Summary
The Washington Supreme Court consolidated State v. Kirkman and State v. Candía to address whether testimony by investigating officers and a examining physician improperly bolstered child victims’ credibility. The court held that the challenged testimony did not directly express an opinion on credibility or guilt and, in any event, unobjected-to testimony of this nature did not constitute manifest constitutional error reviewable for the first time on appeal. The court reversed the Court of Appeals and affirmed both convictions.
Topics
Practice areas
Questions Presented
- Whether testimony by an examining physician and investigating officer constituted impermissible opinion testimony regarding the credibility of the child victims.
- Whether the unpreserved admission of that testimony constituted manifest constitutional error reviewable for the first time on appeal under RAP 2.5(a)(3).
- Whether the Court of Appeals properly reversed the convictions and ordered new trials.
Holdings
- The physicians’ testimony did not constitute an opinion on the victims’ credibility or guilt. Testimony that a child’s account was clear and consistent, that the child communicated clearly, or that a normal physical examination was consistent with alleged abuse did not amount to an explicit or implicit opinion that the victims were telling the truth.
- An investigating officer’s testimony describing a protocol used to assess a child’s ability to distinguish truth from lies and obtain a promise to tell the truth does not, without more, constitute an opinion that the child was truthful or that the defendant was guilty.
- An unpreserved opinion-testimony claim is not automatically reviewable as manifest constitutional error merely because it implicates the constitutional right to a jury trial. Manifest error requires a constitutional error and a plausible showing of actual, practical, and identifiable prejudice; in this context, the testimony must contain an explicit or almost explicit statement on an ultimate issue of fact, such as that the witness believed the accusing victim.
Key quotations
“This court holds that opinion testimony relating only indirectly to a victim’s credibility, if not objected to at trial, does not give rise to a “manifest” constitutional error.” (918)
“Admission of witness opinion testimony on an ultimate fact, without objection, is not automatically reviewable as a “manifest” constitutional error.” (936-937)
““Manifest error” requires a nearly explicit statement by the witness that the witness believed the accusing victim.” (936-937)
“There was no explicit statement of opinion on the credibility of the defendants or victims by these witnesses and no objections at trial (for tactical reasons). Thus, there were no manifest constitutional errors in either Kirkman’s or Candía’s case.” (938)
Factual background
Kirkman was convicted of raping an eight-year-old child, A.D. At trial, a physician testified that A.D.’s physical examination neither confirmed nor contradicted her account and described her history as clear and consistent; an investigating detective also described the truth-telling competency protocol used in interviewing her. Candía was convicted of four counts of first degree child rape involving a six-year-old child, C.M.D.; a physician testified that the absence of physical findings was normal after the alleged abuse and that C.M.D. communicated clearly, while a detective described a similar interview protocol. Neither defendant objected to the challenged testimony, and both juries received instructions that they were the sole judges of witness credibility and the facts.
Procedural history
Kirkman was convicted of first degree child rape, and Candía was convicted of four counts of first degree child rape. Both defendants appealed without having objected at trial to the challenged testimony. The Court of Appeals reversed both convictions and remanded for new trials, holding that the testimony constituted manifest constitutional error reviewable for the first time on appeal. The Washington Supreme Court reversed the Court of Appeals decisions and affirmed both convictions.