South Carolina Supreme Court holds child abuse examiners are not to be used as expert witnesses

Posted Wednesday, August 5th, 2015 by Gregory Forman
Filed under Department of Social Services/Child Abuse and Neglect, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

In a criminal appeal that has implications for family law attorneys who defend abuse and neglect proceedings, on August 5, 2015, in the case of State v. Anderson413 S.C. 212, 776 S.E.2d 76 (2015), the South Carolina Supreme Court reversed a criminal sexual conduct with a minor conviction because the trial court allowed the forensic examiner of the child to provide expert testimony at trial on “child abuse assessment.” The Supreme Court held that allowing the same person who conducted the forensic evaluation to provide expert testimony on such assessments impermissibly bolsters the child’s credibility, as the person who conducted the evaluation is now testifying on how to conduct such evaluations in a manner so that the child reveals “the truth.”

The Supreme Court opinion sets forth procedures for criminal cases which will likely also be applicable to abuse and neglect proceedings in family court:

Assuming the court determines that the interview is admissible under the statute, the forensic interviewer will be called to testify before the jury. The sole purpose of her jury testimony is to lay the foundation for the introduction of the videotape, and the questioning must be limited to that subject. There is to be no testimony to such things as techniques, of the instruction to the interview subject of the importance of telling the truth, or that the purpose of the interview is to allow law enforcement to determine whether a criminal investigation is warranted. This type of testimony, which establishes the “particularized guarantees of trustworthiness,” necessarily conveys to the jury that the interviewer and law enforcement believe the victim and that their beliefs led to the defendant’s arrest, these charges, and this trial, thus impermissibly bolstering the minor’s credibility.

Anderson does not preclude the state from calling an expert witness on child abuse assessments to “testify to the behavioral characteristics of sex abuse victims [or, one assumes, victims of physical abuse or neglect].” However it requires that such experts not be the person or persons who conducted the actual forensic evaluation.

The holding in Anderson can almost certainly be used to challenge DSS from eliciting any expert testimony from those who conduct forensic evaluations on children. An objection to such evaluators providing expert testimony is likely to be sustained and likely to lead to reversible error if not sustained.

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