Ana Cecilia Gonzalez v. State of Maryland, No. 1162, Sept. Term, 2024. Opinion by Arthur, J.
EVIDENCE—EXPERT TESTIMONY—TESTIMONY ABOUT RECANTATION
OF ALLEGATIONS OF CHILD ABUSE
In this case, an expert social worker had a sufficient factual basis for opining that children who claim to have been subjected to physical or sexual abuse sometimes recant their accusations. The expert’s testimony was primarily experiential in nature, as opposed to scientific. The expert based her opinion on decades of training and experience, during which she had conducted thousands of forensic interviews of children who were alleged to be victims of child abuse.
The trial court did not abuse its discretion by permitting the expert social worker to testify that children who claim to have been subjected to physical or sexual abuse sometimes recant their accusations. The expert discussed the phenomenon of recantation and factors that increase the rate of recantation, but she specifically stated that she does not determine whether a child’s allegations are truthful or untruthful, that she does not determine whether or not someone is lying, that she does not assume that the child’s statement is accurate, and that the fact of recantation does not determine whether the original account or the subsequent account is true.
EVIDENCE—EXPERT TESTIMONY—NECESSITY OF DAUBERT HEARING
A Daubert hearing is a hearing in which a trial court evaluates the admissibility of expert testimony by analyzing factors including the reliability of the methodology employed by the proposed expert. A moving party may be entitled to a Daubert hearing if the moving party supports the motion with literature and expert testimony that conflicts with the proposed expert’s testimony. A trial court, however, need not conduct a Daubert hearing merely because a party has challenged the reliability of an expert’s methodology. When a criminal defendant challenges the methodology of one of the State’s experts, the court need not conduct a Daubert hearing unless the defendant makes some showing that such a hearing would be necessary or desirable. The court does not shift the burden to the defendant by insisting that the defendant make some preliminary showing before the court conducts a Daubert hearing.
Circuit Court for Frederick County
Case No. C-10-CR-23-000782
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 1162
September Term, 2024
ANA CECILIA GONZALEZ
v.
STATE OF MARYLAND
Arthur,
Shaw,
Getty, Joseph M.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Arthur, J.
Filed: October 6, 2026
Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.
2026.10.06
15:21:01 -04'00'
Gregory Hilton, Clerk
After a two-day bench trial, the Circuit Court for Frederick County convicted
appellant Ana Cecilia Gonzalez of second-degree child abuse and second-degree assault.
She appealed, principally challenging the introduction of expert testimony on the subject
of recantation by victims of child abuse.
Because we see no error or abuse of discretion, we affirm.
FACTUAL AND PROCEDURAL HISTORY
A. The Report of Abuse
In July 2023, Ms. Gonzalez’s child, K.,1 was attending summer school after
finishing the fourth grade. She was 10 years old.
Stacy Reno, a teacher, testified that, on the last day of school, when the children
were about to leave, K. was very nervous. She was tearing up and starting to get frantic.
Ms. Reno thought that K. was anxious that her mother had not yet arrived to pick her up.
When Ms. Reno suggested that they go into the office to call her mother, K. said that she
was “not safe at home.”
Ms. Reno took K. into the school counselor’s office to speak with the counselor
and the school resource officer. K. was hysterical and was crying. She was very upset
and was having difficulty speaking. She said that she did not want to go home, that her
mother hits her with a shoe, that she has marks on her arm, that she lives in fear, and that
she doesn’t know why her mother has these outbursts. She was talking nonstop. Ms.
Reno had never seen K. behave this way.
We have selected the initial “K.” at random to preserve the child’s anonymity.
1
“K.” may or may not be the first letter of her name.
They heard an announcement on the intercom that K.’s mother had arrived. K.
grabbed Ms. Reno’s arm and yelled, “I don’t want to go home, I don’t want to go home.”
Ms. Reno gave K. her phone number and took K. down to meet her mother, who had
come to pick her up. As Ms. Reno was walking K. down the stairs, K., who could barely
compose herself, said, “I’m worried that my mom is going to think that I told you guys
something.”
The school counselor, Kelli Fink, testified, similarly, that K. was hysterical—that
she was hugging a pillow and crying. K. told Ms. Fink that she had experienced abuse,
that she had a bruise on her leg, and that her mother was hurting her. According to Ms.
Fink, K. began to cry when she learned that she would have to go home. In accordance
with her obligations as a mandatory reporter, Ms. Fink reported K.’s allegations to the
authorities.
Sergeant Carrado, the school resource officer, testified that K.’s teacher asked her
to come up to the counselor’s office and to bring her comfort dog to try to calm a student.
When Sergeant Carrado got to the office, she saw K., who was crying hysterically and
having trouble breathing.
K. said that she had waited until that day to speak to her teachers because she
knew that there would be a lot of adults around and that there would be a good
opportunity to talk to her teacher about what was going on in the home. K. told Sergeant
Carrado that her mother hits her with an open hand and a belt and that she had bruises.
“If her mother saw her crying,” K. said, she “would be beaten.”
2
Sergeant Carrado took a photograph of K.’s left thigh. The photograph showed
two bruises, which, K. said, her mother had caused.
Sergeant Carrado told K. that she would have to call Child Protective Services
(CPS). K., who was crying and having trouble breathing, responded, “I’m not going
home, please don’t make me.”
Sergeant Carrado stepped out of the room to call CPS. CPS informed her that K.
needed to go home with her mother. When Sergeant Carrado returned to the room and
delivered this news to Ms. Reno, Ms. Fink, and K., K. screamed that she thought that
Sergeant Carrado was going to help her. Sergeant Carrado tried to reassure K. that others
would get involved to help her.
B. K.’s Forensic Interview
A week later, Meghan McGowan, a forensic interviewer, spoke with K. at the
Frederick County Child Advocacy Center. A CPS worker for the Frederick County
Department of Social Services and a Frederick police detective, Detective McKinney,
watched from a separate room via a live audio- and video-recording.
In the interview, K. said that her mother often hit her with her hand, a belt, a
wooden spoon, and a shoe. She told her interviewer that “the last time” her mother hit
her was “a few weeks ago.” She said that her mother had caused a bruise, which had not
yet gone away.
K. told the interviewer that, when she was in the first grade, her mother had hit her
with a belt, which also caused a bruise. K. also told the interviewer that her mother
would slap her in the face and that her mother had caused her to suffer bruises four times.
3
She said that her mother told her that the police would never believe her if she went to
them.
C. The Interview of Ms. Gonzalez
On that same day, Detective McKinney spoke with Ms. Gonzalez, through a
Spanish-language interpreter. He recorded the interview on his body-worn camera.
In the interview, Ms. Gonzalez said that K. is truthful. Ms. Gonzalez initially
denied physically disciplining her children, then said that she spanked the children with
her hand but did nothing that would leave a bruise, and then seemed to say that she did
not spank K. At first, she denied spanking or threatening to spank her children with a
belt or a spoon, but later she admitted to threatening the children with a belt. When asked
how K. had gotten a bruise on her thigh, she denied that K. had such a bruise, “because,”
she said, “I don’t hit her now.” She denied causing the bruise on K.’s thigh. On three
occasions, she said that she didn’t “remember” hitting K. with a belt.
David Mullenix, a social worker, observed Ms. Gonzalez and her children while
CPS was interviewing their father. Mr. Mullenix, who is fluent in Spanish, testified that
he heard Ms. Gonzalez tell her son, “I’m probably going to get in trouble for hitting you
with a spoon.”
4
D. K.’s Recantation
On the first day of trial, the State called K. as one of its witnesses. She agreed
that, on the last day of summer school, she told her teacher that she was not safe at home,
that she told the teacher and a police officer that her mother hit her, and that she said that
her mother had caused the bruises on her leg. She testified, however, that she said that
her mother was hitting her because she “was really mad at [her mom] for the past few
days.” She was mad, she said, because her mother would not allow her to wear a certain
dress.
When the prosecutor showed K. a photo of the bruises on her leg, K. said that
thought she got the bruises “from [her] dog.” She denied that her mother had ever hit her
with a spoon or belt, threatened her with a belt, or slapped her in the face.
E. Ms. Dunn’s Testimony
On the second day of trial, the State called Kristen Dunn LCSW-C, of the
Frederick County Department of Social Services as an expert witness on the topics of
delayed disclosure and recantation. According to the State’s expert disclosure, Ms. Dunn
would opine, among other things, that “it is not unusual for a child to delay in disclosing
physical abuse, and delay is more common when the abuser is a trusted family or
household member.”
1. Ms. Gonzalez’s Challenge to Ms. Dunn’s Testimony
In a pretrial motion, Ms. Gonzalez had asked the court to preclude Ms. Dunn’s
testimony on the ground that she did not have a reliable methodology or a sufficient
factual basis for her opinions—two essential requirements for expert testimony. See Md.
5
Rule 5-702(3); Rochkind v. Stevenson, 471 Md. 1, 35 (2020). Ms. Gonzalez requested a
Daubert hearing.2
The court entertained the motion before Ms. Dunn took the stand. At that point,
defense counsel argued that Ms. Dunn did “not have the expertise and knowledge to be
called an expert” on those topics. As a separate ground, she argued that there was “no
data” to support Ms. Dunn’s expected opinions. Without data, defense counsel argued,
she could not cross-examine Ms. Dunn.
Defense counsel insisted that Ms. Dunn’s knowledge appeared to derive from
child sexual-abuse cases, which the law treats differently from cases of physical abuse.
In addition, defense counsel observed that the State had produced journal articles that
concerned sexual abuse, not physical abuse. As a further basis to exclude Ms. Dunn,
defense counsel cited Walter v. State, 239 Md. App. 168, 197 (2018), in which this Court
held that a highly experienced social worker nonetheless lacked an adequate factual basis
to opine that victims of child sexual-abuse “commonly delay in reporting the abuse.”3
In response to a question from the court, the State asserted that the factors that
affect recantation occur both in cases of sexual abuse and in cases of physical abuse. In
2
A “Daubert hearing” is a hearing, usually conducted before trial, in which a court evaluates the admissibility of expert testimony, using the factors enumerated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny, and Rochkind v. Stevenson, 471 Md. 1 (2020).
3
In addition, Ms. Gonzalez questioned the relevance of delayed disclosure, arguing that she had not raised the issue as a reason to disbelieve K. She does not pursue that argument on appeal.
6
arguing against the request for a Daubert hearing, the State asserted that such a hearing
was unnecessary because this was not a “complicated case[] with multiple expert
witnesses”4 and because the proposed testimony did not involve “novel scientific
evidence”—instead, the State argued, testimony like Ms. Dunn’s was commonly
admitted in Frederick County and elsewhere. As another reason not to convene a formal
Daubert hearing, the State observed that the defense had “not provided any conflicting
literature or testimony.” The State stressed that the topics of recantation and delayed
disclosure have informed child abuse investigations since the 1980s and that they have
affected the way in which forensic interviewing is conducted. The State concluded by
referring to “journal articles” in the field.
In rebuttal, defense counsel returned to Walter v. State, arguing that experience
alone was not enough and that an expert needed “some sort of data.” Counsel argued:
[I]f someone says, based on my years as a social worker, children who are
abused recant . . . what am I supposed to do with that? How do they record
whether or not their conclusion is true?
After a brief recess during which it reviewed Walter, the court denied the motion
for a Daubert hearing. The court explained that Daubert is not a method to educate the
defense but “a method of challenging the validity of an expert’s opinion and the
methodology that the expert utilizes in coming to [a] conclusion.” The court queried
whether the defense had some burden to raise questions about the reliability of the
4
In Muldrow v. State, 259 Md. App. 588, 618 (2023), this Court quoted United States v. Ware, 69 F.4th 830, 846 (11th Cir. 2023), for the proposition that “‘a Daubert hearing may be helpful in complicated cases involving multiple expert witnesses.’”
7
opinion, using the factors enumerated in Daubert, before a court should convene a
Daubert hearing. The defense, the court said, “has an obligation to present a counter.”
“Based on the argument made” by Ms. Gonzalez, the court concluded that a Daubert
hearing was not “the proper response.”
2. Ms. Dunn’s Testimony
As a witness, Ms. Dunn testified, at some length, about her nearly 20 years of
experience in investigating allegations of child abuse for the Frederick County
Department of Social Services and her extensive training in conducting forensic
interviews, of which she had handled about 2,500. According to Ms. Dunn, the topics of
delayed disclosure and recantation are not new to her field—the research dates to about
1983.
Ms. Dunn discussed her familiarity with that research and how the research affects
how she approaches her work. She explained that she is familiar with the phenomena of
recantation and delayed disclosure because they are much-studied concepts in her field.
She testified that social workers study these phenomena to try to understand what factors
might make a child less forthcoming and how to make children feel more supported and
comfortable in forensic interviews. In other cases, she has been qualified to testify as an
expert witness on several issues, including delayed disclosure and recantation.
The State moved the court to admit Ms. Dunn “as an expert in the area of child
physical abuse, specifically as to the general phenomenon associated with victims of
child physical abuse, delayed disclosure, and recantation.”
8
In voir dire, defense counsel asked Ms. Dunn how many times she had found that
a child was being untruthful. The court sustained an objection but then asked Ms. Dunn,
“I want to be clear about one thing. You don’t make a determination as to truthfulness or
untruthfulness.” Ms. Dunn responded, “Correct.”
Also in voir dire, Ms. Dunn discussed the ethical limitations that make research
into child abuse less than an exact science. “[W]e’re not going to create situations where
we abuse children and then study them to see what . . . they do and how they react,” she
explained.
In response to questions from the court, Ms. Dunn said that her interactions with a
child are the same whether the case involves allegations of sexual abuse or allegations of
physical abuse. “Delayed disclosure,” she explained, “isn’t just for sexual abuse cases.”
She continued: “It may be more pronounced depending on the dynamics and situation,
but the same . . . situations and the same dynamics are present . . . in all those cases.”
When defense counsel quizzed her about four journal articles that the State had
produced, Ms. Dunn agreed that at least three of them concern sexual abuse.
Based on Ms. Dunn’s “training, skills, and qualifications in child physical abuse,”
the court accepted her, over objection, “as an expert in child physical abuse, victim
interviews, delayed disclosure, and recantation.”
As an expert, Ms. Dunn spoke about the phenomenon of recantation, which she
defined as “a denial of abuse after some type of outcry was made.” She explained that if
a child’s caregivers are “non-supportive,” “continued contact with the alleged offender,
disruption of the family unit, [and] disruption of the financial well-being of the family . . .
9
are all things that can increase that risk of recantation.” She testified that “the risk of
recantation” increases when a child has made “an outcry of abuse” but has been “returned
to the home with the abuser[.]”
On cross-examination, defense counsel asked Ms. Dunn what “statistics or
studies” she had “about the percentage of recantation of children under oath in court[.]”
Ms. Dunn responded that she “would have to look specifically” at the studies, but that
more than one in five, or “between 23 and 27 percent of children” recant. She was not
sure whether the statistic was in one of the articles that the State had produced.
In response to another question on cross-examination, Ms. Dunn testified that she
does not “determine whether or not someone’s lying” and does not “assume that the
statement the child is giving is accurate.” In an objection, which the court overruled, the
prosecutor said, “[S]he’s not rendering an opinion in this case on the veracity of this
child’s statements.”
Also on cross-examination, defense counsel asked Ms. Dunn how she can tell
whether something is a recantation as opposed to a denial. She responded that, “by
definition,” a recantation “is a denial[]”—“a denial of abuse after some type of
disclosure.” She agreed that the fact of recantation does not determine which version was
accurate or true.
After Ms. Dunn had completed her testimony, the defense renewed its objection to
the court’s decision to accept Ms. Dunn as an expert. The court overruled the objection.
10
F. Ms. Gonzalez’s Testimony
Ms. Gonzalez testified in her defense. She denied that she had ever hit K. She
implied that K. was angry with her on the last day of school because she had not allowed
K. to wear a certain dress. She said that the reference to a belt, in her recorded interview,
was to a belt that she uses to train her dogs. She denied telling her son that she was
“going to get in trouble for hitting” him or his sister “with a spoon.” Instead, she claimed
to have said that “we were in some sort of trouble because somebody said that I hit you
guys with a spoon.”
G. The Verdict and Subsequent Appeal
The court found Ms. Gonzalez guilty on both counts. On July 11, 2024, the court
sentenced Ms. Gonzalez to 15 years of imprisonment, with all but 364 days suspended,
followed by five years of supervised probation, for second-degree child abuse. The court
merged the sentence for second-degree assault into the sentence for second-degree child
abuse.
On August 9, 2024, Ms. Gonzalez noted a timely appeal.
QUESTIONS PRESENTED
Ms. Gonzalez presents the following questions, which we have edited for clarity:
1. Did the circuit court erroneously admit the testimony of a proposed
expert witness over defense objection?
11
2. Did the circuit court improperly shift the burden of proof to the defense
to show that the proposed expert’s opinion was not admissible?5
STANDARD OF REVIEW
“Appellate courts review a trial court’s decision concerning the admissibility of
expert testimony under Maryland Rule 5-702 for abuse of discretion.” Katz, Abosch,
Windesheim, Gershman & Freedman, P.A. v. Parkway Neuroscience & Spine Inst., LLC,
485 Md. 335, 360-61 (2023). “Under this standard, an appellate court does ‘not reverse
simply because the . . . court would not have made the same ruling.’” State v. Matthews,
479 Md. 278, 305 (2022) (quoting Devincentz v. State, 460 Md. 518, 550 (2018))
(internal quotation marks and citation omitted); accord Katz, Abosch, Windesheim,
Gershman & Freedman, P.A. v. Parkway Neuroscience & Spine Inst., LLC, 485 Md. at
361. “‘Rather, the trial court’s decision must be well removed from any center mark
imagined by the reviewing court and beyond the fringe of what that court deems
minimally acceptable.’” State v. Matthews, 479 Md. at 305; accord Katz, Abosch,
Windesheim, Gershman & Freedman, P.A. v. Parkway Neuroscience & Spine Inst., LLC,
485 Md. at 361. A court, however, may be said to have abused its discretion if the
5
Ms. Gonzalez’s questions presented, as worded in her brief, are:
1. Whether the trial court erroneously admitted the testimony of a
proposed expert witness on the topic of recantation, over defense
objection, even though the State failed to establish the factual basis for
her opinion.
2. Whether the trial court, acting as both the arbiter of the trial procedure
and the trier of facts in this bench trial, improperly shifted the burden of
proof to the defense to show that the proposed expert’s opinion was not
admissible.
12
appellate court comes “to a different conclusion concerning the outer bounds of what is
acceptable expert evidence in” the area. Abruquah v. State, 483 Md. 637, 652 n.5 (2023).
DISCUSSION
Before a court may admit expert testimony, it must make several determinations,
including a determination of “whether a sufficient factual basis exists to support the
expert testimony.” Md. Rule 5-702. In determining the sufficiency of the factual basis
for the testimony, a court must consider two subfactors. See, e.g., Katz, Abosch,
Windesheim, Gershman & Freedman, P.A. v. Parkway Neuroscience & Spine Inst., LLC,
485 Md. at 363. “First, the expert must have available an adequate supply of data.
Second, the expert must use a reliable methodology in analyzing that data.” Id.
Ms. Gonzalez challenges the sufficiency of the factual basis for Ms. Dunn’s
opinions. She argues that Ms. Dunn “might or might not have been qualified to testify on
some subjects, but the State failed to establish the factual basis for her testimony about
recantation[.]” She observes that Ms. Dunn “could cite no studies, and testified only
from her anecdotal experience.” She adds that the journal articles produced by the State
“could not have formed the basis of an expert opinion,” because the State gave them to
Ms. Dunn only to “assist her” and because Ms. Dunn “said that she would have to look
back at [them] to even be able to answer questions about them.” Ms. Gonzalez stresses
that “Ms. Dunn did not identify any of the statistics, studies, journal articles, or research
that underlay her opinion” and that she “conceded that she does not and had not
conducted any research on delayed disclosure or recantation.”
13
Ms. Gonzalez’s arguments do not establish that the circuit court erred or abused its
discretion in implicitly finding that Ms. Dunn had a sufficient factual basis for her
opinions.
In cases involving the sufficiency of factual basis for an expert’s testimony, courts
“draw a distinction between expert testimony that is ‘primarily experiential in nature as
opposed to scientific.’” Ingersoll v. State, 262 Md. App. 60, 78, (2024) (quoting United
States v. Wilson, 484 F.3d 267, 274 (4th Cir. 2007)). “Scientific testimony is
‘characterized by “its falsifiability, or refutability, or testability.”’” Id. (quoting United
States v. Wilson, 484 F.3d at 274, which quoted Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. at 593). “‘Experiential expert testimony, on the other
hand, does not “rely on anything like a scientific method.”’” Id. (quoting United States v.
Wilson, 484 F.3d at 274, which quoted Fed. R. Evid. 702 advisory note). “This does not
diminish its reliability, however.” Id.
Thus, for example, in Ingersoll v. State, 262 Md. App. at 78, this Court held that
the circuit court did not abuse its discretion in permitting a correctional officer to testify
as an expert about “gang activity,” and specifically about the “history” of the gang to
which the defendant allegedly belonged, the gang’s “violent customs,” its “initiation
practices,” its “culture of retaliation,” and related topics. The principal point of the
officer’s testimony was to establish that, because the defendant had publicly threatened to
kill the victim while the defendant was incarcerated, the gang’s customs required him to
follow through with the threat.
14
In upholding the circuit court’s decision to admit that testimony, this Court held
that the officer’s “extensive experience and training in prison gangs over many years,
coupled with his knowledge of the history, hierarchy, and practices of [the gang to which
the defendant allegedly belonged] served as a reliable basis for him to testify as an expert
on those subjects.” Id. at 78. “His opinions elucidating the hierarchy of [the gang], how
members rise through that hierarchy, the way inmates are validated as gang members
within the Division of Corrections, and the consequences faced by [gang] members if
they fail to carry out orders, were drawn from that training and experience and are not
unlike testimony held admissible in federal cases applying Daubert.” Id. at 79 (citing
United States v. Holguin, 51 F.4th 841, 856 (9th Cir. 2022); United States v. Smith, 919
F.3d 825, 835 (4th Cir. 2019); and United States v. Kamahele, 748 F.3d 984, 998 (10th
Cir. 2014)). His training and experience alone gave the expert a sufficient factual basis to
render his opinions.
Like the correctional officer’s testimony in Ingersoll, Ms. Dunn’s testimony was
experiential rather than scientific. The main factual basis for her testimony was her
decades of training and experience, during which she had conducted thousands of
forensic interviews of children who were alleged to be victims of child abuse. Because
she based her expert testimony mainly on that training and experience and not on
academic publications or scientific research, it makes no difference that Ms. Dunn could
not cite the statistics, studies, journal articles, or research that underlay her opinion or that
she had conducted no research on delayed disclosure or recantation. Her testimony was
no less reliable than that of experts who based their opinions on statistics, studies, journal
15
articles, or research or conducted research on their own. Ingersoll v. State, 262 Md. App.
at 78.
It follows that the circuit court did not abuse its discretion in concluding that Ms.
Dunn had a sufficient factual basis for her opinions even though she based her opinions
on her years of training and experience, and not on academic research. Ms. Dunn’s
testimony was drawn from a sufficient well of experiential data.
Ms. Gonzalez, however, also contends that even if Ms. Dunn could base her
opinions on her training and experience, the testimony runs afoul of this Court’s decision
in Walter v. State, 239 Md. App. 168 (2018), because, she says, Ms. Dunn “failed to
demonstrate any reliable methodology.”
Walter was a child sexual-abuse case in which the alleged victim delayed in
reporting the abuse. A social worker, testifying as an expert for the State, opined that “‘it
is very common for children who have been sexually abused to delay reporting that
abuse, especially when that abuse . . . was caused by a family member or someone who’s
in a trusted position, known to the family.’” Id. at 181 (emphasis added).
In holding that the circuit court abused its discretion in admitting the social
worker’s testimony, this Court stated that she “undoubtedly had an adequate supply of
data from her personal experiences, but the reliability of her methodology is another
question.” Id. at 197. We explained:
From the record before us, it is unclear how [the expert] concluded that
victims of child sexual abuse often, frequently, or commonly delay in
reporting the abuse. In particular, it is unclear how she determined that a
delayed report originated with a bona fide victim as opposed to someone
who had fabricated a report or had a false memory of abuse, which, she
16
recognized, sometimes occurs. [The expert] kept no statistics and could
point to no peer-reviewed studies to support her conclusion, so she appears
to have based her opinion on only an extrapolation from her own
experiences. In evaluating those experiences, did she do anything to
distinguish true or reliable claims from false or unreliable claims? For
example, did she assume that a person was a victim of sexual abuse only if
an abuser has been convicted of sexual abuse, or if the abuser has admitted
to sexual abuse, or if there is some corroborating evidence of sexual abuse?
Did she rely on her own, subjective evaluation of the validity of the claim
of abuse? Or did she draw the conclusion from a conflation of all of the
claims that she had heard, without distinguishing the true from the false or
the reliable from the disproven? We simply do not know.
Id. (emphasis added).
This passage illustrates the problem with the testimony in Walter: the expert did
not merely say that, regardless of whether the delayed report is true or untrue, delayed
reporting is a common feature of child-abuse allegations. Instead, the expert said that
“children who have been sexually abused” commonly delay in reporting the abuse,
thereby implying that delayed reporting is an attribute of truthful claims (i.e., an attribute
of the claims of children who “have been” abused). The expert recognized that some
delayed reports are false or fabricated, but she had no methodology to distinguish
between truthful reports and false or fabricated reports. Consequently, the expert had no
reliable means of ascertaining how “common” it was for a bona fide victim to delay in
reporting the abuse and no reliable means of ascertaining whether delayed reporting is
more “common” in the case of bona fide claims than it is for false or fabricated claims.
In those circumstances, this Court held that the circuit court abused its discretion in
admitting the testimony, but permitted the State to attempt to fix the problem on remand.
Walter v. State, 239 Md. App. at 197.
17
This case does not involve the problem that this Court identified in Walter. Ms.
Dunn did not testify that children who “have been” abused “commonly” recant their
allegations. She discussed the phenomenon of recantation and cited factors that increase
the rate of recantation, but she specifically stated that she does not determine whether a
child’s allegations are truthful or untruthful, that she does not “determine whether or not
someone’s lying,” that she does not “assume that the statement the child is giving is
accurate,” and that the fact of recantation does not determine whether the original account
or the subsequent account is true. Similarly, the State represented that Ms. Dunn was
“not rendering an opinion in this case on the veracity of this child’s statements.”
Distilled to its essence, Ms. Dunn’s testimony was that recantation sometimes
occurs in child-abuse cases, regardless of whether the allegations of abuse are true or
untrue, and that certain factors (such as returning the child to the control of the alleged
abuser) may increase the rate of recantation, regardless, again, of whether the allegations
of abuse are true or untrue. The circuit court did not abuse its discretion in admitting this
testimony, which is quite different from the challenged testimony in Walter.
Finally, Ms. Gonzalez argues that the circuit court “improperly shifted the burden
to the defense to disprove the admissibility of the proposed expert witness’s testimony.”
She cites the prosecutor’s statement, made in the debate over whether to conduct a
Daubert hearing, that “the Defense has not provided any conflicting literature or
testimony, anything to contradict or refute” the testimony that Ms. Dunn would offer.
She also cites the court’s comments, also made during the debate over whether to conduct
a Daubert hearing, about whether the defense had an obligation to draw into question the
18
admissibility of the expert’s opinion. Citing Muldrow v. State, 259 Md. App. 588, 620
(2023), she argues that the proponent of an expert opinion bears the responsibility of
demonstrating its admissibility by a preponderance of the evidence. She concludes that
the court “shifted the burden to the defense to disprove that the witness could testify as an
expert.” (Emphasis in original.)
Ms. Gonzalez has misconstrued the comments in question. At the point in the
proceedings when those comments were made, neither the prosecutor nor the court was
discussing the ultimate question of whether the court should accept Ms. Dunn as an
expert witness. Instead, they were discussing the preliminary question of whether the
court should put the trial on hold and conduct a Daubert hearing at which defense
counsel could query Ms. Dunn about her opinions (and, in effect, obtain her deposition).
“[A] Daubert hearing is not always required[.]” Muldrow v. State, 259 Md. App.
at 618. “[A] Daubert hearing,” however, “may be helpful in complicated cases involving
multiple expert witnesses.” Id. And a circuit court certainly “should conduct a Daubert
inquiry when the opposing party’s motion for a hearing is supported by conflicting
medical literature and expert testimony.” Id.
In this case, the court’s comments evidence its familiarity with Muldrow, which
had been decided shortly before the trial began. Recognizing that “[a] Daubert hearing is
not always required,” the court was simply discussing what the proponent of the Daubert
hearing—in this case, Ms. Gonzalez—must show before the court should conduct one.
The court did not shift the burden to the defense to disprove that Ms. Dunn could testify
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as an expert. Instead, the court recognized that the defense had some burden to justify a
Daubert hearing, and it concluded that the defense had not met its burden.
In this regard, we note that, after the court commented upon the defendant’s
burden, defense counsel asked: “Is the court accepting Ms. Dunn as an expert[?]” The
court replied: “I’m not there because . . . she’s not . . . even been qualified yet.” A
moment later, the court added: “[S]he’s not even been offered as an expert yet. . . . . And
I don’t know what the parameters are that the State’s going to request on her recognition
of as such.” On this record, it could not be clearer that the court merely decided that the
defense had not met its burden to establish the need for or desirability of a Daubert
hearing; the court did not shift the burden to the defense to disprove the admissibility of
Ms. Dunn’s testimony.
JUDGMENTS OF THE CIRCUIT COURT
FOR FREDERICK COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
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