Verdict in Spence case reversed

According to a decision issued on May 16, a guilty verdict in a case against Justin Spence was reversed and remanded. Spence was found guilty of incest in April of 2017, and was sentenced by Judge Robert Skar to three to five years with a Wyoming Department of Corrections facility. According to the charge, he molested a juvenile female on July 4 or 5, 2014.

During the trial, a therapist who counseled the juvenile was called as an expert witness and testified he had diagnosed her with post-traumatic stress disorders (PTSD) and, over objection, opined that the PTSD was caused by “the reported sexual abuse.”

Following his sentencing, Spence filed an appeal to the Wyoming Supreme Court contesting that Hot Springs District Court erred by allowing the juvenile’s counselor to testify the underlying basis of her PTSD was the reported sexual abuse. He asserted the counselor “impermissibly vouched for the credibility” of the juvenile. The State of Wyoming countered the counselor’s testimony was permissible to explain the juvenile’s symptoms and behaviors, and that his testimony about the underlying basis of her PTSD was only “incidental bolstering” of her credibility and not impermissible vouching.

Under Wyoming Rule of Evidence 702, expert witness opinion is permitted if the expert’s “specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” The rule does not permit experts to provide opinion testimony regarding witness credibility because such testimony invades the province of the jury to determine truthfulness of witnesses.

Though the Supreme Court has made it clear that en expert witness cannot vouch for truthfulness or credibility of an alleged victim. However, the court has also recognized that “expert testimony that discusses the behavior and characteristics of sexual assault victims and the range of responses to sexual assault encountered by experts is admissible.

“Such testimony is relevant and helpful in explaining to the jury the typical behavior patterns of adolescent victims of sexual assault. It assists the jury in understanding some of the aspects of the behavior of victims.”

Further, the testimony is admissible even though it may incidentally support a victim’s credibility.

In it’s discussion, the Wyoming Supreme Court stated there was no question that the juvenile’s credibility was at issue prior to her counselor’s testimony, as both prosecution and defense addressed issues such as her delay in reporting the incident and inconsistencies in her testimony.

According to the decision in Spence’s appeal the Supreme Court determined impermissible vouching occurred, and that vouching “is consistent with our prohibition against the use of expert testimony to prove ‘whether the victim’s claim of abuse is true.’” Further, it determined the error was prejudicial.

According to the opinion, the State’s case depended largely on the credibility of the juvenile, “and it appears to be undisputed that there were significant concerns with her credibility. In general, those concerns provided the basis for admission of the PTSD evidence. According to the prosecutor, the evidence was relevant “because we have had lots of testimony elicited from [the juvenile] regarding her behaviors and her lack of credibility, and I think it goes to the potential reasons for that. . . Her credibility has been called into serious question by [defense counsel], and we believe that it is relevant to that.”

It should be noted that thought the majority of the Supreme Court concluded the judge should not have permitted testimony from the counselor about the cause of the juvenile’s PTSD, Justices Keith Kautz and Lynne Boomgaarden filed a dissenting opinion arguing that the testimony provided was only about the cause or stressor of the juvenile’s PTSD, not vouching for her.