to Brooklyn and later settled in Newark. Connie and Norma were born in 1977 and 1979, respectively. John and Karen never married. Although John worked as an auto mechanic and a golf-greens attendant during their years in New Jersey, he did not provide sufficient financial support for the household; thus, Karen received public assistance for the two children. Theirs was a tempestuous union marked by recriminations that each had been unfaithful. Their relationship deteriorated in late 1984 when John separated from Karen. During the separation, which lasted approximately four months, Karen became pregnant by another man. The breakup became final in late 1985 or early 1986 when John went to Brooklyn to live in an apartment with his brother. At the time of the breakup, Connie and Norma were approximately eight and six years old, respectively.
After the breakup, John customarily picked up the children and took them to Brooklyn for weekend visits. John was then living in a one-room apartment with another woman, whom he married in 1987. About two years after the separation, Karen learned that Norma, during play, had attempted to pull down her younger sister's underwear and touch her buttocks. Karen asked Norma where she had ever learned of such things and Norma reluctantly identified the person who had initiated her into such conduct by spelling out the word "D-A-D".
Although at first disbelieving, Karen consulted a family counsellor and eventually reported the incident to the police. Both Connie and Norma reported that they had been the victims of repeated acts of sexual abuse by their father in the Newark apartment in 1984 as well as during their visits to Brooklyn. An Essex County grand jury returned an indictment charging John with acts of criminal sexual abuse in New Jersey on his children between January 1, 1984, and December 31, 1984.
Before trial, the prosecutor moved, pursuant to N.J.S.A. 2A:84A-32.4, to have Connie's and Norma's testimony taken on closed-circuit television. In ruling on the motion, the trial court heard testimony from Madeline Milchman, a Ph.D. in psychology with a concentration in developmental or child psychology. Dr. Milchman had interviewed the children and had reviewed other information on them as well. The court first qualified Dr. Milchman, without objection, as an expert witness in the areas of child psychology and child sexual abuse. Dr. Milchman essentially testified that both infant witnesses would suffer severe emotional distress if forced to testify before spectators, jurors, and especially their father in the courtroom setting. The trial court granted the motion, ordering that Norma and Connie testify through a closed-circuit system outside the presence of jurors, spectators, and defendant.
At trial, both Connie and Norma described, in graphic detail, the abuses committed on them involving sexual penetration and
oral sexual contact. (Presumably, the instances in Brooklyn were testified to under an Evidence Rule 55 analysis.) A pediatric resident who conducted a genital examination of Norma testified that she found that the child had a stretched hymenal opening, an abnormal condition for a seven-year-old girl. The medical evidence relating to Connie, entered by way of stipulation, also revealed a stretched hymen. Karen described discharges that she had observed on Norma's underwear but said that she had attributed them to Norma's not changing her underwear.
Dr. Milchman was called to the stand again at trial and qualified, without objection, as an expert witness on child sexual abuse. She identified the child sexual abuse accommodation syndrome "as a pattern of behavior that is found to occur again and again in children who are victims of incest." She described the various aspects of CSAAS and related them to behavior she had observed in Connie and Norma. Dr. Milchman also testified about how she assesses the veracity of an alleged victim of child sexual abuse. At the Conclusion of her direct testimony, Dr. Milchman stated that in her expert opinion, Connie and Norma had been sexually abused.
The theory of the defense was that Karen had put the children up to this story to avenge her loss of John. Defendant offered evidence that the Newark apartment housed eight people and that there was no isolated occasion during which such abuse could have occurred.
The jury convicted defendant of multiple counts of first-degree aggravated sexual assault on Connie and Norma for various acts of penetration and oral sex, and of two counts of endangering the welfare of a child. The court sentenced defendant to thirty years' imprisonment, with ten years of parole ineligibility. The Appellate Division reversed the convictions, finding that the trial court had committed plain error in permitting the use of the CSAAS testimony to establish the credibility of the witnesses rather than for other limited purposes for
which it is generally reliable, i.e., to explain secrecy, belated disclosure, and recantation by a child-sexual-abuse victim. State v. J.Q., 252 N.J. Super. 11, 599 A.2d 172 (1991). The Appellate Division specifically held that
syndrome evidence, including CSAAS, is not reliable to prove the occurrence of sexual abuse, and that absent a question of capacity, a social science expert lacks the qualifications to render an opinion as to the truthfulness of a statement by another witness. Because the expert in this case testified before the jury as to syndrome evidence to prove that sex abuse occurred; opined as to the truthfulness of the children (and their mother), and rendered the opinion that the children were abused based in great measure upon these two interdicted classes of evidence, we are satisfied that the admission of her testimony was error clearly capable of producing an unjust result. [ Id. at 15, 599 A.2d 172.]
One member of the panel Dissented, believing that a case could be made in an Evidence Rule 8 [hereinafter Rule 8] hearing for the scientific reliability of CSAAS evidence as substantive evidence of abuse, thus obviating the need for a reversal of the judgment. The Dissent impliedly requires consideration of categories of expert opinion evidence other than CSAAS testimony in child-sexual-abuse cases.
We granted the State's petition and defendant's cross-petition for certification, 127 N.J. 562, 606 A.2d 372 (1992). The State's petition exceeded the scope of an appeal as of right under Rule 2:2-1(a)(2) on those issues as to which there is a Dissent in the Appellate Division. Rather, the State requested us to review "all issues relating to psychological and social science expert testimony regarding familial child sexual abuse complainants." Defendant's cross-petition argues against admission of expert testimony based on behavioral science theories.
Types of Expert Testimony in Child-Sexual-Abuse Prosecutions
In recent terms of Court we have had to consider various evidentiary problems in criminal prosecutions of child-sexual-abuse cases. See State v. Crandall , 120 N.J. 649, 577 A.2d 483 [130 NJ Page 561] (1990) (finding constitutional N.J.S.A. 2A:84A-32.4, which permits closed-circuit television testimony outside physical presence of alleged abusers); State v. D.R., 109 N.J. 348, 537 A.2d 667 (1988) (proposing new hearsay exception for child's out-of-court statement concerning acts of sexual abuse); State v. R.W., 104 N.J. 14, 514 A.2d 1287 (1986) (setting forth standards for use of expert psychological evaluation of child victim witnesses). Whether society has changed or whether society is finally confronting its deepest flaws is something that we cannot answer. Freud mistakenly believed that his female patients' experiences of sexual abuse as children were merely fantasies and attributed their complaints to hysteria. Chandra Lorraine Holmes, Child Sexual Abuse Accommodation Syndrome: Curing the Effects of a Misdiagnosis in the Law of Evidence , 25 Tulsa L.J. 143, 144 (1989) [hereinafter Holmes]. We know now, from the many accounts, that such abuse in the home is regrettably all too real. "Since the 1970s * * *, there has been a growing awareness of child sexual abuse and reports of it have skyrocketed." Diana Younts, Evaluating and Admitting Expert Opinion Testimony in Child Sexual Abuse Prosecutions , 41 Duke L.J. 691, 693 (1991) [hereinafter Younts] (citing L.B. Suski, Child Sexual Abuse: An Increasingly Important Part of Child Protective Service Practice , 3 Protecting Children 3 (1986), which shows an increase to 200,000 reports nationwide in 1986, from 7,559 reports in 1976). At the same time, we know that moving from the child's world into the courtroom presents legal issues of varying dimension. For example, in State v. D.R., supra , 109 N.J. 348, 537 A.2d 667, we recommended that the Legislature adopt an exception to the hearsay rule for the admission of out-of-court statements by a child witness provided that the child, if available, testify at trial (either through closed-circuit television or in the courtroom) or that there is other corroboration if the child is unavailable.*fn1
We believed that the availability of the child for questioning would afford the jury the opportunity to assess the child's credibility while safeguarding the defendant's right of confrontation and cross-examination. Id. at 370-71, 537 A.2d 667. Society must tread a measured path that avoids ignoring the reality of child sexual abuse and avoids as well the possibility of unjust conviction of this most shameful of crimes. In Maryland v. Craig , 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990), four members of the Supreme Court cautioned that courts should be particularly insistent in protecting innocent defendants in child-sexual-abuse cases because of the reliability problems created by children's suggestibility in child-sexual-abuse prosecutions. Id., 497 U.S. at 868, 110 S. Ct. at 3175-76, 111 L. Ed. 2d at 693-94 (Scalia, Brennan, Marshall & Stevens, JJ., Dissenting).
At the outset, we must carefully distinguish the issues presented in this case from those that are not presented. There are various categories of expert testimony on child sexual abuse. For purposes of this analysis, we draw on the survey of issues by John E. B. Myers et al., Expert Testimony in Child Sexual Abuse Litigation , 68 Neb.L.Rev. 1 (1989) [hereinafter Myers].*fn2
The authors point out that some expert testimony is routinely accepted and presents no genuine evidentiary problem. For example, expert medical testimony plays an important role in child-sexual-abuse litigation. Such testimony is based on a physician's clinical diagnostic examination and the child's medical history. Courts have permitted expert medical witnesses to describe the results of the examination and to offer opinions as to the cause of any injuries, to establish penetration, and to answer questions whether injuries could have been inflicted in a particular way or whether a caretaker's explanation for an injury is reasonable. Myers, supra , 68 Neb.L.Rev. at 48-49.
In the behavioral-science field, the authors identify one type of expert testimony that describes behaviors commonly observed in sexually-abused children. Id. at 51-69. By way of background, the authors describe a wealth of literature that documents general patterns of behavioral and emotional reactions found in clinical samples of sexually-abused children, typically victims of incest. Id. at 52-62. The authors' review of the literature, however, leads them to conclude that the effects of sexual abuse vary among children. Id. at 61. Furthermore, children who exhibit symptoms of fear, anxiety, or avoidance are probably suffering the effects of some traumatic experience, of which sexual abuse is only one of many possible causes. Nevertheless, some behaviors, such as age-inappropriate sexualized responses, are more associated with sexual abuse than others. Ibid. Thus, the authors assert that situations in which sexual abuse is likely can be identified.
Given the prevalence of sexual abuse, and its documented association with anxiety symptoms, however, abuse should be considered and evaluated through direct inquiry. When symptoms of fear, anxiety, or avoidance accompany a credible report of sexual abuse, sexual abuse must be seriously considered.
While no symptom or set of symptoms is conclusive proof of sexual abuse, when symptoms evidencing abuse are present in conjunction with a report that bears indicia of reliability, the clinician is justified in forming a clinical opinion that a child has been sexually abused. [Myers, supra , 68 Neb.L.Rev. at 61-62.]
Despite the considerable basis for this behavioral-science evidence, "most courts do not approve such testimony as substantive
evidence of abuse." Myers, supra , 68 Neb.L.Rev. at 65, 68 (citing People v. Bowker , 203 Cal.App.3d 385, 249 Cal.Rptr. 886, 890-92 (1988), Lantrip v. Commonwealth , 713 S.W.2d 816, 817 (Ky.1986), State v. Black , 537 A.2d 1154, 1156-57 (Me.1988)). However, this type of testimony has an important nonsubstantive purpose of which the majority of courts approve. It can be used on rebuttal "to rehabilitate" the victim's testimony when the defense asserts that the child's delay in reporting the abuse and recanting of the story indicate that the child is unworthy of belief. Myers, supra , 68 Neb.L.Rev. at 51, 86-92.
Another area of behavioral-science testimony seeks to address the ultimate question of whether a child was in fact sexually abused. Myers, supra , 68 Neb.L.Rev. at 69-86. Such testimony would be based on the clinical observations of a professional "trained in the patterns, effects, and dynamics of child sexual abuse." Id. at 73. The authors say that many experts now believe that the study of child sexual abuse has advanced to such a point as to enable "qualified professionals" to "determine whether a child's symptoms and behavior are consistent with sexual abuse." Id. at 73-75. For example, in 1985 the Council on Scientific Affairs of the American Medical Association published a set of guidelines that listed, in particular, physical and behavioral signs identified with child sexual abuse. Id. at 74 (citing AMA Diagnostic and Treatment Guidelines Concerning Child Abuse and Neglect , 254 J.A.M.A. 796 (1985) [hereinafter Guidelines ]). The behavioral signs listed include:
-- Overt or subtle and indirect disclosures to a relative, friend or teacher
-- Highly sexualized play
-- Withdrawal and excessive daydreaming
-- Low self esteem, feelings of ...