Saturday, January 8, 2011
It's Harmless: Court Of Appeals Of Utah Finds Bolstering By Grandmother Harmless In Sexual Assault Appeal
It is well established that the credibility of a witness is a question solely for the jury's determination. This is a large part of the reason why polygraph results are inadmissible. It also explains why a child psychologist cannot take the witness stand and testify that he believes that the alleged victim is being honest when she claims that she was sexually assaulted by the defendant. But what if such improper comment on credibility comes from a lay, rather than an expert witness? As the recent opinion of the Court of Appeals of Utah in State v. King, 2010 WL 5393676 (Utah App. 2010), makes clear, the court is likely to find harmless error.In King, Gordon R. King was convicted of attempted sexual abuse of a child. King's conviction was based at least in part on the testimony of the alleged victim's grandmother, who answered a question in such a way as to indicate that there was nothing to make her think that her granddaughter, in making the allegations against King, was not telling the truth. According to the Court of Appeals of Utah, "[i]n other words, the grandmother was essentially asked if she believed her granddaughter."
The court held that assuming that this was improper bolstering by the grandmother, it was nonetheless harmless. According to the court,
When Utah appellate courts reverse for improper bolstering, they usually do so not only where a case hinges on an alleged victim's credibility and there is no physical evidence,...but also where the bolstering was done by an expert witness....Here, the alleged victim's grandmother was not an expert nor did she testify as such. The grandmother was the first person to report the abuse to a school counselor, and as a close family member who had made such a report, it would come as no real surprise to the jury that she believed her granddaughter. Obviously, had she disbelieved her granddaughter, she presumably would not have made the report. Because her testimony added nothing to the alleged victim's credibility, any incidental bolstering by the grandmother was harmless.