Expert Witness Testimony

Facts of the Case

Maouloud Baby was convicted in the Circuit Court for Montgomery County, Maryland, of first-degree rape and related sexual offenses. Mr. Baby's charges resulted from an incident during which he engaged in sexual intercourse with a female. It was alleged that she initially consented, but that, during the course of the act, she withdrew her consent, and the defendant did not heed her request. Following the encounter, the identified victim went shopping with her best friend and best friend's mother, before revealing to them what had taken place and notifying the police.

Dr. Ann Burgess, a Professor of Nursing at Boston College, was proffered by the state to provide expert testimony on the subject of “rape trauma syndrome.” Mr. Baby objected, however, and filed a motion in limine to exclude Burgess’ testimony. The motion was denied, and at trial, Burgess testified that the behaviors demonstrated by the victim, including offering “minimal physical resistance” in response to the assailant's action, not immediately telling her friend about the rape, engaging in routine behavior such as shopping shortly after the rape, failing to call 911 immediately, and providing her phone number to the assailant, were all consistent with rape trauma syndrome.

Although the jury was instructed by the trial court on the elements of first-degree rape, upon deliberation they sought clarification from the court of whether a sex act initially consented to by the identified victim can constitute rape if the victim withdraws consent after the onset of intercourse. The court declined to provide a response, however, and instead instructed the jury to rely on the statutory language provided and to apply it to the facts of the case accordingly.

Mr. Baby appealed his conviction to the court of special appeals, arguing that the circuit court erred by not instructing the jury that it should return a not guilty verdict based on a finding that the identified victim had consented to sexual intercourse, only to withdraw consent after penetration; denying his request to remove a juror who had acknowledged reading a newspaper article about the case; and denying his motion in limine to exclude Burgess’ testimony regarding rape trauma syndrome. The court of special appeals reversed Mr. Baby's conviction and held that the trial court had erred in refusing to answer the questions submitted by the jury regarding whether a sex act initially consented to by the identified victim can constitute rape if the victim withdraws consent after the onset of intercourse. The court of special appeals additionally held that the trial court had not been wrong in allowing Burgess to provide expert testimony regarding rape trauma syndrome.

The state subsequently filed a petition for writ of certiorari and asked the Maryland Court of Appeals to consider multiple questions around the definition of rape and jury instructions. Likewise, Mr. Baby filed a conditional cross-petition for writ of certiorari, asking the court of appeals to consider additionally whether the trial court was wrong in denying his motion in limine to exclude Burgess’ testimony, based on the argument that the reliability of rape trauma evidence was not established and therefore should have been subject to the Frye-Reed standard for general acceptance.

Ruling and Reasoning

The court of appeals reversed Mr. Baby's convictions and remanded the case for a new trial. The case was heard before a seven-judge panel, with multiple concurring and dissenting opinions on the various parts. With regard to the question of admissibility of the rape trauma syndrome testimony, the court was unanimous. The court held that Maryland's rape statute includes sexual intercourse that is accomplished through force or the threat of force and without the victim's consent, even if the victim had initially consented to sexual intercourse. The court reasoned that the intermediate appellate court erred in its analysis of prior decisions. It noted that “the courts in many of our sister States have directly considered whether withdrawal of consent after penetration can constitute rape,” citing Maine v. Robinson, 496 A.2d 1067 (Me. 1985), Kansas v. Bunyard, 75 P.3d 750 (Kan. Ct. App. 2003), and Connecticut v. Siering, 644 A.2d 958 (Conn. App. Ct. 1994), and therefore concluded that “our own rape statute punishes the act of penetration, which persists after the withdrawal of consent” (Baby, p 486).

The court of appeals further held that the trial court was wrong in failing to provide more specific instructions to the jury on “postpenetration withdrawal of consent,” given the questions they voiced at deliberation. Likewise, in addressing the state's argument that Mr. Baby's convictions on the related sexual offense charges should be upheld because they were not implicated in the subject matter of the jury's questions, the court of appeals agreed with the lower court's ruling. It reasoned that “clarification which the jury received on the element of consent would have been applicable to its understanding of the first and third degree sexual offense counts, as well as the rape charges” (Baby, p 490).

In providing guidance to the lower court for the new trial, should the state recall Burgess, the court of appeals accepted Mr. Baby's argument that Burgess’ expert testimony on rape trauma syndrome should have been subjected to a Frye-Reed hearing to determine its reliability before admission at trial. In Reed v. Maryland, 391 A.2d 364 (Md. 1978), the court adopted for Maryland the standard establishing the reliability of scientific methodology articulated in Frye v. United States, 293 F. 1013 (D.C. 1923), and held that “before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular scientific field” (Reed, p 381). Citing other states where the Frye standard is applicable and where courts have considered the admissibility of expert testimony on rape trauma syndrome (e.g., People v. Bledsoe, 681 P.2d 291 (Cal. 1984), Kansas v. Marks, 647 P.2d 1292 (Kan. 1982), and Minnesota v. Saldana, 324 N.W.2d 227 (Minn. 1982)), the Maryland court suggested that rape trauma syndrome evidence first be subjected to Frye-Reed analysis of general acceptance, in the event that an appropriate objection is made.

Discussion

Of particular interest to mental health professionals who may be called on to testify in court, this case focuses attention on the admissibility of expert witness testimony relative to the general acceptance standard of reliability first articulated in Frye (1923) and subsequently addressed by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Recall that the Daubert decision applied to cases under the 1975 Federal Rules of Evidence (FRE). An individual state may have subsequently chosen to adopt the Daubert analysis depending on its own state rules of criminal and civil procedure. Maryland is an example of a state that does not follow the FRE, and has continued to maintain the Frye standard.

In the present case, the state contended that expert testimony on the subject of rape trauma syndrome was offered to support its argument that the identified victim did not consent to the sexual acts in question and to explain her behavior following the sexual encounter, behavior that might have otherwise been construed as inconsistent with being the victim of a rape. In addition to questioning the reliability of rape trauma evidence, Mr. Baby conversely argued that Burgess did not clearly define the nature and limits of rape trauma syndrome, and that by virtue of her testimony on this subject, she improperly rendered an opinion that a rape had occurred, a determination that is reserved for the trier of fact. In addition, he voiced concern about the prejudicial impact of the term rape trauma syndrome based on the implication that the referenced symptoms could be attributed only to rape.

These divergent arguments highlight the importance of standards for determining the validity and reliability of scientific methodologies and subsequent opinions, and most important, adhering to those standards in the courtroom. Experts (and retaining attorneys) must also be aware of the relevant case law in their jurisdiction regarding admission of expert scientific testimony, whether it be based on Frye, Daubert, or another standard. This case is a reminder that the onus is not only on judges to utilize their discretion appropriately in applying the relevant standard in cases involving expert testimony, but also on expert witnesses themselves to ensure that their testimony is carefully derived and able to withstand such scrutiny. Any other practice could result in the admission of expert testimony that is misguided and weak at best and biased and unfounded at worst.