Transcript Appendix 1 - MINCAVA Electronic Clearinghouse

How an Expert Can Help You
Prove Your Case
And Support the
Complaining Witness
You Can Use an Expert to Help Explain:
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Delayed reporting
Self-blame
Minimization
Inconsistent or fragmented memories
Lack of resistance or “frozen fright”
Continued contact with the defendant
Lack of physical injury
You Can Use an Expert to Help Explain:
• Victim’s demeanor after the assault
• Common psychological reactions
• Victim’s behavior is “consistent with” other
sexual assault victims
• Recantation
Important Terminology:
Rape Trauma Syndrome (RTS)
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Developed to describe common reactions
Refers to stages of recovery
Not a psychological diagnosis
Not in DSM-IV
Should NOT be used by experts in court
Terminology still used by courts
Important Terminology:
Posttraumatic Stress Disorder (PTSD)
• Primary trauma-related diagnosis in DSM-IV
• Includes exposure to traumatic event & certain
reactions and symptoms
• Symptoms last more than one month
• Preferred diagnosis for expert testimony
• Does not include all common symptoms
Important Terminology:
Posttraumatic Stress Disorder (PTSD)
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Experts need to explain other symptoms
Experts need to use other diagnoses
Not all sexual assault victims get PTSD
May be caused by other trauma
Courts often confuse with RTS
Testimony admitted in many courts
Important Terminology:
Acute Stress Disorder (ASD)
• Diagnosis for immediate aftermath of trauma
• Symptoms last two to thirty days
• Describes PTSD-like intrusive thoughts &
avoidance symptoms
• If symptoms last more than thirty days, PTSD
diagnosis used
Levels of Expert Testimony:
Level 1
• Responds to issues raised by defendant
• Explains these behaviors are not unusual
• Only provides general information
Levels of Expert Testimony:
Level 2
• Testifies about common post-assault behaviors
• Does not examine victim or discuss victim’s
behavior
• General testimony
• Includes description of PTSD or effects of rape
• Should not use RTS
Levels of Expert Testimony:
Level 3
• Discusses how victim’s symptoms are
“consistent with” PTSD or other diagnoses
• Does not examine victim
• Does not imply victim is telling the truth
• Should not use RTS
• Common form of testimony
Levels of Expert Testimony:
Level 4
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Testifies that victim suffers from PTSD
Probably needs to examine victim
Does not say victim was assaulted
Acknowledges other trauma may be the cause
Anticipate defense objection re: credibility
Should not use RTS
Levels of Expert Testimony:
Level 5
• The Danger Zone
• Testifies that victim is telling the truth or
victim was raped
• Probably guarantees mistrial or reversal
• DO NOT allow expert to cross this line
• Invades jury’s province
Other Types of Expert Witnesses
• Don’t always need psychologist or psychiatrist
• Can use other witnesses, such as:
– Police department Victim Services Unit
– Rape crisis center counselor
• Can sometimes use lay witness testimony
about post-assault behavior
Privilege Issues
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Very important in these cases
Particularly when using treating therapist
Therapist-client communication is privileged
May extend to rape crisis center counselors
May be waived
Avoid using treating therapist if possible
Confidentiality Issues
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Defendants often seek records
Very traumatic for victims
Even in camera review is traumatic
Courts have mixed responses
– Some permit discovery
– Others deny request
• Can be waived, so be careful
Using an Expert Who Will Not be Called
to Testify
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To help support the victim
To help you “follow the trauma”
To prepare voir dire questions
To prepare the victim’s direct exam
To prepare the defendant’s cross exam
To prepare your cross exam of the
defendant’s expert
Other Issues:
False Reporting
• Testimony about the incidence of false
reporting
• Some courts have held it is impermissible
• Unless specifically allowed, avoid it
• If the defendant seeks to introduce, object
Other Issues:
Defendant “Profile” Evidence
• Defense offers testimony that defendant does not
fit “profile”
• NO validity to concept
• Reputable researchers do not accept “profile”
• Some courts permit it anyway
• Strenuously object!