Girardot v. United States, 12–CO–144.

92 A.3d 1107

Christopher P. GIRARDOT, Appellant,

v.UNITED STATES, Appellee.

No. 12–CO–144.

District of Columbia Court of Appeals.

Argued Nov. 19, 2013.

Decided June 12, 2014.

Alice Wang, Public Defender Service, with whom James Klein and Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.

Stephen F. Rickard, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Amy Zubrensky, and Ann K.H. Simon, Assistant United States Attorneys, were on the brief, for appellee.

Before FISHER and BLACKBURNE–RIGSBY, Associate Judges, and PRYOR, Senior Judge.

FISHER, Associate Judge:

Appellant Christopher Girardot argues, for the second time before this court, that he is entitled to a new trial because the trial court excluded expert testimony. We hold that the trial judge did not exercise her discretion erroneously and therefore affirm.

I. Factual Background

During Mr. Girardot's bench trial in 2006, the government relied upon the testimony of two victims, eight-year-old J.B. and ten-year-old C.N.¹ After hearing the evidence, the trial court found appellant guilty of two counts of misdemeanor sexual abuse, in violation of D.C.Code § 22–3006 (2001). Prior to trial, appellant had sought to introduce the testimony of Dr. Susan Robbins, “an expert in children's cognitive processes, and the pressures and factors that can prompt a child to make false complaints of sexual abuse.” Girardot I, 996 A.2d at 343. We remanded appellant's case for a more thorough inquiry, instructing the trial court to consider all three prongs of the Dyas test for evaluating the admissibility of expert testimony. ²Girardot I, 996 A.2d at 349.

At an evidentiary hearing held on June 22 and June 23, 2011, Judge Mitchell–Rankin heard more than six hours of testimony and argument concerning Dr. Robbins' qualifications. Dr. Robbins returned to court and gave her substantive testimony on September 26, 2011. The trial court explained: “We're going to proceed as if the issue of qualifications has been resolved to get to the substantive ... testimony.” That testimony, which included direct examination, cross-examination, and redirect, spans 150 pages of transcript.

On February 2, 2012, Judge Mitchell–Rankin issued a twenty-three page order, comprehensively addressing the Dyas factors and again ruling that the testimony would be excluded. The court also stated that “Dr. Robbins' testimony did not provide any information that was helpful in evaluating the statements made by J.B. and C.N.” Judge Mitchell–Rankin therefore found, in an alternative ruling, that “the testimony would not lead [her] to reach a different conclusion as to whether the Defendant was guilty beyond a reasonable doubt.”

II. The Dyas Analysis

“Although the admission of expert testimony falls within the discretion of the trial judge, ... because the right to confront witnesses and to present a defense are constitutionally protected, ... ‘the defense should be free to introduce appropriate expert testimony.’ ” Benn v. United States, 978 A.2d 1257, 1269 (D.C.2009) (citations omitted). We will, however, “defer to the trial court's exclusion of expert testimony when it is based on a reasoned and reasonable exercise of discretion[.]” Id. at 1276. “[T]here is an important tradeoff for giving the trial court such latitude: that court must take no shortcuts; it must exercise its discretion with reference to all the necessary criteria.” Ibn–Tamas v. United States, 407 A.2d 626, 635 (D.C.1979) (emphasis in original) (citations omitted). Thus, “the court's determination must be case-specific, based on the proffered expert testimony,” and “upon a consideration of each of the three separate criteria identified in Dyas.” ³Benn, 978 A.2d at 1278.

A. “Beyond the Ken”

In Girardot I, “we remand[ed] ... so that the trail court may re-visit the first Dyas prong and, as it ha[d] not yet done, apply the second and third Dyas prongs to the defense proffer of Dr. Robbins's proposed testimony.” 996 A.2d at 349. The first Dyas factor is whether the subject matter to be addressed by the expert testimony is “beyond the ken of the average layman.” Dyas, 376 A.2d at 832 (emphasis omitted). Simply put, an expert “cannot testify to matters which ‘the jury itself is just as competent’ to consider.” Ibn–Tamas, 407 A.2d at 632. In our previous examination of this case, we held that the “beyond the ken of a layman [or lay person]” standard applies to bench trials. Girardot I, 996 A.2d at 348.

On remand, Girardot argued that “Dr. Robbins' proposed testimony is beyond the ken of the average layperson because it is simply the defense corollary of the expert testimony that the Court of Appeals [has previously] concluded was beyond the ken of the average lay person” when offered by the government. Appellant was referring to our cases holding “that the behavioral characteristics and psychological dynamics of child molestation victims are beyond the ken of the average juror.” Jones v. United States, 990 A.2d 970, 978 n. 17 (D.C.2010) (citing Mindombe v. United States, 795 A.2d 39, 42 (D.C.2002), and Oliver v. United States, 711 A.2d 70, 73 (D.C.1998)). In Mindombe, we held that a child victim's response to sexual abuse could be misperceived by the jury and, therefore, an expert's explanation “serves a useful and necessary purpose at trial.” 795 A.2d at 47. Similarly, in Oliver, we held that an expert's “testimony was relevant because it assisted jurors in understanding the psychology of an abused child's recantation.” 711 A.2d at 73. Appellant asserts that, to level the playing field, the defense should “be permitted in appropriate cases to present expert testimony on psychological factors that can lead children to make false reports of sexual abuse.”

Finding the “defense corollary” argument to be unsound, Judge Mitchell–Rankin distinguished Mindombe and Oliver, pointing out that Dr. Robbins' testimony would “not address the psychological and behavioral characteristics of sexually abused children.” This was not the end of her analysis, however.

The trial judge identified the premises underlying Dr. Robbins' opinions and analyzed “ ‘the extent to which the [proffered] testimony will provide information that is not likely to be known by lay jurors.’ ” Quoting Benn, 978 A.2d at 1267. The witness had described the problems inherent in “leading or suggestive questioning, repetitive questioning, multiple choice questioning, and encouraging certain responses through praise and attention.” The court concluded that “there is simply nothing counter-intuitive, inherently unique or scientific about the proposition that children can be misled and confused by the[se] types of questions”—“it is a matter of common sense[.]” Moreover, “[a]ny perceived bias on the part of the interviewer or in the format of the questioning can be fully explored by counsel through the presentation of evidence and effective cross examination. Well developed litigation skills and not expert testimony are required under these circumstances.”

In sum, Judge Mitchell–Rankin was “satisfied that the average layperson is ‘just as competent’ as the proffered expert to address the issues presented in this case because the criteria ... are no different than those which the average layperson commonly uses to determine credibility, reliability and accuracy of information, and truth and falsity of a claim[.]”

Appellant argues that because Dr. Robbins' testimony involved summarizing the methods and results of psychological studies, it was necessarily beyond the ken of an average layperson. See Benn, 978 A.2d at 1277 (“[I]t cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror.” (citation omitted)). However, there can be no categorical rule requiring admission simply because academic studies will be discussed. Instead, the trial court must examine the basic principles on which the witness will rely. In this case, having listened at length to Dr. Robbins, the court concluded that “[t]he operative principles are a matter of common knowledge and are not difficult to understand. Couching these principles in technical terms does not render them otherwise.”

B. “Sufficient Skill, Knowledge, or Experience”

The second Dyas factor requires that the witness have “sufficient skill, knowledge,or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.” Dyas, 376 A.2d at 832 (emphasis omitted). Judge Mitchell–Rankin found, however, that “Dr. Robbins' educational experience, work experience, and professional designations do not, individually or in the aggregate, demonstrate that she has sufficient skill, knowledge or experience in the field relevant to this case.”

During the first appeal, Dr. Robbins was described as “an expert in children's cognitive processes, and the pressures and factors that can prompt a child to make false complaints of sexual abuse.” Girardot I, 996 A.2d at 343. The defense sought to demonstrate “that (1) for psychological reasons related to a child's cognition, children may make false allegations about child abuse, and (2) scientific studies, which have delineated these cognitive factors and psychological dynamics, will be helpful to the trial court in resolving this case[.]” Id. at 347. However, the testimony which materialized on remand varied significantly from this proffer. Appellant argued below and again before this court that Dr. Robbins, a tenured professor of social work with more than thirty years of experience, was qualified to identify and discuss problematic questioning that occurred during the forensic interviews of J.B. and C.N.

In eleven pages of its order, the trial court carefully identified the gaps in Dr. Robbins' background and experience. In particular, Judge Mitchell–Rankin explained that Dr. Robbins had not...