Disillusioning the Prosecution: The Unfulfilled Promise Of Syndrome Evidence
DISILLUSIONING THE PROSECUTION: THE UNFULFILLED PROMISE OF SYNDROME EVIDENCE
Copyright © 2014 by Nina Gupta.
This article is also available at http://lcp.law.duke.edu/.
* J.D. Candidate, 2014. Duke University School of Law. Notes & Research Editor of Law and
Contemporary Problems Volume 77. I would like to thank Professor Lisa Griffin for her excellent
advice on this topic and guidance with this note.
1. Charles Bleil, Evidence of Syndromes: No Need for a Better “Mousetrap,” 32 S. TEX. L. REV.
37, 38 (
2. David McCord, Syndromes, Profiles, and Other Mental Exotica: A New Approach to the
Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 OR. L. REV. 19, 24 (1987)
(“Before the mid-1970s, cases discussing the admissibility of nontraditional psychological evidence
were few and far between. During the last decade, however, a flood of nontraditional psychological
evidence has inundated the courts in criminal cases. Several of these types of evidence are known as
3. The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders
(DSM), an authoritative manual on psychiatric disorders, includes post-traumatic stress disorder, and
the most recent edition, DSM-5, categorizes sexual assault as an event that can lead to post-traumatic
stress disorder. AM. PSYCHIATRIC ASS’N, POSTTRAUMATIC STRESS DISORDER (2013) [hereinafter
AM. PSYCHIATRIC ASS’N, POSTTRAUMATIC STRESS DISORDER], available at http://www.dsm5.org/
Documents/PTSD%20Fact%20Sheet.pdf. Also, literature demonstrates the acceptance of rape-trauma
syndrome in the medical community. See State v. Allewalt, 517 A.2d 741, 754 (Md. 1986) (citing THE
RAPE CRISIS INTERVENTION HANDBOOK124–26 (Sharon L. McCombie ed., 1980)); ANN W. BURGESS
& LYNDA L. HOLMSTROM, RAPE: CRISIS AND RECOVERY 35-47 (1979); ANN WOLBERT BURGESS &
LYNDA LYTLE HOLMSTROM, RAPE: VICTIMS OF CRISIS 37–50 (1974); ELAINE HILBERMAN, THE
RAPE VICTIM 36 (1976); HAROLD I. KAPLAN, ALFRED M. FREEDMAN & BENJAMIN J. SADOCK,
COMPREHENSIVE TEXTBOOK OF PSYCHIATRY § 21.1d, at 1519, § 24.15, at 1804–05 (3d ed. 1980);
SEDELLE KATZ & MARY ANN MAZUR, UNDERSTANDING THE RAPE VICTIM: A SYNTHESIS OF
RESEARCH FINDINGS 215–31 (1979).
4. See Bleil, supra note 1, at 63 (discussing the general unwillingness of courts to accept a liberal
approach toward the admissibility of syndrome evidence in the form of expert testimony).
syndrome evidence5 is an area of the law that lags behind science.6
Courts differ greatly in their approaches to the admissibility of syndrome
evidence.7 Admissibility varies with the purpose for which the evidence is
offered; defensive use of syndrome evidence is more widely accepted than
offensive use, which is rare.8 In this note, I seek to delineate the mechanics of
the common rule that syndrome evidence may be allowed defensively but
generally may not be admitted offensively.9
I begin by defining syndrome evidence, describing the various judicial
approaches to analyzing its admissibility, and suggesting a coherent and uniform
way to analyze its admissibility. Then, I will compare offensive and defensive
use of syndrome evidence in the courtroom. I will focus largely on evidence of
PTSD and RTS in sexual-assault cases. Finally, I will argue that the use of
syndrome evidence in the courtroom, particularly in sexual-assault cases, often
has a counterintuitive effect: instead of fervently protecting victims of sexual
assault the way one might expect, syndrome evidence adds an additional
dimension of uncertainty to sexual-assault cases because of the way in which
courts have limited its use. Moreover, the use of syndrome evidence in the
courtroom raises the possibility that defendants may use syndrome evidence
DEVELOPMENT OF SYNDROME EVIDENCE
A. Syndrome Evidence Defined
Syndrome evidence generally appears as expert testimony in the form of a
qualified mental-health professional’s opinion.10 The Supreme Court of
Vermont has defined syndrome evidence as “evidence elicited from an expert
that a person is a member of a class of persons who share a common physical,
emotional, or mental condition. The condition must be one that is generally
recognized in the field.”11 Therefore, syndrome evidence is usually considered a
5. Syndrome evidence has been defined as “a type of proof designed to educate jurors about
typical human behavior in response to specified conditions.” Betsy J. Grey, Neuroscience, PTSD, and
Sentencing Mitigation, 34 CARDOZO L. REV. 53, 96 n.243 (
6. See id. at 62–63 (discussing doubts about the validity of evidence of post-traumatic stress
disorder and the difficulties of advancing post-traumatic stress disorder as a defense or mitigating
factor, even though the syndrome has gained acceptance in the scientific community and general
7. Bleil, supra note 1, at 38.
8. Id. at 63–64; see Holly Hogan, The False Dichotomy of Rape trauma syndrome, 12 CARDOZO
J.L. & GENDER 529, 535 (
) (finding that offensive use of rape-trauma syndrome testimony is
9. Hogan, supra note 8, at 538 (discussing courts’ reluctance to admit offensive testimony of
10. Bleil, supra note 1, at 38.
11. State v. Kinney, 762 A.2d 833 (Vt. 2000) (quoting State v. Gokey, 574 A.2d 766, 768–70 (Vt.
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type of expertise.12
In this note I will analyze evidence from two syndromes: post-traumatic
stress disorder and rape-trauma syndrome. Both syndromes have been
recognized by the medical community and used in the courtroom.13
1. Post-traumatic Stress Disorder
PTSD is an anxiety disorder that is triggered by a stressor.14 PTSD has been
listed in the American Psychiatric Association’s Diagnostic and Statistical
Manual of Mental Disorders (DSM) since 1980.15 Symptoms of PTSD include
intrusive memories, flashbacks, sleep disturbance, social dysfunction, numbing
of emotions, hypervigilance, and avoidance of traumatic stimuli.16 The stressor is
generally a triggering event, such as a sexual assault, abuse assault, car crash, or
combat situation.17 The person’s response to the stressor consists of “intense
fear, helplessness, or horror.”18 “Although PTSD was originally conceived to
address the trauma experienced by combat veterans, it was soon recognized that
the diagnosis had broad applications to all types of trauma, including
‘interpersonal stressors’ such as rape, sexual abuse, and physical battering.”19
2. Rape-Trauma Syndrome
RTS is a type of post-traumatic stress disorder20 that consists of “post-rape
physical and emotional traits that many rape victims share.”21 In 1974 doctors
Ann Burgess and Linda Holmstrom first brought RTS to the attention of the
medical community, and, later, prosecutors, with their two-year study of
forcible-rape victims.22 They defined RTS as “the acute phase and long-term
reorganization process that occurs as a result of forcible rape or attempted
forcible rape. This syndrome of behavioral, somatic, and psychological reactions
is an acute stress reaction to a life-threatening situation.”23 The victim goes
through the acute phase immediately after the incident.24 Reactions vary during
this phase; some victims will express fear and anger, while others will appear
calm and subdued.25 Victims will also experience a number of physical reactions
during the acute phase, such as headaches, disturbed sleep, and fatigue.26 During
the long-term reorganizational phase, the victim may decide to make a major
change in her life.27 This phase may also be characterized by nightmares or
phobias relating to the circumstances of the rape.28
Rape-trauma syndrome includes many counterintuitive victim behaviors.29
For example, some expect a victim to be hysterical after a rape and may assume
that a rape did not occur if a victim is calm and subdued after the incident.30
One might also expect a victim to report a rape immediately after it occurs.31
Studies indicate, however, that victims with rape-trauma syndrome will often
refuse to acknowledge they have been raped.32 Similarly, although one might
expect the victim of a traumatic experience to recall the event in vivid detail,
victims may not have a clear memory of the rape.33 Thus, rape-trauma syndrome
helps to explain a victim’s counterintuitive behavior that might otherwise lead a
jury to believe that a victim was not raped.
The DSM does not mention rape-trauma syndrome or other common
syndromes such as battered person syndrome or child abuse syndrome, but it
does include sexual assault as a traumatic event that can lead to post-traumatic
stress disorder.34 Although RTS initially developed as a tool intended to aid in
diagnosis and treatment of psychiatric patients, prosecutors have attempted to
use RTS to establish causation between a rape and specific symptoms that rape
victims exhibit.35 One commentator argues, “[C]onsidering the difficulties
involved in rape prosecutions, RTS . . . has great appeal as an evidentiary
tool.”36 Most states allow at least some expert testimony about the psychological
23. Burgess & Holmstrom, supra note 22, at 982.
24. People v. Taylor, 552 N.E.2d 131, 134 (N.Y. 1990) (citing Burgess & Holmstrom, supra note
22, at 982).
29. Hogan, supra note 8, at 532.
32. Id. (citing Arthur H. Garrison, Rape trauma syndrome: A Review of a Behavioral Science
Theory and its Admissibility in Criminal Trials, 23 AM. J. TRIAL ADVOC. 591, 613 (2000)).
33. Id. at 533.
34. AM. PSYCHIATRIC ASS’N, POSTTRAUMATIC STRESS DISORDER, supra note 3.
35. Gaines, supra note 20, at 230.
36. Id. “However, the most extensive rape reform is also the most controversial: the introduction
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DISILLUSIONING THE PROSECUTION 417
effects of rape, but “there is a continuing scientific and legal controversy about
such expert testimony.”37
B. Judicial Approaches to Analyzing Syndrome Evidence
One commentator described the entrance of syndrome evidence into the
courtroom as “chaos” because courts vary to great extremes in their approaches
to the admissibility of syndrome evidence.38 Judicial approaches to analyzing the
admissibility of syndrome evidence often differ because courts define syndrome
evidence differently. Courts disagree, first, on whether syndrome evidence
constitutes expertise in a given case and, second, whether the evidence is
scientific or nonscientific. These definitions have important ramifications for
the way courts analyze syndrome evidence.
Some courts have found that certain syndrome evidence is inadmissible for
any purpose. For example, at least three states have held that syndrome
evidence for rape-trauma syndrome in particular is inadmissible as expert
testimony39 because the testimony will not help the jury,40 the evidence unfairly
prejudices the defendant,41 or the evidence is not credible.42 Although these
states are in the minority, other jurisdictions express similar concerns over the
admissibility of syndrome evidence.43 Those jurisdictions do not bar syndrome
evidence altogether, but limit the scope of the evidence when these concerns
Courts must also decide whether syndrome evidence is scientific or
nonscientific because scientific testimony has “traditionally been required to
meet more stringent standards of admissibility than nonscientific expert
testimony.”45 Syndrome evidence is scientific in the sense that it is closely
related to medicine,46 which is generally perceived as a “hard” science, but it is
nonscientific in other respects.47 For example, syndrome evidence is subjective
and cannot always be scientifically verified.48 Because syndrome evidence so
often consists of a professional’s opinion, some commentators have concluded
that syndrome evidence is not scientific evidence at all.49 Others argue that
syndrome evidence is “scientific, but not ‘hard’ scientific.”50 A court’s decisions
on this distinction may determine the test the court applies to the evidence.51
Whether syndrome evidence is scientific or nonscientific expertise, a federal
court’s decision regarding admissibility will in either case be guided by rule 702
of the Federal Rules of Evidence, pertaining to testimony by expert witnesses,52
and the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals,
Inc.53 Moreover, many states have evidence laws on the books that are similar to
rule 702.54 Under rule 702, courts will only admit expert testimony if it will help
the jury understand the evidence, the testimony is based on sufficient facts or
data, the testimony is the product of reliable principles, and the expert has
reliably applied the principles to the case.55
Daubert adds factors to rule 702 that federal courts should consider in
deciding whether syndrome evidence is admissible.56 Under Daubert, the
expert’s methodology must be reliable and relevant, and there must be a “fit”
between the expert’s analysis and the issues.57 The Daubert factors, which are
exemplary rather than exhaustive, are (1) whether the technique or theory can
be or has been tested, (2) whether the technique or theory has been subjected
to peer review and publication, (3) what the known or potential rate of error of
the technique or theory is when applied, (4) whether standards are maintained
to control the technique’s operation, and (5) whether the technique or theory
has been generally accepted in the relevant scientific community.58
Many state courts have concluded that syndrome evidence is scientific
expertise, and, like federal courts, apply Daubert.59 Other state courts, however,
have decided whether syndrome evidence is admissible at trial by utilizing the
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DISILLUSIONING THE PROSECUTION 419
test laid out in Frye v. United States,60 rather than the Daubert test.61 The
Supreme Court held in Daubert that the Federal Rules of Evidence superseded
Frye as the standard for the admissibility of expert testimony in federal courts,62
but that holding—premised on the federal rules—had no binding precedential
value in state courts.63 The Frye test only applies to scientific expertise and
requires the trial judge to find that the expert testimony is based on a scientific
principle that has gained “general acceptance in the particular field in which it
belongs.”64 In Frye, when the defendant offered an expert witness to testify to
the result of a systolic blood pressure test, the D.C. Circuit determined that the
test had not gained such standing.65
Although the Frye test is limited to scientific expertise, Daubert applies to
both scientific and nonscientific expert testimony. In Kumho Tire Company v.
Carmichael, the Supreme Court extended the Daubert analysis to nonscientific
testimony, namely testimony based on “technical” and “other specialized
knowledge.”66 The Court applied the Daubert factors to nonscientific expertise
concerning a tire blowout.67 Thus, in federal courts, the standard for
nonscientific and scientific expertise is the same, so a court need not determine
whether syndrome evidence is scientific or nonscientific. However, in some
state courts, including those using the Frye test, the standard for scientific
expertise may be more stringent.68
The differing judicial approaches to the admissibility of syndrome evidence
have “created chaos in the courts.”69 Commentators argue that courts treat
syndrome evidence as “extraordinary, requiring special rules.”70 However,
judicial approaches to the admissibility of syndrome evidence need not vary in
such extreme ways, and special rules may not be necessary.71 Although many
states have not adopted the unified federal approach for scientific and
nonscientific evidence, rule 702 of the Federal Rules of Evidence and the
60. 293 F. 1013 (D.C. Cir. 1923), superseded by rule, FED. R. EVID. 702, as stated in Daubert, 509
61. For example, Washington utilizes the Frye test. Trowbridge, supra note 13, at 456.
62. Daubert, 509 U.S. at 589 (1993).
63. Trowbridge, supra note 13, at 456. On the other hand, other courts have followed the Supreme
Court’s line of reasoning and abandoned the Frye test. See, e.g., State v. Alberico, 861 P.2d 192, 194
(N.M. 1993) (“Today we abandon the Frye test as a predicate for the admissibility of scientific evidence
by way of expert opinion testimony, relying instead on our Rules of Evidence.”).
64. Frye, 293 F. at 1014.
66. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999).
68. See McCord, supra note 2, at 30 (discussing the traditional rule that scientific expertise must
meet more stringent standards than nonscientific expertise).
69. Bleil, supra note 1, at 38.
70. Id. at 62.
71. See id. at 76 (“Perhaps the most significant improvement which would follow from the
adoption of a ‘no special rules’ approach is increased certainty and rationality in the judicial rulings on
the admissibility of various types of syndrome evidence.”).
Daubert factors provide a uniform, liberal approach to analyzing admissibility.
First, syndrome evidence generally appears as expert testimony and should be
analyzed pursuant to rule 702 when offered as such in a federal case. Moreover,
syndrome evidence should not qualify as scientific testimony when it is in the
form of an expert’s opinion because it cannot be scientifically verified.
Accordingly, syndrome evidence should be analyzed pursuant to Kumho Tire
Company v. Carmichael, in which the Court held that the Daubert analysis
extends to nonscientific expert testimony. Federal courts can follow rule 702
and the Daubert factors to create greater coherence and consistency in
analyzing the admissibility of syndrome evidence.72
DEFENSIVE USE OF SYNDROME EVIDENCE
Syndrome evidence is more frequently admitted defensively73 than
offensively in sexual-assault cases; that is, the prosecution may often use
syndrome evidence to rebut the defense’s claim, but this evidence is less often
admitted to prove the existence of the sexual assault itself.74 Defensive use of
syndrome evidence generally bolsters the victim after an attack by the defense,
but it does not go directly to the credibility of the victim.75
Syndrome evidence is generally used defensively in three ways: (1) to
rehabilitate the victim, (2) to explain the victim’s counterintuitive behavior, and
(3) to rebut a defense of consent.76 Rehabilitating the victim and explaining the
victim’s counterintuitive behavior can be viewed as ways that syndrome
evidence is used to support the victim. In contrast, rebutting a defense of
consent is the only way that syndrome evidence is used as a true defense for the
A. Rehabilitating the Victim
The prosecution may introduce syndrome evidence to rehabilitate the
72. Many courts have abandoned the Frye test and rely instead on Daubert and state or federal
rules of evidence. See Hogan, supra note 8, at 244. Many federal courts have thus reevaluated evidence
that was inadmissible under Frye and determined that the evidence is now admissible; therefore, the
Daubert standard may be more flexible and inclusive than Frye. Id.; see also, Bleil, supra note 1, at 76
(“Pursuant to an approach which essentially follows the codified rules of evidence, whenever a proper
foundation for admissibility is laid, there will be more syndrome evidence admitted than under the
current hodgepodge of approaches taken by the courts.”).
73. Defensive testimony usually constitutes testimony that the state introduces in its rebuttal or
case in chief to help bolster the victim after attack by the defense. Hogan, supra note 8, at 535.
Defensive testimony is nondiagnostic. Id.
74. Bleil, supra note 1, at 63–64.
75. Hogan, supra note 8, at 537.
76. Although in this note I group defensive use of syndrome evidence into these three categories,
there will often be overlap between them. For example, syndrome evidence that is used to support
defensive claims can also be used to rehabilitate the victim after the defense has attacked it. Thus, these
categories are fluid and not mutually exclusive.
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victim’s credibility if the defense has attacked it.77 Some states have allowed
expert testimony to rehabilitate the victim when the testimony shows that the
victim’s behavior is consistent with rape-trauma syndrome.78 However, this
evidence cannot go to the victim’s credibility because vouching for credibility
may invade the province of the jury.79 At the same time, the evidence must help
the jury better understand the case.80 Thus, courts must narrow the scope of the
evidence that is admitted.
Although rehabilitating a victim’s credibility typically occurs after the
defendant has attacked it, expert testimony of syndrome evidence sometimes
attempts to rehabilitate a victim before the attack.81 In Hutton v. State, for
example, the Court of Appeals of Maryland held that expert testimony
regarding PTSD from which the victim allegedly suffered was inadmissible.82 In
this case, the defendant, the victim’s stepfather, was accused of sexually abusing
the victim when she was seven years old.83 The state called, in its case in chief, a
qualified clinical social worker, who was not allowed to diagnose or give an
opinion regarding PTSD but was allowed to describe the general characteristics
of children who have been sexually abused and to relate those characteristics to
the victim in the case.84 The state also called, in its case in chief, a clinical
psychologist who opined that the victim was suffering from PTSD.85
The Hutton court held that the expert testimony from both the clinical social
worker and the clinical psychologist invaded the province of the jury because it
addressed the credibility of the victim; therefore, the evidence was
inadmissible.86 However, the court also found that PTSD testimony could have
come in to rebut a defense of consent or to explain counterintuitive behavior,
but this case did not fit within either of those exceptions.87 Hutton stands for the
proposition that syndrome evidence is more readily admitted when it is
primarily defensive in nature,88 and the evidence must be limited so that it is
helpful to the jury without invading the province of the jury.89
77. Hogan, supra note 8, at 535.
78. See Gaines, supra note 20, at 238.
79. Hutton v. State, 663 A.2d 1289, 1296 (Md. 1995).
80. FED. R. EVID. 702.
81. Hogan, supra note 8, at 537. Hogan calls this type of testimony a “defensive/offensive
combination” because it is offered offensively (in the case in chief), but it is rehabilitative and defends
the victim before attack. Id. However, Hogan finds that courts consider this testimony as defensive. Id.
82. Hutton, 663 A.2d at 1296 (Md. 1995).
83. Id. at 1291.
84. Id. at 1291–92.
85. Id. at 1292–93.
86. Id. at 1296.
87. Id. at 1301.
88. See Hogan, supra note 8, at 538 (finding that courts are more likely to admit syndrome
evidence defensively because it is “scientifically sound, helpful to the jury, and not overly prejudicial”).
89. See Hutton, 663 A.2d at 1301 (“The evidence might be offered, for example, to show lack of
consent or to explain behavior that might be viewed as inconsistent with the happening of the event,
such as a delay in reporting or recantation by the child.”).
Courts have had trouble drawing a line between rehabilitating the victim
and bolstering the credibility of the victim in sexual-assault cases. For example,
in State v. McCoy,90 the West Virginia Supreme Court of Appeals noted that
expert testimony regarding symptoms consistent with rape-trauma syndrome is
relevant and admissible, especially when the defense has attacked the victim’s
credibility and the prosecution is attempting to rehabilitate the victim.91
However, the court cautioned that only the jury could examine the credibility of
witnesses.92 “We, therefore, must draw a distinction between an expert’s
testimony that an alleged victim exhibits post-rape behavior consistent with
rape trauma syndrome and expert opinion that bolsters the credibility of the
alleged victim by indicating that she was indeed raped.”93 The court held,
however, that in this case the expert’s opinion on whether the victim’s actions
after the incident conformed to “typical post-rape behavior”94 was inadmissible
because her testimony was tantamount to an opinion that the defendant had
raped the victim.95 The court found that an “expert may testify that the alleged
victim exhibits behavior consistent with rape-trauma syndrome, but the expert
may not give an opinion, expressly or implicitly, as to whether or not the alleged
victim was raped.”96
Similarly, the Wisconsin Supreme Court has found that syndrome evidence
used to rehabilitate the victim is admissible when it does not include an opinion
as to whether the victim was raped.97 In State v. Robinson, a sexual-assault case,
the Wisconsin Supreme Court allowed expert testimony that explained the
victim’s behavior when the defendant attempted to rebut the complainant’s
testimony.98 The court found that the testimony was helpful because the
defendant had pointed out that the victim was not crying after the assault and
was composed when writing a statement at the police station concerning the
assault.99 The expert offered no opinion testimony on the victim, but testified
only as to her observations of the victim’s behavior and symptoms and her
observations of other sexual-assault victims.100 The court held that this
testimony assisted the trier of fact in understanding the evidence because it
helped the jury understand “reactions with which it perhaps was unfamiliar.”101
Because the expert’s testimony did not include the expert’s opinion, there was
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no discussion of the expert invading the province of the jury in rehabilitating
Thus, if syndrome evidence is used to rehabilitate a victim in a
sexualassault case, the evidence should generally not include an opinion from the
expert as to whether the victim was, in fact, sexually assaulted.103 Rather,
rehabilitation can occur through expert testimony that merely describes
generally the characteristics and symptoms of the victim’s behavior and
observations of other victims of sexual assault.104 Moreover, expert testimony
cannot address the credibility of a victim because that is a question that is solely
for the jury.105
B. Explaining Counterintuitive Behavior
Courts generally allow evidence of rape-trauma syndrome if it explains how
a victim’s behavior that seems inconsistent with a claim of rape is actually
consistent with the claim.106 Several jurisdictions limit RTS evidence to that
purpose alone.107 “The goal of the courts using this approach is to allow expert
testimony on RTS to rebut widely-held misconceptions about the presumed
behavior of sexual assault victims.”108 RTS symptoms that may seem
inconsistent with a claim of sexual-assault include a delay in reporting, an
inability to identify the attacker, inconsistent statements to the police, an initial
denial of being raped, and a calm and subdued demeanor after the attack.109
Courts that only allow expert testimony to explain counterintuitive behavior do
not allow the expert to opine on whether a rape actually occurred.110
In State v. Kinney111 expert testimony as to rape-trauma syndrome and “the
behavioral patterns of victims of sexual assault”112 was admissible to explain
counterintuitive victim behavior.113 The victim claimed that the defendant raped
her, while the defendant claimed that the victim consented.114 The expert had no
contact with the victim and did not offer an opinion on whether the victim had
been raped.115 Instead, the expert generally described the symptoms of
rapetrauma syndrome and testified that it was not unusual for a rape victim to delay
reporting a rape and fall asleep after the assault.116 The court held that expert
evidence of rape-trauma syndrome was admissible to “assist the jury in
evaluating the evidence, and frequently to respond to defense claims that the
victim’s behavior after the alleged rape was inconsistent with the claim that the
C. Rebutting a Defense of Consent
The prosecution may introduce syndrome evidence to defend the victim
against a claim of consent from the defendant. The Supreme Court of Kansas,
the Court of Appeals of Maryland, and the Supreme Court of Arizona have all
allowed syndrome evidence for this purpose.118 Although the Court of Appeals
of Maryland and the Supreme Court of Arizona seemed to place limitations on
what the evidence would be admissible to prove, the Supreme Court of Kansas
broadly allowed expert testimony of rape-trauma syndrome.119
State v. Marks120 was the first reported case in which the prosecution used
syndrome evidence to defend the victim against a claim of consent.121 In this
case, the defendant allegedly raped the victim, the victim related the story to
her roommate, and her roommate called the police and took her to the
hospital.122 The defendant did not deny having sexual intercourse with the victim
and instead based his entire defense on consent.123 The prosecution used the
expert testimony of a psychiatrist and neurologist who discussed the diagnosis
and treatment of post-traumatic stress disorder and rape-trauma syndrome,
which he described as a type of post-traumatic stress disorder that results from
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DISILLUSIONING THE PROSECUTION 425
sexual assault.124 The expert examined the victim two weeks after the rape and
testified that she was suffering from rape-trauma syndrome.125
State v. Marks is unique in that the Kansas Supreme Court allowed the
expert testimony to prove the rape itself; therefore, this case is also an
illustration of offensive use of syndrome evidence.126 Despite the court’s
recognition that rape-trauma syndrome at the time was a new development in
psychiatry, it held that the expert testimony was admissible.127 The court stated,
“[I]f the presence of rape trauma syndrome is detectable and reliable as
evidence that a forcible assault did take place, it is relevant when a defendant
argues the victim consented to sexual intercourse.”128 Furthermore, the court
held that the expert’s opinion did not invade the province of the jury.129
Similarly, in State v. Allewalt, the defendant raised the defense of consent.130
Here, the state called, in its rebuttal, a psychiatrist who testified that the victim
suffered from PTSD caused by rape.131 The Court of Appeals of Maryland
found that there was “no issue” over the fact that PTSD is a generally accepted
anxiety disorder, and that it was reasonable for the psychiatrist to opine that the
trauma causing the PTSD was the rape the victim described.132 The court
recognized the split of authority in the admissibility of rape-trauma syndrome
but ultimately found that the trial court did not abuse its discretion in admitting
the expert testimony.133 The court focused its holding on the expert’s failure to
mention rape-trauma syndrome by name and noted that the concern with unfair
prejudice is diminished when the syndrome is not associated exclusively with
rape.134 Moreover, the court noted that cross-examination and proper jury
instructions can reduce prejudice.135
The Supreme Court of Arizona went one step further than the Court of
Appeals of Maryland and found that even evidence of rape-trauma syndrome,
124. Id. at 1299.
126. I cite Marks, 647 P.2d 1292, for the defensive use of syndrome evidence because the
prosecution used the syndrome evidence to defend the victim against a claim of consent from the
127. Id. at 1299.
130. 517 A.2d 741, 741 (Md. 1986).
131. Id. at 741–42.
132. Id. at 746–47. However, the dissent believed that the Frye test was the proper standard, and
the testimony did not meet that standard for admissibility because PTSD “is not ‘generally accepted’ in
the relevant scientific community as reliable evidence as to whether a rape in the legal sense occurred
or whether a woman consented to a particular act of sexual intercourse.” Id. at 752 (Eldridge, J.,
dissenting). Even if the Frye test was inapplicable, the dissent would have found that the unfair
prejudice of the expert testimony outweighed the probative value and therefore, the expert testimony
was inadmissible. Id.
133. Id. at 751.
as opposed to PTSD, would be admissible to show lack of consent.136 In State v.
Huey, the defendant raised the defense of consent when he was convicted for
one count of kidnapping and nine counts of sexual assault.137 The prosecution
called, in its case in chief, a psychiatrist who treated the victim after she escaped
from the defendant.138 The psychiatrist described the victim’s symptoms in
general terms and referred to the victim’s condition as “an adjustment reaction
with mixed emotional features” which occurs when there is “a psycho–social
stressor that is temporarily present,” but the defendant claimed that the state
was effectively introducing evidence of rape-trauma syndrome.139
The Supreme Court of Arizona, as an initial matter, disagreed with the
defendant and found that the expert testimony did not describe rape-trauma
syndrome but instead consisted of general observations of stress.140 Moreover,
the expert did not use the term “rape-trauma syndrome.”141 Holding that the
evidence was admissible,142 the court further stated that testimony from a
psychiatrist who examined the victim would have been admissible to show lack
of consent, even if the testimony did concern rape-trauma syndrome.143 The
court recognized that cross-examination would allow the jury to properly weigh
the evidence and therefore, testimony of rape-trauma syndrome would not
invade the province of the jury.144 Because this case involved an issue of consent,
evidence of rape-trauma syndrome would have been admissible, and the expert
could have therefore referred to rape-trauma syndrome directly instead of
describing the victim’s symptoms in general terms.145
OFFENSIVE USE OF SYNDROME EVIDENCE
A. Diagnostic Testimony
Offensive use of syndrome evidence in sexual-assault cases generally
involves a diagnosis to establish that the sexual assault occurred.146 Thus,
offensive use generally occurs in the prosecution’s case in chief.147 “[A]fter an
expert diagnoses the victim with [rape-trauma syndrome], the State may argue
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DISILLUSIONING THE PROSECUTION 427
that because the victim suffers from RTS, she must have been raped.”148
Offensive use of syndrome evidence is atypical.149 Many commentators have
noted that offensive use of syndrome evidence raises concerns about fairness in
the courtroom and interferes with the jury’s role by vouching for the victim’s
credibility.150 Holly Hogan notes,
Why do courts . . . distinguish between defensive uses and offensive uses? Courts often
find that rehabilitative testimony in the form of defensive testimony is scientifically
sound, helpful to the jury, and not overly prejudicial. Yet, courts generally do not
believe that RTS is legally or scientifically sound to offer as offensive testimony as
diagnostic proof that a rape occurred, and contend that it infringes on the defendant’s
constitutional protections to a fair trial.151
Prosecutors have attempted to use syndrome evidence offensively to
corroborate evidence that abuse occurred.152 However, most courts do not allow
this type of testimony.153 In Hutton v. State, expert testimony by a clinical
psychologist who opined that the victim in fact suffered from PTSD was
inadmissible because it invaded the province of the jury.154 In contrast, Judge
Rodowsky, concurring, admonished the majority for allowing physicians to
testify as to their medical opinions in other contexts, yet holding that the
opinions of mental health providers based on the diagnosis of a mental disorder
were inadmissible in this case.155 Judge Rodowsky emphasized the importance
of a PTSD diagnosis in a child–sexual assault case like this one because there is
generally no other eyewitness testimony or physical evidence to corroborate the
Similarly, in People v. Bledsoe,157 the Supreme Court of California found
that expert testimony regarding rape-trauma syndrome was inadmissible to
prove that a rape in fact occurred.158 The court focused on the fact that
rapetrauma syndrome developed as a “therapeutic tool” to identify and treat
emotional problems in patients rather than as a tool to determine the truth or
accuracy of past events.159 The court emphasized that rape-trauma syndrome
149. Id. at 535; see also Hutton v. State, 663 A.2d 1289, 1301 (Md. 1995) (“Expert testimony
describing PTSD or rape-trauma syndrome may be admissible, however, when offered for purposes
other than to simply establish that the offense occurred.”); State v. McCoy, 366 S.E.2d 731, 736 (W. Va.
1988) (“The common thread running through [several courts] is that expert testimony on rape trauma
syndrome is not admissible to show whether or not the complainant was, in fact, raped.”).
150. See, e.g., Hogan, supra note 8, at 539.
151. Id. at 538.
152. Hutton, 663 A.2d at 1297.
153. Hogan, supra note 8, at 538.
154. Hutton, 663 A.2d at 1296.
155. Id. at 1303–04 (Rodowsky, J., concurring).
156. Id. at 1302.
157. 36 Cal. 3d 236 (1984).
158. Id. at 238.
159. Id. at 249.
LAW AND CONTEMPORARY PROBLEMS [Vol. 76:413
may be generally accepted in the scientific community, but not for the
prosecution’s purpose of proving a rape occurred.160
In contrast, in State v. Marks, the Kansas Supreme Court allowed evidence
of rape-trauma syndrome to prove the existence of the rape itself.161 Despite this
decision, however, “courts remain reluctant to admit offensive RTS testimony
to prove that a rape occurred.”162 Consistent with that reluctance, the Kansas
Supreme Court later limited this decision and held that Marks is not applicable
to all sexual-assault cases:
Our decision in Marks does not in any way authorize a medical expert to testify that in
his opinion the complaining witness in a particular case was raped. The expert
psychiatric testimony authorized by Marks is restricted to the victim’s state of mind
and the existence of the “rape trauma syndrome.”163
Thus, in general, courts will only admit RTS and other syndrome evidence to
rehabilitate a victim defensively and nondiagnostically, rather than
B. Offensive Use by the Defense
The accused may wish to introduce syndrome evidence in sexual-assault
cases, using the absence of post-traumatic stress disorder or rape-trauma
syndrome as evidence that no rape occurred.165 This presents the question, May
the defendant compel the victim to undergo a psychological examination?166
Although most courts have not addressed offensive use of syndrome evidence
by the defense,167 the Court of Appeals of Maryland has stated, “Lurking in the
background is the nice question of whether the absence of PTSD is provable by
the accused in defense of a rape charge, as tending to prove that there was
consent.”168 The court has recognized that “[w]hen ruling on whether to receive
State proffered evidence of PTSD a trial judge will have to weigh the benefit of
the evidence not only against potential unfair prejudice, but also against the
complexity of possibly accompanying issues”169 such as the defendant’s use of
Commentators have speculated as to whether offensive use of syndrome
evidence by the defense should be admitted equally with offensive use by the
prosecution. Holly Hogan argues,
160. Id. at 251.
161. State v. Marks, 647 P.2d 1292, 1299 (Kan. 1982).
162. Hogan, supra note 8, at 538.
163. State v. Bressman, 689 P.2d 901, 908 (Kan. 1984).
164. Hogan, supra note 8, at 538.
165. Gaines, supra note 20, at 247.
166. Id.; see also State v. Allewalt, 517 A.2d 741, 751 (Md. 1986) (“That can, in turn, lead to issues
concerning compulsory psychiatric examination of the complainant by an expert for the defense.”).
167. See, e.g., Allewalt, 517 A.2d at 751 (“In addition, we can foresee cases where the defendant will
seek to counter the State’s PTSD evidence with his own expert testimony.”).
169. Id. at 751–52.
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DISILLUSIONING THE PROSECUTION 429
Allowing both sides to utilize offensive testimony should not serve as the solution to
the admission of such testimony. One would not argue that the prosecution should be
able to admit contaminated DNA evidence as long as the defense can introduce its
own contaminated evidence. Likewise, there is no reason to allow such dual admission
to apply to RTS offensive testimony.170
In contrast, another commentator argues that offensive use of syndrome
evidence by the defense should be admitted as long as offensive use by the
prosecution is admitted.171 Kenneth Gaines contends, “Due process guarantees
the defendant the right to a fair trial. At the very least, the court should be
mindful to afford equal treatment to both the State and the defendant on RTS
evidence.”172 Given that offensive use of syndrome evidence by the prosecution
is atypical,173 courts are likely to similarly limit defendants’ use of this evidence.
THE UNFULFILLED PROMISE OF SYNDROME EVIDENCE
In the 1980s, prosecutors who had difficulty obtaining convictions in rape
prosecutions realized that expert testimony that the complainant suffered from
RTS could be useful evidence, particularly when the defendant admitted to
engaging in sexual acts but claimed it was consensual.174 Syndrome evidence was
particularly important “where the case boiled down to a credibility contest”175
between the victim and the defendant.176
The appeal of syndrome evidence for prosecutors in sexual-assault cases
results from the difficulty associated with rape prosecutions.177 Unfortunately
for prosecutors, syndrome evidence has not been as helpful to victims as one
would think.178 There are several factors that limit the admission of syndrome
evidence in sexual-assault cases: Syndrome evidence is excluded when the
evidence (1) is not helpful to the jury,179 (2) invades the province of the jury,180 or
LAW AND CONTEMPORARY PROBLEMS [Vol. 76:413
(3) is not credible.181
When syndrome evidence is admitted, courts have greatly limited the scope
of the evidence. Courts will generally only allow the evidence to come in
defensively, such as to rehabilitate the victim,182 explain counterintuitive
behavior,183 or respond to a defense of consent.184 Even when syndrome evidence
is admitted for these purposes, courts limit the scope of the expert testimony;
experts cannot offer a diagnosis185 or an opinion related to the victim.186 Thus, in
the context of sexual-assault cases, generally, experts can only describe the
syndrome and characteristics and behavior of victims of sexual assault.187
Moreover, potential offensive use of syndrome evidence by the defense
further undermines the protections afforded to victims by syndrome evidence.188
One commentator argues that courts should afford the prosecution and defense
equal treatment with regard to syndrome evidence to preserve the defendant’s
right to a fair trial, allowing the defense to use the absence of rape-trauma
syndrome as evidence that no rape occurred in a sexual-assault case.189
The problem with this argument is that it ignores the effects of syndrome
evidence on the jury. Offensive use of syndrome evidence by the defense is
problematic because it could lead to the “CSI effect.” The “CSI effect” refers to
the effect of forensic science in crime television shows on public perception and
juror demands for scientific evidence.190 Prosecutors assert that “the show’s
perfectly packaged crime stories ha[ve] created unrealistic expectations among
potential jurors about the kind of evidence they will see in a real-life trial.”191
Therefore, “[p]rosecutors contend that the ‘CSI effect’ has made their job of
DISILLUSIONING THE PROSECUTION 431
obtaining convictions more difficult, because resources to do sophisticated
testing, such as DNA analysis, are not available in every case.”192
Studies have shown that jurors expect the introduction of scientific evidence
in criminal trials.193 Therefore, defendants’ use of the absence of a syndrome to
show that no sexual assault occurred is likely to be given too much weight by a
jury. Thus, the way in which courts have limited victims’ use of syndrome
evidence coupled with the potential offensive use of syndrome evidence by the
defense has a counterintuitive effect on victims and the prosecution in
Prosecutors thought that syndrome evidence would provide a solution to the
difficulties associated with rape prosecutions.194 Although syndrome evidence
has certainly impacted rape prosecutions, it has had a counterintuitive effect on
victims. Syndrome evidence is no protection device for victims; rather, it has
added an additional dimension of uncertainty to sexual-assault cases.
Syndrome evidence has been an area of great scientific and legal complexity,
and courts have approached questions of its admissibility in a variety of ways.195
In general, courts have been hesitant to admit expert testimony on
posttraumatic stress disorder and rape-trauma syndrome. When courts have allowed
syndrome evidence, they have greatly limited its scope so that the evidence is
nonidentifying, and the evidence is generally only admitted defensively.
Moreover, the potential for defendants to use syndrome evidence to their
advantage is damaging to the prosecution and victims. Thus, the complexity
associated with the admissibility of syndrome evidence has resulted in chaos in
the courts, and the restrictions on its scope have limited protection for victims
of sexual assault.
1990 )). 12 . See McCord , supra note 2 , at 31 ( describing a shift towards using expert testimony as syndrome
evidence) . 13 . Dr. Brett C. Trowbridge , The Admissibility of Expert Testimony in Washington on Post
Restoring the Use of Objective Psychological Testimony in the Courtroom , 27 SEATTLE U. L. REV. 453 ,
458- 64 ( 2003 ). 14 . Grey, supra note 5, at 58. 15. Id. at 58-59 (“ Clinicians welcomed the introduction of PTSD into the DSM, but a number of
and ubiquity, among others .”). Id. at 59 . Heavy lobbying by Vietnam veterans' groups and the women's
movement helped to bring attention to PTSD . Id. 16. Id. at 58 . 17. Id. at 61 (citing AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS 463-64 (4th ed., text rev . 2000 )). 18 . AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS
463 (4th ed., text rev . 2000 ). 19 . Trowbridge, supra note 13, at 459 . 20. Kenneth Winchester Gaines , Rape trauma syndrome: Toward Proper Use in the Criminal Trial
Context , 20 AM. J. TRIAL ADVOC . 227 , 228 ( 1997 ). 21 . Hogan, supra note 8, at 530. 22. Ann Wolbert Burgess & Linda Lytle Holmstrom, Rape trauma syndrome, 131 AM . J.
PSYCHIATRY 981 ( 1974 ); Gaines, supra note 20, at 228- 29 . 102 . Compare id. at 172-73 (“[T] he use of expert testimony in relating observations of the way
some widely held misconceptions about sexual assault victims.”), with State v . McCoy , 366 S.E.2d 731 ,
736- 37 (W. Va. 1988 ) (noting that an expert should not give an opinion on whether the victim was
raped because a victim's credibility is a question for the jury ). 103 . See , e.g., McCoy , 366 S.E.2d at 731; see also, Hogan, supra note 8 , at 535. 104. Robinson , 431 N.W.2d at 172. 105. Hutton v. State , 663 A.2d 1289 , 1301 (Md. 1995 ). 106 . See McCord , supra note 2 , at 43 (“ Courts have unanimously upheld the admissibility of such
abuse are not within the common experience of the jury . ”) . 107 . Gaines, supra note 20, at 235 (citing People v . Bledsoe , 36 Cal. 3d 236 ( 1984 ); People v.
Hampton , 746 P. 2d 947 ( Colo . 1987 ), overruled by People v . Shrek , 22 P. 3d 68 ( Colo . 1987 ) (en banc);
Goodwin v . State , 573 N.E. 2d 895 (Ind . Ct. App. 1991 ); State v . Gettier , 438 N.W. 2d ( Iowa 1989 );
Commonwealth v . Mamay , 553 N.E.2d 945 (Mass. 1990 ); People v . Taylor , 552 N.E. 2d 131 (N.Y . 1990 );
State v . Hall, 412 S.E. 2d 883 (N.C . 1992 ); State v . Robinson , 431 N.W.2d 165 ( Wis . 1988 )). 108 . Gaines, supra note 20, at 235 (citing Robinson, 431 N.W.2d at 172 - 73 ). 109. Id. at 235-36. 110. Id. at 236-37. 111. 762 A.2d 833 (Vt . 2000 ). 112 . Id. at 839 . 181. See , e.g., State v . Black , 745 P.2d 12 , 18 (Wash. 1987 ) (holding that rape-trauma syndrome is
not a scientifically reliable method admissible in evidence ). 182 . See , e.g., State v . McCoy , 366 S.E.2d 731 , 737 ( W. Va . 1988 ) (holding that expert testimony
to rehabilitate the victim); see also discussion supra Part III.A. 183 . See , e.g., State v . Kinney , 762 A.2d 833 , 842 (Vt. 2000 ) (holding that expert testimony used to
Part III .B. 184 . See , e.g., State v . Huey , 699 P.2d 1290 , 1294 (Ariz. 1985 ) (en banc) (holding that evidence of
also discussion supra Part III.C. 185 . See , e.g., Hutton , 663 A. 2d at 1301 (holding that diagnostic testimony is inadmissible ). 186 . See , e.g., State v . Robinson , 431 N.W.2d 165 , 172 (Wis. 1988 ) (holding that expert testimony
was admissible where the testimony did not include the expert's opinion) . 187 . See Hogan, supra note 8 , at 539 ( discussing how experts merely speak generally about rape-
Part III. 188. See Gaines, supra note 20 , at 247 ( discussing defendants' use of rape-trauma syndrome
evidence to show that no rape occurred ). 189. See id. at 249 . 190. Caroline L. Kinsey , CSI: From the Television to the Courtroom, 11 VA . SPORTS & ENT. L .J. 313
( 2012 ). 191 . Cynthia Di Pasquale, Beyond the Smoking Gun: Maryland's Legal Community Debates the
“CSI Effect,” DAILY REC ., Sept. 8 , 2006 , at 1B . 192 . Charles v. State , 414 Md. 726 , 731 ( 2010 ). The media labeled these complaints as the “CSI
Kinsey , supra note 190, at 317 . 193. Donald E. Shelton , Young S. Kim & Gregg Barak , A Study of Juror Expectations and
Demands Concerning Scientific Evidence: Does the “CSI Effect” Exist?, 9 VAND . J. ENT. & TECH L. 331
( 2006 ) 194 . McCord , supra note 2 , at 39. 195. Bleil, supra note 1, at 38.