Child Abuse and the Law - Expert Witnesses

Videotaping and closed-circuit television permit juries to see and hear child witnesses, but it does not mean that the juries will understand or believe them. Prosecutors often request permission to bring in an expert witness to clarify an abused child's behavior, particularly to explain why a child might have waited so long to make an accusation or why the child might withdraw an accusation made earlier.

The danger of bringing in an expert witness is that the expert often lends an unwarranted stamp of authenticity to the child's truthfulness. If an expert states that children rarely lie about sex abuse, that expert might be understood by the jury to be saying that the defendant must be guilty, when the expert has no way of knowing if that is the case. In some highly contested cases, expert witnesses swayed the jurors in their decision. In the Margaret Kelly Michaels case (discussed at the end of the chapter), an expert witness explained how the children's problems were symptomatic of their abuse. In the Eileen Franklin case in Chapter 8, the expert witness convinced the jury of the validity of repressed memory and explained that inconsistencies in Eileen Franklin's story were symptoms of her trauma.

Rules Governing the Use of Expert Testimony

The states have their own rules when it comes to expert testimony. Federal courts, however, follow the Federal Rules of Evidence. On December 1, 2000, the Federal Rules of Evidence were amended because of concerns that experts in the past had lacked the proper qualifications. The new rule requires that before the jury can hear expert testimony, the trial judge first has to determine that the expert has the proper "knowledge, skill, experience, training, or education" to help the jury understand the evidence.

For expert testimony to be acceptable in court, the statements made must be very general and explain only psychological tendencies, never referring specifically to the child witness. The U.S. Court of Appeals for the Eight Circuit, in United States v. Azure (801 F.2d 336 [1986]), reversed the conviction of the defendant because an expert's testimony was too specific. During trial an expert witness had testified that the alleged victim was believable. According to the court, "By putting his stamp of believability on [the young girl's] entire story, [the expert] essentially told the jury that [the child] was truthful in saying that [the defendant] was the person who sexually abused her. No reliable test for truthfulness exists and [the expert witness] was not qualified to judge the truthfulness of that part of [the child's] story."