Thursday, May 12, 2016

Tightening the Reins on Expert Testimony

State v. Kony (HSC May 4, 2016)
Background. Last Kony as indicted with various charges of sexual assault in the first degree and sexual assault in the third degree. The complainant was a minor at the time of the alleged offense. The CW was living in the home and was fifteen years old. Kony was the boyfriend of the CW’s half-sister and father of two children in the home.

Before trial, Kony moved to exclude the testimony of Dr. Alexander Jay Bivens on the grounds that his testimony would be irrelevant and, if relevant, its probative value would be substantially outweighed by the danger of unfair prejudice in violation of HRE Rule 403. At the hearing on the motion, the prosecution responded that Dr. Bivens’ testimony was needed to explain to the jury why the CW’s reporting of the alleged assaults was delayed. The prosecution asserted that it would limit Dr. Bivens to the factors that would hypothetically lead to delayed reporting. The circuit court denied the motion and would allow Dr. Bivens to testify. The court warned defense counsel that if there were objectionable questions, counsel should object and the court would rule “question by question” on the objections.

At trial, the CW testified about various sexual acts she endured by Kony. She testified that she did not report these acts nearly three months later. Dr. Bivens also testified as an expert witness.

Dr. Bivens testified as an expert in clinical psychology “with an emphasis on the dynamics of child sexual abuse.” He did not have any personal knowledge about the case. He testified that in general, most child sexual abuse occurs within the home. He also used percentages. He testified that “54 percent of offenses occur in the molester’s home, and, um, . . . 45 percent say, occur in the child’s home.” He also testified that “85 percent of sexual abuse victims have a pre-existing non-sexual relationship with their molester.” He added that “over 95 percent of sexual crimes are committed by males. . . . Perpetrators are typically male.”

He also explained why many victims of sexual abuse do not talk about it until much later. He added that “about 33 percent of children who tell will tell their mother. About a same number of children, 32 percent or so, will tell a close friend and usually in their teenage years[.]” Dr. Bivens even had percentages on the reasons why victims did not disclose until much later. Counsel did not object to this testimony.

Kony was found guilty as charged and sentenced to twenty years prison. Kony appealed and the ICA affirmed. Judge Reifurth concurred would have found Dr. Bivens’ testimony inadmissible if Kony’s counsel had objected. Kony petitioned to the HSC.

Dr. Bivens’ Testimony is Relevant. Expert opinion is admissible if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” HRE Rule 702. Sexual abuse of children, according to the HSC, “is a particularly mysterious phenomenon.” State v. Batangan, 71 Haw. 552, 557, 799 P.2d 48, 51 (1990). Experts have been used in such cases to explain “the unique interpersonal dynamics involved in prosecution for intrafamily child sexual abuse” and can correct “widely held misconceptions” surrounding it. Id. at 557-558, 799 P.2d at 52. Expert testimony can explain a pattern of behavior like delayed reporting. Id. at 557, 799 P.2d at 52.

Here, Dr. Bivens testified about delayed reporting by children. The HSC rejected Kony’s argument that there was no need for expert opinion about this. This case was one that involved a delay in reporting of nearly three months. Thus, according to the HSC, Dr. Bivens’ testimony was relevant.

Object! Object! Object! The HSC next reviewed the rest of Kony’s contentions on appeal. Kony argued that the rest of Dr. Bivens’ testimony should have never been presented to the jury. The testimony profiled Kony as a sex offender and his use of statistics were misleading and highly prejudicial. Kony argued that he preserved the argument by filing the motion in limine and objecting to any and all of Dr. Bivens’ testimony. The HSC disagreed.

At the motion in limine, the circuit court specifically limited the argument to the issue of delayed reporting. The trial court instructed counsel to raise objections at trial and it would rule “question by question.” At trial, counsel did not object to the profiling or to the use of statistics. When counsel did object—on other questions—the trial court reiterated that it would rule question by question and encouraged objections that counsel saw fit. And so, the HSC held that the arguments were not preserved for appellate review.

How to NOT Preserve an Issue on Appeal . . .
The HSC took pains to explain the exact specifics surrounding the lost appellate issue:

Under the specific circumstances of this case, where the defendant moved in limine to entirely exclude an expert from testifying but the evidence that the prosecution stated it intended to elicit was admissible, the defendant was specifically instructed by the court to object during the course of the trial to objectionable testimony, and the defendant did not properly object, the requirements of HRE Rule 103 were not fulfilled.

It seems like a lot of moving parts. It suggests that if the trial court did not instruct the party to object at trial, there might have been preservation. Perhaps this is a way for the HSC to later distinguish this case from another case in the future in which the issue is actually preserved. But then again, why risk it? Why not object? Maybe next time.

The Use of Statistics were Erroneous. Despite the lost issue, a majority of the justices went ahead and examined the legitimacy of Dr. Bivens’ profiling and use of statistics in order to provide guidance. It tackled Dr. Bivens’ statistics.  The HSC cautioned that just because the expert testimony may be relevant, it can still be excluded on the grounds that it unduly prejudiced the defendant. State v. Batangan, 71 Haw. at 557-558, 799 P.2d at 51-52. In other words, trial courts still have to apply HRE Rule 403. When it comes to expert testimony, the danger of unfair prejudice is high and trial courts should “exercise[] more control over experts than over lay witnesses.” State v. Vliet, 95 Hawaii 94, 108, 19 P.3d 42 56 (2001).

Things get even trickier when the expert resorts to statistics. Relying on secondary sources like studies and federal courts, the HSC cautioned that statistics can undermine the reasonable doubt standard because it would look like evidence through expert testimony that a “defendant is more likely to be guilty because he or she may share characteristics or traits with discrete populations of offenders.”

If You’re Going to Use Statistics, You Gotta Present them Right. The HSC did not outright reject the use of statistics. Instead, it concluded that trial courts need to consider the way the statistics are presented. “Testimony that a percentage of offenders or victims have a particular characteristic may be misleading unless the percentage of all persons with the relevant characteristic that are offenders or victims is also stated. Thus, a statistic that 95 percent of burglaries are committed by persons within a certain economic group has the potential to be serious misleading without also stating the percentage of all persons within that economic group who commit burglaries.”

In this case, Dr. Bivens’ use of statistics were misleading. For example, Dr. Bivens testified that 95 percent of sexual abusers are male. This alone is misleading because it wrongly suggests that all males are likely to be sexual abusers. The actual percentage of all men who abuse children was never stated. Without that context, the testimony is misleading. It’s just too bad for Kony that there was no objection.


Chief Justice Recktenwald’s Concurrence. The CJ agreed that the issue was not preserved on appeal, but wrote separately because he would not have provided “guidance” and examined the use of statistics. Justice Nakayama joined.

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