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A unanimous Indiana Supreme Court agreed that a trial court erred in not admitting testimony about the character of a man’s daughter in a child molestation case. However, justices also ruled the error was harmless and ultimately affirmed the trial court’s decision while also deciding what’s required before a witness can offer an opinion on another’s character for truthfulness.
Matthew Hayko was convicted of Level 4 felony child molesting and sentenced to eight years, with two years suspended to probation.
At his trial, during voir dire, potential jurors were asked about witness credibility, their opinions about the truthfulness of children as witnesses and their perceptions about how children would react to discussing sexual topics.
During the state’s case-in-chief, Tammy Lampert, the executive director of a children’s advocacy center, testified over objection about delayed disclosure and children’s reactions to molestations.
For his part, Hayko asked to present testimony from witnesses regarding their opinion of the character of V1, his daughter. In the offer to prove, the three witnesses testified independently about their interactions with the child and their opinion that she was untruthful.
But the Spencer Circuit Court concluded Hayko had not laid a proper foundation for that testimony and thus declined to admit it.
Hayko appealed, arguing in part that the trial court’s conflation of the foundational requirements for reputational testimony under Indiana Evidence Rule 608 — as to his proffered opinion testimony under that rule — denied him the right to present a defense.
A split Court of Appeals of Indiana agreed that the trial court misinterpreted Rule 608 and reversed, finding the error was not harmless.
In an issue of first impression, the Supreme Court also agreed the trial court erred. But concluding the error was harmless, the high court affirmed the trial court’s decision.
The Supreme Court has clarified the foundational requirements for admitting reputation testimony in Bowles v. State, 737 N.E.2d 1150 (Ind. 2000), but hadn’t previously done the same for opinion testimony.
Answering the question of what a proponent must show to establish that a witness can reliably offer an opinion regarding another’s character for truthfulness under Rule 608, the Supreme Court found two evidentiary rules instructive.
First is Rule 602, which says a “witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”
Second is Rule 701, which limits a lay witness’ opinion testimony to one that is “rationally based on the witness’s perception” and “helpful to a clear understanding of the witness’s testimony or to a determination of a fact in issue.”
“Informed by these relevant constraints, an opinion on another’s character for truthfulness or untruthfulness under Rule 608(a) must stem from the testifying witness’s personal knowledge of that character,” the opinion says. “And because a witness offering such an opinion is not testifying as an expert, their personal knowledge must be the rational product of the witness’s own perception — such as interactions or observations — and also be helpful to the trier of fact.”
The state argued a proponent must also show the “opinion is based on sufficient and recent contact” with the witness whose credibility is being attacked, but the Supreme Court agreed with Hayko’s position that the “vast majority” of jurisdictions do not impose those requirements.
The three opinion witnesses Hayko sought to introduce at trial — his father, stepmother and sister — said they had known V1 since birth and had been around her many times, including at family gatherings, and had direct communication with her.
“The above testimony established a proper foundation for each witness’s opinion of V1’s character for untruthfulness,” the opinion says. “Their opinions were rationally based on their personal knowledge, specifically their own observations of and interactions with V1, which occurred on multiple occasions.”
The Supreme Court ruled the trial court erred because its decision was based exclusively on considerations related to establishing a foundation for reputation testimony.
Appellate Rule 66(A) governs non-constitutional errors, the opinion says, though its application in appellate courts has been “far from consistent.”
The inconsistency stems from caselaw reviewing whether an error is harmless under Trial Rule 61, the Supreme Court said, and the similarities between the rules “have produced discrepancies about which rule governs appellate review of non-constitutional errors and how the rule should be applied.”
But it’s Appellate Rule 66(A), not Trial Rule 61, that “defines reversible error for our appellate courts,” the opinion says.
Still, while Hayko should have been allowed to attack V1’s credibility with the opinion testimony of his three witnesses, the Supreme Court ruled it remains confident in the verdict despite the error.
That’s in part, the Supreme Court said, because the record shows Hayko impeached V1’s credibility through other evidence, including telling the jury that V1 was “manipulative, vindictive” and that he “knew she was a liar.”
Indiana Chief Justice Loretta Rush wrote the opinion. Justices Mark Massa, Geoffrey Slaughter, Christopher Goff and Derek Molter concurred.
The case is Matthew Hayko v. State of Indiana, 23S-CR-13.
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