1. Utah Expert Witness Testimony Law DV and Sexual Assault Cases
Donna Kelly, Salt Lake County
Deputy District Attorney
September 6 & 7, 2017

3. URE 701 – Lay Witness Opinion
Must be “rationally based on the witness’ perception.”
Provo City vs. Spotts, 861 P2d 437 (1993)
Lay opinion allowed as to smell of marijuana
State vs. Sellers, 38 Utah App 2011
Lay witness may opine that a person is “drunk”
In Re K.C., 201 Utah App 2011
Lay witness may opine that bruises on child’s buttocks were likely inflicted injuries

4. Experts should be used for more than just testimony
for the judge or jury.
They should act as consultants on cases.

5. Basis for Expert Witness Testimony
URE 703
Expert may base opinion testimony on things not within first-hand knowledge, so long as this is the type of information generally relied upon in the field.
Experts may state opinions based upon hypothetical questions which are “reasonably supported by the evidence presented.”

6. URE Categories of Experts
Two categories of Expert Testimony are allowed:
“Experiential” Testimony
URE 702 (a) allows testimony from a witness who is qualified by knowledge, skill, experience, training or education if their “specialized” knowledge will “help the trier of fact understand the evidence or determine a fact in issue.”
“Scientific” Testimony
URE 702 (b) allows scientific, technical or other “specialized” knowledge that has been established to be generally accepted by the “relevant expert community.”

7. In sexual assault and DV cases, often the most effective and qualified expert witnesses are individuals with extensive experience working with victims.

8. Research on Impact of Expert Witness Testimony on Jurors shows what things jurors themselves cited as influencing their decisions:
1) Likeability of the expert;
2) Linking information with case-specific facts; and
3) Calling an expert early in the trial, so that the expert’s testimony becomes a ‘lens’ through which evidence is viewed.
Brodsky, et.al., Credibility in the Courtroom; Journal of the Academy of Psychiatry and the Law 37(4): 525 (2009)

9. How will Your Expert be Perceived by the Jury?
Effective experts are knowledgeable AND are good communicators, a unique combination of skills.

10. “What Color is This Shirt?”

11. “Expert” is Expanded Advisory Committee URE 702(a) note:
“The fields of knowledge which may be drawn upon are not limited merely to the ‘scientific’ and ‘technical,’ but extend to all ‘specialized’ knowledge. Similarly, the expert is viewed, not in a narrow sense, but as a person qualified by knowledge, skill, experience, training or education.”

12. URE 702 Admissibility Test
Party offering testimony must show:
1) 702 (a): Testimony will “assist the trier of fact to understand the evidence or determine a fact at issue.”
2) 702(b): There must be a “Threshold showing” that methods and principles used by expert are:
Reliable; and
Based upon sufficient facts or data; and
The facts or data have been reliably applied to facts of the case, a process described in the advisory note as the “work at hand.”

13. “Expert” defined by Subject Matter
Issue: Mental capacity of victim to consent to sex
State called teacher with Special Education degree;
27 years of experience working with mentally handicapped people; had taught victim (No license, no ability to assess IQ, no training to assess mental age)
“He was not called to testify as to her I.Q. or mental age, but as to her overall ability to consent to a sexual relationship.”
Held: Expert Opinion allowed. State vs. Kelley, 2000

14. URE 702 (a): “Assist the trier of fact”
State vs. Holm (2006)
Expert testimony regarding the history/social utility of polygamy “would not have aided jury in determining the question before it,” i.e., whether Defendant committed bigamy.
Patey Vs. Lainhart, 977 P2d 1193 (1999)
Expert testimony is admissible when the subject matter is not one of common understanding or where inexperienced persons are likely to prove incapable of forming a correct judgment without skilled assistance.

15. URE 403 Balancing Required
Utah Medical Examiner testified that the victim’s injuries were “purposefully inflicted, ” and that the injuries would have been painful. “If a trial court determines that the evidence will be helpful, that potential helpfulness must be balanced against its potential for unfair prejudice.” State vs. Maestas, 2012 UT 46, at 61.

16. Victim Behavior Testimony in Utah
“The victim need do no more than her age and her strength of body and mind make it reasonable for her to do under the circumstances.”  
State v. Strudham, 572 P.2d 700 (1977)
“The absence of outcries or serious wounds or injuries does not make a conviction unsupportable. Nor is it necessary to resist with vigor if a reasonable person under similar circumstances would have feared that failure to comply would have resulted in greater bodily harm or death.”
State v. Stettina, 635 P2d 75 (1981)

17. Victim Behavior Testimony in Utah
State vs. Kallin, 877 P2d 31 (1994)
Pediatrician may testify that the child “victim’s behavior was ‘consistent with’ behaviors of sex abuse victims.”
State vs. Loose, 994P2d 1237 (2000)
LCSW may testify that a child victim’s behavior is ‘consistent with’ that of sexually abused children.
State vs. Sloan, 322 P3d 624 (2003)
LCSW may testify child was experiencing severe emotional and behavioral problems ‘consistent with’ sexual abuse.
State vs. Christensen, 825 P3d 25 (2016)
Expert may opine that adult victim’s symptoms were ‘consistent with’ PTSD caused by trauma.
Good summary of admissibility of victim behavior testimony.

18. And Then There’s THIS
“Even together, these discrepancies are not determinative of Victim’s credibility and, indeed, could readily be interpreted by the jury as resulting from the trauma she experienced rather than as suggesting that she was not a credible witness. Often the events being recalled [by trauma survivors] are distant and difficult to express in words. We should expect such testimony to contain some inaccuracies without compromising the value of the testimony as a whole.”
State v. Kirby, 382 P.3d 644 (2016). Quoting Lynn Abrams, Oral History Theory 94 (2d ed. 2016).

19. Opening the Door to “Credibility” Testimony
A witness – even an expert - is not allowed to testify as to the credibility of another witness, ie., State vs. Rimmasch, UNLESS . . .
State vs. Gray, 349 P3d 806 (2015)
Defense counsel: If there is nothing to show that this young lady has any physical evidence to show that she has been sexually abused, how do you arrive to [sic] the conclusion that she was sexually abused?
Pediatrician: I felt she interviewed honestly. I took her word and added that to the behavioral changes that existed.

20. Role of the Judge Advisory committee notes to URE 702:
“Gatekeepers” to screen out unreliable expert testimony.
Must confront proposed testimony with “rational skepticism.”
Must make a finding that there has been a “threshold showing.” of indicia of reliability.

21. Prosecutor and expert should work together
There are four things that must be established by expert witness testimony:
Competency;
Theory;
Methodology ** ; and
Application.
Prosecutor and expert should work together
on how best to present these four things.

22. “Methodology” testimony
State vs. Shepherd, 2015 Ut App 208
“Experiential” expert testimony (URE 702 (a)) does not need to identify a particular scientific or scholarly methodology, but expert must explain:
The nature of expert’s experience;
How expert’s experience leads to opinions;
Why expert’s experience is a sufficient basis for the opinion; and
How expert’s opinion is reliably applied to the facts.

23. Level of Certainty
In a criminal case involving the exploitation of a minor, a medical professional testified that “within a reasonable degree of medical certainty,” it could be established that the females were under the age of eighteen. 
State v. Atkin, 80 P.3d 157 (2003)
Reasonable degree of medical certainty = similar certainty that is used in the expert’s practice

24. URE 704 and the “Ultimate Issue”
An opinion is not objectionable because it embraces the ultimate issue.
Exception: No opinion allowed as to what a person intended
State vs. Jaramillo, 372 P3d 34 (2016)
No expert testimony allowed re: alcohol negated intent

25. “The Stars are Aligned” Is a powerful argument to make to the jury
Victim
Police
Independent Witness
Medical Practitioner
Expert Witness

26. Good Luck and May the Force Be With You