Experts May Not Testify to Opinions Based Solely on Witness Accounts

Filed under: Sex Crimes by Contributor @ October 19, 2017

In the summer of 2005, Kenneth Maconeghy Jr. allegedly raped and sexually abused an 11 year girl who he cared for while her mother was at work. Maconeghy was accused of repeatedly sexually assaulting the child while supervising her. The victim alleged that Maconeghy purposefully removed her siblings from the situation to isolate her and coerce her to engage in sexual acts. At the time, the victim claimed that she was wholly unaware that the behavior was “abnormal,” but later began to understand the severity of the situation. The alleged victim reported the incidents involving Maconeghy to authorities in 2011 and an investigation began. As part of the investigation, the girl participated in a forensic interview with a certified forensic interviewer. The interview consisted of details of abuse and was witnessed by two individuals including Dr. Novinger, the consulting pediatrician. Shortly thereafter, Dr. Novinger performed a forensic medical examination and determined that the child was sexually abused.

Kenneth Maconeghy , Jr.

Consequently, Maconeghy was arrested and charged with an extensive list of sex-related crimes, including: rape of a child, corruption of minors, endangering the welfare of a child, statutory sexual assault, and aggravated and indecent assault of a person less than 13 years of age, among other charges.

At trial, the Commonwealth offered the expert testimony of Dr. Novinger. The testimony elicited focused on Dr. Novinger’s 37 year professional and medical experience as a pediatrician and his role in evaluating and treating child sex abuse victims. He indicated that he believed he had evaluated and treated between 500 and 1000 children for signs of abuse. Dr. Novinger testified that part of his process in examining victims included a physical examination and that in the present case no physical evidence of abuse was found. Although Dr. Novinger asserted that these findings neither corroborated nor disputed the charges brought by the Commonwealth, on cross-examination Maconeghy’s counsel emphasized that the lack of physical findings alone did not support that the child had been assaulted or that Maconaghy had been the assailant involved. Notably, throughout Dr. Novinger’s testimony, he remained consistent in his finding that the child was sexually assaulted and abused. Dr. Novinger also stated that it is “unlikely” to find evidence of abuse after 72 hours of the assault and in those circumstances the fact of abuse typically is determined by “history only”. He further elaborated that the history in the case of Maconeghy’s victim strongly indicated and substantiated the abuse.

Maconeghy was convicted and appealed to the Pennsylvania Supreme Court. Maconeghy contended that Dr. Novinger’s testimony served as an indication to the jury that the victim’s version of the facts was correct because his medical conclusion was not based on physical findings, and was instead based upon the victim’s accounts to him.

The Supreme Court found that expert testimony that is elicited to prove that a child has been sexually abused or assaulted may not be based upon witness accounts rather than physical findings. Essentially, the Court found that an expert witness may not offer opinions , such as Dr. Novinger’s, of whether or not an individual was a victim of sexual that are based on witness accounts and statements alone. The Supreme Court explained that this type of testimony, which some jurors may view as support or proof of the victim’s credibility or truthfulness by a medical expert, would impact a jury’s ability to fairly determine the case at hand. The Court was especially concerned that expert testimony of this kind would be used to bolster and/or validate the credibility of another witness. Questions of the validity or truthfulness of a witness’ or victim’s statement are to be left up to the trier of fact. Thus, in an effort to prevent any hindrance of a jury’s ability to complete this important task, the Court found this type of testimony is inadmissible.

So the question now becomes- does this new ruling by the Pennsylvania Supreme Court limiting certain expert testimony to physical findings alone make it harder to convict sex offenders? Please share your thoughts below.

To view this case- Commonwealth v. Maconeghy, No. 81 MAP 2016 (October 18, 2017), visit:

Leave a Reply

Required fields are marked *

Or contact me privately:

(215) 997-1000