Experts & Harmless Error

Social Workers as Expert Witnesses

Attorneys who handle dependency appeals are often faced with written reports prepared by social workers filled with “hearsay and even multiple hearsay,” that are admissible in any matter involving the custody, status, or welfare of minors. (Welf. & Inst. Code § 281; In re Malinda S. (1990) 51 Cal.3rd 368.) Admissibility of the reports and the social worker’s opinions and recommendations is based on the belief that “social studies at issue here are prepared by disinterested parties in the regular course of their professional duties.” (Malinda S., supra, 51 Cal.3rd at p. 377.) But trial courts may take the admissibility of a social worker’s testimony and opinions based on hearsay evidence one step further and qualify social workers as expert witnesses regarding tests or syndromes that may not be generally accepted in the scientific community or for which they may not be qualified. (See, e.g., In re Autumn I., unpub. (Oct. 29, 2013, F065578) 2013 WL 5806983.)

When an alert trial counsel objects (See, e.g., In re Clara B. (1993) 20 Cal.App.4th 988, 1000 [failure to object waives the issue]), an appealable issue is presented. The Kelly-Frye test (People v. Kelly (1976) 17 Cal.3d 24, 30–32; Frye v. United States (D.C.Cir.1923) 293 F. 1013, 1014) may apply to social workers testifying as expert witnesses. Uner the Kelly-Frye test, a social worker must have “special knowledge, skill, experience, training, or education” to qualify as an expert on the subject of the testimony. (Evid. Code § 720.) The trial court has the discretion to make that determination. (In re Roberto C. (2012) 209 Cal.App.4th 1241, 1249.)

Further, in order for a social worker to testify as an expert regarding her opinion, the opinion must be

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion. (Evid. Code, § 801.)

Opinion testimony based “on matter that is not a proper basis for such an opinion,” must be excluded. (Evid. Code, § 803.)

Thus, where testimony is offered by a social worker regarding a syndrome based on the characteristics of children who have undergone a specific traumatic experience, the social worker should have the extra training and qualifications to testify regarding that syndrome. (Evid. Code, § 801.) Receiving information about the syndrome in a general education course should not be sufficient. Nonetheless, some courts have taken a broader view and considered general education courses covering specific syndromes sufficient even if the syndromes are studied as only part of a general education course. However, if a social worker is accepted as an expert witness on the matter by the court, the opinion testimony should be excluded if the syndrome itself is not recognized and accepted in the scientific community. (Frye, supra, 293 F. at p. 1014.)

Whether or not the Kelly-Frye test applies to exclude expert opinion testimony may depend on whether it is based on a new scientific process and a trier of fact would “ascribe an inordinately high degree of certainty to the technique employed” (In re Amber B. (1987) 191 Cal.App.3d 682, 691 [detecting child sexual abuse by father by observing child with anatomically correct dolls and analyzing the child’s reports of abuse subject to Kelly-Frye test]) or the reason the evidence is offered. (Sara M. (1987) 194 Cal.App.3d 585, 591-592 [evidence of child molest syndrome offered to prove the child had been molested is subject to Kelly-Frye test].)

Case authority supports the position that expert opinion testimony based on an unrecognized or test or syndrome should be excluded because it is inherently unreliable. (See, e.g., Sara M., supra, 194 Cal.App.3d at pp.  591-592 [Kelly-Frye test applies to expert testimony regarding child molest syndrome introduced to show child sexually abused]; Amber B., supra, 191 Cal.App.3d 682 [Kelly-Frye test applies to use of anatomically correct dolls and analyzing child’s reports of abuse]; People v. Bledsoe (1984) 36 Cal.3d 236, 248-251 [hereinafter “Bledsoe”] [rape trauma syndrome testimony inadmissible to prove a rape occurred]; but see Wilson v. Phillips (1999) 73 Cal.App.4th 250, 254-256 [Kelly-Frye test inapplicable to expert medical or psychological opinion where opinion based on personal evaluations].) Battered child syndrome is only admissible regarding the means used to inflict the injury, not to prove who did it. (People v. Jackson (1971) 18 Cal.App.3d 504, 507-508 [hereinafter “Jackson”].) Battered women’s syndrome is statutorily admissible. (Evid. Code § 1107.)

In Sara M., the appellate court held that “the trial court prejudicially erred in allowing testimony concerning the ‘child molest syndrome,’ to prove that Sara had been molested.” (Sara M., supra, 194 Cal.App.3d at p. 587.) It stated that the syndrome “was not recognized by the American Psychological Association (APA) or any other professional organization.” (Id., at p. 589.) It also was “not included as a syndrome in the APA's Diagnostic and Statistical Manual (DSM).” (Ibid.) The Sara M. court reviewed other “syndrome evidence” cases and then wrote,

“[A]dmissibility of expert testimony based upon the application of a new scientific technique traditionally involves a two-step process: (1) the reliability of the method must be established, usually by expert testimony, and (2) the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject.” (Sara M., supra, 194 Cal.App.3d at pp. 592-593.)

The court held that despite the relaxed rules of evidence in dependency proceedings, “expert evidence not shown to be reliable under the requisite Kelly-Frye criteria and properly objected to remains inadmissible.” (Sara M., supra, 194 Cal.App.3d at p. 594.)

The Trap of Harmless Error

Assuming appellate counsel successfully argues that the expert opinion evidence should have been excluded, the trap of harmless error is ready to spring on the unwary. The harmless error analysis may be the most important part of the brief—because if there is substantial evidence to support the findings and orders without the expert opinion testimony, then the appellate court will find that the error is harmless.

Since the substantial evidence standard of review is so difficult to overcome on appeal, most errors are likely to fall into the harmless error category unless counsel is able to persuade the court that the error permeated the proceedings to the point that without the expert opinion testimony, there is no evidence to support the orders.

For example, in In re Christine C. (1987) 191 Cal.App. 3rd 676, the court found the error in admitting expert opinion testimony that the father had committed child sexual abuse was harmless because the trial court provided a detailed oral explanation of its ruling and the children testified. First, the court found the children to be credible. Second, the court accepted father’s defense and stated the defense would not have benefited him even if the expert opinion testimony had been excluded. Third, the court relied on the testimony of the children rather than the improperly admitted expert testimony to determine there had been sexual abuse.  (Id., at p. 680.)

In In re Jordan R. (2012) 205 Cal.App.4th 111, the appellate court held that the error, if any, in excluding expert opinion testimony regarding the results of a polygraph exonerating the father was harmless where the father had the opportunity to present his case and cross-examine the Agency’s witnesses. The appellate court stated that the court could reasonably place more credence on what it saw and heard in court, including the victim’s testimony, than an expert’s opinion that the father truthfully answered two questions on the polygraph. It also noted that information about the polygraph examination was contained in the Agency’s reports, which was admitted into evidence. (Id., at pp. 134-135.) The appellate court concluded the father could not show the results of the jurisdictional hearing would have been more favorable had the juvenile court admitted the results of his polygraph. (Id., at p. 134.)

In Clara B., the appellate court held that any error in admitting expert opinion evidence where the expert was not an expert in the identification of perpetrators was harmless because the juvenile court stated it was not relying on opinions of lay witnesses. (Clara B., supra, 20 Cal.App.4th at p. 1000.)

A few cases have found prejudicial error in the admission of expert opinion testimony. In Amber B., the court found that the error was prejudicial because the entire case was based on the expert’s analysis of Amber’s reports of abuse and her behavior with anatomically correct dolls. (Amber B., supra, 191 Cal.App 3rd at p. 691.)

In Sara M., the court found that the error in admitting evidence regarding child molest syndrome was prejudicial because “[t]estimony concerning the child molest syndrome permeated the jurisdictional hearing.” It recited specific examples: Psychologists’ testimony regarding the syndrome and symptoms exhibited by Sara; Numerous witnesses’ testimony regarding Sara’s statements to show her behavior was consistent with child molest syndrome; Sara’s inconsistent version of events; Sara’s young age; the length of time since the events; and the extensive questioning of Sara in the interim. (Sara M., supra, 194 Cal.App.3d at p. 594.) The court concluded it could not find the admissibility of the syndrome harmless because there was insufficient evidence without the syndrome evidence:

The residual evidence was that of the minor child of four years at the time of trial testifying on August 28, 1985, to events of “during the year prior to December 1, 1983” which had not been reported by the child until the fall of 1984, after Sara commenced living with her foster family. The only additional evidence of any note was the rank hearsay in the social services report to which the trial judge was not bound to give credence in view of the attendant untrustworthiness of such hearsay being void, as it is, of a sifting under oath for reliability and truthfulness by careful cross-examination. We thus conclude “that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” [Cit.om.] (Sara M., supra, 194 Cal.App.3d at p. 594-595.)

In In re Christie D. (1988) 206 Cal.App. 3rd 469, the court held the error in admitting doll play evidence was prejudicial because “the trial court relied to a large extent on the evidence of Christie’s play with dolls in resolving what it considered to be an extremely close case.” (Id., at p. 480.)

In conclusion, the practice of allowing social workers to testify regarding highly specialized matters that require special expertise including knowledge of scientific tests or syndromes, even though the social worker may have no more than the general education provided to social workers, is problematic. Nonetheless, it appears that some trial courts have taken the view that the expert witness statutes are to be interpreted broadly and are allowing social workers to give expert opinions regarding scientific tests and syndromes. In those situations, appellate counsel must evaluate prejudice and follow up with strong appellate arguments under the Kelly-Frye rule.

*This article was originally published in Cal App News, a publication of California Appellate Defense Counsel in its Winter 2014 issue (Vol. 26, No. 1.) For further information about California Appellate Defense Counsel go to www.CADC.net.

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