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State v. Michaels

Decided: March 26, 1993.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARGARET KELLY MICHAELS, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Essex County.

J.h. Coleman, Shebell and Conley. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

Defendant, Margaret Kelly Michaels, appeals from her jury conviction on 115 counts of sexual offenses involving twenty children who were in the Wee Care Nursery School (Wee Care). The trial court sentenced defendant to an aggregate term of forty-seven years in prison, with fourteen years of parole ineligibility, and $2,875 in fines payable to the Violent Crimes Compensation Board.

She was originally charged on June 6, 1985, in a six-count indictment involving three boys. A second indictment of 174 counts involving twenty boys and girls was presented on July 30, 1985. A third indictment of 55 counts involving fifteen youths was

filed on November 21, 1985. Those three overlapping indictments contained a total of 235 counts.

Pretrial motions spanned the course of the year prior to trial. In July 1986 defendant moved to dismiss the indictments for lack of specificity. The motion was denied. Defendant also moved for permission: (1) to present child-sex-abuser-profile testimony to demonstrate that it was not likely that she had committed the alleged acts; (2) to have the child-victims psychologically examined; and (3) to dismiss the indictments for improper suggestibility by interviewers of the children during the investigation phase. Those motions were denied.

Defendant also moved to admit the results of the State's polygraph examination of her taken on May 6, 1985 into evidence. She had not been advised that she could stipulate to use of the results and thus no stipulation was entered into. The State's polygrapher who administered the examination concluded that defendant had passed; however, the State later asked its chief polygrapher to review the results. After consulting with another polygrapher, he concluded that the results were "inconclusive." The trial court denied defense counsel's motion on the ground that an unstipulated polygraph is inadmissible. Defendant has not appealed this ruling. We note the fact of the early administration of the polygraph for historical purposes and for its bearing, if any, on the manner and direction of the State's investigation into the allegations of child abuse at Wee Care.

The State filed pretrial motions to permit the children to testify by closed-circuit television (CCTV) pursuant to N.J.S.A. 2A:84A-32.4, and to present expert testimony on the Child Sex Abuse Syndrome (CSAS). The trial court granted the State's motion to present CSAS testimony and ultimately permitted all of the children to testify on CCTV.

The jury trial began with opening statements on June 22, 1987. Nine months later the case went to the jury for deliberation. At the time the case went to the jury, 131 counts spanning the three indictments remained, charging essentially four types of offenses:

aggravated sexual assault (N.J.S.A. 2C:14-2a(1)), sexual assault (N.J.S.A. 2C:14-2b), endangering the welfare of children (N.J.S.A. 2C:24-4), and making terroristic threats (N.J.S.A. 2C:12-3). After twelve days of deliberation, which included a replaying of each child's CCTV testimony at the jury's request, the jury returned with guilty verdicts on 115 counts of aggravated assault (thirty-eight counts), sexual assault (thirty-one counts), endangering the welfare of children (forty-four counts), and terroristic threats (two counts).

The trial court denied defendant's motion for bail pending sentencing. On April 18, 1988, we granted defendant's motion for bail pending sentencing, and at the same time granted the State's motion for a stay pending the State's application to the Supreme Court for review. On April 26, 1988, the Supreme Court reversed our order granting defendant bail pending sentencing.

The trial Judge denied defendant's motion for a new trial and sentenced defendant on August 2, 1988. The Judge denied defendant's motion for bail pending appeal, and we affirmed his denial in light of our Supreme Court's earlier ruling. Defendant has been incarcerated from April 1988 to the present time.

On appeal, defendant raises the following legal arguments:

POINT I: THE TRIAL COURT'S REFUSAL TO ALLOW DEFENSE EXPERTS TO EXAMINE ANY OF THE CHILD-COMPLAINANTS IN ORDER TO PLACE THE DEFENSE ON EQUAL FOOTING WITH THE PROSECUTION DEPRIVED MS. MICHAELS OF AN ADVERSARIAL TRIAL -- THE ESSENCE OF DUE PROCESS.

POINT II: THE USE OF CCTV TESTIMONY WAS IMPROPER BECAUSE THE TRIAL COURT DID NOT FOLLOW THE CCTV STATUTE, AND BECAUSE THAT TESTIMONIAL DEVICE, AS USED IN THIS CASE, EVISCERATED THE PRESUMPTION OF INNOCENCE.

POINT III: THE TRIAL COURT ERRED IN ADMITTING TREACY'S TESTIMONY BECAUSE HER METHODOLOGY IS WHOLLY UNRELIABLE AND SCIENTIFICALLY REPUGNANT.

POINT IV: BY BOLSTERING THE CREDIBILITY OF THE CHILD-WITNESSES, TREACY INVADED THE PROVINCE OF THE JURY.

POINT V: THE TRIAL COURT'S REFUSAL TO PERMIT DEFENSE EXPERT TESTIMONY ON THE LACK OF ANY INDICATIONS OF DEVIANCY

OR PATHOLOGY VIOLATED MS. MICHAELS' RIGHT TO PRESENT A DEFENSE TO SUPPORT HER CLAIM OF INNOCENCE.

POINT VI: REVERSAL IS REQUIRED BECAUSE THE QUESTIONING OF WEE CARE CHILDREN WAS SO SUGGESTIVE AND COERCIVE THAT THEY WERE RENDERED INCOMPETENT TO TESTIFY.

POINT VII: THE PROSECUTOR'S INVOCATION OF HITLER AND ITS AD HOMINEM ATTACK ON DEFENSE EXPERTS INEXCUSABLY POISONED THE TRIAL.

POINT VIII: THE TRIAL COURT IMPERMISSIBLY ALLOWED THE JURY TO VIEW THE VIDEOTAPES OF THE CHILDREN'S CCTV TESTIMONY DURING THEIR DELIBERATIONS.

POINT IX: THE ADMISSION OF MASSIVE HEARSAY TESTIMONY SO THOROUGHLY POLLUTED THE TRIAL THAT NO REMEDY OTHER THAN A MISTRIAL WAS APPROPRIATE.

On January 6, 1993, our State Supreme Court handed down its opinion in State v. J.Q., 130 N.J. 554, 617 A.2d 1196 (1993). In the present case, as in J.Q., the opinion of the State's expert went beyond the limited permissible scope of syndrome testimony. Unquestionably, this erroneously admitted evidence was capable of producing an unjust result and thus requires the reversal of defendant's convictions. R. 2:10-2; J.Q., supra, 130 N.J. at 574-76, 582, 617 A.2d 1196. We find it necessary nonetheless to expand on this and other issues raised on appeal.

FACTUAL BACKGROUND

In 1984-85, Wee Care, located in St. George's Episcopal Church in Maplewood, provided services for approximately fifty families with children between the ages of three and six. The nursery school was usually staffed by five teachers and two assistants or aides. The school had use of three levels of the church, although the primary rooms it used were located in the basement.

Located in the basement was a block room or play room. Adjacent to the block room was the work and language room, which doubled as a lunch room. An art room was connected to the block room, separated by a vinyl divider. A large closet was used for art supplies. No bathrooms were in the basement of the school. The church secretary's office and the pastor's office were on the first floor above the basement.

Mens' and ladies' rooms were located on the first-floor level, and the children at Wee Care used that ladies' room. The gym, a large room with a stage on one end, was on the same level. Behind the stage was a storage room with a doorway that opened into the hallway. The gym also had a doorway which led outside. At the opposite end of the gym was a large kitchen with other small rooms. Another bathroom was located at the end of a hallway. A set of stairs led to the second level.

The church sanctuary was on the second floor. The nursery school director's office, a room characterized as a living room, and a few other rooms were on one end of this floor. On the other end was a bathroom, Kindergarten room, and the choir room. The choir room, also referred to as the music room and piano room, was adjacent to the Kindergarten room. The hallway door to the Kindergarten room had a glass insert. Pianos were located in the gym, the Kindergarten room, and the choir room. The jury had the opportunity during trial to visit the premises.

At the end of the summer of 1984, Wee Care advertised for teachers in a local paper. Defendant had moved to New Jersey in September 1984 from Pittsburgh to become involved in New York theater work. She was only a few credits short of a bachelor's degree in theater arts. She moved in with a friend and looked for a temporary job. Defendant answered the Wee Care advertisement. She was interviewed at the end of September for a teacher's aide position. Defendant, who had no teaching experience, explained that she came from a large family, liked little children, and would like to try teaching. She had musical abilities and could play the piano. Wee Care hired defendant as a teacher's aide for a one-week probationary period.

After three weeks, Wee Care decided that she would make an excellent teacher for the three-year-old class. As a teacher her day started at 8:30 a.m. and ended at 5:00 p.m. Her teaching schedule was active. Between 8:30 and 9:00, teachers prepared for the upcoming day. Between 9:00 and 9:15 the teachers gathered the children from the playground or the gym to go to

classes. First period (9:15 to 10:00) consisted of math, language, art or workshop. At about 9:35 or 9:40, there would be a bathroom call by an aide. A mid-morning snack was served between 10:15 and 10:45. The second class period went from 10:45 to 11:45.

The children would wash up for lunch between 11:45 and 11:55. Defendant would set up the afternoon nap mats between 11:55 and 12:20, and performed her lunch room duties from 12:20 to 12:55. Although lunch was split into two periods, everyone had the same nap time, which was between 1:00 and 2:30. Defendant was scheduled to monitor nap time in the block room between 1:00 and 1:45. She usually ate her own lunch between 1:45 and 2:30, after being relieved from her nap duties. Between 2:30 and 3:30 the children were organized for the afternoon snack, which would take place about 3:30. Between 0 4:00 and 5:00 defendant was usually in charge of her own group of children. Some children began leaving Wee Care as early as 1:00, while others left after nap time intermittently until approximately 6:00.

By letter dated April 15, 1985, defendant gave two weeks' notice that she was leaving Wee Care. She verbally told the school director that she had to leave for personal reasons and was returning home. Defendant also wrote a letter of explanation to the parents of her students. Defendant had in fact taken a job at another day care facility.

Of the nineteen children who testified at trial, only five were actually assigned to defendant's class. The facts surrounding the alleged sexual abuse came from two sources: the children testified in the Judge's chambers via CCTV, and the children's parents and grandparents testified regarding what the children had told them after defendant left Wee Care. A good deal of the parental testimony was devoted to the behavioral changes that they had observed in their children. The recollections of the children's behavior came at the behest of the State's expert, Eileen Treacy, who provided the parents with a checklist of behavioral changes to 1 consider as they recalled their children's actions at the time of the

alleged abuse. Treacy did not become involved in this case until late October 1986. Consequently, the parents were being asked to reconstruct events a substantial time after they had actually observed the events.

A child-specific recitation of the alleged abusive acts would serve no useful purpose at this juncture. No complaints of abuse were made during defendant's tenure at Wee Care. However, on April 30, 1985, a Wee Care child visited his pediatrician. While the nurse was taking his temperature rectally, the child commented that his teacher did the same thing to him. When the nurse asked the child what teacher, he responded "Kelly" -- the name the children knew defendant by. Although the pediatrician found no evidence of abuse, this comment by the child started the investigation at Wee Care. A defense expert opined at trial that it was patently obvious that the child's comment was misunderstood and that the child was referring to the rubbing of his back and not the anal penetration.

That child, six-and-a-half years old at trial, started Wee Care when he was almost four. He remembered that Joan was his 2 teacher but that he had Kelly, not Joan, at nap time. He testified that he hated nap time because Kelly had once taken his temperature and he did not want her to. She had put "gasoline" (vaseline) on the thermometer first. Kelly put the thermometer in his "bum," and she said nothing when he told her not to do it. He stated that she also took the temperatures of two other children, and he saw her pull their pants down. Neither of those two children indicated that their temperatures were taken at school. Their assertions of abuse were far more egregious, as were those of many other children after they had been "interviewed" by the authorities.

However, during the time defendant was teaching at the school, no children had ever complained of experiencing any difficulties with her. Defendant's co-employees observed no inappropriate behavior by defendant during her employment at Wee Care. Nor did any of the Wee Care employees notice that any of the children

exhibited any fear or reluctance to be with defendant. Defendant denied ever doing anything improper with the children. She pointed out that she had little contact with many of the children, and that there were always people 3 who arrived unannounced.

After the parent notified the authorities that the child alleged his temperature had been taken by Kelly, the authorities commenced an investigation that initially encompassed only a few children. Eventually, however, on the recommendation of a Division of Youth and Family Services (DYFS) investigator, the interviewing of children was expanded and intensified to include virtually all of the children Kelly could have had contact with.

The accounts of sexual abuse obtained through interviews of the children ranged from relatively minor accounts of touching to virtually incomprehensible heinous and bizarre acts. A common act alleged by both boy and girl students was that Kelly inserted knives, forks, and spoons into their "butts," penises, or vaginas. One girl stated that Kelly inserted a light bulb in her vagina, and a boy claimed Legos were inserted in his "tushie." The children told of games where both they and Kelly took off their clothes and, according to varying accounts, laid on each other, licked each other and Kelly, including applying and licking off peanut butter and/or jelly, had "intercourse" with Kelly while she apparently was having her menstrual 4 period, defecated on the floor, ate "pee and poop," and performed cunnilingus on her.

Kelly allegedly committed fellatio on some of the boys. Kelly was said to have played "Jingle Bells" on the piano during many of those games. The acts were said to have taken place in the music or choir room, the gym, lunch room, nap room, and bathroom. Kelly was said to have "pooped and peed" on or in a piano bench, on the floor, on the lunch table, and made a cake out of poop that the children had to taste. She was also said to have taken off her clothes in the lunch room in the presence of both children and adults. Testing at the Federal Bureau of Investigation laboratories of a wooden spoon and piano benches for inculpatory evidence proved negative.

Several of the children claimed to have told their parents of Kelly's activities while they were happening, and some children claimed that Wee Care personnel were present or had been told of the occurrences. No adults corroborated the children's contemporaneous complaints. Many of the children asserted that Kelly threatened to harm their parents if they told of the activities.

I.

The first issue we discuss is whether the expert testimony 5 of Eileen Treacy as presented on the State's case contravened the bounds of permissible latitude pertaining to Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence as enunciated in J.Q., supra, 130 N.J. at 581-84, 617 A.2d 1196. In this case the syndrome testimony was referred to as Child Sexual Abuse Syndrome (CSAS); however, as we explain later, there is no discernible difference for our purposes. In addition, Treacy presented a confounding variable analysis and gave testimony concerning thirty-two child behavioral indicators of abuse, even though a reliable foundation as to their acceptance within the relevant scientific community was not established. See id. at 583-84, 617 A.2d 1196.

Our Supreme Court noted in J.Q. that "we do not intend in any sense to mystify the trial of child-sexual-abuse cases. All that is required is close attention to existing precedent." Id. at 583, 617 A.2d 1196. The Court accepted the thesis that child-abuse expert testimony may be used in the courtroom as a "rehabilitative tool," to help explain why many sexually-abused children delay reporting incidents of abuse and why many recant 6 their allegations of abuse and/or deny that it has occurred. Id. at 579, 617 A.2d 1196. In doing so, it recognized two forms of child-abuse behavioral science expert testimony -- 1) testimony that describes behaviors commonly observed in sexually-abused children and offered on rebuttal to rehabilitate assertions of lack of credibility raised by delayed reports and recantations, and 2) testimony based on clinical observations of a professional as to the "patterns, effects, and dynamics of child sexual abuse" offered to establish that a particular child

was sexually abused. Id. at 563-64, 617 A.2d 1196. The latter, characterized as CSAAS or CSAS syndrome evidence, goes beyond the proper function of child-abuse expert behavioral science testimony. Id. at 578-79, 617 A.2d 1196. Thus, the Court adopted the Conclusion that the proper use of child-abuse expert testimony is as a rehabilitative tool and not as a diagnostic investigative device, as "[t]he syndrome does not detect sexual abuse." Id. at 579, 617 A.2d 1196 (quoting John E.B. Myers et al., Expert Testimony in Child Sexual Abuse Litigation, 68 Neb. L.Rev. 1, 67-68 (1989)).

7 Defense counsel offered no objection to Treacy's qualifications. She testified as an expert in child psychology and child-sexual-abuse treatment. Although the witness had neither a doctorate degree nor licenses to practice psychology in New York or New Jersey (New York apparently requires a doctorate degree for a license), she had a Masters degree in psychology. She also had done extensive post-graduate work and had clinical experience with child-sexual-abuse victims. See Evid.R. 56(2).

The trial Judge, out of the jury's presence, heard not only from Treacy, but received defense testimony offered to rebut her assertions that a recognizable pattern of behavior existed in child-sexual-abuse cases, conforming to a "theoretical model" that she adopted from the work of Dr. Suzanne Sgroi. Using that model, Treacy explained that there are five phases of behaviors seen in children who have been sexually abused: (1) the engagement phase, usually an affectionate but non-sexual phase, where the offender gains access or seizes an opportunity to get the child involved in a relationship; (2) the sexual interaction phase, wherein sexual activity begins; (3) the secrecy phase, wherein 8 the perpetrator seeks to keep the child quiet by means of bribes, tricks, rewards or threats; (4) the disclosure phase, which causes a crisis for the child and the child's family; and (5) the suppression phase, wherein the child develops coping mechanisms to deal with the abuse, such as denial, avoidance, minimization, rationalization, rescue fantasy, or disassociation.

Treacy explained that thirty-two behavioral indicators were potentially associated with this syndrome. In an abused child, one would expect to see a clustering of between five and fifteen behavioral indicators or symptoms. The number and type of symptoms that a given child exhibits will depend on the child's prior coping mechanisms and the support systems in the child's life. Treacy next listed some of the symptoms or behavioral indicators of child sexual abuse: (1) eating disorders; (2) sleep problems; (3) regression; (4) sexual symptomatology; and (5) development of fears.

Treacy admitted that some of the behavioral symptoms could be caused by factors other than sexual abuse which might be operating in the child's life such as marital discord, death in the family, illness, and the like. Treacy referred to those 9 kinds of factors as "confounding variables." She acknowledged that the Diagnostic and Statistical Manual of Mental Disorders (DSM3), a reference book used by mental health professionals, does not recognize the child-sexual-abuse syndrome or any other syndromes.

According to Treacy, a finding that child-sexual-abuse syndrome exists in a child is based on four elements: (1) the child's statement that he or she was abused as well as the child's accompanying affect or demeanor; (2) the presence of at least four of the five phases described in the "theoretical model;" (3) the clustering of five to fifteen of the behavioral indicators; and (4) an analysis of the confounding variables and their impact on both the extent of the child's prior sexual knowledge as well as other stress factors in the child's life which could account for some of the symptomatology.

Treacy asserted that this pattern of behavior is recognized in clinical circles. She explained that Dr. Sgroi's model, called the child-sexual-abuse syndrome (CSAS), overlaps to a degree with the child-sexual-abuse-accommodation syndrome (CSAAS) developed by Dr. Roland Summit. See J.Q., supra, 130 N.J. at 566-71, 617 A.2d 1196. 0 The difference between the two models appears to be in terminology and sequence of the phases. Dr. Summit

identifies a secrecy phase and a retraction or recantation phase which Dr. Sgroi calls suppression. Dr. Summit refers to the entrapment of the child which corresponds to Dr. Sgroi's engagement phase. The word "accommodation" in Dr. Summit's model refers to the phase of entrapment and accommodation that he found children experience during sexual abuse.

Treacy admitted on cross-examination that nearly all of the items on her checklist of behavioral indicators were common to all types of traumatic stress. She insisted, however, that what is crucial is the clustering of those symptoms, accompanied by the child's report, four of the five Sgroi phases, and other stress factors. Treacy testified she would not focus solely on the behavioral symptoms to reach a Conclusion about a specific child.

The defense offered the testimony of Dr. Jonas Rappeport and Dr. Ralph Underwager to support its position that syndrome testimony should be inadmissible at trial. Dr. Rappeport was board certified in psychiatry and licensed in Maryland and California. He had taught as a clinical professor 1 of psychiatry at the University of Maryland School of Medicine and as an adjunct professor at the University of Maryland School of Law. He was not a child psychiatrist, however, and had never treated children under the age of seven who were sexually abused.

It was his clinical judgment that Treacy's checklist of behavioral indicators, which supposedly indicated a child was suffering from some type of stress reaction, was misleading. He found only a few areas that might possibly indicate the existence of sexual activity in the child's life. In his opinion, Dr. Sgroi's model was not intended for diagnostic purposes. It would not be appropriate for a professional to conclude that a child was sexually abused based upon observations of the five phases in the alleged victim. Dr. Rappeport acknowledged having read about the existence of the child-sexual-abuse syndrome and admitted that, as a syndrome, it has been accepted by the general psychiatric or psychological community.

Dr. Underwager also testified for the defense. He served as the director of the Institute for Psychological Therapies. Dr. Underwager had a Ph.D. in clinical psychology, and estimated that he had treated over 2 500 child-sexual-abuse victims. Dr. Underwager asserted that none of Treacy's thirty-two behavioral indicators could be attributed exclusively to the sexual abuse of a child. Turning to Dr. Sgroi's model, he asserted that models are developed to provide the researcher with suggestions as to what observable behavior will either validate or invalidate the model. A model functions to generate a hypothesis which is then tested. Dr. Sgroi's model was but one of many which related to the child-sexual-abuse syndrome. He asserted, however, that at the time of trial, none of those models had been tested and none was generally accepted within the scientific community. Each of these models was only related to a broad range of other disorders. Dr. Underwager criticized Treacy's thirty-two item checklist as having no source other than herself and thus having no validity or reliability.

Treacy was recalled after Dr. Underwager's testimony. She claimed that the checklist which she relied on was approved by the National Institute of Mental Health to be used in conjunction with a clinical interview. She acknowledged that Dr. Sgroi's model was not designed for diagnostic purposes, but rather 3 was to be used to create a theoretical and conceptual framework for understanding what a sexually abused child experiences. The model was therefore to be used for clinical treatment and investigation but not diagnosis.

Treacy, presumably in accordance with the prosecutor's instructions, did not refer to the syndrome per se in her testimony before the jury. She did, however, testify that the behavior which the children exhibited during the alleged period of abuse and after disclosure was "consistent with" that of a child who had been sexually abused. Despite the defense's objection that the "consistent with" testimony was really vouching for the credibility of the alleged victims, the trial Judge admitted the testimony in the

asserted belief that any purported shortcomings in the validity of the testimony could be presented to the jury through cross-examination of the expert.

Treacy testified in the presence of the jury first in July 1987 and then again in December 1987. Her initial testimony was not child-specific, but rather focused on the stages of intellectual and cognitive development of children at the ages relevant to the children involved in the present case. She 4 discussed the memory capability of young children, their developing sense of good and bad, their ability to distinguish reality from fantasy, and their sexual development patterns -- including a child's defense and coping mechanisms.

In December Treacy testified over a period of five and one-half days. She testified as to her behavioral indicators and the phases of CSAS. She then gave her opinion as to whether the testimony and conduct of the children were consistent with child sexual abuse based on her analysis of the pretrial interviews of the children, the trial testimony of each child, the behavior attributed to the child by the relatives, and the affect and demeanor of the child. She gave an affirmative Conclusion with respect to all of the children except one. She was unable to reach a firm Conclusion as to this child because of the confounding variables in the child's life. Even in that case, she did opine that the child's behavior was consistent with the child's statement of abuse. However, a qualification was included because the child may have been sexually abused in other circumstances.

It is clear that the jury could have only understood Treacy's "consistent 5 with" opinion testimony to mean consistent with the child abuse alleged by the State. This is particularly true when examining her testimony regarding the behavioral indicators and the confounding variables. Her testimony constituted nothing less than substantive evidence of defendant's guilt, albeit Treacy's opinion thereof. This constituted error because syndrome evidence is not probative of sexual abuse. The syndrome assumes the presence of sexual abuse and only seeks to explain the child's

reaction to it. State v. Dodson, 452 N.W. 2d 610, 612 (Iowa Ct.App.1989). The jury was not instructed that use of the testimony was to be limited to rehabilitation. Indeed, it was not offered merely for rehabilitative purposes. Ibid.; Myers, supra, 68 Neb.L.Rev. at 66-67.

We are convinced that the foundation evidence presented was insufficient to permit the use of the syndrome testimony as substantive evidence of abuse. As we have previously said, child-abuse expert evidence is admissible only for the purpose of rehabilitation -- explaining traits often found in children who had been abused. See J.Q., supra, 130 N.J. at 579-80, 617 A.2d 1196. 6 When such testimony is used, the expert would be expected to testify that specific behavior of the victim, while appearing to be inconsistent, may in fact be consistent with sexual abuse. The expert should not be asked to give an opinion about whether a particular child was abused. Ibid. Therefore, care should be taken to avoid giving the jury an impression that the expert believes based on CSAAS or CSAS a particular child has been abused.

Syndrome testimony has properly been judicially circumscribed. Scientific opinion in the field clearly supports the cautiousness of the courts. Four serious problems militate against its use as substantive evidence of guilt. First, a child may perceive that he or she has been abused without actually having been abused as defined by law. Second, although the child may in fact have been abused at some other time, this does not prove that defendant abused the child on the particular date(s) in question. Third, syndromes are not based on hard data but rather on clinical intuition. As such, syndromes lack a firm scientific foundation. Fourth, the symptoms suffered by abused children can result from a variety of traumatic events of 7 which sexual abuse is but one event. Debra Whitcomb, When The Victim Is A Child, National Institute of Justice 116 (2d ed. 1992).

"Unlike some other syndromes, such as battered women's syndrome or rape victim's syndrome, the child sexual abuse accommodation

syndrome was not created as a diagnostic tool, and children who display signs of the syndrome may not have been abused." Jill Birnbaum, Expert Testimony in Custody and Visitation Cases Involving Child Sexual Abuse, National Center on Women and Family Law, Inc. 699 (Nov. 1990). Another writer has instructed that psychologists should not be asked to tell a court whether or not a particular child has been abused. Psychologists are not capable of making that determination, nor can they make the determination of whether a particular offender is guilty or innocent. Marian D. Hall, The Role of Psychologists as Experts in Cases Involving Allegations of Child Sexual Abuse, 23 Family Law Quarterly 451, 453 (1989). Hall further explains the problem facing the scientific community as follows:

It would appear that the prospect of designing checklists, inventories, and rating-scales to provide objective measures of 8 abusive behavior, its antecedents, correlates, and consequences, holds promise of yielding information that may be useful both in individual and epidemiological data gathering. Designing and validating such measures, however, depends on theory and research that is currently the focus of much study and controversy. Nowhere is that more evident than in the scientific and legal arguments about whether behaviors exist that are unique to sexually abused children and whether such behaviors fall into patterns that suggest a typical "profile" or "syndrome" for the child sexual abuse victim.

Children's reactions to sexual abuse vary dramatically and, to date, the methodological problems involved in compiling results of the scores of diverse studies have led only to lists of very general symptoms, which occur to some extent in all children, and are especially prevalent in children who suffer from various forms of emotional trauma, separation, or loss of security. [ Id. at 462-63.]

The position of our New Jersey courts on the use of syndrome testimony is echoed by our neighboring New York courts. In People v. Knupp, 179 A.D. 2d 1030, 579 N.Y.S. 2d 801 (1992), 9 the State's witness first testified about the symptoms associated with the child-sexual-abuse syndrome. The expert then stated that defendant's three daughters suffered from those symptoms. "Obviously, the prosecution was attempting to raise the inference that, because the children exhibited those symptoms, they had been sexually abused." Id., 579 N.Y.S. 2d at 802. The court found this to be improper. Ibid.

The Supreme Court of Pennsylvania in Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992), because of the flaws inherent in syndrome evidence, decided that it should not be admissible for any purpose. The State's witness had been permitted to explain why a victim would delay reporting an offense, why a victim would be unable to recall exact dates and times of the alleged offense, and why a victim would omit details of an incident when he or she first told his or her story. The expert did not relate any of her testimony to the child victims in the case. Id., 602 A.2d at 831.

The Pennsylvania Supreme Court first addressed the admissibility of the child-sexual-abuse-syndrome testimony. The court surveyed the literature explaining the nature of the syndrome and noted the uniformity of opinion that "there is no one classical or typical personality profile for abused children." Id. at 832 (footnote omitted). The court noted that the child-sexual-abuse syndrome construct is an attempt to create a diagnostic or behavioral profile about sexually abused children. However, it concluded that "[t]he existence of such a syndrome as either a generally accepted diagnostic tool or as relevant evidence is not supportable." Ibid. The court observed that the behavior patterns of sexually abused children are not necessarily unique to sexually abused children. Rather, the behavior patterns may be similar or even identical to reactions of children who are not abused, whose parents divorce, or who are psychologically abused. Id. at 832-33. The court made further observations about the case before it, which apply equally to the manner of the State's prosecution of the case against defendant.

The damage created by this testimony was also compounded by the testimony about those who knew the child in question. There was testimony admitted about the behaviors exhibited by the child after the alleged incident. As such, the prosecutor's introduction of the testimony by those who observed the child served to confirm certain behavior patterns that the expert suggested were exhibited by abused children. Permitting an expert to testify about an unsupportable behavioral profile and then introducing testimony to show that the witness acted in conformance with such a profile is an erroneous method of obtaining a conviction. For this reason, we hold that the expert should not have been permitted to testify about behavior patterns generally exhibited by abused children and that the error requires reversal. [ Id. at 836.]

The Pennsylvania court then parted company with our New Jersey courts by rejecting the admissibility of testimony explaining why a sexually abused child would delay reporting the incident to family members, why such a child would omit details of the incident, and why the child would have an inability to recall dates or times of the incident. Id. at 837-38.

The court asserted that it is commonly understood why sexually abused children do not always come forward immediately after the abuse -- they are afraid, embarrassed, threatened by the perpetrator, and possibly not knowledgeable enough to tell someone what happened. Id. at 836. The same reasons explain why an abused child may sometimes omit traumatic details of the incident. The court found no need for expert testimony because the understanding of these factors is well within the common knowledge of jurors. Id. at 837-38. As for a child's ability to recollect dates or events, a jury's function is to weigh the child's credibility, and expert testimony would simply infringe upon its ability to do so. Id. at 838. The Pennsylvania Supreme Court thereafter reaffirmed this holding in Commonwealth v. Sees, 529 Pa. 450, 605 A.2d 307, 308-09 (1992).

The Supreme Court of Kentucky in Hellstrom v. Commonwealth, 825 S.W. 2d 612 (Ky.1992), has also carefully limited the admissibility of CSAS evidence. The State presented testimony from the director of the child abuse center at the University of Kentucky Medical Center. He possessed a Masters degree in clinical social work. The expert testified about the victim's symptoms (bad dreams, anxiety, anger, distrust of men, stomach complaints, nervous symptoms) and explained that delayed disclosure is common in a child who has been victimized by a member of her family. When asked whether he found these reasons for the delayed disclosure to exist in this victim's case, he responded affirmatively. Id. at 613.

The Kentucky court concluded it did not matter that the witness never labeled any of the symptoms as belonging to CSAS. Citing a prior decision which reversed a conviction after a social worker

testified that the victim's behavior was consistent with abuse, the court noted that the prosecution's witness

listed the symptoms but refrained from classifying them directly as the "child sexual abuse syndrome." Avoiding the term "syndrome" does not transform inadmissible hearsay into reliable scientific evidence. Neither the syndrome nor the symptoms that comprise the syndrome have recognized reliability in diagnosing child sexual abuse as a scientific entity. [ Id. at 614.]

Here, although Treacy did not explicitly state that she believed the children were abused, she said that the children's behavioral indicators (bed wetting, excessive masturbation, unfounded fears, etc.) were "consistent with" child abuse. She defined consistent with as having a "high degree of correlation," "over point six [.6]" in numerical terms of probability. She testified that the children exhibited several of the phases of Sgroi's model (some exhibited "four out of five" phases). Treacy's testimony was not focused on explaining why these children would delay reporting the abusive incidents, or why they would recant and then reassert claims that defendant abused them. There was very little testimony in this rehabilitative vein.

Clearly, her purpose in testifying was to tell the jury that the laundry lists of "abnormal" behaviors testified to by the children's parents or care givers was "consistent with" the behavioral patterns of sexually abused children. Treacy's use of her confounding variables to filter out any other cause for the children's behavioral symptoms was intended to support the Conclusion the jury was to imply -- the children were sexually abused. The State's case was structured so that Treacy did not have to directly say that these children were sexually abused or that she believed that they were abused. Ruling out any other possible cause for the children's unusual behavior, as reconstructed by the parents at her direction, was sufficient.

The parents testified at length and in minute detail about their children's behavioral changes. The jurors were exposed for weeks to understandably concerned and anxious parents describing the regression of their children, the terrors these children experienced, and the personality changes which they had now come to

relate to their children's exposure to defendant. In at least one instance, the destruction of the parents' marriage was ...


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