Expert Witness Blog
Defendant was convicted of first degree sexual abuse and subsequently appealed his conviction on two grounds, one on the court’s exclusion of his expert witness. The court confirmed the lower court opinion.
Facts: This case (State of Oregon v. Juidd W. Miles – Court of Appeals of Oregon – August 26th, 2015) centers around the conviction of Juidd W. Miles for the sexual abuse of a three year old girl. The victim was missing from her home and her father went looking for her, located her in the backyard and saw the defendant kneeling in front of her. The father saw the defendant touching the sides of the victim’s legs and holding the bottom of her bathing suit, which had been pulled down above her knees. The defendant was subsequently arrested and convicted of first-degree sexual abuse and second-degree criminal trespass. The defendant appealed, stating that the trial court erred in excluding the testimony of his expert witness. In order to assist in his case, the defendant hired a child psychologist, Dr. Dragovich, to opine on the fact that a three-year old does not understand the concept of intimacy as defined by Oregon case law. Child sexual abuse experts should take note of this opinion.
After initially not allowing Dr. Dragovich to testify as an expert, the trial court, allowed the defendant, after trial, to offer proof of what the testimony would have been. Dr. Dragovich had not met or interviewed the victim in this case. He was to testify on the concept of intimacy and that a normal three-year old girl doesn’t regard some of her body parts as intimate as her language development is limited.
Discussion: The defendant relies on case law discussing the term “intimate parts” when it comes to sexual abuse. State v, Woodley, an Oregon Supreme Court case, concluded that the intent of the legislature when proffering the statute on child sexual abuse did not intend for the courts to decide whether or not certain parts of the body are considered “intimate”.
The court in Woodley went on to create a two-part test to assist in concluding which body parts were considered intimate. The first, a subjective test, was that the body part must be regarded as “intimate” by the person touched. The second, the objective test, involves the accused, in that they must know that the touched person regarded that body part as intimate. If the accused did not know that the victim considered this part of his or her body as intimate, the accused should have recognized that this part was an “intimate part”.
Dr. Dragovich’s testimony would be part of the subjective test, whether or not the three-year old girl regarded the body part touch as “intimate”. The state argues in this appeal that Dr. Dragovich’s testimony of the standards of language development is qualitatively different than the subjective prong of the Woodley decision.
The appeals court agreed, stating that the testimony of Dr. Dragovich would not assist the jury in deciding whether the victim regarded specific body parts as “intimate parts”. The court stated that that Dr. Dragovich did not testify that a three-year old does not have the capacity to distinguish between strangers and those with close relationships to her. The expert’s testimony would not assist the jury in determining whether or not the victim was developmentally able to understand that her hips and thighs were parts of her body that should not be touched by strangers.
Held: The appeals court affirmed the decision of the lower court in excluding the expert testimony of Dr. Dragovich.