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May 4, 2008
Nothing But The Truth: Ohio Court Finds Experts Improperly Opined On Victim's Credibility
The recent opinion of the Court of Appeals of Ohio in State v. Winterich, 2008 WL 1747433 (Ohio App. 8 Dist. 2008), illustrates how courts do not allow expert witnesses to opine on the credibility of victims (and, indeed, any witness). In Winterich, the victim gave the following testimony: She was the defendant's biological daughter and between the ages of five and six at the time of the incidents at issue. The first incident occurred when the victim was sleeping in bed with the defendant and her mother. When the mother fell asleep, the defendant inserted his fingers into the victim's "private," and she told defendant to stop but he refused. The second incident occurred at the defendant's house as well, when the victim's mother was home taking a nap. The defendant inserted his fingers into the victim's “private” again, and he told her that if she told anyone he would keep doing it. The victim, however, told her aunt and her sisters anyway because it hurt "bad."
The prosecution then called the victim's aunt and half-sister, who corroborated that the victim told them about these acts of abuse. The prosecution also called, inter alia,
-(1) Teriea Anderson, a social worker with the intake sex abuse unit at Children and Family Services, who testified that she interviewed the victim, the victim used her own language when reporting the abuse, seemed believable, and did not seem suggestible;
-(2) Dr. Beth Manning, an emergency room doctor at University Hospitals, who examined the victim and made a final of "presumed sexual assault" based solely upon the victim's statements; and
-(3) Lauren McAliley, a nurse practitioner at Rainbow Babies and Childrens' Hospital, who examined the victim and determined that the victim had “very possibly” been sexually abused based solely upon the victim's statements.
Based upon this testimony, the defendant was convicted of rape and gross sexual imposition. He thereafter appeals to the Court of Appeals of Ohio on the ground that these expert witnesses improperly opined on the credibility. The Court of Appeals agreed, noting that (as in courts across the country), experts may not comment on the credibility (or lack thereof) of a party/witness. The American proscription on this type of testimony comes from the belief that the jury is the lie detector and that experts should not be able to, in effect, tell jurors how to decide cases.
Now, of course, this meant that Anderson's testimony that the victim's testimony "seemed believable" was improperly admitted. But what about the testimony of Manning and McAliley, neither of whom explicitly commented on the victim's credibility? Well, the Court noted that "[p]ermitting the introduction of an expert's opinion, which relies solely on the child's statements, is tantamount to permitting the expert to testify as to the child's veracity." Thus, the opinions of Manning and McAliley, which were based solely on the statements of the victim, were improperly admitted as well, and the Court reversed the defendant's convictions?
So, what do readers think? Do you agree with the decision in this case and the American proscription of expert testimony on credibility? I recently read a compelling article which argues to the contrary, and I will be doing a post about it in the coming weeks.
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Yes, I agree with the opinion. If these statements are admissible, then, in effect, there is the testimony of the child, and two or more adults who say the child is, in lay terms, telling the truth.
Posted by: | May 5, 2008 1:47:19 PM
This raises three questions, admission of "fresh complaint" -- hearsay testimony of a rape victim's statements to show "hue and cry," opinion on truthfulness, and rape victim "profile" evidence.
I think some fresh complaint testimony is warranted because jurors still believe that rape victims need to call out. Absent that, there should be an opportunity for victims to explain why they did not.
As for opinion on truthfulness, there is just no reason for anyone to tell a jury that they found a witness credible. It's not the kind of issue that requires expert testimony because it's the kind of evaluation that all of us make everyday without expert assistance.
Expert opinion on rape victim profile is often witness credibility testimony in disguise. While there might be a place for profile evidence, none of the three described here seems to hit the mark.
So many witnesses saying essentially the same thing seems like "piling on."
Looking forward to your post on expert testimony on credibility -- Mack
Posted by: Hearsay and Opinions on Veracity | May 5, 2008 6:57:03 PM
Experts testify all the time about credibility - it's just matter how the testimony is couched. Consider testimony that a personal injury litigant is malingering. Plaintiff says I suffered a head injury and now I cannot remember anything. Defense neuropsychologist says, "He's malingering." Worker's comp plaintiff says, "My back still hurts bad, even though the surgeon removed the herniated portion of the disc." Defense orthopedist says, "He's malingering."
In both instances, the experts are saying the plaintiff is full of bull. This type of testimony is allowed all the time.
"Malingering is a form of lying." E.J. Imwinkelreid, The Case Against Abandoning the Search for Substantive Accuracy, UC Davis Legal
Studies Research Paper Series (Sept. 2007), available for download, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1014096
Posted by: Kevin | May 9, 2008 12:10:44 PM