Vol. 10, No. 1, Pg. 40. Post-Schurnpert Era Independent Interviews and Psychological Evaluations of Child Witnesses.

• Author: By Jeffrey P. Bloom

South Carolina Lawyer

1998.

Vol. 10, No. 1, Pg. 40.

Post-Schurnpert Era Independent Interviews and Psychological Evaluations of Child Witnesses

40Post-Schurnpert Era Independent Interviews and Psychological Evaluations of Child WitnessesBy Jeffrey P. Bloom"Competent and reliable evidence remains at the foundation of a fair trial . . . If crucial inculpatory evidence is alleged to have been derived from unreliable sources due process interests are at risk." State v. Michaels, 642 A.2d 1372, 1380 (N.J. 1994).

In criminal trials against defendants for charges involving alleged child abuse, prosecutors are increasingly turning to experts to evaluate the child witness and testify on symptoms or diagnoses of the psychological evaluation. This immediately raises the issue of whether the accused in such a case is permitted to have his or her own independent expert evaluate the child prior to trial.

While this is a novel issue in South Carolina, many other states have already addressed the issue. The leading case in the nation is Michaels, which arose in New Jersey from the infamous "Wee Care" day nursery case. After the trial, it was discovered that dozens of children had been subjected to questionable interview tactics that led to false accusations and inherently unreliable convictions.

In fact, the New Jersey Supreme Court has wrestled with other cases regarding witness testimony similar to those addressed by the South Carolina Supreme Court. Compare State v. Hurd, 432 A.2d 86 (N.J. 1981) (hypnotically refreshed testmony) with State v. Evans, 316 S.C. 303, 450 S.E.2d 47 (1994); State v. Kelly, 478 A.2d 364 (N.J. 1984) (battered woman's syndrome in self-defense case) with State v. Hill, 287 S.C. 398, 339 S.E.2d 121 (1986).

The defense request to have an expert evaluate the child is based on the foundations of due process, fundamental fairness and the right to adequately confront witnesses. See U.S. Const. Amend. V, VI, XIV; S.C. Const. Art. I, §§ 3, 14. The psychological evaluation of any child witness involves issues concerning memory, suggestibility and reliability, thus going to the very heart of any testimony by the child witness and the state's expert.

Furthermore, there may be substantive issues regarding the competency of the child witness to testify, thereby necessitating expert testimony for the court to receive sufficient information on this issue to make an informed determination.

The majority rule is to grant the defense request for an independent expert to evaluate the child witness upon a showing by the defense that there is a "compelling need," arising from the facts of the individual case, for such an evaluation. Pickens v. State, 675 P.2d 665 (Alaska Ct. App. 1984), Forbes v. State, 559 S.W.2d 318 (Tenn. 1977), Burdette v. Lobban, 323 S.E.2d 602 (W.Va. 1984).

42The denial of a defense request for a psychological evaluation of a child witness, where the defense is able to show a compelling need under the facts, constitutes a denial of due process. Gray v. State, 640 So.2d 186 (Fla. Dist. Ct. App. 1994), State v. Blackmore, 811 P.2d 54 (Kan. Ct. App. 1991), Mack v. Commonwealth, 860 S.W.2d 275 (Ky. 1993). Most states require that the evaluation not be physically intrusive, as compared to a physical examination. Gray, 640 So.2d at 193.

Where the prosecution has had an opportunity to examine and evaluate the child through the state's own experts, courts have held that this is a factor favoring an accused's right to have the child witness interviewed by an expert of the defense's choosing. Id; Griego v. State, 893 P.2d 995 (Nev. 1995). Indeed, South Carolina has recognized the right of a defendant to have access to experts and other assistance. S.C. Code § 17-3-50 (B), (C) (Cum.Supp. 1997).

Recently, in State v. Morgan, 485 S.E.2d 112 (S.C. Ct. App. 1997), the court reaffirmed the principles originally set forth in State v. Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993). In Schumpert, the court essentially created a new evidentiary right for the prosecution in sexual assault cases. The prosecution can now introduce both expert testimony and behavioral evidence to prove "rape trauma syndrome" of the victim. If the prosecution can introduce such behavioral evidence, then the accused must have the concomitant right to contest such evidence.

A minority of states has held that the court lacks authority to grant a defense motion for evaluation of a witness absent a statute authorizing it. However, it appears that these minority states do not have...