Evidence of penile plethysmography and  other sexual behavior tests are inadmissible in court.

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  Victims Law 

Evidence of Penile Plethysmography,
Psychological Profiles, Inventories and
Other "Not a Pedophile" Character and
Opinion Evidence Offered on Behalf
of a Defendant in a Child Sexual Abuse
Case is Inadmissible Under
Daubert v. Merrell Dow Pharmaceutical

By Susan K. Smith, Atty.*
Copyright ©1998 Susan K. Smith, Atty. All rights reserved.

Abstract: The memorandum reviews the standard of admissibility for scientific evidence as set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993) and adopted  in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997). The memorandum reviews the evidence offered by the defendant in a civil child sexual abuse and argues that the defense expert's conclusions that the defendant is "not a pedophile" based on the results of a sexual behaviors assessment is inadmissible under Daubert. The author argues that the evidence should be excluded either due to a lack of scientific reliability of the tests in the diagnostic context (penile plethysmography), or for a failure to meet Daubert's "fit" requirement (i.e. MMPI-2 might be scientifically valid but lacks correlation to diagnosis of pedophilia). The memorandum quotes the scientific literature extensively and collects the known cases precluding the admission of penile plethysmography evidence in legal proceedings. The author also argues that the evidence should be excluded as impermissible character evidence.

This memorandum was originally filed as a motion in limine before trial of a
civil child sexual abuse case brought by an adult survivor. The names of the parties
and any other information which might lead to the identification of the Defendant
have been excised in order to comply with a confidentiality agreement
reached between the parties as part of a pre-trial resolution.

1. Introduction

The Plaintiff, now an adult, alleges that he was abused by the Defendant John Roe, M.D., who was then a physician at [City] Hospital. Dr. Roe treated the Plaintiff when he was a young child.

The crux of Plaintiff's claim is that he was sexually abused by Dr. Roe who had a pattern of abusing young children and adolescents with whom he was in contact under the guise that he was performing medical services under the auspices of the Hospital.

The Defendant disclosed as his expert John M.W. Bradford, M.B. [M.D], Director of the Sexual Behaviours Clinic of the Royal Ottawa Hospital in Ontario Canada. Dr. Bradford examined Dr. Roe in Ottawa and subjected him to a battery of tests, including the penile plethysmography (or tumescence)/1/ tests, the Derogatis Sexual Functioning Inventory (DSFI), the Bradford Sexual History Inventory, other subjective inventories authored by Dr. Bradford and others, the Michigan Alcohol Screening Test (MAST), tests of the Defendant's testosterone levels and the Buss Durkee Hostility Index (BDHI). Based upon these tests, his interviews with Dr. Bradford and his review of materials provided by defense counsel, the Defendant's expert has stated that he is prepared to testify that Dr. Roe is "not a pedophile." See report of Dr. Bradford, Exhibit A. See deposition of Dr. Bradford, Exhibit B, 211-213.

The Minnesota Multiphasic Personality Inventory (MMPI-2) was also administered to the Defendant by Dr. W, at the [City Psychiatric] Institute, which test is relied upon by another defense expert, Dr. X. (The MMPI was disregarded by Dr. Bradford, the Defendant's sexual behaviors expert.) Dr. X has also announced that he intends to testify, based upon his interviews and reviews of the tests, that the Defendant is "not a pedophile." See Defendant's designation of experts, Attached as Exhibit P.

This memorandum will review the standard of admissibility of scientific evidence under the Daubert/Porter test in Connecticut. The tests administered to Dr. Roe will be reviewed and the inventory test questions and "raw data" results will be provided to the Court. The admissibility of the tests under Daubert will be discussed in terms of the scientific literature, the deposition testimony of Dr. Bradford, the testimony and report of Dr. X, and the case law in Connecticut and in other jurisdictions. Plaintiff argues that testimony based upon the tests and testimony of both experts are inadmissible as being either 1) scientifically unreliable under Daubert/Porter, 2) non relevant, 3) more prejudicial than probative or 4) impermissible character evidence.

Argument

I.

Evidence of the Results of Penile Plethysmography (Or Penile Tumescence) Studies, Subjective Sexual Behavioral Inventory Evidence, Alcohol Screening Test Results, MMPI-2 Results, Hormonal Testing Results, MMPI, And/or Any Other Profile Evidence Should Be Excluded in That (1) That Such Evidence Is Scientifically Unreliable, (2) Non-relevant and/or (3) That Such Evidence Is Impermissible Character Evidence

Standard for Admissibility in Connecticut

Until 1997, the admissibility of scientific evidence in Connecticut was guided by the Frye test. Frye mandated that scientific evidence was admissible only if "generally accepted" by the scientific community. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In 1993, the United States Supreme Court adopted a somewhat more flexible, factor-based approach to the admission of scientific evidence in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993). The Daubert test was adopted by the Connecticut Supreme Court in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997)(ruling that polygraph evidence is per se inadmissible in Connecticut). Where the Frye test rigidly adhered to a rule requiring "general acceptance" in the scientific community, the Daubert standard focuses on the "reliability" and "fit" (relevance) of the evidence, Porter, 241 Conn. at 62. General acceptance is taken into account as one factor. Id., 241 Conn. at 64:

[The court] has a responsibility to determine, pursuant to [F.R.E.] Rule 702, whether the proffered evidence will "assist the trier of fact." . . . This entails a two-part inquiry: whether the reasoning or methodology underlying the [scientific theory or technique in question] is scientifically valid and ... whether that reasoning or methodology properly can be applied to the facts in issue.

241 Conn. at 63-64 (quoting Daubert, 509 U.S. at 589, 592-93).

The Porter court embraced the four-factored approach articulated by the Supreme Court in Daubert in order to address the reliability prong of the test. Courts should consider whether the evidence:

(1) can be, and has been tested, (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error, including the existence and maintenance of standards controlling the technique's operation; and (4) whether the technique is, in fact, generally accepted in the relevant scientific community.

Porter, 241 Conn. at 64 (citing Daubert, 509 U.S. at 593-94). The Connecticut court commented that the general acceptance, factor is a significant factor, and in some instances, may be the most important factor. Porter, 241 Conn at 85.

In addition to being scientifically reliable, the proposed evidence must "fit" the case in which it is presented; the evidence must be demonstrably relevant to the facts and not just scientifically valid in the abstract. 241 Conn. at 65 (citing Daubert at 591). Finally, even if the evidence satisfies both the reliability and relevancy requirements of Daubert, the evidence will be excluded if its probative value is outweighed by the danger of unfair prejudice. 241 Conn. at 65. In Porter, the Court ultimately concluded that admission of polygraph evidence was precluded in criminal and civil cases because its prejudicial impact greatly exceeded its probative value. 241 Conn. at 93, 94 n.36. Although the Court stated that the subjective nature and highly questionable value of the polygraph weighed heavily against admission, it declined to "decide" whether the polygraph was valid under Daubert. The Court instead jumped to the next step in its analysis and reasoned that the polygraph was too prejudicial because, inter alia, it invaded the fact-finding province of the jury. 241 Conn. at 115-116.

In reaching its conclusion, the Connecticut Supreme Court rejected the theory that all scientific evidence should be admitted and that questions concerning validity go solely to "the weight." The Court determined that a trial judge appropriately serves as a "gatekeeper," making the threshold determinations as to the reliability and relevance of the proffered evidence and/or expert's testimony, 241 Conn. at 68, in part because judges are in a much better position to assess the fundamental validity of the evidence. 241 Conn. at 71.

Once challenged, as case is here, the party seeking to admit the scientific evidence has the burden to demonstrate that it is sufficiently reliable and relevant. 241 Conn. at 87. A separate evidentiary hearing is often necessary for the trial court to make the appropriate determination, however it is not mandatory. In Porter, the Supreme Court ruled that a separate evidentiary hearing was not necessary for the trial court to rule on the admissibility of the polygraph. 241 Conn. at 59. Evidence should not be admitted when concerns about the scientific technique result in a finding that the evidence is incapable of assisting the fact finder in a meaningful way. Id., at 88. Evidence should also be excluded if the application of a methodology to a specific individual or situation is sufficiently flawed so as to render the evidence unreliable because it does not "fit" the situation. Id., at 89, n.31.

The Penile Plethysmography/Tumescence Studies

The nature of penile plethysmography was described in State v. Spencer, 119 N.C. App. 662, 459 S.E.2d 812 (1995):

The penile plethysmograph attempts to measure physiological indications of sexual arousal in response to particular stimulus materials. The individual is placed in a room and a mercury strain gauge /2/ is placed around the penis so that the circumference of the penis can be measured. And this mercury strain gauge is capable of measuring slight increases in circumference, many times before they are noticeable to the man himself. The individual is then presented with sequential stimulus materials, auditory and visual, encouraging him to think about and look at materials indicative of sexual activity with different ages of people.

459 S.E.2d at 815.

Courts applying the Daubert analysis have excluded evidence of penile plethysmography based upon its scientific unreliability. In United States v. Powers, 59 F.3d 1460 (4th Cir. 1995), the court excluded the penile plethysmograph test because it failed to qualify under Daubert's scientific validity prong:

The evidence produced at trial clearly showed that these factors weighed against the admission of the penile plethysmograph test results. First, the Government proffered evidence that the scientific literature addressing penile plethysmography does not regard the test as a valid diagnostic tool because, although useful for treatment of sex offenders, it has no accepted standards in the scientific community. Second, the Government also introduced evidence before the judge that a vast majority of incest offenders who do not admit their guilt, such as Powers, show a normal reaction to the test. The Government argues that such false negatives render the test unreliable.

Id. at 1470-71. The Powers court noted the fact that it was unable to locate any decisions acknowledging the validity of penile plethysmography other than in the treatment and monitoring of sex offenders. See also, Garren v. State, 1996 WL 37987, 220 Ga. App 66, 467 S.E.2d 365 (1996)(sustaining trial court's refusal to admit evidence of test).

In State v. Spencer, the North Carolina court reviewed the literature and case law and concluded that penile plethysmography was scientifically unreliable:

There is a substantial difference of opinion within the scientific community regarding the plethysmograph's reliability to measure sexual deviancy. See e.g., Barker and Howell, The Plethysmograph: A Review of Recent Literature, 20 Bull. Am. Acad. of Psychiatry and Law 13 (1992) (identifying several problems with the reliability of the plethysmograph, namely "lack of standards for training and interpretation of data, lack of norms and standardization and susceptibility of the data to false negatives and false positives," and concluding that "despite the sophistication of the current equipment technology, a question remains whether the information emitted is a valid and reliable means of assessing sexual preference").

Id. Id. at 815 [the Barker and Howell article is attached as Exhibit E.]

Most, if not all, of the courts that have reached the issue of the admissibility of penile plethysmography tests have excluded evidence of the tests. See e.g., See, e.g. R.D. v. State, 706 So. 2d 770(Ala. Crim. App. 1997); Nelson v. Jones, 781 P.2d 964 (Alaska 1989) cert. denied, 498 U.S. 810 (1990)(judge sitting as fact finder in family relations matter rightfully gave no weight to penile plethysmograph evidence as unreliable); People v. Stoll, 49 Cal. 3d 1136, 265 Cal. Rptr. 111, 783 P.2d 698, 713 n. 21 (1989) (dicta); People v. John W., 185 Cal. App. 3d 801, 229 Cal. Rptr. 783, 785 (1st DCA 1986) (defendant failed to establish that the plethysmograph "was a reliable means of diagnosing sexual deviance" and ruled the test inadmissible). See also In re Mark C. v. San Diego County Dept. of Social Services v. David C. , 7 Cal. App. 4^th 433, 445,8 Cal. Rptr. 2d 856 (1992)(penile plethysmography and other test battery excluded); Gentry v. State, 213 Ga. App. 24, 443 S.E.2d 667 (1994); Stowers v. State, 215 Ga. App. 338, 449 S.E.2d 690 (1994); Dutchess Cty. Dept. of Social Services v. Mr. G., 141 Misc.2d 641, 534 N.Y.S.2d 64, 71 (1988) ("the results of the plethysmograph as a predicator of human behavior cannot be considered"); Cooke v. Naylor, 573 A.2d 376 (Me. 1990); State v. Ambrosia, 67 Ohio App. 3d 552, 587 N.E.2d 892, 899 (1990)(penile plethysmography unreliable in classifying pedophilia); In the Interest of A.V., 849 S.W.2d 393 (Tex. Ct. App. 1993) (proponent of test failed to establish its reliability).

Penile plethysmography cannot meet Daubert's validity or relevance tests because the test results are not generally accepted, are not sufficiently accurate, the test is subject to faking and voluntary control by test subjects, there is no standardized set of stimuli or scoring used by plethysmography experts and the results are not relevant to the question of whether the Defendant is a child molester.

General Acceptance/Accuracy of the Testing. The accuracy and reliability of penile plethysmography has not been established. The Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition) of the American Psychiatric Association ("DSM-IV"),/3/ universally accepted by courts and mental health professionals as authoritative in the area of the diagnosis of mental disorders and diseases, states that

Penile plethysmography has been used in research settings to assess various paraphilias by measuring an individual's sexual arousal in response to visual and auditory stimuli. The reliability and validity of this procedure in clinical assessment have not been well established, and clinical experience suggests that subjects can simulate response by manipulating mental images.

DSM-IV, Paraphilias, at 524. Because the DSM-IV is the diagnostic "bible" for mental health professionals engaged in assessment of mental illness and disorders, its rejection of penile plethysmography as an assessment tool signifies "non-acceptance" of the methodology within the scientific community. See also Barker & Howell, The Plethysmograph: a Review of Recent Literature, Bull. Am. Acad. Psychiatry & Law 20:13-26 (1992) [Exhibit E] ("until a way can be devised to detect and/or control false negatives and false positives, the validity of the test data will be questionable.") Lack of general acceptance is a significant factor in the court analysis, perhaps, the most important factor. State v. Porter, 241 Conn. at 85.

Dr. Bradford's own study reflects the problems inherent in penile tumescence testing. Evaluation of the Sexual Behaviours Clinic: Assessment of Child Molesters, J. Bradford, et al (June 18, 1997). [Exhibit C.] Dr. Bradford collected data from a group of 200 subjects, 100 of which were admitted child molesters and 100 of which were volunteer "community control" subjects. Even using an admitted population of child molesters, Dr. Bradford's penile tumescence testing could only correctly classify 62% of the admitted homosexual child molesters and 52% of the admitted heterosexual child molesters. See Dr. Bradford's summary Evaluation of the Sexual Behaviours Clinic - Assessment of Child Molesters, J. Bradford, et al (June 18, 1997), at 8, Exhibit D. [Summary version of Exhibit C.] According to the report, twenty-five (25%) accuracy in classification would have been expected from mere chance.

Other studies report that plethysmography has an even poorer accuracy record. Simon & Schouten cite a study (Wormith) in which 42% of the pedophiles were classified as having normal sexual preferences. Another study (Barbaree and Marshall) found that only 35% of pedophiles demonstrated the "pure" child-preference profile. Simon & Schouten, The Plethysmograph Reconsidered: Comments on Barker and Howell, Bull. Am. Acad. Psychiatry Law, Vol. 21, No. 4, 1993, at 508.[Exhibit I] Simon & Schouten conclude that the plethysmograph is not consistently accurate in classifying pedophiles. Id. The low percentage of accuracy figures reported in these studies may even be distorted because it is common practice among researchers to eliminate low responders. Id.

The accuracy of penile plethysmography on subjects who are involved in legal process is even more problematic. Studies have shown that there is a heightened potential for an increased number of false-positive and false-negative results, as well as incidents of faking of offenders involved in adjudicatory process. "Sex Offenders: Diagnostic Assessment, Treatment and Related Issues." Sheldon Travin, M.D. (in Rosner, Principles and Practice of Forensic Psychiatry, at 528, 531)[Exhibit O](citing Travin, Cullen & Metella, Profile of sex offenders seen in a court clinic (1987). See also "Patterns of Sexual Arousal of Accused Child Molesters Involved in Custody Disputes." Archives of Sex. Beh. (Dec. 1990)

Dr. Bradford concluded that the "validity of penile tumescence testing in the assessment and treatment of sexual offenders requires further empirical support." Exhibit C, at 3. The primary concern, according to Dr. Bradford, "is the external validity of the procedure, or the extent to which the assessment of sexual preference in the laboratory predicts behaviour outside the laboratory." Exhibit C, at 1. Dr. Bradford candidly reviews the problems in penile response in testing in his report at pages 1 through 3 (Exhibit C.)

Some researchers and clinicians in the field of sexual offender treatment accept penile plethysmography as a useful tool in assessing and treating admitted offenders and in monitoring offenders post-incarceration. But among those clinicians who accept and use plethysmography, the majority do not feel that plethysmography has any utility as a diagnostic tool to determine whether a non-admitter is a sexual deviant. Barker & Howell, The plethysmograph: a review of recent literature, Bull. Am. Acad. Psychiatry & Law 20:13-26 (1992) [Exhibit E](plethysmography's usefulness in the evaluation and treatment of known sex offenders, but not for determining guilt or innocence or for predicting future offenses); McGrath, et al. Referring Sex Offenders for Psychosexual Evaluation: a Review, Journal of Addictions and Offender Counseling. [Exhibit F]

Faking. The largest and most unresolved problem with using measurements of penile response as a diagnostic or classification tool is the fact that penile response can be controlled by test subjects. "The problem of faking, more than any other, continues to limit the clinical utility of phallometric tests." Schouten & Simon, Validity of Phallometric Measures with Sex Offenders: Comments on the Quinsey, Laws and Hall Debate, Journal of Consulting and Clinical Psychology, Vol. 60, No. 5 (1992) [Exhibit G]. In one test, researchers made the "striking and somewhat unexpected finding [of] the ability among 80% of the subjects who exhibited sexual arousal to the stimuli to later voluntarily and completely inhibit sexual arousal." Hall, Proctor & Nelson, Validity of Physiological Measures of Pedophilic Sexual Arousal in a Sexual Offender Population, Journal of Consulting and Clinical Psychology, Vol. 56, No. 1, 118, at 121 [Exhibit H]. Of the Hall, Proctor & Nelson 122-member test group, 114 were able to reduce their response, 91 were able to completely inhibit response and only 4 were unable to reduce their arousal. Problems of accuracy in classification increase when the test is used with a non-admitting population because response is subject to voluntary control and the test is therefore vulnerable to faked response. In another study, it was found that all the participants were able to suppress their responses to stimuli in order to give misleading data as to their sexual preference. Kaine, Crim & Mersereau, Faking Sexual Preference, Can. J. Psychiatry Vol. 33, June 1988 [Exhibit R.]. In a recent study, it was confirmed that the majority of test subjects could fake enhanced phallometric outcomes for age preference. Wilson, Psychophysiological Signs of Faking in the Phallometric Test, Sexual Abuse: A Journal of Research and Treatment, Vol. 10, No. 2 (1998)[Exhibit X] See also Myers, et al, Expert Testimony in Child Sexual Abuse Litigation, 68 Neb. L. Rev. 1, 134-35 (1989) (problem with the reliability of penile plethysmograph testing is that penile response is subject to voluntary control, and the test should not be used to determine whether or not an individual has engaged in deviant behavior). No reliable means exist for reducing the impact of faking on test results. Simon & Schouten, Exhibit I, at 510; Freund & Blanchard, Phallometric Diagnosis of Pedophilia, Journal of Consulting & Clinical Psychology, Vol. 57, No. 1, 100 (1989) [Exhibit K](plethysmography not dependable for the diagnosis of pedophilia due to the ability of many subjects to influence the outcome); Voluntary Control of Penile Tumescence: Effects of an Incentive and a Signal Detection Task, Journal of Sex Research. 1991 No. Vol. 28 (4) (strategy designed to eliminate faking was not successful)[Exhibit S].

Given the potential for faking and control of the outcome, plethysmography studies cannot pass muster under Daubert/Porter's requirement that there be standards in place to control the operation and application of the test. 241 Conn. at 64. Nor can the studies meet Daubert's reliability requirement.

Lack of Standardization. The other widely quoted criticism of plethysmography is the lack of standardized test stimuli and lack of a determination of which of the many aspects of stimuli cause arousal and how that data correlates to deviancy. Simon & Schouten, The Plethysmograph Reconsidered: Comments on Barker and Howell, Bull. Am. Acad. Psychiatry Law, Vol. 21, No. 4, 1993, at 506-07. [Exhibit I]. See also deposition of Dr. Bradford, at 129 (testifying that one problem with the procedure is that there is no uniform set of visual or audio stimuli used by plesythmography testers). There is also no uniform scoring procedure and no agreement on what degree of arousal is clinically significant and what conclusions can be inferred from percentages of engorgement. Id. at 507. See also Simon & Schouten, Plethysmography in the Assessment and Treatment of Sexual Deviance: An Overview, Archives of Sexual Behavior, Vol. 20, No. 1, at 78-79 (1991)[Exhibit L](inadequate study and even description of stimuli in studies, categories of stimuli imprecise because pedophiles exhibit idiosyncratic and overlapping patterns of preference and arousal); Howes, A Survey of Plethysmographic Assessment in North America, Sexual Abuse: A Journal of Research and Treatment, Vol. 7, No. 1 (1995)[Exhibit V)(pointing to lack of standards in stimuli and data interpretation). See also Porter, 241 Conn. at 121-22 (lack of standardization between examiners leads to time-consuming battles between experts as to the controls and appropriateness of questions, resulting in prejudicial delays).

In assessing the validity of scientific evidence, the court "may take judicial notice of the existence of a body of scientific literature." State v. Porter, 241 Conn. at 94. The court may take notice of the articles cited, as well as other articles in the body of scientific literature that points to the problems inherent in penile plethysmography testing or the application of the testing to diagnostic situations. /4/

Relevance. Courts have also cited the fact that arousal testing is not relevant because demonstration of a lack of penile response to sexual stimuli involving children is not probative of one's guilt or innocence of child sexual abuse. State v. Spencer, 459 S.E.2d at 816. Even if the penile plethysmography test could reliably assess pedophilia, that assessment is not relevant because the majority of child molesters are not "fixated" pedophiles./5/  Deposition of Dr. Bradford, at 213 (only 40% of child molesters are classified as pedophiles). See also Johnston & Johnson, A cognitive approach to validation of the fixated-regressed typology of child molesters, Journal of Clinical Psychology, 53(4):361-8 (June 1997) (1/3 of the molesters in study identified as fixated and 2/3 as regressed); Abel, et al, Multiple Paraphilic Diagnoses among Sex Offenders, Bull. Am. Acad. Psych. & Law, Vol. 16, No. 2 (1988 [Exhibit U])(majority of subjects in study could become involved with adult partners; paraphilic and nonparaphilic behavior and coexisted in most subjects). Therefore, even giving the plethysmograph the benefit of the doubt on scientific reliability, the question whether the defendant can be classified as a pedophile has little correlation and is not probative on the issue of whether he molested children. Stated another way, the result of the penile plethysmography studies of the Defendant is simply not relevant. The use of penile response testing in the manner advanced by the defense cannot satisfy the "fit" requirement as set forth in Daubert and adopted in Porter. 241 Conn. at 83-84 (citing State v. Foret, 628 So.2d 1116, 1124-27 (La. 1993) excluding evidence that was designed as a tool to assist treatment and methodology employed was not intended to be a diagnostic tool).

Potential for Prejudice. Like the polygraph, penile plethysmography has the potential for prejudice. Given the problems with validity, the problems relating to prejudice are not outweighed by the probative usefulness of the results. 241 Conn. at 121. Like the polygraph, there are no standardized questions (stimuli) or standard interpretations of the data. Admission of the test in court could therefore lead to lengthy battles over the methodology underlying each examiner's personal version of the test. 241 Conn. at 121-22. Like polygraph evidence and testimony, the nexus between the test results and its significance is likely to consume significant court time. 121 Conn. at 123.

Plethysmograph test results also have the same prejudicial potential for invading the province of the jury on the ultimate issue, 241 Conn. at 116-117, or for misleading the issue on the utility of the test results on the ultimate issue. See Duncan v. State, 1998 Ga. App. LEXIS 523, Ga. App. Ct. Dockets A98A0477 (Mar. 30, 1998)(expert psychologist barred from testifying that defendant was "not a pedophile" based upon psychological testing because the testimony would invade the province of the jury); Tungate v. Commonwealth, 901 S.W.2d 41 (Ky. 1995)("not a pedophile" testimony by psychiatrist excluded as unreliable and invasive of jury function); Becker & Quinsey, Assessing Suspected Child Molesters, Child Abuse & Neglect, Vol. 17, pp. 169-174 (1993)[Exhibit T]("The question of determining whether or not a person has committed a sexual offense is not one that clinical assessment can address. There are no psychological tests or techniques that indicate whether someone has engaged in sexual behaviors with children; such questions are best left to detectives and the courts." )

The Derogatis Sexual Functioning Inventory and Other Subjective Inventories

The DSFI is a subjective behavioral inventory of direct questions set forth in a questionnaire which is completed by the test subject. The test was designed for subjects to self report histories of sexual dysfunction, not deviancy. Derogatis, et al, A Psychological Profile of the Sexual Dysfunctions, Archives of Sexual Behavior (May 1979). The test, like all the subjective tests administered to the defendant, is "transparent," meaning that an obvious correct answer is apparent to the test subject. Bradford Dep. at 127, 199. The test contains no "lie" or "denial" scales. Bradford Dep. at 199./6/  Subjective tests depend on the truthfulness of the test subject. Bradford Dep. at 145-146. See also, S. Travin, M.D. (in Rosner, Principles and Practice of Forensic Psychiatry, at 528)[Exhibit O](self reporting testing instruments, including interviews, scales, questionnaires and inventories depend upon the truthfulness of the sex offender).

Other subjective inventories administered by Dr. Bradford include the Bradford Sexual History Inventory, Self Report of Sexual Interest and Activity, Self Report of Arousal, the Rape-Myth Acceptance Scale, Adversarial Sexual Beliefs and Acceptance of Interpersonal Violence, Coercive Sexuality Scale, and the Abel Cognition Scale. Dr. Bradford conceded that at least one aspect of the DSFI --the test of sexual knowledge-- was invalid when applied to the test subject, a physician and endocrinologist, because the Defendant has superior knowledge. The rape-myth test and the interpersonal violence test are not applicable to subjects such as the Defendant who are being assessed for non-violent sexual crimes. The questions and answers ("Raw Data") of the tests and inventories administered to the defendant are included as Exhibit M.

Examples of questions in battery administered to the Defendant are:

Michigan Alcohol Screening Test. Michigan Alcohol Screening Test. (Exhibit M, at page 09)

Example: Do you feel you are a normal drinker? Yes/No.

Example: Are you always able to stop drinking when you want to? Yes/No.

Open-ended Sexual Fantasy Open-ended Sexual Fantasy (Exhibit M, at 10)

Describe a sexual fantasy that you can recall having, which is the most stimulating or exciting for you. [calls for an essay-type response]

Forced choice of sexual preferences. Forced choice of sexual preferences. (Exhibit M, at 13).

X's placed on scale of preference. For example, #5) forces the choice between an adult woman and young boy, and the defendant put an x next to "adult woman"

Rape Myth Acceptance Scale Rape Myth Acceptance Scale (Exhibit M at 15)

Example: 11. If a woman gets drunk at a party and has intercourse with a man she has just met there, she should be considered "fair game" to other males at the party who want to have sex with her too, whether she wants to or not. [Answers on a scale of 1 (strongly agree) to 7 (strongly disagree)] The defendant chose "7".

Example: Page 16, #5: Sometimes the only way a man can get a cold woman turned on is to use force. [Answers on a scale of 1 (strongly agree) to 7 (strongly disagree)] The defendant chose "7".

[Abel] Cognition Scale [Abel] Cognition Scale (Exhibit M at 22)

Example. #7. Having sex with a child is a good way for an adult to teach the child about sex. [Answers on a scale of 1 (strongly agree) to 5 (strongly disagree)] The defendant chose "5." /7/

Example. #12 (page 23). Sometime in the future, our society will realize that sex between a child and an adult is all right. [Answers on a scale of 1 (strongly agree) to 5 (strongly disagree)] The defendant chose "5."

Example. #17. An adult fondling a young child or having the child fondle the adult will not cause the child any harm. [Answers on a scale of 1 (strongly agree) to 5 (strongly disagree)] The defendant chose "5."

Coercive Sexuality Scale Coercive Sexuality Scale (Exhibit M, at 25)

Example. #17. [Have you] Used threats of physical aggression with a woman to get her to have sex. [Answers on a scale of 1 (never) to 4 (often)] The defendant chose "1".

Example. #19. [Have you] Used a weapon on a woman to get her to have sex with you. [Answers on a scale of 1 (never) to 4 (often)] The defendant chose "1".

Bradford Sexual History Inventory Bradford Sexual History Inventory (Exhibit M, at 26 et seq.)

Example. #15. In total, how many times have you had sexual contact (touching, intercourse, etc.) with girls 12 years old or younger? (Exhibit M, at 30) [Not answered because the subject is instructed to skip the section if not applicable]

Example. #18. Since you were 16 years old, how many different boys, 12 years old or younger, have you touched in a sexual way? (Exhibit M, at 31)

Example. #26. Since you were 20 years old, how many different boys, 13 to 15 years old, have you touched in a sexual way? (Exhibit M, at 33)

Example. #28b. How did you get the boy(s) to have sexual contact with you? (Exhibit M, at 34)

Example. #40b. How many times have you physically tried to force a man to have sexual relations with you? [7 answer blanks provide number ranges from "none" to "over 100"] Defendant checked "none." (Exhibit M, at 36)

Example. #40b. How many times have you intentionally exposed your penis in a public place? [7 answer blanks provide number ranges from "none" to "over 100"] Defendant checked "none." (Exhibit M, at 36)

Example. #52. Have you ever had sexual contact with an animal? [7 answer blanks provide number ranges from "none" to "over 100"] Defendant checked "none". (Exhibit M, at 37)

Example. #58. [Have you ever viewed pornographic films which] contained scenes of children engaging in sexual acts. (Exhibit M, at 38)

Fantasy Checklist Fantasy Checklist (Exhibit M, at 40)

Example 6. Sexual activity with a boy between 6 and 13 years old. [defendant answered never] (Exhibit M, at 41)

Example 14. Sexual activity with a boy between 14 and 16 years old. [defendant answered never] (Exhibit M, at 41)

Example 21. Sexual activity with a girl between 6 and 13 years old. [defendant answered never] (Exhibit M, at 40)

Derogatis Sexual Functioning Inventory Derogatis Sexual Functioning Inventory (Exhibit N)

Examples: Fantasy Check-off Lists (Ex. N, p. 7)

    10. (__ ) Homosexual fantasies

    13. (__) Degrading a sex partner

While the DSFI and subjective self-reporting inventories may have validity in other settings --i.e. for research performed on a candid test population or as a treatment tool with an admitted offender-- the test has no utility as a diagnostic tool given its transparency. See Sheldon Travin, M.D. "Sex Offenders: Diagnostic Assessment, Treatment and Related Issues"(in Rosner, Principles and Practice of Forensic Psychiatry, at 530)(self-reports depend on the truthfulness of the offender)[Exhibit N.]. As Dr. Bradford conceded, the inventories contain no lie or denial scales and wholly depend upon the truthfulness of the test subject. When applied to the situation of a non-admitting test subject whose purpose in taking the test is to establish his innocence, the subjective inventories have no scientific validity. See, e.g. R.D. v. State, 706 So. 2d 770(Ala. Crim. App. 1997) (DSFI, a written test designed to evaluate a person's sexual knowledge, attitudes and experience, was properly excluded. It does not indicate whether a person did or did not commit a specific sexual crime.)

Given the transparency and vulnerability to manipulation, the self-reporting inventories cannot meet the scientific validity requirements of Daubert/Porter. 241 Conn. at 64 (lack of ability to test the technique, lack standards controlling the techniques operation).

Minnesota Multiphasic Personality Inventory (MMPI-2)

The MMPI is a paper and pencil test of 566 true/false questions which measures 15 different aspects of a person's personality or psychological functioning as well as three other subtests which measure lying. People v. John W., 185 Cal. App. 3d 801, 229 Cal. Rptr 783 (1986). The MMPI was not designed to measure sexual deviance and therefore has been held to be irrelevant evidence. See, e.g. R.D. v. State, 706 So. 2d 770 (Ala. Crim. 1997). The utility of the MMPI as a tool to assess sexual offenders is a subject of controversy and no reliable correlations between its personality scales and sexual deviancy has been established. See, e.g., Mann, et al The Utility of the MMPI-2 with Pedophiles, Sex Offender Treatment: Psychological and Medical Approaches. Pp. 59-74 [Exhibit J]. Mann, et al calls for a normative base for sex offenders, which data has not yet been developed. In his deposition, the defense expert Dr. Bradford testified that he did not rely upon the MMPI because it was not helpful in assessing sexual deviation:

Q. Okay. So let's put those aside for now. Why is an inventory like the MMPI not done in every case?

A. Because a number of years ago when we used to do it, and I think we went back and looked at more than 900 cases in the sexual behaviours clinic and MMPI wasn't helpful in the evaluation of sexual deviation.

Q. Doctor, the MPPI does not have a pedophilia scale, does it?

A. No.

Q. Has there been any correlations of scales on the MPPI to any finding -- particular findings of sexual deviancy?

A. Is this a general question for me?

Q. Yes.

A. Because I know a number of that literature and I think there are sort of pros and cons. My opinion is that the MPPI is not helpful.

Bradford Dep., 67-68. See also Bradford study, Exhibit C, at 3.

Although the MMPI is a generally accepted and valid tool for the diagnostic testing of a person's personality and psychological function, because there has been no correlation between the MMPI and deviancy, the MMPI cannot meet the "fit" requirement of Daubert/Porter and should be excluded from evidence. See, Becker & Quinsey, Assessing Suspected Child Molesters, Child Abuse & Neglect, Vol. 17, pp. 169, 171 (1993)[Exhibit T](discriminant validity of MMPI in the assessment of child molesters is poor); State v. Porter, 241 Conn. at 65 (citing Daubert at 591)(evidence musts be demonstrably relevant to the facts and not just scientifically valid in the abstract); see also United States v. Banks, 36 M.J. 150, 165 (1992)(recognizing that the MMPI is generally accepted as helpful in aiding the psychological diagnosis, but concluding that the MMPI is not a reliable tool to predict pedophilia.)

The testimony of the other defense expert, Dr. X, is largely based upon the MMPI. Dr. X states in his report,

psychological testing can be suggestive of pedophilia or other sexual problems of this kind, but it is not absolutely diagnostic. The results of Dr. W's [MMPI] test are normal and strongly suggest that Dr. Roe is innocent of the charges against him. Sexual offenders generally have a broad range of psychological difficulties and a high rate of personality disorders revealed on these tests.

Report dated November 27, 1995, Exhibit Q, at Page Three. Dr. X's position on the MMPI is unsupported in the literature and contradicted by Dr. Bradford.

Dr. X gives three other bases for his opinion. First, he asserts that Dr. Roe is not a pedophile because he has been accused by both male and females that they were abused as children. Dr. X states that a "polymorphous" pattern of abuse is unusual and would have to be associated with serious pathology. Id. Once again, there is no support for this position in the literature and Dr. X is contradicted by Dr. Bradford. Bradford deposition, at 191. See also Bradford, et al, The Paraphilias: A Multiplicity of Deviant Behaviors, Can J. Psychiatry Vol. 37, March 1992 [Exhibit Y]; See also Abel, et al, Multiple Paraphiliac Diagnoses among Sex Offenders, Bull. Am. Acad. Psych. & Law, Vol. 16, No. 2 (1988)[Exhibit U]. Second, Dr. X argues that the Defendant's actions were very risky and would have to be undertaken by a "very sick" individual. Because Dr. Roe is not "very sick," he is not guilty of the charges. Id. Third, Dr. X posits that the Defendant does not have a reputation in the community for behaving in an illicit or appropriate manner. Id., at Page Three-Four. Dr. X concludes that there are "strong indications that he is innocent of the charges." Id.

Because the MMPI should be excluded under the Daubert/Porter "fit" requirement, Dr. X's testimony is not scientifically supported and therefore should be excluded. Dr. X's reasoning smacks of the personal pedophilia profile that was excluded in United States v. Banks, 36 M.J. 150 (Ct. Mil. App. 1992) (testimony of Dr. Underwager based exclusively on the MMPI and his personal profile excluded as being unsupported).

Michigan Alcohol Screening Test Michigan Alcohol Screening Test (MAST)

The MAST is a self-reporting questionnaire that is used in the general population to identify incidences or behaviors associated with alcohol use. Bradford study, Exhibit C, at 7. At his deposition, Dr. Bradford conceded that the correlations between alcohol use and non-violent offenders such as the Defendant are debatable. Bradford deposition, 130-132. The MAST does not therefore meet the Daubert/Porter "fit" requirement and should be excluded. State v. Porter, 241 Conn. at 65 (citing Daubert at 591)(evidence musts be demonstrably relevant to the facts and not just scientifically valid in the abstract).

Hormonal Testing (Testosterone)

One of the tests performed by Dr. Bradford was a measure of the defendant's free testosterone levels. At his deposition, however, Dr. Bradford testified that other than for a genetically rare condition known as Klinefelter's syndrome, not applicable to Dr. Roe's situation, there has been no correlation established between testosterone and pedophilia. Bradford deposition, 206-208. See also John M. W. Bradford and McLean, Sexual Offenders, Violence and Testosterone: A Clinical Study, Canadian J. Psych. Vol 29 (1984)[Exhibit W] (study failed to establish correlation between testosterone levels and sexual violence). The testosterone tests do not therefore meet the Daubert/Porter "fit" requirement and should be excluded. State v. Porter, 241 Conn. at 65 (citing Daubert at 591)(evidence must be demonstrably relevant to the facts and not just scientifically valid in the abstract).

Buss-Durkee Hostility Index (BDHI)

The BDHI (Ex. N, at 10) is a transparent self-reporting test instrument that is used as a means of measuring hostility. The test was standardized on a normal population. Bradford study, Exhibit C, at 7. At his deposition Dr. Bradford conceded that only one out of eight scales of the BDHI had any applicability in assessing a non-violent pedophile. Bradford deposition, at 203. State v. Porter, 241 Conn. at 65 (citing Daubert at 591)(evidence musts be demonstrably relevant to the facts and not just scientifically valid in the abstract).

II.

The Evidence Constitutes Impermissible Character Testimony

The testimony of Dr. Bradford that the Defendant is "not a pedophile" is closely related to pedophile profile evidence, excluded in Connecticut and elsewhere as impermissible character evidence. /8/  In Connecticut, psychiatric evidence regarding the propensity or lack of propensity of a defendant to commit a crime should not be allowed. See C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed.) ' 7.16.3(i). See also State v. Person, 20 Conn. App. 115, 564 A.2d 626 (1989) (proper for trial court to exclude evidence that Defendant did not fit the "profile" of a pedophile); Douglas v. United States, 386 A.2d 289 (D.C. App 1978) (defendant attempting to prove through expert testimony that the absence of sexual abnormalities proved that the defendant could not have committed the particular offense).

In Iowa v. Hulbert, 481 N.W.2d 329 (Iowa 1992), the defendant attempted to admit evidence through his expert psychologist that he did not fit the psychological profile of known child molesters. The Iowa Supreme Court upheld exclusion of the evidence, reasoning that expert psychological evidence may not be used to merely bolster a witness's credibility, which function is uniquely within the jury's domain. 481 N.W.2d at 332. Further, opinion evidence which directly comments on the guilt or innocence of a defendant is not permissible because it would replace, not aide, the jury's function. Id. The court stated "there is a very fine line between an opinion that is helpful to a jury and an opinion that merely conveys a conclusion concerning defendant's guilt." Id. quoting State v. Dodson, 452 N.W.2d 610, 612 (Iowa App. 1989).

In R.D. v. State, 706 So. 2d 770(Ala. Crim. App. 1997), the offender's offer of an expert psychologist's testimony based on the DSFI, penile plethysmography and the MMPI in the aggregate was excluded as an impermissible attempt to establish "good character." A similar conclusion was reached in State v. Ambrosia, 67 Ohio App. 3d 552, 587 N.E.2d 892 (1990) where the court excluded the defense experts psychologists' testimony that the defendant did not exhibit the characteristics of a pedophile based upon the results of the MMPI and other tests, including penile plethysmography. The court held that such evidence was impermissible reputation evidence. See also M. Peters & William D. Murphy, Profiling Child Sexual Abusers, Legal Considerations, 19 Crim. Justice and Behavior 38, 39 (1992) ("With the notable exception of courts in California. . . virtually every appellate court that has ruled on the admissibility of expert testimony regarding the psychological profile of child molesters has rejected it.") /9/

CONCLUSION

For the above reasons, the Plaintiff moves that the Court exclude the testimony of Dr. John M.W. Bradford and/or evidence of the enumerated tests administered by him and/or others (including the MMPI administered by Dr. W). For the same reasons, the Plaintiff moves that the Court exclude the testimony of Dr. X.

Endnotes
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* Acknowledgements: The assistance and input of Atty. Holly Westone and her staff, Helen McGonigle, Atty., Andrew Meisler, Ph.D., Keneth Pope, Ph.D., and Kenneth Selig, M.D. is acknowledged with appreciation.

1. Penile plethysmogaphy is a physiological test of sexual arousal. Sensing equipment is attached to the subject's penis and the subject's reactions are measured when he is shown various types of erotic material.

2. Dr. Bradford's methodology is similar, but he uses an Indium-Gallium strain gauge. See Dr. Bradford's paper "Evaluation of the Sexual Behaviours Clinic - Assessment of Child Molesters," J. Bradford, et al (June 18, 1997), at 5, Exhibit C. [This citation is to the full version of the report for which a summary version was also created, Exhibit D.]

3. " The DSM is one of the most authoritative diagnostic manuals for the conduct of psychiatric examinations in the United States, and constitutes the complete listing of currently recognized psychiatric diagnoses." Rowland v. Mad River Local School District, 730 F.2d 444, 454 (6^th Cir. 1984).

4. Howes, et al, A Survey of Plethysmographic Assessment in North America, Sexual Abuse: Journal of Research & Treatment. 1995: Jan. Vol 7; Deviant Sexual Responsiveness on Penile Plethysmography Using Visual Stimuli: Alleged Child Molesters Vs. Normal Control Subjects, Journal of Nervous & Mental Disease. 1992 Mar. Vol 180; Patterns of Sexual Arousal of Accused Child Molesters Involved in Custody Disputes, Archives of Sex. Beh. 1990 Dec.; Rosen, et l, Penile Plethysmography and Biofeedback in the Treatment of a Transvestite-exhibitionist, Journal of Consulting & Clinical Psychology; Haywood, et al, Denial of Deviant Sexual Arousal and Psychopathology in Child Molesters," Behavior Therapy, 1994, Spr.; Schouten & Simon, Validity of Phallometric Measures with Sex Offenders, Journal of Consulting and Clinical Psychology, 1992, Vol. 60; Freund, Chan and Coulthard, Phallometric Diagnosis with Nonadmitters, Behav. Res. & Therapy, Vol. 17, 451-457; S Castonguay et al, Sexual Preference Assessment of Sexual Aggressors: Predictors of Penile Response Magnitude, Archives of Sexual Behavior, Vol 22, No. 4 Pp. 325 - 334; Freund, et al, Signs of Feigning in the Phallometric Test, Behav. Res. Ther. Vol. 26, 1988., Pp 105-112.

5.  Fixated pedophiles are those whose primary sexual orientation is to children. Regressed pedophiles' primary sexual orientation is to adults, but abuse children opportunistically. Groth & Burgess, Motivational intent in the sexual assault of children, Criminal Justice and Behavior 4, 14-24 (1977).

6.  In his deposition, Dr. Bradford was asked why he did not use inventories designed for sexual deviancy assessments which contain lie and denial scales. Dr. Bradford refused any explanation other than he preferred to use his own inventory. Bradford deposition, 183-184. See Using the Multiphasic Sex Inventory with Child Molesters, Clark, et al, Psychological Reports, 1995, 77, 623-625.

7.  Note that in the Abel Cognition Scale, all the correct answers on pages 22 through 24 are "5".

8.  The methods of providing character or reputation in Connecticut are similar to that allowed in most jurisdictions. See generally Tait & LaPlante's Handbook of Connecticut Evidence, § 8.5, at 249-252 (& 1998 Supp). If character evidence is permitted, the evidence is usually limited to the reputation of the individual in the community . State v. Blake, 157 Conn. 99, 104, 249 A.2d 232 (1968). Connecticut differs from most jurisdictions in that personal opinion based on personal knowledge is permitted in some circumstances. See, e.g. State v. Blake, 157 Conn. at 104-105; State v. George, 194 Conn. 361, 368, 481 A.2d 1068 (1984). Testimony concerning specific acts is only admissible when character is directly in issue because such testimony opens the door to collateral issues and delays. Richmond v. Norwich, 96 Conn. 582, 597, 115 A. 11 (1921). Evidence of a person's character or reputation is not generally permitted in a civil case unless material to the cause of action. Tait & LaPlante, § 8.4.1.

9.   There has not been a similar exclusion, however, of victim syndrome or profile evidence. See, e.g., State v. Butler, 349 S.E.2d 684 (1986) (allowing general expert testimony of abused child syndrome); State v. Smith, 84 Ohio App. 3d 647, 617 N.E.2d 1160 (1992) (evidence concerning Child Sexual Abuse Accommodation Syndrome admissible). Victim profile or syndrome evidence may be admissible either in the Plaintiff's case-in-chief or in order to rebut the defendant's charge of fabrication. See also United States v. Cacy, 43 M.J. 214 (M. Ct. App. 1995) (permissible expert testimony that victim's behavior was consistent with the patterns of sexual abuse victims).

In cases involving sexual abuse, the Connecticut courts have ruled that evidence concerning the common patterns of symptoms, reactions and behaviors of abuse victims is admissible to aid the trier of fact. Such evidence will aid the jury in determining the victims credibility by explaining her reactions and the consequences of sexual abuse through evidence concerning typical reactions of victims. State v. Spigarolo, 210 Conn. at 378-380. Although an expert may testify as to common behaviors and reactions, the expert may not render an opinion as to whether a victim in a particular case is credible or whether a particular victims claims are truthful. State v. Ali, 233 Conn. 403, at 432-33, quoting State v. Freeney, 228 Conn. at 592-93, 637 A.2d 1088. See also State v. Spigarolo, 210 Conn. at 379; In re Noel M., 23 Conn. 410, 423, 580 A.2d 996 (1990).

In the appropriate rebuttal setting, courts have allowed "general" testimony as to the practices and patterns of the behavior of pedophiles, without opinion as to whether a party does, or does not, fit a "profile." State v. Smith, 617 N.E.2d 1160 (Ohio App. 1992). The evidence is useful because juries are not familiar with the behavior patterns of pedophiles. Expert testimony assists the jury in understanding the evidence and determining the facts in issue. Id. at 1168 (citing F.R.E. Rule 702). The general information is provided and then the jury can draw its own inferences and conclusions from the facts presented. See also Flanagan v. State, 586 So. 2d 1085 (Fla. 1st DCA 1991) (limited expert testimony regarding general characteristics of child sexual abuse offenders not error). Such general testimony may become relevant and admissible at trial, for instance, if the Defendant testifies about his "good works" with children. In United States v. Gillespie, 852 F.2d 475 (9th Cir. 1988), the court held it was error to allow general testimony concerning pedophiles because defendant did not put his character in issue by testifying as to his childhood by way of general background. The Court implied, however, that if the defendant testified as to "specific character traits that rendered him incapable" of molesting, the testimony would have been admissible within the discretion of the trial court.