Thursday, March 1, 2012

1. American Precedent Holds PAS Inadmissible


Jennifer Hoult
Vol. 26 ♦ No. 1 ♦ Spring 2006
Children’s Legal Rights Journal
Evidentiary Admissibility of Parental Alienation Syndrome
http://209.198.129.131/images/EvidentiaryAmissibilityofPAW_Hoult_CLRJ_2006.pdf   


Page 3 right side 
Excerpts "
1. American Precedent Holds PAS
Inadmissible
Because unreliable scientific claims pose a unique
risk of undue influence and prejudice in the
courtroom, the evidentiary admissibility of novel
scientific material is governed by gate-keeping
rules
51
 that are intended to ensure that such
testimony meets adequate standards of reliability.
52
 As a novel scientific theory, PAS’s
admissibility is governed by these gate-keeping
rules. Gardner published the claim that fifty
American decisions set precedent holding PAS
admissible under the relevant evidentiary rules.
53
A closer examination reveals this claim to be
unfounded; current U.S. precedent holds PAS
inadmissible.
 By July 19, 2005, sixty-four precedent
bearing cases referenced PAS.
54
 Only two of these
decisions, both originating in criminal courts in 4  Jennifer Hoult
Children’s Legal Rights Journal
New York State, set precedent on the issue of
PAS’s evidentiary admissibility; both held PAS
inadmissible.
55
 
 In 1997,  People v. Loomis
56
 concerned a father
charged with sexually abusing his children. The
defense sought to compel the witnesses to submit
to psychiatric examinations by Gardner to determine if the sexual abuse allegations were “fabrications” motivated by PAS.
57
 The court denied this
motion, noting that children’s susceptibility to
undue influence by a parent was common knowledge, and that PAS testimony was inadmissible
because it purported to determine an ultimate
issue of fact, impermissibly invading the province
of the trier of fact.
58
 
 In 2001,  People v. Fortin involved a man
charged with sexually assaulting his wife’s 13-yearold niece.
59
 The defense sought to admit PAS
testimony to support the claim that the child had
lied and fabricated the abuse allegations.
60
 At a
hearing requested by the People to determine the
admissibility of PAS, Gardner was the only
witness for the defense. Applying  Frye v. United
States,
61
the trial court held PAS inadmissible,
finding it lacked general acceptance within the
relevant professional community.
62
 The appellate
court upheld this ruling
63
 and confirmed  that the
trial judge had been correct in considering
Gardner’s “significant financial interest in having
his theory accepted.”
64
 Despite extant legal precedent, Gardner
claimed that PAS was admissible, publishing a list
of fifty U.S. decisions under the heading,
“Recognition of PAS in Courts of Law.”
65
 Other
materials on this web site indicate that Gardner
intended this list to represent decisions that set
precedent holding PAS admissible under the
evidentiary tests defined in  Frye  and  Daubert v.
Merrell Dow Pharmaceuticals.
66
 However, none of
these fifty decisions set precedent holding PAS
admissible. Forty-six of the fifty cited decisions
either set no precedent, or set precedent on issues
other than PAS’s admissibility. Nearly half of the
decisions, twenty-three, were unpublished
67
 and
set no precedent.
68
 The remaining twenty-seven
decisions fall into several categories: thirteen
contained factual histories that did not satisfy
Gardner’s definition of PAS because they involved
sexual or physical abuse, domestic violence,
bilateral alienation by both parents, or a lack of
evidence of either parental alienation or the
child’s involvement;
69
 eight decisions mentioned
PAS only in reference;
70
 one decision assessed
whether the expert testified within the guidelines
of his profession but did not contest the admissibility of PAS;
71
 and one decision did not mention
PAS at all.
72
 
 The four remaining decisions discussed the
admissibility of PAS,
73
 but none set precedent on
this issue. While the lower court in In re Marriage
of Bates ruled that PAS had “gained general
acceptance in the field of psychology” and was
therefore admissible under the Frye test, that issue
was not appealed and thus the appellate decision
set no precedent on the issue of PAS’s admissibility.
74
 In fact, the appellate court specifically
“[threw] out the words ‘parental alienation
syndrome’” and focused on the “willingness and
ability of each parent to facilitate and encourage a
close and continuing relationship between the parents and the child.”
75
 In Perlow v. Berg-Perlow, the
appellant-father claimed that PAS did not meet
the evidentiary standards required by  Frye and
that the admission of expert testimony on PAS
was an error.
76
 The appellate court held the issue
waived for appellate review because the father had
failed to raise it at trial.
77
 The father in  In re
Marriage of Rosenfeld contested the admissibility of
PAS as an unreliable theory, but the appellate
court specifically chose not to address “the issue
of whether [PAS] is a reliable theory.”
78
 The
appellate court in  Karen “PP” v. Clyde “QQ”
sidestepped a decision on PAS’s admissibility by
holding that the family court’s sua sponte reference
to  “a  book  on  parental  alienation  syndrome  that
was neither entered into evidence nor referred to
by any witness” was not grounds for reversal,
“especially in light of all the testimony elicited at
the hearing.”
79
 
 Among his citations, Gardner highlighted
Kilgore v. Boyd, claiming that Kilgore held that PAS
“satisfied [the] Frye Test criteria for admissibility
in a court of law” because it found PAS had
“gained enough acceptance in the scientific
community to be admissible in a court of law.”
80
Gardner claimed that Kilgore “will clearly serve as
a precedent and facilitate the admission of the
PAS in other cases—not only in Florida, but
elsewhere.”
 81
 In fact, Kilgore set no precedent. The
cited Kilgore decisions were neither published nor Evidentiary Admissibility of Parental Alienation Syndrome  5
Vol. 26 ♦ No. 1 ♦ Spring 2006
issued in written form, and the holdings were
limited to affirmations and denials of the litigants’
motions.
82
 
 Contrary to Gardner’s claim, none of the fifty
cited decisions set precedent holding PAS admissible.

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