Opinion
SCWC-22-0000267
06-05-2024
STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Zeth BROWDER, Petitioner/Defendant-Appellant.
Walter J. Rodby, Honolulu, for petitioner Stephen K. Tsushima, Honolulu, for respondent
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-22-0000267; CASE NO. 3CPC-19-0000486)
Walter J. Rodby, Honolulu, for petitioner
Stephen K. Tsushima, Honolulu, for respondent
McKENNA, EDDINS, AND DEVENS, JJ.; AND GINOZA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY EDDINS, J.
I.
During closing argument in this sexual assault case, the prosecution told the jury that its decision "comes to one question. Is [complaining witness] believable?" Then, while discussing the court’s credibility instruction, the prosecution explained that the witness’ testimony "is consistent with someone who’s been traumatized."
Recently we vacated a conviction in a sexual assault case after the prosecution during closing argument told the jury that its decision "comes down to one question, is [complaining witness] believable?" Then, while discussing the court’s credibility instruction explained that the witness’ testimony "is consistent with a child who is traumatized." State v. Hirata, 152 Hawai‘i 27, 29, 520 P.3d 225, 227 (2022). This court held that the "traumatized" statement was prosecutorial misconduct that eroded the defendant’s constitutional right to a fair trial. Id. at 33, 520 P.3d at 231.
In the present case, the Intermediate Court of Appeals validated the prosecutor’s remarks. We do not.
The prosecuting attorney crossed the line in Hirata. Here too. The remarks constituted prosecutorial misconduct.
We hold that the prosecuting attorney expressed a personal belief about the witness’ credibility and added new evidence during closing argument, thereby undermining the defendant’s right to a fair trial.
II.
The State alleges that Zeth Browder sexually assaulted the complaining witness (CW) (an identifier commonly used in Hawai‘i’s trial courts), an elderly woman, while she was camping in her tent in a county park.
The State charged Browder by indictment. It alleged he committed first degree sexual assault, Hawai‘i Revised Statutes (HRS) § 707-730(1)(a) (2014), third degree sexual assault, HRS § 707-732(1)(f) (2014), first degree burglary, HRS § 708-810(1)(c) (2014), kidnapping, HRS § 707-720(1)(e) (2014), and evidence tampering, HRS § 710-1076(1)(a) (2014).
Third Circuit Court Judge Robert Kim presided over Browder’s trial. The trial occurred two years after Chanse Hirata’s continuous sexual assault of a minor trial, and one year before this court’s Hirata opinion.
The same deputy prosecuting attorney tried both cases.
The jury found Browder guilty of all charges.
Browder appealed. He raised multiple points of error.
The ICA vacated Browder’s conviction and ordered a new trial based on other comments the prosecutor made during closing argument. The State didn’t appeal the ICA’s decision on those comments. Nor did it appeal the ICA’s conclusion that those comments may have affected the trial’s outcome and therefore Browder should be retried.
The ICA rendered a split decision on the prosecutor’s "consistent with someone who’s been traumatized" comment. The majority held that the statement was not misconduct. Judge Leonard disagreed, saying the remark mirrored the one this court found improper in Hirata. Browder appealed on this issue. We accepted cert to examine the ICA majority’s view that the prosecutor’s "traumatized" comment was permissible.
Thus, the only issue before us is whether the prosecutor’s "consistent with someone who’s been traumatized" comment was prosecutorial misconduct. So we limit our recitation of the facts.
Browder’s case went to trial in late 2021. The State called several witnesses who interacted with the woman after the alleged crime: the first person she reported the assault to, two responding police officers, two detectives, and a nurse who performed a sexual assault examination. Each witness described the woman as distressed, using words like "scared," "crying," "very emotional," and "shooken up" to describe her demeanor.
The CW testified. The defense’s cross-examination aimed to highlight purported inconsistencies in her prior statements.
Before the closing arguments, the court read the standard instruction about witness credibility. See Hawai‘i Standard Jury Instructions Criminal 3.09.
The prosecutor’s closing referenced the credibility factors in the jury instruction. She described the GW’s testimony as "emotional," "crying," and "scared." Then, like in Hirata, the prosecutor declared that the GW’s manner of testifying was "consistent with" a "traumatized" person.
The complaining witness in Browder’s case is an elderly woman. In Hirata, the complaining witness was a child. That difference is inconsequential.
Browder’s case and Hirata have four key similarities. First, the prosecution told the jurors that the case turned on credibility. Hirata, 152 Hawai‘i at 29, 520 P.3d at 227. Second, witnesses testified that the child and elderly woman were highly emotional during post-assault interactions. Third, the child and elderly woman testified in highly emotional ways. Id. Fourth, the prosecutor’s closing arguments described the complaining witness’ testimony as "consistent with" a traumatized person.
Here is what the prosecutor said in both cases:
| Hirata, 152 Hawai‘i at 29, 520 P.3d at 227: | This case (emphasis added): |
|---|---|
| …. And it also comes down to one question, is [CW] believable? | …. [U]ltimately this case comes to one question. Is [CW] believable? |
| Now, the Court gave you the jury instructions that you all have in front of you, and on page 8, there are a list of factors that you can consider when you deliberate to determine if a witness is credible. So you look at their demeanor, their candor, lack of motive, and if what they say makes sense.So when you look at the factors - and I'll go through them with you, ladies and gentlemen - the answer is clear to this question. Yes, [CW] is believable. And because [CW] is believable, it’s - it is the testimony that has a convincing force upon you that counts, and the testimony of even a single witness, if believed, can be sufficient to prove a fact.So let’s go through the factors of [CW]’s credibility. Her appearance, demeanor, her manner of testifying. She came here last week. You saw her. She’s 11 years old. She was nervous and understandably so. And she tried to be brave up there on the stand. She answered all of my questions. She answered all of the defense attorney’s questions. Almost three hours up there.And then at the end of almost those three hours, she couldn't be brave anymore, and you saw her when she got emotional. She broke when the defense attorney continued to call - to question her credibility and if she was making this up, and her answer to you was this really happened. It’s consistent with a child who is traumatized. | Now, [the Circuit Court] just read you a number of jury instructions, and on page 9 you’ll find a number of credibility factors that you can use to determine the credibility of witnesses.I’m not gonna reread everything again for you, but when you look at some of them like her demeanor, her candor, her lack of motive and is [sic] what she says makes sense, then the State submits that, yes, the answer to this question is that [CW] is believable. And because [CW] is believable as stated on page 11 of your jury instructions, the testimony of even a single witness if believed is sufficient to prove a fact.So now let's look a little bit closer at the credibility factors and the evidence that you heard over the last week.So looking at [CW]’s appearance, demeanor, manner of testifying you saw her and you got to meet her over the course of two days of questioning.She’s 80 years old. She was nervous, shaking on the witness stand. She was emotional and crying. She was scared. She told you she was scared that morning. She was scared at the hospital. She was scared even a week and a half later, and she was still scared in court. This is consistent with someone who's been traumatized. |
The ICA’s majority (and the dissent) believe the summations meaningfully differ, making the appellate outcomes differ. We held in Hirata that the "consistent with a child who is traumatized" remark improperly expressed the prosecutor’s personal belief and improperly introduced new evidence during closing argument. Hirata, 152 Hawai‘i at 33, 520 P.3d at 231. The ICA views Browder’s case as different. It said, "the prosecutor’s argument … was not based on the prosecutor’s own evaluation and opinion of CWs reaction to being cross-examined, as in Hirata, but was supported by reference to the evidence or facts supporting the assertion" (cleaned up).
The ICA felt the prosecutor did not express a personal opinion related to the witness’ credibility. Rather, telling the jury that the complainant testified consistent-with-a-traumatized-person was just an evidence-rooted inference. The ICA referenced several witnesses who described the woman as "crying," "scared," "sad," and "very shaky." In the ICA majority’s view, that evidence of post-assault emotion flips the outcome.
Judge Leonard doesn’t see the difference. Like we do here, her concurrence split-screens passages from the closing argu- ments, placing the closings side-by-side. She reasoned that Hirata "is indistinguishable from this case with respect to the prosecutor’s statement to the jury that the complaining witness’s … appearance, demeanor, and manner of testifying was consistent with someone who’s been traumatized." To Judge Leonard, "[t]he rule of law applied to the prosecutor in Hirata is equally applicable to her in this case."
It is. We hold that the prosecuting attorney’s consistent-with-someone-who’s-been-traumatized remark expressed a personal belief about the credibility of the State’s key witness and undermined Browder’s right to a fair trial. The remark also resulted in a constitutionally unfair trial because prosecutors "are also forbidden from introducing new information or evidence in closing argument." Hirata, 152 Hawai‘i at 33, 520 P.3d at 231.
III.
A. State v. Hirata
Hirata held that a near-identical "consistent with someone who’s been traumatized" remark was prosecutorial misconduct. 152 Hawai‘i at 33, 520 P.3d at 231. Hirata gave two independent reasons.
[1] First, a prosecuting attorney’s personal views about the evidence are out-of-bounds. "[T]his court has often directed prosecutors to not express personal beliefs about the evidence." Id. See also State v. Salavea, 147 Hawai‘i 564, 582, 465 P.3d 1011, 1029 (2020) (prosecutors must "refrain from expressing their personal views as to a defendant’s guilt or the credibility of witnesses"). A prosecutor’s assertions of personal knowledge "are apt to carry much weight against the accused when they should properly carry none." State v. Clark, 83 Hawai‘i 289, 304, 926 P.2d 194, 209 (1996).
[2] Second, prosecutors "are also forbidden from introducing new information or evidence in closing argument." Hirata, 152 Hawai‘i at 33, 520 P.3d at 231 (emphasis added); see also State v. Basham, 132 Hawai‘i 97, 113, 319 P.3d 1105, 1121 (2014) ("Closing arguments are not the place to introduce new evidence outside the safeguards of the Hawai‘i Rules of Evidence.").
Hirata drew on this court’s decisions in Salavea and Basham, which in turn relied on the American Bar Association (ABA) Standards for Criminal Justice. Salavea, 147 Hawai‘i at 582 n.23, 465 P.3d at 1029 n.23; Basham, 132 Hawai‘i at 114-15, 319 P.3d at 1122-23. The ABA Standards state that arguing from personal belief and adding new evidence are separate reasons to find misconduct. "The prosecutor should not argue in terms of counsel’s personal opinion, and should not imply special or secret knowledge of the truth or of witness credibility." ABA Standard 3-6.8(b) (emphasis added). When prosecutors imply secret knowledge, they imply extra facts not in evidence.
[3] Hirata held that a prosecutor’s remark is improper if it expresses a personal belief about a witness’ credibility or introduces new evidence, not just when it expresses a personal belief about credibility and introduces new evidence. The prosecuting attorney in Hirata "improperly expressed her personal belief about GW’s credibility and injected new evidence," Hirata, 152 Hawai‘i at 33, 520 P.3d at 231 (emphasis added). Both reasons were independent grounds to find prosecutorial misconduct. Contrary to the dissent and ICA, a prosecutor’s improper personal belief is not cured because it was supported by evidence. See id. at 35, 520 P.3d at 233 ("[A] statement may improperly imply a personal opinion even if specific facts or evidence are invoked.") (cleaned up).
[4] Witness observations about an alleged victim’s emotional state do not justify a prosecutor’s suggestion to the jury that the victim testified truthfully because she was "traumatized." They did not in Hirata. And they do not here. The Hirata jury heard from the CW, the person who the CW first disclosed the sexual abuse to (the child’s mother), a police officer, a detective, a doctor, and an expert on the dynamics of child sexual abuse. Hirata, 152 Hawai‘i at 29, 520 P.3d at 227. The witnesses described the child in post-assault interactions as "scared" and "crying." That evidence was available to the jury in Hirata. Still Hirata concluded that the prosecutor’s comment was misconduct. B. Browder’s Case
Hirata held that the "consistent with" a "traumatized" person remark was improper for both reasons - improper personal opinion and new evidence during closing. 152 Hawai‘i at 33, 520 P.3d at 231.
[5] There’s no difference in Browder’s case. Hirata controls.
In both cases, the jury listened as the DPA claimed that the alleged victim testified "consistent with someone who’s been traumatized." But, as in Hirata, the jury heard no evidence that could legitimately support the prosecutor’s claim that the CW testified consistent with a traumatized person. Id.
Like Hirata, there was no evidence about post-assault "trauma" or evidence regarding the condition or state of being "traumatized." Id. There was extensive evidence about the witness’ demeanor, her distraught emotional state. But there was nothing to establish "trauma" as a concept or to diagnose the witness with being traumatized. Nor was there foundation for the idea that the CW remained "traumatized" when she testified two and a half years after the alleged sexual assault. There was also no evidence about how a traumatized person may or may not testify or act while testifying. See id. at 33 n.14, 520 P.3d at 231 n.14.
Hirata had an expert who testified generally about the dynamics of child sexual abuse, but did not opine specifically on how traumatized children testify in court or on that case’s individual child. Id. The Hirata jury could apply the expert’s general testimony to the evidence it heard.
Here, there was less for the jury to consider, because there was no expert. This jury lacked any expert psychological testimony to go on. This jury could only rely on its own preexisting ideas of what "trauma" is and what effects, psychological or otherwise, it has on someone who has been "traumatized." Thus, the prosecutor’s comment had less support in this case than it did in Hirata.
"Trauma," and the state of being "traumatized," are loaded terms. They mean more than distraught or upset. They mean more than a person showing emotional distress, such as by crying or shaking. They connote a lasting psychological condition.
The State, in its briefing to the ICA in this case, defined trauma as "Psychiatry. A startling experience which has a lasting effect on mental life; a shock." Trauma, The Random House Dictionary of the English Language, 1507 (The Unabridged Edition 1973). The State also defined trauma as "Psychiatry. A painful emotional experience, or shock, often producing a lasting psychic effect." Trauma, Webster’s New World Dictionary, 1423 (Third College Edition, 1988). More modern dictionaries define it as "a disordered psychic or behavioral state resulting from severe mental or emotional stress or physical injury." Trauma, Merriam Webster Dictionary. https://www.merriam-webster.com/dictionary/trauma [https://perma.cc/DQH6-EG59]. Or, "[s]evere emotional or mental distress caused by an experience." Trauma, The American Heritage Dictionary of the English Language, 2022. https://www.ahdictionary.com/word/search.html?q=trauma [https://perma. cc/P9S3-PZ3Q].
"Trauma," and the state of being "traumatized," have a specialized psychological meaning. The Diagnostic and Statistical Manual of Mental Disorders (DSM-5), describes several kinds of traumatic psychological conditions, which can present with varying symptoms. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 265-290 (5th ed. 2013). For example, post-traumatic stress disorder, which can result in long-term effects after exposure to sexual violence. Id. at 271-80.
"Trauma" or "traumatized" doesn’t always mean exactly one thing. Id. In some cases, survivors of sexual violence behave with an unemotional, calm demeanor. See People v. Taylor, 75 N.Y.2d 277, 552 N.Y.S.2d 883, 552 N.E.2d 131, 133-34 (1990) (citing Ann Burgess & Lynda Holmstrom, Rape Trauma Syndrome, 131 Am. J. Psychiatry 981, 982 (1974)). Emotionless self-presentation may also be "consistent with someone who’s been traumatized." See Taylor, 75 N.Y.2d 277, 552 N.Y.S.2d 883, 552 N.E.2d at 134 ("It is also apparent that there is no single typical profile of a rape victim and that different victims express themselves and come to terms with the experience of rape in different ways.").
The phrasing of the prosecutor’s comment contributes to its impropriety. "Consistent with" sounds like expert-speak. In this case, the State’s medical expert, Nurse Davis, opined that the GW’s description of the assault was "consistent with" the results of Davis’ medical examination. "Consistent with" prompts a jury to think of "traumatized" in technical, medical, and diagnostic terms. Not the supposedly common-sense meaning the dissent claims.
"Consistent with" also suggests facts not in evidence. For a witness’ behavior to be "consistent with someone who’s been traumatized," some behaviors must be consistent with trauma. Trauma also must have some relevance. In short, "trauma," and being "traumatized," must mean something. The prosecutor’s comment invites the jury to supply its own meaning outside of properly admitted evidence.
[6] For sure, a prosecutor during closing argument "is permitted to draw reasonable inferences from the evidence and wide latitude is allowed in discussing the evidence." Clark, 83 Hawai‘i at 304, 926 P.2d at 209. Free-flowing syntax often adds flair to a closing argument. But here, the consistent-with-a-traumatized-person comment was not improvised or extemporaneous. Rather, it was deliberate. As in Hirata, the remarks boosted the CW’s credibility.
Examining the persuasive impact of "consistent with someone who’s been traumatized" shows why it is out of bounds. It invokes, for a juror familiar with trauma, that trauma may cause lapses in memory. See, e.g., Arthur H. Garrison, Rape Trauma Syndrome: A Review of a Behavioral Science Theory and its Admissibility in Criminal Trials, 23 Am. J. Trial Advoc. 591, 619 (2000) (summarizing academic studies). A knowledgeable juror may discount any gaps or inconsistencies they perceive in the CW’s testimony.
A juror without that background may view the testimony differently. See Taylor, 75 N.Y.2d 277, 552 N.Y.S.2d 883, 552 N.E.2d at 136 ("[W]e believe that patterns of response among rape victims are not within the ordinary understanding of the lay juror."). Without an expert to explain the impacts, signs, and symptoms of trauma and to opine on whether the CW exhibits trauma, each juror may interpret the prosecutor’s remark differently based on their individual experience. See id. ("[C]ultural myths still affect common understanding of rape and rape victims.").
Because an ordinary juror may hold myths or misconceptions about the trauma-infused testimony of sexual assault survivors, State v. David is inapposite. That case held that requiring expert testimony to introduce evidence about (1) blood alcohol concentration’s connection to alcohol consumption and (2) the association between alcohol consumption and aggressive behavior undercut the defendant’s right to present a defense. State v. David, 149 Hawai‘i 469, 477, 481, 494 P.3d 1202, 1210, 1214 (2021). BAC and the relationship between alcohol and aggression are within the common knowledge of the average adult. Id. Thus, this court concluded that jurors should apply "their general knowledge of how humans operate in the world." Id. at 478, 494 P.3d at 1211.
David is different. Ordinary adults understand the effects of alcohol. Many - we suspect most - adults don’t have experience listening to a rape survivor recount their experience. An adult’s common knowledge does not include how sexual assault survivors testify in a public courtroom. That experience is more specific than the average adult’s "general knowledge of how humans operate in the world." Id.
The dissent’s fundamental premise is that an adult sexual assault survivor’s manner of testifying is within the average adult’s common understanding. We don’t share that view.
The dissent also seeks to separate this case from Hirata because the prosecutor’s traumatized comment was "thoroughly supported by evidence" and because the defense attacked CW’s credibility. This is no distinction at all. The prosecutor and defense attorney in Hirata did the same things.
After the "traumatized" comment, the Hirata prosecutor described evidence from other witnesses about the GW’s post-assault emotional state: "She was upset, emotional;" "[s]he was nervous. She was quiet, withdrawn;" "[s]he broke down. She was crying, and she was weeping." The prosecutor also described evidence about GW’s physical injuries.
The dissent canvasses the transcript here and concludes that the prosecutor’s discussion of the evidence justified her "traumatized" comment. It quotes Salavea: "A statement about a witness’s credibility that is made without reference to the evidence or facts supporting the assertion amounts to an expression of personal opinion." 147 Hawai‘i at 582, 465 P.3d at 1029. But Salavea’s statement doesn’t mean that if a prosecutor assembles some evidence, then any personal opinion is allowed. Closing arguments frame facts. In almost any trial where a prosecutor makes a prejudicial remark, the comment will be tethered to the facts in some way.
Here, we decline to greenlight a prosecutor’s prejudicial comment just because the prosecutor detailed facts about an adult’s emotional state.
The dissent also concludes that because Browder’s counsel attacked GW’s credibility, the prosecutor’s "traumatized comment was appropriate." In Hirata, defense counsel also questioned the GW’s credibility: "[T]he first thing let’s talk about is the reason … why [CW] said what she said. … [I]t’s attention from her mom." The defense continued: "So caution, jurors, just because [CW] said it doesn’t make it true." "[L]et’s talk about some of the inconsistencies" in the GW’s testimony.
In this case, defense counsel attacked the CW in stark terms, accusing her of "lying." We do not condone counsel’s use of the words "lie" and "lying." See State v. Austin, 143 Hawai‘i 18, 50–51, 422 P.3d 18, 50–51 (2018) (opinion of the Court by Pollack, J.) (recognizing many problems with a prosecutor’s assertion that a witness was lying). Still, we believe that the defense’s objectionable word choices do not validate the prosecutor’s improper argument. And, the defense’s credibility challenge does not separate this case from Hirata.
Challenging the credibility of prosecution witnesses is a routine feature of most criminal trials. Not challenging the credibility of a witness may lead to claims that defense counsel’s representation fell below an objective standard of reasonableness. The right to cross-examination, and a closing argument that questions credibility, does not pave the way for prejudicial prosecutorial commentary.
Here, the "traumatized" comment also adds evidence that the assault occurred as the CW described it. Evidence of the CW’s emotional behavior, combined with the prosecutor’s "traumatized" comment, suggests that the CW was in fact traumatized. So, the CW must have experienced a traumatic event, a juror may think. Thus, the CW’s psychological condition becomes more evidence supporting her description of the sexual assault. And, it resembles prejudicial victim-impact evidence. Hirata, 152 Hawai‘i at 35, 520 P.3d at 233.
Contrary to the dissent’s reading, we do not encourage a prosecution expert to discuss CW’s "trauma" in every sexual assault case. Hirata expressed concern that, in many cases, evidence of CWs trauma may be impermissible victim-impact evidence. Id. at 33 n.13, 520 P.3d at 231 n.13.
The prosecutor’s diagnostic and causal opinion about trauma may carry undue weight. A prosecutor’s words have an out-sized influence on a jury. Id. at 33, 520 P.3d at 231. The prosecutor’s personal opinion, enhanced by their experience in sex-crimes cases, enters the jury’s decision-making calculus. See Salavea, 147 Hawai‘i at 582, 465 P.3d at 1029 (prosecutor’s personal opinions "tend to exploit the influence of the prosecutor’s office"); Clark, 83 Hawai‘i at 304, 926 P.2d at 209 ("[I]mproper suggestions, insinuations, and especially assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none."). Trust me, the prosecutor says, I know what a traumatized person looks and acts like.
But Hirata recognized that a prosecutor’s consistent with a traumatized person comment requires evidentiary support. There, the prosecutor’s "traumatized" comment lacked "evidence that could legitimately support" it because "[n]o witness testified about CW’s mental health or psychological condition." Hirata, 152 Hawai‘i at 33, 520 P.3d at 231.
This court has recognized that expert testimony on the dynamics of sexual abuse "may play a particularly useful role by disabusing the jury of some widely held misconceptions so that it may evaluate the evidence free of the constraints of popular myths." See State v. Batangan, 71 Haw. 552, 558, 799 P.2d 48, 52 (1990) (cleaned up). Expert testimony can assist the jury in applying technical psychological concepts. But injecting the concept of "trauma" and the diagnosis that a witness has been "traumatized" without supporting expert testimony asks the jury to draw on popular myths, not avoid them.
[7] Prosecutors have "a duty to seek justice, to play fair and square." Hirata, 152 Hawai‘i at 33, 520 P.3d at 231. Since statehood, this court has fiercely protected a criminal defendant’s constitutional right to a fair trial. See State v. Yoshino, 50 Haw. 287, 290, 439 P.2d 666, 669 (1968). We do so again.
IV.
We vacate the part of the Intermediate Court of Appeals’ memorandum opinion that allowed the prosecutor to say that the witness testified "consistent with someone who’s been traumatized." The case is remanded to the Circuit Court of the Third Circuit.
DISSENTING OPINION BY GINOZA, J., IN WHICH RECKTENWALD, C.J., JOINS
The issue before this court is whether a statement in closing argument by the deputy prosecuting attorney (DPA), after pointing to facts established by evidence in the record, constitutes prosecutorial misconduct. Specifically, Petitioner-Appellant Zeth Browder (Browder) challenges the DPA’s statement in the last sentence of this passage, referring to the complaining witness (CW):
She’s 80 years old. She was nervous, shaking on the witness stand. She was emotional and crying. She was scared. She told you she was scared that morning. She was scared at the hospital. She was scared even a week and a half later, and she was still scared in court. This is consistent with someone who’s been traumatized.
(Emphasis added.) Immediately after, the DPA discussed evidence in the record relevant to this statement.
The majority holds that, similar to State v. Hirata, 152 Hawai‘i 27, 520 P.3d 225 (2022), the DPA’s "traumatized" remark was prosecutorial misconduct because it added new evidence during closing argument and expressed a personal belief about the CW’s credibility. In my view, this case is materially different than Hirata and therefore I respectfully dissent.
In the context of this case, it was well within the province of the jury to assess the evidence pointed out by the DPA and to determine whether it was consistent with the CW having been traumatized by the alleged sexual assault. As discussed in further detail by the DPA during closing argument, the evidence included the CW’s testimony, the testimony of a person who assisted the CW the morning of the alleged incident, the testimony of two police officers who responded to the scene, the testimony of two detectives who interviewed the CW, and the testimony of a nurse who examined the CW after the alleged incident. The majority holds that "expert psychological testimony" was needed in order to support the DPA’s challenged statement. But the DPA did not use the term "traumatized" in a manner inferring a medical or psychological condition. Rather, a fair reading of the closing argument shows the term was used in its ordinary sense. The majority decision thus conflicts with this court’s prior decisions holding that expert testimony is not required when the issues are within the common knowledge of the jury, and that in such cases the jurors should use their "general knowledge of how humans operate in the world." State v. David, 149 Hawai‘i 469, 478, 494 P.3d 1202, 1211 (2021); see Brown v. Clark Equip. Co., 62 Haw. 530, 537, 618 P.2d 267, 272, 62 Haw. 689, 537 (1980) ("[W]here the issues are within the common knowledge of the jurors, expert testimony is unnecessary.") (citation omitted); State v. Batangan, 71 Haw. 552, 556, 799 P.2d 48, 51 (1990) ("The common experience of a jury, in most cases, provides a sufficient basis for assessment of a witness’ credibility.") (citation omitted); see also Schulz v. Pennsylvania R.R. Co., 350 U.S. 523, 526, 76 S.Ct. 608, 100 L.Ed. 668 (1956) ("Jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn.").
Hirata, on the other hand, involved the alleged sexual assault of a minor. This court has recognized that expert testimony is helpful in child sex abuse cases in order to aid the jury in assessing the distinct dynamics and behavior of child sexual abuse victims, which is not within the common understanding of jurors. See Batangan, 71 Haw. at 558, 799 P.2d at 52 (concluding that certain "expert testimony explaining ‘seemingly bizarre’ behavior of child sex abuse victims is helpful to the jury and should be admitted"); State v. McDonnell, 141 Hawai‘i 280, 409 P.3d 684 (2017); State v. Kony, 138 Hawai‘i 1, 3, 375 P.3d 1239, 1241 (2016).
In Hirata, such an expert testified. The majority and dissenting opinions in that case disagreed as to whether the expert testimony supported the deputy prosecutor’s "traumatized" comment there. Compare 152 Hawai‘i at 33, 520 P.3d at 231 (3-2 decision) (stating the jury "heard no evidence that could legitimately support the prosecutor’s claim that the CW testified consistent with a traumatized child. No witness testified about CW’s mental health or psychological condition.") (footnote omitted), with 152 Hawai‘i at 42-43, 520 P.3d at 240-41 (Recktenwald, C.J., dissenting) (concluding the deputy prosecutor’s statement was supported by the expert testimony of Dr. Bivens, who testified "about why a child may delay disclosure, or may forget details surrounding instances of abuse[.]").
Here, the DPA’s "traumatized" statement also addressed Browder’s defense theory, that the CW was lying about the sexual assault, by pointing to contrary evidence. Unlike Hirata, the DPA in this case pointed to evidence about the CW at four different points in time - the morning of the alleged incident, at the hospital later that day, eleven days later when she was interviewed by a detective, and while testifying at trial. Moreover, the DPA pointed to evidence of the multiple physical injuries the CW sustained. The CW’s physical injuries support the DPA’s "traumatized" statement because it is reasonable to infer that the injuries are an underlying basis for why the CW was emotional and scared in the days and weeks following the incident, and when she had to recount the incident at trial. As an example, the CW testified that when being interviewed by a detective eleven days after the alleged incident, she was affected by the "trauma that was in [her] body from the attack." Considering the actual context in which the challenged statement was made in this case, it was proper for the DPA to address CWs credibility in this manner where the defense claimed she was lying.
Because of the material differences in this case, Hirata should not be extended to the circumstances here. The DPA’s challenged comment was not improper and did not prejudice Browder’s right to a fair trial.
I. Prosecutorial Misconduct Standards
"Allegations of prosecutorial misconduct are reviewed under the harmless beyond a reasonable doubt standard, which requires an examination of the record and a determination of ‘whether there is a reasonable possibility that the error complained of might have contributed to the conviction.’ " State v. Austin, 143 Hawai‘i 18, 28, 422 P.3d 18, 28 (2018) (citation omitted). "Prosecutorial misconduct warrants a new trial or the setting aside of a guilty verdict only where the actions of the prosecutor have caused prejudice to the defendant’s right to a fair trial." Id. at 39, 422 P.3d at 39 (citation omitted).
"It is generally recognized under Hawai‘i case law that prosecutors are bound to refrain from expressing their personal views as to a defendant’s guilt or the credibility of witnesses. However, a prosecutor, during closing argument, is permitted to draw reasonable inferences from the evidence and wide latitude is allowed in discussing the evidence" State v. Cordeiro, 99 Hawai‘i 390, 424-25, 56 P.3d 692, 726-27 (2002) (citations omitted). This court has explained that "[a] statement about a witness’s credibility that is made without reference to the evidence or facts supporting the assertion amounts to an expression of personal opinion" State v. Salavea, 147 Hawai‘i 564, 582, 465 P.3d 1011, 1029 (2020) (emphasis added) (citation omitted). "[I]t is well-established that prosecutors are afforded wide latitude in closing to discuss the evidence, and may state, discuss, and comment on the evidence as well as to draw all reasonable inferences from the evidence." State v. Udo, 145 Hawai‘i 519, 536, 454 P.3d 460, 477 (2019) (citation and internal quotation marks omitted).
II. Relevant Evidence in This Case
In order to analyze Browder’s claim that the "traumatized" statement constitutes prosecutorial misconduct, we must examine the relevant parts of the record.
1. CW’s Testimony
The CW testified that on June 15, 2019, Browder broke into her camping tent at Spencer’s Beach Park and sexually assaulted her. CW was seventy-eight years old at the time. Browder was camping nearby and the CW testified she had multiple interactions with him in the days prior to the incident, including driving him to the store, having conversations with him, and driving him to his grandmother’s home. The CW testified that on the day of the incident, she was awakened in the early morning hours by a large individual on top of her. She testified that the individual attempted to put a dark hood over her head, before placing his hands around her neck and ordering her to cover her eyes with her hand and keep it there or he would kill her. Based on the sound of the individual’s voice and at one point being able to see his face, CW identified the person in her tent as Browder. She testified in detail about being sexually assaulted in her tent and feeling scared and terrified that she was going to be killed.
In the early morning hours after her assailant left her tent, the CW went to the beach park restroom, did not see any other campers that were awake yet, and then heard Browder’s voice ask her if she was leaving. CW answered in the negative, proceeded to the bathroom and while there she felt afraid that Browder would come after her and kill her. CW went to her car, called a friend in North Carolina, and testified she was still shaking. She did not call 911 or attempt to drive out of the beach park because the park gates were locked and she was shaking so much and did not know what to do next. Based on the advice of her friend, CW left her car and walked towards the campsite of a family camping nearby. CW attempted to wake up a camper in his tent, was unsuccessful, and waited nearby for other campers to awaken.
While CW waited, Browder approached CW and asked if she wanted to talk and if she was going back to her tent, to which she replied "no." During this interaction, CW testified she felt scared to death that Browder was going to kill her and that she was too shaky and frozen to do anything except wait for a nearby camper to wake up. When a female camper finally awoke, CW told her that she was raped. The female camper called 911. Police officers arrived to the beach park and arrested Browder. CW went to the Kona Community Hospital that afternoon and was examined by a nurse. Following the date of the incident, CW met with a detective and identified Browder in a photographic lineup as the person who sexually assaulted her.
CW testified that during the assault, over the days, weeks, months, and years following the assault, "everytime she told about the whole incident[,]" or while recounting the assault in court, she felt "scared," "in shock," "anxious," "terrified," "frozen with fear: " and experienced "shaking." She also stated that when she talked with a detective eleven days after the incident, she was "still going over the trauma that was in [her] body from the attack." (Emphasis added.)
2. Witness Michael Demotta’s Testimony
Michael Demotta (Demotta) testified that in mid-June 2019, she camped with her family at Spencer Beach Park. In the early morning hours of June 15, 2019, Demotta woke up in her tent from the sound of someone talk- ing and observed CW sitting on a picnic table near Demotta’s campsite, talking on the phone. Demotta left her tent and CW approached her and grabbed her arm. Demotta was asked not to say what the CW told her, but in describing the CW’s demeanor Demotta testified the CW was "nervous, little shooken up" and "[l]ooked like she was crying[.]" Demotta also observed that the CW had a scratch on her arm and what appeared to be "road rash" on her face. Demotta testified that "I guess [CW] was in shock," and after talking, Demotta called the police and waited with the CW until officers arrived.
3. Testimony of Officers Robert Ayau and Jonathan Kailiuli
On the morning of June 15, 2019, Officers Robert Ayau (Officer Ayau) and Jonathan Kailiuli (Officer Kailiuli) of the Hawai‘i County Police Department (HPD) were dispatched to the beach park in response to CW’s alleged sexual assault. Upon making initial contact with CW at the beach park, Officer Ayau observed that CWs demeanor was "sad … very emotional", "scared", and "crying." Officer Ayau also observed that CW had visible scratches on her cheek. Officer Kailiuli observed that CWs demeanor was "distraught, … under some stress and shooken up" and "afraid." Officer Kailiuli took a verbal statement from CW and noted that her demeanor remained distraught during the time that he spoke with her.
Based on the CWs allegations, Officers Ayau and Kailiuli identified Browder as the suspect in the alleged sex assault, located him in his campsite approximately fifty feet from CWs tent, and arrested him.
4. Nurse Misty Davis’s Testimony
On June 15, 2019, starting at 12:30 p.m., a sexual assault examination was conducted on CW at the Kona Community Hospital. Misty Davis (Nurse Davis), a Sex Assault Nurse Examiner, conducted CWs examination. Nurse Davis testified that in addition to being a registered nurse, she had specialized training as a Sex Assault Nurse Examiner and training as a psychiatric nurse and managed care nurse. Nurse Davis provided testimony as a qualified expert in the general field of medicine with a further expertise in the examination and treatment of patients of alleged sexual abuse.
Nurse Davis observed the CW’s demeanor as "very tearful and very shaky" while she provided Nurse Davis with her account of the sexual assault. Nurse Davis testified about what the CW reported to her about the sex assault. Nurse Davis also testified the CW noted symptoms including abdominal pain, pelvic pain, genital discomfort and pain, and reported that she may have lost consciousness and had vomited. During Nurse Davis’s physical examination of the CW, Nurse Davis reported observing multiple abrasions to both sides of the CWs face, on the bridge of her nose, and her left eyebrow. The CW also reported pain to the back of her head and neck. Nurse Davis testified about observing "abrasion and blunt force trauma to [CWs] soft palate, the uvula and her hard palate … bruising and abrasion to [CWs] extremities with a large bruise on her right hand, and her breast had some petechiae-like spots."
Nurse Davis testified that "petechiae are small red or purple spots that are caused by bleeding into the skin[,]" and that generally the causes of petechiae are "anything that might cause the small blood vessels to break." Nurse Davis testified that blunt-force trauma and suction could cause petechiae. She also testified that a bruise is also bleeding into the skin due to an injury or blunt-force trauma, that a bruise is larger than petechiae, and a bruise can be a variety of colors. She also testified that an abrasion is a breaking or scraping away of the skin.
Nurse Davis was shown and further testified about pictures she took of the CW during the examination, which had been entered into evidence. Nurse Davis testified that based on pictures and her examination report, the CW had abrasions to her left and right cheek, an abrasion above her left eyebrow, dried blood above her lip, bruising and abrasion to her upper lip, and abrasions on the bridge of her nose and upper lip. Nurse Davis testified a photograph of inside the CWs mouth showed "a number of areas of … petechiae and trauma that lead to the hard palate, the soft palate and the uvula." Nurse Davis also testified about photographs that showed a small abrasion to the CW’s right shoulder, several areas of abrasion to the CW’s right arm, a "fairly large bruise" on the back of the CW’s right hand, areas of petechiae on CWs breast, bruising to CW’s left hip, an abrasion to CW’s right knee, and a bruise on CW’s right thigh.
Nurse Davis described the uvula as "the little part that hangs down" in the mouth and that the picture of the CW’s mouth showed "in the very back on the upper kind of as you see the archway there … that’s where you see the red spots and petechiae."
Nurse Davis also examined CWs genitalia, which included examining the outer and inner areas of the genitalia. During this part of the examination, Nurse Davis observed CWs demeanor as "quiet and tearful and a little shaky." From the examination, Nurse Davis observed "general redness" to CWs labia majora; "redness, bruising and petechiae to the labia minora, introitus and the hymen"; a "tear … in the fold between the labia majora and the labia minora"; "bruising and a tear to the posterior fourchette and the fossa navicularis"; and petechiae on the cervix. Nurse Davis determined that based on her physical examination of CW, her findings were consistent with CW’s patient history of alleged sexual assault.
5. Testimony of Detectives Clarence Acob and Calvin Delaries
On June 15, 2019, HPD detective Calvin Delaries (Detective Delaries) was assigned to investigate CWs alleged sexual assault. On June 25, 2019, HPD detective Clarence Acob (Detective Acob) was assigned to assist with the investigation of CWs alleged sexual assault.
On June 15 2019, Detective Delaries contacted CW at the Kona Community Hospital. Detective Delaries observed that CW began to "cry … visibly shake … [and] [h]er lips would quiver."
On June 26, 2019, Detective Acob interviewed CW. Detective Acob observed that as the interview progressed, CWs demeanor became "sad" and she began to cry. Following Detective Acob’s interview of CW, he administered a photographic lineup wherein CW identified Browder as her assailant. Detective Acob observed that when CW saw Browder’s photo in the lineup "she turned away and again [CW] started to tear[.]"
III. The DPA’s "Traumatized" Statement Was Not Misconduct
The DPA’s challenged statement in this case was immediately prefaced by noting CW’s demeanor and appearance while testifying in court, the morning after the incident, at the hospital the day of the incident, and eleven days later when the CW spoke with Detective Acob. Further, immediately after the remark, the DPA specifically discussed relevant evidence pertinent to the remark. The DPA’s closing argument,. in relevant part, is as follows:
[DPA:] " Do what I say or I’m gonna kill you." "You have to want me." "I’m bigger. I can kill you with this rock." This is what [Browder] told [CW] in the early morning hours of June 15th, 2019.
Now, ladies and gentlemen, over the course of last week you heard from a number of witnesses and you saw a number of photographs, but ultimately this case comes to one question. Is [CW] believable?
Now, Judge Kim just read you a number of jury instructions, and on page 9 you’ll find a number of credibility factors that you can use to determine the credibility of witnesses.
I’m not gonna reread everything again for you, but when you look at some of them like her demeanor, her candor, her lack of motive and is [sic] what she says makes sense, then the State submits that, yes, the answer to this question is that [CW] is believable. And because [CW] is believable as stated on page 11 of your jury instructions, the testimony of even a single witness if believed is sufficient to prove a fact.
So now let’s look a little bit closer at the credibility factors and the evidence that you heard over the last week.
So looking at [CW]’s appearance, demeanor, manner of testifying you saw her and you got to meet her over the course of two days of questioning. She’s 80 years old. She was nervous, shaking on the witness stand. She was emotional and crying. She was scared. She told you she was scared that morning. She was scared at the hospital. She was scared even a week and a half later, and she was still scared in court. This is consistent with someone who’s been traumatized .
To the next factor, the extent to which [CW] is supported or contradicted by other witnesses.
First[,] we have the initial HPD officers, and they told you when they met [CW] a few hours after the vicious attack she was still emotional, crying, injured but was able to give a disclosure to them of how she had been violated and hurt in her tent.
They found [Browder] in his tent, informed him of [CW]’s report and then subsequently arrested him.
You also heard from Michael Demotta, the first person who saw [CW] after the attack, and she told you that [CW] gripped onto her arms. She was shaking, crying and most importantly she was now injured which was different from how she had looked the day before when Michael saw her.
Michael helped her call 911, and Michael also helped her go to the bathroom because she was still shooken up.
Then you heard from Detective Acob. A week and a half - about a week and a half after the incident he met with [CW], and he told you how she was still emotional and crying when she had to describe the sex acts that [Browder] forced upon her. And when he showed her that photo lineup with [Browder]’s picture in it she again became emotional and looked away.
Then you heard from Detective Delaries who met [CW] a few hours after the incident at the Kona Hospital, and again she was emotional. She was shaky, crying.
…
Then you heard from Nurse Davis who documented the injuries to [CW]; the face injuries, the injuries on her hand, her legs, her - her breasts, the inside of her mouth, and then her vaginal injuries, the bruising, the petechiae and the tear.
Then you also heard about that Nurse Davis said the - her injuries and what she documented in her examination were consistent with [CW]’s patient history.
(Emphases added.)
The DPA also discussed further evidence related to the CWs testimony:
She admitted she helped [Browder]. She admitted she complied with his demands in that tent to survive, and she also admitted that she made some mistakes in her statements initially to the police. She told you that she had mistaken the arm. That she couldn’t remember some things.
She also admitted the things that she didn’t do. She didn’t scream. She didn’t try to run away, and right after she couldn’t call 911 and she told you all why. Because she was fighting to survive. She believed [Browder] was going to kill her.
She also admitted to you the things that she didn’t remember. Under a long cross-examination by defense counsel she admitted that, yes, she didn’t remember certain things she had told some of the initial officers or Detective Acob and that it was because she was in shock, and she couldn’t remember word by word exactly what she told multiple people about this attack that she had just endured.
(Emphasis added.)
In Salavea this court explained that "[a] statement about a witness’s credibility that is made without reference to the evidence or facts supporting the assertion amounts to an expression of personal opinion" and that "expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony and tend to exploit the influence of the prosecutor’s office and undermine the objective detachment that should separate an attorney from the cause being argued." 147 Hawai‘i at 582, 465 P.3d at 1029 (emphasis added) (citing State v. Basham, 132 Hawai‘i 97, 115, 118, 319 P.3d 1105, 1123, 1126 (2014)). Furthermore, this court has explained that prosecutors are prohibited from introducing new information or evidence during closing argument. See Basham, 132 Hawai‘i at 113, 319 P.3d at 1121. Here, the DPA’s "traumatized" remark in reference to CW’s trial testimony, as well as CW’s fear and shock during and after the alleged sexual assault, was thoroughly supported by CWs own trial testimony, and the testimony of other trial witnesses. On numerous occasions in the CWs trial testimony alone, she stated that during the assault or at various points in the days, weeks, months, or years following the assault, including when she had to recount the incident, she felt "scared," "in shock," "anxious," "terrified," "frozen with fear;" and experienced "shaking." She also stated that eleven days after the incident, she was "still going over the trauma that was in [her] body from the attack." (Emphasis added.)
Other witnesses’ testimony further corroborated the CWs testimony and supported the DPA’s "traumatized" remark via firsthand observations of the CW at various points following the alleged sexual assault. Demotta testified that in the morning directly following the alleged sexual assault, she observed CW as "nervous … shooken [sic] up" and "[l]ooked like she was crying[.]" Officer Ayau and Officer Kailiuli testified that when they responded to the scene at the beach park, they observed the CW’s demeanor was "sad … very emotional," "scared," "crying," "distraught, … under some stress and shooken up [sic]" and "afraid." At the hospital, Nurse Davis testified that she observed CW’s demeanor as "very tearful and very shaky[,]" and she also testified about the multiple physical injuries she observed during her examination of the CW. Also at the hospital, Detective Delaries testified that he observed CW begin to "cry … visibly shake … [and] [h]er lips would quiver[.]" Further, Detective Acob testified that eleven days after the alleged incident, he observed CW’s demeanor become "sad" and she began to cry as he interviewed her. Hence, the DPA’s "traumatized" remark was thoroughly supported by evidence adduced at trial and did not inject new evidence.
As noted, the DPA directly prefaced the "traumatized" remark with references to CW’s demeanor and manner of testifying at trial, as well as evidence in the case. Directly following the "traumatized" remark, the DPA elaborated on the testimony and evidence that had been presented in the trial, which further supported the challenged remark.
"Appearance," "demeanor," and "manner of testifying" are all credibility factors under the HAWJIC 3.09 (2000) "Credibility of Witness" jury instruction.
IV. Hirata involved the Sexual Assault of a Minor, Where Expert Testimony Was Appropriate
The factual circumstances in the present case involve the sexual assault of an adult, whereas Hirata involved sexual abuse of a child. The majority concludes that this distinction is "inconsequential." I respectfully disagree.
This court has recognized that expert testimony is helpful in child sexual abuse cases in order to aid the jury in assessing the distinct dynamics and behavior of child sexual abuse victims. Batangan, 71 Haw. at 558, 799 P.2d at 52 (concluding that "expert testimony explaining seemingly bizarre behavior of child sex abuse victims is helpful to the jury and should be admitted," but "conclusory opinions that abuse did occur and that the child victim’s report of abuse is truthful and believable … should not be admitted") (internal quotation marks omitted); see also McDonnell, 141 Hawai‘i at 292-93, 409 P.3d at 696-97 (holding that expert testimony regarding delayed reporting, tunnel or child memory, and incomplete disclosure was properly admitted in child sexual assault case); Kony, 138 Hawai‘i at 3, 375 P.3d at 1241 (relying on Batangan and affirming "trial court’s ruling as to the relevancy of the expert testimony in this case regarding the unique characteristics of child sexual abuse victims admitted to assist the jury ‘to comprehend something not commonly known or understood’—delayed reporting.")
In Batangan, a case dealing with child sexual abuse, this court explained:
The common experience of a jury, in most cases, provides a sufficient basis for assessment of a witness’ credibility. Thus, expert testimony on a witness’ credibility is inappropriate. However, sexual abuse of children is a particularly mysterious phenomenon, and the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse[.]
71 Haw. at 556-57, 799 P.2d at 51 (emphasis added) (citations and internal quotation marks omitted). The Batangan court reasoned that the testimony needed to properly aid the jury in child sexual assault cases is unique and distinct from other assault cases:
While jurors may be capable of personalizing the emotions of victims of physical assault generally, and of assessing witness credibility accordingly, tensions unique to trauma experienced by a child sexually abused by a family member have remained largely unknown to the public…. The routine indicia of witness credibility—consistency, willingness to aid the prosecution, straight forward rendition of facts—may, for good reason be lacking. As a result jurors may impose standards of normalcy on child victim/witnesses who consistently respond in distinctly abnormal fashion.
Child victims of sexual abuse have exhibited some patterns of behavior which are seemingly inconsistent with behavioral norms of other victims of assault. Two such types of behavior are delayed reporting of the offenses and recantation of allegations of abuse. Normally, such behavior would be attributed to inaccuracy or prevarication. In these situations it is helpful for the jury to know that many child victims of sexual abuse behave in the same manner. Expert testimony exposing jurors to the unique interpersonal dynamics involved in prosecutions for intrafamily child sexual abuse, may play a particularly useful role by disabusing the jury of some widely held misconceptions … so that it may evaluate the evidence free of the constraints of popular myths[.]
We recognize that even this type of expert testimony carries the potential of bolstering the credibility of one witness and conversely refuting the credibility of another. Much expert testimony on any subject will tend to do this. Such testimony, by itself, does not render the evidence inadmissible.
The pertinent consideration is whether the expert testimony will assist the jury without unduly prejudicing the defendant.
Id. at 557-58, 799 P.2d at 51-52 (emphases added) (citations, internal quotation marks, and brackets omitted).
Hirata dealt with the alleged sexual abuse of a child. In that case, the majority determined:
Here, the jury heard the DPA opine that the [complaining witness] testified "consistent with a child who is traumatized." But it heard no evidence that could legitimately support the prosecutor’s claim that the [complaining witness] testified consistent with a traumatized child. No witness testified about [complaining witnesse]’s mental health or psychological condition.
The DPA improperly expressed her personal belief about [complaining witness]’s credibility and injected new evidence by explaining to the jury that [complaining witness]’s testimony is "consistent with a child who is traumatized." Her unsupported comment invited the jury to infer that she had undisclosed information about [complaining witnesses mental health, information that could corroborate a traumainducing event like the charged crime. We hold that the DPA’s remarks constituted serious procedural misconduct.
152 Hawai‘i at 33, 520 P.3d at 231 (footnotes omitted). The majority opinion in Hirata also stated:
The state’s expert testified generally about delayed disclosure, "tunnel memory," and other dynamics of child sexual abuse. But the expert supplied no evidence about post-abuse "trauma" or how traumatized children act or testify in court. The expert was also unfamiliar with [complaining witness] or the case’s factual scenario.
Id. at 33 n.14, 520 P.3d at 231 n.14.
The dissenting opinion in Hirata further elaborated about the testimony of the State’s expert, Dr. Bivens, including that child sexual abuse victims commonly present with distinct responses to "traumatic" or "shocking" events, including "delayed disclosure" and "tunnel memory[.]" Id. at 39, 520 P.3d at 237 (Recktenwald, C.J., dissenting). The dissent in Hirata believed that the DPA’s "traumatized" statement did not present new evidence, but rather was supported by the testimony of the child abuse expert, Dr. Bivens. Id. at 42-43, 520 P.3d at 240-41.
The instant case is distinguishable from Hirata because it deals with the alleged sex assault of an adult. Unlike the unique dynamics involved in child sex assaults, for which this court has recognized the propriety of general expert testimony, no expert was called or needed in this case to testify about unique dynamics involving adult victims of sex assault. Rule 702 of the Hawai‘i Rules of Evidence provides, in relevant part, that:
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.
(Emphasis added.) The DPA in this case did not use the term "traumatized" in a scientific, technical or specialized manner. Instead, the DPA referred to evidence from the CW and multiple witnesses who testified about CW’s demeanor in the hours, days, and weeks following the alleged assault and recounted their observations of CW’s behavior during their interactions with her, which lay persons are capable of doing. Moreover, both the CW and Nurse Davis testified to the physical trauma and injuries that the CW had sustained. In contrast to the distinct dynamics in a child sexual assault case where expert witness testimony may be necessary to help guide a jury’s ability to assess witness credibility - like in Hirata - the present case is different. A lay person would have a common understanding and general knowledge to assess for themselves whether the evidence presented indicated the CW had been "traumatized."
In State v. Tucker, 10 Haw. App. 73, 89-90, 861 P.2d 37, 46-47 (App. 1993), the ICA noted that trial testimony of two witnesses who testified about the defendant's emotional state as "lacking remorse" following the alleged murder of the defendant’s baby "were based on personal observations which any lay person was capable of making and, hence, did not constitute expert opinions." (internal quotation marks omitted). The ICA concluded such testimony instead fell under Hawai‘i Rules of Evidence (HRE) Rule 701, governing opinion testimony by lay witnesses. The court held that:
HRE Rule 701 thus sets forth a liberal standard for admitting lay opinions into evidence. As long as (1) the witness has personal knowledge of matter that forms the basis of the testimony; (2) the testimony is rationally based on the witness' perception; and (3) the opinion is ‘helpful’ to the jury (the principal test), the opinion testimony is admissible.
Id. at 91, 861 P.2d at 47 (citation omitted). The Tucker court ultimately concluded that applying the above-referenced standard, the trial court did not abuse its discretion when it allowed the witnesses to testify at trial regarding the defendant’s "lack of remorse." Id.
"Traumatized" is defined as "affected by physical or emotional trauma[.]" Traumatized Merriam-Webster, https://www.merriam-webster.com/dictionary/traumatized (last visited May 28, 2024) [https://perma.cc/FE6H-T5C4]. "Traumatized" is also defined as "severely shocked and upset in a way that causes lasting emotional pain[.]" Traumatized, Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/traumatized (last visited May 28, 2024) [https://perma.cc/9ZH2-VMKJ].
This is consistent with how the court treated another issue deemed to be within the common knowledge of the jury. In David, 149 Hawai‘i at 477-78, 494 P.3d at 1210-11, this court held that expert testimony was not necessary regarding blood alcohol content (BAC) and its behavioral effects on a person in order to admit BAC evidence. Rather, the court held these issues, including the alleged association between alcohol and violence, are "within jurors’ common knowledge." Id. at 476-77, 494 P.3d at 1209-10.
In David, which involved a drunken altercation that ended in a fatality, the court explained that:
When the issues in the case are within jurors’ common knowledge … "expert testimony is unnecessary." We conclude that alcohol and its association with violence fall into this category. Understanding the BAC evidence and alcohol’s impact on [the decedent] is not beyond the firsthand personal experiences and secondhand information accumulated by typical jurors. The jury knows an individual’s .252 BAC means that the individual is highly drunk; using the common knowledge about intoxi
cation and its association with aggression, the jury can evaluate the BAC and its behavioral impact. So it was improper for the circuit court to make the defense hire an "expert" to explain the BAC evidence before the jury could hear that evidence.
….
Although alcohol’s general behavioral impact could be an appropriate subject for expert testimony, we conclude that specialized knowledge testimony was not required to admit the BAC evidence. The link between excessive alcohol intake and increased aggression is not a "widely held misconception[ ]" or "constrained] [by] popular myths." [citing McDonnell]
This court has shared misgivings about an expert-centric approach to fact-finding. With experts’ "aura of special reliability and trustworthiness," there is a danger that jurors will "abdicate their role of critical assessment" or "surrender their own common sense in weighing testimony." … These concerns do not undermine the value of expert testimony in assisting the jury with understanding evidence. But when the topic is familiar to the typical juror, conditioning admissibility on expert testimony devalues the collective wisdom of twelve citizens.
Jurors are expected to rely upon their general knowledge of how humans operate in the world.
Id. at 477-78, 494 P.3d at 1210-11 (emphases added) (citations and footnotes omitted).
Applying this reasoning to the present case, the average juror would be able to consider the evidence of CW’s conduct after the alleged incident, consider the testimony of the CW and Nurse Davis about the physical trauma and injuries that the CW sustained -- including tears to her genitalia and abrasions, bruising and petechiae on multiple areas of her face and body -- and apply their "general knowledge of how humans operate in the world." Id. at 478, 494 P.3d at 1211. In short, based on the evidence in the record and argued by the DPA, the jury could properly consider whether the CW’s conduct was "consistent with someone who’s been traumatized."
The majority also asserts that " ‘Trauma’ or ‘Traumatized’ doesn’t always mean exactly one thing" and that victims of sexual violence may exhibit differing behaviors post-assault. However, rather than requiring expert testimony on the subject, the defense would be free to make such an argument. Indeed, the same could be said regarding the issue in David, where it was concluded that "alcohol and its association with violence" is an issue within jurors’ "common knowledge." 149 Hawai‘i at 477, 494 P.3d at 1210. That is, it could be argued that intoxication "doesn’t always mean one thing", nor does it always present or manifest in one type of behavior, for example, in aggressive or violent behavior. The David court nonetheless concluded that expert testimony was not required to admit the BAC evidence in that case. Likewise, here, expert testimony was not needed for the jury to assess and comprehend CW’s credibility based on the evidence and testimony presented at trial, and based on jurors’ common knowledge.
The majority also states that the DPA’s use of the phrase "consistent with" is "expert-speak," such that an expert was needed to support the "traumatized" statement. Respectfully, I disagree. The phrase "consistent with" has a general common-sense meaning. The DPA used the phrase in such a commonsense fashion and did not suggest that it inferred scientific, technical or specialized knowledge. Further, construing the phrase "consistent with" as "expert-speak" incorrectly assumes that jurors are familiar with how the phrase might be used by legal counsel on occasion, and that jurors are familiar with trial practice. The record does not suggest that this was the case.
"Consistent" is defined as "marked by harmony, regularity, or steady continuity: free from variation or contradiction" or "marked by agreement: COMPATIBLE[,] usually used with with" or "showing steady conformity to character, profession, belief, or custom[.]" Consistent, Merriam-Webster, https://www.merriam-webster.com/dictionary/consistent (last visited May 28, 2024) [https://perma.cc/5FHL-UK3 R].
V. Based on the Evidence in the Record, the DPA Properly Responded to Defense Counsel’s Attacks on the CW’s Credibility
Browder’s theory of the case - as set out in defense counsel’s opening statement, cross- examination of the CW, and closing argument - turned on the contention that the CW fabricated the alleged sexual assault at the beach park. During opening statement, defense counsel asserted:
[Defense]: What I believe the evidence will show is that this is a case of fictitious claims of sexual assault by [CW], a rush to judgment by the Hawai‘i Police Department and the wrongful arrest of an innocent teenager. With regards to the fictitious claims of assault by [CW] she gave two versions of this alleged assault on 6/15/2019, the early morning hours right after this allegedly happened …. And I’m not saying just different facts. I’m saying different accounts of how this alleged violation assault actually happened."
(Emphases added.)
During cross-examination of the CW, defense counsel questioned her extensively about her reporting of the alleged sex assault. Defense counsel asked if a statement she gave to Detective Acob was "a lie" to which she responded "[i]t was not a lie."
Then, during closing arguments, defense counsel argued:
[Defense]: "About a week ago, … I told you what this case would show, what the evidence would show. I told you the evidence would show fictitious cries of sexual assault by [CW] … and the evidence showed all of this.
[CW] first tells the police officer that first comes to Spencer Beach Park the morning of 6/15/2019 that she was viciously sexually assaulted while she was on her stomach …
Some hours later at the Kona hospital the assault changes drastically. She tells [the nurse] that she was flipped over onto her back, and that’s how the alleged assault happened …
But how do you account for the different sexual assault, one being on your front and one being on your back, and just a few hours the story flip flops about the … whole issue in this case whether she was sexually assaulted? How do you get that wrong if you’re telling the truth?
….
These are important facts, but mostly how do you rectify these different types of assaults, the story changing? Is that someone telling the truth?
The truth doesn’t change especially when you’re talking about being raped. The truth can’t change. You must examine the testimony.
….
… [Y]ou have to analyze the stories changing in the way they did. The truth doesn’t change. So that’s the fictitious cries of rape, of sexual assault by [CW].
….
I can’t tell you why people lie. We’ve had presidents that lie. This country has a lot of lies. I don’t know why, but it’s not my job to tell you why she’s lying, why she’s making this up.
….
Look it, [CW] told the nurse she met [Browder] the day before, homeless guy… I mean that was a lie. She met him the first day. She put her tent at his campsite. She’s lying all over the place." (Emphases added.)
In State v. Clark, 83 Hawai‘i 289, 304, 926 P.2d 194, 209 (1996), this court observed that:
[i]t is generally recognized under Hawai‘i case law that prosecutors are bound to refrain from expressing their personal views as to a defendant’s guilt or the credibility of witnesses.
….
However, a prosecutor, during closing argument, is permitted to draw reasonable inferences from the evidence and wide latitude is allowed in discussing the evidence.
(Emphasis added) (citations omitted); see also Cordeiro, 99 Hawai‘i at 425, 56 P 3d at 727 (holding that it was not prosecutorial misconduct for a deputy prosecutor to suggest during closing argument that reliable evidence corroborated the testimony of certain witnesses).
Here, given defense counsel’s emphasis in asserting that the CW’s sexual assault allegation was "fictitious" and a "lie," it was appropriate for the DPA to address CW’s credibility based on the evidence adduced at trial and reasonable inferences drawn therefrom. The DPA’s remark that CWs conduct and demeanor after the assault was "consistent with someone who’s been traumatized" is a rea- sonable inference based on the CW’s testimony, the personal observations of the CW by witnesses after the alleged incident, and the evidence of extensive injuries found during the examination by Nurse Davis. The DPA’s "traumatized" remark, in this context, is in direct response to defense counsel’s multiple assertions made during the trial commenting on CW’s credibility and calling her a liar. It was appropriate for the DPA to address CW’s credibility based on the evidence adduced at trial in this case. See Clark, 83 Hawai‘i at 304, 926 P.2d at 209; Cordeiro, 99 Hawai‘i at 425, 56 P.3d at 727.
VI. Conclusion
For these reasons, I respectfully dissent and would affirm the majority decision by the Intermediate Court of Appeals, which concluded that the DPA’s "traumatized" remark did not constitute prosecutorial misconduct.