When the Prosecution Can (and Cannot) use Opinion Evidence about a Witness’ Truthfulness in a Maryland Criminal Trial

In any criminal jury trial, it is the job of the jury to determine whether or not the accused person is guilty beyond a reasonable doubt. This includes assessing the credibility of various types of evidence, including the testimony of an alleged victim. In other words, the jury must decide which testimony is believable and which isn’t. That responsibility falls solely on the jury and any trial where that task gets shifted to someone else is improper and may allow a convicted defendant to obtain a new trial. Whether it is improper expert opinion testimony or other inadmissible evidence, it is important to be armed with the arguments you need to keep out such proof, which is why it pays to have skilled Maryland criminal defense counsel in your corner.

An example of such an improper process occurred in the trial of a man in Charles County. J.F. was accused of sexually abusing his daughter three times when the girl was between five and eight years old. The first trial ended in a hung jury. In the second trial, the vast majority of the evidence the state had against the father was out-of-court statements by the daughter and the daughter’s trial testimony.

This wasn’t all of the evidence that the state presented, though. The state also called a counselor as an expert witness. The examiner testified that the girl displayed no “signs of fabrication” and that she had no concerns that the girl’s out-of-court statements accusing the father were the result of coaching or otherwise weren’t true. The jury eventually convicted the father.

The case eventually went to the Court of Appeals, which concluded that J.F. was entitled to a new trial. Generally speaking, the state cannot offer the testimony of one witness, even an expert, to provide an opinion about the credibility of another witness. The law does allow for character witnesses, but those witnesses only testify about the subject’s general reputation for truthfulness or untruthfulness, not whether or not a particular statement or set of statements were true.

The counselor in J.F.’s case never testified as to the daughter’s general reputation for truthfulness or untruthfulness; rather, she solely testified about whether or not the girl’s specific statements alleging abuse showed any of the hallmarks of fabrication. She had no “objective data, but rather just stated her conclusion” as to whether the child was speaking truthfully. That was different from character evidence and was not allowable, according to the high court.

Cases like this clearly demonstrate the need for a skillful and knowledgeable defense. The prosecutor will likely come to the trial armed with detailed knowledge of the law and considerable evidence, including the opinions of expert witnesses. If you are the accused person on trial, you need an capable advocate who can counter that with compelling evidence of your own, in addition to skillful arguments to keep out harmful evidence that is actually against the rules and inadmissible. Experienced Maryland criminal defense attorney Anthony A. Fatemi has been providing effective defense representation for the accused in Maryland for many years. To learn more, contact us at 301-519-2801 or via our online form.

More blog posts:

Prosecution’s Evidence of Accused Maryland Man’s ‘Other Bad Acts’ Allows Accused to Get a New Trial, Maryland Criminal Lawyer Blog, July 9, 2018

The Right to a ‘Speedy Trial’ and the Role it Plays in Your Maryland Criminal Case, Maryland Criminal Lawyer Blog, July 31, 2017


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