A basic principal applicable to all jury trials, including in criminal cases, is that the jury is to determine what testimony to believe and to decide the facts. How this principal applies in a jury trial involving sexual abuse of a minor was explored by Maryland’s highest court in a recent case called James Adam Fallin v. State of Maryland.
The majority opinion indicates that Fallin was charged with several counts of child abuse in the inappropriate touching of his young daughter. Under Maryland law, testimony regarding out of court of statements made by an alleged victim of child abuse under age 13 may be admissible under certain circumstances: the child must testify, the statements must have been made to a member of certain professions, and the statements must have “particularized guarantees of trustworthiness.” The professionals who may be allowed to testify to such statements include physicians, psychologists, social workers, licensed counselors, and educators.
In this case, the minor victim testified to two episodes when her father touched her inappropriately. The child’s mother and grandmother also testified that she reported these events. The State then called a licensed counselor who performed four “forensic interviews” of the child victim. Over objection, the witness was allowed to testify to her training in how to detect signs of fabrication of a story by a child, and was qualified as an expert in child abuse disclosure and clinical counseling. The counselor then testified that the child victim in the four interviews did not display any signs of fabrication in describing two episodes of abuse by her father. The jury convicted the defendant of three charges arising from one of the alleged events.
The majority in the Court of Appeals determined that this testimony from the counselor should not have been admitted, and reversed the case for a new trial. They noted that “the credibility of a witness and the weight to be accorded the witnesses’ testimony are solely within the province of the jury.” Allowing the counselor to say she saw no signs of fabrication by the child, they held, was equivalent to saying the child’s testimony was the truth. The majority noted that testimony about lie detectors is not admitted, and such expert testimony would be equivalent to allowing polygraph evidence.
Two judges dissented, arguing that the counselor did not testify that the child’s testimony was truthful, only that to her trained eye she saw no signs of fabricating her story. This illustrates how important the Maryland appellate Courts view the jury’s role in weighing the believability of witnesses, even in difficult cases such as child abuse prosecutions.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.