recognizing that a “a direct opinion as to the truthfulness of a witness ‘crosses the line’ . . . because it does more than ‘assist the trier of fact to understand the evidence or to determine a fact in issue’; it decides an issue for the jury.”
How later courts described this case
- recognizing that a “a direct opinion as to the truthfulness of a witness ‘crosses the line’ . . . because it does more than ‘assist the trier of fact to understand the evidence or to determine a fact in issue’; it decides an issue for the jury.”
- holding that a pediatric doctor was not allowed to testify that she had seen very few cases where the child was not actually telling the truth in her experience dealing with abused children
- stating that allowing experts to testify to credibility or trustfulness, or the lack thereof, would in most cases fall short of expert knowledge that >will assist the trier of fact.=@
- noting that Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993), held that expert’s testimony identifying certain behavioral characteristics exhibited by sexually abused children, and that complainant’s behavior was consistent with those behavioral characteristics, was relevant and admissible
Written by the judges who cited it.
The opinion
CAMPBELL, Judge,
dissenting.
The Third Court of Appeals held in this case that the complained-of testimony of Dr. Nauert was not admissible under Texas Rule of Criminal Evidence 702 because the child complainant had not been impeached at the time of the complained-of testimony. Yount v. State, 808 S.W.2d 633, 636 (Tex.App.— Austin 1991). The court of appeals, relying upon our decision in Duckett v. State, 797 S.W.2d 906 (Tex.Crim.App.1990), reasoned that the State may not “bolster” its own witnesses unless they have first been impeached on cross-examination. Yount v. State, 808 S.W.2d, at 636 . After the court of appeals’ opinion was handed down, however, we held in a similar case that relevant expert testimony that has the effect of “bolstering” a witness is admissible under Rule 702 even if the witness has not been impeached. Cohn v. State, 849 S.W.2d 817, 818-820 (Tex.Crim. App.1993). We further explained in Cohn that “bolstering,” as an evidentiary concept, barely survived the promulgation of the Texas Rules of Criminal Evidence. Ibid. Indeed, three members of this Court expressed the view that a naked “bolstering” objection is no longer even tenable under the Rules. Id., at 821-822 (Campbell, J., concurring).
Since the court of appeals did not have the benefit of our decision in Cohn , we should follow our usual procedure and summarily vacate the judgment of the court of appeals and remand the case to that court for reconsideration in light of Cohn . Not only is that what we usually do, it is what a discretionary reviewing court should do. To the majority’s failure to vacate and remand for reconsideration, I dissent.
McCORMICK, P.J., and WHITE and MEYERS, JJ., join.