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COA discusses vouching testimony in child molesting trials

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The Indiana Court of Appeals addressed vouching testimony by witnesses called during child molesting trials in two opinions Tuesday. In one case, an appellate judge was troubled by the possible effect of the cumulative vouching testimony on the jury.

The issue of vouching by witnesses came up in Keith Hoglund v. State of Indiana, No. 90A02-1005-CR-591, and State of Indiana v. Andy J. Velasquez II, No. 53A05-1003-CR-194. In Hoglund, Keith Hoglund appealed his sentence of and conviction for Class A felony child molesting involving his young daughter, A.H. He claimed the trial court abused its discretion in admitting evidence from pediatrician Dr. Carol Butler, mental health counselor Christine Shestak, and clinic psychologist Dr. Amanda Mayle regarding the likelihood that A.H. fabricated her story of child abuse.

In Velasquez, the state appealed following the acquittal of Andy Velasquez for Class A felony and Class C felony child molesting of his stepdaughter. The state argued, among other issues, that the trial court abused its discretion by concluding the testimony of clinical social worker Judy Kline, psychologist Dr. Jennifer Spencer, and victim G.S.’s grandmother constituted vouching testimony.  

In Keith Hoglund v. State of Indiana,  90A02-1005-CR-591, the appellate court relied on Lawrence v. State, 464 N.E.2d 923, 925 (Ind. 1984), in which the Indiana Supreme Court allowed testimony which permits “some accrediting of the child witness in the form of opinions from parents, teachers, and others having adequate experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters.” The witnesses are limited to “indirect” vouching.

Hoglund didn’t dispute that the evidence at issue is indirect vouching by an expert under Lawrence, but he argued that case is no longer good law because of Steward v. State, 652 N.E.2d 490, 498-99 (Ind. 1995). Steward addressed the question of admissibility of evidence of Child Sexual Abuse Accommodation Syndrome, which deals with behaviors typical of child molesting victims. But question of whether that case, which held that CSAAS evidence couldn’t be used to show that child abuse occurred, would apply to behavioral evidence without the use of the term CSAAS hasn’t been addressed yet by any appellate court. The judges affirmed the trial court didn’t abuse its discretion in admitting the testimony that indirectly vouched for A.H.’s credibility.  

In State of Indiana v. Andy J. Velasquez II, No. 53A05-1003-CR-194, the judges also noted that Steward hadn’t been applied in other cases, and instead followed Stout v. State, 612 N.E.2d 1076, 1080 (Ind. Ct. App. 1993), in which the Court of Appeals found expert testimony that an individual’s subsequent behavior is consistent or inconsistent with that observed from other victims is a type of evidence which is admissible.

The Court of Appeals found that the trial court erred in excluding the evidence of Kline, Spencer, and the grandmother because it improperly excluded it on the grounds that it constituted vouching. The state didn’t attempt to elicit testimony regarding whether G.S.’s allegations were true, but on her behavior or demeanor when discussing Velasquez. But even though the appellate court found the trial court erred in excluding this testimony, double jeopardy principles bar a second trial since Velasquez was acquitted, wrote Judge Carr Darden.

Judge Darden concurred in result in Hoglund, writing he couldn’t disagree with the legal reasoning of the majority, but noted he was concerned by the possible effect of the cumulative vouching testimony. It wasn’t until Velasquez’s attorney objected several times to the testimony of Dr. Butler did the trial court instruct the jury that her comment regarding her opinion on whether A.H. was truthful or not was stricken from the record. He also was concerned that statements by Shestak effectively expressed her belief in A.H.’s account of the allegations.

“Although, as stated, I find the cumulative vouching testimony heard by the jury to be troubling, there is ‘no entitlement to a perfect trial,’” he wrote. He found that the vouching testimony wasn’t so prejudicial that it required reversal.
 

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  3. Don't we have bigger issues to concern ourselves with?

  4. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  5. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

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