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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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues