State v. Gersin - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State of Ohio, Appellant, v Gersin, Appellee.
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[Cite as State v. Gersin (1996), --- Ohio St.3d. ---.]
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Criminal law -- Sexual abuse of a child -- Evidence -- Expert testimony
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-- Defendant in child sexual abuse case may present testimony
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as to the proper protocol for interviewing child victims regarding
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their abuse.
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A defendant in a child sexual abuse case may present testimony as to the proper
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protocol for interviewing child victims regarding their abuse.
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(No. 94-2739-- Submitted January 24, 1996-- Decided August 28, 1996.)
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Appeal from the Court of Appeals for Lake County, No. 93-L-025.
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Appellee, Gary Gersin Sr., was convicted of four counts of gross sexual
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imposition for acts allegedly perpetrated against his daughter, Theresa.
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Gersin's contact with Theresa came to light while Theresa was in the care of
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her half-brother, Gary Gersin, Jr., who had custody of Gersin's three youngest
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children. An incident occurred between Gersin and Theresa when Gersin went
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to Gary Jr.'s home to pick up Theresa for unsupervised visitation.
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Theresa told Gary, Jr. about the incident. Gary, Jr. and his wife,
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Michelle, told Gersin that he could not take Theresa that day, and contacted the

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Lake County Department of Human Services. A social worker and a police
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officer came to the house to talk to Theresa, and they suggested that visitation
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be terminated temporarily. Gary, Jr. and Michelle were instructed to go to the
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police station with Theresa to fill out a report.
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Gary, Jr. and Michelle took Theresa to the police station the next day,
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June 25, 1992. Theresa was introduced to the different officers and given a toy
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badge. Deputy Tim DiPadova eventually interviewed Theresa, but terminated
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that interview when she began to get sick. A doctor diagnosed Theresa as
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suffering from an anxiety reaction.
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In August, after Gary, Jr. decided to go forward with a complaint against
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his father, Peggy Taylor, the Executive Director of the Lake County Sexual
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Assault Center, interviewed Theresa in two separate one-hour interviews.
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At trial, Theresa, Deputy DiPadova, and Taylor all testified for the
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prosecution. Gersin attempted to introduce testimony from Dr. Richard Klein.
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Gersin's counsel explained to the trial judge the purpose of Klein's testimony
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in a bench conference:

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"I had asked him to come and testify as to the proper approach to use
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with children whenever you're interviewing them for sexual abuse purposes.
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Basically, laying out what the proper procedure is, that in a custody area one
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must be extra careful because of increase in the possibility of false accusations;
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that there was [sic] some things that were not done that should have been done
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in order to evaluate this situation under certain conditions.
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"* * *
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"* * * Let me just add for the record that among the other things that I
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had discussed from talking to, not only this psychologist but other
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psychologists in preparing for this case, that part of the problem with children
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in this age is that when the proper interview process is not followed, or the
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children are being influenced, or even if you want to use the word brainwashed,
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the problem is they reach the point where they actually believe something
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happened when it didn't, but that's because of their perception of it. That's the
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information the adults were giving them."

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The trial court did not allow Klein to testify, based on this court's
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decision in State v. Boston (1989), 46 Ohio St.3d 108, 545 N.E.2d 1220, which
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held that an expert may not testify as to the veracity of a child witness. The
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court of appeals reversed that ruling, finding the proposed testimony
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distinguishable from that sought to be introduced in Boston. The court of
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appeals found that the testimony concerned not Theresa's veracity, but rather
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the method and technique used by prosecution witnesses to elicit Theresa's
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story.
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The matter is now before this court upon the allowance of a discretionary
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appeal.
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________
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Charles E. Coulson, Lake County Prosecuting Attorney, Ariana E.
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Tarighati, Michael D. Murray and Julie E. Mitrovich, Assistant Prosecuting
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Attorneys, for appellant.
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Talikka, Ischie, Talikka & Wilson and Kristi S. Talikka, for appellee.

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David H. Bodiker, Ohio Public Defender, and Barbara A. Farnbacher,
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Assistant Public Defender, urging affirmance for amicus curiae, Ohio Public
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Defender Commission.
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E. Charles Bates, urging affirmance for amicus curiae, Ohio Association
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of Criminal Defense Lawyers.
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__________
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PFEIFER, J. It is tragic that child sexual abuse cases are so prevalent that
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a body of law has been created which addresses their unique issues. Today, we
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are faced with yet another such case, and hold that a defendant in a child sexual
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abuse case may present testimony as to the proper protocol for interviewing
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child victims regarding their abuse. Rather than infringing upon the fact
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finder's role, such testimony assists the trier of fact, and therefore is consistent
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with this court's holding in State v. Boston (1989), 46 Ohio St.3d 108, 545
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N.E.2d 1220.
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In
Boston, this court held that "[a]n expert may not testify as to the
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expert's opinion of the veracity of the statements of a child declarant." Id. at

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syllabus. To allow an expert to so testify, this court held, "`infringe[s] upon the
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role of the fact finder, who is charged with making determinations of veracity
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and credibility.'" Id. at 128-129, 545 N.E.2d at 1240. This court emphasized
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that "`[i]n our system of justice, it is the fact finder, not the so-called expert or
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lay witnesses, who bears the burden of assessing the credibility and veracity of
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witnesses.'" Id. at 129, 545 N.E.2d at 1240. We do not retreat from those
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statements in this case.
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Boston also stands for the proposition that expert testimony can be
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helpful to a jury in a child sexual abuse case. In Boston, this court determined
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that expert testimony on the ultimate issue of whether sexual abuse has
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occurred in a particular case is helpful to jurors and is therefore admissible
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pursuant to Evid. R. 702 and 704. This court reasoned that "[m]ost jurors
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would not be aware, in their everyday experiences, of how sexually abused
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children might respond to abuse. Incest is prohibited in all or almost all
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cultures and the common experience of a juror may represent a less-than-

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adequate foundation for assessing whether a child has been sexually abused."
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Boston at 128, 545 N.E.2d at 1239.
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Gersin sought to introduce testimony from Dr. Klein regarding
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established protocols for interviewing children who are the alleged victims of
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sexual assault. We must consider whether such evidence is relevant, whether it
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is admissible as expert testimony, and whether Boston allows its admission.
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Relevant evidence is any evidence which has a tendency to make any
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fact that is of consequence to the determination of the action more probable or
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less probable than it would be without it. Evid.R. 401 and 402. Prosecution
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witnesses relied upon Theresa's interviews in their testimony. How that
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information was obtained and the accepted protocols on how to obtain such
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information certainly are relevant.
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Likewise, testimony on those protocols is admissible as expert testimony.
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As this court noted in Boston, an expert may testify on the ultimate question of
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whether sexual abuse has occurred in a given case because most people are
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unfamiliar with the nuances of a child sexual abuse case. Similarly, most jurors

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are unaware of how such child abuse experts arrive at their conclusions.
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Necessarily, in child sexual abuse cases, experts must rely on the version of
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events given to them by small children. Special interviewing processes are
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necessary to get information from child victims, who are often immature,
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inarticulate, frightened, and confused about the abuse they have received.
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Most jurors lack the knowledge of accepted practices in interviewing child
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victims, and expert testimony on the issue is therefore admissible.
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Finally, this court's holding in Boston does not make Klein's proposed
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testimony inadmissible. An expert testifying as to interviewing protocols does
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not usurp the role of the jury, but rather gives information to a jury which helps
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it make an educated determination. An expert like Klein would testify as to
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what interview techniques are endorsed by certain professional organizations.
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Child sexual abuse cases are a special lot. A major distinguishing aspect of a
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child sexual abuse case is how the victim came to relate the facts which led to
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the bringing of criminal charges. A defendant not only should be able to cross-
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examine prosecution witnesses regarding how they obtained their information,

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but also should have the chance to present expert testimony as to how such
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information is ideally obtained. Prosecutors are free to cross-examine, or to
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question the idea that there is only one blanket method of interviewing that
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should be applied to every child.
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Meanwhile, the ultimate issue of the particular child's veracity is left to
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the jury. It was not the intent of Boston to stack the deck against defendants in
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sexual abuse cases, or to hide information from jurors. Even those who prey on
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the defenseless are entitled to a fair defense. Boston was about protecting the
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role of the jury. Relevant, expert information can only help a jury do its job.
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We therefore affirm the judgment of the appellate court.
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Judgment affirmed.
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MOYER, C.J., YOUNG, F.E. SWEENEY and COOK, JJ., concur.
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DOUGLAS and RESNICK, JJ., dissent.
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WILLIAM W. YOUNG, J., of the Twelfth Appellate District, sitting for
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WRIGHT, J.
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State v. Gersin

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ALICE ROBIE RESNICK, J., dissenting. The last thing we need in a
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criminal trial of this type is yet another expert opinion. What the defense
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attempted to show via expert testimony can just as easily be accomplished by
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effective cross-examination. Having two experts or more testify to the proper
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protocol regarding the method used to evaluate child victims of sexual abuse
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will only add to the confusion.
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Appellee proffered Dr. Klein's testimony in order to show that "when the
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proper interview process is not followed, * * * [the children may] reach the
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point where they actually believe something happened when it didn't * * *."
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As appellee's attorney stated, "that's because of [the children's] perception of
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it. That's the information the adults were giving them." In other words, Dr.
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Klein would have testified as to the "proper," nonsuggestive method that
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should be used when interviewing child victims of sexual abuse.
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It does not take a specialized knowledge or expertise to identify when an
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interview might have been overly suggestive. Protocols detailing the proper
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forensic examination of the sexually abused child are readily available to
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medical and legal personnel. See, e.g., Guidry, Childhood Sexual Abuse: Role
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of the Family Physician (Feb. 1, 1995), 51 American Family Physician, No. 2,
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407. A jury, with the help of an effective cross examination, is well equipped
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to evaluate whether the method of interviewing was proper or not. Thus,
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expert testimony on the proper methods that should be used, or on whether this
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particular interviewer used such proper methods, is not admissible under
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Evid.R. 702. For the foregoing reasons, I therefore dissent.
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DOUGLAS, J., concurs in the foregoing dissenting opinion.
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