Improper Rejection of Evidence and Expert Testimony

Facts of the Case

John Tim Jenkins, a married father of three children, rejoined the Central Kentucky Big Brothers Program in 2001, after his son left for college. After an extensive application and screening process, he was matched with J.S. in September 2001. He engaged in activities with J.S., including attending ballgames, bike riding, swimming, and the movies. J.S. occasionally ate dinner with Mr. Jenkins, his wife, and family. J.S.'s mother had no concerns about the match between her son and Mr. Jenkins and, in fact, observed that he seemed happy with his Big Brother.

On October 8, 2003, after a full day at school, Mr. Jenkins took eight-year-old J.S. and his six-year-old friend B.F. swimming. Two lifeguards became suspicious of Mr. Jenkins' play with the boys, “swimming up under them and lifting them up out the water” and seemingly “nibbling on their thighs,” (Jenkins, p 706). They thought that Mr. Jenkins was kissing the boys' faces and legs. The head lifeguard recognized the activity as a game in which a shark or alligator pursues the other swimmers, and he was not concerned.

After swimming, Mr. Jenkins and the boys were followed by the lifeguard supervisor as they headed for the men's locker room. He observed Mr. Jenkins and J.S. naked and showering together in the handicapped shower stall. The head lifeguard joined the supervisor and noted that B.F. had joined Mr. Jenkins and J.S. in the shower. They saw no touching or other inappropriate behavior.

Afterwards, B.F. told the lifeguards that Mr. Jenkins was a Big Brother. This increased their suspicions, because Mr. Jenkins was not a relative. They called for the police. Both boys were driven in police vehicles—B.F. to his home and J.S. to a police station. By the time Detective Quails arrived, after 10:00 p.m., J.S. was “scared and crying,” and so they drove to a quieter station, arriving at about 11 p.m. J.S.'s mother, accompanied by a social worker, arrived shortly thereafter. She was informed about the detective's suspicions that J.S. had been sexually abused.

Near midnight, Detective Quails initiated a recorded interview with J.S., even though he had no special training in interviewing minors. His mother was not allowed to be present. During the first 30 minutes, he denied any allegations of sexual abuse. However, “[a]fter unrelenting and suggestive questioning, J.S. finally agreed … that he had been touched once” (Jenkins, pp 707–708). The interview ended between 1:30 and 2:00 a.m., when J.S. was released to his mother.

In a second recorded interview conducted the next day by the social worker and Detective Quails at J.S.'s home, J.S. agreed with the detective's suggestions that there was a second touching. Subsequently, he was enrolled in individual and group therapy focused on sexual abuse.

In January 2004, Mr. Jenkins was indicted on two counts of first-degree sexual abuse related to J.S., and two counts of indecent exposure for showering in the nude in the presence of both boys. Five months after J.S.'s sex abuse therapy began, two counts of sodomy were added following an interview of J.S. by a forensic interviewer.

During the trial, the defense asked Dr. Terence Campbell, a forensic psychologist, to testify regarding improper interviewing techniques that may result in unreliable reporting by a child witness. The court held an extensive Daubert hearing, in which Dr. Campbell testified at length, pointing out serious problems with the interview techniques used by Detective Quails. The trial court, acting on its understanding that Kentucky law prohibited testimony that would appear to comment on the credibility of a child witness, ruled that the testimony was inadmissible; credibility of a witness was a matter for the jury and, hence, beyond the purview of an expert witness. The trial court also disallowed playing the interview tapes on hearsay grounds; jurors may inadvertently focus on the truthfulness of the information contained in them, rather than on the interviewing techniques. The trial court found Mr. Jenkins guilty of one count of first-degree sexual abuse and one count of indecent exposure to J.S. and not guilty of the other charges. Mr. Jenkins was sentenced to five years on the sexual abuse charge and fined $250 on the indecent exposure conviction.

Mr. Jenkins appealed. The court of appeals held that Dr. Campbell's testimony was not precluded by Kentucky law and remanded the case to the trial court to make findings under Kentucky Rule of Evidence 702 (1992). It rejected the other errors.

Mr. Jenkins moved for discretionary review, which was granted by the Kentucky Supreme Court. The court addressed “the admissibility of expert evidence of suggestive interview techniques with children; the admissibility of the interview tapes; and the sufficiency of evidence to support the indecent exposure conviction” (Jenkins, p 709).

Ruling and Reasoning

The Kentucky Supreme Court ruled that the trial court erred in denying the defense's request for an expert witness on the subject of the use of suggestive interviewing techniques on children. It reversed Mr. Jenkins' conviction and remanded for a new trial.

In reversing the trial court's ruling that expert witness testimony was inadmissible because it would improperly comment on the credibility of the child witness (an appraisal reserved for the jury), the supreme court observed that testimony on improper interview technique spoke to the reliability of the witness's recollection and not the truthfulness or credibility of the witness. The “the trial court erred in ruling that the evidence was inadmissible as a matter of law” (Jenkins, p 711), since “such evidence assumes the witness is testifying truthfully—but may be mistaken in his or her belief” (Jenkins, p 711, emphasis in original). The role of the expert would be to opine on how the information was obtained, rather than on the veracity of the witness's statements.

The supreme court had not before considered the admissibility of expert testimony on improper interviewing, but noted that many other states have done so. Dr. Campbell's testimony was deemed to meet the Daubert standard for expert witness testimony, as it was reliable and relevant, because the theories and principles governing the techniques for interviewing children are well supported in the scientific evidence and are outside the knowledge of the average juror.

With regard to rejection of the interview tapes on “hearsay grounds,” the Supreme Court held that the trial court erred in not admitting them, because they “were offered as proof that the investigation was flawed … by showing the coercive and suggestive manner in which the interviews were conducted and the allegations obtained” (Jenkins, p 713). The court observed that the truth of the matter asserted in the tapes was not at issue; therefore, admitting the tapes would be a proper nonhearsay use.