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Montana Supreme Court: Statistical Evidence on False Accusations of Rape Improperly Bolstered Witness Credibility

Philip Bryson Grimshaw was charged with sexual intercourse without consent, in violation of § 45-5-503, MCA, after his step-cousin, T.G., accused him of raping her. Both were similar ages and good friends. Grimshaw had expressed romantic feelings toward T.G., but “she informed [him] they could not be together because they are cousins.”

After a night partying, during which both got drunk and high, they ended up at T.G.’s house. Grimshaw texted her from the couch, asking to join her in bed to “cuddle.” T.G. awoke to find him removing her pants and told him “no” when he tried to penetrate her anus, at which point she claims he “flipped her over and penetrated her vagina with his penis.”

Ten days later, T.G. went to the hospital due to a migraine headache and disclosed to her mother that Grimshaw had raped her. She was examined by a sexual assault nurse and interviewed by an officer with the Great Falls Police Department.

Grimshaw was also interviewed by police, and he admitted “it might have been a little, kind of, rape deal.”

At trial, the State called Dr. Sheri Vanino to “testify as to the behavior(s) of rape victims, including but not limited to the actions of rape victims after being raped, such as delayed disclosures and continued contact with the perpetrator following the rape.” The defense called Dr. Bowman Smelko, who rebutted Vanino’s testimony by citing “limited sample sizes of the studies and difficulty in verifying false reporting statistics.”

During questioning, Vanino offered to discuss false reporting statistics in response to one of defense counsel’s questions. Defense counsel instead moved to another line of questioning, but the State later asked for those statistics. Vanino testified that “incidents of false reporting is two percent to eight percent.” The defense counsel objected to this testimony as witness bolstering.

Grimshaw was ultimately convicted and sentenced to 40 years’ imprisonment with 20 years suspended. He filed a direct appeal.

The Montana Supreme Court noted this case was similar to State v. Brodie, 718 P.2d 322 (Mont. 1986), in which the Court held a psychologist’s testimony “with regard to malingering and the statistical percentage of false accusations was improper comment on the credibility of the witness. This is because “[i]t is well settled in Montana that the determination of the credibility of witnesses and the weight to be given to their testimony is solely within the province of the jury.” Id. Similarly, “[a]n expert witness may not comment on the credibility of the victim’s testimony.” Rogers v. State, 253 P.3d 889 (Mont. 2011).

The State claimed defense counsel “opened the door” to the introduction of the statistics by asking about false accusations in general, but the Court noted counsel moved on to another subject when Vanino offered the statistics. When the State later asked for them, the statistics “in essence vouched for T.G.’s credibility” by presenting evidence that implied “a defendant is between 92 and 98% likely to be guilty simply by virtue of being accused.” The Court stated that “[s]uch an interpretation would turn the presumption of innocence on its head for all sexual crimes.”

The Court found Vanino’s testimony violated Grimshaw’s right to a fair trial, and the State was then required to “demonstrate that there is no reasonable possiblity that the inadmissible evidence might have contributed to the conviction.” State v. Van Kirk, 32 P.3d 735 (Mont. 2001).

The Court found that the jury was asked to decide on whether T.G. was raped or “falsely accused [Grimshaw] of rape because she was ashamed of having sex with her cousin,” and this determination almost entirely rested on the credibility of T.G. at trial. Any bolstering of T.G.’s credibility unfairly tipped the scales and likely influenced the jury. Thus, the Court held that the expert testimony about false rape accusation statistics violated Grimshaw’s right to a fair trial.

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State v. Grimshaw



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