Why would a defense attorney fight to exclude this evidence in the Cosby trial?

[aldiboronti]

From People in an article on the Cosby trial.

The jury also heard more from the prosecution’s sexual assault expert witness, Dr. Veronique Valliere, whose testimony the Cosby team has been vigorously trying to prevent.

Memory loss, confusion, delayed reporting of the offense to authorities and continuing to see an offender after an alleged sexual assault are common in victims attacked by people they know, she testified — especially when intoxicants are used.

“People who go through these events can be depressed, anxious,” she said. “They can become confused. They can doubt their own sense of reality [and] their own self-worth. They can experience shame or embarrassment. They may try to put themselves into denial about what happened.”

I cannot understand, and maybe some of the attorneys on the board will help me out here, why the defense would not be delighted by some of her testimony. Those references to memory loss and confusion in victims (or alleged victims I should say until a conviction is obtained) aren’t they just the sort of thing an attorney for the defense can use effectively? A witness the prosecution states was suffering from memory loss and confusion after the incident. How is that not helpful to the defense in establishing at the very least reasonable doubt? Doesn’t that far outweigh the unhelpful aspects of the psychiatrist’s testimony?

And yet, after the defense lost the motion to bar Dr Valliere’s testimony, all the attorneys do is try to persuade the jury that she’s biased rather than bringing up the memory loss and confusion? I don’t know what Cosby is paying his legal team but either it’s money wasted or I am missing something about the legal process here. That of course is very possible, hence the appeal to those on the board who do know about these matters.

[The_Other_Waldo_Pepper]

I think you’re mixing up cause and effect.

Assume, for the sake of argument, that the defense can already point to memory loss and confusion in the accuser’s statements; if so, do they gain anything from an expert witness testifying that memory loss and confusion are common when someone gets drugged and sexually assaulted by a person she knows?

(Assume instead, if you prefer, that the defense can’t point to any confusion or memory loss in her statements; do they gain anything from the expert’s testimony?)

[Walton_Firm]

The accusations pertain to things that happened decades ago. The defense doesn’t need any special circumstances to argue that the accuser cannot possibly remember accurately what happened back then; ordinary human frailty will explain that just fine. The fact that the alleged crimes happened so long ago, is a huge disadvantage to the prosecution, especially in a case which is mostly about he-said/she-said.

But by having an expert witness testify about chemically-induced memory loss, the prosecution gets to turn that disadvantage into an asset. Every time the victim says that she has trouble recalling something, or contradicts herself or appears confused about something, the prosecution can say: “See? This shows that he must have drugged her, that’s why she is confused!”

In fact they don’t actually need to make that point explicitly so that the defense can argue against it; once they have planted the concept of drug-induced confusion into the jury’s mind, the jury will make that connection for themselves.

[aldiboronti]

Ah, I see and also understand a little more clearly why lawyers are necessary.

[Chronos]

The defense would probably also like to be able to say “Well, if he assaulted her, why did she stay with him for so long afterwards?”. This expert testimony is pointing out that, for whatever reason, it’s common for a woman to stay with her assaulter.

[ganthet]

[QUOTE=aldiboronti]
I cannot understand, and maybe some of the attorneys on the board will help me out here, why the defense would not be delighted by some of her testimony. Those references to memory loss and confusion in victims (or alleged victims I should say until a conviction is obtained) aren’t they just the sort of thing an attorney for the defense can use effectively? A witness the prosecution states was suffering from memory loss and confusion after the incident. How is that not helpful to the defense in establishing at the very least reasonable doubt? Doesn’t that far outweigh the unhelpful aspects of the psychiatrist’s testimony?
[/QUOTE]

@Walton_Firm

But by having an expert witness testify about chemically-induced memory loss, the prosecution gets to turn that disadvantage into an asset. Every time the victim says that she has trouble recalling something, or contradicts herself or appears confused about something, the prosecution can say: “See? This shows that he must have drugged her, that’s why she is confused!”

Dr. Veronique Valliere is not a medical doctor, she’s a PhD psychologist. So, while she could testify to some degree on what affects substances have on alleged victims of sexual violence, her main role in the Cosby case appears to be what’s known as a “blind expert.” This means that she might not have read any of the police reports, victim statements, Cosby’s deposition, sexual assault nurse exam, etc. but is testifying in general about typical victim behaviors of those who suffered from a sexual assault or domestic violence without testifying specifically about what the alleged victim in a particular case did or what that might mean. The prosecutor will make those connections during their closing argument and connecting the dots of the generalized testimony of the expert with the specific facts in the case at hand.

Specifically, an expert like Dr. Valliere would explain counterintuitive behaviors on the part of an alleged victim during and following an alleged sexual assault to the jury. The NDAA document linked to defines counterintuitive behaviors to be “… not a psychological term nor does it define a victim’s behavior. Rather, it defines the public’s perception of the victim’s behavior and the failure of the public’s expectations to match actual victim behavior.” (p.11) This could mean explaining why an alleged victim does not run (if they have that physical ability at the time) at the beginning of a sexual assault, why an alleged victim might not fight back (again, if possible) during a sexual assault, why an alleged victim does not immediately report a sexual assault to police, and numerous other things about an alleged victim’s behavior following the sexual assault. Basically, a counterintuitive expert is there to explain to the jury how there are a wide variety of reactions and responses that are consistent with being a victim of sexual assault.

Generally, defense attorneys don’t like this kind of expert or their testimony because (they ultimately argue) that the expert basically says that any and all kinds of behavior are consistent with a victim who was sexually assaulted. A victim who maintains her account of what happened from day 1 to the present is consistent with someone who was sexually assaulted. A victim whose account of what happened has changed over time is consistent with someone who was sexually assaulted. A victim who still maintained some form of communication with their alleged attacker (if they knew them beforehand) afterwards is consistent with someone who was sexually assaulted. This is where the counterintuitive behaviors testimony fits in. The main (and obvious) line of attack against such experts is that they are just testifying generally and not specifically to the case at hand and the specific alleged victim’s behaviors. They typically (not not always) do not testify to the specific alleged victim’s behaviors because experts generally can not become “human lie detectors” and testify about whether a victim or any other witness is telling the truth based on actions, inactions, or certain behaviors. A blind expert who testifies about victims generally is safe from the defense objecting that the expert is vouching for the credibility of the specific victim or victims in the case.

[ganthet]

@ganthet

Dr. Veronique Valliere is not a medical doctor, she’s a PhD psychologist. So, while she could testify to some degree on what affects substances have on alleged victims of sexual violence, her main role in the Cosby case appears to be what’s known as a “blind expert.”

Apologies, should be “… what effects substances have on alleged victims of sexual violence…”

[aldiboronti]

Thank you, ganthet, for that detailed and instructive answer.

[Northern_Piper]

I agree with Ganthet that defence lawyers generally don’t like such testimony, but I would disagree with the phrasing “consistent with sexual assault.” Rather, the purpose of such testimony is to demonstrate that certain behaviours are “not inconsistent with sexual assault.”

I reaslise that seems like a semantic quibble, but it’s not.

Testimony of this sort is intended, when done properly, to get the jury to approach the issue focussed on the facts of the particular case, and not with any stereotypes of what behaviour to expect from someone who has been the victim of a sexual assault.

For instance, one stereotype is that a victim of sexual assault has to resist, and make noise, to scream. But in some cases, that doesn’t happen: the victim is so overborne by the events that they become almost passive. That doesn’t mean there was no sexual assault, but rather in that case, silence and passivity were how the victim responded. The goal of the testimony in this case isn’t to say “Passivity and silence are consistent with sexual assault.” Rather, it’s to say: “You shouldn’t decide there was no sexual assault because the complainant was passive and did not make noise.”

Similarly, there is the stereotype that the victim of a sexual assault should immediately make a complaint to the police or tell someone else, like friends or family, and that if a complainant does not do so, that’s evidence that there wasn’t an assault. But that’s not the case in all circumstances. Some victims will do that, but other victims find the experience so traumatic that they just don’t want to talk about it. Again, the testimony isn’t intended to say: “Silence is consistent with sexual assault.” Rather, it’s to warn the jury not to rely on a stereotype: “Don’t assume that silence means there wasn’t a sexual assault. Victims sometimes keep silent. You have to decide on the facts of the case, not stereotype about what victims of sexual assault do.”

In short, this type of testimony is to tell the jury that there can be a range of responses to a sexual assault, and they can’t use certain stereotypes to rule out a sexual assault. Rather, they should focus on the facts of the case, and the testimony of the complainant, rather than rely on stereotypes.

[Shodan]

IANAL but ISTM that the defense would not want this kind of testimony because the jury may confuse “consistent with sexual assault” with “not inconsistent with sexual assault”.

I think I understand Northern Piper’s distinction, but the testimony of the kind of expert mentioned in the OP makes it easier to misunderstand. “You can’t use a stereotype of what a victim should do to rule out sexual assault” - that may well be true. But you can’t use a stereotype of what a victim might do to rule it in. Passivity and silence and not fighting back and continuing contact with someone don’t mean she wasn’t raped, but they also don’t mean she was. Because people also don’t fight back and continue contact with someone if the sex was consensual.

Maybe this woman is confused about the details because she was raped, or maybe she is confused because people get confused about details for anything that was years ago. Including consensual sex.

Regards,
Shodan

[Northern_Piper]

@Shodan

I think I understand Northern Piper’s distinction, but the testimony of the kind of expert mentioned in the OP makes it easier to misunderstand. “You can’t use a stereotype of what a victim should do to rule out sexual assault” - that may well be true. But you can’t use a stereotype of what a victim might do to rule it in.

Fully agree with the underlined portion. Such testimony should only be used to point the jury away from stereotypes and to decide the case on the facts presented.

The reason for such testimony, however, is that there are a lot of stereotypes out there about what the victims of sexual assault “should” do. Sometimes those stereotypes were actually part of the law. For example, at common law there was a doctrine of “recent complaint” - that if someone alleged that they had been sexually assaulted, they should have told someone at the earliest opportunity. Failing that, the jury was required to draw an inference that the complaint was likely unfounded, unless there was corroborating evidence.

Two points about “recent complaint” - first, it was a requirement that only applied to complainants in sexual assault cases; no other complainant in other types of criminal cases had to meet that burden, meaning that sexual assault complainants started with a disadvantage that no other complainants had to meet. Second, there is now substantial evidence showing that it is not possible to predict how victims of sexual assault will respond. Some will want to go to the police quickly or tell friends or family; others may wait for some time, because of the shock of it. The jury should be instructed to consider all of the facts of a case in context, rather than rely on stereotypes.

This was the subject of a decision by the Supreme Court of Canada some years ago:

Here, one statement of principle emerges from the expert evidence: the timing of disclosure signifies nothing; not all children immediately disclose sexual abuse; and the timing of disclosure depends upon the circumstances of the particular victim. The content of this evidence had no technical quality sufficient to require an expert’s testimony. It was neither unique nor scientifically puzzling but was rather the proper subject for a simple jury instruction. The doctrine of recent complaint in sexual assault cases as a principle of law no longer exists in Canada and a failure to make a timely complaint must not be the subject of an adverse inference based upon rejected stereotypical assumptions of how persons react to sexual abuse. A trial judge should instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. A proper jury charge in this case would have dispelled the possibility of stereotypical reasoning, saved time and expense, and eliminated superfluous or prejudicial content.

So in Canada, experts generally are not called on this sort of issue, with the trial judge having the responsibility to advise the jury not to rely on stereotypes.

[Fotheringay-Phipps]

@ganthet

Generally, defense attorneys don’t like this kind of expert or their testimony because (they ultimately argue) that the expert basically says that any and all kinds of behavior are consistent with a victim who was sexually assaulted.

Wouldn’t the defense like and use this very sort of expert when defending a defendant who had acted guilty?

There are many stereotypes of how victims are supposed to act, but there are also many stereotypes of how guilty and innocent people act, and the jury could be influenced by these in a given case. I would suppose an expert of this sort would be useful to the defense in such situations in pointing out that there’s a lot of variability in how people act in such circumstances, and that actions such as the defendant did are not inconsistent with innocence.