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					State v. Obeta
Using Expert Witnesses to Counter Rape Myths
March 30, 2012


The webinar will begin shortly. Please note that the CLE event
code for this presentation is 165445. This course has been
approved for one hour of credit.

You will not be able to print the slides from your computer. If
you would like a hard copy of the slides, you can download
them from our website: www.mnallianceoncrime.org.




                                                                  1
                Presenters
   Kaarin Long and Tom Ragatz
    ◦ Ramsey County Attorney’s Office
   Caroline Palmer
    ◦ Minnesota Coalition Against Sexual Assault




                                                   2
Background and Case History
   State v. Saldana 324 N.W.2d 227
    (Minn.1982): Expert testimony on “rape
    trauma syndrome” not admissible to
    explain behavior of adult sexual assault
    victim. Led to moratorium in MN on
    expert testimony on confusing, counter-
    intuitive victim behavior in cases involving
    adult sexual assault victims.


                                                   3
Silenced experts and victims.




                                4
Background and Case History
   Saldana & progeny
    ◦ Not in line with national consensus.
    ◦ Not in line with MN law on experts on victim
      behaviors/reactions in other situations.




                                                     5
Background and Case History
   Law Review Article
    ◦ Academic treatment of the issue
    ◦ Large body of national research and resources
    ◦ Latest developments in behavioral research
    ◦ Develop expertise on case law, research and
      national context
    ◦ Compare and contrast with MN law




                                                  6
Background and Case History
 ◦ Long, Palmer, Thome (Gonsalves): A
   Distinction Without a Difference: Why the
   Minnesota Supreme Court Should Overrule
   its Precedent Precluding the Admission of
   Helpful Expert Testimony in Adult-Victim
   Sexual Assault Cases, 31 Hamline J. Pub. L
   & Pol’y 569 (August 2010).

 ◦ Article supported amicus brief
                                                7
Background and Case History
   MNCASA Amicus Policy
   http://www.mncasa.org/svji_legal_amicus.html




                                                   8
Background and Case History
 State v. Nathan Ododo Obeta
 Facts & Trial
    ◦   delay of perhaps 90 minutes
    ◦   not calling 911
    ◦   no resistance
    ◦   no vaginal injury
    ◦   little physical injury at all



                                        9
Background and Case History
   First Appeal
    ◦ 2009 Minn. App. Unpub. LEXIS 966 (Minn. Ct.
      App. Aug. 25, 2009)
    ◦ 2009 WL 2596102 (Minn. Ct. App. Aug. 25,
      2009)




                                                    10
Background and Case History
   In this case, the nurse and the detective were
    not asked their opinions about whether they
    believed M.B. was a sexual assault victim or
    whether they believed she was telling the truth.
    To that extent, the statements were not offered
    as true “expert” opinions and did not constitute
    “vouching” testimony.




                                                   12
Background and Case History
   First Appeal continued . . .
    ◦ But the nurse and the detective were allowed
      to testify that, based on their experience,
      most women who are assaulted “have
      significant fear and don’t fight back,” that “they
      just lay there and wait for it to be over with
      for fear of being injured more” and that
      “there’s a delay” in reporting in “the majority”
      of sexual assault cases, thus permitting the
      jury to infer that M.B. was a typical victim.

                                                       13
Background and Case History
   First appeal continued . . .
    ◦ In Saldana, 324 N.W.2d at 229, the jury heard
      “discussion of the stages a rape victim typically
      goes through . . . Essentially an explanation of
      “rape trauma syndrome.” Although the
      statements of the nurse and the detective in this
      case were not so extensive and did not
      specifically refer to a syndrome, the statements
      were indirectly offered to explain M.B.’s reactions
      and symptoms and to allow the jury to draw
      inferences that M.B. was a typical rape victim.

                                                            14
Background and Case History
   First Appeal continued . . .
    ◦ We therefore conclude that this testimony
      improperly invaded the province of the jury
      and the district court erred in allowing it over
      the continuing objections of defense counsel.




                                                     15
Background and Case History
   First Appeal continued . . .
    ◦ Finally, while some of the individual errors
      may be harmless we believe that the
      cumulative effect of these errors deprived
      appellant of a fair trial. “Cumulative error
      exists when the cumulative effect of the . . .
      errors and indiscretions, none of which might
      have been enough to tip the scales, operate to
      the defendant’s prejudice by producing a
      biased jury.” State v. Johnson, 441 N.W.2d 460,
      466 (Minn. 1989) (quotation omitted).

                                                    16
Background and Case History
 First Petition for Review
 Amicus support by MNCASA
    ◦ Minn. R. Civ. App. P. 129: Brief of an Amicus
      Curiae
    ◦ Rule 129.01: Request for Leave to Participate
      Upon prior notice to the parties, a brief of an
       amicus curiae may be filed with the leave of the
       appellate court.




                                                          17
Background and Case History
   Pre-trial hearing
    ◦ Need more developed record on:
      need for expert testimony in adult victim sexual
       assault cases
      particular behaviors that confuse jurors
      traumatic events & how people react




                                                          18
Honorable Edward S. Wilson




                             19
State’s offer of proof :
expert testimony




                           20
Background and Case History
   State’s offer of proof:
    ◦ Dr. Patricia Frazier, Department of Psychology,
      University of Minnesota
      career studying trauma and post-trauma reactions
      sexual violence, combat, other events
      did a “literature review” on the research involving
             frozen fear
             delayed reporting
             lack of physical resistance during rape
             return to normalization



                                                             21
Background and Case History
   State’s offer of proof continued . . .

    ◦ Clarified that “rape trauma syndrome” is no more
      descriptive than “nervous breakdown”

    ◦ Provided academic information that public
      (jurors) need information to properly assess
      witness credibility given confusing reactions

    ◦ Admitted copies of two recent studies into the
      record on the issue of juror myths and
      misunderstandings

                                                       22
Background and Case History
   State’s offer of proof continued . . .
    ◦ Jeanne Martin Ronayne, Director,Victim
      Services Program of Dodge, Fillmore,
      Olmsted Counties
      20+ years in both corrections and victim advocacy
      Provided experienced view on:
        general public (jurors’) lack of understanding of sexual
         assault victim behaviors
        various responses of sexual assault victims
        including delayed reports, frozen fear, lack of resistance, and
         return to normalization


                                                                           23
Background and Case History
   We told judge he had to deny our motion
    – set up appeal




                                          24
Background and Case History
   Petition for Accelerated Review
    ◦ Minn. R. Civ. App. P. 118: Accelerated Review
      by the Supreme Court Prior to a Decision by
      the Court of Appeals




                                                      25
Ragatz prepares for battle.




                              26
             Obeta Decision
   796 N.W.2d 282 (Minn. 2011)
    ◦ In a criminal sexual conduct case in which the
      defendant argues that the sexual conduct was
      consensual, the district court has discretion to
      admit expert-opinion evidence on the
      typicality of delayed reporting, lack of physical
      injuries, and submissive conduct by sexual-
      assault victims when the district court
      concludes that such evidence is helpful to the
      jury and the opinion has foundational
      reliability.

                                                      29
           Obeta Decision
   The issue presented in this case is
    whether our decision in State v. Saldana,
    324 N.W.2d 227 (Minn. 1982), operates as
    a blanket prohibition against the
    admission of expert testimony about
    typical rape-victim behaviors to rebut a
    defendant’s claim that the sexual conduct
    was consensual. Because we conclude
    Saldana has been interpreted too broadly,
    we reverse the district court.

                                                30
            Obeta Decision
   Unlike the experts in Saldana, the State’s
    experts in this case will not testify about
    the purported stages of rape trauma
    syndrome or opine that M.B. suffers from
    the syndrome. Instead, the State
    attempted to offer evidence of typical
    rape-victim behaviors to dispel
    commonly-held rape myths that the jury
    might rely on in evaluating the evidence in
    the case.

                                              31
            Obeta Decision
   Since our decision in Saldana, we have
    recognized that the experiences and
    reactions of victims of certain crimes are
    outside the common knowledge of the
    jury. In these cases, expert testimony on
    typical victim behavior may be helpful to
    assist the jury in evaluating the facts in the
    case.


                                                 32
          Obeta Decision
 We conclude that the mental and physical
  reactions of an adult sexual-assault victim
  may lie outside the common
  understanding of an average juror.
 We reaffirm our decision in Saldana,
  however, that prohibits expert testimony
  about rape trauma syndrome, the
  credibility of the complainant, or the
  ultimate question of whether the
  complainant was sexually assaulted.

                                                33
           Obeta Decision
   We express no opinion on whether the
    State’s proposed expert testimony is
    relevant, helpful to the jury, and has
    foundational reliability.




                                             34
           Obeta Decision
   The parties appear to concede that
    expert testimony that educates jurors
    about typical rape-victim behaviors is not
    a novel scientific theory and thus not
    subject to Frye-Mack. We express no
    opinion on whether a Frye-Mack hearing is
    necessary in order to admit expert
    testimony on typical rape-victim
    behaviors.

                                             35
             Practical Tips/
            How to Use Obeta
   Responding to three possible defense
    arguments:
    ◦ Frye-Mack
    ◦ Calling a defense expert
    ◦ Waiting until credibility challenged




                                             36
           Practical Tips/
          How to Use Obeta
   Under State v. MacLennan, expert
    testimony on witness behavior is “social
    science evidence” not subject to the Frye-
    Mack standard for the admission of novel
    scientific evidence. 702 N.W.2d 219, 231-
    33 (Minn. 2005).




                                                 37
            Practical Tips/
           How to Use Obeta
   MacLennan continued . . .
    ◦ Instead, the question is whether evidence
      meets the “helpfulness” test under Minnesota
      Rule of Evidence 702. Id. Expert testimony is
      helpful if it helps “explain a phenomenon not
      within the understanding of an ordinary lay
      person.” Id. at 231, 234.




                                                      38
            Practical Tips/
           How to Use Obeta
   Create Reasonable Expectations
    ◦ Jurors all watch TV and movies – they expect
      dramatic, physically injurious, life-and-death
      fighting – screaming, weaponry, and a stranger.
      Expert testimony can normalize the
      expectations so that real-life sexual assault
      can be understood.
    ◦ “Neutralizing” unfair assumptions



                                                        41
Practical Tips
How to Use Obeta
 Victim Behaviors for which Expert
  Testimony May Be Useful
 Frozen Fear (“submissive”)
 Lack of Injury, including vaginal
 “Delay” in reporting
 “Inappropriate” emotional affect while
  reporting or while testifying


                                           42
            Practical Tips/
           How to Use Obeta
   Limits on Expert Testimony
    ◦ See State v. Grecinger, 569 N.W.2d 189, 195-
      197 (Minn.1997)
    and
    ◦ Long, Palmer,Thome article beginning p. 652 for
      in-depth discussion.




                                                        43
            Practical Tips/
           How to Use Obeta
   Limits on Expert Testimony
    ◦ General to sexual assault victims, versus
      specific to this victim
    ◦ Victim’s behavior in your case drives the focus
      of the expert testimony, but not “diagnosing”
      victim. Merely testifying that X behavior is
      normal, common in expert’s experience –
      neutralizing.



                                                    44
            Practical Tips/
           How to Use Obeta
   Limits on Expert Testimony
    ◦ General (not specific) testimony, avoids:
      the debate: Does she or does she not have PTSD?
      adverse psychological exams on victim
      orders to release previous medical/psychological
       records
      debating what is the event that caused the harm or
       her symptoms




                                                            45
              Practical Tips/
             How to Use Obeta
   Limits on Expert Testimony
    ◦   No opinion as to ultimate fact
    ◦   No opinion that victim suffers from PTSD
    ◦   No vouching for credibility of victim
    ◦   No vouching for credibility of her report –
        “she was in fact raped” by someone




                                                      46
             Practical Tips/
            How to Use Obeta
   Limits on Expert Testimony
    ◦ Not a litmus test for victims of sexual assault
      (See Saldana)
      Not offered to argue, “this victim acts just like a
       rape victim so therefore she was a rape victim”
      Not a profile – not claiming this victim fits the
       profile of a rape victim, or this defendant does (not)
       fit the profile of a rapist




                                                            47
            Practical Tips/
           How to Use Obeta
   Other considerations
    ◦ Rules of Evidence all still apply
    ◦ Must be relevant (402); not overly confusing
      or prejudicial (403); have proper foundation
      (702)




                                                     48
            Practical Tips/
           How to Use Obeta
   How to get your judge to let you present
    expert testimony of this type.
    ◦ Make the motion specific
    ◦ Name and qualifications of the expert –
      attach resume or CV
    ◦ Specify the fact issues you want to
      “neutralize”
    ◦ Specify the testimony that will address them
    ◦ Indicate you will keep expert testimony short
      and to the point

                                                      49
            Practical Tips/
           How to Use Obeta
   How to get your judge to let you present
    expert testimony of this type.
    ◦ Specify what you will not be offering
      (vouching, etc)
    ◦ Cite to resources supporting need for this
      type of expert testimony
    ◦ Obeta case p. 291 – pre-trial testimony and
      empirical information about myths held by
      general public – great language


                                                    50
            Practical Tips/
           How to Use Obeta
   How to get your judge to let you present
    expert testimony of this type.
    ◦ Long, Palmer,Thome article
      myths, empirical research, traumatic reaction
      footnote 315 – quoting MN cases on why expert
       testimony of this nature is necessary
      footnote 316 – quoting cases regarding debunking
       myths
      Section V p. 632 – weight of cases in the U.S.
       permitting such testimony


                                                          51
             Practical Tips/
            How to Use Obeta
   Responding to the defense – or the
    judge’s – concerns
    ◦ Obeta addressed three particular facts and
      myths relevant to the facts in that case, but
      does not limit Rule 702 – if it is helpful to the
      trier of fact, a different fact should still be
      addressed by expert testimony
    ◦ Ultimately, Obeta broadened the
      interpretation of Rule 702 in this situation –
      did not narrow it

                                                          52
             Practical Tips/
            How to Use Obeta
   Responding to the defense – or the judge’s –
    concerns
    ◦ “Counsel, we are not having some fancy expert
      come in here and tell the jury what to think, or
      that they should believe this victim.”
    ◦ Correct: “Much expert testimony tends to show
      that another witness either is or is not telling the
      truth. That fact, by itself, does not render the
      testimony inadmissible.” State v. Myers, 359
      N.W.2d 604, 609 (Minn.1984) (permitting an
      expert to discuss a child sexual assault victim’s
      confusing behaviors).

                                                             53
Obeta simply levels the playing field.




                                         54
            Practical Tips/
           How to Use Obeta
   The Obeta decision is not a whole new
    frontier – it merely pulled the outlier
    (Saldana) into line with a long line of legal
    authority:




                                                    55
             Practical Tips/
            How to Use Obeta
   Since our decision in Saldana, we have recognized
    that the experiences and reactions of victims of
    certain crimes are outside the common knowledge of
    the jury. In these cases, expert testimony on typical
    victim behavior may be helpful to assist the jury in
    evaluating the facts in the case. The rationale we
    applied in allowing expert testimony on the typical
    behaviors of battered women, battered children, and
    child-and adolescent-victims of criminal sexual
    conduct applies with equal force to expert-
    opinion testimony on typical rape-victim behaviors
    that are outside the common understanding of most
    jurors. State v. Obeta, 796 N.W.2d 282, 292
    (Minn.2011) (emphasis added).


                                                        56
            Practical Tips/
           How to Use Obeta
   Who to Call as an Expert
    ◦ SANE (even if did not do the exam)
    ◦ SANE-trained medical provider
    ◦ Medical provider experienced with sexual
      assault victims
    ◦ CornerHouse trained medical provider or
      social worker
    ◦ Trained and experienced sexual assault
      advocate from a program in different location

                                                      57
            Practical Tips/
           How to Use Obeta
   Who to Call as an Expert
    ◦ Counselor/therapist experienced with sexual
      assault victims
    ◦ Professor or instructor on trauma
    ◦ Trained and experienced investigator, perhaps
      from another department (MN Sex Crimes
      Investigators Association)




                                                      58
            Practical Tips/
           How to Use Obeta
   Who to Call as an Expert
    ◦ Testimony depends on foundation for witness
      expertise and facts of the case
    ◦ No professional or personal connection to
      victim
    ◦ No diagnosis or conclusion
    ◦ Rely upon research and experience
    ◦ Always necessary?
    ◦ Experience and education

                                                    59
                Practical Tips/
               How to Use Obeta
   Who to Call as an Expert
       State v. Valentine, 787 N.W.2d 630 (Minn.App. 2010) –
        police investigator allowed to testify on battered
        women syndrome (can be applied to sexual assault
        victim behavior testimony)




                                                                60
         Practical Tips/
        How to Use Obeta
 MNCASA training institutes on expert
  testimony for prosecutors, health care
  providers and advocates (see handout in
  CJI course materials)
 Listserv for prosecutors and investigators
  (contact caroline@mncasa.org to join)




                                               61
     Expert Testimony Institutes
 MNCASA is currently holding expert
  testimony training institutes for
  prosecutors, healthcare providers and
  sexual assault advocates
 Redwood Falls, Grand Rapids, St. Paul
 For further information:
    ◦ http://www.mncasa.org/svji_expert_testimony.html




                                                         62
              Questions?
   Use the red arrow on the menu bar at
    the right of your screen to type a
    question.




                                           63
               Thank you!
   Kaarin Long
    ◦ kaarin.long@co.ramsey.mn.us
   Tom Ragatz
    ◦ tom.ragatz@co.ramsey.mn.us
   Caroline Palmer
    ◦ caroline@mncasa.org
    ◦ www.mncasa.org
   Kelly Moller
    ◦ ed@mnallianceoncrime.org
    ◦ www.mnallianceoncrime.org
                                    64

				
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