COA reaffirms reversal of molest convictions for vouching

The Indiana Court of Appeals clarified its position on rehearing Wednesday in the reversal of child molesting convictions that the state “vigorously argues” were erroneously ruled reversible error.

“We disagree and reaffirm our original decision but issue this opinion on rehearing for further clarification,” Judge Michael Barnes wrote for the panel in Melvin C. Hamilton v. State of Indiana, 65A04-1412-CR-592.  

The court in September reversed Melvin Hamilton’s three Class A felony convictions of child molesting because a forensic interviewer testified that there was no evidence the alleged victims had been coached. The appeals court ruled this was reversible error and remanded for a new trial.

“We submit that our original holding regarding reversible error is consistent with longstanding caselaw, as well as the purpose of the rule against vouching testimony as recently buttressed by our supreme court” in Sampson v. State, 38 N.E.3d 985 (Ind. 2015) and Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012). “Our supreme court has determined that ‘indirect’ vouching testimony such as that introduced in Hamilton’s case is wrong because it amounts to improper ‘testimony that the child witness is telling the truth.’”

Following guidance of the U.S. Supreme Court and the Indiana high court’s holding that vouching testimony violates Evidence Rule 704, Barnes wrote, “there is no special exception to this rule for child sex abuse cases.  Unless there is to be a special exception to the general harmless error rule for child sex abuse cases, we adhere to what we said in our original opinion: ‘[I]t is extremely difficult to imagine a scenario in which [vouching] testimony, where an objection to it was raised at trial, is harmless in a case such as this where a conviction depends entirely upon assessing the credibility of the alleged victim. Otherwise there would seem to be little point in having such a rule.’”