Respondent's Brief - Washington State Courts
Respondent's Brief - Washington State Courts Respondent's Brief - Washington State Courts
and that [the victim] expressly promised to tell him the truth" before relating what the victim said in her interview, id. In the consolidated Candia case, Detective Greer "described a competency' protocol she administered before interviewing [the victim]," testifying that she "tested [the victim]'s ability to distinguish a truth and a lie and asked the child to promise to tell the truth." Id. at 933. "Detective Greer then related what [the victim] told her about her sexual encounters with Candia." Id. at 933-34. The issue before the Kirkman Court was thus almost the same as the argument presented by defendant here: that because the interviewer told the jury that he 'tested [the victim's] competency and her truthfulness'... he Jfln essence' told the jury that [the victim] told him the truth in providing her account of events." Id. at 930 -3 Compare Brief of Appellant, p. 11-17. The Supreme Court in Kirkman rejected this proposition, finding that "[t]he challenged portion of [the interviewer's] testimony is simply an account of the interview protocol he used to obtain [the victim]'s statement," and that "[b]y testifying as to this interview protocol, the [ interviewer] 'merely provided the necessary context that enabled the jury to assess the reasonableness of the.. responses," Kirkman, 159 Wn.2d at 931 (quoting Demety, 144 Wn.2d at 764). The Court noted that d]etectives often use a similar protocol in all child witness interviews, whether they believe the child witness or not." Id. The Court therefore 19 - optest-pros m iscspftial-mcdaniel. doe
held that testimony describing "[t]his interview protocol, including that the child promised to tell the truth, does not impermissibly infringe on the jury's province given that the same child takes the witness stand in front of the jury and swears under oath that the testimony given will be truthful." Id. at 934. Like in Kirkman, the child victim here took the stand in front of the jury and swore under oath that the testimony given would be truthful. RP 326. Therefore, under Kirkman, Thomas's testimony describing her interview protocol, including that the child could distinguish truth from lie, and felt it was better to tell the truth, does not impermissibly infringe on the jury's province. Kirkman, 159 Wn.2d at 934. Such testimony was thus properly admitted, and the defendant's motion to exclude it properly denied. Although the defendant argues that "the evidence relating to the forensic interview here may constitute impermissible opinion testimony and vouching," Brief of Appellant, p. 14, he fails to demonstrate that it actually does. While he claims that Thomas "essentially testified that her truth/lie discussion aids her to ferret out when children are being truthful and when they are not," Brief of Appellant, p. 15-16, Thomas never actually said this. See RP 565 -91. Rather, during her discussion of her interview protocol, Thomas testified as follows: 20 - optest-pros m i soptri al -mcdanie]. doc
- Page 1 and 2: 930 Tacoma Avenue South Room 946 Ta
- Page 3 and 4: 2. THE TRIAL COURT PROPERLY DENIED
- Page 5 and 6: State v. Gregory, 158 Wn.2d 759, 84
- Page 7 and 8: Rules and Regulations CrR3. 3 .....
- Page 9 and 10: The court originally set Defendant'
- Page 11 and 12: State made a similar motion, RP 74-
- Page 13 and 14: 522-43, Elizabeth Wendell, RP 543-6
- Page 15 and 16: RP 339, 341. She testified that she
- Page 17 and 18: touching to S.D. RP 428-29. She tol
- Page 19 and 20: witnesses and arranged for a forens
- Page 21 and 22: C. ARGUMENT. 1. THE TRIAL COURT PRO
- Page 23 and 24: expansive view of claims that testi
- Page 25: Therefore, communicating to the jur
- Page 29 and 30: 2. THE TRIAL COURT PROPERLY DENIED
- Page 31 and 32: To be relevant, evidence must meet
- Page 33 and 34: RP 257. See RP 254-58, 261-62, 283-
- Page 35 and 36: ecollection of that molestation, an
- Page 37 and 38: mention of the rape-shield statute
- Page 39 and 40: 3. THE DEFENDANT HAS FAILED TO MEET
- Page 41 and 42: the issues in the case, the evidenc
- Page 43 and 44: indicator for child sexual abuse."
- Page 45 and 46: emphasis added). T]he decision to g
- Page 47 and 48: and judges." Kenyon, 167 Wn.2d at 1
- Page 49 and 50: untenable reasons, "' State v. Flin
- Page 51 and 52: obtained via in camera review." CP
- Page 53 and 54: At that July 19, 2010 motion, the d
- Page 55 and 56: and judges at the time of that cont
- Page 57 and 58: Certificate of Service: The undersi
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- Page 61 and 62: 09- 1 33587523 ORCTD 01- 19-10 SUPE
- Page 63: JUN 1 R " SUPERIOR COURT OF WASHING
- Page 66 and 67: APPENDIX E
- Page 68 and 69: APPENDIX F
- Page 70 and 71: APPENDIX G
- Page 72 and 73: APPENDIX H
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held that testimony describing "[t]his interview protocol, including that the<br />
child promised to tell the truth, does not impermissibly infringe on the<br />
jury's province given that the same child takes the witness stand in front<br />
of the jury and swears under oath that the testimony given will be<br />
truthful." Id. at 934.<br />
Like in Kirkman, the child victim here took the stand in front of<br />
the jury and swore under oath that the testimony given would be truthful.<br />
RP 326. Therefore, under Kirkman, Thomas's testimony describing her<br />
interview protocol, including that the child could distinguish truth from<br />
lie, and felt it was better to tell the truth, does not impermissibly infringe<br />
on the jury's province. Kirkman, 159 Wn.2d at 934. Such testimony was<br />
thus properly admitted, and the defendant's motion to exclude it properly<br />
denied.<br />
Although the defendant argues that "the evidence relating to the<br />
forensic interview here may constitute impermissible opinion testimony<br />
and vouching," <strong>Brief</strong> of Appellant, p. 14, he fails to demonstrate that it<br />
actually does. While he claims that Thomas "essentially testified that her<br />
truth/lie discussion aids her to ferret out when children are being truthful<br />
and when they are not," <strong>Brief</strong> of Appellant, p. 15-16, Thomas never<br />
actually said this. See RP 565 -91. Rather, during her discussion of her<br />
interview protocol, Thomas testified as follows:<br />
20 - optest-pros m i soptri al -mcdanie]. doc
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