Court Misconstrues Admissibility of Psychosexual Expert Testimony

The record shows that the defendant was indicted on three counts of obscene internet contact with a child. Before trial, the defendant retained a psychologist to conduct a psychological and psychosexual evaluation of the defendant. The expert issued a report, opining that the defendant’s test results were “not suggestive of any sexual deviance towards minors,” that the defendant did “not appear to pose a risk of sexually offending in the future,” and that “there does not appear to be any need for any psychological interventions based upon [the defendant’s] sexual history and overall psychosexual functioning.”

Before trial, the defendant filed a motion in limine asking that the court allow the psychologist to testify. At a pretrial hearing, the defendant offered the psychologist’s report. The trial court denied the motion, noting that whether or not the defendant had the requisite intent (to interact with an underage girl) was an issue for the jury to decide.

The Court of Appeals stated that it was “well-established” that “an expert may not offer an opinion on an ultimate issue of fact…where the jury is capable of making that determination without expert assistance.” Additionally, the Court noted that it had previously held that opinion testimony from experts who administered psychological testing to the defendant regarding whether the defendant exhibited signs of sexual deviance or abnormality or met the profile of a sex abuser to be inadmissible.

Unfortunately, the Court was relying on case law that predated the 2013 enactment of Georgia’s new evidence code. Under the new evidence code, which adopts the Federal Rules of Evidence, a defendant in a criminal case in Georgia is permitted to introduce evidence concerning a pertinent character trait (O.C.G.A. § 24-4-405). Other states that have similarly adopted the federal rules have held that a defendant accused of child sexual abuse is permitted to introduce evidence of pertinent character traits such as sexual morality and decency and lack of any sexual deviancy or sexual interest in children.

In People v. McAlpin, the California Supreme Court held that due to jurors’ likely lack of experience with the circumstances surrounding child sexual abuse allegations, the defendant may call an expert to testify that, in his opinion, the defendant is not a sexual deviant. This is consistent with its previous decision in People v. Stoll in which the court held that the trial court erred in excluding relevant expert testimony from a psychologist that the defendant, charged with molesting several young boys, exhibited no signs of sexual deviancy. The Stoll court held that the expert’s testimony was admissible as “criminal defendants are authorized to use character evidence, including expert opinion, to prove ‘conduct in conformity’” with the particular character trait. The Court held that “[t]his principle applies where lack of deviance is offered as circumstantial evidence that a defendant is unlikely to have committed charged acts of molestation.”

In United States. v. Robinson, a federal district court in Louisiana held that the defendant could present expert testimony regarding the results of the Abel Assessment for Sexual Interest that indicated the defendant did not have a sexual interest in underage females. The expert’s opinion was limited to this issue only and not as to whether the defendant could have committed the crimes in the indictment.

Thus, had the defense attorney in this case attempted to introduce the expert’s testimony as character evidence under O.C.G.A. § 24-4-405(a), there is a possibility that the outcome of this appeal would have been different.

For more information on this subject, see Georgia Sex Offense Law for our recent post on Introducing Character Evidence in Child Sexual Abuse Cases.