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Expert's May Be Used To Explain Victim's Failure to Report

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Expert was permitted to testify at trial as to why a child victim may delay in reporting sexual abuse.

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By Attorney Elisabeth K.H. Pasqualini, Sex Crimes Defense Lawyer, Harrisburg, PA

In a recent Pennsylvania Superior Court decision, the defendant challenged the Commonwealth's calling of a prosecution expert witness at trial to testify as to the explanation as to why a child victim may delay in reporting sexual abuse.  Com v. Carter, 2015 Pa. Super. 55 (March 15, 2015).  The use of an expert witness was predicated on a statute made effective on October 28, 2012.  42 Pa.C.S.A. Section 5920.  Here, the complaint was filed until September 8, 2012.  The witness did not testify as to the alleged facts of the matter or as to the victim's credibility.  Rather, they were only used to testify as to the reasons or psychology behind a child's delayed reporting.

The Superior Court found that the rule did not violate the separation of powers doctrine.  That doctrine, essentially provides that the Supreme Court has the rule making authority for evidentiary issues.  The Court declined to determine that such a violation existed.  Further, any argument regarding the statute of limitations was waived as it was not first addressed in a pre-trial motion.  Rather, the issue was first raised after sentencing.

What's The Importance of This Decision?

The statutory rule allows both an expert witness for the Commonwealth and the defense to testify as to a witness' delayed reporting (or reasons why it should not have been delayed).  Does the victim's credibility and thus, their psychological/psychiatric history become an issue for discovery?  Likely not, however, if a prosecution expert expands their determination that the delay was due to post traumatic stress disorder or some other psychological illness, doesn't it now become an issue for a jury as to whether the victim ever sought treatment or was in need of same?  That issue could come up in the future and provide a reason as to why the Commonwealth would not want to call upon an expert, but the defense may.

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