Lack of Familiarity with Specific Test Protocol Does Not Render Inadmissible the General Testimony of an Otherwise Qualified Forensic Expert Witness
In State of South Dakota v. Jonathan Charles Wills, 908 N.W.2d 757 (S.D. 2018), the South Dakota Supreme Court reversed and remanded a state circuit court conviction of Mr. Jonathan Wills for first-degree rape and sexual contact with a child under 16 because of the trial court's decision to exclude expert forensic psychiatric testimony. Using expert witness standards from South Dakota Codified Laws (SDCL) 19-19-702 (2016) and the U.S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the South Dakota Supreme Court concluded that the trial court had misapplied the state's expert witness standard. Wills argued that because the case was dependent on the weight given to expert witness testimony, the decision to exclude Wills' expert created unfair prejudice against him. Mr. Wills contended that precluding his expert from testifying about the methods used by the state's forensic interviewer was inappropriate and warranted a new trial.
Facts of the Case
Mr. Wills lived with his girlfriend, Ms. Lisa Trebelcock, and her three children in Beadle County, South Dakota. Shortly after Mr. Wills' relationship with Ms. Trebelcock ended, Ms. Trebelcock reported Mr. Wills to police for the alleged sexual abuse of one of her children. Mr. Wills alleged that Ms. Trebelcock “set up” the allegations of abuse to obtain custody of the children. Ms. Robyn Niewenhuis, a forensic social worker, conducted a structured interview of the alleged victim using the CornerHouse protocol, a protocol for the forensic interview of alleged underage victims or witnesses of sexual abuse. Ms. Niewenhuis had a master's degree in social work and had completed a one-week course in the administration of the CornerHouse protocol. She had also performed more than 480 forensic interviews.
During the forensic interview, the alleged victim reported various forms of sexual abuse by Mr. Wills. The alleged victim testified at Mr. Wills' trial regarding the alleged abuse and the jury was shown the video of her interview with Ms. Niewenhuis. The state also called Ms. Niewenhuis as an expert witness on forensic interviews. In her testimony, Ms. Niewenhuis explained the CornerHouse protocol and how she used the protocol to interview the alleged victim. Ms. Niewenhuis testified that she saw no “red flags” with the child's description of the alleged abuse.
At trial, Mr. Wills called Dr. Sarah Flynn, a forensic psychiatrist who alleged a number of flaws in Ms. Niewenhuis' interview. Specifically, Dr. Flynn believed that Ms. Niewenhuis had asked questions repeatedly and in a way that suggested bias. She also believed that the alleged victim appeared to recant a statement at one point and that Ms. Niewenhuis failed follow-up on this. Dr. Flynn assured the court that her testimony was only to opine on the quality of the interview, not the truthfulness of the alleged victim. Dr. Flynn had completed general psychiatric residency and fellowships in child and adolescent psychiatry as well as forensic psychiatry. She was board-certified in general psychiatry as well as child and adolescent psychiatry. She was employed as a forensic psychiatrist at the time of the trial. Dr. Flynn admitted that she had only conducted one forensic interview of a child victim in her career and was only familiar with the CornerHouse protocol based on literature and research she had read. However, she noted that forensic psychiatrists were trained to review an interview and give opinions on the quality of the interview. She also had been trained according to the National Institute of Child Health and Human Development method of forensic interviewing, a research-based and nationally recognized protocol for the forensic interview of children.
Despite this, the trial court ruled that Dr. Flynn was not qualified to give an expert opinion on forensic interviews because she was not sufficiently familiar with the CornerHouse protocol. The trial court characterized Dr. Flynn's proposed critique of Ms. Niewenhuis' interview as “rank speculation” (Wills, p. 765). The trial court based its exclusion of Dr. Flynn's testimony on South Dakota state statute (SDCL 19-19-702, eff. January 1, 2016), a statute that adopts Federal Rule of Evidence 702, as well as standards set forth in Daubert. The jury found Mr. Wills guilty of first-degree rape and sexual contact with a child under 16. Mr. Wills appealed the conviction to the South Dakota Supreme Court.
Ruling and Reasoning
The South Dakota Supreme Court concluded that the trial court erred in excluding Dr. Flynn's testimony, reversing and remanding for a new trial. In its decision, the court quoted the previous South Dakota Supreme Court case of State v. Fisher, 805 N.W.2d 571, 580 (S.D. 2011) which gave specific guidance for applying Daubert criteria, stating, “Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony.” In reviewing the evidence of the case, Dr. Flynn's proposed testimony, and Dr. Flynn's qualifications, the court reasoned that the trial court had misapplied Daubert standards as encapsulated in SDCL 19-19-702 (2016). That is, the court reasoned that Dr. Flynn's specialized knowledge would have assisted the trier of fact in understanding the evidence.
The court noted that Dr. Flynn had “extensive education, training, knowledge, and experience in child psychiatry and forensic interviewing” (Wills, p. 765). The court noted that both Dr. Flynn and Ms. Niewenhuis had been trained in generally accepted interview protocols. They added that Dr. Flynn reported using the National Institute of Child Health and Human Development protocol as a matter of preference and out of the opinion that it was supported by a greater evidence base than the CornerHouse protocol. The court further reasoned that Dr. Flynn and Ms. Niewenhuis had both trained in forensic interviewing and agreed-upon general principles of forensic interviewing, such as the importance of remaining neutral and avoiding leading questions. The court noted that Dr. Flynn's proposed criticism of Ms. Niewenhuis' interview was not merely speculation about the proper administration of an unfamiliar test protocol, rather what Dr. Flynn believed to be violations of general principles of forensic interviewing. The court cited another South Dakota Supreme Court case, State v. Guthrie, 627 N.W.2d 401, 417 (S.D. 2001): “When opposing experts [have] contradictory opinions on the reliability or validity of a conclusion, the issue of reliability becomes a question for the jury.” Furthermore, in Daubert, the U.S. Supreme Court noted, “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence” (Daubert, p. 596). The court explained that Dr. Flynn's lack of personal experience with the interview protocol might affect the weight placed on her testimony but did not render the testimony inadmissible. The court opined that the trial court record established Dr. Flynn as a qualified expert in child forensic interviews and that her experience as a child psychiatrist could assist the jury in evaluating Ms. Niewenhuis's interview of the child. The court reversed and remanded, ordering a new trial for Mr. Wills.
Discussion
There appears to be tension between permissive and strict modes of applying Daubert criteria in determining the admissibility of scientific testimony. The South Dakota Supreme Court with its ruling in this case does not appear to advocate for one extreme or another. Rather, it identifies what it considers to be a too-narrow application of Daubert as encapsulated in SDCL 19-19-702. In Wills, the South Dakota Supreme Court concluded that experts need not be intimately familiar with all aspects of an opposing expert's protocol to be considered qualified to provide assistance to the trier of fact that is meaningful. The ruling is particularly salient with regard to psychiatric and psychological testimony given the proliferation of scales, testing, and instruments in forensic practice. Some might argue and this ruling suggests that it is expecting too much of reasonably qualified forensic experts to be intimately familiar with and trained in the administration of all possible instruments an opposing expert might employ. While this decision would not give an opposing expert license to comment on whether an unfamiliar test was administered according to protocol, it would allow for the general critique of another expert's adherence to general principles and standards of practice within a general subject area. It encourages trial courts to have some flexibility in admitting forensic experts, especially when the outcome may well depend on the jury's assessment of the weight given conflicting expert testimony.
- © 2018 American Academy of Psychiatry and the Law
