Indiana Courts Should Revisit Vouching Law in Child Molest Cases
Earlier this month, the Court of Appeals decided Henson v. State. In Henson, the defendant and his wife had two children. They divorced, and the defendant exercised parenting time with his children on the weekends. In 2018, the defendant remarried.
In 2020, the defendant’s ex-wife asked a court to suspend all parenting time between the defendant and his children, alleging that the kids no longer wanted to see their father because he and his new wife were verbally abusive to them.
While this request was pending, the defendant’s 13-year-old daughter spontaneously disclosed to her mother that the defendant had molested her. The defendant was charged with several counts of child molesting. At his trial, defense counsel attacked the daughter’s credibility. The defendant’s theory was that his daughter fabricated the allegations because she no longer wanted to be forced to see him during parenting time.
After the daughter testified at her father’s trial, the jury questioned her as to whether she had yelled out to her younger brother during the molestations, since he was often in the room during the incidents. She testified that she did not.
The final witness the State called was a detective, who had experience in interviewing children. The detective was permitted to testify, over the defendant’s objection, to the following:
children understand questions differently than adults
children do not remember exact dates and times
delayed disclosure is very common
it is rare for children to call out for help or yell during an assault
children are more likely to delay the disclosure when the abuser is a relative; and
the delayed disclosure can lead to the child confusing the details of each incident.
The detective never testified about the specifics of this case or this child, but only generally about children and allegations of sexual abuse.
The jury acquitted the defendant of the most serious charges but found him guilty on the lesser counts. The defendant was sentenced to 16 years in prison.
On appeal, the issue was whether the detective’s testimony about “child abuse victim characteristics” constituted impermissible vouching. Indiana Evidence Rule 704(b) forbids a witness from vouching, either directly or indirectly, for another witness’s credibility. Direct vouching would be testimony that the witness is telling the truth. Indirect vouching would include testimony that this child is not prone to exaggerate or fantasize about sexual abuse.
Here, the detective did not testify about the defendant’s daughter; instead, the testimony was about children in general. Thus, it would not be considered either direct or indirect vouching. A long line of case law makes that clear.
But the panel in Henson expressed the following concerns: “Child sexual-abuse cases often rely on the uncorroborated testimony of the victim, meaning the State’s entire case hinges on the victim’s credibility. When an officer opines immediately after a victim’s testimony that her behavior after the abuse or while testifying is common among other child sexual-abuse victims, the inevitable effect is to bolster the truth of the victim’s allegations. The State contends this evidence of typical victim behaviors is admissible to ‘help[] the jury evaluate [the victim]’s credibility.’ But testimony that ‘helps’ a jury by implying the victim is telling the truth because she acted in accordance with expected behaviors is vouching.”
The admissibility of this evidence largely rests on our Supreme Court’s decision in Steward v. State, 652 N.E.2d 490 (Ind. 1995). In Steward, the Supreme Court allowed evidence from an expert where the victim exhibited “unexpected” behavior for an abuse victim, if the defendant attacked the victim’s credibility through pointing out the unexpected behavior. In Henson, the Court of Appeals explained that the case law seemed to have strayed from the Steward holding, so it asked the Indiana Supreme Court to consider clarifying whether Steward was still good law.
Clarification would be helpful for criminal defense practitioners, as well as for the Court of Appeals. But not just to determine whether Steward still applies, but whether Steward should still apply. Do jurors still find certain behaviors to be “unexpected” in child abuse victims? Given the amount of education surrounding child abuse that has been provided over the last several decades, I doubt there are still people who believe that children don’t often delay disclosure of the abuse, for example.
Do they need the help of a skilled witness to determine whether a child’s testimony is credible? And is this testimony even helpful? Or, in legal terms, is it relevant? Does it tend to make a fact more or less probable?
Consider the testimony in Henson. The detective testified that it is rare for children to yell or cry out for help when they are assaulted. How do we know that is true? And what is “rare”? But even assuming in only a small number of cases does a child cry out for help, how does that fact make it more or less likely that the defendant molested his daughter? It doesn’t. Instead, it’s only relevance is to show that the fact that the defendant’s daughter did not cry out to her brother for help does not necessarily mean that she’s lying about the allegations.
The same is true of delayed disclosure testimony. Some victims don’t disclose abuse immediately, but others do. This fact does not make a defendant’s guilt more or less probable. If the victim disclosed immediately, the molest could have occurred. If the victim delayed in disclosing, the molest still could have occurred. The only relevance this testimony has is to show bolster the child’s credibility by educating the jury that the victim’s delay in telling anyone doesn’t mean she’s lying.
The only relevance is to determining a witness’s credibility. How is this evidence any different than evidence that this child is telling the truth, or this child is not prone to lie? It really isn’t.