SC APPELLATE COURTS ALLOW BOLSTERING IN CHILD SEXUAL ABUSE CASES – AS LONG AS IT’S NOT OBVIOUS…

In State v. Chappell, decided December 31, 2019, the SC Court of Appeals reversed convictions for first-degree criminal sexual conduct with a minor and lewd act upon a child based on the state’s expert’s testimony that bolstered the child’s credibility.

It’s a recurring theme in child sexual abuse cases – prosecutors will always call expert witnesses for the sole purpose of bolstering the alleged victim’s testimony, attempt to call the bolstering something else, and then SC appellate courts will either reverse or agree that the bolstering was okay.

Is bolstering okay in SC child sexual abuse cases? Why do prosecutors keep doing it?

WHEN DO SC APPELLATE COURTS ALLOW BOLSTERING IN CHILD SEXUAL ABUSE CASES?

What is bolstering?

Bolstering, also called “vouching,” is when a witness testifies that they believe an alleged victim, and therefore jurors should also believe the alleged victim:

Improper bolstering is “testimony that indicates the witness believes the victim, but does not serve some other valid purpose.” Id. at 325, 806 S.E.2d at 718. Improper bolstering also occurs when a witness testifies for the purpose of informing the jury that the witness believes the victim, or when there is no other way to interpret the testimony other than to mean the witness believes the victim is telling the truth. Id. at 324, 806 S.E.2d at 717; State v. Jennings, 394 S.C. 473, 480, 716 S.E.2d 91, 94 (2011); McKerley, 397 S.C. at 465, 725 S.E.2d at 142.

Bolstering is against the rules and should not be allowed in any case, although SC’s appellate courts have provided a blueprint for SC prosecutors to follow – pretend that it’s not bolstering, make sure that you can point to another purpose for the testimony, and it will be allowed…

When is Bolstering Not Allowed in Child Sexual Abuse Cases?

SC courts have repeatedly held that bolstering, or vouching, is not allowed in child sexual abuse cases. For example:

• State v. Chavis, 412 S.C. 101, 108, 771 S.E.2d 336, 340 (2015) (finding a forensic interviewer improperly bolstered the victim’s credibility when she testified that she recommended the defendant not be allowed around the victim);
• Kromah, 401 S.C. at 359, 737 S.E.2d at 500 (stating a forensic interviewer’s testimony her interview with the victim led to a “compelling finding” of abuse was improper bolstering because it was equivalent to stating the victim was telling the truth);
• Jennings, 394 S.C. at 480, 716 S.E.2d at 94 (finding a forensic interviewer improperly bolstered the victim’s credibility by noting in her report that the victims “provide[d] a compelling disclosure of abuse . . .”);
• Smith, 386 S.C. at 564, 568, 689 S.E.2d at 631, 633 (stating a forensic interviewer improperly bolstered the victim’s credibility by testifying that the victim was believable and had no reason to lie);
• State v. Dawkins, 297 S.C. 386, 393-94, 377 S.E.2d 298, 302 (1989) (stating the victim’s treating psychiatrist improperly bolstered the victim’s credibility by testifying that the victim’s symptoms were genuine);
• State v. Dempsey, 340 S.C. 565, 569-71, 532 S.E.2d 306, 308-09 (Ct. App. 2000) (finding the victim’s counselor improperly vouched for the victim’s credibility by testifying that ninety-five to ninety-nine percent of allegations of child sexual abuse are true).

In Chappell, the trial court and the PCR court found that the state’s witness’s statement, “Children don’t often lie about sexual abuse incidents,” was not bolstering. One justice on the Court of Appeals agreed that this was not a statement intended to bolster the child witness’ credibility…

The majority on the Court of Appeals found that it was bolstering. It was intended to communicate to the jury that the child witness is not lying and therefore they should convict the defendant. And yet, the dissenting justice not only says it is not bolstering but says if it is bolstering it is harmless error – in a case where there was no physical evidence and the case turned solely on the credibility of the alleged victim….

Bolstering is not permitted. But prosecutors keep doing it because it is permitted… rather than asking themselves, “is this bolstering?” and not doing it, prosecutors are purposefully instructing their witnesses to bolster the child victim and asking themselves, “Is there another way this testimony could be interpreted so I can get away with bolstering?”

WHEN DOES THE COURT ALLOW EXPERTS TO BOLSTER A CHILD’S CREDIBILITY?

Prosecutors, judges, and appellate court justices are human. Like most of us, they recoil at the thought of someone hurting a child. Many believe that it is better for ten innocent persons to go to prison than for one guilty person to go free, at least in child sexual abuse cases. Of course, that’s not what the law says or the Constitution requires in the United States.

Although many prosecutors have not gotten the message, SC’s appellate courts have been clear that bolstering is okay so long as it can be called something else.

For example, in State v. Jones, the SC Supreme Court held that it is okay for a state’s expert to testify as to why children delay reporting of abuse and why caregivers do not report abuse – making general statements that may or may not apply to the facts of the case they are testifying in.

Why? The Court says it is okay because it is not common knowledge. Isn’t it, though? Assuming you, the reader, are a lay person and not a child sexual abuse expert, do you really need someone to explain to you why some children would delay reporting abuse?

Of course, you don’t. The testimony is bolstering and serves no legitimate purpose other than to communicate to the jurors the prosecutor’s and witness’ belief that the alleged victim is being truthful despite having delayed reporting for months or years.

So, what’s the rule?

1) Bolstering is not okay when you are obvious about it – you can’t say “I believe the child” or anything close to that.

2) Bolstering is perfectly acceptable if you disguise it as something else – “children delay reporting because x,y,z” is acceptable even though there is no purpose for the statement other than to communicate the witness’ belief in the alleged victim’s truthfulness because “children delay reporting because x,y,z.”

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