Kirkman Reversed; Constitutional Error Not Manifest

State v. Kirkman (2007)

The Washington Supreme Court has reversed the court of appeals and reinstated convictions in two child sex abuse cases. The trial courts’ admission of testimony on the credibility of the allegations did not raise an issue of “manifest constitutional error,” the supreme court held. The defendants’ failure to object at trial to this evidence was thus fatal to their appeals. The two cases are headedState v. Kirkman, 159 Wn.2d 918, 155 P.3d 125 (2007). (Child Abuse Defensereported the court of appeals decision in one of these cases here.)

In the first case, an eight-year-old girl reported Kirkman had touched her privates. When Det. Kerr interviewed the girl, she asked the girl to promise to tell the truth, and the girl promised.

Physician John Stirling examined the girl. He testified that nothing in his physical findings caused him to doubt her allegations, and nothing confirmed them. He also testified that her affect as she told him of the assault was appropriate, and that her account was “clear and consistent,” with plenty of detail.

Kirkman’s counsel did not object to any of this evidence.

In the companion case, a six-year-old girl reported various acts of child rape by Candia. When Det. Greer interviewed her, she administered a “competency” protocol which tested ability to distinguish truth from falsehood. Det. Greer asked the girl to promise to tell the truth. The girl then gave an account of sex abuse by Candia.

Dr. Stirling examined this girl, too. He testified at Candia’s trial on whether his findings—no physical evidence of sexual contact—were consistent with her allegations. He said it was “the norm rather than the exception” to have no findings after such allegations.

Candia’s counsel did not object to any of this evidence.

The court of appeals reversed both convictions. It held that, in the testimony described above, Dr. Stirling and the detectives had impermissibly opined that the girls had told the truth in accusing the defendants.

The supreme court reversed the court of appeals and reinstated both convictions.

The supreme court acknowledged Washington precedent “that it is improper for any witness to express a personal opinion of the defendant’s guilt.” State v. Garrison, 71 Wn.2d 312, 315 (1967), and State v. Black, 109 Wn.2d 336, 348 (1987), are among the cases saying so. Such an opinion, the supreme court recognized, can violate the “constitutional right to a jury trial, which includes the independent determination of the facts by the jury.” In a child sex abuse case, an opinion that the complainant spoke truthfully is almost always an opinion that the defendant is guilty.

But only a constitutional error which is “manifest,” the court noted, will be heard on appeal when the defense did not object to the evidence at trial. And an error is “manifest” only if it caused the defendant “actual prejudice” at trial. In these cases the supreme court found no actual prejudice. Rather, it appeared to the court that defense counsel had made a tactical choice not to object at trial. (The court did not explain why the defendants could not have been actually prejudiced by their counsel’s tactical choices.)

The supreme court also found that the testimony in question fell far short of expressing a personal opinion that a defendant was guilty.

Specifically, the court said that “Dr. Stirling did not come close to testifying that Kirkman was guilty or that he believed [his accuser’s] account.” Likewise, “he never commented on whether he believed [Candia’s accuser] nor did he opine on Candia’s credibility or guilt.”

The court reacted similarly to the detectives’ use of interview protocols that included promising to tell the truth and questions about the difference between truth and falsehood. Such an interview protocol, the court said, “does not impermissibly infringe on the jury’s province given that the same child takes the witness stand in front of the jury and swears under oath that the testimony given will be truthful.”

The court concluded by holding “that testimony of an investigating officer or examining doctor, if not objected to at trial, does not necessarily give rise to a manifest constitutional error. Manifest error requires an explicit or almost explicit witness statement on an ultimate issue of fact.”

This conclusion could be read to mean that a witness’s statement about accuser credibility could not actually prejudice the defendant unless it were an explicit or almost explicit statement that the witness believed the defendant guilty. Such a reading, though, would conflict with the normal manner of assessing actual prejudice: examining the error in the context of the facts of the particular case.

At no point did the supreme court mention Washington Rule of Evidence 608. That rule identifies the permissible forms of evidence of a witness’s truthfulness. Opinion testimony is not one of them. (In this respect, the rule differs from Federal Rule of Evidence 608.) Rule 608 would be the appropriate rule to cite at trial when objecting to a witness’s testimony about the credibility of another witness.