In State v. Makins, the defendant’s conviction for CSC with a minor third degree was reversed by the SC Court of Appeals because (again) the state’s expert vouched for the credibility of the alleged minor victim.
It’s the latest in a long line of appellate opinions reversing convictions when the state’s experts vouch for the credibility of the alleged victim or “bolster” the alleged victim’s testimony in CSC with a minor cases.
Although the SC Supreme Court has repeatedly said, “you cannot vouch for the alleged victims’ credibility,” prosecutors continue to find new, creative ways to vouch for the alleged victim’s credibility.
Why do they risk reversals by repeatedly trying to “get around” the rules of evidence? Why do prosecutors feel the need to bolster an alleged victim’s credibility when they know it can result in wrongful convictions?
When is expert testimony on child sexual abuse admissible and when is it inappropriate?
Why was the Defendant Charged with CSC with a Minor?
“Training specialists” from the Julie Valentine Center (a place where children who allege abuse are interviewed and prepared to testify at trial) visited an elementary school in Greenville to “discuss safety and ‘inappropriate touching’ with students.”
Two weeks later, the alleged victim reported to her teacher that she had been sexually abused. She was then referred to the school guidance counselor, a Sheriff’s Department investigator, and ultimately the Julie Valentine Center.
What were the Problems with the State’s Case?
Children are sexually abused. It’s a horrible thing and it’s a horrible thing that has long-lasting consequences for the child. It’s not something that most people want to talk about or think about, but it happens, and it must be addressed.
Children also make false accusations. There are many reasons a child might make a false accusation, including repeated suggestions of abuse made by a parent, guardian, teacher, guidance counselor, sheriff’s department investigator, or forensic interviewer.
In some cases, children repeat things that they have heard other children say or that they witnessed on television or YouTube. In other cases, children will identify the wrong person as their abuser. Some children will make multiple allegations of abuse against different people, and others may discover that they can use allegations of abuse to their advantage.
No one wants to believe that a child would lie about such a thing, but just as child abuse happens and must be addressed, false accusations of child abuse happen and must be addressed – even the bare accusation, without a conviction, can destroy a person’s life.
In Makin, there were several “red flags” present that the state chose to ignore, including:
- The allegations surfaced after a visit and a “talk” from the recovery center employees which almost certainly suggested the type of things that would constitute sexual abuse;
- The child admittedly lied to the police. At first, she told them that Makin threatened to kill her if she told anyone about the abuse (something that may have been suggested by police or the interviewer), and later acknowledged that it was not true; and
- She had made prior allegations of sexual abuse, although the details are not contained in the appellate opinion.
The jury at Makin’s trial also recognized there were problems with the state’s case. Although he was charged with CSC with a minor first degree, lewd act on a minor, and CSC with a minor third degree, the jury acquitted him of all but the CSC with a minor third degree.
Which might indicate that there was solid evidence for just the one charge of CSC with a minor third degree, or it might indicate that the jurors reached a “compromise verdict” that spared him from the worst conviction and sentence.
What is Appropriate Expert Testimony in a CSC with a Minor Trial?
Prosecutors use experts in trials for CSC with a minor to vouch for the credibility of the alleged victim.
The SC Supreme Court (and the rules of evidence) has said they cannot use experts to vouch for the credibility of an alleged victim, but that is always the underlying reason that prosecutors use expert witnesses in these cases. So, now we are engaged in a back-and-forth as the appellate courts work out when it is appropriate for prosecutors to vouch for a victim’s credibility while, you know, not vouching for their credibility…
The courts have approved the use of experts in the areas of child abuse assessment or child sexual abuse dynamics, for example, to vouch for the credibility of alleged victims, so long as they are not expressly vouching for the credibility of the alleged victim.
For example, an expert can testify that a child who has been sexually abused often delays reporting the abuse, and why a child would delay reporting. The obvious inference is that delayed reporting is truthful reporting, we trust it, and therefore you should trust it. Which is vouching for the child’s credibility, but it is sufficiently camouflaged as non-vouching, scientific testimony that the courts will allow it…
Or, an expert can testify about the general characteristics of other child abuse victims, allowing the jurors to draw their own conclusions as other witness testimony establishes that this alleged victim also has those characteristics:
See, e.g., State v. Brown, 411 S.C. 332, 345, 768 S.E.2d 249, 253 (Ct. App. 2015) (distinguishing improper bolstering in cases involving witnesses who performed the forensic interview, interviewed minor victims, or commented on the credibility of minor victims from those involving independent mental health experts who “offered admissible expert testimony regarding the general behavioral characteristics of child sex abuse victims” and did not testify about the applicability of such testimony to the victim), abrogated on other grounds by State v. Jones, 423 S.C. 631, 817 S.E.2d 268 (2018).
Which is also bolstering the alleged victim’s testimony and vouching for their credibility, but it is sufficiently disguised as something else, so the court allows it.
What is Not Appropriate Expert Testimony in a CSC with a Minor Trial?
An expert witness cannot say “I believe the child.” They cannot imply that they believe the child (at least, not too much).
Forensic interviewers cannot be qualified as expert witnesses. Since the Supreme Court has nixed the forensic interviewer, prosecutors have begun using other experts (often forensic interviewers who are qualified as experts in other “areas”) to bolster the testimony of child victims.
The SC Supreme Court has also provided a checklist of specific statements that expert witnesses cannot make on the witness stand:
“[A]witness may not give an opinion for the purpose of conveying to the jury-directly or indirectly-that she believes the victim.” Briggs v. State, 421 S.C. 316, 324, 806 S.E.2d 713, 717 (2017). “Specifically, it is improper for a witness to testify as to his or her opinion about the credibility of a child victim in a sexual abuse matter.” State v. Kromah, 401 S.C. 340, 358-59, 737 S.E.2d 490, 500 (2013). A witness should avoid statements:
- explaining that the child was told to be truthful;
- expressing a direct opinion as to a child’s veracity or tendency to tell the truth;
- indirectly vouching for the child’s believability, such as a statement that the interviewer has made a “compelling finding” of abuse;
- indicating to a jury that the interviewer believes the child’s allegations in the current matter; or
- providing an opinion that the child’s behavior indicated the child was telling the truth. Id. at 360, 737 S.E.2d at 500.
A Child Sexual Abuse Expert Cannot Also be a Treatment Provider
The main take-away from Makin is that the state’s child abuse expert cannot also be the child’s treatment provider.
In the latest attempt to get around the prohibition on vouching, the state in Makin has their expert testify as to the symptoms of child sexual abuse, without saying the words “I believe the child was abused,” and then testify that she treated the alleged victim for sexual trauma (which implies loud and clear that she believed the victim was abused – why else would she be treating the child for it?).
The Court of Appeals says this is not acceptable and reverses Makin’s conviction:
We find Rich’s opinion testimony addressing the various manifestations of child sexual abuse, followed immediately by her affirmative response that she treated Victim, implied she believed Victim was telling the truth with respect to her allegations of sexual abuse. If Rich believed Victim had not been telling the truth, Rich would not have needed to treat her. As the circuit court warned, Rich’s testimony implied she was treating Victim for sexual trauma because Victim had suffered such trauma.
The next step in the ongoing saga of child abuse experts vouching for child victims: The prosecutor will call an expert in child sexual abuse trauma to testify as to the symptoms of child abuse generally, then separately call the child’s treatment provider to testify as to the child’s symptoms, and the appellate courts will give their stamp of approval.
Prosecutors can continue to pretend that they are not vouching or bolstering, but they must pretend harder.
If you are fighting false allegations of child sexual abuse, the SC criminal defense attorneys at Axelrod and Associates are on your side. You are facing a tough fight with “true believers” who are prepared to bend the rules and who, perhaps, would rather see ten innocent persons go to prison than risk one more child being hurt…