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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. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

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  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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