11 ABA Juv. & Child Welfare L. Rep. 1 (1992-1993)

handle is hein.journals/chilawpt11 and id is 1 raw text is: -ABA
JUVENIL& CHILD WELFAR
VOUEO 1eMorter
VOLUME 11, NO. 1               March 1992

Collateral Estoppel
State v. Powell, 819 P.2d 561 (Idaho
1991).
Criminal prosecution for sexual abuse
was not precluded by collateral estop-
pel, even though evidence of sexual
abuse was found to be inconclusive in
prior civil child protection case.
A civil child protection petition was
brought based on allegations of physical
and sexual abuse of a seven year old by
her father. A hearing was held but prior to
adjudication, the father was criminally
charged with sexual abuse. Shortly after
the father was indicted, the magistrate in
the child protection case found that the
father had physically abused his daughter,
but that the evidence of sexual abuse was
inconclusive. The trial court in the
criminal case denied the father's motion
to dismiss on collateral estoppel grounds.
The father was convicted and he appealed.
The Supreme Court of Idaho upheld his
conviction. The court agreed with the trial
court that the state was not collaterally es-
topped from prosecuting the father due to
the magistrate's prior ruling in the child
protection case. For a criminal prosecution
to be collaterally estopped because of an
earlier civil court ruling, the issue decided
in the prior litigation must have been identi-
cal to the one presented in the action at bar.
Here, the court stated, the required issue
identity was missing. The child protection
proceeding focused on the child's safety
and well-being, rather than on whether a
particular incident of abuse took place. On
the other hand, the court pointed out, the
focus of the criminal proceeding was to
determine whether the defendant committed
a particular act of sexual abuse. The court
found that this distinction was crucial, since
it meant that the question whether the father
sexually abused his child was not an ul-
timate issue in the earlier civil case.
The court also explained that the
father, because he was using collateral es-
topppel as a defensive measure, was re-
quired to show that he had been placed in
jeopardy in the earlier proceeding. The

court held that the prior child protection
proceeding did not place the father in
jeopardy, since he was not at risk of
criminal punishment as a result of that
case's outcome. Thus, the father's convic-
tion was affirmed.
Expert Witness,
Syndrome/Profile
Flanagan v. State, 586 So. 2d 1085
(Fla. Dist. Ct. App. 1991).
Expert testimony regarding the profile
of sexual abusers and characteristics of
homes in which children are sexually
abused was admissible to assist the jury.
The defendant was charged with sexual-
ly abusing his nine-year-old daughter, who
was mentally retarded. At trial, a child
psychologist who had evaluated the victim
testified as an expert. Among other things,
the expert witness testified as to studies
which identified certain characteristics of
people who sexually abuse children-i.e.,
she described an offender profile. She
also testified as to certain characteristics of
homes in which sexual abuse often occurs.
Based in part on this evidence, the defen-
dant was convicted.
The District Court of Appeal of
Florida affirmed. Among the several is-
sues raised by the defendant on appeal,
one concerned whether the trial court
erred in admitting expert testimony on the
offender profile and the characteristics of
a home in which sexual abuse commonly
occurs. Finding no error, the court initial-
ly pointed out that the testimony in ques-
tion represented only a small portion of
the expert's entire testimony. The court
then focused on the purpose of that por-
tion of the testimony, and concluded that
the it was not offered to prove that the
defendant was a child abuser. The court
recognized that the use of offender
profile testimony is not admissible as sub-
stantive evidence to prove guilt of one
charged with child sexual abuse because
it was not substantially accepted in the
scientific community, as required under
Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923). However, the court held that
the application of the Frye was not neces-
sary in the instant case, because the

profile testimony was not offered as sub-
stantive evidence, but rather to promote
juror understanding of a phenomenon
which is 'not so understandable that
people know as much about it as a
qualified expert with the requisite skill
and exposure to numerous studies in the
field.' At trial, the expert acknowledged
that a person who possessed some of the
profile characteristics was not necessarily
a child abuser. According to the court,
this acknowledgment sufficiently limited
the use of the expert's testimony.
Moreover, because of the profile
testimony's limited purpose, the court
held that even if its admission was error,
such error was harmless. Again, the court
pointed to the expert's acknowledgment
that her testimony was not being offered
to prove the defendant's guilt. In addition,
the court noted the profile testimony was
relatively brief, and not made a feature
of the trial. Finally, the court found that
there was sufficient other evidence to sup-
port the conviction.
The court applied the same reasons to
find that the trial court had not erred in ad-
mitting the expert's testimony regarding
common denominators in the home en-
vironment where sexual abuse has oc-
curred. Specifically, the expert had
focused on the lack of privacy in these
homes, and other testimony had indicated
the home in the instant case lacked
privacy (it had no doors).
continued on next page
Also in this issue:
Supreme Court News
Sexual Harrassment
Damages ........ .13
Federal Jurisdiction
in Sexual Abuse Tort
Cases .......... 14
Sentencing &
Treatment of Sex
Offenders:
Fifth Amendment      . .14
New In Print   ....... .15
American Bar Association  A N[ \

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