April 7, 2005

Transubstantiating the evidence?

Criminal defense lawyer David Feige examines "child sexual abuse accommodation syndrome":
According to CSAAS experts, not reporting abuse is thus consistent with suffering from child sexual abuse accommodation syndrome. So is bad behavior, trouble in school, the failure to tell an accurate story, and even the recantation of the entire allegation of abuse. In other words, every criterion usually used by the defense to discredit a witness is actually transubstantiated into evidence that is perfectly consistent with abuse.

And here's the genius: Not exhibiting these signs of CSAAS doesn't mean a child wasn't abused—just that he or she didn't get the syndrome. In other words, a noncredible witness is suffering from the syndrome, but a credible one is merely a credible witness who was legitimately abused.

CSAAS is a prosecutorial silver bullet and a fabricator's best friend. Every mistake you make is consistent with it; every mistake you don't make further confirms your credibility. No wonder prosecutors rely on it to bolster disintegrating cases. By making credibility tautological, CSAAS makes it nearly impossible to present a defense or attack an incredible witness. To make matters worse, CSAAS testimony is deeply appealing to jurors because of its soothing reassurance that otherwise inexplicable or incredible behavior is merely a manifestation of the actual trauma they all expect to see in a victim.
The power of Feige's attack on this sort of expert testimony also demonstrates that the defense lawyer will have a lot of material to use in attacking the expert on cross-examination if he is allowed to testify. The main question in evidence is whether it will help the jury resolve an issue. If child witnesses have special problems that may cause jurors to misevaluate them, the expert may be able to provide legitimate assistance in getting at the truth. I don't know enough about the science to have an opinion about whether these particular syndrome experts mislead more than they help, but if you read Feige's well-written and persuasive article, keep in mind that he represents the defense, that expert testimony is subject to attack if it is let in, and that child molesters are choosing victims who will often not be able to tell a straight story.

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