Tuesday, November 18, 2003

4th Circuit Upholds Exclusion of Psych Testimony re Child Molestation

In an unpublished opinion, the Fourth Circuit has upheld the exclusion of testimony from an FBI forensic psychologist, to the effect that child molesters commonly begin with innocuous behavior designed to gain the child's trust and later escalate to borderline behavior designed to test the child's receptivity. The decision was rendered in an interlocutory criminal appeal, in a case where a Junior ROTC instructor allegedly made sexual advances toward teenage girls in the JROTC program. See United States v. Fitzgerald, No. 02-4978 (4th Cir. Nov. 17, 2003) (Michael, Traxler, & King, JJ.).

The testimony in the Fitzgerald case bears more than a passing resemblance to law enforcement testimony concerning the modus operandi of drug dealers, which is routinely admitted, commonly after only the most cursory review. It is therefore worth evaluating whether the Fourth Circuit adduces convincing reasons for treating testimony about the modus operandi of child molesters any differently.

Like the trial court, the Fourth Circuit panel rested exclusion on two grounds: unreliability, and unhelpfulness to the trier of fact.

In its discussion of helpfulness to the trier of fact, the panel explicitly distinguished expert testimony about the general conduct of narcotics trafficking, on the ground that the customs and usages of drug dealing are not within the common knowledge of the average juror, whereas strategies for child molestation apparently are.

Not wishing, perhaps, to rest solely on that potentially controversial claim, the Fourth Circuit also undertook a reliability analysis, in which the psychologist's testimony was marched, rather mechanically, through the so-called "Daubert factors." Here are the reasons why the psychologist's testimony failed to clear the hurdles: (1) the expert did not specify how the propositions to which he testified had been tested or how such testing supported them; (2) no record evidence established that the expert's published work had been peer-reviewed; (3) the expert documented no error rate; (4)although the expert claimed that the studies he cited relied on "standards and controls appropriate for and approved for scientifically valid psychological studies," he did not say what those standards are or whether he abided by them; and (5) the expert's claim that his theories are generally accepted was insufficiently documented.

It seems unlikely that the usual testimony from law enforcement personnel about the modus operandi of narcotics dealers would fare any better, if comparable standards were applied. But of course the panel's decision is unpublished, and so it won't supply binding precedent for such cases.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.