                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 38540

STATE OF IDAHO,                                    )
                                                   )       2012 Opinion No. 44
        Plaintiff-Appellant,                       )
                                                   )       Filed: August 27, 2012
v.                                                 )
                                                   )       Stephen W. Kenyon, Clerk
ROBERT D. CRITCHFIELD,                             )
                                                   )
        Defendant-Respondent.                      )
                                                   )

        Appeal from the District Court of the First Judicial District, State of Idaho,
        Kootenai County. Hon. Charles W. Hosack, District Judge.

        Order granting motion for a new trial, affirmed.

        Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
        General, Boise, for appellant. Mark W. Olson argued.

        Siebe Law Offices, PLLC, Moscow, for respondent. James E. Siebe argued.
                  ________________________________________________
LANSING, Judge
        The State of Idaho appeals from the district court’s order granting defendant Robert D.
Critchfield’s motion for a new trial due to the erroneous exclusion of defense evidence at his
initial trial. We affirm.
                                                 I.
                                         BACKGROUND
        In this case, involving nine separate children, the State tried Critchfield on two charges of
lewd conduct with a minor child under sixteen, Idaho Code § 18-1508, and seven charges of
sexual abuse of a child under the age of sixteen years, I.C. § 18-1506. Early in the investigation,
the alleged victims, ranging in age from nine to fourteen at the time, were individually
interviewed by five different law enforcement officers. Each of the victims later testified at trial.
        The defense sought to present at trial the testimony of Dr. Gregory Wilson, an expert in
law enforcement interview techniques. At a number of hearings on the State’s objection to this



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testimony, the defense represented that Dr. Wilson would testify that he had reviewed recordings
of the law enforcement interviews of the victims and that they were improperly conducted.
According to the offer of proof, Dr. Wilson would opine that in order to obtain an accurate
witness account of events, an interviewer should first ask open-ended questions seeking a
witness’s narrative and then go back and question on details for further clarification and to reveal
consistencies or inconsistencies. The interviewers here, said Dr. Wilson, did not do this and, for
example, sometimes made statements to an alleged victim suggesting that Critchfield had
touched her in a specific way or committed a particular act and then asked whether this had
occurred.   The interviewing officers also sometimes informed a victim of other victims’
allegations about what Critchfield had done. According to Dr. Wilson, the interview techniques
employed were improperly suggestive and often called for a victim to agree with the
interviewing officer, an authority figure, or with other victims, thereby possibly altering or
tainting the perception and memory of a particular victim.
       The State objected that Dr. Wilson should not be allowed to testify because the State had
not introduced the content of the law enforcement interviews of the victims through recordings
of the interviews or through testimony of the officers. In the absence of such evidence, the State
contended, Dr. Wilson would necessarily be testifying to an opinion that the victims’ trial
testimony was not truthful, which is a category of opinion evidence that is inadmissible under
Idaho law. The defense countered that it would not ask Dr. Wilson to give an ultimate opinion
that any individual victim’s testimony was tainted, contaminated, not truthful or not credible.
The district court ultimately excluded Dr. Wilson’s testimony. The court concluded that because
neither recordings of the interviews nor testimony from the officers concerning the content of the
interviews was placed into evidence by the State, Dr. Wilson’s testimony was not relevant.
       The jury found Critchfield guilty of one count of lewd conduct and one count of sexual
abuse, returned not guilty verdicts on four counts of sexual abuse, and was unable to reach a
unanimous verdict on the three remaining charges.
       Critchfield thereafter moved for a new trial on the two counts on which he was found
guilty, asserting that the district court had erred in excluding Dr. Wilson’s testimony. The
district court granted the motion, concluding that it should have allowed the expert to testify
concerning proper interview techniques, the purposes behind those techniques, and how
improper techniques were utilized in the victim interviews at issue. The court further concluded


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that its error was not harmless as there was a reasonable possibility that the exclusion of
Dr. Wilson’s testimony affected the outcome of the trial. The State appeals from the district
court’s order for a new trial, contending that Dr. Wilson’s testimony was properly excluded at
the initial trial.
                                                  II.
                                           STANDARDS
         If evidence is relevant, it is admissible “except as otherwise provided by [the Idaho Rules
of Evidence] or by other rules applicable in the courts of this state.”              Idaho Rule of
Evidence 402. Evidence is relevant if it has “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.” I.R.E. 401. On appellate review, questions of relevance are reviewed
de novo. State v. Watkins, 148 Idaho 418, 421, 224 P.3d 485, 488 (2009); State v. Raudebaugh,
124 Idaho 758, 764, 864 P.2d 596, 602 (1993).             Opinion testimony regarding scientific,
technical, or other specialized knowledge, presented by a qualified expert witness, is generally
admissible if it “will assist the trier of fact to understand the evidence or to determine a fact in
issue.” I.R.E. 702. A trial court has discretion in the admission or exclusion of expert testimony,
and its decision will be reviewed for an abuse of discretion. State v. Perry, 139 Idaho 520, 521,
81 P.3d 1230, 1231 (2003).
         A court may grant a new trial if, during the course of the trial, the court has “erred in the
decision of any question of law,” I.C. § 19-2406(5), including evidentiary error. A trial court has
wide discretion to determine whether to grant or to deny a criminal defendant’s motion for a new
trial. State v. Almaraz, ___ Idaho ___, ___, ___ P.3d ___, ___ (May 31, 2012) reh’g pending;
State v. Bolen, 143 Idaho 437, 439, 146 P.3d 703, 705 (Ct. App. 2006). This Court reviews a
denial of a motion for new trial for an abuse of discretion. State v. Stevens, 146 Idaho 139, 144,
191 P.3d 217, 222 (2008). That discretion generally is not abused unless a new trial is granted
for a reason that is not delineated in Idaho Code § 19-2406 or the decision to grant or deny a new
trial is contrary to the interest of justice. Bolen, 143 Idaho at 439, 146 P.3d at 705. Where a new
trial is sought on an assertion of trial court error in admitting or excluding evidence, if error has
occurred the issue becomes whether the incorrect evidentiary ruling was harmless or reversible
error. State v. Roberts, 129 Idaho 194, 198, 923 P.2d 439, 443 (1996); State v. Howell, 137
Idaho 817, 820, 54 P.3d 460, 463 (Ct. App. 2002). A trial error will be deemed harmless if the


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appellate court can conclude, beyond a reasonable doubt, that the jury’s verdict would have been
the same absent the error. State v. Moore, 131 Idaho 814, 821, 965 P.2d 174, 181 (1998); Giles
v. State, 125 Idaho 921, 925, 877 P.2d 365, 369 (1994).
                                               III.
                                           ANALYSIS
       As the State acknowledges, most other jurisdictions addressing the issue have held that
expert opinion testimony to show that a witness’s memory has been tainted by improper
interview techniques is generally admissible. See, e.g., Washington v. Schriver, 255 F.3d 45, 50,
57 (2d Cir. 2001); United States v. Rouse, 111 F.3d 561, 570-71 (8th Cir. 1997); State v. Speers,
98 P.3d 560, 565-67 (Ariz. Ct. App. 2004); State v. Malarney, 617 So. 2d 739, 740-41 (Fla. Dist.
Ct. App. 1993); Barlow v. State, 507 S.E.2d 416, 417-18 (Ga. 1998); State v. Huntley, 177 P.3d
1001, 1008 (Kan. Ct. App. 2008); Jenkins v. Com., 308 S.W.3d 704, 711-13 (Ky. 2010); State v.
Sloan, 912 S.W.2d 592, 596-97 (Mo. Ct. App. 1995); State v. Sargent, 738 A.2d 351, 354 (N.H.
1999); State v. Michaels, 642 A.2d 1372, 1384 (N.J. 1994); State v. Gersin, 668 N.E.2d 486, 494
(Ohio 1996); State v. Wigg, 889 A.2d 233, 239 (Vt. 2005); State v. Kirschbaum, 535 N.W.2d
462, 466-67 (Wis. Ct. App. 1995). We agree with these decisions, for evidence that reasonably
casts doubt upon the accuracy or reliability of a witness’s testimony on material matters is
ordinarily relevant. See, e.g., State v. Wright, 147 Idaho 150, 156, 206 P.3d 856, 862 (Ct. App.
2009); State v. Karpach, 146 Idaho 736, 739-41, 202 P.3d 1282, 1285-86 (Ct. App. 2009); State
v. Farlow, 144 Idaho 444, 448, 163 P.3d 233, 237 (Ct. App. 2007).
       Dr. Wilson’s proffered testimony was relevant for this purpose. The State’s case-in-chief
included the testimony of every alleged victim; each victim attributed unlawful acts to
Critchfield; and each had been interviewed by officers prior to the trial. In granting a new trial,
the district court correctly recognized that Dr. Wilson’s testimony would be relevant to challenge
the reliability of the victims’ trial testimony about instances of abuse by showing how their
memories of events may have been altered by improper interview techniques.
       The State notes, however, that in many of the foregoing decisions, the prosecution had
presented the content of the witness interviews or had presented expert testimony endorsing the
employed interviewing techniques before the defense offered its expert testimony on proper
interview techniques. The State reasons that because in this case the prosecution did not present
in its case-in-chief the content of witness interviews or expert testimony approving the officers’


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interview techniques, the expert testimony offered by the defense was not admissible. We
disagree. None of the cases cited by the State condition the admissibility of the defense expert
testimony in the manner urged by the State. Nor would such a limitation be proper. Once the
alleged victims’ testimony was entered into evidence, the accuracy and reliability of their
memories was at issue, and evidence that their memories may have been contaminated by
suggestive interview techniques became relevant.
       The State also argues that Dr. Wilson’s testimony would be inadmissible as usurping the
jury’s function or invading the province of the jurors, but this contention does not comport with
Idaho law. Certainly, testimony giving one witness’s opinion as to the truthfulness of another
witness is an invasion of the province of the jurors, who are the judges of the credibility of
witnesses. Perry, 139 Idaho at 525, 81 P.3d at 1235. The Supreme Court of the Territory of
Idaho so held more than 100 years ago. People v. Barnes, 2 Idaho 148, 150, 9 P. 532, 533
(1886). Expert opinion testimony to this effect is inadmissible because the testimony does not
“assist the trier of fact” as required for admissibility under I.R.E. 702. 1 State v. Perry, 150 Idaho
209, 229, 245 P.3d 961, 981 (2010); State v. Jackson, 151 Idaho 376, 380, 256 P.3d 784, 788
(Ct. App. 2011). That is, experts may not testify to opinions that the average juror would be
qualified to draw from the evidence utilizing the juror’s common sense and normal experience.
State v. Joslin, 145 Idaho 75, 81, 175 P.3d 764, 770 (2007). However, “an expert’s opinion, in a
proper case, is admissible up to the point where an expression of opinion would require the
expert to pass upon the credibility of witnesses or the weight of disputed evidence.” Perry, 139
Idaho at 525, 81 P.3d at 1235; State v. Hester, 114 Idaho 688, 696, 760 P.2d 27, 35 (1988). See
also State v. Christiansen, 144 Idaho 463, 468, 163 P.3d 1175, 1180 (2007). Only venturing
beyond that point would usurp the jury function.
       Here, the offer of proof regarding Dr. Wilson’s proposed testimony did not include any
such prohibited opinion on the credibility of any victim witness or on Critchfield’s guilt. Rather,
Dr. Wilson was prepared to testify that law enforcement interviews of the alleged victims were
so suggestive when they called for a victim to agree with the interviewing officer, an authority



1
       Similarly, lay witness opinion testimony as to the truthfulness of another witness’s
testimony is inadmissible because the testimony does not provide information “helpful . . . to the
determination of a fact in issue” as required by I.R.E. 701. State v. Herrera, 152 Idaho 24, 34,
266 P.3d 499, 509 (Ct. App. 2011).

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figure, or with other victims’ descriptions of Critchfield’s conduct, that they created a risk that
the victims’ perceptions or memories had been altered by the interviews. The defense made it
clear that Dr. Wilson would not be asked to give an ultimate opinion that any individual victim’s
testimony was tainted or not credible. In other words, Dr. Wilson would critique the officers’
interview methods, not the alleged victims’ accuracy or honesty.
       A recent opinion of the Idaho Supreme Court makes it clear that this proffered testimony
would not cross the line between admissible expert testimony and that which would invade the
province of the jury. In Almaraz, ___ Idaho at ___, ___ P.3d at ___, the district court allowed
the defense to present expert testimony from a cognitive psychologist about the types of
suggestive photo line-up procedures that can render an eyewitness identification unreliable, but
precluded the expert from testifying about the suggestiveness of the photo identification
procedure used during the police interview of an eyewitness on the ground that such testimony
invaded the province of the jury. The Supreme Court held that the limitation was error, stating:
       The district court allowed [the expert] to testify about the proper guidelines and
       procedures that should be followed during police interviews and how certain
       types of conduct can affect one’s memory. This Court finds that having [the
       expert] go through the audio recording of [the police officer’s] interview with [the
       eyewitness] would have been helpful to the average juror’s understanding of
       whether the interview comported with proper police procedures. The court should
       not overly restrict expert testimony that assists the jury. This Court finds that it
       would have assisted the jury to allow [the expert] to point out specific instances of
       suggestive conduct in Officer Sloan’s interview and to explain the nature and
       significance of certain overly suggestive acts, such as turning off the tape recorder
       in the middle of a crucial point during the interview. In reaching this holding, the
       Court still recognizes that an expert cannot opine to the accuracy of the
       eyewitness identification or the credibility of any witness as those matters are
       reserved for the jury.
               Nevertheless, testimony relating to the proper guidelines for conducting an
       accurate interview or lineup, whether or not those procedures were followed in
       the case at hand, and the consequences of non-compliance with those procedures
       does not invade the province of the jury.

       In this case, the defense did not offer any expert testimony beyond that deemed
admissible by Almaraz and other Idaho precedent, and the district court here did not err in
holding that Dr. Wilson’s testimony should have been admitted.
       The district court also correctly determined that this error was not harmless. This case
turns almost exclusively on the accuracy and reliability of the victims’ testimony.            The



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evidentiary error here deprived the jury of relevant evidence offered to assist them in
determining whether the victims’ testimony was tainted by suggestive interview techniques. We
agree with the district court’s determination that its error in excluding Dr. Wilson’s testimony at
trial was not harmless.
       The district court’s order granting a new trial is affirmed, and this case is remanded to the
district court for further proceedings.
       Chief Judge GRATTON and Judge GUTIERREZ CONCUR.




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