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Tape recorder is used in prosecution


A Nassau Criminal Lawyer said that, during the summer of 1984 a young woman, 19 years of age, was subjected to an evening of sodomy and attempted rape by an individual whom she knew from the neighborhood, and whom she later, although not immediately, identified as the defendant. At trial, the court permitted the prosecution to present expert testimony on the psychological phenomenon known as “rape trauma syndrome” as an explanation for the victim’s failure to immediately identify her assailant. The defendant contends that this was error.

A Nassau Sex Crimes Lawyer said at approximately 9:00 P.M. on the evening of July 29, 1984, the victim, a 19-year-old resident of Southold, New York, received two telephone calls from a man claiming to be a friend of hers by the name of Paul. The caller told her that he was very upset and that he needed to talk to her, but that he couldn’t speak to her over the telephone. The victim borrowed her mother’s car and proceeded to meet him at a nearby location. A few minutes after arriving at the agreed-upon spot, a young man approached her parked vehicle. Believing that this man was her friend, she released the locks and allowed him to enter the car. She immediately realized that the man was not her friend, but rather the defendant, a young man she had known from the neighborhood for years and whom she had seen the previous night. She told him that she knew that he was her friend, whereupon the defendant ordered her at gun point to drive to Clark’s Beach, a secluded location, where, at gun point, he sodomized her twice and attempted to rape her. This sexual assault continued for about 45 minutes, after which the defendant forced her to drive him back to the spot where he had entered her vehicle.

A Nassau Sex Crime Lawyer said that, the victim immediately returned home between 11:00 and 11:30 P.M., woke her mother up and told her that she had been sexually attacked and that she was scared she was going to be killed. The victim’s mother telephoned the police who arrived 10 minutes later. While waiting for the police to arrive, the victim, who was hysterical and sobbing, washed her face and drank some soda. Her hair was matted, her sweater on inside out, and she appeared to be very upset. Nevertheless, she gave a description of her assailant to the two police officers, speaking rapidly and jumping up and down as she did so. The Officer drove the victim and her mother to the Southold Police Station, tape recording their conversation as they proceeded. The victim advised him of the two telephone calls she had received earlier that evening while they drove around and attempted to retrace the route taken to Clark’s Beach with the defendant, the officer jotting down license plate numbers as he drove along.

A Nassau Rape Lawyer said that, also, subsequent to that first trial, it was discovered for the first time that the Officer had tape recorded his conversation with the victim en route to the police station on the evening of July 29, 1984, but that the tape recording had been destroyed. As a result of this revelation, the defendant moved to dismiss the indictment on the ground that Brady material had been destroyed. After a hearing, the court found that dismissal of the indictment was not warranted. Although the court found that a tape recording had indeed been made and destroyed, the court determined that it could not ascertain whether the destruction was intentional or inadvertent. The court further found that, in any event, there was no evidence to suggest that there was anything in the recording which went to the critical question of whether the victim could identify the perpetrator and thus it contained nothing that would assist the defendant in his examination of the People’s witnesses. The court thereupon denied the defendant’s motion to dismiss the indictment as well as the defendant’s motions to disqualify the Suffolk County District Attorney and to appoint a Special Prosecutor. After a second trial, the jury rendered a verdict finding the defendant guilty of sodomy in the first degree (two counts) and attempted rape in the first degree.

The issue in this case is whether the trial court erred in permitting the prosecution to present expert testimony on the psychological phenomenon known as “rape trauma syndrome” as an explanation for the victim’s failure to immediately identify her assailant.

The court in deciding the case said that, during the course of the second trial, the prosecution presented the testimony of an expert witness with reference to the psychological phenomenon known as rape trauma syndrome. The expert witness, a teacher at Herbert Lehman College of the City University of New York, had bachelors and master’s degrees in psychology, extensive experience in counseling sexual assault victims, and previous experience as an expert witness in forcible rape cases. She testified that the syndrome was first described in the American Journal of Psychiatry by in 1974. Since that time, a very large amount of data and research has been collected, and the violence syndrome is recognized as a type of posttraumatic stress disorder, which is a diagnostic category that is accepted within the professional community.

The expert witness explained rape trauma syndrome as a two-phase reaction that the victim undergoes after having experienced a forcible rape or attempted forcible rape. The first phase, or the acute phase, occurs immediately after the attack and may last for a few weeks thereafter. The second phase, or the reorganization phase, is that period of time during which the victim generally is recovering from the initial shock and is attempting to carry on with her normal life.

There are three patterns of behavior which are generally manifested by forcible rape victims in the acute phase following the attack. These three patterns of behavior, or reaction, are known as (1) the behavioral stage, (2) the symptomatic stage, and (3) the psychological stage. In the behavioral stage, the victim’s behavior may either be “expressed”–i.e., characterized by hysteria, crying, shaking and weeping,–or “controlled”–i.e., characterized by calmness and collectedness. The symptomatic stage produces physical reactions such as great pain, burning and itching during urination. Headaches, nervous tension, tight stomach and jumpiness are also noted in this stage. Finally, the psychological stage is characterized by specific fears which are focused on the offender coming back and hurting the victim or the victim’s family if the incident or offender is reported.

The expert’s testimony was limited to the acute phase. She also noted that the time immediately after a person has been through a life-threatening situation may not be the best time to collect information since the victim’s thinking may be disorganized and the victim’s anxiety may interfere with her recall abilities.

The Court of Appeals summarized the pertinent principles of law regarding the admissibility of opinion evidence as follows: “While controversy about opinion testimony going to the ultimate questions has brewed elsewhere, in this State the test has been different. For testimony regarding both the ultimate questions and those of lesser significance, admissibility turns on whether, given the nature of the subject, ‘the facts cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment thereon, and no better evidence than such opinions is attainable.’ “The admissibility and bounds of expert testimony are addressed primarily to the sound discretion of the trial court, and review beyond the intermediate appellate level is generally unwarranted. It is for the trial court in the first instance to determine when jurors are able to draw conclusions from the evidence based on their day-to-day experience, their common observation and their knowledge, and when they would be benefited by the specialized knowledge of an expert witness”.

The admission of expert opinion testimony is proper “when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror”. A defendant is always entitled to impeach the prosecution’s witness or to present experts of his own to offer a different opinion. In fact, in this case, the trial judge explicitly advised defense counsel that he was free to cross-examine the witness or to present his own experts.

In this case of apparent first impression, we hold that testimony with respect to the psychological phenomenon of rape trauma syndrome by a properly qualified expert is admissible in a rape case even where the victim is not a minor and the defense is not one of consent. Under the circumstances of this case, such evidence was relevant, a proper subject of expert opinion and not unduly prejudicial, and did not constitute an improper bolstering of the victim’s credibility.

The court finds no error in the court’s denial of the defendant’s motions to recuse the Justice and to disqualify the Suffolk County District Attorney. A recusal motion is addressed to the discretion of the trial court, and “the absence of a violation of express statutory provisions, bias or prejudice or unworthy motive on the part of the Judge, unconnected with an interest in the controversy, will not be a cause for disqualification, unless shown to affect the result”.

In addition, the courts should not remove a public prosecutor absent a showing of actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence. The defendant here failed to demonstrate actual prejudice or so substantial a risk thereof as would warrant disqualification of the District Attorney. The District Attorney’s own internal investigation regarding the circumstances surrounding the destruction of the tape recording did not, standing alone, require the disqualification of the District Attorney.

Nor did the court err in denying the defendant’s motion to dismiss the indictment based on the destruction of the tape recording. Whether the prosecution should be sanctioned because of the destruction of potential Brady material turns on “‘the degree of negligence or bad faith the importance of the evidence lost, and the evidence of guilt adduced at trial. Furthermore, “fashioning an ‘appropriate’ response to the prosecution’s wrongful failure to preserve evidence the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society drastic remedy of dismissal should not be invoked where less severe measures can rectify the harm done by the loss of evidence”.

Under these circumstances, dismissal of the indictment was not warranted. While it is not clear whether the People were at all culpable in bringing about the destruction of the recording, the resulting prejudice was minimal. To the extent that this tape recording might have been pertinent to the defendant’s defense, it was cumulative of the tape recording of the victim and the detective subsequent conversation wherein the victim continued to assert an inability to identify her assailant, as well as the victim’s own admission at trial that at the time when the subject recording was made she expressed an inability to identify the perpetrator. Furthermore, the proof of defendant’s guilt was overwhelming. Had the tape recording been available and turned over to the defendant, it is most unlikely that a different verdict would have resulted.

Accordingly, the court held that the of the County Court, Suffolk County, rendered June 2, 1987, is modified by deleting the imposition of three $100 surcharges and substituting therefor the imposition of one $100 surcharge; as so modified, the judgment is affirmed.

If you are a victim of rape or other forms of sex crime, seek the representation of a Nassau Criminal Attorney and/or Nassau Rape Attorney at Stephen Bilkis and Associates. Call us.

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