New Trial for Teen’s Claims of Sex Assault

     DALLAS (CN) – A Texas appeals court vacated the conviction of a man charged with sexually assaulting a child, finding that expert witnesses cannot use statistics to grade victim honesty.
     Scott Edward Wiseman had been sentenced to 20 years in state prison after a jury found him guilty of engaging in sexual relations with a 13-year-old girl who went to middle school with his daughter.
     The girl, who is not named in the lawsuit, testified that she met Wiseman when he came to her house in the summer of 2005, along with a 14-year-old boy with whom she had a sexual relationship.
     The boy, I.R., allegedly introduced the 42-year-old Wiseman as his uncle.
     “The complainant testified that over the course of two different weeks in July and August, she engaged in repeated sexual activity with both I.R. and appellant,” according to the appeals court. “The sexual conduct was both oral and vaginal, and the males penetrated her in turn and, on a number of occasions, simultaneously. The complainant initially resisted appellant’s sexual advances, but she testified she eventually participated in the sexual conduct with appellant because I.R. wanted her to do so, and she loved I.R.”
     The girl says she later learned that Wiseman was the father of a classmate with whom I.R. was also sexually involved, and that I.R. was living with the Wisemans.
     Wiseman denied having had any sexual contact with the girl.
     At trial, an expert for the state, Dr. Ashley Lind, testified that only 2 percent of children lie about child sexual assault allegations, and that 77 percent of those false allegations are limited to child custody and divorce cases.
     A three-judge panel with the state’s 5th Court of Appeals overturned the conviction after finding that the expert opinion improperly relied on speculation.
     “Texas law is settled that an expert cannot give an opinion as to whether a person-or a class of persons to which the complainant belongs-is truthful,” Justice Kerry Fitzgerald wrote for a three-judge panel. “An expert who testifies that a class of persons to which the victim belongs is truthful is essentially telling the jury that they can believe the victim in the instant case as well. This kind of testimony does not assist the jury as rule 702 contemplates … such testimony ‘did not aid, but supplanted, the jury in its decision on whether the child complainant’s testimony was credible.'”
     The state also failed to show that Wiseman “opened the door” to statistical opinion by asking Lind whether the victim belonged to a class of people that is untruthful.
     “But appellant asked generally about teenagers, and prior to Lind’s taking the stand three teenagers [the complainant, her best friend and boyfriend] had testified in the case,” Fitzgerald wrote. “Because the teenage witnesses’ testimony conflicted in a number of ways, the issue of their credibility was already squarely before the jury. There was no reason to believe the defense questions would inure solely to appellant’s benefit: jurors could make their own judgments concerning which of the teenagers they found believable.”
     “The state went far afield in showing that few, if any, children under the age of seventeen lie about sexual abuse,” the judge added. “In so doing, the state cast the complainant as the truth teller. It substituted the expert witness for the jury, whose responsibility it was to assess the credibility of witnesses. We cannot say that the general questions concerning credibility propounded in this case opened the door to specific expert opinions that have the effect of taking the credibility issue away from the jury. We conclude the defense did not open the door to the expert’s statistical opinion on false allegations in this case.”
     The case ultimately turns on credibility, according to the appeals court.
     “Nearly every question of every witness at trial had implications for the jury’s determination of the credibility of the complainant and appellant,” Fitzgerald wrote. “This is not an unusual circumstance in a sexual abuse case, where ‘a successful conviction often depends primarily on whether the jury believes the complainant, turning the trial into a swearing match between the complainant and defendant.’ We decline the state’s invitation to speculate on what ‘inference’ the jury may have drawn from appellant’s questioning. We can fairly conclude that the testimony elicited from Lind as a result of these few inquiries was obviously detrimental, not beneficial, to appellant. We certainly cannot conclude that the exchange, by any interpretation, created a false impression. Instead, this exchange likened the characteristics inquired about to society in general and not solely to teenagers.”

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