Logan v. State

¶1dissenting. The appellant argues that the trial court erred in “allowing expert witnesses to answer hypothetical questions.” The majority opinion sustains that contention on the ground that the questions were “too long and complicated for the jury to comprehend” and because the experts “were informing the jury that in their opinion the victim was telling the truth.” I respectfully disagree with the majority on all counts.

¶2As to length, I can find no instance where this court has ever taken issue with the length of a hypothetical question. The case law, which is clearly to the contrary, is summarized by the editors of Corpus Juris Secundum in Volume 32, Evidence § 551(2):

The length of the hypothetical question is not a controlling consideration, and it is not objectionable that the question is lengthy, provided it is reduced to writing and embraces the whole situation in a connected manner, even though the question may be somewhat complicated and not entirely grammatical.

¶3As to complexity, the question was not in the least complicated. It was a series of simple, factual declarations the witness was asked to assume.1 At the end the witness was asked, “Based on those hypothetical situations, in your opinion is that something that a child of this level of functioning could fabricate?” These issues — the form and length of hypothetical questions — were for the discretion of the trial court [Missouri Pacific Railroad Co. v. Hampton, 195 Ark. 335, 112 S.W.2d 428 (1938)] and the majority opinion conspicuously ignores the standard of review customarily applied by appellate courts to the exercise of discretion by trial courts. It should be notéd that the appellant made no objection on the basis of length or complexity.

¶4The remaining ground for reversal is that by answering the-hypothetical question, the experts were in effect expressing an opinion on the ultimate issue to be decided and were, therefore, invading the province of the jury. The majority opinion avoids using those words, but inasmuch as that was the only basis for objection by the appellant relevant to this appeal,2 I take that to be the issue addressed by the majority opinion.

¶5The majority opinion makes no attempt to analyze the question in light of prevailing authority, it simply makes a sweeping declaration that the testimony should not have been admitted, relying entirely on Johnson v. State, 292 Ark. 632, 732 S.W.2d 819 (1987), and Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986). Neither opinion provides support for the majority’s position.

¶6In Johnson, a physician testified to his opinion that the victim had been raped. A majority of this court held that to be error, the rationale being that the physician had no objective evidence of rape and was relying entirely on what the victim told him. Rather than supporting the majority in this case, however, the Johnson opinion pointedly observes that the expert’s testimony that the victim had been sexually abused would not have been objectionable on the basis that it was the “ultimate issue,” citing A.R.E. Rule 703 and Jennings v. State, 289 Ark. 39, 709 S.W.2d 69 (1986).

¶7Nor is Russell v. State, supra, more supportive. Russell is a plurality opinion of two justices [see Justice Hickman’s concurring opinion, Marcum v. State, 299 Ark. 30, 771 S.W.2d 250 (1989)]. The “error” in Russell (which was held to be harmless) was that the testimony of a psychiatrist that the history given by a victim was consistent with sexual abuse was not admissible because it would not have aided the jury in its deliberations. Justice Hickman’s concurrence in Marcum states my views more fully than did my dissent in Russell, but suffice it to say, the issue addressed by the plurality in Russell is not the same question presented in this case, nor was it the point preserved by appellant in the trial court. The short of the matter is, the majority is reversing the case based neither on relevant precedent nor reasoned analysis.

¶8The prosecuting witness in this case was a fourteen year old male who was retarded as a result of an acute illness at age four, rendering him unconscious for eleven days and on a respirator for four days. He suffered pronounced brain damage and his symptoms include epileptic seizures. One of the experts, a neurologist, had treated the child for over five years and the other, a clinical psychologist, had administered a number of tests. The substance of their testimony, admitted without objection prior to the hypothetical question, was that the child was capable of telling a lie, but not a very complex lie, or, if complex, he would have difficulty repeating it accurately. Given that set of circumstances, I believe it was within the trial court’s discretion to permit an expert in the field to express an opinion concerning the ability of such an individual to fabricate an account of the alleged events. It is of little consequence, I believe, that the testimony approaches the ultimate issue. In fact, the law permits that in a good many situations, e.g., a lay witness is permitted to testify that a testator lacked mental competency, which is the ultimate issue in a will contest; a police officer who gives an opinion that a defendant was drunk is testifying to the ultimate issue; a physician who states an opinion that a prosecuting witness was the victim of a rape is testifying to the ultimate issue. There is, in short, ample authority for permitting a witness to testify on a given point even though it is

¶9the issue the jury is to decide. A.R.E. Rule 703; Jennings v. State, 289 Ark. 39, 709 S.W.2d 69 (1986); Johnson v. State, supra; State v. Geyman, 729 P. 2d 475 (Mont. 1986); Matter of J.W.K., 824 P.2d 164 (Mont. 1986); Allen v. State, 472 So.2d 1122 (Ala. Cr. App. 1985); Roubideaux v. State, 707 P.2d 35 (Okla. Cr. 1985); Lawrence v. State, 464 N.E.2d 923 (Ind. 1984); State v. Meyers, 359 N.W.2d 604 (Minn. 1984); State v. Kim, 645 P.2d 1330 (Hawaii 1982); and see "Expert Testimony in Child Sexual Abuse Prosecutions: A Spectrum of Uses," Boston University Law Review, Vol. 68:155.

¶10My primary disagreement with what I perceive to be a summary rejection by the majority of the testimony in this case, irrespective of the trial court’s exercise of discretion, is that it proceeds from an implicit assumption that evidentiary rules which are, at best, only arguably sound where the victim of a sexual offense is a competent adult, are unquestionably sound in cases in which the victim is neither, but is a child and mentally retarded in the bargain. Surely the law is capable of differentiating between the two.