EXPERT MAY NOT OPINE WHETHER OR NOT VICTIM WAS SEXUALLY ABUSED BASED SOLELY ON WITNESS ACCOUNTS, WITHOUT PHYSICAL FINDINGS
The PA Supreme Court has recently decided the case of Commonwealth v. Maconeghy, No. 81 MAP 2016 (October 18, 2017), holding that in the absence of physical abuse, an expert witness may not express an opinion that the complainant was a victim of sexual assault based upon witness accounts couched as a history. Rather, such testimony intrudes into the province of the jury relative to determining credibility.Maconeghy was charged with a sexual offense. At trial, the Commonwealth presented several witnesses, including the victim, who testified to the abuse. The prosecution also adduced testimony from Dr. Novinger, a pediatrician, who had evaluated the victim to determine whether she had suffered from sexual abuse.
Although Dr. Novinger found no evidence of abuse in the physical exam, he opined that, outside the first seventy-two hours after the occurrence of a sexual assault, such an examination is unlikely to detect evidence of the abuse. Thus, according to the him, the fact of abuse can be determined “[r]eally by history only.”
On cross-examination, the defense repeatedly attempted to secure a concession that the medical evidence did not support a determination of abuse, to which Dr. Novinger replied: “The history she provided to me pretty clearly indicated that she was sexually abused.”
On redirect, the district attorney posed a series of questions directed toward highlighting that a physical examination is not conclusive, culminating in the following interchange:
[Prosecutor]: And when you’re saying that your examination is normal, you’re not saying that nothing happened, are you?
[Dr. Novinger]: That’s correct. I really believe strongly that was my medical conclusion that this child was victimized.
Maconeghy was ultimately convicted and the PA Supreme Court ultimately was presented with the question of whether, in a criminal prosecution, a sexual abuse evaluator may testify to his opinion that a child was sexually assaulted, where there is no physical evidence of abuse, and the opinion is premised upon the expert’s apparent acceptance of the child’s reporting and description?
In summary, the Supreme Court concluded that expert testimony opining that a child has been sexually abused — which is predicated on witness accounts and not physical findings — is inadmissible.
Lastly, it should be noted that the Court made it a point to limit its holding, specifying that they were not assessing whether, or under what circumstances, such evidence may be appropriate in light of physical findings or as fair response on redirect examination or in rebuttal.
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