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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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