JASON ADAM FALLIN v. STATE OF MARYLAND
Court of Appeals of Maryland, McDonald, July 12, 2018,
Witness Credibility – A forensic examiner can not testify that a child victim’s statement showed no signs of fabrication.
(Dissent – Watts with Getty – There should be a special exception for child sexual abuse)
Facts:
In 2015, Jason Fallin was indicted in Charles County for sexual abuse of his daughter when she was between five and eight years old by inappropriately touching her genitals.
At trial, his daughter testified directly about two of the incidents.
A forensic examiner testified about an interview with the daughter where she discussed a third incident.
The forensic examiner also repeatedly testified that there were no signs of fabrication in the daughter’s story.
Fallin objected and requested that the judge instruct the jury that “it is not an appropriate subject for expert testimony to tell you whether or not they believe someone’s telling the truth.”
The judge allowed in most of the examiner’s testimony that she did not see any “signs of fabrication” in the daughter’s story and declined to give Fallin’s requested instruction.
Fallin was convicted and appealed.
Held: The Court of Appeals held that the expert witness improperly assessed the credibility of another witness. Because the victim’s credibility was key to the trial, the Court ordered a new trial.
Hearsay – In general, a witness cannot testify about statements made by other people if those statements are offered at trial to prove the truth of the statement.
For example: A witness testifying that a person she met said, “hi, my name is Bob” would not be allowed if offered to show that the person’s name is Bob (the truth of the statement). It would, however, be allowed to show that the person was alive when she saw him (the fact that the person was speaking showed that he was alive regardless of whether what he was saying was “true” or not.).
Hearsay – The hearsay rule has many exceptions, including: present sense impression, excited utterance, statement by a party opponent, etc.
Hearsay – “Tender Years” Exception – Another exception to the hearsay rule applies in a sex-offense or child-abuse case where a statement has been made by a child under the age of 13.
Hearsay – “Tender Years” Exception – This exception only applies where the statement was made to one of the following people acting in the course of their profession:
– Doctor
– Psychologist
– Nurse
– Social Worker
– School administrator/teacher/counselor
– Licensed therapist or counselor
Credibility – A witness is not allowed to testify about the credibility of another witness (or a statement by another witness)
Credibility – While a witness cannot testify about whether or not another witness is telling the truth, generalized testimony explaining aspects of credibility may be allowed.
Example from the Case: An expert witness was allowed to testify that it is common for victims of child abuse to recant their initial reports of abuse as long as the witness did not give an opinion about the victim in that case was lying. The expert testimony concerning recantation simply “advised the jury as to the existence of a psychological phenomenon that would explain the … victim’s wavering or vacillation. Beyond that, it did nothing to indicate that the victim’s version of events … should be believed.”
From the Case: While the forensic examiner “may not quite have purported to function herself as a ‘human lie detector’… her testimony was indistinguishable from that of a person who operates a lie detector and reports the results.” Therefore, it was improper. The testimony “amounted to an endorsement of the credibility of an out-of-court statement by that witness that the jury did not see and could not evaluate for itself. It consisted of the expert opinion of Ms. Drum that there were no “signs” – and no need for “concern” – that the out-of-court statement was fabricated or coached. That testimony crossed the line … We must reverse and remand for a new trial.”