Counsel's Failure to Raise Improper Expert Testimony Issue on Appeal Earns Defendant New Trial

May 19, 2014
By Parker Scheer LLP on May 19, 2014 12:05 PM |

Last week, the Massachusetts Appeals Court reversed the defendant's conviction in a sexual abuse case, based upon the improper expert testimony offered by the Commonwealth at trial, and the defendant's appellate lawyer's failure to raise that issue on the original appeal of the conviction.

In Commonwealth v. Aspen, the defendant was convicted of one count of rape of a child under sixteen, six counts of rape, two counts of indecent assault and battery, and one count of assault and battery, all in relation to accusations of sexual abuse made by the defendant's stepdaughter. At trial, over the objection of the defendant's trial attorney, the court permitted an expert witness to testify about general behavioral characteristics of sexually abused children in a manner that could have improperly suggested to the jury that the stepdaughter's testimony was credible.

With the assistance of new counsel, the defendant appealed his conviction. His appellate lawyer, however, only raised arguments as to the jury selection process and the admission of fresh complaint evidence. He did not pursue the issue of the expert witness's testimony because he did not believe it would be successful. The defendant's convictions were affirmed.

The defendant then moved for a new trial, claiming, among other things, that his appellate attorney was ineffective in failing to pursue the expert testimony issue on appeal. The lower court denied that motion, but the Appeals Court reversed.

As the Appeals Court noted, expert testimony as to the general behavioral characteristics of sexually abused children must "be confined to a description of the general or typical characteristics shared by child victims of sexual abuse." However, "witnesses may not offer their opinions regarding the credibility of another witness" because only a jury may make credibility evaluations. Thus, testimony that "explicitly links [the expert witness's] opinion to the experience of the child" or that "constitutes impermissible vouching" is not admissible at trial.

The defendant argued that the Commonwealth and its expert witness had "cherry-picked" characteristics of child victims of sexual abuse that were similar to those that the stepdaughter experienced, leaving out other relevant characteristics that did not apply to her. In doing so, the defendant argued, the expert tailored the characteristics to fit the evidence in the case. The Appeals Court agreed, and further observed that the expert's testimony also impermissibly expanded into profile testimony relative to "intrafamily sexual abuse" that mirrored the stepdaughter's family makeup and dynamic. Additionally, the expert's testimony about the general characteristics of disclosure, using factors that resembled the stepdaughter's testimony, "essentially signaled to the jury that the [stepdaughter's] testimony was credible." Accordingly, although the expert's testimony did not directly vouch for the stepdaughter's credibility, or expressly connect her claim of sexual abuse to the defendant, the court held that the testimony served the functional equivalent.

The court further determined that, had the defendant's appellate attorney raised this issue on appeal, it may have resulted in a reversal of the defendant's conviction, or an order for a new trial. And, because the lack of physical evidence meant that the defendant's guilt turned on witness credibility - the very issue affected by the expert's inappropriate testimony - admitting the expert's testimony constituted reversible error, and the appellate attorney's failure to raise that argument on appeal was in fact ineffective assistance of counsel. As a result, the Appeals Court ordered that the defendant's conviction be reversed, and that he be granted a new trial.