EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, November 24, 2009

Trust Me: Supreme Court Of Appeals Of West Virginia Reverses Murder Conviction Based Upon Expert Opinion Testimony On Credibility

A man is on trial for first degree murder and felony conspiracy, and the primary witnesses against him are a police corporal and another corporal's girlfriend. Defense counsel cross-examines these witnesses for the prosecution about factual discrepancies in their testimony but does not engage in a broad based attack on the credibility of either witness. In response, the prosecution has the chief investigator for the State testify that, in his opinion, these two witnesses were telling the truth. As the recent opinion of the Supreme Court of Appeals of West Virginia in State v. Martin makes clear, there are two fundamental problems with this line of questioning by the prosecution.

The facts in Martin were as described above, with Michael Martin being the defendant and Corporal William Reynolds and Jasminda Gonzales being the witnesses for the prosecution. Here are some excerpts of the interrogation of the chief investiagtor:

Q. From your  — well, first of all, in your 24 years of experience as a West Virginia State Policeman have you had experience throughout those 22 years in conducting witness interviews and particularly eyewitness interviews? 

A. That’s correct. 

Q.  Have you, in those 22 years, had substantial experience in conducting such interviews in cases of violent crimes being homicide or sexual assaults, for example. 

A.   That’s correct. 

Q.   And in your experience in those 22 years, is it rare – is it usual or unusual that your eyewitnesses will have discrepancies in some of the details? 

A. Usual....

Q. Now, as to your investigation of this case and coupled with your 22 years of experience as a law enforcement officer and captain of the State Police, from your entire investigation of this case, have you 
determined Officer Will Reynolds to be credible? 
A.  Yes. 

Mr. Daniell: Objection, Your Honor.  That’s  – that I think is where we are out of bounds. 

The Court: I am going to overrule the objection, but I’ll preserve your exception. 

(By Ms. Keller): 

Q.   And based upon your investigation in this case and years of experience and your present position with the West Virginia State Police, have you also determined Jasminda Gonzales to be credible and believable in this 

Mr. Daniell: Same objection, Your Honor. 

The Court: All right. And the same ruling. 

The Witness: Yeah.  

After Martin was convicted, he appealed, claiming that, inter alia, this testimony was improperly received. That appeal eventually reached the Supreme Court of Appeals of West Virginia, which first found a problem with the testimony under West Virginia Rule of Evidence 608(a), which provides that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness; and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.  

In other words, credibility must be attacked before it can be bolstered, and, according to the court, "[w]hile both witnesses were subjected to cross-examination regarding various factual discrepancies, the questioning never crossed the bounds into any type of attack on the character of either witness." The court, however, found that even if there had been such attack, the credibility of the witnesses could not have been bolstered by expert opinion testimony. The court noted that

Even more significantly, the law in West Virginia does not allow an expert to give an opinion regarding the credibility of a witness. It is a well-established legal principle in this State that “[t]he jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses.”...Under West Virginia case law, because the credibility of witnesses falls within the province of the jury and not an expert witness, the circuit court erred in allowing the Appellee to engage in this line of questioning regarding credibility.  

The West Virginia Supremes thus reversed, and, based upon my review of precedent from across the country, I think that (almost) any other court would have reached the same conclusion.



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