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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. 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?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  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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