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holding that cumulativeness is factor to be considered in harmless error analysis
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No. 18559.
2012-09-21
STATE of Connecticut v. Anthony L. FAVOCCIA, Jr.
Adam E. Mattei, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Cornelius P. Kelly, senior assistant state's attorney, for the appellant (state). Gary A. Mastronardi, Bridgeport, for the appellee (defendant).
Adam E. Mattei, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Cornelius P. Kelly, senior assistant state's attorney, for the appellant (state). Gary A. Mastronardi, Bridgeport, for the appellee (defendant).
ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.
NORCOTT, J.
The listing of justices reflects their seniority status on this court as of the date of oral argument.
In this certified appeal, we consider whether an expert witness' testimony that the complainant has exhibited behaviors, which were identified as those characteristic of minor sexual assault victims, constitutes inadmissible vouching for the credibility of the complainant or opinion as to the ultimate issue of whether the complainant had been sexually assaulted, in violation of, for example, State v. Spigarolo, 210 Conn. 359, 379–80, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989), and State v. Iban C., 275 Conn. 624, 635–36, 881 A.2d 1005 (2005). The state appeals, upon our grant of its petition for certification, from the judgment of the Appellate Court reversing the trial court's judgment, rendered after a jury trial, convicting the defendant, Anthony L. Favoccia, Jr., of two counts of risk of injury to a child in violation of General Statutes § 53–21(a)(2). State v. Favoccia, 119 Conn.App. 1, 30, 986 A.2d 1081 (2010). On appeal, the state claims that the Appellate Court improperly concluded that: (1) the trial court had abused its discretion in admitting into evidence four statements by an expert witness, each to the effect that the complainant exhibited behaviors consistent with those of sexual abuse victims; and (2) reversal was required because these improper evidentiary rulings were not harmless error. We conclude that the four statements at issue were improperly admitted into evidence, and that we do not have a fair assurance that those improprieties did not substantially sway the jury's verdict. Accordingly, we affirm the judgment of the Appellate Court.
We granted the state's petition for certification to appeal limited to the following issue: “Did the Appellate Court properly determine that the trial court abused its discretion by admitting four statements of an expert into evidence and, if so, did the Appellate Court properly determine that the error in admitting those statements was harmful?” State v. Favoccia, 295 Conn. 909, 989 A.2d 604 (2010).
.General Statutes § 53–21(a) provides in relevant part: “Any person who ... (2) has contact with the intimate parts ... of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child ... shall be guilty of ... a class B felony....”
The Appellate Court's opinion aptly sets forth the following facts that the jury reasonably could have found based on the allegations of the complainant and the procedural history: “The events underlying the defendant's conviction occurred in the fall of 2005 and the summer of 2006. At that time [the complainant] was under sixteen years of age. Following the divorce of her parents when she was three years old, the [complainant] resided with her mother, S. The [complainant] regularly spent weekends with her father, R, pursuant to a court approved visitation schedule.
In accordance with our policy of protecting the privacy interests of the victims of the crime of risk of injury to a child, we decline to identify the complainant or others through whom the complainant's identity may be ascertained. See General Statutes § 54–86e.
“The defendant was a longtime friend of R, whom the [complainant] had known since early childhood as ‘Uncle Tony.’ During one of her weekend visits with R in the fall of 2005, the defendant spent the night at R's residence. R worked an overnight shift as a 911 operator that evening.” Id. at 3, 986 A.2d 1081. The jury then credited the complainant's testimony that, “[a]fter R departed the residence and his girlfriend, M, had gone to bed, the defendant entered the [complainant's] bedroom and lay next to her. The defendant kissed her neck and touched her back, stomach, upper legs and buttocks. The encounter ended abruptly after approximately fifteen minutes, and the defendant told the [complainant] that he would ‘[s]ee [her] tomorrow....’ The [complainant] thereafter did not report that incident to her parents. She did, however, inform two classmates and close friends, J and B, of her encounter with the defendant. Although the [complainant] instructed J and B to keep the matter secret, they encouraged the victim to report the incident to her mother.
“A second incident involving the defendant and the [complainant] occurred in the summer of 2006, during another weekend visit at R's residence. On that particular evening, the defendant was present when R, a volunteer firefighter, left the residence to respond to a fire. At that time, the [complainant] took a shower and then retreated to her bedroom robed in a towel. After she closed the door, the defendant suddenly entered the room. As the [complainant] testified, ‘he [got] on top of me and started kissing me on my neck ... well, first it was on the lips and then my neck.... [H]e was on top of me, my towel had started to come off ... I guess because of being on top of me, and it was not a relatively big towel, and he was ... touching on my sides and everything and then ... after maybe five, ten minutes, I told him that I needed to get dressed and that he needed to leave, so he had to get off of me.’ The defendant complied with her request. The [complainant] did not report the incident to her parents but did inform J and B of the encounter, who again encouraged the [complainant] to report the incident to her mother. The [complainant] falsely assured her friends that she had done so.
“One year later, S finally learned of the incidents involving her daughter and the defendant. On that evening in late June or early July, 2007, S overheard the [complainant], J and B talking about a recent incident in which the defendant attempted to ‘[look] down [the complainant's] shirt....’ J then recounted to S the details of the [complainant's] two encounters with the defendant in the fall of 2005 and summer of 2006, and the [complainant] began to cry. Shocked, S took the [complainant], J and B to the Stratford police department to report the incidents.
“The defendant thereafter was arrested and charged, by amended information dated May 29, 2008, with one count of sexual assault in the second degree in violation of General Statutes (Rev. to 2005) § 53a–71 (a)(1), one count of sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a–73a (a)(1), and two counts of risk of injury to a child in violation of § 53–21(a)(2). A jury trial followed. The state's case included testimony from the [complainant], J and B, and two exhibits. In addition, the state presented the expert testimony of [school] psychologist Lisa Melillo. The defense consisted of testimony from R, M and E, the [complainant's] high school color guard coach, as well as four exhibits. Following the close of evidence, the defendant moved for a judgment of acquittal. The court granted that motion as to the sexual assault in the fourth degree count only, concluding that the state had not proven beyond a reasonable doubt that the victim was under the age of fifteen at the time of the alleged incidents. The matter was submitted to the jury, which found the defendant guilty on both counts of risk of injury to a child. The jury further informed the court that it was ‘deadlocked on the issue of sexual assault in the second degree’ and saw ‘no possibility of unanimity on this issue.’ The court thus declared a mistrial on that count. The court rendered judgment accordingly and sentenced the defendant to a total effective term of twenty years incarceration, execution suspended after ten years, with twenty-five years of probation.” Id. at 3–5, 986 A.2d 1081.
General Statutes (Rev. to 2005) § 53a–71 (a) provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person....”
General Statutes (Rev. to 2005) § 53a–73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age....”
We note that the charge of sexual assault in the second degree was founded on the complainant's claim, and subsequent testimony at trial, that the defendant had penetrated her vaginally during the incident that was alleged to have occurred in 2005.
“The defendant's probation was subject to numerous special conditions, including registration as a sexual offender.” State v. Favoccia, supra, 119 Conn.App. at 5 n. 5, 986 A.2d 1081.
The defendant appealed from the judgment of conviction to the Appellate Court, contending that the trial court “abused its discretion in permitting the state to offer certain expert testimony that vouched for and bolstered the credibility of the [complainant]” on four occasions while Melillo testified. Id. at 5–6, 986 A.2d 1081. Relying on, inter alia, State v. Iban C., supra, 275 Conn. 624, 881 A.2d 1005,State v. Freeney, 228 Conn. 582, 637 A.2d 1088 (1994), and State v. Spigarolo, supra, 210 Conn. 359, 556 A.2d 112, the Appellate Court agreed with the defendant, concluding specifically that portions of four challenged colloquies between the prosecutor and Melillo, which discussed only the “general behavioral characteristic[s] of sexually abused children”; State v. Favoccia, supra, 119 Conn.App. at 20, 986 A.2d 1081; were permissible and properly “served to assist the jury in evaluating the [complainant's] conduct and whether it was generally consistent with that of a sexually abused child.” Id. at 21, 986 A.2d 1081. The Appellate Court, however, then concluded that, when “Melillo went beyond a general discussion of characteristics of sexual abuse victims and offered opinions, based on her review of the videotaped forensic interview [of the complainant] and other documentation, as to whether this particular [complainant] in fact exhibited the specified behaviors, her testimony crossed the line of permissible expert opinion.” Id. at 23, 986 A.2d 1081. The court noted specifically: “Melillo opined on whether the [complainant], as mechanismsof coping with sexual abuse, attempted to make herself unattractive to the defendant and remained polite and respectful toward him. During her testimony at trial and in her forensic interview that was before the jury, the [complainant] made such allegations. As a result, Melillo's expert opinion confirming those allegations ‘necessarily endorsed the [complainant's] credibility, and functioned as an opinion as to whether the [complainant's] claims were truthful.’ ... Given Melillo's extensive qualifications and expertise as a forensic interviewer, the jury easily could perceive her testimony ‘as a conclusive opinion that [the complainant] had testified truthfully.’ ” (Citation omitted.) Id. at 23–24, 986 A.2d 1081;see State v. Iban C., supra, at 636, 881 A.2d 1005;State v. Grenier, 257 Conn. 797, 806, 778 A.2d 159 (2001).
Before turning to the merits of the defendant's claims, the Appellate Court rejected the state's contention that they were not adequately preserved for appellate review. See State v. Favoccia, supra, 119 Conn.App. at 14–17, 986 A.2d 1081. The state does not renew its preservation arguments in this certified appeal.
Relying on our analysis in State v. Grenier, supra, 257 Conn. at 807–808, 778 A.2d 159, which, like this case, depended entirely on the jury's assessment of the complainant's credibility because of a lack of physical, medical or eyewitness evidence, the Appellate Court then concluded that it did not have the requisite “fair assurance” that the error did not “substantially affect the jury's verdict,” thus requiring reversal under State v. Sawyer, 279 Conn. 331, 904 A.2d 101 (2006), overruled in part on other grounds by State v. DeJesus, 288 Conn. 418, 454 n. 23, 953 A.2d 45 (2008). See State v. Favoccia, supra, 119 Conn.App. at 27–29, 986 A.2d 1081. In particular, the Appellate Court relied on State v. Angel T., 292 Conn. 262, 294, 973 A.2d 1207 (2009), to determine that the report of jury deadlock in this case indicated that the case against the defendant was not particularly strong, and agreed with the defendant's argument that “any improperly admitted evidence could very well have been sufficient to swing the balance of the jury's deliberations in favor of conviction.” State v. Favoccia, supra, at 28, 986 A.2d 1081; see also id. at 29, 986 A.2d 1081 (“Melillo's endorsement of the [complainant's] credibility very possibly was the deciding factor in the jury's finding of guilt on the risk of injury to a child counts”). Thus, the Appellate Court reversed the judgment of conviction and remanded the case for a new trial. Id., at 30, 986 A.2d 1081. This certified appeal followed. See footnote 1 of this opinion. Additional facts will be set forth where necessary.
The Appellate Court rejected the state's reliance on the fact that the jury did not find the defendant guilty of sexual assault in the second degree, concluding that “merely because the jury did not find, beyond a reasonable doubt, that the defendant had penetrated the [complainant's] vagina as part of the two sexual assaults, does not establish that the jury failed to be influenced by [the improper expert opinion] in reaching guilty verdicts on the risk of injury counts.” (Internal quotation marks omitted.) State v. Favoccia, supra, 119 Conn.App. at 29, 986 A.2d 1081, quoting State v. Iban C., supra, 275 Conn. at 644–45, 881 A.2d 1005.
On appeal, the state contends that the Appellate Court improperly determined that: (1) the challenged portions of Melillo's testimony exceeded the scope of permissible expert testimony about the behavioral characteristics of sexual assault victims; and (2) the evidentiary improprieties required reversal of the conviction. We address each claim in turn.
I
We begin with the state's contention that Melillo's testimony was within the scope of expert testimony about the general behavioral characteristics of sexual assault victims previously held admissible in State v. Spigarolo, supra, 210 Conn. at 379–80, 556 A.2d 112. The state contends more specifically that, because Melillo did not vouch directly for the complainant's credibility or the truthfulness of her allegations, Melillo's testimony that the complainant had exhibited behaviors typical of sexual assault victims generally was admissible pursuant to dicta in State v. Butler, 36 Conn.App. 525, 651 A.2d 1306 (1995), which followed this court's decisions in State v. Borrelli, 227 Conn. 153, 629 A.2d 1105 (1993), and State v. Freeney, supra, 228 Conn. 582, 637 A.2d 1088, and also is analogous to a physician's testimony about the import of the absence of physical trauma held admissible in State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984). The state also contends that the “syllog[ism]” of improper vouching posited by the Appellate Court is belied by the Connecticut Code of Evidence, which permits an expert to form an opinion based on facts made known at the proceeding, and in fact requires such linking between the complainant's behavior and those of sexual assault victims in general in order to create the predicate foundation for Melillo's expert testimony.
In describing the defendant's arguments, the Appellate Court stated: “Put another way, the defendant reasons that the prosecutor purposefully employed a syllogistic approach that began with a major premise—that sexual abuse victims exhibit a certain behavioral characteristic. He then proceeded to a minor premise, in which Melillo opined that she observed that characteristic in this particular [complainant]. Left unstated is the conclusion that the [complainant] in fact suffered sexual abuse.” State v. Favoccia, supra, 119 Conn.App. at 19 n. 9, 986 A.2d 1081.
In response, the defendant, acknowledging the admissibility under State v. Spigarolo, supra, 210 Conn. at 379–80, 556 A.2d 112, of expert testimony about the behaviors of sexual assault victims generally, argues that this court has never specifically permitted an expert witness to connect those behaviors to a particular complainant. Adopting the Appellate Court's syllogistic reasoning, the defendant posits that permitting an expert witness to make that connection, but not opine directly on a complainant's credibility or diagnosis, is the logical equivalent of permitting an expert to testify that the bird acts, walks and quacks like a duck, but then precluding that expert from opining that a particular bird is, in fact, a duck. See also footnote 10 of this opinion. The defendant then cites case law from sister state jurisdictions, such as Wheat v. State, 527 A.2d 269 (Del.1987), and Commonwealth v. Brouillard, 40 Mass.App. 448, 665 N.E.2d 113 (1996), and contends that expert testimony linking a specific complainant to those generalcharacteristics goes beyond the information necessary to educate a jury about how sexual assault victims behave, which amounts to bolstering and making an indirect assertion on the ultimate issue in the case, both of which are forbidden under Connecticut law. We agree with the defendant, and conclude that, although expert witnesses may testify about the general behavioral characteristics of sexual abuse victims, they cross the line into impermissible vouching and ultimate issue testimony when they opine that a particular complainant has exhibited those general behavioral characteristics.
We note that the Appellate Court's opinion and the record set forth the following additional relevant facts and procedural history. During pretrial proceedings, the state disclosed a list of potential witnesses, which included Melillo, who was to “testify as to characteristics of children who claim they were sexually abused.” At trial, Melillo reviewed her extensive experience and training as a school psychologist and forensic interviewer with the multidisciplinary investigative team at the Center for Women and Families of Greater Bridgeport. Melillo then “testified that she had not interviewed or spoken with the [complainant].... Rather, she reviewed certain police reports and a report prepared by Donna Vitulano, her colleague at the Center for Women and Families of Greater Bridgeport, who had conducted a forensic interview with the [complainant]. Melillo testified that she watched the video of that forensic interview twice. In addition, Melillo testified that she had spoken with the prosecutor about the case prior to the commencement of the trial. She opined that her testimony at trial was predicated on her review of ‘the documents, [her] discussions [with the prosecutor] and the DVD [of the forensic interview].’ ” State v. Favoccia, supra, 119 Conn.App. at 7–8, 986 A.2d 1081.
Melillo is “a nationally certified school psychologist, which is the highest level of certification in the practice of school psychology.” She testified that she had practiced for her entire twenty-one year career at Masuk High School in Monroe, where she evaluated and counseled students in grades nine through twelve.
As the Appellate Court noted, Melillo testified that she “had seven years of experience as a forensic interviewer, during which she has conducted ‘between 150 and 160 interviews....' ” State v. Favoccia, supra, 119 Conn.App. at 6, 986 A.2d 1081. She then “attested to her ample training as a forensic interviewer, which involved instruction with respect to behavioral characteristics of children who claimed to have been sexually abused. Her professional training included participation in the CornerHouse model in Minneapolis, Minnesota, the Beyond Finding Words program in Indianapolis, Indiana, and a related program in Huntsville, Alabama, as well as ‘various trainings' in Connecticut.” Id. at 6–7, 986 A.2d 1081.
Melillo explained that “a forensic interview ‘is a structured or semistructured interview process that is neutral, objective and fact-finding’ ” wherein the “ ‘child or adolescent, sit[s] down with an interviewer who is trained to ask nonleading questions to be able to report their experiences or abuse.’ ” State v. Favoccia, supra, 119 Conn.App. at 6 n. 6, 986 A.2d 1081.
“Vitulano's report was not offered into evidence at trial.” State v. Favoccia, supra, 119 Conn.App. at 7 n. 7, 986 A.2d 1081.
The state introduced the DVD of the forensic interview of the complainant into evidence, without objection, following the defendant's objection that Melillo's testimony was based on an exhibit that was not in evidence. Following Melillo's testimony, the jury viewed the video on that DVD as the concluding part of the state's case-in-chief.
As the Appellate Court noted, this appeal centers on “the admission of opinions expressed by Melillo in four separate colloquies with the prosecutor.” Id. at 8, 986 A.2d 1081. The defendant objected to all of these opinions on the ground that they constituted improper statements about the credibility of the “ ‘particular alleged [complainant]’ ”—amounting to “ ‘putting some kind of stamp of approval’ ” on her conduct in violation of State v. Grenier, supra, 257 Conn. at 797, 778 A.2d 159, and cases cited therein. See State v. Favoccia, supra, 119 Conn.App. at 9–13, 986 A.2d 1081. The trial court overruled the objections, concluding in detail with respect to the first challenged question that Melillo “is absolutely not allowed to testify as to [the complainant's] credibility, but she is an expert and can render an opinion, and the jury is entitled to give it whatever weight they deem appropriate based on her expertise.”
Melillo gave her first challenged opinion after she explained in general terms the concepts of “accidental disclosure” and “purposeful disclosure” of sexual abuse, and the prosecutor asked her: “Upon your review of the documents in this case and the video that you reviewed ... would you state for us whether this was an accidental or purposeful disclosure on the part of [the complainant]?” The trial then court overruled the defendant's objection to this question. Later, the following colloquy occurred between the prosecutor and Melillo: “Q. With respect to your formal review of the documents, and ... [ the complainant's ] interview, can you render an opinion about whether her disclosure was an accidental disclosure or a purposeful disclosure?
Melillo testified generally that the “term ‘disclosure’ ... refers to a child making a report, okay. Disclosure is the act of making a report to someone who can do something about it.... Typically ... an adult who is in a position of authority who can intervene in some manner, who has the ability to intervene.” She then explained that there are “accidental disclosures” and “purposeful disclosures.” Melillo defined an “accidental disclosure [as] a situation where a child has decided never to talk about their experiences for various reasons, but, despite the efforts of that child to keep this ... to themselves, it has come out by an accident, by a discovery process outside of themselves.” She then defined a “purposeful disclosure” as occurring when “[t]he child has made a conscious decision to tell someone who can stop [the abuse] or do something about it.” In response to a request by the prosecutor for an example of a purposeful disclosure, Melillo stated that, in her “experience interviewing kids, I find sometimes ... an older child who has been a victim and is worried about the welfare of a younger sibling [will] say, I don't want this to happen to my sister and, therefore, I needed to come out and say something.”
“A. I can render an opinion.
“Q. And what is that based upon?
“A. Based upon my viewing.
“Q. And what is your opinion? Was it accidental or purposeful?
“A. My opinion is [ that ] it was an accidental disclosure.
“Q. Why is that?
“A. Okay. When I was reviewing the [ DVD ] of [ the complainant ] , it was my understanding that she had not wanted to tell someone in a position of authority, a parent, parental figure, what was happening. She had shared it with some girlfriends in confidence, and they said they wouldn't say anything, which we all know teenagers do.... It was my opinion, as I said before, that it was my understanding that [ the complainant ] did not intend to tell, make a purposeful disclosure, and so she shared it with some friends and it came out by accident.” (Emphasis added.)
In the next challenged colloquy, pertaining to the concept of delayed disclosure, Melillo began by explaining that the concept generally reflects the fact that it is “more typical” for child sexual abuse victims, out of shame or fear, “not to share it with somebody who can intervene,” particularly when the abuser is a family member or someone close to them. The prosecutorthen asked Melillo: “[I]n this particular case, upon reviewing the documentation, as well as the DVD, what is your opinion with respect to whether or not [the complainant] engaged in this process that you're talking about, delaying her disclosure? ... Again, what is your opinion with respect to [ the complainant's ] disclosure here? Did she fit the characteristics of a delayed disclosure? ” (Emphasis added.) Melillo responded, “ My opinion is [ that ] she did fit the characteristics of a delayed disclosure.” (Emphasis added.)
Melillo elaborated further during her background testimony, observing that, “we talk about the word ‘disclosure,’ about it being a report or statement from ... the child. Oftentimes, we believe that kids just automatically tell, but what we found is, it's just the opposite. They ... either delay in reporting it or they never tell at all. So, the process of disclosure ... is not one event. It's a process. And delayed disclosures are also found out, people report things that have happened in the past to them.”
Melillo explained that “many factors” are involved with delayed disclosure, including “shame [and] embarrassment. We're asking kids to make public the most shameful types of experience regarding their genitalia or having to do something to somebody else. It is very shaming. Can you imagine the embarrassment of the child?
“Another factor is fear. They are fearful that they are not going to be believed. We socialize our kids that adults are authority figures and who is ever going to believe a kid over an adult's word. Typically, as to the subject of sexual abuse, they believe their word is not going to be heard, so they keep it to themselves.
“The other factor is the fear of the consequences of that. Kids can appraise what's going to happen, what are the ramifications ... if this comes out. Am I going to get blamed? Am I going to get punished? Am I going to get, you know—the family is going to fall apart. There's an impact for them, the people they care about. You know ... also sometimes [there are] threats that are made. You know, if you tell, this is what is going to happen. Sometimes threats are even implied. There are many factors that keep a child from not telling ... what has happened to them....”
Melillo then emphasized that, “if the abuser is known to the child or known to the child in some capacity, whether it be a family member or someone close to them, all the more that, again, they're not going to confront that adult in that situation.”
Next, Melillo testified that her training and experience, and the literature in the field, indicated that “it is very possible” for a child to continue to show signs of respect toward the abuser after the abuse has occurred, which was consistent with the concept of delayed disclosure. The prosecutor then asked Melillo: “[D]id you see any evidence of that in your review of the documentation and, or, the DVD?” After the trial court overruled the defendant's objection to this question, Melillo testified that, “ as I viewed the videotape, again ... I saw her talk about how she, you know, was raised to be polite and respectful and wasn't going to change that behavior ... in a situation like that.” (Emphasis added.)
Melillo testified specifically that: “Oftentimes, if a child has made a decision not to tell anybody and wants to keep this within themselves, they have to cope somehow to maintain that, and if they either act differently than what they are typically doing or don't act in a certain way, that can bring, you know, some suspicion. So, if a person's conduct, a child's conduct, is typically respectful and polite to someone, if they should suddenly change, that might arouse suspicion and then being asked questions, sending a flag to somebody, saying, what's the matter, why aren't you nice to that person anymore. That is a coping method to accommodate keeping that inside them.”
The final opinion at issue concerns Melillo's testimony that female sexual abuse victims would, as a coping mechanism in an attempt to exert control, make themselves look unattractive to their abusers. Over the defendant's objection, Melillo then answered in the affirmative to the prosecutor's question: “Did you note [ the complainant's ] examples of that in the documentation or the DVD? ” (Emphasis added.)
Melillo testified: “There are many ways that a child or teen can cope. Typically, if a child feels kind of powerless and trapped, they might—particularly with some of the females that I work with at the high school level, have told me, I really just made myself look unattractive.” Melillo explained further that “one of the things they can control is how they present themselves, their appearance. So, oftentimes, they might try to make themselves look unattractive, hoping that would turn somebody away. Yes, that is a coping mechanism. That is the way of accommodating something, to be able to control a situation that they really can't control. Similar to what I have said before about changing or not changing a certain behavior to try to cope and survive in a situation.”
We now turn to the applicable background principles as reflected in § 7–3 of the Connecticut Code of Evidence. “The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions.... The court's decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law.... Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues....
.Section 7–3 of the Connecticut Code of Evidence provides: “Opinion on Ultimate Issue
“(a) General rule. Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that, other than as provided in subsection (b), an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue.
“(b) Mental state or condition of defendant in a criminal case. ‘No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto, except that such expert witness may state his diagnosis of the mental state or condition of the defendant. The ultimate issue as to whether the defendant was criminally responsible for the crime charged is a matter for the trier of fact alone.’ General Statutes § 54–86i.”
“The determination of the credibility of a witness is solely the function of the jury.... It is the trier of fact which determines the credibility of witnesses and the weight to be accorded their testimony.... Expert witnesses cannot be permitted to invade the province of the jury by testifying as to the credibility of a particular witness or the truthfulness of a particular witness' claims.... An expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact.... Experts can [however] sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass.” (Citations omitted; internal quotation marks omitted.) State v. Iban C., supra, 275 Conn. at 634–35, 881 A.2d 1005. “[A]n ultimate issue [is] one that cannot reasonably be separated from the essence of the matter to be decided [by the trier of fact].” (Internal quotation marks omitted.) State v. Beavers, 290 Conn. 386, 415, 963 A.2d 956 (2009). In a sexual assault case wherein the subject of the perpetrator's identity is not a matter of dispute, and the defense focuses on the credibility of the complainant, “the ultimate issue ... [is] whether the [complainant] had been sexually abused”; State v. Iban C., supra, at 638 n. 10, 881 A.2d 1005; and expert testimony vouching for the complainant's credibility is “not helpful to the jury in deciding [that] precise question....” Id. at 637, 881 A.2d 1005.
Connecticut's leading case on this topic is State v. Spigarolo, supra, 210 Conn. 359, 556 A.2d 112, wherein this court concluded that, “where defense counsel has sought to impeach the credibility of a complaining minor witness in a sexual abuse case, based on inconsistency, incompleteness or recantation of the victim's disclosures pertaining to the alleged incidents, the state may offer expert testimony that seeks to demonstrate or explain in general terms the behavioral characteristics of child abuse victims in disclosing alleged incidents.” (Emphasis added.) Id. at 380, 556 A.2d 112. Such “expert testimony is admissible because the consequences of the unique trauma experienced by minor victims of sexual abuse are matters beyond the understanding of the average person.... Consequently, expert testimony that minor victims typically fail to provide complete or consistent disclosures of the alleged sexual abuse is of valuable assistance to the trier in assessing the minor victim's credibility.” (Citations omitted.) Id. at 378, 556 A.2d 112. In upholding the admission of direct examination expert testimony by a hospital clinical social worker “that it is not unusual for alleged [child sexual] abuse victims to give apparently inconsistent stories”; id. at 376, 556 A.2d 112; the court in Spigarolo rejected the defendant's argument that such testimony “ ‘usurped’ the jury's function of assessing the credibility of witnesses,” emphasizing that the expert “was not asked about the credibility of the particular victims in this case, nor did she testify as to their credibility. The cases that have considered this issue have noted the critical distinction between admissible expert testimony on general or typical behavior patterns of minor victims and inadmissible testimony directly concerning the particular victim's credibility.” Id. at 378–79, 556 A.2d 112.
The state need not wait until its rebuttal case to introduce the type of evidence regarding the general behavioral characteristics of minor sexual assault victims that was recognized in Spigarolo; it may do so in its casein-chief “once the victim has testified and there has been testimony introducing the alleged dates of abuse and reporting.” State v. Cardany, 35 Conn.App. 728, 731, 646 A.2d 291, cert. denied, 231 Conn. 942, 653 A.2d 823 (1994).
The court noted that the defendant had attempted to impeach the testimony of the victims by questioning them on cross-examination about the inconsistencies and omissions in their various disclosures of abuse to the police and other parties investigating the allegations. See State v. Spigarolo, supra, 210 Conn. at 377, 556 A.2d 112.
Our cases following Spigarolo continue to recognize the value of generalized expert testimony to explain to the jury what might seem to the layperson to be atypical behavior exhibited by victims of various kinds of assaults, so long as that opinion testimony does not directly vouch for their credibility or veracity. See State v. Ali, 233 Conn. 403, 431–33, 660 A.2d 337 (1995) (rape trauma syndrome and adult sexual assault victims); State v. Freeney, supra, 228 Conn. at 589–93, 637 A.2d 1088 (common behaviors of adult sexual assault victims with respect to reporting and recall of events); State v. Borrelli, supra, 227 Conn. at 168–69, 629 A.2d 1105 (battered woman's syndrome to explain recanting and returns to relationship).
Subsequent case law has, however, emphasized the danger of an expert witness, particularly one who has treated or evaluated a complainant, vouching indirectly for that complainant's credibility as well. In State v. Grenier, supra, 257 Conn. at 805–806, 778 A.2d 159, we concluded that the trial court had improperly admitted testimony from a clinical psychologist stating that she had treated the then six year old victim “for the trauma of the abuse that [she] experienced,” reasoning that it constituted “an indirect assertion that validated the truthfulness of [the victim's] testimony.” (Internal quotation marks omitted.) Following State v. Ali, supra, 233 Conn. at 432, 660 A.2d 337,State v. Freeney, supra, 228 Conn. at 592, 637 A.2d 1088, and State v. Borrelli, supra, 227 Conn. at 173–74, 629 A.2d 1105, we determined that this indirect assertion ran afoul of the rule that an “expert may not testify regarding the credibility of a particular victim” because, although it “was not a literal statement of her belief in [the victim's] truthfulness, such testimony had the same substantive import and could be perceived as a conclusive opinion that [the victim] had testified truthfully.” (Internal quotation marks omitted.) State v. Grenier, supra, at 806, 778 A.2d 159.
We also concluded in State v. Grenier, supra, 257 Conn. at 805–806, 778 A.2d 159, that separate testimony by a child counselor, who had interviewed the victim, that she found “ ‘very credible’ ” the victim's allegations of sexual abuse constituted an improper “direct assertion that validated the truthfulness of [the victim's] testimony.” (Internal quotation marks omitted.)
Similarly, in State v. Iban C., supra, 275 Conn. at 627–29, 881 A.2d 1005, our most recent decision addressing this point comprehensively, the five year old victim had alleged that the defendant had fondled and kissed her inappropriately on two occasions; a physical examination revealed no injury. The victim subsequently was examined by a pediatrician, who included both in her written report, admitted into evidence at trial, and in her trial testimony a “diagnosis of ‘[c]hild [s]exual [a]buse’ based both on her physical examination and the victim's history developed by the investigation team.” Id. at 629, 881 A.2d 1005. Following, inter alia, State v. Grenier, supra, 257 Conn. at 806, 778 A.2d 159, we concluded that “the trial court abused its discretion by admitting into evidence [the pediatrician's] diagnosis of ‘[c]hild [s]exual [a]buse’ via her unredacted written report and her direct testimony. First, because [the pediatrician] did not find any physical evidence of a sexual assault, in order for the jury to find the defendant guilty ... it had to find the victim's account of both ... incidents to be credible. In short, the victim's credibility was central to the state's case. Indeed, by [the pediatrician's] own admission, her diagnosis depended on a belief in this same credibility because her ultimate assessment was based almost entirely on the history provided by the victim and the victim's mother to the investigation team. [The pediatrician's] diagnosis of child sexual abuse, therefore, necessarily endorsed the victim's credibility, and functioned as an opinion as to whether the victim's claims were truthful.” State v. Iban C., supra, at 636, 881 A.2d 1005; see id. at 637, 881 A.2d 1005 (“in the present case [the pediatrician's] written report containing a diagnosis of ‘[c]hild [s]exual [a]buse’ and her testimony affirmatively stating that same diagnosis, constituted an indirect assertion as to the truthfulness of the victim's testimony”). Further, we noted that this evidence “was not helpful to the jury in deciding the precise question on which it had to pass”; id. at 637, 881 A.2d 1005; and distinguished Iban C. from cases upholding the admission of testimony to the effect that a lack of physical injury is consistent with allegations of sexual assault, noting that those cases did not implicate specific and definitive diagnoses. See id. at 638–39, 881 A.2d 1005.
Specifically, the pediatrician testified on direct examination that because genital injuries heal quickly, “the majority of the examinations of children who have been sexually abused yield normal results”; State v. Iban C., supra, 275 Conn. at 632, 881 A.2d 1005; and then “acknowledged [on cross-examination] that such a result was also consistent with a child who had not been sexually abused.” Id. at 632–33, 881 A.2d 1005.
The facts of the present case present a delicate middle ground between the generalized behavioral testimony held admissible in Spigarolo and the more pointed diagnoses held inadmissible in Grenier and Iban C. Inasmuch as this is an issue of first impression for this court, we turn for guidance to cases from the federal courts and our sister states, which are divided with respect to the admissibility of expert testimony that compares or links observations of the complainant to the behaviors of sexual assault victims generally. Our research indicates that a persuasive minority of eleven states specifically preclude or have disapproved of the admission of such evidence, including our immediate neighbor to the north. In Commonwealth v. Trowbridge, 419 Mass. 750, 647 N.E.2d 413 (1995), which, like this case, involved allegations of sexual abuse without evidence of physical injury, and thus rested entirely on the credibility of the victim; see id. at 752–53, 647 N.E.2d 413; a pediatric gynecologist who had examined the victim also testified as an expert witness, first “outlining the behavioral characteristics of sexually abused children. She then described the child's behavior during a gynecological visit. The [physician] testified that the child clung to her mother and avoided eye contact. When asked whether this behavior was consistent with that of a sexually abused child, the [physician] agreed that it was ‘a common reaction to a child who has been sexually abused.’ ” Id. at at 758–59, 647 N.E.2d 413. The Massachusetts Supreme Judicial Court concluded that the expert's testimony was improper because “[a]lthough expert testimony on the general behavioral characteristics of sexually abused children is permissible, an expert may not refer or compare the child to those general characteristics.... Such testimony impermissibly intrudes on the jury's province to assess the credibility of the witness.” (Citation omitted.) Id. at 759, 647 N.E.2d 413; see id. at 760, 647 N.E.2d 413 (“Although the [physician's] opinion fell short of rendering an opinion on the credibility of the child witness, this testimony came impermissibly close to an endorsement of the child's credibility. Such testimony could substantially influence the jury's decision about whom to believe.” [Internal quotation marks omitted.] ); see also Commonwealth v. Federico, 425 Mass. 844, 849 n. 9, 683 N.E.2d 1035 (1997) (“unrealistic to allow [comparative] expert testimony and then expect jurors to ignore it when evaluating the credibility of the complaining child” [internal quotation marks omitted] ); Commonwealth v. Brouillard, supra, 40 Mass.App. at 452, 665 N.E.2d 113 (The court concluded that the expert witness “far exceeded permissible testimonial boundaries. He explicitly connected the complainants to general syndromes associated with sexual abuse, thereby impermissibly vouching for the complainants and invading the jury's province of assessing witness credibility.”). As the Massachusetts Appeals Court has noted: “It is one thing to educate the jury to understand that child abuse victims may act in counterintuitive ways, and that excessive weight should not be given to factors such as failure to disclose when the child victim's credibility is weighed.... It is quite another to suggest to the jury that the events and feelings expressed by the child witnesses are the same as those experienced by other victims of abuse. That this has the effect of buttressing the witnesses' credibility seems impossible to deny.” (Citations omitted.) Commonwealth v. Deloney, 59 Mass.App. 47, 59, 794 N.E.2d 613, review denied, 440 Mass. 1105, 798 N.E.2d 286 (2003).
See, however, our discussion of State v. Iban C., supra, 275 Conn. at 635–37, 881 A.2d 1005, in the text accompanying footnotes 35 and 36 of this opinion. Cf. State v. Borrelli, supra, 227 Conn. at 173–74, 629 A.2d 1105;id. at 173 n. 16, 629 A.2d 1105 (“By noting that [the expert] did not testify that the victim was a battered spouse, we do not imply that such testimony would have implicitly commented on her credibility. Rather, in the context of this case, we need not decide whether an expert witness may offer his or her opinion as to whether a spouse is a battered spouse, nor decide whether such an opinion would implicitly comment on the credibility of the spouse.”).
Researching the precise contours of this issue, both independently and with the aid of citations from the parties' briefs, has been complicated by the unfortunate myriad of cases that involve child sexual assault, and the fact that many use language that does not reflect precisely the nature of the testimony at issue. We note then, that a majority of the jurisdictions to have considered this question, twenty-one federal and state courts, deem admissible expert testimony that a particular complainant has exhibited behavioral characteristics identified as those of sexual assault victims—so long as the expert does not offer an ultimate conclusion on the issue of sexual abuse or opine directly on the complainant's veracity. See United States v. Charley, 189 F.3d 1251, 1268–69 (10th Cir.1999); United States v. Johns, 15 F.3d 740, 743 (8th Cir.1994); People v. Rojas, 181 P.3d 1216, 1221 (Colo.App.2008), review denied, 2008 WL 4840037, 2008 Colo. LEXIS 1032 (November 10, 2008); Brownlow v. State, 248 Ga.App. 366, 368, 544 S.E.2d 472 (2001), cert. denied, 2001 Ga. LEXIS 539 (June 25, 2001); People v. Pollard, 225 Ill.App.3d 970, 978, 168 Ill.Dec. 61, 589 N.E.2d 175, appeal denied, 145 Ill.2d 641, 173 Ill.Dec. 11, 596 N.E.2d 635 (1992); State v. Tonn, 441 N.W.2d 403, 405 (Iowa App.1989); State v. McIntosh, 274 Kan. 939, 959–60, 58 P.3d 716 (2002); People v. Peterson, 450 Mich. 349, 373–74, 537 N.W.2d 857 (1995); State v. Davis, 422 N.W.2d 296, 299 (Minn.App.1988); Bishop v. State, 982 So.2d 371, 381 (Miss.2008); State v. Silvey, 894 S.W.2d 662, 671 (Mo.1995); State v. Stancil, 355 N.C. 266, 266–67, 559 S.E.2d 788 (2002); State v. Tibor, 738 N.W.2d 492, 496–98 (N.D.2007); State v. Stowers, 81 Ohio St.3d 260, 262–63, 690 N.E.2d 881 (1998); State v. Lupoli, 348 Or. 346, 362, 234 P.3d 117 (2010); State v. Edelman, 593 N.W.2d 419, 423–24 (S.D.1999); Schutz v. State, 957 S.W.2d 52, 73–74 (Tex.Crim.App.1997); State v. Jones, 71 Wash.App. 798, 819–20, 863 P.2d 85 (1993); State v. Jensen, 147 Wis.2d 240, 256–57, 432 N.W.2d 913 (1988); Frenzel v. State, 849 P.2d 741, 746 (Wyo.1993); see also Wittrock v. State, Docket No. 373, 1992, 630 A.2d 1103, 1993 Del. LEXIS 308 (Del. July 27, 1993) (expert's testimony was permissible under Wheat v. State, supra, 527 A.2d at 274, because she “explained the significance of both the victim's and her mother's actions and statements without passing judgment on the credibility of either witness' testimony”); cf. Lickey v. State, 108 Nev. 191, 196, 827 P.2d 824 (1992) (noting that Nev.Rev.Stat. § 50.345 expressly permits expert testimony “to [show] that the victim's behavior or [mental or physical] condition is consistent with that of a sexual assault victim,” but it remains “improper for an expert to comment directly on whether the victim's testimony was truthful, because that would invade the prerogative of the jury”).
Our research has revealed that four other states permit experts to draw behavioral comparisons between complainants and victims in general; their decisions are not instructive with respect to the development of Connecticut law because they are decisions from courts that also permit experts to opine directly about whether a victim has been sexually abused—a holding directly at odds with our decision in State v. Iban C., supra, 275 Conn. at 636–37, 881 A.2d 1005—so long as they do not vouch directly for the credibility of the complainant's trial testimony or allegations vis-á-vis the defendant. See Tingle v. State, 536 So.2d 202, 205 (Fla.1988); State v. Ransom, 124 Idaho 703, 709–10, 864 P.2d 149 (1993); State v. Schumpert, 312 S.C. 502, 506, 435 S.E.2d 859 (1993); State v. Edward Charles L., 183 W.Va. 641, 659, 398 S.E.2d 123 (1990).
We note that three jurisdictions, Kentucky, Pennsylvania and Tennessee, go further and prohibit even generalized expert testimony about behaviors of child sexual assault victims, considering it to be a scientifically unfounded incursion into the jury's role of determining the credibility of witnesses. See Sanderson v. Commonwealth, 291 S.W.3d 610, 614 (Ky.2009); Commonwealth v. Dunkle, 529 Pa. 168, 183, 602 A.2d 830 (1992); State v. Bolin, 922 S.W.2d 870, 873–74 (Tenn.1996); see also Commonwealth v. Dunkle, supra, at 183, 602 A.2d 830 (concluding that rehabilitation concern is best addressed through “an instruction to the jury that they should consider the reasons why the child did not come forward, including the age and circumstances of the child in the case”).
Indeed, the Massachusetts courts view expert testimony linking the specific complainant to general behaviors of sexual abuse victims as so prejudicial that they even prohibit the use of detailed hypothetical questions that closely track the facts of the actual case. See Commonwealth v. Federico, supra, 425 Mass. at 850–51, 683 N.E.2d 1035; see also Commonwealth v. Deloney, supra, 59 Mass.App. at 58, 794 N.E.2d 613 (“[t]he vivid portrait of the child who does not disclose was, in essence, a portrait of [the complainant]”).
Similarly, in applying this court's decision in State v. Spigarolo, supra, 210 Conn. 359, 556 A.2d 112, the Vermont Supreme Court emphasized in dicta that the “conduct of a child who has been sexually abused, and the emotional antecedents underlying this conduct, can be effectively explained to the jury through testimony relating to the class of victims in general.... Expert testimony concerning the particular complainant must be approached with caution, as it too often slips into impermissible comment on the complainant's credibility.” (Citations omitted; emphasis added.) State v. Sims, 158 Vt. 173, 181, 608 A.2d 1149 (1991). Indeed, even the Michigan Supreme Court, which, as a balancing measure permits for rehabilitation purposes the admission of expert testimony linking general behavioral characteristics of sexual assault victims to particular complainants, nevertheless acknowledges that such testimony “comes too close to testifying that the particular child is a victim of sexual abuse.” People v. Peterson, 450 Mich. 349, 374–75, 537 N.W.2d 857, amended on other grounds, 450 Mich. 1212, 548 N.W.2d 625 (1995). The Michigan court further recognizes that the risk of experts vouching for the complainants' credibility in child sexual assault cases is heightened by “the nature of the offense and the terrible consequences of a miscalculation” given that, “[t]o a jury recognizing the awesome dilemma of whom to believe, an expert will often represent the only seemingly objective source, offering it a much sought-after hook on which to hang its hat.” (Internal quotation marks omitted.) Id. at 374, 537 N.W.2d 857, quoting People v. Beckley, 434 Mich. 691, 721–22, 456 N.W.2d 391 (1990).
The Vermont Supreme Court determined that the particular questions to the counselor at issue were improper, but further concluded that the defendant's claims were not preserved and that the improprieties did not rise to the level of plain error requiring reversal. See State v. Sims, supra, 158 Vt. at 181–82, 608 A.2d 1149.
We discuss in detail People v. Peterson, supra, 450 Mich. 349, 537 N.W.2d 857, because it is the only case in the majority revealed by our research; see footnote 26 of this opinion; that provides more than a perfunctory explanation in support of the admission of expert testimony that links specific complainants with the general behavioral characteristics of sexual assault victims. In Peterson, the Michigan Supreme Court concluded that “the prosecution may present evidence, if relevant and helpful, to generally explain the common postincident behavior of children who are victims of sexual abuse. The prosecution may, in commenting on the evidence adduced at trial, argue the reasonable inferences drawn from the expert's testimony and compare the expert testimony to the facts of the case. Unless a defendant raises the issue of the particular child victim's postincident behavior or attacks the child's credibility, an expert may not testify that the particular child victim's behavior is consistent with that of a sexually abused child.” (Emphasis added.) People v. Peterson, supra, at 373–74, 537 N.W.2d 857. In limiting consistency or comparison testimony to postimpeachment of the victim, the court “reiterate[d] the concerns about such testimony” previously raised in its decision in People v. Beckley, 434 Mich. 691, 456 N.W.2d 391 (1990), namely, that linking testimony is “improper because it comes too close to testifying that the particular child is a victim of sexual abuse.” People v. Peterson, supra, at 374, 537 N.W.2d 857. In its earlier decision in Beckley, followed in Peterson, though, the court had observed a “meaningful distinction between expert testimony that a particular child was sexually abused, and expert testimony that a child demonstrates behaviors commonly observed in the class of sexually abused children. In the latter case, the expert does not offer a direct opinion on the ultimate question of whether abuse occurred.” (Emphasis added; internal quotation marks omitted.) People v. Beckley, supra, at 727–28, 456 N.W.2d 391.
We decline to follow the Michigan Supreme Court's analysis of this issue in Peterson and Beckley because the distinction between direct and indirect vouching, upon which the court apparently relies, is at odds with our decisions that consistently have held that an expert may not vouch for a witness' credibility either directly or indirectly. See State v. Iban C., supra, 275 Conn. at 637, 881 A.2d 1005;State v. Grenier, supra, 257 Conn. at 806, 778 A.2d 159. Indeed, the analytical importance to the linking inquiry of acceptance of the concept of indirect vouching is borne out in United States v. Charley, 189 F.3d 1251, 1269 n. 25 (10th Cir.1999), wherein the United States Court of Appeals for the Tenth Circuit, in, inter alia, rejecting a vouching challenge to expert testimony that a complainant's behaviors were consistent with those of child sexual abuse victims, specifically criticized the decisions of the “courts [that] have held that a counselor's testimony that [the alleged victim] was referred to me for sexual abuse recovery counseling constitutes impermissible vouching and is therefore inadmissible.” (Internal quotation marks omitted.) Id., quoting State v. Haslam, 663 A.2d 902, 905–906 (R.I.1995). This, of course, was the very testimony that we held inadmissible in Grenier.
Moreover, the majority in Peterson does not explain, beyond a conclusory mention of “balancing” interests, how allowing the admission of comparative or linking testimony only after the complainant's credibility has been attacked; see People v. Peterson, supra, 450 Mich. at 374, 537 N.W.2d 857; renders it any less prejudicial, and we agree with the observation to that effect by the dissenting justice, who also stated that, “[o]nce the expert has given testimony disabusing the seemingly inconsistent behavioral reaction, the jury has all of the information that it needs to assess the complainant's credibility. The marginal probative value of allowing the expert to further testify with respect to the particular complainant is substantially outweighed by the danger of unfair prejudice that the jury will misuse the testimony. It invades the province of the jury to assess credibility. It invites the jury to give undue weight to testimony that is foundationally and fundamentally unreliable merely because it is cloaked with the expertise of an expert. It also invites the jury to believe that the expert knows more than he is telling, by letting the jurors infer that the expert, who works with sexually abused children every day, must believe this child's story or else the expert would not be testifying.” Id. at 391, 537 N.W.2d 857 (Cavanagh, J., dissenting).
Other courts have aptly observed that testimony linking a specific complainant to the general behavioral characteristics of sexual assault victims poses the risk of the jury improperly using those behaviors offensively as substantive proof that the complainant was sexually assaulted, rather than properly to respond defensively to impeachment by explaining behaviors that might otherwise impact her credibility, as we contemplated in State v. Spigarolo, supra, 210 Conn. at 379–80, 556 A.2d 112. As noted by the Indiana Supreme Court, “[w]here a jury is confronted with evidence of an alleged child victim's behaviors, paired with expert testimony concerning similar syndrome behaviors, the invited inference—that the child was sexually abused because he or she fits the syndrome profile—will be as potentially misleading and equally as unreliable as expert testimony applying the syndrome to the facts of the case and stating outright the conclusion that a given child was abused.” Steward v. State, 652 N.E.2d 490, 499 (Ind.1995); see Haakanson v. State, 760 P.2d 1030, 1036 (Alaska App.1988) (Decisions of the Alaska Court of Appeals have “permit[ted] expert testimony that responds to a defense claim that a complaining witness' conduct is inconsistent with being sexually abused by showing that similar conduct is exhibited by those who are sexually abused. These decisions do not permit testimony offered to prove that the complaining witness is sexually abused by showing that the complaining witness exhibits behavior similar to that exhibited by sexually abused children.”); People v. Roscoe, 168 Cal.App.3d 1093, 1100, 215 Cal.Rptr. 45 (1985) (“the expert testimony ... to permit rehabilitation of a complainant's credibility is limited to discussion of victims as a class, supported by references to literature and experience [such as an expert normally relies upon] and does not extend to discussion and diagnosis of the witness in the case at hand”); State v. Sargent, 148 N.H. 571, 576, 813 A.2d 402 (2002) (after attack on complainant's credibility, “expert testimony on the general characteristics or tendencies of abused children or other abuse victims [is] admissible, while testimony about specific details based upon the individual facts or psychological analysis of any victim is not”); State v. W.B., 205 N.J. 588, 611, 17 A.3d 187 (2011) (The New Jersey Supreme Court concluded that testimony regarding child sexual abuse accommodation syndrome “cannot be used as probative testimony of the existence of sexual abuse in a particular case.... Therefore, introduction of such testimony will be upheld so long as the expert does not attempt to ‘connect the dots' between the particular child's behavior and the syndrome, or opine whether the particular child was abused.” [Citation omitted.] ); People v. Mercado, 188 App.Div.2d 941, 942–43, 592 N.Y.S.2d 75 (1992) (social worker's testimony that “ ‘show[ed] the manifestations of sexual abuse that the youngsters exhibit’ ” was “impermissible” because it went “beyond merely serving to explain what would otherwise be viewed by the jury as evidence tending to exculpate the person charged, such as a failure to timely report either the abuse or the name of the family member who was the abuser, and constitutes an impermissible comparison of the complainants' behavior with that commonly associated with victims of these crimes”).
Justice Zarella, in his dissenting opinion, states that “[t]he jury will need to be apprised of both the general behavioral characteristics of sexual abuse victims and whether the behavior of the alleged victim in a particular case is demonstrably similar,” noting that “[f]ailure to demonstrate that consistency—or inconsistency—will render the expert's testimony irrelevant and unhelpful, particularly in cases in which the behavioral traits are not common or readily understood by the average juror.” (Emphasis in original.) We disagree. First, from a relevance perspective, the foundation for the expert's testimony about the general behaviors of sexual assault victims is laid by the evidence admitted concerning the complainant's conduct; further comparison is not necessary to establish the relevance of the expert's testimony. See authorities cited in footnotes 32 and 33 of this opinion and accompanying text. Second, Justice Zarella's approach appears to go well beyond the defensive use of such expert testimony envisioned in State v. Spigarolo, supra, 210 Conn. at 377–80, 556 A.2d 112, insofar as it allows the admissibility of expert testimony to introduce the existence of victim behavior that is not “readily understood by the average juror.” Rather, Spigarolo contemplates that such expert testimony is admissible only to explain behaviors, like initial denial or partial disclosures, that are apparent from the evidence, but might otherwise reflect adversely on the complainant's credibility if not explained by the expert. Put differently, Justice Zarella appears to permit such behavioral evidence to be used offensively to prove the very occurrence of sexual abuse—a purpose not yet recognized under Connecticut case law—rather than defensively by the prosecution to address behaviorally-oriented attacks on a complainant's credibility. See State v. Spigarolo, supra, at 380, 556 A.2d 112 (“where defense counsel has sought to impeach the credibility of a complaining minor witness in a sexual abuse case, based on inconsistency, incompleteness or recantation of the victim's disclosures pertaining to the alleged incidents, the state may offer expert testimony that seeks to demonstrate or explain in general terms the behavioral characteristics of child abuse victims in disclosing alleged incidents”).
We note that subsequent cases from the New York Court of Appeals have cited People v. Mercado, supra, 188 App.Div.2d 941, 592 N.Y.S.2d 75, with approval in upholding the admission of expert testimony that describes assault victims' general behavioral characteristics, but does not compare or link those characteristics to the specific complainant. See People v. Spicola, 16 N.Y.3d 441, 462–65, 947 N.E.2d 620, 922 N.Y.S.2d 846 (2011) (distinguishing cases with linking testimony and concluding that trial court properly admitted testimony about behaviors when expert testified that he had not interviewed victim and was not familiar with allegations, despite fact that hypothetical questions very closely mirrored facts of case); People v. Carroll, 95 N.Y.2d 375, 387, 740 N.E.2d 1084, 718 N.Y.S.2d 10 (2000) (upholding admission of expert testimony about child sexual abuse accommodation syndrome “for the purpose of instructing the jury about possible reasons why a child might not immediately report incidents of sexual abuse” and emphasizing that expert “never opined that defendant committed the crimes, that defendant's stepdaughter was sexually abused, or even that her specific actions and behavior were consistent with such abuse ” [emphasis added] ).
Finally, courts have observed that expert testimony linking the specific complainants to the generalized behaviors is simply unnecessary “[o]nce the jury has learned the victim's behavior from the evidence and has heard experts explain why sexual abuse may cause delayed reporting, inconsistency, or recantation,” meaning that the jury does not “[need] an expert to explain that the victim's behavior is consistent or inconsistent with the crime having occurred.” State v. Moran, 151 Ariz. 378, 385, 728 P.2d 248 (1986); see State v. Batangan, 71 Haw. 552, 558, 799 P.2d 48 (1990) (following Moran because “jury is fully capable, on its own, of making the connections to the facts of the particular case before them and drawing inferences and conclusions therefrom”); People v. Beckley, supra, 434 Mich. at 748, 456 N.W.2d 391 (Archer, J., dissenting) (“Once an expert witness presents evidence disabusing the specific misconception at hand, such as delayed disclosure, syndrome evidence has served its proper function. This function can be accomplished just as effectively without reference to the complainant before the court.”).
Although we agree with the observations of both Justice Palmer and Justice Zarella in their dissenting opinions that expert testimony is relevant to explain otherwise peculiar behavior by sexual assault victims that a layperson might interpret incorrectly and adversely to a complainant's credibility, we observe that neither Justice Zarella nor the authority that he cites for the point that “an expert is needed to explain the behaviors associated with sexual abuse victims and opine on whether the alleged victim exhibited these unusual behaviors ”; (emphasis added) State v. Davis, 422 N.W.2d 296, 299 (Minn.App.1988); explains why expert testimony is necessary to inform the jury factually “whether the alleged victim exhibited these unusual behaviors,” or the relative value of such testimony. This is particularly so where the reason for permitting the introduction of the expert testimony is to explain behaviors that have been made apparent to the jurors from the evidence.
See also Mindombe v. United States, 795 A.2d 39, 45 n. 9 (D.C.2002) (criticizing holding of People v. Peterson, supra, 450 Mich. at 373–74, 537 N.W.2d 857, as “probably go[ing] too far”), cert. denied, 537 U.S. 1234, 123 S.Ct. 1355, 155 L.Ed.2d 200 (2003); State v. Ste. Marie, 801 So.2d 424, 429–30 (La.App.2001) (testimony that victims' affect and behavior was “ ‘consistent with the pattern of behavior of children who report sexually assaultive behavior’ ” violated State v. Foret, 628 So.2d 1116 [ (La.1993) ], which had adopted “general behavioral characteristics” rule enunciated in State v. Spigarolo, supra, 210 Conn. at 379–80, 556 A.2d 112).
Citing our decision in State v. Iban C., supra, 275 Conn. at 635, 881 A.2d 1005, and dicta from the Appellate Court's decision in State v. Butler, supra, 36 Conn.App. at 525, 651 A.2d 1306, the state argues, however, that expert testimony that a specific complainant has exhibited certain behaviors that are characteristic of sexual assault victims in general is admissible under Connecticut law. We begin with the relevant language from Iban C., namely: “[W]e have found expert testimony stating that a victim's behavior was generally consistent with that of a victim of sexual or physical abuse to be admissible, and have distinguished such statements from expert testimony providing an opinion as to whether a particular victim had in fact suffered sexual abuse. See State v. Freeney, supra, 228 Conn. at 592–93, 637 A.2d 1088 (court admitted expert testimony regarding consistency of victim's behavior stating that ‘neither expert gave an opinion as to whether this particular victim had ... in fact suffered physical or sexual abuse’).” (Emphasis in original.) State v. Iban C., supra, at 635, 881 A.2d 1005; see also id. at 636, 881 A.2d 1005 (The court concluded that the pediatrician's report and testimony were improperly admitted because, inter alia, they “were not limited to the conclusion that the physical evidence and the victim's behavior were consistent with that of other victims of sexual abuse. Rather, they provided the jury with an opinion that the victim had suffered sexual abuse in the present case.”). This passage from Iban C. is not dispositive of this appeal because it was dicta. First, Iban C. required us to consider only the distinct issue of the admissibility of a behaviorally based diagnosis of “[c]hild [s]exual [a]buse,” rather than the more nuanced testimony at issue in this appeal, which stops short of an actual diagnosis or conclusion and instead states that a complainant's behavior was consistent with that of a sexual abuse victim. See id. at 632–33, 881 A.2d 1005. Thus, the legal and policy considerations that we consider in this appeal simply were not before us in that case.
Second, Iban C. 's reliance on State v. Freeney, supra, 228 Conn. at 592–93, 637 A.2d 1088, in support of the proposition that an expert may link a specific complainant's behavior to identified general characteristics of sexual assault victims, is overbroad. Although Freeney, which involved an adult sexual assault and kidnapping victim, did consider the admissibility of behavioral testimony that was at least partially comparative in nature as a factual matter, the comparative nature of the testimony was not directly at issue therein, as Freeney considered only the broader topic of general behaviors of adult assault victims. See id. Thus, we conclude that this language in Iban C. is dicta and does not represent a holding of this court that is dispositive precedent with respect to this appeal.
See State v. Freeney, supra, 228 Conn. at 590 n. 7, 637 A.2d 1088 (social worker answered affirmatively to question of whether “it [is] common to have someone in the early stages of their admission to your hospital, as was this victim ... not to be able to tell you all the details of the event that brought them there” [emphasis added; internal quotation marks omitted] ).
The state also likens the testimony at issue in this case linking the complainant to behaviors of sexual assault victims generally to expert testimony that a victim's physical injuries, or lack thereof, are consistent with sexually assaultive acts, which has been held admissible in Connecticut as not a usurpation of the jury's fact-finding function. Compare, e.g., State v. Rodgers, 207 Conn. 646, 652, 542 A.2d 1136 (1988) (physician's testimony that victim's “injury was consistent with rape by rectal penetration”) with, e.g., State v. Esposito, supra, 192 Conn. at 175, 471 A.2d 949 (physician properly testified that “absence of vaginal trauma in [the victim's] case was consistent with her findings in the cases of other rape complainants”). We reject the state's contention, and instead agree with those authorities that have held distinct, for purposes of determining whether an expert is improperly opining as to the ultimate issue, testimony about behaviors versus physical injuries, particularly given the heightened risk of vouching when an expert's testimony concerns purely behavioral issues. See State v. Moran, supra, 151 Ariz. at 383 n. 4, 728 P.2d 248; see also Commonwealth v. Colon, 64 Mass.App. 303, 311–12, 832 N.E.2d 1154 (expert testimony that child's vaginal injuries were likely result of “intentional act” and would be “ ‘exceedingly rare’ ” if accidental is distinguishable from cases that “involve expert testimony in the absence of physical injury, and the impermissible linking of general behavior characteristics of abused children to the victim”), review denied, 445 Mass. 1103, 835 N.E.2d 254 (2005).
The state accurately notes that, in State v. Butler, supra, 36 Conn.App. at 525, 651 A.2d 1306, the Appellate Court, in providing guidance with respect to issues likely to arise at a new trial, rejected the defendant's claim that the trial court improperly allowed a child psychologist “to testify to consistencies in the behavior of the victim with sexually abused children in general” because that “testimony interferedwith the jury's duty to assess the credibility of the victim and went to an ultimate issue of fact to be determined by the jury.” Id. at 536–37, 651 A.2d 1306. Relying on State v. Freeney, supra, 228 Conn. at 592, 637 A.2d 1088, as standing for the proposition that “our Supreme Court upheld the admission of expert testimony that the victim's behavior was consistent with that of victims of sexual assault,” the Appellate Court concluded that a child psychologist properly had testified that “the victim exhibited three responses that were typical of victims of sexual abuse....” State v. Butler, supra, at 537, 651 A.2d 1306. In our view, the Appellate Court's reliance in Butler on Freeney suffers from the same flaw as our discussion of Freeney in State v. Iban C., supra, 275 Conn. at 635, 881 A.2d 1005.Butler also preceded, and therefore does not reflect, the import of State v. Grenier, supra, 257 Conn. at 806, 778 A.2d 159, holding inadmissible even “indirect assertions” vis-á-vis the truthfulness of the victim's testimony.
The Appellate Court had ordered a new trial because of a hospital social worker's improper testimony that she believed that the complainant was telling the truth about, and had not fabricated, her allegations about having been sexually abused by her grandfather. See State v. Butler, supra, 36 Conn.App. at 528–29, 532, 651 A.2d 1306.
In Butler, after describing characteristics of victims of child sexual abuse generally, such as “depression, moodiness, sleep and appetite problems, bedwetting, difficulty concentrating, and low self-esteem,” the psychologist was asked, over the defendant's objection, “whether his review of the police report and arrest warrant in this case disclosed information that was characteristically common to many victims of sexual abuse.... [The psychologist then] testified that there were three elements in this case that were consistent with reactions of child victims of sexual abuse: (1) the victim revealed the abuse after a personal safety course given at school; (2) the victim was involved in self-injurious behavior such as the suicide attempt; and (3) the victim had difficulty describing the details of what had happened to her.” State v. Butler, supra, 36 Conn.App. at 533–34, 651 A.2d 1306; see also id. at 534–36, 651 A.2d 1306 (relying on State v. Spigarolo, supra, 210 Conn. at 378–79, 556 A.2d 112, and rejecting challenge to psychologist's generalized testimony about “common behavioral responses of victims of sexual abuse”).
Reconciling the well reasoned sister state decisions with our own case law, we conclude that our concerns about indirect vouching expressed in State v. Grenier, supra, 257 Conn. at 806, 778 A.2d 159, and State v. Iban C., supra, 275 Conn. at 635–36, 881 A.2d 1005, require us to limit expert testimony about the behavioral characteristics of child sexual assault victims admitted under State v. Spigarolo, supra, 210 Conn. at 378–80, 556 A.2d 112, to that which is stated in general or hypothetical terms, and to preclude opinion testimony about whether the specific complainant has exhibited such behaviors. Consistent with the syllogism noted by the Appellate Court; see State v. Favoccia, supra, 119 Conn.App. at 19 n. 9, 986 A.2d 1081; “there is no material distinction between express testimony that the child has been sexually abused, and implicit testimony that outlines the unreliable behavioral reactions found with sexually abused victims, followed by a list of the complainant's own behavioral reactions, that points out that the two are consistent, and then invites the jury to add up the points to conclude that the child has been sexually abused.” People v. Peterson, supra, 450 Mich. at 386, 537 N.W.2d 857 (Cavanagh, J., dissenting); accord Steward v. State, supra, 652 N.E.2d at 499. Generalized testimony is sufficient to provide the jury with the valuable knowledge, which it is unlikely to have otherwise, specifically that “minor victims typically fail to provide complete or consistent disclosures of the alleged sexual abuse....” State v. Spigarolo, supra, at 377–78, 556 A.2d 112. Tellingly, neither the state nor Justice Zarella in his dissenting opinion articulates any practical reasons in support of why expert testimony tailored to the specific complainant is necessary to dispel myths or mistaken beliefs about how sexual assault victims are “supposed to act,” and we cannot conceive of any. Thus, we agree with those authorities observing that more specific testimony yields returns that increase in prejudice to the defendant as they diminish in value with respect to the edification of the jury as to behaviors that might affect the complainant's credibility. See, e.g., State v. Moran, supra, 151 Ariz. at 385, 728 P.2d 248;Commonwealth v. Trowbridge, supra, 419 Mass. at 759–60, 647 N.E.2d 413. Accordingly, we overrule the dicta in the Appellate Court's decision in State v. Butler, supra, 36 Conn.App. at 537, 651 A.2d 1306, to the contrary, and conclude that, although an expert witness may testify generally about the behavioral characteristics of child sexual assault victims, an expert witness may not opine about whether the specific complainant has exhibited such behaviors.
In his dissenting opinion, Justice Palmer disagrees with our reliance on the concerns about indirect vouching expressed in State v. Grenier, supra, 257 Conn. at 806, 778 A.2d 159, and State v. Iban C., supra, 275 Conn. at 635–36, 881 A.2d 1005, noting that “[i]n cases like the present one, although there is a risk that the jury might consider the challenged testimony as indicative of the expert's view that the complainant had been sexually abused, such expert testimony, in contrast to the testimony at issue in Iban C. and Grenier, contains no assertion of the expert's belief in the complainant's credibility, either expressly or by necessary implication of the testimony.” In our view, such expert testimony like that at issue in this case carries the same implications, and risks of indirect vouching, that we recognized in Iban C. and Grenier, and, to the extent that there is a difference, it is a matter of degree rather than kind.
See also footnote 10 of this opinion.
The state posits that the aspects of Melillo's testimony linking general behaviors to this specific complainant were necessary to establish its relevance and lay a foundation for its admission. The need for an adequate foundation for expert testimony; see, e.g., State v. Carpenter, 275 Conn. 785, 805–806, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S.Ct. 1578, 164 L.Ed.2d 309 (2006); however, does not render admissible such opinion testimony linking the complainant to generalized behaviors, given that the behaviors sought to be explained by the expert testimony admitted pursuant to State v. Spigarolo, supra, 210 Conn. at 378–80, 556 A.2d 112, would have been readily observable by the jury following the impeachment of the complainant. Cf. State v. Carpenter, supra, at 811–13, 882 A.2d 604 (trial court did not abuse its discretion excluding expert testimony about codependent relationships in absence of foundation established through psychological examinations because “evidence of the psychological characteristics that define codependent personalities ... may not always be expressed in distinctive or pathological conduct that readily is observed”). Moreover, as was discussed at oral argument before this court, should a foundational issue arise with respect to the relevance of expert testimony under Spigarolo, it can properly be addressed at sidebar out of the hearing of the jury—without the need to undertake a line of questioning that runs the risk of improper vouching for the complainant's accusations.
We note further that a subsequent decision of the Appellate Court, State v. Robles, 103 Conn.App. 383, 930 A.2d 27, cert. denied, 284 Conn. 928, 934 A.2d 244 (2007), seems to conflict with the reasoning of Butler. In Robles, the Appellate Court rejected a defendant's vouching challenge to expert testimony by a school psychologist who “had acted previously as a forensic interviewer and counselor to the victim....” Id. at 401, 930 A.2d 27. Emphasizing that the psychologist's testimony “regarding the general traits of a victim of sexual abuse,” thus permitting an inference that the victim had acted consistently therewith, was admissible under, inter alia, State v. Freeney, supra, 228 Conn. at 592–93, 637 A.2d 1088, the Appellate Court cited State v. Iban C., supra, 275 Conn. at 635–36, 881 A.2d 1005, and State v. Grenier, supra, 257 Conn. at 806, 778 A.2d 159, and observed that the “defendant has cited no authority to support the proposition that the expert's testimony was improper because the expert had prior knowledge of the facts of the victim's particular case and had interviewed the victim in a capacity as a forensic examiner. Because the expert made no reference to the victim or her statement during her direct testimony or indirectly vouched for the victim's credibility during her testimony, we conclude that the admission of the expert testimony was within the trial court's discretion.” (Emphasis added.) State v. Robles, supra, at 404–405, 930 A.2d 27; see also id. at 405 n. 18, 930 A.2d 27 (“[a]lthough [the expert witness] acknowledged that she had interviewed the victim during cross-examination, such acknowledgement was in response to a direct question posited by defense counsel, and her testimony was limited to the date and duration of the interview, without vouching for the credibility of the victim in any way”).
Having reviewed the four challenged opinions in this case, we agree with the Appellate Court that, with respect to each, “[w]hen Melillo went beyond a general discussion of characteristics of sexual abuse victims and offered opinions, based on her review of the videotaped forensic interview and other documentation, as to whether this particular [complainant] in fact exhibited the specified behaviors, her testimony crossed the line of permissible expert opinion.” State v. Favoccia, supra, 119 Conn.App. at 23, 986 A.2d 1081. In each of the four challenged opinions, Melillo identified a behavior characteristic of a sexual assault victim, including the nature of her disclosure, remaining polite and respectful toward her abuser, and making herself unattractive as a coping mechanism, and then opined specifically, based on her viewing of the DVD, that the complainant had exhibited such behaviors. This testimony created a significant risk that the jury would consider Melillo's testimony as an imprimatur on the complainant's allegations, particularly because her testimony was based directly on observations of the complainant's videotaped interview, which renders this case distinct from those wherein the expert disclaims any familiarity with the specific facts of the case or testifies only in terms of generalities or hypotheticals, such as State v. Christiano, 228 Conn. 456, 460–62, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S.Ct. 83, 130 L.Ed.2d 36 (1994), and State v. R.K.C., 113 Conn.App. 597, 605, 967 A.2d 115, cert. denied, 292 Conn. 902, 971 A.2d 689 (2009).
Justice Zarella, in his dissenting opinion, criticizes our approach as “elevat[ing] form over substance” because, as he correctly notes, under the Connecticut Code of Evidence, an expert witness may testify “us[ing] a hypothetical that tracks the facts of the case.” See, e.g., State v. Christiano, supra, 228 Conn. at 460–62, 637 A.2d 382 (upholding admission of testimony by expert who had not examined victim and made clear that testimony did not concern her specific case, about adolescents' delays in reporting sexual abuse that was framed in form of hypothetical questions); State v. Crespo, 114 Conn.App. 346, 375, 969 A.2d 231 (2009) (concluding that expert testimony based on “hypothetical questions that tracked the facts of this case does not lead us to conclude that [the expert witness] opined that the victim was credible”), aff'd, 303 Conn. 589, 35 A.3d 243 (2012). Justice Palmer makes a similar observation in his dissenting opinion, likening Melillo's testimony to that of a detailed hypothetical closely tracking the facts of the case. We disagree. The important qualitative difference between hypothetical questions, even those that closely track the facts of a case, and questions asking for a direct opinion about the actual evidence in the case is borne out in the California Supreme Court's recent decision in People v. Xue Vang, 52 Cal.4th 1038, 262 P.3d 581, 132 Cal.Rptr.3d 373 (2011). In rejecting a challenge by a defendant to hypothetical questions to an expert witness reflecting whether a particular assault was gang motivated, the court observed that when a question is phrased hypothetically, in addition to determining whether to credit an expert's testimony at all, the jury also “must determine whether the facts stated in the hypothetical questions are the actual facts, and the significance of any difference between the actual facts and the facts stated in the questions.” Id. at 1050, 132 Cal.Rptr.3d 373, 262 P.3d 581. Direct questions like those at issue in this case simply do not require the jury to take that important second inferential step.
Moreover, we agree with the Appellate Court that the offered opinions were “improper in that they were not beyond the ken of the average juror.” State v. Favoccia, supra, 119 Conn.App. at 24, 986 A.2d 1081. “When inferences or conclusions are so obvious that they could be as easily drawn by the jury as the expert from the evidence, expert testimony regarding such inferences is inadmissible.” State v. Iban C., supra, 275 Conn. at 639, 881 A.2d 1005. The comparative portions of Melillo's testimony, which essentially told the jury how to interpret the behaviors of the complainant as evinced in the videotaped interview, did not tell the jury anything that they could not observe by watching or listening to the complainant after considering Melillo's more generalized testimony, thus becoming “an indirect assertion on the [complainant's] credibility, which Connecticut law forbids.” State v. Favoccia, supra, at 26, 986 A.2d 1081. Accordingly, we agree with the Appellate Court that the trial court abused its discretion in permitting Melillo to testify about the complainant's behaviors being consistent with those generally characteristic of sexual assault victims. See id. at 25–26, 986 A.2d 1081.
II
Reversal of the defendant's conviction is not required, however, unless the defendant demonstrates that the improperly admitted expert opinion testimony was harmful error. See, e.g., State v. Beavers, supra, 290 Conn. at 419, 963 A.2d 956. The state contends that the improper admission of Melillo's testimony was harmless error because the complainant's testimony and her videotaped interview were sufficient evidence to support her allegations, and: (1) the defendant had the opportunity to impeach Melillo through an extensive cross-examination, during which she conceded that she could not determine whether the complainant had in fact been sexually abused; (2) the defendant assailed the complainant's credibility through an extensive cross-examination, as well as through the testimony of R, the complainant's father, and M, who is R's long-term girlfriend and is employed as a psychiatric nurse; (3) the trial court instructed the jury that it was not bound by Melillo's opinions; and (4) the fact that the jury deadlocked on the charge of sexual assault in the second degree indicates that it was not swayed by the improper portions of Melillo's testimony. The state also posits that the evidentiary impropriety in this case was not as egregious as that in State v. Iban C., supra, 275 Conn. at 635, 881 A.2d 1005, because it was not a conclusion or diagnosis of sexual abuse.
In response, the defendant follows the Appellate Court's analysis in this case; see State v. Favoccia, supra, 119 Conn.App. at 26–27, 986 A.2d 1081; and relies on State v. Grenier, supra, 257 Conn. at 811–12, 778 A.2d 159, in support of his contention that Melillo's expert testimony substantially swayed the verdict. The defendant emphasizes that: (1) Melillo refused to concede on cross-examination that the behaviors at issue might also be consistent with a finding of no abuse at all; (2) the curative instruction by itself could not cure the prejudice; (3) under State v. Angel T., supra, 292 Conn. at 294, 973 A.2d 1207, the report of jury deadlock indicated that the jury did not view the prosecution's case as particularly strong; and (4) for bolstering purposes, there is no meaningful distinction under Connecticut law between direct and indirect vouching. We agree with the defendant and conclude that we do not have a fair assurance that the improper expert testimony did not substantially sway the jury's verdict in this case.
“When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.... [W]hether [the improper admission of a witness' testimony] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witnesson material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.... Most importantly, we must examine the impact of the [improperly admitted] evidence on the trier of fact and the result of the trial.... [T]he proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury's verdict was substantially swayed by the error.... Accordingly, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Citations omitted; internal quotation marks omitted.) State v. Beavers, supra, 290 Conn. at 419, 963 A.2d 956, quoting State v. Sawyer, supra, 279 Conn. at 352, 357–58, 904 A.2d 101.
Having reviewed the record in this case, we do not have the requisite “fair assurance that the error did not substantially affect the verdict.” (Internal quotation marks omitted.) State v. Beavers, supra, 290 Conn. at 419, 963 A.2d 956. We first note that the importance of Melillo's testimony, and the improprieties attendant thereto, cannot be assessed without reference to the overall strength and nature of the prosecution's case—a most significant factor not addressed by Justice Palmer in the harm analysis in his dissenting opinion. It is undisputed that this sexual assault case, which lacked physical evidence, turned entirely on the credibility of the complainant. We repeatedly have described such cases as, although “not automatically ... weak,” also “not particularly strong....” (Internal quotation marks omitted.) State v. Sawyer, supra, 279 Conn. at 358–59, 904 A.2d 101; compare, e.g., State v. Grenier, supra, 257 Conn. at 807–808, 778 A.2d 159 (case with no physical evidence that relied entirely on child complainant's testimony, supported by constancy testimony and expert witnesses was “not particularly strong” for state) with State v. Beavers, supra, at 418–20, 963 A.2d 956 (improper expert testimony that fire was intentionally set, which was based on “assessment of the defendant's credibility,” was harmless because of “enormity of the circumstantial evidence against the defendant, namely, the evidence of his motive, his opportunity, his knowledge that the fire started in the basement, his possession of fire starting supplies on the morning of the fire, his intent as shown through his prior bad acts, and the uncontroverted and properly admitted expert evidence that refuted his attempt to blame the fire on [his son's] smoking”), and State v. Iban C., supra, 275 Conn. at 641–45, 881 A.2d 1005 (improper expert bolstering was harmful as to one count of risk of injury to child wherein “state's case rested almost entirely on the victim's credibility” with no physical or medical evidence, but harmless with respect to second count of risk of injury to child, to which defendant had confessed).
Given the nature of the evidence against him, it is not surprising, then, that the defendant made concerted efforts at trial to discredit the complainant's veracity in conjunction with a defense theory that the allegations were a fabrication by S arising from a contemporaneous bitter custody and visitation dispute with R, intended to disrupt the complainant's scheduled weekend visitation with R. To this end, the defendant battered the teenage complainant's veracity with evidence that would give any reasonable juror pause—including testimony by R, the teenage complainant's own father, that he “did not know whether to believe” her allegations against the defendant. Indeed, R's testimony went beyond what he deemed to be the complainant's untruthful nature generally, and, corroborated by M, he testified in detail that her allegations could not be true because: (1) contrary to her trial testimony, she never visited his home without her sister present; (2) the defendant had never once slept over at R's home in 2005 or 2006; and (3) the defendant had never slept there at the same time as the complainant. The complainant's credibility underwent further attack as R contradicted the feasibility of her testimony with respect to the events surrounding her disclosure, which was precipitated by S overhearing J remarking about how the defendant had peered down the complainant's shirt while at a marching band field show; R testified that the complainant's shirt at that event would have been the neck-high color guard uniform of the PAL Buccaneers Drum & Bugle Corps (Buccaneers).
M, who owned the ranch style home in which she lived with R, testified that, to her knowledge, the defendant was never alone with the complainant in her home. M also testified that, at the time the alleged assaults occurred in the complainant's bedroom, M was sleeping across the hallway in the bedroom that she shared with R. M further testified that she did not hear any noises coming from the complainant's bedroom, and that even if the bedroom door was closed, it was “hollow core” and she was such a light sleeper that even the squeaking of doors and the sound of her dog's tags would wake her up.
We note that other credibility issues arose from the complainant's membership on two color guard teams. First, a disputed factual matter at trial concerned whether the complainant had falsely told her high school color guard teammates that she had leukemia. On cross-examination, the complainant denied having told her teammates that she had leukemia. She did, however, admit that she had to speak with her coach, E, about that particular incident, and R testified that E had raised the issue to him and M. The trial court did not permit E to testify about what other team members had related to her with respect to statements by the complainant, deeming it inadmissible hearsay.
Second, other issues arose with respect to whether the complainant was, as she testified at trial, the captain of a color guard team, namely, the Buccaneers. E, who coached the complainant's high school team, testified that the complainant was never named a captain of that team, and did not know whether the complainant had participated in the color guard of the Buccaneers. J testified, however, that the complainant was not the color guard captain of the Buccaneers at the time of the incident, but subsequently became their captain.
Thus, given the import of the complainant's credibility and the defendant's substantial attacks upon it, Melillo'stestimony, the substance of which was unshaken on cross-examination, became extremely significant to the state's otherwise “not particularly strong” case, particularly insofar as it had the effect of bolstering the complainant's credibility by explaining behaviors that she exhibited, some of which might otherwise be viewed by laypersons as belying the truth of her accusations—a matter of critical importance given the age and heavily impugned veracity of the teenage complainant in this case when viewed in comparison to the very young complainants in Grenier and Iban C. See State v. Grenier, supra, 257 Conn. at 808, 778 A.2d 159 (concluding that expert testimony that had effect of improperly vouching for victim “struck at the heart of the central—indeed, the only—issue in the case, namely, the relative credibility of [the victim] and the defendant”); see also State v. Ritrovato, 280 Conn. 36, 57–58, 905 A.2d 1079 (2006) (The court concluded that improperly excluded evidence with respect to the victim's prior sexual conduct was harmful error because “there was no independent physical evidence of the assault and no other witnesses to corroborate [her] testimony, [such that] her credibility was crucial to successful prosecution of the case. As a result, any evidence suggesting that [the victim] might not have been truthful was extremely significant.”). Indeed, several times in his rebuttal summation, the prosecutor relied on Melillo's testimony juxtaposed with the video of the interview with the complainant, using her explanation of the “behavior characteristics of children who claim to be sexually abused” to put in context how people react differently to situations, as well as to explain the complainant's seemingly odd behavior of continuing to treat her assailant respectfully. See, e.g., State v. Osimanti, 299 Conn. 1, 20–21, 6 A.3d 790 (2010) (reviewing summations to discern significant factual issues in case and import thereto of trial court's restriction of testimony about victim's acts of domestic violence).
During cross-examination, Melillo conceded that it was “possible” that a person could make a false complaint about sexual assault, but stated that she would “be hesitant to say that a person would bring out a complaint of sexual assault as a way of getting attention. That's not my experience.” She emphasized that inconsistency does not mean that the allegations never happened, conceding only that “anything is possible.”
The state argues that the testimony of R and M, and the defendant's thorough cross-examination of the complainant, “abrogated [the] harm” of the improper portions of Melillo's testimony that constituted improper vouching for the complainant's testimony. We disagree. In our view, the attacks on the complainant's credibility from an ordinarily unlikely quarter—namely, her own father—rendered Melillo's testimony, including its improper portions, that much more significant to rehabilitating the complainant's veracity in the eyes of the jury.
As Justice Palmer notes in his dissenting opinion, the prosecutor did not, however, expressly rely on the linking aspect of Melillo's testimony, but did engage in some comparative analysis in his argument, positing that in “a lot of those clips that were presented to you, they were presented to you in a light that [the complainant] says one thing and then moments later she corrects herself. And if you recall, on one occasion when she was being addressed by [Vitulano] ... Vitulano said something and then [the complainant] corrected her. So you have to look at the total experience in what occurred here. She indicated as well that on many occasions when she would see the defendant, again, she would have, out of respect for him, gone over to greet him. [Melillo] talked about, yes, there are situations where somebody who would find themselves in the company of the person who abused them would engage in a conversation with them because they did not want to draw attention to themselves.”
With respect to the import of the improperly admitted evidence on the trier of fact, and the result of the trial, it is highly significant that, after reporting a deadlock and receiving a “Chip Smith” charge, the jury subsequently was unable to reach a verdict on the charge of sexual assault in the second degree, but found the defendant guilty of two counts of risk of injury. That circumstance alone indicates that the case was a close one in the eyes of the jury, making it more likely that the improper evidence might have tipped the balance. See State v. Angel T., supra, 292 Conn. at 294, 973 A.2d 1207 (concluding that split verdict, rendered after report of deadlock “suggests that the jury had doubts concerning the victim's credibility as a general matter, as it failed to credit her testimony about the defendant's earlier attempts to molest”); see also State v. David N.J., 301 Conn. 122, 154, 19 A.3d 646 (2011) (noting that in “the absence of reports of deadlock, which did not occur in this case, our cases have relied on split verdicts as evidence that a jury was not so prejudiced by prosecutorial impropriety that it could not treat the defendant fairly” [internal quotation marks omitted] ).
We recognize that the jury reported that it had reached a verdict on the risk of injury counts and was deadlocked only on the sexual assault charge. Nevertheless, given that all of the charges were dependent on the jury's assessment of the complainant's credibility, we view the existence of any deadlock as indicative of the closeness of the case.
Moreover, the state's argument that the split in the verdict, failing to reach a verdict on the second degree sexual assault charge alleging penetration, indicates that Melillo's testimony did not substantially sway the verdict by bolstering the complainant's credibility is belied by State v. Iban C., supra, 275 Conn. at 644–45, 881 A.2d 1005, wherein we rejected a similar argument, concluding that “merely because the jury did not find, beyond a reasonable doubt, that the defendant had penetrated the victim's vagina as part of the two sexual assaults, does not establish that the jury failed to be influenced by [the pediatrician's] diagnosis of ‘[c]hild [s]exual [a]buse’ in reaching guilty verdicts on the risk of injury counts. At a minimum, [the pediatrician's] diagnosis endorsed and provided credibility to the victim's claim that some type of inappropriate contact had taken place between the victim and the defendant in the bathroom and bedroom of his home.” The import of Melillo's testimony, to the extent that it improperly vouched for the complainant's testimony, is identical in this case wherein the verdict indicates that the jury had to have credited the complainant's testimony that the defendant had engaged in some sexual conduct—albeit falling short of penetration—with her.
Finally, we disagree with the state's argument that the trial court's instructions to the jury had the effect of mitigating the harm from the improper portions of Melillo's testimony. This is because the trial court's instructions to the jury that it was not bound by Melillo's opinions were given in the context of the omnibus charge at the end of the trial, rather than contemporaneously and specificallyto guide the jurors' consideration of her testimony. Our harmless error case law, while acknowledging the value of curative instructions and presuming that jurors follow them; see, e.g., State v. Cutler, 293 Conn. 303, 314, 977 A.2d 209 (2009); also emphasizes that such instructions are far more effective in mitigating the harm of potentially improper evidence when delivered contemporaneously with the admission of that evidence, and addressed specifically thereto. See State v. Iban C., supra, 275 Conn. at 643–44, 881 A.2d 1005 (curative instructions insufficient to address harm caused by improper admission of “sexual abuse” diagnosis when not given “immediately following the admission of the written report and the improper testimony,” at which time jury also heard court “[overrule] the defendant's objection to the admission of the unredacted written report into evidence,” and instruction at close of evidence “simply permitted the jury to accept or reject [the pediatrician's] opinion and did not instruct the jury to disregard her diagnosis of ‘[c]hild [s]exual [a]buse’ ”); State v. Grenier, supra, 257 Conn. at 810, 778 A.2d 159 (“the jurors not only heard the highly damaging testimony, but also had no reason to believe that it was improper until after the close of evidence and closing arguments of counsel”). We, therefore, lack the requisite fair assurance that the admission of the improper aspects of Melillo's testimony did not substantially sway the jury's verdict in this “credibility contest characterized by equivocal evidence,” which is “a category of cases that [we have acknowledged] is far more prone to harmful error.” State v. Beavers, supra, 290 Conn. at 420, 963 A.2d 956. Accordingly, we conclude that the Appellate Court properly ordered a new trial in this case.
The trial court instructed the jury as follows: “I'm going to talk a little bit about expert testimony or opinion evidence. In this case ... Melillo took the stand and she gave her opinions as an expert. An expert witness may give an opinion even though that opinion is not expressed in terms of certainty so long as the opinion is expressed in terms of reasonable probability, in terms of what is reasonably probable.
“No matter what may be the expertise of a particular witness who states to you an opinion upon fact in the case, that opinion is subject to review by you, the jury. It is in no way binding upon you, the jury. It is for you to consider, along with the other circumstances in the case, and using your best judgment determine whether or not you will give it any weight and, if so, what weight you will give to it. In weighing and considering the testimony of an expert, you should apply to them the same considerations of credibility ... that you would apply to other witnesses, such as her appearance and demeanor on the stand, her conduct on the stand, her interest or lack of interest in the outcome of the case, her ability to recall and relate facts to you, and all the other considerations you use in judging the credibility of any witness.
“In deciding the weight to be accorded to the testimony of an expert witness, you should also consider her education, her experience, her ability in the particular field of knowledge, and any other material matters of the sort developed in the course of her testifying in front of you. You should also consider the proof or lack of proof and the completeness or lack of completeness of any facts considered by the expert in forming her opinions or in reaching her conclusions. You should recall the testimony of the expert witness in this case in light of the principles that I have just stated to you.
“Also, where an expert witness has given an opinion based upon what we call a hypothetical question, that is where they are asked to assume certain facts and then give an opinion based on those facts, the value of the opinion depends on the truth and completeness of those facts. You should consider whether those facts were proven or not, and you should consider whether or not her opinions were based on all the relevant facts or whether some relevant facts were omitted.”
The state also relies on what it considers to be the mitigating effect of the trial court's decision, at the time of overruling the defendant's objection to the linking aspect of Melillo's testimony, namely, that: “The witness is absolutely not allowed to testify as to credibility....” We disagree. First, even if we were to assume that the jury was following the evidentiary discussion as closely as it would an instruction being directed at it specifically, the state's argument is belied by the full ruling in context, namely: “The objection is overruled. The witness is absolutely not allowed to testify as to credibility, but she is an expert and can render an opinion and the jury is entitled to give it whatever weight they deem appropriate based on her expertise.” (Emphasis added.) This ruling did not specifically instruct the jury how to consider the import of the linking aspects of Melillo's testimony, and in fact gave the jury otherwise unfettered freedom to give her testimony “whatever weight they deem appropriate based on her expertise.”
The Appellate Court, in conducting its harmless error analysis, described our decision in State v. Grenier, supra, 257 Conn. at 807–808, 778 A.2d 159, as considering seven “factors in conducting its harmlessness analysis,” such as that the “state's case rested entirely on [the complainant's] credibility,” “the improper expert testimony struck at the heart of the central—indeed, the only—issue in the case, namely, the relative credibility of [the complainant] and the defendant,” and “inasmuch as [the complainant's] version of the events provided the only evidence of the defendant's guilt, the state's case was not particularly strong....” (Internal quotation marks omitted.) State v. Favoccia, supra, 119 Conn.App. at 26–27, 986 A.2d 1081, quoting State v. Grenier, supra, at 807–808, 778 A.2d 159. In determining that the admission of the improper portions of Melillo's testimony was harmful, the Appellate Court further observed that “[o]ther than the fact that the defendant did not testify at trial, the Grenier factors all are met in the present case.” State v. Favoccia, supra, at 27, 986 A.2d 1081. We note that we do not read Grenier as articulating an independent set of “factors” for determining whether an evidentiary error is harmful in a sexual assault case, but rather, read that case as consistent with, and instructive as to, the application of the more general considerations attendant to the harmless error inquiry pursuant to the line of cases following State v. Sawyer, supra, 279 Conn. at 357–58, 904 A.2d 101.
The judgment of the Appellate Court is affirmed. In this opinion ROGERS, C.J., and McLACHLAN, EVELEIGH and HARPER, Js., concurred.
PALMER, J., dissenting.
Child victims of sexual abuse sometimes act in ways that, to a layperson, strongly suggest that no abuse actually occurred. In those circumstances, the state is permitted to adduce expert testimony for the purpose of explaining that such behavior is not uncommon and, therefore, that such conduct does not necessarily mean that the abuse did not occur. E.g., State v. Spigarolo, 210 Conn. 359, 377–78, 556 A.2d 112 (“[When] the minor victim [of sexual abuse is subject to impeachment] based on inconsistencies, partial disclosures, or recantations relating to the alleged incidents, the state may present expert opinion evidence that such behavior by minor sexual abuse victims is common.... This variety of expert testimony is admissible because the consequences of the unique trauma experienced by minor victims of sexual abuse are matters beyond the understanding of the average person.” [Citations omitted.] ), cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989). The issue in the present case is whether that expert should be limited to identifying those behaviors generally, without reference to the complainant's actual conduct, or whether the expert should be allowed to opine more specifically that the complainant's conduct is similar to that of other child victims of sexual abuse. I agree with the majority that the better rule is to bar testimony expressly linking the complainant's conduct to that of other child sexual abuse victims and that the trial court in the present case should not have permitted the state to adduce such testimony from its expert, Lisa Melillo. In contrast to the majority, however, I do not believe that the testimony was harmful to the defendant, Anthony L. Favoccia, Jr., and, therefore, I would affirm the judgment of conviction. Accordingly, I dissent.
This conduct frequently consists of denying that the sexual abuse occurred before acknowledging it, delayed reporting of the abuse, and recantation of testimony implicating the abuser. In the present case, the complainant's conduct included accidental—as opposed to purposeful—disclosure of the abuse, delayed disclosure of the abuse, respectful behavior toward the defendant even after the alleged abuse, and efforts to make herself look unattractive to the defendant.
Two primary considerations lead me to conclude that the state should not be permitted to elicit expert testimony explaining that the complainant's particular conduct was consistent with the conduct of other such victims. First and foremost, there is a risk that the jury might view the testimony as suggesting that the expert personally believes that the complainant was, in fact, sexually abused. This risk exists for at least two related reasons. First, an expert's opinion that the conduct of the complainant is consistent with the conduct of other children who have been sexually abused may suggest to the jury that the expert, who undoubtedly will have had extensive experience with victims of sexual abuse, would not be opining on the similarity in conduct between the complainant and other known victims of sexual abuse unless the expert believed that the complainant also had been abused. Put differently, sometimes children falsely claim that they have been sexually abused, and, in those cases, behavior that seems to belie the complaint of abuse, although consistent with the behavior of known victims of such abuse, actually is indicative of untruthfulness. When the state's expert expressly links the behavior of the complainant to the behavior of known victims, however, the jury may think that the highly trained and experienced expert personally believes that the complainant was abused. When the expert does not link the complainant's behavior to the conduct of other victims, the possibility that the jury will think that the expert credits the complainant's testimony is reduced. To the extent that such expert testimony could lead the jury to suppose that the expert believes the complainant's testimony, the expert appears to be improperly vouching for the complainant's credibility.
The second concern with the challenged testimony stems from the fact that there is a greater risk that the jury will treat the testimony as suggesting that, because the complainant's behavior is similar to the behavior of other child victims of sexual abuse, the conduct of the complainant constitutes affirmative evidence that the complainant, too, was so abused. Of course, the purpose of the expert testimony is not to demonstrate that the complainant was sexually abused; only if the complainant's behavior were unique to victims of sexual abuse—and there is no such claim in the present case—would the testimony be relevant to that end. Rather, the testimony is admissible for the limited purposeof rebutting any claim or inference that the complainant's behavior is inconsistent with sexual abuse. When an expert expressly links the complainant's behavior to the behavior of other child victims of sexual abuse, there is a greater likelihood that the jury will view this testimony as affirmative proof that the complainant was abused when, in fact, the sole basis for the testimony is to provide the jury with the state's explanation for conduct by the complainant that, in the absence of such testimony, would be difficult for the jury to reconcile with the complainant's claim of abuse.
In his dissenting opinion, Justice Zarella asserts that I provide “no authority for [the] proposition” that expert testimony, like that at issue in the present case, should be barred because of the risk that it may lead the jury to think that the expert personally believes in the truthfulness of the complainant's claim of abuse. Footnote 3 of Justice Zarella's dissenting opinion. Of course, I rely on the wealth of authority that the majority has previously cited at length. See part I of the majority opinion. There is no reason for me to recite that authority again here.
There is a second reason why an expert should not be permitted to testify with reference to the complainant's conduct: the state has absolutely no need for it. When an expert testifies generally that it is not uncommon for child sexual abuse victims to behave in a certain way, the jury is perfectly capable of determining whether the evidence establishes that the complainant in the case before it exhibited such behavior. Of course, if the prosecutor believes that it would be useful to underscore the expert testimony with express reference to the relevant conduct of the complainant, the prosecutor is free to do so in closing argument. Neither the state nor Justice Zarella in his dissent offers any reason why the prosecutor should be allowed to elicit expert testimony expressly linking the complainant's conduct to similar conduct of other child victims of sexual abuse, and I know of no such reason. Consequently, because there is reason to exclude expert testimony that refers expressly to the complainant's conduct and no countervailing reason justifying its admission, I agree with the majority that such testimony should be prohibited.
Justice Zarella maintains that he has offered a reason or reasons why such testimony should be allowed, citing his reliance on State v. Davis, 422 N.W.2d 296 (Minn.App.1988), in support of this contention. Contrary to Justice Zarella's assertion, Davis does not explain why testimony of the kind at issue in the present case is necessary to assist the jury. In Davis, the expert, Jean Mitchell, first testified about certain general behavioral characteristics of adolescent victims of sexual abuse. See id. at 299. Mitchell then testified with specific reference to the complainant in the case. See id. As the court in Davis explained: “After describing the [aforementioned general] characteristics, Mitchell testified regarding the conduct she observed, specifically that [the complainant] wore heavy makeup, appeared to be older than she actually was, used her sexuality for attention getting, and was troubled by separation from her mother. Mitchell then testified that this behavior was common in sexual abuse victims of the same age.” Id. The court continued: “These are characteristics that the jury had already observed and may have found peculiar. The expert testimony was helpful to the jury in that it provided relevant insight into the cause of some of [the complainant's] peculiar behavior ... and assisted the jury in evaluating her credibility. Under these limited circumstances, the expert testimony [was admissible on the issue of child sexual abuse].” Id.Davis is completely inapposite, first, because there is nothing in Davis that even suggests that the court had been asked by the defendant in that case to consider the propriety of Mitchell's express references to the complainant as distinguished from Mitchell's observations generally about the behavioral characteristics of child victims of sexual abuse. But even if it is assumed, arguendo, that the court was focused on Mitchell's testimony insofar as it referred expressly to the complainant, Davis does not explain why it was necessary or helpful for Mitchell to testify with reference to the complainant. Rather, the court merely stated, in wholly conclusory terms, that the testimony was helpful, with no accompanying explanation. Furthermore, as the court stated, the behavioral characteristics exhibited by the complainant were “characteristics that the jury had already observed”; id.; and, therefore, there was no need for Mitchell to testify with reference to the complainant. Davis, therefore, provides no support for Justice Zarella's conclusion that an expert should be permitted to testify with express reference to the complainant because that testimony somehow enhances the jurors' understanding of the behavior of child victims of sexual abuse.
Justice Zarella also states that “there may be instances when expert testimony expressly linking the complainant's conduct with that of sexual abuse victims may be helpful in understanding the relevance of the expert's opinion. For example, such testimony may be relevant when the complainant has exhibited a wide range of confusing or complex behaviors.” Footnote 6 of Justice Zarella's dissenting opinion. This rationale is entirely unpersuasive for several reasons. First, Justice Zarella's statement that “there may be instances” in which expert testimony that specifically refers to the complainant “may be helpful in understanding the relevance of the expert's opinion”; id.; is an acknowledgement that such testimony is not generally relevant but may be relevant on occasion. With respect to how often such a case might present itself, Justice Zarella cites no case from any jurisdiction in which the complainant's behaviors were so “confusing or complex” that it was important for the jury to hear the expert testify with express reference to the complainant. Moreover, in the unlikely event that there was a case of the kind that Justice Zarella hypothesizes, I see no reason why the trial court would be barred from permitting such testimony, accompanied, I suggest, by an instruction advising the jury of the testimony's limited purpose. By contrast, Justice Zarella would adopt a rule broadly permitting expert testimony that expressly refers to the complainant merely to address the extremely rare case in which the jury might actually benefit from such testimony. Simply stated, there is no logical justification for such a rule; the only sound approach is to bar the testimony generally, allowing for the possibility that it may be admissible in the exceptional case. Finally, the present case most certainly is not that exceptional case, for there is nothing about the complainant's behavior that even arguably could be characterized as “confusing or complex” such that Melillo's testimony expressly linking the complainant's conduct to that of known child victims of sexual abuse was necessary to aid the jury in comprehending the relevance of Melillo's expert opinion.
I disagree with the majority, however, that this result is compelled by State v. Iban C., 275 Conn. 624, 635–36, 881 A.2d 1005 (2005), and State v. Grenier, 257 Conn. 797, 806, 778 A.2d 159 (2001), in which this court explained that indirect vouching for the complainant's credibility by an expert, no less than expert testimony expressly endorsing the complainant's credibility, is impermissible. In both Iban C. and Grenier, the state's expert witness in each case testified in such a way that the jury necessarily would have understood the expert as expressing the view that the complainant had been sexually abused, albeit without stating that view in so many words. See State v. Iban C., supra at 633, 881 A.2d 1005;State v. Grenier, supra, at 804, 778 A.2d 159. In other words, the testimony carried the necessary implication that the expert believed in the complainant's credibility. State v. Iban C., supra, at 633, 636–37, 881 A.2d 1005 (explaining that pediatrician's written report “containing a diagnosis of ‘[c]hild [s]exual [a]buse’ and her testimony affirmatively stating that same diagnosis, constituted an indirect assertion as to the truthfulness of the [complainant's] testimony” when there was no physical evidence of abuse); State v. Grenier, supra, at 804–806, 778 A.2d 159 (concluding that trial court improperly admitted testimony of clinical psychologist that she had treated complainant “for the trauma of the abuse that [the complainant had] experienced” because it constituted “an indirect assertion that validated the truthfulness of [the complainant's] testimony,” and that, although psychologist's testimony “was not a literal statement in her belief in [the complainant's] truthfulness, such testimony had the same substantive import” [internal quotation marks omitted] ). In cases like the present one, although there is a risk that the jury might consider the challenged testimony as indicative of the expert's view that the complainant had been sexually abused, such expert testimony, in contrast to the testimony at issue in Iban C. and Grenier, contains no assertion of the expert's belief in the complainant's credibility, either expressly or by necessary implication of the testimony. That risk exists when, as in the present case, an expert is permitted to testify with reference to the complainant's conduct only because the jury might wrongly infer that the expert would not be testifying about the complainant's conduct if the expert did not believe in the truth of the complainant's allegations.
I therefore also take issue with the majority's assertion that experts “cross the line into impermissible vouching and ultimate issue testimony when they opine that a particular complainant has exhibited [the] general behavioral characteristics” of known child victims of sexual abuse. Although such testimony should be excluded because of the possibility that the jury will misunderstand its import, I do not agree that it constitutes “impermissible vouching and ultimate issue testimony....” Indeed, it is because the testimony is not an opinion endorsing the complainant's credibility that the majority of jurisdictions permit it. The testimony nevertheless should be barred in light of the risk that the jury will read too much into it, and because it is wholly unnecessary to make the point that the state wishes to get across to the jury through its expert, namely, that the complainant's behavior is not inconsistent with the complainant's claim of sexual abuse.
With respect to the issue of harm, I am not convinced that the defendant in the present case can meet his burden of establishing that “the jury's verdict was substantially swayed by the error.” (Internal quotation marks omitted.) State v. Beavers, 290 Conn. 386, 419, 963 A.2d 956 (2009). Several considerations lead me to conclude that the challenged testimony was not particularly prejudicial. First, although I acknowledge the risk that the jury might have perceived the challenged testimony as reflecting Melillo's belief in the complainant's credibility, it is impossible to determine whether the jury did, in fact, view Melillo's testimony in that manner. As I have explained, this is in contrast to the expert testimony at issue in Iban C. and Grenier, in which the experts had unequivocally expressed their endorsement of the veracity of the complainants' allegations. State v. Iban C., supra, 275 Conn. at 633, 636–37, 881 A.2d 1005;State v. Grenier, supra, 257 Conn. at 804–806, 778 A.2d 159. Although I see no legitimate reason for the trial court in the present case to have permitted Melillo to testify with specific reference to the complainant's behavior, that testimony carried no direct or indirect assertion of Melillo's belief in the complainant's credibility. Consequently, one can only speculate whether the jury perceived Melillo's testimony as reflecting her opinion concerning the credibility of the complainant's allegations.
As the Appellate Court observed, Melillo's improper testimony was unnecessary to demonstrate to the jury that the complainant had exhibited behavior typical of child victims of sexual abuse. See State v. Favoccia, 119 Conn.App. 1, 24–25, 986 A.2d 1081 (2010). This is so because there is no reason to believe that, in the absence of such testimony, the jury would not have recognized that the complainant's conduct mirrored the several behavioral characteristics of sexual abuse victims that Melillo properly had identified in her testimony. Although this fact does not eliminate the possibility that the jury might have viewed Melillo's improper testimony as indicative of her belief in the complainant's credibility, it does mean that that testimony was not otherwise harmful to the defendant.
The majority nevertheless insists that “expert testimony like that at issue in this case carries the same implications, and risks of indirect vouching, that we recognized in Iban C. and Grenier, and, to the extent that there is a difference, it is a matter of degree rather than kind.” Footnote 39 of the majority opinion. The majority makes no attempt to explain this assertion, perhaps because there clearly is a difference in kind between the two types of testimony. In Iban C. and Grenier, the expert testimony at issue did not merely give rise to a risk that the jury might believe that the expert credited the complainant's testimony; rather, the jury knew from the expert testimony that the expert did, in fact, credit the complainant's allegations. See State v. Iban C., supra, 275 Conn. at 636–37, 881 A.2d 1005;State v. Grenier, supra, 257 Conn. at 806, 778 A.2d 159. By stark contrast, in the present case, there is only a risk that the jury might think, albeit without a basis in the record, that Melillo credited the complainant's claim of sexual abuse. This difference is both important and material, especially for purposes of evaluating whether the improper testimony was harmful. As I explain hereinafter, the majority's failure to come to grips with this distinction results in a skewed harmless error analysis.
Indeed, the testimony at issue in the present case is not much different from expert testimony that is permitted under our evidentiary rules, namely, testimony in response to a hypothetical question. See Conn.Code Evid. § 7–4(c). This court allows the state to ask hypothetical questions of experts in child sexual abuse cases. See, e.g., State v. Christiano, 228 Conn. 456, 460–62, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S.Ct. 83, 130 L.Ed.2d 36 (1994). Because such hypothetical questions invariably will track the facts adduced by the state with respect to the behavior of the complainant, the jury will know that the state's expert is of the view that the complainant's behavior is consistentwith the behavior of known child victims of sexual abuse. This is especially true when a detailed, hypothetical question contains facts that mirror exactly the complainant's behavior, an approach that our courts expressly have approved. See, e.g., State v. Dearing, 133 Conn.App. 332, 345–47, 34 A.3d 1031, cert. denied, 304 Conn. 913, 40 A.3d 319 (2012); State v. R.K.C., 113 Conn.App. 597, 604–605, 967 A.2d 115, cert. denied, 292 Conn. 902, 971 A.2d 689 (2009).
.Section 7–4(c) of the Connecticut Code of Evidence provides: “Hypothetical questions. An expert may give an opinion in response to a hypothetical question provided that the hypothetical question (1) presents the facts in such a manner that they bear a true and fair relationship to each other and to the evidence in the case, (2) is not worded so as to mislead or confuse the jury, and (3) is not so lacking in the essential facts as to be without value in the decision of the case. A hypothetical question need not contain all of the facts in evidence.”
In the present case, moreover, Melillo did not treat or even interview the complainant. In fact, prior to her testimony, Melillo never spoke to the complainant. Rather, Melillo's testimony was based solely on her review of certain police reports and a video recording of a forensic interview of the complainant conducted by a third person, as well as conversations with the senior assistant state's attorney (prosecutor). Consequently, the jury could not have been swayed by the belief that Melillo had some special insight into the complainant's credibility on the basis of a professional relationship or through personal interaction. This reduces the possibility that the jury was influenced unduly by Melillo's improper testimony because “[t]he risk of improper comparisons between any general behavioral characteristics of sexually abused children and a particular complaining child witness is most acute when the expert witness has examined or treated the child”; Commonwealth v. Federico, 425 Mass. 844, 849, 683 N.E.2d 1035 (1997); a point that the majority concedes. See part I of the majority opinion (observing that danger of expert witness vouching for complainant's credibility is greatest when expert has treated or evaluated complainant).
Finally, and perhaps most important, in closing argument to the jury, the prosecutor made no mention of the challenged testimony. In fact, the prosecutor said nothing at all about Melillo's testimony—or, for that matter, the behavior of the complainant that was the subject of Melillo's testimony—in his initial argument. Defense counsel then proceeded to deliver his closing argument, during which he underscored the fact that Melillo never had interviewed the complainant and had absolutely no idea whether the complainant was telling the truth. In his rebuttal argument, the prosecutor made no attempt to contradict or challenge these remarks of defense counsel. The prosecutor made but two, extremely brief references to Melillo, stating, first: “You heard ... Melillo testify in this case about behavior characteristics of children who claim to be sexually abused.” The prosecutor did not follow up that statement with any further reference to Melillo or to her testimony. Thereafter, the prosecutor mentioned Melillo again: “[The complainant] indicated ... that, on many occasions, when she would see the defendant, again, she would have, out of respect for him, [gone] over and greet [ed] him.... Melillo talked about ... [the fact that] there are situations where somebody who would find themselves in the company of the person who abused them would engage in conversation with them because they did not want to draw attention to themselves.”
Defense counsel argued in relevant part: “Remember the delay in reporting. If this would have happened, you would have expected this to happen very soon thereafter. You remember [that] Melillo testified. Some was consistent with—when I crossed—consistent with somebody ... who's had a problem. But when I asked her on cross, well, everything she mentioned about, is it consistent with—was also consistent with nothing happening because ... Melillo wasn't there. You could have fifty ... Melillos come in here and testify and all—they're testifying with some hypothetical. She's not testifying about [the complainant] because she never even interviewed [the complainant]. She doesn't know whether [the complainant] is telling the truth or not. She can't get up there and say [the complainant] is truthful. All she can do is get up there and say it is consistent or maybe it is not consistent.... Melillo didn't add anything to this allegation....”
It is readily apparent that the prosecutor's passing references to Melillo focused only on that aspect of her testimony that was perfectly proper, and contained no mention of the challenged testimony in this case. If the challenged testimony was so prejudicial to the defendant, as the majority asserts, it is hard to understand why the prosecutor would not have underscored it in arguing to the jury. It also is telling that the prosecutor devoted so little time to Melillo's testimony in his closing argument. In closing remarks that spanned more than thirty transcript pages, Melillo's testimony is the subject of only three brief, wholly unobjectionable sentences. In my view, the fact that the prosecutor's closing argument contains merely a fleeting reference to Melillo's testimony, and no reference to any improper testimony, strongly suggests that no aspect of her testimony was particularly important to the state's case. My conclusion in this regard is buttressed by defense counsel's unrebutted assertion that Melillo had no knowledge as to whether the complainant was telling the truth about the defendant.
For all of the foregoing reasons, I do not believe that Melillo's testimony that the complainant's behavior was consistent with the behavior of other known child victims of sexual abuse had a bearing on the outcome of the trial. I therefore respectfully dissent. ZARELLA, J., dissenting.
The issue in this appeal is whether an expert witness may testify that the complainant in the present case exhibited behaviors that are consistent with victims of sexual abuse in general. To be clear, what is not at issue is whether an expert may (1) state generally the traits exhibited by sexual abuse victims, or (2) diagnose the alleged victim in a particular case as abused or opine as to the alleged victim's credibility. The former is clearly admissible, whereas the latter is clearly not. In the present case, the testimony at issue consists of opinion testimony that links the general behavioral characteristics of sexual abuse victims to the specific behaviors exhibited by the complainant. Thus, the testimony falls somewhere between an enumeration of the general behavioral characteristics of sexual abuse victims and a diagnosis of the complainant as having been sexually abused. Notwithstanding the reasoning of this court in previous cases, the majority concludes that the admissibility of this type of expert testimony is an issue of first impression for this court. Primarily relying on the reasoning espoused by a “persuasive minority”of sister jurisdictions, the majority further concludes that the expert's testimony linking general characteristics of sexual abuse victims to the complainant goes beyond the scope of admissible testimony and invades the province of the jury. Accordingly, the majority holds that the trial court improperly admitted the portions of the expert's testimony that the defendant, Anthony L. Favoccia, Jr., challenges on appeal. I disagree and conclude that, regardless of the persuasiveness of the reasoning espoused by those jurisdictions on which the majority relies, this court should allow testimony linking an alleged victim's behavior to the behavior generally exhibited by sexual abuse victims. This would reflect more accurately our rules of evidence and our precedent governing expert testimony, align with the reasoning of a majority of the jurisdictions that have considered the issue, and avoid elevating testimonial form over substance. For these reasons, I respectfully dissent.
Specifically, the majority concludes that State v. Iban C., 275 Conn. 624, 881 A.2d 1005 (2005), which I subsequently discuss in more detail in this opinion, is not dispositive of this appeal for two reasons. First, because the issue in Iban C. concerned the admissibility of testimony in which the expert diagnosed the alleged victim as having been sexually abused, the court's discussion of other types of testimony was mere dictum. See id. at 633, 881 A.2d 1005. Second, the majority rejects this court's reliance in Iban C. on State v. Freeney, 228 Conn. 582, 637 A.2d 1088 (1994), for the proposition that an expert may testify that an alleged victim's behaviors are consistent with having been sexually abused. See id. at 635, 881 A.2d 1005. The majority declares that “the comparative nature of the testimony was not directly at issue therein, as Freeney considered only the broader topic of general behaviors of adult assault victims.”
In brief, the majority finds persuasive the decisions of those courts that have deemed as inadmissible expert testimony that the general behavioral characteristics of sexual abuse victims are consistent with those of an alleged sexual abuse victim. First, the majority finds that such testimony comes “ ‘too close’ ” to stating that the alleged victim is credible. Second, the jury may misunderstand such testimony as substantive evidence of actual abuse, rather than properly relying on it for rehabilitative purposes only. Third, such expert testimony often is unnecessary because the jury can, without the expert's assistance, connect the general behavioral characteristics of sexual abuse victims with the characteristics exhibited by the alleged victim in a particular case. See part I of the majority opinion.
The majority further holds that the error was not harmless and affirms the judgment of the Appellate Court, which reversed the judgment of conviction and remanded the case for a new trial. State v. Favoccia, 119 Conn.App. 1, 30, 986 A.2d 1081 (2010). Because I conclude that the admission of all four portions of the challenged testimony was not improper, I do not address the majority's harmless error analysis.
Justice Palmer, in a separate dissent, agrees with the majority's conclusion that the admission of the testimony at issue in this case was improper but for different reasons. In his dissent, Justice Palmer rejects the majority's application of State v. Iban C., 275 Conn. 624, 635–36, 881 A.2d 1005 (2005), and State v. Grenier, 257 Conn. 797, 806, 778 A.2d 159 (2001), because, according to Justice Palmer, those cases addressed the issue of whether an expert could indirectly vouch for the credibility of an alleged sexual abuse victim, which is an issue that is not implicated by the testimony in the present case. Nevertheless, rather than follow, as I do, the rationale espoused by a majority of jurisdictions allowing the type of testimony at issue in this case, Justice Palmer reasons that such testimony should be barred because the jury might improperly consider it as proof of the alleged victim's claim instead of properly considering it for rehabilitative purposes. Justice Palmer provides no authority for this proposition, nor am I aware of any. For the reasons set forth in this opinion, I reject this rationale and instead follow the rationale espoused by a majority of jurisdictions that allow such expert testimony.
I
A brief review of the applicable provisions of the Connecticut Code of Evidence provides the starting point for my analysis. Expert testimony is governed by §§ 7–2 through 7–4 of the Connecticut Code of Evidence. Specifically, § 7–3(a) of the Connecticut Code of Evidence provides in relevant part that “[t]estimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that ... an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue.” Section 7–4(a) of the Connecticut Code of Evidence provides that “[a]n expert may testify in the form of an opinion and give reasons therefor, provided sufficient facts are shown as the foundation for the expert's opinion.” Section 7–4 further provides in relevant part that “[a]n expert may give an opinion in response to a hypothetical question provided that the hypothetical question (1) presents the facts in such a manner that they bear a true and fair relationship to each other and to the evidence in the case, (2) is not worded so as to mislead or confuse the jury, and (3) is not so lacking in the essential facts as to be without value in the decision of the case. A hypothetical question need not contain all of the facts in evidence.” Conn.Code Evid. 7–4(c); see also State v. Christiano, 228 Conn. 456, 460–62 and n. 5, 637 A.2d 382 (approving use of hypothetical questions during expert's testimony to explain general character traits of sexual abuse victims but suggesting that court give cautionary instruction that testimony is offered to aid fact finder in gauging alleged victim's credibility and not as proof of defendant's guilt), cert. denied, 513 U.S. 821, 115 S.Ct. 83, 130 L.Ed.2d 36 (1994).
This court has delineated several rules specifically governing the admissibility of expert testimony in cases involving the sexual abuse of children. In State v. Iban C., 275 Conn. 624, 881 A.2d 1005 (2005), we explained: “[I]n cases that involve allegations of sexual abuse of children, we have held that expert testimony of reactions and behaviors common to victims of sexual abuse is admissible.... It is not permissible, however, for an expert to testify as to his opinion of whether a victim in a particular case is credible or whether a particular victim's claims are truthful.... In this regard, we have found expert testimony stating that a victim's behavior was generally consistent with that of a victim of sexual or physical abuse to be admissible, and have distinguished such statements from expert testimony providing an opinion as to whether a particular victim had in fact suffered sexual abuse.” (Citations omitted; emphasis in original.) Id. at 635, 881 A.2d 1005. We further explained that, “in cases in which an expert witness reaches a conclusion on the ultimate issue ... based [in part on] statements made by the victim ... Connecticut case law has previously recognized the general rule of law that the expert is necessarily making a determination about the victim's credibility.... Such credibility determinations are more properly within the sole province of the jury.” (Citation omitted.) Id. at 635–36, 881 A.2d 1005; see also State v. Grenier, 257 Conn. 797, 805–806, 778 A.2d 159 (2001) (holding as inadmissible expert testimony that alleged victim was credible or that supplies diagnosis of sexual abuse).
I note that the Connecticut Code of Evidence provides for a liberal treatment of the admissibility of expert opinion testimony. Experts are allowed to offer opinions that are relevant to the case, including opinions on the ultimate issue, if such opinions assist the trier of fact in understanding the evidence or determining a fact in issue. Conn.Code Evid. §§ 7–2 and 7–3. In other words, Connecticut has abandoned the common-law prohibition on opinion testimony concerning the ultimate issue. Cf. United States v. DiDomenico, 985 F.2d 1159, 1164 (2d Cir.1993) (noting that rule 704[a] of Federal Rules of Evidence, which provides that opinion testimony is not objectionable merely because it embraces ultimate issue, “abrogates the [common-law] rule and allows an expert witness to give opinion testimony embracing an ultimate issue in the case”). Moreover, the Connecticut Code of Evidence allows for experts to opine on hypothetical situations that are based entirely on the facts of the case. See Conn.Code Evid. § 7–4(c); see also State v. Christiano, supra, 228 Conn. at 460–62, 637 A.2d 382.
Thus, in determining the admissibility of expert opinion testimony, the question is not whether the opinion embraces an ultimate issue in the case but, rather, whether the opinion is relevant and helpful to understanding an issue beyond the ken of the average juror. In most cases, allowing an expert to testify that an alleged sexual abuse victim's behavior is consistent with the behavior exhibited generally by sexual abuse victims will be relevant and helpful to a jury. The jury will need to be apprised of both the general behavioral characteristics of sexual abuse victims and whether the behavior of the alleged victim in a particular case is demonstrably similar. Failure to demonstrate that consistency—or inconsistency—will render the expert's testimony irrelevant and unhelpful, particularly in cases in which the behavioral traits are not common or readily understood by the average juror. Indeed, we previously have condoned such an approach. See, e.g., State v. Iban C., supra, 275 Conn. at 635, 881 A.2d 1005;State v. Freeney, 228 Conn. 582, 592–93, 637 A.2d 1088 (1994); see also State v. Butler, 36 Conn.App. 525, 536–37, 651 A.2d 1306 (1995).
The rationale is that sexual abuse victims often behave inconsistently with the common understanding of how crime victims generally behave. For example, sexual abuse victims may not immediately or purposefully report the abuse. See, e.g., J. Myers, “Expert Testimony in Child Sexual Abuse Litigation: Consensus and Confusion,” 14 U.C. Davis J. Juv. L. & Policy 1, 44–46 (2010). These behaviors may lead a rational juror to find the sexual abuse victim less credible, and, therefore, an expert is needed to dispel this confusion.
The majority states that allowing this type of testimony would be inconsistent with State v. Spigarolo, 210 Conn. 359, 377–80, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989). See footnote 31 of the majority opinion and accompanying text. The majority, however, misconstrues my conclusion when it distinguishes between offensive and “defensive” uses of expert testimony. Id. Contrary to the majority's assertion, I do not suggest that expert testimony may serve as substantive proof of abuse. Rather, and fully consistent with Spigarolo, I conclude that an expert may explain the general behaviors associated with abuse victims and then further opine on whether an alleged victim's conduct is consistent with such behaviors. The mere fact that an expert connects those general behaviors to the alleged victim in a particular case does not transform the testimony into a conclusion that the alleged victim was in fact abused. As the majority acknowledges, this court explicitly has approved of the use of expert testimony to explain behaviors that typically follow traumatic events, such as abuse and sexual assault. I therefore reject the majority's suggestion that I expand the scope of admissible expert testimony beyond our precedent. To the contrary, it is the majority's conclusion that does not comport with our treatment of expert testimony under the rules of evidence.
Additionally, a majority of jurisdictions that have addressed the issue allow an expert to testify that the alleged victim's behavior is consistent with the behavior of sexual abuse victims in general. See footnote 26 of the majority opinion (citing cases). “When [the defense attacks] the credibility of the [child sexual abuse] victim ... it is proper to allow an explanation by a qualified expert regarding the consistencies between the behavior of that victim and other victims of child sexual abuse.” People v. Peterson, 450 Mich. 349, 375, 537 N.W.2d 857, amended on other grounds, 450 Mich. 1212, 548 N.W.2d 625 (1995). Although “it is true that an expert may not offer an opinion as to the veracity of the alleged victim, that is, whether the alleged child sexual abuse victim has been truthful, it is within the scope of permissible testimony for an expert to testify regarding his or her opinion that the alleged victim's characteristics are consistent with [those of] a child who has been sexually abused.” Bishop v. State, 982 So.2d 371, 381 (Miss.2008).
The underlying rationale for allowing this type of testimony is that sexual abuse victims exhibit peculiar behaviors that a layperson may incorrectly interpret as being inconsistent with having been sexually abused. See footnote 4 of this opinion. Thus, an expert is needed to explain the behaviors associated with sexual abuse victims and opine on whether the alleged victim exhibited these unusual behaviors. See State v. Davis, 422 N.W.2d 296, 298–99 (Minn.App.1988). In Davis, the court approved of the use of expert testimony to explain that the alleged victim exhibited characteristics generally associated with sexual abuse victims. See id. At trial in that case, “[a]fter describing [those] characteristics,[the expert] testified regarding the conduct [of the alleged victim that] she observed, specifically that [the victim] wore heavy makeup, appeared to be older than she actually was, used her sexuality for attention getting, and was troubled by separation from her mother. [The expert] then testified that this behavior was common in sexual abuse victims of the same age.” Id. at 299. The court concluded that “[t]hese are characteristics that the jury had already observed and may have found peculiar. The expert testimony was helpful to the jury in that it provided relevant insight into the cause of some of [ the victim's ] peculiar behavior ... and assisted the jury in evaluating her credibility. Under these limited circumstances, the expert testimony [was admissible]....” (Emphasis added.) Id.
Thus, as my reliance on State v. Davis, supra, 422 N.W.2d at 299, demonstrates, Justice Palmer incorrectly states in his dissent that I offer no reason why this type of testimony should be allowed. To reiterate, there may be instances when expert testimony expressly linking the complainant's conduct with that of sexual abuse victims may be helpful in understanding the relevance of the expert's opinion. For example, such testimony may be relevant when the complainant has exhibited a wide range of confusing or complex behaviors.
Significantly, allowing this type of testimony is not the equivalent of allowing the expert to vouch for the alleged victim's credibility. “What is forbidden is expert opinion testimony that directly addresses the credibility of the victim ... or expert opinion testimony that implicitly goes to the ultimate issue to be decided by the jury, when such issue is not beyond the ken of the average juror, i.e., [an opinion that] the victim was sexually abused. Although the distinction may seem fine to a layman, there is a world of legal difference between expert testimony that ... the victim's psychological exam was consistent with sexual abuse, and expert testimony that ... the victim was sexually abused. In the first situation, the expert leaves the ultimate issue/conclusion for the jury to decide; in the second, the weight of the expert is put behind a factual conclusion [that] invades the province of the jury by providing a direct answer to the ultimate issue: was the victim sexually abused?” (Internal quotation marks omitted.) Brownlow v. State, 248 Ga.App. 366, 368, 544 S.E.2d 472 (2001), cert. denied, Georgia Supreme Court, Docket No. S01C0928 (June 25, 2001); see also State v. Tibor, 738 N.W.2d 492, 497–98 (N.D.2007).
In Tibor, the expert testified that the alleged victim apparently went “through the five stages of child sexual abuse accommodation syndrome, and [the victim's] behavior was consistent with [that of] someone who [had] been abused. [The defendant's] attorney asked [the expert], ‘you have no opinion on whether or not [the victim] has, in fact, been sexually abused; is that correct’ ... and [the expert] said, ‘[c]orrect.’ ” State v. Tibor, supra, 738 N.W.2d at 498. The court concluded that, although the expert's “testimony support[ed] a determination that [the victim's] allegations [were] true, it also left open the possibility that [the victim's] testimony was not truthful and that [the defendant] did not sexually abuse her. [The expert] did not testify [that] she believed [that the victim] had been sexually abused.... [The expert] did not testify about the [victim's] credibility ... and therefore her testimony did not invade the province of the jury.” Id.
I note that the majority views this distinction as nothing more than a distinction between indirect and direct vouching for a witness' credibility. See footnote 30 of the majority opinion. The majority reasons that, in State v. Grenier, supra, 257 Conn. at 805–806, 778 A.2d 159, this court held that an expert witness may not directly or indirectly vouch for a witness' credibility. The indirect vouching at issue in Grenier, however, concerned experts who testified that they had treated the alleged victim for sexual abuse. See id. at 802–804, 778 A.2d 159. Although those statements may constitute indirect vouching, testimony that merely connects general behavioral traits of sexual abuse victims with those exhibited by an alleged victim does not.
Finally, the rule that the majority adopts elevates form over substance. The majority would prohibit testimony linking general traits of sexual abuse victims to the alleged victim in a particular case. Yet, the Connecticut Code of Evidence and this court's precedent specifically allow for an expert to use a hypothetical that tracks the facts of the case. Thus, an expert may testify that all of the behaviors exhibited by the alleged victim are consistent with those generally exhibited by sexual abuse victims, provided that the testimony is in the form of an answer to a hypothetical question. The rule in the majority opinion, then, effectively fails to preclude an expert from connecting the general behaviors of sexual abuse victims to the alleged victim in a particular case.
In sum, the better approach is for this court to follow the rule adopted by a majority of jurisdictions that have considered the issue. “A qualified expert may inform the jury of characteristics of sexually abused children and describe the characteristics exhibited by the alleged victim but may not state an opinion that sexual abuse has in fact occurred.” United States v. Johns, 15 F.3d 740, 743 (8th Cir.1994); see also United States v. Charley, 189 F.3d 1251, 1264 (10th Cir.1999) (“the court did not abuse its discretion by allowing [the expert] to summarize the medical evidence and [to] express an opinion that the evidence is consistent or inconsistent with the victim's allegations of sexual abuse, and allowing him to inform the jury of characteristics in sexually abused children and [to] describe the characteristics [that] the ... victim exhibits” [internal quotation marks omitted] ), cert. denied, 528 U.S. 1098, 120 S.Ct. 842, 145 L.Ed.2d 707 (2000). In these circumstances,the inquiry into whether an expert may testify that an alleged victim's behaviors are consistent with the alleged victim having been sexually abused essentially turns on two factors. First, the testimony must provide insight into the alleged victim's behavior that is beyond the ken of the average juror. Second, the expert must not actually reach a conclusion in his or her testimonyas to whether the alleged victim actually was abused.
The holdings of jurisdictions applying the Federal Rules of Evidence are persuasive because the federal rules treat expert opinion testimony similarly to the Connecticut Code of Evidence. Compare Fed.R.Evid. 702 (“[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: [a] the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue”), and Fed.R.Evid. 704(a) (“[a]n opinion is not objectionable just because it embraces an ultimate issue”), with Conn.Code Evid. § 7–2 (“[a] witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue”), and Conn.Code Evid. § 7–3(a) (“an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue”).
II
Having established the standard for the admission of expert testimony that connects the general behavioral characteristics of sexual abuse victims with those of an alleged victim in a particular case, I now turn to the testimony at issue in the present case. Defense counsel objected to four portions of the testimony of Lisa Melillo, the state's expert. In the interest of clarity, I identify and analyze each portion separately. At all times relevant to this analysis, the proper standard of review is whether the trial court abused its discretion in admitting the testimony. See, e.g., State v. Iban C., supra, 275 Conn. at 634, 881 A.2d 1005 (“The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions.... The court's decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law.” [Citations omitted; internal quotation marks omitted.] ).
But see State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007) (“To the extent a trial court's admission of evidence is based on an interpretation of the [Connecticut] Code of Evidence, our standard of review is plenary.... We review the trial court's decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion.” [Citations omitted.] ). Saucier, however, focused on the admissibility of hearsay evidence, and three members of the court disagreed with this standard of review. See id. at 233, 926 A.2d 633 ( Norcott, J., with Zarella and Sullivan, Js., concurring in part) (“we should review all purely evidentiary claims, including determinations of whether out-of-court statements are hearsay, solely for abuse of the trial court's discretion”).
A
The first portion of the challenged testimony consists of the following colloquy between the senior assistant state's attorney and Melillo:
“Q. With respect to your formal review of the documents, and I believe you said you looked at the [video recording of the complainant's forensic] interview, can you render an opinion whether [the complainant's] disclosure was an accidental disclosure or a purposeful disclosure?
Melillo previously discussed the terms “accidental disclosure” and “purposeful disclosure” in her testimony:
“Q. ... What types of disclosures are there?
“A. They can be accidental disclosures. They can be purposeful disclosures....
“Q. ... What is an accidental disclosure?
“A. An accidental disclosure is a situation where a child has decided never to talk about their experiences for various reasons, but, despite the efforts of that child to keep this ... to themselves, it has come out by an accident, by a discovery process outside of themselves.
“Q. And you mentioned the term ‘purposeful’?
“A. Purposeful disclosure is exactly what it sounds like. The child has made a conscious decision to tell someone who can stop it or do something about it.
“A. I can render an opinion.... My opinion is it was an accidental disclosure.
“Q. Why is that?
“A. Okay. When I was reviewing the [video recording of the complainant's interview], it was my understanding that she had not wanted to tell someone in a position of authority, a parent, parental figure, what was happening. She had shared it with some girlfriends in confidence, and they said they wouldn't say anything, which we all know teenagers do.... It was my opinion, as I said before, that it was my understanding that she did not intend to tell, make a purposeful disclosure, and so she shared it with some friends, and it came out by accident.”
I conclude that this portion of Melillo's testimony is admissible under the rule set forth in part I of this opinion. The testimony demonstrates that Melillo was rendering an opinion about the complainant's traits on the basis of the facts that had been presented to her. Although it may appear that Melillo was premising her opinion on a conclusion that the complainant had been abused, when Melillo's statement is viewed in the context of the entire colloquy, it is clear that her opinion was much narrower than that. After opining that the disclosure was accidental, Melillo explained that her opinion was rendered solely on the basis of the facts that had been presented to her. This is the functional equivalent of an expert answering a hypothetical question on the basis of the facts of the case, which is clearly admissible.
In any event, application of the deferential standard of review to the admission of this evidence leads to the conclusion that the trial court did not abuse its discretion in admitting it. It certainly can be argued that the trial court viewed Melillo's testimony as responding to the narrow question of whether, based on her review of the video recording of the complainant's interview and other documentation, the complainant had acted in an accidental or purposeful manner when she disclosed the defendant's alleged abuse. Significantly, such an opinion would likely be helpful to the average juror who, not understanding the concept of a sexual abuse disclosure generally, would benefit from an expert's assistance in determining whether the complainant displayed traits associated with a certain type of disclosure. Finally, Melillo's response followed the court's instruction that she was not testifying about the complainant's credibility but solely rendering an expert opinion on the complainant's type of disclosure. See footnote 10 of this opinion. Thus, the trial court did not abuse its discretion in admitting this testimony.
B
The second portion of the challenged testimony consists of the following colloquy between the senior assistant state's attorney and Melillo:
“Q. ... Is it an unusual or usual situation that a child would refrain from telling someone in authority about the abuse?
* * *
“A. It is my experience [that] it is more typical for [a victim] not to share [the disclosure] with somebody who can be in a position to intervene.
“Q. Is there a term associated with that type of disclosure?
“A. There is.
“Q. And what is that called?
“A. It's called delayed disclosure.
“Q. Okay. And what is that?
“A. Again, we talk about the word ‘disclosure,’ about it being a report or statement from ... the child. Oftentimes, we believe that kids just automatically tell, but what we [have] found is [that] it's just the opposite. They ... either delay in reporting it or they never tell at all. So, the process of disclosure ... is not one event. It's a process. And delayed disclosure[s] are also found out; people report things that have happened in the past to them.
“Q. And, in this particular case, upon reviewing the documentation, as well as the [video recording], what is your opinion with respect to whether or not [the complainant] engaged in this process that you're talking about, delaying her disclosure?
* * *
“A. My opinion is [that] she did fit the characteristics of a delayed disclosure.”
This portion of the testimony clearly is admissible under the rule set forth in part I of this opinion. Melillo testified only that the complainant exhibited a characteristic associated with a characteristic generally exhibited by sexual abuse victims. Melillo does not conclude that the complainant was abused or that, by virtue of exhibiting these characteristics, it was more likely than not that the complainant was abused. Moreover, such testimony certainly could be considered helpful to the average juror. If a juror does not understand the traits associated with sexual abuse victims generally, then it is unlikely that a juror would be able to identify those particular traits in the alleged victim, even after the expert explained those traits. Put differently, because the concept of delayed disclosure is not within the ken of the average juror, it reasonably follows that the peculiar traits associated with it are also not within the ken of the average juror. Thus, an expert could assist jurors by testifying that the alleged victim's specific traits are consistent with the traits generally exhibited by sexual abuse victims. For the foregoing reasons, this testimony was admissible.
C
The third portion of the challenged testimony consists of the following colloquy between the senior assistant state's attorney and Melillo:
“Q. Now, also in your training, experience, as well as the literature that exists in the field, is it possible for a child to continue to show signs of respect [toward] the abuser after the abuse has occurred?
“A. Yes, that is very possible.
“Q. Okay. And why is that?
“A. Oftentimes, if a child has made a decision not to tell anybody and wants to keep this within themselves, they have to cope somehow to maintain that, and if they either act differently than what they are typically doing or don't act in a certain way, that can bring, you know, some suspicion. So, if a person's conduct, a child's conduct, is typically respectful and polite to someone, if they should suddenly change, that might arouse suspicion, and then being asked questions, sending a flag to somebody, saying, what's the matter, why aren't you nice to that person anymore. That is a coping method to accommodate keeping that inside them.
“Q. And did you see any evidence of that in your review of the documentation ... or the [video recording of the interview]?
* * *
“A. ... [A]s I viewed the [video recording of the interview], again ... I saw [the complainant] talk about how she, you know, was raised to be polite and respectful, and wasn't going to change that behavior ... in a situation like that.”
This portion of the testimony also is admissible under the rule set forth in part I of this opinion. As with the second portion of the challenged testimony, in this third portion, Melillo testifies only that the complainant exhibited characteristics associated with those exhibited by sexual abuse victims in general. The testimony does not contain any suggestion, conclusion or opinion that the complainant was abused. It is a closer call, however, whether this portion of Melillo's testimony could be considered helpful to the jury. Unlike the traits associated with disclosure that were mentioned in the first and second portions of Melillo's testimony, the traits associated with being “respectful and polite” are more likely to be considered commonly understood and, therefore, within the ken of the average juror. Nevertheless, applying the proper standard of review, I cannot conclude that the trial court abused its discretion in admitting this testimony. In light of the broader context of Melillo's testimony, namely, the need to explain the myriad characteristics exhibited by sexual abuse victims that are not commonly understood, the trial court, in its discretion, reasonably could have determined that the jury would need assistance in identifying the specific traits that the complainant exhibited. Thus, the trial court did not abuse its discretion by admitting this testimony.
D
The fourth portion of the challenged testimony consists of the following colloquy between the senior assistant state's attorney and Melillo:
“Q. Have you ... ever encountered, in your dealings as a forensic interviewer, as well as a school psychologist, behavioral issues or behaviors that young ladies may engage in to address issues of their contact with the abuser?
“A. Yes, I have.
* * *
“Q. Did you see any examples of this, whether it be by the documentation or the [video recording] that you viewed?
* * *
“A. There are many. I used the word ‘accommodations' before. There are many ways that a child ... can cope. Typically, if a child feels kind of powerless and trapped, [he or she] might—particularly with some of the females that I work with at the high school level, have told me, I really just made myself look unattractive.... That [is] one of the things they can control—is how they present themselves, their appearance. So, oftentimes, they might try to make themselves look unattractive, hoping that would turn somebody away. Yes, that is a coping mechanism. That is the way of accommodating something, to be able to control a situation that they really can't control. Similar to what I had said before about changing or not changing a certain behavior to try to cope and survive in a situation.
“Q. Did you note [the complainant's] examples of that in the documentation or the [video recording]?
“A. I did.”
This portion of the testimony is admissible under the rule set forth in part I of this opinion. Melillo's testimony, which is similar to the second portion of the challenged testimony, merely links the general traits of victims of sexual abuse with the complainant's traits. Melillo's statement that the complainant displayed examples of accommodation is the equivalent to testimony that the complainant's traits were consistent with accommodation. Moreover, application of the deferential standard of review to this portion of the testimony leads to the conclusion that the trial court did not abuse its discretion in admitting it. I must presume that the trial court understood the testimony in an admissible form. Additionally, like the first portion of the challenged testimony, Melillo's opinion here would be considered helpful to the average juror. A juror would benefit from an expert's assistance in determining what types of coping mechanisms were typically employed by victims of sexual abuse and whether those traits were exhibited by the complainant in this case. Thus, I cannot conclude that the trial court abused its discretion in admitting this portion of Melillo's testimony.
For the foregoing reasons, I disagree with the majority's conclusion that an expert witness cannot provide testimony that links the general behavioral characteristics of sexual abuse victims to those of the specific victim in a particular case. This rule is inconsistent with Connecticut law. The better approach is to allow this testimony when it assists the jury. Applying the foregoing principles to the present case, I would conclude that the trial court did not abuse its discretion in admitting any of the challenged testimony. Accordingly, I would reverse the judgment of the Appellate Court and affirm the judgment of conviction.
* * *
“Q. ... Upon your review of the documents in this case and the video [recording] that you reviewed ... would you state for us whether this was an accidental or purposeful disclosure on the part of [the complainant]?
“[Defense Counsel]: Objection, Your Honor.... [F]or her to express an opinion as to whether it was purposeful or not, I think would run counter ... to someone in her position making a statement about the credibility of a witness in this case, which is prohibited by ... State v. Grenier, [supra, 257 Conn. 797, 778 A.2d 159], and other cases cited in [that case], including State v. Ali, [233 Conn. 403, 660 A.2d 337 (1995) ], and talking about a particular, alleged victim. This witness should not be allowed to answer questions about the credibility and the definition of what that person is alleged to have done, putting some kind of stamp of approval on it.
“The Court: All right. The objection is overruled. The witness is absolutely not allowed to testify as to credibility, but she is an expert and can render an opinion, and the jury is entitled to give it whatever weight [it] deem[s] appropriate based on her expertise.”