Chapter 9 - § 9.9 • REHABILITATION USING SYNDROME EVIDENCE TO COUNTER IMPLAUSIBILITY IMPEACHMENT

• Jurisdiction: Colorado

§ 9.9 • REHABILITATION USING SYNDROME EVIDENCE TO COUNTER IMPLAUSIBILITY IMPEACHMENT

§ 9.9.1—Introduction to Syndrome Evidence to Explain Incongruent Behavior or Testimony and Rehabilitate Witnesses

Another set of conditions used to explain otherwise implausible behavior (prior behavior that is inconsistent with current testimony) or testimony, and thus for rehabilitation, is the existence of a post-abuse physical or psychological syndrome, i.e., Battered Woman Syndrome (BWS), Child Sexual Assault Syndrome (CSAS), or Sexually Abused Child Accommodation Syndrome (SACAS).

Syndrome evidence is used to explain a victim-witness's behavior, state of mind, or conduct that may otherwise appear inconsistent with expected conduct. Charles Bleil, "Evidence of Syndromes: No Need for a 'Better Mousetrap,'" 32 S. Tex. L. Rev. 37, 40 (1990) (not previously cited in Colorado). The use of syndrome evidence has been met with some criticism. See Alan M. Dershowitz, The Abuse Excuse: And Other Cop-Outs, Sob Stories and Evasions of Responsibility (Little, Brown & Co. 1994); Stephen J. Morse, "Excusing and the New Excuse Defenses: A Legal and Conceptual Review," 23 Crime & Just. 329, 363 (1998) (citing Joe Sharkey, "You're Not Bad, You're Sick: It's In the Book," N.Y. Times, Sept. 28, 1997, § 4, at 1) (together discussing what are labelled "new syndrome" excuse defenses, such as "battered woman syndrome," "Vietnam syndrome," "child sexual abuse syndrome," "Holocaust survivors syndrome," "urban survivor syndrome," "rotten social background [syndrome]," "adopted child syndrome," and "road rage [syndrome]"). These are mentioned to alert the practitioner that the use of syndrome evidence may be met with skepticism.

Syndrome evidence can be used in Colorado to rehabilitate a witness who is impeached for apparently inconsistent behavior, such as one who recants his or her testimony on the stand and thus needs to be rehabilitated; or one who testifies to a crime at trial, but whose post-event behavior or statements are inconsistent therewith. In these situations, the existence of the syndrome is used to explain and rebut the inference of non-credibility occasioned by the witness's behavior.

§ 9.9.2—The Problem of Vouching in Syndrome Cases

Understanding the concept of "vouching" or "bolstering" and how it operates is essential to presenting and excluding any type of syndrome evidence. This is especially true because in many syndrome cases the outcome of the case may turn on the victim-witness's credibility. Venalonzo v. People, 388 P.3d 868, 877 (Colo. 2017). Witnesses may not offer their opinions regarding the credibility of another witness.

The general rule is that while no witness may offer an opinion regarding the credibility of another witness (vouching), Id. at 877-78, experts may testify concerning whether a victim's behavior or demeanor is consistent with the typical behavior of victims of abuse. People v. Glasser, 293 P.3d 68, 78 (Colo. App. 2011); People v. Rail, 2016 COA 24, aff'd on other grounds, 2019 CO 99.

This broad rule may be limited if it appears that the expert is acting as a lay witness instead of an expert, and venturing too close to vouching for the testimony given by a witness on the stand.

We conclude that the interviewer's testimony violated CRE 608(a) because it improperly bolstered the children's credibility and led to the impermissible inference that the children were telling the truth about the incident. . . . [The only purpose for admitting this evidence was to bolster the children's credibility]. Admitting this evidence did not make any other fact at issue more or less probable. . . . We conclude that the trial court abused its discretion in admitting this testimony.

Venalonzo, 388 P.3d at 877-78; See also People v. Short, 425 P.3d 1208 (Colo. App. 2018) (therapist's comments could not be interpreted as conveying an opinion about the victim's credibility because the therapist did not witness the victim's statements; however, grandmother's testimony that the victim "normally would not lie" was improper).

In Venalonzo, a child forensic interviewer's testimony was found to tread too close to impermissible bolstering, because the witness began comparing the child victim's specific behavior to that of other abused children. The court held that this improperly bolstered the child's credibility and implied that the child was telling the truth on the stand. Venalonzo, 388 P.3d at 878. Thus, if the syndrome expert's testimony does not make an issue (other than the credibility of the syndrome sufferer) more or less likely, and does not go to a substantive element of the case, an argument can be made to exclude it.

Concerns about bolstering testimony can be reduced by providing experts who have not directly met with the victims. This was the approach taken in the Short case:

[T]he

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