Winking at the Jury: 'Implicit Vouching' versus the Limits on Opinions About Credibility

Abstract

This Article presents empirical data about a common kind of testimony: descriptions by professionals of what alleged child abuse victims said to them in interviews. Evidence law generally purports to prohibit opinion testimony about the likely truthfulness of a victim’s statement. But the data suggest that professionals who interview children often believe they can identify truthful statements. The data also suggest that these professionals tend to identify with the children they interview. These beliefs and feelings likely affect the way in which the professionals testify about what children have told them, to produce “implicit vouching” for out-of-court declarants’ claims.

A witness who believes a story he or she repeats is likely to present it in a positive way. Feeling allied with a child whose story a witness describes will similarly lead a witness to convey a positive impression of that story to a jury. Since these effects are unavoidable, it would be sensible to authorize straightforward opinion testimony in place of the camouflaged opinion testimony we tolerate at present. Transforming hidden vouching into explicit testimony about credibility would allow examination of the reasons for the witness’s opinion about the child’s credibility. Acknowledging this process and replacing implications with scrutinized explicit statements would make fact-finding more authentic and more reliable.