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Colorado Criminal Law – One Witness Cannot Testify That Another Witness Is Telling The Truth – Bolstering

By H. Michael Steinberg Colorado Criminal Defense Lawyer

Colorado Criminal Law – One Witness Cannot Testify That Another Witness Is Telling The Truth – Bolstering – Often in Colorado criminal cases one witness attempts to inform the judge and or jury that another witness should be believed and was – when they testified – telling the truth.

This practice can be particularly serious in sexual assault on children and sexual assault on adults (rape) cases because the bolstering testimony often takes the form of insisting that children or traumatized women do not lie.

The Basic Rule – CRE 608(a) – A Witness Cannot Give An Opinion That Another Witness Told The Truth

The reasoning behind this important rule of evidence is founded on the principle that a jury is not allowed to consider “evidence that a witness was telling the truth on a specific occasion because it is solely the jury’s responsibility to determine whether a particular witness’s testimony or statement is truthful.”

Summary of the Basic Rule:

A witness may not opine with respect to whether another person was telling the truth on a specific occasion under Colorado Rule of Evidence 608(a);

First, another rule of evidence – CRE 404(a) states that evidence of a person’s character or character trait is generally not admissible for the purpose of proving that on a particular occasion the person acted in conformity with his character or character trait.

But several exceptions to the rule exist. One is the admission of character evidence under Rule – CRE 608(a), which addresses character evidence in the form of opinion or reputation testimony, which is summarized as follows: (follow this link for the entire rule)

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:

(1) the evidence may refer only to character for truthfulness or untruthfulness, and

(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

CRE 608(a)(2) explains further that the exception to inadmissibility created by CRE 404(a)(3) by permitting character evidence in support of credibility only after:

…the character of the witness for truthfulness has first been attacked by opinion or reputation evidence or otherwise.

The key is this – the witness’ character for truthfulness has to have been attacked, only then does CRE 608(a) authorizes the admission of evidence of the witness’ character for truthfulness in the form of opinion or reputation testimony.

The Colorado Courts of Appeal have consistently held that the following scenarios where a witness, such as an expert, should not have been allowed to bolster another witnesses’ testimony.

1. It is error to allow an expert witness such as an alleged expert in the field of child abuse – to express an opinion on whether a child-victim was speaking the truth on a specific occasion.

The Court of Appeals found that the foundation requirements of CRE 608(a) had not been met because there was “insufficient evidence that the victim’s character for truthfulness had been directly attacked by the defense”; and second, the content of the expert’s opinion testimony was improper because “it failed to refer to the witness’ general character for truthfulness and instead went to the witness’ truthfulness on a specific occasion.”

2. In another case the Colorado Supreme Court held that CRE 608(a) was violated where a trial court admitted expert testimony that children generally do not fabricate stories of sexual abuse, since child-victim’s character for truthfulness had not been attacked prior to admission of expert opinion evidence.

3. That same year – the Court held that trial judge’s should not allow a social worker and an investigator, both of whom had personally interviewed child-victims of sexual assault, to testify buy cheap cialis 20mg that they believed child-victims were telling the truth during interviews.

4. A witness may not testify that, in reporting a sexual assault, a child was “sincere,” or “very believable, or “not . . . coached.”

5. A witness may not testify that he or she personally believed the child’s statements, or that children tend not to fabricate stories of sexual abuse.

The Exception To The Exception – Danger

It is important to also understand that a witness – properly qualified – CAN testify if the opinion offered bears on the credibility of a victim as it relates to the witnesses’s general characteristics only. An expert may be allowed to testify concerning whether a victim’s behavior or demeanor is consistent with the typical behavior of victims of abuse” because testimony about a child’s general characteristics and their behavior is not the same as [impermissible] testimony supporting the veracity of their statements.”

Testimony as to the “puzzling aspects of the child’s conduct and demeanor” is permitted to assist the jury in its evaluation of a child’s credibility in cases of sexual abuse of children.

The Controversy Settles On An Interpretation Of The Nature And Impact Of The Harmful Evidence

In a trial where this issue is raised – the prosecutor will argue that the questioned testimony bolstering the child or adult witness falls within the line of cases that permit the use of general characteristics as an indirect way of addressing the witnesses’s credibility.

The defense lawyer will argue that this is NOT a “general characteristics” situation more specifically that the testimony is not about a “class of victims” such as those who have experienced child incest, sex assault, rape trauma, or the like. The defense will argue that the “characteristics” in question are specific to the alleged victim in THIS case and are directly indicative of the alleged victim’s credibility relevant only to ascertaining whether this victim was telling the truth on a specific occasion.

If The Evidence IS Allowed In Error – What Next On Appeal?

This kind of trial error is known as a “nonconstitutional” error. In this situation, if the trial court’s ruling goes against the Defendant, to obtain a reversal on appeal, the defense must establish that “there is a reasonable probability that [the error] contributed to a defendant’s conviction by substantially influencing the verdict or impairing the fairness of the trial,”

If the situation is there is no other physical evidence of, or eyewitness testimony to, the alleged sexual assaults against the alleged victim and the defendant does not admit to sexually assaulting her, there os significant likelihood that the improper bolstering of the alleged victim’s credibility substantially influenced the jury’s verdicts and the error will require a new trial as the issue of credibility of the alleged victim was “central issue to be resolved by the jury.”

 Colorado Criminal Law – One Witness Cannot Testify That Another Witness Is Telling The Truth – Bolstering

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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law – One Witness Cannot Testify That Another Witness Is Telling The Truth – Bolstering.

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