Appeal from the Superior Court of the District of Columbia (CF2-3822-06) (Hon. Zinora M. Mitchell-Rankin, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID and KRAMER, Associate Judges, and KING, Senior Judge.
This case involves a judgment of conviction for aggravated second-degree child sexual abuse.*fn1 Appellant, Christopher P. Girardot, contends that the trial court erred during his bench trial by precluding the testimony of a proposed defense witness, an expert in children's cognitive processes, and the pressures and factors that can prompt a child to make false complaints of sexual abuse. Consistent with our opinion in Benn v. United States, 978 A.2d 1257 (D.C. 2009), decided after the trial court's ruling in this matter, we remand this case for consideration of the admissibility of the expert's proposed testimony "in accordance with the three criteria established in Dyas [v. United States, 376 A.2d 827 (D.C. 1977)]."*fn2 Id.at 1261.
Before trial commenced in this case, the defense lodged a notice of filing, indicating that it would seek to introduce expert testimony through Dr. Susan Robbins.*fn3 In response, the government filed a motion in limine to exclude Dr. Robbins's testimony.*fn4 Over a twoday period, between breaks in a motions hearing, the trial court held fairly extensive discussions with defense and government counsel about the proposed expert testimony. Initially, the trial judge declared that she did not have specific concerns about Dr. Robbins's qualifications. Rather, her concern was relevance, that is, "[w]hether or not this is . . . so outside of the ken of the [c]court that I can't make the factual determinations that could lead to a determination that a child is . . . not credible for a variety of reasons." Throughout the discussions, the trial judge reiterated three themes: that both the subject area and the issues the court needed to decide were not beyond the court's or her ken; that she did not see how the testimony would be helpful to her; and that "her job is to assess credibility" and to "make determinations as to whether or not [she] believe[s] people." Furthermore the judge declared that she could make the necessary determinations with questioning of witnesses by counsel and the court. As the judge put it: "I don't see how this body of knowledge is outside of my ken such that the level and discernment that . . . I've tried to articulate here does not address those issues with the right level of questioning on [defense counsel's] part or even on my part if I have some concerns." As the trial judge further posited: "Perception, memory . . . , manifestations of falsity . . . are all areas that are legitimate areas of cross-examination with the right questioning, with the right discernment on the part of the [c]court, inconsistencies, conflicts in testimony[,] relationships to issues of falsity" -- "[a]ll of those things are things that I do routinely."
Defense counsel contended that the subject area was beyond the ken "because there have been specific scientific studies that the [c]court could not and [defense counsel] could not know about[,] that only an expert that's in that field could know about." Counsel stressed the science and the fact that more is involved than a credibility determination:
[Dr. Robbins] has an expertise in cognition[,] about how children make false allegations of child abuse. This is [n]ot just a credibility determination, that is the [c]court's job. This witness has done studies, has participated in specific cognitive studies about how false allegations manifest in children. It's just much different from a credibility determination.
Defense counsel provided a lengthy description of the specific areas Dr. Robbins would cover and how her testimony would be helpful to the fact-finder and the defense, particularly in assessing the video interview of the children, which was conducted at the Child Advocacy Center ("CAC"). The trial court inquired as to why defense counsel could not accomplish that same objective by examining fact witnesses with respect to "the interview techniques and . . . the potential impact of those techniques . . . vis-a-vis the value or the efficacy or the accuracy or the truth of the assertions being made of the person interviewed?" Defense counsel responded: "Quite frankly, because all of the science behind what . . . the doctor can testify to is beyond my ken as well[,] [a]nd that's exactly why I would need to have an expert testify . . . , because specifically what [Dr. Robbins] looks at with respect to interviewing techniques, leading questions, suggestivity of an eight-year-old and a [ten]-year-old is quite honestly beyond my ken as well."
In addition to quoting the Dyas test in its written opposition to the defense's expert notice, government counsel orally opposed the testimony, at length, during the pre-trial hearing. She cited the three Dyas criteria,*fn5 discussed other case law, and argued that the proposed testimony did not meet any of the Dyas prongs. She concluded that the subject area here "is not beyond the ken of the average juror, and it's certainly not beyond the ken of the fact finder"; she added, "[e]specially in this instance, a very experienced trial court judge." She agreed with the trial court that the proposed testimony concerned credibility, and that defense counsel could cross-examine witnesses to show a lack of credibility. Government counsel contended that "the defense is merely attempting to transparently disguise its attempt to have one witness comment on the credibility of another witness." She contested the relevance and helpfulness of many of the studies identified by Dr. Robbins, because they relate to "pre-school aged children" rather than eight and ten year-old children. In addition, she questioned the qualifications of Dr. Robbins, as well as the state of the science.
In reaching her decision to exclude Dr. Robbins's testimony, the trial judge reaffirmed her conclusion that the matters as to which Dr. Robbins would testify were not outside of the court's ken or her ken. The judge announced that she would not address the second and third criteria of the Dyas test.
At trial, the government presented as its major witnesses the two minor children that Mr. Girardot allegedly abused sexually. J.B., who was nine-years-old at the time of trial, testified that Mr. Girardot, a neighbor and her father's friend, touched her inappropriately on two occasions. She described one event, which took place in late December 2005, in Mr. Girardot's living room. She was watching a movie with her father, appellant, her brother and two of appellant's sons. She sat on Mr. Girardot's lap on the same couch with one of his sons. Appellant touched her on her upper thighs and he was "rubbing" her on her "bladder . . . and in between [her] thigh and [her] vagina." J.B. mentioned another event, but could not remember exactly when it occurred or the details. Eventually, in January 2006, she told her mother, and later, someone at CAC about the incidents.*fn6
C.N., who was eleven-years-old when she testified, indicated that Mr. Girardot was part of her school carpool. C.N. visited his house on five occasions to watch movies or bake cookies. On the birthday of one of Mr. Girardot's sons, around December 2005, C.N. was in Mr. Girardot's living room, watching a movie with several of the children in her carpool. She was seated on appellant's lap when he "put his hands down [her] pants." He "went under [her] skirt and into [her] shorts," and "was rubbing [her] . . . vagina." C.N. moved to the other couch in the living room and "sat down with her sister and [one of Mr. Girardot's sons]." After C.N.'s father told her "what happened to other girls with Mr. Girardot," C.N. tearfully informed her parents about the incident with appellant. She also spoke with the CAC.
The defense theory was general denial and fabrication by the children. Two of the other children who were in Mr. Girardot's living room at the time of the alleged incidents against J.B. and C.N. testified that they did not see any inappropriate acts by Mr. Girardot. Appellant's wife stated that she and her husband had babysat for three of the B. siblings, including J.B., in December 2005, while their mother was away with the oldest sibling and their father was at work. When Mr. Girardot's wife was in the ...