CHAPTER 31

ADMISSIBILITY OF EVIDENCE (SELECTED TOPICS)

§ 31.01 Introduction

§ 31.02 Relevance, Probative Value, and Prejudicial Impact:

V.R.E. 401-403

§ 31.03 Other Crimes and Bad Acts: V.R.E. 403, 404, 702

§ 31.04 - The "Bad Person" Inference

§ 31.05 - Proper Reasons for Admissibility

§ 31.06 - Establishing the Other Crime

§ 31.07 - Probative Value vs. Prejudicial Impact

§ 31.08 Prior Crimes as Impeachment of Testimony: V.R.E. 609

§ 31.09 Character Evidence

§ 31.10 - Character of the Defendant and Victim: V.R.E. 404-405

§ 31.11 - Character of a Witness for Truthfulness: V.R.E. 608

§ 31.12 Habit: V.R.E. 406

§ 31.13 Expert Witnesses - In General

§ 31.14 - Qualification

§ 31.15 - The "Helpfulness" Standard

§ 31.16 - Procedure

§ 31.17 - "Basis" Testimony

§ 31.18 - "Ultimate Issue" Testimony

§ 31.19 Special Evidentiary Rules in Sex Offense Cases -

In General

§ 31.20 - Child-Victim Hearsay: V.R.E. 804a

§ 31.21 - The Rape Shield Law

§ 31.22 - Syndrome Evidence

§ 31.23 - Videotaped Testimony

§ 31.24 Objections, Offers of Proof, Motions To Strike

§ 31.01

Introduction

Vermont's Rules of Evidence, adopted in 1983, are closely modeled after the Federal Rules of Evidence, with the addition of some provisions taken from the Uniform Rules of Evidence, and some reflecting prior Vermont practice.{1} The major federal evidence treatises, in particular Weinstein's Evidence, provide valuable commentary and case citations, as do the Reporter's Notes to the original version of the rules (which were written by John Dooley, now an Associate Justice of the Vermont Supreme Court, and therefore have a special cachet). The rules codify most of Vermont's evidence law but not all of it. Criminal law practitioners should note the special evidentiary provisions of the rape shield law{2} and the various notice requirements of the rules of criminal procedure.{3} Assorted evidentiary rules are also collected in Title 12, chapter 61 (privileges) and Title 13, chapter 203, subchapter 1.

A number of topics covered by the rules of evidence or other evidentiary law are discussed in other chapters.

The admissibility of a witness's prior recorded testimony, hearsay declarations, videotaped testimony, and so on, all governed by the V.R.E. 801 et seq., are ultimately constitutional questions involving the right to confront evidence, discussed in §§ 29.03 and 29.06.

Restrictions on the introduction of evidence under the rape shield law are discussed in connection with the constitutional right to present exculpatory evidence in §§ 29.07-29.08.

Rules regarding disclosure of an informant's identity (V.R.E. 509) and the notice requirements for evidence offered under V.R.E. 404, 609, and 804a, are discussed in connection with pretrial discovery in §§ 27.07 and 24.11.

Aspects of the patient privilege (V.R.E. 503) are discussed in connection with incompetency and insanity defense evaluations in § 8.03.

Sequestration of witnesses (V.R.E. 615) is discussed in § 25.09.

Presumptions, governed by V.R.E. 301-03, are discussed in the chapter on presumptions and proof, §§ 32.06-32.12.

Proof of jury irregularities, governed by V.R.E. 606(b), is discussed in §§ 35.01-35.02.

§ 31.02

Relevance, Probative Value, and Prejudicial Impact: V.R.E. 401-403

Relevant evidence is broadly defined by V.R.E. 401 as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

V.R.E. 402 states a presumptive rule of admissibility: "All relevant evidence is admissible," except as otherwise provided.{4}

Rule 403 is the most important component of this "otherwise provided." It grants trial judges enormous discretion to exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Other rules restate the same or similar balancing tests in particular contexts.{5}

The importance of Rule 403's balancing requirement, and its potential for abuse, cannot be overstated. Far and away the most frequently cited provision of the rules of evidence, it applies across the board and functions as a sort of meta-rule, qualifying all the others.

§ 31.03

Other Crimes and Bad Acts: V.R.E. 403, 404, 702

Proof of the defendant's prior misconduct is governed by V.R.E. 404(b), the second most frequently cited section of the Vermont Rules of Evidence after Rule 403:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

A substantial and very helpful treatise is devoted to the ins and outs of other-crimes evidence.{6}

When the state offers evidence of other criminal offenses under the rule, it has to give the defense seven days written notice,{7} and the defense can then challenge admissibility by a motion in limine.

In all cases when prior crimes are admitted, the defense is entitled to an instruction on the limited purpose for which the evidence is received, both at the time it is introduced and in the judge's final instructions to the jury.{8}

§ 31.04

- The "Bad Person" Inference

The prohibition of other crimes evidence which raises a "bad person" inference - the implication that the defendant, because he has been guilty of misconduct in the past, is a bad person, a person with criminal propensities, who therefore probably committed the charged offense - long predates the rules of evidence, and indeed the pre-rules cases expressed the ban in strong language. In State v. Cameron{9} the Vermont Supreme Court wrote that introducing prior convictions into the trial "practically deprives [the defendant] of the legal presumption of innocence [and] inevitably prejudices the jury against him. . . ." In State v. Moran,{10} where the prosecutor argued that the defendant, because he had been convicted of similar crimes in the past, was "the type of person who would do such a thing[,]" the court condemned the tactic as "manifestly and egregiously improper. . . ."{11} The Vermont court's harsh condemnation of the practice remains unchanged, at least rhetorically, under Rule 404.{12} Prosecutors may not invite juries to "round up the usual suspects."{13}

Evidence of the defendant's past involvement in "the system," such as introduction of mugshots or proof of prior incarceration, raises the same spectre of criminal propensity and receives the same condemnation.{14}

It is not clear whether the basic evidentiary rule against propensity inferences is also a due process requirement, but some authority suggests it is.{15}

§ 31.05

- Proper Reasons for Admissibility

A defendant's other misdeeds may have special relevance, for example (in Rule 404(b)'s words) to show "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."{16}

Rule 404(b)'s listing of permissible purposes is not exclusive; proof of prior crimes is permitted whenever "the evidence is relevant to an issue other than the defendant's propensity to commit this kind of crime."{17} In State v. Percy,{18} for example, the Vermont court held that a defendant's prior crimes were relevant and admissible to rebut his insanity defense, and to show an alternative diagnosis (that he had an "anti-social personality").{19} In State v. Robinson{20} the defendant's statement to the police, "I didn't think anything like this would happen again[,]" was admissible even though it tended to show a prior unrelated crime, because "[t]o the extent that the statement might have constituted an admission to a prior bad act, it was a by-product of an admission to the crime before the court."{21}

Sometimes a proper purpose arises in response to defense tactics. In State v. Recor{22} the defense in a sexual assault case attempted to show that the complaining witness, the defendant's stepdaughter, was biased against the defendant because he disciplined her and made her do chores. The prosecutor then properly responded with evidence that the defendant had sexually assaulted her on a prior occasion. "Once the issue of why the complaining witness disliked the defendant was raised on cross-examination, it was proper for the State to present a complete picture to the jury."{23}

Prior crimes may also be admissible under V.R.E. 609 to impeach the defendant's testimony,{24} V.R.E. 702 to show the basis for an expert opinion,{25} and V.R.E. 405 to rebut general testimony of character or where character is an essential element of the charge.{26}

§ 31.06

- Establishing the Other Crime

The claim that the defendant has been guilty of other misconduct must be established by more than "unsubstantiated innuendo[,]"{27} but the burden is not great: the evidence is admissible "if the jury could reasonably find by a preponderance of the evidence that defendant committed the prior bad act."{28} Proof of a conviction easily satisfies this standard, and the Vermont Supreme Court has held that even an ambiguous and inconclusive showing is good enough.{29} The rule may be different when the defendant has been acquitted of the alleged prior crime, or when charges have been brought and dismissed;{30} or if the state has nothing more to show than an arrest, "because the charge itself does not show guilt."{31}

The court recognizes that proof of an uncharged prior crime presents especially grave dangers of prejudice,{32} and in a probative value/prejudice balancing, the less proof that supports it, the less probative value it has. In addition, evidence of unproved prior crimes "compels the defendant to meet charges of which the indictment gives no information, confuses his defense, [and] raises a variety of issues, and thus diverts the attention of the jury from the one immediately before it. . . ."{33}

§ 31.07

- Probative Value vs. Prejudicial Impact

The prosecutor will almost invariably be able to claim that other-crimes evidence is technically relevant to an issue other than criminal propensity, and the defendant will almost always be able to assert a risk that the evidence will prejudice the jury against him. Rule 404(b) cases therefore usually come down to a discretionary weighing of probative value against improper prejudicial impact.{34}

a. Probative Value

Technical relevance is not enough for admission of prior crimes evidence; Rules 403 and 404 exclude prior crimes that lack genuine probative value even though they may be "technically relevant."{35} As Weinstein puts it, the crime must be relevant to an issue that "is actually being controverted."{36} The prosecution may not "credit the defendant with fancy defenses" and prove the defendant's prior crimes to contradict them.{37} For example, in a case where the defendant denies the crime altogether, the prosecutor should not be allowed to prove a similar prior crime to show "lack of accident," even if intent is an element.{38} The ostensible reason for admission should be a genuine one and not a mere pretext.{39}

The Vermont Supreme Court has made the following points:

(a) Probative value generally depends on some temporal proximity: the older the prior crime the less probative it will be.{40}

(b) To the extent that there are doubts about the existence of the prior offense, or the defendant's responsibility for it, its probative value is undercut.{41}

(c) The state's need for the evidence weighs in favor of admissibility: "the probative value of evidence of prior bad acts should be assessed in terms of the amount and strength of other evidence of guilt that is available to the prosecution."{42}

(d) Even if some prior-crimes evidence should be allowed, the prosecution may not have a sufficiently good reason to prove a lengthy criminal history; "the reasons for admission can be abused by a litany of criminal acts" having little incremental probative value.{43}

(e) When prior crimes are offered to show identity or modus operandi, probative value depends on a showing of distinctive similarity: "The `pattern and characteristics' of the prior acts must be so distinctive, in effect, to constitute the defendant's signature."{44} Similar garden variety crimes are not "signature crimes."

b. Prejudice

The Vermont court has noted aggravated dangers of prejudice in the following situations:

(a) When prior crimes are introduced to show a criminal plan or scheme, juries tend "to consider the prior acts as evidence of defendant's character or propensity to commit such crimes, rather than as evidence of a planned course of conduct."{45}

(b) When the prior crime is the same as or similar to the crime charged, the risk of prejudice is magnified, because the more similar the crime is, the stronger will be the implication of propensity.{46}

(c) Sex offenses carry a particularly strong implication of perverted character.{47}

(d) When the evidence consists of uncharged or contested prior crimes, the jury will want to punish the defendant for the prior act, and the defendant is obliged to expend effort on side issues, disproving crimes he has not been charged with.{48}

§ 31.08

Prior Crimes as Impeachment of Testimony: V.R.E. 609

Another permissible purpose of prior crimes evidence is to impeach testimony, but evidence offered for that purpose is narrowly limited.

V.R.E. 609 allows a witness to be impeached by showing that she "has been convicted of a crime" (crimes which are not the subject of a conviction are ineligible) within the past fifteen years (older convictions are ineligible){49} but only (1) crimes "whose statutory elements necessarily involve untruthfulness or falsification"{50} or (2) felonies under the law of Vermont (i.e., crimes carrying a punishment in excess of two years{51}), or crimes carrying more than one year in another jurisdiction.{52}

The risks of prejudice for impeachment crimes is no different from the risks attending prior crimes evidence under V.R.E. 404(b). Proof of prior convictions under Rule 609 is "extremely prejudicial to the defendant in a criminal case[,]" because "[d]espite limiting instructions a jury is likely to conclude that the defendant with a criminal record is a criminal by nature. . . ."{53}

Rule 609 modifies the Rule 403 balancing test. When elements of the prior crime "necessarily involve untruthfulness or falsification" it should be admitted "unless the court determines that the probative value of admitting this evidence is substantially outweighed by the danger of unfair prejudice."{54} This test, like Rule 403, tilts in favor of admission. When the only justification for admission is that the conviction is for a felony, the balance tilts the other way: the conviction should be admitted only if "the probative value of this evidence substantially outweighs its prejudicial effect."{55}

State v. Gardner,{56} a pre-rules case, identified some of the relevant considerations.{57}

(a) The nature of the proceeding. Although need for balancing exists in all cases and for all witnesses, "the greatest danger of prejudice exists when the witness to be impeached is the defendant in a criminal trial."{58}

(b) The nature of the crime. "Sudden crimes of violence are less relevant to the credibility of a witness than crimes involving dishonesty or falsehood[,]" and at the same time "are more likely to prejudice the defendant before the jury"; an impeachment crime that is the same as or similar to the crime charged risks "[a]n especially severe possibility of prejudice. . . ."{59}

(c) The length of the criminal record. "An extensive recitation of the crimes for which the defendant has been convicted is likely to be highly prejudicial."{60}

(d) The length of time. Convictions more than fifteen years old are absolutely inadmissible, but even for more recent convictions "[o]lder crimes are less relevant to the issue of defendant's credibility[,]" and "the age and circumstances of the defendant should be considered."{61}

(e) "[T]he relative importance of the defendant's testimony and the need for impeachment by prior conviction. . . . If the defendant has no means of defense other than his own testimony, and the fear of impeachment is likely to prevent him from testifying, a court may be reluctant to permit such impeachment. A court should more readily exclude evidence of prior convictions when there are other means of impeachment available."{62}

The rule specifically requires the judge to "articulate on the record the factors considered in making [the judge's] determination[,]"{63} and the Vermont Supreme Court has found abuse of discretion on records which show that the judge gave "short shrift" to relevant factors.{64}

As with Rule 404(b) evidence, the state has a duty to give pretrial notice of an intent to introduce convictions under Rule 609 (unlike 404(b) evidence, the defense has the same duty), and the judge has a duty to give a cautionary instruction.{65}

§ 31.09

Character Evidence

In general, "[e]vidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion. . . ."{66} The rules limiting prior crimes evidence discussed above are particular applications of this general ban. The principle does not apply to cases in which character is an element of the offense, or when knowledge of character is offered to explain a party's actions.{67}

There are three exceptions: (1) evidence of a pertinent character trait of the defendant and (2) of the victim of a crime,{68} and (3) evidence of a witness's character for truthfulness or untruthfulness.{69}

§ 31.10

- Character of the Defendant and Victim: V.R.E. 404-405

The defendant can introduce character evidence of a "pertinent trait" of her character, or of the victim's character, and the prosecution can then respond with rebuttal evidence. Without waiting for defense character evidence the prosecution in a homicide or assault case can prove the victim's character for "peacefulness" to rebut self-defense evidence that the victim was the first aggressor.{70}

A defendant can introduce his or her own character for sobriety in a DUI case,{71} and the victim's violent and aggressive character in an assault case.{72} The trait, however, must be "pertinent," and in a sexual assault prosecution the victim's character for chastity or unchastity is generally not pertinent on the issue of consent.{73}

Character evidence about the defendant and the victim is admissible in the form of testimony about the person's reputation, and is not permitted in the form of an opinion,{74} or by proof of specific prior conduct.{75} "Reputation" means reputation in the community, which "is made up of what his neighbors and acquaintances think of him, basing their opinion on what they have observed and heard regarding his conduct in the past."{76}

Once a character witness has testified to reputation, however, he may be cross-examined about "relevant specific instances of conduct."{77} In State v. Parker{78} the defendant in a sexual assault prosecution put his character in issue with the assertion, "I am not perverted[,]" opening the door for the prosecution to respond with proof of specific instances of sexual misconduct.{79} Rebuttal by this method is limited by its impeachment rationale, however. In State v. McCarthy,{80} the prosecutor responded to testimony that the defendant in a sex offense case was "modest" and "not obscene or seductive" with substantial cross-examination regarding uncharged allegations of prior misconduct, going into details and asserting the truth of the allegations. Reversing the conviction, the Vermont Supreme Court held that Rule 405(a)'s "authorization to inquire about `relevant specific instances of conduct' is solely to allow impeachment of the character witness[,]" and is therefore limited "to whether the [character] witness has heard about the specific incident."{81} Such evidence may not be used "for the purpose of discrediting the defendant by showing he has a disposition to engage in the type of conduct for which he is on trial."{82}

§ 31.11

- Character of a Witness for Truthfulness: V.R.E. 608

A witness's character for truthfulness or untruthfulness, by contrast, can be proved in the form of an opinion.{83} The foundational requirements are not as strict for opinion evidence as they are for reputation evidence; "[t]he rule imposes no prerequisite conditioned on long acquaintance or recent information about the witness. . . ."{84} Even so, the opinion must be about the witness's character for truthfulness, and not her truthfulness on a particular occasion, and "where a witness knows a complainant only through the case at trial, the witness's opinion that the complainant has a truthful character is tantamount to an opinion that the complainant's allegations in the case are true."{85} It is not clear whether an expert witness can give an opinion about truthfulness under the rule. In State v. Sims,{86} a sexual offense prosecution in which a therapist gave a Rule 608 opinion about the complainant's character for truthfulness, the Vermont Supreme Court warned that such opinions "are too easily taken for expert comment on the credibility of the complainant's allegations."{87}

§ 31.12

Habit: V.R.E. 406

Habit and routine practice, unlike character, are generally relevant "to prove that the conduct of [a] person or organization on a particular occasion was in conformity with the habit or routine practice."{88} Read literally this provision would allow proof of a defendant's record of similar crimes, to show that he "habitually" committed such offenses and therefore probably committed the charged offense. This use of habit would be no different from the propensity evidence which V.R.E. 404(b) strictly prohibits, and Rule 406 is not read so broadly. Proof of a habit requires a "uniformity and semi-automatic character."{89} A police officer's alleged history of excessive use of force clearly does not qualify;{90} a business office's routine practice of closing its windows at night, while probably admissible, is "inconclusive for proving the events of a particular day."{91} Even qualifying habits must be carefully weighed against the Rule 403 considerations of prejudicial impact, waste of time, and so on.{92}

§ 31.13

Expert Witnesses{93} - in General

V.R.E. 702, identical to Rule 702 of the federal rules, allows expert testimony "in the form of an opinion or otherwise" if the judge finds that it "will assist the trier of fact to understand the evidence or to determine a fact in issue. . . ." The rule sets up a two-part test:

(1) the expert in lieu of, or in addition to, direct perception, must be qualified by knowledge, experience, or training on the subject as to which he will testify; (2) the court must find that the testimony will be helpful to the trier of fact.{94}

A nonexpert cannot give opinion testimony except for those opinions that are "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of [the witness's] testimony or the determination of a fact in issue."{95} The rule allows lay opinions about alcohol intoxication,{96} but only an expert can give opinion evidence that a person was under the influence of marijuana, because "[d]rugs other than alcohol can produce a confusing array of symptoms which cannot be sorted out without specialized training" and a nonexpert cannot rationally give an opinion based solely on his observations.{97} When the issue is sanity, lay witnesses can testify to their observations, but before they can give an opinion they need to show "prior acquaintanceship or contacts" that establish a "comparative basis" for their testimony.{98}

§ 31.14

- Qualification

The rule imposes no requirement of formal training or professional certification, and special experience or on-the-job training can be good enough.{99} The decision is "discretionary" and the Vermont Supreme Court routinely rejects claims that poorly qualified witnesses should not have been allowed to testify as experts.{100} Deficiencies in expertise do go to the weight of the testimony: "Though it is for the court to judge, in the first instance, whether witnesses introduced as experts possess sufficient skill to entitle them to give an opinion, it is for the jury to determine from the testimony whether such experts have sufficient skill to render their opinion of any importance."{101}

A witness's expertise (however loosely defined) in one subject does not qualify the witness to give opinion testimony on a different subject, and a marginally qualified expert should not be allowed to speculate beyond the scope of his or her expertise.{102}

§ 31.15

- The "Helpfulness" Standard

The second part of the Rule 702 test, that the evidence "will assist the trier of fact[,]" also favors admissibility. The evidence need only be helpful; there is no requirement that it be "necessary" for the jury to understand the evidence, and expert evidence should not be excluded on the ground that an "average juror" can be expected to know something about the subject.{103} Even so, the judge has broad discretion to exclude evidence, even incontestably helpful evidence, which he does not think the jury really needs to hear. In State v. Percy,{104} the Vermont Supreme Court upheld a ruling excluding a defendant's expert evidence on the reliability of eyewitness identification testimony, in a case that depended almost entirely on an eyewitness. Admissibility under Rule 702, the court wrote, "is highly discretionary[,]" and "[t]he judge's conclusion that the jury would be adequately able to assess the reliability of the victim's identification of defendant was not unreasonable."{105}

Novel Scientific Evidence

Opinions based on pseudoscience, or on tentative and unproven theories, will not "assist" the jury, and courts cannot take all claims of scientific validity at face value. The widely-used Frye test{106} requires a finding that the scientific theories which the expert relies on are generally accepted in the field, and although the Vermont Supreme Court has not explicitly adopted the Frye test, it has applied its requirements. In State v. Gokey{107} the court disapproved an expert's opinion that a six-year-old child had been sexually abused because she exhibited characteristics of the "child sexual abuse accommodation syndrome," in part on the ground that the syndrome had not been generally accepted as a diagnostic device.{108}

Similar questions of reliability and scientific acceptance come up in connection with novel hi-tech techniques, such as DNA "fingerprint" testing,{109} as well as traditional low-tech methods like tracking dog identifications.{110}

§ 31.16

- Procedure

The admissibility of expert testimony is a preliminary question for the judge. A party calling an expert witness has the obligation to give notice to the other side,{111} and to lay a sufficient foundation for the witness's qualification to give an opinion; if the other side makes no objection, there is no need to ask the judge to "qualify" the witness as an expert.{112}

A party opposing expert testimony can move before trial, by motion in limine, to exclude or limit it, or can question the expert's qualifications at trial out of the jury's hearing. Because expert witnesses sometimes overstate their qualifications, an important expert should be deposed and asked for a curriculum vitae, publications, association memberships, and so on; pertinent information can be checked with schools and professional boards. The best resource will probably be lawyers who have run up against the same expert in other cases.

§ 31.17

- "Basis" Testimony

An expert can base an opinion on personal observation or other admissible evidence, but admissibility is not a requirement. "If of a type reasonably relied on by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence."{113} The Vermont Supreme Court has interpreted the rule to permit the expert to testify about otherwise inadmissible facts to show the basis of his opinion. In State v. Percy,{114} the state's psychiatrist testified to an opinion that the defendant was not insane but rather suffered from an "anti-social personality," in support of which he was allowed to recite the defendant's history of other crimes. "Because the evidence of prior criminal acts and wrongs was `of a type reasonably relied upon by experts in the particular field in forming opinions,'" the court wrote, "it could form at least part of the basis for his opinion on sanity."{115}

The facts or data must be relevant to the expert's opinion, and the opinion must be one which the expert is qualified to give; basis testimony may not be used to circumvent the requirement of relevancy, and "[t]he evidence sought must either constitute facts underlying the expert's opinion, or tend to prove unreliability, prejudice or bias."{116} Basis testimony should not be used "as a backdoor" for hearsay and other inadmissible evidence.{117} The danger of prejudice (that juries will give evidentiary weight to inadmissible evidence) may justify exclusion under V.R.E. 403 in a particular case,{118} and will always warrant a limiting instruction, "informing the jury of the narrow purpose for which the evidence has been received."{119}

"Conduit" Testimony

A corollary of the these considerations is that Rule 703 does not permit use of an expert merely as a "conduit" for inadmissible evidence. In State v. Towne{120} a psychiatric expert in a sexual assault case testified that he had consulted an eminent colleague, who agreed with the witness's opinion on the case. The Vermont Supreme Court held that the testimony violated the defendant's right of confrontation; the expert "was not relying on facts or data provided by [the out-of-court colleague], but was rather acting as a `conduit' for the other doctor's opinion."{121}

§ 31.18

- "Ultimate Issue" Testimony

V.R.E. 704 allows an expert to testify to an opinion which "embraces an ultimate issue to be decided by the trier of fact." Testimony in a civil case that the plaintiff's injury was an inherent danger of skiing was not inadmissible as stating a conclusion on an "ultimate issue."{122} Similarly, in State v. Richardson,{123} a pathologist's testimony in a murder prosecution that the decedent's death was caused by homicide, not suicide, was not inadmissible simply because it concerned the ultimate issue. On the other hand an expert who "gratuitously tells the jury what conclusion to reach" has gone too far,{124} and the line was crossed in a negligence suit where the expert testified that the defendant was negligent, and that its negligence was the proximate cause of the plaintiff's injury.{125} The line was not crossed in Richardson, however, because the expert's opinion that the death was a homicide, not a suicide, left it to the jury to decide whether the defendant was responsible for the homicide.

Expert opinions that usurp the jury's fact-finding role are also sometimes offered in child sexual abuse cases, discussed below.{126}

Necessary "Ultimate Issue" Evidence

There are some facts which cannot be established without expert testimony on the ultimate issue. Being under the influence of a drug other than alcohol is not something that a nonexpert can form opinions about; to establish the fact in a DUI prosecution, the state must either qualify its eyewitness (e.g., the arresting officer) as an expert, or have an expert draw the conclusion on the basis of the eyewitness's observations.{127} Either way, the case cannot be made without an expert. Expertise is probably also required to establish that a person's blood alcohol level is over the legal limit; while lay opinion (or simply observations) are sufficient if the ultimate issue to be proved is that the defendant was under the influence of alcohol.

§ 31.19

Special Evidentiary Rules in Sex Offense Cases - In General

For the most part, the rules of evidence, when they apply at all,{128} apply uniformly; essentially the same rules govern civil and criminal cases, murder and disorderly conduct cases, and so on. Sex, however, like death, is different. A number of important evidentiary rules - all facilitating the prosecution - are intended to apply only to sex offense cases.

§ 31.20

- Child-Victim Hearsay: V.R.E. 804a

Rule 804a allows hearsay statements of children ten years of age or under{129} who are putative victims of enumerated sex crimes,{130} or of sexual abuse in a CHINS case, and who are "available to testify either in court or under Rule 807" by videotape.{131} To be admissible the hearsay statement (1) must "concern the alleged crime"; (2) must precede the Rule 5 hearing (if offered in a criminal prosecution) and not have been "taken in preparation for a legal proceeding" and (3) must "provide substantial indicia of trustworthiness" because of its "time, content, and circumstances[,]"{132} and the judge must "specifically find[]" the qualifying facts.{133} The provision survived a confrontation clause challenge in State v. Gallagher.{134}

a. Availability

A child who refuses to testify is not "available" under the rule even if she can be physically present, but failure of memory and "very limited" testimony is sufficient.{135} An incompetent child witness is also not "available."{136}

b. In Preparation for a Legal Proceeding

In State v. Duffy{137} the Vermont Supreme Court held that initial interviews by SRS caseworkers responding to allegations of child sexual abuse are "investigative" in nature, and not taken in preparation for a subsequent criminal prosecution. "The fact that statements are recorded and may be used in legal proceedings does not necessarily indicate that they are taken `in preparation of' such proceedings. . . . The focus of the investigation is not `making a case' against the accused, but ascertaining the reliability of the accusations so that the child can, if necessary, be protected."{138} The distinction seems more illusory than real since the protective purposes of the caseworker interview are generally achieved only through legal proceedings of some sort (a CHINS petition, criminal prosecution, or both). When the police and SRS conduct multiple interviews, the Vermont court acknowledged in a subsequent case, "the line separating what constitutes investigation from what constitutes trial preparation becomes increasingly ill-defined and difficult to draw."{138.5} The rule requires a weighing of mixed motives, and the trial judge must determine "whether an objective view of the totality of the circumstances indicate [sic] that the statements were gathered primarily for reasons other than preparation for a legal proceeding."{138.10}

c. Indicia of Reliability

The reliability of the statement should be judged by the totality of circumstances surrounding it (e.g., whether the child has been coached or encouraged to make an accusation), but extraneous evidence tending to corroborate the statement but otherwise having nothing to do with it should not be considered.{139}

One aspect of the reliability inquiry is that the child must have been a competent witness at the time the statement was made (a separate question from competency at the time of trial, which is a prerequisite of availability).{140}

d. Prejudice/Probative Value

A statement that qualifies for admission under Rule 804a (including the rule's reliability prong) is a priori admissible under Rule 403.{141}

§ 31.21

- The Rape Shield Law

The shield law, which applies only to prosecutions under the sexual assault and aggravated sexual assault statutes,{142} bars certain evidence absolutely: the complainant's sexual reputation and, with three exceptions, all evidence of his or her "prior sexual conduct[.]"{143} The exceptions are:

(A) Evidence of the complaining witness' past sexual conduct with the defendant;

(B) Evidence of specific instances of the complaining witness' sexual conduct showing the source of origin of semen, pregnancy or disease;

(C) Evidence of specific instances of the complaining witness' past false allegations of violations of this chapter[,]

but only if the evidence "bears on the credibility of the complaining witness or it is material to a fact at issue" and only if "its probative value outweighs its private character[,]" in which case the court "may" admit it.{144} The provision has been the subject of extensive law review commentary.{145}

The confrontation clause problems with this statute are discussed in § 29.08.

a. Sexual Conduct with the Defendant

In State v. Gonyaw{146} the Vermont Supreme Court held it was an abuse of discretion to exclude evidence of the defendant's recent consensual sexual conduct with the complainant, coupled with their history of consensual sex. In State v. Lavalette{147} the court held it was not error to exclude a prior relationship that did not include recent consensual sex.

b. Conduct Showing the Origin of Semen, Pregnancy, or Disease

The source of origin of semen, and so on, must have relevance to the proceeding.{148}

"Disease," as used in this section, can include "posttraumatic stress disorder" and like syndromes. When the prosecution introduces syndrome evidence in a sexual assault case, prior sexual conduct may be admissible to show an alternative explanation for the syndrome; but the judge still has ample discretion to exclude it on a finding that its probative value does not outweigh its private character.{149}

c. Prior False Allegations{150}

Offers of evidence under this subsection often run into the argument that the prior allegations have not been shown to be false. The standard by which falsity must be demonstrated is an open question, and courts differ on the subject.{151} In general, when the relevancy of offered evidence depends on "the fulfillment of a condition of fact," the judge should admit it so long as there is "evidence sufficient to support a finding of the fulfillment of the condition."{152} Disputed allegations of a defendant's prior crimes are admissible so long as they meet this easy threshold,{153} and there is no reason to hold the defense to a higher standard under the shield law.

d. Other Prior Conduct

Much sexual conduct falling outside these three exceptions may still have probative value, for example, to show a motive for false accusations,{154} and a literal reading of the shield law bars all such evidence outright.{155}

In State v. Giroux,{156} however, the Vermont Supreme Court had no difficulty with the prosecution's proof of facts which the shield law would seem to bar absolutely. The state in that case was allowed to show that the defendant thought of the child complainant as "sexually active," and that he had touched her breasts on a prior occasion. The defendant's opinion about the complainant was relevant, the court held, because it "ha[d] a tendency to make the claimed assault more probable than had he thought of her as sexually inactive[,]" and the evidence was not admitted to show that the complainant was in fact "promiscuous[.]" The shield law, the court wrote "has no bearing in this context."{157} Giroux can be read broadly to permit either side to prove reputation evidence and prior sexual conduct otherwise barred by the shield law, as long as a benign and relevant purpose can be assigned to it. This would almost certainly be an overreading, however.

§ 31.22

- Syndrome Evidence

In the early 1980s, the prosecution in sex offense cases began calling psychologists and counsellors to testify, as expert witnesses, that the complainant exhibited symptoms consistent with the profile or syndrome of sexually abused children. Starting with State v. Catsam{158} in 1987, the Vermont Supreme Court has reviewed a number of such trials in an attempt to define the permissible limits of syndrome evidence in sex offense cases.{159}

Testimony that is "tantamount to a direct comment that the complainant was telling the truth about the alleged sexual assault[,]"{160} or which lends "an improper `aura of special reliability and trustworthiness' to the complainant's testimony[,]"{161} crosses the line. Similarly, testimony that the complainant is a victim of sexual abuse usurps the jury's function and should not be permitted.{162} And the rule applies to veiled or assumed opinions, as well as to overt vouching.{163}

When the expert has personally examined the complainant and repeats to the jury what the complainant has told him or her, the danger of vouching is almost inevitable, the Vermont Supreme Court held in State v. Wetherbee; such an expert "implicitly vouche[s] for the believability of [the complainant's] story by his appearance as a witness for the prosecution[,]"{164} and the hearsay should not be admitted as "basis" testimony.{165}

On the other hand, an expert may testify to at least some aspects of a syndrome, for the purpose of showing that the complainant "exhibits symptoms typical of sexually abused children. . . ."{166} "The function of the testimony is thus primarily rehabilitative, where behaviors such as delay in reporting, recantation, or a continued relationship with the alleged abuser may be mistaken as impeaching the credibility of the child."{167} This rationale does not justify proof of other aspects of the syndrome (e.g., general depression, masturbation) which do not have an impeaching effect and need not be explained.

a. Lay Syndrome Evidence

Although lay witnesses may not testify explicitly that the complainant exhibited behavior consistent with a medical or psychological syndrome, the Vermont Supreme Court has allowed testimony by friends and family members that the complainant's behavior and personality changed after the alleged assault, as tending to establish that the crime occurred as alleged.{168} These holdings cannot be reconciled with the court's view that syndrome evidence should not be used as a means of "diagnosing" sexual abuse.

§ 31.23

Videotaped Testimony

V.R.E. 807, which applies to the same proceedings as the child hearsay provision of Rule 804a,{169} allows a complainant, age twelve or younger, to testify outside the courtroom by live closed circuit television or videotape, on a finding "that requiring the child to testify in court will present a substantial risk of trauma to the child which would substantially impair the ability of the child to testify."{170} The rules spell out the procedure in detail, specifying the persons who may be present (including anyone "whose presence the court finds would contribute to the welfare and well-being of the child"), and the type of equipment,{171} and providing in the case of videotaping that the defendant may be placed out of the child's view on the same finding of trauma.{172}

The confrontation clause problems with use of prior recorded testimony are discussed in § 29.03, supra.

§ 31.24

Objections, Offers of Proof, Motions To Strike

A party opposing the introduction of evidence must object before the evidence comes in, or move to strike if it has already come in, stating his or her specific grounds if the grounds are not "apparent from the context. . . ."{173} Objections on the wrong grounds can be, and often are, fatal to a subsequent appeal,{174} but the defendant need not cite chapter and verse, so long as a general objection fairly indicates the grounds.{175} On the other hand, the Vermont Supreme Court has held that an objection based on the hearsay rule failed to preserve a confrontation clause claim, even though defense counsel insisted on the need for live testimony.{176}

A party offering evidence has a duty to make sure that the "substance of the evidence" is made known to the court by offer of proof if it was not "apparent from the context within which the questions were asked,"{177} but an offer of proof is not necessary for cross-examination questions, because the examiner may not know what the answer will disclose.{178} As with objections, counsel has a duty to state a correct theory of admissibility, and a valid claim for admission of evidence can be lost if counsel gives the wrong grounds.{179}

For objections and offers alike, counsel should state all grounds in the alternative (including arguments based on the prejudice/probative value test of Rule 403 when appropriate).

1. See V.R.E. 1, Reporter's Notes.

2. 13 V.S.A. § 3255. See § 31.21, infra.

3. See chapter 24.

4. See State v. Curavoo, 156 Vt. 72, 74-75 (1991).

5. V.R.E. 609(a)(1) and (2) restate the test in slightly altered form. See § 31.08. Expert opinion evidence is made admissible under V.R.E. 702 if the judge thinks "it will assist the trier of fact to understand the evidence or to determine a fact in issue," a qualification that requires a prejudice/probative value balancing. See State v. Percy, 156 Vt. 468, 475-77 (1991) (trial judge could properly exclude expert evidence on reliability of eyewitness identification); State v. Onorato, 142 Vt. 99, 104 (1982) (same). The rape shield law, 13 V.S.A. § 3255, permitting admission of certain evidence in sexual assault cases when "its probative value outweighs its private character," is held to be no more than a restatement of the Rule 403 test, State v. Patnaude, 140 Vt. 361, 376 (1981), although Rule 403 presumes in favor of admissibility (excluding evidence only if probative value is "substantially outweighed" by risk of prejudice) while the rape shield law makes the opposite presumption.

6. E.J. Imwinkelried, Uncharged Misconduct Evidence (1992).

7. V.R.Cr.P. 26(c). Despite differences in wording, the notice provision seems intended to be coextensive with Rule 404(b). But see In re W.F.K. No. 90-254 (Vt. May 6, 1992) (unpublished) (state in delinquency proceeding did not violate V.R.Cr.P. 26(c) by failing to give notice of prior misconduct that was not criminal conduct).

8. V.R.Cr.P. 26(c); State v. Corliss, 149 Vt. 100, 103-04 (1987).

9. 126 Vt. 244, 250 (1967).

10. 141 Vt. 10 (1982).

11. State v. Moran, 141 Vt. 10, 20 (1982). See also State v. Ryan, 135 Vt. 491, 499 (1977) (prior crime had no connection to charged crime "other than that connection which depends on the naturally drawn but legally insufficient assumption that `If he did it once, he probably did it again.'"); State v. Rebideau, 132 Vt. 445, 448 (1974); State v. Shuttle, 126 Vt. 379, 382 (1967); State v. Garceau, 122 Vt. 303, 307 (1961); State v. Howard, 108 Vt. 137, 153 (1936); State v. Kelley, 65 Vt. 531, 536 (1892). Cf. State v. Lawrence, 137 Vt. 597 (1979) (reference to defendant's prior incarceration in state's opening statement cured by prompt instruction).

12. See, e.g., State v. McCarthy, 156 Vt. 148, 155 (1991) (quoting People v. Thompson, 611 P.2d 883, 889 (Cal. 1980) ("the most prejudicial evidence imaginable against an accused")).

13. The "bad person" inference also may not be leveled against crime victims. See State v. Patnaude, 140 Vt. 361, 370-71 (1981).

14. See State v. Garceau, 122 Vt. 303, 307 (1961). Cf. State v. Emrick, 129 Vt. 475, 482 (1967) (fingerprint card did not suggest prior criminal conduct).

15. See Estelle v. McGuire, 112 S. Ct. 475, 481 (1991).

16. This was also the pre-rules law. See, e.g., State v. Ryan, 135 Vt. 491, 497 (1977); State v. McMann, 133 Vt. 288, 291 (1975).

17. State v. Hurley, 150 Vt. 165, 168 (1988) (citing State v. Catsam, 148 Vt. 366, 380-81 (1987)). See also State v. Robinson, No. 90-549, slip op. 3 (Vt. April 3, 1992); State v. Bruyette, No. 90-098, slip op. 4-5 (Vt. Jan. 10, 1992). "The rule lists some of the instances in which other crimes evidence may be admissible but these categories are neither exhaustive nor conclusive." 2 Weinstein's Evidence 404[08] at 56-57 (1990). See also id. at 404[17] and cases cited at 138 n.19.

18. 149 Vt. 623 (1988).

19. State v. Percy, 149 Vt. 623, 640 (1988). See also State v. Percy, No. 91-131, slip op. 7 (Vt. May 8, 1992) (rejecting a similar argument and warning that "[r]aising an insanity defense is radical legal surgery[,]" which generally makes the defendant's prior history fair game).

20. No. 90-549 (Vt. April 3, 1992).

21. State v. Robinson, No. 90-549, slip op. 4 (Vt. April 3, 1992).

22. 150 Vt. 40 (1988).

23. State v. Recor, 150 Vt. 40, 45 (1988).

24. See § 31.08.

25. See § 31.17.

26. See §§ 31.09-31.10.

27. Huddleston v. United States, 485 U.S. 681, 689 (1988).

28. State v. Robinson, No. 90-549, slip op. 4 (Vt. April 3, 1992) (adopting the standard of Huddleston v. United States, 485 U.S. 681, 690 (1988)); State v. Wheel, 155 Vt. 587, 603 (1990). Compare State v. Howard, 108 Vt. 137, 153, 155 (1936) (pre-rules case holding state had burden to prove commission of prior crimes by "substantial" evidence).

29. State v. Robinson, No. 90-549, slip op. 4-5 (Vt. April 3, 1992).

30. State v. McCarthy, 156 Vt. 148, 155 (1991) (citing with approval a Second Circuit decision prohibiting the cross-examination of a defendant about dismissed criminal charges); State v. Kerwin, 133 Vt. 391, 395 (1975). Use of a prior crime which the defendant has been acquitted of is not a federal double jeopardy violation. See United States v. Dowling, 493 U.S. 342 (1990).

31. State v. McCarthy, 156 Vt. 148, 155-56 (1991).

32. State v. McCarthy, 156 Vt. 148, 155 (1991).

33. State v. Howard, 108 Vt. 137, 151-52 (1935) (quoting Commonwealth v. Jackson, 132 Mass. 16 (1882)).

34. Rule 404(b) provides that other-crimes evidence "may" be admitted for a proper purpose, language that was intended "to prevent inclusion when the policies encompassed in Rule 403 were applicable - i.e., the probative value of the evidence is substantially outweighed by its prejudice, confusion or waste of time." 2 Weinstein's Evidence 404[18].

35. V.R.E. 403, Reporter's Notes.

36. 2 Weinstein's Evidence 404[09] at 404-62.

37. E.J. Imwinkelried, Uncharged Misconduct Evidence § 8:10 at 8-22 (quoting Thompson v. The King, (1918) App. Cas. 221, 232-33). But see Estelle v. McGuire, 60 L.W. 4015, 4017-18 (1991) (bit a due process violation).

38. United States v. Colon, 880 F.2d 650, 657 (2d Cir. 1989). But see State v. Provoncha, No. 92-80 (Vt. March 10, 1993) (unpublished) (not abuse of discretion to admit prior crimes to show "plan" although defendant did not defend on theory of lack of criminal intent).

39. See State v. Percy, 149 Vt. 623, 641 (1988) ("the reasons for admission can be abused" by litany of acts having little to do with issue); State v. Catsam, 148 Vt. 366, 382 (1987) (court will "ensure the principled application" of Rule 404(b)).

40. State v. Hurley, 150 Vt. 165, 169 (1988). Cf. State v. Ashley, No. 92-180, slip op. 2 (Vt. March 12, 1993) (continuous of similar acts).

41. State v. Robinson, No. 90-549, slip op. 5-6 (Vt. April 3, 1992) (probative value weakened by ambiguity of defendant's statement); State v. McCarthy, 156 Vt. 148, 155-56 (1991) (prosecutor invited jury to conclude that defendant molested son although SRS investigation turned up insufficient evidence for prosecution). See also 2 Weinstein's Evidence 404[10] at 69 ("To the extent that there is a serious question about whether the accused committed another crime, the probative force of the entire line of proof is seriously attenuated.").

42. State v. Catsam, 148 Vt. 366, 382 (1987). See also State v. Robinson, No. 90-549, slip op. 7 (Vt. April 3, 1992). But see State v. Hurley, 150 Vt. 165, 168 (1988) (state's special need for corroborative evidence in sex offense cases does not justify expanding limits of Rule 404(b) evidence).

43. State v. Percy, 149 Vt. 623, 641 (1988). Cf. State v. Gardner, 139 Vt. 456, 461 (1981) (questioning need for extensive recitation of lengthy criminal record to impeach defendant's credibility).

44. State v. Bruyette, No. 90-098, slip op. 5 (Vt. Jan. 10, 1992). This is because "[a] defendant cannot be identified as the perpetrator of the charged act simply because he has at other times committed the same commonplace variety of criminal act, except by reference to the forbidden inference of propensity." 2 Weinstein's Evidence 404[16]. See also 2 Wigmore on Evidence § 304 (1940).

45. State v. Catsam, 148 Vt. 366, 381 (1987).

46. State v. Hurley, 150 Vt. 165, 168-69 (1988). Cf. State v. Goodrich, 151 Vt. 367, 372 (1989); State v. Shattuck, 141 Vt. 523, 527 (1982) (prior crimes admitted for impeachment purposes). But see State v. Ashley, No. 92-180, slip op. 2 (Vt. March 12, 1993) (similarity of prior crimes showed "significant nexus" with charged offense).

47. State v. Hurley, 150 Vt. 165, 168 (1988) (evidence of prior sexual misbehavior with minors "almost inevitably . . . burdens the fairness of the trial"); State v. Catsam, 148 Vt. 366, 383 (1987) ("evidence of prior sexual offenses . . . is probably more prejudicial" than other types of crime). See generally, 2 Weinstein's Evidence 404[11] at 404-82 (quoting Slough & Knightly, Other Vices, Other Crimes, 41 Iowa L. Rev. 325, 333-34 (1956)).

48. State v. McCarthy, 156 Vt. 148, 155 (1991) ("the most prejudicial evidence imaginable against the accused"); State v. Howard, 108 Vt. 137, 151-52 (1935).

49. V.R.E. 609(a),(b). Convictions that are pending on direct appeal, or that have been the subject of certain pardons, are inadmissible under the rule, as are most juvenile delinquency adjudications. V.R.E. 609 (c),(d).

50. V.R.E. 609(a)(1); State v. Ashley, No. 92-180, slip op. 3 (Vt. March 12, 1993). Earlier versions of the rule required that conviction be for a crime of "moral turpitude." See State v. Goodrich, 151 Vt. 367, 371 (1989); State v. LaPlante, 141 Vt. 405 (1982). The new formulation excludes offenses like burglary, narcotics offenses, larceny, and shoplifting, but includes falsification of a prescription to obtain narcotics. V.R.E. 609, Reporter's Notes to the 1989 Amendment.

51. 13 V.S.A. § 1.

52. V.R.E. 609(a)(2).

53. State v. Goodrich, 151 Vt. 367, 372 (1989) (quoting State v. Gardner, 139 Vt. 456, 458 (1981)).

54. V.R.E. 609(a)(1).

55. V.R.E. 609(a)(2); State v. Ashley, No. 92-180, slip op. 3-4 (Vt. March 12, 1993). See Reporter's Notes to the 1989 Amendment.

56. 139 Vt. 456 (1981). The court continues to apply the Gardner criteria under Rule 609. See State v. Ashley, No. 92-180, slip op. 4-6 (Vt. March 12, 1993).

57. Gardner's listing of relevant factors is "by no means exhaustive." 139 Vt. at 461.

58. State v. Gardner, 139 Vt. 456, 460 (1981).

59. State v. Gardner, 139 Vt. 456, 460-61 (1981). Citing these passages in State v. Shattuck, 141 Vt. 523, 527 (1982), the Vermont Supreme Court held that a trial judge abused discretion by allowing impeachment use of defendant's rape and aggravated assault convictions in a sexual assault prosecution. See also State v. Goodrich, 151 Vt. 367, 372 (1989) (burglary convictions introduced as impeachment in burglary prosecution). But see State v. Savo, 141 Vt. 203, 208-11 (1982) (burglary convictions were admissible to impeach testimony in robbery prosecution).

60. State v. Gardner, 139 Vt. 456, 461 (1981); see State v. Ashley, No. 92-180, slip op. 5 (Vt. March 12, 1993).

61. State v. Gardner, 139 Vt. 456, 461 (1981); see State v. Ashley, No. 92-180, slip op. 5 (Vt. March 12, 1993).

62. State v. Gardner, 139 Vt. 456, 461 (1981). In State v. Goodrich, 151 Vt. 367, 373-74 (1989), the defendant had no memory of events and wanted to testify only that he lacked the capacity to form a criminal intent; the court saw it as a case where the defense "depend[ed] on the defendant's own testimony," and the prosecution had other means of impeachment. Compare State v. DeJoinville, 145 Vt. 603, 606 (1985), State v. Boucher, 144 Vt. 276, 281 (1984), State v. Foy, 144 Vt. 109, 114-15 (1984), and State v. Savo, 141 Vt. 203, 209-11 (1982), in all of which the court characterized the trials as credibility contests and acknowledged the prosecution's substantial need to impeach with prior convictions.

63. V.R.E. 609(a)(2). Rule 404(b) has no similar requirement.

64. State v. Goodrich, 151 Vt. 367, 371 (1989); State v. Jarrett, 143 Vt. 191, 193 (1983).

65. V.R.E. 26(c).

66. V.R.E. 404(a).

67. V.R.E. 404, Reporter's Notes.

68. V.R.E. 404(a)(1), (2).

69. V.R.E. 608(a).

70. V.R.E. 405(a)(1).

71. State v. Hedding, 114 Vt. 212, 214-16 (1945).

72. State v. Roy, 151 Vt. 17, 30 (1989). The evidence is admissible whether or not the defendant was aware of the victim's character. Id.

73. 13 V.S.A. § 3255(a)(1); State v. Patnaude, 140 Vt. 361, 370-74 (1981).

74. State v. Jewell, 150 Vt. 281, 283 (1988); State v. Sturgeon, 140 Vt. 240, 245 (1981). Opinion testimony is allowed only to prove a witness's character for truthfulness under V.R.E. 608. See § 31.11, infra.

75. State v. Roy, 151 Vt. 17, 30-31 (1989). Specific instances of conduct can be shown only when character "is an essential element of a charge, claim or defense[,]" V.R.E. 405(b), which is probably a nonexistent class as far as the criminal law is concerned.

76. State v. Sturgeon, 140 Vt. 240, 245 (1981) (quoting In re Monaghan, 126 Vt. 53, 62 (1966)).

77. V.R.E. 405(a).

78. 149 Vt. 393 (1988).

79. State v. Parker, 149 Vt. 393, 396-99 (1988).

80. 156 Vt. 148 (1991).

81. State v. McCarthy, 156 Vt. 148, 152, 153 (1991).

82. State v. McCarthy, 156 Vt. 148, 153 (1991).

83. V.R.E. 608(a); State v. Blair, 155 Vt. 271, 275-76 (1990).

84. State v. Blair, 155 Vt. 271, 275 (1990).

85. State v. Sims, No. 90-436, slip op. 11 (Vt. Nov. 8, 1991).

86. No. 90-436 (Vt. Nov. 8, 1991).

87. State v. Sims, No. 90-436, slip op. 11 (Vt. Nov. 8, 1991). See § 31.22, infra.

88. V.R.E. 406.

89. State v. Larose, 150 Vt. 363, 366 (1988) (quoting the Reporter's Notes to V.R.E. 406).

90. State v. Larose, 150 Vt. 363, 366 (1988).

91. State v. Cline, 139 Vt. 451, 453 (1981).

92. V.R.E. 406, Reporter's Notes (citing Garber v. Department of Social Welfare, 139 Vt. 487 (1981)).

93. For a review of Vermont decisions on expert and opinion testimony, see K. Kreiling, Expert and Opinion Evidence in Vermont: Developments, Profiles, and Emerging Concerns for Reliability of Scientific Evidence, 17 Vt. L. Rev. 109 (1992) (hereinafter "Kreiling").

94. V.R.E. 702, Reporter's Notes.

95. V.R.E. 701; In re L.A., 154 Vt. 147, 156 (1990). The rule lets nonexperts give a "shorthand description" or summary of facts. V.R.E. 701, Reporter's Notes; Kreiling, 17 Vt. L. Rev. at 115-16.

96. State v. Lettieri, 149 Vt. 340, 343 (1988); State v. Jewett, 148 Vt. 324, 332 (1986).

97. State v. Rifkin, 140 Vt. 472, 476 (1981) (pre-rules case).

98. State v. Lapham, 135 Vt. 393, 402 (1977) (pre-rules case).

99. Cappiallo v. Northrup, 150 Vt. 317, 318-19 (1988).

100. See, e.g., State v. Perry, 151 Vt. 637, 642 (1989); State v. Hicks, 148 Vt. 459, 461 (1987).

101. State v. Perry, 151 Vt. 637, 643 (1989) (quoting State v. Bishop, 128 Vt. 221, 228 (1969)).

102. State v. Gokey, 154 Vt. 129, 139-40 (1990) (expert qualified to testify about effects of sexual abuse on children was not competent to give opinion on whether particular child was telling the truth). In State v. Perry, 151 Vt. 637, 642 (1989), the defense claimed that an accident reconstruction expert was not qualified to give an opinion that the defendant was seated behind the wheel; the Vermont Supreme Court held that although the witness lacked "specific training" on the subject he had enough "pertinent experience" to offer an opinion.

103. 3 Weinstein's Evidence 702[02], 9-16 (1988).

104. 156 Vt. 468, 475-77 (1991).

105. State v. Percy, 156 Vt. 468, 475-77 (1991).

106. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

107. 154 Vt. 129 (1990).

108. State v. Gokey, 154 Vt. 129, 134-36 (1990). See also State v. Wetherbee, 156 Vt. 425, 430-31 (1991) ("The profession has expressed significant doubts about its capacity to make reliable credibility determinations."); State v. Percy, 146 Vt. 475, 483 (1986). For a more lenient approach to novel scientific evidence see Daubert v. Merrell Dow Pharmaceuticals, Inc., 61 L.W. 4805 (1993) (judge must make preliminary finding of scientific validity).

109. See United States v. Jackobetz, 955 F.2d 786 (2d Cir. 1992).

110. State v. Bourassa, 137 Vt. 62, 66-67 (1979).

111. See §§ 24.06 (trial witnesses), 24.08 (reports or statements of effects).

112. Once the witness testifies to her qualifications, she "is in effect qualified on the spot as an `expert' for that matter." V.R.E. 701, Reporter's Notes.

113. V.R.E. 703.

114. 149 Vt. 623 (1988).

115. State v. Percy, 149 Vt. 623, 640-41 (1988). See also State v. Recor, 150 Vt. 40, 47-49 (1988). The language of the rules does not compel this result. Rule 703, which allows an expert to base his opinion on inadmissible evidence, does not explicitly authorize testimony about inadmissible facts on direct examination. Cf. Cadel v. Sherburne Corp., 139 Vt. 134, 136 (1980) (question is "not what data an expert may rely upon, but what data he may put into evidence"). Rule 705 permits the expert to give an opinion without prior disclosure of the underlying facts or data, but requires such disclosure if the court orders it or if the other side asks about it on cross-examination. Neither of these provisions explicitly allows otherwise inadmissible "basis" testimony on direct examination. See Kreiling, 17 Vt. L. Rev. at 127-28.

116. State v. Goodrich, 151 Vt. 367, 376 (1989).

117. State v. Recor, 150 Vt. 40, 48 (1988).

118. State v. Goodrich, 151 Vt. 367, 376 (1989); State v. Percy, 149 Vt. 623, 641 (1988).

119. State v. Recor, 150 Vt. 40, 49 (1988).

120. 142 Vt. 241 (1982).

121. State v. Towne, 142 Vt. 241, 246 (1982).

122. Cadel v. Sherburne Corp., 139 Vt. 134, 136-37 (1980). See also State v. Willis, 145 Vt. 459, 481 (1985); State v. Norton, 134 Vt. 100, 104 (1976). See Kreiling, 17 Vt. L. Rev. at 132-36.

123. No. 90-240 (Vt. Jan. 3, 1992) (mem.).

124. Reiss v. A.O. Smith Corp., 150 Vt. 527, 530 (1988) (quoting the Reporter's Notes to V.R.E. 704).

125. Reiss v. A.O. Smith Corp., 150 Vt. 527, 532-33 (1988).

126. § 31.22.

127. State v. Rifkin, 140 Vt. 472, 477 (1981).

128. See V.R.E. 1101(a),(b), listing proceedings in which the rules apply and do not apply.

129. This includes all children who have not reached their eleventh birthday. State v. Rusin, 153 Vt. 36, 38 (1989).

130. Sexual assault, 13 V.S.A. § 3252; aggravated sexual assault, 13 V.S.A. 3253; lewd and lascivious conduct, 13 V.S.A. § 2602; and incest, 13 V.S.A. § 205. The provision also applies to juvenile delinquency proceedings based on violations of those statutes.

131. V.R.E. 804a(a).

132. V.R.E. 804a(a)(1),(2),(4); State v. Blackburn, No. 92-192, slip op. 3-4 (Vt. May 14, 1993).

133. V.R.E. 804a(a) and Reporter's Notes.

134. 150 Vt. 341, 344-347 (1988).

135. In re M.B., No. 90-272, slip op. 5-6 (Vt. Jan. 17, 1992). See also State v. Blackburn, No. 90-345 (Vt. March 14, 1991) (unpublished).

136. See Idaho v. Wright, 497 U.S. 805, 815-16 (1990); State v. Andrews, 447 N.W.2d 118, 122 (Iowa 1989) (collecting cases).

137. No. 91-283 (Vt. March 6, 1992).

138. State v. Duffy, No. 91-283, slip op. 3 (Vt. March 6, 1992). For a similar holding see also In re M.B., No. 90-272, slip op. 4-5 (Vt. Jan. 17, 1992) (three caseworker interviews and one with a pediatrician, not made in preparation for CHINS case).

138.5. State v. Blackburn, No. 92-192, slip op. 5 (Vt. May 14, 1993).

138.10. State v. Blackburn, No. 92-192, slip op. 6 (Vt. May 14, 1993).

139. Idaho v. Wright, 497 U.S. 805, 819-21 (1990).

140. 5 Wigmore, Evidence § 1424, at 255 (Chadbourn Rev. 1974) ("The admission of hearsay statements, by way of exception to the rule, . . . presupposes that the assertor possessed the qualifications of a witness in regard to knowledge and the like").

141. State v. Gallagher, 150 Vt. 341, 348-49 (1988). Rule 804a is therefore an exception to Rule 403's general prejudice/probative value screening test. But see State v. Weeks, No. 91-284, slip op. 7-8 (Vt. July 18, 1993) (Rule 804a did not overrule cases forbidding expert testimony implicitly vouching for complainant's story).

142. 13 V.S.A. §§ 3252, 3253.

143. 13 V.S.A. § 3255(a)(1),(3).

144. 13 V.S.A. § 3255(a)(3).

145. See L. Berger, Criminal Law Reform in Vermont: The Proposal to Exclude Evidence of the Victim's Character in Forcible Rape Cases, 1 Vt. L. Rev. 215 (1976); L. Purdy, Distinguishing Rape: A Definitive Approach to Sexual Assault, 11 Vt. L. Rev. 361 (1986); R. Katims, State v. Catsam: A Clarification of Evidentiary Standards in Vermont Child Sexual Abuse Cases, 12 Vt. L. Rev. 485 (1987); C. Burns and P. McCoy, A Counsellor's Crisis: Protecting Witnesses' Privacy Rights in Sexual Assault Prosecutions, 12 Vt. L. Rev. 497 (1987).

146. 146 Vt. 559 (1985).

147. 154 Vt. 426 (1990).

148. State v. Hooper, 151 Vt. 42, 46-47 (1989) (evidence that seminal fluid of uncertain origin was found on the victim properly excluded as irrelevant).

149. State v. Catsam, 148 Vt. 366, 373-77 (1987). The evidence may not fit the statutory exception when syndrome evidence is restricted to "aid[ing] the jury's understanding of particularized behavioral characteristics[,]" and not "for the purpose of supporting an inference of defendant's guilt." Compare State v. Murphy, 134 Vt. 106 (1976) (preshield law decision allowing proof of complainant's prior conduct to show alternative explanation for contusion on her hymenal ring). See also State v. Ross, 152 Vt. 462, 471 (1989) (rejecting a similar claim on procedural grounds).

150. The statute classifies false allegations as a type of prior sexual conduct, for no obvious reason.

151. See State v. Ross, 152 Vt. 462, 471-72 and n. 2 (1989) (citing Little v. State, 413 N.E.2d 639, 643 (Ind. App. 1980) (allegations must be demonstrably false), Commonwealth v. Bohannon, 378 N.E.2d 987, 991 (Mass. 1978) (requiring factual basis for concluding allegations were false), and State v. Padilla, 329 N.W.2d 263, 270 (Wis. 1982) (excluding evidence where "no proof" that prior allegations were false)). See also State v. Wilkinson, No. 90-418 (Vt. Oct. 9, 1991) (unpublished) (upholding discretionary exclusion of prior allegedly false allegation).

152. V.R.E. 104(b).

153. State v. Wheel, 155 Vt. 587, 605 (1990).

154. See State v. Dubois, 150 Vt. 600, 601 (1988) (complainant's alleged prior conduct with her brother offered to attack brother's credibility). Compare State v. Patnaude, 140 Vt. 361, 367-68 (1981) (doubting that such categories existed but not passing on a facial challenge to the statute).

155. Language in State v. Patnaude, 140 Vt. 361, 377 (1981), that § 3255(a)(3) and its "private character" test are nothing more than "a specific application of the general test of legal relevancy[,]" ignores the absolute ban on prior sexual conduct that does not fall into one of the three subsections.

156. 151 Vt. 361 (1989).

157. State v. Giroux, 151 Vt. 361, 366-67 (1989).

158. 148 Vt. 366, 368-72 (1987).

159. The court avoided the issue in State v. DeJoinville, 145 Vt. 603, 604-05 (1985), and State v. Bubar, 146 Vt. 398, 401 (1985). The cases after Catsam are State v. Hicks, 148 Vt. 459, 462-63 (1987); State v. Recor, 150 Vt. 40, 45-46 (1988); State v. Dunbar, 152 Vt. 399, 406-08 (1989); State v. Ross, 152 Vt. 462, 467-70 (1989), and id. at 473-78 (Morse J., dissenting); State v. Gokey, 154 Vt. 129 (1990); State v. Wetherbee, 156 Vt. 425 (1991); State v. Noyes, 157 Vt. 114, 116-17 (1991); State v. Sims, No. 90-436 (Vt. Nov. 8, 1991); State v. Denny, No. 91-219 (Vt. Sept. 4, 1992); and State v. Weeks, No. 91-284 (Vt. June 18, 1993). See also State v. Percy, 146 Vt. 475, 483 (1986) (testimony that rapists typically claim amnesia was inadmissible in sexual assault prosecution where defendant claimed amnesia); State v. Valley, 153 Vt. 380, 385-86 (1989) (testimony that incidence of mental illness is no greater among child abusers than in the general population was held admissible under Catsam). For a review of these cases, see Kreiling, 17 Vt. L. Rev. at 139-55.

160. State v. Gokey, 154 Vt. 129, 136-37 (1990) (quoting State v. Catsam, 148 Vt. 366, 370 (1987)).

161. State v. Catsam, 148 Vt. 366, 371 (1987) (quoting State v. Bubar, 146 Vt. 398, 401 (1985)).

162. State v. Wetherbee, 156 Vt. 425, 430 (1991); State v. Gokey, 154 Vt. 129, 134 (1990). Contrary language in State v. Ross, 152 Vt. 462, 468 (1989), approving expert testimony "insofar as it amounted to an opinion that the victim had suffered sexual abuse," cannot have survived Gokey and Wetherbee.

163. State v. Sims, No. 90-436 slip op. 6 (Vt. Nov. 8, 1991). In Gokey, 154 Vt. 129, 132 (1990), the expert testified to the complainant's emotional disturbance caused by "this victimization." In Sims, No. 90-436, slip op. 6-7 (Vt. Nov. 8, 1991), the witness was asked "what kind of psychological effect has the alleged abuse had on [complainant]?" and similar questions that "could not be answered without conveying the expert's belief that complainant was truthful and sexual abuse had occurred."

164. State v. Wetherbee, 156 Vt. 425, 432 (1991).

165. State v. Gokey, 154 Vt. 129, 138-39 (1990). See also State v. Noyes, 157 Vt. 114, 116-17 (1991) (PTSD expert's testimony of complainant's account of sexual abuse and identification of defendant as her abuser was error but not plain error); Kreiling, 17 Vt. L. Rev. at 125-27. The court has not considered whether such testimony may be admissible under V.R.E. 804a.

166. State v. Gokey, 154 Vt. 129, 134 (1990).

167. State v. Noyes, 157 Vt. 114, 116 (1991); State v. Gokey, 154 Vt. 129, 134 (1990). But see State v. Denny, No. 91-219, slip op. 3 (Vt. Sept. 4, 1992) ("Vermont law does not restrict the use of expert testimony in sexual abuse cases solely to rehabilitating the testimony of the complainant").

168. State v. Denny, No. 91-219, slip op. 3 (Vt. Sept. 4, 1992); State v. Shaw, 149 Vt. 275, 278-79 (1987).

169. The rule applies to prosecutions under 13 V.S.A. § 205 (incest), § 2602 (lewd and lascivious conduct with a child), § 3252 (sexual assault), and § 3253 (aggravated sexual assault), and in corresponding delinquency cases. V.R.E. 807(a). In re G.T., No. 89-473 (Vt. Jan. 22, 1991) (unpublished), approves such an order in a delinquency case.

170. V.R.E. 807(c).

171. V.R.E. 807(d) (videotaping), (e) (live closed-circuit t.v.).

172. V.R.E. 807(f). The Reporter's Notes acknowledge that the procedure "may cut close to the core values of the confrontation clause, since it eliminates face-to-face confrontation altogether." But see Maryland v. Craig, 497 U.S. 836 (1990) (approving a child witness's testimony by closed circuit t.v. on particularized findings).

173. V.R.E. 103(a)(1). "[T]he duty to exclude objectionable data lies squarely upon the shoulders of defense counsel." State v. Ross, 152 Vt. 463, 469 (1989) (quoting State v. Kasper, 137 Vt. 184, 190 (1979) (internal quotations omitted)).

174. See State v. Lettieri, 149 Vt. 340, 343-44 (1988); State v. Bissonette, 145 Vt. 381, 392 (1985).

175. State v. Percy, 146 Vt. 475, 481 (1986) (objection to testimony of behavior of other rapists as "overbroad generalities" with "no application to the case" preserved objection on grounds of "res inter alios acta" rule, that acts of strangers are incompetent evidence).

176. Watker v. Parole Board, 157 Vt. 72, 78-79 (1991).

177. V.R.E. 103(a)(2). See State v. Ringler, 153 Vt. 375, 378 (1989).

178. State v. Kasper, 137 Vt. 184, 200 (1979); V.R.E. 103(a), Reporter's Notes.

179. State v. Ringler, 153 Vt. 375, 378 (1989).