Court properly excluded evidence regarding victim’s truthfulness

The trial court was correct to exclude evidence of specific instances from a woman regarding the truthfulness of her son, the victim of a sex crime, the Indiana Supreme Court ruled Thursday. That evidence is prohibited by Indiana Evidence Rule 608.

G.L., who was 16 at the time of the crime, lived down the street from 55-year-old Frank Jacobs Sr. and his son, 33-year-old Frank Jacobs Jr. G.L. and Jacobs Jr. had hung out together occasionally. Jacobs Sr. gave his son a ride and G.L. rode along. After Jacobs Sr. and the teen returned to Jacobs’ home, they watched TV. But then Jacobs Sr. attempted to fellate G.L. and his teeth scraped G.L.’s penis. G.L. left and told his mother what happened. The next day G.L. reported the incident to police and was examined at a local hospital.

Jacobs Sr. was convicted of Class B felony criminal deviate conduct, Class C felony criminal confinement, Class A misdemeanor battery and Class C felony battery, but judgment was only entered on the first two counts due to double jeopardy concerns.

The Indiana Supreme Court addressed Jacobs’ argument that the trial court erred when it excluded testimony regarding G.L.’s truthfulness. After the state called G.L., it called S.L., his mother, as a witness. On cross-examination, Jacobs’ counsel attempted to elicit testimony from S.L. about specific instances of G.L. not being truthful, such as whether he told his mother he was attending school when he allegedly was not.

The trial court did not allow this testimony into evidence. Jacobs claimed this was an error because his sole defense was he did not commit the sexual act and G.L. was not being truthful. Justice Robert Rucker pointed out that Jacobs focused his appeal on Indiana Evidence Rules 404 and 405 but did not argue why Rule 608, which provides limitations on those rules, does not apply.

Indiana Evidence Rule 608 provides that the credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation for truthfulness but that specific instances may not be inquired into or proven by extrinsic evidence. Because the evidence Jacobs sought was not in the form of opinion or reputation, it was not admissible under Rule 608(a), the Supreme Court held in Frank Jacobs v. State of Indiana, 49S04-1403-CR-162.

The justices summarily affirmed the Court of Appeals decision in all other respects: the decision to vacate the Class C felony criminal confinement conviction due to double jeopardy concerns and that any other errors were harmless.