Non-scientific Expert Testimony in Child Abuse Trials
| Citation | Vol. 27 No. 5 Pg. 22 |
| Pages | 22 |
| Publication year | 2016 |
A Framework for Admissibility
Sam Tooker, J.
In some child abuse trials, there exists a great deal of evidence indicating that the defendant is guilty. Sometimes there is physical evidence linking a perpetrator to a crime. Sometimes witnesses personally observe instances of abuse. Sometimes perpetrators confess to hurting children. However, in a great many cases of child molestation and abuse, the only evidence indicating that an accused may have harmed a child is the alleged victim's testimony.
Children can be inconsistent on the stand. Alleged instances of abuse can expand both in terms of duration and extent of alleged activity from when a child initially discloses to when that child testifies at trial. Sometimes details not remembered when the child is originally interviewed by law enforcement and children's advocacy center personnel are present when the child testifies. The details and duration of allegations can be subject to change.
The predictability of such inconsistencies has led to a developing trend in the prosecution of these cases in South Carolina. Our solicitors and assistant solicitors have adopted a specific strategy to deal with the likelihood of inconsistent victim testimony. That strategy calls for the utilization of a witness proffered as an expert and called on to explain to the jury why the inconsistencies in the victim's testimony are not at odds with a finding that the purported crime actually occurred.
The practice is an evolving one i and one that has, in the last few j years, been subject to multiple; decisions by the S.C. Supreme Court and Court of Appeals. As a result, prosecutors and defense attorneys now have a rough outline for the types of experts that may be permitted to testify the extent to which these experts can discuss the content of the victim's testimony and the propriety of this type of testimony.
In State v. Krornah[1] and State v. Brown, [2] the S.C. Supreme Court and Court of Appeals developed an analytical framework for the admission of nonscientific sexual abuse expert testimony in cases of criminal sexual conduct with a minor. That framework begins with an examination of the expert's background and testimony pursuant to Rule 702 of the South Carolina Rules of Evidence.[3] That analysis requires the trial court to ensure that the expert's testimony does not improperly bolster or corroborate the alleged victim's testimony[4] Finally Rule 403 SCRE prohibits the admission of relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice, so any proposed expert's testimony is subject to a 403 balancing test.[5]
Rule 702
Rule 702 of the SCRE provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."[6] In Watson v. Ford Motor Co., the S.C. Supreme Court outlined the three-prong test for the admission of expert testimony[7] First, the subject matter of the expert's testimony must be beyond the ordinary knowledge of the jury, making plain to the court the benefit to the jury of an explanation from an expert.[8] Second, the proposed expert must have acquired the knowledge and skill necessary to qualify as an expert in a particular field.[9] Third, the court must determine that the substance of the proposed expert's testimony is reliable.[10]
Subject matter beyond the ordinary knowledge of the jury
In State v. Brown, the S.C. Court of Appeals answered whether there are circumstances warranting the admission of non-scientific expert testimony describing child abuse patterns in a child molestation trial. In that case, the court examined the propriety of permitting an expert in the field of child abuse disclosure and dynamics to testify about the patterns of disclosure child abuse victims often exhibit.[11] The defendant challenged the admissibility of the expert's testimony, contending that the testimony concerned information within the sphere of the average layperson's knowledge.[12]
Citing cases from other jurisdictions as well as drawing a comparison to State v. Weauerling, [13] the court of appeals concluded that "the unique and often perplexing behavior exhibited by child sex abuse victims does not fall within the ordinary knowledge of a juror with no prior experience—either directly or indirectly—with sexual abuse."[14] And, "[t]he general behavioral characteristics of child sexual abuse victims are, therefore, more appropriate for an expert qualified in the field to explain to the jury, so long as the expert does not improperly bolster the victims' testimony"[15]
The child abuse expert's testimony, then, according to the court in Brown, was properly admitted inasmuch as it helped explain why the victims in Brown delayed disclosing the abuse and provided law enforcement inconsistent accounts of their abuse.[16] The expert's testimony included: the reasons children delay disclosing; accidental disclosures; chronic abuse and the effect it plays on a child's ability to sort out the timing and order of abuse; and the effect interpersonal relationships have on the timing and process of disclosure.[17]
The court concluded that lay people are not well-versed in the dynamics of child sexual abuse, so the expert's testimony during Brown's trial aided the jury by providing them information explaining how abused children behave during and after periods of abuse.[18]
Improper subject matter— bolstering
As the result of a prosecutorial tactic that was common for some time, there has been a series of cases addressing the impropriety of using an expert witness to bolster the testimony of an alleged child abuse victim.[19] Arguably the seminal case addressing this issue, State v. Krornah makes plain that non-scientific child abuse experts who do nothing more than vouch for the truthfulness of the alleged victim steal from the jury their province as the exclusive judges of credibility[20]
Since Krornah, our child abuse expert cases have fallen into the following two categories: cases where the expert bolsters and corroborates the victim, and cases where the expert does not corroborate the victim.
Expert testimony that bolsters the victim
In State v. Krornah, [21] the court underlined the injustice of permitting forensic interviewers or other experts to vouch for the veracity of alleged victims. As happens in a great many child abuse cases, a forensic interviewer interviewed the victim in Krornah to collect facts from the child regarding allegations of severe physical abuse at the hands of his stepmother.[22] The state proffered the forensic interviewer as an expert, she was qualified and she testified as to a "compelling" finding of physical child abuse.[23]
The court found that while experts are permitted to provide an opinion, "they may not offer an opinion regarding the credibility of others."[24] And, as "[i]t is undeniable that the primary purpose for calling a 'forensic interviewer' as a witness is to lend credibility to the victim's allegations, " qualifying the witness as an expert compounds the impermissible harm.[25] The court deemed the witness's testimony regarding a compelling finding of abuse as the equivalent of the witness testifying that the victim was telling the truth.[26]
The court provided a list of the kinds of statements a forensic interviewer should not make. According to Krornah, while they can testify about the circumstances surrounding an interview and any personal observations of a child's behavior during the interview, forensic interviewers should not provide at trial:
• that the child was told to be truthful;
• a direct opinion as to a child's veracity or tendency to tell the truth;
• any statement that indirectly vouches for the child's believability such as stating the interviewer has made a "compelling finding" of abuse;
• any statement to indicate to a jury that the interviewer believes the child's allegations in the current matter; or
• an opinion that the child's behavior indicated the child was telling the truth.[27]
Likewise, State v. Jennings addressed the issue of victim corroboration in child molestation cases when the prosecution introduced through a forensic interviewer a copy of her report where the interviewer concluded that alleged victims presented compelling disclosures of abuse.[28] The Supreme Court found that the trial court abused its discretion in admitting the forensic interviewer's report and conclusions because the forensic interviewer's report was not only inadmissible hearsay but improper vouching of the accusers' truthfulness.[29] Permitting the interviewer to opine on the victims' veracity took from the jury their province as the judges of the victims' credibility.
Specific recommendations by child advocacy center personnel can also improperly bolster a victim's testimony. In State v. Chauis, a forensic examiner testified at trial that it was her recommendation that the alleged perpetrator be kept away from the alleged victim.[30] The Supreme Court concluded that this type of testimony improperly bolstered the victim's allegations as the recommendation could only be interpreted as the forensic examiner's belief that the victim had been sexually abused.[31] The Court held that the bolstering was particularly problematic because the witness had...
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