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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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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