“Forensic interviewers might be useful as a tool to aid law enforcement officers in their initial investigative process, but this does not make their work appropriate for use in the courtroom.” State v. Kromah, 401 S.C. 340, 357 (fn. 5), 737 S.E.2d 490, 499 (fn. 5) (2013). This ruling, handed down on January 23, 2013, rejects prosecution tactics in child sexual abuse cases that violate well-settled evidentiary principles. This blog post discusses the case law history leading to the decision in Kromah, analyzes the rule set forth in Kromah, anticipates how prosecutors might try to circumvent Kromah, and predicts future topics of litigation.
A. Case Law History.
In State v. Dawkins, 297 S.C. 386, 377 S.E.2d 298 (1989), our Supreme Court recognized that a psychiatrist’s testimony that alleged victim’s “symptoms are genuine” improperly vouched for alleged victim’s credibility. Although affirming Dawkins’ conviction, the Court later granted him post-conviction relief because trial counsel failed to object to “improper corroboration testimony.” Dawkins v. State, 346 S.C. 151, 156, 551 S.E.2d 260, 263 (2001). The Court of Appeals has handed down several decisions following the rule in Dawkins:
- State v. Dempsey, 340 S.C. 565, 532 S.E.2d 306 (Ct. App. 2000) (testimony from a child abuse counselor that child tells the truth 95% to 99% percent of time abuse is alleged improperly vouches for child’s credibility).
- South Carolina Dept. of Social Services v. Lisa C., 380 S.C. 406, 669 S.E.2d 647 (Ct. App. 2008) (testimony of therapist indicating “Child gave a consistent disclosure and that as a result of that conclusion she recommended therapy” improperly bolstered Child’s credibility).
- State v. Hill, 394 S.C. 280, 295, 715 S.E.2d 368, 376-77 (Ct. App. 2011) (“[T]he forensic interviewer never addressed the veracity of Victim. He testified only that he saw the types of details in Victim’s interview that he would look for to determine whether a child had been coached. He gave no opinion on whether Victim was being truthful, or even that Victim had not, in fact, been coached. Accordingly, we find no reversible error in the admission of this testimony.”).
Continued misuse of child interviewers by prosecutors resulted in additional intervention by our Supreme Court. In State v. Douglas, 380 S.C. 499, 671 S.E.2d 606 (2009), the Court recognized that there might be some circumstances when a child interviewer could testify properly as an expert witness. Allowing the child interviewer to testify as an expert witness, however, is not necessary when the interviewer testifies to “personal observations and discussions with child victims,” the manner of conducting interviews, and a “recommendation upon interviewing the Victim in this case.” Id., 380 S.C. at 504, 671 S.E.2d at 609.
Next, in State v. Jennings, 394 S.C. 473, 716 S.E.2d 91 (2011), our Supreme Court held that admitting evidence that the alleged victim provided “compelling disclosure” of child sexual abuse during the interview improperly expressed the interviewers belief that the child was truthful.
Kromah quickly followed Jennings.
B. The Rule Set Forth in Kromah.
Kromah, 401 S.C. at 360, 737 S.E.2d at 500, imposed limits on the child interviewer’s testimony that are consistent with traditional rules of evidence. The witness is allowed to testify:
- About “the time, date, and circumstances of the interview.” See also State v. Whitner, 399 S.C. 547, 559, 732 S.E.2d 861, 867 (2012) (“[T]the forensic interview of the child and mere foundational trial testimony of the interviewer serve as a model of how the statute is designed to work. Specifically, the forensic interviewer did not improperly lead or influence the victim in any way, and the victim answered the questions on her own accord. Moreover, the forensic interviewer’s testimony was for the limited purpose of laying the proper foundation for the admission of the videotape. It offered no improper testimony, and included no bolstering testimony that would invade the province of the jury.”).
- Discuss “any personal observations regarding the child’s behavior or demeanor.” Douglas, supra; see e.g. State v. Henry, 329 S.C. 266, 277, 495 S.E.2d 463, 468 (Ct. App. 1997) (Therapist “based her diagnosis and opinion as to PTSD on the history received from Victim, Badger’s personal observations of Victim, Victim’s demeanor, and symptoms exhibited by Victim.”).
- Provide “a statement as to events that occurred within the personal knowledge of the interviewer.” Rule 602, SCRE.
Kromah, 401 S.C. at 360, 737 S.E.2d at 500, expressly prohibited the child interviewer from:
- Testifying “that the child was told to be truthful.”
- Providing “a direct opinion as to a child’s veracity or tendency to tell the truth.”
- Making “any statement that indirectly vouches for the child’s believability, such as stating the interviewer has made a ‘compelling finding’ of abuse.”
- Making” any statement to indicate to a jury that the interviewer believes the child’s allegations in the current matter.”
- Offering “an opinion that the child’s behavior indicated the child was telling the truth.”
“These lists are not intended to be exclusive, since the testimony will of necessity vary in each trial, but this may serve as a general guideline for the use of this and other similar testimony by [child] interviewers.” State v. Kromah, 401 S.C. 340, 360, 737 S.E.2d 490, 501 (2013). For example, in State v. McKerley, 397 S.C. 461, 466-67, 725 S.E.2d 139, 142-43 (Ct. App. 2012), decided between Jennings and Kromah, the Court of Appeals identified testimony that lacked “relevance except insofar as it informs the jury [the child interviewer] believes the story told by the victim,” including:
- “’we are looking for accuracy of information’ given by the victim;”
- “we are going to … make sure that what the child is telling us is based on something they would have experienced on their own body or that they would have seen or heard, the sensory information”;
- “those statements have a level of detail that … they would be able to tell [only] if something were to have happened”;
- “we are also looking at … are there other possible reasons, are there other possible explanations”;
- “we are looking to see if[ ] [this] could … be explained in another way”;
- “we are looking to be sure it adds up”;
- “we are looking to see if what they tell us throughout the interview is the same from the beginning to the end”;
- “we are also looking at their behavior and the way they are expressing themselves in the interview … their behavior and their language”;
- “in forming her ‘opinion as to whether … something happened,’ she considered whether the victim’s statements were ‘consistent with the other information’ she has on the case”;
- “in forming her ‘opinion as to whether … something happened,’ she considered ‘does this child appear to be giving statements that are similar to, in my experience, in my training and what I have learned, similar to what other children with the same experience may have had’”; and
- “The compelling findings are the things that we look at, that we talked about looking at earlier in terms of how the disclosure comes about in the interview with me; whether it is detailed, does it have consistency, does it have the sensory level of detail that a child typically wouldn’t have, or only would have if something had happened to them.” (emphasis supplied by Court).
Kromah cited McKerley with approval.
It was necessary for our Supreme Court in Kromah to set forth these detailed rules “[b]ecause the admissibility of forensic interviews and the testimony based thereon at trial has been the subject of several recent appeals.” Kromah, 401 S.C. at 360, 737 S.E.2d at 500. Two footnotes in Kromah further illustrate the Court’s current attitude about child interviewers in child sexual abuse cases. Footnote four provides:
The title of “forensic interviewer” is a misnomer. The use of the word forensic indicates that the interviewer deduces evidence suitable for use in court. It also implies that the evidence is deduced as the result of the application of some scientific methodology. The exact scientific methodology applied apparently defies identification. The RATAC style of interviewing is not scientific. It merely represents the objectives and topics of discussion between the interviewer and the child. Somehow RATAC is supposed to convert the interviewer into a human truth-detector whose opinions of the truth are valuable and suitable for the jury’s consumption.
After recalling the Court’s holding in Douglas that qualifying the child interviewer as an expert witness might not be necessary, footnote five of Kromah admonished, “[W]e state today that we can envision no circumstance where their qualification as an expert at trial would be appropriate.”
Kromarh, thus, did not prohibit testimony of child interviewers in child sexual abuse cases. Criminal defense lawyers should challenge prosecution efforts to exceed the three examples listed in Kromah and what is permissible under South Carolina Section 17-23-175. Trial judges should require prosecutors to justify evidence based on child interviews.
C. Anticipating How Prosecutors Might Try to Circumvent Kromah & Predicting Future Topics of Litigation.
Although it is impossible to predict the future, criminal defense lawyers should be prepared to litigate (1) the admissibility of the videotape interview of the child, (2) the continued validity of Jolley v. State, (3) opinion testimony by counselors, and (4) defense evaluations of alleged child victims.
1. Videotape Interview of the Child.
Footnote seven in Kromah observed, “The General Assembly has enacted provisions allowing the admission of out-of-court statements by child sexual abuse victims under the age of twelve when certain conditions are met” as provided by Section 17-23-175. The Court cited State v. Bryant, 382 S.C. 505, 675 S.E.2d 816 (Ct.App.2009), as “discussing the proper application of this provision.” Bryant, however, merely discussed the applicability of the underlying act’s savings clause and rejected an ex post facto challenge because the statute is merely procedural and “did not change the quantum of evidence required to convict Bryant nor did it change the elements of the crime.” 382 S.C. at 512, 675 S.E.2d at 820. See also State v. Stahlnecker, 386 S.C. 609, 690 S.E.2d 565 (2010) (“Because section 17-23-175 merely authorizes the introduction of new evidence and does not alter substantial personal rights, it does not violate the ex post facto laws.”).
So far, challenges to the admissibility of the videotaped interview have failed on error preservation grounds. Consider the following:
- On appeal in State v. Russell, 383 S.C. 447, 451, 679 S.E.2d 542, 544 (Ct. App. 2009), the appellant argued the prejudicial effect outweighed the probative value because “the videotape is prejudicial because Child is seen drawing a card for his mother and ‘playfully interacting with the counselor,’ thereby stirring the emotions of the jurors.” The Court of Appeals the “argument regarding Child’s interaction with the counselor is not preserved for our review.”
- In Stahlnecker, trial counsel did not argue the videotape was “unduly prejudicial because it was inconsistent with Victim’s trial testimony” and appellate counsel did not argue “that the State failed to comply with section 17–23–175. Hence, the only issue preserved on appeal is whether section 17–23–175 violated the ex post facto laws.”
- State v. Hill, 394 S.C. 280, 290, (fn. 2), 715 S.E.2d 368, 374 (fn. 2) (Ct. App. 2011) (“Although Hill mentions in his brief that he challenged the constitutionality of the admission pursuant to the statute in question before the trial court, he does not argue the constitutionality of the statute itself on appeal or designate it is an argument in his statement of issues on appeal. Rather, he focuses on whether the statute’s conditions were met and whether he was denied the right to confront witnesses against him by virtue of the fact that the recording was introduced into evidence through a later witness, after the child had been called to testify. Further, the trial judge did not specifically rule on counsel’s argument that the statute itself was unconstitutional. Thus, such argument would not be preserved for appeal.”).
Thus, a challenge to the constitutionality of the statute remains a possibility. Very arguably the statue violates the Sixth Amendment because the child is not under oath and the defendant does not get an opportunity for contemporaneous cross-examination. See Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157 (1990) (held the testimony of a child witness via closed circuit TV did not violate the right of confrontation because “[t]he child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination.”).
The Court of Appeals in Hill also rejected a challenge under the Confrontation Clause because the prosecution called the child as a witness before introducing the videotape. The Court reasoned that defense counsel knew about the videotape prior to trial and had a chance to cross-examine the child about the elements of the crime. The concern in these situations is that the trial testimony might be different from the statements in the videotape interview. See Stahlnecker, supra. In future cases, defense counsel should consider pretrial motions asking the trial judge to control the order of presentation of the evidence or reserving all or a portion of cross-examination of the child until after the videotape is shown. In cases where the trail testimony and videotape statements vary, like in Stahlnecker, defense counsel should bring a new motion during trail to prevent prejudicial use of the videotape.
Finally, defense counsel should consider arguing the General Assembly intended for the statements, rather than the videotape, to be admissible. Very arguably, the purposes for videotaping the interview are recording statements accurately, preserving evidence for the trial judge to make findings of fact regarding compliance with the statute, and assisting defense counsel in preparing an effective cross-examination.
Kromah’s exclusion of evidence “that the child was told to be truthful,” eliminates any argument that the entire videotape is admissible. These interviews often begin with “truth vs. lie exercises” that should not be shown to jurors. Likewise, portions of the interview investigating possible other crimes, such as other child sexual abuse victims and domestic violence, should be excluded. See Rule 404(b).
2. Jolly v. State.
Jolly v. State, 314 S.C. 17, 21, 443 S.E.2d 566, 569 (1994) held, “Improper corroboration testimony that is merely cumulative to the victim’s testimony, however, cannot be harmless, because it is precisely this cumulative effect which enhances the devastating impact of improper corroboration” (emphasis supplied by Court). In Jennings, three justices—Toal, Kittredge, and Hearn—appeared ready to hold “that the apparent categorical rule emanating from Jolly v. State and its progeny precluding a finding of harmless error goes too far.” Jennings, 394 S.C. at 482, 716 S.E.2d at 95 (Kittredge, J. concurring).
Although this issue is more likely to present on appeal, rather than at trial, trial counsel should still be mindful of it.
In Jolly, the prosecution presented improper corroboration, hearsay testimony through a social work and a relative of the alleged victim. Jolly did not involve improper opinion evidence that was rejected in Kromah. Jolly became an issue in Jennings because that case also involved admission of written reports of the child interviewer in addition to the improper opinion testimony.
Thus, defense counsel should object to hearsay statements even if cumulative to statements admissible under Section 17-23-175. Failure to object might bar the issue on appeal. Appellate counsel should be wary of prosecution attempts to ask our Supreme Court to overrule Jolly when the real issue on appeal is improper opinion testimony prohibited by Jennings and Kromah.
3. Opinion Testimony by Counselors.
The criminal defense bar should anticipate prosecutors’ attempts to circumvent Kromah by calling the alleged victim’s counselor rather than the child interviewer. No doubt, prosecutors will rely on State v. Schumpert, 312 S.C. 502, 506, 435 S.E.2d 859, 862 (1993), holding “that both expert testimony and behavioral evidence are admissible as rape trauma evidence to prove a sexual offense occurred where the probative value of such evidence outweighs its prejudicial effect.” After Kromah, the defense bar should question the continued validity of Schumpert.
Even if Schumpert remains valid, Kromah limits the nature and extent of the counselor’s testimony. Defense counsel should object to any testimony that suggests that the alleged victim is believable.
Oftentimes, prosecutors will elicit testimony about what is termed “delayed disclosure,” “partial disclosure,” and “continuing disclosure.” These concepts, as well as other prosecution strategies in child sexual abuse cases, are based on the Child Sexual Abuse Accommodation Syndrome (hereinafter “CSAAS”). This prosecution theory originated with Ronald C. Summit’s 1983 article entitled “The Child Sexual Abuse Accommodation Syndrome,” published in the Child Abuse and Neglect Journal. Prosecution witnesses use the CSAAS to explain away problems with the victim’s testimony. Typical prosecution testimony includes delayed disclosure, partial disclosure, and continued disclosure.
Defense lawyers should consider two methods of challenging this type of testimony. First, Dr. Summit published an article in 1992, entitled “Abuse of the Child Sexual Abuse Accommodation Syndrome” that explained how his theory was being improperly used in courtrooms. Second, the CSAAS has not been validated by scientific research. See London et. al., “Disclosure of Child Sexual Abuse: What Does the Research Tell Us About the Ways Children Tell?” 2005, and London et. al., “Review of Contemporary Literature on How Children Report Sexual Abuse to Others: Findings, Methodological Issues, and Implications for Forensic Interviews,” 2008. These documents point out that some of this testimony does not require expert opinion while other types of the testimony are the subject of expert opinion but the “science” has not been validated.
Qualification of counselors as experts should be analyzed under the three prong test set forth in Watson v. Ford Motor Company, 389 S.C. 434, 699 S.E.2d 169 (2010). First, in accordance with Douglas, “the trial court must find that the subject matter is beyond the ordinary knowledge of the jury, thus requiring an expert to explain the matter to the jury.” Second, the proposed expert must have the requisite “knowledge, skill, experience, training, or education.” Rule 702, SCRE; Gooding v. St. Francis Xavier Hosp., 326 S.C. 248, 252-53, 487 S.E.2d 596, 598 (1997). Third, “the trial court must evaluate the substance of the testimony and determine whether it is reliable. See State v. Council, 335 S.C. 1, 20, 515 S.E.2d 515, 518 (evaluating whether expert testimony on DNA analysis met the reliability requirements).”
Based on the criticisms discussed above, the CSAAS will have problems passing the first and third prongs of Watson v. Ford Motor Company. Kromarh is also relevant to the third prong. “[E]xpert testimony addressing the state of mind or guilt of the accused is inadmissible.” State v. Commander, 396 S.C. 254, 268, 721 S.E.2d 413, 420 (2011).
4. Defense (or Independent) Evaluations.
If the prosecution proposes to introduce rape trauma evidence under Schumpert, then the defense might want to move the trial court to order a defense or independent evaluation pursuant to In the interest of Michael H., 360 S.C. 540, 602 S.E.2d 729 (2004). Click here to read a separate blog post discussing “Independent Mental Evaluations of Children Alleging Sexual Abuse” once it is released later today.
In Kromah, a frustrated South Carolina Supreme Court clarified for the bench and bar the role of a child interviewer in a child sexual abuse case. After Kromah, trail judges should no longer qualify the child interviewer as an expert, and criminal defense lawyers should move to exclude use of the term “forensic interviewer.” In addition to understanding the rule articulated in Kromah, criminal defense lawyers should anticipate how prosecutors might try to circumvent Kromah and predict future topics of litigation.
Editorial Note: The South Carolina Association of Criminal Defense Lawyers invited Charles Grose to speak on “Finally Finishing Forensic Interviews” at the 8th Blues, Bar-B-Q, and Bar CLE, on July 12, 2013 in Greenwood, South Carolina. This blog post is the first of four post released to coincide with this seminar. Click these links to read “Independent Mental Evaluations of Children Alleging Sexual Abuse,” “South Carolina’s Sex Offender Registry has Turned into Punishment,” and “Special Concerns Involving Juvenile Sex Offender Registration.”
Disclosure: Charles Grose represented the Appellant in State v. McKerley.