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Is the child telling the truth - a new look at Boston?

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. Benjaminwhere 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.


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