5th Circuit Upholds Testimony from Prosecution's Psychologist in Rape Case

The Fifth Circuit has published an opinion upholding the trial court's admission of testimony from a prosecution expert on rape-victim behavior, in a case arising from a police officer's aggravated sexual assault of a woman arrested for marijuana possession in a traffic stop. The opinion offers this summary of the defendant's evidentiary objection:

[The defendant] claims the testimony should not have been admitted under Daubert because it relied on scientifically suspect methodology. Noting that [the prosecution psychologist's] indicia of rape-victim behavior (e.g., non-reporting to police and
feelings of shame, humiliation, and self-blame) were developed for therapeutic, rather than forensic, purposes, [the defendant] contends the testimony fails to satisfy the first and third Daubert factors: empirical validity and ascertainability of error rate. In other words, according to [the defendant], research on rape necessarily is biased in favor of believing purported victims; to develop indicia of rape-victim behavior, researchers must assume, as a starting premise, the veracity of their subjects, even though there is no way to verify the percentage of subjects actually raped. Therefore, [the defendant] asserts: due to this inherent limitation, no empirically valid or reliable forensic diagnostic techniques can be developed, only therapeutic tools.

The Fifth Circuit's opinion uses italics liberally in making short work of this objection. The gist: the defendant's objection demanded "ideal experimental conditions and controls" that circumstances do not permit and Daubert does not require. See United States v. Simmons, No. 05-60419 (5th Cir. Nov. 21, 2006) (Barksdale, Benavides, & Owen, JJ.).