Hoglund v. State, No. 90S02-1105-CR-294, __ N.E.2d __ (Ind., Mar. 8, 2012).

RUCKER, J.

            For over two decades our courts have adhered to relaxed evidentiary rules concerning the testimony of children who are called upon as witnesses to describe sexual conduct.  [Footnote omitted.] Beginning in Lawrence v. State, we held:

Whenever an alleged child victim takes the witness stand in such cases, the child’s capacity to accurately describe a meeting with an adult which may involve touching, sexual stimulation, displays of affection and the like, is automatically in issue, whether or not there is an effort by the opponent of such witness to impeach on the basis of a lack of such capacity. The presence of that issue justifies the court in permitting some accrediting of the child witness in the form of opinions from parents, teachers, and others having adequate experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters. Such opinions will facilitate an original credibility assessment of the child by the trier of fact, so long as they do not take the direct form of “I believe the child’s story”, or “In my opinion the child is telling the truth.”

464 N.E.2d 923, 925 (Ind. 1984); accord Head v. State, 519 N.E.2d 151, 153 (Ind. 1988) (finding it permissible under Lawrence to allow witness to testify that child victim was not prone to fabrication or to fantasizing, but reversible error for witness “to review each item of the child’s testimony and to specifically vouch for the truthfulness of such testimony”).

            . . . .

            This Court has not addressed the interplay between Lawrence and the Indiana Rules of Evidence. Today, we revisit Lawrence to determine whether testimony that a child witness “is not prone to exaggerate or fantasize about sexual matters,” 464 N.E.2d at 925, is consistent with Rule 704(b), and if not, whether in any event Lawrence should apply as an exception to the Rule. Stated somewhat differently, we must resolve whether testimony concerning “exaggeration” or “fantasy” is the equivalent of testimony about “truthfulness,” and if so, whether such testimony nevertheless merits different treatment in the context of child witness testimony.

            . . . .

            . . . [O]ur rules of evidence should be interpreted in light of society’s interest as well as an accused’s right to a fair trial. Aligning ourselves with the majority of jurisdictions that have considered the matter we conclude that testimony concerning whether an alleged child victim “is not prone to exaggerate or fantasize about sexual matters,” Lawrence, 464 N.E.2d at 925, is an indirect but nonetheless functional equivalent of saying the child is “telling the truth.” It is this aspect of Lawrence that we today expressly overrule [footnote omitted] as being inconsistent with the mandate of Rule 704(b) which specifically prohibits witnesses from testifying as to whether another witness “testified truthfully.”

            The question remains whether we should carve out an exception to the prohibition of Rule 704(b) for child victims of alleged sexual abuse. Much akin to the development of the depraved sexual instinct exception to the hearsay rule – which we abrogated in Lannan v. State – a significant underlying rationale to support permitting some accrediting of a child witness’ testimony was that “allowing such evidence lends credence to a victim’s testimony describing acts which would otherwise seem improbable standing alone.” 600 N.E.2d 1334, 1337 (Ind. 1992). But this rationale presupposes that the very idea of an adult forcing himself or herself upon a defenseless child is inconceivable and that absent some amount of accrediting testimony the child will not be believed. See, e.g., Matthews v. State, 515 N.E.2d 1105, 1106 n.2 (Ind. 1987) (noting that social scientists have expressed concern regarding the reliability of eyewitness testimony of young children).

            Sadly, accusations of child molesting in this twenty-first century are all too common.  [Footnote omitted.]  And precisely because of the unfortunate frequency of such accusations the need for accrediting testimony is not as acute as it may have been over two decades ago.  . . . We conclude that the shift in public attitudes concerning allegations of child sex abuse undermines the necessity to carve out an exception to Rule 704(b).

            To summarize, we expressly overrule that portion of Lawrence allowing for “some accrediting of the child witness in the form of opinions from parents, teachers, and others having adequate experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters.” 464 N.E.2d at 925. This indirect vouching testimony is little different than testimony that the child witness is telling the truth.  [Footnote omitted.]  As such it is at odds with Evidence Rule 704(b). Further, we decline to carve out an exception to the rule for sex abuse cases.  [Footnote omitted.]

Shepard, C.J., and Dickson, Sullivan and David, JJ., concur.

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