IN THE SUPREME COURT OF IOWA
No. 12–2264
Filed December 5, 2014
Amended February 23, 2015
STATE OF IOWA,
Appellee,
vs.
JOSE FERNANDO JAQUEZ SR.,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Louisa County, John M.
Wright, Judge.
The State seeks further review of a court of appeals decision
reversing a defendant’s conviction because the district court allowed
expert testimony vouching for the victim’s credibility. DECISION OF
COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT
REVERSED AND CASE REMANDED.
Benjamin D. Bergmann of Parrish, Kruidenier, Dunn, Boles,
Gribble, Gentry & Fisher, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Katie A. H. Fiala, Assistant
Attorney General, and David L. Matthews, County Attorney, for appellee.
2
WIGGINS, Justice.
This case involves a charge of sexual abuse in the second degree in
violation of Iowa Code sections 709.1 and 709.3(2) (2011). A jury
returned a guilty verdict on this charge. In this appeal, the defendant
contends an expert witness vouched for the credibility of the victim and
therefore he is entitled to a new trial. We transferred the case to our
court of appeals. The court of appeals agreed the defendant is entitled to
a new trial on the ground the expert witness vouched for the credibility of
the victim.
The State asked for further review, which we granted. On further
review, we find the court of appeals is correct that the defendant is
entitled to a new trial on the ground an expert witness vouched for the
credibility of the victim. Therefore, we affirm the decision of the court of
appeals and remand the case for a new trial.
I. Background Facts and Proceedings.
In October 2006, Jose Francisco Jaquez moved in with his new
girlfriend and her three children, including her oldest daughter M.M.
While living with his girlfriend, M.M. claimed Jaquez had sexual
intercourse with her on more than one occasion. At trial, M.M. testified
Jaquez had sex with her at least once a week for two years, but she told
forensic interviewer Kiesa Kay he had sex with her three times total.
M.M. also testified to acts in addition to sexual intercourse that occurred
over the course of two years, from the time she was ten until she was
twelve. M.M. disclosed the alleged abuse to her best friend when she was
twelve and then to her mother. On January 9, 2012, at the Child
Protection Center, Dr. Colette Hostetler examined M.M. and forensic
interviewer Kay interviewed the child. On April 13, the State charged
Jaquez with one count of sexual abuse in the second degree.
3
Jaquez filed a motion in limine seeking to exclude any testimony
by Kay that would serve to bolster the credibility of the child. The
district court granted the motion stating, “The Court will rule that the
State may not ask questions of the witness that would tend to give the
impression to the jury that the jury should give more credibility to the
witness’s testimony, the child witness’s testimony.”
At trial, Dr. Hostetler testified without objection that she performed
a physical exam on the child. She testified she found scar tissue in the
child’s anal area and the hymen did not show any “transections or
irregularities.” Kay testified she conducted a forensic interview of M.M.
During her testimony, the following colloquy occurred between her and
the county attorney:
Q: All right. First of all, what was your impression of
[M.M.] when you spoke to her? Basically, how did she
appear emotionally? A: She was quiet and very polite.
Q: Okay. A: She was not extremely emotionally
expressive or upset. She was just very polite.
Q: In your experience in those prior interviews that
you conducted, is that unusual that a child not be overly
emotional in that type of a situation? A: Oh, no, not at all.
Her demeanor was completely consistent with a child who
has been traumatized, particularly multiple times.
The jury found Jaquez guilty of sexual abuse in the second degree.
Jaquez filed a motion for new trial, arguing the verdict was against the
weight of the evidence and jury misconduct had occurred when Kay had
contact with jurors outside the courtroom. The district court denied the
motion. Jaquez filed a notice of appeal. We transferred this case to our
court of appeals. The court of appeals reversed the decision of the
district court and remanded the case for a new trial. The court found,
Kay did not present her opinion in the context of PTSD, did
not only show the typical symptoms of a person being
4
traumatized, and instead of waiting for independent evidence
of trauma, she directly drew that conclusion for the jury.
The court of appeals did not address the other issues raised by Jaquez’s
appeal. The State then filed this application for further review, which we
granted.
II. Issue.
In this appeal, we will only reach the issue as to whether error
occurred when the expert testified the child’s “demeanor was completely
consistent with a child who has been traumatized, particularly multiple
times,” because this issue is dispositive of this appeal.
III. Standard of Review.
In State v. Brown, we said:
We review the admission of the objected to paragraph
for an abuse of discretion. The district court abuses its
discretion when it exercises its discretion on grounds or for
reasons that are clearly untenable or to an extent clearly
unreasonable. A ground or reason is untenable when it is
not supported by substantial evidence or when it is based on
an erroneous application of the law.
856 N.W.2d 685, 688 (Iowa 2014) (citations omitted) (internal quotation
marks omitted).
IV. Analysis.
This case involves the situation where an expert directly or
indirectly vouches for a witness’s credibility thereby commenting on a
defendant’s guilt or innocence. In regards to this type of testimony, we
have stated:
Although we are committed to the liberal view on the
admission of psychological evidence, we continue to hold
expert testimony is not admissible merely to bolster
credibility. Our system of justice vests the jury with the
function of evaluating a witness’s credibility. The reason for
not allowing this testimony is that a witness’s credibility is
not a fact in issue subject to expert opinion. Such opinions
not only replace the jury’s function in determining
5
credibility, but the jury can employ this type of testimony as
a direct comment on defendant’s guilt or innocence.
Moreover, when an expert comments, directly or indirectly,
on a witness’s credibility, the expert is giving his or her
scientific certainty stamp of approval on the testimony even
though an expert cannot accurately opine when a witness is
telling the truth. In our system of justice, it is the jury’s
function to determine the credibility of a witness. An abuse
of discretion occurs when a court allows such testimony.
We again reaffirm that we are committed to the legal
principle that an expert witness cannot give testimony that
directly or indirectly comments on the child’s credibility. We
recognize there is a very thin line between testimony that
assists the jury in reaching its verdict and testimony that
conveys to the jury that the child’s out-of-court statements
and testimony are credible.
State v. Dudley, 856 N.W.2d 668, 676–77 (Iowa 2014) (citations omitted)
(internal quotation marks omitted).
Applying these principles to the objectionable testimony, we find
the expert witness’s testimony indirectly vouched for M.M.’s credibility
thereby commenting on the defendant’s guilt or innocence. By opining
M.M.’s demeanor was “completely consistent with a child who has been
traumatized, particularly multiple times,” Kay was vouching for the
credibility of the child. In other words, the expert witness is saying
M.M.’s demeanor means the child suffered a sexual abuse trauma,
therefore, the child must be telling the truth. See id. at 677. We allow
an expert witness to testify generally that victims of child abuse display
certain demeanors. Id. at 676; see also State v. Gettier, 438 N.W.2d 1, 4
(Iowa 1989). However, when an expert witness testifies a child’s
demeanor or symptoms are consistent with child abuse, the expert
crosses that very thin line and indirectly vouches for the victim’s
credibility, thereby commenting on the defendant’s guilt or innocence.
In its brief, the State claims Jaquez was not prejudiced by the
admission of this testimony. We disagree.
6
M.M.’s testimony was not consistent with her out-of-court
statements. She testified the abuse occurred at least once a week at
trial, but told the forensic investigator it only happened three times.
M.M. also testified the alleged abuse began when she was ten years
old. However, her mother testified she was exhibiting sexual behavior
towards her peers at the age of eight, inconsistent with when M.M.
alleged the incidents began.
Furthermore, M.M. testified while the alleged abuse was occurring
her mother would be in the home cooking or showering in a bathroom
with a shared wall to the room where the incidents were occurring. M.M.
testified she would cry during the abuse and that she would bleed
afterwards. This testimony is inconsistent with her mother’s testimony.
Her mother testified she did not hear any crying or notice any abnormal
bleeding and that she was unaware of any of the alleged incidents
occurring in her house until the child made the accusation.
Finally, the physical evidence did not support M.M.’s claim of child
abuse. Dr. Hostetler testified there was nothing abnormal about the
child’s physical examination other than a little scar tissue around her
anal opening. Dr. Hostetler first testified the scar tissue, which was
approximately a half a centimeter in length, “could be from anything
from having repeated hard stools that passed through and caused
fissures, or other kind of trauma like penetrating trauma.” However,
M.M. had not made any allegations of anal contact until after the doctor’s
examination. Additionally, because of the new allegation following
Dr. Hostetler’s examination, the child was taken for a second forensic
interview immediately following the exam. Dr. Hostetler testified in all
the years she has been examining children at the Child Protection Center
7
she had never had a child do a forensic interview, then the exam, and
then go back for a second interview.
Moreover, the county attorney emphasized this wrongly admitted
testimony in his presentation to the jury. In his opening statement, the
county attorney warned the jury the child was not going to be emotional
in her testimony. He was preparing the jury to ensure the jury did not
see the child’s seemingly odd behavior of emotional apathy as a lack of
credibility. He then elicited a direct answer from Kay regarding this
exact behavior, ensuring he was not the only person telling the jury it
was normal for M.M. to act in this manner. This testimony set the tone
for the remainder of Kay’s testimony regarding what the child told her
occurred.
V. Disposition.
Accordingly, we affirm the decision of the court of appeals, reverse
Jaquez’s conviction, and remand the case for a new trial.
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED.
All justices concur except Mansfield, J., Cady, C.J., and
Waterman, J., who dissent.
8
#12–2264, State v. Jaquez
MANSFIELD, Justice (dissenting).
While I agree with the analytical framework set forth in the court’s
well-reasoned opinions of today, see, e.g., State v. Dudley, 856 N.W.2d
668, 671–85 (Iowa 2014), I would not send this particular case back for a
new trial. In my view, the evidentiary error in this case did not prejudice
the defendant.
As the majority opinion indicates, the district court’s error in this
case was quite limited. Specifically, the district court should have
granted the defendant’s motion to strike one sentence volunteered by the
State’s expert. That sentence was: “[M.M.’s] demeanor was completely
consistent with a child who has been traumatized, particularly multiple
times.”
I agree with the majority that this volunteered testimony was
improper. However, I do not believe it prejudiced substantial rights of
the defendant. Reading the record in this case, the victim’s unrebutted
testimony was clear, convincing, and generally consistent. The victim
told her best friend and her mother of the defendant’s acts of sexual
abuse after the defendant had left for New Mexico and her mother had
broken up with the defendant. At that point, and when she later testified
in court, the victim was twelve years old. According to the victim, over a
period of approximately two years, the defendant took advantage of her
when her mother was at work or in the shower or cooking. A medical
examination revealed that the victim had scarring in her anus, which
was the result of some type of repeated action, although it could have
been repeated hard stools.
When the victim was interviewed by Kiesa Kay, she told Kay about
numerous instances of various forms of sexual abuse over those two
9
years. According to Kay’s report, the victim said Jaquez had only forced
her to engage in vaginal intercourse three times total (at least according
to Kay’s report). At trial and when deposed, the victim said the
defendant forced her into sexual intercourse three times a week. In other
respects, the victim’s trial testimony and the Kay report were consistent.
The defendant did not take the stand or present any other evidence
on his behalf. Furthermore, while the State’s expert should not have
been permitted to make the foregoing statement, it was only one
sentence, and it simply connected the dots between the expert’s
observations of the victim’s demeanor and general characteristics of child
abuse victims. The jury likely could have connected those same dots
themselves.
The prosecutor did not mention the victim’s demeanor or Kay’s
testimony on that subject in closing argument. In fact, the prosecutor
deemed it necessary to deliver very little by way of closing argument. In
the transcript, the State’s closing argument runs for less than nine
pages, including rebuttal.
We will not reverse when an evidentiary ruling did not prejudice
the defendant. See, e.g., Iowa R. Evid. 5.103(a) (“Error may not be
predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected . . . .”); State v. Parker, 747
N.W.2d 196, 209 (Iowa 2008). In my view, the defendant was not
prejudiced here.
I also believe the remaining issues raised by Jaquez on appeal are
without merit. I would affirm his conviction.
Cady, C.J., and Waterman, J., join this dissent.