Paul Hurt v. Commonwealth, 10-CA-343-MR, unpublished.
While unpublished, this is an important case for two reasons. Hurt was convicted of several counts of sodomy and sexual abuse against his step-daughter. Even though there were no physical evidence of any abuse, the jury still convicted him based in part on the testimony of Dr. Sally Perlman. Dr. Perlman examined the step-daughter after her allegations of sexual abuse and concluded there were no findings of sexual abuse. However, Dr. Perlman was able to testify that the step-daughter, during the exam, laid “there like a wet noodle.” Because the child was so relaxed during the examination, Dr. Perlman testified that she believed the child had been sexually abused. According to the Kentucky Supreme Court, Dr. Perlman’s testimony should not have been allowed - it is improper to admit "evidence of a child’s behavioral symptoms or traits as indicative of sexual abuse . . . on grounds that this is not a generally accepted medical concept.” Bell v. Commonwealth, 245 S.W.3d 738, 745 (Ky. 2008), overruled on other grounds by Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008)."
Because testimony that a child’s relaxed behavior was consistent with that of a child who had been sexually abused was inadmissible, trial counsel performed deficiently in failing to object to this testimony. The Court of Appeals did not reverse Hurt’s conviction due to the Court’s belief that the detailed nature of the step-daughter’s testimony would not have changed the trial outcome, i.e., there was no prejudice. Even so, chances of a defendant winning at trial should be improved by keep this inadmissible evidence out.
Practice Tips: 1) use a Daubert hearing to prevent this type of behavioral expert from coming in; and 2) object if “wet noodle” evidence does come in.
Contributed by Robert Yang