are numerous reasons for victims to conceal the abuse, including that disclosure is difficult because sex abuse is considered "taboo," and because victims often feel guilty, shameful and fearful of reprisals or punishment (Miranda: Tr. 682-84).
The Government also offered the testimony of Kenneth V. Lanning, a Supervisory Special Agent of the Federal Bureau of Investigations, and an expert in the field of sexual abuse (Lanning: Tr. 1325). Agent Lanning testified that, in his experience, young boys are the least likely of child sexual abuse victims to report the incident and the most likely to deny that they were abused when asked (Lanning: Tr. 1328). The victims' reluctance to disclose is generally attributable to four factors: (1) the "stigma" of homosexuality where both the abuser and victim are male; (2) fear that society will condemn the victim for not fending off the abuser and for not reporting it immediately; (3) many victims like and/or depend on the abuser, and do not want to get him in trouble; and (4) some victims fear the abuser (Lanning: Tr. 1329-31).
II. THE COURT'S RULINGS AT TRIAL
At trial, this Court struck Dr. Miranda's testimony that the alleged victims were credible witnesses and were telling the truth about Wetterer abusing them (T. 859, 863-64). Neither party has invited the Court to reconsider this decision, and the Court adheres to it.
III. THE PARTIES' POSITIONS
Presently before the Court are the defendants' motion to strike the transcript and tape-recording of Dr. Miranda's interviews of Leonel Piedrasanta, as well as Dr. Miranda's testimony concerning the accusations of sexual abuse by the six alleged victims. The defense claims that these statements of sexual abuse constitute inadmissible hearsay which does not fall within the Government's proffered exceptions, Rules 703 and 803(4) of the Federal Rules of Evidence, because Dr. Miranda neither treated nor diagnosed any of the alleged victims. The defense also claims that Dr. Miranda's testimony should be stricken because he was a biased and inaccurate witness, and because the defense was deprived of the opportunity to cross-examine four of the declarants: Jose Luis Melendez, Rotilio Sanchez, Hugo Piedrasanta and Leonel Piedrasanta. The defense also moves to strike the expert testimony of Dr. Miranda and Agent Lanning regarding reasons for recantation and delayed reporting of sexual abuse, on the ground that their conclusions are within the common knowledge of the trier of fact.
On the other hand, the Government contends that the transcript and recording of Dr. Miranda's interview of Leonel Piedrasanta, and all of the alleged victims' statements to Dr. Miranda, are admissible under Fed.R.Evid. 703 because they formed the basis of Dr. Miranda's expert opinion that Wetterer was sexually abusing the boys at Mi Casa. The Government also contends that the statements of three victims -- Leonel Piedrasanta, Manuel Bravo, and Jose Luis Lutin -- fall within the hearsay exception embodied in Fed.R.Evid. 803(4) because they were made to the doctor for the purpose of being diagnosed as sex abuse victims. With respect to Jose Luis Lutin, the Government also contends that the statements are excluded from the hearsay bar under Fed.R.Evid. 803(4) because they were made for the purpose of "therapy" or treatment. Without explanation, the Government concedes that the 803(4) exception to the hearsay rule does not apply to the statements of Jose Luis Melendez, Rotilio Sanchez and Hugo Piedrasanta to the doctor. Presumably, this is because these three victims were merely "interviewed" by Dr. Miranda, and were neither "treated" nor "diagnosed."
A. The Standards: Rules 703 and 803(4) of the Federal Rules of Evidence
Rule 803(4) of the Fed.R.Evid. excepts from the hearsay bar two types of statements: "statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." Fed.R.Evid. 803(4) (emphasis added). The Rule 803(4) exception to the hearsay rule for statements to a treating physician -- as opposed to a diagnosing physician -- rests on a theory of reliability flowing from the patient's understanding "that the effectiveness of the treatment received will depend upon the accuracy of the information provided to the physician." 2 McCormick on Evidence § 277, at 246-47 (John W. Strong ed., 4th ed. 1992). The Supreme Court has noted that the patient's "selfish treatment" motive provides substantial guarantees of the trustworthiness of such statements. White v. Illinois, 502 U.S. 346, 112 S. Ct. 736, 742, 116 L. Ed. 2d 848 (1992).
The hearsay exception for statements made to physician for the purpose of treatment has a long history under common law. See McCormick on Evidence § 292 (E. Cleary 3d ed. 1984). The Federal Rules of Evidence significantly changed the scope of the traditional rule by also permitting statements made to a doctor consulted only for the purpose of diagnosis, when no treatment is anticipated by the declarant, pursuant to Rule 803(4). Typically, such a statement involves one made to a doctor who is consulted with an eye toward litigation. The Advisory Committee Note states that "'Conventional doctrine' excluded statements made to a physician solely for diagnostic purposes from the hearsay exception because they were not within its guarantee of truthfulness -- 'the patient's strong motivation to be truthful'." The rationale for the expansion of Rule 803(4) to include statements to a diagnosing physician is that even if the statements were excluded under the exception to the hearsay doctrine, the expert witness typically was permitted to relate the statements if they formed a basis of his opinion, a rule now embodied in Rule 703:
The distinction thus called for was one most unlikely to be made by the juries. The rule accordingly rejects the limitation. This position is consistent with the provision of Rule 703 that the facts on which expert testimony is based need not be admissible in evidence if of a kind ordinarily relied upon by experts in the field.
Advisory Committee Note to Fed.R.Evid. 803(4); see also Robert P. Mosteller, Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment, 67 N.C.L.R. 257, 259-61 (1989).
There exist, therefore, two distinct rationales for the admissibility of statements to medical doctors: (1) the "selfish treatment" rationale, where the statement is made to a treating physician; and (2) the "basis of the expert's opinion" rationale, where the statement is made to a diagnosing physician.
B. Admissibility of the Victim's Statements to a Doctor Identifying the Perpetrator
As set forth in the Advisory Committee Note to Rule 803(4), a declarant's statement identifying the person allegedly responsible for her injuries generally is inadmissible because such statements usually are not necessary to promote effective treatment, or to permit the expert to reach an appropriate diagnosis. Advisory Committee Note to Fed.R.Evid. 803(4). Thus, a patient's statement to his doctor that he was struck by an automobile would fall within the hearsay exception, but not his statement that the car was driven by Bob Smith through a red light. Advisory Committee Note to Fed.R.Evid. 803(4).
This is not, however, a hard and fast rule, especially in the context of child sex abuse allegations. The Fourth, Eighth, Ninth and Tenth Circuits have held that statements made by a victim of sexual abuse to a physician which identify the abuser as a member of the family or household may, under certain conditions, be "reasonably pertinent to diagnosis or treatment" and, hence, admissible. See United States v. Joe, 8 F.3d 1488, 1493-95 (10th Cir. 1993), cert. denied, 510 U.S. 1184, 114 S. Ct. 1236, 127 L. Ed. 2d 579 (1994); United States v. Balfany, 965 F.2d 575, 579 (8th Cir. 1992); United States v. George, 960 F.2d 97, 99-100 (9th Cir. 1992); Morgan v. Foretich, 846 F.2d 941, 949 (4th Cir. 1988). Some courts which have confronted the issue have concluded that "statements revealing the identity of the child abuser are 'reasonably pertinent' to treatment because the physician must be attentive to treating the child's emotional and psychological injuries, the exact nature and extent of which often depend on the identity of the abuser." United States v. Joe, 8 F.3d at 1493-95; United States v. Balfany, 965 F.2d at 578. Where the abuser is a member of the family or household, and the victim is of a tender age, the abuser's identity may be especially pertinent to the physician's recommendation regarding an appropriate course of treatment, which may include removing the child from the home. United States v. Joe, 8 F.3d at 1493-95.
C. The Court's Exclusion of Dr. Miranda's Expert's Opinion at Trial
The Court begins by observing that it struck Dr. Miranda's trial testimony regarding his expert opinion that the six victims he interviewed were telling the truth about being sexually abused by Wetterer. By the same token, the "doctor's diagnosis of sexual abuse [is] 'only a thinly veiled way of stating that [the victims] were telling the truth.'" Westcott v. Crinklaw, 68 F.3d 1073 (8th Cir. 1995) (quoting United States v. Whitted, 11 F.3d 782, 787 [8th Cir. 1993]). Thus, that "diagnosis" is struck as well. As noted in Mathie v. Fries, 935 F. Supp. 1284, 1295-96 (E.D.N.Y. 1996), modified on other grounds, 121 F.3d 808 (2d Cir. 1997), this Court is reluctant to give credence to the testimony of an expert as to the credibility of a witness, in this case the alleged victims of sexual abuse. The Second Circuit has held that:
An expert witnesses may not offer opinions on relevant events based on their personal assessment of the credibility of another witness's testimony. The credibility of witnesses is exclusively for the determination by the [fact-finder], United States v. Richter, 826 F.2d 206, 208 (2d Cir. 1987), and witnesses may not opine as to the credibility of the testimony of other witnesses at the trial. . . . Moreover, even expert witnesses possessed of medical knowledge and skills that relate directly to credibility may not state an opinion as to whether another witness is credible, United States v. Azure, 801 F.2d 336, 340-41 (8th Cir. 1986), although such witnesses may be permitted to testify to relevant physical or mental conditions. See generally Annotation, Necessity and Admissibility of Expert Testimony as to Credibility of Witnesses, 20 A.L.R.3d 684 (1968).
United States v. Scop, 846 F.2d 135, 142 (2d Cir.), rev'd in part on reh'g on other grounds, 856 F.2d 5 (2d Cir. 1988).
The New York State Court of Appeals' seminal decision in the related field of rape trauma, People v. Bennett, 79 N.Y.2d 464, 583 N.Y.S.2d 825, 593 N.E.2d 279 (1992), is instructive. In Bennett, the Court concluded that evidence of "rape-trauma syndrome" as to ordinary responses of rape victims is admissible, since it is generally accepted in the relevant scientific community. See People v. Taylor, 75 N.Y.2d 277, 552 N.Y.S.2d 883, 552 N.E.2d 131 (1990). However, such evidence is inadmissible "when introduced merely to prove that a sexual assault took place . . . or to bolster a witness' credibility . . . . In such instances, the potential value of the evidence is outweighed by undue prejudice to the defendants or interference with the province of the jury." Bennett, 79 N.Y.2d at 473, 583 N.Y.S.2d at 831, 593 N.E.2d at 285. The Court also notes that the decision whether to admit expert testimony under Fed.R.Evid. 702 is vested in the broad discretion of the trial court. United States v. Ruggiero, 928 F.2d 1289, 1304 (2d Cir.), cert. denied, 502 U.S. 938, 112 S. Ct. 372, 116 L. Ed. 2d 324 (1991).
Dr. Miranda testified extensively about his conclusions that those he interviewed and/or evaluated had been sexually abused by Wetterer at Mi Casa. Although the Federal Rules of Evidence do not bar all expert testimony concerning an ultimate issue, see Fed.R.Evid. 704, a district court may exclude ultimate issue testimony under Federal Rule of Evidence 702 when it is not helpful to the trier of the facts or under Rule 403 when it may be unduly prejudicial. See United States v. Schatzle, 901 F.2d 252, 257 (2d Cir. 1990); United States v. Brown, 776 F.2d 397, 401 n. 6 (2d Cir. 1985), cert. denied, 475 U.S. 1141, 106 S. Ct. 1793, 90 L. Ed. 2d 339 (1986). In this case, the Court is capable of assessing the credibility of the key witnesses on its own and finds that Dr. Miranda's testimony on the issues of whether the sexual abuse occurred, and whether Wetterer was the perpetrator, are unduly prejudicial and will be ignored by the Court. See United States v. Serna, 799 F.2d 842, 850 (2d Cir. 1986), cert. denied, 481 U.S. 1013, 107 S. Ct. 1887, 95 L. Ed. 2d 494 (1987) (No error to exclude expert testimony on the lack of reliability of eyewitnesses); cf. Arcoren v. United States, 929 F.2d 1235, 1240 (8th Cir.) (In unusual circumstances district court did not abuse discretion in admitting expert testimony regarding battered woman syndrome), cert. denied, 502 U.S. 913, 112 S. Ct. 312, 116 L. Ed. 2d 255 (1991).
The central issue before the Court is this: where a psychologist is consulted solely for the purpose of diagnosis, and the Court rules that the diagnosis is inadmissible, do the declarants' statements to the psychologist for the purposes of diagnosis fall within the hearsay exception of Rule 803(4)? By the same token, can those statements come in under the Rule 703 "basis-of-the-expert-opinion" rationale if the expert witness's opinion is inadmissible?
In discussing this very problem, one commentator observed:
Under the rationale that statements are admissible [under Rule 803(4)] because they form the basis of the expert's opinion, the only explicit justification for the hearsay exception, albeit a limited, largely negative one, is that the statements would be heard by the jury in any event since they would be admitted for the limited purpose of showing the basis of the expert's opinion [pursuant to Rule 703]. Logically, then, a prerequisite to admission of the statement should be that the expert testify in the case, giving a relevant, admissible opinion as to which the statement provides a basis.