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One more on Boston

Back in October of 2006, I criticized the 8th District for indicating in a decision that State v. Boston, the 1989 Supreme Court decision which prohibits expert testimony on whether a child abuse victim is telling the truth, doesn't apply where the child testifies at trial.  To show you the kind of weight I carry up here, the court has since completely backed off that idea, except in the, oh, about five cases since then when they've discussed the issue, most recently last week in State v. Futo

Being the kind of guy I am, I figured it was only appropriate to consider the possibility, however remote, that I might be mistaken in my analysis.  So let's pop the hood and take a look at this a bit more closely.

We'll start with Boston, and the syllabus of that case pretty much says it all:

An expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant.

What happens after that is a classic example of the appellate court version of the old parlor game "telephone," in which one person whispers a statement to another, that person passes it on to the next participant, and so on, with the invariable result being that the final version is wildly at odds with the original. 

In 1994, the 5th District decided the case of State v. Kelly, which involved several issues, the key one of which was the hearsay rule allowing statements made for purposes of medical treatment and diagnosis.  Boston had dealt with that issue, too, and so had some subsequent cases.  We won't get into it here, but basically the court in Kelly concluded that the evidence was allowable under the rule because the victims had testified. 

Four years later, the same court decided State v. Fuson, which dealt with the admissibility of expert testimony as to whether a child was telling the truth about being abused.  The court held that the testimony didn't go to the child's veracity, but inserted this puzzling phrase:

As we stated in State v. Kelly, Boston does not apply when the child victim actually testifies and is subjected to cross-examination.

The court misread its own case; the portion of Kelly which discussed the effect of the child actually testifying had nothing to do with expert testimony on veracity. 

From there, things go all to hell:  the 5th District restates the dicta in Fuson in a 2005 case, but now it becomes a holding.  The next year in State v. Benjamin, the 8th District comes to the same result, stating that "recent case law states that Boston does not apply when the child victim actually testifies and is subjected to cross-examination," and citing the 5th District cases for that "recent case law."   Since Benjamin, the 8th District has applied the same rule, in almost exactly the same language, in at least three other cases, most recently in Futo.

The only glimmer of reasoning as to why Boston shouldn't apply when the alleged victims testify is contained in a case from earlier this year, State v. Amankwah.  In upholding the mother's testimony that her child was telling the truth, the court noted,

In this case, the child victim testified and was subject to cross-examination. The jury was able to hear her answers, witness her demeanor, and judge her credibility independent of her mother's testimony.

Now, there's certainly some merit to that position, especially in the context of this case:  the jury might well have discounted the mother's testimony because of her obvious bias, and thus the child's testimony would have been given foremost consideration. 

But it's hard to see how the child's appearance at trial solves the problem of the expert vouching for the child's credibility.  The jury could obviously be expected to give much more weight to an expert's testimony on this point than a mother's.  In fact, that was the central tenet of Boston; expert testimony

acted as a litmus test of the key issue in the case and infringed upon the role of the fact finder, who is charged with making determinations of veracity and credibility.  In our system of justice it is the fact finder, not the so-called expert or lay witnesses, who bears the burden of assessing the credibility and veracity of witnesses.

No jury would discount expert testimony on that issue.  In no other context would the state be permitted to present an expert witness whose sole function was to say that another witness is testifying truthfully, regardless of whether that witness testified himself.  The final nail in the coffin is the Supreme Court's 1998 decision in State v. Stowers, which involved the question of whether the expert could testify that the child's behavior was consistent with that normally observed in sexually abused children.  The court upheld that testimony, but was careful to draw the distinction from Boston:

Boston's syllabus excludes expert testimony offering an opinion as to the truth of a child's statements (e.g., the child does or does not appear to be fantasizing or to have been programmed, or is or is not truthful in accusing a particular person).   It does not proscribe testimony which is additional support for the truth of the facts testified to by the child, or which assists the fact finder in assessing the child's veracity.

All four of the victims in Stowers testified at trial.  If the court believed that confrontation solved the problem of expert testimony as to veracity, it had the perfect opportunity to do so.

This may not seem like a big deal, but it is.  Veracity is a critical issue in any case, but especially in a child abuse case.  The line between an expert saying that abuse is indicated and saying that the child's testifying truthfully about the abuse may be a fine one, but it's a line nonetheless, and as anyone who's tried one knows, a crucial one.  You've now got three districts (the 4th has recently jumped into the fray, basing its ruling on -- what else? -- the 5th and 8th District decisions) holding that such testimony is admissible.  That is logically untenable, based on shoddy research, and contradictory to the Supreme Court rulings on the issue.  Eventually, if the districts don't correct it themselves, it'll have to be cleared up by the Supreme Court.  In the meantime, though, there'll be a lot of cases wrongly decided because a prosecutor waved an opinion in a trial judge's face saying that expert testimony on veracity was admissible because the child testified, and the trial judge is going to go along with it because he or she doesn't have the time or inclination to wade through what really happened like I just did here.

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