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Univ. of South Carolina School of Law

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Friday, October 24, 2008

Area of Expertise: Court Of Appeals Of Texas Finds Trial Court Made Improper Expert Witness Ruling In Priest Sexual Abuse Case

Generally, courts have been exceedingly liberal in finding witnesses to be qualified as an expert witness, but the recent opinion of the Court of Appeals of Texas in Teczar v. State, 2008 WL 4602547 (Tex.App.-Eastland 2008), reveals that there are limits to this liberalism.

In Teczar, Thomas H. Teczar was convicted of three offenses of aggravated sexual assault of a child and one offense of indecency with a child.  Teczar was a priest at Saint Rita's Catholic Church in Ranger, Texas from the later 1980s until early 1993, and the alleged victim was Billy Ray Swiney, who was eleven years old when he moved with his mother and sister into a house across the street from the church in 1990.  The prosecution also contended that Teczar committed numerous uncharged acts of child sexual abuse, including sexual abuse against David Lewcon when Lewcon was a child.

At Teczar's trial, however, Lewcon did not solely testify as a lay witness concerning these alleged acts of abuse; he also testified as "an expert on the psychology and behavior of those who commit child sexual abuse and their victims."  Specifically, he testified "in some detail about the psychology of child sexual abuse, including the methods and practices of those who commit such abuse, the consequential psychological consequences for the victims, and the reasons why victims such as Swiney might be reluctant to make outcry about such abuse especially from an authority figure such as a priest."  And after he was convicted, Teczar appealed, contending, inter alia, that both Lewcon's lay and expert testimony was improperly received.

First, with regard to Lewcon's expert testimony, the Court of Appeals noted that:

     "In support of his expertise, Lewcon averred that he was a member and cofounder of the New England Chapter of the Survivors Network of those Abused by Priests (SNAP). He also was a founder and member of a small nonprofit organization called Advocates for Change. It is an organization that raises funds for efforts to assist clergy abuse victims or efforts in organizing seminars. At one time, he was listed on the SNAP website as a victim advocate and was available to consult with other victims of sexual abuse by priests. In that role, he consulted with more than 500 such victims.

     Lewcon also testified that he was a coactive coach, which he defined as someone who has acquired some skills through seminars to be able to be more effective in identifying with clergy abuse victims. Moreover, he had operated a suicide hotline and had consulted with 'between 50 to 100' on that line. Lewcon had additionally been a victim of clergy abuse. He had also taken seminar courses through a company by the name of Coaches Training Institute that offered courses in 'how to be more effective on the subject of coaching.' He spent five weekends in taking those seminars, which cost him a total of $4,000. He studied 'mostly liberal arts courses' in college and had studied only the 'first level' of psychology, which, he said, was lower than Psychology 301. He had never received or applied for any kind of license as an expert on clerical abuse of children."

The Court of Appeals found these credentials formed an improper foundation to support Lewcon's expert testimony, and, notwithstanding the fact that courts have generally been exceedingly liberal in finding witnesses to be qualified as an expert witness, I think that I agree with its decision.  The court noted that the "seminal" Texas precedent on this issue was the recent opinion of the Texas Court of Criminal Appeals in Vela v. State, 209 S.W.3d 128 (Tex.Crim.App. 2006), which held, inter alia, that the "the expert's background must be tailored to the specific area of expertise in which the expert desires to testify."

And, according to the Court of Appeals, while Lewcon had experience in dealing with victims of child abuse, he didn't have the requisite background in psychology to be able to deliver the detailed psychological testimony he rendered at trial.  In other words, the court's opinion in Teczar is not a repudiation of the general rule that even the Mona Lisa Vitos of the world can be qualified as expert witnesses; instead, it merely recognizes that an expert witness' experience must match his testimony.   

The Court of Appeals thus found that the trial court erred in admitting Lewcon's expert testimony and reversed and remanded.  The Court of Appeals also found that the trial court erred in admitting evidence (including Lewcon's testimony) regarding Teczar's numerous uncharged acts of child sexual abuse, which the trial court had admitted under Texas Rule of Evidence 404(b) to prove identity.  The appellate court correctly found that this was error because Teczar's

     "identity was not really a disputed issue in the case. The defense did not claim, nor does the evidence suggest, that Swiney was not acquainted with [Teczar] prior to the time of the alleged offenses or that they were committed under circumstances that made it difficult or impossible for him to identify the person abusing him."

-CM

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