Appendix 12 Expert Witness

How an Expert Can Help You Prove Your Case And Support the Complaining Witness

You Can Use an Expert to Help Explain: 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) 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) 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 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 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 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 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!