TESTIMONY BY WITNESSES VOUCHING FOR ANOTHER WITNESS’S CREDIBILITY IS INADMISSIBLE

Many people I encounter in my practice are frustrated that a mere accusation without any additional evidence (such as a video, injuries, etc.) are suffient for someone to be charged with a crime.  It is the job of the defense to attack a witnesses credibility and to find motives to lie.  In Commonwealth v. Lopez, the defendant was charged with rape of a child by force and related offense.  The prosecution attempted to “bolster” the credibility of a witness through the testimony of a therapeutic mentor.   The judge admitted, for the purpose of proving that the child was incapable of telling lies, “testimony of the child’s ‘therapeutic mentor’ that the child lacked the ability to engage in ‘imagination play.’” The case was reversed on appeal.

The basic facts are as follows. “The only inculpatory evidence … was the testimony of the child, who was fifteen years old at the time of trial.” “When the child was twelve years old she lived next door to the defendant” (who was fifty-five years old at the time) and his girl friend. “According to the child, one night she went next door to babysit for” the children of the girl friend. “The defendant called her into a bedroom and sexually assaulted her.  “Much evidence was introduced” regarding the child’s troubled history. She was mildly mentally retarded and had bipolar disorder. “ Evidence was also introduced that the child had been raped by an older male cousin when she was seven or nine years old. She stated that she was at her aunt’s house” watching television with the cousin when he assaulted her.  The incident with the cousin traumatized the child. She started having flashbacks, in which upsetting thoughts of her cousin came to her involuntarily. She would ‘see him on the wall.’…. She started seeing counsellors and therapists to help her deal with the effects of this traumatic event…. After the alleged incident with the defendant, in her flashbacks she would see the defendant’s face on the wall instead of her cousin’s.”

At trial, the child’s therapeutic mentor, Jill Larson, testifying as the first complaint witness, stated, “over objection, … that the child looks at the world ‘in a very black-and-white … manner.’” Later, again over objection, “Larson … testified that the child had difficulty ‘engaging in play.’…. Larson then explained that the child ‘struggled with imagination play….’ She described an outing to ‘Plaster Fun Time,’ where the child was given ‘a scenario of being princesses’ and ‘had to pretend that we were painting a castle and we had to slay the dragon. And the child really got frustrated because she wasn’t able to really higher-order think….’ At this point, the judge sustained defense counsel’s objection and forcefully instructed the jury to “‘disregard the last part of the answer about inability to engage in a higher-order thinking.’ Redirected to describe the incident at Plaster Fun Time, Larson resumed her testimony, stating that the child ‘became upset when she wasn’t able to participate like the other children who were being able to pretend that they were princesses and being able to come up with characters and name their dragons and she wasn’t able to make a story line.’” In closing argument, “defense counsel argued that the jury should discredit the child’s testimony because ‘her story about the defendant was too close to her story about her cousin.’” “The prosecutor countered” by arguing to the jury that the child was “‘not intelligent enough, … not sophisticated enough to perpetuate a cold, calculating fabrication.’” In its decision, the Appeals Court ruled that “evidence that the child was unable to engage in imaginative play, or that she got upset because she was unable to pretend to be a princess or slay a dragon at Plaster Fun Time, should not have been admitted.” The Court opined that “Larson’s testimony obviously was not probative of anything that occurred between the child and the defendant.” Rather, it pertained to “an attenuated collateral matter.” The defendant’s “defense was that the child used the details of the rape by her cousin to accuse the defendant … as a product of trauma and confusion. The defendant did not suggest that the child engaged in an imaginative exercise to come up with her accusations against him…. Evidence demonstrating the child’s inability to engage in imaginative play had no bearing on the defendant’s claim that the child was confusing or conflating her real life experiences.” “Thus, the Plaster Fun Time incident was relevant only for an improper purpose: to suggest to the jury that the child was incapable of lying and therefore must have been telling the truth. A reasonable juror hearing” Larson’s testimony “could think that the therapist was implicitly vouching for the child’s credibility.” However, “vouching by a witness for the credibility of another witness, whether explicitly or implicitly, is impermissible.”

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