48 Mass. App. Ct. 143 | Mass. App. Ct. | 1999
Whether the testimony of the ten year old complaining witness was credible was the paramount issue in the trial of the defendant on charges of unnatural intercourse with a child under sixteen.
Other jurisdictions directly confronting the question reflect a disposition to exclude questions about religious belief for the purpose of buttressing a witness’s credibility. See State v. Thomas, 130 Ariz. 432, 435-437 (1981) (en banc) (reversing because prosecutor argued that a witness who held strong religious convictions was more to be believed than the defendant who was not so described); People v. Wells, 82 Mich. App. 543, 546 (1978) (holding that it was reversible error to allow prosecutor to convey to the jury that complainant was more believable than the defendant because she attended church); Commonwealth v. Fawcett, 297 Pa. Super. 379, 389 (1982). In Fawcett, the line of questioning much resembles that of the prosecutor in the instant case, but the case did not involve a child witness. As in Michigan, Pennsylvania by statute forbade the
In this case, unlike the cases referred to above, the complainant was a child.
Questions whether the child had been instructed in catechism, however, put the prosecutor over the top. One may also ask whether, with a child as old as ten, testimonial competence in the sense of understanding the significance of truth telling ought not to be assumed until attacked. See 6 Wigmore, Evidence § 1821 (Chadbourn rev. ed. 1976); 1 McCormack, Evidence § 62 (4th ed. 1992). The prosecution correctly anticipated an attack on the complainant’s credibility and, as we have said,
To the extent that allowance of some of the questions put by the prosecutor was error, it was error entirely without consequence, as the following excerpt from the trial transcript demonstrates:
Q (by prosecutor). “Do you believe in God?”
A (by the complainant). “Yes.”
Q. “And has your mommy taken you to catechism before?”
A. “Yes.”
Q. “And did you study about God there?”
A. “Yes.”
Q. “Do you realize when you come into court and swear to God to tell the truth that that is very serious?”
A. “Yes.”
Q. “If you don’t tell the truth, does something happen to you?”
A. “Yeah.”
Q. “What is that?”
A. “My mom would ground me.”
However much the prosecutor may have wanted to persuade the jury that the complainant was to be believed because she was God-fearing, his attempt misfired. The witness was more concerned about displeasure and punishment by her mother than displeasure and punishment by God. This could not have been lost on the jury, and there was no reversible error.
Judgments affirmed.
The defendant had also been indicted on two counts of indecent assault and battery on a child under age fourteen. Those charges were not brought to trial and were dismissed following trial.
“Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced.” Proposed Mass.R.Evid. 610. Those rules have not been adopted but were stated by the Supreme Judicial Court to have “substantial value as a comparative standard in the continued and historic role of the courts in developing principles of law relating to evidence.” Announcement of the Justices of the Supreme Judicial Court (Dec. 30, 1982), reprinted in Flannery, Saris, Sosman & Carney, Massachusetts Evidence: A Courtroom Reference at A1-2 (MCLE rev. ed. 1999).
Massachusetts has also enacted a statute which provides that “[a] person not a believer in any religion shall be required to testify truly under the penalties of peijury, and evidence of his disbelief in the existence of God may not be received to affect his credibility as a witness.” G. L. c. 233, § 19, as appearing in St. 1973, c. 964.
The Michigan Court of Appeals also relied upon a Michigan statute, Mich. Comp. Laws Ann. § 600.1436 (West 1996), which, in pertinent part, reads: “No witness may be questioned in relation to his opinions on religion, either before or after he is sworn.” The Pennsylvania statute reads: “No witness shall be questioned, in any judicial proceeding, concerning his religious belief; nor shall any evidence be heard upon the subject, for the purpose of affecting either his competency or credibility.” 42 Pa. Cons. Stat. Ann. § 5902(b) (West 1982).
Although State v. Thomas, supra, involved questions about the religious convictions of the fourteen year old victim, in that case the questions were intended to bolster the witness’s credibility; there was no question, as here, about the witness’s competency to testify. State v. Thomas, supra at 435.
The defendant’s counsel objected to this line of questioning.