STATE’S PERSPECTIVE ON THE USE OF PSYCHOLOGY EXPERTS IN JUVENILE SEX OFFENDER CASES

1. STATE’S PERSPECTIVEON THE USE OFPSYCHOLOGY EXPERTSIN JUVENILE SEX OFFENDER CASES Jill Mata, A.D.A. Bexar County District Attorney’s Office San Antonio, Texas

2. Challenge for the State! • Offenses are Disturbing • Strong Community Response • Official Policy • Cases are often difficult to prove and factually weak • Duty to the victim, community and “best interest of the child” standard

3. Psychologists who Treat Sexual Offenders • Therapists who treat JSO are different than clinicians in other practice areas. • JSOTP are governed by standards of conduct in Texas Administrative Code Title 22, Part 36, Ch. 810. Read them ! • Recognize a common goal: to facilitate positive change in offender and prevent future sex offenses.

4. Psychologists who treat Victims of Sexual Offenses • Expert does not have to be a psychologist as long as qualified (eg. CAC doctor). • May be only evidence to corroborate the victim’s testimony. • The value of the validating testimony relies on the qualifications of the expert.

5. Practical Psychological Considerations • Creating Plea Agreements • Consider risk assessments. • Recognize that expert usually does not recommend TYC. • Recognize lengths of treatment. • Other Psychological Factors to Consider • Families who support disclosure and therapy are better risks. • How capable is your victim in trial?

6. Discovery • File a motion for defense to disclose expert. TCCP 39.14 (b) • Discovering the id of the defense expert may help ascertain strategy • Research experts • Colleagues • Internet • TDCAA or APRI websites

7. Article 39.14. TCCP (b). On motion of a party and on notice to the other parties, the court in which an action is pending may order one or more of the other parties to disclose to the party making the motion the name and address of each person the other party may use at trial to present evidence under Rules 702,703, and 705, TRE. The court shall specify in the order the time and manner in which the other party must make the disclosure to the moving party, but in specifying the time in which the other party shall make disclosure the court shall require the other party to make the disclosure not later than the 20th day before the date the trial begins.

8. Limits on Discovery • Cannot contact expert unless defense consents. • Texas Disciplinary Rule 4.02 (b) states: In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

9. However… • If the Respondent was seeing a sex offender therapist or other therapist before investigation began, you may be able to call them as a fact witness. • It may be permissible to contact the therapist. • You may be able to subpoena testing results and records.

10. Reminders • File Motion at least 30 days before trial date. • Obtain a ruling from the court. • Send a reminder to R’s attorney. • Expert testimony will not be excluded unless you can show failure to comply was willful or deliberate disregard.

11. Exception • The defense must only reveal expert they plan to call as a witness • Not experts hired solely for consultation and trial preparation • Remember to comply with defense requests to id state’s expert • Declare Experts on your general witness list as well

12. When would State call Psychologist regarding Victim? • During adjudication phase to discuss psychological symptoms associated with abuse. • Child abuse victim expert may testify that a particular pattern of disclosure is consistent with other victims. • Expert may establish need for testimony via close circuit TV.

13. State call psychologist regarding Victim/cont. • As rebuttal to a defense claim that victim is lying or incompetent. • i.e. Prior consistent statement by victim. • May use witness as expert with hypothetical or use expert as fact witness.

14. Overcoming Bolstering • Psych testimony supporting victims traditionally viewed as bolstering. • The rule has been relaxed under Vasquez V. State, 975 S.W. 2nd 415, (Tex. App.-Austin 1998, pet. ref’d). • Expert can testify that symptoms are consistent with sexual abuse.

15. Vasquez v. State • Expert testimony that a child exhibits behavioral characteristics that have been empirically shown to be common among children who have been sexually abused is relevant and admissible as substantive evidence under rule 702. • Expert must survive the gatekeeper hearing.

16. Know Your Limits! • General testimony that directly supports credibility is inadmissible unless in rebuttal to attacks on credibility. • And then, only “so long as there is a loose fit between the rebuttal testimony and the predicate attacks on credibility.” Schutz v. State, 957 S.W. 2nd 52 (Tex. Crim. App. 1997)

17. Credibility Testimony • Can’t ask, “Did you believe the complainant when she told you about the abuse?” • Both attacking and supporting testimony are only admissible as rebuttal. • In reality, both sides either intentionally or mistakenly fail to object to inadmissible evidence frequently.

18. Young or Impaired Victims • Schutz allows that: • Testimony in general about the ability of a class of persons recognized by society as being impaired, such as young children or the mentally impaired, to distinguish reality from fantasy and to perceive, remember, and relate the kinds of events at issue in the case is admissible in the offering party’s case in chief.

19. Young Children continued • Young children are not defined but likely under 6 or 7 years of age. • State can call a psychology expert to discuss the ability of young children to distinguish reality from fantasy and to perceive, remember and relate the kinds of events at issue in the case… • But not their tendency to do so.

20. Impaired Victims • The same approach can be used to support the testimony of a victim impaired in other ways. • You must define your “class of person recognized by society as being impaired.” • Choose the right expert to describe the ability of a person with the impairment.

21. When would State call psychologist to testify regarding Respondent? • In cases where the offender has been engaged in therapy and is now denying offense you may call expert as fact witness. • May call expert in dispo to testify about risk to community or probation issues.

22. When would Defense call psychologist to testify about Victim? • Defense will call expert to either directly or indirectly undermine the victim’s credibility. • Just as state cannot bolster victim; defense cannot improperly attack victim’s credibility with expert.

23. When would Defense call a psychologist to testify regarding Respondent? • Defense might call psychologist in adjudication to state that R does not fit the profile of sex offender. • This is improper! • Psych can only be deemed expert in SOT if they are a Registered provider (RSOTP). • If they violate this condition=Class C offense • Ethics do not allow for a sex offender profile.

24. Defense Expert in Dispo • Sometimes defense will call psychologist in dispo to state R does not pose risk to community. • Code of ethics state it is unethical to state an individual is not at risk to re-offend sexually. • Title 22,TAC Chapter 810.62 (b)(2) • Title 22, TAC Chapter 810.64 (d) (14)

25. Cross X of Defense Expert • Question the expert’s sources of information. • What did they read? • Who did they talk to? • Did they actually speak to the R? • What tests or evaluations were used?

26. Admitting the Psychologist's Testimony • The admission of all expert testimony is governed by Texas Rule of Evidence 702. • Rule 702. Testimony by Experts 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.

27. Admitting Expert Testimony • The threshold determination for the trial court…is whether the testimony will help the trier of fact understand the evidence or determine a fact in issue. Duckett v. State, 797 S.W. 2nd 906 (Tex. Crim. App. 1990) • For a scientific topic unfamiliar to lay jurors, the court’s 1st task is to determine whether the testimony is sufficiently reliable and relevant to help the jury in reaching accurate results. Kelly v. State, 824 S.W. 2nd 568 (Tex. Crim. App. 1992)

28. Kelly v. State cont. • Once the trial judge determines that the proffered expert testimony is reliable and relevant, she must still decide whether the probative value of the testimony is outweighed by one or more of the factors identified in Rule 403. • The proponent of the expert testimony must persuade the trial court outside the presence of the jury by clear and convincing evidence. • Standard of review is abuse of discretion.

29. Kelly 3-Prong Test forHard Science 1. The underlying scientific theory must be valid; 2. The technique applying the theory must be valid; and 3. The technique must have been properly applied on the occasion in question.

30. Soft Science • Methods of proving reliability will vary, depending on the area of expertise. • Psychology, as a social science is categorized for admission purposes as a “soft science.” • Admission requirement of reliability is less strict than for “hard science.” • Appropriate questions are set out in Nenno v. State, 970 S.W.2nd 549 (Tex. Crim. App. 1998).

31. Nenno v. State • Whether the field of expertise is a legitimate one; • Whether the subject matter of the expert’s testimony is within the scope of that field; and • Whether the expert’s testimony properly relies upon and /or utilizes the principles involved in the field.

32. Determining Reliability • In determining reliability the court can consider, among other things: • The qualifications of the expert testifying. • The existence of other experts to test and evaluate the technique in question. • The experience and skill of the person who applied the technique on the occasion in question.

33. Gatekeeper Hearing • Rule 705(b). Texas Rules of Evidence Voir dire. Prior to the expert giving the expert’s opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.

34. The hearing is mandatory in criminal cases. • This is the only way to pre-test the qualifications of an expert. • Important discovery tool as well. • Consider having your own expert present in courtroom to hear testimony.

35. Excuse Witness from the Rule • Rule 614. Texas Rules of Evidence. Exclusion of a Witness. • Must convince the court that the presence of the expert witness in the courtroom is essential to the presentation of your case. • Have the court make a finding on the record at time of excusal to avoid error.

36. Lay Witness Opinion • Rule 701 Opinion Testimony by a lay Witness. TRE • If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

37. Conclusion • Plan a strategy that anticipates the introduction of victim credibility testimony. • File discovery motion for experts. • Research your experts. • Read the TDCAA publication: Investigation & Prosecution of Child Sexual Abuse, 2nd Ed. • Be Creative!

38. Sources & References • Investigation & Prosecution of Child Sexual Abuse, 2nd Ed., TDCAA pub. • The Differences between Forensic Interviews and Clinical Interviews, March 2000, The Center on Child Abuse and Neglect, The University of Oklahoma Health Sciences Center, Grant Number 97-VI-GX-0002, USDOJ • Prosecutor Trial Notebook, 2006-2008 ed., TDCAA pub.

39. Tables of Cases • Kelly v. State, 824 S.W. 2nd 568 (Tex. Crim. App. 1990) • Nenno v. State, 970 S.W. 2nd 549 (Tex. Crim App. 1998) • Schutz v. State, 957 S.W. 2nd 52 (Tex. Crim. App. 1997) • Vasquez v. State, 975 S.W. 2nd 415, (Tex. App.-Austin 1998, pet. ref’d)