Tuesday, August 26, 2014
It is well established that a witness may not take the witness stand and testify that another witness appeared to be credible or incredible while testifying at trial. So, for instance, a deception expert could not take the witness stand after the defendant testifies and claim that based upon microexpressions, etc., the defendant appeared to be lying (or telling the truth). But can a witness take the stand and testify regarding the demeanor of a prior witness when she took the stand? That was the question addressed by the Court of Appeals of Ohio, Sixth District, in its recent opinion in State v. Donaldson, 2014 WL WL 4160799 (Ohio.App.6th 2014).
In Donaldson, Kevin Donaldson was charged with two counts of trafficking in persons and two counts of promoting prostitution. At trial, FBI Agent James Hardy
testified that on November 8, 2011, he was the coordinator of the investigation that ultimately led to appellant's arrest. After the women were detained by law enforcement in the hotel room, Hardy interviewed both of them separately. He testified that they appeared frightened and upset.
Quawana Pirela took the stand for the defense and testified that appellant had never compelled her to engage in prostitution. The state then called Hardy back to the stand. He testified that her testimony was inconsistent with the information she gave him when he initially interviewed her. When asked, based on his vast experience investigating prostitution rings, his opinion of Pirela's demeanor while on the stand, he replied:
She appeared to me to be extremely fearful. It was very, very difficult for her to make eye contact with her pimp. And it appeared it was very difficult, even though she said things that contradicted her statement, to me it appeared very difficult for her to even come into court and be in close proximity to her pimp.
After he was convicted, Donaldson appealed, claiming, inter alia, that Hardy's testimony was improper credibility testimony. The Court of Appeals of Ohio disagreed, concluding that
Although opinion testimony regarding the truthfulness of a witness is inadmissible, a witness may give "testimony in the form of opinions or inferences * * * which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Evid.R. 701. "Testimony in the form of an opinion or inference otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact." Evid.R. 704.