EvidenceProf Blog

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

Thursday, July 8, 2021

Case Illustrates Difference Between Federal & Indiana Rule of Evidence 704(b)

Federal Rule of Evidence 704(b) states that

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

Indiana Rule of Evidence 704(b) is broader. It states 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.

To see this latter rule in action, let's take a look at today's opinion of the Court of Appeals of Indiana in Anthony v. State, 2021 WL 2836482 (Ind. App. 2021).

In Anthony, Tony Bennett Anthony was charged with child molesting (of D.M.). At trial,

Detective Sean Buck testified to observing a forensic interview of D.M. When he began to describe how different children react to discussing sexual abuse, defense counsel objected, arguing that the testimony lacked proper foundation, was not relevant, and was an attempt by the prosecution “to have this person vouch for credibility.”...Defense counsel continued, “I just object to this entire line of questioning....It's not relevant, and it violates my client's right to have the jury decide credibility....”...
The trial court overruled the objection and allowed the State to proceed. Detective Buck testified about signs of witness coaching and confirmed that D.M.’s interview did not exhibit any of those signs....Defense counsel only objected when the State asked if D.M. seemed “like she was searching for answers” during the interview, arguing in support of the objection that Detective Buck was not competent to testify to D.M.’s thought process.....The defense made no more objections during Detective Buck's direct examination. Defense counsel then cross-examined Detective Buck on coaching, confirming that he never interviewed D.M.’s mother to discern whether she coached D.M. to make the allegations against Anthony

After Anthony was convicted, he appealed, claiming that Detective Buck's testimony violated Indiana Rule of Evidence 704(b). The Court of Appeals of Indiana agreed, ruling as follows:

Our Supreme Court has held that testimony about witness coaching constitutes impermissible vouching—whether that testimony be that a child has or has not been coached or that a child did or did not exhibit signs of coaching.....Such testimony generally runs afoul of Evidence Rule 704(b) unless the defendant “opens the door” to it.....A defendant can open the door to otherwise inadmissible evidence by introducing the issue at trial with evidence that “leave[s] the trier of fact with a false or misleading impression of the facts related.”...The State argues that Anthony did just that by denying D.M.’s accusations, providing alternate explanations for them, and pointing to the strained relationship between D.M.’s mother and Anthony's wife....
Importantly, most of the alleged instances of door-opening occurred after the State elicited Detective Buck's testimony. This Court has found that where coaching testimony is elicited “neither in response to defense questioning, nor to rebut an express claim that [the witness] had been coached,” it constitutes improper vouching....Once Detective Buck's improper coaching testimony was introduced and defense counsel's objections were overruled, Anthony was not required to stay mum to preserve his objection....
We therefore limit the scope of our review for abuse of discretion to statements made by the defense before Detective Buck's testimony on coaching. The State points to two. First: “The defense in this case is remarkably simple. [Anthony] didn't do this. This didn't happen.”...And second: “[Y]ou're going to hear evidence that this was, and is[,] an extremely difficult relationship, mother and daughter. I'm talking about grandma and [D.M.]’s mom. It's bad and it's been bad for a long time, and daughter...right out of the box is making accusations against Tony....”...
Neither statement opened the door to Detective Buck's vouching testimony. First, there is no explicit mention nor straightforward implication of coaching. Second, when Anthony declared his innocence, he did not necessarily attack D.M.’s credibility. Credible people can be mistaken or confused. We are concerned that the State's position here would eviscerate the rule against coaching testimony set forth in Sampson. If denying an accusation in opening statements necessarily challenges a witness's credibility, most defenses would open the door to coaching testimony. And finally, it takes a great inductive leap to conclude that, by saying D.M.’s grandmother and mother had a difficult relationship, the defense accused D.M.’s mother of coaching D.M. to lie.
Because Anthony did not open the door to Detective Buck's coaching testimony and timely objected to its admission, the testimony constituted impermissible vouching and was admitted in error.

That said, the court found the error was harmless and upheld the conviction.



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In so many of these cases (i.e., the ones discussed on this blog) it seems like the defendant only gets a hollow victory by prevailing on the evidentiary point but then losing in the end on harmless error anyway.

[This is f/k/a hardreaders BTW]

Posted by: kotodama | Jul 9, 2021 9:45:33 AM

The "no vouching" rule is not in the FRE, but is firmly in the common law of federal evidence. I suggest the outcome would be the same in federal court. The FRE should contain this state's 704(b).

Posted by: Fred Moss | Jul 12, 2021 3:28:54 PM

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