One of the problems in defending a child molestation case is that the indictment will specify twenty or thirty counts, all allegedly occurring between dates that can be months or even years apart.  The child will testify that the crimes happened on many occasions, but will have no idea as to specific dates and times.

The difficulties this presents are highlighted in the 8th District’s recent decision in State v. Yaacov.  The case presented the same sad facts too many of those cases do:  persistent sexual abuse of a girl by her father over several years.  The problem confronted by the defense was an indictment for 42 counts of rape, 40 counts of gross sexual imposition, and 42 counts of sexual battery, with a date of offense of “April 21, 2001 to January 31, 2004.”  The problem confronted by appellate counsel was assigning the lack of specificity as error, when trial counsel had failed to object to it or to demand a more specific bill or particulars.

But the appellate court had some problems, too, in affirming the conviction of 122 of the 124 counts.  (The trial court had dismissed two of them.)  The first obstacle was the US 6th Circuit’s opinion in a habeas case last year, Valentine v. Konteh, which is definitely a must-read for attorneys handling these types of cases.  In Valentine, the child victim described a typical incident of the sexual abuse she’d undergone, and testified that it happened “fifteen or twenty times,” resulting in defendant’s conviction of twenty counts each of rape and felonious sexual penetration.  The 6th Circuit tossed out all but one conviction of each, holding that such a procedure raised due process concerns about a defendant’s double jeopardy rights.  One of the requirements for an indictment, as the Supreme Court noted back in 1962, is to make sure everybody knows exactly what the defendant was convicted of, so that he can claim double jeopardy if he’s charged with more such offenses over the same time period.  If it’s not clear exactly what offenses he was convicted of committing, the Valentine court held, he can’t do that.

That wasn’t a problem, the 8th District decided:

In the instant case, Y.C. was able to recall when, where, and how the abuse occurred. Although she was not able to give specific dates, partly because her diary was missing, she was able to put each incident in a time frame by detailing where it happened, which house they were living in, where she was working when certain incidents occurred, and who employed Yaacov at the various times she was molested.

The second problem was that while the courts grant a great deal of latitude in such cases, as this 8th District case from last year shows, there are limits, as indicated by this 6th District case from 2001:  essentially, where

the failure to allege a specific date results in material detriment to the accused’s ability to fairly defend himself, as where the accused asserts an alibi or claims that he was indisputably elsewhere during part, but not all, of the interval specified.

That didn’t turn out to be too much of a hurdle, either, at least according to the court:

We also find that the failure to allege specific dates did not prejudice Yaacov’s ability to defend himself because his defense strategy centered on his claim that he never engaged in sexual conduct with his daughter, regardless of the date or place she alleged the abuse took place.

That contention is hard to square Yaacov’s second assignment of error:

Yaacov claims that his counsel was ineffective for failing to file a motion for a more specific bill of particulars or a motion to dismiss because the indictment was not specific. He also claims that his counsel failed to file a notice of alibi and present witnesses who would have shown that he was working as a trucker and was home only sporadically during the three years the abuse occurred.

Obviously, there’s some inconsistency in arguing that Yaacov wasn’t entitled to more specific information because he wasn’t relying on alibi as a defense, then claiming that his lawyer wasn’t ineffective in not asking for the information that would have allowed him to present an alibi defense.  Still, it’s hard to quibble with the result, if only because in this case the prosecution did provide detailed evidence as to the specific incidents.

A guy goes to work as a driver for a trucking company.  He’s given an employee handbook — and signs an acknowledgement that he received it — which provides, among other things, that if he quits with less than two weeks notice he gets paid only minimum wage for the last two weeks he works.  He quits on one day notice, the company pays him the minimum for the last two weeks — some $800 less than he would have gotten – and he sues.

Oh, one more thing.  The very first paragraph in the acknowledgement he signed says, “It is understood that nothing in this Handbook, nor any other Company communication or practice, creates an employment contract of any type.”

Should be a no-brainer, right?  Well, not to the 3rd District, which held the other week in Kirby v. Elmco Trucking Co. that the provision was enforceable, vacated the judgment of the lower court, and instructed it to calculate the amount of wages Kirby was entitled to receive under the minimum-wage provision.

Sure, Kirby didn’t file a brief on appeal, but you shouldn’t have to be Louis Brandeis to figure out that a document which explicitly states it’s not a contract isn’t… well, a contract.  Especially since this same court, on at least three occasions in the last six years, has been confronted with a case in which an employee has sued for wrongful discharge based on violation of the terms of an employee handbook, and on each occasion the court has held that the handbook didn’t create any contractually enforceable rights. 

In other words, when the company wants to let somebody go, the handbook provides no protection to the employee, but when the company wants to job some working stiff out of eight hundred bucks, suddenly it’s an enforceable contract. 

There’s a theory of law called Critical Legal Studies, which basically holds that the law is made by people in power for the primary goal of allowing them to maintain their power.  I never bought into that; it always sounded too much like the stuff you’d read in the broadsheets that the scruffy-looking kids from the Spartacus League would hand out down on Coventry in the 1970’s.

But then you read decisions like Kirby, and you see the laws that are passed after the lobbyists in the two-thousand-dollar suits get done working their charms in the halls of Congress or the state legislature in Columbus, and there are moments when you think maybe, just maybe, those scruffy-looking kids down on Coventry were on to something.

Several months back, I wrote about the case of Kirchner v. Shooters, where the plaintiff’s decedent had gotten drunk at a bar in the flats, decided to relieve himself at the end of a pier, and instead fell into the river and drowned.  The court here held that it was an open and obvious hazard, affirmed the grant of summary judgment, then certified it to the Supreme Court.  The other day, the Supreme Court dismissed the appeal.  Why?  Because the appellant had stopped payment on the $40 check for the filing fee. 

Me, I think I would have just filed a notice of dismissal and let them keep the forty bucks.

Anyway, on to the courts…

10th District reverses Court of Claims, holds that University of Cincinnati wasn’t negligent in student rape case because rape wasn’t foreseeable… also applies workers comp “coming and going” rule to find that employee wasn’t in course and scope of employment at time of auto accident, and company (and its insurer) thus not liable to plaintiff… 6th District upholds summary judgment in slip and fall on oil slick in parking lot of gas station, finds hazard “open and obvious“…

Defendant’s confession was admissible, says 3rd District, because although evidence showed he he refused to sign Miranda waiver, he said that he wanted to talk to officer… 9th District upholds conviction for child endangering based upon woman’s allowing her daughter to be abused by woman’s boyfriend; court noted that boyfriend “had developed the nickname ‘Chester the Molester’ among the residents of the trailer park” where the couple lived.  Trailer park, huh?  Who woulda thought… Failure to call witnesses not ineffective assistance of counsel, rules 12th District, where record doesn’t show they would have been any good…  1st District tosses speeding conviction because state never identified laser device which tracked defendant, thus trial court could not take judicial notice of its reliability…

One of the interesting things about doing this blog is I’m always learning things I didn’t know.  How many times have you had a trial where the jury comes back with the question, “Can we hear the testimony of so-and-so?”  Everybody chuckles, the judge shakes his head, sends back a note saying “use your best recollection,” and that’s that.  Turns out that the judge has full discretion to have the testimony of any witness reread to the jury during deliberations.  At least that’s what the 5th District says, and they seem to have the case law to back it up.

Well, the 25th anniversary went fine.  And yes, I was kidding about the multiple marriages.  On the other hand, things probably would have gone better had I not leaned across the table at dinner and told My Lovely Bride, “You know, if I’d killed you back then, I’d be out of prison by now.” 

Ah, the language of love.

I had my own Moment of Duh the other day.  I was going to take the 8th District to task on one of its decisions last week, Meeks v. Kramer.  It was a hotly contested personal injury case involving whether the accident really was the cause of the plaintiff’s injuries.  The defendant had hired a doctor to perform an “independent” medical examination, but didn’t call the doctor as a witness at trial.  The plaintiff, oddly enough, did subpoena in the doctor, but didn’t call him either.  And then…

During closing argument, Meeks informed the jury that although Dr. Ghanma [the defendant’s doctor] was subpoenaed to testify, it could make inferences as to why he was not called as a witness at trial. Meeks’ attorney told the jurors that he spoke with Dr. Ghanma in the hallway and questioned him. The attorney was about to inform the jurors as to what Dr. Ghanma told him, but Kramer objected, and the trial court sustained the objection. In lieu of telling the jury what Dr. Ghanma said to him, Meeks’ attorney stated that the jurors would not have “wanted to hear” Dr. Ghanma’s testimony because it “wasn’t honest.” At that point, Kramer stated that such argument was “absolutely improper” and the trial court held a sidebar. Following the sidebar, Meeks’ attorney was instructed to stop referring to Dr. Ghanma and to move on in his closing argument.

The appellate court agreed that this was improper, but affirmed the verdict, holding that the defendant waived the error by not asking for a curative instruction.

When I first read the decision, I thought that was a harsh result, given the flagrancy of the misconduct by plaintiff’s counsel.  The failure to ask for a curative instruction was somewhat understandable; counsel often don’t ask for a curative instruction in these cases, because it may only serve to highlight the inflammatory remarks.  Plus, let’s face it, the idea that curative instructions do any good is one of the great Easter Bunny fantasies of the law; as a judge once remarked, you can’t throw a skunk into the jury box and then instruct the jurors not to smell it.  Indeed, the courts have regularly ruled that a lawyer’s failure to ask for a curative instruction is a trial tactic not subject to attack on ineffective assistance grounds.

But then I went back and read the decision, and it highlights one of the real problems of appellate attorneys:  failure to protect the record in the trial court.  Here’s the problem:

Kramer now appeals, arguing that Meeks’ reference to Dr. Ghanma during closing argument was grossly prejudicial and that the trial court abused its discretion in failing to correct the prejudicial effect of the reference.(My emphasis.) 

It’s kind of hard to argue that the trial court erred in not doing something when you didn’t ask them to do it.

Does this mean you should always ask for a curative instruction, say, in cases of prosecutorial misconduct in closing argument?  Meeks cites a couple of cases for the proposition that you have to, one of which is a Supreme Court case involving the failure to request an instruction to cure improper questioning in cross.  You may be able to get away with just requesting a mistrial instead, although to be on the safe side the request for an instruction is the way to go.

Of course, all this sort of glosses over the question I raised earlier:  given the inefficiency of curative instructions, is there a purpose to requiring the offended party to request them?

Which brings up another point:  while there’s a fair amount of empirical research on how juries come to decisions, how they regard concepts like punitive damages, the effectiveness of expert testimony, and other big topics, there’s virtually no research on the little things that come up in every trial.  Wouldn’t it be nice to know whether jurors tended to believe you were trying to hide something when you made an objection?  How jurors responded to different styles of cross-examination?  Whether curative instructions made any difference?

I’ve been practicing law for 31 years now.  I know how party affiliation is affected by how your parents voted, how economic mobility in America compares to that in Sweden, how health outcomes are affected by income status, and I know how to find the answers to just about any other social, economic, or psychosocial issue.  But I don’t know the answers to those three questions I posed in the last paragraph, and I’m not sure anybody else does, either.

It’s my twenty-fifth wedding anniversary — sure, I had to go through four wives to get there, but it’s still a big deal — so it’s going to be a light day here.  We’ll check around for some stuff…

Scalia in the News… Again.  We’ll start with a report about a speech Justice Scalia gave to a panel on the judiciary at the National Italian-American Foundation this past weekend:

Deeply controversial issues such as abortion and suicide rights have nothing to do with the Constitution, and unelected judges too often choose to find new rights at the expense of the democratic process, according to Supreme Court Justice Antonin Scalia.

Scalia, during a panel Saturday on the judiciary sponsored by the National Italian American Foundation, dismissed the idea of judicial independence as an absolute virtue. He noted that dozens of states, since the mid-1800s, have chosen to let citizens elect their judges.

The Demise of Mason & Matlock, LPA.  The Boston Bar Association issues a report bemoaning the decline in lawyers’ jury trial skills caused by, well… a decline in the number of jury trials.  The report cites data to show that in the past several decades, although the number of both criminal and civil case dispositions has increased, the number of dispositions by way of jury trials has decreased, not only as a percentage but in absolute numbers — in other words, there are fewer trials now even though there are more cases.  In the Federal courts, for example, while the number of civil cases disposed of had increased five-fold between 1962 and 2002, the number of cases disposed of by trial in 2002 was one-sixth of what it had been forty years earlier.

Interestingly, there was one type of case which has escaped this phenomenon:  the study found that medical malpractice cases were being tried just as frequently as before.

The Ohio Supreme Court has data on case resolution here in Ohio, but the stuff on its web site only goes back to 1999.  I’ll see if I can find more historical data.  In the meantime, here’s a question:  are fewer trials a bad thing?

A matter of life and death.  A while back, I ventured my opinion — hardly a novel one — that the death penalty has a distorting effect in the criminal justice system.  For example, because of pressure to shorten the period of delay in capital cases between imposition of sentence and execution, there have been substantial modifications in the habeas corpus statutes, yet those changes affect equally, and adversely, people who’ve been convicted of non-capital crimes.  Similarly, rulings are made in capital cases which might not have been made if death wasn’t on the table, but those rulings also apply to all other criminal cases. 

Another way of looking at it is that the struggle over the death penalty consumes resources that might be better spent elsewhere.  For example, if there is a question that someone might have been unfairly sentenced to death, there are teams of investigative reporters willing to look into every nook and cranny of the case.  Seventeen people have been freed from Illinois’ death row because they were determined to have been innocent; a law professor’s class at Northwestern University was primarily responsible for discovering the evidence that freed half of those.

But who’s spending the time looking into cases where death isn’t the penalty handed out?  For example, as this article points out, back in the 1970’s Louisiana passed a law mandating life without parole for selling heroin.  Despite a change in the law in 2001 which lowered the penalty (to 5 to 50 years) and allowed a review procedure for those sentenced under the old law, there are still 90-some “heroin lifers,” many of them elderly, doing time in Louisiana prisons.  The prosecution is now arguing on appeal to the state supreme court that trial judges don’t have jurisdiction to modify the sentences, but that the lifers must instead go through the time-consuming process of review provided by the prisons board.  One of the cases being argued is that of Melvin Smith, who was sentenced in 1977 and is currently wheelchair-bound.

I wonder if the energy spent on the recent debate about whether capital defendants endure some momentary pain during lethal injections might have been better spent in considering the pain and suffering endured by elderly heroin lifers in Louisiana.

Today’s Moment of Duh comes courtesy of the plaintiff’s decedent in the case of Phillip Morris v. Williams, scheduled to be argued soon before the US Supreme Court:

Jesse Williams rationalized about the dangers of smoking cigarettes for more than 40 years. In part, he trusted the tobacco companies when they said that the link between smoking and lung cancer had not been proved. But when Williams was diagnosed with inoperable lung cancer in 1996, he told his wife Mayola, “Those darn cigarette people finally did it. They were lying all the time.”

Ya think? 

Williams died, and his widow filed suit against Phillip Morris; in 1999, a jury awarded her $820,000 in compensatory damages and $79.7 million in punitive damages.  The Oregon Supreme Court, citing the tobacco companies’ lengthy history of “reprehensible conduct,” upheld the judgment.  Now it’s on to the Supreme Court, which a few years back ruled that punitive damage awards have constitutional ramifications.  In that case, a doctor was awarded $4 million because of a lousy paint job on his BMW, and the Court threw it out, saying that an award of that magnitude for that minimal an injury violated due process.

I’m not going to get into that.  As the article I cited at the top of this post points out, despite the wailing and gnashing of teeth to the contrary by the “tort reform” lobby, awards of punitive damages are extremely infrequent.  And I’m certainly not going to shed tears for the tobacco industry, the executives of which should be whiling away their time trying to figure out which particular circle of Dante’s Inferno they’ll be consigned to upon their demise.

But with all due respect to the Widow Williams, anyone who in 1996 doubted the link between cigarettes and cancer probably believed that the Lung Fairy would come and take his damaged one away and bring him a new one.

See, this is the problem that lawyers have.  We know all the arguments.  If someone says that punitive damages are a problem, we can point to how infrequent such awards are.  When newspapers write articles about the medical malpractice crisis, a few days later there are letters in the forum section from lawyers pointing out that the insurance companies are raising their premiums not because of out-of-control malpractice awards but because of their losses in the stock market.  When someone at a party mentions the McDonald’s coffee case, a good lawyer can point out the salient facts — McDonald’s had hundreds of prior complaints about how hot its coffee was, the woman was horribly injured, she offered to settle for her medical expenses — between sips of his Cabernet.

And it doesn’t really matter, because we think like lawyers and people think like people, and it’s not the same thing any more.  Most people know that if you drive with a cup of hot coffee in your lap, it’s quite possible for bad things to happen.  Most people figured out long before 1996 that cigarettes are bad for you.  Most people don’t buy the argument that somebody’s too addicted to do anything about that, because there are literally tens of millions of people who’ve decided that they wouldn’t smoke any more, and stopped doing it.  Most people know that getting up on a ladder can be dangerous, and most people know that sticking your hand in a lawnmower while it’s running not only makes you Captain of the Dummy Team, but can cost you several fingers.

Most people, in other words, still retain a concept of personal responsibility.  I don’t think we, as lawyers, do.  In fact, the concept of personal responsiblity has become something close to anathemic for us, because we’ve spent the better part of the last few decades broadcasting a simple message:  if something bad happens to you, (a) it’s somebody else’s fault, and (b) they should pay you money.

That’s the main reason the public has trouble with lawyers.  They see us rushing to find new ways to perform modern-day legal alchemy – turning misery into gold – by continuing to expand the horizons of liability beyond anything which would have been vaguely recognizable even thirty or forty years ago, and they don’t see that as always being good for society.

And you know what?  They’ve got a point.

Last week I discussed State v. Boston and the rule that expert witnesses can’t testify as to the veracity of a child claiming sexual abuse, a rule that survives despite a contention in a recent 8th District case that it doesn’t apply when the child victim testifies.  Boston, of course, doesn’t prohibit expert testimony on whether abuse occurred.

This got me to wondering what the experience has been with requesting the trial court to hold a Daubert hearing prior to allowing the experts to testify.  Daubert v. Merrell Dow Pharmaceuticals was the 1993 US Supreme Court case which reframed the qualifications necessary for the admissibility of expert testimony under Evid. R. 702.  Daubert was approved by the Ohio Supreme Court in Miller v. Bike Athletic Co. in 1998, and basically sets forth these criteria for admission of expert testimony:  (1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance.

That’s not quite as limiting as it might seem; the test isn’t meant to be applied strictly, and in fact it’s a relaxation of the long-running Frye test, that to be admissible the expert’s view has to have gained “general acceptance in the scientific community.”

Still, it’s not uncommon for attorneys to request a Daubert hearing in cases involving the more exotic subjects of expert testimony.  Indeed, in this case last year from the 11th District, the defense requested, and got, a hearing on the admissibility of a nurse’s testimony in a child sex abuse case.

The problems with a diagnosis of sex abuse based upon interviews of a child, the use of anatomic dolls, or upon the child’s behavior are well-chronicled, as indicated by Judge Resnick’s dissent in State v. Sowers.  What’s more, as indicated by what happened in this case, social workers and police officers can engage in interrogation techniques that are shockingly prejudicial.

That’s not to suggest that the courts are going to grant you a hearing, and there’s no case law to indicate that their failure to do so is going to be regarded as error.  Still, it doesn’t hurt to ask.  The worst case scenario is that you’re in the same position you were in before, the second worst is that at least you get a free shot at the state’s experts, and the best is that you get their testimony thrown out.

Supreme Court upholds a death sentence; significant issue is the judge’s partial closure of the trial — he cleared the courtroom of all but the media for the cross-examination of one witness and the examination of two others.  Decision has a good summary of the criteria to be used in determining whether that violates defendant’s right to a public trial.  Guess which way that one came out?  But only by 4-3…

9th District holds that failure of defendant to include presentence report in record on appeal leaves court “no choice but to presume the validity of the trial court’s factual findings in support of appellant’s sentence”…  8th District holds that numerous acts of false billing committed over a seven-month period, even though contained in a single indictment, does not constitute a single offense for expungement purposes…. Aggravated robbery and theft are not allied offenses, 3rd District rules… 5th District finds that defendant’s consent to search wasn’t voluntary; good discussion of that issue, and of standard to be used by court in reviewing trial court’s ruling…

Great plaintiff’s case from the 9th District, reversing trial court’s grant of summary judgment in slip-and-fall case, with discussion of attendant circumstances and open and obvious doctrine; I’ll have a full article on this next week… 3rd District upholds denial of motion to vacate where opposing expert exaggerated his qualifications, stating that 60(B)(3), allowing judgment to be vacated for fraud, applies only to fraud by opposing party, not witness… There are lawyers out there who still don’t realize this?  Plaintiff files a complaint, the complaint’s dismissed in October, plaintiff file a motion for reconsideration, court denies motion in December, plaintiff then files notice of appeal in January, 5th District dismisses appeal as untimely because — all together now — there’s no such thing as a motion for reconsideration in the trial court… Although court can set zero bond for preliminary injunction, 6th District rules that failure to include any provision for bond in journal entry renders injunction a nullity, and defendant can’t be held in contempt for violating it…

Say this three times real fast.  The first line of the 9th District decision mentioned above, on the open and obvious doctrine:

Appellants, Bethel and Robert Marock, appeal the judgment of the Summit County Court of Common Pleas, which granted summary judgment in favor of appellees, Barberton Liedertafel and Liedertafel Damen Skektion Kranken Unterstuetzungs Verein, Inc., on appellants’ complaint.

Here’s betting that Liedertafel Damen Skektion Kranken Unterstuetzungs Verein, Inc. has never had to worry about tradename infringement.

As I mentioned on Friday, the Supreme Court handed down a decision last week on attorney-client privilege, Jackson v. Greger.  It’s not a monumental decision — in fact, it follows previous Court decisions on the subject — but it’s probably something attorneys should be aware of.

The facts are straightforward.  Jackson was arrested in 1999 for a resisting arrest, disorderly conduct, and assaulting a police officer, under vaguely bogus circumstances.  Her attorney, Greger, worked out a deal where she pled to the first charge in return for the latter two being dropped.  Over a year later, Jackson hired a lawyer to pursue a 1983 claim against the city.  That went nowhere, though, because the Federal court found that Jackson’s guilty plea to the resisting arrest charge collaterally estopped her from challenging her arrest or whether the officers had used excessive force.  After the Federal court granted summary judgment against her, she sued Greger, claiming that he’d committed malpractice by recommending that she plead guilty, in light of the fact that she’d told him she’d been injured and wanted to sue the city. 

Greger asserted the statute of limitations as a defense.  The critical question, of course, was when Jackson had “discovered” Greger’s malpractice, and so Greger requested all of the documents concerning communications between Jackson and her current lawyer on that issue.  Jackson acknowledged that her communications with Greger were no longer privileged, since she’d sued him, but argued that her communications with her current lawer were privileged. 

The court of appeals reversed the trial judge’s order compelling the discovery.  In doing so, the appellate court applied the common-law test to determine whether a waiver had occurred:  “(1) assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party;  (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense.”  The court held that the second and third prongs hadn’t been satisfied.

The Supreme Court affirmed, but on different grounds:  it held that application of the common-law test was improper, because the statute, RC 2317.02, provided the only means by which the attorney-client privilege could be waived:  by express consent, or by the client testifying as to the communications.  (The statute also provides that if the client discloses that he’s engaged in sexual abuse of a child, the attorney is required to report it.  That’s another story in itself.)

As I said, Jackson does little more than restate current law; the Court had expressed pretty much the same ruling over a decade ago in State v. McDermott, where the Court held that a client hadn’t waived the privilege by disclosing the conversation with his attorney to a third party.

Still, it may be that Jackson doesn’t mean quite all what it says.  The statute says nothing about the privilege being waived if the client files a lawsuit against the attorney, but everybody recognizes that as an exception.

There’s a principle of constitutional law that a court in making an interpretation of a constitutional provision should do so on the narrowest ground possible.  That’s really good practice for an appellate court in any kind of case.  Too often, a court goes farther than it needed to in making a particular, which only winds up complicating things down the road.

An example of that is the recent 8th District case of State v. Benjamin, where the defendant was alleged to have raped a six-year-old boy.  The only real question on appeal was the testimony of a Childrens and Family Services social worker and a psychiatrist.  The former testified that her investigation into the matter led her to conclude that sexual abuse was “indicated,” and the latter testified that the child used dolls to describe the incident and was “clearly and specifically able to say alone and uncoached the exact nature of what happened to him.”  The defendant argued that this was expert testimony as to the child’s truthfulness, which is prohibited by State v. Boston.

The easiest way to resolve this case was simply to rely on the fact that the case was tried to a judge, rather than a jury, which means there’s a presumption that the trial court considered only admissible evidence.  The court went farther, though, and held that “unlike in Boston, neither of the expert witnesses in this case testified that the victim was telling the truth.” 

That’s a little iffy:  while Boston doesn’t prohibit expert testimony as to whether abuse occurred, only as to whether the victim is telling the truth, the psychiatrist’s testimony that the child didn’t appear to have been coached comes perilously close to violating Boston; the Supreme Court over a decade later in State v. Sowers used as an example of what Boston prohibits testimony that “the child does not appear to be fantasizing or has not been programmed.” 

Even more problematic was the next sentence in Benjamin:  

Here, the child victim testified and was subject to cross-examination. Recent case law states that “Boston does not apply when the child victim actually testifies and is subjected to cross-examination.”

The “recent cases” the court refers to are three cases in the past twelve years out of the 5th District.  There are a number of problems with the court’s reliance on those cases, not the least of which is that the cases don’t make much sense.  They simply say, “Well, the kids testified here, and they didn’t testify in Boston, so Boston doesn’t apply,” without the slightest attempt to explain why that distinction has any significance.  Indeed, back in a case in 2000, the 8th District included a quote from Sowers that “Boston’s syllabus excludes expert testimony offering an opinion as to the truth of the child’s statements.”   And Sowers case couldn’t be distinguished on the basis that the victims hadn’t testified; all four of the child victims did.

In fairness, part of the problem here stems from Boston itself:  the distinction between allowing an expert witness to testify, “I concluded that the victim had been sexually abused,” which Boston permits, and “I concluded that the victim was telling the truth when he said that he’d been sexually abused,” which it prohibits, isn’t immediately apparent.  And, as Justice Resnick pointed out in her dissent in Sowers, there is a paucity of empirical evidence to show that the criteria used by experts in diagnosing sexual abuse accurately does any such thing. 

Still, the courts have been consistently unwilling to allow expert or lay testimony on veracity of other witnesses, and there’s no logical explanation — at least not given by the 8th District here, or by the 5th District in its cases — why that unwillingness should depend upon whether or not the witness testified.  The problem with Benjamin is that it’s not too hard to imagine an enterprising prosecutor waving the opinion around to convince a trial judge that, because the victim in that particular case testified, Boston doesn’t apply and thus testimony on whether the kid is telling the truth is permissible.  And then somebody has to decide whether that’s a mess, and how to clean it up.

As a side note, apparently no one was aware of the meaninglessness of a C&FS determination that child abuse is “indicated.”  The agency has three designations:  “substantiated,” “unsubstantiated,” and “indicated.”  Roughly, these translate to “yes, we know it happened,” “yes, we know it didn’t happen,” and “we have no friggin’ idea,” respectively.  Seriously.  “Indicated,” in the agency’s parlance, means simply that someone has made a complaint of child abuse, and they can’t determine one way or the other whether it’s true.