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Credibility experts’ testimony inadmissible, Md. high court says

“An agency that receives a PIA request must conduct a search in good faith that is reasonably designed to capture all responsive records,” Judge Robert N. McDonald wrote for the Court of Appeals. (Capital News Service)

Court of Appeals Judge Robert N. McDonald: ‘We are reluctant to abandon the general rule that one witness may not opine on the credibility of another witness’ testimony in a case.’ (File photo)

Those with an expertise in detecting when people are lying need not testify in Maryland courtrooms.

The state’s top court ruled Thursday that expert testimony on whether another witness fibbed is ordinarily not admissible because witness-credibility decisions belong to the jury.

The Court of Appeals rendered its decision in overturning James Adam Fallin’s convictions for sexual abuse of a minor, and related offenses, following a trial in which an expert testified the child who recounted the abuse was neither coached nor fabricated the account. The expert’s testimony essentially usurped the jury’s function of determining a witness’s credibility, the high court held in its 5-2 decision.

“We are reluctant to abandon the general rule that one witness may not opine on the credibility of another witness’ testimony in a case,” Judge Robert N. McDonald wrote for the majority.

“While the issue arises here in the context of an out-of-court statement of a child witness, the rationale for permitting it could easily apply to in-court testimony and to adult witnesses,” McDonald added. “Once that door is opened, it is not hard to imagine that the defense will wish to present an opposing expert who discerns signs of fabrication where the prosecution’s expert did not. The principle that our system relies on the common sense of jurors to make these difficult credibility judgments will be lost to a battle of experts.”

At the trial in Charles County Circuit Court, the alleged child victim testified that Fallin had touched her private parts inappropriately on three occasions. Meredith Drum, a licensed counselor, testified over defense counsel’s objections the child had shown no signs of fabrication or of having been coached during the four times Drum had met with her.

The jury convicted Fallin of sexual abuse and second- and third-degree sexual assault in 2016. He was sentenced to 25 years in prison, with all but 21 years suspended, and five years’ supervised probation.

The Court of Special Appeals upheld the convictions, prompting Fallin to seek review by the high court.

The Court of Appeals, in ordering a new trial, likened Drum’s testimony regarding fabrication and coaching to a lie-detector test, the results of which have long been deemed inadmissible in court.

McDonald was joined in the opinion by Chief Judge Mary Ellen Barbera and Judges Clayton Greene Jr., Sally D. Adkins and Michele D. Hotten.

Raquel Coombs, a spokeswoman for the Maryland attorney general’s office, declined to comment on the decision.

In dissent, Judge Shirley M. Watts said an expert may testify regarding whether another witness fabricated or was coached because such testimony does not go the ultimate jury question of whether that witness was credible.

“This testimony allows for the determination by the trier of fact that the alleged victim was not testifying credibly, but did not show signs of fabrication or coaching that the expert detected,” Watts wrote in the dissent Judge Joseph M. Getty joined.

“The expert’s testimony does not invade the province of the jury, which remains free to assess the alleged victim’s credibility and find whether the defendant sexually abused the alleged victim,” Watts added. “I fear that the majority opinion deprives juries of admissible evidence regarding the circumstances of an expert’s interview of an alleged victim of child sexual abuse, a crime that is all too prevalent and repugnant in our society, and in which the credibility of children is routinely attacked.”

Watts rejected the majority’s likening of Drum to a lie detector, saying the latter measures a person’s credibility.

“…Drum did not offer a credibility determination; instead, she identified specific signs of fabrication or coaching that she had been trained in her field of expertise to detect, and testified that she did not detect those signs while interviewing (the child).”

Fallin’s appellate attorney, Wyatt Feeler of the Maryland public defender’s office, did not return a telephone message seeking comment.

The Court of Appeals rendered its decision in Jason Adam Fallin v. State of Maryland, No. 79, September Term 2017.

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