Bolstering in Child Sex Abuse Cases in SC
For many people, one of the most horrible crimes they can think of is when someone hurts a child.
But, it is also one of the most horrible accusations for an innocent person – a child abuse accusation, even when the person is acquitted, follows them for the rest of their lives and is difficult to shake. In many cases, there is a dual tragedy when a child is abused, and, because of the many very real phenomena that result in false allegations including identification of the wrong person or multiple suggestive interviews of the child, an innocent person is convicted.
For some prosecutors, investigators, victim’s advocates, and therapists, prosecuting and preventing child abuse has become their life’s mission – I’m not knocking that, and I’m glad that there are many people who are fighting to protect the most vulnerable among us.
But, are prosecutors, child advocates, and other “true believers” getting convictions fairly? Are they following SC Supreme Court guidance on how to try these cases? Or, are they fighting to get convictions any way they can, because, in a child sexual abuse case, it is better to convict ten innocent persons than let one guilty defendant walk free?
What is Bolstering?
One method that prosecutors have used for some time is to “bolster” a child witness’ credibility – in any way possible and as often as possible.
It’s when another witness, or even the prosecutor themselves, makes statements to the jury that indicate they believe the child witness, that the child is telling the truth, or that they have “vetted” the allegations prior to trial – implying that the jury’s decision as to the child’s truthfulness has already been made for the jury…
There are a number of cases that have addressed impermissible bolstering in child sex abuse trials, including:
- State v. McKerley, 397 S.C. 461, 466-67, 725 S.E.2d 139, 142-43 (Ct. App. 2012);
- State v. Jennings, 394 S.C. 473, 716 S.E.2d 91 (S.C., 2011);
- Smith v. State, 689 S.E.2d 629, 386 S.C. 562 (S.C., 2010);
- State v. Kromah, 401 S.C. 340, 360, 737 S.E.2d 490, 500 (S.C., 2013); and
- Briggs v. State, 421 S.C. 316, 806 S.E.2d 713 (S.C., 2017).
For the most part, these cases address the use of “forensic interviewers” during trial to bolster a child’s testimony – the appellate courts have found that forensic interviewer testimony serves no purpose other than to bolster a child witness’ credibility – therefore, they should not be qualified as experts and their testimony must be limited to their own personal observations and to lay a foundation for admissibility of the videotaped interview of a child.
Expert testimony (in the context of forensic interviews) that implies a child witness is truthful, that the allegation or disclosure was “credible,” that a “team of experts” determined the disclosure was credible, or any testimony that serves no purpose other than to imply to the jury that the prosecutor or expert believes the child’s allegations, is not admissible.
Problem solved, right? No forensic interviewer “expert testimony,” no more bolstering of the child…
Child Abuse Dynamics and Delayed Disclosure
The courts have also said that is okay to qualify an expert in the field of “child abuse dynamics,” and other variations – an expert can testify as to why children would delay disclosure, recant allegations, or explain other common behaviors among abused children that jurors may not intuitively understand.
So, what are prosecutors doing now?
They are calling experts in “child abuse dynamics” or “fields of study” other than forensic interviewing and questioning those experts about the forensic interview – including how they make a determination that sexual abuse occurred, why they believe the disclosure was credible, and how a team of experts determined that sexual abuse occurred long before the case came to trial.
All the same testimony that is inadmissible when a forensic interviewer is on the stand, but that’s okay because it’s not a forensic interviewer…
Does it Matter?
Everyone wants to put child sex abusers behind bars, right?
SC’s prosecutors will continue to bolster child witnesses, qualify expert witnesses for improper purposes, and look for every loophole that they can find to get a conviction, so long as the SC Supreme Court continues to look the other way and allows it to happen.
Prosecutors do not need to cheat to get convictions.
If they do, there is doubt as to the defendant’s guilt, and our system is designed to set those people free whether prosecutors like it or not. When one side can cheat and obtain convictions on an improper basis, the system has failed – guilty people will go to prison, but innocent people will also go to prison.
What would happen if the defense called witnesses in a child sex abuse case whose only purpose was to tell the jury that the child is a liar? No judge in the state would allow it, because it’s improper, it is not a fair tactic, and it takes away from the jurors their most important decision – is the child telling the truth?
The SC Supreme Court needs to step in, stop looking the other way, call bolstering when they see it and reverse convictions because there is no other deterrence for prosecutors – unlike defense lawyers, they will not face professional discipline, they will not go to jail, and they cannot be sued.
Criminal Defense and Sex Crimes Defense Lawyer in Charleston, SC
Grant B. Smaldone is a criminal defense trial lawyer in Charleston, SC. If you are facing sex crime charges, you are going to be facing tough and sometimes fanatical true believers in the solicitor’s office, and you need an experienced advocate on your side.
Call now at (843) 808-2100 or send us a message through our website to set up a free, confidential consultation about your charges.