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'Vouching testimony' not allowed in child sex abuse cases

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The state’s rules of evidence don’t allow for “vouching testimony” in child sex abuse cases to help determine when a youth isn’t exaggerating, and the Indiana Supreme Court won’t carve out an exception allowing for that testimony in these types of cases.

In Keith Hoglund v. State of Indiana, No. 90S02-1105-CR-294, the justices affirmed a judgment from Wells County that found sufficient evidence to support two Class A felony child molesting convictions and a 50-year sentence for Keith Hoglund.

Hoglund allegedly had sexually abused and showed pornographic material to one of his daughters, who was 4 years old at the time. At trial, the state called as expert witnesses a pediatrician, clinical psychologist, and mental health counselor who evaluated the girl. They each testified that the girl was “not prone to exaggerate or fantasize” about sexual matters.  The jury convicted Hoglund on two counts of child molesting, but because of double jeopardy concerns, sentenced him to 50 years on only one count.

Hoglund challenged on appeal the admission of the vouching testimony. Last year, a divided Indiana Court of Appeals affirmed the convictions and sentence.

The Indiana justices addressed an issue that hasn’t been ruled on before – the interaction between the state’s rules of evidence and a 1984 decision in Lawrence v. State, 464 N.E. 2d 923, 925 (Ind. 1984), that allowed for corroboration of a child’s testimony in court.

The justices pointed out that Indiana is in the minority of allowing some form of vouching for child witness testimony in these types of cases. This decision gave the Indiana Supreme Court the chance to revisit Lawrence to determine whether testimony that a child witness isn’t “prone to exaggerate or fantasize about sexual matters” is consistent with Rule 704(b) prohibiting witnesses from testifying about another witnesses “truthfulness,” and whether that precedent should be interpreted as an exception to the rule of evidence.

Justice Robert Rucker wrote that in a few cases, the Court of Appeals has interpreted Lawrence as representing an exception to Rule 704(b) about permissible witness testimony, but the justices decided that a shift in public attitudes concerning allegations of child sex abuse undermines the necessity to carve out an exception.

Even though the trial court allowed the evidence improperly, the justices ruled that the admission of vouching testimony was harmless and other evidence supports the convictions and sentence.

“To summarize, we expressly overrule that portion of Lawrence allowing for ‘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,’” Rucker wrote. “This indirect vouching testimony is little different than testimony that the child witness is telling the truth. As such it is at odds with Evidence Rule 704(b). Further, we decline to carve out an exception to the rule for sex abuse cases.”

In a footnote, Rucker wrote that this new rule doesn’t undercut the court’s decision in Carter v. State, 754 N.E.2d 877 (Ind. 2001), which involved testimony from an autistic child and a psychologist who was allowed as an expert to “supplement the jurors’ insight.”

 

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. 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.

  4. 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?

  5. 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

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