Admissibility of False Memory Expert Testimony at Trial for Sexual Offenses under 18 Pa.C.S. Chapter 31
Commonwealth v. McGinnis, 258 A.3d 554 (Pa. Super. 2021), allocatur granted June 6, 2022, appeal docket 26 WAP 2022
In this case, the Supreme Court will consider the admissibility of expert testimony regarding false memories in a criminal proceeding for sexual offenses. Under 42 Pa.C.S. § 5920(b)(1), “[i]n a criminal proceeding [for a sexual offense under 18 Pa.C.S. Chapter 31,] a witness may be qualified … as an expert [in the areas of] understanding the dynamics of sexual violence, victim responses to sexual violence and the impact of sexual violence on victims during and after being assaulted.” Subsections 5920(b)(2) and (3) provide such an expert witness “may testify to facts and opinions regarding specific types of victim responses and victim behaviors[,]” but any “opinion regarding the credibility of any other witness, including the victim, shall not be admissible.” 42 Pa.C.S. § 5920(b)(2), (3).
Rickey McGinnis was charged with a number of offenses arising from McGinnis’s alleged sexual abuse of his son. Prior to trial, the Commonwealth filed a notice of intent to offer the expert testimony of Jamie Mesar, MSW, about how children disclose sexual abuse generally. McGinnis filed a motion in limine to preclude Ms. Mesar’s testimony, as well as a motion to proffer the testimony of his own expert witness, cognitive psychologist Bruce Chambers, Ph.D., regarding false memories in children. The motion stated that Dr. Chambers would not testify about J.M. specifically, but rather the topic of false memories generally, including:
- The role of interview bias[ ]
- The effects of repeated questioning.
- The tainting effects of suggestive interviewing techniques
- Role of suggestion in delayed recall of child sexual abuse
- Age differences in reliability of reports[ ]
- Source Monitoring: Distinguishing Reality from Fantasy[ ]
- Creating false memories
Slip op. at 7. Thereafter, the trial court held a hearing where it permitted the Commonwealth to call Ms. Mesar as an expert witness under Section 5920. The trial court refused to hear testimony from McGinnis’s proposed expert witness, Dr. Chambers, stating that the court was “not aware of any testimony of this nature ever provided in Allegheny County,” which McGinnis conceded. Slip op. at 7-8. The court found Dr. Chambers’ testimony could not be admitted under Section 5920, opining that “at a minimum we need a Frye hearing,” reasoning that:
I don’t think [Dr. Chambers’ testimony] falls under [Section 5920] to help a jury understand the behaviors of children who are victims of sexual assault, … like the fact that children don’t promptly report and there are many reasons for it. The fact that children have no specific single behavior that typifies what you might expect a child to do after being a victim, such as [making a] report or [being] afraid of the perpetrator, that kind of thing, that’s 5920 testimony. So with regard to recovered memories, all that is a different area of expertise, specifically challenging the credibility of this witness’ testimony, attacking the credibility of it. And very much will be fact-based specific to this child. So [a]gain, at a minimum, we would need a Frye hearing to determine whether it’s credible [and] generally accepted science.
Slip op. at 8. The court then requested case authority addressing the type of evidence that Dr. Chambers would proffer, Dr. Chambers’ curriculum vitae, as well as information as to whether Dr. Chambers has testified as an expert in this area in other Pennsylvania judicial proceedings or been subject to a Frye hearing.
Following briefing, the trial court denied McGinnis’s motion on the basis that “the testimony does not fall within the purview of 42 Pa.C.S. § 5920, as it did ‘not relate to “the dynamics of sexual violence, victims[“] responses to sexual violence [or] the impact of sexual violence on victims,’” reasoning:
[McGinnis] did not provide Dr. Chambers’ curriculum vitae nor explain whether Dr. Chambers has been qualified to testify as an expert in any area, and thus the Commonwealth could not meaningfully respond to whether a Frye hearing was appropriate. Finally, the trial court concluded that Dr. Chambers’ testimony would “invade[ ] the province of the jury to determine credibility,” and thus was not admissible under Commonwealth v. Pugh, 101 A.3d 820 (Pa. Super. 2014) (en banc).
Slip op. at 8-9. The case proceeded to trial and McGinnis was convicted by a jury of rape of a child, involuntary deviate sexual intercourse (IDSI) with a child, incest of a minor, and related offenses. McGinnis appealed, arguing that the trial court erred in denying his proffer of expert testimony regarding false memories. Superior Court summarized McGinnis’s arguments as follows:
Appellant argues the trial court should have permitted Dr. Chambers’ expert testimony about false memories, because: (1) it is “challenging to elicit information from young children without asking specific, leading questions;” (2) “young children are particularly deferential to adults’ beliefs;” (3) “young children have special difficulty when identifying the sources of their beliefs;” (4) here, there was no physical evidence of, nor eyewitness to, any sexual abuse by Appellant against J.M.; (5) J.M. did not mention “the anal sex narrative” until October 2013, after nine months of therapy, and this “narrative was as non-descript as could be;” and (6) J.M. “underwent another four years of therapy before he wrote his trauma narrative.” Appellant’s Brief at 38-40.
Appellant maintains his proffer of Dr. Chambers’ testimony was “to equal the playing field because of [Section] 5920.” Appellant’s Brief at 41. Appellant relies on the dissenting opinion in Commonwealth v. Olivo, 127 A.3d 769 (Pa. 2015), in arguing that Section 5920 experts “improperly … bolster[ ] or attack[ ] a victim’s credibility” “under the guise of educating jurors on the varying reactions to sexual violence.” Appellant’s Brief at 42-43, citing Olivo, 127 A.3d at 782 (Eakin, J., dissenting). On this premise, Appellant also claims the trial court erred in admitting the Commonwealth expert Jamie Mesar’s Section 5920 “profile” testimony about behavior patterns of sexually abused children. Appellant reasons Mesar’s testimony improperly bolstered J.M.’s credibility, and allowed other witnesses to confirm that J.M. displayed the described behaviors, including “why [J.M.] didn’t more quickly report the alleged abuse.” Id. at 41-43. Appellant maintains Dr. Chambers’ false memories testimony was offered in rebuttal to Mesar’s testimony, and thus was admissible under Section 5920(b)(4), as well as Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014). Appellant’s Brief at 46-47.
Slip op. at 14-15.
Superior Court held that expert testimony about false memories is not admissible under Section 5920(b)(4) agreeing with the trial court that:
[McGinnis’s] proffer did not relate to ‘the dynamics of sexual violence, victim responses to sexual violence[,] and the impact of sexual violence on victims during and after being assaulted[,]’ and thus, does not fall within the purview of Section 5920.” Instead, Dr. Chambers’ testimony would have focused, as Dr. Chambers’ letter averred, exclusively on “the role of interview bias; the effects of repeated questioning; the tainting effects of suggestive interviewing techniques; role of suggestion in delayed recall of child sexual abuse; age differences in reliability of reports; Source Monitoring: Distinguishing Reality from Fantasy; and creating false memories.” See Letter to Appellant from Bruce Chambers Ph.D, at 1-2; see also N.T. Hearing at 23-28. As a result, Dr. Chambers’ testimony falls outside of the scope of Section 5920. See 42 Pa.C.S. § 5920(b)(1).
Slip op. at 16-17. Superior Court further found that the preclusion of Dr. Chambers’ testimony on the ground it “would be used exclusively to undermine [J.M.’s] credibility” was within the trial court’s discretion, opining that:
Appellant concedes that “Dr. Chambers’s ‘generic’ expert testimony would’ve been used to undermine the credibility of … [J.M.]’s testimony that his anal rape allegation is based on a real memory[.]” See Appellant’s Brief at 37 (emphasis removed). For that reason, as stated above, the trial court did not err in concluding that Dr. Chambers’ testimony is prohibited, since it would invade the province of the jury’s function to determine issues of credibility. See 42 Pa.C.S. § 5920(b)(3); see also Jones, 240 A.3d at 896. Although Appellant purports the “testimony wouldn’t have directly spoken to whether [J.M.] was untrustworthy, or even unreliable[,]” he then argues, “even if [the] false memories testimony would’ve directly commented on [J.M.]’s credibility, common sense and clearly-established due process principles would’ve warranted his expert testimony because Mesar’s ‘profile’ testimony did the exact same thing.” See Appellant’s Brief at 48. However, we reiterate, “expert testimony on the issue of a witness’s credibility is impermissible, as it encroaches on the province of the jury to make such determinations.” See Jones, 240 A.3d at 896.
Slip op. at 17-18.
In a concurring opinion, Judge Bowes clarified that while she agreed with the majority’s conclusion, she believed the trial court’s preclusion of Dr. Chambers’ testimony was proper because the trial court “lacked the specificity necessary to enable the trial court to determine whether or how it related to the dynamics of sexual violence, victims’ responses to sexual violence, or the impact of sexual violence on victims, for purposes of the admissibility of Dr. Chambers’ testimony under 42 Pa.C.S. § 5920.” Concurring slip op. at 1-2. “To the extent that the Majority’s words may be construed as a blanket prohibition against the admission of false memories testimony under § 5920,” Judge Bowes departed from the majority, explaining that she is “unwilling to foreclose the possibility that an expert may proffer testimony about interview techniques or therapy that would implicate victims’ responses to sexual violence or its impact within the meaning of § 5920, without opining about the credibility of the witnesses.” Concurring slip op. at 3. Judge Bowes observed that there is precedent for the admission of expert testimony regarding interview techniques and false memories, “albeit at a competency hearing prior to trial rather than at trial.” Concurring slip op. at 3, citing Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003) (finding that taint is a proper subject for inquiry at a competency hearing); Commonwealth v. R.P.S., 737 A.2d 747, 754 (Pa.Super. 1999); Commonwealth v. Garcia, 387 A.2d 46, 55 (Pa. 1978) (holding that expert testimony may be permitted as to the competency of a witness, but an expert is not permitted to render an opinion as to the credibility of a witness). “This suggests to me,” Judge Bowes opined, “that such testimony is not the type of novel scientific evidence contemplated in Frye v. United States, 293 F. 1013, 1014 (D.C. App. 1923), adopted in Pennsylvania in Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977), and incorporated in Pa.R.E. 702, that is not generally accepted within its scientific community.” Concurring slip op. at 3. Thus, Judge Bowes concluded: “I would not rule out the possibility that, with an adequate proffer, a defense expert may be qualified under § 5920 to render generic testimony at trial regarding responses of alleged sexual abuse victims to suggestive interview techniques or therapy. Certainly, such testimony is admissible at a competency hearing.” Concurring slip op. at 6.
In dissent, Judge Colins opined that the admissibility of false memory expert testimony is supported by Commonwealth v. Jones, 240 A.3d 881, 891 (Pa. 2020) (holding that a police officer could testify as an expert under Section 5920 on the issue of “whether or not it was common for child victims of sexual assault to have trouble remembering dates and details of ongoing sexual assaults.”) and Commonwealth v. Smith, 206 A.3d 551, 562 (Pa. Super. 2019) (holding as permissible under Section 5920 expert testimony that child victims of sexual abuse share the details of the abuse in piecemeal fashion and that child victims relate details differently in separate accounts of the abuse). Additionally, Judge Colins noted that the Commonwealth’s expert on child sexual abuse offered “broad-ranging testimony upon such topics as children who initially disclose sexual abuse but then ‘recant[ ]’ or ‘change’ their accounts of abuse and ‘child[ren who] might not have disclosed enough’ in an initial forensic interview but are able to relate more details of the abuse in later interviews after further therapy.” Dissenting slip op. at 2. Judge Colins concluded:
In light of the expansive understanding of the bounds of expert testimony in sexual abuse cases under Section 5920, including the testimony of the Commonwealth’s expert sanctioned by the trial court in this very case, I fail to discern any principled rationale to justify the trial court’s exclusion of Dr. Chambers’ proposed generic expert testimony that, as a result of repeated forensic interviews and psychotherapy sessions, some children mistakenly come to believe that they are victims of sexual abuse. See Commonwealth v. Walker, 92 A.3d 766, 784 (Pa. 2014) (“Expert testimony on relevant psychological factors . . . does not directly speak to whether a particular witness was untrustworthy, or even unreliable, as the expert is not rendering an opinion on whether a specific witness [testified accurately]. Rather, such testimony teaches—it provides jurors with education by which they assess for themselves the witness’s credibility.”); Smith, 206 A.3d at 561 (stating that while Walker related to the admissibility of expert testimony concerning witness identification, the principle enunciated in that case “is applicable to expert testimony on the dynamics of sexual violence and victim responses to sexual violence”).
Dissent slip op. at 2-3 (emphasis in original).
The Supreme Court granted allocatur, limited to the following issue:
Whether “generic” false memories expert testimony in a child sexual abuse prosecution, which the defendant is presenting solely to educate jurors about how legitimate and false/distorted memories are and can be created in children, is admissible at trial?
For more information, contact Kevin McKeon or Dennis Whitaker.