The Journal 01 Psychiatry & Law/Fall-Winter 1991 185

A judicial dilemma: expert

witness testimony in child
sex abuse cases

BY MARY ANN MASON, PH.D., J.D.

This studyfirst analyzes the contentof 122 appellate court

decisions in whichexpert witnesstestimony on the characteristics
of sexuallyabusedchildren is challenged. The nature of the
testimony. the identityof experts. and the patterns of judicial
response to this testimony are both quantitatively and qualitatively
examined. The study then reviews the concerns raised by the
clinical/scientific community about the validityof this behavioral
syndrome testimony and the role of the therapist as expert. The
gulf between the judicial community and the clinical/scientific
community is addressed. Alternative forms of expert testimony that
more closely meet the criteria of both communities are suggested.

Prosecutors are faced with a frustrating problem in child sex

abuse cases. Often they must prove a case with no corrobora-
tive evidence, no witnesses, and a victim who is reluctant or
unable to testify against the defendant. Sometimes that victim
is less than five years old. Even when the victim does testify,
the nature of the testimony may be halting and/or inconsistent
and may completely contradict pretrial testimony.

In juvenile and family courts the evidentiary problems are

similar, although the constitutional protections afforded the

(f) 1992 by Federal Legal PublicaliollS./flc.

186 CHILD SEX ABUSE TRIALS

defendant are not at issue. The goal is to protect the child in a

dependency action or custody dispute, rather than to prose-
cute the alleged abuser, but the trial judge must still rely upon
a child witness, often with no corroborating evidence. While
the possible outcome for the suspected abuser is not prison in
this court, the stakes are high. The result could be a parent's
loss of access to his or her child and a lifelong social stigma
as a child molester.

To help overcome their evidentiary problems, prosecutors and

juvenile and family courts rely increasingly on expert witness
testimony. In addition to medical witnesses who testify as to
the physical symptoms of abuse if there are any, mental
health professionals-clinical psychologists, psychiatrists,
and social workers-are called upon.

These mental health experts usually offer two kinds of testi-

mony. First, they may testify, based on their experience and
training, that they consider a particular child to fit the profile
of a sexually abused child. To prepare for this testimony the
expert interviews the child extensively, often with the help of
an anatomically correct doll, notes symptoms and behavior
patterns, and formulates a diagnosis. This evaluation is some-
times derived over the course of several sessions of therapy.
The parents and others who have observed the child may be
questioned as well. The expert may claim that the child fits
the particular characteristics of a specific syndrome associ-
ated with sexually abused children, or that the child fits a
looser description of characteristics often found in sexually
abused children. Often the expert will not reach this conclu-
sion directly, but will recite the characteristics of an abused
child and then describe most of the same characteristics that
he has observed with this particular child witness.

The second kind of expert testimony addresses only the gen-

eral characteristics of a sexually abused child, but not the
behavior of a particular child. With this kind of testimony, the
expert, almost always a clinician, mayor may not have evalu-
 187

ated the child and addresses general clinical patterns

observed by himself and others in sexually abused children.
Here also, the testimony may be presented as a specific syn-
drome or more loosely described as general behavioral char-
acteristics of a sexually abused child.'

In addition to testimony regarding the characteristics of sexu-

ally abused children, a few experts also offer their opinion on
the characteristics of the abuser. These opinions are not based
on interviews, but rather offer sociological theories, some-
times with statistical support, on the common characteristics
of abusers of children.

Behavioral syndrome testimony in child sex abuse cases has

provoked serious controversy in the courts,' with contradic-
tory appellate court decisions as to its admissibility within
the same jurisdiction.' Although testimony regarding the
characteristics of sexually abused children is quite recent
(within the last 10 years), a fairly large body of appellate
court decisions (122 identifiable at the time of this writing)
has developed rulings on its admissibility.' It is now possible
to discern definite patterns of expert testimony that are chal-
lenged on appeal and of appellate courts' acceptance and
rejection of this testimony, as was not possible with the ear-
lier, seemingly randomly inconsistent decisions of the first
few years.

The following material is organized into four parts. Part one

will examine these 122 appellate cases (both criminal and
civil) to investigate the nature of the expert testimony and the
kind of expert delivering the testimony that the appeal courts
face. Particular attention will be paid to the wide range of
characteristics that are put forth by experts, and to the back-
ground and training of the experts. Part two will analyze
these appellate courts' responses to the expert testimony and
to the qualifications of the experts, with particular attention
to patterns of judicial admission and exclusion and their rela-
tionship to evidentiary standards. Part three will examine the
188 CHILD SEX ABUSE TRIALS

scientific status of this diagnostic category within the context

of the clinical community, and also probe the role of the
expert as both therapist and fact finder. Finally, part four will
explore the possibility of alternative expert testimony by sci-
entists who are researching children's eyewitness abilities
with regard to memory, suggestibility, fantasy, and ability to
recall at different developmental stages.

Expert testimony regarding characteristics of

sexually abused children

Method A keyword search of both the WESTLAW and LEXIS complete

state and federal databases from 1980 to the present was
undertaken and cross-checked. The keyword descriptors
employed were "expert witness" and "sex abuse." All cases
that dealt with adult sex abuse were eliminated, as were all
cases where the expert's testimony was not an issue on
appeal. Cases dealing only with expert medical testimony or
with hearsay testimony were also eliminated. It should be
noted that WESTLAW, because of its extensive headnotes,
yielded more cases than LEXIS.

The sample of 122 cases selected by this search was coded to

describe the grounds for appeal, the identity of the experts,
the nature of expert testimony described, the judges' deci-
sions, and the judges' reasons.

There are several limitations to this data set. The information

is gathered only from these appellate reports. The identity of
the experts and the nature of the expert testimony reported in
these appellate decisions may not be an accurate representa-
tion of expert testimony at the trial court level, since most
trial court decisions are not appealed or terminate with
acquittals. In addition, not all the appellate court decisions
describe the expert testimony presented at the trial. Nor can
this data set fairly represent how often trial courts admit or
exclude experts, or how they make their decisions.
 189

Nevertheless, this sample is representative of appellate court

judges' responses and reasoning and probably fairly repre-
sents the nature of the expert testimony and the identity of
the experts they must deal with on appeal. Only by examining
the trial court transcripts for each of these 122 cases could
the nature of the expert testimony be known for certain.

The charac- Seventy-three of the 122 appellate cases that responded to

teristics challenges of expert witness testimony specified the charac-
teristics offered by the experts in their trial court testimony.
This testimony was either applied to a specific child or pre-
sented as a general description of the behavior of sexually
abused children. The characteristics and the way they are
labeled vary widely, and there are significant contradictions
among experts.

Syndrome Many of the earlier cases label the characteristics they pre-
testimony sent as the child sex abuse accommodation syndrome
(CSAAS) or some variation of that term (see Table 1), and,
they often mention Roland Summit, the psychiatrist who is
generally credited with formulating this syndrome to describe
intrafamilial sex abuse.' The five characteristics that Summit
noted and that are still frequently mentioned, even when not
identified as CSAAS, are: secrecy, helplessness, accommoda-
tion, fear of disclosure, and retraction. In later cases the term
CSAAS or its variations is less frequently noted, and most
experts describe their testimony generally as characteristics

TABLE 1 How experts label descriptions

Syndrome n
CSAAS (Child Sex Abuse Accommodation Syndrome) 10
PTSD (Post Traumatic Stress Disorder) 4
Child Sexual Abuse Syndrome 3
Intrafamilial Child Sex Abuse Syndrome 3
Child Abuse Accommodation Syndrome 2
Post Child Holest Traumatic Stress Disorder 1
Child Holest Syndrome 1
No syndrome named 49
190 CHILD SEX ABUSE TRIALS

of sexually abused children. This may well be a response to

the refusal of some courts to admit the CSAAS on the
grounds that it lacked scientific reliability as evidenced by its
exclusion from the DSM-I/I-R, the diagnostic manual of the
American Psychiatric Association. A few of the more recent
cases move away entirely from sexual abuse classifications
and instead refer to the post-traumatic stress syndrome, or
PTSD, which is included in the DSM-/II-R.6 This testimony
emphasizes the reluctance of children to report the event
immediately or at all.

In this analysis of characteristics specified by the experts in

their testimony, by far the largest cluster involves denial or
reluctance to report that the event occurred. And yet this
behavior is offered affirmatively to prove that the event did in
fact occur. Delayed reporting (21), retraction/recantation
(19), conflicting and inconsistent accounts (14), are all pre-
sented by the experts as characteristics of sexually abused
children (see Table 2).

The anomaly of this central core of descriptors is that chil-

dren are believed only when they disclose sexual abuse and
disbelieved when they deny or change their stories. Their
very denials strengthen the expert's belief in their abuse.

On the other hand, 15 experts testified that sexually abused

children do not lie about their abuse, and six stated that con-
sistency in accounting is characteristic of sexually abused
children. There are other contradictions as well. The second
largest category of descriptors deals with the child's sexual
behavior. While 14 experts cite inappropriate knowledge of
sex and sexual preoccupation as characteristics of an abused
child, a few (six) believe naivete and aversion to sexual mat-
ters are marks of abuse. Likewise, in two of the cases fear of
men was recited as a trait of an abused child, whereas two
experts testified that a desire to protect or to continue to see
the abuser was consistent with abuse. In yet another contra-
 191

TABLE 2 Description of sexually abused children offered In

testimony
Truthfu Iness Sexua 1 behav 1 or Emotlana 1 behavlor

Delay. denial n
1nCODs1st,ncy n Oyerly sexual n
Nightmares,
De Iay.d r.port I ng 21 Knowl edge of sex sleep disorders 13
inappropriate for age
R.tract ton, He1p1essness 10
recantat i on 19 sexua1 preoccupat Ion
Fear 10
Conflicting &
unconv i nc I ng Ayers j DO to sex n Depression
disclosure!
Inconsistent Negative attitude Bedwett Ing
accounts 14 toward sex
Anxiety
Fabrication Na;ve in sexual
matters Withdrawa 1
Truthfyl. consl stent n Fear of men Regress ion
Children don't ];e! Gull t
false accounts rare 15
Anger
ConsIstency In
account (children Eat Ing disorders!
unable to lIlalntatn lack of appet I te
consl stent 1 Ie
over tlllll!) EmbarrilSsment
Child can tell Confusion
reall ty from
fantasy Suicidal

Sense of loss
Emotional behavior

Dissociat ive
behavior

Trauma
Acting out b.havlor Other

n n
Probl.ms at school 7
Aggr.sslon 3 Play with doll s Indicates
Relationship problems 2 abuse 12
RunnI ng away 2 Secrecy 8
Pseudomaturl ty 2 Accommodat Ion B
Agitation 1 Drawings by child indicate
abuse
Inappropriate trust level
Minimization of events
Report to non-family ....bor
Rem.mber abuse occurring In
sleep
Ambivalence
Poor self- llIlage
Restriction of activity
Sense of betrayal
 192 CHILD SEX ABUSE TRIALS

diction, pseudomaturity was cited by two experts as evidence

of sexual abuse, while one expert cited emotional immaturity.

In addition, many experts described emotional or acting-out

behavior consistent with sexual abuse that may be considered
typical of many children at some point. These general charac-
teristics include depression and anxiety (15), anger (5),
regressive or withdrawn behavior (12), sleep or eating disor-
ders, including nightmares and bedwetting (24), and behav-
ioral problems such as running away, problems at school, and
other forms of acting-out behavior (17).

This examination of characteristics offered by expert wit-

nesses in this sample indicates, at the least, an imprecise
behavioral profile with a number of critical contradictions.
Part of the reason that these characteristics are so contradic-
tory and diverse may be that the expert is tailoring the list to
suit a particular child. For example, in State v, Myers,' the
court allowed testimony that the child was abused because
she showed symptoms such as fear, confusion, poor mother-
daughter relationship, fear of men, nightmares with assaultive
conduct, and sexual knowledge beyond her years. On the
other hand, the expert in Ward v. State' testified that a child
could show signs of abuse by sexual behavior, passiveness or
aggressiveness, changes in eating habits, underachievement,
sleep disturbances, or depression.

The experts Nearly all the experts have a clinical orientation, with social
workers (all are L.C.S.W.s or A.C.S.W.s) the largest group,
closely followed by clinical psychologists (Ph.D.s) and
trailed by counselor/therapists, psychiatrists, and physicians
(M.D.s). All other groups are sparsely represented (see Table
3).

Interaction of In those instances (128) where the interaction of the expert

expertwith with the child was noted in the appellate court decision, the
child witness great majority of experts interviewed the child (86.7%), while
a.large group among those who interviewed the child (45.9%)
 193

treated the child as well. Twenty-three experts specified that

they employed anatomical dolls in their interview.

Most of the experts are therapists, with a significant number

serving as the therapist for that particular child witness. In
qualification discussions, many mentioned workshop atten-
dance but no independent research (with the exception of
Roland Summit, who is identified in three cases).

TABLE 3 Expert whness by profession

Profession n %

Social worker 54 (34%)

Cli~ttal psychologist 49 (31%)
Counselor/therapist 19 (12%)
Psychiatrist 12 (8%)
Physician 12 (8%)
Other (includes professor, police
investigator, school principal, etc.) 14 (9%)
Total 160

Note: There is more than oneexpert in many cases.

Judicial response to expert testimony

A pattern of appellate court acceptance and rejection can be

identified. In the 122 cases examined, there is an overall
trend in favor of admission of expert testimony (67 courts
admitted testimony, 44 excluded testimony, 11 admitted in
part and excluded in part). Usually these appellate courts take
expert testimony at face value. They do not attempt to evalu-
ate the content of expert testimony or to analyze its reliabil-
ity. They question its acceptance by the relevant scientific
community infrequently, and they rarely question the creden-
tials of the mental health professionals who present them-
selves as experts.

Rather, these appellate courts are inclined to judge broadly

that the testimony is helpful to the trier of fact or that it inter-
 194 CHILD SEX ABUSE TRIALS

feres with the decision-making of the trier of fact (judge or

jury) to determine the credibility of the child. They are more
likely to approve testimony offered on rebuttal than direct
testimony. They are not inclined to create any bright-line
rules for admission, and they provide little reasoned analysis.

In making their judgments, these appellate courts are guided

by the Federal Rules of Evidence or their state's version of
them. According to Rule 702, "If scientific, technical or other
specialized knowledge will assist the trier of fact to under-
stand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, train-
ing, or education may testify thereto in the form of an opin-
ion or otherwise."? This rule is balanced by Rules 401 and
403, which insist, respectively, that the evidence must be rel-
evant and that it must not create a substantial likelihood of
undue prejudice by confusing the issues or misleading the
jury. Over and above these specific guidelines regarding
expert witnesses, there is the well-established general rule
that the issue of credibility is the sole province of the jury. "It
is hornbook law that the credibility of a witness and the
weight to be given his testimony rests exclusively with the
jury.?"

In addition to these broad rules, some jurisdictions have

adopted the more stringent Frye test," which permits expert
testimony only where the trial court has found that the scien-
tific principle or discovery underlying the testimony is "suffi-
ciently established to have gained general acceptance in the
particular field in which it belongs.':"

Challenges As noted in Table 4, expert testimony is challenged on sev-

to expert eral grounds. Overall, the pattern of response by these appel-
testimony late courts favors admission of testimony that claims that a
particular child exhibits signs of sexual abuse or offers gen-
eral characteristics of sexually abused children. On the other
hand, specific syndrome testimony (most often CSAAS) is
not usually admitted (33.3%) when challenged, nor is testi-
 195

TABLE4 Response to challenges of expert testimony

Admission Non-admissIon lata 1
n r. Il % Il
Particular child shows signs
of abuse (syndrome and genera I) 54 63.5% 31 36.5% 85
General characteristics
(not particular child) 21 60\; 14 40'. 35
SyndrOlle test imony
(not particular child) 33.3% 66.7%
1est illOny based on observat ions
with anatomical doll s 22.3% 7 77.7'1. 9
Chil dren don' t 1 i e about abuse 25% 9 75% 12
Characteristics of defendant/abuser 7.1% 13 92.9% 14

lotal 84 80 164
Note: Cases may have more than one basis for admission/non-admission.
Totals will be more than 100%of total cases.

mony based on observations with anatomical dolls (28.6%).13

Courts are particularly disapproving of testimony that chil-
dren don't lie about abuse (25% admission) and are
adamantly opposed to testimony that offers characteristics of
abusers (7.1 % admission).

Character- The largest number of challenges to expert testimony are

istics of directed at testimony that matches behavioral characteristics
sexual abuse of sexually abused children to a particular child. However,
applied to a most of these appellate courts concluded that this testimony
particular was properly admitted. The single most important concern of
child the courts that rejected this testimony was not the accuracy of
the testimony or the qualifications of the experts, but that the
experts had been too conclusory about a particular child wit-
ness telling the truth (see Table 5).

The language of their reasoning varies, but the accepted argu-

ment is that expert testimony may not be admitted to "tell the
jury who is correct or incorrect, who is lying and who is
truthful. "14 Other courts express this testimony as a contradic-
tion to Federal Rule 702, since an expert's conclusory opin-
ion is of no assistance to the trier of fact."
 196 CHILD SEX ABUSE TRIALS

TABLE 5 Reasons forexclusion of expert testimony

Reasons n
I. Inappropriate support of child's credibility 27
2. Inappropriately defines characteri st i cs of defendant 13
3. Not helpful/irrelevant 10
4. Claim that ·children don't lie" usurps jury function 9
5. Anatomical dolls not scientifically accepted 7
6. Syndrome not accepted in scientific community 3
7. Syndrome testimony not allowed to prove abuse occurred 3
8. Too prejudicial 1
Note: Somecourtsoffermore thanone reason for exclusion.

The majority of courts, however, allow the expert's testi-

mony, generally stating that it is within the trial court's dis-
cretion or that the testimony is helpful. The Supreme Court of
Hawaii, the first court to allow this testimony, explained that
the expert's opinion regarding the complainant's credibility
logically followed from his testimony about the behavior of
sexually abused children. Therefore, the testimony respecting
the credibility of the complainant "cannot be considered to be
substantially more prejudicial than the testimony which led to
the conclusion.'?'

General Courts admit or exclude testimony limited to a description of

characteris- general characteristics of sexually abused children more often
tics of on rebuttal than direct testimony (nine admissions on direct,
sexually 12 on rebuttal). This most often occurs when a child's testi-
abused mony is inconsistent and the expert is called upon to recite
children that characteristics of inconsistency and denial are common
to sexually abused children.

A few appellate courts believe it is more acceptable to admit

testimony on general characteristics not applied to a particu-
lar child. "While general characteristics testimony may
merely inform jurors that commonly held assumptions are not
necessarily accurate and allow them to fairly judge credibil-
ity, courts have found that when the expert testifies as to the
particular child's characteristics or credibility, there is an
 197

undue risk of influencing the jury's independent credibility

determination.':"

Syndrome These appellate courts are less likely to admit testimony

testimony about the behavior of sexually abused children that is specifi-
cally titled "child sex abuse accommodation syndrome"
(CSAAS) or some version of this title than they are a more
flexible list of descriptors with no title. Some courts chal-
lenge the scientific reliability of the syndrome on the basis
that it is not recognized as a diagnostic category by the
American Psychiatric Association or the American Psycho-
logical Association. As the court observed in Sara M.:
The Third District concluded the evidence adduced at the jurisdic-
tional hearing failed to meet the Kelly-Frye Standard. The psychol-
ogists testified the syndrome is neither included in the Diagnostic
and Statistical Manual of Mental Disorders (DSM-III-R) of the
American Psychiatric Association nor recognized by the American
Psychological Association or other professional organizations. The
psychologists described the syndrome as being in the beginning
stages of development and acceptance. II

Although the American Psychiatric Association's diagnostic

system does not recognize the CSAAS or any other diagnos-
tic profile of the sexually abused child, the DSM-Ill-R does
recognize post-traumatic stress disorder (PTSD), and at least
one court made this distinction in allowing testimony labeled
PTSD about a child's reluctance to admit that sexual abuse
had occurred."

And yet, some courts do not seem troubled by this lack of

acceptance in the relevant scientific community and readily
accept syndrome testimony."

Testimony When directly challenged on this issue, most of these appel-

based on late courts (two admissions, seven exclusions) refuse to admit
observations testimony that a child's play with anatomical dolls reveals
with anatomi- evidence of sexual abuse. This technique. widely used by
cal dolls therapists to aid in assessing whether a child has been sexu-
ally abused. is sometimes challenged under the Frye rule as a
 198 CHILD SEX ABUSE TRIALS

new scientific principle not "sufficiently established to have

gained general acceptance in the particular field in which it
belongs.'?' The court in In re Amber B.22 reversed a depen-
dency adjudication based on dolls-assisted testimony, arguing
that "The purpose [of the California version] of the Frye rule
is to prevent factfinders from being misled by the 'aura of
infallibility' that may surround unproven scientific methods."

Children never Most of these appellate courts reject testimony that children
lie about sex don't lie about sex abuse (three admissions, eight exclusions).
abuse Some reason that this testimony is conclusory as to the credi-
bility of the child and therefore invades the province of the
trier of fact. In People v. Snooc" the social worker expert tes-
tified that "general attitudes, accepted attitudes as far as the
literature concerning child abuse is that children tend not to
fabricate stories of sexual abuse and in giving reports tend to
reproduce their experiences." Even this qualified statement
was considered invasive of the jury's role.

In more recent cases, testimony of this kind is uncommon.

Presumably experts have learned that this testimony will be
unacceptable. Testimony that may be acceptable, however, is
that children of a particular age lack the capacity to relate
incidents of sexual abuse if they have not experienced them."

Characteris- Courts are adamant in their refusal to admit testimony regard-

tics of defen- ing the characteristics of sexual abusers on the grounds that it
danVabuser is too prejudicial to the defendant (92.9%). In State v. Maule"
the court rejected testimony that most child abuse cases
involve biological fathers because the testimony was not
intended to explain sexual abuse so much as to implicate the
defendant.

The rebuttal While many of these appellate courts are reluctant to allow
exception expert testimony offered affirmatively, they often willingly
and even enthusiastically admit expert testimony to rehabili-
tate the credibility of the witness who has been attacked by
the defense. Twenty-seven courts admitted expert testimony
 199

on rebuttal, while only seven rejected it (see Table 6). Courts

that reject affirmative testimony sometimes express in dicta
that they would have allowed it for the purpose of rehabilitat-
ing the child witness. Some courts find that expert opinion is
inappropriate when it goes to witness credibility if the wit-
ness's credibility has not been attacked or put in issue. It will
therefore be excluded when". . . there is insufficient evi-
dence that the victim's character for truthfulness had been
directly attacked by the defense. "26
TABLE 6 Pattern of admission of rebuttal testimony
Admit Exclude
n n
Direct testimony 57 73
Rebuttal testimony 27 7
Note: X' (1 ,N=164) = 13.64,pe:.OO1.

While there is an element of fair play in allowing expert testi-

mony when the child's credibility has been attacked, there are
several problems with how these appellate courts handle the
rebuttal exception. They allow expert witness testimony on
recantation, which associates the child's behavior with a syn-
drome used to diagnose sexual abuse, and opportunity for
rebuttal becomes an open window through which all kinds of
testimony not allowed on direct testimony is thrown.

Recantation The typical rebuttal situation occurs when the defense points
out that the child delayed, sometimes for months or even
years, in telling about the alleged incident of abuse, or that
the child recanted regarding the original accusation of abuse.
For example, in State v. Middleton" a 14-year-old girl
reported that her father had raped her. Within one week she
made consistent reports to her mother's friend, a Children's
Services worker, a doctor, the police, and the grand jury. Six
weeks later she recanted in front of her mother, the father's
attorney and another witness.
200 CHILD SEX ABUSE TRIALS

When evidence of the child's change of story was brought

forth at trial, the expert was then allowed to explain this sup-
posedly incomprehensible behavior by testifying that a com-
mon characteristic of sexually abused children is denial
following an allegation of sexual abuse, presumably out of
fear of the abuser. The Middleton court stated on appeal:
If a complaining witness in a burglary trial, after making the initial
report, denied several times before testifying at trial that the crime
had happened, the jury would have good reason to doubt seriously
her credibility at any time. However, in this instance we are con-
cerned with a child who states she has been the victim of sexual
abuse by a member of her family. The experts testified that in this
situation the young victim often feels guilty about testifying against
someone she loves and wonders if she is doing the right thing
. . . . Explaining this bizarre behavior by identifying its emotional
antecedents could help the jury better assess the witness' credibil-
ity,"

Although there is an element of fairness in allowing the

expert to counter charges by the defense that recantation indi-
cates lying, the anomaly is that recantation is presented as a
characteristic of a sexually abused child, thereby not just con-
vincing the jury that this kind of delay for a child is explain-
able (as it could be by other theories, as noted in part four),
but that it is a characteristic of a sexually abused child. This
provides a form of "linkage" that, it could be argued, is
highly prejudicial.

Perhaps even more problematical is that the expert's testi-

mony is often not limited to the fact of recantation. In Allison
v. State" the child witness was not accused of recantation, but
rather of fact complicity with her mother in creating the story.
The court then allowed the experts to bring in a very wide
range of testimony, with no regard to its reliability, that had
little to do with complicity.

In People v, Gray" the nine-year-old child was initially reluc-

tant to disclose the alleged acts of lewd behavior perpetrated
by her stepfather and was initially inconsistent in her
 201

account, naming a stranger, not her stepfather. The expert

witness was permitted to testify that "there are certain behav-
ioral traits seen in molestation victims; i.e., delayed report-
ing, fear of disclosure, accommodation in the sense of
outward affection toward an adult a child also fears, and
increased likelihood of immediately reporting a stranger
rather than a family member.'?' In this case the allegation was
brought by the girl's father in the course of a child support
battle, while the girl's mother reported that the girl had a very
good relationship with the stepfather and had shown no signs
of emotional distress.

Civilv. Appellate courts in some jurisdictions argue that there should

criminal be a more relaxed standard for the acceptance of expert testi-
mony in civil cases, since the constitutional rights of the
defendant are not at stake. In one New York custody case, the
court observed: ". . . an overriding point to remember is that
it is. . . appropriate to err on the side of admissibility rather
than inadmissibility . . . a criminal case might require the
opposite caution and that the defendant not bear the burden of
the effect of unreliability. , !~

The appellate court decisions dealing with civil cases in this

study display a similar rate of admission (57.15% admission
for civil, 58.65% for criminal) as the criminal cases. How-
ever, the smaller number of civil cases on appeal in this study
make this comparison difficult. The disparity in numbers
more likely reflects the higher rate of criminal over civil
appeals, not the fact that experts are used less frequently in
civil cases.

The courts' There were 11 challenges to the qualifications of the experts

responses to testifying; all challenged social workers. Social workers as
the experts' expert witnesses are a relatively new phenomenon in court-
qualifications rooms. In six of the appellate court decisions in our sample,
the qualifications of the social worker are the only issue on
appeal, and in five they are only one of the issues on appeal.
202 CHILD SEX ABUSE TRIALS

In only two cases did the challenges succeed in reversing the

conviction, and in both of these cases the issue was not testi-
mony about the characteristics of sexually abused children. In
State v. Maule" the testimony was about the characteristics of
sexual abusers, and the court found that no expertise was
established. In the second reversal, both a social worker and a
policeman testified as to the veracity of the child. The court
reasoned that the trial court had not qualified them as expert
witnesses, and that as lay witnesses they could testify only as
to events they had witnessed.>

The majority of the decisions, however, are accepting of and

even enthusiastic about social workers as expert witnesses.
As the court observed in Brewington v. State." "Appellant's
object is tantamount to asserting that on the issue of how a
watch works one would have to call a chemical engineer as
opposed to a watchmaker."

In citing the qualifications required for an expert witness tes-

tifying in this area, the courts mentioned experience far more
often than any other factor (11 references). Education in the
field of social work was second (six), while training in the
area of sexual abuse was noted by only four courts.

Professional concerns about expert testimony regarding

the characteristics of sexually abused children

The data in this study demonstrate that these appellate courts

are concerned with the form in which the expert testimony is
presented-i.e., not presented as a specific syndrome, or
offered on rebuttal rather than affirmatively-but are reluc-
tant to look beyond the form to examine critically the content
of the testimony or the standing of this diagnostic tool within
its professional community. The data also indicate that courts
are unconcerned about scientific training and are willing to
accept the testimony of expert witnesses as long as they have
 203

had significant clinical experience. They do not question the

relationship of the expert with the child.

The reluctance of most of these appellate court judges to go

beyond the form of the testimony may indicate their lack of
knowledge about social science research. Hafemeister and
Melton," in a study of the impact of social science research
on the judiciary, found that "with the exception of a few
judges who 'specialize' in cases involving scientific exper-
tise, reliance on social science is sti11largely a 'liberal' prac-
tice of judges who have an expansive view of the judiciary's
role in shaping legal doctrine and protecting disenfranchised
groups." This finding may help to explain the reluctance of
appellate court judges in this study to examine critically the
scientific validity of the behavioral characteristics presented
by the experts in these cases.

The behav- The American Psychiatric Association does not include the
ioral charac- sexually abused child syndrome in its diagnostic manual, the
teristics of DSM-Ill-R. This fact was noted by three appellate courts in
sexually their reason for excluding the expert's testimony (see Table
abused 5). This omission reflects the controversy in the clinical com-
children munity regarding the validity of a universal symptomology of
sexual abuse. As one author writes:
It is impossible to make a general statement about the effects of
sexual abuse on children. Children react differently to different sit-
uations depending on a number of variables that may be operating
at the time of occurrence. . . . children who are sexually abused
are not special children with special characteristics: they are not
victims of one particular offense, nor do they sustain identical
injuries. Their role in the abusive situation, their disclosure of the
incident, their relationship to the perpetrator, and their reactions,
both long- and short-term, all differ."

In fact, the original intent of classifying the behavioral char-

acteristics of sexually abused children was not to test the
child's credibility, but to aid the therapist in providing appro-
priate treatment. Roland Summit, who is credited with formu-
lating the child sexual abuse accommodation syndrome,
 204 CHILD SEX ABUSE TRIALS

stated explicitly that his goal was not to formulate a sex

abuse "test"; rather,
[the] purpose of this paper then, is to provide a vehicle for more
sensitive, more therapeutic response to legitimate victims of child
sexual abuse and to invite more active, more effective clinical
advocacy for the child within the family and within the systems of
child protection and criminal justice" (p. 177).

The appellate courts in this study are somewhat more critical

of the scientific validity of testimony based in part on the use
of anatomical dolls, with seven courts citing this as a reason
for excluding expert testimony (see Table 5). The use of
anatomical dolls by the experts to elicit the child's testimony
was specifically noted in a number of cases in this study (23).

The widespread use of sexually anatomically correct dolls by

therapists is currently under question in the scientific com-
munity. White" and Boat and Bverson" found that the dolls
stimulated demonstrations of sexual abuse with nonabused
children, and Levy" maintains that there is neither a theoreti-
cal nor an empirical basis for drawing any conclusion about
what a given child's play with the dolls means. In addition,
Levy maintains that because the dolls purport to be a scien-
tific demonstration, it establishes a false "aura of infallibil-
ity."

Again (as with the child sex abuse accommodation syn-

drome), the use of anatomically correct dolls may be appro-
priate as one of the tests used to examine children for the
purposes of therapy, while falling short of the scientific relia-
bility required for legal fact-finding."

The experts As described in this study, almost all of the experts (86.7%)
interviewed the children. A majority (68.8%) examined them
sufficiently to claim that a particular child exhibited charac-
teristics of a sexually abused child. A large group (45.9%)
among those who interviewed the child treated the child as
well. This study identifies the great majority of these experts
 205

as therapists, not research scientists or criminal investigators

(see Table 3).

Garbarino et al. have criticized the use of therapists to inves-

tigate a child's credibility, claiming that a therapeutic
approach is conducive to eliciting a response and to dealing
with the subjective reality of the child, but not to determining
credibility. One court in this study" considered the testimony
of expert witness Roland Summit on the CSAAS reversible
error, arguing:
On the one hand is the need to care for and treat an abused child
and the need as a treatment device to accept as true his report,
whether truthful or not; and on the other hand the preservation of
the constitutional right to presumption of innocence in a criminal
case."

The neutrality of the expert is a concern for the professional

community as well. The APA Ethical Principles warn psy-
chologists to "avoid relationships that limit their objectivity
or create a conflict of interest. "4S Although not noted by any
appellate court in this study, the fact that many of these
experts were acting as therapists for the child they were testi-
fying about could be seen as breach of their professional neu-
trality. According to this study, only 13.3% had no contact
with the child at all.

The controversy within the scientific and clinical community

suggests that the therapist carries more influence as an
expert, and is more persuasive to the jury, than is justified by
the level of acceptance of this sort of evidence in his or her
professional community. The response of the courts in this
study indicates that there is a critical gulf between the scien-
tific community and the judiciary. Judges are not willing and
probably not able to critically evaluate the appropriate role of
the expert or the reliability of the testimony offered.
206 CHILD SEX ABUSE TRIALS

Alternative expert opinions

Although the appropriateness of expert testimony on the

behavioral characteristics of sexually abused children may be
both legally and scientifically questioned, there may be a
valid role for a different kind of expert and a different kind of
testimony based on scientific knowledge about the capabili-
ties of child witnesses. The trend is to introduce a presump-
tion of competence for children as witnesses." The American
Bar Association's National Legal Resource Center for Child
Advocacy and Protection has proposed rules that would
require the trier of fact (judge or jury) to evaluate a child's
testimony as it would any testimony. This sometimes presents
problems for the trier of fact, who must evaluate the credibil-
ity of a witness whose testimony may be inconsistent, incom-
plete, and easily shaken upon cross-examination.

There is now a fairly large and growing body of scientific lit-

erature on the subject of abilities of children as eyewitnesses,
not just in sex abuse cases, but under all circumstances." This
research presents a complex picture of the child witness, who
is not simply a miniature adult, but has strengths and weak-
nesses that change over time.

The studies have the advantage of being controlled experi-

ments performed by research scientists rather than clinical
observations made by clinicians. The experiments trace the
abilities of children through their developmental phases and
define their abilities at different ages. There are some contra-
dictory findings among the researchers, and many questions
are supported by only fragmentary research. And, of course,
the experimental settings cannot reproduce the trauma of wit-
nessing a crime or of being the victim of a crime. Neverthe-
less, there are several areas of research findings that could
provide guidance to the trier of fact who is attempting to
assess the testimony of a child witness.
 207

This guidance would not be as prejudicial to the alleged

abuser as testimony regarding the characteristics of the
abused child, since it does not deal with the fact of abuse and
does not focus on a particular child. In fact, the expert would
not interview the child at all, thereby maintaining scientific
neutrality. Instead, this testimony would facilitate a general
understanding of a child's testimony, leaving the determina-
tion of the child's credibility regarding the fact of abuse
squarely with the trier of fact.

Recantation As noted earlier in this article, a major application of the

child sex abuse accommodation syndrome and its variations
is to provide an explanation of why children often recant
their allegations of sexual abuse. By using syndrome charac-
teristics to explain recantations, the act of recanting becomes
associated as one of the characteristics of a sexually abused
child. There are, however, other explanations for recanting
that would facilitate understanding the child witness but not
require the trier of fact to conclude that sexual abuse
occurred.

For instance, social cognitive theorists have conducted exper-

iments to show that children tell the truth about a particular
event depending upon what they expect to happen as a result
of the information they offer. In one such experiment" a
trusted male instructor broke a glass and used several differ-
ent techniques-reward, threat, concern, trick and control-
to persuade his three- and five-year-old subjects to conceal
his action. The three-year-olds were more likely to report the
adult's transgression when the appeal was reward (88.9%),
concern (77.8%), or trick (70%). In response to a threat, how-
ever, 50% would not reveal the truth. On the other hand, the
five-year-oIds responded equally to the threat and to the
reward, with 37.5% refusing to report the broken glass. Five-
year-oIds were slightly more likely to report the incident if
simply instructed not to tell (50%) or the appeal involved
concern (62.5%). When the appeal was to trick another
experimenter, 87.5% refused to conceal the truth.
 208 CHILD SEX ABUSE TRIALS

This experiment suggests that inconsistencies may be caused

by the procedure of the interviewer and that the age of the
child is an important factor.

Memory Adults often believe that children's memories are faulty.

Research indicates that even children as young as four can
present reliable testimony." There are caveats, however.
When asked to remember past events, children recall less
than adults. In a study involving an arm-movement game,
researchers found that three-year-olds recalled less about the
event than six-year-olds, who in turn recalled less than
adults.50 Children are more likely to recall social encounters
that are "particularly salient to children. "51 However, it was
also found that what they did remember was as accurate as
what adults remembered. Therefore, the research suggests
that when a child does not have complete recall of an event, it
does not mean that the trier of fact should dismiss what he
does recall.

Suggestibility The question of children's suggestibility is a sensitive one for

the courts. Until the recent imperative of child sex abuse
cases, the courts called upon children under ten as witnesses
only as a last resort. Researchers are actively studying this
issue, 52 and although there are some disagreements, these
studies indicate that in some situations children under ten are
more suggestible to various kinds of suggestions than adults.
Children also, more than adults, do not like to admit that they
do not know something. When faced with a photo lineup in
which the target, a photo of a person they know well, does
not appear, 71% of all children age three to eight made an
identification rather than rejecting the lineup, even though
they had been told the correct photo might not be there."

Researchers have learned that because children remember

less on deliberate recall, they are more dependent upon verbal
and nonverbal probings. This provides opportunities for
intentional or unintentional suggestions to influence their
memory. In addition, children know less about their own
 209

memory, are less aware of what they do or do not remember,

and are more susceptible to post-suggestion events."

Generally, it is agreed that by the age of ten or eleven chil-

dren are no more vulnerable than adults to misleading or
incorrect information." There is controversy about children
between six and ten years old. Some research indicates that
they are not more susceptible to accepting misinformation
than adults, and other research finds that they are. Children
under seven are particularly vulnerable to misinformation
about peripheral facts but are more reliable on central
events." Preschoolers are found to be very influenced by the
authority of the adult questioning them.

Lying Research about children's lies is proceeding in two tracks.

One track investigates deliberate falsehoods, and the other
examines the role of fantasy in the child's conscious life.

a. Deliberate While courts are unwilling to admit expert testimony that

lies concludes that children never lie about sexual abuse, there is
a legitimate area of testimony that would be helpful to the
trier of fact regarding the patterns of children's lies at differ-
ent ages and how these patterns may differ from adults'.

Several recent studies suggest that children can deliberately

lie at a much earlier age than believed by most adults." One
study" found that three-and-a-half to four-year-old preschool
children may lie to protect someone they like from punish-
ment. The children were divided into two groups: those who
already knew and liked the adult (a "mentor" with whom they
had formed a bond) and those to whom the adult was a
stranger. Almost half the children lied to protect their mentor;
all the children to whom the adult was a stranger told the
truth. In other studies, Ceci has identified motives of personal
aggrandizement, protecting a loved one, avoiding embarrass-
ment, sustaining a game, and conforming to a stereotype in
the lies of very young children." These studies indicate that
children lie for many of the same reasons that adults lie.
210 CHILD SEX ABUSE TRIALS

b. Fantasy While there have recently been robust research efforts in the
areas of suggestibility and memory, the investigation of
childhood fantasies has been lagging. Fantasy becomes an
issue in child sex abuse cases particularly when children tes-
tify about ritual abuse or satanic cults.

Freud and Piaget both raised serious questions about the abil-
ity of young children to separate fact from fantasy. Freud did
not claim that preschool-age children believe their fantasies
are real, but he did suggest that their tendency to fantasize
reduces their reliability. "The untruthworthiness of the asser-
tions of children is due to the predominance of their imagina-
tion, just as the untrustworthiness of the assertions of
grown-up people is due to the predominance of their preju-
dices.'?"

Freud also introduced the "seduction theory," which posited

that the stories his women patients told him of childhood sex-
ual abuse, often perpetrated by their fathers, were memories
of childhood fantasies rather than memories of actual child-
hood experiences." This has been countered by contemporary
critics, most notably Masson," who claims that Freud refused
to recognize the prevalence of intrafamilial sexual abuse dur-
ing his time.

Piaget did not identify childhood sexual fantasies. However,

he was more pessimistic than Freud about the ability of a
child to separate fact and fantasy. He believed that a child has
difficulty separating fact and fantasy throughout his whole
early childhood. "The child's mind is full of these 'ludistic'
(pretend play) tendencies up to the age of 7-8, which means
before that age it is very difficult for him to distinguish the
truth. "63

Where do contemporary researchers stand on Freud's and

Piaget's theories? It is fair to say that with regard to Freud's
seduction theory and Piaget's claim that children cannot sepa-
rate fact from fantasy before the age of seven, the scientific
 211

community would not proffer the general approval required

by the Frye test. On the other hand, there is not a large body
of experimental research to counter these two highly influen-
tial theorists." Freud's clinical observations resist experimen-
tal study, and no empirical studies have challenged his claims
of sexual fantasies in early childhood. Many researchers,
however, have tested Piaget's claims. The study of children's
play, involving fantasy and make-believe, has received a
great deal of attention. There is a consensus that fantasizing
is a cognitive ability that develops gradually from around 18
months throughout the early school years. Although
researchers do not believe that young children are as egocen-
tric as Piaget suggested, they are still often said to be less
able than adults to clearly separate subjective and objective
experiences. Between the ages of three and six, researchers
believe, the child's grasp of the difference between pretend
and not-pretend develops into a conscious distinction."

Conclusion

Expert testimony in cases involving sexually abused children

is particularly powerful, since there is often no other evi-
dence aside from the testimony of the child. This examination
of 122 appellate court decisions, both civil and criminal,
reveals that most of these courts are willing to admit testi-
mony regarding the characteristics of sexually abused chil-
dren, particularly on rebuttal, even when it is applied to a
particular child. The expert testimony put forth to describe
the behavioral characteristics, as described in these appellate
opinions, includes a very wide range of descriptors that are
often contradictory in nature and many of which could be
symptoms of any disturbed child. Nonetheless, few of these
courts question the content of the scientific basis of the testi-
mony, and even fewer question the credentials of the experts
or their relationship with the child. Those appellate courts
that do reject the syndrome most often do so under the evi-
212 CHILD SEX ABUSE TRIALS

dentiary rule that this testimony goes to the issue of the

child's credibility, which can be determined only by the trier
of fact.

This article demonstrates that there is a wide gulf between

the scientific/clinical community and the judiciary regarding
the content of behavioral syndrome testimony and the role of
the expert. While these appellate courts are reluctant to look
beyond the form to critically examine the content, the clinical
and scientific communities are by no means convinced of the
scientific validity of the content, particularly outside the con-
text of therapy. While the appellate courts give the experts
their complete approval, the clinical community is likely to
question the conflict of role between subjective therapist and
objective expert.

This study suggests other types of expert testimony that could

be helpful to a trier of fact without being highly prejudicial to
the defendant in criminal cases or to the suspected abuser in
civil cases. This testimony is directed to the capabilities of
child witnesses, not to the credibility of a particular child. A
growing body of scientific research performed in controlled
experiments is beginning to uncover both the strengths and
weaknesses of the developing abilities of children as eyewit-
nesses. Expert testimony discussing the current state of
knowledge regarding children's willingness to recall, mem-
ory, and suggestibility would help the trier of fact evaluate a
child's testimony without addressing the fact of sexual abuse
and without reference to a particular child.

Notes 1. There is another body of cases in which expert testimony is

challenged as hearsay testimony. These cases are not included in this
study, since this testimony is technically lay, not expert, witness
testimony and the witnesses challenged include mothers. teachers.
and other non-experts.
2. Legal scholars are also divided on the admissibility of expert witness
testimony in child sex abuse cases. Representative of those who
 213

argue that testimony about the behavioral characteristics of sexually

abused children should be allowed in some form include: Myers,
Bays, Becker, Berliner, Corwin & Saywitz, Expert Testimony in
Child Sexual Abuse Litigation, 68 Neb. L. Rev. 100 (1989). Note,
Expert Testimony in Child Sexual Abuse Prosecutions: A Spectrum
of Uses, 68 B.U.L. Rev. 155 (1988). Note, Syndrome Testimony in
Child Abuse Prosecutions: The Wave of the Future? 8 St. Louis U.
Pub. L. Rev. 207 (1989). Note, The Admissibility of "Child Sexual
Abuse Accommodation Syndrome" in California Courts, 17 Pac. LJ.
1361 (1986).
For arguments opposing the admission of the syndrome see: Levy,
Using "Scientific',' Testimony to Prove Child Sexual Abuse, 23
Family Law Quarterly 383 (1989). Note, the Unreliability of Expert
Testimony on the Typical Characteristics of Sexual Abuse Victims,
74 Geo. L.J. 429 (1985). For a position similar to this article, which
advocates the use of experts for other purposes, i.e., developmental
information regarding memory and recall, see: McCord, Expert
Psychological Testimony about Child Complainants in Sexual Abuse
Prosecutions: A Foray into the Admissibility of Novel Psychological
Evidence, 77 1. Crim. L. & Criminology I (1986).
3. See In re Sara M., 194 Cal. App.3d 585 (Cal. 1987); People v .
Roscoe, 168 Cal. App. 1093 (Cal. 1985).
4. Allison v, State, 346 S.E.2d 380 (Ga. 1986) revsd, 353 S.E.2d 805
(Ga. 1987).
Bostic v, State, 772 P.2d 1089 (Ala. 1989).
Brady v, State, 540 N.E.2d 59 (Ind. App. 1989).
Brewington v, State, 702 S.W.2d 312 (Tex. 1986).
Brown v . State, 523 S.2d 729 (Fla. App. 1988).
Brown v. State, 756 S.W.2d 793 (Tex. App. 1988).
Commonwealth v, Baldwin, 502 A.2d 253 (Pa. Super. 1985).
Commonwealth v, Emge, 553 A.2d 74 (Pa, Super. 1988).
Commonwealth v, Higby, 559 A.2d 939 (Pa. Super. 1989).
Commonwealth v, Lewandowski, 491 N.E.2d 670 (Mass. App.
1986).
Commonwealth v, McNeely, 534 A.2d 778 (Penn. 1987).
Commonwealth v, Smith, 567 A.2d 1080 (Pa. Super. 1989).
Commonwealth v, Seese, 517 A.2d 920 (Penn. 1986).
Craig v, State, 544 A.2d 784 (Md. App. 1988).
Delaware v, Gatta, Slip Opinion Nos. IN68-07-0693, IN86-07-0694
(Sup. Ct., decided Aug. 24, 1987). '
Ex Parte Hill, 553 So.2d 1138 (Ala. 1989).
Ex Parte McAllister, 541 So.2d 1104 (Ala. 1989).
Glendening v, State, 536 So.2d 212 (Fla. 1988).
Hall v, State, 692 S.W.2d 769 (Ark. App. 1985).
Hester v, Commonwealth, 734 S.W.2d 457 (Ky. 1987).
In re Amber B., 191 Cal. App.3d 682 (1987).
214 CHILD SEX ABUSE TRIALS

In re Cheryl H., 153 Cal. App.3d 1098 (1984).

In re Christine C., 191 Cal. App.3d 676 (1987).
In re Erika R., 563 A.2d 369 (Me. 1989).
In re Sara M., 194 Cal. App.3d 585 (1987).
Jimmerson v, State, 380 S.E.2d 65 (Ga. App. 1989).
Kirkpatrick v. State, 747 S.W.2d 833 (Tex. 1987).
Kruse v, State, 483 So.2d 1383 (Fla. 1986).
Logan v, State, 773 S.W.2d 419 (Ark. 1989).
Matter of E.M., 520 N.Y.S.2d 327 (Fam. Ct. 1987).
Matter of Lucas, 380 S.E.2d 563 (N.C. App. 1989).
Matter of Michael G., 492 N.Y.S.2d 993 (Fam. Ct. 1985).
Matter of Nicole V., 510 N.Y.S.2d 567 (A.D. 1987).
Matter of R.B., 369 N.W.2d 353 (Minn. App. 1985).
Matter of Rinesmith, 376 N.W.2d 139 (Mich. App. 1985).
Matter of Sanchez, 535 N.Y.S.2d 937 (1988).
Matter of Shaune L., 541 N.Y.S.2d 562 (Fam. Ct. 1989).
Miller v, State, 376 S.E.2d 901 (Ga. App. 1988).
Miller v. State, 757 S.W.2d 880 (Tex. App. 1988).
Mims v , State, 500 So.2d 100 (Ala. Cr. App. 1986).
Mitchell v , Commonwealth, 777 S.W.2d 930 (Ky. 1989).
Nelson v. Farrey, 874 F.2d 1222 (7th Cir. 1989).
People v, Badour, 421 N.W.2d 624 (Mich. App. 1988).
People v, Beckley, 409 N.W.2d 759 (Mich. App. 1987).
People v, Benjamin R., 481 N.Y.S.2d 827 (1984).
People v, Bowker, 203 Cal. App.3d 385 (1988).
People v, Bradley, 526 N.E.2d 916 (Ill. App. 1988).
People v, Deninger, 772 P.2d 674 (Colo. App. 1989).
People v, Doss, 782 P.2d 1198 (Colo. App. 1989).
People v, Draper, 389 N.W.2d 89 (Mich. App. 1986).
People v, Garrison, 420 N.W.2d 851 (Mich. App. 1988).
People v, Gillespie, 767 P.2d 778 (Colo. App. 1988).
People v. Gray, 187 Cal. App.3d 213 (Cal. 1986).
People v, Jeff, 251 Cal. Rptr, 135,204 Cal. App.3d 309 (1988).
People v, Keindl, 502 N.E.2d 577 (N.Y. 1986).
People v. Koon, 724 P.2d 1387 (Colo. 1986).
People v. Leon, 214 Cal. App.3d 925 (1989).
People v, Luna, 204 Cal. App.3d 726 (1988).
People v, Matlock, 395 N.W.2d 274 (Mich. 1986).
People v, Pronovost, 756 P.2d 387 (Colo. 1987).
People v, Reinhardt, 423 N.W.2d 275 (Mich. App. 1988).
People v, Roberts, 738 P.2d 380 (Colo. App. 1986).
People v, Roscoe, 168 Cal. App.3d 1093 (1985).
People v, Sanchez, 208 Cal. App.3d 721 (1989).
People v, Snook, 745 P.2d 647 (Colo. 1987).
Powell v. State, 527 A.2d 276 (Del. 1987).
Rodriguez v , State, 741 P.2d 1200 (Ala. 1987).
Scadden v. State, 732 P.2d 1036 (Wyo. 1987).
Seering v . Dept. of Social Serv., 194 Cal. App.3d 298 (1987).
State v . Bales, 784 P.2d 1126 (Utah 1989).
 215

State v , Boston, 545 N.E.2d 1220 (Ohio 1989).

State v, Bowman 352 S.E.2d 437 (N.C. 1987).
State v, Busch. 515 So.2d 605 (La. App. 1987).
State v, Butler, 349 S.E.2d 684 (Ga. 1986).
State v. Catsam, 534 A.2d 184 (Vt. 1987).
State v. Clark, 682 P.2d 1339 (Mont. 1984).
State v, Clements, 734 P.2d 1096 (Kan. 1987).
State v , Dunbar, 566 A.2d 970 (Vt. 1989).
State v, Eiler, 762 P.2d 210 (Mont. 1988).
State v, Eldredge, 773 P.2d 29 (Utah 1989).
State v, Fletcher, 368 S.E.2d 633 (N.C. 1988).
State v, French, 760 P.2d 86 (Mont. 1988).
State v, Geyman, 729 P.2d 475 (Mont. 1986).
State v, Gray, 533 So.2d 1242 (La. App. 1987).
State v, Hall, 392 N.W.2d 285 (Minn. App. 1986).
State v, Hansen, 728 P.2d 538 (Ore. 1986).
State v , Harwood, 609 P.2d 1312 (Ore. 1980).
State v, Hester, 760 P.2d 27 (Idaho 1988).
State v, Hicks, 535 A.2d 776 (Vt. 1987).
State v , JCE, 767 P.2d 309 (Mont. 1988).
State v. Jackson, 721 P.2d 232 (Kan. 1986).
State v, Jensen, 432 N.W.2d 913 (Wis. 1988).
State v, Jones, 367 S.E.2d 139 (N.C. App. 1988).
State v, Kim, 645 P.2d 1330 (Haw. 1982).
State v , Lindsey, 720 P.2d 73 (Ariz. 1986).
State v . Logue, 372 N.W.2d 151 (S.D. 1985).
State v . Maule, 667 P.2d 96 (Wash. 1983).
State v . McCoy, 400 N.W.2d 807 (Minn. 1987).
State v. Middleton, 657 P.2d 1215 (Ore. 1983).
State v . Moran. 728 P.2d 248 (Ariz. 1986).
State v, Myers, 359 N.W.2d 604 (Minn. 1984).
State v, Myers, 382 N.W.2d 91 (Iowa 1986).
State v, Newman, 784 P.2d 1006 (N.M. App. 1989).
State v, Oliver, 372 S.E.2d 256 (Ga. App. 1988).
State v, Parks, 386 S.E.2d 748 (N.C. App. 1989).
State v. Reser, 767 P.2d 1277 (Kan, 1989).
State v, Risdal, 404 N.W.2d 130 (Iowa 1987).
State v, Romero, 432 N.W.2d 899 (Wis. 1988).
State v, Sorenson, 421 N.W.2d 77 (Wis. 1988).
State v . Spigarolo, 556 A.2d 112 (Conn. 1989).
State v, Timperio, 528 N.E.2d 594 (Ohio App. 1987).
Stephens v, State, 774 P.2d 60 (Wyo. 1989).
Tingle v, State, 536 So.2d 202 (Fla. 1988).
Townsend v. State, 734 P.2d 705 (Nev. 1987).
U.S. v, Azure, 801 F.2d 336 (8th Cir. 1986).
U.S. v, Binder, 769 F.2d 595 (9th Cir. 1985).
216 CHILD SEX ABUSE TRIALS

U.S. v. Shaw, 824 F.2d 601 (8th Cir. 1987).

Utah v . Rimmasch, 775 P.2d 388 (Utah 1989).
Utah v. Van Maire, 777 P.2d 459 (Utah 1989).
Ward v, State, 519 S.2d 1082 (Fla. App. 1988).
Weeks v . State, 370 S.E.2d 344 (Ga. App. 1988).
Westbrook v, State, 368S.E.2d 131 (Ga. App. 1988).
Wheat v, State, 527 A.2d 269 (Del. 1987).
Wilkerson v, Pearson, 509 A.2d 818 (N.J. Super. 1985).
5. Summit, The Child Sexual Abuse Accommodation Syndrome, 7
CHILD ABUSE AND NEGI.ECf (1983) at 177.
6. State v, Reser, 767 P.2d 1277 (Kan. 1989); Matter of E.M., 520
N.Y.S.2d 327 (N.Y. 1987); Townsend v, State, 734 P.2d 705 (Nev.
1987); State v. Catsam, 534 A.2d 184 (Vt. 1987).
7. State v. Myers, 359 N.W.2d 604 (Minn. 1984).
8. 519 S.W.2d 1082 (Fla. 1988).
9. F.R. Evidence 702.
10. United States v, Rosenberg, 108 F.Supp. 798, 806 (S.D.N.Y. 1952,
aff'd 200 F.2d 666 (2d Cir. 1952).
11. See Fryev. U.S., 293 F. 1013 (D.C. Cir.1923).
12. Id. at 1014.
13. It should be noted that syndrome testimony and anatomical doll
observations most often go unchallenged.
14. U.S. v. Azure, 801 F.2d 336 (8th Cir. 1986).
15. State v , Moran, 728 P.2d 248 (Ariz. 1986).
16. State v, Kim, 645 P.2d 1330 (Haw. 1982).
17. See supra note 15.
18. See supra note 3, at 605.
19. Kruse v. State, 483 So.2d 1383 (Fla. 1986).
20. See, e.g., People v. Luna, 204 Cal. App.3d 726 (Cal. 1988); People
v , Gray, 187 Cal. App.3d 213 (Cal. 1986).
21. See supra note 11, at 1013.
22. 191 Cal. App.3d 682,686 (Cal. 1987).
23. 745 P'2d 647,648 (Colo. 1987).
 217

24. See, e.g., Brown v. State, 523 S.2d 729 (Fla. App. 1988); State v ,
Butler, 349 S.E.2d 684 (Ga. 1986).

25. 667 P.2d 96 (Wash. 1983).

26. See supra note 23, at 647.
27. 657 P.2d 1215 (Or. 1983).

28. Id. at 1219-1220.

29. 346 S.E.2d 380 (Ga. 1986), revsd. 353 S.E.2d 805 (Ga. 1987).

30. 187 Cal. App.3d 213 (Cal. 1986).

31. Id. at 221.

32. Matter of E.M., 520 N.Y.S.2d 327,332 (1987).
33. See supra note 25.
34. See State v, Romero, 432 N.W.2d 899 (Wis. 1988).
35. 702 S.W.2d 312 (Tex. 1986) at 318.

36. Hafemeister & Melton, The Influence of Social Science Research on

the Judiciary, in REFORMING 1'HE LAw (1987) at 55.
37. Rosenfeld, The Clinical Management of Incest and Sexual Abuse of
Children, 22 TRAUMA (1980) at 2-12.
38. Summit, The Child Sexual Abuse Accommodation Syndrome, 7
CHD.D ABUSE AND NEGLEcr (1983) at 177.

39. White, Should Investigators Use of Anatomical Dolls Be Defined by

the Court?, 3 JOURNAL OF INTERPERSONAL VIOLENCE (1988) at 471-
475.

40. Paper presented at the Society for Research in Child Development

Biennial Meeting by B. Boat and M. Everson (1987).

41. Levy, Using "Scientific" Testimony to Prove Child Sexual Abuse, 13

FAMILY LAw QUARTERLY (Fall 1989) at 383.
42. J. GARBARINO & F. STorr, WHAT CHD.DREN CAN TELL Us (1989) at
195.

43. People v, Leon, 214 Cal. App.3d 925 (1989).

44. u. at 939.
45. Ethical Principles of Psychologists, 36 AMERICAN PSYCHOLOGIST
(1981) at 631.
218 CHILD SEX ABUSE TRIALS

46. B. R. DZIECH & C. B. SCHUDSON, ONTRIAL (1989).

47. S. J. Ceci, M. DeSimone, M. B. Putnick & M. L. Lee, "Motives to
Lie." Paper presented at Psychology and Law Conference,
Williamsburg, Va. (1990); M. A. EKMAN & T. EKMAN, WHY KIDS
LIE (1989).
48. K. Bussey, "Adult Influence on Children's Eyewitness Reporting."
Paper presented at Psychology and Law Conference, Williamsburg,
Va. (1990).
49. Cole & Loftus, The Memory of Children, in CIllLDREN'S EYEWITNESS
MEMORY (S. J. Ceci, M. P. Taglia & D. F. Ross, eds., 1987);
Zaragoza, Memory, Suggestibility and Eyewitness Testimony in
Children and Adults, in CHILDREN'S EYEWITNESS MEMORY.
50. Goodman, Amon & Hirshman, Child Sexual and Physical Abuse;
Children's Testimony, in CHll.DREN'S EYEWITNESS MEMORY.
51. Todd & Perlmutter, Reality Recalled by Preschool Children, in
CHILDREN'S MEMORY: NEW DIRECTIONS FOR CHll.D DEVELOPMENT,
No. 10 (M. Perlmutter, ed., 1980).
52. See, e.g., Cole & Loftus, supra note 49; Zaragoza, supra note 49;
King & Yuille, Suggestibility and the Child Witness, in CHll.DREN'S
EYEWITNESS MEMORY; Saywitz, Children's Testimony: Age-related
Patterns ofMemory Errors, in CHILDREN'S EYEWITNESS MEMORY.
53. Cole & Loftus, supra note 49.
54. Brown, Knowing When, Where and How to Remember: A Problem of
Metacognition, in ADVANCES IN CHILD DEVELOPMENT AND BEHAVIOR,
Vol. 10 (H. W. Reese, ed., 1978); Saywitz, supra note 52.
55. Cole & Loftus, supra note 49.

56. u.
57. EKMAN, supra note 47; Lewis, Stanger & Sullivan, Deception in
Three-fear-Olds. 25(3) DEVELOPMENTAL PSYCHOLOGY (1989) at 439-
443.
58. Ceci, Desimone, Putnick & Lee, supra note 47.
59. u.
60. Freud, Two Case Histories, in THE STANDARD EDITION OF THE
COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD, Vol. 10. pp.
102-103 (1. Strachey, ed., 1955) (original work published 1909).
 219

61. Freud, New Introductory Lectures on Psychoanalysis, in THE

STANDARD EDITION OF THB COMPLBTB PSYCHOLOGICAL WORKS OF
SIGMUND FREUD (J. Strachey, ed., 1964) (original work published
1933).
62. Masson, Freud and the Seduction Theory, THE ATLANTIC MONTHLY
(Feb. 1984) at 33-60.

63. PIAGET, THE CHILD'S CONCEPTION OF THE WORLD (1983) at 34

(original work published in 1926).

64. Lindsay & Johnson, Reality Monitoring and Suggestibility:

Children's Ability to Discriminate Among Memories from Different
Sources, in CHILDREN'S EYEWITNESS MEMORY.
65. Id.