Venalonzo v. People
2017 CO 9
| Colo. | 2017Background
- Two child victims (A.M., age 7; C.O., age 8) reported sexual touching; both gave statements, were interviewed at a children’s advocacy center, and testified at trial. No physical evidence or other eyewitnesses.
- Forensic interviewer (Ann Smith) testified about her training, interview techniques, that children commonly misstate peripheral details, and that A.M. engaged in ‘‘reproduction’’ gestures; she was not disclosed as an expert pretrial.
- Mother of A.M. testified that A.M. showed no signs of lying and was not sophisticated enough to fabricate the allegation.
- Investigating officer, after cross-examination about children’s suggestibility, on redirect testified that children make up trivial stories but not serious accusations; defense objected as improper bolstering but had elicited the subject on cross-exam.
- Defendant (Venalonzo) convicted of sexual assault on a child and attempted sexual assault; appealed arguing (1) interviewer’s testimony was expert testimony requiring expert disclosure and (2) interviewer’s, mother’s, and officer’s testimony impermissibly vouched for the children’s truthfulness.
- Supreme Court reversed: held some interviewer testimony properly lay, other portions crossed into expert territory; interviewer’s and mother’s testimony impermissibly bolstered victims; officer’s testimony was admissible because defendant opened the door; convictions reversed and remanded.
Issues
| Issue | Prosecution's Argument | Venalonzo's Argument | Held |
|---|---|---|---|
| Whether forensic interviewer’s testimony was lay (CRE 701) or expert (CRE 702) | Testimony about interview protocol, typical child behaviors, and comparisons to other child interviews are lay opinions rationally based on the interviewer’s perceptions and experience | Interviewer’s conclusions (e.g., significance of reproduction, core vs peripheral details) required specialized training and thus were expert testimony that should have been disclosed | Court: Determine by basis for opinion. Descriptions of protocol and common child behaviors admissible as lay; testimony applying specialized concepts (reproduction significance; core vs peripheral weighting) was expert and improperly admitted as lay. |
| Whether interviewer’s testimony improperly bolstered victims’ credibility (CRE 608(a)) | Testimony explained behaviors and inconsistencies to help jury evaluate credibility, not to state the victims were truthful | Testimony effectively vouched for the children by implying typicality of their behaviors and justifying inconsistencies | Court: Interviewer’s comparative testimony and statements implying prosecutions proceeded because interviews supported charges constituted improper bolstering and violated CRE 608(a). |
| Whether mother’s testimony about daughter’s lack of sophistication/motive improperly vouched for truth | Mother’s observations about her child’s maturity and behavior are probative of credibility and within lay testimony scope | Such statements amounted to expressing belief that daughter was telling the truth about this specific incident, thus improper bolstering | Court: Mother’s statements communicated that the child was telling the truth in this instance and violated CRE 608(a); admission was an abuse of discretion. |
| Whether investigating officer’s testimony that children fabricate only trivial stories was improper bolstering | Officer’s redirect response contextualized his cross-examination answer; admissible because defendant opened the door | Such testimony improperly vouched for victims’ truthfulness | Court: Defendant opened the door by eliciting testimony about children making things up on cross; redirect to clarify types of lies was permissible and not an abuse of discretion. |
Key Cases Cited
- People v. Stewart, 55 P.3d 107 (Colo. 2002) (distinguishing lay from expert opinion based on whether specialized training is required)
- People v. Snook, 745 P.2d 647 (Colo. 1987) (expert testimony that children tend not to fabricate sexual abuse allegations held inadmissible as tantamount to vouching)
- People v. Wittrein, 221 P.3d 1076 (Colo. 2009) (testimony generalizing about child sophistication to fabricate allegations deemed improper)
- People v. Gaffney, 769 P.2d 1081 (Colo. 1989) (distinguishing admissible expert testimony explaining victim behavior from inadmissible opinion as to truthfulness)
- People v. Veren, 140 P.3d 131 (Colo. App. 2005) (police officer’s inferential testimony requiring specialized knowledge should be treated as expert opinion)
- State v. Gonzalez, 834 A.2d 354 (N.H. 2003) (social worker’s statements that recantations/delays are common constitute expert testimony because they may be counterintuitive to laypersons)