Preserving an Issue may Require Motions in Limine and an Objection at Trial

State v. Engelby (HSC June 12, 2020)

Background. Jason Engelby charged with two counts of sexual assault in the first degree on December 1, 2011 and December 4, 2012. The complainant was the daughter of a close friend. The parties filed motions in limine prior to trial to determine if the proffered expert, Dr. Alexander Bivens, was qualified to testify as an expert and, if qualified, the scope of his expert testimony. The prosecution wanted him qualified as an expert “on the dynamics of child sexual assault” and claimed that Dr. Bivens would testify about those dynamics and patterns of behavior exhibited by child victims, including delayed reporting and tunnel memory. Engelby objected on the grounds that the proffered testimony was irrelevant, unduly prejudicial, improperly bolstered the prosecution witnesses, usurped the jury’s function, and improperly profiled Engelby as a child molester. Engelby further argued that expert testimony was unnecessary to explain the phenomenon of “delayed reporting.” He also questioned if Bivens was qualified to discuss “tunnel memory” and specifically asked to preclude the term “grooming.”

The circuit court, presided by Hon. Judge Colette Garibaldi, ruled the Dr. Bivens’s testimony was relevant because it would assist the jury in understanding the why a child complainant would resort to delayed reporting and inconsistent reporting. The court ruled Dr. Bivens could testify about his experience and research on delayed disclosure, a child’s reaction to events, and explanations of the manner of disclosure. The court did preclude the term “grooming” and left under advisement the issue of tunnel memory.

Dr. Bivens testified at trial. He testified that in his research and experience there are only rare cases in which the child molester would be a total stranger; usually the culprit was someone well known to the child. He moved on to delayed disclosure and explained that it was “rule” and not the exception. He added that the closer the relationship between the molester and child, the longer it would take to disclose. He explained common reasons for delayed disclosure included fear of not being believed, embarrassment, and not wanting to harm anyone. Disclosure, when it happens, is usually made to mothers and close friends and are often incomplete.

The court eventually allowed Dr. Bivens to testify about tunnel memory and the usual interactions between children and molesters including “loving, seductive relationships,” playful relationships, coercive behavior, and the feeling that they were taken advantage of. He added that child sexual abuse occurs most often in the child’s own home or in the molester’s home.

On cross-examination, Engelby raised the issue children lying, false reporting, and the phenomenon of an implanted memory—in which a child believes a memory is correct when in fact it is not. On redirect, Dr. Bivens opined that implanted memories are not likely.

Engelby was found guilty as charged and sentenced to twenty years prison. He appealed and the ICA affirmed.

You Still have to Object. Engelby argued that the circuit court erred in allowing Dr. Bivens to testify about false allegations and the suggestibility of children. The HSC, however, held that Engelby did not preserve his claim to raise on appeal because he did not object to the testimony nor moved to strike the challenged portions of the testimony at trial. This means that he waived the ability to challenge the testimony on appeal. “Error may not be predicated upon a ruling which admits . . . evidence unless a substantial right of the party is affected, and . . . a timely objection or motion to strike appears on the record.” HRE Rule 103(a)(1). See also State v. Metcalfe, 129 Hawai'i 206, 224, 297 P.3d 1062, 1080 (2013) (point of error is waived because defense did not object to expert’s testimony at trial.).

The HSC held that it was not enough to challenge Dr. Bivens’s ability to testify as an expert at the Rule 104 hearing. A general objection, according to the HSC, is not sufficient to preserve the issue. Kobashigawa v. Silva, 129 Hawai'i 313, 322, 300 P.3d 579, 588 (2013) (“the failure to object to evidence introduced after denial of a pretrial motion in limine to exclude that same evidence will result in waiver of the objection on appeal.”).

This was not a “Definitive Ruling” on the Issue of Bolstering A Witness. The HSC was well aware of HRE Rule 103(a): “Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection . . . to preserve a claim of error for appeal.” See also Craft v. Peebles, 78 Hawai'i 287, 294, 893 P.2d 138, 145 (1995) (“unequivocal” in limine rulings do not require objection on the record at trial). The HSC noted that in order to preserve the claims about bolstering, Engelby had to object at trial or move to strike it later on specific grounds that they improperly addressed the credibility of child witnesses. He did neither and the issue was not preserved.

And so Plain Error Review Applies. When an issue is not preserved, the appellate court reviews it for plain error. HRE Rule 103(d). Plain error is recognized only when it affects substantial rights. Id. Here, the HSC acknowledged that trial courts must proceed with caution for experts like Dr. Bivens. Testimony cannot directly or have the same effect as directly opining on the truthfulness of the complainant. State v. Batangan, 71 Haw. 552, 559, 799 P.2d 48, 52 (1990.). Dr. Bivens’s testimony did not move into the territory of the jury by opining about the complainant’s credibility. Moreover, the risk of prejudice is reduced by the cautionary instruction about evaluating the opinion of an expert.

The Lesson is Object just to be Safe. The HSC refused to give full review of Engelby’s claims because it was not enough to file a motion in limine and challenge it. When the trial court does not make a “definitive ruling” on something, it has to be brought up again at trial. In other words, there’s no downside for objecting a lot.

Justice Wilson’s Dissent. Justice Wilson vehemently disagreed with the majority’s analysis. As he sees it, “[e]xpert testimony supporting a child sex assault complainant’s credibility constitutes improper bolstering of the victim’s testimony.” State v. Batangan, 71 Haw. at 558, 799 P.2d at 52. Here, Dr. Bivens launched into an opinion on the credibility of the child complainant. The effect of the expert testimony was the “same as directly opinion on the truthfulness of the complaining witness.” Id. at 559, 799 P.2d at 52. Justice Wilson believed that Engelby preserved the issue by directly objecting to Dr. Bivens’s testimony in his motion in limine. Even if it did not preserve the issue, Justice Wilson wrote that the admission of the expert opinion undermined his right to a fair trial.

The danger of Dr. Bivens’s testimony is that when presented as an expert “with their aura of special reliability and trustworthiness,  . . . the triers of fact will abdicate their role of critical assessment, and surrender their own common sense in weighing testimony.” Id. at 556, 799 P.2d at 51. That, according to Justice Wilson, is what happened here. Moreover, this “aura of credibility” was only enhanced—not detracted—by the court’s instruction about experts because the court stated that the “law allows that person to state an opinion about matters in that field.”

Justice Pollack joined.


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