Volume 16, Number 7, 2003
Parental Alienation Syndrome: What Professionals Need to Know Part 2 of 2
By Hope Fields1 & Erika Rivera Ragland2
Introduction
Parental Alienation Syndrome (PAS) has created obstacles for child abuse prosecutors. It is crucial for child abuse prosecutors to understand the theory of PAS, and know how to best challenge its legitimacy in court. Part 1 of this article addressed the PAS theory and its inherent flaws.3 We now turn to the courts’ approaches to PAS, and propose arguments and methods to suppress this unreliable evidence.
Case Law Status
PAS has been received differently by criminal and civil courts. However, defendants draw from both civil and criminal opinions in crafting arguments for admitting PAS as scientific evidence in child abuse cases. Therefore, it is important for prosecutors to be aware of both criminal and civil law when preparing a suppression argument. PAS has been addressed in a few criminal cases and approximately fifty civil cases in courts of record.
Criminal Case Law4
In 1995, the Ohio Court of Appeals allowed evidence of PAS in a sexual abuse case.5 The defendant was convicted by the trial court of three counts of rape and one of sexual battery, all against his own children. The trial court allowed the defendant to present an expert who testified about PAS and the potential effects it can have in alienating children involved in custody battles. It is unclear from the court’s opinion whether the prosecution ever objected to presentation of this evidence, or to what extent the PAS evidence was used by the defense. The court did not discuss the admissibility of PAS evidence in its decision.
New York courts have consistently refused to admit evidence of PAS in criminal cases. In People v. Loomis6, the defendant, who faced charges of sexual abuse, moved the court to have the victims and their mother examined by Dr. Richard Gardner, the doctor who created and coined PAS, to determine if allegations of abuse were fabricated. The court denied defendant’s motion, holding that
New York practice does not allow experts to offer an opinion on the ultimate issue of fact as to whether sexual abuse occurred. The issue is strictly reserved to the trier of fact… The defendant’s expert purports to make such a determination by determining if a particular accusation has the criteria of a truthful or a false accusation.
In a later case, another New York court refused to admit PAS evidence.7 The court held that PAS failed to meet the Frye standard because defendant failed to show that it was generally accepted in relevant scientific communities.
California is the only other state to have discussed the admissibility of PAS in a criminal context. In an unpublished opinion earlier this year, the California Court of Appeals held that the defendant, convicted of sexual assault and lewd and lascivious acts on a child, had not been deprived of his due process rights by the trial court’s refusal to allow his expert to testify regarding PAS.8 Among the reasons for affirming the trial court’s decision was the determination that an understanding of the PAS theory was not beyond common experience and that PAS evidence is not scientific enough to meet the Kelly-Frye evidentiary standard.
Civil Case Law
Evidence of Parental Alienation Syndrome is admitted more frequently in civil cases than in criminal court. PAS evidence has been admitted in cases involving custody determinations and is usually introduced in an attempt to show that one parent, in denigrating the other parent in the presence of the child, has caused that child to express distaste and/or hatred for that other parent.9
States’ approaches to PAS evidence vary. A few states have allowed PAS evidence to be admitted in civil custody cases.10 Other courts, when confronted with PAS, have discussed it or allowed some evidence of it while emphasizing that such discussion did not comprise an evaluation of the legitimacy of PAS theory.11
Challenging PAS Evidence
Daubert12 and Frye13 are the most prominent cases dealing with admissibility of scientific evidence and expert testimony. While different jurisdictions employ different admissibility standards, there are a number of factors that can contribute relevant information to any admissibility evaluation. First, evidence of a scientific theory is more likely to be admitted in court if the techniques underlying that theory have been tested and if an error rate has been determined. The theory of PAS does not employ any assessable technique but rather, as stated in the Part 1 of this article, it is based upon anecdotal evidence that was personally observed and reported by Dr. Gardner. As a result, the accuracy of PAS theory has not been rigorously studied and verified. Second, the reliability of scientific evidence is more easily evaluated when it has been subject to peer review. As previously indicated, Gardner published his own work and his writings were not frequently subjected to scientific peer reviews.
Prosecutors should diligently question any case law or article that is cited as supporting PAS theory. Some Web sites that discuss PAS refer to case law as supporting the reliability of PAS theory, but the opinions in these cited cases are often not adequately explained or they prove to be less supportive of PAS theory than argued. Prosecutors reviewing literature that is referenced as positive on PAS should scrutinize it carefully.14
Procedural Arguments
The strongest procedural argument against admission of PAS evidence vis a vis expert testimony is that it invades the province of the jury. Most states do not allow experts “to offer an opinion on the ultimate issue of fact as to whether the sexual abuse has occurred.”15 In those states, prosecutors should argue that allowing a PAS expert to testify that the allegations arose out of a sour relationship between parents permits that expert to testify as to the ultimate issue of the case.
Prosecutors in jurisdictions that have adopted the Federal Rules of Evidence can argue for exclusion of PAS evidence under two rules. First, under rule 104(a), a trial judge must make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid.”16 PAS is not based on an easily articulable methodology that can be assessed for scientific validity and, consequently, prosecutors should argue that it fails even to pass the preliminary assessment for validity.
Second, rule 403 states that evidence should be excluded when the probative value is outweighed by the danger of unfair prejudice.17 There is a possibility that the jury will see the court’s acceptance of defendant’s PAS expert as a determination that the testimony presented by the expert represents some scientific truth. Prosecutors should argue that it is within the common experience of jurors to contemplate the possibility that the non-accused parent planted ideas in the child’s head. Qualifying an expert to testify about PAS creates the risk that the jury will place too much emphasis and reliance on PAS evidence.
Substantive Arguments
A syndrome is a group of symptoms that appear to occur together.18 However, the cause of the symptoms is “often unknown or poorly understood,” while the cause of a disease, by contrast, is usually known.19 It is possible for a syndrome to indicate a strong relationship between a cause and a set of symptoms, but each syndrome falls in a different place along the continuum of certainty. The continuum is a concept that explains the strength and reliability of the supposed relationship.20
Some syndromes are nondiagnostic, which means that they do not point to particular causes. PAS is a nondiagnostic syndrome.21 Thus, while an expert can argue the legitimacy of the theories underlying PAS, the expert is not able to point to a particular cause of the syndrome with certainty. Even if courts reject arguments regarding unreliability, prosecutors should remain acutely aware of how the evidence is being presented. If the expert is offering an opinion regarding the cause of the “syndrome,” prosecutors should object to the improper use of the evidence.
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