Non-Scientific Expert Testimony in Child Abuse Trials A Framework for Admissibility By Sam Tooker 24 SC Lawyer 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 and one that has, in the last few years, been subject to multiple decisions by the S.C. Supreme Court and Court of Appeals. As a PHOTO BY GEORGE FULTON
March 2016 25
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. Kromah 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 26 SC Lawyer 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. Weaverling, 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. Kromah 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 Kromah, 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. Kromah, 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 Kromah 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 Kromah, 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. Chavis, 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 previously been qualified as an expert, so it was error to permit the witness to testify regarding her recommendations. 32 Finally, even testimony that the interviewer told the child to tell the truth and that the forensic interview constituted a prerequisite for law enforcement intervention can improperly bolster an accuser s testimony. The court in State v. Anderson deemed improper the trial court s decision to qualify a forensic interviewer as an expert as the interviewer s testimony indirectly vouched for the victim s truthfulness. 33 In Anderson, the forensic interviewer was called to March 2016 27
lay the foundation for the admissibility of the taped recording of the victim s forensic interview pursuant to S.C. Code Section 17-23- 175. 34 In the process of laying the foundation for the admission of the interview video, the forensic interviewer explained the importance of asking the child to tell the truth and that the interview served as a threshold for law enforcement investigation. 35 The court concluded that the witness s testimony conveyed to the jury that the interviewer and law enforcement believe[d] the victim and that their beliefs led to the defendant s arrest, subsequent charge and trial, thus impermissibly bolstering the minor s credibility. 36 Expert testimony that does not corroborate the victim As opposed to those cases where the prosecution s expert vouched for the victim, either directly or indirectly, in State v. Brown, the proffered expert did not comment on the credibility of the victims, so the court of appeals upheld the trial court s decision to admit her testimony. 37 In Brown, the state s expert testified about some of the ways abused children behave and the process abused children often go through when they begin to disclose abuse. 38 The expert never met the victims and had no knowledge of the facts of the case beyond what the solicitor s office had explained to her. 39 This degree of separation from the case ensured that her testimony could not be construed an opinion regarding the truthfulness of the victims. 40 Because the Brown expert never commented on the credibility of the minor victims, but rather offered admissible expert testimony regarding the general behavioral characteristics of child sex abuse victims, the court of appeals concluded that her testimony did not constitute improper bolstering of the victims. 41 The fact that the expert s testimony corroborated some of the minor victims reasons for delaying disclosure of the abuse does not mean her testimony improperly bolstered their accounts. 42 By segregating the expert from the victims and keeping her testimony to the generalities of childhood sexual abuse and disclosure, the state ensured that the witness s testimony did not constitute improper bolstering. 43 In State v. Berry, the court of appeals addressed the issue of improper bolstering in the context of an expert s testimony that a victim of long periods of childhood sexual assault was suffering from post-traumatic stress disorder. 44 In Berry, the expert, a psychotherapist and social worker, was qualified as an expert in the field of child sexual abuse assessment and treatment. 45 The expert explained the common behaviors and characteristics associated with childhood sexual trauma and said that she observed some of these same symptoms in the victim, which she attributed to PTSD. 46 While the defendant argued that the expert s testimony consti- 28 SC Lawyer
tuted bolstering in violation of the standards outlined in Kromah, the court concluded that the testimony did not invade the province of the jury or serve as a comment on the credibility or veracity of the victim, as the expert testified to observed behaviors and never indicated in her testimony whether she believed the victim was telling the truth regarding the sexual abuse. 47 Knowledge and skill to qualify as an expert in the field Whether an expert in a child molestation case possesses the training and experience necessary to qualify as an expert in the proffered field depends on whether the witness acquired by reason of study or experience or both such knowledge and skill in a profession or science that he is better qualified than the jury to form an opinion on the particular subject of his testimony. 48 The test for qualification of an expert is a relative one that is dependent on the particular witness s reference to the subject. 49 In State v. Schumpert, the S.C. Supreme Court analyzed the propriety of permitting a mental health counselor to testify about rape trauma syndrome. 50 The expert in Schumpert was qualified as an expert in sexual abuse after providing the court evidence of her education and experience. 51 The sufficiency of that background was challenged on appeal. The court concluded that the witness s master s degree in social work and specialization in child and adolescent services as well as her continued training in the field of sexual abuse and involvement aiding abused children was sufficient training and experience for the trial court to have concluded that she possessed the requisite training and experience for qualification as an expert in sexual abuse. 52 In rendering its decision, the court acknowledged that while [t]he party offering the expert has the burden of showing his witness possesses the necessary learning, skill, or practical experience to enable the witness to testify as an expert, defects in the amount and quality of education or experience go to the weight of the expert s testimony and not its admissibility. 53 The expert s qualifications are largely left to the trial judge s discretion, and are subject to an abuse of discretion standard upon appeal. 54 While there was no objection to the qualification of the forensic interviewer as an expert in Kromah, in footnote 5 the court noted: we can envision no circumstance where [a forensic interviewer s] qualification at trial would be appropriate. 55 Specifically, the court acknowledged that while forensic interviewers might be useful as a tool to aid law enforcement officers in their initial investigative process, their work is not appropriate for use in the courtroom. 56 The forensic interviewer s role, then, should be truncated and limited to that of a factual witness responsible for laying the foundational requirements necessary for the admission of the videotaped forensic interview if the videotaped forensic interview satisfies the requirements of Section 17-23-175. 57 Reliability of the substance of the expert s testimony Pursuant to State v. White, nonscientific evidence is still subject to the reliability prong of Rule 702. 58 So, in South Carolina, child abuse assessment experts are subject to the reliability standards outlined in State v. White. 59 In State v. Chavis, the S.C. Supreme Court reviewed the qualifications of forensic interviewers in the field of child abuse assessment in light of the reliability requirement of Rule 702. 60 The Court concluded that a forensic interviewer s training, experience, knowledge of forensic interviewing protocol, and number of forensic interviews performed did not sufficiently demonstrate the witness s individual reliability under the third prong of Rule 702. 61 The Court allowed that while there is no formulaic approach to determine the threshold requirements for reliability of non-scientific evidence, evidence of mere procedural consistency does not ensure reliability without some evidence demonstrating that the individual expert is able to draw reliable results from the procedures of which he or she consistently applies. 62 While there is no formulaic approach that will apply in the generality of cases, 63 for a sexual assault expert s testimony to be reliable, it seems, the expert must provide more than the consistent application of a set or sets of procedural requirements. 64 The standards outlined in State v. Council 65 regarding the reliability of scientific expert testimony, while not required for the admission of non-scientific expert testimony, may be a helpful starting point for prosecutors attempting to proffer non-scientific child abuse experts or defense attorneys trying to exclude the same, as the Court in Chavis cites both the prior application of the methodology and the peer review of the witness s procedures as potential indicators of reliability. 66 Rule 403 and the balancing test The final question in cases where nonscientific experts are called to discuss the behavioral characteristics of victimized children is whether the testimony should be excluded when analyzed under Rule 403 of the South Carolina Rules of Evidence. Rule 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. 67 The court of appeals answered this question in Brown inasmuch as it pertains to the admission of expert testimony about the dynamics of child abuse and disclosure. In Brown the court concluded that the child abuse expert s testimony was relevant to help the jury understand various March 2016 29
aspects of victims behavior and provided insight into the often strange demeanors of sexually abused children. 68 Similarly, in State v. Weaverling, the court of appeals concluded that expert testimony regarding common behavioral characteristics of sexual assault victims is relevant and helpful in explaining to the jury the typical behavior patterns of adolescent victims of sexual assault by helping the jury in understanding some of the aspects of the behavior of victims and provid[ing] insight into the sexually abused child s often strange demeanor. 69 CRYSTAL & GIANNONI-CRYSTAL, LLC Lawyers for Lawyers & International Matters CHARLESTON NEW YORK WASHINGTON We provide a broad range of international services to lawyers and their clients, including: International contracts (including M&A) International litigation support Enforcement of judgments/awards Liaison with local counsel European privacy International outside in-house counsel For Italy and EU law: Francesca Giannoni-Crystal Attorney-at-Law (NY, DC, Italy) SC Foreign legal consultant (not a member of SC Bar) (843) 202-0090 info@cgcfirm.com www.cgcfirm.com 30 SC Lawyer Conclusion So what is the takeaway? The takeaway is that every potential field for expert qualification in child abuse cases has not been addressed by our appellate courts. So, instead of relying on one case that will save the day, practitioners need an understanding of the case law and how the case law fits into our existing framework of rules. Whether prosecutor or defense attorney, the lawyers trying these cases need to understand the process through which to put a potential nonscientific child abuse expert. Prosecutors need to make sure that they can satisfy the elements of Rule 702, while defense attorneys should ensure that their voir dire of the state s proposed expert includes questions related to each one of the above-outlined issues. It is not good enough to rely squarely on Kromah in attempting to exclude a nonscientific child abuse expert, and it is not good enough to cite Brown when attempting to admit similar testimony. To be prepared, practitioners need to have a fundamental understanding of the framework for the admission of this type of expert testimony and be prepared to apply this framework when required. Sam Tooker practices with David R. Price Jr., P.A. in Greenville. Endnotes 1 State v. Kromah, 401 S.C. 340, 737 S.E.2d 490 (2013). 2 State v. Brown, 411 S.C. 332, 768 S.E.2d 246 (Ct. App. 2015), cert denied (Aug 06, 2015). 3 at 339, 768 S.E.2d at 250. 4 at 343, 768 S.E.2d at 251. 5 at 346, 768 S.E.2d at 253. 6 Rule 702, SCRE. 7 Watson v. Ford Motor Co., 389 S.C. 434, 699 S.E.2d 169 (2010). 8 at 446, 699 S.E.2d at 175. 9 10 11 Brown at 337, 768 S.E.2d at 249. 12 13 State v. Weaverling, 337 S.C. 460, 474-475, 523 S.E.2d 787, 794 (Ct. App. 1999). Expert testimony concerning common behavioral characteristics of sexual assault victims and the range of responses to sexual assault encountered by experts is admissible. 14 Brown, at 342, 768 S.E.2d at 251. 15 16 17 at 337-338, 768 S.E.2d at 249. 18 19 State v. Jennings, 394 S.C. 473, 716 S.E.2d 91 (2011); State v. Kromah, 401 S.C. 340, 737 S.E.2d 490 (2013); State v. Anderson, 413 S.C. 212, 776 S.E.2d 76, (2015); State v. Chavis, 412 S.C. 101, 771 S.E.2d 336 (2015). 20 Kromah at 357-358, 737 S.E.2d at 499-500. 21 at 358-359, 737 S.E.2d at 499-500. 22 23 at 356, 737 S.E.2d at 498-499. 24 at 358, 737 S.E.2d at 499. 25 26 at 359, 737 S.E.2d at 500. 27 at 360, 737 S.E.2d at 500. 28 Jennings at 479, 716 S.E.2d at 94. 29 30 Chavis at 109, 771 S.E.2d at 340. 31 32 33 Anderson at 219-220, 776 S.E.2d at 79-80. 34 S.C. Code Ann. 17-23-175 provides for the admissibility of a videotaped forensic interview of a child under twelve years of age if the trial court concludes the forensic interview possess particularized guarantees of trustworthiness. 35 at 220, 776 S.E.2d at 80. 36 at 221, 776 S.E.2d at 80. 37 Brown at 345, 768 S.E.2d at 253. 38 at 344, 768 S.E.2d at 252. 39 40 41 at 345, 768 S.E.2d at 253. 42 43 44 State v. Berry, 413 S.C. 118, 775 S.E.2d 51 (Ct. App. 2015). 45 at 53, 775 S.E.2d 122-123. 46 47 at 131, 775 S.E.2d at 57-58. 48 O Tuel v. Villani, 318 S.C. 24, 28, 455 S.E.2d 698, 701 (Ct. App. 1995), overruled on different grounds. 49 Watson at 447, 699 S.E.2d at 174. A witness with background in corporate training, computer programming, writing, and motor vehicle brake systems did not possess the training and experience necessary to be qualified as an expert in vehicle cruise control systems. 50 State v. Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993). 51 at 505, 435 S.E.2d at 860. 52 53 54 55 Kromah, 401 S.C. at 357, 737 S.E.2d at 499, n. 5. 56 57 58 State v. White, 382 S.C. 265, 676 S.E.2d 684 (2009), overruling State v. Morgan, 326 S.C. 503, 485 S.E.2d 112 (1997). 59 State v. Chavis, 412 S.C. 101, 107, 771 S.E.2d 336, 338-339 (2015). 60 61 at 107, 771 S.E.2d 339. 62 63 White at 273-274, 676 S.E.2d at 688-689. 64 Chavis at 107, 771 S.E.2d at 339. 65 State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999). The four factors for consideration in determining the reliability of scientific evidence are: the publications and peer reviews of the technique; prior application of the method to the type of evidence involved in the case; the quality control procedures used to ensure reliability; and the consistency of the technique with established science and procedure. 66 67 Rule 403, SCRE. 68 Brown at 347, 768 S.E.2d at 254. 69 Weaverling at 474, 523 S.E.2d at 794.