Quick take on Thursday, Dec. 2, Illinois Supreme Court opinion on expert testimony

CRIMINAL

People v. Becker

By Kerry J. Bryson, Office of the State Appellate Defender Defendant, on trial for sexual offenses against his then 3-year-old daughter, sought to introduce the testimony of an expert witness concerning the credibility of hearsay statements made by the daughter. The trial court barred the expert testimony, and a divided appellate court reversed. The expert did testify at the 115-10 hearing, where the admissibility of the daughter's out-of-court statements was considered. While the expert did not give an ultimate opinion on her credibility, she did state her belief that the daughter "could not give a 'reliable' statement in person on the stand" and that she hoped her testimony would "educate" people on why they "should or should not put weight on [the daughter's] credibility one way or the other." The Supreme Court sided with the trial court, concluding that the expert testimony was properly excluded for two reasons: (1) it is generally improper to ask one witness to comment directly on the crediblity of another, which the expert here would have done; and (2) the expert testimony here did not explain matters "beyond the ken of the average juror" -- specifically, that young children might be influenced by suggestive questioning and improper investigative techniques -- matters which were addressed by the defense even without the expert's testimony. In attempting to admit expert testimony, then, practitioners should make every effort to explain why the subject matter is beyond understanding of the average person, thereby necessitating expert testimony. The Supreme Court went on to consider the appellate court's ruling that one of the hearsay statements was improperly admitted, as well. The State argued that even if there was error in the introduction of the challenged statement, it was harmless. Defendant argued that the State forfeited any harmless error claim by not specifically alleging harmless error in its petition for leave to appeal. The Court opted to consider harmless error, noting that the ultimate consequence of the admitted evidence was "inextricably intertwined" with the issue of whether that evidence was properly admitted (an issue that was presented in the PLA), and ultimately concluded that any error was harmless because the challenged evidence was cumulative. Opinion 108986 Case summary