A new Pennsylvania law, 42 Pa.C.S. § 5920, took effect this past August. This new statute allows the prosecution (or defense) in a sexual abuse case to call an expert witness to testify about typical victim behavior. The prosecution might want to call an expert to explain why the complainant in a case waited months or years to report sexual abuse. The expert would testify, in so many words, that this delay is typical behavior. This type of testimony bolsters the complainant’s credibility and essentially takes away the jury’s job of determining credibility. Even though the law says that an expert may not opine on whether or not the victim is truthful, this type of expert testimony would be used to prove that the complainant is truthful.
As a response, PACDL (Pennsylvania Association of Criminal Defense Lawyers) created a taskforce to come up with a litigation strategy for defense attorneys. On September 20, the taskforce released two memoranda and a motion to assist attorneys. In its arguments, the taskforce cited three main reasons for why the statute should not be included in the rules of criminal procedure:
- Rules of evidence must be issued by the Pennsylvania Supreme Court. The concept of “separation of powers” comes into play here, since the legislature is not allowed to create law relating to rules of evidence.
- The Frye standard precludes expert testimony that is not accepted science. Victim behavior is inherently difficult to explain with any degree of certainty, and calling it a “science” is wholly inaccurate. To pass the Frye test, the testimony must be “generally accepted” by the relevant scientific community.
- In the case of child sexual abuse victims, there is little to no consistency in their behavior. Since children are still developing and their behavior is largely unpredictable, it is impossible to discern “normal” behavior of a sexual abuse victim from merely “abnormal” behavior of a child who was not abused.
The taskforce has also drafted a motion to be used to apply for funds for defense experts, and will soon be drafting motions for discovery. The funds would allocate money for the defense to use in the preparation of the case and possibly to obtain a defense expert. The motion for discovery would compel the prosecution expert to divulge what research or articles he is getting his information from.
42 Pa.C.S. § 5920 can be viewed online here.
Please contact the Criminal Defense Lawyers of Fairlie & Lippy, P.C. if you have any questions about this important new rule permitting expert testimony pertaining to Pennsylvania Sex Crimes.