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People v. Felix

Supreme Court, New York County

January 27, 2017

The People of the State of New York
Jose Felix, Defendant.

          For the Defendant: Maryam Jahedi, Esq.

          For the People: Jessica Troy, Esq., Office of the District Attorney.

          MARK DWYER, JUDGE.

         Defendant Jose Felix moves for an order precluding prosecution testimony about "Child Sexual Abuse Syndrome" [hereinafter "CSAS"]. In the alternative, defendant seeks a Frye hearing concerning such testimony. See Frye v. United States, 293 F 1013 (DC Cir 1923). Defendant's motion will be denied, except as noted below.


         Defendant is charged with one count of Sexual Conduct Against a Child in the First Degree, and related crimes. The People's theory is that defendant abused a young family member on five occasions over the course of about 11 years, while she was from 12 to 23 years old. The complainant reported the crimes only after the final incident.

         The People intend to call at trial a psychologist, Dr. Eileen Treacy. Dr. Treacy would testify about CSAS. [1] In particular, she would note that certain types of behavior by the victim which might otherwise seem odd are in fact consistent with the conduct of a number of other child sexual abuse victims. The doctor would not testify to a general group of "symptoms" of child abuse, and encourage jurors to conclude from similar circumstances in this case that abuse occurred. Nor would Dr. Treacy opine that the complaining witness in fact was abused, much less that defendant abused her.

         Defendant asserts that the testimony proffered by the People is not, or at least is no longer, generally considered reliable by members of the relevant scientific community. On that point, defendant insists, it would be in order at least to hold a Frye hearing. Defendant argues as well that the expert testimony should not be admitted because its subjects are not "beyond the ken" of a typical juror. In the alternative, defendant asks that on this point a ruling be held in abeyance until after a "thorough" voir dire tests whether the jurors require expert aid.


         The legal standards which govern defendant's Frye claim are well settled. Opinion evidence from experts, and in particular expert testimony based on science, may be received in New York. But that is true only if the members of the relevant scientific community generally accept the validity of the underlying principles. The acceptance need not be unanimous. Still, the proponent of the evidence must show widespread agreement about those principles in that relevant community. [2]

         In an individual case the existence of a Frye consensus may be demonstrated in several ways. The simplest method is for the proponent of expert testimony to show that New York's courts have already recognized that there is general scientific acceptance of the evidence. That method applies here. Numerous appellate decisions hold admissible, against challenges akin to defendant's, testimony about CSAS and related syndromes. See, e.g., People v. Carroll, 95 N.Y.2d 375 (2000); People v. Taylor, 75 N.Y.2d 277 (1990); People v. Houston, 250 A.D.2d 535 (1st Dept. 1998). Defendant does not dispute the existence of that legal authority. He does cite cases from New Jersey, Pennsylvania, and Kentucky. But even if those cases are read to bar all CSAS-type testimony, they plainly are not controlling in the face of New York cases like those cited above.

         Defendant thus seeks in effect to re-argue the holdings of the New York cases. He suggests that the prior consensus about the validity of CSAS testimony has disappeared, and that this court should rule that such testimony no longer can be admitted. It plainly is possible for new developments to disrupt a well-established consensus and require the courts to reverse prior Frye rulings. Right now, the admissibility of several types of forensic evidence which were accepted in the past-hair match and bite mark evidence, for example-is undergoing re-evaluation.

         Unfortunately for defendant, he can bring little to the table to support his claim that the CSAS consensus is no longer extant. At the heart of his argument is a single recent article-one published in 2015 in a law journal, not a scientific one. [3] The author of that article, like the several authors of older works which defendant cites, complains of uses of CSAS testimony that are not permitted in New York. See Section C, infra. It would take far more than that article, and older books or articles ...

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