Much like Bill Lewinski is the guy to call when you’re a killer cop, always ready with an excuse for whatever went wrong, Veronique Valliere is the psych to call when the prosecution needs a witness to explain away the flaws of a rape case.
During its case in chief, over defense objection, the Government presented expert
testimony from Dr. Veronique N. Valliere, on the areas of victim recantation, delayed
reporting, and victims’ tendency to stay in the relationship. In an Article 39(a), UCMJ,
10 U.S.C. § 839(a), hearing on this issue, the Government proferred that Dr. Valliere
would testify about counterintuitive behaviors by victims of domestic violence. Specific
areas would include delayed or staggered reporting, returning to the offender, recantation,
potential aggressiveness towards an offender, and the concepts of fear and dynamics of
fear in a domestic violence relationship.
It’s expert testimony, as provided by psychologists like Valliere, that distinguishes the obvious, the purported “common sense” grasp of facts, from the narrative the prosecution wants to sell to the jury.
Why would a rape victim not immediately run to police? Why would a rape victim continue to maintain a relationship with her rapist? Why would a rape victim deny it was rape, then later allege the opposite? The key word here is “counterintuitive,” and it’s Valliere’s job to explain away what people would otherwise naturally believe to the ordinary and expected human behavior.
As with Lewinski, many will view the “expert” testimony Dr. Valliere gives as more rape-politics fantasy than scientific. There is a laundry list of excuses for the behaviors of alleged victims that explains away their conduct, no matter what it is. If they run to police immediately, they’re victims. If they don’t, they’re victims too. No matter what they do, it still proves they’re victims, such that there is no choice they make that doesn’t serve to prove their victimhood.
Before you place your forehead in your open palms, though, consider that providing expert testimony to explain counterintuitive behaviors by alleged victims of sexual assault isn’t entirely different than the expert witness who testifies as to false confessions or the failings of eyewitness identification.
Why would anybody confess to a murder they didn’t commit?
What better identification of the perpetrator of a crime could there be than one’s very own eyes? “I will never forget that face” may be the most powerful words a jury can hear.
The answers to these questions, like the answer to why a rape victim wouldn’t immediately run to the cops, are counterintuitive. Yet, we know from other science, like DNA, that they happen. People falsely confess. Eyewitnesses get the identification wrong. You can argue this to a jury, but the reality is that most people don’t believe, won’t believe, that it can happen. It makes no sense to them. It’s just so . . . counterintuitive.
This isn’t to suggest there aren’t material differences that distinguish the rape victim excuse narrative from false confessions. The latter has been conclusively proven to be true by DNA, whereas the former is “soft,” anecdotal or “empirical” studies by academics bent on establishing the validity of excuses rather than testing hypotheses.
But there is another, more insidious, difference. The introduction of apologist expert testimony like that proffered by Valliere is sought by the prosecution. It’s offered to bolster their case, to overcome the obvious flaws that impair conviction. The gatekeepers of expert testimony are asked to allow the testimony of an excuse expert not because it is relevant and material to a defendant’s guilt, but because it rehabilitates the victim’s perceived failures. The prosecution’s obvious purpose is to preemptively thwart the defense.
On the other hand, when the defense seeks to introduce evidence of a false confession or a flawed identification, the purpose of which is to defend against the prosecution’s direct evidence of guilt, a right explicitly protected by the Sixth Amendment, the gate is almost invariably slammed shut.
“The jury doesn’t need an expert on that, counselor. It’s an obvious argument. You can just argue it in summation. Move along.”
While it’s true that it can be argued in closing, with the proviso that there isn’t an objection, sustained, that there was no evidence introduced to support the argument, there is no question but that it’s substantially more effective to have an expert witness, clad in the armor of empirical studies and higher degrees, make the case.
The prosecution against Bill Cosby hired Veronique Valliere as its excuse witness. The judge allowed her to testify as an expert witness as to why all the things the alleged victim, Andrea Constand, failed to do shouldn’t impugn her credibility, and in fact bolster her cred. But the prosecution took it a step farther.
As prosecutors presented an expert on victim response to sexual assault this morning, defense attorney Brian McMonagle objected and asked for a mistrial.
“We have that person telling this jury they should return a verdict of guilty,” McMonagle said.
The expert went beyond discussing victim response in general, he argued, and testified about how that response is influenced by the offender, and the examples she gave sounded an awful lot like Bill Cosby.
“She’s bringing up celebrity, she’s bringing up wealth,” McMonagle said. “Now they’ve crossed the line, and we’re asking for a mistrial.”
There is a serious question as to the propriety of the prosecution being allowed to introduce excuse testimony, imbued with the trappings of science when it’s largely the squishy self-reporting of excuses to academics determined to establish their validity. There’s a serious question as to why this latitude is given the prosecution when it’s routinely denied the defense.
But going that next step, to allow the expert to frame her opinion in a way that encompasses the unique details of a case, of the specific defendant on trial, so as to remove the ultimate fact question before the jury, is a step too far.
This doesn’t mean that Cosby isn’t guilty. Or that he’s innocent. It means that the decision should be left to the jury rather than the excuse witness, in whose expert opinion the defendant is guilty as sin.