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					 1   STEVEN J. CARROLL
     Public Defender
 2
     County of San Diego
 3   F. Michael Garcia
     Deputy Public Defender
 4   State Bar Number: 176409
 5   233 "A" Street, Suite 300
     San Diego, California 92101
 6   Telephone: (619) 338-4684
 7
     Attorneys for Defendant
 8   John Doe
 9

10                    SUPERIOR COURT OF THE STATE OF CALIFORNIA

11                          IN AND FOR THE COUNTY OF SAN DIEGO
12

13
     THE PEOPLE OF THE STATE OF                 )       CASE NO.
14   CALIFORNIA,                                )       D.A. NO.
15                                              )
                                   Plaintiff,   )
16                                              )       MOTION TO EXCLUDE
       v.                                       )       EVIDENCE OF CHILD SEXUAL
17
                                                )       ABUSE ACCOMODATION
18                                              )       SYNDROME
                                                )
19   John Doe,                                      )
20                                            )
                                   Defendant. )
21                                            )
22
            Defendant, JOHN DOE, by and through his attorney, the Public Defender of the County
23
     of San Diego, moves this honorable court to exclude and limit certain evidence concerning the
24

25   Child Sexual Abuse Accommodation Syndrome [hereafter CSAAS].

26          The defense moves for a protective order that:
27          1. Pursuant to Kelly/Frye and EC 352, the prosecution not be allowed to introduce the
28
 1   equivalent of a profile of a child molester or victim of molest under the subterfuge of dispelling
 2
     numerous myths about child molesters or victims of molest.
 3
            2. If the court permits the prosecution to introduce expert testimony to dispel alleged
 4

 5   myths, the court also orders that:

 6                   a. There is to be a hearing outside the presence of the jury for the prosecution to
 7
     specify the alleged myth and a contested hearing as to whether or not it is actually a myth.
 8
                     b. That the testimony be narrowly limited to only those items found by the court to
 9

10   actually be myths.

11                   c. That the testimony to dispel a myth be limited to victims as a class.
12

13
                                       POINTS AND AUTHORITIES
14

15          The defense has previously requested the name and C.V. of any expert the prosecution

16   intends to call or alternatively whether any of the persons listed in the discovery which
17
     constitutes the prosecution's witness list, would be called as expert witnesses. We have received
18
     no indication of any intent to call such a witness. Penal Code section 1054.1 mandates that the
19
20   prosecuting attorney shall disclose to the defendant or his attorney the following:

21
            (f) Relevant written or recorded statement of witnesses or reports of the
22          statements of witnesses whom the prosecutor intends to call at the trial,
23          including any reports or statements of experts made in conjunction with the
            case, including the results of physical or mental examinations, scientific
24          tests, experiments, or comparisons which the prosecutor intends to offer in
            evidence.
25

26   In the interest of justice, and to avoid the "trial by ambush" which mutual discovery provisions of

27   Penal Code section 1054 seek to do away with, defense moves this court preclude the calling of
28   such witness.
 1                                                        I.
 2
                 THE PROFFERED TESTIMONY MUST BE OF ASSISTANCE TO THE TRIER
 3                  OF FACT AND IT MUST BE RELIABLE TO BE ADMISSIBLE
 4

 5

 6          Evidence Code section 801 prescribes two specific preconditions to the admissibility of
 7
     expert opinion testimony. The testimony must be of assistance to the trier of fact and it must be
 8
     reliable.
 9

10                  A. EXPERT TESTIMONY OF CSAAS IS INHERENTLY UNRELIABLE TO
                    PROVE SEXUAL ABUSE HAS OCCURRED.
11

12
                    The appellate courts of the State of California have long applied a "three-prong"
13
     test for the admissibility scientific evidence in criminal cases. This standard was established in
14

15   People v. Kelly (1976) 17 Cal.3d 24, where the Supreme Court set forth the traditional two-part

16   standard established in Frye v. U. S. (1923) 293 F. 1013, and enunciated a third requirement,
17
     stating:
18
                           [A]dmissibility of expert testimony based upon the application of a new
19          scientific technique traditionally involved a two-step process: (1) the reliability of the
20          method must be established, usually by expert testimony, and (2) the witness furnishing
            such testimony must be properly qualified as an expert to give an opinion on the subject.
21          (Citations omitted.) Additionally, the proponent of the evidence must demonstrate that
            correct scientific procedures were used in the particular case. (See, People v. Adams
22
            Ridling (E.D. Mich. 1972) 350 F. Supp. 90, 94...
23                 (Kelly, supra, 17 Cal.3d at 30. Emphasis by court.)
                   1.
24

25          The test for determining the underlying reliability of a new scientific technique was

26   enunciated in Kelly, stating:
27                       Just when a scientific principle or discovery crosses the line between the
28          experimental and demonstrable stages is difficult to define. Somewhere in this twilight
 1          zone the evidential force of the principle must be recognized, and while courts will go a
            long way in admitting expert testimony deduced from a well-recognized scientific
 2
            principle or discovery, the thing from which the deduction is made must be sufficiently
 3          established to have gained general acceptance in the particular field in which it belongs.
            (Ibid. at 30, quoting Frye v. U.S., supra, 293 Fed. 1013 at 104. )
 4

 5                 By restricting the expert to generally accepted scientific techniques, the fact finder

 6   is protected from being misled by the "aura of infallibility" of unproven and ultimately
 7
     unscientific methods. (People v. McDonald (1984) 37 Cal.3d 351.)
 8
                   In People v. Shirley (1982) 31 Cal.3d 18, the California Supreme Court
 9

10   summarized its holding in Kelly, as follows:

11                        It is the proponent of (scientific) testimony, of course, who has the
            burden of making the necessary showing of compliance with Frye, i.e., of
12
            demonstrating by means of qualified and disinterested experts that the new technique
13          is generally accepted as reliable in the relevant scientific community. (People v.
            Shirley, supra, at 54. Emphasis added.)
14

15          A 1984 decision of the Court of Appeal held that the acceptance of the expert's

16   theory must be established by some means other than the expert's own testimony. (See,
17
     People v. Dellenger (1984) 163 Cal.App.3d 284; McDonald, supra, 37 Cal.3d at 373;
18
     Shirley, supra, at 53.)     The court held in Shirley, that the Kelly/Frye standard for
19
20   admissibility of scientific evidence not only applies to the more obvious techniques such

21   as voice print analysis and polygraph techniques, but also to scientific evidence based
22
     upon purely psychological evidence. (Shirley, supra, 31 Cal.3d at 51-53.)
23
            Twenty-seven years ago, Dr. Roland Summit, a child psychologist, in 1983 published a
24

25   paper in the Sexual Abuse Special Issue of the International Journal of Child Abuse and Neglect.

26   The article outlines the theory he termed “Child Sexual Abuse Accommodation Syndrome”
27   (CSAAS). CSAAS has been identified by Dr. Summit as having five stages: secrecy,
28
 1   helplessness, accommodation, disclosure, and retraction as behavior phases of a child. The
 2
     theory behind Dr. Summit’s opinion was that the stages in question were believed to not be
 3
     inconsistent with children who had been molested. Dr. Summit’s 1983 paper was based upon his
 4

 5   clinical observations, without any underlying scientific study. Accordingly, he carefully noted in

 6   his article that CSAAS was to be used as a treatment tool for sexually abused children…. not as a
 7
     diagnostic tool to determine whether sexual abuse occurred or not.
 8
                    Notwithstanding the foregoing, many clinicians continually base clinical judgments
 9

10   on its tenets. Purported experts on behalf of the prosecution have repeatedly misused the CSAAS

11   in the court system, drawing inferences that if there was a delayed disclosure, for example, or a
12
     change in the alleged victim’s testimony about the nature of extent of a purported molest, that
13
     was to be consistent with an inference that the child in fact had been molested.
14
            As a result of this continued misuse, in 1992 Dr. Summit published a follow-up article to his
15

16   original paper entitled “Abuse of the Child Sexual Abuse Accommodation Syndrome” in Case

17   Conference: Mental Health/Social Issues and Case Studies, Journal of Child Sexual Abuse, Volume I (4)
18   1992. (footnote 1). He wrote that he did not intend to imply that CSAAS is present in all abused
19
     children, or that it should be treated as a diagnostic of abuse; however, many professionals appear to
20
     continually ignore his statements and instead, adopt CSAAS as a template by which to diagnose sexual
21
     abuse. Summit observed that the CSAAS "is a clinical observation that has become both elevated as
22

23   gospel and denounced as dangerous pseudoscience."1 The reason for this dichotomy is that the CSAAS

24   has been misunderstood and misapplied to legal cases involving child sexual abuse.2 Some practitioners

25
     1 Summit, Abuse of the Child Sexual Abuse Accommodation Syndrome, 1(4) JOURNAL OF CHILD
26   SEXUAL ABUSE 153, 153 (1992).
27   2 Id.; See also, MacFarlane, Commentary: Summit's 'Abuse of the CSAAS ' , 1(4) JOURNAL OF CHILD
     SEXUAL ABUSE 165 (1992); Salter, Response to the 'Abuse of the Child Sexual Abuse Accommodation
28   Syndrome', 1(4) JOURNAL OF CHILD SEXUAL ABUSE 173 (1993); Myers, Expert Testimony Describing
     Psychological Syndromes, 24 PACIFIC LAW JOURNAL 1449 (1993);
 1   and prosecutors have viewed the CSAAS as a diagnostic tool that can establish sexual abuse.3 Summit
 2   also explains that:
 3
                   "[S]ome of the "distortion stems from misunderstanding of the word syndrome. In
 4          medical tradition it means a list, or pattern of otherwise unrelated factors which can alert the
            physician to the possibility of disorder. Such a pattern is not diagnostic. ... In court circles,
 5          syndrome seems to mean a diagnosis which an expert witness contrives to prove an injury.
            Syndrome evidence has become a generic term for diagnostic medical or psychological testimony
 6          which must be closely scrutinized for scientific reliability. ... Had I known the legal
 7          consequences of the word [syndrome] at the time, I might better have chosen a name like the
            Child Sexual Abuse Accommodation Pattern to avoid any pathological or diagnostic
 8          implications.”4

 9          Despite Summit’s assertion in 1983 that his CSAAS model was based on an empirical
10
     foundation, further examination has uncovered that no such empirical data was ever used.
11
     Instead, Dr. Summit’s observations were predicated solely on his clinical intuition. Only a decade
12

13   later did Dr. Summit clarify his research by stating, “it should be understood without apology

14   that the CSAAS is a clinical opinion, not a scientific instrument.” (p 197)
15
     Indeed, recent empirical research on the five CSAAS assumptions contained within the pattern
16
     reveal that only one, delayed reporting, has any scientific support as a behavioral component of
17

18   CSAAS, and that several of the assumptions within the CSAAS model are contradicted by

19   empirical research.
20
            However, delayed reporting itself is questionable as a behavior displayed by children who
21
     have been a victim of molest because procedures used to select samples of participants may draw
22

23   victims with very late disclosures and exclude those who had disclosed at a much earlier age, or

24   in the alternative, those who never told anyone may be less likely to respond to advertisements
25
     for studies. (p. 200) Furthermore, contrary to Summit’s CSAAS model which suggests that
26
27
     3 Myers, Expert Testimony in Child Sexual Abuse Litigation, 68 NEBRASKA LAW REVIEW 1 (1989).
28   4 Summit, Supra note 1 at 157.
 1   children who were victims to familial abuse would be less likely to disclose than children who
 2
     were abused by non-familial perpetrators, many studies reveal that there is no association
 3
     between disclosure rates and relationship to the perpetrator.(p. 201)
 4

 5          Dr. Stephen Ceci, a leading researcher on child witness issues, writing in the peer

 6   reviewed scientific journal, Psychology, Public Policy and Law in 2005, found that contrary to
 7
     Summit’s assumptions, child victims of abuse will not deny abuse when directly questioned. In
 8
     fact, the vast majority of children, even those who have delayed in reporting, will disclose abuse
 9

10   if questioned, even when questioned in a neutral and non-leading manner.5

11          Also of great concern is the suggestive questioning done by biased interviewers and the
12
     high probability of producing false allegations from such questioning.
13
                   The patterns of disclosure may merely be characteristic of children
14          who come to make false allegations as a result of suggestion. This would
15          explain why . . . children originally denied having been abused (because
            they were telling the truth), why they eventually disclosed (because they
16          were pressured into making allegations), and why they recanted (they
            wanted to restate the truth). (p. 213)
17

18
            Notwithstanding the fact that several studies have failed to support the view that children
19
20   who are sexually abused commonly deny such abuse and recant disclosures, researchers using the

21   CSAAS model continue to employ “suggestive questioning strategies.” (Id.) Even when
22
     proponents of the CSAAS model themselves find low rates of denials or recantations, they still
23
     5 Ceci, Stephen, et al DISCLOSURE OF CHILD SEXUAL ABUSE: What Does the Research Tell Us About
24   the Ways That Children Tell? PSYCHOLOGY, PUBLIC POLICY, AND LAW 2005, Vol. 11, No. 1, 194–226 at
     220.
25          The research on denial and recantation shows that when directly questioned
            in a formal setting, only a small percentage of abused children demonstrate these
26          behaviors. In terms of Daubert’s concern with error rate, our review of the
            literature revealed that there was high variability in specific behaviors across
27          studies and that in some cases, the reported rates were inaccurate, reflecting
            methodological flaws of the study. In summary, there is no convincing evidence
28          that CSAAS testimony on denial or recantation provides relevant or reliable
            assistance to the fact finder to assess allegations of CSA.
 1   maintain that the results are consistent with the popular view by concluding that such results
 2
     reveal that disclosing sexual abuse is more an “ongoing process than a single event” without
 3
     specifically identifying how repeated low denials or recantations led to that conclusion. (p. 219).
 4

 5          [Sorenson and Snow (1991), a frequently cited study supporting the CSAAS
            model including the notion that sexually abused children deny and recant
 6          was carefully reviewed by Dr. Ceci (footnote 5). In this particular study 116
            cases of confirmed CSA were selected from a larger sample of 663 children.
 7
            Sorenson and Snow reported that 72% of children denied abuse when first
 8          questioned by either parent or an investigative interviewer; only 7% of these
            deniers immediately moved into an “active disclosure” stage, which
 9          involved detailed, coherent, first-person descriptions of the abuse. 78%
10          moved into a “tentative disclosure” stage, with partial, vague, or vacillating
            disclosures of sexual abuse. Eventually, 96% of children made an active
11          disclosure. The authors, however, did not state the criteria by which they
            selected the 116 cases. Second, the children in this study were selected from
12
            the private psychological practice of the two authors and most had been in
13          therapy with Dr. Snow. Sorenson and Snow did not note how long the
            children were in therapy or why type of therapeutic methods were used to
14          elicit these eventual disclosures, recantations, and re-disclosures. (For
15          example, it is unclear how forensically based these therapeutic interviews
            were, compared with, say, the use of play therapy, empowerment
16          enactments with dolls and props, visualization exercises, or other techniques
            that have been shown to reduce a child’s report accuracy.)
17
                    “Dr. Snow herself admitted that she used interrogation procedures
18          that were not intended to sift truth from error. That she starts an
            interrogation with the assumption that abuse occurred, she then proceeds to
19          prove that point stating “[she] didn’t believe any of those kids when they
20          told [her the sexual abuse] didn’t happen.”
                    This raises the issue that the reported patterns of disclosure were
21          consequences of the specific therapeutic practices (of the authors) rather
            than of reflections of the manner in which children disclose abuse under
22
            formal interviewing conditions. Furthermore, this raises the hypothesis that
23          many of the children in their sample may not have been abused. In effect,
            the results of the study are not interpretable and as stated above, the patterns
24          of disclosure may merely be characteristic of children who come to make
25          false allegations as a result of suggestion. (212, 213). ]

26
            Expert testimony on child sexual abuse accommodation syndrome is unreliable as a matter
27

28   of law to prove the molest occurred. In People v. Bledsoe (1984) 36 Cal.3d 236, the Supreme
 1   Court applied Kelly/Frye to exclude expert psychological testimony based upon the "rape trauma
 2
     syndrome." The court held that expert testimony that the complaining witness was suffering
 3
     from rape trauma syndrome was inadmissible to show a rape had actually occurred because the
 4

 5   syndrome was developed as a "therapeutic tool" and not to determine the "truth" or "accuracy" of

 6   a particular past event. (Id. at 249.)
 7
            Following the decision in Bledsoe, numerous Court of Appeal decisions have held that
 8
     Kelly/Frye similarly precludes an expert from testifying, based on the Child Sexual Abuse
 9

10   Accommodation Syndrome (CSAAS), that a particular victim's report of alleged abuse is credible

11   because the victim manifests certain defined characteristics which are generally exhibited by
12
     abused children. (See, In re Sara M. (1987) 194 Cal.App.3d 585, 593; Seering v. Dept. of Social
13
     Services (1987) 194 Cal.App.3d 298, 310-311, 313; People v. Roscoe (1985) 168 Cal.App.3d
14

15   1093, 1099; People v. Willoughby (1985) 164 Cal.App.3d 1054, 1069.

16          In People v. Bowker (1988) 203 Cal.App.3d 385, the court stated:
17
                          "Fundamentally, Bledsoe must be read to reject the use of
18                 CSAAS evidence as a predictor of child abuse. It is one thing to say
                   that child abuse victims often exhibit a certain characteristic or that a
19                 particular behavior is not inconsistent with a child having been
20                 molested. It is quite another to conclude that where a child meets a
                   certain criteria, we can predict with a reasonable degree of certainty
21                 that he or she has been abused. The former may be appropriate in
                   some circumstances; the latter -- given the current state of scientific
22
                   knowledge -- clearly is not." (Id. at 393. Emphasis added.)
23
            The Bowker court further stated that general testimony describing the components of a
24

25   syndrome in such a way as to apply the syndrome to the facts of the case and conclude the child

26   was sexually abused poses the same dangers which the Bledsoe court sought to remedy. (Id. at
27   393.) The court went further, stating that there may be an even greater danger where the expert
28
 1   gives general testimony to the jury because unlike the expert, the jury may not be aware that
 2
     although children who have been molested may exhibit certain behaviors, these behaviors may
 3
     also be found in a significant number of children who have not been molested. (Ibid.)
 4

 5          Most recently, an appeals court citing Bowker, held that expert testimony from which it

 6   may be inferred that the complainant manifests certain defined characteristics, which are
 7
     generally exhibited by abused children, is not admissible and may not be used by to prove that
 8
     the complainant was in fact abused. (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1383.) In
 9

10   People v. Sanchez (1989) 208 Cal.App.3d 721, the Fourth District stated:

11                        ". . . courts determined the Kelly/Frye test is applicable to
                   testimony of an expert on Child Sexual Abuse Accommodation
12
                   Syndrome (CSAAS) even where it is not used to rebut defense
13                 allegations of incredibility but instead matches the description of
                   other witnesses about the victim's behavior and statements thus
14                 demonstrating the existence of the symptoms of the syndrome in this
15                 particular victim." (Id. at 734, citing In re Sara M. (1987) 194
                   Cal.App.3d at 591-592; Seering v. Dept. of Social Services (1987)
16                 194 Cal.App.3d at 309-311, 313. Emphasis added.)
17

18          In most cases, when courts have permitted expert testimony concerning CSAAS, they

19   have not carefully scrutinized its scientific basis. Instead, they have relied on the unsubstantiated
20
     assurances of the proffering expert, discussed supra, some who appear to manipulate their
21
     findings to fit the CSAAS model. Such reliance by the courts will continually result in admitting
22

23   incorrect opinions as a substitution for knowledge reserved for the trier of fact.

24

25                                  II
     THE PROBATIVE VALUE OF THIS EVIDENCE IS GREATLY OUTWEIGHED BY
26     THE PROBABILITY THAT ITS ADMISSION WILL NECESSITATE UNDUE
     CONSUMPTION OF TIME, WILL CREATE SUBSTANTIAL UNDUE PREJUDICE,
27
           WILL CONFUSE THE ISSUES AND WILL MISLEAD THE JURY
28
 1          California Evidence Code § 352 allows this court to exclude evidence when its probative
 2
     value is outweighed by the probability that its admission will necessitate undue consumption of
 3
     time, or if its admission will create substantial danger of undue prejudice, confusion of the issues,
 4

 5   or if it might mislead the jury. Entirely aside from grounds stated in the arguments below for the

 6   exclusion of this evidence, this court should exercise its discretion under Evidence Code § 352 to
 7
     exclude this evidence.
 8

 9

10                        A. LIMITS ON EVIDENCE TO DISPEL MYTHS

11          This is not a case in which any trier of fact needs to be “disabused” of any “myth”. In the
12
     case of People v. Bowker (1988) 203 Cal.App.3d 385, 394, the prosecutor argued that Bledsoe
13
     only limited the prosecution to introducing evidence of victims as a class and did not permit them
14

15   to opine that the minor was in fact molested. The court found great danger in this approach

16   because it allowed the jury to apply the syndrome to the facts of the case and conclude that the
17
     child was sexually molested when the juror's education and training may not have sensitized
18
     them to the dangers of drawing unjustified and unscientific predictive conclusions.
19
20          The court in People v. Bowker (1988) 203 Cal.App.3d 385, 395-396, held that the expert's

21   testimony was tailored to fit the children in the case then before the court, asked for sympathy,
22
     and asked that the children be believed. The alleged myths were designed to create a framework
23
     on which the jury could predict molestation occurred.
24

25          The court ruled that this evidence should have been excluded, stating that: ". . . at a

26   minimum the evidence must be targeted to a specific `myth' or `misconception' suggested by the
27   evidence." The court went on to hold:
28
                                                     11
 1                In the typical criminal case, however, it is the People's burden to
                  identify the myth or misconception the evidence is designed to rebut.
 2
                  Where there is no danger of jury confusion, there is simply no need
 3                for the expert testimony." People v. Bowker, supra, pp. 394-395.
 4          Bowker prescribed two requirements for the admissibility of CSAAS evidence. First, the
 5
     expert's testimony must be narrowly tailored to the purpose for which it is admissible, i.e., the
 6
     prosecution must identify the commonly held "myth" or "misconception" the evidence is
 7

 8   designed to rebut. Second, the testimony must be limited to exposing the misconception by
 9   explaining why such behavior may not be inconsistent with a child having been abused.
10
            In considering whether CSAAS evidence may even be received, the pivotal preliminary
11
     fact is whether CSAAS testimony regarding delay in disclosure is probative at all. Having had
12

13   twenty-seven years pass since Dr. Summit’s article based upon the unsupported assumption that

14   jurors must be disabused of a “common myth”, today any true myth would be that jurors are
15
     inane when, in fact, the opposite holds true:
16
            “. . . [E]vidence suggests that knowledge about delay of disclosure is within
17
            the ken of the jury, perhaps therefore obviating the need for expert evidence
18          on the issue of delay (p. 220). Gray surveyed a sample of adults from the
            general public and a sample of jurors regarding whether they agreed that
19          delayed disclosure was common among abused children from 1 (strongly
20          agree that delay is common) to 6 (strongly disagree) . They found that the
            general public had a mean rating of 2.3 and jurors had a mean rating of 1.7,
21          suggesting that lay people tend to believe that delayed disclosure is
            common. Presently, there is insufficient evidence to conclude whether
22
            expert testimony on delayed disclosure meets the Daubert standard of
23          possessing probative value for jurors.” (Id.)

24

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                                                     12
 1                                                   IV
 2
                                          JURY INSTRUCTION
 3
            When testimony is introduced to dispel a myth the jury must be instructed not to use that
 4

 5   evidence to predict a molest has been committed. People v. Sanchez (1989) 208 Cal.App.3d at

 6   735, citing Bowker, supra, 203 Cal.App.3d 385 at 394.) The Sanchez court stated:
 7
                            ". . . [I]f requested, the jury must be admonished "that the
 8                  expert's testimony is not intended and should not be used to
                    determine whether the victim's molestation claim is true...The
 9                  evidence is admissible solely for the purpose of showing that the
10                  victim's reactions as demonstrated by the evidence are not
                    inconsistent with his or her having been abused. (Ibid., citing People
11                  v. Bothuel" (1988) 205 Cal.App.3d 581, 587-588. Emphasis by
                    court.)
12

13
     See also In re Sara M., supra, 194 Cal.App.3d at p. 593. The evidence is admissible solely for
14

15   the purpose of showing that the victim's reactions as demonstrated by the evidence are not

16   inconsistent with having been molested:
17
            [T]he jury must be instructed simply and directly that the expert's testimony
18          is not intended and should not be used to determine whether the victim's
            molestation claims is true. The jurors must understand that CSAAS research
19          approaches the issue from a perspective opposite to that of the jury. CSAAS
20          assumes a molestation has occurred and seeks to describe and explain
            common reactions of children to the experience.
21
     It is further requested that if this court permits the prosecution to introduce expert testimony to
22

23   dispel alleged myths, the court order that the testimony to dispel a myth be limited to victims as a

24   class. That distinction has been characterized by the Court of Appeal as “class oriented” as
25
     opposed to an “individually focused” construction (People v. Erickson (1997) 57 Cal.App.4th
26
     1391, 1401).
27

28          “. . . thus, such syndrome evidence has been admitted solely to disabuse
                                                     13
 1            jurors of common-sense misconceptions about the behavior of persons in
              the effected groups, such as rape victims and abused children, and not to
 2
              prove a fact in issue. (People v. Erickson, supra, 57 Cal.App.4th 1391,
 3            1401).
 4

 5

 6

 7

 8
                                             CONCLUSION
 9

10            The prosecution has not given appropriate notice under the provisions of the discovery

11   statutes for the proffered evidence. The prejudice of such evidence clearly outweighs any limited
12
     probative value it may have. There are no circumstances present which fit within the ambit of
13
     cases permitting limited introduction of CSAAS.        Recent, reliable scientifically empirical
14

15   research indicates that much of the purported basis for the reliability of CSAAS is simply

16   incorrect. To allow the jury to hear about the so called “syndrome” which has been repudiated
17
     by its own author for this purpose is to invite error and juror confusion. An argument that such
18
     objections go to the weight of the evidence rather than admissibility is not well taken where the
19
20   weight of the evidence is so slight as to make it irrelevant for the purpose for which it is

21   ostensibly offered. As stated in Bowker: "Where there is no danger of jury confusion, there is
22
     simply no need for the expert testimony."
23

24   Dated:
25                                                   Respectfully submitted,
                                                     STEVEN J. CARROLL
26                                                   Public Defender
27

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                                                    14
 1   by:______________________
          F. MICHAEL GARCIA
 2
          Deputy Public Defender
 3
          Attorneys for Defendant
 4        JOHN DOE
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