State v. Gersin

[This opinion has been published in Ohio Official Reports at 

76 Ohio St.3d 491

.]




             THE STATE OF OHIO, APPELLANT, v. GERSIN, APPELLEE.
                      [Cite as State v. Gersin, 

1996-Ohio-114

.]
Criminal law—Sexual abuse of a child—Evidence—Expert testimony—Defendant
        in child sexual abuse case may present testimony as to the proper protocol
        for interviewing child victims regarding their abuse.
A defendant in a child sexual abuse case may present testimony as to the proper
        protocol for interviewing child victims regarding their abuse.
     (No. 94-2739—Submitted January 24, 1996—Decided August 28, 1996.)
        APPEAL from the Court of Appeals for Lake County, No. 93-L-025.
                                  __________________
        {¶ 1} Appellee, Gary Gersin Sr., was convicted of four counts of gross
sexual imposition for acts allegedly perpetrated against his daughter, Theresa.
Gersin’s contact with Theresa came to light while Theresa was in the care of her
half-brother, Gary Gersin, Jr., who had custody of Gersin’s three youngest children.
An incident occurred between Gersin and Theresa when Gersin went to Gary Jr.’s
home to pick up Theresa for unsupervised visitation.
        {¶ 2} Theresa told Gary, Jr. about the incident. Gary, Jr. and his wife,
Michelle, told Gersin that he could not take Theresa that day, and contacted the
Lake County Department of Human Services. A social worker and a police officer
came to the house to talk to Theresa, and they suggested that visitation be
terminated temporarily. Gary, Jr. and Michelle were instructed to go to the police
station with Theresa to fill out a report.
        {¶ 3} Gary, Jr. and Michelle took Theresa to the police station the next day,
June 25, 1992. Theresa was introduced to the different officers and given a toy
badge. Deputy Tim DiPadova eventually interviewed Theresa, but terminated that
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interview when she began to get sick. A doctor diagnosed Theresa as suffering
from an anxiety reaction.
       {¶ 4} In August, after Gary, Jr. decided to go forward with a complaint
against his father, Peggy Taylor, the Executive Director of the Lake County Sexual
Assault Center, interviewed Theresa in two separate one-hour interviews.
       {¶ 5} At trial, Theresa, Deputy DiPadova, and Taylor all testified for the
prosecution. Gersin attempted to introduce testimony from Dr. Richard Klein.
Gersin’s counsel explained to the trial judge the purpose of Klein’s testimony in a
bench conference:
       “I had asked him to come and testify as to the proper approach to use with
children whenever you’re interviewing them for sexual abuse purposes. Basically,
laying out what the proper procedure is, that in a custody area one must be extra
careful because of increase in the possibility of false accusations; that there was
[sic] some things that were not done that should have been done in order to evaluate
this situation under certain conditions.
       “* * *
       “* * * Let me just add for the record that among the other things that I had
discussed from talking to, not only this psychologist but other psychologists in
preparing for this case, that part of the problem with children in this age is that
when the proper interview process is not followed, or the children are being
influenced, or even if you want to use the word brainwashed, the problem is they
reach the point where they actually believe something happened when it didn’t, but
that’s because of their perception of it. That’s the information the adults were
giving them.”
       {¶ 6} The trial court did not allow Klein to testify, based on this court’s
decision in State v. Boston (1989), 

46 Ohio St.3d 108

, 

545 N.E.2d 1220

, which held
that an expert may not testify as to the veracity of a child witness. The court of
appeals reversed that ruling, finding the proposed testimony distinguishable from




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                               January Term, 1996




that sought to be introduced in Boston. The court of appeals found that the
testimony concerned not Theresa’s veracity, but rather the method and technique
used by prosecution witnesses to elicit Theresa’s story.
       {¶ 7} The matter is now before this court upon the allowance of a
discretionary appeal.
                              __________________
       Charles E. Coulson, Lake County Prosecuting Attorney, Ariana E.
Tarighati, Michael D. Murray and Julie E. Mitrovich, Assistant Prosecuting
Attorneys, for appellant.
       Talikka, Ischie, Talikka & Wilson and Kristi S. Talikka, for appellee.
       David H. Bodiker, Ohio Public Defender, and Barbara A. Farnbacher,
Assistant Public Defender, urging affirmance for amicus curiae, Ohio Public
Defender Commission.
       E. Charles Bates, urging affirmance for amicus curiae, Ohio Association of
Criminal Defense Lawyers.
                              __________________
       PFEIFER, J.
       {¶ 8} It is tragic that child sexual abuse cases are so prevalent that a body
of law has been created which addresses their unique issues. Today, we are faced
with yet another such case, and hold that a defendant in a child sexual abuse case
may present testimony as to the proper protocol for interviewing child victims
regarding their abuse. Rather than infringing upon the fact finder’s role, such
testimony assists the trier of fact, and therefore is consistent with this court’s
holding in State v. Boston (1989), 

46 Ohio St.3d 108

, 

545 N.E.2d 1220

.
       {¶ 9} In Boston, this court held that “[a]n expert may not testify as to the
expert’s opinion of the veracity of the statements of a child declarant.” 

Id.

 at
syllabus. To allow an expert to so testify, this court held, “‘infringe[s] upon the
role of the fact finder, who is charged with making determinations of veracity and




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credibility.’” 

Id. at 128-129

, 

545 N.E.2d at 1240

. This court emphasized that “‘[i]n
our system of justice, it is the fact finder, not the so-called expert or lay witnesses,
who bears the burden of assessing the credibility and veracity of witnesses.’” 

Id. at 129

, 

545 N.E.2d at 1240

. We do not retreat from those statements in this case.
        {¶ 10} Boston also stands for the proposition that expert testimony can be
helpful to a jury in a child sexual abuse case. In Boston, this court determined that
expert testimony on the ultimate issue of whether sexual abuse has occurred in a
particular case is helpful to jurors and is therefore admissible pursuant to Evid. R.
702 and 704. This court reasoned that “[m]ost jurors would not be aware, in their
everyday experiences, of how sexually abused children might respond to abuse.
Incest is prohibited in all or almost all cultures and the common experience of a
juror may represent a less-than-adequate foundation for assessing whether a child
has been sexually abused.” 

Boston at 128

, 

545 N.E.2d at 1239

.
        {¶ 11} Gersin sought to introduce testimony from Dr. Klein regarding
established protocols for interviewing children who are the alleged victims of
sexual assault. We must consider whether such evidence is relevant, whether it is
admissible as expert testimony, and whether Boston allows its admission.
        {¶ 12} Relevant evidence is any evidence which has a tendency to make any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without it. Evid.R. 401 and 402. Prosecution witnesses
relied upon Theresa’s interviews in their testimony. How that information was
obtained and the accepted protocols on how to obtain such information certainly
are relevant.
        {¶ 13} Likewise, testimony on those protocols is admissible as expert
testimony. As this court noted in Boston, an expert may testify on the ultimate
question of whether sexual abuse has occurred in a given case because most people
are unfamiliar with the nuances of a child sexual abuse case. Similarly, most jurors
are unaware of how such child abuse experts arrive at their conclusions.




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Necessarily, in child sexual abuse cases, experts must rely on the version of events
given to them by small children. Special interviewing processes are necessary to
get information from child victims, who are often immature, inarticulate,
frightened, and confused about the abuse they have received. Most jurors lack the
knowledge of accepted practices in interviewing child victims, and expert
testimony on the issue is therefore admissible.
         {¶ 14} Finally, this court’s holding in Boston does not make Klein’s
proposed testimony inadmissible. An expert testifying as to interviewing protocols
does not usurp the role of the jury, but rather gives information to a jury which
helps it make an educated determination. An expert like Klein would testify as to
what interview techniques are endorsed by certain professional organizations. Child
sexual abuse cases are a special lot. A major distinguishing aspect of a child sexual
abuse case is how the victim came to relate the facts which led to the bringing of
criminal charges.      A defendant not only should be able to cross-examine
prosecution witnesses regarding how they obtained their information, but also
should have the chance to present expert testimony as to how such information is
ideally obtained. Prosecutors are free to cross-examine, or to question the idea that
there is only one blanket method of interviewing that should be applied to every
child.
         {¶ 15} Meanwhile, the ultimate issue of the particular child’s veracity is left
to the jury. It was not the intent of Boston to stack the deck against defendants in
sexual abuse cases, or to hide information from jurors. Even those who prey on the
defenseless are entitled to a fair defense. Boston was about protecting the role of
the jury. Relevant, expert information can only help a jury do its job.
         {¶ 16} We therefore affirm the judgment of the appellate court.
                                                                   Judgment affirmed.
         MOYER, C.J., YOUNG, F.E. SWEENEY and COOK, JJ., concur.
         DOUGLAS and RESNICK, JJ., dissent.




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       WILLIAM W. YOUNG, J., of the Twelfth Appellate District, sitting for
WRIGHT, J.
State v. Gersin
                                 __________________
       ALICE ROBIE RESNICK, J., dissenting.
       {¶ 17} The last thing we need in a criminal trial of this type is yet another
expert opinion. What the defense attempted to show via expert testimony can just
as easily be accomplished by effective cross-examination. Having two experts or
more testify to the proper protocol regarding the method used to evaluate child
victims of sexual abuse will only add to the confusion.
       {¶ 18} Appellee proffered Dr. Klein’s testimony in order to show that
“when the proper interview process is not followed, * * * [the children may] reach
the point where they actually believe something happened when it didn’t       * * *.”
As appellee’s attorney stated, “that’s because of [the children’s] perception of it.
That’s the information the adults were giving them.” In other words, Dr. Klein
would have testified as to the “proper,” nonsuggestive method that should be used
when interviewing child victims of sexual abuse.
       {¶ 19} It does not take a specialized knowledge or expertise to identify
when an interview might have been overly suggestive. Protocols detailing the
proper forensic examination of the sexually abused child are readily available to
medical and legal personnel. See, e.g., Guidry, Childhood Sexual Abuse: Role of
the Family Physician (Feb. 1, 1995), 51 American Family Physician, No. 2, 407.
A jury, with the help of an effective cross examination, is well equipped to evaluate
whether the method of interviewing was proper or not. Thus, expert testimony on
the proper methods that should be used, or on whether this particular interviewer
used such proper methods, is not admissible under Evid.R. 702. For the foregoing
reasons, I therefore dissent.
       DOUGLAS, J., concurs in the foregoing dissenting opinion.




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__________________




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