ROBERT EARL ROWLES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Earl Rowles appeals his conviction for lewd assault on a child under 16, challenging the admission of expert testimony regarding child abuse. The court reversed and remanded for a new trial, finding that the child protection expert impermissibly testified about the credibility of the victim by stating she believed the child was abused, violating established precedent.
The court held that the expert witness testimony constituted a direct, impermissible comment on the credibility of the victim. The error was not harmless beyond a reasonable doubt because the case turned entirely on credibility, with no medical or physical evidence supporting the charge, and thus the conviction must be reversed and the case remanded for a new trial.
[1] Expert testimony commenting directly on the credibility of a victim is impermissible.
[2] Expert testimony that places an "impressively qualified expert's stamp of truthfulness" on a witness's story goes too far.
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Join FLexlaw to unlock all legal intelligence“some expert testimony may be helpful, but putting an impressively qualified expert's stamp of truthfulness on a witness' story goes too far”
Establishes the legal standard prohibiting expert testimony that vouches for a witness's credibility
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Join FLexlaw to unlock all legal intelligenceRowles was charged with lewd assault on a child under sixteen. At trial, an expert witness from the child protection team testified regarding the inte…
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BLUE, Judge.
Robert Earl Rowles raises three issues on appeal of his conviction for lewd assault on a child under the age of sixteen. A review of the record reveals merit in only one of the issues raised. Rowles correctly argues the court erred in the admission of the expert testimony of a member of the child protection team. Accordingly, we reverse and remand for a new trial. At trial Rowles objected to the testimony of the expert witness in the field of interviewing and investigating children who have been sexually abused. The trial court properly permitted the expert to testify pursuant to Glendening v. State, 536 So. 2d 212 (Fla.1988). Prior to allowing the testimony, extensive discussion took place on the record and the court ruled the witness would not be allowed to comment upon the credibility of the victim. At this point in the proceeding the prosecutor commented, “Judge, I need to make sure the witness understands that.” Based on the foregoing discussion we must assume the witness was aware of the court’s ruling that disallowed comment on the credibility of the victim. When asked for her expert opinion concerning the abuse, the witness responded, “I believe she was relating facts, I mean I believe she was abused.” Defense counsel immediately moved for a mistrial.
We hold the testimony in question was a direct comment on the credibility of the victim which our supreme court has made impermissible. The court in Tingle v. State, 536 So. 2d 202 (Fla.1988), determined similar testimony constituted error. In Tingle the court adopted the position taken by the Eighth Circuit Court of Appeals in United States v. Azure, 801 F. 2d 336, 340 (8th Cir.1986), that in cases such as this, “some expert testimony may be helpful, but putting an impressively qualified expert’s stamp of truthfulness on a witness’ story goes too far.”
No medical or physical evidence was offered in this case. This action was essentially a contest between the credibility of the child’s story and the credibility of Rowles’ denial. The expert witness imper-missibly intruded into the jury’s function of determining the question of credibility. Page v. Zordan, 564 So. 2d 500 (Fla. 2d DCA 1990). We cannot say this error was harmless beyond a reasonable doubt. State v. DeGuilio, 491 So. 2d 1129 (Fla.1986). Therefore, we reverse and remand for a new trial.
Because we are remanding for a new trial, we briefly discuss Rowles’ contention that the court improperly excluded a defense witness’ testimony that the victim had previously identified another person as the perpetrator of this crime. The proffered testimony was clearly hearsay and not offered as impeachment of any trial testimony. The testimony was properly excluded by the trial court. Rowles’ contention that his speedy trial rights were abridged is without merit and requires no discussion.
Reversed and remanded.
SCHOONOVER, A.C.J., and ALTENBERND, J., concur.
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Cited By
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Audano v. State, 641 So. 2d 1356 (Fla. 2d DCA 1994)…ed the victim’s credibility. An expert’s direct comment on the credibility of an alleged child victim of a sex offense is impermissible. State v. Townsend, 635 So. 2d 949 (Fla.1994); Tingle v. State, 536 So. 2d 202, 205 (Fla.1988); Rowles v. State, 613 So. 2d 1335, 1336 (Fla. 2d DCA 1993); Rhue v. State, 603 So. 2d 613, 614 (Fla. 2d DCA 1992). “[I]f relevant, a medical expert witness may testify as to whether, in the expert’s opinion, the behavior of a child is consistent with the behavior of a child who has…
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State v. Malarney, 617 So. 2d 739 (Fla. 4th DCA 1993)…36 So. 2d 202 (Fla.1988), the supreme court allowed that some expert testimony may be helpful to the jury, but that putting an expert’s stamp of truthfulness on a witness’ story goes too far; it invades the province of the jury. See Rowles v. State, 613 So. 2d 1335 (Fla. 2d DCA 1993). The ultimate conclusion as to the victim’s credibility always lies with the jury, and an expert can not impermissi-bly intrude into that jury function. Page v. Zordan, 564 So. 2d 500 (Fla. 2d DCA 1990); Rhue v. State, 603 So. 2d…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Glendening v. State, 536 So. 2d 212 (Fla. 1988)
- Tingle v. State, 536 So. 2d 202 (Fla. 1988)
- United States v. Azure, 801 F.2d 336 (8th Cir. 1986)
- Gerald "Bud" Page v. Zordan, 564 So. 2d 500 (Fla. 2d DCA 1990)