James Adam Fallin v. State of Maryland
No. 79, September Term 2017


Criminal Procedure – Witness Credibility – Expert Witnesses. It is for the jury alone
to determine the credibility of witnesses whose testimony and statements are relevant to
the factual issues to be decided by the jury. Thus, expert testimony as to whether another
witness exhibited signs of fabrication when that witness made an out-of-court statement is
ordinarily not admissible.
Circuit Court for Charles County
Case No. 08-K-15-000610
Argument: June 1, 2018
                                         IN THE COURT OF APPEALS
                                              OF MARYLAND

                                                      No. 79

                                             September Term, 2017



                                              JASON ADAM FALLIN

                                                        V.

                                              STATE OF MARYLAND

                                   _____________________________________

                                                      Barbera, C.J.,
                                                      Greene
                                                      Adkins
                                                      McDonald
                                                      Watts
                                                      Hotten
                                                      Getty,

                                                               JJ.

                                   ______________________________________

                                            Opinion by McDonald, J.
                                     Watts and Getty, JJ., concur and dissent.

                                   ______________________________________

                                               Filed: July 12, 2018


        2018-07-12
        11:06-04:00
       A basic principle of a criminal jury trial, incorporated in the Maryland Constitution,1

is that the jury is the judge of the facts. A corollary is that it is “the province of the jury”

to determine the credibility of the witnesses who provide evidence about those facts.2 This

Court is sometimes called upon to determine whether particular testimony is helpful to the

jury in assessing witness credibility or whether it purports to supplant the jury in carrying

out that function. This is one of those cases.

       Petitioner, Jason Adam Fallin, was accused of abusing his daughter on three

occasions when she was between five and eight years old, by inappropriately touching her

genitals. Virtually all of the evidence against him consisted of testimony and out-of-court

statements of the daughter. A forensic examiner testified that the daughter showed “no

signs of fabrication” and that the examiner had no concerns about fabrication when she

made certain out-of-court statements implicating Mr. Fallin. We hold that this testimony

impermissibly intruded on the responsibility of the jury to assess the credibility of

witnesses.

                                                 I

                                         Background

       On July 6, 2015, Mr. Fallin was indicted by a grand jury in the Circuit Court for

Charles County. All of the offenses charged in the indictment were related to three alleged

incidents in which Mr. Fallin inappropriately touched the genitals of his daughter, whom


       1
           Maryland Constitution, Declaration of Rights, Articles 20, 21, 23.
       2
           Bohnert v. State, 312 Md. 266, 277 (1988).
we shall refer to as “S.” The case first went to trial in January 2016, but the jury could not

agree on a verdict and the court declared a mistrial. The case was retried in April 2016.

The retrial is the subject of this appeal.

       S was born in September 2005 as a result of a brief relationship of Mr. Fallin with

S’s mother, whom we shall refer to as “Heather.” Mr. Fallin and Heather eventually

entered into a consent order concerning custody of S in 2009, under which S was to reside

with Heather, but visit with Mr. Fallin every other weekend. At the time Heather and S

resided with Mr. Fallin’s parents, although Mr. Fallin himself did not live with them.

Heather apparently has experienced her own challenges and S has spent much of her young

life residing with either Mr. Fallin’s parents or Heather’s mother. S had seen Heather only

once during the year preceding the trial of this case.

       At the trial of this case, S herself directly testified about two of the alleged incidents.

She dated one incident to sometime in 2012 (when she was five or six years old) while she

was in bed with both of her parents (“the bed incident”). She also testified about a second

incident that occurred inside a port-a-potty along a trail near her paternal grandparents’

home in 2014 (“the trail incident”). A forensic examiner, who had interviewed S in 2012

testified that S had told her about a third incident, which allegedly occurred while S and

her father were watching television in 2012 (“the television incident”), although in her own

testimony S did not mention that incident and denied that there had been any incidents

other than the two she testified about herself.

       The issues before us arise out of the testimony of two of the State’s witnesses who

testified about out-of-court statements of S. One issue is whether a forensic examiner’s


                                                2
repeated opinion that S did not show “signs of fabrication” was properly admitted in

evidence. Another issue is whether the Circuit Court should have provided a more detailed

curative instruction to the jury about inadmissible testimony by the same examiner that she

did not believe S was “incorrect” in her testimony. The remaining issue is whether

testimony by one of the State’s investigators concerning hearsay statements by S, although

erroneously admitted in evidence, was harmless error.

       To provide perspective on these issues, we first outline the legal context and then

recount the evidence at trial in some detail.

A.     Legal Context

       1.     The “Tender Years” Hearsay Exception

       Testimony concerning out-of-court statements of an alleged victim of child abuse

may be admissible under what is known as the “tender years” exception to the hearsay rule

contained in Maryland Code, Criminal Procedure Article (“CP”), §11-304. That statute

concerns the admissibility of an out-of-court statement3 of a child under the age of 13 who

is an alleged victim of child abuse or of certain sex offenses. To be admissible under the

statute, the statement must have been made to a person acting in the course of a particular

profession, the statement must not be admissible under any other hearsay exception, the

child must also testify at trial, and the statement must have “particularized guarantees of

trustworthiness” according to factors set forth in the statute. CP §11-304(c), (d), (e).



       The statute defines “statement” to mean an “(1) an oral or written assertion; or (2)
       3

nonverbal conduct intended as an assertion, including sounds, gestures, demonstrations,
drawings, and similar actions.” CP §11-304(a).



                                                3
       Pertinent to this case, the out-of-court statement is admissible only if made to one

of the following professionals “acting lawfully in the course of the person’s profession”:

            (1)      a physician;

            (2)      a psychologist;

            (3)      a nurse;

            (4)      a social worker;

            (5)      a principal, vice principal, teacher, or school counselor at a
                     public or private preschool, elementary school, or secondary
                     school;

            (6)      a counselor licensed or certified in accordance with Title 17 of
                     the Health Occupations Article; or

            (7)      a therapist licensed or certified in accordance with Title 17 of
                     the Health Occupations Article.

CP §11-304(c).

       2.         Expert Testimony Concerning Evaluation of Alleged Victim’s Statements

       Maryland appellate courts have previously considered the admissibility of expert

opinion testimony related to the statements of an alleged victim of child abuse. Among the

cases that bear on this issue and that form the backdrop for the objections made at trial are

Bohnert v. State, 312 Md. 266 (1988); Hutton v. State, 339 Md. 480 (1995); and Yount v.

State, 99 Md. App. 207 (1994).

       Bohnert

       In Bohnert, as in this case, the defendant’s conviction of a sexual offense against a

child turned on whether the jury believed certain statements of the child. In that case, the

defendant lived in an apartment with a woman and her two children, a boy and a girl. The


                                                4
girl alleged that the defendant frequently took her into the bathroom of the apartment to

engage in sex acts. Other testimony at the trial suggested that she was jealous of her

mother’s relationship with the defendant and might have other motives for testifying falsely

against him.    The girl had twice recanted her allegations of abuse, and a physical

examination found no signs of sexual abuse.

       A social worker employed as a protective services investigator by the local

department of social services, who had interviewed the girl and her mother, was qualified

by the trial court as an expert in the field of child sexual abuse. In response to a question

from the prosecution, the social worker responded that, in her opinion, the girl was a victim

of sexual abuse. While the social worker alluded to other sources of information, she said

that her opinion was based chiefly on statements made by the girl.

       The jury convicted the defendant of the charges and the Court of Special Appeals

affirmed the conviction. This Court, however, reversed, holding that it was an abuse of

discretion to admit the social worker’s opinion as to the girl’s credibility.

       The Court first observed that the social worker’s opinion was based solely on what

the girl had told her, as there were no eyewitnesses or physical evidence and the only other

evidence was similar statements made by the girl to her mother or others. The Court

observed that, while the admission of expert testimony on a particular subject is normally

a matter within the discretion of a trial court, the social worker’s opinion rested solely on

the statements of the girl, who was also a witness in the case, and thus essentially amounted

to an opinion concerning that witness’ credibility.




                                              5
       The Court stated:

           In a criminal case tried before a jury, a fundamental principle is that the
           credibility of a witness and the weight to be accorded the witness’
           testimony are solely within the province of the jury…. It is … error for
           the court to permit to go to the jury a statement, belief, or opinion of
           another person to the effect that a witness is telling the truth or lying.
           Whether a witness on the stand personally believes or disbelieves
           testimony of a previous witness is irrelevant, and questions to that effect
           are improper, either on direct or cross-examination.

312 Md. at 277 (citations omitted). Noting that the results of lie detector tests are not

admissible, the Court stated that no one “can qualify as an ‘expert in credibility’ no matter

what his experience and expertise” and reiterated that the credibility of a witness is solely

the province of the jury. Id. at 278. “It is the settled law of this State that a witness, expert

or otherwise, may not give an opinion on whether he believes a witness is telling the truth.”

Id.

       The Court concluded that, in the case before it, the social worker’s opinion that the

girl had been sexually abused was “tantamount to a declaration by [the social worker] that

the child was telling the truth…” Id. Such an opinion was “inadmissible as a matter of

law” and the trial court had no discretion to admit it. Id. at 279.

       Hutton

       The Court reiterated that principle in Hutton, which also arose out of a child sex

abuse prosecution. In that case, a social worker who had counseled the alleged victim

testified in the State’s case. The social worker described characteristics of children who

have been sexually abused and stated that the alleged victim exhibited many of those

characteristics. When asked by the prosecutor how she assessed credibility of her client,



                                               6
the social worker said that she looked for, and found, “consistency” in the client’s

statements. 339 Md. at 485-88. The State also called a psychologist who had interviewed

the alleged victim. The psychologist opined that the child suffered from post traumatic

stress disorder (“PTSD”) which, in the psychologist’s opinion, was attributable to child sex

abuse. Id. at 488. When asked by the State how she assessed the child’s credibility, the

psychologist responded that, in her opinion, the child’s representations were “not in any

way faked.” Id. at 490.

       This Court reversed the defendant’s conviction in Hutton, in part on the basis that

the testimony of the social worker and the psychologist concerning the alleged victim’s

credibility was contrary to the holding in Bohnert. The social worker had been permitted

to “indicate her opinion of the victim’s consistency and, indirectly, her truthfulness.” Id.

at 505. The psychologist’s testimony amounted to a “credibility assessment, a matter

outside [her] area of expertise and one historically and appropriately entrusted to the jury.”

Id. at 503.4

       Yount

       In Yount, the Court of Special Appeals held that generic testimony concerning

statements by victims of child abuse was admissible. In that case, the defendant was

charged with abusing his eight-year-old daughter. The daughter, who had recanted the

allegation of abuse and then recanted the recantation, testified in the State’s case-in-chief


       4
          A concurring opinion of two members of the Court would have allowed a larger
role to testimony concerning PTSD in child sex abuse cases, but agreed with the majority
that “the rule of Bohnert … was violated.” Id. at 507-8.



                                              7
that her father had abused her. In its rebuttal case, the State called a professional counselor

who was qualified by the trial court as an expert in child abuse and who testified that it was

common for victims of child abuse to recant their initial reports of abuse. The counselor

did not express an opinion about the statements of the daughter in the case on trial. The

jury convicted the defendant, who challenged the admission of the expert’s testimony on

appeal.

       The Court of Special Appeals first held that expert testimony by the counselor

concerning “the arcane context of sexual child abuse … would be of appreciable help” to

the jury. 99 Md. App. at 212. The court next determined that the counselor’s training and

experience rendered her qualified to provide that testimony. Id. at 213. The court noted

that the counselor had not testified on the ultimate issue in the case – whether the abuse

had occurred – and was not testifying directly on the issue of the victim’s credibility, but

rather on “a phenomenon that had a bearing on an assessment of … credibility.” Id. at 214.

       The court distinguished the situation before it from that in Bohnert. The expert

testimony concerning recantation simply “advised the jury as to the existence of a

psychological phenomenon that would explain the … victim’s wavering or vacillation.

Beyond that, it did nothing to indicate that the victim’s version of events rather than the

appellant’s version of events should be believed.” Id. at 218-19. The intermediate

appellate court held that the testimony was admissible and affirmed the conviction.




                                              8
B.     The Evidence at Trial

       1.     Testimony of S, Her Mother, and Her Maternal Grandmother

       Trial Testimony of S

       S testified that, when she was five and six years old, she lived with Mr. Fallin’s

parents, who sometimes took trips to North Carolina. She said that, on one occasion when

her grandparents were away, she was lying in bed with Heather and Mr. Fallin with her

eyes closed, when Mr. Fallin touched her “in the private area.” S testified that it hurt badly

and that she later told her mother and her maternal grandmother about the incident.

       S recounted a second incident that she believed also happened when she was six

years old. During a time when she was staying with her paternal grandparents, she went

for a walk on a nearby trail with Mr. Fallin. According to S, when she told Mr. Fallin she

had to go to the bathroom, he took her to a port-a-potty on the trail. While they were inside,

he touched her in the front of her private area in a way that felt like “scratching.” She said

that, after she pulled her pants up, they left the port-a-potty and went back on the trail,

where she told him he could not do that because there were people around. S also testified

that on the way back on the trail Mr. Fallin pulled her pants down outside and took a picture

of her. She later told her mother about the incident.

       S testified that she wanted to continue to see her father, but she did not want him to

touch her again in her private parts. She denied that he had touched her in that way on any

other occasion.




                                              9
       Heather

       Heather testified that, from 2008 through 2012, she and S lived with Mr. Fallin’s

parents, with whom she had a good relationship. Mr. Fallin did not live with them at the

time, but visited his daughter under the custody consent order.

       According to Heather, her daughter had twice reported to her that Mr. Fallin had

touched her inappropriately. The first occasion was sometime in 2012. According to

Heather, S told her on that occasion about “touching” by Mr. Fallin. Heather moved herself

and S out of the Fallins’ home and into her own mother’s home. She obtained a protective

order against Mr. Fallin but did not call the police. The protective order temporarily halted

visitation but, upon its expiration, visitation between S and Mr. Fallin resumed.

       Heather testified that the second occasion was two years later in 2014 after she had

picked up S from a visit with Mr. Fallin. At that time, S told her that Mr. Fallin “had dug

her again.” Heather understood S to mean that Mr. Fallin had touched his daughter’s

genitals. Heather then called the police.

       Heather testified that she had ceased living with her mother and S in January 2015

and that she had seen her daughter only once during the year prior to her testimony, a

situation that she attributed to her own health issues.

       Heather’s Mother

       Heather’s mother (S’s maternal grandmother) testified that she and Mr. Fallin’s

mother had helped arrange Mr. Fallin’s visitations with S under the custody consent order.

In July 2012, S told her about an incident a week or two before in which her father had

touched her genitals. S said that she had been sleeping on one side of the bed next to her


                                             10
mother and that she woke up with Mr. Fallin’s hands in her underwear “digging her.” The

grandmother called the Sheriff’s Office and accompanied Heather to obtain a protective

order.

         Two years later in 2014, S again reported inappropriate touching by her father. The

grandmother called S’s pediatrician and then contacted the Sheriff’s Office.               The

grandmother accompanied Heather and S to the Sheriff’s Office to report the incident. She

and Heather then obtained a second protective order against Mr. Fallin in late 2014.

         She testified that she had been S’s temporary guardian since January 2015, when

Heather had left her home.

         2.    The Sheriff’s Office Investigation – February and March 2014

         In February 2014, a detective from the Charles County Sheriff’s Office was assigned

to investigate the trail incident. At the outset of her investigation, the detective interviewed

S at the station in the presence of Heather and Heather’s mother. According to the

detective, S reported to her that Mr. Fallin had touched her genitals in a port-a-potty while

they were on a walk on the trail behind her paternal grandparents’ home. The detective

went to the trail and confirmed that there were port-a-potties along the trail.

         The detective met with Mr. Fallin on March 11, 2014. During that interview, Mr.

Fallin told the detective that he had taken walks on the trail with his daughter and his

parents. In response to the detective’s questions, Mr. Fallin denied that he had touched his

daughter’s genitals and said that there were no nude pictures of her on his phone. When

the detective told Mr. Fallin that she was going to obtain a search and seizure warrant for

his cell phone, he turned over the phone and volunteered the passcode to it.


                                              11
       The mobile phone forensics examiner for the Sheriff’s Office testified that he had

examined Mr. Fallin’s cell phone and determined that it had only two days of data on it.

He successfully extracted the files from the cell phone, which included one photograph of

S. In the photo she was clothed and standing outdoors. The forensics examiner determined

that the photograph had been taken with a camera other than the camera on the cell phone.

       A forensic nurse examiner testified that she had conducted a physical examination

of S in February 2014. S told the nurse that she had been touched in her genital area. The

nurse examined S’s genitals and noted no trauma, which she said could be “consistent”

with genital touching.

       3.     Report from Mr. Fallin’s Therapist – September 2014

       A licensed clinical social worker therapist, who was Mr. Fallin’s therapist from

2010 through 2014, was called as a witness by the State. She testified that, during a session

with her in September 2014, Mr. Fallin told her about a dream in which S had spent the

night at his residence. In the dream, he had woken up with an erection, placed his hand in

S’s pants, apologized to her when she awoke, and heard her say “That was okay, Daddy.”

Mr. Fallin told the therapist that he was “90 per cent sure” that what he recounted was a

dream, but was not absolutely certain.

       Under Maryland law, a licensed clinical social worker is required to notify the local

department of social services or an appropriate law enforcement agency if the social worker

has reason to believe that a child has been subjected to abuse or neglect. Maryland Code,

Family Law Article (“FL”), §5-704. In light of that provision, the therapist contacted the

authorities concerning Mr. Fallin’s statements to her during the session.         On cross-


                                             12
examination, the therapist acknowledged that Mr. Fallin was on medications when he was

seeing her and that she could not say how the medications may have affected what he told

her.

       4.       Forensic Interviews of S

       The issues before us concern testimony about two forensic interviews of S that were

conducted in 2012 and 2014. Evidence of out-of-court statements made by S during those

interviews was introduced under the “tender years” exception to the hearsay rule.

       August 2012 Forensic Evaluation – Meredith Drum, Professional Counselor

       In August 2012, Meredith Drum, a licensed counselor, who was working at the time

as a psychotherapist with the Center for the Children, conducted a forensic evaluation of

S. That evaluation consisted of four sessions with S, one of which was attended by Heather.

       In anticipation of Ms. Drum’s testimony, the defense raised two objections. First,

it objected to any testimony by Ms. Drum about whether she had observed signs of

fabrication by S during the sessions. Referring to similar testimony that Ms. Drum had

given during the first trial of the case,5 the defense argued that such testimony would be

contrary to the holding in Bohnert. The defense reasoned that testimony that S had not

exhibited signs of fabrication would be the functional equivalent of saying that she was

telling the truth and that Ms. Drum would be “functioning as a human lie detector.”

Second, the defense argued that allowing Ms. Drum to provide hearsay testimony that S

had described a third incident of inappropriate touching – the television incident – when S


       5
           Ms. Drum had testified at the earlier trial, which had resulted in a hung jury.



                                               13
had not described such an incident in her own trial testimony would violate Mr. Fallin’s

constitutional right of confrontation.

       In response, the State contended that admission of Ms. Drum’s testimony would not

be contrary to Bohnert and would be permissible under Yount because Ms. Drum would

not directly opine on the ultimate issue of whether S had been sexually abused. As to the

confrontation issue, the State argued that the defense had had an opportunity to cross-

examine S about whether the television incident happened, if it had wished to do so.

       After a lengthy discussion, the Circuit Court ruled that Ms. Drum could testify about

her training concerning signs of fabrication and state whether she had observed signs of

fabrication by S, but could not testify directly whether S was lying or telling the truth. With

respect to the confrontation issue, the court overruled the objection, stating that the defense

should not have been surprised by Ms. Drum’s anticipated testimony about the television

incident and had made a choice not to cross-examine S about that alleged incident. Defense

counsel asked “if we could have a continuing objection so we don’t have to keep

objecting,” to which the court responded affirmatively.

       Later, as Ms. Drum was about to take the stand, the court and counsel revisited the

discussion:

                 The Court:              All right.

                                         Okay.

                                         So just to be clear I have; maybe you
                                         already said, but I have all your objections
                                         on mistrial; all of them noted.

                                         If something else comes up please but [sic].


                                                 14
Defense Counsel:   And yeah, just to clarify it.

The Court:         Yeah.

Defense Counsel:   Anything; even though Your Honor I think
                   sort of agree [sic] with me in part on the
                   fabrication stuff.

The Court:         Um hum.

Defense Counsel:   Any; the signs of fabrication and not seeing
                   any is the functional equivalent in my view.

The Court:         Right.

Defense Counsel:   And frankly I think any reasonable
                   interpretation.

The Court:         Come on up, Ma’am.

                   Come on up, Ma’am.

                   Go ahead.

                   I got it.

                   I got your objection to it.

Defense Counsel:   The functional equivalent of saying she’s
                   not fabricating it.

Defense Counsel:   Yeah.

The Court:         Okay.

Defense Counsel:   And anything like that where you have the
                   functional equivalent of saying I think she’s
                   credible.

The Court:         I got it.

                   I got you.



                            15
       Ms. Drum then testified that she had received training at the National Children’s

Advocacy Center in Alabama, and at the National Center for Forensic Interviewing. She

said that her training taught her how to conduct extended multiple-session evaluations of

children, how to start with broad questions and move to narrower ones, and what signs to

look for to determine if a child is fabricating or being coached. According to Ms. Drum,

such signs include the immediate and unsolicited disclosure of sexual abuse, “using the

exact same phrase repeatedly,” and the use of “too grown up language.” It was not clear

from Ms. Drum’s testimony whether this list was meant to be exhaustive.

       The court found that Ms. Drum was qualified as an expert in the field of child abuse

disclosure and clinical counseling in the area of child abuse.

       Ms. Drum testified that she met with S four times in August 2012. The first session

was devoted to getting to know S and building rapport. Ms. Drum said that S, who was six

years old at the time, was talkative and bouncy. According to Ms. Drum, it is not a “goal”

of the initial session to obtain disclosures of child abuse, and S did not say anything about

being molested or touched during that interview.

       Ms. Drum testified that, during their second session, S told her that her father had

“digged her” and pointed to her groin area. According to Ms. Drum, S said that the

“digging” occurred at her grandparents’ house when the grandparents were away in Florida

and while S was in bed with her mother and father. S said she would scream when the

digging happened. According to Ms. Drum, S was concerned about whether she would

“get in trouble” for telling Ms. Drum about it, but Ms. Drum assured her that she would

not. S said that she was scared to return to her father’s house.


                                             16
       During their third session, according to Ms. Drum, S again mentioned that Mr. Fallin

had “digged” her and pointed to the vagina on an anatomical drawing of a girl. S talked

about the same incident as in the second session and recounted an additional detail – i.e.,

that she was wearing pajamas.

       Ms. Drum testified that, during their fourth and final session, S told her about a

second incident with her father. According to Ms. Drum, S said that Mr. Fallin touched

her when they were in the living room of her grandparents’ house watching television.

       Ms. Drum said that S had told her that she had never experienced any bad touches

by anyone else.

       Throughout Ms. Drum’s testimony, the prosecutor repeatedly asked her whether she

had observed signs of fabrication or coaching in S during their several sessions together.

Ms. Drum consistently denied observing such signs in S. At the conclusion of the State’s

direct examination, the State reiterated those questions and Ms. Drum testified as follows:

           Prosecutor:          Throughout your four sessions did you have any
                                concern that [S] was fabricating?

           Ms. Drum:            No.

           Prosecutor:          Did you have any concern that she was being
                                coached?

           Ms. Drum:            No.

           Prosecutor:          Did you observe any of the signs in which you
                                were taught through your training and experience
                                that she was being coached or this was fabricated?

           Ms. Drum:            No.




                                            17
         Later, during redirect examination, the State again asked:

             Prosecutor:         And is there any indication in your sessions with
                                 [S] that when she was disclosing her father as the
                                 person who was digging her that she was
                                 incorrect?

             Ms. Drum:           No.

The defense objected, and a bench conference ensued. Defense counsel argued that the

testimony had crossed the line into an assertion by Ms. Drum that S had been truthful in

identifying her father as a perpetrator of child sexual abuse. The following colloquy took

place:

             Defense Counsel: And she also asked earlier subject to our
                              continued objection, do you have any concerns
                              about whether she was fabricating or not. That –

             The Court:          Well, that’s interesting cause I was surprised you
                                 didn’t object on that one.

             Defense Counsel: Well, the continuing objection so I.

             The Court:          That’s for somebody else to decide.

                                 I thought that was slightly different but whatever.

             Defense Counsel: I; if it wasn’t covered I move to strike it.

                                 ...

             The Court:          Okay.

                                 That’s fine.

                                 Just stand by.

                                 One thing at a time.




                                                18
After some discussion, the Circuit Court concluded that the question was improper.

Defense counsel then asked for a curative instruction “in light of that and the other two

questions which I thought were covered by our continuing objection.” The court replied

“Yeah, maybe they were.” The defense then requested the following instruction:

          [I]t is for the jury alone to assess whether a witness or an alleged victim
          is telling the truth.

          It is not an appropriate subject for expert testimony to tell you whether
          or not they believe someone’s telling the truth.

The State asserted that the instruction was incorrect under the law, and that it specifically

disagreed with the second part. The court ended the bench conference stating that it would

take up the proposed curative instruction after Ms. Drum’s testimony concluded.

       The State then asked Ms. Drum if she had “any concerns” based on her training and

experience, and the court sustained an objection because the question went “too far.” The

State then once again asked Ms. Drum if she had “observe[d] any signs of fabrication or

coercion” and Ms. Drum responded, “No.”

       After Ms. Drum finished testifying, the defense requested the same two-part

instruction as earlier. The court said it was not going to give the second part because “I

don’t think that’s what happened.” The State also objected to the second part because an

“expert witness can assess the credibility. That’s exactly what [Yount] said can happen.”

The court said it was not going to go as far as putting in the second part of the instruction

and said it understood that the defense wanted it in.




                                              19
       Shortly after the discussion, the court told jurors:

          All right ladies and gentlemen just a couple things:

          Just as a reminder it is for you alone to determine the credibility of any
          witness; that’s Number 1.

          Number 2, the Court has to; you probably noticed the courtroom’s
          filling up, take up some other matters …

This was followed by a lengthy instruction to the jury about adjourning for the day.

       September 2014 Forensic Interview – Melissa Mohler, Social Services Investigator

       In September 2014 – more than two years after S had been interviewed by Ms. Drum

– she was interviewed by Melissa Mohler, a child protective services investigator with the

Department of Social Services, as a result of the report made by Mr. Fallin’s therapist. Ms.

Mohler testified that S had seemed “happy-go-lucky” and had no trouble communicating

during their single interview. Over a hearsay objection, Ms. Mohler recounted statements

that S had made during that interview.

       Ms. Mohler testified that she told S what Mr. Fallin had said to his therapist.

According to Ms. Mohler, S had responded that Mr. Fallin was lying when he said he had

abused her recently, when in fact he had not done so. S also said that Mr. Fallin had lied

twice in the past when he denied abusing her, when he had in fact done so.

       Ms. Mohler said that S also told her about her interview with the detective from the

Sheriff’s Office earlier that year. S told Ms. Mohler that she had not been alone with Mr.

Fallin since that interview with the detective and that Mr. Fallin had not touched her private

area in the week prior to their interview. S said that Mr. Fallin had apologized to her about




                                              20
touching her private area. According to Ms. Mohler, S said that, in response to the apology,

she had told her father that he “cannot do that to me.”

       Ms. Mohler also testified about a conversation she had with Mr. Fallin and his

mother. Mr. Fallin told Ms. Mohler that he believed that S was just repeating what Heather

and Heather’s mother had told her to say. Mr. Fallin said that he loved S and would

relinquish his rights to visitation out of concern for her well-being.

       5.     The Defense Case

       The defense called two of Mr. Fallin’s relatives as witnesses. An aunt, who

happened to be a licensed clinical professional counselor, testified that she had had frequent

contact with S since her birth. She said that S had never disclosed anything to her that

would have triggered the mandatory duty under FL §5-704 to report suspected child abuse

or neglect.

       Mr. Fallin’s sister-in-law testified that she had a son close in age to S who was “best

friends” with S. She recounted that, on a weekend, in late January or early February 2014,

she and Mr. Fallin took S and her son for a walk on the trail. The children got cold, and

they returned home after only walking about 500 feet. She said that there were 10 or 12

other people out on the trail that day and that S never used a port-a-potty. The sister-in-

law testified that her son had never told her that S had disclosed any sort of sexual abuse.

       Mr. Fallin elected not to testify in his defense.




                                              21
C.     Legal Proceedings

       1.      Verdict and Sentencing

       The 12-count indictment against Mr. Fallin included one count of continuing course

of conduct involving sex crimes against a child, in violation of Maryland Code, Criminal

Law Article (“CR”) §3-315, three counts of third-degree sexual offense in violation of CR

§3-307, three counts of fourth-degree sexual offense in violation of CR §3-308, three

counts of sexual abuse of a minor in violation of CR §3-602, and two counts of second-

degree assault in violation of CR §3-203.

       During the trial the State dismissed, by nolle prosequi, four of the charges – in

particular, the count charging a continuing course of conduct and three counts related to

digital anal penetration. On April 22, 2016, the jury began its deliberations on the

remaining eight counts. After deliberating that morning, the jury sent a note to the court

stating that they were “hung on all counts.” With the assent of counsel, the court repeated

the standard instruction it had given earlier on the jury’s duty to deliberate.6 Later that

afternoon the jury returned a verdict finding Mr. Fallin guilty of three charges, all of which

related to the bed incident, but could not reach a verdict on the five remaining charges

related to the trail incident or the television incident.

       On July 15, 2016, the Circuit Court sentenced Mr. Fallin to 25 years incarceration,

with all but 21 years suspended, for sexual abuse of a minor, and 10 years concurrent for



       6
        See Maryland State Bar Association, Maryland Criminal Pattern Instructions (2d
ed. 2012), MPJI-Cr. 2:01.



                                               22
the third-degree sexual offense conviction, with five years supervised probation. The

second-degree assault conviction was merged into the sexual offense conviction for

purposes of sentencing.

       2.     Appeal to Court of Special Appeals

       Mr. Fallin appealed to the Court of Special Appeals. In an unreported decision dated

October 13, 2017, the intermediate appellate court affirmed his convictions. With respect

to the issues before us, that court concluded that, although some of the evidence had been

admitted in error, it did not require reversal of Mr. Fallin’s convictions.7

       With respect to the testimony of Ms. Drum, the Court of Special Appeals

distinguished her testimony from that in Bohnert. Citing Yount, the intermediate appellate

court reasoned that Ms. Drum simply applied “objective knowledge” in testifying that S

did not exhibit signs of fabrication or coaching and that she had not opined directly as to

whether S was telling the truth.

       With respect to Ms. Mohler’s testimony reporting out-of-court statements made by

S, the court held that the testimony was inadmissible because Ms. Mohler did not come

within any of the occupational categories of CP §11-304(c) and therefore the statutory

“tender years” hearsay exception did not apply to her hearsay testimony. However, the


       7
         The Court of Special Appeals also considered Mr. Fallin’s arguments that the
prosecutor had included facts not in evidence in her rebuttal argument to the jury and that
the trial court had admitted certain allegedly irrelevant evidence. The intermediate
appellate court found no merit in either of those arguments and Mr. Fallin has not pursued
those contentions before us.




                                              23
court concluded that, in light of the fact that S herself had testified at trial about the same

information, it was clear beyond a reasonable doubt that the erroneous admission of the

hearsay statements of S through Ms. Mohler did not affect the verdict.

       We granted Mr. Fallin’s petition for certiorari and the State’s cross petition.

                                              II

                                         Discussion

       Mr. Fallin presents three questions for review:

       (1)    Whether Ms. Drum’s testimony that S exhibited no signs of fabrication or

coaching, and that Ms. Drum had no concerns on that score, was admissible.8

       (2)    Whether the Circuit Court should have given the jury a curative instruction

that credibility of a witness – i.e., S – was not a proper subject of expert testimony.

       (3)    Whether allowing an unlicensed social services investigator – Ms. Mohler –

to testify as to out-of-court statements of S was harmless error.

       In its cross-petition, the State raised the issue as to whether Mr. Fallin had

adequately preserved objections related to the first two questions.

       For the reasons set forth below, we conclude that Mr. Fallin preserved his objection

to Ms. Drum’s testimony and that her opinion as to whether S showed signs of fabrication

or coaching was inadmissible under Bohnert. Accordingly, we remand the case for a new

trial and need not address the second and third questions.



       8
       Mr. Fallin stated two related questions in his petition that, in our view, are both
subsumed in this issue.



                                              24
A.     Preservation

       As a preliminary matter, the State argues that at least part of Mr. Fallin’s objection

to Ms. Drum’s testimony was waived and not preserved. In particular, the State contends

that (1) it is ambiguous whether the defense’s continuing objection to Ms. Drum’s

testimony related to its argument under Bohnert, as opposed to the confrontation issue

related to Ms. Drum’s testimony about the television incident; and (2) even if the defense

had registered a continuing objection under Bohnert, that objection concerned only the

testimony by Ms. Drum that she saw no “signs” of fabrication and not her testimony that

she had no “concerns” about fabrication.

       In a criminal trial, an objection to evidence is waived unless the party objects at the

time the evidence is offered or as soon thereafter as the grounds for objection become

apparent. Maryland Rule 4-323(a). The court may grant a continuing objection to a line

of questions, but such an objection is effective only as to questions “clearly within its

scope.” Maryland Rule 4-323(b).

       In our view, the State’s waiver argument parses the defense objections and the trial

court’s rulings too finely. As set forth above, there was a lengthy colloquy between the

Circuit Court and counsel concerning the defense objections to Ms. Drum’s testimony.

Most of that discussion involved the defense objection based on Bohnert that Ms. Drum’s

testimony about whether S had shown signs of fabrication in their August 2012 sessions

amounted to an opinion by Ms. Drum that S’s statements to her were true. It is true that

the defense also raised a confrontation issue concerning her testimony about the alleged

television incident, on the basis that S herself had not testified about such an incident and


                                             25
had, in fact, denied that there were any touching incidents besides the two – the bed incident

and the trail incident – that S described in her own testimony. At the conclusion of the

colloquy the defense asked for a “continuing objection so we don’t have to keep objecting.”

The Circuit Court assented to that request. Later, immediately before Ms. Drum took the

stand, the Circuit Court noted that “I have all your objections on mistrial” 9 and defense

counsel again reiterated his argument based on Bohnert, to which the court affirmed “I got

it.”

       A fair reading of the record reveals that the defense adequately stated a continuing

objection under Bohnert – whether characterized as “signs” or “concerns” about

fabrication. The main thrust of the defense objection to Ms. Drum’s testimony was clearly

based on Bohnert. The essence of that objection (equating Ms. Drum’s expected testimony

with the social worker’s opinion in Bohnert) was repeated multiple times, including

immediately before Ms. Drum took the stand, and the Circuit Court repeatedly gave

affirmative responses such as “I got it” while disagreeing with the defense on the substance

of the objection. It is perfectly understandable why the defense did not object each time

Ms. Drum repeated her conclusion during her subsequent testimony that S had not




       9
          The defense had filed a written motion for a mistrial three months earlier during
the first trial of the case related to the testimony of Mr. Fallin’s therapist. There is no
evident reason that the court would be referring to that motion, which concerned a different
trial and a different witness, at this juncture. It seems more likely that the court was
referring to the contemporaneous defense objections to the testimony that was then under
discussion.



                                             26
exhibited signs of fabrication during their four sessions or that Ms. Drum did not have

“concerns” about fabrication.

       The State argues that the defense must not have understood the scope of its

continuing objection to be so broad and points to an objection registered by the defense

toward the conclusion of Ms. Drum’s direct examination. On that occasion, the defense

objected when the prosecutor went a step beyond her previous questions and asked Ms.

Drum if she had any concerns whether S’s statements that Mr. Fallin had abused her were

“incorrect.” This question clearly was not within the parameters permitted by the trial

court’s earlier ruling overruling the defense objection to the “signs of fabrication”

questions. The trial court agreed that this new question was “improper.” While under the

defense theory this question was as impermissible as the “signs of fabrication” questions,

it was not the same question to which the defense had lodged an advance continuing

objection and lost. Thus, the fact that defense counsel objected to this new question is not

an indication that the scope of its continuing objection was too narrow to encompass

questions concerning “signs” or “concerns” about fabrication.

B.     Whether Expert Testimony Concerning Signs of Fabrication by Another Witness
       is Admissible

       As outlined earlier,10 a fundamental principle underlying trial by jury is that “the

credibility of a witness and the weight to be accorded the witness’ testimony are solely

within the province of the jury.” Bohnert, 312 Md. at 277. Accordingly, a trial court may



       10
            See Part I.A.2 of this opinion.



                                              27
not ordinarily permit questioning that calls for one witness to assess the credibility of

testimony or statements made by another witness concerning the facts of the case. This is

not to say that a witness may not offer the jury general information that may be useful to

the jury in making the credibility determinations, such as character evidence or tools related

to the assessment of credibility.

       Character Evidence Related to General Credibility

       A person designated as a character witness may provide opinion or reputation

evidence about the general credibility of another witness. See Maryland Rule 5-608.

Under that rule, a person who knows the witness or the witness’ reputation may testify that

the witness has a reputation for truthfulness or untruthfulness or that, in the person’s

opinion, the witness is a truthful or an untruthful person. Id.

       There is no contention here that this rule would apply to the testimony provided by

Ms. Drum. First, to come within Rule 5-608, there must be a basis for the character

witness’ opinion or knowledge – i.e., the character witness must establish past knowledge

of the witness or the witness’ reputation. In this case, Ms. Drum explicitly disclaimed any

prior familiarity with S. Indeed, she indicated that it would have been unethical for her to

have conducted a forensic interview with a child that she knew prior to the interview.

       Second, a character witness does not express an opinion on specific testimony or

statements of a witness that are at issue at trial – i.e. whether they are true or false,

straightforward or fabricated. Rather, the character witness testifies as to the general

reputation or propensity of the witness to tell the truth. It becomes another factor that the

jury can consider in carrying out its role to assess the credibility of the statements made by


                                             28
the witnesses who appear before it. By contrast, in this case, Ms. Drum had nothing to say

about S’s general character or propensity to tell the truth. Rather, she expressed an opinion

as to whether S showed signs of fabrication in making the out-of-court statements that were

admitted in evidence under the “tender years” exception to the hearsay rule and that went

directly to the issues before the jury.

       Other Tools for Assessing Credibility Generally

       There may also be circumstances, as exemplified in Yount, where expert testimony

concerning particular categories of witnesses, such as child witnesses or abuse victims,

may be helpful to a jury. As described earlier, the State presented expert testimony in that

case concerning the frequency with which victims of sexual assaults recant reports of

assaults. Unlike this case, the expert in Yount did not provide any opinion specific to the

complainant in that case or the charges at issue in the trial. It was left to the jury in Yount

to decide whether and how to apply the information concerning recantations should affect

their evaluation of the testimony of the complaining witness. By contrast, in this case, Ms.

Drum did not so much advise the jury on how to assess a witness for signs of fabrication

as provide her own conclusions on the credibility of the primary prosecution witness. In

reversing a conviction based on similar expert testimony, the Ninth Circuit emphasized this

distinction:

                 The testimony of the experts in this case was not limited to
          references to psychological literature or experience or to a discussion
          of a class of victims generally. Rather the experts testified that these
          particular children in this particular case could be believed.

United States v. Binder, 769 F.2d 595, 602 (9th Cir. 1985).



                                              29
       This case would be closer to Yount if a witness such as Ms. Drum had simply

provided the jury with expert information on some signs of fabrication or coaching they

might look for and if the jury was able to use that information as it chose in forming its

own judgment as to the credibility of S. However, the jury had no basis for applying the

signs of fabrication identified by Ms. Drum to the out-of-court statements that Ms. Drum

reported and therefore no basis for assessing the accuracy of Ms. Drum’s opinion whether

S showed such signs. No tapes or even transcripts of the interviews of S by Ms. Drum

were before the jury.11 In response to questions concerning what S said during their

interviews, Ms. Drum frequently confessed to a lack of recollection and had to consult her

notes – by our count, at least 16 times over the course of her testimony. This no doubt was

an effort on her part to be as accurate as possible in responding to those questions.

However, it may be questioned how Ms. Drum, who understandably could not remember

what S said during interviews that had taken place in August 2012 – more than three and a

half years before her testimony at the trial – could nevertheless remember important details

as to how S said what she said – e.g., whether she repeated the “exact same phrase” or used

“grown up” language.




       11
          Ms. Drum’s sessions with S had been audio and video recorded. However, the
recordings were not produced at trial, despite being subpoenaed by the defense. At the
request of the defense, the court included a missing evidence instruction in its final charge
to the jury.



                                             30
       Expert Opinion About a Witness’ Credibility in the Particular Case

       The testimony at issue in this case appears to be indistinguishable from that which

this Court found impermissible in Bohnert and Hutton. Ms. Drum testified that she

concluded, based on her training and expertise, that there were no “signs” of fabrication or

coaching in S’s out-of-court statements to her. As a result, she had no “concerns” about

fabrication by S or coaching by someone else. The inevitable conclusion from that

testimony, which the prosecutor asked her to draw explicitly, was that S’s statements

concerning touching incidents by Mr. Fallin were not “incorrect” ‒ i.e., true. That

testimony was no less problematic than the social worker’s testimony in Hutton that she

found the victim’s statements credible because of their consistency, the psychologist’s

opinion in that case that the representations of the victim to her were “not in any way

faked,” or the social worker’s testimony in Bohnert that she had concluded that the alleged

victim had suffered abuse.

       The State argues that Ms. Drum’s testimony is distinguishable from that of the social

worker in Bohnert on the ground that Ms. Drum was providing the jury with information

about objective tests – i.e., particular signs of fabrication – rather than a general conclusion

about the alleged victim’s credibility. In the State’s view, Ms. Drum was merely providing

a tool to the jury to use in its own assessment of S’s out-of-court statements.

       As explained above, it is not clear how the jury was supposed to apply this

information itself to the out-of-court statements. Moreover, the distinction advanced by

the State is difficult to discern. As one court has observed, the “subtle distinction between

an expert’s testimony that a child has or has not been coached versus an expert’s testimony


                                              31
that the child did or did not exhibit any signs or indicators of coaching is insufficient to

guard against the dangers that such testimony will constitute impermissible vouching.”

Sampson v. State, 38 N.E.3d 985, 991-92 (Ind. S. Ct. 2015) (emphasis in original).12

       In this regard, it is instructive to compare the evidence derived from a polygraph

examination to the testimony given in this case. Evidence derived from a polygraph

examination – i.e., a lie detector test – is widely held to be inadmissible in evidence, in part

because it amounts to expert opinion testimony on whether a witness is telling the truth or

fabricating. See United States v. Scheffer, 523 U.S. 303, 312-14 (1998); A. Shniderman,

You Can’t Handle the Truth: Lies, Damn Lies, and the Exclusion of Polygraph Evidence,

22 Albany L. J. Sci. & Tech. 433, 434 (2012).

       A polygraph machine precisely measures certain physical characteristics of a person

– blood pressure, pulse, respiration rate, and galvanic skin resistance – while the person is




       12
          The State points out that some jurisdictions permit testimony about whether a
victim exhibited “indications of coaching” after a defendant “opens the door” by
contending that the alleged victim was coached to accuse the defendant. See Sampson,
supra, 38 N.E.3d at 991. We agree that otherwise inadmissible testimony may become
relevant and admissible to respond to an issue introduced into a case by an opposing party.

       The State argues that the defense opened the door in this case in its cross-
examination of Ms. Mohler concerning her interview of Mr. Fallin with his mother.
However, in this case, the exception to the general rule does not apply for a couple of
reasons. First, Ms. Mohler’s interview of Mr. Fallin and his mother concerning the trail
incident took place in late 2014, more than two years after Ms. Drum’s sessions with S in
2012 concerning a different allegation. Second, at the trial, Ms. Drum was asked not only
about signs of “coaching” of S, but also about signs and concerns about fabrication by S
generally, as well as whether S was “incorrect” in describing abuse by Mr. Fallin. If the
exception is construed broadly to encompass any case in which the credibility of the
complaining witness is an issue, the exception will swallow the Bohnert rule.



                                              32
answering questions posed by the polygraph examiner. P. Gianelli, Polygraph Evidence:

Post Daubert, 49 Hastings L.J. 895, 903-6 (1998). The machine produces a detailed report

of those measurements that can be correlated to specific answers given by the person. The

polygraph examiner reviews that report to determine whether that data “indicates

deception” by the person in the answers to particular questions. Id. at 905.

       In the trial of this case, Ms. Drum testified that she looked for certain “signs of

fabrication” – the volunteering of information, repetition of the “exact same phrase,” use

of “too grown up language” – as she questioned S. Much as a polygraph examiner

considers the readings from the machine’s instruments to determine whether there were

indications of “deception,” Ms. Drum considered the form and content of S’s answers for

indications of “fabrication.” Ms. Drum’s testimony in that regard was thus essentially

identical to the testimony a polygraph examiner would give, except based on less precise

and more subjective data.13 While Ms. Drum may not quite have purported to function

herself as a “human lie detector” (as defense counsel suggested at trial), her testimony was

indistinguishable from that of a person who operates a lie detector and reports the results.

       The State also draws a comparison to Brooks v. State, 439 Md. 698 (2014). That

case concerned a violent sexual assault against an adult woman. At the trial of that case, a

SAFE nurse detailed her various findings from a forensic physical examination of the


       13
          A polygraph examination may be open to criticism that it is ultimately based on
the subjective judgment of the particular examiner who determines the significance of the
data collected by the machine. See P. Gianelli, supra, 49 Hastings L.J. at 905 (stating that
“[t]he examiner’s role cannot be overstated” and acknowledging that examiners may lack
adequate training).



                                             33
victim. At the conclusion of that testimony, the prosecutor posed a binary question to the

nurse: were her findings “consistent or inconsistent” with a sexual assault? The nurse

responded that her findings would “verify” that the victim had been sexually assaulted.

This Court held that, while the nurse had perhaps made a poor choice of a synonym, in

context it was clear that she was affirming that her findings were “consistent” with a sexual

assault and not opining on the veracity of another witness. Moreover, the Court noted that

any error would be harmless as there was hardly a need for an expert opinion to establish

that severe injuries suffered by the victim in that case would be consistent with a sexual

assault.

       Testimony similar to that of the SAFE nurse in Brooks was admitted without

objection in this case. As described above, a forensic nurse examiner testified that the

results of her physical examination of S could be consistent with abuse that consisted of

genital touching. By contrast, unlike the nurse in this case or in Brooks, Ms. Drum did not

provide any objective data, but rather just stated her conclusion as to whether S was being

deceptive.

       Summary

       We are reluctant to abandon the general rule that one witness may not opine on the

credibility of another witness’ testimony in a case. While the issue arises here in the

context of an out-of-court statement of a child witness, the rationale for permitting it could

easily apply to in-court testimony and to adult witnesses. Once that door is opened, it is

not hard to imagine that the defense will wish to present an opposing expert who discerns

signs of fabrication where the prosecution’s expert did not. The principle that our system


                                             34
relies on the common sense of jurors to make these difficult credibility judgments will be

lost to a battle of experts.

                                             III

                                         Conclusion

       This was a difficult case for the prosecution. The record shows that the case was

prosecuted zealously, as should any case involving an alleged crime against a child, and

defended zealously, as our system of justice requires.

       It was also evidently a difficult case for a jury. The jury in the first trial could not

reach a verdict on any of the charges. The jury in the second trial at first indicated that it

was hung, but ultimately reached a guilty verdict on three counts of the indictment, all

related to the only incident for which there was evidence other than S’s statements – the

dream that Mr. Fallin reported to his therapist two years later.

       In its effort to support the testimony of its main – and essentially only – witness, the

prosecution elicited what amounted to an endorsement of the credibility of an out-of-court

statement by that witness that the jury did not see and could not evaluate for itself. It

consisted of the expert opinion of Ms. Drum that there were no “signs” – and no need for

“concern” – that the out-of-court statement was fabricated or coached. That testimony

crossed the line that this Court drew in Bohnert and Hutton. We must reverse and remand

for a new trial.

                       JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE
                       REMANDED WITH INSTRUCTIONS TO VACATE THE JUDGMENT OF
                       THE CIRCUIT COURT FOR CHARLES COUNTY AND REMAND THE
                       CASE TO THAT COURT FOR A NEW TRIAL. COSTS TO BE PAID BY
                       CHARLES COUNTY.


                                              35
Circuit Court for Charles County
Case No. 08-K-15-000610

Argued: June 1, 2018
                                         IN THE COURT OF APPEALS

                                                OF MARYLAND

                                                     No. 79

                                             September Term, 2017
                                   ______________________________________

                                             JASON ADAM FALLIN

                                                        v.

                                           STATE OF MARYLAND
                                   ______________________________________

                                               Barbera, C.J.
                                               Greene
                                               Adkins
                                               McDonald
                                               Watts
                                               Hotten
                                               Getty,

                                                   JJ.
                                   ______________________________________

                                    Concurring and Dissenting Opinion by Watts,
                                             J., which Getty, J., joins.
                                   ______________________________________

                                               Filed: July 12, 2018
       Respectfully, I concur that the issue as to expert witness testimony is preserved; I

dissent as to the merits. Over the past several years, society has become more aware of the

pervasiveness of child sexual assault and abuse. One of the hallmark defenses in child

sexual abuse cases is attacking the credibility of the child victim. This case presents the

question of whether an expert witness who has evaluated an alleged victim of child sexual

abuse may testify as to whether the alleged victim showed specified signs of fabrication or

coaching. I would hold that an expert in an appropriate field may testify as to whether he

or she saw any signs of fabrication or coaching on the part of an alleged victim of child

sexual abuse.

       Such testimony is not inconsistent with the prohibition on a witness opining that

another witness was credible. This is because such testimony does not constitute an

opinion that the alleged victim was sexually abused, or that the alleged victim is testifying

truthfully. Where an expert testifies that he or she did not observe any signs of fabrication

or coaching on an alleged victim’s part, the expert does not offer the opinion that, in fact,

the alleged victim is testifying credibly. Instead, the expert simply testifies that he or she

did or did not detect any indications of fabrication or coaching. This testimony allows for

the determination by the trier of fact that the alleged victim was not testifying credibly, but

did not show signs of fabrication or coaching that the expert detected. The expert’s

testimony does not invade the province of the jury, which remains free to assess the alleged

victim’s credibility and find whether the defendant sexually abused the alleged victim.

       The Majority reasons that “[t]he testimony at issue in this case appears to be

indistinguishable from that which this Court found impermissible in” Bohnert v. State, 312
Md. 266, 539 A.2d 657 (1988) and Hutton v. State, 339 Md. 480, 663 A.2d 1289 (1995).

Maj. Slip Op. at 31. I disagree. Bohnert and Hutton are easily distinguishable. In Bohnert,

312 Md. at 278-79, 539 A.2d at 663, this Court held that a trial court erred in allowing a

social worker to opine that an alleged victim was sexually abused. In Hutton, 339 Md. at

504-05, 485, 663 A.2d at 1301, 1291, this Court concluded that a trial court erred in

allowing a psychologist to testify that an alleged victim had been sexually abused, and in

allowing a social worker to testify that child sexual abuse had caused the alleged victim to

suffer from post-traumatic stress disorder. Critically, in Bohnert and Hutton, this Court

explained that the testimony was impermissible because it essentially constituted an

opinion that the alleged victim was credible.

       In contrast to the impermissible testimony in Bohnert and Hutton, an expert’s

testimony about an alleged victim’s lack of signs of fabrication or coaching does not

constitute an opinion that the alleged victim was credible, or that the alleged victim was

sexually abused. With the testimony at issue, the expert applies methodology that the

expert has been trained to use, and gives an opinion as to whether any signs of fabrication

or coaching are present. The expert would be subject to cross-examination. Even if

believed, an expert’s testimony about an alleged victim’s lack of signs of fabrication or

coaching would not conclusively demonstrate that, in fact, the alleged victim was credible.

       As the Majority recognizes, the Court of Special Appeals’s holding in Yount v.

State, 99 Md. App. 207, 636 A.2d 50, cert. denied, 335 Md. 82, 642 A.2d 193 (1994) is not

instructive in this case. See Maj. Slip Op. at 7-8, 29-30. In Yount, 99 Md. App. at 218,

210-11, 636 A.2d at 55, 51-52, the Court of Special Appeals held a trial court did not err


                                           -2-
in allowing a child therapist to testify that it would be normal for a minor to recant a report

of sexual abuse under certain circumstances. This case, of course, does not involve an

alleged victim’s recantation. In its opinion, the Court of Special Appeals asserted that

Yount “clarifies and narrows” Bohnert. Jason Adam Fallin v. State, No. 1083, Sept. Term,

2016, 2017 WL 4570680, at *10 (Md. Ct. Spec. App. Oct. 13, 2017), cert. granted, 457

Md. 396, 178 A.3d 1241 (2018). Clearly, an opinion of the Court of Special Appeals

cannot “narrow” an opinion of this Court. More importantly, contrary to the Court of

Special Appeals’s assertion in this case, in Yount, that Court did not purport to “narrow”

this Court’s holding in Bohnert. Instead, in Yount, 99 Md. App. at 218, 636 A.2d at 55,

the Court of Special Appeals distinguished Bohnert on the ground that, in Yount, the expert

did not testify that the alleged victim’s version of events should be believed and that the

defendant’s version should be disbelieved. Bohnert is simply distinguishable here, just as

it was distinguishable under Yount’s circumstances.

       I disagree with the Majority’s conclusion that Meredith Drum’s “testimony was

indistinguishable from that of a person who operates a lie detector and reports the results.”

Maj. Slip Op. at 33. One of the reasons that lie detector test results are inadmissible is that

they essentially constitute credibility determinations. See Bohnert, 312 Md. at 278, 539

A.2d at 663; United States v. Scheffer, 523 U.S. 303, 313-14 (1998). In contrast to a lie

detector operator, Drum did not offer a credibility determination; instead, she identified

specific signs of fabrication or coaching that she had been trained in her field of expertise

to detect, and testified that she did not detect those signs while interviewing S.L.

       On a related note, the Majority’s discussion of Maryland Rule 5-608 is completely


                                             -3-
inapplicable. See Maj. Slip Op. at 28-29. Maryland Rule 5-608 does not apply here

because it pertains to witnesses who offer lay opinions of other persons’ character for

truthfulness or untruthfulness. Drum was neither a character witness nor a lay witness; she

was an expert in the fields of child abuse disclosure and clinical counseling in child abuse.

Drum’s testimony was subject to Maryland Rule 5-702, which states in pertinent part:

“Expert testimony may be admitted, in the form of an opinion or otherwise, if the court

determines that the testimony will assist the trier of fact to understand the evidence or to

determine a fact in issue.” Comparing Drum’s testimony to the admissibility requirements

of Maryland Rule 5-608 is of no utility.

       I would follow the lead of courts in other jurisdictions that have held that an expert’s

testimony about a lack of signs of fabrication or coaching is admissible at a trial on child

sexual abuse. For example, in State v. Wilson, 795 P.2d 336, 343-44 (Kan. 1990), the

Supreme Court of Kansas concluded that a trial court did not err in allowing an expert’s

testimony that certain circumstances—such as “vocabulary, sentence construction, [and]

consistency over time”—were “unlikely . . . to happen in a child who’s coached.”

(Emphasis omitted). In State v. Champagne, 305 P.3d 61, 67 (Mont. 2013), the Supreme

Court of Montana determined that a trial court did not err in allowing an expert to testify

that she did not detect any indications of coaching while interviewing an alleged victim.

In State v. Baymon, 446 S.E.2d 1, 3-4 (N.C. 1994), where a defendant “attempted to leave

the impression that the [alleged] victim had been coached[,]” the Supreme Court of North

Carolina held that a trial court did not err in allowing an expert to testify “that she had not

picked up on anything to suggest that someone had told the [alleged] victim what to say or


                                             -4-
that the [alleged] victim had been coached.” In Sampson v. State, 38 N.E.3d 985, 992 (Ind.

2015), the Supreme Court of Indiana held that “testimony about the signs of coaching and

whether a child exhibited such signs or has or has not been coached[ is admissible],

provided the defendant has opened the door to such testimony” by calling the child’s

credibility into question. (Footnote omitted). In State v. James W., 866 A.2d 719, 731-32

(Conn. App. 2005), where a defendant attempted to impeach an alleged victim on the

ground that she had been coached, the Appellate Court of Connecticut held that a trial court

did not abuse its discretion in allowing an expert to testify that she did not observe signs of

coaching while interviewing the alleged victim.

       I would hold that the Circuit Court for Charles County did not err in allowing

Drum—a licensed graduate professional counselor whom the circuit court admitted as an

expert in the fields of child abuse disclosure and clinical counseling in child abuse—to

testify that she did not see any signs of fabrication or coaching on the part of the alleged

victim, S.L. Drum’s testimony did not constitute an opinion that S.L. had, in fact, been

sexually abused. And, Drum did not testify that she believed S.L., or that S.L. was credible.

Drum’s testimony did not invade the jury’s province, and was wholly consistent with

Bohnert and Hutton.

       Drum based her testimony on the extended forensic evaluation training that she

received at the National Children’s Advocacy Center in Alabama. Drum testified that,

during that training, she learned about signs of fabrication or coaching. Drum explained

that such signs include a child alleging abuse “out of nowhere[,]” “using the exact same

phrase repeatedly[,]” and “using developmentally inappropriate language”—i.e., “using


                                             -5-
too[-]grown[-]up language[.]” Drum did not render an opinion about S.L.’s credibility;

instead, she measured S.L.’s behaviors against specific factors and testified that none of

those factors were present. In other cases, the expert’s testimony may be the opposite, i.e.,

that signs of fabrication or coaching are present. Under either circumstance, the ultimate

issue of whether child sexual abuse occurred, or whether the witness is credible, remains

an issue for the jury to decide.

       I fear that the majority opinion deprives juries of admissible evidence regarding the

circumstances of an expert’s interview of an alleged victim of child sexual abuse, a crime

that is all too prevalent and repugnant in our society, and in which the credibility of children

is routinely attacked.

       For the above reasons, respectfully, I concur and dissent.

       Judge Getty has authorized me to state that he joins in this opinion.




                                             -6-
