73 Am. U. L. Rev. 1 (2023).

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Abstract

While jurors struggle with determining any witnesses’ credibility, an even more arduous task is determining the credibility of a child victim in a sexual assault case. Due to developmental immaturity, children lack important recall and communication skills, and the well-established procedures of direct and cross examination are ineffective at producing accurate and complete trial testimony. Despite the adversarial system being proven ineffective in these contexts, American courts remain hesitant to admit expert testimony based on established psychology tools. Specifically, courts have questioned the application of Statement Validity Assessments (“SVAs”), to assist jurors in evaluating witness credibility, as they believe such testimony is unreliable and invades the province of the jury. However, using SVAs to assist jurors in evaluating witness credibility is not a radical or new concept, with inquisitorial and some adversarial criminal justice systems outside the United States using them for decades. These expert witnesses conduct SVAs on child witnesses’ pretrial allegations to form an opinion as to the veracity of the witnesses’ truthfulness in those statements and testify to the results in court.

This Article discusses the admissibility of expert testimony using SVAs as an aid to jurors in their assessment of child witness credibility in sexual assault cases in the United States. First, the Article addresses the difficulties jurors have in determining the credibility of witnesses, highlighting the inadequacies of the current adversarial system in producing accurate testimony because of the unique challenges child witnesses present. Second, the Article demystifies the three-step SVA process, detailing the SVA foundational research and routine across the globe. Third, the Article addresses the reliability of the SVA under Federal Rule of Evidence 702 and the Daubert standard. Specifically, this
Article advocates that SVA evidence does not deprive the jury of its ultimate determination of credibility but serves as a reliable tool that the jury can use to decipher such challenging types of evidence.

* Associate Professor of Law and Director of the Center for Excellence in Advocacy, Stetson University College of Law.