PA Supreme Court: Police Officer Cannot Testify About "Normal" Response to Sexual Assault Unless Qualified as Expert

Philadelphia Criminal Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Jones, holding that a police officer cannot testify about child sexual abuse victims’ responses and behaviors unless they are properly qualified as an expert. This decision is significant because prosecutors frequently like to use police officers to bolster their complainants’ testimony by having police officers testify as to why they are offering inconsistent testimony, especially in sexual assault cases. Commonwealth v. Jones now holds that although a police officer may testify about typical victim behavior under some circumstances, which the Court did not define, the officer must first at least be properly qualified as an expert before they can offer such testimony.   

Commonwealth v. Jones

The defendant was charged with rape, involuntary deviate sexual intercourse with a person under sixteen years of age, unlawful contact with a minor, aggravated indecent assault, sexual assault, statutory sexual assault, and other offenses following allegations by his stepdaughter that he repeatedly sexually abused her over a period of several years. According to the complainant, the first instance of abuse occurred when she was thirteen years old. The defendant told her that no one would believe her if she came forward. However, when the complainant turned 17, she told her mother about the alleged abuse. 

The defendant was subsequently arrested and tried by a jury. Throughout the trial, defense counsel focused on discrepancies in the complainant’s version of events in an attempt to undermine her credibility. These discrepancies and inconsistencies related to the timing and the location of these assaults. In an attempt to bolster the complainant’s credibility, the Commonwealth called a detective who had interviewed the complainant during the course of his investigation.

During his direct examination, the detective testified that children can have difficulty remembering all the times they were sexually abused. Defense counsel objected to this and argued that this amounted to expert testimony and the detective had not been qualified as an expert. The trial court overruled the objection and allowed the testimony to come in. At the conclusion of the trial, the defendant was subsequently convicted of the aforementioned charges and was sentenced to twenty-seven to sixty years’ imprisonment. The defendant then filed a post-sentence motion which was denied. He then filed a timely appeal to the Superior Court. 

The Superior Court’s Decision 

On appeal, the defendant argued that the trial court abused its discretion by allowing the detective to testify that child sexual assault victims are often unable to recall specific details and dates of sexual assaults. He further argued that this evidence was actually expert testimony because it was not within the scope of knowledge possessed by the average layperson. Finally, because the detective had not been qualified as an expert witness, the trial court should have not allowed this testimony to be presented at his trial. 

In a 2-1 decision, the Superior Court affirmed the defendant’s conviction. The majority explained that challenges to the admissibility of evidence typically rest within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. The Superior Court found that the detective’s testimony “constituted permissible lay opinion testimony because it was based on information within the detective’s personal knowledge and experience.” Consequently, the Commonwealth did not need to qualify the detective as an expert in order for him to testify. However, the dissenting opinion argued that 42 Pa. C.S. § 5920 was the dispositive statute for this question. According to the dissent, this statute overrules the previous decision in Commonwealth v. Dunkle which held that opinions regarding responses by child sexual assault victims fall within the knowledge of laypersons and thus a witness did not have to qualify as an expert to testify about the behaviors of these victims. Undeterred, the defendant then filed a petition for allowance of appeal which the Pennsylvania Supreme Court granted.  

What is 42 Pa. C.S. § 5920?

42 Pa. C.S. § 5920 is titled “Expert testimony in certain criminal proceedings.” It provides: 

(a) Scope.--This section applies to all of the following:

(1) A criminal proceeding for an offense for which registration is required under Subchapter H of Chapter 97 (relating to registration of sexual offenders).1

(2) A criminal proceeding for an offense under 18 Pa.C.S. Ch. 31 (relating to sexual offenses).

(b) Qualifications and use of experts.--

(1) In a criminal proceeding subject to this section, a witness may be qualified by the court as an expert if the witness has specialized knowledge beyond that possessed by the average layperson based on the witness's experience with, or specialized training or education in, criminal justice, behavioral sciences or victim services issues, related to sexual violence, that will assist the trier of fact in understanding the dynamics of sexual violence, victim responses to sexual violence and the impact of sexual violence on victims during and after being assaulted.

(2) If qualified as an expert, the witness may testify to facts and opinions regarding specific types of victim responses and victim behaviors.

(3) The witness's opinion regarding the credibility of any other witness, including the victim, shall not be admissible.

(4) A witness qualified by the court as an expert under this section may be called by the attorney for the Commonwealth or the defendant to provide the expert testimony.

It should be noted that 42 Pa. C.S. § 5920 was passed after Commonwealth v. Dunkle was decided. Dunkle was a Supreme Court decision which barred expert testimony on typical victim behaviors. As one can see by reading the statute, subsection (2) states “[i]f qualified as an expert, the witness may testify to facts and opinions regarding specific types of victim responses and victim behaviors” which strongly suggests that one must be an expert in order to testify about such things. Therefore, the dissent argued that this statute superseded it and was the controlling authority. The Pennsylvania Supreme Court was then tasked with deciding whether this position was correct and whether the trial court improperly admitted the detective’s testimony. 

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the lower courts’ decisions and granted the defendant a new trial. First, the Court held that 42 Pa. C.S. § 5920 at least partially overruled Commonwealth v. Dunkle. Next, the Court reviewed the facts of the instant case and the applicable law. It held that “testimony from a law enforcement officer concerning child victims’ typical behaviors and responses to sexual abuse, when based on that officer’s training and experience, falls within the realm of expert testimony.” Further, the Court continued that the average juror is not privy to the complex psychological dynamics surrounding sexual abuse and thus testimony about such issues cannot be qualified as lay testimony.

The Court found that, in the instant case, the detective provided insights gained through specialized occupational training and experience which was not within the average layperson’s knowledge. As such, the trial court committed an error when it permitted this testimony to be introduced at the defendant’s trial. The next step in the Court’s analysis was to determine whether the inclusion of this testimony amounted to harmless error. 

In this case, the Court found that permitting the detective to testify about the stepdaughter’s ability to recall specific details did not qualify as harmless error. Specifically, the Court held that because the Commonwealth emphasized the detective’s training and experience, the jury may have given the detective’s testimony undue weight. Further, because the stepdaughter’s credibility was central to the case, allowing the detective to bolster her credibility by offering his testimony on the behaviors of sexual assault victims wrongfully prejudiced the defendant. Therefore, because the defendant was unfairly prejudiced by this testimony, the Court vacated his conviction, and he will receive a new trial.

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