Opposition to DA’s Motion for Order Allowing Use of Expert Testimony

Opposition to District Attorney’s Motion for Order Allowing Use of Expert Testimony on the Subject of Child Abuse Trauma (by Sanger) Excerpts: (pg 2-3) The prosecution asks this Court to allow _____________ and _______________ to testify. [7 lines of redacted info] Mr. Jackson submits that this testimony should not be allowed into evidence because the prosecution has not met its burden of demonstrating that the so-called misconceptions are actually misconceptions, and that, if they are commonly held misconceptions, that the proffered testimony will assist the jury. Moreover, the proffered testimony is not supported by an adequate foundation of fact in this case. The stories of the complaining witness, and his family, are less than credible, not because the jurors need to be educated about child abuse, but because the stories are false. The prosecution is not seeking to introduce the expert testimony to educate the jury about child abuse. Instead, the prosecution is seeking to ask the jurors to suppress their common sense reactions to hearing incredible evidence. (pg 4) The prosecution seeks in introduce testimony that will allow the prosecution to argue, either explicitly or implicitly, that there is a profile for sexually abused children and for child abusers and that the complaining witness and Mr. Jackson fit those profiles, respectively. This testimony is not admissible. As the prosecution conceded in the motion, the experts are not allowed to testify, based on interviews with the complaining witnesses or information provided by the prosecution, that a particular complaining witness is credible or that he or she is in fact has been molested. (Motion, page 9.) It is also error, however, to allow “general” expert testimony “describing the components of the syndrome in such a way as to allow the jury to apply the syndrome to the facts of the case and conclude the child was sexually abused.” (People v Bowker (1988) 203 Cal. App.3d 385, 393.) (pg 6) Here, the prosecution is seeking to introduce the type of expert testimony that was found to be impermissible by People v Robbie. As was the case in Robbie, the prosecution intends to introduce expert testimony, not to address commonly held misconceptions by explaining that “there is no ‘typical sex offender,’ but to instead present the jury with “another image an offender whose behavioral pattern exactly matched the defendant’s” (People v Robbie, supra, 92 Cal. App. 4th 1075, 1087.) This type of testimony is inadmissible. (pg 7) The evidence in this case is not confusing. There are inconsistencies in the stories of the complaining witness and his family, but those inconsistencies are not based on misconceptions. Under the prosecution’s theory of the admissibility of Child Sexual Abuse Accommodation Syndrome (CSAAS) testimony, the prosecution is allowed to introduce more CSAAS expert testimony in a case where on its face, the testimony of the complaining witness is less credible. This is true, because, based on the prosecution’s argument, the more a jury would believe that the complaining witness is a liar, based on common sense, the more it is necessary to rehabilitate his testimony with the testimony of experts. (pg 7) If the prosecution cannot establish specific facts, the expert is doing nothing more than telling the jury that the alleged victims ought to be believed no matter what they say. That is not evidence. That is argument. The Court should hold hearings, outside the presence of the jury, to determine if the so-called misconceptions suggested by the prosecution are actually present, based on the evidence at trial, and to determine if the testimony of _________ and ________ will actually assist the jurors in doing their job. :nav Opposition to DA’s Motion for Order Allowing Use of Expert Testimony