discussing pretext call made by eleven-year-old sexual assault victim to her abuser, despite the officer’s admission that they “‘kind of felt bad while [they] were doing it,’ but he believed that the pretext call ‘was necessary to try to get as much evidence as we could.’”
How later courts described this case
- discussing pretext call made by eleven-year-old sexual assault victim to her abuser, despite the officer’s admission that they “‘kind of felt bad while [they] were doing it,’ but he believed that the pretext call ‘was necessary to try to get as much evidence as we could.’”
- describing risk that "even a single vouching statement by a witness * * * with years of experience and training in the field of child abuse prevention, can be given considerable weight by the jury" (internal quotation marks omitted)
- concluding that the ends of justice do not weigh in favor of reversal in part because the error “was not particularly grave”
- “In determining whether any error was grave, we consider the likelihood that the error affected the outcome of the proceeding below.”
Written by the judges who cited it.
The opinion
ARMSTRONG, J.,
concurring.
Defendant contends that the trial court committed plain error by failing to strike sua sponte testimony by Detective McCourt that defendant believes impermissibly vouched for the credibility of J, the sodomy victim in this case. I am not persuaded that the testimony about which defendant complains necessarily vouched for J’s credibility, and, consequently, I would reject defendant’s assignment of error on the ground that the trial court was not required to strike the testimony sua sponte.
Vouching testimony is testimony in which a witness expresses a personal opinion about the credibility of another witness’s statements or testimony. It is well established that a trial court must strike vouching testimony sua sponte if it is given at trial. See, e.g., State v. Corkill, 262 Or App 543, 552 , 325 P3d 796 , rev den, 355 Or 751 (2014) (summarizing cases). However, that requirement does not extend to testimony that is capable of being understood not to express a personal opinion about the credibility of another witness’s statements or testimony. See, e.g., State v. Wilson, 266 Or App 481, 491-93 , 337 P3d 837 (2014), rev den, 356 Or 837 (2015).
Here, the testimony by McCourt can be understood not to express an opinion about the credibility of J’s statements and testimony. McCourt was asked on direct examination about the purpose of a meeting that he and the prosecutors had had with J shortly before trial:
“Q. * * * What was the purpose of those visits?
“A. We like to make — We like to talk to the witness again before the trial just to see, make sure they’re going to be able to — if they’re going to be able to come testify in a court, make sure they still remember, or if they have — if *940 they decide — Let’s say that they were lying to us or they told us a fib, we like to find that out before we get to this point so we can — we don’t have to waste your time and the court’s time. And we talked to her on the Thursday of last week.
“Q. Okay. And if there had been any inconsistencies or any problems, wouldn’t those have needed to be reported to all parties?
“A. Yes.
“Q. And you did not write any such a report or * * * note any such inconsistencies at any time?
“A. I did not.”
(Emphasis added.)
As the emphasized portion of the testimony indicates, McCourt could be understood to be describing a process designed, among other things, to give witnesses the opportunity to recant their earlier statements, because witnesses sometimes decide to acknowledge to the police and prosecutors that they had lied in making them. In turn, McCourt’s testimony could be understood not to express McCourt’s personal opinion about whether J had been truthful in making the statements that she did. Hence, the trial court was not required to strike the testimony sua sponte.
Nakamoto, Egan, and Flynn, JJ., join in this concurrence.