Oregon Supreme Court 06-04-10

by: Abassos • June 3, 2010 • no comments

Read the full article for details about the following new cases:

• Vouching

There's a great new opinion on vouching from the Oregon Supreme Court today in a child sex abuse case: State v Lupoli. Think of it as sort of a companion case to Southard, pushing back on some of the worst evidentiary abuses in sex cases but from a different angle. Southard, you may recall, said that an expert may not give a diagnosis of sex abuse in the absence of physical evidence supporting the opinion. Vouching, in this situation, is an opinion that abuse occurred (ie a diagnosis) based on the credibility of the alleged victim. Same problem, different angle. Or as Ryan Scott points out:

The distinction with Southard is also interesting. Under Southard, a diagnosis of sex abuse w/o physical evidence is inadmissible. Under Lupoli, the reasons for the diagnosis can be inadmissible. In other words, the Lupoli opinion should keep the state from trying to get right up to the Southard line without crossing it. The court gives some hint what testimony a CARES doctor could properly make that might be admissible, but it would be very neutered testimony. Other than introducing the video, I wonder, what really is the point of having a CARES doctor testify anymore?

Of course, it really shouldn't take a great new case to affirm the longstanding rule that one witness may not give an opinion on whether another witness is telling the truth. There's a prior S.Ct. opinion reversing a child sex abuse case where a CARES expert vouched for the truthfulness of the child victim: State v. Keller, 315 OR 273 (1993). And, in a separate case the S.Ct. even got snarky about it:

"We have said before, and we will say it again, but this time with emphasis - we really mean it - no psychotherapist may render an opinion on whether a witness is credible in any trial conducted in this state. . . . An opinion that a person is not deceptive, could not lie without being tripped up, and would not betray a friend (to wit: the defendant) is tantamount to the same thing." State v Milbradt, 305 OR 621 (1988)

Yet still, the 50 + vouching statements from this case are ones that are regularly admitted as evidence in child sex abuse cases. Here are some examples:

Avila, for example, testified that she diagnosed eight-year-old SM as having been sexually abused because:

• "Her disclosures * * * were very clear and spontaneous. They were appropriate for the age that she was. They didn't sound rehearsed, they sounded like things she just said."

• "She was consistent. She had said the same type of thing before to her parents, I guess."

• "[H]er physical exam was consistent with what she said happened. There weren't any signs, but you wouldn't expect there to be. * * * [S]he was touched and - with a hand, and touching doesn't leave any marks."

• "[T]he manner in which [SM] told her story was pretty compelling. She just had a real clear change in her demeanor."

• "[J]ust the way she told her story was very compelling, and that just makes it - it just was - it had an effect."

Avila also testified that she saw multiple instances of "idiosyncratic detail" in SM's statements, which Avila described as "spontaneous detail that you wouldn't otherwise get, * * * things that if you were making up a story, you might not put that kind of detail in it." Avila stated that, in SM's story, "there was a lot of little details that were involved in the way the story was told. * * * I mean it was really quite descriptive." Finally, Avila testified that she and social worker Findlay "were in agreement. * * * We both felt quite certain that when you look at the things that you look at that make you think that a kid is telling it like it is, they were all there. They were all there, and we both agreed[.]"(7) Heskett testified that she diagnosed five-year-old SO as having been sexually abused because "the child made consistent statements in a developmentally appropriate way, she's only five years old, consistent with abuse. Her examination was - did not show signs of abuse. * * * [B]ased on those things, I came to the diagnosis." Heskett also described the things she looked for in SO's statements to arrive at her diagnosis:

• "We look to make sure that the child's statements are developmentally appropriate. It would be very worrisome or concerning * * * if I had a child who at five was using terminology or expressing things with phrases that would not be expected to come from a five-year-old. * * * [SO] seemed developmentally appropriate to me[.]"

• "In general, [peripheral details are] one of the things that's important in the sense that the child can give as much detail about the entire reported or alleged incident as possible. * * * [SO] was very clear-cut in telling us [details]."

When asked whether anything about SO's affect would raise concerns of whether to rely on what she had said, Heskett testified, "For a five-year-old child, she actually seemed to be very appropriate. She did not seem to be overly anxious, overly timid, overly afraid." Heskett also testified that nothing about SO's emotional state gave rise to concerns about her reliability. Heskett listed specifically what led her to diagnose SO with sexual abuse: "The combination of her statements, as well as the fact that her physical findings fit with her statements. She did not have any signs of abuse, but I would not have expected any based on her statements. * * * It was the comments that she made[.] * * * It was the fact that she had options or opportunities to perhaps change her history or say that she had been touched in other places, and she remained fairly consistent - not fairly, she remained consistent in where she was touched."

It's all inadmissible vouching. Congratulations to trial attorney Patrick Sweeney for persevering in his objections. And congratulations to big shot New York attorney Robert Rosenthal for coming into this fine state and making our law better. State v. Lupoli