NORCOTT, J.
In this certified appeal, we consider whether an expert witness' testimony that the complainant has exhibited behaviors, which were identified as those characteristic of minor sexual assault victims, constitutes inadmissible vouching for the credibility of the complainant or opinion as to the ultimate issue of whether the complainant had been sexually assaulted, in violation of, for example, State v. Spigarolo, 210 Conn. 359, 379-80, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989), and State v. Iban C., 275 Conn. 624, 635-36, 881 A.2d 1005 (2005). The state appeals, upon our grant
The Appellate Court's opinion aptly sets forth the following facts that the jury reasonably could have found based on the allegations of the complainant and the procedural history: "The events underlying the defendant's conviction occurred in the fall of 2005 and the summer of 2006. At that time [the complainant] was under sixteen years of age.
"The defendant was a longtime friend of R, whom the [complainant] had known since early childhood as `Uncle Tony.' During one of her weekend visits with R in the fall of 2005, the defendant spent the night at R's residence. R worked an overnight shift as a 911 operator that evening." Id. at 3, 986 A.2d 1081. The jury then credited the complainant's testimony that, "[a]fter R departed the residence and his girlfriend, M, had gone to bed, the defendant entered the [complainant's] bedroom and lay next to her. The defendant kissed her neck and touched her back, stomach, upper legs and buttocks. The encounter ended abruptly after approximately fifteen minutes, and the defendant told the [complainant] that he would `[s]ee [her] tomorrow....' The [complainant] thereafter did not report that incident to her parents. She did, however, inform two classmates and close friends, J and B, of her encounter with the defendant. Although the [complainant] instructed J and B to keep the matter secret, they encouraged the victim to report the incident to her mother.
"A second incident involving the defendant and the [complainant] occurred in the summer of 2006, during another weekend visit at R's residence. On that particular evening, the defendant was present when
"One year later, S finally learned of the incidents involving her daughter and the defendant. On that evening in late June or early July, 2007, S overheard the [complainant], J and B talking about a recent incident in which the defendant attempted to `[look] down [the complainant's] shirt....' J then recounted to S the details of the [complainant's] two encounters with the defendant in the fall of 2005 and summer of 2006, and the [complainant] began to cry. Shocked, S took the [complainant], J and B to the Stratford police department to report the incidents.
"The defendant thereafter was arrested and charged, by amended information dated May 29, 2008, with one count of sexual assault in the second degree in violation of General Statutes (Rev. to 2005) § 53a-71 (a)(1),
The defendant appealed from the judgment of conviction to the Appellate Court, contending that the trial court "abused its discretion in permitting the state to offer certain expert testimony that vouched for and bolstered the credibility of the [complainant]" on four occasions while Melillo testified. Id. at 5-6, 986 A.2d 1081. Relying on, inter alia, State v. Iban C., supra, 275 Conn. 624, 881 A.2d 1005, State v. Freeney, 228 Conn. 582, 637 A.2d 1088 (1994), and State v. Spigarolo, supra, 210 Conn. 359, 556 A.2d 112, the Appellate Court agreed with the defendant,
Relying on our analysis in State v. Grenier, supra, 257 Conn. at 807-808, 778 A.2d 159, which, like this case, depended entirely on the jury's assessment of the complainant's credibility because of a lack of physical, medical or eyewitness evidence, the Appellate Court then concluded that it did not have the requisite "fair assurance" that the error did not "substantially affect the jury's verdict," thus requiring reversal under State v. Sawyer, 279 Conn. 331, 904 A.2d 101 (2006), overruled in part on other grounds by State v. DeJesus, 288 Conn. 418,
On appeal, the state contends that the Appellate Court improperly determined that: (1) the challenged portions of Melillo's testimony exceeded the scope of permissible expert testimony about the behavioral characteristics of sexual assault victims; and (2) the evidentiary improprieties required reversal of the conviction. We address each claim in turn.
We begin with the state's contention that Melillo's testimony was within the scope of expert testimony about the general behavioral characteristics of sexual assault victims previously held admissible in State v. Spigarolo, supra, 210 Conn. at 379-80, 556 A.2d 112. The state contends more specifically that, because Melillo did not vouch directly for the complainant's credibility or the truthfulness of her allegations, Melillo's testimony that the complainant had exhibited behaviors typical of sexual assault victims generally was admissible pursuant to dicta in State v. Butler, 36 Conn.App. 525, 651 A.2d 1306 (1995), which followed this court's decisions in State v. Borrelli, 227 Conn. 153, 629 A.2d 1105 (1993), and State v. Freeney, supra, 228 Conn. 582, 637 A.2d 1088, and also is analogous to a physician's testimony about the import of the absence of physical trauma held admissible in State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984). The state also contends that the "syllog[ism]" of improper vouching posited by the Appellate Court
In response, the defendant, acknowledging the admissibility under State v. Spigarolo, supra, 210 Conn. at 379-80, 556 A.2d 112, of expert testimony about the behaviors of sexual assault victims generally, argues that this court has never specifically permitted an expert witness to connect those behaviors to a particular complainant. Adopting the Appellate Court's syllogistic reasoning, the defendant posits that permitting an expert witness to make that connection, but not opine directly on a complainant's credibility or diagnosis, is the logical equivalent of permitting an expert to testify that the bird acts, walks and quacks like a duck, but then precluding that expert from opining that a particular bird is, in fact, a duck. See also footnote 10 of this opinion. The defendant then cites case law from sister state jurisdictions, such as Wheat v. State, 527 A.2d 269 (Del.1987), and Commonwealth v. Brouillard, 40 Mass.App. 448, 665 N.E.2d 113 (1996), and contends that expert testimony linking a specific complainant to those general characteristics goes beyond the information necessary to educate a jury about how sexual assault victims behave, which amounts to bolstering and making an indirect assertion on the ultimate issue in the case, both of which are forbidden under Connecticut law. We agree with the defendant, and conclude that, although expert witnesses may testify about the general behavioral characteristics of sexual abuse victims, they cross the line into impermissible vouching and ultimate issue testimony when they opine that a particular complainant has exhibited those general behavioral characteristics.
We note that the Appellate Court's opinion and the record set forth the following additional relevant facts and procedural history. During pretrial proceedings, the state disclosed a list of potential witnesses, which included Melillo, who was to "testify as to characteristics of children who claim they were sexually abused." At trial, Melillo reviewed her extensive experience and training as a school psychologist
As the Appellate Court noted, this appeal centers on "the admission of opinions expressed by Melillo in four separate colloquies with the prosecutor." Id. at 8, 986 A.2d 1081. The defendant objected to all of these opinions on the ground that they constituted improper statements about the credibility of the "`particular alleged [complainant]'" — amounting to "`putting some kind of stamp of approval'" on her conduct in violation of State v. Grenier, supra, 257 Conn. at 797, 778 A.2d 159, and cases cited therein. See State v. Favoccia, supra, 119 Conn.App. at 9-13, 986 A.2d 1081. The trial court overruled the objections, concluding in detail with respect to the first challenged question that Melillo "is absolutely not allowed to testify as to [the complainant's] credibility, but she is an expert and can render an opinion, and the jury is entitled to give it whatever weight they deem appropriate based on her expertise."
Melillo gave her first challenged opinion after she explained in general terms the concepts of "accidental disclosure" and "purposeful disclosure" of sexual abuse,
"A. I can render an opinion.
"A. Based upon my viewing.
"Q. And what is your opinion? Was it accidental or purposeful?
"A. My opinion is [that] it was an accidental disclosure.
"Q. Why is that?
"A. Okay. When I was reviewing the [DVD] of [the complainant], it was my understanding that she had not wanted to tell someone in a position of authority, a parent, parental figure, what was happening. She had shared it with some girlfriends in confidence, and they said they wouldn't say anything, which we all know teenagers do.... It was my opinion, as I said before, that it was my understanding that [the complainant] did not intend to tell, make a purposeful disclosure, and so she shared it with some friends and it came out by accident." (Emphasis added.)
In the next challenged colloquy, pertaining to the concept of delayed disclosure, Melillo began by explaining that the concept generally reflects the fact that it is "more typical" for child sexual abuse victims, out of shame or fear, "not to share it with somebody who can intervene," particularly when the abuser is a family member or someone close to them.
Next, Melillo testified that her training and experience, and the literature in the field, indicated that "it is very possible" for a child to continue to show signs of respect toward the abuser after the abuse has occurred, which was consistent with the
The final opinion at issue concerns Melillo's testimony that female sexual abuse victims would, as a coping mechanism in an attempt to exert control, make themselves look unattractive to their abusers.
We now turn to the applicable background principles as reflected in § 7-3 of the Connecticut Code of Evidence.
"The determination of the credibility of a witness is solely the function of the jury.... It is the trier of fact which determines the credibility of witnesses and the weight to be accorded their testimony.... Expert witnesses cannot be permitted to invade the province of the jury by testifying as to the credibility of a particular witness or the truthfulness of a particular witness' claims.... An expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact.... Experts can [however] sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass." (Citations omitted; internal quotation marks omitted.) State v. Iban C., supra, 275 Conn. at 634-35, 881 A.2d 1005. "[A]n ultimate issue [is] one that cannot reasonably be separated from the essence of the matter to be decided [by the trier of fact]." (Internal quotation marks omitted.) State v. Beavers, 290 Conn. 386, 415, 963 A.2d 956 (2009). In a sexual assault case wherein the subject of the perpetrator's identity is not a matter of dispute, and the defense focuses on the credibility of the complainant, "the ultimate issue ... [is] whether the [complainant] had been sexually abused"; State v. Iban C., supra, at 638 n. 10, 881 A.2d 1005; and expert testimony vouching for the complainant's credibility is "not helpful to the jury in deciding [that] precise question...." Id. at 637, 881 A.2d 1005.
Connecticut's leading case on this topic is State v. Spigarolo, supra, 210 Conn. 359, 556 A.2d 112, wherein this court concluded that, "where defense counsel has sought to impeach the credibility of a complaining minor witness in a sexual abuse case, based on inconsistency, incompleteness or recantation of the victim's disclosures pertaining to the alleged incidents, the state may offer expert testimony that seeks to demonstrate or explain in general terms the behavioral characteristics of child abuse victims in disclosing alleged incidents."
Our cases following Spigarolo continue to recognize the value of generalized expert testimony to explain to the jury what might seem to the layperson to be atypical behavior exhibited by victims of various kinds of assaults, so long as that opinion testimony does not directly vouch for their credibility or veracity. See State v. Ali, 233 Conn. 403, 431-33, 660 A.2d 337 (1995) (rape trauma syndrome and adult sexual assault victims); State v. Freeney, supra, 228 Conn. at 589-93, 637 A.2d 1088 (common behaviors of adult sexual assault victims with respect to reporting and recall of events); State v. Borrelli, supra, 227 Conn. at 168-69, 629 A.2d 1105 (battered woman's syndrome to explain recanting and returns to relationship).
Subsequent case law has, however, emphasized the danger of an expert witness, particularly one who has treated or evaluated a complainant, vouching indirectly for that complainant's credibility as well. In State v. Grenier, supra, 257 Conn. at 805-806, 778 A.2d 159, we concluded that the trial court had improperly admitted testimony from a clinical psychologist stating that she had treated the then six year old victim "for the trauma of the abuse that [she] experienced," reasoning that it constituted "an indirect assertion that validated the truthfulness of [the victim's] testimony." (Internal quotation marks omitted.) Following State v. Ali, supra, 233 Conn. at 432, 660 A.2d 337, State v. Freeney, supra, 228 Conn. at 592, 637 A.2d 1088, and State v. Borrelli, supra, 227 Conn. at 173-74, 629 A.2d 1105, we determined that this indirect assertion ran afoul of the rule that an "expert may not testify regarding the credibility of a particular victim" because, although it "was not a literal statement of her belief in [the victim's] truthfulness, such testimony had the same substantive import and could be perceived as a conclusive opinion that [the victim] had testified truthfully."
Similarly, in State v. Iban C., supra, 275 Conn. at 627-29, 881 A.2d 1005, our most recent decision addressing this point comprehensively, the five year old victim had alleged that the defendant had fondled and kissed her inappropriately on two occasions; a physical examination revealed no injury. The victim subsequently was examined by a pediatrician, who included both in her written report, admitted into evidence at trial, and in her trial testimony a "diagnosis of `[c]hild [s]exual [a]buse' based both on her physical examination and the victim's history developed by the investigation team."
The facts of the present case present a delicate middle ground between the generalized behavioral testimony held admissible in Spigarolo and the more pointed diagnoses held inadmissible in Grenier and Iban C. Inasmuch as this is an issue of first impression for this court,
Similarly, in applying this court's decision in State v. Spigarolo, supra, 210 Conn. 359, 556 A.2d 112, the Vermont Supreme Court emphasized in dicta that the "conduct of a child who has been sexually abused, and the emotional antecedents underlying this conduct, can be effectively explained to the jury through testimony relating to the class of victims in general.... Expert testimony concerning the particular complainant must be approached with caution, as it too often slips into impermissible comment on the complainant's credibility."
Other courts have aptly observed that testimony linking a specific complainant to the general behavioral characteristics of sexual assault victims poses the risk of the jury improperly using those behaviors offensively as substantive proof that the complainant was sexually assaulted, rather than properly to respond defensively to impeachment by explaining behaviors that might otherwise impact her credibility, as we contemplated in State v. Spigarolo, supra, 210 Conn. at 379-80, 556 A.2d 112. As noted by the Indiana Supreme Court, "[w]here a jury is confronted with evidence of an alleged child victim's behaviors, paired with expert testimony concerning similar syndrome behaviors, the invited inference — that the child was sexually abused because he or she fits the syndrome profile — will be as potentially misleading and equally as unreliable as expert testimony applying the syndrome to the facts of the case and stating outright the conclusion that a given child was abused."
Finally, courts have observed that expert testimony linking the specific complainants to the generalized behaviors is simply unnecessary "[o]nce the jury has learned the victim's behavior from the evidence and has heard experts explain why sexual abuse may cause delayed reporting, inconsistency, or recantation," meaning that the jury does not "[need] an expert to explain that the victim's behavior is consistent or inconsistent with the crime having occurred."
Citing our decision in State v. Iban C., supra, 275 Conn. at 635, 881 A.2d 1005, and dicta from the Appellate Court's decision in State v. Butler, supra, 36 Conn. App. at 525, 651 A.2d 1306, the state argues, however, that expert testimony that a specific complainant has exhibited certain behaviors that are characteristic of sexual assault victims in general is admissible under Connecticut law. We begin with the relevant language from Iban C., namely: "[W]e have found expert testimony stating that a victim's behavior was generally consistent with that of a victim of sexual or physical abuse to be admissible, and have distinguished such statements from expert testimony providing an opinion as to whether a particular victim had in fact suffered sexual abuse. See State v. Freeney, supra, 228 Conn. at 592-93, 637 A.2d 1088 (court admitted expert testimony regarding consistency of victim's behavior stating that `neither expert gave an opinion as to whether this particular victim had ... in fact suffered physical or sexual abuse')." (Emphasis in original.) State v. Iban C., supra, at 635, 881 A.2d 1005; see also id. at 636, 881 A.2d 1005 (The court concluded that the pediatrician's report and testimony were improperly admitted because, inter alia, they "were not limited to the conclusion that the physical evidence and the victim's behavior were consistent with that of other victims of sexual abuse. Rather, they provided the jury with an opinion that the victim had suffered sexual abuse in the present case."). This passage from Iban C. is not dispositive of this appeal because it was dicta. First, Iban C. required us to consider only the distinct issue of the admissibility of a behaviorally based diagnosis of "[c]hild [s]exual [a]buse," rather than the more nuanced testimony at issue in this appeal, which stops short of an actual diagnosis or conclusion and instead states that a complainant's behavior was consistent with that of a sexual abuse victim.
Second, Iban C.'s reliance on State v. Freeney, supra, 228 Conn. at 592-93, 637 A.2d 1088, in support of the proposition that an expert may link a specific complainant's behavior to identified general characteristics of sexual assault victims, is overbroad. Although Freeney, which involved an adult sexual assault and kidnapping victim, did consider the admissibility of behavioral testimony that was at least partially comparative in nature as a factual matter,
The state accurately notes that, in State v. Butler, supra, 36 Conn.App. at 525, 651 A.2d 1306, the Appellate Court, in providing guidance with respect to issues likely to arise at a new trial,
Reconciling the well reasoned sister state decisions with our own case law, we conclude that our concerns about indirect vouching expressed in State v. Grenier, supra, 257 Conn. at 806, 778 A.2d 159, and State v. Iban C., supra, 275 Conn. at 635-36, 881 A.2d 1005, require us to limit expert testimony about the behavioral characteristics of child sexual assault victims admitted under State v. Spigarolo, supra, 210 Conn. at 378-80, 556 A.2d 112, to that which is stated in general or hypothetical terms, and to preclude opinion testimony about whether the specific complainant has exhibited such behaviors.
Having reviewed the four challenged opinions in this case, we agree with the Appellate Court that, with respect to each, "[w]hen Melillo went beyond a general discussion of characteristics of sexual abuse victims and offered opinions, based on her review of the videotaped forensic interview and other documentation, as to whether this particular [complainant] in fact exhibited the specified behaviors, her testimony crossed the line of permissible expert opinion." State v. Favoccia, supra, 119 Conn.App. at 23, 986 A.2d 1081. In each of the four challenged opinions, Melillo identified a behavior characteristic of a sexual assault victim, including the nature of her disclosure, remaining polite and respectful toward her abuser, and making herself unattractive as a coping mechanism, and then opined specifically, based on her viewing of the DVD, that the complainant had exhibited such behaviors. This testimony created a significant risk that the jury would consider Melillo's testimony as an imprimatur on the complainant's allegations, particularly because her testimony was based directly on observations of the complainant's videotaped interview, which renders this case distinct from those wherein the expert disclaims any familiarity with the specific facts of the case or testifies only in terms of generalities or hypotheticals, such as State v. Christiano, 228 Conn. 456, 460-62, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S.Ct. 83, 130 L.Ed.2d 36 (1994), and State v. R.K.C., 113 Conn.App. 597, 605, 967 A.2d 115, cert. denied, 292 Conn. 902, 971 A.2d 689 (2009).
Moreover, we agree with the Appellate Court that the offered opinions were "improper in that they were not beyond the ken of the average juror." State v. Favoccia, supra, 119 Conn.App. at 24, 986 A.2d 1081. "When inferences or conclusions are so obvious that they could be as easily drawn by the jury as the expert from the evidence, expert testimony regarding such inferences is inadmissible." State v. Iban C., supra, 275 Conn. at 639,
Reversal of the defendant's conviction is not required, however, unless the defendant demonstrates that the improperly admitted expert opinion testimony was harmful error. See, e.g., State v. Beavers, supra, 290 Conn. at 419, 963 A.2d 956. The state contends that the improper admission of Melillo's testimony was harmless error because the complainant's testimony and her videotaped interview were sufficient evidence to support her allegations, and: (1) the defendant had the opportunity to impeach Melillo through an extensive cross-examination, during which she conceded that she could not determine whether the complainant had in fact been sexually abused; (2) the defendant assailed the complainant's credibility through an extensive cross-examination, as well as through the testimony of R, the complainant's father, and M, who is R's long-term girlfriend and is employed as a psychiatric nurse; (3) the trial court instructed the jury that it was not bound by Melillo's opinions; and (4) the fact that the jury deadlocked on the charge of sexual assault in the second degree indicates that it was not swayed by the improper portions of Melillo's testimony. The state also posits that the evidentiary impropriety in this case was not as egregious as that in State v. Iban C., supra, 275 Conn. at 635, 881 A.2d 1005, because it was not a conclusion or diagnosis of sexual abuse.
In response, the defendant follows the Appellate Court's analysis in this case; see State v. Favoccia, supra, 119 Conn.App. at 26-27, 986 A.2d 1081; and relies on State v. Grenier, supra, 257 Conn. at 811-12, 778 A.2d 159, in support of his contention that Melillo's expert testimony substantially swayed the verdict. The defendant emphasizes that: (1) Melillo refused to concede on cross-examination that the behaviors at issue might also be consistent with a finding of no abuse at all; (2) the curative instruction by itself could not cure the prejudice; (3) under State v. Angel T., supra, 292 Conn. at 294, 973 A.2d 1207, the report of jury deadlock indicated that the jury did not view the prosecution's case as particularly strong; and (4) for bolstering purposes, there is no meaningful distinction under Connecticut law between direct and indirect vouching. We agree with the defendant and conclude that we do not have a fair assurance that the improper expert testimony did not substantially sway the jury's verdict in this case.
"When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.... [W]hether [the improper admission of a witness' testimony] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness
Having reviewed the record in this case, we do not have the requisite "fair assurance that the error did not substantially affect the verdict." (Internal quotation marks omitted.) State v. Beavers, supra, 290 Conn. at 419, 963 A.2d 956. We first note that the importance of Melillo's testimony, and the improprieties attendant thereto, cannot be assessed without reference to the overall strength and nature of the prosecution's case — a most significant factor not addressed by Justice Palmer in the harm analysis in his dissenting opinion. It is undisputed that this sexual assault case, which lacked physical evidence, turned entirely on the credibility of the complainant. We repeatedly have described such cases as, although "not automatically... weak," also "not particularly strong...." (Internal quotation marks omitted.) State v. Sawyer, supra, 279 Conn. at 358-59, 904 A.2d 101; compare, e.g., State v. Grenier, supra, 257 Conn. at 807-808, 778 A.2d 159 (case with no physical evidence that relied entirely on child complainant's testimony, supported by constancy testimony and expert witnesses was "not particularly strong" for state) with State v. Beavers, supra, at 418-20, 963 A.2d 956 (improper expert testimony that fire was intentionally set, which was based on "assessment of the defendant's credibility," was harmless because of "enormity of the circumstantial evidence against the defendant, namely, the evidence of his motive, his opportunity, his knowledge that the fire started in the basement, his possession of fire starting supplies on the morning of the fire, his intent as shown through his prior bad acts, and the uncontroverted and properly admitted expert evidence that refuted his attempt to blame the fire on [his son's] smoking"), and State v. Iban C., supra, 275 Conn. at 641-45, 881 A.2d 1005 (improper expert bolstering was harmful as to one count of risk of injury to child wherein "state's case rested almost entirely on the victim's credibility" with no physical or medical evidence, but harmless with respect to second count of risk of injury to child, to which defendant had confessed).
Given the nature of the evidence against him, it is not surprising, then, that the defendant made concerted efforts at trial to discredit the complainant's veracity in conjunction with a defense theory that the allegations were a fabrication by S arising from a contemporaneous bitter custody and visitation dispute with R, intended to disrupt the complainant's scheduled weekend visitation with R. To this end, the defendant battered the teenage complainant's veracity with evidence that would give any reasonable juror pause — including testimony by R, the teenage complainant's own father, that he "did not know whether to believe" her allegations against the defendant. Indeed, R's testimony went beyond what he deemed to be the complainant's untruthful nature generally,
Thus, given the import of the complainant's credibility and the defendant's substantial attacks upon it, Melillo's testimony, the substance of which was unshaken on cross-examination,
With respect to the import of the improperly admitted evidence on the trier of fact, and the result of the trial, it is highly significant that, after reporting a deadlock and receiving a "Chip Smith" charge, the jury subsequently was unable to reach a verdict on the charge of sexual assault in the second degree, but found the defendant guilty of two counts of risk of injury. That circumstance alone indicates that the case was a close one in the eyes of the jury, making it more likely that the improper evidence might have tipped the balance.
Moreover, the state's argument that the split in the verdict, failing to reach a verdict on the second degree sexual assault charge alleging penetration, indicates that Melillo's testimony did not substantially sway the verdict by bolstering the complainant's credibility is belied by State v. Iban C., supra, 275 Conn. at 644-45, 881 A.2d 1005, wherein we rejected a similar argument, concluding that "merely because the jury did not find, beyond a reasonable doubt, that the defendant had penetrated the victim's vagina as part of the two sexual assaults, does not establish that the jury failed to be influenced by [the pediatrician's] diagnosis of `[c]hild [s]exual [a]buse' in reaching guilty verdicts on the risk of injury counts. At a minimum, [the pediatrician's] diagnosis endorsed and provided credibility to the victim's claim that some type of inappropriate contact had taken place between the victim and the defendant in the bathroom and bedroom of his home." The import of Melillo's testimony, to the extent that it improperly vouched for the complainant's testimony, is identical in this case wherein the verdict indicates that the jury had to have credited the complainant's testimony that the defendant had engaged in some sexual conduct — albeit falling short of penetration — with her.
Finally, we disagree with the state's argument that the trial court's instructions to the jury had the effect of mitigating the harm from the improper portions of Melillo's testimony. This is because the trial court's instructions to the jury that it was not bound by Melillo's opinions were given in the context of the omnibus charge at the end of the trial,
In this opinion ROGERS, C.J., and McLACHLAN, EVELEIGH and HARPER, Js., concurred.
PALMER, J., dissenting.
Child victims of sexual abuse sometimes act in ways that, to a layperson, strongly suggest that no abuse actually occurred. In those circumstances, the state is permitted to adduce expert testimony for the purpose of explaining that such behavior is not uncommon and, therefore, that such conduct does not necessarily mean that the abuse did not occur.
Two primary considerations lead me to conclude that the state should not be permitted to elicit expert testimony explaining that the complainant's particular conduct was consistent with the conduct of other such victims. First and foremost, there is a risk that the jury might view the testimony as suggesting that the expert personally believes that the complainant was, in fact, sexually abused. This risk exists for at least two related reasons. First, an expert's opinion that the conduct of the complainant is consistent with the conduct of other children who have been sexually abused may suggest to the jury that the expert, who undoubtedly will have had extensive experience with victims of sexual abuse, would not be opining on the similarity in conduct between the complainant and other known victims of sexual abuse unless the expert believed that the complainant also had been abused. Put differently, sometimes children falsely claim that they have been sexually abused, and, in those cases, behavior that seems to belie the complaint of abuse, although consistent with the behavior of known victims of such
The second concern with the challenged testimony stems from the fact that there is a greater risk that the jury will treat the testimony as suggesting that, because the complainant's behavior is similar to the behavior of other child victims of sexual abuse, the conduct of the complainant constitutes affirmative evidence that the complainant, too, was so abused. Of course, the purpose of the expert testimony is not to demonstrate that the complainant was sexually abused; only if the complainant's behavior were unique to victims of sexual abuse — and there is no such claim in the present case — would the testimony be relevant to that end. Rather, the testimony is admissible for the limited purpose of rebutting any claim or inference that the complainant's behavior is inconsistent with sexual abuse. When an expert expressly links the complainant's behavior to the behavior of other child victims of sexual abuse, there is a greater likelihood that the jury will view this testimony as affirmative proof that the complainant was abused when, in fact, the sole basis for the testimony is to provide the jury with the state's explanation for conduct by the complainant that, in the absence of such testimony, would be difficult for the jury to reconcile with the complainant's claim of abuse.
There is a second reason why an expert should not be permitted to testify with reference to the complainant's conduct: the state has absolutely no need for it. When an expert testifies generally that it is not uncommon for child sexual abuse victims to behave in a certain way, the jury is perfectly capable of determining whether the evidence establishes that the complainant in the case before it exhibited such behavior. Of course, if the prosecutor believes that it would be useful to underscore the expert testimony with express reference to the relevant conduct of the complainant, the prosecutor is free to do so in closing argument. Neither the state nor Justice Zarella in his dissent offers any reason why the prosecutor should be allowed to elicit expert testimony expressly linking the complainant's conduct to similar conduct of other child victims of sexual abuse, and I know of no such reason.
I disagree with the majority, however, that this result is compelled by State v.
With respect to the issue of harm, I am not convinced that the defendant in the present case can meet his burden of establishing that "the jury's verdict was substantially swayed by the error." (Internal quotation marks omitted.) State v. Beavers, 290 Conn. 386, 419, 963 A.2d 956 (2009).
Indeed, the testimony at issue in the present case is not much different from expert testimony that is permitted under our evidentiary rules, namely, testimony in response to a hypothetical question. See Conn.Code Evid. § 7-4(c).
In the present case, moreover, Melillo did not treat or even interview the complainant. In fact, prior to her testimony, Melillo never spoke to the complainant. Rather, Melillo's testimony was based solely on her review of certain police reports and a video recording of a forensic interview of the complainant conducted by a third person, as well as conversations with the senior assistant state's attorney (prosecutor). Consequently, the jury could not have been swayed by the belief that Melillo had some special insight into the complainant's credibility on the basis of a professional relationship or through personal interaction. This reduces the possibility that the jury was influenced unduly by Melillo's improper testimony because "[t]he risk of improper comparisons between any general behavioral characteristics of sexually abused children and a particular complaining child witness is most acute when the expert witness has examined or treated the child"; Commonwealth v. Federico, 425 Mass. 844, 849, 683 N.E.2d 1035 (1997); a point that the majority concedes. See part I of the majority opinion (observing that danger of expert witness vouching for complainant's credibility is greatest when expert has treated or evaluated complainant).
Finally, and perhaps most important, in closing argument to the jury, the prosecutor made no mention of the challenged testimony. In fact, the prosecutor said nothing at all about Melillo's testimony — or, for that matter, the behavior of the complainant that was the subject of Melillo's testimony — in his initial argument. Defense counsel then proceeded to deliver his closing argument, during which he underscored the fact that Melillo never had interviewed the complainant and had absolutely no idea whether the complainant was telling the truth.
It is readily apparent that the prosecutor's passing references to Melillo focused only on that aspect of her testimony that was perfectly proper, and contained no mention of the challenged testimony in this case. If the challenged testimony was so prejudicial to the defendant, as the majority asserts, it is hard to understand why the prosecutor would not have underscored it in arguing to the jury. It also is telling that the prosecutor devoted so little time to Melillo's testimony in his closing argument. In closing remarks that spanned more than thirty transcript pages, Melillo's testimony is the subject of only three brief, wholly unobjectionable sentences. In my view, the fact that the prosecutor's closing argument contains merely a fleeting reference to Melillo's testimony, and no reference to any improper testimony, strongly suggests that no aspect of her testimony was particularly important to the state's case. My conclusion in this regard is buttressed by defense counsel's unrebutted assertion that Melillo had no knowledge as to whether the complainant was telling the truth about the defendant.
For all of the foregoing reasons, I do not believe that Melillo's testimony that the complainant's behavior was consistent with the behavior of other known child victims of sexual abuse had a bearing on the outcome of the trial. I therefore respectfully dissent.
ZARELLA, J., dissenting.
The issue in this appeal is whether an expert witness may testify that the complainant in the present case exhibited behaviors that are consistent with victims of sexual abuse in general. To be clear, what is not at issue is whether an expert may (1) state generally the traits exhibited by sexual abuse victims, or (2) diagnose the alleged victim in a particular case as abused or opine as to the alleged victim's credibility. The former is clearly admissible, whereas the latter is clearly not. In the present case, the testimony at issue consists of opinion testimony that links the general behavioral characteristics of sexual abuse victims to the specific behaviors exhibited by the complainant. Thus, the testimony falls somewhere between an enumeration of the general behavioral characteristics of sexual abuse victims and a diagnosis of the complainant as having been sexually abused. Notwithstanding the reasoning of this court in previous cases,
A brief review of the applicable provisions of the Connecticut Code of Evidence provides the starting point for my analysis. Expert testimony is governed by §§ 7-2 through 7-4 of the Connecticut Code of Evidence. Specifically, § 7-3(a) of the Connecticut Code of Evidence provides in relevant part that "[t]estimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that ... an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue." Section 7-4(a) of the Connecticut Code of Evidence provides that "[a]n expert may testify in the form of an opinion and give reasons therefor, provided sufficient
This court has delineated several rules specifically governing the admissibility of expert testimony in cases involving the sexual abuse of children. In State v. Iban C., 275 Conn. 624, 881 A.2d 1005 (2005), we explained: "[I]n cases that involve allegations of sexual abuse of children, we have held that expert testimony of reactions and behaviors common to victims of sexual abuse is admissible.... It is not permissible, however, for an expert to testify as to his opinion of whether a victim in a particular case is credible or whether a particular victim's claims are truthful.... In this regard, we have found expert testimony stating that a victim's behavior was generally consistent with that of a victim of sexual or physical abuse to be admissible, and have distinguished such statements from expert testimony providing an opinion as to whether a particular victim had in fact suffered sexual abuse." (Citations omitted; emphasis in original.) Id. at 635, 881 A.2d 1005. We further explained that, "in cases in which an expert witness reaches a conclusion on the ultimate issue... based [in part on] statements made by the victim ... Connecticut case law has previously recognized the general rule of law that the expert is necessarily making a determination about the victim's credibility.... Such credibility determinations are more properly within the sole province of the jury." (Citation omitted.) Id. at 635-36, 881 A.2d 1005; see also State v. Grenier, 257 Conn. 797, 805-806, 778 A.2d 159 (2001) (holding as inadmissible expert testimony that alleged victim was credible or that supplies diagnosis of sexual abuse).
I note that the Connecticut Code of Evidence provides for a liberal treatment of the admissibility of expert opinion testimony. Experts are allowed to offer opinions that are relevant to the case, including opinions on the ultimate issue, if such opinions assist the trier of fact in understanding the evidence or determining a fact in issue. Conn.Code Evid. §§ 7-2 and 7-3. In other words, Connecticut has abandoned the common-law prohibition on opinion testimony concerning the ultimate issue. Cf. United States v. DiDomenico, 985 F.2d 1159, 1164 (2d Cir.1993) (noting that rule 704[a] of Federal Rules of Evidence, which provides that opinion testimony is not objectionable merely because it embraces ultimate issue, "abrogates the [common-law] rule and allows an expert witness to give opinion testimony embracing an ultimate issue in the case"). Moreover, the Connecticut Code of Evidence allows for experts to opine on hypothetical situations that are based entirely on the facts of the case. See Conn.Code Evid. § 7-4(c); see also State v. Christiano, supra, 228 Conn. at 460-62, 637 A.2d 382.
Thus, in determining the admissibility of expert opinion testimony, the question is
Additionally, a majority of jurisdictions that have addressed the issue allow an expert to testify that the alleged victim's behavior is consistent with the behavior of sexual abuse victims in general. See footnote 26 of the majority opinion (citing cases). "When [the defense attacks] the credibility of the [child sexual abuse] victim... it is proper to allow an explanation by a qualified expert regarding the consistencies between the behavior of that victim and other victims of child sexual abuse." People v. Peterson, 450 Mich. 349, 375, 537 N.W.2d 857, amended on other grounds, 450 Mich. 1212, 548 N.W.2d 625 (1995). Although "it is true that an expert may not offer an opinion as to the veracity of the alleged victim, that is, whether the alleged child sexual abuse victim has been truthful, it is within the scope of permissible testimony for an expert to testify regarding his or her opinion that the alleged victim's characteristics are consistent with [those of] a child who has been sexually abused." Bishop v. State, 982 So.2d 371, 381 (Miss. 2008).
The underlying rationale for allowing this type of testimony is that sexual abuse
Significantly, allowing this type of testimony is not the equivalent of allowing the expert to vouch for the alleged victim's credibility. "What is forbidden is expert opinion testimony that directly addresses the credibility of the victim ... or expert opinion testimony that implicitly goes to the ultimate issue to be decided by the jury, when such issue is not beyond the ken of the average juror, i.e., [an opinion that] the victim was sexually abused. Although the distinction may seem fine to a layman, there is a world of legal difference between expert testimony that ... the victim's psychological exam was consistent with sexual abuse, and expert testimony that ... the victim was sexually abused. In the first situation, the expert leaves the ultimate issue/conclusion for the jury to decide; in the second, the weight of the expert is put behind a factual conclusion [that] invades the province of the jury by providing a direct answer to the ultimate issue: was the victim sexually abused?" (Internal quotation marks omitted.) Brownlow v. State, 248 Ga.App. 366, 368, 544 S.E.2d 472 (2001), cert. denied, Georgia Supreme Court, Docket No. S01C0928 (June 25, 2001); see also State v. Tibor, 738 N.W.2d 492, 497-98 (N.D.2007).
In sum, the better approach is for this court to follow the rule adopted by a majority of jurisdictions that have considered the issue. "A qualified expert may inform the jury of characteristics of sexually abused children and describe the characteristics exhibited by the alleged victim but may not state an opinion that sexual abuse has in fact occurred." United States v. Johns, 15 F.3d 740, 743 (8th Cir.1994); see also United States v. Charley, 189 F.3d 1251, 1264 (10th Cir.1999) ("the court did not abuse its discretion by allowing [the expert] to summarize the medical evidence and [to] express an opinion that the evidence is consistent or inconsistent with the victim's allegations of sexual abuse, and allowing him to inform the jury of characteristics in sexually abused children and [to] describe the characteristics [that] the ... victim exhibits" [internal quotation marks omitted]), cert. denied, 528 U.S. 1098, 120 S.Ct. 842, 145 L.Ed.2d 707 (2000).
Having established the standard for the admission of expert testimony that connects the general behavioral characteristics of sexual abuse victims with those of an alleged victim in a particular case, I now turn to the testimony at issue in the present case. Defense counsel objected to four portions of the testimony of Lisa Melillo, the state's expert. In the interest of clarity, I identify and analyze each portion separately. At all times relevant to this analysis, the proper standard of review is whether the trial court abused its discretion in admitting the testimony. See, e.g., State v. Iban C., supra, 275 Conn. at 634, 881 A.2d 1005 ("The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions.... The court's decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law." [Citations omitted; internal quotation marks omitted.]).
The first portion of the challenged testimony consists of the following colloquy between the senior assistant state's attorney and Melillo:
"Q. With respect to your formal review of the documents, and I believe you said you looked at the [video recording of the complainant's forensic] interview, can you render an opinion whether [the complainant's] disclosure was an accidental disclosure or a purposeful disclosure?
"Q. Why is that?
"A. Okay. When I was reviewing the [video recording of the complainant's interview], it was my understanding that she had not wanted to tell someone in a position of authority, a parent, parental figure, what was happening. She had shared it with some girlfriends in confidence, and they said they wouldn't say anything, which we all know teenagers do.... It was my opinion, as I said before, that it was my understanding that she did not intend to tell, make a purposeful disclosure, and so she shared it with some friends, and it came out by accident."
I conclude that this portion of Melillo's testimony is admissible under the rule set forth in part I of this opinion. The testimony demonstrates that Melillo was rendering an opinion about the complainant's traits on the basis of the facts that had been presented to her. Although it may appear that Melillo was premising her opinion on a conclusion that the complainant had been abused, when Melillo's statement is viewed in the context of the entire colloquy, it is clear that her opinion was much narrower than that. After opining that the disclosure was accidental, Melillo explained that her opinion was rendered solely on the basis of the facts that had been presented to her. This is the functional equivalent of an expert answering a hypothetical question on the basis of the facts of the case, which is clearly admissible.
In any event, application of the deferential standard of review to the admission of this evidence leads to the conclusion that the trial court did not abuse its discretion in admitting it. It certainly can be argued that the trial court viewed Melillo's testimony as responding to the narrow question of whether, based on her review of the video recording of the complainant's interview and other documentation, the complainant had acted in an accidental or purposeful manner when she disclosed the defendant's alleged abuse. Significantly, such an opinion would likely be helpful to the average juror who, not understanding the concept of a sexual abuse disclosure generally, would benefit from an expert's assistance in determining whether the complainant displayed traits associated with a certain type of disclosure. Finally, Melillo's response followed the court's instruction that she was not testifying about the complainant's credibility but solely rendering an expert opinion on the complainant's type of disclosure. See footnote 10 of this opinion. Thus, the trial court did not abuse its discretion in admitting this testimony.
The second portion of the challenged testimony consists of the following colloquy between the senior assistant state's attorney and Melillo:
"Q. ... Is it an unusual or usual situation that a child would refrain from telling someone in authority about the abuse?
"A. It is my experience [that] it is more typical for [a victim] not to share [the disclosure] with somebody who can be in a position to intervene.
"A. There is.
"Q. And what is that called?
"A. It's called delayed disclosure.
"Q. Okay. And what is that?
"A. Again, we talk about the word `disclosure,' about it being a report or statement from ... the child. Oftentimes, we believe that kids just automatically tell, but what we [have] found is [that] it's just the opposite. They ... either delay in reporting it or they never tell at all. So, the process of disclosure ... is not one event. It's a process. And delayed disclosure[s] are also found out; people report things that have happened in the past to them.
"Q. And, in this particular case, upon reviewing the documentation, as well as the [video recording], what is your opinion with respect to whether or not [the complainant] engaged in this process that you're talking about, delaying her disclosure?
"A. My opinion is [that] she did fit the characteristics of a delayed disclosure."
This portion of the testimony clearly is admissible under the rule set forth in part I of this opinion. Melillo testified only that the complainant exhibited a characteristic associated with a characteristic generally exhibited by sexual abuse victims. Melillo does not conclude that the complainant was abused or that, by virtue of exhibiting these characteristics, it was more likely than not that the complainant was abused. Moreover, such testimony certainly could be considered helpful to the average juror. If a juror does not understand the traits associated with sexual abuse victims generally, then it is unlikely that a juror would be able to identify those particular traits in the alleged victim, even after the expert explained those traits. Put differently, because the concept of delayed disclosure is not within the ken of the average juror, it reasonably follows that the peculiar traits associated with it are also not within the ken of the average juror. Thus, an expert could assist jurors by testifying that the alleged victim's specific traits are consistent with the traits generally exhibited by sexual abuse victims. For the foregoing reasons, this testimony was admissible.
The third portion of the challenged testimony consists of the following colloquy between the senior assistant state's attorney and Melillo:
"Q. Now, also in your training, experience, as well as the literature that exists in the field, is it possible for a child to continue to show signs of respect [toward] the abuser after the abuse has occurred?
"A. Yes, that is very possible.
"Q. Okay. And why is that?
"A. Oftentimes, if a child has made a decision not to tell anybody and wants to keep this within themselves, they have to cope somehow to maintain that, and if they either act differently than what they are typically doing or don't act in a certain way, that can bring, you know, some suspicion. So, if a person's conduct, a child's conduct, is typically respectful and polite to someone, if they should suddenly change, that might arouse suspicion, and then being asked questions, sending a flag to somebody, saying, what's the matter, why aren't you nice to that person anymore. That is a coping method to accommodate keeping that inside them.
"Q. And did you see any evidence of that in your review of the documentation
"A. ... [A]s I viewed the [video recording of the interview], again ... I saw [the complainant] talk about how she, you know, was raised to be polite and respectful, and wasn't going to change that behavior ... in a situation like that."
This portion of the testimony also is admissible under the rule set forth in part I of this opinion. As with the second portion of the challenged testimony, in this third portion, Melillo testifies only that the complainant exhibited characteristics associated with those exhibited by sexual abuse victims in general. The testimony does not contain any suggestion, conclusion or opinion that the complainant was abused. It is a closer call, however, whether this portion of Melillo's testimony could be considered helpful to the jury. Unlike the traits associated with disclosure that were mentioned in the first and second portions of Melillo's testimony, the traits associated with being "respectful and polite" are more likely to be considered commonly understood and, therefore, within the ken of the average juror. Nevertheless, applying the proper standard of review, I cannot conclude that the trial court abused its discretion in admitting this testimony. In light of the broader context of Melillo's testimony, namely, the need to explain the myriad characteristics exhibited by sexual abuse victims that are not commonly understood, the trial court, in its discretion, reasonably could have determined that the jury would need assistance in identifying the specific traits that the complainant exhibited. Thus, the trial court did not abuse its discretion by admitting this testimony.
The fourth portion of the challenged testimony consists of the following colloquy between the senior assistant state's attorney and Melillo:
"Q. Have you ... ever encountered, in your dealings as a forensic interviewer, as well as a school psychologist, behavioral issues or behaviors that young ladies may engage in to address issues of their contact with the abuser?
"A. Yes, I have.
"Q. Did you see any examples of this, whether it be by the documentation or the [video recording] that you viewed?
"A. There are many. I used the word `accommodations' before. There are many ways that a child ... can cope. Typically, if a child feels kind of powerless and trapped, [he or she] might — particularly with some of the females that I work with at the high school level, have told me, I really just made myself look unattractive.... That [is] one of the things they can control — is how they present themselves, their appearance. So, oftentimes, they might try to make themselves look unattractive, hoping that would turn somebody away. Yes, that is a coping mechanism. That is the way of accommodating something, to be able to control a situation that they really can't control. Similar to what I had said before about changing or not changing a certain behavior to try to cope and survive in a situation.
"Q. Did you note [the complainant's] examples of that in the documentation or the [video recording]?
"A. I did."
This portion of the testimony is admissible under the rule set forth in part I of this opinion. Melillo's testimony, which is similar to the second portion of the challenged testimony, merely links the general
For the foregoing reasons, I disagree with the majority's conclusion that an expert witness cannot provide testimony that links the general behavioral characteristics of sexual abuse victims to those of the specific victim in a particular case. This rule is inconsistent with Connecticut law. The better approach is to allow this testimony when it assists the jury. Applying the foregoing principles to the present case, I would conclude that the trial court did not abuse its discretion in admitting any of the challenged testimony. Accordingly, I would reverse the judgment of the Appellate Court and affirm the judgment of conviction.
Melillo explained that "many factors" are involved with delayed disclosure, including "shame [and] embarrassment. We're asking kids to make public the most shameful types of experience regarding their genitalia or having to do something to somebody else. It is very shaming. Can you imagine the embarrassment of the child?
"Another factor is fear. They are fearful that they are not going to be believed. We socialize our kids that adults are authority figures and who is ever going to believe a kid over an adult's word. Typically, as to the subject of sexual abuse, they believe their word is not going to be heard, so they keep it to themselves.
"The other factor is the fear of the consequences of that. Kids can appraise what's going to happen, what are the ramifications... if this comes out. Am I going to get blamed? Am I going to get punished? Am I going to get, you know — the family is going to fall apart. There's an impact for them, the people they care about. You know ... also sometimes [there are] threats that are made. You know, if you tell, this is what is going to happen. Sometimes threats are even implied. There are many factors that keep a child from not telling ... what has happened to them...."
Melillo then emphasized that, "if the abuser is known to the child or known to the child in some capacity, whether it be a family member or someone close to them, all the more that, again, they're not going to confront that adult in that situation."
"(a) General rule. Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that, other than as provided in subsection (b), an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue.
"(b) Mental state or condition of defendant in a criminal case. `No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto, except that such expert witness may state his diagnosis of the mental state or condition of the defendant. The ultimate issue as to whether the defendant was criminally responsible for the crime charged is a matter for the trier of fact alone.' General Statutes § 54-86i."
Our research has revealed that four other states permit experts to draw behavioral comparisons between complainants and victims in general; their decisions are not instructive with respect to the development of Connecticut law because they are decisions from courts that also permit experts to opine directly about whether a victim has been sexually abused — a holding directly at odds with our decision in State v. Iban C., supra, 275 Conn. at 636-37, 881 A.2d 1005 — so long as they do not vouch directly for the credibility of the complainant's trial testimony or allegations vis-á-vis the defendant. See Tingle v. State, 536 So.2d 202, 205 (Fla.1988); State v. Ransom, 124 Idaho 703, 709-10, 864 P.2d 149 (1993); State v. Schumpert, 312 S.C. 502, 506, 435 S.E.2d 859 (1993); State v. Edward Charles L., 183 W.Va. 641, 659, 398 S.E.2d 123 (1990).
We decline to follow the Michigan Supreme Court's analysis of this issue in Peterson and Beckley because the distinction between direct and indirect vouching, upon which the court apparently relies, is at odds with our decisions that consistently have held that an expert may not vouch for a witness' credibility either directly or indirectly. See State v. Iban C., supra, 275 Conn. at 637, 881 A.2d 1005; State v. Grenier, supra, 257 Conn. at 806, 778 A.2d 159. Indeed, the analytical importance to the linking inquiry of acceptance of the concept of indirect vouching is borne out in United States v. Charley, 189 F.3d 1251, 1269 n. 25 (10th Cir.1999), wherein the United States Court of Appeals for the Tenth Circuit, in, inter alia, rejecting a vouching challenge to expert testimony that a complainant's behaviors were consistent with those of child sexual abuse victims, specifically criticized the decisions of the "courts [that] have held that a counselor's testimony that [the alleged victim] was referred to me for sexual abuse recovery counseling constitutes impermissible vouching and is therefore inadmissible." (Internal quotation marks omitted.) Id., quoting State v. Haslam, 663 A.2d 902, 905-906 (R.I. 1995). This, of course, was the very testimony that we held inadmissible in Grenier.
Moreover, the majority in Peterson does not explain, beyond a conclusory mention of "balancing" interests, how allowing the admission of comparative or linking testimony only after the complainant's credibility has been attacked; see People v. Peterson, supra, 450 Mich. at 374, 537 N.W.2d 857; renders it any less prejudicial, and we agree with the observation to that effect by the dissenting justice, who also stated that, "[o]nce the expert has given testimony disabusing the seemingly inconsistent behavioral reaction, the jury has all of the information that it needs to assess the complainant's credibility. The marginal probative value of allowing the expert to further testify with respect to the particular complainant is substantially outweighed by the danger of unfair prejudice that the jury will misuse the testimony. It invades the province of the jury to assess credibility. It invites the jury to give undue weight to testimony that is foundationally and fundamentally unreliable merely because it is cloaked with the expertise of an expert. It also invites the jury to believe that the expert knows more than he is telling, by letting the jurors infer that the expert, who works with sexually abused children every day, must believe this child's story or else the expert would not be testifying." Id. at 391, 537 N.W.2d 857 (Cavanagh, J., dissenting).
Second, other issues arose with respect to whether the complainant was, as she testified at trial, the captain of a color guard team, namely, the Buccaneers. E, who coached the complainant's high school team, testified that the complainant was never named a captain of that team, and did not know whether the complainant had participated in the color guard of the Buccaneers. J testified, however, that the complainant was not the color guard captain of the Buccaneers at the time of the incident, but subsequently became their captain.
"No matter what may be the expertise of a particular witness who states to you an opinion upon fact in the case, that opinion is subject to review by you, the jury. It is in no way binding upon you, the jury. It is for you to consider, along with the other circumstances in the case, and using your best judgment determine whether or not you will give it any weight and, if so, what weight you will give to it. In weighing and considering the testimony of an expert, you should apply to them the same considerations of credibility... that you would apply to other witnesses, such as her appearance and demeanor on the stand, her conduct on the stand, her interest or lack of interest in the outcome of the case, her ability to recall and relate facts to you, and all the other considerations you use in judging the credibility of any witness.
"In deciding the weight to be accorded to the testimony of an expert witness, you should also consider her education, her experience, her ability in the particular field of knowledge, and any other material matters of the sort developed in the course of her testifying in front of you. You should also consider the proof or lack of proof and the completeness or lack of completeness of any facts considered by the expert in forming her opinions or in reaching her conclusions. You should recall the testimony of the expert witness in this case in light of the principles that I have just stated to you.
"Also, where an expert witness has given an opinion based upon what we call a hypothetical question, that is where they are asked to assume certain facts and then give an opinion based on those facts, the value of the opinion depends on the truth and completeness of those facts. You should consider whether those facts were proven or not, and you should consider whether or not her opinions were based on all the relevant facts or whether some relevant facts were omitted."
Justice Zarella also states that "there may be instances when expert testimony expressly linking the complainant's conduct with that of sexual abuse victims may be helpful in understanding the relevance of the expert's opinion. For example, such testimony may be relevant when the complainant has exhibited a wide range of confusing or complex behaviors." Footnote 6 of Justice Zarella's dissenting opinion. This rationale is entirely unpersuasive for several reasons. First, Justice Zarella's statement that "there may be instances" in which expert testimony that specifically refers to the complainant "may be helpful in understanding the relevance of the expert's opinion"; id.; is an acknowledgement that such testimony is not generally relevant but may be relevant on occasion. With respect to how often such a case might present itself, Justice Zarella cites no case from any jurisdiction in which the complainant's behaviors were so "confusing or complex" that it was important for the jury to hear the expert testify with express reference to the complainant. Moreover, in the unlikely event that there was a case of the kind that Justice Zarella hypothesizes, I see no reason why the trial court would be barred from permitting such testimony, accompanied, I suggest, by an instruction advising the jury of the testimony's limited purpose. By contrast, Justice Zarella would adopt a rule broadly permitting expert testimony that expressly refers to the complainant merely to address the extremely rare case in which the jury might actually benefit from such testimony. Simply stated, there is no logical justification for such a rule; the only sound approach is to bar the testimony generally, allowing for the possibility that it may be admissible in the exceptional case. Finally, the present case most certainly is not that exceptional case, for there is nothing about the complainant's behavior that even arguably could be characterized as "confusing or complex" such that Melillo's testimony expressly linking the complainant's conduct to that of known child victims of sexual abuse was necessary to aid the jury in comprehending the relevance of Melillo's expert opinion.
Justice Palmer, in a separate dissent, agrees with the majority's conclusion that the admission of the testimony at issue in this case was improper but for different reasons. In his dissent, Justice Palmer rejects the majority's application of State v. Iban C., 275 Conn. 624, 635-36, 881 A.2d 1005 (2005), and State v. Grenier, 257 Conn. 797, 806, 778 A.2d 159 (2001), because, according to Justice Palmer, those cases addressed the issue of whether an expert could indirectly vouch for the credibility of an alleged sexual abuse victim, which is an issue that is not implicated by the testimony in the present case. Nevertheless, rather than follow, as I do, the rationale espoused by a majority of jurisdictions allowing the type of testimony at issue in this case, Justice Palmer reasons that such testimony should be barred because the jury might improperly consider it as proof of the alleged victim's claim instead of properly considering it for rehabilitative purposes. Justice Palmer provides no authority for this proposition, nor am I aware of any. For the reasons set forth in this opinion, I reject this rationale and instead follow the rationale espoused by a majority of jurisdictions that allow such expert testimony.
I note that the majority views this distinction as nothing more than a distinction between indirect and direct vouching for a witness' credibility. See footnote 30 of the majority opinion. The majority reasons that, in State v. Grenier, supra, 257 Conn. at 805-806, 778 A.2d 159, this court held that an expert witness may not directly or indirectly vouch for a witness' credibility. The indirect vouching at issue in Grenier, however, concerned experts who testified that they had treated the alleged victim for sexual abuse. See id. at 802-804, 778 A.2d 159. Although those statements may constitute indirect vouching, testimony that merely connects general behavioral traits of sexual abuse victims with those exhibited by an alleged victim does not.
