STATE v. TIPTON (2021)

Writ application granted. See per curiam.

Writ granted. In a prosecution for sexual offense(s) committed against a child, expert testimony of general characteristics that would explain delays in reporting, inconsistent reports, omissions of details, reluctance to testify, demeanor, and recantations is generally admissible provided that it meets the requirements of the Code of Evidence and does not invade the jury's province of determining credibility or otherwise violate the prohibitions contained in State v. Foret, 628 So.2d 1116 (La. 1993); State v. Chauvin, 2002-1188 (La. 5/20/03), 846 So.2d 697. Here, the district court in a pretrial hearing found the expert to be qualified and that the underlying methodology is scientifically reliable under the Daubert-Foret standard. See generally Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The district court also found that the expert's testimony on delayed reporting will be relevant at trial and that it satisfies La.C.E. art. 702(A)(1)–(3).

However, the district court ruled that the expert testimony on delayed reporting would not be admissible at trial because it did not satisfy La.C.E. art. 702(A)(4) (“The expert has reliably applied the principles and methods to the facts of the case”) because the expert had not interviewed the victim. The district court erred. The fact that the expert did not personally examine the victim in this case does not detract from her expertise and ability to testify generally about delayed reporting. Cf. State v. Thomas, 2019-1027 (La. App. 1 Cir. 2/21/20), 297 So.3d 966; State v. Torregano, 03-1335 (La. App. 5 Cir. 5/11/04), 875 So.2d 842. The testimony presented at the pretrial hearing sufficed to pass the Daubert-Foret threshold. At trial, however, the admissibility of this testimony will be subject to reexamination in conjunction with the other testimony and evidence introduced, in light of which the balancing test provided in La.C.E. art. 403 can be applied. The State should proceed with care, mindful of the constraints imposed in Foret and Chauvin, to not permit expert testimony to impermissibly bolster witness credibility or invade the province of the jury. The matter is remanded to the district court for further proceedings consistent with the views expressed herein.

REMANDED