"making New Law With a Joyous Frenzy"[1] — the State of the Law on Expert Testimony in Utah
| Publication year | 1990 |
| Pages | 14 |
| Citation | Vol. 3 No. 6 Pg. 14 |
June, 1990
Leslie A. Lewis and Karen Knight-Eagan, J.
Commencing in approximately 1980, significant case law addressing the issue of expert testimony, in the context of child abuse litigation, began to emerge nationally. In the state of Utah, the majority 'of the relevant cases in this area have been handed down in the last six years. The Utah Supreme Court's serious consideration of expert testimony culminated with the ruling in State v. Rimmasch, [2] which dramatically changed the law on use of expert testimony. This case and its progeny has been the subject of great controversy and concern among lawyers, members of the judiciary, child advocates and the public in general. This article contains an overview of the recent cases and a practical guide for trial lawyers attempting to apply these decisions.
THE RULES OF EVIDENCE GOVERNING EXPERT TESTIMONY
In 1983, after considerable committee study[3], the Utah Supreme Court, pursuant to their constitutional power to enact rules of evidence and procedure[4], promulgated the new Utah Rules of Evidence. Utah's rules were patterned substantially after the Federal Rales of Evidence enacted by Congress in 1975 to govern proceedings in federal court.
Historically, the law of evidence, the legal regulation of the proof used to persuade on factual issues during litigation, consisted almost entirely of common law or decisional law. Recently, it has been increasingly codified by statute and court rule. By far the most influential codification of evidence law has been the Federal Rules of Evidence[5]. A large number of states have patterned their codes or rules of evidence after the Federal Rules. Even in jurisdictions which have not undertaken comprehensive revisions of their evidence law since 1975, state courts tend to rely on the body of federal evidence case law in shaping their common law of evidence.
The rules governing opinion and expert testimony are found in the 700 series of both the Federal and Utah Rules of Evidence. Rule 702 is the Rule of Evidence which governs the admissibility of expert testimony.[6] Rule 703[7] places certain limitations upon the underlying bases of expert opinion evidence. Rule 704[8] provides that expert testimony is not objectionable be cause it embraces, in the form of an opinion or by inference, the ultimate issue to be decided by the trier of fact. Utah Rules of Evidence 702 and 703 are identical to Federal Rules 702 and 703. Rule 704 of the Utah Rules of Evidence is identical to the Federal Rule which existed at the lime the Utah Rules were adopted.
Committee commentaries to both the Federal Rules and the Utah Rules of Evidence note that the intent of those drafting the rules on expert testimony was to broaden the scope of admissible expert testimony[9], to enlarge the concept of relevancy and to lessen the historic restrictions which had been placed on this type of evidence consistent with the general purpose of the Rules set forth in Rule 102, "that the truth may be ascertained and proceedings justly determined." The rules, taken as a whole, express a preference for the admissibility of evidence, preferring to allow triers of fact to appropriately judge the weight and credibility of evidence rather than to exclude it from consideration altogether[10]. The standard set forth in Rule 702, that expert testimony must simply be of such a character that it will "assist the trier of fact to understand the evidence or to determine a fact in issue, " is intended to encompass a fairly broad range of opinion testimony.
Despite the clear language of the evidence rules and the intention of the drafters, the Utah Supreme Court in State v. Rimmasch and in subsequent opinions addressing the admissibility of expert testimony, has taken a very restrictive, intellectual, and hypertechnical position on the admissibility of such evidence.
AN ANALYSIS OF CASE LAW ON EXPERT TESTIMONY
Because child victimization typically occurs behind closed doors where the child victim is the only eye witness, and, in the vast majority of cases, does not result in physical evidence of any kind, the prosecution of child sexual abuse cases is exceedingly difficult. Convictions require the most skilled of prosecutors and appropriate expert testimony. Despite the increasing sensitivity of the public to the plight of child witnesses and the legislative attempts to ameliorate the onerous burden of prosecuting offenders, child abuse cases seem likely to remain the most challenging for prosecutors and defense attorneys alike. As Professor John E. Myers wrote in a recently published article on expert testimony in the Nebraska Law Review, "the problems engendered by ineffective testimony and lack of eye witnesses are compounded by the paucity of physical evidence in many child sexual abuse cases. Faced with a vacuum of evidence, attorneys increasingly turn to physicians, psychiatrists, social workers, and psychologists to provide expert testimony regarding child sexual abuse."[11]
The seminal "expert" case in Utah and the source of much controversy, State v. Rimmasch, was tried in the spring of 1985 and reversed by the Utah Supreme Court in May 1989, approximately four years later. Most of the other relevant "expert testimony" cases alluded to herein were tried during this four-year interim.[12] The defendant, Phillip Rimmasch, was charged and convicted after a bench trial of forcible sexual abuse, rape, forcible sodomy and incest of his adopted daughter.[13] At the trial the prosecution elicited testimony from Mr. Rimmasch's daughter and four expert witnesses. On appeal, the Supreme Court determined that: (1) it was error to admit expert opinion on abuse based upon the "purported scientific appraisal of the daughter's truthfulness" and; (2) inadequate foundation was laid to establish the reliability of a psychological profile of a typical victim. The Court reversed and remanded for a new trial.
The Supreme Court in Rimmasch concluded that at least one of the four experts testifying in this case had expressed an impermissible direct opinion on whether the child witness was truthful on a particular occasion. The Court, in looking at this issue, does acknowledge that determining whether an expert has commented directly on a witness' credibility and whether the expert's opinion "runs afoul" of Rule 608(a) can be a "subtle business."[14]
Clearly, Rule 702 allows a qualified expert to give an opinion. In Rimmasch, one of the experts testified as to her opinion that the victim had been sexually abused and went on to testify as to the basis of her opinion. In conjunction with her explanation of the multiple bases for her opinion, the expert volunteered that "if you would consider the alternative that (the daughter) is not telling the truth, then you would have to look at the consequences of the lie and what—why she would lie ... I don't know what she would have to gain."[15] The testimony of the other three experts was not deemed to be a direct comment on credibility and appears to have been acceptable to the Court. Hence, the expert's elaboration on the basis for her opinion, elicited to enable the trier of fact to better understand the expert's conclusion, led to the problematic comment on credibility in the Supreme Court's perception. While it is not totally clear whether the Supreme Court would have accepted the expert testimony regarding the existence of sexual abuse absent this comment, it...
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