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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 12-CO-144

                     CHRISTOPHER P. GIRARDOT, APPELLANT,

                                        V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                 (CF2-3822-06)

                   (Hon. Zinora Mitchell-Rankin, Trial Judge)

(Argued November 19, 2013                                 Decided June 12, 2014)

     Alice Wang, Public Defender Service, with whom James Klein and Jaclyn
Frankfurt, Public Defender Service, were on the brief, for appellant.

      Stephen F. Rickard, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, and Elizabeth Trosman, Amy Zubrensky, and
Ann K. H. Simon, Assistant United States Attorneys, were on the brief, for
appellee.

      Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and PRYOR,
Senior Judge.

      FISHER, Associate Judge: Appellant Christopher Girardot argues, for the

second time before this court, that he is entitled to a new trial because the trial
                                           2


court excluded expert testimony. We hold that the trial judge did not exercise her

discretion erroneously and therefore affirm.



                            I.    Factual Background



      During Mr. Girardot‟s bench trial in 2006, the government relied upon the

testimony of two victims, eight-year-old J.B. and ten-year-old C.N.1 After hearing

the evidence, the trial court found appellant guilty of two counts of misdemeanor

sexual abuse, in violation of D.C. Code § 22-3006 (2001). Prior to trial, appellant

had sought to introduce the testimony of Dr. Susan Robbins, “an expert in

children‟s cognitive processes, and the pressures and factors that can prompt a

child to make false complaints of sexual abuse.” Girardot I, 996 A.2d at 343. We

remanded appellant‟s case for a more thorough inquiry, instructing the trial court to

consider all three prongs of the Dyas test for evaluating the admissibility of expert

testimony.2 Girardot I, 996 A.2d at 349.




      1
        For a description of their testimony, see Girardot v. United States, 996
A.2d 341, 344-45 (D.C. 2010) (Girardot I).
      2
          Dyas v. United States, 376 A.2d 827, 832 (D.C. 1977).
                                           3


      At an evidentiary hearing held on June 22 and June 23, 2011, Judge

Mitchell-Rankin heard more than six hours of testimony and argument concerning

Dr. Robbins‟ qualifications.       Dr. Robbins returned to court and gave her

substantive testimony on September 26, 2011. The trial court explained: “We‟re

going to proceed as if the issue of qualifications has been resolved to get to the

substantive . . . testimony.” That testimony, which included direct examination,

cross-examination, and redirect, spans 150 pages of transcript.



      On February 2, 2012, Judge Mitchell-Rankin issued a twenty-three page

order, comprehensively addressing the Dyas factors and again ruling that the

testimony would be excluded. The court also stated that “Dr. Robbins‟ testimony

did not provide any information that was helpful in evaluating the statements made

by J.B. and C.N.” Judge Mitchell-Rankin therefore found, in an alternative ruling,

that “the testimony would not lead [her] to reach a different conclusion as to

whether the Defendant was guilty beyond a reasonable doubt.”



                             II.    The Dyas Analysis



      “Although the admission of expert testimony falls within the discretion of

the trial judge, . . . because the right to confront witnesses and to present a defense
                                          4


are constitutionally protected, . . . „the defense should be free to introduce

appropriate expert testimony.‟” Benn v. United States, 978 A.2d 1257, 1269 (D.C.

2009) (citations omitted). We will, however, “defer to the trial court‟s exclusion of

expert testimony when it is based on a reasoned and reasonable exercise of

discretion[.]” Id. at 1276. “[T]here is an important tradeoff for giving the trial

court such latitude: that court must take no shortcuts; it must exercise its discretion

with reference to all the necessary criteria.” Ibn-Tamas v. United States, 407 A.2d

626, 635 (D.C. 1979) (emphasis in original) (citations omitted). Thus, “the court‟s

determination must be case-specific, based on the proffered expert testimony,” and

“upon a consideration of each of the three separate criteria identified in Dyas.”3

Benn, 978 A.2d at 1278.



      3
         There are “two levels of analysis to a trial court‟s ruling on expert
testimony.” Ibn-Tamas, 407 A.2d at 632. First, expert testimony must meet the
following criteria:

             (1) the subject matter “must be so distinctively related to
             some science, profession, business or occupation as to be
             beyond the ken of the average layman;” (2) “the witness
             must have sufficient skill, knowledge, or experience in
             that field or calling as to make it appear that his opinion
             or interference will probably aid the trier in his search
             for truth;” and (3) expert testimony is inadmissible if “the
             state of the pertinent art or scientific knowledge does not
             permit a reasonable opinion to be asserted even by an
             expert.

                                                                        (continued…)
                                           5




                               A. “Beyond the Ken”



      In Girardot I, “we remand[ed] . . . so that the trail court may re-visit the first

Dyas prong and, as it ha[d] not yet done, apply the second and third Dyas prongs to

the defense proffer of Dr. Robbins‟s proposed testimony.” 996 A.2d at 349. The

first Dyas factor is whether the subject matter to be addressed by the expert

testimony is “beyond the ken of the average layman.” Dyas, 376 A.2d at 832

(emphasis omitted). Simply put, an expert “cannot testify to matters which „the

jury itself is just as competent‟ to consider.” Ibn-Tamas, 407 A.2d at 632. In our

previous examination of this case, we held that the “beyond the ken of a layman

[or lay person]” standard applies to bench trials. Girardot I, 996 A.2d at 348.




(…continued)
Dyas, 376 A.2d at 832 (emphasis in original) (quoting E. Cleary, McCormick on
Evidence § 13, at 29-31 (2d ed. 1972)). Second, “[e]xpert testimony admissible
under the criteria of Dyas . . . is still subject to exclusion if the danger of unfair
prejudice substantially outweighs its probative value.” Jones v. United States, 990
A.2d 970, 977 (D.C. 2010); see (William) Johnson v. United States, 683 A.2d
1087, 1099 (D.C. 1996) (en banc) (adopting “the policy set forth in Federal Rule of
Evidence 403—„evidence [otherwise relevant] may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice‟”).
                                         6


      On remand, Girardot argued that “Dr. Robbins‟ proposed testimony is

beyond the ken of the average layperson because it is simply the defense corollary

of the expert testimony that the Court of Appeals [has previously] concluded was

beyond the ken of the average lay person” when offered by the government.

Appellant was referring to our cases holding “that the behavioral characteristics

and psychological dynamics of child molestation victims are beyond the ken of the

average juror.” Jones v. United States, 990 A.2d 970, 978 n.17 (D.C. 2010) (citing

Mindombe v. United States, 795 A.2d 39, 42 (D.C. 2002), and Oliver v. United

States, 711 A.2d 70, 73 (D.C. 1998)). In Mindombe, we held that a child victim‟s

response to sexual abuse could be misperceived by the jury and, therefore, an

expert‟s explanation “serves a useful and necessary purpose at trial.” 795 A.2d at

47. Similarly, in Oliver, we held that an expert‟s “testimony was relevant because

it assisted jurors in understanding the psychology of an abused child‟s

recantation.” 711 A.2d at 73. Appellant asserts that, to level the playing field, the

defense should “be permitted in appropriate cases to present expert testimony on

psychological factors that can lead children to make false reports of sexual abuse.”



      Finding the “defense corollary” argument to be unsound, Judge Mitchell-

Rankin distinguished Mindombe and Oliver, pointing out that Dr. Robbins‟
                                         7


testimony would “not address the psychological and behavioral characteristics of

sexually abused children.” This was not the end of her analysis, however.



      The trial judge identified the premises underlying Dr. Robbins‟ opinions and

analyzed “„the extent to which the [proffered] testimony will provide information

that is not likely to be known by lay jurors.‟” Quoting Benn, 978 A.2d at 1267.

The witness had described the problems inherent in “leading or suggestive

questioning, repetitive questioning, multiple choice questioning, and encouraging

certain responses through praise and attention.” The court concluded that “there is

simply nothing counter-intuitive, inherently unique or scientific about the

proposition that children can be misled and confused by the[se] types of

questions”—“it is a matter of common sense[.]” Moreover, “[a]ny perceived bias

on the part of the interviewer or in the format of the questioning can be fully

explored by counsel through the presentation of evidence and effective cross

examination.   Well developed litigation skills and not expert testimony are

required under these circumstances.”



      In sum, Judge Mitchell-Rankin was “satisfied that the average layperson is

„just as competent‟ as the proffered expert to address the issues presented in this

case because the criteria . . . are no different than those which the average
                                          8


layperson commonly uses to determine credibility, reliability and accuracy of

information, and truth and falsity of a claim[.]”



      Appellant argues that because Dr. Robbins‟ testimony involved summarizing

the methods and results of psychological studies, it was necessarily beyond the ken

of an average layperson. See Benn, 978 A.2d at 1277 (“[I]t cannot be said that

psychological studies regarding the accuracy of an identification are within the ken

of the typical juror.” (citation omitted)). However, there can be no categorical rule

requiring admission simply because academic studies will be discussed. Instead,

the trial court must examine the basic principles on which the witness will rely. In

this case, having listened at length to Dr. Robbins, the court concluded that “[t]he

operative principles are a matter of common knowledge and are not difficult to

understand. Couching these principles in technical terms does not render them

otherwise.”



                B. “Sufficient Skill, Knowledge, or Experience”



      The second Dyas factor requires that the witness have “sufficient skill,

knowledge, or experience in that field or calling as to make it appear that his

opinion or inference will probably aid the trier in his search for truth.” Dyas, 376
                                           9


A.2d at 832 (emphasis omitted). Judge Mitchell-Rankin found, however, that

“Dr. Robbins‟ educational experience, work experience, and professional

designations do not, individually or in the aggregate, demonstrate that she has

sufficient skill, knowledge or experience in the field relevant to this case.”



      During the first appeal, Dr. Robbins was described as “an expert in

children‟s cognitive processes, and the pressures and factors that can prompt a

child to make false complaints of sexual abuse.” Girardot I, 996 A.2d at 343. The

defense sought to demonstrate “that (1) for psychological reasons related to a

child‟s cognition, children may make false allegations about child abuse, and

(2) scientific studies, which have delineated these cognitive factors and

psychological dynamics, will be helpful to the trial court in resolving this case[.]”

Id. at 347.    However, the testimony which materialized on remand varied

significantly from this proffer. Appellant argued below and again before this court

that Dr. Robbins, a tenured professor of social work with more than thirty years of

experience, was qualified to identify and discuss problematic questioning that

occurred during the forensic interviews of J.B. and C.N.



      In eleven pages of its order, the trial court carefully identified the gaps in

Dr. Robbins‟ background and experience. In particular, Judge Mitchell-Rankin
                                         10


explained that Dr. Robbins had not diagnosed or treated children who have been

victims of sexual abuse. She had not completed any coursework in cognitive

psychology or forensic interviewing.      Although her work experience includes

training forensic interviewers in more than fifty workshops and watching over one

hundred recorded forensic interviews, she has never “conducted or directly

observed a forensic interview of a child.”        “In fact,” the trial court noted,

“Dr. Robbins testified that she has no clinical experience with child patients other

than in the context of providing family therapy that was unrelated to the issue of

child sexual abuse.”



      As an academic, Dr. Robbins had published “approximately fifty articles and

book chapters on topics such as substance abuse, club drugs, recovered memory,

satanic ritual abuse, social work pedagogy, and issues facing the Native American

community.” Despite addressing this wide range of topics, “she has not authored a

single article or applied for any research grants on the subjects of child sexual

abuse, false allegations of child sexual abuse, forensic interview techniques, or the

suggestibility of child witnesses.”



      Although she acknowledged that reading alone may provide expertise,

Judge Mitchell-Rankin was concerned that Dr. Robbins had not read the latest
                                          11


editions of some of the sources she cited and was unaware that an article on which

she relied had been withdrawn. When pressed to explain how the studies she

listed, which focused primarily on preschool children, demonstrated the

suggestibility of older children, Dr. Robbins claimed that there was newer research

on that subject which she had failed to cite. Dr. Robbins confirmed, however, that

“there are not enough studies [on the suggestibility of older children] to have a true

consensus.” The trial court found that this testimony failed “to demonstrate (or

even attempt to explain) how any of [the] research is applicable to children

between the ages of eight and ten, the pertinent age range in the subject case.”

Judge Mitchell-Rankin explained that “the conceded lack of consensus in the

academic community is relevant to the second Dyas prong because it suggests that

Dr. Robbins does not have sufficient knowledge, based upon „reading alone,‟ to

render an opinion that would likely assist in the search for truth.”



                        C. The State of the Scientific Knowledge



      Under the third prong of Dyas, “expert testimony is inadmissible if „the state

of the pertinent art or scientific knowledge does not permit a reasonable opinion to

be asserted even by an expert.‟” 376 A.2d at 832. This inquiry “begins—and

ends—with a determination of whether there is general acceptance of a particular
                                         12


scientific methodology, not an acceptance, beyond that, of particular study results

based on that methodology.” Ibn-Tamas, 407 A.2d at 638.



      During her testimony, Dr. Robbins failed to connect her opinion to specific

studies that were relevant to the suggestibility of eight and ten year olds. The

articles on the list that she provided to the court pertain to children of preschool

age. When challenged on this discrepancy, Dr. Robbins explained that in “certain

situations . . . adults are even more suggestible than children. It depends on the

methodology, it depends on the study . . . . [T]he newer research is suggesting that

what we thought before, that the older children and adults are not suggestible,

that‟s simply not the case.”



      When asked whether any of this newer research was on the list of sources on

which she had relied, Dr. Robbins replied, “[n]o, it is not.” After glancing at her

list, she then said, “I need to change my answer because I just found that one of

these sources does have it.” Dr. Robbins indicated a source on the list, saying, “I

don‟t have that article with me. And I don‟t have any other references on this list

about adult suggestivity because this workshop [for which the list was originally

prepared] was never about adults.”      The government‟s attorney produced the
                                           13


indicated study and showed it to Dr. Robbins. After looking at it, Dr. Robbins

said, “[o]kay, this is not the article I was thinking of.”



       As Judge Mitchell-Rankin explained, Dr. Robbins‟



              claim that the studies are “coming to a consensus” is
              insufficient to justify a conclusion that there is general
              acceptance in the relevant scientific community
              concerning the methodology for identifying the extent to
              which children between the age of eight and ten are
              suggestible, nor does it justify a conclusion that there is
              general acceptance of a specific methodology of
              questioning eight- and ten-year-old children during
              forensic interviews.



Appellant “argu[ed] that because the methodology involving preschool-aged

children is generally accepted, so too is the methodology used in the . . . studies

involving children between the ages of eight and ten.” The trial court found that

“[t]his argument . . . is unsupported by Dr. Robbins‟ testimony and the literature

cited in her reference list.”



                       III.     Reviewing for Abuse of Discretion
                                           14


      In recent years we have remanded several cases for further proceedings

where the trial court had excluded expert testimony proffered by the defense. In

some instances, the evidence had been excluded almost as a categorical matter.

See Russell v. United States, 17 A.3d 581, 588 (D.C. 2011) (remanding “to allow

the trial court to give individualized consideration to the defense‟s proffer in the

context of the facts in this case”); Benn, 978 A.2d at 1261 (observing that the trial

court “came dangerously close to employing a per se rule of exclusion”). In other

cases, the trial court applied incorrect legal principles. See Minor v. United States,

57 A.3d 406, 409 (D.C. 2012) (agreeing that “the trial court abused its discretion

because the underpinnings for its exclusion of the testimony go solely to the weight

of the expert testimony and not to its admissibility under Dyas”).



      Despite this recent trend, we have not created a regime of per se

admissibility to replace a practice of routine exclusion. We still recognize that

“[w]hether to admit expert testimony is committed to the discretion of the trial

court; a ruling either admitting or excluding such evidence will not be disturbed

unless manifestly erroneous—i.e., for abuse of discretion.” Benn, 978 A.2d at

1273 (internal quotation marks and citation omitted); see In re Melton, 597 A.2d

892, 901 (D.C. 1991) (en banc) (“The admission or exclusion of expert

testimony . . . is committed to the trial court‟s broad discretion.”).
                                           15




      “The concept of „exercise of discretion‟ is a review-restraining one.”

(James) Johnson v. United States, 398 A.2d 354, 362 (D.C. 1979). We make “two

distinct classes of inquiries when reviewing a trial court‟s exercise of discretion.”

Id. at 367. First, we ask “whether the exercise of discretion was in error[.]” Id. If

we conclude that it was, we then must determine “whether the impact of that error

requires reversal. It is when both these inquiries are answered in the affirmative

that we hold that the trial court „abused‟ its discretion.” Id.



      Judge Mitchell-Rankin did not err in exercising her discretion.             She

diligently applied all three prongs of the Dyas test after carefully eliciting the

witness‟s qualifications and her substantive testimony. The judge was aware of her

discretionary authority and exercised it in a case-specific inquiry. This was just the

sort of “reasoned and reasonable exercise of discretion” to which we will defer.

Benn, 978 A.2d at 1276. 4 Appellant insists, however, that there was only one

permissible outcome based on this record.            We disagree.    “[T]he core of

„discretion‟ as a jurisprudential concept is the absence of a hard and fast rule that


      4
          The reader will have noted that the trial judge spent an extraordinary
amount of time complying with our remand order. We applaud her diligence, but
we are not suggesting that such a time-consuming inquiry will be required in all
cases in order to pass appellate muster.
                                          16


fixes the results produced under varying sets of facts.” (James) Johnson, 398 A.2d

at 361. In other words, “[d]iscretion signifies choice.” Id.



      The record in this case does not mandate that Dr. Robbins‟ testimony be

admitted. Nor does the Constitution require it. “[T]he Constitution guarantees

criminal defendants „a meaningful opportunity to present a complete defense[,]‟”

Holmes v. South Carolina, 547 U.S. 319, 324 (2006), and this includes the right to

present appropriate expert testimony. Benn, 978 A.2d at 1269. But invocation of

that right does not displace the rules of evidence, nor does it rob a trial judge of

discretion. “[W]ell-established rules of evidence permit trial judges to exclude

evidence if its probative value is outweighed by certain other factors such as unfair

prejudice, confusion of the issues, or potential to mislead the jury.” Holmes, 547

U.S. at 326. The Dyas test is one of those well-established rules, and it cannot

fairly be said that this test is “arbitrary or disproportionate to the purposes [it is]

designed to serve.” Id. at 324 (citation omitted) (describing rules of evidence

which abridge the right to present a defense).



      In other words, the right to present evidence “is not unlimited” and may

“bow to accommodate other legitimate interests in the criminal trial process.”

United States v. Scheffer, 523 U.S. 303, 308 (1998) (citations omitted). One such
                                         17


legitimate concern, embodied in the Dyas test, is that expert testimony serve its

proper function and not usurp the role of the jury. “[B]ecause expert or scientific

testimony possesses an „aura of special reliability and trustworthiness,‟ the proffer

of such testimony must be carefully scrutinized.” Ibn-Tamas, 407 A.2d at 632

(citation omitted); see 1 Kenneth S. Broun et al., McCormick on Evidence § 13, at

90 (7th ed. 2013) (“In the past three decades, the use of expert witnesses has

skyrocketed. . . . Some commentators claim that the American judicial hearing is

becoming a trial by expert.”). After such careful scrutiny, Judge Mitchell-Rankin

determined that Dr. Robbins‟ testimony did not meet the Dyas test. Because we

uphold this exercise of discretion, we need not address her alternative ruling

assessing the impact Dr. Robbins‟ testimony would have had on the verdict.



                                  IV.    Conclusion



      The judgment of the Superior Court is hereby



                                                    Affirmed.
