Fallin v. State
188 A.3d 988
Md.2018Background
- Defendant Jason Adam Fallin was retried on charges alleging he sexually abused his daughter (S) when she was 5–8; most evidence consisted of S’s in‑court testimony and out‑of‑court statements.
- In 2012 forensic counselor Meredith Drum conducted four sessions with S and testified at retrial that S reported three incidents; Drum repeatedly stated she observed no signs of fabrication or coaching and had no concerns about fabrication.
- A 2014 investigator, Melissa Mohler, relayed additional out‑of‑court statements by S; Mohler was not among the professional categories listed in Maryland’s “tender years” hearsay statute.
- Defense objected at trial that Drum’s statements about lack of fabrication impermissibly vouched for S’s credibility under Bohnert and related precedent; the court allowed limited testimony and gave a brief jury reminder that credibility is for the jury.
- The Court of Special Appeals affirmed; the Court of Appeals granted certiorari, held that Drum’s opinion that S showed no signs of fabrication improperly intruded on the jury’s role, reversed, and remanded for a new trial.
Issues
| Issue | Fallin’s Argument | State’s Argument | Held |
|---|---|---|---|
| Admissibility of expert testimony that the child showed "no signs of fabrication/coaching" | Such testimony is the functional equivalent of opining the child is truthful and thus invades the jury’s exclusive province to assess credibility (Bohnert) | Expert may testify about objective signs of fabrication/coaching to help the jury (distinguishing Bohnert; Yount support) | Court: testimony that Drum observed no signs of fabrication impermissibly vouched for the witness and was inadmissible; reversible error |
| Need for curative jury instruction after Drum’s improper testimony | Requested instruction expressly telling jury credibility is for them and experts should not opine on truthfulness | State opposed broad curative language as inconsistent with Yount | Court did not reach this issue on the merits because reversal was required on the primary error |
| Admission of Mohler’s hearsay (out‑of‑court statements by S) under CP §11‑304 (tender years) | Mohler’s testimony was inadmissible because she did not fit the statutory list of professionals | State argued harmless error since S testified to same matters | Court remanded for retrial on other grounds and did not need to decide harmlessness after reversing for Drum’s testimony |
| Preservation of objections to Drum’s testimony | Objections were timely and included a continuing objection under Bohnert | State argued some objections were waived or ambiguous | Court: objections were preserved; defense made repeated, clear Bohnert‑based objections and obtained a continuing objection |
Key Cases Cited
- Bohnert v. State, 312 Md. 266 (court held expert testimony opining the child was sexually abused impermissibly vouched for witness credibility)
- Hutton v. State, 339 Md. 480 (reiterated that experts may not assess an individual witness’s credibility; expert credibility assessments can be error)
- Yount v. State, 99 Md. App. 207 (permitting expert testimony about general phenomena—e.g., recantation—so long as expert does not opine on the complainant’s specific credibility)
- Brooks v. State, 439 Md. 698 (discussion of expert testimony about whether physical findings are consistent with assault; distinguished from improper credibility vouching)
- United States v. Binder, 769 F.2d 595 (9th Cir.) (expert testimony crossing from general context into saying particular children could be believed risks impermissible vouching)