The Pit & The Pendulum: Supreme Court Of Indiana Reverses Prior Precedent Regarding Child Molestation Expert Testimony

Indiana Rule of Evidence 704(b) provides that

Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.

In Lawrence v. State, 464 N.E.2d 923 (Ind. 1984), the Supreme Court of Indiana found that 

Whenever an alleged child victim takes the witness stand in [child molestation] cases, the child's capacity to accurately describe a meeting with an adult which may involve touching, sexual stimulation, displays of affection and the like, is automatically in issue, whether or not there is an effort by the opponent of such witness to impeach on the basis of a lack of such capacity. The presence of that issue justifies the court in permitting some accrediting of the child witness in the form of opinions from parents, teachers, and others having adequate experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters. Such opinions will facilitate an original credibility assessment of the child by the trier of fact, so long as they do not take the direct form of "I believe the child's story", or "In my opinion the child is telling the truth".

But can such testimony be given consistent with Rule 704(b)? According to the recent opinion of the Supreme Court of Indiana in Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012), the answer is "no."

In Hoglund, Keith Hoglund was charged with two counts of child molesting based upon acts allegedly committed against A.H. At trial,

The State called as expert witnesses pediatrician Carol Butler, clinical psychologist Amanda Mayle, and mental health counselor Christine Shestak. Each witness had treated or counseled A.H. In varying degrees of specificity, each witness essentially testified that A.H. was "not prone to exaggerate or fantasize" concerning sexual matters.

After he was convicted, Hoglund appealed, claiming, inter alia, that this testimony should have been deemed inadmissible under Indiana Rule of Evidence 704(b). In response, the Supreme Court of Indiana noted that, starting with its opinion in Lawrence, "our courts have adhered to relaxed evidentiary rules concerning the testimony of children who are called upon as witnesses to describe sexual conduct." Of course, the court then noted that Lawrence was decided before the adoption of the Indiana Rules of Evidence.

The Indiana Supremes thus decided to reconsider the issue and found that

Much akin to the development of the depraved sexual instinct exception to the hearsay rule—which we abrogated in Lannan v. State—a significant underlying rationale to support permitting some accrediting of a child witness' testimony was that "allowing such evidence lends credence to a victim's testimony describing acts which would otherwise seem improbable standing alone."...But this rationale presupposes that the very idea of an adult forcing himself or herself upon a defenseless child is inconceivable and that absent some amount of accrediting testimony the child will not be believed....

Sadly, accusations of child molesting in this twenty-first century are all too common. And precisely because of the unfortunate frequency of such accusations the need for accrediting testimony is not as acute as it may have been over two decades ago. See Laurie Shanks, Child Sexual Abuse: Moving toward a Balanced and Rational Approach to the Cases Everyone Abhors, 34 Am. J. Trial Advoc. 517, 517 (2011) (observing a "pendulum" swing in recent years in public perception about the testimony of young children in child sex abuse cases). We conclude that the shift in public attitudes concerning allegations*1237 of child sex abuse undermines the necessity to carve out an exception to Rule 704(b).

Therefore, the court "expressly overrule[d] that portion of Lawrence allowing for 'some accrediting of the child witness in the form of opinions from parents, teachers, and others having adequate experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters.'" (That said, because the court found harmless error, it affirmed Hoglund's conviction).

-CM