New Jersey Supreme Court Chief Justice Stuart Rabner

On July 31, 2018, the Supreme Court of New Jersey reversed in large measure an earlier of its decisions and held that in criminal cases, CSAAS (“Child Sexual Abuse Accommodation Syndrome”) expert testimony, except for that on the subject of “delayed disclosure,” may no longer be presented to juries. (State v. J.L.G. (A-50-16) (078718)). The decision is especially significant, because it withdraws judicial acceptance from a previously recognized form of expert testimony.

The defendant was convicted in Hudson County on charges of first-degree aggravated sexual assault; third-degree aggravated criminal sexual contact; second-degree endangering the welfare of a child; and third-degree witness tampering. The Appellate Division affirmed the conviction, and the Supreme Court granted a petition for certification limited to the question of whether the trial court properly denied defendant's motion to exclude the testimony of the state's expert having to do with CSAAS. Because the court lacked an adequate factual record, “[i]t remanded to the trial court for a hearing 'to determine whether CSAAS evidence meets the reliability standard of N.J.R.E. 702, in light of recent scientific evidence.'” Subsequently the court affirmed the conviction on the ground that the evidence of guilt was “overwhelming” but modified the Appellate Division Judgment, holding that in the future “expert testimony about CSAAS … may no longer be presented to juries.” The court further held, however, that testimony about “delayed disclosure” can still be admitted in appropriate cases.

Writing for the unanimous court, Chief Justice Rabner first explained that 35 years ago, a clinical psychiatrist named Dr. Roland Summit had identified five categories of behavior commonly displayed by victims of child sexual abuse: secrecy; helplessness; entrapment and accommodation; delayed, conflicted, unconvincing disclosure; and retraction. Dr. Summit opined that the five behaviors comprised a syndrome, CSAAS. The chief justice wrote that “Courts across the nation embraced Dr. Summit's findings, which paved the way for experts to testify about the syndrome in criminal sex abuse trials.” A prior decision of the New Jersey Supreme Court had also found the evidence reliable, and thus admissible.

The opinion explained that in the years that followed the identification of the syndrome, its reliability was questioned to the point that the only aspect of CSAAS that still had scientific support was “delayed disclosure.” That is because it had been found by experts that a “significant percentage of children delay reporting sexual abuse.” The court thus held that delayed disclosure evidence could only be presented in the future if it satisfied the components of Evidence Rule 702. The court said that the burden would be on the state to show that delayed disclosure evidence is “beyond the understanding of the average juror.”

The opinion further observed that in the instant case, the victim gave “straightforward reasons about why she delayed reporting abuse… .” Thus, the jury did not need an expert's assistance in order to evaluate the child's explanation. However, in future cases, if a child cannot offer a rational explanation, “expert testimony may help the jury understand the witness's behavior.” The court asked the Committee on Model Jury Charges to develop an appropriate instruction on delayed disclosure.

Chief Justice Rabner offered a clear and detailed explanation of why four of the five components of the CSAAS syndrome were no longer viewed as reliable. We commend him for what can best be described as a textbook on CSAAS—its defects and its sole reliable component.

This opinion will also serve as a useful guide as to the requirements that must be satisfied in order for expert testimony to be admitted pursuant to N.J.R.E. 702. The court reiterates that if scientific knowledge will be of assistance to the trier of fact in understanding something that is in issue, a qualified witness may serve as an expert and offer an opinion or other testimony. The decision also states that in order to satisfy the evidence rule, the proponent of expert testimony must establish first that the subject matter of the testimony is “beyond the ken of the average juror”; second, that the file of inquiry “must be at a state of the art such that an expert's testimony could be sufficiently reliable”; and lastly, that “the witness must have sufficient expertise to offer the testimony,” citing State v. Kelly, 97 N.J. 178, 208 (1984). In criminal cases, the New Jersey Supreme Court continues to rely on the Frye standard in order to assess credibility. Chief Justice Rabner stated that, “the test requires trial judges to determine whether the science underlying the proposed expert testimony has 'gained general acceptance in the particular field in which it belongs.'” (Quoting Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923)).

As the Supreme Court observed, such cases are “particularly sensitive and can be difficult to prove. They also carry a powerful stigma and can be hard to defend against.” This decision is a welcome assist to the bench and bar in the consideration of these kinds of cases. We will view with interest its retroactive impact on convictions based on this now-discredited form of expert opinion.