Testimony concerning sex crime victim behaviors and responses: Expert or lay?

Commonwealth v. Jones, 2018 WL 3598642 (Pa. Super. 2018) (unreported), allocatur granted April 30, 2019, appeal docket 24 WAP 2019

The detective who investigated allegations that Jones engaged in repeated sex acts with Jones’ stepdaughter from the time she was thirteen until she was seventeen testified at Jones’ trial concerning his experience with sex crime victims’ ability to remember specifics about the dates and locations of the alleged acts. The trial court overruled defense counsel’s objections that the detective was giving expert testimony as a lay witness who had not been qualified as an expert.  On appeal, Superior Court affirmed, reasoning that the detective’s testimony was within the scope of Pa. R.E. 701 (dealing with lay opinion testimony), and that Pa. R.E. 702 (dealing with expert testimony) was not implicated:

Upon review of the record, we agree with the trial court that Detective Holzwarth’s testimony was not outside the scope of Pa.R.E. 701. We discern no abuse of discretion in the trial court’s determinations that (1) Detective Holzwarth, who testified as to matters within his personal knowledge and experience, did not need to be qualified as an expert in order to discuss Victim’s inability to recall specific dates of the sexual incidents, and (2) he gave permissible lay opinion testimony regarding his observations with similar victims of sexual abuse. Accordingly, we conclude that Detective Holzwarth’s testimony was rationally based on his experience, was helpful to the trier of fact, and was not based on scientific, technical, or other specialized knowledge. Therefore, the trial court did not err in permitting Detective Holzwarth’s testimony.

Slip Op. at 8.

The Supreme Court has granted allocatur to address whether testimony concerning sex crime victims’ responses and behaviors is expert testimony for which the witness must be qualified as an expert, or whether it is permissible lay opinion testimony as the lower courts held.  As the questions to be addressed indicate, the case law on this issue appears to be unsettled, and a statute, 42 Pa.C.S. § 5920, allows such testimony as expert testimony so long as the witness has been qualified as an expert.  The Supreme Court will decide:  

(1) Whether testimony from a detective about victim responses and behaviors, when based on that detective’s training, experience, and specialized knowledge, constitutes expert testimony and whether permitting such testimony from a lay witness is inconsistent with the plain language of Pa.R.E. 701, Pa.R.E. 702, and Commonwealth v. Huggins, 68 A.3d 962 (Pa. Super. 2013)? and

(2) Whether the General Assembly’s enactment of 42 Pa.C.S. § 5920 (relating to expert testimony in certain criminal proceedings) legislatively overruled this Honorable Court’s decision in Commonwealth v. Dunkle, 602 A.2 830 (Pa. 1992), which held that specific types of victim responses and behaviors are within the range of common experience, easily understood by lay people, and for which expert analysis is inappropriate?

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If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.