State of Montana, Plaintiff and Respondent v. Kathryn Harris, Defendant and Appellant (Montana 1991)

Summary

The court reversed Harris's convictions for two counts of felony sexual assault and remanded for a new trial. It held that the therapist improperly vouched for a testifying child's credibility, that the therapist's hearsay testimony identifying Harris as the perpetrator was inadmissible and cumulative, and that the trial court abused its discretion by rereading the child's entire testimony to the jury during deliberations. Justices Weber and Harrison, dissenting, would have upheld the convictions and admitted the therapist's testimony.

Holding

Expert testimony concerning the credibility of a testifying child. An expert generally may not comment directly on the credibility of an alleged victim. The limited exception for child sexual abuse cases applies only when the victim testifies and the defense has placed credibility in issue; because Harris did not attack Robby's credibility, admitting the therapist's testimony that he was honest and trustworthy was reversible error.

Admission of therapist testimony recounting the children's hearsay statements and identifying Harris as the perpetrator. The children's statements to the therapist were improperly admitted. Statements to a child victim's therapist were not admissible under the medical diagnosis and treatment exception in this setting, and the residual exceptions were not satisfied because the statements identifying Harris were not more probative than the available testimony and, as to Robby, the declarant was available and testified.

Rereading an entire witness's testimony during jury deliberations. A trial court may clarify a jury's focused question about testimony, but it may not reread an entire witness's testimony merely because the jury requests it. The court abused its discretion by having Robby's full testimony read in open court because the rereading placed undue emphasis on his testimony over the other evidence.