Without expert testimony, prosecutors cannot say a witness looked "traumatized"

 State v. Browder (HSC June 5, 2024)

Background. Zeth Browder was charged with sexual assault in the first degree, sexual assault in the third degree, burglary, kidnapping, and tampering with evidence. The prosecution presented evidence that Browder sexually assaulted an elderly woman in her tent at a county park.

 

During her closing argument, the prosecutor—DPA Kristen Yamamoto—told the jury that the complaining witness’s testimony was credible and akin to a traumatized person:

 

[U]ltimately this case comes to one question. Is [the complaining witness] believable?

. . . .

[H]er demeanor, her candor, her lack of motive and is what she says makes sense, then the State submits that, yes, the answer to this question is that [the complaining witness] is believable. . . .

. . . .

She’s 80 years old. She was nervous, shaking on the witness stand. She was emotional and crying. She was scared. She told you she was scared that morning. She was scared at the hospital. She was scared even a week and a half later, and she was still scared in court. This is consistent with someone who’s been traumatized.

 

The jury found Browder guilty and he appealed. This argument was made two years after the HSC vacated the conviction in State v. Hirata, 152 Hawai'i 27, 520 P.3d 225 (2022). In that case, the same prosecutor made a nearly identical argument about a child witness by arguing that the demeanor of the child was “consistent with a child who is traumatized.” The ICA vacated the conviction on other grounds and Browder petitioned to the HSC.

 

Why you can’t argue that a person has been “traumatized” based on demeanor. In Hirata, the HSC held that the remark that the witness appeared to be “consistent with someone who’s been traumatized” arose to prosecutorial misconduct. Id. at 33, 520 P.3d at 231. The HSC explained it was misconduct because it was the prosecutor’s personal view about the evidence. State v. Salavea, 147 Hawai'i 564, 582, 465 P.3d 1011, 1029 (2020) (“this court has often directed prosecutors to not express personal beliefs about the evidence.” The prosecutor’s personal views “are apt to carry much weight against the accused when they should properly carry none.” State v. Clark, 83 Hawai'i 289, 304, 926 P.3d 194, 209 (1996). The HSC also noted that the comment was the prosecutor’s introduction of new information or evidence during closing arguments. Hirata, 152 Hawai'i at 33, 520 P.3d at 231. Closing argument is “not the place to introduce new evidence outside the safeguards of the Hawai'i Rules of Evidence.” State v. Basham, 132 Hawai'i 97, 113, 319 P.3d 1105, 1121 (2014).

 

These are two separate reasons. Both are not required for it to arise to misconduct. Hirata, 152 Hawai'i at 33, 520 P.3d at 231. They stood as independent bases for misconduct.

 

And there’s no difference between Hirata and Browder. The HSC found no distinction between the misconduct in Hirata and the argument here. There was no evidence at trial that the complaining witness suffered “trauma” or was “traumatized.” According to the HSC, it is not the same thing as being scared. It carries a specialized psychological meaning. Moreover, it does not always mean the same thing in people. Here, “[w]without an expert to explain the impacts, signs, and symptoms of trauma and to opine on whether the CW exhibits trauma, each juror may interpret the prosecutor’s remark differently based on their individual experience.”

 

Prosecutors carry the “duty to seek justice, to play fair and square.” Hirata, 152 Hawai'i at 33, 520 P.3d at 231. The remark is misconduct.

 

Justice Ginoza’s dissent. Justice Ginoza dissented. She believed that the comment must be examined in its context. The prosecutor was not making a diagnosis. “[A] fair reading of the closing argument shows the term was used in its ordinary sense.” This was not a case involving a child like Hirata, which call for expertise in assessing witnesses. Justice Ginoza believed that the rule in Hirata should be extend here. Chief Justice Recktenwald joined.