State v. Brown

WEISBERGER, Chief Justice,

with whom Justice SHEA (Ret.) joins, dissenting.

In dissenting I respectfully point out that the history of liberty has largely been the history of the observance of procedural safeguards. McNabb v. United States, 318 U.S. *482 332, 347 , 63 S.Ct. 608, 616 , 87 L.Ed. 819, 827-28 (1943) (Frankfurter, J.). I recognize that the defendant in this case, Danny L. Brown (Brown), was accused of a heinous crime. After conviction he was sentenced to a term of forty years’ imprisonment on each of the six counts charged. It is of paramount importance that a person accused of such a crime be afforded all the procedural safeguards that are guaranteed by the State and the Federal Constitutions as well as our procedural rules and case law interpreting these rules.

I believe that defendant was denied procedural safeguards and information that may well have had an important bearing on his ability to prepare a defense. I would hold that three of the four issues raised by defendant warrant reversal. Each of these issues will be discussed in the order in which they are addressed by the majority. Such other facts as are pertinent to the discussion of each issue will be provided.

Confrontation Clause

All the issues raised by defendant fall within the constitutional guarantees embodied in the confrontation clause of the Sixth Amendment to the United States Constitution made applicable to the states through the due process clause of the Fourteenth Amendment, and its state analogue, article 1, section 10, of the Rhode Island Constitution.

The Sixth Amendment to the United States Constitution guarantees that “the accused shall enjoy the right * * * to be confronted with the witnesses against him.” Similarly our Declaration of Rights, article 1, section 10, of the Rhode Island Constitution provides, “In all criminal prosecutions, accused persons shall enjoy the right * * * to be confronted with the witnesses against them.”

Pretrial Discovery Error

Brown’s first claim of error arose during the November 8, 1993 pretrial hearing on defendant’s motion to compel production of, among other things, “[t]he names and addresses of any and all pediatricians or medical doctors from whom [Emily] may have received treatment or been examined from the period of May of 1983 through January of 1987.” The defendant explained his basis for requesting this information as follows:

“Your Honor, the reason for that request, your Honor, is that the alleged acts are to include that of anal intercourse and also sexual penetration. The child is supposed to have been between eight and ten years old at the time of this particular incident. Clearly, there would be medical evidence which would show up through a medical examination. That is the basis for my request * * * relative to the pediatricians.”

The hearing justice expressed her belief that defendant’s proffer was a “nice request” but denied it nevertheless. Brown asserts that this denial was error. With this contention the dissenting justices agree.

Questions concerning the relevancy of evidence are left to the sound discretion of the trial justice, State v. Kholi 672 A.2d 429 (R.I.1996), who must “foster a search for the truth by giving reasonable latitude to the purpose of cross-examination while preserving a fair and orderly trial.” Id. at 437 (quoting State v. Bennett, 122 R.I. 276, 278 , 405 A.2d 1181, 1183 (1979)). That the law entrusts a trial justice with a considerable degree of discretion does not permit him or her to decline to utilize the objective analysis the law commands. See United States v. Burr, 25 F. Cas. 30, 35 (C.C.D.Va.1807) (No. 14692D) (Marshall, C.J.) (“[A] motion to [the discretion of the court] is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles”).

The majority correctly reiterates the general rule that the confrontation clause is fundamentally a trial right and should not be confused with a “constitutionally compelled rule of pretrial discovery.” Pennsylvania v. Ritchie, 480 U.S. 39, 52 , 107 S.Ct. 989, 999 , 94 L,Ed.2d 40, 54 (1987). Yet the principle will compel a state to produce material when the failure to do so would improperly restrict the types of questions defense counsel may ask during cross-examination. State v. Kelly, 554 A.2d 632, 635 (R.I.1989). Certainly “[t]he mere possibility [without more] that an item of undisclosed information might have helped the defense * * * does not establish ‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-10 , 96 S.Ct. 2392, 2400 , 49 L.Ed.2d 342, 353 *483 (1976). Instead a defendant “must at least make some plausible showing of how [the requested material] would have been both material and favorable to his defense.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 , 102 S.Ct. 3440, 3446 , 73 L.Ed.2d 1193, 1202 (1982). The defendant’s request in the instant ease fell squarely within the parameters of these principles.

The state relies too heavily on the fact that in denying defendant’s request, the motion justice’s exact words were “I’m not going to grant it [Brown’s request] at this point.” Apparently the state’s argument, unfortunately sanctioned by the court today, is that because the hearing justice left the possibility of discovery open (“at this point”), defendant cannot now complain because he failed to repeat his request at some later date. 15 This implicit assertion that defendant’s failure to request again that which had been once denied him constituted waiver of the issue and precludes him from complaining now is without support in law and unpersuasive in concept.

To be sure, a more prudent strategy might have been for defendant to have pressed his discovery requirements at or before trial to a different justice and thus avoid the instant challenge. Counsel for defendant may have decided that it would have been futile to revisit the issue since the factual circumstances had not changed from the time it was first denied by the motion justice. In respect to this possibility I decline to speculate. Presentation of the same motion in the absence of a change of circumstances or an expansion of the record would probably have been precluded by the law-of-the-case doctrine. See Payne v. Superior Court, 78 R.I. 177, 183-85 , 80 A.2d 159, 163-64 (1951). 16 I am mindful that the state need not hold an accused’s hand in order to ensure that he or she takes advantage of each and every procedural safeguard offered under our legal system. The constitutional guarantees promised in both the Federal and the State Constitutions are, after all, of the negative variety. That is, they forbid the state or federal government from denying to the accused that bundle of rights we refer to collectively as “due process.” See DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 195 , 109 S.Ct. 998, 1002-04 , 103 L.Ed.2d 249, 258-59 (1989) (discussing “negative” quality of substantive due-process rights). The proper provision of those rights lies somewhere between denying outright access to the right and, conversely, holding the state to a duty of affirmatively ensuring that the accused avails him or herself of those protections. 17 Accordingly I decline to hold that defendant waived his right to contest the motion justice’s denial, however equivocal, of his reasonable request for discovery.

In State v. Kelly, 554 A.2d 632 (R.I.1989), the defendant (Kelly) appealed his conviction of first-degree sexual assault. Kelly claimed that the trial justice’s denial of his request to review the victim’s Department of Children, Youth and Families (DCYF) records consti *484 tuted error. Id. at 634 . We held that although Kelly had no cognizable entitlement to the records pursuant to Rule 16 of the Superior Court Rules of Criminal Procedure, he did enjoy such a right under both article 1, section 10, of the Rhode Island Constitution and the Sixth Amendment to the United States Constitution. 554 A.2d at 635 . We explained that even though the DCYF records at issue were protected from disclosure by statute, G.L.1956 § 42-72-8, when an accused’s constitutionally protected right to confront witnesses is in jeopardy, the statute must yield. 554 A,2d at 636 . Similarly, in the instant ease any confidentiality relating to medical records must yield to the necessity of preparation for trial when the allegations in the indictment place the physical condition of the complaining witness in issue. See Bartlett v. Danti, 503 A.2d 515 (R.I.1986).

I believe that defendant’s request was both reasonable and relevant, given the facts as established at the time of the motion justice’s denial. Brown sought only the identity of those physicians who may have examined the complainant during the years in question, information that is clearly not subject to protection from disclosure by law. 18 Whether the state had such information in its possession, or any underlying records, is unclear from the record. I can discern, and the motion justice offered, no adequate explanation for denying this request. Defense counsel’s stated rationale for desiring this information was more than sufficient to establish its relevancy.

The majority suggests that the right of confrontation arises only upon the commencement of trial. Although this statement may as a general rule have validity, it is scarcely exhaustive. In the case at bar, counsel for defendant sought in a pretrial motion to obtain information concerning the identity of pediatricians or medical doctors who may have treated Emily from May 1983 through January 1987. It is obvious beyond doubt that providing such information after or immediately before trial had begun would have been useless. Such a request could certainly have led to the discovery of relevant evidence but not without considerable preparation that might include the issuance of subpoenas pursuant to Rule 17(c) of the Superior Court Rules of Criminal Procedure, the interviewing of potential medical witnesses, and/or the taking of depositions pursuant to Rule 15 in the event that one or more medical witnesses might be unable to attend the trial.

This type of preparatory activity would be impossible to accomplish once the trial had begun without requiring an extensive continuance to permit the information to be sifted and placed in such a posture as to be susceptible of use at trial. Consequently the request made well in advance of trial was a prudent act and indeed the only method by which the information, if relevant, could have been utilized at trial.

The confrontation clause must be invoked at a time and in circumstances when its invocation will be meaningful. The information defendant sought was potentially relevant to the critical issue in the ease, namely, Emily’s credibility as well as that of her mother. There is no doubt that defendant’s request was fully ripe when made, a point made clear by defense counsel’s proffer, and there was no justification for denying the request or for delaying a decision.

In the event that the motion justice considered the request to be overbroad, she might have modified it to come within the bounds of potential relevance. However, I believe that denying it out of hand deprived defendant of the opportunity to explore a potential source of relevant evidence. It should be noted that defendant never had the burden of proof or persuasion. Evidence that may raise a reasonable doubt in the minds of the jurors can be vital to an effective defense.

The majority suggests the appropriate remedy for such an error would be to remand for a hearing concerning whether the denial of this request for the names of potential witnesses was prejudicial. I would encourage the majority to issue such an order. *485 I must note, however, that since I believe that a new trial is warranted in respect to two other issues set forth below, such remand would not accord defendant the full relief to which I believe he is entitled.

Cross Examination of Pastor Janikuak.

Brown alleges that the trial justice erred in curtailing the cross-examination of Pastor Elizabeth Janikuak (Janikuak). Brown, who has always maintained his innocence, endeavored during the cross-examination of Janikuak to question her regarding the construction of a new church budding that was erected in Smithfield, Rhode Island, in 1991. Brown was instrumental in securing the services of several of the construction contractors employed by Janikuak to build the new facility. One of the subcontractors engaged by defendant was his cousin, A1 Brown, who performed excavation work on the project. According to defendant’s proffer at trial, problems developed during the construction of the church, prompting A1 Brown to file a civil suit and to impose a lien against the church, seeking money damages for Janik-uak’s failure to pay certain costs.

Defense counsel asked Janikuak whether a man named A1 Brown had been involved in the construction of the new church facility, to which question Janikuak replied, “No, he didn’t. No way.” The trial justice refused to allow defendant to pursue this line of questioning, reasoning that because it was A1 Brown, not Danny Brown, who had sued the church, the specter of bias was too attenuated to warrant exploration. As a result defendant was unable, to probe possible bias harbored against defendant by Janikuak because of the lawsuit and/or defendant’s instrumental role in the troublesome project. Moreover, Janikuak’s emphatically negative response to the question posed may have proven detrimental to her credibility had defendant been able to pursue this line of inquiry and to demonstrate that Janikuak had not been candid about A1 Brown’s involvement in the construction of the new church.

In addressing defendant’s confrontation argument, we feel that it is important to be mindful of the small universe of witnesses and their respective testimony in this case. Janikuak, though not involved with either the Browns or the Does during the period of the alleged sexual abuse, evolved into a central, if not the crucial, witness for the prosecution. If the trial testimony of Brown and Emily cancel each other out (and there is no dispute that there were no eyewitnesses to the alleged abuse) then Janikuak becomes pivotal to the jury’s understanding of the facts and the jury’s reconciliation of the discrepancies embedded in the testimony of the other principals. After all, it was Janikuak, a purportedly disinterested witness, who, (1) corroborated the most crucial testimony of both of the state’s primary witnesses, Emily and Doe, (2) was the original recipient of Emily’s trust, and (3) testified that Brown had acknowledged some contact between Emily and himself.

A defendant’s right to cross-examine the state’s witnesses is a “primary interest” secured by the confrontation clause under both the Federal and the State Constitutions. State v. Freeman, 473 A.2d 1149, 1153 (R.I.1984) (quoting Davis v. Alaska, 415 U.S. 308, 315-16 , 94 S.Ct. 1105, 1110 , 39 L.Ed.2d 347, 353 (1974)). The United States Supreme Court has characterized this right as follows:

“The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his [or her] testimony.’ * * * [T]he exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Davis, 415 U.S. at 316-17 , 94 S.Ct. at 1110 , 39 L.Ed.2d at 354 .

We have liberally construed the mandate of Davis in a manner consistent with our belief that “[t]he right of confrontation * * * [requires] that a jury be allowed to evaluate any motive that a witness may have for testifying.” State v. Olsen, 610 A.2d 1099, 1102 (R.I.1992) (quoting State v. Beaumier, 480 A.2d 1367, 1372 (R.I.1984)). (Emphasis added.) Because the very nature of cross-examination is “necessarily exploratory,” “[c]ounsel often cannot know in advance what pertinent facts may be elicited.” Alford v. United States, 282 U.S. 687, 692 , 51 S.Ct. 218, 219 , 75 L.Ed. 624, 628 (1931).

*486 Cross-examination has been described as the “greatest legal engine ever invented for the discovery of truth.” 5 J. Wigmore, Evidence § 1367 at 32 (Chadbourn rev. 1974). Without a doubt an important component of this engine is the opportunity to impeach a witness by showing “that a witness has bias or prejudice toward one of the parties or has a personal interest in the outcome of the ease which can be expected to color his [or her] testimony and undermine its reliability.” In re Douglas L., 625 A.2d 1357, 1360 (R.I.1993) (quoting State v. Eckhart, 117 R.I. 431, 435 , 367 A.2d 1073, 1075 (1977)). “[T]he scope of cross-examination, even for the purpose of exposing bias, is not unlimited,” State v. Doctor, 690 A.2d 321, 327 (R.I.1997) (quoting State v. Veluzat, 578 A.2d 93, 95 (R.I.1990)), but, instead is left to the sound discretion of the trial justice. State v. Benevides, 420 A.2d 65, 69 (R.I.1980). Nonetheless, the right itself may not be given or withheld at the pleasure of the trial justice. State v. DeBarros, 441 A.2d 549, 552 (R.I.1982). “[The] discretionary authority to limit cross-examination comes into play [only] after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment.” Id. (quoting Springer v. United States, 388 A.2d 846, 855 (D.C.App.1978)). We have previously declared that cross-examination sufficient to satisfy the constitutional guarantee requires the trial justice to afford the accused “reasonable latitude * * * to establish or reveal possible bias, prejudice, or ulterior motives as they may relate to the case being tried.” Doctor, 690 A.2d at 327 (quoting State v. Anthony, 422 A.2d 921, 924 (R.I.1980); see Chambers v. Mississippi, 410 U.S. 284, 295 , 93 S.Ct. 1038, 1046 , 35 L.Ed.2d 297, 309 (1973) (quoting Berger v. California, 393 U.S. 314, 315 , 89 S.Ct. 540, 541 , 21 L.Ed.2d 508, 510 (1969)), and explaining that denial or significant diminution of cross-examination “calls into question the ultimate ‘integrity of the fact-finding process’ ”).

Applying these time-tested principles to the instant case leads inevitably to the conclusion that Brown’s constitutionally protected interest in confronting adverse witnesses was thwarted by the trial justice’s premature intervention at the behest of the prosecution. First, in respect to Janikuak’s credibility, had defendant been able to confront her with documentary evidence that A1 Brown had in fact been associated with the construction project, it may have cast a less hospitable light on the totality of her severely damaging testimony. Second, it is beyond debate that the pendency of civil litigation between a witness and a party is relevant to show bias. DeBarros, 441 A.2d at 551-52 ; Commonwealth v. Maffei, 19 Mass.App.Ct. 924 , 471 N.E.2d 1364, 1365 (1984).

Although Brown himself was not a named party to the civil action, the fact that he was instrumental in assembling the construction team and was related to plaintiff who was suing Janikuak and her church merited at least some opportunity to probe the issue. See, e.g., Spoerri v. State, 561 So.2d 604, 606 (Fla.Dist.Ct.App.1990) (reversing child-sexual-assault conviction when the defendant was restricted in cross-examining victim’s mother who was being evicted by her landlord, the defendant’s employer). The trial justice’s dismissal of defense counsel’s proffer without such an opportunity denied Brown this proper avenue of questioning. 19

The majority suggests that counsel for the defense did not present to the trial justice an adequate basis to pursue his cross-examination in respect to bias. Indeed, the majority cites State v. Brennan, 527 A.2d at 654, 657 (R.I.1987), for the proposition that “a fishing expedition on cross-examination may properly be brought to a halt when it becomes obvious that the pond is devoid of fish.” I must respectfully but vehemently disagree with the notion that there was any indication that this pond was “devoid of fish.” The only question that defense counsel was permitted to ask was whether A1 Brown had “acted in building” Janikuak’s church. After an em *487 phatically negative response to this question, defense counsel was precluded from further questioning even though he set forth in some detail, as quoted in the majority opinion, his reasons for exploring Janikuak’s potential bias. Thus in this case I cannot discern whether there were fish in the pond because defendant was not even permitted to cast his line. The fact that defendant was allowed to testify concerning the role of his cousin and the relationship between the cousin and Jan-ikuak is no substitute for effective cross-examination of Janikuak on this issue.

Denial of an accused’s right to cross-examine witnesses against him is subject to Chapman harmless-error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684 , 106 S.Ct. 1431, 1438 , 89 L.Ed.2d 674, 686 (1986); accord Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824, 828 , 17 L.Ed.2d 705, 710-11 (1967). Thus in order for this court to dismiss the trial justice’s error as harmless, we must conclude that “assuming * * * the damaging potential of the cross-examination were fully realized,” that error in precluding such examination was harmless beyond a reasonable doubt. Van Arsdall, 475 U.S. at 684 , 106 S.Ct. at 1438 , 89 L.Ed.2d at 686 ; see State v. Squillante, 622 A.2d 474, 479 (R.I.1993) (applying Van Arsdall factors to alleged denial of confrontation claim); State v. Manocchio, 523 A.2d 872, 874-75 (R.I.1987).

Writing for the Court in Van Arsdall , then-Associate Justice Rehnquist enumerated factors a reviewing court could consider in determining the magnitude of the error: (1) “the importance of the witness’ testimony in the prosecution’s case,” (2) “whether the testimony was cumulative,” (3) “the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points,” (4) “the extent of cross-examination otherwise permitted, and” (5) “the overall strength of the prosecution’s case.” Van Arsdall, 475 U.S. at 684 , 106 S.Ct. at 1438 , 89 L.Ed.2d at 686-87 .

Application of the above criteria to the curtailment of Brown’s opportunity to cross-examine Janikuak weighs against declaring the error harmless beyond a reasonable doubt. Janikuak’s testimony, and her credibility, were undeniably at the forefront of the jury’s determination of defendant’s guilt or innocence. The state’s ability to bear its burden of proof was borne in no small part thanks to the damaging testimony of Janik-uak. Her testimony was not duplicative or cumulative, nor was there corroborating evidence of her testimony save that of Doe. The majority’s rendition of this evidence could lead a reasonable reader to conclude that Danny Brown testified to the admission of sexual abuse. This was not the case. The defendant testified, just as he had related his version of events previously, that the only physical contact he had had with Emily was the innocent contact that she initiated. As indicated by the majority, see majority op., part II, the “two to three times” testimony came solely out of the mouth of Emily’s mother, Judy Doe, who claimed that defendant made such an admission to Dr. Richard Tanguay. It is critical, however, to note that nowhere in the vague testimony of the doctor was there any mention of such an admission by defendant. Indeed a reading of Dr. Tan-guay’s testimony clearly indicates that he had virtually no specific recollection of any admission by Danny Brown. The bulk of his testimony related to his experience with sexual-abuse cases in general rather than the case concerning which he purported to testify. Pastor Janikuak, then, was presented to the jury as a seemingly disinterested witness who did not fit defendant’s theory that Emily and Doe had concocted the allegations as retribution for Brown’s extramarital assignations and divorce of Doe. Consequently the trial justice’s restriction of this topic of cross-examination completely deprived Brown of his most persuasive basis for attacking this witness.

One can only speculate about the limitless possibilities the impact of Janikuak’s alleged bias may have had on the jury or its findings concerning defendant’s fate. The burden placed upon the state to prove each element of the crime beyond a reasonable doubt renders evidence of potential bias extremely significant since reasonable doubt may well be based upon the impeachment of the credibility of an important witness. Because “[a] reasonable jury might have received a significantly different impression of [Janikuak’s] *488 credibility had [Brown’s] counsel been permitted to pursue his proposed line of cross-examination,” see Van Arsdall, 475 U.S. at 680 , 106 S.Ct. at 1436 , 89 L.Ed.2d at 684 , I believe defendant is entitled to a new trial.

Bolstering Testimony of Pastor Janikuak

Brown’s next claim of error concerns Jan-ikuak’s testimony regarding her meeting with Emily in which Emily first divulged that her stepfather, Brown, had sexually abused her. In particular, defendant objects to the following:

“[Prosecutor]: Without telling us her words, did she inform you of any incidents that she had been involved in?

“[Defense Counsel]: Objection, your Hon- or.

“[The Court]: Just yes or no.

“[Janikuak]: Yes.

“[Prosecutor]: And—

“[The Court]: Overruled.

“[Prosecutor]: Upon learning this information, what was your reaction? What was your response?

“[Janikuak]: As to what she said to me? “[Prosecutor]: Yes, without saying what she said.

“[Janikuak]: 1 was very cautious to make sure that what she was telling me was the truth because we’re trained to be sure that just because someone makes an allegation does not mean it’s true.

“[Defense Counsel]: Objection, your Hon- or.

“[The Court]: Overruled.

“[Prosecutor]: And how did you go about doing that?

“[Janikuak]: I just said to her, ‘Do you realize the seriousness of your allegations?’ “[Prosecutor]: Did you then take any action?

“[Janikuak]: Uh-huh. I told her that she needed to, you know, continue to look at this aspect of the truthfulness of what she was saying, and that I would confront Danny Brown with what she said.” (Emphasis added.)

Later in her testimony Janikuak recalled defendant’s telling her of his claim that it was Emily who had inappropriately touched him.

“[Prosecutor]: What was your reaction to his saying this?

“[Janikuak]: I was shocked because I’m the mother of four children, and I can’t, if my children were to come to me and say that about their father, I mean, I would be appalled that my husband would tell me that my child of eight years old was the perpetrator. He’s 26 or 28.

“[Prosecutor]: What did you say to him? “[Janikuak]: I said, T can’t believe a 26 or 28 year old man would say that an eight year old child was the perpetrator.’ ”

The determination of the truthfulness or credibility of a witness lies within the exclusive province of the jury. State v. James, 557 A.2d 471, 473 (R.I.1989). Accordingly it is impermissible for a witness to offer an opinion concerning the veracity of another’s testimony. Id. Even when one witness does not literally state his or her opinion concerning the credibility of another witness, if the challenged testimony would have the same substantive effect, the testimony is inadmissible. State v. Haslam, 663 A.2d 902, 905 (R.I.1995). Such bolstering of a witness’s credibility, especially crucial when it is the complaining witness’s testimony that is being buttressed, invades the exclusive territory of the factfinder. Id. at 905-06 . Moreover, so-called bolstering testimony offered by one held in high esteem in the community may particularly influence the jury. See, e.g., State v. Desmarais, 479 A.2d 745, 748 (R.I.1984); State v. Nicoletti, 471 A.2d 613, 617 (R.I.1984) (acknowledging influential nature of police testimony); State v. Castore, 435 A.2d 321, 326 (R.I.1981) (recognizing that a doctor’s testimony would be accorded great weight by factfinder).

Allowing such testimony, or failing to admonish the jury to disregard it, creates a substantial risk that a defendant faced with such testimony will be deprived of a jury’s judgment on all those issues that the law commits to its determination. The risk is that the jurors might reasonably defer to the judgment of one with purportedly “actual” knowledge rather than rely solely on their *489 collective determination, restricted as it may necessarily be by the sometimes cloistering effect of our evidentiary rules. The trial justice’s error in failing to take steps to equalize the impermissible impact of Janik-uak’s vouching effectively allowed Janikuak to evaluate credibility, “and, in effect, to sit in the jury box and become the thirteenth juror.” Castore, 435 A.2d at 326 .

The majority suggests that if consideration is given to the entirety of Janikuak’s testimony it becomes clear that she never actually decided for herself who was telling the truth. What is important, however, is not what Jan-ikuak’s subjective conclusions may have been but rather what the jury might have reasonably concluded on the basis of the words spoken. Here it is clear that the bell was rung early in her testimony. First, she informed the jury of her acuity in divining truth. This was later compounded when she testified to telling defendant that she was “shocked” and “appalled” by his explanation of events and could not believe any man his age would tender such an excuse. Nothing about which Janikuak subsequently testified was sufficient to dilute this powerful vouching or erase it from the jury’s consideration.

With unerring twenty-twenty hindsight, the majority faults defense counsel for failing to make crystal clear to the trial justice that this objection rested upon the principle of bolstering. However, the very nature of Janikuak’s statement immediately preceding the objection made this issue so obvious that further clarification to the trial justice was scarcely required. It is further true, as the majority indicates, that a motion to strike would have been more appropriate than an objection. Such puristic analysis, though not without merit, may often be lost in the press of trial. A defendant’s right should not hang on such subtle distinctions. The majority bolsters its argument that defendant is not entitled to our review of this claim by pointing out that he failed to request a cautionary instruction after the trial justice had overruled his objection to the vouching testimony. This again grinds too fine a point; as we have explained in other similar circumstances, when such a request would be futile, as here, we have refrained from requiring such a request from a criminal defendant before according him or her access to meaningful appellate review. See, e.g., State v. Mead, 544 A.2d 1146, 1150 (R.I.1988).

In Haslam we vacated the defendant’s Superior Court conviction on various charges of child molestation in part because the trial justice had permitted the testimony of a sexual-abuse-recovery counselor (Swink) who treated the victim following the alleged abuse. The testimony elicited repeatedly alluded to the fact that Swink’s primary area of practice was sexual-abuse recovery. Has-lam, 663 A.2d at 905 . Also, the state elicited over defense objection that sexual-abuse recovery was indeed the purpose of the victim’s meetings with Swink. Id, at 904-05. We held that testimony to be prejudicial to the defendant; Swink had neither firsthand knowledge of the alleged molestation nor any opportunity to witness any interaction between the accused and the victim. Id. at 906 . The repeated references to sexual-abuse recovery, coupled with the testimony that counseling sessions between Swink and the victim had been ongoing for more than two years, could have led the jury logically to conclude that Swink obviously believed the victim’s allegation to be true. Id. Finally, we concluded that owing to the fact that the credibility, or lack thereof, was a crucial or even a paramount issue in the case, the allowance of Swink’s vouching testimony was reversible error. Id. at 906 ; see also State v. Miller, 679 A.2d 867, 873 (R.I.1996) (finding prejudicial error in a situation in which police officer’s vouching testimony was admitted in case where “the quantity and the quality of the evidence were closely balanced and credibility was of paramount importance”).

Applying the clear principles of Haslam to the instant appeal compels a like result. In neither case did the vouching nature of the testimony evolve into an outright endorsement of the victim’s veracity, but in both cases the effect was the same. Here as in Haslam the bolstering testimony came from a witness who would ordinarily enjoy a position of trust in the community. Here as in Haslam the jury could have been led to believe that the witness somehow possessed special talents for the discernment of truth: *490 (1) in Haslwm, the prejudicial testimony came from a professionally trained expert who dealt primarily with victims of sexual abuse and, therefore, would be proficient in determining whether someone had suffered from such trauma, (2) in the case at bar Pastor Janikuak testified that she had particular professional sensitivity to sexual abuse and training in assessing truth. Finally, in this case as in Haslam the veracity of the complaining witness was of paramount importance. Emily’s word stood alone as the state’s only evidence since there was no forensic evidence and, as is generally the case, no witnesses to, or in corroboration of, the child’s claims.

Conclusion

The pretrial and trial errors discussed above undermine confidence that the defendant’s conviction was the product of a constitutionally fair process. The constitutional protections afforded under the right of confrontation embody deeply entrenched beliefs that are central to our system of jurisprudence. Ours is, after all, an accusatorial system, not an inquisitorial one. These constitutional imperatives reflect our societal belief in procedures that ensure one who is accused of a crime, however heinous, a fair trial and a reasonable opportunity to defend against the prosecution’s evidence. The defendant received neither. For these reasons I respectfully dissent.

. The state’s brief on this issue, as well as the other issues raised by defendant, reveals an apparent dearth of legal precedent to support its position. In fact the state fails to produce any authority whatsoever that arguably supports its position, nor does it argue that the instant facts present an issue of first impression.

. I acknowledge the majority’s opinion that the law-of-the-case doctrine would not apply to these circumstances. I respectfully disagree. The majority suggests that the circumstances had changed sufficiently to warrant a revisitation of the issue as the law-of-the-case rule is a "flexible” one. I do not believe, however, that the mere passage of time (nine months in this case, which common experience teaches is a relatively short period in modem litigation practice), without more, amounts to the "clear alteration of the circumstances” upon which the majority relies, such that a reasonably pmdent attorney would feel justified in repetitioning the court. Further, as we point out below, making such a request at trial or on the eve of trial would have required a significant postponement of the case. Such information would have been useless within the framework of the trial itself.

.Although the majority may debate the worthiness of a particular discovery request based on the resemblance of a defendant’s demeanor to a bulldog or a potted plant (majority op., part IC), we believe the better reasoned analysis considers the appropriateness of a discovery request in light of the facts and circumstances of each particular case. The question of whether a request falls within some heretofore unannounced litigation timeline obfuscates the issue and avoids the constitutionally compelled inquiry, to wit, whether a defendant is entitled to or not entitled to the information sought.

. Perhaps the majority protests too much. The confidentiality argument raised for the first time by the majority is merely a distraction: Neither the state nor defendant claimed that such information would be entitled to the cloak of confidentiality.

. In Calci v. Brown, 95 R.I. 216, 220 , 186 A.2d 234, 236 (1962), this court held that a trial court may not properly require offers of proof concerning inquiries made for purposes of cross-examination except in extraordinary circumstances. The offer of proof at issue here was more than adequate to indicate that the subject matter was germane to the issue of bias. See State v. Doctor, 690 A.2d 321, 331-32 (R.I.1997) (Weisberger, C.J., concurring).