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http://en.wikipedia.org/wiki/Gary_Dotson
Gary Dotson
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Gary Dotson (born circa 1957)[1] is an American man who was the second person to be exonerated of a
criminal conviction by DNA evidence.[2] In May 1979, he was found guilty and sentenced to 25 to 50 years'
imprisonment for rape, and another 25 to 50 years for aggravated kidnapping, the terms to be served
concurrently. This conviction was upheld by the appellate court in 1981. In 1985, the accusing witness
recanted her testimony, which had been the main evidence against Dotson. He was not exonerated or pardoned
at that time, but due to popular belief that he was a victim of a false rape accusation, Dotson went through a
series of paroles and re-incarcerations until DNA evidence proved his innocence in 1988. Dotson was
subsequently cleared of his conviction.
Contents
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1 Personal background
2 Alleged crime
3 Recantation
4 Exoneration
5 Aftermath
6 References
7 External links
[edit] Personal background
Gary E. Dotson was a high-school dropout who, at the time of his arrest, was living in Country Club Hills, a
modest Chicago suburb, with his mother Barbara and his sister Debbie.[3][4] After conviction in 1979, the next
eight years of his life were spent in prison; another four were spent on legal proceedings which led to charges
being dropped in 1988 and a full pardon in 2002.
After his first release from prison in 1985, Dotson married Camille Dardanes, a woman who had come to
know him during the hearings following his conviction. In March 1986, under difficult financial
circumstances, the couple moved in with Dotson's mother. In January, 1987, they had a daughter, Ashley. The
early years of their marriage were complicated by poverty, and by Dotson's unemployment and alcoholism.
An August 1987 arrest for domestic violence further complicated Dotson's legal situation in the years to
come.[3] Near the end of 1987, Camille requested a divorce.[5] She filed the formal paperwork in April 1989.[6]
[edit] Alleged crime
Sixteen-year-old Cathleen Crowell made up a rape allegation to explain to her foster parents her pregnancy
concerns after having had consensual sex with her boyfriend the previous day. After her 1985 recantation, she
described herself as an "emotionally disturbed" foster child and revealed that she had been sexually active
since the age of 12.[7] Crowell later admitted her fabrication was based on a scene from a 1974 best-selling
bodice ripper romance novel, Sweet Savage Love.[3][8]
The hoax began the night of July 9, 1977, when a police officer happened upon her standing beside a road not
far from the shopping mall in the Chicago suburb of Homewood, where she lived[7] and where she worked in a
Long John Silver's seafood restaurant. Her clothing was dirt-stained and in disarray.
Crowell tearfully told the officer that, as she walked across the mall parking lot after work, a car with three
young men in it darted toward her. Two of the men jumped out, grabbed her, and threw her into the backseat.
One of them climbed in beside her, and the other joined the driver in the front. The man in the back tore her
clothes, raped her, and scratched several letters onto her stomach with a broken beer bottle.
Crowell was taken to South Suburban Hospital, where a rape examination was performed. She identified Gary
Dotson, according to her, under pressure from police based on the resemblance of his mug shot in the mug
book to the composite sketch of an assailant she described. Even though there was no sign on Dotson of the
scratches Crowell claimed she inflicted on her assailant and, unlike the smooth-shaven assailant Crowell
described, Dotson had a mature mustache, he was arrested.
In July 1979, he was convicted following a trial that included Crowell's identification of him as one of her
attackers and false and misleading forensic evidence. The prosecution's forensic expert, who claimed to be
doing graduate research at the University of California at Berkeley, had in fact only attended a two day course
there. He testified that he had detected type B blood antigens in swabs taken as evidence and that type B
comprised only 10% of the population. Dotson was type B so the implication was clear. However, he failed to
mention that Crowell herself was type B which made the testimony irrelevant. It was also claimed pubic hair
evidence "matched" Dotson although there was no test at the time capable of matching hairs with a source. It
would come to light later that the hairs were not even similar to Dotson's. Alibi testimony from four of
Dotson's friends that placed him in another part of city at the time of the rape was dismissed by the prosecutor
who claimed the fact that there were no inconsistencies in their testimony "proved" they were lying.
Another inconsistency in the case did not come to light until after Crowell's recantation in 1985 when Dotson's
new lawyer retained a forensic serologist to look at the trial evidence. Although Crowell claimed she was
raped several hours before the hospital examined her, the original forensic testing of the swabs taken in fact
indicated the sexual encounter had occurred at least a day earlier.
[edit] Recantation
By 1981, Crowell Webb had become deeply religious.[7] In 1982, Crowell married a high school classmate,
David Webb, and they moved to New Hampshire,[3] In 1985 she confessed what she had done to her pastor,
but when she tried with his assistance to correct what she had done the prosecutors would not take action.
Dotson sought post-judgment relief based on Crowell Webb’s recantation, but the trial court found her
recantation to be unbelievable and refused to free him.
The lawyer next contacted the media (leading to the infamous "How about a hug?" moment on the CBS
Morning Show).[9] The resulting public sympathy caused the original trial judge to release Dotson on $100,000
bond pending a hearing one week later. At that hearing, the same judge rejected new evidence discrediting the
forensic evidence given at the trial, called the recantation less credible than the original testimony and sent
Dotson back to prison.
Dotson's attorney also petitioned the Governor of Illinois, James R. Thompson, for clemency on April 19.
"Big Jim" Thompson, formerly a federal prosecutor, responded to the media attention by declaring that he
personally would oversee three days of public hearings on Crowell Webb's recantation. The hearings lasted
three days, from May 10 through May 12, 1985. Twenty-four witnesses were called to testify at the justopened new State of Illinois Center in Chicago which Thompson had built, and which is now named after him.
The sexually graphic proceedings were televised, creating a nationwide crime drama at a time when cameras
in the courtroom were unheard of. Viewers were shocked when a "gigantic" projection of Crowell Webb's
stained underwear was projected onto a massive screen on the wall, and when she and her boyfriend recited
details of their sexual activity.[10] Nearly a quarter-century later, the Thompson Dotson hearings were still
described as "circuslike," a description widely used in 1985.[1][11]
Governor Thompson denied clemency but accommodated the popular view that Dotson was innocent by
commuting his sentence to time served. This tarnished the governor's image with the public; if Dotson was
innocent, why was he not cleared? And if he were guilty, why was Thompson releasing him?[11] Furthermore,
this half-measure put Dotson on parole, which meant that he could be returned to prison without a trial.
On August 2, 1987, Dotson was arrested on a domestic violence charge against his wife after she told police
that he had slapped her. He was ordered held without bond on August 27, and — even though his wife refused
to cooperate and charges were dropped — Dotson's parole was revoked and his full remaining sentence of 16
years was reinstated. On Christmas Eve 1987, Governor Thompson gave Dotson one last parole. The next day
Dotson went with friends to the Zig Zag Lounge in Calumet City. Dotson ordered a sandwich, but objected
when it came topped with peppers, which he had not ordered; he refused to pay. The waitress called police
and claimed he threw "an unknown object" at her and he was arrested and charged with theft, battery, and
disorderly conduct.
The state Department of Corrections put a parole hold on him to prevent his release and scheduled an Illinois
Prisoner Review Board hearing for February 17. A few days later, the criminal charges were voluntarily
dropped by the State's Attorney's Office after witnesses cast doubt on the waitress's version and she refused to
testify under oath. Although the criminal charges had been dropped, the scheduled February 17 Prisoner
Review Board hearing went ahead and revoked the parole because, due to his arrest, Dotson had been 48
hours late calling his parole officer. He was released after his six-month technical parole violation had been
served.
[edit] Exoneration
On August 15, 1988, Governor Thompson and the prosecutors were notified that DNA testing had positively
excluded Dotson and positively included Crowell's then-boyfriend, David Bierne, as the source of the semen
stain. Nevertheless, the governor stated he would not act without receiving a recommendation from the
Prisoner Review Board, which then failed to consider it. The media took up Dotson's case. In May 1989, his
lawyer filed a new petition for post-conviction relief, which was accepted for hearing on August 14, 1989. The
prosecutors publicly vowed to oppose the petition but later joined the judge in dismissing the original
conviction and dropping all charges at the August 14 hearing.
Dotson was officially pardoned by Illinois Governor George Ryan in 2002.[12]
[edit] Aftermath
In 1985 Crowell co-wrote a book about the incident called "Forgive Me" and gave Dotson more than $17,000
in proceeds from its sale, keeping nothing for herself except the taxes due on that payment.[3][7] In return,
Dotson promised not to sue her over her false accusation.[7] Dotson used the money to finance the start of his
post-prison life, including a trip to Las Vegas to marry Camille.[3] In 1985, Dotson had planned to write his
own book with New York author Jeannie Ralston.[7] If written, the book was not published. By April 1989,
Camille filed for separation. By fall of 1989, Dotson was working part-time as a construction worker in
Illinois and was hoping to register for college classes to become a counselor.[6]
After their 1989 divorce, Camille and their daughter moved to Las Vegas, near Camille's mother, Barbara
Kritzalis.[10][11] Camille's life rapidly became tragic, including work in the sex industry and heavy use of drugs.
She spent time in jail, and married a man accused of murder. Her mother took over raising Ashley, born to
Camille and Gary Dotson in 1987. Camille disappeared completely in May 1994, and as recently as October
2009, was still listed on a missing-persons website.[13] In 2003, her mother told an interviewer, "She was never
clean; even when she was in jail she'd get drugs. It's as if she was off in another world. Is she alive? Do I think
I'll ever hear from her? Truthfully, no. But I want closure. I want answers."[10] By 2003, Dotson and his
daughter moved back to Illinois.
By the time Dotson was cleared in 1989, Cathleen Crowell Webb had four children and had permanently
made her home in New Hampshire, where her husband then worked as a welder and ironworker.[6][7] Crowell
died of breast cancer on May 15, 2008, six years after diagnosis. She had been working part-time as a
receptionist at a religious grammar school and as a helper at a local golf course.[12][14] After her death, her
husband David told the press how she felt about recanting:
Once she got saved [in 1981][7] and came to terms with what she had done to Gary's life, she made the
decision to come forward. She had two young children, and she had no idea of how intense an experience it
was going to be, but she fully expected to pay more of a price than she actually did. There was a good chance
that she might have had to go to jail. She couldn't give Gary back his years, but at that point she did
everything she could to make it right.[15]
At the time of Crowell Webb's death in 2008, Dotson was reported to be "living quietly in the far south
suburbs of Chicago" and "wanting to stay under the radar now, wanting to put this behind him."[16]
[edit] References
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^ a b Litke, James. Gary Dotson trying to adjust to life outside prison, May 9, 1986 Associated Press
report. The Ledger of Lakeland, Florida. Accessed October 23, 2009.
^ The DNA 200, May 26, 2007. Accessed October 23, 2009.
^ a b c d e f Dotson Summary, Northwestern University School of Law. Accessed October 23, 2009.
^ Released prisoner gets big welcome, Associated Press report, April 5, 1985 Spokane Chronicle.
Accessed October 23, 2009.
^ Dotson's woes tied to wife's divorce bid, December 28, 1987. Chicago Sun-Times. Accessed October
23, 2009.
^ a b c Jailed for a Rape That Never Happened, Gary Dotson Has His Name Cleared at Last, August 28,
1989. PEOPLE Magazine. Accessed October 23, 2009.
^ a b c d e f g h Shipp, E.R. "Forgive," asks woman in rape disavowal, November 28, 1985, New York
Times. Paid archive accessed October 23, 2009. Free version available online at The Ledger of Lakeland,
Florida, December 2, 1985.
^ Rogers, Rosemary. Sweet Savage Love. Avon: 1974. ASIN B000CBMW4Y ISBN 1-55166-831-9
^ Law: Cathy and Gary in Medialand, May 27, 1985. TIME Magazine. Accessed October 23, 2009.
^ a b c Roeper, Richard. The sad story of Gary Dotson's ex-wife. August 11, 2003, Chicago Sun-Times.
Accessed via NewsBank paid archive October 23, 2009.
^ a b c The Gary Dotson Rape Case: In The Name Of Justice, May 23, 2008. CBS News. Accessed
October 12, 2009.
^ a b Quintanilla, Ray. CATHLEEN CROWELL WEBB: Figure in rape case helped free inmate. May
21, 2008, Chicago Tribune. Accessed via NewsBank Archives October 23, 2009.
^ Case 1063DFNV: Camille Dorothy Dardanes, a/k/a Dotson, Diaz, DOE Network website. Accessed
October 23, 2009.
14.
15.
^ Cathleen Crowell Webb dies at 46 Chicago Tribune May 20, 2008
^ Golab, Art. Recanted rape allegation in '85 - She made up story at 16, sending Gary Dotson to prison
for 8 years. May 20, 2008, Chicago Sun-Times. Accessed via NewsBank Archives October 23, 2009.
16.
^ Woman who lied about rape dies, May 20, 2008. ABC Local News, WLS-TV, Chicago. Accessed
October 23, 2009.
[edit] External links
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CrimeTrac DNA History archived site from August 20, 2006
Northwestern University School of Law: The rape that wasn't — the first DNA exoneration in Illinois:
Summary
Opposing verdicts in the Webb/Dotson rape case: Legal vs. news constructions contemporary news
bibliography
Post-Conviction Serological Report (1985) and other forensic reports related to Dotson case
The Innocence Project: Gary Dotson including photograph
Webb, Cathleen Crowell. Forgive Me. ISBN 0-8007-1462-8
Retrieved from "http://en.wikipedia.org/w/index.php?title=Gary_Dotson&oldid=491004499"
http://articles.sun-sentinel.com/keyword/gary-dotson/featured/2
NEWS
Illinois Court Sets $100,000 Bail For Dotson
United Press International, May 1, 1985
The Illinois Supreme Court set a $100,000 bond Tuesday for Gary Dotson while the justices
consider his 1979 conviction for a rape his accuser now says never occurred. The high court
granted a request that Dotson be freed from prison pending the appeal of his conviction.
Attorney Warren Lupel made the unusual request during a brief hearing before Justice
Seymour Simon and also asked the high court to intercede in the case and bypass the
Illinois Appellate Court process. Dotson, 28, has served six years of a 25- to 50-year prison
term for his conviction in the rape of a teen-ager.
NEWS
Hearing Set On Dotson Request For Clemency
Chicago Tribune, April 24, 1985
Gov. James Thompson and the Illinois Prisoner Review Board will hold an emergency
hearing May 9 in Chicago on Gary Dotson`s request for executive clemency, the governor`s
office announced Tuesday. Thompson last Friday received a petition filed on behalf of
Dotson, who has served six years of a 25- to 50-year rape sentence. The governor said the
May hearing would give all parties time to prepare. Aides to Thompson said the governor has
not completed reading the transcripts of the original trial and other matters involved in the
case.
NEWS
Officials Transfer Dotson
United Press International, April 14, 1985
A depressed Gary Dotson, whose rape conviction was upheld despite the alleged victim`s
recantation, has been transferred to a smaller prison to protect him from other convicts and
to prevent any possible suicide attempt, officials said Saturday. "Prisoners have attempted to
become more famous by taking the life of a famous prisoner," said Corrections Director
Michael Lane. "It best served his interests to be taken to a smaller and different prison."
Dotson, 28, whose week of freedom on $100,000 bond ended Friday with his return to
prison, was moved Friday night from the maximum security Joliet Correctional Center, where
he has served six years, to the medium security Dixon Correctional Center.
NEWS
Polygraph Examiner Thinks Dotson`s Truthful In
Rape Case
By Ann Marie Lipinski and Linnet Myers, Chicago Tribune, May 8, 1985
Gary Dotson took a lie detector, and the polygraph examiner said he thinks Dotson told the
truth when he said he had never seen Cathleen Crowell Webb before she accused him of
raping her in 1977. During the 55-minute test Monday night, polygraph expert Robert
Cummins asked Dotson five questions about his relationship with Webb and said later that
Dotson`s answers indicated he had nothing to do with the alleged rape. Meanwhile, Chief
Judge Richard Fitzgerald of Cook County Criminal Court Tuesday put off a decision on
Dotson`s request for a new trial and scheduled it for next Tuesday.
NEWS
Give Convicted Rapist New Trial
April 17, 1985
UNQUESTIONABLY, there now exists a reasonable doubt about whether Gary Dotson
raped Cathleen Crowell Webb. Therefore a new trial should be held. Webb recanted her
story of eight years ago, in which she said Dotson raped her, and after which he went to
prison. A Chicago judge didn`t believe Webb`s changed story and sent Dotson back to
prison this month after Dotson had been free for a week. It`s uncertain which of Webb`s
stories is correct -- and that`s the point. If this uncertainty had existed during the original trial,
the jury might have been forced to conclude that there was a reasonable doubt about
Dotson`s guilt.
NEWS
Principals In `False` Rape Case At Odds
By Ann Marie Lipinski and John Kass, Chicago Tribune, April 16, 1985
A split developed between Cathleen Crowell Webb and Gary Dotson on Monday over
publicity about a polygraph test she said she took to prove that Dotson did not rape her in
1977, which Dotson`s attorney characterized as part of a "media blitz" that could hurt his
client. Webb and her attorney, John McLario, in an apparent attempt to pressure Gov. James
Thompson to release Dotson or commute his prison sentence, made the test public at a
press conference in McLario`s Menomonee Falls, Wis., hometown.
NEWS
Cash Crop
October 26, 1985
In a move to get some immediate cash, Gary Dotson has relinquished his rights to further
royalties from a book written by Cathleen Crowell Webb, the woman who claimed he raped
her in 1977 and then recanted her story. Dotson, jobless and "desperate for money," signed
an agreement Thursday freeing Webb from all liabilities and relinquishing his right to future
royalties from the book Forgive Me and an upcoming made-for-TV movie and personal
appearances made by Webb. In return, Dotson received a check "in the low five figures" at
the Menomonee Falls, Wis., office of Webb`s attorney, John McLario.
FEATURES
Somebody Raped Cathy Webb, Mothers Say
Special to the News/Sun-Sentinel, September 28, 1985
Many people did not believe Cathleen Crowell Webb when she came forward after eight
years to deny she had been raped -- among them her mother and the mother of the man she
accused of raping her. Cathy Webb`s mother wrote in the October issue of Redbook that she
still believes her foster daughter was raped the night of July 9, 1977. In a companion piece,
the mother of Gary Dotson, the man convicted of raping Webb and released after she
recanted, speculated that Webb really was sexually assaulted that night -- but not by her
son. Dotson, identified by Webb as the man who had raped her, was convicted and
sentenced to 25 to 50 years in jail.
Case Offers An Unpopular Lesson
April 4, 1985
IT TOOK a high level of courage for the young woman to admit she lied about her "rape"
eight years ago, a lie that falsely imprisoned a man. It took consummate grace for the man`s
mother to forgive the young woman. It will take a forthright judge to free the man and say the
system failed badly. In fact, the underlying lesson of this sad case isn`t popular: Those
persons accused of crimes aren`t always guilty, and the constitutional protections of the
accused must be observed scrupulously
NEWS
Face To Face Webb Apologizes To Dotson During
Tv Shows
Gary Dotson finally met Cathleen Crowell Webb and appeared with her on television today,
finding her to be "a different person than the one eight years ago" who fabricated testimony
that he raped her. Dotson, 28, whose prison sentenced was commuted Sunday after serving
six years, met Webb, 23, in a Manhattan hotel Tuesday night and then appeared on morning
network news shows. "It was a meeting by mutual agreement," Webb said on Today. "I
apologized, of course. And I don`t think I can apologize enough.
FEATURES
Somebody Raped Cathy Webb, Mothers Say
Special to the News/Sun-Sentinel, September 28, 1985
Many people did not believe Cathleen Crowell Webb when she came forward after eight
years to deny she had been raped -- among them her mother and the mother of the man she
accused of raping her. Cathy Webb`s mother wrote in the October issue of Redbook that she
still believes her foster daughter was raped the night of July 9, 1977. In a companion piece,
the mother of Gary Dotson, the man convicted of raping Webb and released after she
recanted, speculated that Webb really was sexually assaulted that night -- but not by her
son. Dotson, identified by Webb as the man who had raped her, was convicted and
sentenced to 25 to 50 years in jail.
NEWS
Freed Rapist Deserves New Trial
May 14, 1985
GARY DOTSON, now a free man after serving six years in prison, still has the felony of rape
on his record. He, his original accuser and the public will be best served if a new trial is held
so the latest version of what happened can be considered by a jury. The decision by Illinois
Gov. James Thompson to commute Dotson`s sentence but not to pardon him probably was
the most sensible under the circumstances. Thompson said he believed the jury`s guilty
verdict in 1979 was correct but that "no good purpose would be served" by returning Dotson
to prison.
NEWS
Dotson Files For Clemency
Attorneys for Gary Dotson, who has served six years in prison for a rape the alleged victim
now says never happened, Friday filed a petition for executive clemency with the state
prisoner review board. Gov. James R. Thompson said he and the Illinois Prisoner Review
Board would begin examining the clemency application immediately to avoid any delay in
deciding the case. "If I can come to a decision together with the board simply from reading
the transcript of the original trial and the Judge (Richard L.)
NEWS
Ex-boyfriend, As Surprise Witness, Contradicts
Rape-recant Testimony
The ex-boyfriend of a woman who says she falsely accused a man of raping her in 1977
Saturday contradicted her reason for making up the story by testifying the sexual encounters
between the two teen-agers could not have made her pregnant. Cathleen Crowell Webb`s
former boyfriend, David Beirne, testified as a surprise witness in the third day of an executive
clemency hearing before Gov. James R. Thompson and the Illinois Prisoner Review Board,
convened to determine the fate of convicted rapist Gary Dotson.
NEWS
`Rape` Victim Really 2 People, Prosecutor Says
On March 29, when Cathleen Crowell Webb went before cameras in New York to begin her
media campaign to free Gary Dotson, Peggy Frossard, one of the attorneys who would
eventually undermine Webb`s efforts, was home in Chicago watching television. What
Frossard saw was a dramatic accounting of an incredible story: a young woman`s contention
that she had wrongly accused a man of rape in 1977 and now sought to free him from a 25-
to 50-year prison sentence. "I was of the mindset that she was telling the truth," recalled
Frossard, a Cook County assistant state`s attorney who has prosecuted nearly 100 rape
cases.
NEWS
`Forgive Me` -- Now A Book, Soon To Be A Motion
Picture?
July 13, 1985
Cathleen Crowell Webb, whose highly publicized recantation of a rape story led to freedom
for her alleged attacker, is writing a book, entitled Forgive Me, that should reach bookstores
in October, her publisher said Friday. "She will not get one dime from the writing of this
book," said her attorney, John McLario of Menomonee Falls, Wis. "It`s always been her
intention to give everything . . . to Gary Dotson," the man she once accused. Dotson`s
attorney, however, says he has nothing in writing from Webb and complained her book will
hurt the market for the "more scholarly" book which Dotson intends to write.
NEWS
Bible Influenced Webb
By Fox Butterfield, The New York Times, May 31, 1985
The Rev. Carl M. Nannini remembers it happened just after his wife read a passage from the
Old Testament to Cathleen Crowell Webb. The Scripture was Leviticus. "If a soul sin and
commit a trespass against the Lord and lie unto his neighbor," Bonnie Nannini read, then "all
that about which he hath sworn falsely, he shall even restore it." It was then, he says, that
Webb told her that in 1977 she falsely accused Gary Dotson of raping her, setting in motion
a complex legal and emotional dispute that ended May 12 with Gov. James R. Thompson of
Illinois freeing Dotson after six years in jail.
NEWS
Not Everyone Can Be Bought
By Gary Stein, Staff writer, May 17, 1985
In this era when almost every sensational crime or notorious event is turned into a miniseries or a movie and/or a book, I had to do a double-take the other day at a story that came
over the wires. The story concerned disbarred attorney Mary Evans, who is on parole for
helping a convicted killer escape from a prison in Tennessee two years ago. Evans and the
killer were on the run together for several months before being caught in Daytona Beach.
She served 10 months of a three-year prison sentence and has now moved to Delray Beach.
NEWS
Tv Shows
NEWS
May 14, 1985
to prison.
NEWS
NEWS
NEWS
Picture?
July 13, 1985
Picture?
July 13, 1985
NEWS
NEWS
Not Everyone Can Be Bought
By Gary Stein, Staff writer, May 17, 1985
In this era when almost every sensational crime or notorious event is turned into a miniseries or a movie and/or a book, I had to do a double-take the other day at a story that came
over the wires. The story concerned disbarred attorney Mary Evans, who is on parole for
helping a convicted killer escape from a prison in Tennessee two years ago. Evans and the
killer were on the run together for several months before being caught in Daytona Beach.
She served 10 months of a three-year prison sentence and has now moved to Delray Beach.
NEWS
Tv Shows
NEWS
May 14, 1985
to prison.
NEWS
NEWS
NEWS
Picture?
July 13, 1985
1 | 2 | 3 | Next
NEWS
Dotson Files For Clemency
Attorneys for Gary Dotson, who has served six years in prison for a rape the alleged victim
now says never happened, Friday filed a petition for executive clemency with the state
prisoner review board. Gov. James R. Thompson said he and the Illinois Prisoner Review
Board would begin examining the clemency application immediately to avoid any delay in
deciding the case. "If I can come to a decision together with the board simply from reading
the transcript of the original trial and the Judge (Richard L.)
NEWS
`Rape` Victim Really 2 People, Prosecutor Says
On March 29, when Cathleen Crowell Webb went before cameras in New York to begin her
media campaign to free Gary Dotson, Peggy Frossard, one of the attorneys who would
eventually undermine Webb`s efforts, was home in Chicago watching television. What
Frossard saw was a dramatic accounting of an incredible story: a young woman`s contention
that she had wrongly accused a man of rape in 1977 and now sought to free him from a 25to 50-year prison sentence. "I was of the mindset that she was telling the truth," recalled
Frossard, a Cook County assistant state`s attorney who has prosecuted nearly 100 rape
cases.
Case Offers An Unpopular Lesson
April 4, 1985
IT TOOK a high level of courage for the young woman to admit she lied about her "rape"
eight years ago, a lie that falsely imprisoned a man. It took consummate grace for the man`s
mother to forgive the young woman. It will take a forthright judge to free the man and say the
system failed badly. In fact, the underlying lesson of this sad case isn`t popular: Those
persons accused of crimes aren`t always guilty, and the constitutional protections of the
accused must be observed scrupulously.
Rape `Victim` Still Trying To Exonerate Accused
The New York Times, November 29, 1985
Across the continent from her home in Jaffrey, N.H., Cathleen Crowell Webb was here to
persuade people that the Illinois man she once accused of raping her is really innocent.
Some people applaud her courage. But as she had already found out in New York, Boston,
Detroit and Washington in a promotional tour for her new book, Forgive Me, many others find
it difficult to either believe her or forgive her. In one day here, Webb, 24, and her husband,
David, appeared on a local morning television program, a national radio talk show that
originates here, and a radio talk show aimed at some 300,000 Christian listeners in southern
California.
http://articles.sun-sentinel.com/1985-05-08/news/8501180412_1_warren-lupelpolygraph-test-polygraph-expert
Polygraph Examiner Thinks Dotson`s Truthful In
Rape Case
May 08, 1985|By Ann Marie Lipinski and Linnet Myers, Chicago Tribune
CHICAGO — Gary Dotson took a lie detector, and the polygraph examiner said
he thinks Dotson told the truth when he said he had never seen Cathleen Crowell
Webb before she accused him of raping her in 1977.
During the 55-minute test Monday night, polygraph expert Robert Cummins
asked Dotson five questions about his relationship with Webb and said later that
Dotson`s answers indicated he had nothing to do with the alleged rape.
Meanwhile, Chief Judge Richard Fitzgerald of Cook County Criminal Court Tuesday put
off a decision on Dotson`s request for a new trial and scheduled it for next Tuesday.
Dotson was not present at a brief hearing before Fitzgerald, and defense
attorneys Warren Lupel and Jack Rimland did not object when a prosecutor
asked for a week to respond to the petition.
The petition seeks the new trial on grounds that Dotson`s conviction was won on
faulty medical testimony and the testimony of Webb, who has recanted her
charge of rape.
Lupel, outside the courtroom, said, `Ì was a little disappointed. I get the feeling
he (the judge) wants to see what happens Thursday,`` when the Illinois Prisoner
Review Board holds a clemency hearing with Gov. James Thompson presiding.
Lupel said he is compiling names of witnesses to give to the review board.
In the polygraph test, Cummins asked Dotson if, on July 9, 1977, he was
physically with Webb; if he took part in a sex act with her; if he forced her to have
sexual intercourse with him; if he ejaculated on her; and if he ever saw her before
the preliminary hearing in the case.
Dotson answered ``no`` to each question, and Cummins said it was his opinion
as a polygraph expert that Dotson had answered truthfully.
Asked how Dotson reacted after passing the test, Lupel said he gave ``the typical
Dotson reaction, a shrug of the shoulders and nod of the head.``
The polygraph test was requested by a Thompson aide, Lupel said.
Although polygraph results are not admissible in Illinois courts, Dotson`s test may
be considered by the governor as he weighs clemency for Dotson, 28, who has
spent six years in prison for a rape that Webb now contends did not occur.
Thompson said he would make his decision after the Prisoner Review Board
makes a recommendation.
http://articles.chicagotribune.com/1985-05-05/news/8501270686_1_warren-lupelcathleen-crowell-webb-polygraph
Dotson Balks At Taking Lie Test, Attorney Says
May 05, 1985|By John Kass and Ann Marie Lipinski.
Gary Dotson has refused to take a lie detector test despite an agreement with his attorney
and Gov. James Thompson to do so, his lawyer, Warren Lupel, said Saturday.
Lupel said Dotson rejected the agreement to submit to the polygraph test after meeting
with three new attorneys who may replace Lupel as his counsel.
According to Lupel and law enforcement sources, a Thompson aide last week asked that
Dotson be tested Monday by Robert Cummins, a Chicago polygraph technician who
examined Cathleen Crowell Webb on April 13. Cummins confirmed that he was asked to
test Dotson.
Webb contends the test proved she told the truth in recanting her 1979 testimony that
helped convict Dotson.
Results of polygraph tests are not admissible in court.
Thompson declined to comment when asked if he had requested the test before Dotson`s
prison review board hearing Thursday.
Lupel said Dotson also canceled plans to be examined Monday by a forensic psychiatrist
who would test Dotson`s ``capacity for rape.``
Lupel said Dotson told him of his decision after meeting Saturday with attorneys Samuel
Adam, Edward Genson and Jeffrey Steinback.
Lupel said he does not want the attorneys involved in the case. He already has received
assistance from four criminal attorneys and a local law school faculty.
He said a television producer contacted members of Dotson`s family, who subsequently
contacted the three attorneys.
Genson said that he met with Dotson but declined to say whether he had advised against
the test or whether a producer was involved in setting up the meeting.
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Gary Dotson
On the night of July 9, 1977, a police patrol officer happened upon 16-yearold Cathleen Crowell standing beside a road not far from a shopping mall in
Homewood, a suburb of Chicago, where she worked at a fast-food
restaurant. She tearfully told the officer that she had been raped. He took
her to a hospital, where superficial cuts on her stomach were noted. Her
underwear, which was stained with semen, was preserved as evidence. The rape, in fact, had not occurred. Crowell had invented a tale of an
improbable crime and a description of an imaginary perpetrator to create a
cover story in case she became pregnant by her boyfriend, which did not
happen. Police showed her a mug book and, according to Crowell,
pressured her to identify a particular picture — a photo of Gary Dotson, 24,
who matched the description she had provided almost perfectly.
Based on the photo identification, Dotson was arrested and charged with
rape. Crowell’s in-court identification of him was the principal evidence at
Dotson’s trial, although it was augmented by false forensic testimony that,
although transparently wrong, was unchallenged by the defense, ignored by
the prosecution, and unquestioned by the judge and jury. Dotson was
convicted in July 1979, and sentenced to an indeterminate term of 25-to50-years in prison.
In 1982, Crowell married David Webb and they moved to Jaffrey, New
Hampshire. In early 1985, Cathleen Crowell Webb, as she is now known,
told her pastor that she was riddled with guilt because she had fabricated a
rape allegation that had sent an innocent man to prison. She added that she
had inflicted the superficial cuts on her stomach and had torn her clothing to
fortify the false claim.
When Webb’s attorney, John McLario, contacted the prosecutors about her
recantation, he found them uninterested in revisiting the case. The
prosecutors claimed that Webb was lying. McLario then turned to a reporter
for WLS-TV in Chicago, who broke the story of Webb’s recantation on March
22, 1985. In May, Governor James A. Thompson personally presided over a
clemency hearing before the Prisoner Review Board. After three days of
hearings, the board voted unanimously to deny clemency. The Governor
then decided to commute Dotson’s sentence to time served.
In 1987, a prominent defense attorney, Thomas M. Breen, agreed to take
Dotson’s case. He had heard of DNA testing in England and immediately
asked Governor Thompson to order DNA testing. On August 15, 1988, a
California forensic serologist reported that his tests positively excluded
Dotson and positively included Webb’s former boyfriend. Results were
confirmed by Illinois State Police Crime Laboratory.
Despite the definitive DNA result, it took a full year — until August 14, 1989
— for the prosecution to finally admit error and join Breen in a motion to
vacate the conviction. It was not until January 9, 2003 that Dotson won a
pardon based on innocence. On August 25, 2003, the Illinois Court of
Claims awarded him $60,150 for his wrongful conviction. His only other
compensation came from Webb, who gave him $17,500 in 1986, profits she
http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3186[2/17/2013 6:37:03 PM]
NEWS
State:
Illinois
County:
Cook
Most Serious Sexual Assault
Crime:
Additional
Kidnapping
Convictions:
Reported
Crime Date:
1977
Convicted:
1979
Exonerated:
1989
Sentence:
25 to 50 years
Race:
Caucasian
Sex:
Male
Age:
20
Contributing False or Misleading
Factors:
Forensic Evidence,
Perjury or False
Accusation
Did DNA
Yes
evidence
contribute to
the
exoneration?
:
Exoneration Case Detail
earned from a ghostwritten book about her story entitled “Forgive Me.” — Center on Wrongful Convictions
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http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3186[2/17/2013 6:37:03 PM]
Valparaiso University Law Review
Volume 20
Number 2
pp.145-185
Winter 1986
Trial by Jury: Reflections on Witness Credibility,
Expert Testimony, and Recantaton
Elaine D. Ingulli
Recommended Citation
Elaine D. Ingulli, Trial by Jury: Reflections on Witness Credibility, Expert Testimony, and Recantaton, 20 Val. U. L. Rev. 145 (1986).
Available at: http://scholar.valpo.edu/vulr/vol20/iss2/1
This Article is brought to you for free and open access by the School of Law
at ValpoScholar. It has been accepted for inclusion in Valparaiso University
Law Review by an authorized administrator of ValpoScholar. For more
information, please contact a ValpoScholar staff member at
[email protected].
Ingulli: Trial by Jury: Reflections on Witness Credibility, Expert Testim
ValparaisoUniversity Law Review
Volume 20
Winter 1986
Number 2
TRIAL BY JURY: REFLECTIONS ON WITNESS
CREDIBILITY, EXPERT TESTIMONY, AND
RECANTATION
ELAINE
D. INGULLI
Six years after a jury convicted him of rape, Gary E. Dotson
sought a new trial. The basis for his motion was "new testimony"
by the alleged victim that she had perjured herself at Dotson's trial
and that, in fact, there had been no rape. In a decision that drew
national attention, Judge Richard L. Samuels, of Cook County Circuit
Court in Chicago, Illinois, who had been the judge at the trial six
years earlier, denied Dotson's motion for a new trial, finding that the
"recanting witness" was not telling the truth. Governor Thompson
commuted the sentence to time served, after deciding that the victim's need to have Dotson punished had obviously been satisfied.'
The Dotson case focused national attention on the problems
raised when the chief witness against a criminal defendant later
recants his or her testimony. This article addresses some of those
concerns, along with the broader issues raised by a system of justice
that depends largely on jury evaluation of live witness testimony to
find truth. Part I discusses trials and witness credibility, with an emphasis on the use of expert testimony to assist jurors in determining
credibility. Part II focuses on recantation, and the determination by
courts of the credibility of recanting witnesses.
I.
TRIALS AND WITNESS CREDIBILITY
In a trial by jury, the jury is said to be the sole judge of the
credibility of witnesses, although the judge makes the determination
of the witnesses' basic competence to testify. The system is generally thought to have three methods of assuring that witnesses tell the
truth: witnesses are required to testify under oath, or some equivalent
*Assistant Professor of Legal Studies, Temple University School of Business
Administration; J.D., 1977, Hofstra University School of Law; LL.M., 1984, Temple
University School of Law.
1. N.Y. Times, May 9, 1985, at A25, col. 1.
Produced by The Berkeley Electronic Press, 1986
146
Valparaiso University Law Review, Vol. 20, No. 2 [1986], Art. 1
VALPARAISO UNIVERSITY LAW REVIEW
[Vol. 20
solemn affirmation;2 opposing counsel has an opportunity to crossexamine the witnesses;3 and the jury is able to observe the witnesses'
demeanor on the stand as an aid in determining their credibility.'
Often, the credibility of a particular witness is bolstered by corroborative evidence, and in some cases, notably criminal cases involving sexual offenses, such corroborative evidence may be required by
law.' Occasionally, there will be testimony from a lay witness about
the "general reputation for truth and veracity" of a particular witness.
Traditionally, however, courts have been reluctant to admit scientific
or expert testimony that directly addresses the issue of the credibility of a particular witness or that of a defendant who chooses to testify
in his own behalf. There is a noticeable trend expanding the use of
expert psychological testimony in the courtroom. This article argues
that the trend is a sensible one that will lead to enhanced ability
of our fact-finding process to indeed find truth.
A. Traditional Assurances of Credibility: The Oath, CrossExamination, and Jury Observation of Witness Demeanor
The requirement that a witness testify under oath is often cited
as a general safeguard that helps ensure credibility. The oath is said
to be important in two respects: as a "ceremonial and religious symbol it may impress upon the witness a feeling of special obligation
to speak the truth, and it may impress upon the witness the danger
of criminal punishment for perjury, to which the judicial oath or an
equivalent solemn affirmation would be a prerequisite condition."6
Thus, a witness who will not affirm or swear to tell the truth
cannot testify, and a witness who can be shown to lack an understanding of the nature of an oath would be disqualified to testify by
the court, despite the fact that most psychologists agree that moral
knowledge does not necessarily correspond to moral behavior.7 While
2. FED. R. EVID. 603 states: "Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered
in a form calculated to awaken his conscience and impress his mind with a duty to
do so ....
3. On the importance of cross-examination, see C. MCCORMICK, MCCORMICK
ON EVIDENCE S 4 (3d ed. 1984); 97 C.J.S. Witness SS 368-376 (1957).
4. On jury observation of witness demeanor as an aid in recognizing dishonest
testimony, see generally Sahm, Demeanor Evidence: Elusive and IntangibleImponderables,
47 A.B.A.J. 380 (1961).
5. See infra notes 122-126 and accompanying text.
6. C. MCCORMICK, supra note 3, at S 245; People v. Partis, 41 N.Y.2d 36,
390 N.Y.S.2d 848, 359 N.E.2d 858 (1976).
7. Damon, Moral Development, in NEW DIRECTIONS FOR CHILD DEVELOPMENT
(1978).
http://scholar.valpo.edu/vulr/vol20/iss2/1
1986]
WITNESS CREDIBILITY
the oath requirement may have some slight effect on adults, it has
been criticized by many, and the requirement as it applies to children
has been viewed with even greater skepticism by some authorities
Nevertheless, a number of states specifically retain the requirement
that a child understand the nature of an oath in -order to testify.'
Arguably, the most important tool for assuring truthful testimony
is cross-examination. McCormick summed up the all but unanimous
opinion of authorities when he wrote: "For two centuries, common
law judges and lawyers have regarded the opportunity of crossexamination as an essential safeguard of the accuracy and completeness of testimony, and they have insisted that the opportunity is a
right and not a mere privilege."'" The right to cross-examination is
considered so fundamental to a criminal trial that it is constitutionally
protected by the sixth amendment.11
Finally, the jury is trusted to make the best possible evaluation
of a witness, because the jury has the opportunity to observe the
"demeanor" of each witness: the nonverbal, intangible evidence that
can be derived from observing the eyes, hands, face, and body
movements of a person as he gives his sworn testimony in open court.
It is standard wisdom that the jury is capable of making such
discrimination, despite some evidence that the average person is not
particularly skilled at evaluating the truthfulness of others. One expert on nonverbal behavior argues that his own research, and that
of most others, found that, in judging whether someone is lying or
truthful, few people would do better than they would if their choices
were completely random." That is not to say that some jurors might
not be very good at detecting liars, or that most people cannot be
trained to recognize nonverbal clues to lying and truthtelling, but only
that the average person, including the average juror, is not necessarily
very skilled at detecting lies based on the demeanor of a witness.
8. Melton, Children's Competency to Testify, 5 LAW & HUM. BEHAV. 73 (1981).
9. See, e.g., ALA. CODE 5 12-21-165(a) (Michie 1977): "Persons who have not
the use of reason . . . and children who do not understand the nature of an oath are
incompetent witnesses" (emphasis added). See also GA. CODE ANN. S 38-1607 (1984 Cum.
Supp.): "[C]hildren who do not understand the nature of an oath are incompetent to
testify as witnesses."
10. See C. MCCORMICK, supra note 3, at S 19.
11. A full discussion of cross-examination and the confrontation clause of the
sixth amendment is outside the scope of this article. For a recent discussion by a
well-known expert on the law of evidence, see Younger, Confrontation, 24 WASHBURN
L.J. 1 (1984).
12. P. EKMAN, TELLING LIES 162 (1985).
148
[Vol. 20
B. Other Assurances of Credibility: Expert Testimony
One way in which courts have sought to protect the jury's role
in determining the credibility of witnesses is by prohibiting experts
from testifying before a jury on the credibility of other witnesses.
The fear is that the jury will not be able to fulfill its function because
expert accrediting or impeaching testimony will serve as an invitation to the jury to abdicate its own responsibility, relying on the questionable premise that the expert is in a better position to make such
a judgment." This reluctance has been criticized by some authorities
who point to work done by psychologists with simulated juries to
demonstrate that juries are as capable of weighing expert testimony
as they are of weighing any other kind of evidence." Recently, the
courts have begun to admit expert testimony that directly or indirectly
speaks to the credibility of other witnesses.
Issues as to the admissibility of such testimony have arisen in
a variety of cases. Courtroom advocates have been most successful
in loosening the traditional bar to such expert testimony in cases involving the credibility of children and women who are victims of sexual or domestic violence. 5 Efforts to introduce expert testimony about
the credibility of other witnesses, such as eye witnesses to crimes,
have met with far more limited success, and the use of "scientific
machines," such as the polygraph or lie-detector, to test a witness'
credibility remains controversial."
1. Expert Testimony about Ordinary Witness Credibility
Given the importance of the jury's evaluation of witness demeanor, it is almost surprising that there are no reported cases in
which a party has proffered expert psychological testimony to educate
the jury, generally, about how to read a person's demeanor to determine whether or not he is lying. Such evidence would not be totally
frivolous, as there are indeed experts who have studied non-verbal
behavior for clues to whether or not a person is telling the truth and
who believe that ordinarily one's ability to detect a liar can be improved by such knowledge. 7 Empirical studies, for example, have
13. State v. Kim, 645 P.2d 1330, 1334 (Hawaii 1982).
14. Imwinkelried, The Standardfor Admitting Scientific Evidence: A Critique
from the Perspective of Juror Psychology, 28 VILL. L. REV. 554, 566 (1983) (argues that
there is little or no objective support for the assertion that jurors attach too much
weight to scientific evidence and that the available data points to the contrary).
17. See generally P. EKMAN, supra note 12.
1986]
WITNESS CREDIBILITY
shown that there are certain involuntary muscle movements that indicate when a person has been emotionally aroused, the knowledge
of which can aid another-for example, a juror-in detecting some
lies.'8
In one sense, experts in non-verbal behavior have already found
a way into some courtrooms, indirectly. For more than half a century, advocates have sought to introduce polygraph evidence to impeach or accredit the testimony of witnesses.'9 The polygraph itself
works by recording changes in the subject's autonomic nervous system
activity, such as heart rate, blood pressure, skin conductivity, and skin
temperature. However, the polygraph examiner is usually a person
who has some training in reading other verbal and non-verbal behavior
to aid in interpreting the signs of emotional arousal or non-arousal
that the machine records. ' At trial, since the machine cannot testify,
it is the expert examiner whose testimony is offered.
The use of polygraph evidence at trial has been, and remains,
enormously controversial, both in the literature" and in the courts.'
18. Id. at 197.
19. The leading case for many years was Frye v. United States, 293 F. 1013
(D.C. Cir. 1923), in which the court ruled that the precursor of the modern polygraph was
inadmissible and set forth a standard for admitting scientific evidence.
For a discussion of the Frye test and its impact see Gianneli, The Admissibility of Novel Scientific Evidence: Frye v. United States a Half-Century Later, 80 COLUM.
L. REV. 1 (1980).
20. For a description of how the polygraph works, see P. EKMAN, supra note
12, at 197.
21. Eckman suggests that more than 4,000 books and articles on the scientific reliability of the polygraph have been published, although fewer than 400 actually report research, and of those, no more than 30 to 40 meet minimum scientific
safeguards. P. ECKMAN, supra note 12, at 191.
For a list of citations to articles on the use of the polygraph, see State v.
Dean, 103 Wis. 2d 228, 234, 307 N.W.2d 628, 631, n.2 (1981).
In 1984, the Congressional Office of Technology Assessment (OTA) issued a
report on the scientific evidence about the accuracy of the polygraph. The report,
although cautious in its conclusions, found that there is some evidence that polygraph
examinations do better than chance in detecting lies when used in investigating specific
criminal incidents. The accuracy varies depending on the particular lie, the liar, the
questioning technique adopted by the examiner, the examiner's skill in designing questions to be asked, and how the polygraph charts are scored. It remains to be seen
how much impact the OTA report will have on the courts. OFFICE OF TECHNICAL
ASSISTANCE, UNITED STATES CONGRESS, SCIENTIFIC VALIDITY OF POLYGRAPH TESTING: A
(1983).
22. The courts have charted several approaches to the admissibility of
polygraph evidence at trial. A small minority of states allow polygraph results to be
introduced into evidence even over the objections of one of the parties. See, e.g., State
v. Dorsey, 88 N.M. 184, 539 P.2d 204 (1975); State v. Olmstead, 261 N.W.2d 880
(N.D. 1978).
RESEARCH REVIEW AND EVALUATION
150
[Vol. 20
The debate over its use rests only partially on the scientific reliability of the instrument, although that is clearly a major problem for
many courts.' What makes the polygraph unacceptable to most courts,
however, is the fact that it is seen as an intrusion into the heart of
the jury system for finding truth. The irony of polygraph evidence
is that a court may be convinced that it is sufficiently reliable to be
admissible, yet exclude it for that very reason because too little would
be left to the jury's traditional role as truth-seeker if the test results
were admitted."4 More than any human expert, the polygraph is seen
as having a special "aura of infallibility, akin to the ancient oracle
of Delphi" that the jurors are thought to find hard to ignore. 5 Thus,
to the extent that the polygraph results are accepted as unimpeachable
or conclusive by the jurors, despite cautionary instructions to the contrary by the judge, the jury's traditional responsibility to collectively
ascertain the guilt or innocence of the defendant is preempted by the
Several states allow polygraph results only on the written stipulation of the
parties, subject to the discretion of the trial judge, cross-examination, and requisite
jury instructions. See, e.g., Valdez v. State, 91 Ariz. 274, 371 P.2d 894 (1962); People
v. Levelson, 54 Mich. App. 477, 221 N.W.2d 235 (1974); State v. Jackson, 287 N.C. 470,
205 S.E.2d 123 (1975); Washington v. Woo, 84 Wash. 2d 472, 527 P.2d 271 (1974). But
see State v. Dean, 103 Wis. 2d 228, 307 N.W.2d 628 (1981).
Most states and the federal courts still prohibit the use of polygraph results,
reasoning that the scientific reliability of the machine is still open to question and
that a stipulation of the parties adds nothing to the reliability of the test. See, e.g.,
People v. Anderson, 637 P.2d 354 (Colo. 1981); People v. Baynes, 88 Il. 2d 225,
430 N.E.2d 1070 (1981); Akonom v. State, 40 Md. App. 676, 394 A.2d 1213 (1979); State
v. Biddle, 599 S.W.2d 182 (Mo. 1980); State v. Brown, 297 Or. 404, 687 P.2d 751 (1984).
23. See, e.g., United States v. Alexander, 526 F.2d 161 (8th Cir. 1975) for a
long decision discussing the scientific acceptability standard for Frye as it applies to
polygraph evidence. The court concluded that there was insufficient scientific acceptability of the polygraph to warrant its admission into evidence, distinguishing the
polygraph from other kinds of scientific evidence dealing with physical phenomena,
e.g., finger prints, handwriting, voice prints, ballistics, and neutron-activation analysis.
The court also noted that polygraphy remains an art with unusual responsibility placed
on the examiner in preparing the test, discussing it with the examinee, and introducing the examinee to the method. Id. at 167.
An additional problem with the polygraph is that pathological liars can beat
the machine.
24. Id. at 168. "The jury institution was created and maintained due to the
public reluctance to entrust plenary powers over the life and liberty of the citizen
to one judge or to a group of judges . . . [if polygraph evidence were admitted], a
single person, the polygraph examiner, will give testimony which will often be the
determinative factor as to the guilt of innocence of a defendant in a jury-tried case.
This would deprive the defendant of the common sense and collective judgment of
his peers, derived after weighing facts and considering the credibility of witnesses,
which has been the hallmark of the jury tradition." Id.
25. Id. at 168.
1986]
WITNESS CREDIBILITY
expert scientific evidence. An additional concern is that there is a
potential conflict with constitutional guarantees, since a defendant
presumably could not be required to submit to a polygraph without
violation of his fifth amendment rights.
Despite its tremendous potential as a tool for aiding juries in
determining the credibility of witnesses, the polygraph remains little
used in most courtrooms. The same is true of expert psychological
testimony about the meaning of a person's non-verbal behavior.
Expert testimony concerning a particularwitness' demeanor may
be admitted where there are unusual circumstances. In two recent
cases, Arizona courts have overturned trial judge decisions to exclude
such testimony.' In both cases, the defendant sought to introduce expert testimony that a witness suffered from a mental deficiency that
should be taken into account by the jury in evaluating that witness'
testimony. The witness in the first case was the nine-year-old victim
of child molestation, sexual abuse, and aggravated assault. At the request of the defendant, the court ordered two psychiatrists to examine
the child to aid in determining her competency to testify at trial. The
experts reached opposite results. After an in camera hearing, the court
found the girl competent to testify. Defense counsel sought to introduce the expert who had questioned the child's competency so that
the jury could hear that the victim suffered an organically-based learning disability which severely limited her verbal intellect, such that
she would not be a reliable witness because she could not understand
any but the simplest questions, and had a defective memory." The
trial court ruled that competence was for the court and excluded the
testimony. On appeal, the Arizona court held that the jury should
be informed of all matters which may in the slightest affect a witness'
credibility, and reversed.2"
In the second case, the witness whose credibility was at issue
was the defendant in a criminal case, who suffered from mental retardation and organic brain syndrome.' The defendant took the stand
in his own behalf, and then sought to introduce expert testimony about
his I.Q. to explain his demeanor on the stand. Again, the trial court
excluded the testimony, and again the appellate court reversed. The
high court explained:
26. State v. Gonzales, 140 Ariz. 349, 687 P.2d 1368 (1984); State v. Roberts,
139 Ariz. 117, 677 P.2d 280 (1983).
27. Roberts, 139 Ariz. at 120, 677 P.2d at 284.
28. Id. at 121, 677 P.2d at 284.
29. Gonzales, 140 Ariz. at 349, 681 P.2d at 1368 (1984).
152
[Vol. 20
A witness who is mildly retarded may appear to the jury
to be dishonest even when telling the truth because of
underdeveloped social skills. Where apprehensive responses
to questions by counsel and failure to look directly at the
jurors during the trial result from low intelligence rather
than from consciousness of guilt or fabrication of the truth
a witness' intelligence is relevant to assessing his credibility.'
The Arizona cases both present the kind of unusual circumstances
that compel the admission of such testimony: the kinds of impairments
suffered by the witnesses were physical in nature, rather than
psychological, and the witnesses themselves were central to the casethe defendant in one, and the victim in the other. Moreover, Arizona
courts are particularly liberal in admitting psychological testimony."
Generally, courts have been reluctant to admit expert
psychological testimony to establish the incompetency of a witness
because of his mental state, or to impeach the witness' credibility.2
Among the most frequently cited cases are two federal cases, United
States v. Hisse and United States v. Hearst,' both of which were highlypublicized but failed to open the door to similar expert testimony in
other less celebrated cases. In the Hiss case, the defense sought to
discredit the main government witness, Whittaker Chambers, by the
use of expert testimony that Chambers was "mentally deranged" and
thus incapable of testifying truthfully.' The court could find no federal
case law on the issue, and relied on a handful of state cases to allow
the testimony because of what it called "unusual circumstances."'
When defendants in later cases tried to introduce the same kind
of evidence, they were less successful in convincing the courts that
sufficiently unusual circumstances existed to warrant admitting expert testimony to impeach a witness. In one such case, the defendant
proffered a psychiatrist who was prepared to testify that a prosecution witness was a "sociopath who would lie when it was to his advantage to do so."3 The trial court refused to admit the testimony,
30. Id. at 353, 681 P.2d at 1372-73.
31. Arizona was the first state to report an appellate decision in which the
exclusion of "eyewitness expert" testimony was reversed. See State v. Chapple, 135
Ariz. 281, 660 P.2d 1208 (1983).
32. But see C. MCCORMICK, supra note 3, at S 45 (criticizing courts that have
limited the use of such testimony).
33. United States v. Hiss, 88 F. Supp. 359 (S.D.N.Y. 1950).
34. United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977).
35. Hiss, 88 F. Supp. 359.
36. Id. at 360.
37. United States v. Barnard, 490 F.2d 907 (9th Cir. 1973).
19861
WITNESS CREDIBILITY
and the Ninth Circuit agreed, despite the fact that it was remarkably
similar to the kind of evidence that had been heard in the Hiss case.
The court gave two reasons for excluding the testimony. First, it
feared that it might cause the jurors to surrender their own common
sense in weighing the testimony, the same fear that echoes throughout
the cases that reject the use of polygraph evidence to impeach or
accredit a witness. Second, the court seemed to anticipate what would
in fact happen in the Hearst case: that the admission of such testimony
would lead to a battle of the experts, or a trial within a trial on the
"collateral matter" of whether or not the witness was telling the
truth.' Those same concerns have been reiterated in later cases excluding similar expert testimony.3 9
There is little doubt that the underlying concern has much to
do with judicial distrust of the science or art of psychology, along
with an ambivalent attitude toward the jury. On the one hand, courts
articulate a strong belief in the value of the jury system and a desire
to protect the traditional role of the jury as fact finder. At the same
time, there is often a lack of faith in the jury's ability to discern truth
that is reflected in the decision to withhold information from the jury
because of the fear that lay jurors will be unable to pierce through
its "aura of scientific reliability" to perform their highly valued
function.
Where a witness is not competent to testify, or may be hurt
by testifying, expert psychological testimony may be offered to
establish that the witness is "psychologically unavailable" for trial to
provide a basis for admitting otherwise inadmissible hearsay (e.g., prior
trial or deposition testimony) in lieu of live testimony.0 Since that
38. Id. at 912.
39. United States v. Jackson, 576 F.2d 46 (5th Cir. 1978); Beesher v. State,
522 S.W.2d 761 (Mo. 1975), cert. denied, 423 U.S. 946 (1973). See also United States
v. Wertis, 505 F.2d 683 (5th Cir. 1974), cert. denied, 422 U.S. 1045 (1973), in which
the court explained why it would not allow psychiatric opinion as to the witness' tendency to be reliable in distinguishing truth from nontruth and realities from fantasies:
"[Such testimony] is beyond the competence of any witness. Peeled of its thin veneer
of jargon, it amounts to no more than an inquiry whether the witness is to be believed
by the jury or not."
40. See, e.g., State v. Burne, 112 Wis. 2d 131, 332 N.W.2d 757 (1983) (the
testimony of a sexual assault and kidnapping victim given at a preliminary hearing
was admitted over the objection of the defendant, because the victim had since become
a catatonic schizophrenic who could not testify); Warren v. United States, 436 A.2d
831 (D.C. 1981) (allowing statements from an earlier trial to be used in lieu of testimony
on retrial of defendant for rape, assault, armed kidnapping, and robbery, where
psychiatric experts agreed that the victim would likely suffer severe psychosis, even
possibly suicide, if she was forced to testify). See also People v. Gomez, 26 Cal. App.
154
[Vol. 20
determination is one to be made by the court, not a jury, there does
not seem to be any reluctance to hear the testimony. To the contrary,
expert testimony would seem to be required to prove the mental
status of the witness.
The credibility of a witness does not rest solely on the intended
truthfulness of the witness. Equally important is the ability of the
witness to accurately perceive the questioned event, and to remember
what was perceived. Jurors can disbelieve an eyewitness who thinks
he is being candid because they believe the witness could not have
perceived the event clearly, or that the witness' memory has been
weakened or distorted by time and intervening events.
The United States Supreme Court has long recognized that there
are problems with eyewitness identifications: that an eyewitnesses'
recollection of an encounter with a stranger under emergency or emotionally stressful conditions can be distorted easily by the circumstances, or by later actions of the police. 1 For example, Justice
Brennan noted in United States v. Wade,42 almost two decades ago,
that, "[T]he vagaries of eyewitness identification are well known; the
annals of criminal law are rife with instances of mistaken identification.""3 In providing for the right to counsel at line-ups, the court in
Wade recognized the inherent untrustworthiness of an identification
of a stranger made by a witness who may have observed the stranger
for only a few moments. The danger of misidentification is exaggerated
by intentional or unintentional suggestions by the police or prosecutor,
particularly when the witness is susceptible to such suggestions
because he knows he had only a limited opportunity to observe.
Psychologists have focused a great deal of attention on the problems associated with eyewitness testimony. Research findings about
the limitations of human perception and memory are reported in books
and highly respected journals." Experts and commentators have concluded from reported data that the average juror is not very good
3d 225, 228, 103 Cal. Rptr. 80, 82 (1972) (two psychiatrists testified that the witness
was very vulnerable to stress, and her present and future mental health might be
injured by testifying); People v. Lombardi, 39 A.D.2d 700, 701, 332 N.Y.S.2d 749 (1972),
aff'd, 33 N.Y.2d 658, 348 N.Y.S.2d 980 (1973), cert. denied, 416 U.S. 906 (1974) (rape
victim found to be "unavailable" on the basis of psychiatric testimony that her mental
health would be seriously jeopardized, and she might make further suicide attempts
if forced to testify at trial).
41. Manson v. Brathwaite, 432 U.S. 98 (1977).
42. United States v. Wade, 388 U.S. 218, 228-29 (1967). See also Manson v.
Brathwaite, 432 U.S. 98 (1977); Neil v. Biggers, 409 U.S. 188 (1972).
43. Wade, 388 U.S. at 228.
44. EVALUATING WITNESS EVIDENCE: RECENT PSYCHOLOGICAL RESEARCH AND
WITNESS CREDIBILITY
19861
at judging the reliability of eyewitness testimony, because he or she
may draw "intuitive conclusions" about human perceptions and
memory that are not necessarily supported by empirical studies.45
Given the historical recognition by the courts of the weaknesses
inherent in eyewitness testimony, the increasing volumes of
psychological data, and the sense that jurors are not necessarily
familiar with the findings of psychologists, it is not surprising that
advocates have introduced into the courtrooms experts in eyewitness
testimony. Generally, the goal is to educate jurors as to general
psychological findings and studies on human perception and/or memory.
Appellate courts have been reluctant to sanction such evidence.
Until very recently, they were practically unanimous in upholding trial
court decisions excluding such expert testimony for a variety of
reasons.46 The leading case rejecting such testimony is United States
v. Amaral.4" The defendant in that case had been charged with bank
robbery, and his attorney sought to introduce evidence by a Ph.D.
psychologist on the effect of stress on perception and the general
unreliability of eyewitness testimony. The Ninth Circuit Court of Appeals applied the Frye test" for admission of scientific evidence, which
requires that novel scientific evidence meet a threshold foundational
requirement. The requirement is that the underlying scientific principle or technique be generally accepted in the field to which it belongs.
Applying this test, the court found the psychologist's expertise in
NEW PERSPECTIVES (C. Lloyd-Bostock & I. Clifford eds. 1983); EYEWITNESS TESTIMONY:
PSYCHOLOGICAL PERSPECTIVES (C. Wells & E. Loftus eds. 1983); E. LOFTUS, EYEWITNESS
TESTIMONY (1979); SOBEL, EYEWITNESS IDENTIFICATION: LEGAL AND PRACTICAL PROBLEMS
(2d ed.
1974); YARMEY, THE PSYCHOLOGY OF WITNESS TESTIMONY (1979).
45. Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the
Unrelfability of Eyewitness Identification, 29 STAN. L. REV. 969 (1977).
46. State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983) (this is the first
reported decision where an appellate court found the trial court's refusal to allow
such testimony was an abuse of discretion). Since Chapple, several influential courts
have found that such testimony should not necessarily be excluded. United States v.
Downing, 753 F.2d 1224 (3d Cir. 1985); United States v. Smith, 736 F.2d 1103 (6th Cir.
1984) (per curiam); People v. McDonald, 37 Cal. 3d 351, 690 P.2d 709, 208 Cal. Rptr.
236 (1984) (en banc).
However, appellate decisions are misleading since such testimony is almost
always offered by the defendant, who would not appeal a decision when the testimony
is accepted and the defendant acquitted. One psychologist has testified that she had
been allowed to testify at more than thirty-four cases in various states, and knew
of another expert who had been permitted to testify in more than twenty trials. State
v. Warren, 230 Kan. 385, 395, 635 P.2d 1236, 1243 (1981) (Dr. Loftus' testimony).
47. United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973).
48. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
156
[Vol. 20
eyewitness testimony to be lacking. Moreover, the court reiterated
a preference for the traditional guarantor of witness credibility: crossexamination. Expert testimony was unnecessary, the Ninth Circuit
decided, because the research findings on the effects of stress on
perception could be effectively communicated to the jury by a probing cross-examination of the witness."9
Although the psychologists have made enormous contributions
to the state of the art in the eleven years since Amaral was decided,'
the vast majority of reported decisions continue to allow trial courts
to exclude expert testimony on the subject."1 At times, appellate courts
simply defer to the trial courts, reasoning that the admissibility of
expert testimony is within the discretion of the trial court and ought
not be overturned absent an abuse of such discretion.2 More often
they rely on one or more of the concerns first articulated in the
Amaral case: that the scientific basis for such testimony is not sufficiently reliable, despite advances in the field;' that the subject matter is within the common knowledge of the jury, making it inappropriate for expert testimony, even where the court recognizes that
49. Amaral, 488 F.2d at 1152.
50. In 1984, two leading researchers estimated that more than 85% of the
entire published literature on eyewitness testimony has surfaced since 1978. See C.
WELLS & E. LoFTus, EYEWITNESS IDENTIFICATION 3 (1985).
51. Dyas v. United States, 376 A.2d 827, 831-32 (D.C.), cert. denied, 434 U.S.
973 (1977); United States v. Fosher, 590 F.2d 381, 382-84 (1st Cir. 1979); United States
v. Thevis, 665 F.2d 616, 641 (5th Cir.), cert. denied, 103 S. Ct. 57 (1982); United States
v. Watson, 587 F.2d 365, 368-69 (7th Cir. 1978), cert. denied sub nom., Davis v. United
States, 439 U.S. 1132 (1979); United States v. Brown, 501 F.2d 146, 150-51 (9th Cir.
1974), rev'd sub nom. on other grounds, United States v. Nobles, 422 U.S. 225 (1975);
United States v. Brown, 540 F.2d 1048, 1053-54 (10th Cir. 1976), cert. denied, 429 U.S.
1100 (1977); People v. Lawson, 37 Colo. App. 442, 551 P.2d 206 (1976); Jones v. State,
232 Ga. 762, 208 S.E.2d 850 (1974); State v. Hoisington, 104 Idaho 165, 657 P.2d 17
(1983); People v. Dixon, 87 Ill. App. 2d 814, 410 N.E.2d 342 (1977); State v. Moore,
230 Kan. 495, 497, 639 P.2d 458, 460 (1982); State v. Warren, 230 Kan. 385, 393, 635
P.2d 1236, 1240-44 (1981); State v. Stucke, 419 So. 2d 939, 944-45 (La. 1982) (refusal
to allow identification was not an abuse of discretion where the court was concerned
about the competency of the tests, the number of variables, and the way the tests
were conducted); State v. Fernald, 397 A.2d 194, 197 (Me. 1979); Commonwealth v.
Francis, 390 Mass. 89, 453 N.E.2d 1204 (1983); State v. Helterbridle, 301 N.W.2d 545,
547 (Minn. 1980); People v. Brown, 124 Misc. 2d 938, 479 N.Y.S.2d 110 (1984); State
v. Porraro, 404 A.2d 465 (R.I. 1979); Welch v. State, 677 S.W.2d 562 (Tex. Ct. App.
1984); State v. Onorato, 142 Vt. 99, 453 A.2d 393 (1982).
52. State v. Galloway, 275 N.W.2d 736 (Iowa 1979); State v. Helterbridle, 302
N.W.2d 545 (Minn. 1980); Hampton v. State, 92 Wis. 2d 450, 285 N.W.2d 868 (1979).
53. United States v. Watson, 587 F.2d 365, 369 (7th Cir. 1978), cert. denied
sub nom., Davis v. United States, 439 U.S. 1132 (1979); State v. Stucke, 419 So. 2d
939, 944-45 (La. 1982); Commonwealth v. Francis, 390 Mass. 89, 453 N.E.2d 1204 (1983).
WITNESS CREDIBILITY
1986]
a proffered expert has a high degree of expertise;' the fear that
always surfaces when experts are proffered, that the trial will take
too long, will become bogged down in collateral matters, or will
degenerate into an expensive battle of experts.55 The last concern is
not a frivolous one, since eyewitness expertise is almost always offered by defense counsel in criminal cases and criminal defendants
are frequently poor. Opening the door to such testimony may well
result in opening the public purse.' Of course, if an innocent defendant is deprived of a fair trial because the jury did not hear relevant,
reliable evidence that would have changed its verdict, the cost to
society is far greater than the monetary cost of providing free expert testimony, however expensive it may be.
Some courts that purport to recognize the inherent weaknesses
of eyewitness identification continue to find that cross-examination
is a more appropriate tool for testing the perception and memory of
an eyewitness than are generalizations made by a psychologist, or
they believe that cautionary instructions to the jury will provide sufficient safeguards.5 7 It is hard to believe that such testimony would
not have a greater impact on the jury, especially since research findings contradict some widely held beliefs about what factors make a
person perceive, remember, and report an event accurately. Judges,
as well as jurors, may share those erroneous beliefs, and may instruct
jurors on the basis of such beliefs if there is no expert evidence to
contradict them.'
54. See, e.g., State v. Hoisington, 104 Idaho 165, 657 P.2d 17 (1983); State v.
Warren, 230 Kan. 385, 393, 635 P.2d 1236, 1241 (1982); Commonwealth v. Francis, 390
Mass. 89, 453 N.E.2d 1204 (1983); State v. Helterbridle, 301 N.W.2d 545, 547 (Minn.
1980); State v. Porraro, 404 A.2d 465, 471 (R.I. 1979); State v. Onorato, 142 Vt. 99,
437 A.2d 393 (1982).
55. See, e.g., Commonwealth v. Francis, 390 Mass. 89, 453 N.E.2d 1204 (1983).
56. A number of indigent defendants have tried to have the state pay for
experts in the area of reliable eyewitnesses. In the reported cases thus far, those
efforts have failed. See State v. Moore, 230 Kan. 495, 639 P.2d 458 (1982); People v.
Brown, 124 Misc. 2d 938, 479 N.Y.S.2d 110 (1984); State v. Sellers, 52 N.C. App. 380,
278 S.E.2d 907, 915 (1981).
57. State v. Warren, 230 Kan. 385, 395, 635 P.2d 1236, 1243 (1983). See also
State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980) (in which the court suggested
that additional safeguards include the prosecutor's discretion not to prosecute a case,
and the trial court's ability to suppress improper identification testimony).
58. If precautionary instructions are to safeguard the defendant, they must
accurately reflect the state of the art. In State v. Warren, 230 Kan, 385, 395, 635
P.2d 1236, 1240 (1981), the Kansas court excluded expert testimony on eyewitnesses
bec"use it felt that cross-examination and precautionary instructions would adequately safeguard the defendant. The court suggested that a juror should evaluate credibility
based on five factors. Id. at 390, 635 P.2d at 1240 (the factors were mentioned by
Powell, J., in Neil v. Biggers, 409 U.S. 188 (1972)).
158
[Vol. 20
There is some indication that the law is beginning to recognize
the value of psychological expertise in this area. Recently, a few appellate decisions have opened the door to expert testimony about
eyewitnesses. While few in numbers, the decisions are likely to be
important because they come from highly respected and influential
courts. 9
In People v. McDonald,6" the California Supreme Court met the
issue head on for the first time. Defense counsel in a murder case
sought to introduce expert testimony on the psychological factors affecting accuracy of eyewitness testimony. The expert, a licensed
psychologist and professor with twenty years experience, intended
to testify about empirical research that he believed undermined a
number of widespread lay beliefs about the psychology of eyewitness
identification, for example, that the accuracy of a witness' recollection increases with his certainty, that accuracy is also improved by
stress, that cross-racial factors are not significant, and that the reliability of an identification is unaffected by the presence of a weapon or
violence at the scene. 1 The People objected on the grounds that to
admit the testimony would "usurp the jury's function" and the trial
court agreed to exclude the evidence, noting that such testimony might
have a tendency to cause confusion in the jurors' minds, and that it
was not "scientific enough at this point in time." 2
In a long decision, the appellate court reversed, reiterating that
the decision to admit or exclude expert testimony on psychological
factors affecting eyewitness identification remains primarily a matter
within the trial court's discretion. The court noted, however, that
"when an eyewitness identification of the defendant is a key element
The factors include: (1) the witness' opportunity to view; (2) his degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level
of certainty demonstrated by the witness at the confrontation; and (5) the length of
time between the crime and confrontation. Presumably, the proper precautionary instructions would direct the jury's attention to those factors. However, such instructions would not necessarily reflect current state of the art, as there is some experimental
data indicating there is no relationship between the confidence that a witness has
in his or her identification and the actual accuracy of that identification. See State
v. Chapple, 135 Ariz. 281, 291, 660 P.2d 1208, 1221 (1983) (proffered testimony of Dr.
Loftus); Accord People v. McDonald, 37 Cal. 3d 351, 364, 690 P.2d 709, 718, 208 Cal.
Rptr. 236, 245 (1984) (proffered testimony of Dr. Shomer).
59. United States v. Downing, 753 F.2d 1224 (3d Cir. 1985); United States v.
Smith, 736 F.2d 1103 (6th Cir. 1984); People v. McDonald, 37 Cal. 3d 351, 690 P.2d
709, 208 Cal. Rptr. 236 (1984).
60. McDonald, 37 Cal. 3d 351, 690 P.2d 709, 208 Cal. Rptr. 236.
61. Id. at 326, 690 P.2d at 716, 208 Cal. Rptr. at 243.
62. Id. at 363, 690 P.2d at 716-17, 208 Cal. Rptr. at 244.
1986]
WITNESS CREDIBILITY
of the prosecution's case but is not substantially corroborated by
evidence giving it independent reliability and the defendant offers
qualified expert testimony on specific psychological factors shown by
the record that could have affected the accuracy of the identification
but are not likely to be fully known or understood by the jury it will
ordinarily be error to exclude the testimony.""
In reaching its decision, the court noted the volume of empirical
studies that had been published on the subject and refuted the
justifications usually given to exclude such evidence. First, the court
agreed that a party may not impeach a witness by calling another
witness to testify to the former witness' capacity. The court suggested,
however, that the expert was not being called to testify about any
particular witness' capacity to perceive, but rather to inform the jury
about general psychological factors that may impair the accuracy of
a typical eyewitness."
Second, the court made a distinction between the testimony of
an expert's opinion and an expert's testimony as to facts, and made
the dubious characterization of the proposed testimony as testimony
"primarily as to matters of fact: the contents of eyewitness identification studies reported in the professional literature -their methodology,
their data, and their findings-are facts, verifiable by anyone who
can read and understand the studies in question." 5 Anyone who has
read reports of empirical studies knows that they are replete with
assumptions, presumptions, and inferences, and that the heart of such
studies-i.e. the authors' explanations of their findings-are frequently only loosely derived from tested hypotheses.' Thus, to characterize
such evidence as "facts" rather than opinion is to play loosely with
language.
More to the point, the court rejected several arguments against
admissibility of such evidence. The court recognized that expert
testimony need not be about a subject that is totally "beyond common experience" so long as it is sufficiently beyond common experience
that the opinion of an expert would assist the trier of fact.67 The court
also disposed of the argument that admitting expert testimony on
65. Id. at 366-67, 690 P.2d at 719, 208 Cal. Rptr. at 246.
66. That is not to suggest that such findings are not in fact useful, but merely
that the "scientific method" followed by experimental psychologists is subject to the
same limitations as that method as when pursued by all scientists. See S. GOULD, THE
MISMEASURE OF MAN (1981).
67. McDonald, 37 Cal. 3d at 367, 690 P.2d at 720, 208 Cal. Rptr. at 247.
160
[Vol. 20
eyewitness testimony would "invade the province of the jury." The
court agreed with Dean Wigmore that such language is merely "empty
rhetoric," since the jurors retain the power and duty to determine
the amount of credibility to be given to the witness, taking into account the factual background provided by the expert."
More recently, the Third Circuit became the second federal appeals court to hold that a trial judge erred in excluding expert
psychological testimony on the reliability of eyewitness identification,
and the first to remand for that reason. 9 The decision may have wide
impact, not only on the developing rules regarding eyewitness experts,
but, more importantly, on psychological testimony in general. The
Third Circuit specifically rejected the Frye test and set forth a new
balancing test for determining the admissibility of expert testimony.
The court began its analysis by interpreting Rule 702 of the Federal
Rules of Evidence 0 as mandating a "liberal standard of admissibility"
and by suggesting that the rejection of eyewitness expert testimony
by other courts was not consistent with the liberal standard of Rule
702. Instead, the court noted, there will be some cases in which the
testimony will in fact satisfy the appropriately liberal standard of Rule
702 that testimony be helpful to the jury. District courts are to make
a preliminary inquiry to determine the admissibility of "novel scientific evidence," defined by the Third Circuit as "evidence whose scientific fundaments are not suitable candidates for judicial notice,"'" to
determine whether that standard is met in a particular case.
Part one of the three-prong test focuses on the reliability of the
evidence. This threshold reliability determination is to take the place
of the "nose-counting" of the old Frye test. It is to be a flexible inquiry, in which the court considers not only the scientific acceptance
of the new technique, but such factors as the relationship of the new
technique to more established modes of scientific analysis and the existence of specialized literature dealing with it (two factors which help
a court determine whether or not the scientific basis of the new tech68. Id. at 370, 690 P.2d at 722, 208 Cal. Rptr. at 249.
69. United States v. Downing, 753 F.2d 1224 (3rd Cir. 1985). Earlier, the Sixth
Circuit had held that expert testimony and the reliability of eyewitness testimony
had been improperly excluded, but found that the exclusion was harmless error and
did not require reversal on remand. United States v. Smith, 736 F.2d 1103 (6th Cir. 1984).
70. FED. R. EVID. 702 provides: "If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."
71. United States v. Downing, 753 F.2d at 1224, 1230 (3d Cir. 1985).
WITNESS CREDIBILITY
1986]
nique has been exposed to sufficient critical scientific scrutiny), the
qualifications and professional stature of the proffered expert witness,
the non-judicial uses to which the technique has been put, the frequency with which it leads to erroneous results, and any expert
testimony from previous cases in support or opposition to the evidence.
These factors are to be examined to make a determination of the
"soundness and reliability of the process or technique used in
generating the evidence."72
The second part of the test involves possible prejudice. The trial
court is directed to consider the possibility that admitting the evidence
would "overwhelm, confuse or mislead" the jury.3 Thus, for reasons
that the Third Circuit called "policy considerations involved in determining the likelihood that a particular type of evidence will mislead
the jury," the trial court is vested with discretion to balance reliability and prejudice.
Finally, the court must consider the relevancy or "fit" of the
proffered evidence, "the proffered connection between the scientific
research or test result to be presented, and particular, disputed factual issues in the case."7' In the case of eyewitness experts, the defendant who seeks to admit such testimony must make a detailed showing to the court that establishes the presence of factors (e.g., stress,
or racial differences between the witness and defendant) which have
been found by researchers to impair the accuracy of eyewitness identification."5 General testimony about the unreliability of eyewitness
identification would thus be inadmissible under the new standard. Having departed from the Frye test, and opened the door to more liberal
use of psychological testimony, the Third Circuit may well have led
the way for other jurisdictions to do the same.
2.
Expert Testimony and the Credibility of Children
Traditionally, certain kinds of witnesses, notably children and
women who claim to be victims of rape and domestic abuse, have posed
special credibility problems for the courts. Increased awareness of and
sensitivity to the needs and problems of women and children in
general, and those who are victims in particular, has led to the whittling away of some traditional barriers to expert testimony. Recent
72.
73.
74.
75.
Id.
Id. at 1231.
Id. at 1242.
Id.
162
[Vol. 20
psychological and sociological studies leave open the possibility of further inroads into the rules against expert testimony about the credibility of victim-witnesses.
Historically, children have been viewed as less reliable witnesses
than adults, and the law has treated child witnesses with great skepticism. While adults have been presumed to be competent witnesses,
until recently the general rule was that children below a certain age
were presumptively incompetent to testify at trial and their competency had to be established in every case. 6 Some states required corroboration of children's testimony in certain cases, notably those involving charges of sexual assault.7 Finally, courts have permitted at8
torney comments on the untrustworthiness of children's testimony
and, at times, judges were required to give special precautionary instructions to the jury about the credibility of children. 9
76. In a frequently cited case, the Supreme Court held that a trial judge should
make a case by case determination of the child's competency to testify, based on the
"capacity and intelligence of the child, his appreciation of the difference between truth
and falsehood, as well as his duty to tell the former." Wheeler v. United States, 159
U.S. 523, 524-25 (1895).
The requirement that the competency of a child witness be established in each
case continues to be the rule in the overwhelming majority of the states, despite the
recommendations of most authorities. See, e.g., Collins & Bond, Youth as a Bar to
Testimonial Competence, 8 ARK. L. REV. 100 (1953); Melton, Children's Competency to
Testify, 5 LAW & HUM. BEHAV. 73 (1981); Siegal & Hurley, The Role of the Child's
Preference in Custody Proceedings, 11 FAM. L.Q. 1 (1977); Thomas, The Problem of the
Child Witness, 10 Wyo. L.J. 214 (1956).
Only a few states have followed the lead of the Federal Rules of Evidence,
which effectively eliminate all grounds for competency, including age. See FED. R.
EVID. 601, providing that, "[Eivery person is competent to be a witness except as
otherwise provided in these rules."
77. Lloyd, The Corroborationof Sexual Victimization of Children, in CHILD SEXUAL ABUSE AND THE LAW 103-124 (J. Bulkley ed. 1983). See also Gertner, The Unsworn
Evidence of Children and Mutual Corroboration,16 OSGOODE HALL L.J. 495 (1978).
78.
United States v. Bear Ribs, 722 F.2d 420 (8th Cir. 1983); Fitzgerald v.
United States, 443 A.2d 1295 (D.C. App. 1982) (requiring corroborative evidence). See
also 3A J. WIGMORE, EVIDENCE S 924(a) (1970).
79. See, e.g., 81 AM. JUR. 2D Witnesses S 667 (1976): "In determining the
credibility of a witness, and the weight accorded his testimony, regard may be had
to his age and mental or physical condition, such as whether the witness is a child,
is intoxicated, is a narcotics addict, or is insane or of unsound and feeble mind."
H. BREENE & T. GUIDABONI, CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA
55 (3d ed. 1975): "Children are more suggestible than adults. Moreover, children may
not have a full understanding of the serious consequences of the testimony they give.
You should consider the capacity of a child witness to distinguish truth from falsehood
and to appreciate the seriousness of this testimony."
19861
WITNESS CREDIBILITY
Distrust of the child witness continues to be a factor in the legal
system, despite increased attention to the child witness in both the
legal' and psychological" literature, and heightened public awareness
of the frequency with which children are the victims of abuse and
sexual assault. It can be seen in the reluctance of prosecutors to pursue cases in which the sole or main witness is a child,8 ' and in the
way that jurors respond to children who do testify as witnesses. A
recent study, for example, of juror reactions to child witnesses offers
some evidence that juries do not lend the same credibility to children
that they do to adult witnesses.'
Historically, there seemed to be reason for the law's concern that
faulty memories and pressure on young "suggestible" minds from
parents or other adults would make children unreliable witnesses.'
80. See Lloyd, supra note 77. See also Hass, The Use of Videotape in Child
Abuse Cases, 8 NOVA L.J. 373 (1984); Parker, The Child Witness Versus the Press: A
Proposed Legislative Response to Globe v. Superior Court, 47 ALB. L. REV. 408 (1983);
Parker, The Rights of Child Witnesses: Is the Court a Protector or a Perpetrator?,17
NEW ENG. L. REV. 643 (1982); Skoler, New Hearsay Exceptions for Child's Statement
of Sexual Abuse, 18 J. MAR. 1 (1984); Note, Protecting Child Rape Victims from the
Public and Press after Globe Newspaper and Cox Broadcasting,51 GEO. WASH. L. REV.
269 (1983).
81. See, e.g., a recent issue of the Journal of Social Issues, which devoted the
entire issue to articles on criminal victimization. 40 J. Soc. Iss. (1984).
82. In a recent case, one New Jersey prosecutor testified that a review of
75-80 child abuse cases showed that 90% of the cases were dismissed as a result of
problems attendant to the testimony of child witnesses. State v. Sheppard, 197 N.J.
Super. 411, 484 A.2d 1330 (1984).
83. Goodman, Golding & Haith, Juror's Reactions to Child Witnesses, 40 J.
Soc. Iss. 139 (1984). In a case study using mock jurors, the authors found that
testimony from an adult witness would more often be considered sufficient to find
a defendant guilty than would the same testimony if it came from a child. In effect,
the jury would give less credence to the testimony of children and would only convict
if the child's testimony was corroborated by other evidence. The authors found, however,
a "sleeper effect," i.e. that jurors would dissociate the evidence heard from the source
of the evidence. Thus, even those jurors who believed that a child would not or could
not provide accurate testimony would be influenced by the child's testimony, and would
ultimately credit such testimony if it was corroborated by evidence from other sources.
However, no such "sleeper effect" would be seen where the child was the sole witness
for one side. In those cases, it was more difficult to dissociate the testimony from
its source. This failure to credit children's testimony can be a problem, particularly
in certain child abuse cases where the child victim may be the only witness.
See also Yarmey & Jones, Is the Psychology of Eyewitness Identification a Matter of Common Sense?, in CHILD SEXUAL ABUSE AND THE LAW 13-40 (J. Bulkley ed. 1983),
for a study in which several groups of people were asked to judge the reliability of
a hypothetical eight-year-old child's testimony. Fewer than 50% felt that the child
would respond accurately to questions by police or in court.
84. For a discussion of early psychological studies, see Goodman, Children's
164
[Vol. 20
Psychologists no longer believe that such reason exists, however, as
current literature indicates that children are better witnesses than
the law and most lay persons believe. Generally, the credibility of
any witness rests on several factors: (a) the witness' ability to perceive
and understand the event that is experienced or witnessed; (b) the
ability to remember the event, since trial may not take place until
months or even years later; (c) the ability to communicate in a manner that is understandable to the trier of fact; and (d) the ability to
testify truthfully. On all counts, there seems little reason for the law
to disparage the testimony provided by children, particularly if jurors
are given some background about what is currently known about
children's abilities and limitations. 5
Psychologists have changed their ideas about the ability of
children to perceive events in the first instance. For example, it is
now known that children do not necessarily notice less than adults,
but rather that they attend to different stimuli, and thus notice different things." While they may not fully comprehend everything that
they perceive, children can provide useful evidence by reporting on
what they do understand. For example, children can usually distinguish
between socially acceptable ("good") behavior and socially unacceptable ("bad") behavior, even when they do not know whether the
behavior was intended or merely accidental. 7
Testimony in Historical Perspective, 40 J. Soc. Iss. 9 (1984). Dr. Goodman points out
that older studies of children are not considered reliable because they suffered from
methodological flaws and from what she terms the "intrusion of negative biases against
children." Id. at 10.
Courts have been known to point to the "suggestibility of children" as a reason
why jurors should be cautious of their testimony. State v. Hunt, 2 Ariz. App. 6, 406
P.2d 208 (1965); Fitzgerald v. United States, 412 A.2d 1 (D.C. App. 1980); Gelhar v.
State, 4 Wis. 2d 230, 163 N.W.2d 609 (1969).
85. For a review of the developmental and experimental psychology literature
on children's memory, cognitive development, and moral development, see Melton,
Children's Competency to Testify, 5 LAW & HUM. BEHAV. 73 (1981). The author, who has
written extensively on child witnesses, concludes from the available data that the liberal
use of children's testimony is well-founded, since memory is no more a problem for
children than adult eyewitnesses, when recollection is stimulated by direct questions;
that children are no more prone to lying than adults, and that while young children
may have difficulty conceptualizing complex events, they are able to communicate what
they do see and experience sufficiently to be of value to adult jurors.
86. Johnson & Foley, Differentiating Fact from Fantasy: The Reliability of
Children's Memory, 40 J. Soc. Iss. 33 (1984).
87. Ackerman, Young Children's Understandingof a Speaker's Intentional Use
of a False Utterance, 31 DEv. PSYCH. 487 (1981).
19861
WITNESS CREDIBILITY
There has long been concern that children do not make good
witnesses because their memories are poor, and/or because they are
too "suggestible." Neither of those concerns seems well-founded. Recent studies show that children's memories are quite good," and that
children may not be any more "suggestible" than adults, at least under
some circumstances. 9 Of course, it would be helpful to jurors to
understand some of the ways in which children's memories do differ
from those of adults, so that their evaluation of children's testimony
is not made on the basis of inappropriate adult standards.
Even young children can communicate what they know-if not
verbally, then with the use of props, such as the anatomically correct
dolls that are used in increasing numbers of cases involving child sexual abuse. Again, the child's testimony will be better evaluated by
an educated jury. For example, a jury that understands that children
are more literal than adults will better understand that a child's direct
answers to questions may appear to be inconsistent, but they may
not be."
Unless and until the data that is available to psychological experts about the actual perception, memory, cognitive, and communication skills of children is widely disseminated to the lay public, juries
88. See, e.g., Johnson & Foley, supra note 86, in which the authors review
the literature on children's memory and their own experimental research. They conclude that children tend to recall less than adults, but that there is not good evidence
to support other commonly held notions about the deficiencies of children's memory.
Children do not necessarily forget more rapidly than adults, nor confuse real and imaginary events, as is commonly feared.
Children do recall differently than adults. Experiments have shown that a child
may not be able to accurately recall an event unless the questioner uses specific cues
or question probes to remind the child of the context in which the questioned event
occurred. Adults, on the other hand, can more easily recreate the context on their
own when asked a more general question. Ackerman, Children's Retrieval Deficit, in
BASIC
PROCESS
IN MEMORY
DEVELOPMENT:
PROGRESS
IN COGNITIVE
DEVELOPMENT
RESEARCH (C.J. Brainerd & M. Pressley eds. 1985).
89. Loftus & Davis, Distortions in the Memory of Children, 40 J. Soc. Iss. 51
(1984). Loftus and others who have done considerable research on adult witnesses have
raised serious concerns about the suggestibility of adult witnesses. Recently, one commentator has picked up on those concerns and has recommended some radical reforms
of the civil litigation process to control the dangers of suggestion (i.e. manipulation
of witnesses). He suggests that ex parte attorney interviews of neutral witnesses be
limited, and that records be kept of such interviews to allow inquiry into charges
of witness suggestion, which would be made unethical. Landsman, Reforming Adversary Procedure: A Proposal Concerning the Psychology of Memory and the Testimony
of Disinterested Witnesses, 45 U. PITT. L. REV. 547 (1984).
90. Ackerman, Form and Function in Children's Understandingof Ironic Utterances, 35 J. EXPTL. CHILD PSYCH. 487 (1983).
166
[Vol. 20
are likely to continue to lend less credibility to child witnesses than
the children ought to be given. Thus, it would seem appropriate to
allow, and even to encourage, expert testimony from child
psychologists on the abilities of children as a general aid to the jury
in assessing the testimony of child witnesses.
Recently, reformers have advocated changes in the way that child
witnesses are treated in the courtroom. Proposals have included the
suggestion that special child-courtrooms be built, that children's
testimony should be presented through videotape testimony, instead
of live in a courtroom open to the public, and that courtrooms should
be closed to the public during the child's testimony.9' These calls for
reform have rested primarily on concerns for the well-being of the
child witness, particularly those who are victims, and a desire to
minimize the negative impact on the child of a traumatic court
experience.
Legislatures in several states have responded by passing legislation designed to facilitate the testimony given by child witnesses,
especially victim-witnesses. Again, the purpose is generally to protect the minor victim from the trauma of testifying in court. 3 While
the concern for the welfare of children is long overdue, there would
91. In a well-received scholarly article, Jacqueline Parker recommended a series
of reforms including the appointment of child hearing officers, an attorney employed
by the state to act as counsel and advocate for every child victim-witness; the use
of specially-designed small, informal "child hearing courtrooms"; pre-trial interrogation by or in the presence of the child hearing officer; video-taped deposition of the
child's testimony, to be used at trial; and speedy trials, where there are child-victims.
Parker, The Rights of Child Witnesses: Is the Court a Protector or Perpetrator?,17 NEW
ENG. L. REV. 643, 664 (1982). Her proposal updated and refined those made earlier
by Libai, The Protection of the Child Victim of a Sexual Offense in the Criminal Justice
System, 15 WAYNE L. REV. 977 (1969), which had been largely ignored by courts and
legislatures.
See also Melton, Sexually Abused Children and the Legal System: Some Policy
Recommendations, AM.. J. FAM. THERAPY (in press 1985); and Melton, Procedural
Reforms to Protect Child Victim/Witnesses in Sex Offense Proceedings, in CHILD SEXUAL ABUSE AND THE LAW (J. Bulkley ed. 1983).
92. Legislation permitting video taped testimony by minor victims has been
passed in a number of states. See ALASKA STAT. S 12.45.047 (Michie Supp. 1984); ARK.
STAT. ANN. S 43-2036 (Cum. Supp. 1983); ARIz. REV. STAT. ANN. S 12-23-12 (West 1982);
MONT. CODE ANN. S 46-14-401 (1983); TEX. CRIM. PROC. CODE ANN. S 38.071 (Vernon
1983).
New Hampshire provides for in camera testimony by witnesses under sixteen
years. N.H. REV. STAT. ANN. S 632-a:8 (1983); and several states have enacted special
child hearsay exceptions for cases involving sexual abuse of children. See COLO. REV.
STAT. S 13-15-129 (1983); KAN. STAT. ANN. S 600-640 (1983); WASH. REV. CODE ANN.
9A.44.120 (West Supp. 1983).
93. See, e.g., ARK. STAT. ANN. S 43-2036 (Cum. Supp. 1983).
19861
WITNESS CREDIBILITY
seem to be another, equally compelling reason to advocate reform of
the ways in which children give evidence, one that rests on the traditional, articulated goal of the adversary system-to ascertain truth.
It has been suggested that children's testimony out of court may be
more reliable than in-court testimony, because the child is relieved
of pressures that might otherwise lead him to distort or mislead the
truth." To the extent that videotape testimony, for example, can not
only protect a child's emotional well-being but actually enhance the
fact finding process by providing evidence that is both more credible
and in fact more reliable, the practice should be encouraged.
Several commentators have questioned whether videotape
testimony will withstand constitutional challenges, primarily on the
grounds that the sixth amendment right of confrontation means the
right to confront one's accuser, face-to-face, in an open courtroom.95
However, that analysis is based largely on one federal court case,
United States v. Benfield,9 in which the court overturned a conviction
based on the videotaped deposition of an adult kidnap victim who was
too traumatized to testify in court at the time of the trial. Since Benfield, several courts have permitted videotape testimony by adult
witnesses in lieu of trial testimony.97
In a recent case, a New Jersey court permitted the use of
videotape testimony by a ten-year-old victim of sexual assault, over
a sixth amendment challenge, even though there is no specific
statutory authority for such testimony in New Jersey. At a hearing
on a pretrial motion to admit the testimony, the state proffered the
testimony of a forensic psychiatrist who had interviewed the girl and
believed that the use of videotape equipment would improve the accuracy of her testimony by relieving her mixed feelings of guilt, fear,
and anxiety that might produce inaccurate testimony in court. In addition, two prosecuting attorneys who handled large numbers of child
abuse cases testified to the special problems inherent in eliciting
testimony from the victims of child abuse." The court distinguished
Benfield on the grounds that the case involved a child victim in a
sexual abuse case. Moreover, the court found that a jury would be
94. State v. Sheppard, 197 N.J. Super. 411, 484 A.2d 1330 (1984); Love v. State,
64 Wis. 2d 432, 219 N.W.2d 294 (1974).
95. See Skoler, supra note 80; Melton, Child Witnesses and the First Amendment: A Psycholegal Dilemma, 40 J. Soc. Iss. 109 (1984).
96. 593 F.2d 815 (8th Cir. 1979).
97. See cases discussed supra note 40.
98. State v. Sheppard, 197 N.J. Super. 411, 484 A.2d 1330 (1984).
99. Id. at 417, 484 A.2d at 1332.
168
[Vol.20
able to see the child on live-monitor video. The court was apparently
influenced by the argument that the video method would enhance the
fact finding process:
Truth is the ultimate quest. This is the proper interest of
the prosecution, the defense, the jury, the judge and all of
our society in all judicial proceedings. Philosophically, it may
be argued that truth is not an absolute. If so, that conclusion does not diminish the premise. Truth, though unattainable in all of its labyrinthic extremities must always be
the judicial goal. 1
It is clear that the expert testimony had an impact on the New
Jersey court. The lack of such testimony may well account for the
fact that a similar attempt by a prosecutor to allow child victims in
a "lewd conduct with minor" case to testify by closed circuit television was rebuffed by a California court.'" In the California case, the
sole testimony about the distress that the children might suffer from
testifying in court was provided by the father of a ten-year-old witness,
and the mother of a nine-year-old witness. There was no expert
testimony to support the possible negative effects on the child and
none to make the argument that the testimony elicited by closed-circuit
video might be more accurate than that elicited in an open courtroom.
The court found that there were serious constitutional issues involving the right to a public trial, confrontation of witnesses, and due
process raised by the "drastic deviation from settled procedures" and
refused to permit the closed-circuit testimony, absent explicit statutory
authority.' °2 Given that there was little evidence to support the argument that there were counterveiling public policy reasons to allow
the testimony, the decision is not surprising. It would seem that expert testimony in trials involving child witnesses may be useful not
only to educate juries about the limitations and abilities of children
in general, but also to permit courts to feel more free to be innovative
in dealing with child witnesses in ways that can enhance the factfinding process.
In a handful of states, expert psychological testimony about the
credibility of children has already been found admissible in one kind
100.
101.
Id. at 433-34, 484 A.2d at 1343.
Hochheiser v. Superior Court, 161 Cal. App. 3d 777, 208 Cal. Rptr. 273
102.
Sahd & Rada, Incest Hoax: False Accusations, False Denials, 6 BULL. AM.
269 (1978).
(1984).
ACAD. PSYCHIATRY & LAW
1986]
WITNESS CREDIBILITY
of case: cases involving child-witnesses who are victims of sexual abuse
by a family member. 03 In those cases, experts have been permitted
to testify about the typical response of a child who has been sexually
abused by a family member. Such testimony is critical in prosecutions for child sexual abuse, since there is very good evidence that
children frequently recant their own (true) reports of such abuse.''
A respectable body of social science literature on the problems of incest and intrafamilial child sexual abuse explains the typical behavior
patterns that can be expected in such cases, and that many incest
victims are reluctant to report their experience for fear of being
blamed or punished, or of causing the break-up of the family, or of
not being believed." 5 Contrary to the assertions of Wigmore and
Freud, ' children seldom lie or fantasize about sexual abuse. Instead,
many experts believe that many children who suffer assault actually
under-report the amount and type of abuse, or fail to report it because
the consequences of telling seem worse than the consequences of being victimized again.' 7
103. See, e.g., State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983), involving
the rape of a fourteen year old girl by her father. The court allowed a child social
worker to testify that a young victim often feels guilty about testifying against someone she loves, and wonders if she is doing the right thing in so testifying.
104. See Sahd & Rada, supra note 102.
105. Middleton, 294 Or. at 429-30, 657 P.2d at 1219-20. See also State v. Meyers,
359 N.W.2d 604 (Minn. 1984).
106. Dean John Henry Wigmore's treatise on Evidence is one of the most influential authorities on the law of evidence. In S 924(a) of his treatise, Wigmore argued
that women and young girls could not be trusted to testify credibly.
In a scathing but scholarly article, Dr. Leigh Bienen has traced the "authorities"
cited by Wigmore in S 924(a), and argues convincingly that Wigmore was so
wholeheartedly committed to his repressive and misogynist position that all females
who allege sexual assault should be assumed to be lying, that he deliberately
misrepresented the supposedly objective, scientific authority upon which he relied.
Bienen, A Question of Credibility:John Henry Wigmore's Use of Scientific Authority
in Section 924(a) of the Treatise on Evidence, 19 CAL. W.L. REV. 235, 236 (1983).
Freud, of course, is the major figure in the development of psychoanalytic theory.
It is now known that Freud suppressed his own discoveries about incest, and instead
publicized a theory about children's sexual fantasies, that was widely believed for many
years. For a book on why Freud may have done so, see J. MASSON, THE ASSAULT
ON TRUTH: FREUD'S SUPPRESSION OF THE SEDUCTION THEORY
(1984).
The persistence of such myths can be seen in some court decisions. See, e.g.,
State v. Looney, 294 N.C. 1, 18, 240 S.E.2d 612, 622 (1978) ("Obviously, there are types
of sexual offenses, notably incest, in which by the very nature of the charge, there
is grave danger of completely false accusations by young girls of innocent appearance,
but unsound minds, susceptible to sexual fantasies and possessive of malicious, vengeful
spirits.").
107. Berliner & Barberi, The Testimony of the Child Victim of Sexual Assault,
40 J. Soc. Iss. 125, 127 (1984).
170
[Vol. 20
There is, then, good reason to permit expert testimony to dispel
popular myths, and to corroborate the testimony of the child victim.
The courts have allowed a variety of experts to present the evidence,
including a board-certified pediatrician and child psychiatrist, 8 a child
protective social worker," 9 a juvenile counselor for the county,"' and
a clinical psychologist."'
In the most frequently cited case, State v. Middleton,"' an Oregon
court permitted testimony about intrafamilial sexual abuse from two
experts, a juvenile counselor who testified for the state, and a child
protective social worker who was called by the defendant."' The case
involved a rape charge brought against a defendant by his fourteen
year old daughter. Six weeks after she reported the rape to a friend's
mother, a children's service worker, a doctor, and the police, the girl
wrote a statement saying that she had lied about the rape "to get
out on [her] own.""' Two months later, at trial, the girl testified that
her father had indeed raped her, and the father's attorney introduced
the written notes on cross-examination to discredit her. Over the objections of defense counsel, both experts testified that the daughter's
behavior was typical of incest victims."'
On appeal, the high court affirmed the conviction, finding that
the expert testimony was useful in helping the jury to evaluate the
credibility of the girl:
It would be useful to the jury to know that not just this
victim but many child victims are ambivalent about the
forcefulness with which they want to pursue the complaint,
and it is not uncommon for them to deny the act ever happened. Explaining this superficially bizarre behavior and
identifying its emotional antecedents could help the jury
better assess the witness' credibility."'
108. State v. Kim, 645 P.2d 1330 (Hawaii 1982).
109. State v. Middleton, 294 Or. 427, 429, 637 P.2d 1215, 1217 (1983).
110. Id.
111. State v. Meyers, 359 N.W.2d 604 (Minn. 1984). See also State v. Carlson,
360 N.W.2d 442 (Minn. 1985) (overturning a pretrial order refusing to admit a "qualified
expert" from testifying); Smith v. Nevada, 688 P.2d 326 (Nev. 1984) (allowing an expert to testify about the dynamics of intrafamilial child sexual abuse to explain a sixyear-old's delay in telling her mother, and the mother's delay in reporting to the police).
112. 294 Or. 427, 657 P.2d 1215 (1983).
113. Id. at 429, 657 P.2d at 1216.
114. Id. at 429, 657 P.2d at 1215.
115. Id. at 434, 657 P.2d at 1219.
116. Id. at 436, 657 P.2d at 1220.
WITNESS CREDIBILITY
1986]
Middleton thus appeared to stand for the proposition that expert testimony about sexual abuse of children, particularly testimony
that it is common for victims to be so ambivalent about reporting
such abuse that they recant their stories, was admissible in Oregon
to enable the jury to better evaluate the testimony of child victims.
However, since Middleton, the Oregon courts have been reluctant to
open the door to expert testimony too widely. Later cases have permitted only "general" testimony about the kind of mental and emotional factors that might influence the behavior of members of an identifiable group, for example, victims of familial child abuse, since such
evidence is said to be only an "indirect comment on the child witness'
veracity."... However, expert testimony that includes the expert's opinion that a particularwitness is truthful has been excluded as "going
too far."" 8 The distinction does not seem to be a meaningful one, and
runs contrary to the modern trend to allow experts to give their opinions, even on ultimate issues of fact.
However, some courts are reluctant to allow any expert
testimony regarding "child sexual abuse syndrome," largely based on
the traditional fear that the "aura of scientific reliability" that surrounds any expert is too powerful and might allow a jury to abdicate
its fact-finding role to the expert." 9 Given a history of mistrusting
child witnesses, the widely acknowledged difficulties in prosecuting
child abuse cases, and the slowness with which reforms have been
adopted that might ease the trauma of children of testifying in court,
the admission of expert testimony on child abuse syndrome to aid
the jury in evaluating the credibility of a child who appears to have
recanted her story seems warranted.
117. State v. Pettit, 66 Or. App. 575, 675 P.2d 183 (1984) (expert allowed to
testify about whether victims of familial sexual abuse can recall dates and relate details,
and whether such victims generally tell consistent stories and report such incidents
promptly).
118. State v. Munro, 68 Or. App. 63, 680 P.2d 708 (1984). See also People v.
Reid, 123 Misc. 2d 1084, 475 N.Y.S.2d 741 (1984), involving an eleven year old who
was raped by her neighbor-babysitter. The judge permitted testimony about false recantation to avoid public embarrassment as a symptom of rape trauma syndrome, but
would not allow the expert to give her opinion as to whether or not the victim was
telling the truth.
119. State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (1984) (error to admit
psychiatric opinion that sixteen-year-old incest victim was telling the truth, in the
absence of any indication that the victim had any physical or mental disorder that
might affect her credibility).
172
[Vol. 20
3. Expert Testimony and the Credibility of Women Who Are
Victims of Rape or Domestic Violence
Children are not the only witnesses who have received special
treatment from the law: there is a long history of distrust of the
woman who claims to be a victim of rape or domestic abuse, and takes
the witness stand to testify against a man. In the case of rape, the
law's bias against women was articulated in the oft-quoted comment
of Lord Hale that "rape is an accusation easily to be made, and hard
to be proved, and harder to be defended by the party accused, though
ever so innocent."'" This comment was repeated to juries in precautionary instructions given in rape cases for many years.2
The law took steps to assure that rape remained "hard to be
proved." To protect the accused from being punished solely on the
basis of a woman's word, a number of states developed corroboration
requirements for rape and other sexual crimes. Such corroboration
had not been required at common law, and has never been required
for most other crimes." Designed to protect innocent defendants from
false accusations of rape, the rules generally contributed to the
notoriously low conviction rates in rape cases. 23 As part of the movement to reform rape laws, corroboration rules were dropped in some
states, and watered down in others." In a curious ambivalence toward
120. M. HALE, PLEAS OF THE CROWN 635 (1847). Susan Brownmiller characterized the problems as the "syndrome of Potipher's wife," or a fear of false charges
of rape, in her book AGAINST OUR WILL: MEN, WOMEN AND RAPE 370 (1978).
121. Even today, some states permit such instructions in at least some circumstances. See State v. Mackie, 38 Mont. 86, 622 P.2d 673 (1981) (Hale instruction
allowed where there was no evidence of malice or no corroborative evidence).
122. For a history and discussion of the corroboration rules, see 7 WIGMORE,
EVIDENCE 5 2061 (1970); Comment, The Admissibility of Extrajudicial Rape Complaints,
64 BOSTON U.L. REV. 199 (1984); Comment, CorroboratingCharges of Rape, 67 COLUM.
L. REV. 1137 (1967); Comment, The Rape Corroboration Requirements: Repeal not
Reform, 81 YALE L.J. 1365 (1972). According to Wigmore, the testimony of the prosecutrix or injured person in the trial of all offenses against the chastity of a woman
was sufficient to support a conviction at common law. 7 WIGMORE, EVIDENCE S 2061
(1970). For a detailed analysis of modern sexual assault statutes, see H. FIELD & L.
BIENEN, JURORS AND RAPE: A STUDY IN PSYCHOLOGY AND LAW 207 (1980).
Surviving corroboration statutes differ from state to state. Some require corroboration of a rape victim's testimony in all cases, while others require corroboration
only if special circumstances suggest that the victim's testimony is not altogether
trustworthy. See Comment, The Admissibility of ExtrajudicialRape Complaints, 64
BOSTON U.L. REV. 199 (1984).
123. Note, Checking the Allure of Increased Conviction Rates: The Admissibility
of Expert Testimony on Rape Trauma Syndrome in Criminal Proceedings, 70 VA. L.
REV. 1657 (1984).
124. There is an extensive body of literature on rape, rape reform, and the
WITNESS CREDIBILITY
19861
women, some courts found that the elements of corroboration included,
inter alia,the "promptness of complaints to friends and police."1 The
effect of such a rule was to create an exception to the general rule
of evidence that a prior consistent statement by a witness is selfserving, inadmissible hearsay, unless offered for certain limited purposes such as to rebut a charge of recent fabrication. In rape cases,
however, a prior consistent statement of the victim-that is, a prompt
complaint of rape-became admissible, even though it was precisely
the kind of statement that is ordinarily excluded, however much it
might actually serve to bolster the credibility of the witness."
Other special rules for rape cases also reflected the general
distrust of the woman who cries rape. Prior to the passage of rapeshield laws, the credibility of the rape victim could be challenged by
evidence of her prior sexual experience. Such evidence was admissible in some states for the purpose of demonstrating that she was of
unchaste character and hence unlikely to be telling the truth, and
in others to discredit her claim of lack of consent on the grounds that
a woman who consents once is unlikely to withhold consent on other
occasions. During the 1970s, feminists led a groundswell of protest
against rape laws that led to reforms in every state, including the
repeal of corroboration requirements and the passage of rape-shield
laws to protect victim-witnesses from devastating cross-examination
that was only marginally relevant to the real issue of credibility."'
law concerning rape. For rape-related studies, see Field & Barnett, Forcible Rape: An
Updated Bibliography, 68 J. CRIM. L. & CRIMINOLOGY 146 (1977). See also S.
BROWNMILLER, supra note 120.
125. Allison v. United States, 409 F.2d 443 (D.C. Cir. 1969). But see People v.
Murray, 183 A.D. 468, 469, 170 N.Y.S. 873, 874 (1918) finding that prompt disclosures
by a victim were not considered corroborative evidence in New York because such
evidence "depends wholly on the veracity of the complainant" and that it is not "other
evidence" in support of her version of the event.
126. Raum, Rape Trauma Syndrome as CircumstantialEvidence of Rape, 11 J.
PSYCH. & LAW 203 (1983), arguing for the admissibility of rape trauma syndrome
especially where some corroboration of the victim's testimony is still required.
A recent student work reviews the most frequently cited social science literature
and argues that there is insufficient research on rape victims to provide reliable social
science evidence to support the admissibility of such expert testimony. The Note finds
that there is little consensus concerning what, if any, symptoms are particular to rape
victims. See Note, supra note 123.
However, given that evidence of rape trauma syndrome is usually introduced
in cases where the defendant has raised the defense of "consent," it would not seem
to be important whether rape victims share certain symptomology with other crime
victims, since consensual sexual intercourse among adults is rarely a crime anymore.
127. Beinen, Rape II: National Developments in Rape Reform Legislation, 6
174
[Vol. 20
The most recent battle in the war over rape laws involves the
admissibility of expert testimony about "rape trauma syndrome," a
phrase coined by a nurse-social worker team" 8 to describe behavior
generally exhibited by victims of rape and other traumatic experiences.
The courts are split over the admissibility of such testimony, and the
cases are hard to reconcile. At first glance, one wonders if the earliest
landmark cases were not decided on the basis of the credentials-or
lack of them-of the proffered experts. However, later cases belie
that analysis, as courts justified excluding experts whose credentials
were too good, and thus thought to pose a greater threat to the jury
system than less qualified experts."
As in the case of most experts, there is a conflict between the
desire to educate the jury, and the fear that the expert will usurp
the jury's function and become the final arbiter of whether the woman
who alleges she was raped was indeed raped, or is merely making
a false accusation against an innocent man. No court has yet found
that the absence of symptoms of rape trauma syndrome means
anything. As a result, the evidence has only been admitted to support the victim's credibility as a witness, and thus strengthen the
prosecutor's case, something some courts are more willing to do than
are others.
While expert testimony of child abuse syndrome and of rape
trauma syndrome has been successfully used by prosecutors in at least
some cases where the sole or primary witness is a child or female
victim whose testimony might otherwise be given less weight than
it deserves, expert testimony of another syndrome, "battered spouse
WOMEN'S RIGHTS L. REP. 170 (1980); Note, Rape Reform Legislation: Is it the Solution?,
24 CLEV. ST. L. REv. 463 (1975).
128. Holmstrom & Burgess, Assessing Trauma in the Rape Victim, 73 AM. J.
NURSING 1288 (1973); Holmstrom & Burgess, Rape Trauma Syndrome, 131 AM. J.
PSYCHIATRY 981 (1974).
129. Expert testimony on rape trauma syndrome was admitted in the following cases: Division of Corrections v. Wynn, 438 So. 2d 446 (Fla. App. 1983) (civil suit
for damages where plaintiff was raped by released inmate); State v. McQuillen, 236
Kan. 161, 689 P.2d 822 (1984); State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982); People
v. LaPonte, 103 Mich. App. 844, 303 N.W.2d 222 (1981); State v. Liddell, 685 P.2d 918
(Mont. 1984); State v. Jackson, 97 N.M. 467, 641 P.2d 498 (1982).
Similar testimony was excluded in the following cases: People v. Stanley, 36
Cal. 3d 233, 681 P.2d 302 (1984); People v. Bledsoe, 36 Cal. 3d 236, 681 P.2d 901 (1982)
(inadmissible to prove witness had been raped, but harmless error); State v. Bressman,
236 Kan. 296, 689 P.2d 901 (1984); State v. McGee, 324 N.W.2d 232 (Minn. 1982); State
v. Saldone, 324 N.W.2d 227 (Minn. 1982); State v. Taylor, 663 S.W.2d 235 (Mo. 1984);
State v. Walker, 639 S.W.2d 834 (Mo. App. 1982).
19861
WITNESS CREDIBILITY
syndrome," has been offered in another way. Defense counsel in
criminal cases brought against a battered woman who struck back
at her batterer have attempted to introduce the snydrome for several
purposes: (a) as a defense in and of itself, and (b) as evidence to bolster
the credibility of a woman who tries to prove a classic defense of
self-defense, particularly where the defensive killing happened some
time after the last battering. Typically, the woman testifies that she
reasonably perceived herself to be in such imminent danger from her
husband that she killed him in self-defense. Should the jury have any
doubts that she truly feared her husband, particularly in cases where
the killing takes place hours, or even days after the woman was beaten
or abused, such doubts are allayed by an expert who testifies that
battered women really do fear their husbands, even if they have difficulty in acting to change the situation.'" The use of such testimony
is controversial, even among feminists, who are concerned about
evidentiary rules that may reinforce negative stereotypes about
women.
To the extent that various "syndromes" can be identified, the
details of which may remain outside the realm of common knowledge,
130. In the first case admitting rape trauma syndrome evidence that received
wide attention, the expert was a board-certified psychiatrist and neurologist. He was
also one of the few people certified in forensic psychiatry. Without much explanation,
the court allowed the testimony, claiming that it would not invade the province of
the jury. State v. Marks, 231 Kan. 643, 647 P.2d 1292 (1982).
In contrast, the "expert" in the next major case was a woman whose academic
credentials consisted of a B.A. in psychology and social work. In excluding her testimony,
the court made much of the fact that she had no medical training, despite the fact
that she was employed as a counselor for sexual assault victims and the director of
a victim assistance program. State v. Saldone, 324 N.W.2d 227, 230 (Minn. 1982). Had
the court wanted to find her to be a qualified expert, no doubt it could have done
so on the basis of her experience with rape victims.
When the issue reached the Missouri court, the expert had impressive credentials: a psychiatrist who testified to having treated more than 300 victims of rape
and sexual assault, and the author of a book on the topic. Apparently, he was too
credible, because the court feared that his training in evaluating verbal and nonverbal responses would lend a "special reliability" to his conclusions that the victim suffered from rape trauma syndrome. The conviction was overturned. State v. Taylor,
663 S.W.2d 233, 240 (Mo. 1984).
Some courts have taken a partial step toward allowing the testimony of experts, apparently because of lingering doubts about the admissibility of an expert's
opinion on the credibility of a witness. In a recent New York case, an expert was
allowed to testify on rape trauma syndrome generally. She was not allowed to testify
on whether or not she believed the eleven-year-old victim, who had reported a rape
by her neighbor-babysitter and later recanted. People v. Reid, 123 Misc. 2d 1084, 475
N.Y.S.2d 741 (1984). Accord State v. Munro, 68 Or. App. 63, 680 P.2d 708 (1984).
176
[Vol. 20
some education of the jury would seem to be in order. Moreover, such
testimony can help to balance out the traditional prejudice against
the witness who is a victim of rape or spousal abuse, and ought to
be admissible so long as it meets the standards developed by the Third
Circuit in Downing.'3 '
Thus, expert evidence of child abuse syndrome, for example,
should be admissible if the prosecutor convinces the court (1) that
the reliability of such evidence outweighs the risk that it will "overwhelm, confuse, or mislead" the jury, and so prejudice the defendant;
and (2) that there is sufficient connection between the proffered
evidence and particular, disputed factual issues in the case to warrant its admission. Where there is a dispute as to the credibility of
a victim who has reported abuse, and then recanted her report,
evidence that such recantation is typical of victims should be sufficiently relevant to satisfy the second requirement of the Downing test.
II.
THE CREDIBILITY OF THE RECANTING WITNESS
A host of issues surrounding a witness' credibility are raised
when a witness recants his trial testimony: How should the credibility of the witness be judged? Should there be a hearing? What
evidence should be admissible at the hearing? Should expert testimony
be permitted at the recantation hearing to aid the judge in determining whether or not a new trial should be granted? This section addresses those issues.
A.
The Recantation
When a witness recants after a criminal defendant has been convicted, the defendant typically makes a motion for a new trial based
on "newly discovered evidence" or "in the interests of justice."
Evidence is usually submitted by affidavit, and the defendant prepares
to appeal from the trial judge's denial of his motion. Given the difficulty of getting a new trial in any case, and the particular suspicion
131. United States v. Downing, 753 F.2d 1224 (3d Cir. 1985). See, e.g., IBNTomas v. United States, 407 A.2d 626 (D.C. 1979). See also Note, The Admissibility
of Expert Testimony on Battered Wife Syndrome: An Evidentiary Analysis, 77 Nw. U.L.
REV. 348 (1982), which describes the syndrome. According to the author, it can be
characterized by the following: (a) a stage of minor abuse, followed by acute battering
and explosions of uncontrolled violence, leading to a "loving respite" stage during which
the batterer seeks forgiveness and promises reform; (b) psychological paralysis on the
part of the abused woman, resulting from the violence; (c) social factors restraining
the woman from seeking help; and (d) general psychological characteristics involving
attitude and behavior. Id. at 360-61.
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WITNESS CREDIBILITY
with which courts have traditionally viewed recantation testimony," 2
it is not surprising that new trials are rarely granted on the basis
of a prosecution witness' change of heart. Since new trials are generally in the discretion of the trial judge, it is rarer still that an appellate
court will overturn the trial court's denial of such a motion."3
Courts cite several reasons for the general rule that recantation
by a witness does not necessarily entitle a defendant to a new trial,
including the widely shared belief that recantation testimony is inherently lacking in credibility,u the reluctance of judges to tamper
with decisions reached by a jury,' and the need for finality of
judgments.'38 No doubt another factor, albeit an unarticulated one, is
the difficulty human beings, including judges, have in admitting that
they have been duped by a liar.
Recanting testimony is thought to be inherently unreliable, in
part because it comes from the lips of a liar, and there is a persistent
belief that he who lies once will lie again.'37 Thus, why grant any
credence at all to the affidavit or testimony of a self-admitted perjurer? It is thought to be unreliable too, because of the fear that the
defendant may have harassed, bribed, threatened, or intimidated the
witness into changing his or her story.'38
132. See, e.g., United States v. Johnson, 487 F.2d 1278, 1279 (4th Cir. 1973);
State v. Theus, 207 Kan. 571, 485 P.2d 1327 (1971); Hensley v. Commonwealth, 488
S.W.2d 338 (Ky. 1972); State v. Linkletter, 345 So. 2d 452, 458 (La. 1977); People v.
Shilitano, 218 N.Y. 161, 112 N.E. 733 (1916); People v. Donald, 107 A.D.2d 818, 484
N.Y.S.2d 651 (1985).
133. Annot.. 158 A.L.R. 1062 (1945).
134. People v. Marquis, 344 11. 261, 176 N.E. 314 (1931); People v. Shilitano,
218 N.Y. 161, 112 N.E. 733 (1916); Commonwealth v. Coleman, 438 Pa. 37, 264 A.2d
649 (1970); Commonwealth v. Dohner, 295 Pa. Super. 342, 441 A.2d 1263 (1982); State
v. Nicholson, 296 S.E.2d 342, 344 (W. Va. 1982).
135. People v. Marquis, 344 Ill. 261, 265, 176 N.E. 314, 315 (1931). Such a confession of perjury does not justify the conclusion that the confessor lied. Instead, "the
conclusion of the jury would rather warrant the presumption that his testimony was
truthful, and his affidavit false." (emphasis added).
136. Commonwealth v. Mathews, 356 Pa. 100, 51 A.2d 609 (1947) (no finality
if verdicts and judgments could be this easily nullified); Wohlfert v. State, 196 Wis.
111, 112, 219 N.W. 272, 273 (1928).
137. Loucheim v. Strause, 49 Wis. 623, 6 N.W. 360 (1880) ("false in uno, falsus
in omnibus"). This same notion is seen throughout the law of evidence. The one kind
of character evidence that is generally admissible at trial is evidence of a witness'
reputation for truth or veracity. That is, evidence that tells the jury whether or not
the witness is a liar. C. MCCORMICK, supra note 3, at S 44.
138. State v. Hill, 312 Minn. 514, 253 N.W.2d 378 (1977); People v. Shilitano,
218 N.Y. 161, 112 N.E. 733 (1916).
178
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Clearly the fear of false recantation is reinforced by the fact that
many witnesses in criminal cases are co-defendants or other "criminals"
who have turned state's evidence in exchange for leniency. Once a
plea bargain with the witness has been carried out, the witness is
thought to have little reason to remain truthful. 39' One questions
whether the promise of a lenient sentence, while clearly an incentive
to testify in a manner that is helpful to the prosecutor, is necessarily
an incentive to testify "truthfully." Similarly, one wonders why defendants are thought to be more likely to harass, bribe, or threaten a
witness to change his story after trial than they are before conviction? Nevertheless, both concerns are expressed in the case law.
Certainly, at least in the case of children who are incest and
rape victims, there is good reason for the courts to give little credence
to recanting testimony, since the current psychological literature supports the notion that such children are more likely to falsely recant
a report of actual abuse than to fantasize or lie about such abuse in
the first place.4 0 Most courts seem to understand that children's recantations are unreliable, although a few still rely on outdated psychology
to justify granting new trials when a child victim recents.' One recom139. United States v. Gaither, 440 F.2d 262 (D.C. Cir. 1971); Smith v. State,
435 N.E.2d 346 (Ind. 1983); Commonwealth v. Osborne, 223 Pa. Super. 523, 302 A.2d
395 (1973); Horneck v. State, 64 Wis. 2d 1, 218 N.W.2d 370 (1974).
140. See supra notes 102-119 and accompanying text.
141. New trials were denied in the following reported cases, despite the fact
that a child victim-witness recanted his or her story. Doss v. State, 203 Ark. 407,
157 S.W.2d 499 (1942); Sutton v. Smith, 197 Ark. 686, 122 S.W.2d 617 (1941); People
v. McGaughen, 197 Cal. App. 2d 6, 17 Cal. Rptr. 121 (1961); Ferguson v. Stone, 415
So. 2d 98 (Fla. App. 1982); Wedmore v. State, 237 Ind. 212, 143 N.E.2d 649 (1957);
State v. Zellinger, 147 Kan. 707, 78 P.2d 845 (1938); People v. Andrews, 360 Mich.
372, 104 N.W.2d 199 (1960); Powell v. Commonwealth, 179 Va. 703, 20 S.E.2d 536 (1942).
Still, of the few reported decisions that grant new trials on the basis of recanting testimony, many seem to involve various sexual crimes, including statutory rape
and family abuse. No doubt, that is in part due to reliance on misinformation about
intrafamilial abuse.
In one such case, People v. Smallwood, 306 Mich. 49, 10 N.W.2d 303 (1943), the
defendant was convicted of raping his fifteen-year-old daughter, based solely on the
girl's testimony. When she later recanted, the father won a new trial. The appeals
court affirmed in a case that quotes extensively from Wigmore. Wigmore's views on
the lack of credibility of girls and women have been convincingly debunked by modern
authorities. See Bienen, supra note 106.
More recently, in a case in which another fifteen-year-old recanted after her
father was convicted of incestual sexual abuse, the Pennsylvania court sounded an
old note: "False accusations in sex crimes are generally conceded to be far more frequent than untrue charges of other crimes." Commonwealth v. Mosteller, 446 Pa. 83,
88, 284 A.2d 786, 787 (1971). For that reason, the court granted a rare new trial based
on recanting testimony.
1986]
WITNESS CREDIBILITY
mendation would be to allow expert testimony on the typical reactions of child victims of such abuse to be heard at hearings for new
trials in instances where the recanting witness is a child victim to
aid the court in determining the reliability of such recantation
testimony.
There is no equivalent body of scientific or social science
literature to support the general, instinctive feeling of the legal system
that the ordinary witness who recants his trial testimony is generally lying. That feeling, however, receives support from a number of
factors, including: the procedures that govern a defendant's attempt
to get a new trial based on recanting testimony; the standards that
are used to determine when a defendant is entitled to a new trial;
and presumptions concerning the validity of the original testimony.
Procedurally, motions for a new trial are generally addressed
to the same trial judge who tried the case, who is believed to have
the most information on which to base a decision, having actually seen
the witness, and having observed his or her demeanor at the trial.'42
Such motions are frequently brought months, occasionally even years,
after the original trial,' so that there is little reason to be confident
that most judges are actually capable of remembering a particular
witness' performance at trial. It is just as likely that the information
that is brought to the post-conviction hearing by the original judge
includes some emotional investment in believing that the first trial
was fair and just. In many cases, the trial judge makes a decision
on the recanting testimony solely on the basis of affidavits, without
actual testimony from anyone, including the recanting witness."
142. See, e.g., Daellenbach v. State, 562 P.2d 679 (Wyo. 1977).
143. In one of the most widely celebrated recantation cases, Rubin "Hurricane"
Carter and a co-defendant were convicted of murder by a jury in May, 1967. Seven
and one-half years later, in 1974, Carter moved for a new trial based on "newly
discovered evidence," consisting of the affidavits of two state witnesses recanting significant portions of their trial testimony identifying the defendants. State v. Carter, 136
N.J. Super. 271, 345 A.2d 808 (1974) (new trial denied), vacated and remanded, 136 N.J.
Super. 596, 347 A.2d 383 (1975), reversed on other grounds, 69 N.J. 420, 354 A.2d 627
(1976). On retrial, the defendants were again found to be guilty, and the verdict was
affirmed. 91 N.J. 86, 449 A.2d 1280 (1982). The most recent development in the Carter
case came on November 7, 1985, when a federal judge again overturned the conviction, citing constitutional violations by the prosecutors. N.Y. Times, Nov. 8, 1985, at
Al, col. 1.
144. One problem faced by defendants seeking a new trial based on alleged
recantations is that few witnesses are as willing to subject themselves to prosecution
for perjury as was the woman who recanted her accusation that Gary Dotson raped
her. Many witnesses, once advised of their fifth amendment rights, choose not to testify
180
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There are several possible approaches that could be taken to
determine when recanting testimony should result in a new trial. One
would be for the court to accept the recantation at face value, assume
that a jury would believe it, and grant a new trial unless the remaining evidence is sufficient to convict the defendant. No court has
adopted that approach. It has been rejected largely on the grounds
that to automatically grant a new trial would shift the power to grant
new trials from the court to the witness who testified against the
defendant."' Of course, the court's desire to maintain control of the
right to decide when a new trial is warranted is no doubt reinforced
by the instinctive feeling that the recanting testimony is generally
worthless.
Alternatively, the court could approach recanting testimony with
more skepticism, and play a more active role in judging the credibility of the recanting testimony. At trial, the court's role is to determine the threshold competency of a particular witness, leaving to the
jury the job of determining how much credibility should be attributed
to the witness. In every state, however, it is the court, not the jury,
that determines whether or not a recanting witness is sufficiently
credible to warrant granting the defendant a new trial.1" Presumably,
the court does so by comparing the affidavit or testimony of the
witness to his earlier trial testimony. Only if the court is reasonably
satisfied that the recanting testimony is true, and the earlier trial
testimony is false, is there any question about whether or not to grant
a new trial. In an oft-cited concurrence, Justice Cardozo explained:
[Ilt was the duty of the trial judge to try the facts, and
determine as best as he could where the likelihood of truth
lay.... I do not mean that to justify a new trial he must
have been convinced that the first story of the witnesses
was false and that their new story was true. He might act
upon a reasonable probability. But if, on the contrary, he
at a recantation hearing in a manner that would subject themselves to such perjury
charges. See, e.g., Dunbar v. State, 555 P.2d 548 (Alaska 1976).
One solution to this problem is for the prosecutor to offer immunity to the witness
who seeks to recant. In one case, the witness had a change of heart midway through
the trial, and the prosecutor refused to grant immunity to allow the witness to testify
differently without subjecting herself to perjury charges. The New York appellate
court reversed the trial judge because of the prosecutor's abuse of discretion. People
v. Priester, 98 A.D.2d 820, 470 N.Y.S.2d 478 (1983).
145. People v. Tallmage, 114 Cal. 427, 46 P. 282 (1896); Swett v. State, 268
A.2d 814 (Me. 1970); People v. Shilitano, 218 N.Y. 161, 112 N.E. 733 (1916).
146. Kearney v. United States, 682 P.2d 214, 220 (D.C. Cir. 1982); State v. Harris,
428 S.W.2d 497, 501 (Mo. 1968); Commonwealth v. Nelson, 484 Pa. 11, 398 A.2d 636 (1979).
19861
WITNESS CREDIBILITY
was convinced that the second tale was false, that a criminal
league had been formed to set at nought the verdict of the
jury and the judgment of the court, his duty was clearly
marked.... He was not at liberty to shift upon the shoulders
of another jury his own responsibility.... He was charged
with a responsibility to seek the truth himself."7
Once a court has been reasonably satisfied that recanting
testimony is true, certain other criteria must be met before a new
trial will be granted. First, if the basis for the motion is "newly
discovered evidence," then the evidence must indeed be newly
discovered. That is, the evidence must have been discovered by the
defendant some time after the trial, or the defendant must have been
taken by surprise and unable to meet the false testimony at trial." 8
The requirement is necessary because of the strong public policy favoring an end to litigation. If the defendant could have shown that trial
testimony was perjurous in nature at the time of the trial, then he
was obligated to do so. If he failed to do so, he will not be given
a second opportunity in order to retry his case properly.
Nor will the defendant be entitled to a new trial if the recanting testimony was not really critical to the outcome of the case. If
the evidence can be characterized as merely cumulative or impeaching,
a new trial will be denied.'49 How critical is critical? The courts cannot agree. In some,,a new trial will be granted if the court finds that
the jury might have reached a different conclusion if it had heard the
true testimony."5 In other words, those courts do not truly weigh and
sift the new evidence in deciding the motion for a new trial. Rather,
the job of sifting and weighing, the recantation evidence is left to the
jury to do at the new trial. The trend, however, is for the court to
assume more power to deny a new trial unless it finds that the recanting testimony would probably produce acquittal in the event of
retrial. 5 ' In effect, the judge determines not only the credibility of
the recanting testimony, but its significance in the overall trial as
well, and grants a new trial only in those few cases where an acquittal is most likely to result.
147. People v. Shilitano, 218 N.Y. 161, 112 N.E. 733 (1916).
148. Larrison v. United States, 24 F.2d 82, 87 (7th Cir. 1928). See also cases
collected in 24 C.J.S. Impeachment S 1460 (Supp. 1985).
149. People v. McGraughen, 197 Cal. App. 3d 6, 17 Cal. Rptr. 121 (1961); People
v. Valencia, 30 Cal. App. 126, 86 P.2d 122 (1938); Heard v. United States, 245 A.2d
125 (D.C. 1968); State v. Mosley, 133 Me. 168, 175 A. 307 (1934); Powers v. State, 168
Miss. 541, 151 So. 730 (1933).
150. Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928).
151. Derrington v. United States, 488 A.2d 1314 (D.C. 1985); Godfrey v. United
182
[Vol. 20
It is neither surprising nor inappropriate for a court to find that
the affidavit of a witness who refuses to appear at a hearing is not
sufficient to overcome the presumption that the testimony given by
that witness at trial was true."2 However, in some cases, the problem is not that a witness is reluctant to testify at a post-conviction
hearing, but that the court will not permit the defendant a full hearing with witness testimony.'" To deny the defendant a new trial in
those circumstances without hearing from the recanting witness
smacks of unfairness.
The decision to deny a new trial despite recanting testimony is
not particularly troublesome when there is other sufficient evidence
to support the conviction. In those cases, one can reasonably be
assured that the defendant was indeed guilty, and he or she deserves
to be punished. On the other hand, when a defendant has been convicted largely-or solely-on the testimony of a prosecution witness
who later recants, the denial of a new trial raises the possibility of
an innocent person being punished for a crime he or she did not commit, largely because there must be an end to litigation. Nevertheless,
most courts insist that even when the sole witness recants, the matter rests squarely in the discretion of the trial judge, and the recantation does not in and of itself entitle the defendant to a new trial.
Certainly, that rule would seem fairer if there were evidence-such
as expert testimony to explain why a recantation from a child victim
is unlikely to be reliable-to support the implicit finding that the
recantation testimony is not reliable. However, few courts have looked for such testimony, and only a very few have thought the risk
of an innocent person being punished so great that they will find a
trial judge to have abused his discretion if he denied a new trial where
States, 454 A.2d 293 (D.C. 1982); Heard v. United States, 245 A.2d 125 (D.C. 1968);
People v. Jones, 26 Ill. App. 3d 78, 325 N.E.2d 56 (1975); Smith v. Indiana, 455 N.E.2d
346, 351 (Ind. 1983); State v. Pittman, 210 Neb. 117, 313 N.W.2d 252 (1981); State v.
Hortman, 207 Neb. 395, 299 N.W.2d 187 (1980).
152. People v. Marquis, 344 Ill. 261, 265, 176 N.E. 314, 315 (1931); State v. Linkletter, 345 So. 2d 452, 458 (La. 1977) ("a judgment rendered regularly ought not to be
set aside on the unsupported affidavit of an admitted perjurer that he will swear to
the truth on another trial.").
153. Derrington v. United States, 488 A.2d 1314 (D.C. 1985); Tafero v. State,
440 So. 2d 350 (Fla. 1983); Snyder v. State, 460 N.E.2d 57 (Ind. App. 1984); Best v.
State, 418 N.E.2d 316 (Ind. App. 1981); State v. Wilson, 16 Wash. App. 434, 557 P.2d
18 (1976). But see Dunbar v. State, 555 P.2d 548 (Alaska 1976), in which a sixteen-yearold victim-witness and her younger brother recanted their testimony. The Supreme
Court of Alaska ordered an evidentiary hearing so that their recantation testimony
could be tested by cross-examination.
WITNESS CREDIBILITY
1986]
the conviction rests solely on the testimony of a witness who seeks
to recant."9
Due process considerations prevent the state from knowingly using perjured testimony to obtain a conviction.'55 Where it can be
proven that the state did so, the defendant has been denied a fair
trial and will be entitled to a new one. However, few cases can be
shown to involve the knowing use of perjured testimony, and most
courts do not find a violation of due process when the defendant cannot prove that the state knew that the testimony was false.
B. Expert and Scientific Evidence at Recantation Hearings
In most cases, the problem is not what to do about perjured
testimony, but how to determine which testimony was perjured. For
the most part, judges make that determination without much aid save
their own experience and judgment. There are few reported cases
in which defendants have sought to bolster their motions for new trial
with expert testimony. Yet the door to such testimony may have been
opened by a few courts that have allowed polygraph results to be
heard by the judge who must determine whether or not a new trial
is warranted.
In the leading case,- People v. Barber," the high court in Michigan
set forth guidelines for the use of polygraph results at new trial hearings, while reiterating that Michigan law does not permit polygraph
results at the trial itself. The defendant in Barber had been convicted
of extortion, largely on the testimony of the victim and her husband.
Later, he moved for a new trial on the grounds that "newly discovered
evidence" showed that the husband had given perjured testimony at
the trial. Since proof that a defendant had been convicted by the use
of perjured testimony is grounds for a new trial in Michigan, the
credibility of this newly discovered evidence was critical to the defendant's hopes for a new trial. The new evidence consisted of the
154. Derrington v. United States, 488 A.2d 1314 (D.C. 1985); Tafero v. State,
440 So. 2d 350 (Fla. 1983).
155. People v. Cornille, 95 Ill. 2d 497, 448 N.E.2d 857 (1983) (antithetical to
our system of justice not to grant a new trial for a defendant when it is convincingly
established that he was convicted on the basis of false testimony). Accord Fugitt v.
State, 251 Ga. 451, 307 S.E.2d 471 (1983) (new trial granted where witnesses' testimony
was pure fabrication). But see Drake v. State, 248 Ga. 891, 287 S.E.2d 180 (1982) (post
trial declaration by state's witness that his former testimony was false was not ground
for a new trial).
156. People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977).
184
[Vol.20
testimony of two witnesses who had not testified at the original trial,
and proof that one of the two had "passed" a polygraph examination.
The high court upheld the admissibility of the polygraph
evidence, giving several reasons for doing so. First, the court reasoned
that a new trial hearing is not a trial, but is rather a kind of
"preliminary proceeding" in which the defendant's guilt or innocence
is not at issue, and the judge is not bound by the usual rules of
evidence, but can receive affidavits and other data which would be
inadmissible at trial. Thus, the fact that polygraph evidence is not
admissible at trial in Michigan was no bar to its use at post-trial hearings and its use at such hearings would not be a drastic innovation.157
Second, the court set forth strict rules that would protect defendants:
the results could only be used on behalf of the defendant; the tests
must have been taken voluntarily; the court must pass on the qualifications of the expert, and on the quality of the equipment and procedure
used; all knowledge of the test would be kept from the trier of fact,
either judge or jury, on retrial; and the test would be admissible only
to bolster the credibility of a new witness."
The Michigan decision was an extremely tentative one. Polygraph
evidence obviously is thought to have some validity, but not enough
validity to allow a jury-or even a trial judge-to hear it; appeals
from its discretionary admission at post trial hearings are restricted
by limiting its use to use on behalf of the defendant. Finally, the requirement that the test be admissible only to bolster the credibility
of a new witness is so restrictive as to render the polygraph useless
in the one common situation where the credibility of a witness is most
problematic: that is, when the witness recants. Why prohibit evidence
to evaluate the credibility of a witness who claims to have lied under
oath, when the alternative is to allow judgment to rest on the experience and instincts of a single person, the trial judge?
Tentative as the Michigan decision is, it is more radical than
most. Few states have chosen to follow the lead of Michigan, with
most continuing to exclude polygraph evidence from new trial hearings, as well as from trials themselves.'59 Still, the door has been opened a crack, and there is room for it to be opened further.
157. Id. at 411, 255 N.W.2d at 197.
158. Id. at 412-14, 255 N.W.2d at 198.
159. There are only a few reported decisions in which other states have allowed
the use of polygraph evidence at a new trial hearing. See State v. Catanese, 368 So.
2d 975 (La. 1979); State v. Yodsnukis, 281 N.W.2d 255 (N.D. 1979). See also Commonwealth
v. DiLegio, 387 Mass. 394, 439 N.E.2d 807 (1982) (a case involving the use of polygraph
19861
WITNESS CREDIBILITY
C. Other Innovations at Hearings for New Trial
Some of the reforms proposed in the way that child witnesses
are treated at trial might also be useful in assisting courts in determining what to do when a child victim recants. If a child victim is
permitted to testify by videotape deposition, instead of by live
testimony, it is possible to preserve a far better record of the child's
statement than that provided by an ordinary transcript of the trial.
The judge determining whether or not to grant a new trial would
thus have the benefit of viewing the earlier videotape, as well as current testimony, before deciding what to do.
CONCLUSIONS
The adversary system as a method of ascertaining truth depends
largely on the ability of judges and juries to evaluate the credibility
of witnesses called to give testimony in court. Traditionally, courts
have been reluctant to look to experts for assistance in such evaluations. As psychologists and other experts add to our body of
knowledge about the way in which human beings think, remember,
react, and communicate, the possibilities increase for enhancing the
truth-seeking abilities of judges and jurors by drawing on the
knowledge of such experts to help evaluate live witness testimony.
evidence at trial, in which the court dropped a footnote suggesting that it might permit the use of such evidence at a new trial hearing). Most courts continue to disallow
the use of polygraph evidence at hearings for a new trial. See, e.g., People v. Hilliard,
109 Ill. App. 3d 797, 441 N.E.2d 135 (1982) (polygraph inadmissible at post-conviction
hearing to determine the validity of recantation by prosecution witness). Accord People v. Cihlar, 125 Ill. App. 3d 204, 465 N.E.2d 625 (1984).
http://www.chron.com/CDA/archives/archive.mpl/1985_7282/polygraph-allegedlysupports-rape-recantation.html
Polygraph allegedly supports rape recantation
United Press International
MON 04/15/1985 HOUSTON CHRONICLE, Section 1, Page 5, 4 STAR Edition
MENOMONEE FALLS, Wis. - A woman who recanted her testimony against a man
convicted of raping her passed a lie detector test supporting her claim that the man is
innocent, an attorney said today.
Lawyer John J. McLairo said the results of the test indicated Cathleen Crowell Webb did
not have sex with anyone on the day she originally claimed she was raped.
At a hearing last week for Gary Dotson, Webb said she lied when she testified he raped
her in 1977 but a judge refused to accept her recantation.
McLario, representing Webb, told reporters an examination done by Robert C. Cummins
Inc. of Chicago found Webb's testimony concerning the conviction of Gary Dotson was
truthful.
McLario said Webb was asked whether she was with Dotson or anyone else physically on
July 9, 1977, the day she said she was raped. McLario said she answered "no." McLario
said it was the opinion of Cummins that Webb's answer was truthful.
Webb was also asked if she lied at an April 4 hearing before Cook County Circuit Judge
Richard Samuels in Chicago or if she was offered anything to change her testimony in
favor of Dotson. McLario said Webb again answered "no" in the polygraph that was
given to her on Saturday.
Webb has testified her lies caused Dotson to be improperly imprisoned but the courts
have ignored her turnabout after allowing Dotson out briefly during the Easter weekend.
Warren Lupel, Dotson's attorney, said he had spoken with McLario and believed the
announcement would be a "positive" development.
Dotson has been returned to his Joliet, Ill., Correctional Institution cell to serve out his
25- to 50-year sentence by Cook County Circuit Judge Richard Samuels, who rejected
Webb's new story.
Before taking the matter to the authorities, McLario warned Webb of the consequences
she would face when the matter was brought out in the open.
Dotson, 28, had been allowed one week of freedom on $100,000 bond after Webb's
testimony April 4. But questions remain about her credibility and reason for coming forth
now with the alleged truth and Dotson was returned to prison.
Volunteers have collected 40,000 signatures on petitions supporting Dotson, said Patty
Parker, organizer of the petition drive.
Lupel said he would include the signatures in a petition for clemency he planned to file
this week with the Illinois Prison Review Board. A clemency decision would be made by
Gov. James Thompson, using the board's evaluation.
http://articles.chicagotribune.com/1985-04-16/news/8501220247_1_warren-lupelcathleen-crowell-webb-test-results
Pollswon`thelp Dotson, Governor Says
April 16, 1985|By Anne Marie Lipinski and John Kass.
Responding to news of a petition drive and other efforts to make public opinion a factor
in the Gary Dotson case, Gov. James Thompson said Monday night that `ìf anybody,
either side, thinks I decide these kinds of cases on the basis of public opinion, they`re in
for a big shock.``
Thompson said in a telephone interview: `Ì follow the law, the evidence and my own
conscience. . . . Nobody needs to be gathering signatures in the neighborhoods. That
doesn`t do anybody any good. . . .
``People are stopping me on the street to talk about Dotson,`` the governor said. But he
added, `Ìf you let public opinion come into play, you would logically be forced to let it
come into play on keeping people in
(prison), and then I think we would be in a sorry state.``
The governor made his comments after Dotson`s supporters said they had gathered
40,000 signatures in favor of his release from prison and after a tactical disagreement
Monday between Dotson`s attorney and the lawyer for the woman whose testimony sent
Dotson to prison for rape for six years.
The woman, Cathleen Crowell Webb, who is trying mightily to free Dotson, on Monday
released results of a polygraph test that she says prove that her accusations against
Dotson were concocted and that she had never even met Dotson before she accused him.
Webb`s lawyer, John McLario, said the test results would prompt Thompson to expedite
Dotson`s release.
But Dotson`s lawyer, Warren Lupel, sharply disagreed. ``That`s nonsense,`` he said. `Ìf
anything, this will get his (the governor`s) back up. . . . This is the kind of media blitz that
resulted in (Cook County Circuit Judge Richard) Samuels saying he would not be
stampeded by the press and caused him to take a `circle-the-wagons` attitude.``
Samuels refused last week to throw out Dotson`s conviction despite Webb`s recantation
of her rape charge.
`Ì think this could give Thompson a `circle-the-wagons` attitude and may have a
negative effect,`` Lupel said of the release of the lie detector test results.
Thompson emphasized Monday night that he has no application for clemency or a pardon
in front of him.
Lupel said he intends to file such a clemency petition with the Illinois Prison Review
Board this week to commute Dotson`s 25- to 50-year prison sentence. Before such a
petition goes before the governor, it must be filed with the review board.
In another development Monday, an attorney retained to assist Lupel, Rick Halprin, who
is also general counsel for the Chicago Park District, said he would file a writ of habeas
corpus this week in Cook County Criminal Court contending that Dotson is being
wrongly imprisoned on constitutional grounds. If that motion is denied, Halprin said, he
would petition for a new trial. Halprin is one of several lawyers who have been retained
to assist Lupel.
At Webb`s press conference in Menomonee Falls, Wis., Webb released polygraph test
results that she said proved she is telling the truth in recanting testimony that convicted
Dotson for raping her.
The polygraph test was administered Saturday by Chicago polygraph examiner Robert
Cummins.
According to the results, Webb truthfully answered 10 questions about whether she had
been raped by Dotson or had lied in testifying two weeks ago that she had falsely charged
rape out of fear that she was pregnant.
During the polygraph test, Webb denied having had any contact with Dotson or having
had sex with anyone on July 9, 1977, the day of the alleged rape.
She also denied having withheld any information while testifying about her recantation
two weeks ago. She further contended that she had not been
`òffered or promised anything`` to change her story.
Webb said investigators from the state`s attorney`s office had asked her in an interview
on March 18 if she would consent to a polygraph test, but they never tested her despite
her willingness to cooperate.
`Ì think the reason they didn`t want me to take the test is that they didn`t want to believe
me,`` said the 23-year-old New Hampshire housewife.
``They knew deep down in their gut that I was telling the truth.``
The governor said that if he receives a clemency petition, he will order transcripts of
Dotson`s 1979 trial and also of last week`s hearing before Samuels. The governor said
that if it appeared necessary, he would order a complete reinvestigation of the physical
evidence.
He also said he would consider Webb`s polygraph test results, saying:
`Ànything is admissible in a clemency hearing.

Gary Dotson - BonPasse Exoneration Services

Transcription

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