No. 90-261 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 9 1 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJOSEPH P. HENSLEY, 

Defendant and Appellant. 

L;I -4mitL 

CLERK OF SUPREME COURY 

STATE OF MONTANA 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert S. Keller, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James G. Hunt, Dix and Hunt Law Firm, Helena, 

Montana. 

For Respondent: 

Marc Racicot, Attorney General, Helena, Montana; 

Jennifer M. Anders, Assistant Attorney General, 

Helena, Montana; Scott B. Spencer, Lincoln County 

Attorney, Libby, Montana. 

Filed: 

Submitted on briefs: September 9, 1991 

Decided: November 19, 1991 

I 

Clerk 
Justice R. C. ~c~onough delivered the Opinion of the Court. 

Defendant, Joseph Hensley, appeals from a decision by a jury 

of the Nineteenth Judicial District, Lincoln County, convicting him 

of sexual intercourse without consent. Hensley was sentenced to 20 

years in prison. We reverse and remand for a new trial. 

The issues on appeal are: 

1. Whether the District Court erred in admitting the testimony 

of Ann Anderson, a social worker regarding the credibility of a 

sexual abuse victim. 

2. Whether the District Court erred in allowing Ann Anderson 

to testify about another report of abuse concerning defendant's 

wife and son. 

3. Did the District Court err in considering the results of 

defendant's polygraph examination for sentencing? 

4. Did the District Court err in refusing to allow defense 

witness to testify on rebuttal? 

Defendant Joseph Hensley, was convicted of molesting his 

natural daughter, E.H., between 1980 and 1985 while they resided in 

Lincoln County. According to the allegations made by E.H., Joseph 

Hensley entered her room two or three times a week between 1980 and 

1985. According to E.H.'s testimony, the defendant performed oral 

sex on her, digital penetration, and at times, made her massage his 

penis. 

The victim did not report these instances to anyone until 1989 

when after arguing with her mother, her mother threatened to send 

E.H. to live with her father in California. Because E.H. and her 

2 
mother were not getting along at the time, E.H. was living with 

another woman in the community. This woman encouraged E.H. to 

report the incidents because E.H. was having trouble sleeping at 

night. E.H. reported the incidents, first to Pat Warneke, a 

probation officer, then to Ann Anderson, a social worker for the 

Department of Family Services. 

On August 10, 1989, an information was filed in Lincoln County 

District Court charging Hensley with sexual intercourse without 

consent. On January 4, 1990, the defendant was convicted of the 

above crime. This appeal followed. 

I 

Whether the District Court erred in admitting the testimony of 

Ann Anderson, a social worker, regarding the credibility of a child 

abuse victim. 

At trial, E.H. testified that the family lived in three 

different trailers during the time the incidents took place. When 

the family moved into the first trailer E.H. testified she shared 

a bedroom with her two brothers. Approximately halfway through 

their stay in the first trailer she moved into her own room. From 

then on E.H. testified she had her own room unless relatives, most 

often her grandmother, came to visit. During these visits, E.H. 

bunked with her brother, but most of the time she stayed on the 

couch. 

Testimony from other family members indicated that E.H.'s 

grandmother shared a room with E.H. for extensive periods of time 

during the five year period. E.H.'s younger brother testified he 
never saw their father go into E. H. Is room at night. E. H. 's mother 

testified on cross-examination that she thought E.H. was lying 

about the allegations E.H. made against her father. 

The State called Ann Anderson, a social worker, as a rebuttal 

witness. The testimony was admitted after objection by the 

defendant. Anderson testified as follows: 

Q. And do you have any reason to doubt E.H.'s 

truthfulness in this case? 

A. NoIdon't. 

Q. Has there been anything that you have seen that you 

are trained in professionally that you use to judge 

her truthfulness that indicates she is untruthful? 

A. No. 

We have previously stated that the credibility of a witness 

lies exclusively within the province of the trier of fact. "Expert 

testimony regarding credibility improperly invades the jury's 

function by placing a stamp of scientific legitimacy on the 

victim's allegations. Therefore, we generally will not allow an 

expert witness to comment on the credibility of the alleged 

victim." State v. Harris (1991), 48 St. Rep. 62, 63, 808 P.2d 453, 

455. (Citations omitted.) 

However, we have carved out an exception to the rule in the 

instance that a young child makes an allegation of sexual abuse and 

expert testimony could assist the jury. a. at 455. The exception 

is further narrowed in that the child must testify at trial, the 

child's credibility -must be brought into question, and the expert 

witness must be properly qualified. State v. Sheffelman (1991),- 

Mont .-, P. 2d , (Cause No. 90-220, decided November 18, 

1991). Here the qualifications of the expert were not challenged. 
Under the circumstances of this case, when E.H. testified at 

trial she was approximately one month shy of seventeen years of 

age. She testified that her father sexually abused her over a five 

year period. She further testified that she had her own room for 

the majority of time during those five years. E. H. 's two brothers, 

her father and mother contradicted that testimony, alleging that 

E.H.'s grandmother and brother often visited the family home which 

necessitated that E.H. share her room. E.H.'s credibility was 

brought into question when E.H.'s mother testified, in response to 

a question on cross-examination by the county attorney, that she 

thought E.H. was lying about the allegations E.H. made against her 

father. 

Even assuming that E.H.'s credibility was properly challenged, 

there is a question as to whether the testimony of Ann Anderson 

regarding this sixteen year-oldts credibility was proper. 

Our earlier cases in which we allowed expert testimony as to 

the credibility of a child sexual abuse victim involve very young 

children. In State v. Geyman (1986) 224 Mont. 194, 729 P.2d 475, 

the victim was nine years old. In State v. French (1988), 233 

Mont. 364, 760 P.2d 86, we upheld the district court's ruling that 

the school counselor could offer opinion testimony that the six 

year old victim was telling the truth. 

Commentators have suggested that in limited circumstances an 

expert witness may aid the jury by testifying on the credibility of 

the child witness. Myers, Expert Testimony in Child Sexual Abuse 

Litiqation, 68 Neb.L.Rev. 121, 127 (1989): 
[wlhile qualified experts possess specialized knowledge 

regarding certain aspects of credibility, expert capacity 

to detect lying and coaching is too limited to justify 

admission of generalized credibility testimony. 

While generalized credibility testimony is properly 

excluded, circumstances exist where narrowly tailored 

expert testimony may be proper to rebut certain attacks 

on credibility. For example, if the defense asserts or 

intimates strongly that children as a group lie about 

sexual abuse, it seems fair to permit rebuttal expert 

testimony . . . 

In State v. Haseltine (1984), 120 Wis.2d 92, 352 N.W.2d 673, 

the Wisconsin Appeals Court held it was error to admit expert 

testimony as to whether a sixteen year old was an incest victim. 

The court said, "No witness, expert or otherwise, should be 

permitted to give an opinion that another mentally and physically 

competent witness is telling the truth." The court went on to 

distinguish this case from other sexual abuse cases where expert 

testimony would be helpful to the jury. Here E.H. was sixteen 

years old, was a competent witness, and was under no physical or 

mental disability. A jury is capable of assessing the credibility 

of such a witness. We conclude the admission of this testimony was 

erroneous and is reversible error. 

Whether the District Court erred in allowing Ann Anderson to 

testify about another report of abuse concerning defendant's wife 

and his son. 

At the time of trial Hensley, through his counsel, objected to 

testimony by Ann Anderson regarding an earlier report of abuse 

involving defendant's wife and son on relevancy grounds. We agree 

with the defendant and hold that the testimony was irrelevant to 
defendant's guilt or innocence, which was the sole issue at trial. 

Did the District Court err in considering the results of 

defendant's polygraph examination during sentencing? 

Section 37-62-302, MCA, provides that: [r] esults of a 

polygraph examination or other test given by an examiner may not be 

introduced or admitted as evidence in a court of law." In 

expanding this section we have prohibited the introduction of 

polygraph examination results in any proceedings in Montana courts 

of law. State v. Staat (1991), 48 St.Rep. 331, 811 P.2d 1261. The 

introduction and consideration of the results of a polygraph 

examination was erroneous. 

Did the District Court err in refusing to allow a defense 

witness to testify on rebuttal? 

Because we reverse and remand for a new trial, we do not 

address this issue on appeal. 

This judgment is reversed and the cause is remanded to the 

District Court for a new trial. 1 

not participate in this decision. 
Justice Terry N. Trieweiler dissenting in part and concurring in 

part. 

I dissent from the opinion of the majority. I would affirm 

the District Court. 

Ann Anderson is a social worker who, at the time of trial, had 

been employed by the State Department of Family Services for the 

previous 11 years. She had a master's degree in social work. Her 

professional duties related primarily to the investigation of 

sexual abuse cases. In the ten years prior to giving her 

testimony, she had participated in the investigation of 

approximately 240 such cases. In addition, she had attended a 

number of workshops every year that dealt with sexual abuse, and 

had been trained to investigate complaints and evaluate their 

veracity. 

Ms. Anderson testified that she was responsible for 

investigating the complaint of the victim in this case, and in the 

course of that investigation had talked to her many times. Ms. 

Anderson explained what types of behavior social workers look for 

in evaluating the veracity of similar complaints, and answered 

questions about whether those forms of behavior existed in this 

case. For example, she explained what the appropriate emotional 

reaction is for a victim of sexual abuse, and the type of detail 

that would be expected from a victim when he or she describes the 

abuse that allegedly occurred. She explained how this victim's 

conduct compared to what she would expect to see from a victim of 

8 
abuse, and she testified to the absence of behavior that would 

indicate fabrication on the part of this victim. That small 

portion of her testimony which is quoted by the majority has to be 

put in the above context to be understood. This is not a case 

where this witness expressed an opinion that the victim was or was 

not testifying truthfully. Therefore, the authorities relied upon 

by the majority are not proper authority for the reversal of 

defendant's conviction. Neither do I believe that this case is 

controlled by State v. Hawis (Mont. 1991), 808 P.2d 453, 455, 

48 St.Rep. 62, 63. This case is different than Harnk because in 

this case the victim's credibility was clearly challenged by the 

defendant. 

I do believe that the testimony of Ms. Anderson provided 

specific examples of the victim's past conduct in an effort to 

buttress her credibility. Therefore, I would conclude that her 

testimony was a violation of Rule 608(b), M.R.Evid., which 

provides, in relevant part, that: 

Specific instances of the conduct of a witness, for the 

purpose of attacking or supporting the witnesst 

credibility, may not be proved by extrinsic evidence. 

Even though I have concluded that Ms. Anderson's testimony 

violated Rule 608 (b) , I would not reverse defendant s conviction 

because her testimony was never properly objected to on that basis. 

Without a proper objection, the District Court had no adequate 

opportunity to consider the admissibility of the testimony and the 
State could not exercise its option of withdrawing the testimony 

based on an appropriate objection. 

Section 46-20-104(2), MCA, provides that: 

Upon appeal from a judgment, the court may review the 

verdict or decision and any alleged error objected to 

which involves the merits or necessarily affects the 

judgment. Failure to make a timely objection during 

trial constitutes a waiver of the objection except as 

provided in 46-20-701(2). 

None of those exceptions provided for in 46-20-701(2), MCA, 

are present in this case. 

Section 46-16-201, MCA, provides that the rules of evidence in 

civil actions are also applicable to criminal actions, except where 

otherwise provided. Rule 103(a), M.R.Evid., provides, in part, as 

follows : 

Error may not be predicated upon a ruling which admits or 

excludes evidence unless a substantial right of the party 

is affected 

(1) . . . a timely objection or motion to strike appears 

of record, stating the specific ground of objection, if 

the specific ground was not apparent from the context . . . . [Emphasis added.] 

In this case, Ms. Anderson's testimony was only objected to by 

defendant for the reason that, not proper rebuttal." 

However, when given an opportunity to argue the basis for his 

objection in chambers and outside the presence of the jury, counsel 

for defendant admitted that he had challenged the victim's 

veracity. The following conversation occurred, including 

defendant's attorney and the court: 

THE COURT: The defense has stated in so many words that 

this complaining witness is lying. 
MR. SHAFFER: That is correct. 

Ms. Anderson's testimony was never objected to by defendant as 

a violation of Rule 608(b). Nor was it ever objected to for the 

reason that it constituted a comment on the credibility of a 

witness. Those arguments have been persuasively made by the 

attorney representing defendant on appeal. However, he is not the 

same attorney who represented defendant at trial; and unfortunately 

for everyone involved, those arguments were not made at the time of 

trial. 

Because of the rules for preserving objections, and because of 

their importance in achieving fairness to the parties in the trial 

court, I would affirm the jury's verdict, even though I conclude 

that the testimony of Ms. Anderson was inadmissible under 

Rule 608 (b) . 

Neither would I reverse this case on the basis of Ms. 

Anderson's reference to her investigation of sexual abuse of Joey 

Hensley . 

Jane Hensley, the victim's mother, testified during 

defendant's case that in her opinion her daughter was lying when 

she accused her father of sexual abuse. Following that testimony, 

during the State's rebuttal, Ms. Anderson was asked about Jane 

Hensley's own reputation for truthfulness. Evidence of a witness's 

reputation for being untruthful is admissible pursuant to 

5 26-1-302, MCA. However, there has to be some factual foundation 

for a witness's ability to offer such testimony. In this case, 

11 
that foundation was laid by having Ms. Anderson testify that she 

was familiar with Jane Hensley based upon her earlier investigation 

of alleged abuse of Joey Hensley. She stated that in the course of 

that investigation she talked to a number of people, including 

school counselors and probation officers, and that based upon those 

conversations she was able to conclude that Jane Hensley had a poor 

reputation for truthfulness. 

Ms. Anderson's testimony regarding the investigation of sexual 

abuse involving Joey Hensley was objected to for the reason that 

when that abuse was alleged to have occurred defendant was living 

in California. The District Court offered to give an instruction 

making clear to the jury that defendant was not the subject of 

those allegations. 

Under Rule 403, M.R.Evid., it was up to the District Court to 

determine whether the prejudicial effect of Ms. Anderson's 

testimony was outweighed by its probative value. In balancing 

those factors, deference should be paid to the District Court 

unless there has been an abuse of discretion. Cooper v. Rosston 

(1988), 232 Mont. 186, 190, 756 P.2d 1125, 1127. In this case, 

where it was clear that because of his absence from the state 

defendant was not involved in the other incident of sexual abuse, 

and where the District Court offered to make that clearer by so 

instructing the jury, I would conclude that there was no abuse of 

discretion in allowing Ms. Anderson's testimony as part of the 
necessary foundation for her opinion regarding Jane Hensleyts 

reputation for truthfulness. 

Finally, I concur with the majority's opinion that the results 

of polygraph examinations should not be included in material 

submitted to the District Court as part of the presentence 

investigation. I would remand to the District Court for 

resentencing and order that any reference to the polygraph 

examination, or its results, be stricken from the materials 

considered by the District Court in determining the appropriate 

sentence for defendant. In so holding, I would note that there is 

no evidence in this record that the District Court improperly 

considered defendant's polygraph results in arriving at the 

sentence which was imposed. However, for purposes of providing a 

guideline for use in future presentence investigation, I believe 

the better rule is to set aside any sentence imposed after 

consideration of a report which includes the results of a polygraph 

examination. 

For these reasons, I would affirm defendant's conviction of 

sexual intercourse without consent and remand this case to the 

~istrict Court for resentencing pursuant to that conviction. 
Justice Fred J. Weber dissents as follows: 

I dissent from the majority holding on Issue I which is 

whether it was error to admit the testimony of Ann Anderson, a 

social worker, regarding credibility of a sexual abuse victim. 

The majority has emphasized that the complaining witness was 

almost 17 at the time of trial and used age as the foundation for 

reversal. It is important to note that the defendant was convicted 

of molesting his daughter between the years 1980 and 1985. The 

trial took place in January 1990, essentially ten years after the 

beginning of the acts in question. While it is true that the 

complaining witness was almost 17 at trial, it is also true that 

she was between the ages of 7 and 12 when the offenses occurred. 

The majority disapproves of the following testimony: 

Q. And do you have any reason to doubt E. H. s 

truthfulness in this case? 

A. No I don't. 

Q. Has there been anything that you have seen that 

you are trained in professionally that you use to judge 

her truthfulness that indicates she is untruthful? 

A. No. 

The majority opinion quotes from State v. Haseltine (1984), 120 

Wis.2nd 92, 352 N.W.2d 673, 676, where the court said "No witness, 

expert or otherwise, should be permitted to give an opinion that 

another mentally and physically competent witness is telling the 

truth." Even if we accept the Wisconsin authority, I question that 

the case is good authority when the actual questions and answers 

are considered in this case. Initially Ann Anderson had been asked 

a number of questions which established her expert capacity in this 

area. Then she was asked if she had any reason to doubt the 
witness' truthfulness and answered that she did not. That is not 

the same as saying the witness had told the truth. It is an 

application of her professional training to the conduct of the 

witness. Next she was asked if there was anything in her 

professional training which she used to judge truthfulness which 

indicated to her that the witness was being untruthful. To that 

she answered llnoll. Again, this is an application of her 

professional training to the evaluation of the conduct of the 

witness. It is not the same as an opinion that the witness was 

"telling the truth." I would therefore clearly distinguish from 

State v. Haseltine. 

The testimony established that as a social worker, Ann 

Anderson had worked for ten years in the areas of sexual abuse and 

had handled approximately two sexual abuse cases per month during 

those ten years. As I review her testimony, it was clearly 

admissible as it was not so much a specific comment on credibility 

as an explanation of how the conduct of this girl was consistent 

with the conduct of a sexual abuse victim. 

I believe the facts in this case bring it within the exception 

referred to by the majority in State v. Scheffelman (1991), 

P. 2d I - St.Rep. , (Cause No. 90-220, decided November 18, 

1991). Under that case, the exception can be applied where the 

child testifies at trial, where the child's credibility is brought 

into question, and the expert witness has been qualified. Here the 

complaining witness did testify at trial and was subject to cross 

examination. Here the credibility of the complaining witness was 
challenged by her mother, her two brothers, and the defendant 

father, who testified that he had never made any type of improper 

physical contact and that he had disowned his daughter and she was 

"out of the family; I conclude that the evidence clearly 

establishes that all three elements of the Scheffelman test were 

met with regard to Ann Anderson. 

After concluding that the Scheffelman test has been met, I 

further conclude there was a clear benefit to the jury as trier of 

fact in receiving the testimony of Ann Anderson. The first benefit 

was that it gave some additional basis for evaluating the 

contradictory testimony on the part of the various members of the 

family of the complaining witness. The second benefit is that it 

assisted the jury in its evaluation of the testimony of a 16-17 

year old as she related the circumstances of assaults which had 

occurred ten years earlier. That benefit is strengthened because 

of the necessity that the jury evaluate the long delay in reporting 

such assaults of ten years earlier. 

I recognize the discomfort on the part of the majority at 

allowing an expert to testify where the complaining witness is 

almost 17 years of age, and the argument that this may be an 

improper strengthening of the testimony of a mentally and 

physically competent witness. A review of our sexual abuse cases 

indicates the state of flux of the law of evidence in the State of 

Montana. I have not found a particular basis for concluding that 

an expert should not be allowed to testify because the complaining 

witness is 16-17 years of age. I do not find anything automatic on 
the age factor, and in particular where the sexual abuse occurred 

approximately ten years earlier. I believe that the testimony of 

the expert was of real assistance in this case. The basic reason 

is that the jury did not have an adequate background based on its 

own experience to evaluate the contradictory testimony and the 

testimony of the complaining witness which stretches over a ten 

year period and goes back to age 7. The testimony of the expert 

was helpful to the jury in evaluating testimony by a 16-17 year old 

as to conduct and responses on her part between the ages of 7 and 

12 years of age, an area in which the jury could not be expected to 

have expertise. 

I further suggest that the standard we are setting here will 

be of questionable value in the future. How is the age standard to 

be applied? Is it to be based upon an after-the-fact evaluation of 

a complaining witness? If we have a brilliant 12 year old, capable 

of good self expression, should a conviction be reversed because of 

the use of an expert witness? Basically I question the theory of 

using age alone as a disqualifying factor. Careful analysis may 

well demonstrate that an expert witness may be of assistance to the 

trier of fact even where the complaining witness is 17 or older. 

I have attempted to show that such a careful analysis here clearly 

demonstrates the very real assistance given by the expert witness 

to the jury as trier of fact. 

I would affirm on this issue.