High Court Eases Testimony Rules : Child molestation: State justices allow prosecution’s expert witness to say that parents’ hesitation to report incidents of abuse is not unusual.

SAN FRANCISCO —  The state Supreme Court on Thursday eased the way for convictions in child molestation cases, ruling that prosecutors may present testimony that parents often hesitate to report such crimes out of fear, shame or embarrassment.

The court ruled unanimously that the prosecution, to answer attacks on the credibility of a victim’s parent, may call an expert witness to tell jurors that delay in reporting incidents is not unusual. Such an expert also may testify that contrary to stereotypes of “old men in shabby clothes,” there is no such thing as a “typical” child molester, the court said.

At the same time, the justices said that a defendant may call witnesses to testify to his normal, nondeviant behavior towards children, as well as his reputation for normal sexual behavior. But by a vote of 5 to 2, the court said a trial court’s failure to allow such testimony was a “harmless error,” and that the defendant in the case was not entitled to a retrial.

The court upheld the conviction of Bruce McAlpin, a former San Jose computer analyst found guilty and sentenced to three years for nonviolent lewd conduct with the 9-year-old daughter of a woman he began dating after meeting her at a church dance.

According to testimony, the girl told her mother about the incident immediately after it occurred in June, 1985. The mother confronted McAlpin, who denied wrongdoing, and a week later had sexual relations with him. It was not until a year later that the girl told school officials, who alerted police.

The mother never reported the incident, but later testified in support of her daughter’s charges. “It’s in my personality . . . to sit on the fence until you have enough information to actually point your finger and accuse somebody of something that is that extreme and emotional and traumatic,” she said.

Thursday’s ruling was denounced by James F. Campbell of San Francisco, an attorney for McAlpin. “This makes it extremely easy for the prosecution to convict anyone when you have these kinds of allegations,” he said. “Unless there is legislation passed, there are going to be massive amounts of innocent people sitting in jails just because the finger of suspicion has been pointed against them.”

State Deputy Atty. Gen. Catherine Rivlin said the ruling would bolster prosecutions where parents have refrained from reporting a molestation. “The court points out that there is a natural human assumption that a mother is going to report bad things that happen to her child,” Rivlin said. “This ruling will help disabuse juries of that assumption.”

At McAlpin’s trial, the prosecution called as a witness Jeffrey Miller, a Los Gatos police officer specializing in molestation cases, to answer defense suggestions that the mother’s failure to report the incident indicated that she doubted the crime had occurred.

Over defense objections that such testimony was unscientific and unreliable, Miller testified that parents may feel a sense of shame or failure or are psychologically unable to accept the fact the crime occurred until confronted by a law enforcement agency. Parents also may be reluctant to damage the reputation of an otherwise reputable citizen, he said.

A state appeals court ruled that such testimony was of little value and should not have been admitted.

But the high court, in an opinion by Justice Stanley Mosk, disagreed. The officer’s testimony could help jurors weigh the credibility of the mother’s testimony, the high court said.

In dissent, Justice Allen E. Broussard, joined by Justice Edward A. Panelli, said McAlpin was entitled to a new trial.