Defense counsel should consider requesting an independent mental evaluation of a child alleging sexual abuse in two circumstances. The first is when the prosecution might seek to introduce through the counselor opinion evidence about rape trauma. For a discussion of State v. Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993) and limitations on expert testimony, please click here to read “Finally Finishing Forensic Interviews? No, but Why and What Comes Next?” As discussed in that post, prosecutors are likely to introduce counselor testimony in hopes of circumventing our Supreme Court’s holding in State v. Kromah, 401 S.C. 340, 737 S.E.2d 490 (2013).
The second circumstance is when there might be an issue about the child’s competency to testify. “A person is disqualified to be a witness if the court determines that the proposed witness is incapable of understanding the duty of a witness to tell the truth.” Rule 601(b), SCRE. “The purpose of Rule 601(b) is to provide a minimum standard for the competency of a witness.” State v. Needs, 333 S.C. 134, 508 S.E.2d 857 (1998). In Needs, our Supreme Court held:
A proposed witness understands the duty to tell the truth when he states that he knows that it is right to tell the truth and wrong to lie, that he will tell the truth if permitted to testify, and that he fears punishment if he does lie, even if that fear is motivated solely by the perjury statute. . . . [I]n order to be competent to testify, a witness must have the ability (1) to perceive the event with a substantial degree of accuracy, (2) remember it, (3) communicate about it intelligibly, and (4) be mindful of the duty to tell the truth under oath.
Courts routinely consult mental health professionals when competency is an issue. In In the Interest of Michael H., 360 S.C. 540, 602 S.E.2d 729 (2004), our Supreme Court held the trial court could order a complaining child witness to submit to a psychological evaluation when there is a compelling need for the evaluation. There are six factors for the trial court to consider when ordering the evaluation:
- The nature of the examination requested and the intrusiveness inherent in that examination;
- The victim’s age;
- The resulting physical and/or emotional effects of the examination on the victim;
- The probative value of the examination to the issue before the court;
- The remoteness in time of the examination to the alleged criminal act; and
- The evidence already available for the defendant’s use.
Michael H., 360 S.C. at 547, 602 S.E.2d at 732-33.
In Michael H., our Supreme Court joined jurisdictions that “give the trial judge discretion to order a victim to submit to a psychological evaluation when the defendant can show a compelling need for such an evaluation.” Id., 360 S.C. at 547, 602 S.E.2d at 732. When adopting this rule, the Court recognized, “Cases involving child victims present special concerns that weigh in favor of allowing judicial discretion to order psychological evaluations.” Id., 360 S.C. at 549, 602 S.E.2d at 733. Our Court admonished, “The judge is required to weigh competing interests to ensure the truth of a matter is brought to light and justice to all parties before the court is served.” Id. (emphasis added).
The Court tacitly acknowledged it could be unfair to a defendant for the state to have access to a CSC victim when the defendant does not have access. Id. at fn. 7 (citing Jeffrey P. Bloom, Post-Schumpert Era Independent Interviews and Psychological Evaluations of Child Witnesses, July/Aug. S.C. Law. 40 (July/Aug.1998) (arguing the State has an evidentiary advantage that amounts to a violation of due process when the State is allowed an opportunity to evaluate a child witness, but the defense is not)). Michael H., however, did not specifically address the situation where, as is routinely the case in child sexual abuse cases, prosecution experts had access to the child, but the defendant did not. Guidance can be found by looking to the jurisdiction our Supreme Court followed in Michael H. Significantly, Michael H. adopted the West Virginia Supreme Court’s procedure outlined in State v. Delaney, 187 W.Va. 212, 417 S.E.2d 903 (1992).
Michael H. noted Nevada is one of the states allowing the trial judge to order an evaluation of a child victim. Michael H., 360 S.C. at 547, 602 S.E.2d at 732 (citing Koerschner v. State, 116 Nev. 1111, 13 P.3d 451 (2000)). Koerschner observed:
[C]ompelling reasons to be weighed, not necessarily to be given equal weight, involve whether the State actually calls or obtains some benefit from an expert in psychology or psychiatry, whether the evidence of the offense is supported by little or no corroboration beyond the testimony of the victim, and whether there is a reasonable basis for believing that the victim’s mental or emotional state may have affected his or her veracity.
Koerschner, 116 Nev. At 117, 13 P.3d at 455.
Although South Carolina did not adopt the test set forth in Koerschner, the underlying policy considerations are instructive.
Delaney, in fact, involved a situation where the prosecution expert had access to the victims, but the defense experts did not. See Delaney, 187 W.Va. at 215, 417 S.E.2d at 905 (sexual trauma counselor testified the three victims “displayed symptoms of children who had been sexually assaulted or abused”). Following Delaney, Wisconsin holds, “When the state manifests an intent during its case-in-chief to present testimony of one or more experts, who have personally examined a victim of an alleged sexual assault, and will testify that the victim’s behavior is consistent with the behaviors of other victims of sexual assault, a defendant may request a psychological examination of the victim.” State v. Maday, 179 Wis.2d 346, 359-60, 507 N.W.2d 365, 372 (Ct. App. 1993). Maday adopted the “compelling need” test outlined in Delaney, including the six factors for the trial court to consider. Maday added a seventh factor:
The trial court should consider, based on the testimony of the defendant’s named experts, whether or not a personal interview with the victim is essential before the expert can form an opinion, to a reasonable degree of psychological or psychiatric certainty, that the victim’s behaviors are consistent with the behaviors of other victims of sexual abuse.
Id. 179 Wis.2d at 360, 507 N.W.2d at 372. (emphasis added). Counsel should remember that the child sexual abuse counselors are often times part of an inter-diciplinary team that prepares the State’s case for trial. See S.C. Code Ann. § 63-11-310(A)(4) (Children Advocacy Centers “must provide therapeutic counseling services [and] court advocacy”). In addition to limiting opinion testimony under Kromah, defense counsel should investigate and confront prosecution evidence elicited through counselors.
Defense counsel, therefore, should consider moving for an independent mental health evaluation in situations where the prosecution might introduce rape trauma evidence or the child’s competency to testify is an issue. As part of the investigation into theses issues, counsel should move the trial court for disclosure of the child’s counseling records. See S.C. Code Ann. § 19-11-95(D)(1) (“A provider shall reveal confidences [including records] when required by statutory law or by court order for good cause shown to the extent that the patient’s care and treatment or the nature and extent of his mental illness or emotional condition are reasonably at issue in a proceeding.”).
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 second of four post released to coincide with this seminar. Click these links to read “Finally Finishing Forensic Interviews? No, but Why and What Comes Next?,” “South Carolina’s Sex Offender Registry has Turned into Punishment,” and “Special Concerns Involving Juvenile Sex Offender Registration.”