Expert Witness? Who is this person testifying?

The Expanded Use of Expert Witness Testimony in Pennsylvania Courts

Prior to 2012, almost every witness testifying in a criminal matter actually had some involvement in the case.  The witness could’ve been the complainant, police, the accused, a nurse or doctor, or a witness.  Then came section 5920 of Title 42, on June 29, 2012.  The Pennsylvania legislature passed a new law called “Expert Testimony in Certain Criminal Proceedings.”  This expert witness law was passed in response to growing social awareness and recognition of sexual violence against children.   It became evident that child sexual abuse was more prevalent than previously thought.

To help juries understand the nature of a child’s reaction when abused, an expert witness can testify as to typical characteristics and responses (or lack thereof) when abused.  The law states:

• (b) Qualifications and use of experts.–
  • (1) In a criminal proceeding subject to this section, a witness may be qualified by the court as an expert if the witness has specialized knowledge beyond that possessed by the average layperson based on the witness’s experience with, or specialized training or education in, criminal justice, behavioral sciences or victim services issues, related to sexual violence or domestic violence, that will assist the trier of fact in understanding the dynamics of sexual violence or domestic violence, victim responses to sexual violence or domestic violence and the impact of sexual violence or domestic violence on victims during and after being assaulted.

Disadvantages to the Accused

Prior to this law, if a child complainant waited four years to disclose sexual abuse, the defense attorney could argue up and down this delay was evidence the child is lying.  Now due to this law, the Commonwealth may call an expert witness to say that delay in reporting is typical for children.  Further, the expert can say that delay is not evidence that the abuse did not occur.

This law makes it harder for the accused to prove their innocence. This is because experts may testify to facts and opinions regarding specific types of victim responses and behaviors.  Commonly, the Commonwealth puts the complainant on the stand first to testify to the abuse or conduct. Then, they quickly follow up with this type of expert as their next witness.  The Commonwealth has the expert witness clean up any issues created by the complainant. 

The expert witness commonly finds a way to take any victim response and testify that it’s a normal response.  They should be basing their opinion on their studies. But, if their studies don’t support the facts, the expert can say each person’s reaction is different!  You can’t win!  This is why the statute is so damning. 

Click here to read the article we wrote way back in 2012 when this law was first enacted!

The 2021 Expanded Expert Witness

It got worse in 2021.  The first law passed in 2012 limited the types of cases these experts could by used in.  They could previously testify only in sexual assault or failing to register as a sex offender trials.  A new version took effect in 2021 which expanded the law.  The new version permits experts to testify in sexual assaults, incest crimes, human trafficking, endangering the welfare of a child and corruption the moral of the minors (if the contact is sexual in nature), sexual exploitation of a child, and crimes involving domestic violence.  Domestic violence includes simple assault, aggravated assault, stalking, and strangulation. It seems in almost every litigation the Commonwealth can now call an expert witness.

As mentioned above, the expert may testify about all of the following:

• the dynamics of sexual violence or domestic violence,
• victim responses to sexual violence or domestic violence, and
• the impact of sexual violence or domestic violence on victims during and after being assaulted.

What can we do?

Don’t lose hope! 

First, although these experts are typically prosecution witnesses, the defense has every right to call their own experts under this statute and attack the complainant’s credibility.  This tool is vastly underutilized, and people accused of a crime should know they have the same rights as the Commonwealth. 

Second, although these experts can testify based on studies they’ve read and research they’ve done – these studies still must be accepted as reliable in the scientific community.  They still must pass the Frye Test.  Seasoned defense attorneys can attack the science these experts use and convince the court to prohibit the expert witness from testifying. 

Third, the expert witness may NOT give an opinion regarding the credibility of any other witness, including the victim.  These experts walk a fine line of acceptable testimony and bolstering the victim’s credibility.  Defense attorneys need to be vigilant that the expert does not start to bolster the victim’s credibility or comment on his credibility; if this happens, the entire testimony may be stricken.

Call us

The skilled attorneys at Fairlie and Lippy have years of experience in handling all types of litigation involving sexual offenses.  Please call us at 215-997-1000 for a free consultation regarding your case.

Contact Us – 215-997-1000