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Rape Trauma Syndrome Discussed by Appellate Court


The Facts:

On 10 September 1988, the victim, a married college professor, was driving from her home to a family wedding when, at about 7:30 P.M., she was stopped on the Northway by defendant, then a uniformed State Trooper. At defendant’s request, she gave him her license and registration. Defendant told her she was driving erratically and had failed to signal a lane change properly. He instructed her to leave her car, walk a straight line, and then enter the passenger seat of the patrol car, where he told her she could be in serious trouble, including DWI charges, and would have to blow in his face as a sobriety test. While she was doing this a second time, at defendant’s behest, he put his mouth on hers, began fondling her, and told her he was going to make it or do it with her, but first had to go to State Police barracks for a condom. The victim followed defendant to the barracks in her own car, though he retained her license and registration. She testified that she remained terrified throughout this entire period believing that, with defendant armed, any escape attempt in an unfamiliar area would be futile and even fatal.

At the barracks, defendant placed the victim in the police car, instructing her to remain there while he went inside. She testified that she was still frozen with fear, not knowing whether defendant had friends in the barracks who knew what he was doing. On his return, they drove off while the victim, believing it vital to her safety, engaged defendant in conversation. When they reached a secluded area, defendant, still armed, sexually attacked her. He thereafter returned with her to the barracks and allowed her to proceed to her destination, where she explained to the wedding guests that she was late because of a car trouble. On her return home, after being unable to eat or sleep for two days, and overcoming her fear that defendant would harm her, the victim contacted a local rape crisis center, which ultimately led to a report to the State Police, an investigation, and defendant’s arrest.

As a result, defendant was convicted of rape, sodomy, sexual abuse (sex crimes), coercion, false imprisonment and official misconduct.

Defendant appeals said decision and alleged two errors: the first relating to a pretrial ruling that would have permitted the People to cross-examine defendant regarding two other pending charges and the second relating to expert testimony regarding rape trauma syndrome.

A divided Appellate Division overturned defendant’s conviction on the first issue and a Justice of that court granted leave to appeal.

The Issue:

Whether or not the trial court erred in its pretrial ruling that would have allowed the People to cross-examine defendant (if he testified in his own defense) regarding two other criminal charges that were pending against him.

The Ruling:

The court affirms the Appellate Division’s ruling.

On the issue of the Pretrial Ruling Regarding Other Pending Charges:

Defendant was indicted for official misconduct and criminal impersonation while awaiting trial. Those later charges arose out of defendant’s efforts, after he had been suspended from the force, to obtain the victim’s records from the Department of Motor Vehicles (DMV) by representing that he was a State Trooper investigating a crime in which she was a defendant.

Before trial on the rape charges commenced, the People advised defendant that, if he testified, they would cross-examine him about specified prior criminal and immoral acts affecting his credibility. On defendant’s pretrial motion addressed to the permissible scope of cross-examination regarding those acts, the trial court precluded the People’s cross-examination regarding complaints by other women that defendant, as a State Trooper, had for no reason pulled them over and engaged in inappropriate behavior. Additionally, the court limited the People’s inquiry into two areas involving claims of assault by defendant’s wife and mistress. As to the DMV incident, however, the trial court concluded that if defendant testified, he would be deemed to have waived his privilege against self-incrimination and exposed to cross-examination. Ultimately, defendant would not testify.

The Appellate Division determined that the trial court’s ruling was erroneous, reversed the conviction, and ordered a new trial. The court observed that permitting cross-examination of a defendant regarding other pending unrelated charges, for credibility purposes only, unduly compromised defendant’s right to testify in the case on trial and jeopardized the corresponding right not to incriminate himself as to the other charges. The Appellate Division further concluded that the People’s attempt to invest the evidence with independent relevance aside from credibility did not bear up under scrutiny. The herein court agrees with both conclusions.

Defendants who take the stand, like other witnesses, place their credibility in issue, and, thus, may be cross-examined on past criminal or immoral acts affecting credibility. Recognizing the importance of a defendant’s informed choice whether or not to testify, the court held that a defendant is entitled to a pretrial ruling on the scope of permissible cross-examination as to such prior misconduct. A ruling, which balances the probative value of the evidence against the risk of unfair prejudice, is largely, if not completely, a discretionary determination for the trial courts and fact-reviewing intermediate appellate courts, and generally no further review by the Court is warranted. While per se rules in this area are eschewed, where defendant’s misconduct is another pending criminal charge, a more categorical approach is appropriate because of the constitutional protections against self-incrimination. Cross-examination on an unrelated pending criminal charge, solely for the purpose of impeaching defendant’s credibility, is impermissible. As the court held in one of its rulings: Allowing a defendant-witness’ credibility to be assailed through the use of cross-examination concerning an unrelated pending criminal charge unduly compromises the defendant’s right to testify with respect to the case on trial, while simultaneously jeopardizing the correspondingly important right not to incriminate oneself as to the pending matter.

Here, at its “Sandoval” hearing, the People urged that cross-examination regarding defendant’s alleged unlawful attempt to obtain complainant’s driving records was appropriate because it went directly to the issue of defendant’s credibility. The court unambiguously held in a similar case that a defendant-witness does not generally and automatically waive the privilege against self-incrimination as to pending collateral criminal charges. The authority of the previous ruling decided nearly two years before trial, the People should therefore have been denied permission to cross-examine defendant on those charges.

Moreover, the Appellate Division majority also correctly rejected the People’s alternative claim that the DMV incident was related to the rape charges, as evincing a consciousness of guilt. The court need not reach the question whether consciousness of guilt could ever be a sufficient nexus to permit cross-examination under the applicable prior ruling because the pending charges do not evidence defendant’s consciousness of guilt.

Certain post crime conduct is indicative of a consciousness of guilt, and hence of guilt itself. In another case involving evidence of flight noted that such evidence betrayed an awareness of guilt. Consciousness of guilt evidence has consistently been viewed as weak because the connection between the conduct and a guilty mind often is tenuous. Even innocent persons, fearing wrongful conviction, may flee or lie to extricate themselves from situations that look damning. However, the issue here is not sufficiency but admissibility of evidence. Even equivocal consciousness-of-guilt evidence may be admissible so long as it is relevant, meaning, that it has a tendency to establish the fact sought to be proved; that defendant was aware of guilt.

The court agrees with the Appellate Division that defendant’s conduct at the DMV did not reach the threshold for admissibility as consciousness of guilt. The People contend that defendant’s attempt to secure the victim’s driving records was a natural step in an effort to harass or intimidate her. This argument overlooks the absence of any evidence, the crucial “next step”, that defendant actually intended to coerce the witness. Such a conclusion would not be a reasonable inference from the attempt to obtain driving records but would be pure speculation. Indeed, it is a common part of the defense process to investigate the background of adverse witnesses for potential impeachment material. Such efforts alone would generally not constitute a consciousness of guilt. However, the People claim that the method defendant used to obtain the information, misrepresentations and false statements, is analogous to the false statements and alibis that have been admitted as consciousness of guilt. Defendant’s misrepresentations to the DMV clerk that he was an active State Trooper investigating the victim are not the sort of false statements about a crime that would be admissible as consciousness of guilt. No valid inference could be drawn from the deceptions that defendant was manifesting an awareness of guilt on the rape charges. The court fails to see the asserted analogy between defendant’s conduct and tampering with or fabrication of evidence.

Henceforth, the Appellate Division is correct in its finding that the trial court committed reversible error necessitating a new trial in its pretrial ruling.

On the issue of Rape Trauma Syndrome Expert Testimony:

The People’s final witness on its case-in-chief was a doctor, an expert on rape trauma syndrome.

Here, the Appellate Division found no error in this examination, concluding that the purpose of the testimony was a permissible one: to explain behavior on the part of the victim that might seem unusual to a lay jury unfamiliar with the patterns of response exhibited by rape victims.

The court notes the herein case is somewhat different than that ruling relied upon by the Appellate Division and certain arguments defendant advances about that difference may have relevance to the retrial.

In the instant case, a large part of the expert evidence concerned the victim’s behavior as the sexual attack unfolded, rather than after it. The expert opined that the hypothetical woman, and women generally, when threatened by an armed authority figure would submit, without resistance, to the sexual attack described, as a means of self-preservation. Thus, defendant correctly notes that the first two hypotheticals were not concerned with the rape trauma syndrome evidence as described, which related to post-rape behavior. While this portion of the doctor’s testimony is not precisely the type of testimony discussed in the applied court ruling does not mean that such evidence would necessarily be inadmissible. It is sufficiently distinct from the kind of evidence the court has considered in the applied court ruling, however, the court’s holding in that case does not govern its admissibility here. Assuming such expert evidence is again offered, and the objection lodged, the court should determine at retrial whether the expert’s opinion has the requisite scientific foundation. Even where that foundation is established, expert evidence is not in all instances admissible. While proper to help clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror, expert opinion is inadmissible when introduced merely to prove that a sexual assault took place, or bolster a witness’ credibility. In such instances, the potential value of the evidence is outweighed by the possibility of undue prejudice to the defendant or interference with the province of the jury.

Therefore, should similar expert testimony be proffered at a retrial of the herein case, and objection voiced, the trial court would be called upon to make two determinations not previously made: first, whether the evidence has the requisite scientific basis, and second, whether its potential value outweighs the possibility of undue prejudice to defendant or interference with the jury’s province to determine credibility. In that these determinations are fact-intensive, and the outcome may vary with the scope and form of actual questioning, at this juncture the court merely identifies the issues, which, contrary to the observation of the Appellate Division, were not addressed in the applied court ruling.

In conclusion, defendant’s conviction is reversed and a new trial is proper.

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