Defense child psychology expert properly excluded.

Girardot v. United States, No. 12-CO-144 (decided June 12, 2014)

Players:  Associate Judges Fisher, Blackburne-Rigsby, and Senior Judge Pryor.  PDS for appellant.  Trial Judge Mitchell-Rankin.  Opinion by Judge Fisher.

Facts:  Mr. Girardot was convicted of two counts of misdemeanor sexual abuse—one against an eight year old and the other against a ten year old—after a 2006 bench trial.  At the trial, Judge Mitchell-Rankin excluded the defense’s expert on child psychology, who intended to testify about the suggestibility of children and other psychological factors that make the young girls’ reports of abuse less reliable than a lay person might intuitively think.  Judge Mitchell-Rankin excluded the defense expert, finding that the topic of her testimony was “not beyond my ken” and concluding that the testimony would not help her in reaching a verdict.  The Court of Appeals reversed that exclusion, finding that the relevant question—even at a bench trial—is whether the expert testimony is beyond the ken of the average person, not beyond the ken of the judge. 

On remand, the court held an evidentiary hearing focused on the defense expert’s qualifications.  Judge Mitchell-Rankin also heard the expert’s substantive testimony, telling the parties “[w]e’re going to proceed as if the issue of qualifications has been resolved to get to the substantive testimony.”  After hearing the testimony, the judge excluded it, finding it lacking on each of the three Dyas prongs:  specifically, that (1) the subject matter of the expert’s testimony was not beyond the ken of the average layman, (2) the proffered expert did not have sufficient skill or expertise in the area, particularly because none of her numerous academic books and articles were on child sexual abuse, and (3) the state of scientific knowledge did not permit the expert to state a reasonable opinion because there was no generally accepted scientific methodology.  As an alternative holding, the Court stated that the expert’s opinion would not have affected her verdict in any event, even if she had considered it as admitted evidence.

Issue:  Whether the trial court abused its discretion in excluding the defense proffered expert on child psychology and suggestibility.

Holding:  The trial court did not abuse its discretion when excluding the expert testimony.  For the past few years, the Court has issued a series of opinions reprimanding trial courts for excluding defense experts about witness reliability as a matter of course.  However, those opinions involved errors where the trial courts acted without considering the Dyas factors or by invoking some presumption against admitting defense experts of this type.  When reversing in those cases, the DCCA never controverted the basic principle that the trial court has discretion in these matters, and just as trial courts should not make rote exclusions of these experts, neither should they admit them as a matter of course.  The trial court carefully weighed the Dyas factors as required, and did not abuse its discretion in doing so.

Read full opinion here.