Appellate courts continue to reverse convictions when prosecutors use expert witnesses to vouch for the credibility of alleged victims. Credibility is for the jury to decide and no reasonable methodology allows an expert to determine whether another witness is telling the truth.
Richard Hopkins was charged in Michigan with multiple counts of having sexual contact with two minors. Hopkins rented property to the alleged victims’ mother, who agreed that Hopkins should babysit her daughters while she was working.
In addition to describing incidents of sexual touching, the alleged victims testified that they watched a pornographic movie at Hopkins’ residence and saw pictures of intimate body parts while scrolling through photos that were stored on his computer. One of the girls said she told their mother about the sexual contact, but the mother testified that she first heard about it from social services.
The testimony of the children, if believed, would have been sufficient to support the prosecution’s case. The prosecution nevertheless tried to bolster its case by using two expert witnesses for the improper purpose of vouching for the child witnesses. The Michigan Court of Appeals reversed Hopkins’ convictions because the prosecution’s strategy deprived him of a fair trial.
Vouching Testimony Regarding Credibility of Alleged Victims
Cynthia Bridgman testified for the prosecution as “an expert in the field of child abuse and therapy.” Bridgman is a therapist who provided therapy to the two alleged victims.
Bridgman claimed that “children’s statements are often labeled as inconsistent or not credible when, actually, they’re very credible.” She then testified that “research on credibility shows that kids rarely make up abuse allegations.”
Hopkins’ lawyer objected that Bridgman was vouching for the credibility of the accusers. The trial court permitted the testimony because it was based on studies regarding the truthfulness of children generally and not the truthfulness of the alleged victims.
The appellate court concluded that the trial court erred. The prosecution’s evidence essentially told the jury that children rarely lie about sexual abuse and that the jury should therefore believe the stories told by the alleged victims.
Research shows that adults have about a 50-50 chance of determining whether a child is lying. Studies that purport to measure how often children fabricate stories of sexual assault are inherently suspect because researchers have no way of knowing whether the stories are fabricated. The court, however, did not address the expert’s reliance on what might be “junk science” in forming her opinions, since the opinions amounted to inadmissible vouching for the credibility of the alleged victims.
Vouching Testimony Regarding Interview Techniques
Brooke Rospierski testified as an expert in forensic interviewing and disclosure of sexual abuse in children. Psychologists are sometimes called as defense experts to explain how improper interviewing techniques can induce children to say what they think the interviewer wants to hear, whether or not it is true.
In this case, however, the expert was called by the prosecution. Rospierski did not confine herself to testifying about interviewing techniques but testified that she saw no “red flags” that would cause her to believe that “either child was coached or pressured to fabricate any allegations.”
In some states, that kind of testimony would be admissible to rebut a defense expert’s testimony that the statements made by children could have been produced by improper interview techniques. In this case, since the prosecution called Rospierski before the defense presented its case, her testimony had no purpose other than to bolster the credibility of the accusers.
The court concluded that Michigan law precludes an expert from testifying that a child has not been coached by interviewers if that testimony sends a signal that the child was telling the truth. The line between commenting on interview techniques and vouching for the veracity of a child’s statement is a fine one, but the Court of Appeals decided that the expert’s testimony crossed that line.