The New Hampshire Supreme Court recently drew a line between expert and lay testimony given by a Child Protective Services (CPS) worker. The line is one that courts have had trouble defining. Courts are not always clear about information concerning child behavior that most jurors will possess and that need not be the subject of expert testimony, and the kind of esoteric information that can only be provided by an expert witness. Nor are courts always consistent in defining the testimony that experts can give when they discuss the “typical” behaviors of child abuse victims.

The issue arose in the context of a of a prosecution for multiple counts of sexual assault. After the defendant was convicted, his postconviction attorney argued that his trial attorney was ineffective when she failed to object to the CPS worker’s testimony. The CPS worker was not called as an expert witness.

Criminal defense attorneys have a duty to provide effective representation to their clients. That duty is part of the constitutional right to counsel, which guarantees not just representation by a warm body, but effective representation by a lawyer whose performance is objectively reasonable as measured by what competent attorneys would be expected to do. The court decided that an effective attorney would have objected to the testimony and therefore granted the defendant a new trial.

Facts of the Case

The alleged victim testified that she was sexually assaulted by her stepfather when she was five or six. She described a series of incidents that progressed from sexual touching to penetration. The same child had allegedly been sexually abused by a different man at some earlier point.

The child testified that she had her eyes closed during some of the incidents with her stepfather and could not see what her stepfather was doing. The jury found her stepfather, Jason Wilbur, guilty of two counts of sexual assault and not guilty of two others.

In a postconviction motion, Wilbur asserted that his attorney’s representation was ineffective. The trial court denied the motion. On appeal, the New Hampshire Supreme Court agreed that Wilbur’s attorney was ineffective.

CPS Worker’s Testimony

The CPS worker closed her testimony with four statements:

“[The child] was sexually reactive, and she acted out on other children when she had an opportunity.” An unadorned description of a child’s behavior is testimony about facts, not expert testimony. Characterizing the child’s behavior as “sexually reactive,” however, went beyond descriptive testimony by interpreting the child’s behavior.

“She had a really hard time mentally just dealing with this.” If the CPS worker was simply repeating hearsay from the child, she made that statement without testifying as an expert. However, it appears that she based the statement on her observations of the child, and concluded that the behavior she observed was the result of trauma produced by sexual abuse. If she was describing the child’s mental state, she was testifying as an expert.

“It had been going on for so long that she started to identify with the perpetrators, with the people who she alleged abused her.” That statement was an explanation of the child’s behavior as opposed to fact testimony about how the child behaved.

“And those [behaviors] are typical of children that have been abused.” The final statement is one that called on the CPS worker to compare the alleged victim with actual abuse victims as opposed to testifying about facts that she observed.

Drawing the Line Between Expert and Lay Testimony

While courts have struggled to draw lines when social workers testify, they typically apply the rule that experts testify about matters that are beyond the knowledge of ordinary jurors. Some aspects of child behavior are commonly understood by lay jurors (children cry when they are sad) while other aspects of child behavior are not. For example, courts commonly allow experts to testify that child victims of sexual assault often delay reporting the crime because courts assume that lay jurors are unfamiliar with behaviors of children who have been assaulted.

The trend in courts that are protective of the constitutional right to a fair trial is to recognize that how children customarily react to sexual abuse must be the subject of expert testimony. Most parents do not abuse their children and do not know whether abused children do or don’t become “sexually reactive” or begin to “identify with their perpetrators.” Even experts disagree about how children who are actually abused will react to the abuse. Jurors rarely have a basis in their own experience for deciding whether a child’s behavior is or is not typical of an abused child’s behavior.

The CPS worker gave testimony that only an expert should have given. Perhaps she was an expert, but she did not testify as one. The trial court and the New Hampshire Supreme Court both noted that the testimony improperly crossed into the realm of expert testimony.

Comment on Child’s Veracity

The appellate court’s focus, however, was on the CPS worker’s attribution of the child’s behavior to assaults “that had been going on for so long.” The CPS worker witnessed no assault and had no personal knowledge of whether the child had been assaulted. Her testimony that the assaults had occurred signaled her belief that the child was telling the truth. It also signaled her belief that the child’s “reactive” behavior stemmed not from the earlier incident of sexual abuse, but from Wilbur’s repeated sexual assaults over time.

Social workers are not lie detectors, and it is generally improper for a lay witness to comment upon the veracity of another witness. Whether the social worker believed the child was not relevant evidence. The question was whether the jurors believed the child. Their evaluation of the child’s testimony may have been tainted by their understanding that the CPS worker thought the child was being truthful.

Although the CPS worker did not testify as an expert, the prosecutor told the jury during closing arguments that the worker was “specially trained to do this.” The jury likely viewed that statement as a representation that the CPS worker was trained to know when children are telling the truth about sexual assaults.

While courts are not uniform in their condemnation of social worker testimony that vouches for the credibility of children, the trend is to recognize that even expert witnesses should not be allowed to imply that a child is telling the truth by testifying that the child’s behavior is common to the behavior of sexual assault victims. It is one thing to offer evidence about why children might delay reporting, give inconsistent versions of events, or recant accusations when that testimony is offered to rebut a claim that the alleged victim is lying. It is another thing to claim the ability to discern from a child’s behavior that a child was sexually assaulted. New Hampshire joined with other courts in holding that even an expert witness may not give testimony that implies the expert’s belief that the defendant is guilty.

The lesson for defense attorneys to learn is that social workers in child sexual assault cases often cross a line by testifying as experts. Attorneys need to be vigilant to object to that testimony when the witness has not been proffered as an expert.

Even when the prosecution calls an expert witness to testify, defense attorneys should object to any testimony that suggests the expert’s belief in the defendant’s guilt, including claims that the child behaved in a way that the expert presumes an abuse victim might behave. Defense attorneys should also consider retaining their own experts to counter testimony given by expert witnesses called by the prosecution.