Coaching a Child Victim

Texas courts have routinely held that an expert witness, such as a child psychologist, may not offer an opinion about the truth of a certain child victim's specific allegations or about the truth of child victim allegations in general. But they haven't shut that door completely.

A couple of weeks ago, the 7th District Court of Appeals (Amarillo) reaffirmed the legal principle that:

Expert testimony that a child did not exhibit indications of coaching or manipulation [does] not to constitute an opinion on the child's truthfulness. 

In Cantu v. State, one of the defense theories was that the child victim had been coached by her mother to make false allegations against Appellant. To counter this theory, the State brought an experienced child interviewer from the Advocacy Center to testify that in her expert opinion, the child victim in this case did not exhibit any "red flags" that would indicate that she had been coached or manipulated. The State was careful not to elicit testimony that the victim was being truthful and thus, the conviction was affirmed on appeal.

To me, this is still an area ripe for objections at trial and a special inclusion in the jury charge. You may get a judge that will exclude it. Okay, probably not, but it's worth a shot. While most lawyers can see the technical difference between an opinion on truthfulness and an opinion on coaching, many jurors will not. 

You can read the opinion here.

80 Percent of Child Victims Recant Sexual Assault If Unsupported By Mother

Chavez v. State

In this case, a child (12 year-old girl) and her mother initially reported (and testified at a preliminary hearing or in a recorded interview) that Appellant sexually assaulted the child on numerous occasions.  Appellant also admitted to the assault during an interview with an investigator, which was admitted at trial.  During the trial, however, the mother recanted her previous testimony, stating that she was simply trying to get back at her husband for cheating on her.  The child victim followed her mother's lead and also recanted, stating that she and her mother made it all up.  The State then brought an expert of child victims (the Program Director for the Children's Advocacy Center in Midland) who testified over defense objection that:

if a child who has made an outcry of sexual abuse has an unsupportive moter, there is about an eighty percent chance that the child will recant that outcry.

Using the prior recorded statements of the Appellant, the mother, and the child victim, the jury convicted Appellant and sentenced him to 14 years confinement and a $7,000 fine.  The 11th Court affirmed the case on appeal, holding that:

[The expert] did not offer a direct opinion that L.C. was truthful in her initial outcry of sexual abuse or that L.C. belonged to a class of persons that was truthful or worthy of belief.  Nor did [the expert] offer testimony that L.C. was not truthful in her trial testimony. Instead, [the expert] testified about the behavioral characteristics of children whose mothers do not support their outcries of sexual abuse. Maria did not support L.C.’s outcry of sexual abuse. [The expert] said that, in such cases, there is about an eighty percent chance that a child complainant will recant. [The expert]’s testimony was admissible to assist the jury in assessing L.C.’s testimony. The trial court did not abuse its discretion in denying appellant’s motion for mistrial.

Mineola Swingers Cases "Rife with Error"

Last week the 14th District Court of Appeals (Houston) released three opinions in the "Mineola Swingers" cases.  These cases involved three co-defendants who were convicted of child sexual abuse and organized crime for teaching children how to engage in sexual conduct and then taking the children to perform sexual acts publicly in front of a Swingers club.  Sick, I know.  So thought the trial court, because, as the 14th Court points out:

the trial court adopted ad hoc evidentiary rules that operated to assist the State in proving its case, while impeding [the defendant's] ability to defend himself.

Of the three cases released last week, Mayo v. State was modified and affirmed, while Kelly v. State and Pittman v. State were reversed and remanded.  Some of the pertinent reasons for each decision are contained below.

Mayo v. State -- Appellate decision hinged not on the evidence adduced at trial or the State's method of proving the case, but rather on a jury instruction and the a cumulation of sentences issue.  In giving a venue instruction regarding the sufficiency of proof, the trial court relied on previaling Texas caselaw rather than statute.  The CCA, however, held in 2003 that "Texas courts are forbidden from instructing the jury on any presumption or evidentiary sufficiency rule that does not have a statutory basis."  Brown v. State, 122 S.W.3d 794 (Tex. Crim. App. 2003).  The appellate court found this error to be harmless.  What the appellate court did not find harmless, however, was the trial court's ordering of appellant's convictions for child sexual abuse and organized crime to run consecutively.  Noting that "Texas Penal Code section 3.03 unambiguously provides that only offenses specifically enumerated in subsection (b) may be ordered to run consecutively" and "organized crime is not one of the enumerated offenses,"  the appellate court modified the judgment to reflect "that appellant's life sentence for engaging in organized criminal activity shall run concurrently with her two consecutive twenty-year sentences for sexual performance of a child."

Kelly v. State -- To summarize this case in a few lines, the appellate court stated:

Although the evidence is legally sufficient to support appellat's conviction, the record is rife with error.  Many of these errors did affect appellant's substantial rights.  Therefore we reverse and remand for a new trial.

Of appellant's 43 issues presented on appeal, here are some of the highlights for which the Court reversed the case:

• The trial court denied the defendant the opportunity to present a meaningful defense by preventing him from pursuing the trial theory that the child victims' foster parents, who had recently been accused of child sexual abuse in CA, coached the victims to lie against the defendant in order to shift the blame from the foster parents.
• The trial court improperly allowed the State to introduce evidence that the 2 co-defendants were convicted and sentenced to life in prison for their involvement in the sex sting.
• The trial court allowed a mountain of hearsay statements of the outcry witness through an investigator who recounted the statements as fact even though he was not present for any of the statements.
• The State's witness on "child grooming" was not an expert and should not have been allowed to testify as such.

These errors (and more) contributed to the Court's reversing and remanding the case for a new trial.  Perhaps next time around the trial court will simply conduct the trial within the confines of acceptable trial practice and evidentiary rules, because, as the Court noticed, "the evidence [was] legally sufficient to support appellant's conviction."  I'm sure the Court could have engaged in some mental gymnastics to uphold this conviction, but it decided to require a cleaner record from the trial court.  Either way, this decision signals small shift toward maintaining a legal and respectable justice system in Texas.

Pittman v. State -- The Court reversed and remanded due to the trial court's abuse of discretion in allowing the State to introduce numerous extraneous offenses (drug use, sexual acts with other children, etc.) which were highly prejudicial when appellant was charged with sexual abuse of only one child.  In reversing the conviction, the Court stated:

Had the State tried appellant only for the offense with which he was charged, aggravated sexual assault of a child, it might have convicted him of that offense. Unfortunately, in this case, the trial court permitted the State to try appellant for being a criminal generally, rather than for the offense for which he was indicted. In fact, he was tried for being the worst sort of criminal: a child predator who engages in an organized and ongoing scheme with other pedophiles to sexually abuse young children.

It appears the State has some work left to do in these cases.