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State v. Favoccia, Supreme Court of Connecticut

306 Conn. 770 (2012)

Nature of the case:

Child Sexual Abuse

Facts and Issues on Appeal:

The victim was sexually assaulted by a friend of her father’s on two occasions in her father’s home. At trial, the prosecution presented expert testimony by a school psychologist of behavioral characteristics common in child sexual abuse victims, which were exhibited by the victim in a taped forensic interview. The defendant objected to four sections of her testimony where the witness opined that the victim exhibited such behaviors. The defendant was convicted. On appeal, he argued that the trial court abused its discretion in allowing expert testimony because, he argued, the expert improperly vouched for and bolstered the victim’s credibility. The Appellate Court agreed with the defendant and reversed the judgment. The prosecutor appealed from that decision and the state's highest court agreed with the lower appellate court, reasoning as follows:

Ruling & Rationale:

The expert's testimony went far beyond a general discussion of behaviors typical of sexually abused children, and improperly vouched for the victim by expressly concluding that this particular victim displayed those common behaviors.

In child sexual abuse cases with no physical evidence, a victim’s statements are the prosecution’s main evidence. Because the victim's credibility becomes a critical “ultimate issue” for the jury to determine, the an expert's vouching takes on added significance since the jury could perceive the expert's testimony as establishing that the victim testified truthfully.

The court emphasized that the lack of physical evidence or corroboration can cause an expert's testimony to tip the scales in favor of a victim's credibility in a manner that denies the accused a fair trial.

Editorial Comment

Like Massachusetts, but unlike most states, Connecticut has drawn a fine line between permissible expert testimony that helps a jury understand what might otherwise be perceived as unusual behavior by a child victim, and impermissible expert testimony. In general, expert witness testimony is permitted if it simply provides a context within which a jury can make a fair assessment about a victim's behaviors. Such testimony is intended to prevent the jury from assuming, without basis, that a child's behavior is inconsistent with the way a truly abused child would act. Refraining from specifically commenting on the way a particular child's actions match-up with those of the "typical" child may be an appropriate limitation on the role of an expert. However, the Court here also noted that the decision would have been different if there had been corroboration or physical evidence. In doing so, this Court effectively created a standard that values the testimony of children whose cases have corroboration more than the testimony of victims whose cases lack corroboration. By repeatedly describing cases that lack physical evidence as “not automatically weak” but “not particularly strong”, this Court perpetuates the myth that sexual assault allegations are less valid in the absence of physical injury even though all relevant research shows that the bodies of child sex abuse victims rarely have corroborative injuries, in large part because children's bodies heal so quickly. Thus, this decision implicitly creates an improper hierarchy that may affect prosecutorial discretionary decisions, such that charges may not be filed, even in credible cases, simply because they lack corroboration. This is a particularly glaring misstep in light of research that shows very few cases of child sex abuse produce physical injuries. In one study of forty pregnant adolescent girls, only three showed hymenal damage. The remaining study subjects all had intact hymens. Lack of appreciation for this physiological reality demands that prosecutors take more aggressive steps to ascertain relevant research and file it with the court in all cases involving disputes about the significance of cases where there are no corroborative physical injuries.

Submitted By: Katherine Ramsey -- Law Student

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