SUMMARY: While “expert opinion testimony” regarding the credibility of witness statements should be excluded, in this case, the officer’s statement, “read in context,” was not to vouch for the credibility of a witness, but simply explained her departure from the standard interview form, and thus was a harmless error. Further, providing the minor witness with a “less formal and intimidating” atmosphere in which to testify is within the discretion of the district court and “absent evidence to the contrary, it is presumed that” the jury followed the judge’s instruction that the minor witness’s “testimony be treated the same as the testimony of any other witness.”
David Archie was convicted of “first degree sexual assault on a child and one count of incest in connection with the sexual abuse of Archie’s 6-year-old stepdaughter,” D.W. Archie appeals and assigns that the district court erred in “permitting [Officer] Hager to testify that she believed D.W. to be telling the truth during Hager’s interview of D.W…[and] introducing D.W. to the jury and directing D.W. to identify Archie in the presence of the jury,” among other errors.
During the trial, Officer Hager, a member of the family crimes unit of the Lincoln Police Department, “testified at length about the procedures used to investigate family crimes and interview children.” Hager testified that she “did not have any concerns that D.W. did not understand the difference between the truth and a lie.” She further testified that during her interview with D.W. she did deviate from the standard interviewing tools by skipping the “’body part inventory’” and the “truth-or-lie ceremony.” The Court rejected Archie’s claim that Officer Hager gave “improper testimony as to the credibility of another witness” and distinguished prior cases.
The Court found that Officer Hager “did not purport to offer an expert opinion as to D.W.’s credibility.” The direct examination line of questioning, asking “whether Hager had concerns regarding D.W.’s ability to ‘understand the difference between the truth and a lie’” was proper. Hager’s statement during redirect, that “she did not have any concerns that D.W. wasn’t telling [her] the truth” was not proper. However, after reviewing the entire record, the Court determined that “Hager’s statement did not materially influence the jury in a verdict adverse to the defendant…[and] any error in permitting Hager’s statement on redirect examination was harmless beyond a reasonable doubt.” The Court concluded that “read in context, the effect of Hager’s single statement was not to vouch for the credibility of a witness, but simply to explain why she departed from the standard interview form in her interview of D.W.”
Before the juvenile testified at Archie’s trial, the trial court determined that all of the key players in the courtroom would be pointed out to D.W. and their role briefly explained, unless there were any objections. Archie did not object to this procedure at the time of trial. However, in his appeal, he claimed that the “district court committed plain error when…the court introduced D.W. to the people in the courtroom and directed her to identify Archie.” Specifically, Archie asserted that the trial court’s “conduct ‘implicitly communicated that this child needed to be treated tenderly as a victim’ and this ‘validated’ the State’s theory that D.W. had been sexually assaulted.” The Court held that the trial court’s “procedure did not show undue favoritism towards D.W.” The district court “has wide discretion in fashioning procedures and modifying standard trial practices to accommodate the special needs of child witnesses.” The Court found that the trial court did not err in providing a “less formal and intimidating” environment for the juvenile’s testimony. The trial court also instructed the jury to treat the juvenile’s testimony in the same manner as any other witness. The Court held that there was no evidence to suggest that this instruction was not followed by the jury. Thus, there was “no plain error apparent in the court’s procedure.”