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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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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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