Trial Lawyers’ Use and Deficient Treatment of Vouching Testimony Warrants New Trial for Convicted Sex Offender

Posted on: August 22nd, 2017


Per a recent Iowa Court of Appeals decision, a convicted sex offender is afforded opportunity for a new trial because the prosecutor used inappropriate vouching testimony, and his defense counsel failed to object to the same.

In State v. Gillson, No. 15-2045 (Iowa Ct. App. May 17, 2017), Chad Gillson was convicted of third degree sexual abuse and incest.  At trial, the prosecutor called three witness (the investigating officer, the forensic interviewer, and a child psychologist) who provided testimony regarding the credibility of the victim. Gillson appealed his conviction, claiming that his defense counsel was ineffective for failing to object to the vouching testimony. The Iowa Court of Appeals reversed the conviction and ordered a new trial, holding that the testimony was indeed vouching, that defense counsel should have objected, and that the testimony prejudiced the outcome of the trial.

The Iowa Court of Appeals noted there is a “very thin line” between opinion evidence that helps the jury determine credibility, and outright vouching.  The testimony in this case crossed that line. Indeed, the Court’s discussion provides good illustrations of what is considered to be “vouching”:

#1 – Investigating Officer.  First, the investigating officer testified that he was able to form an opinion on whether a sex crime occurred after only reviewing the victim’s video interview.  He collected no physical evidence, nor was a medical exam completed.  The Court found that “the officer’s testimony amounted to nothing more than a statement of his own belief that the complaining witness was credible.”

#2 – Forensic Interviewer. Next, the prosecutor asked the forensic interviewer to comment on whether she believed the allegations made by the complaining witness, asking “[d]o you believe that [the victim] … was describing [the alleged sex crime] from her own experience?” The forensic interviewer replied, “The details that she provided seemed as if she were speaking from her own experience.”

#3 – Child Psychologist. The complaining child psychologist testified that she believed the victim was suffering from post-traumatic stress disorder (“PTSD”) stemming from sexual abuse.  The prosecutor asked if the psychologist found “a traumatic sex act or other act that was causing the PTSD,” to which the psychologist replied “yeah,” adding later that the victim’s mother shared details of what had happened, and that during her treatment of the victim she affirmed that the victim was sexually assaulted by Gillson.

#4 – Closing Statements. During closing statements, the prosecutor referred to the above testimony and the credibility of the victim, stating “[t]he testimony of [the victim] was very credible. She presented herself as a witness very well. Her descriptions of what happened have been supported by the other witnesses.”

The Court of Appeals found that the cumulative effect of this inappropriate testimony prejudiced the outcome of the trial.  It is noteworthy that the State’s case depended heavily on the credibility of its witnesses, making the failure to object all the more prejudicial to the outcome of the trial.

Experienced trial lawyers appreciate that Iowa law prohibits witnesses from offering opinion testimony that vouches or bolsters the credibility of a witness.  It is up to the jury to decide whether a witness is credible, not other witnesses (including experts).  Failing to object to such testimony can have serious consequences.

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