Expert testimony bolstering a child’s credibility is improper

Posted Tuesday, October 6th, 2020 by Gregory Forman
Filed under Child Custody, Family Court Procedure, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

Despite repeated opinions from the South Carolina appellate courts indicating that expert testimony bolstering a child’s credibility is verboten, it continues to happen. Perhaps this is because most of the case law on the issue stems from criminal appeals; perhaps it’s because not enough family law attorneys are aware the issue has been explicitly applied in a DSS proceeding.

The following isn’t even a complete list of reported criminal cases on this issue: Chappell v. State, 429 S.C. 68, 75, 837 S.E.2d 496, 499 (Ct. App. 2019) (a witness may not give testimony that improperly bolsters the credibility of the victim); State v. Kromah, 401 S.C. 340, 358, 737 S.E.2d 490, 499 (2013) (“even though experts are permitted to give an opinion, they may not offer an opinion regarding the credibility of others”); State v. Jennings, 394 S.C. 473, 478, 716 S.E.2d 91, 93 (2011) (reversible error to allow the forensic interviewer to vouch for the credibility of the children); State v. Hill, 394 S.C. 280, 294, 715 S.E.2d 368, 376 (Ct. App. 2011), overruled on other grounds by State v. Stukes, 416 S.C. 493, 787 S.E.2d 480 (2016) (“it is improper for a witness to give testimony as to his or her opinion about the credibility of a child victim in a sexual abuse matter.”): State v. Dempsey, 340 S.C. 565, 568–71, 532 S.E.2d 306, 308–09 (Ct.App.2000) (where child sexual abuse counselor’s testimony included how he determined whether a child was telling the truth, his specific finding that child victim’s answers and responses did not include any abnormality that would lead him to believe that child victim was not telling the truth, his testimony that children were being truthful in ninety-five percent of instances in which sexual abuse was alleged, and his conclusion that child victim in that case was being reliable, constituted improper vouching for the child victim) State v. Dawkins, 297 S.C. 386, 393–94, 377 S.E.2d 298, 302 (1989) (noting treating psychiatrist’s indication he believed victim’s allegations concerning symptoms were genuine was improper).

This prohibition has been applied to family court matters. S.C. Dep’t of Soc. Servs. v. Lisa C., 380 S.C. 406, 414, 669 S.E.2d 647, 651–52 (Ct. App. 2008) (“For a psychologist to comment on the veracity of a child’s accusations of sexual abuse is improper.”).

Litigants continue to have children’s counselors or forensic examiners vouch for the child’s credibility. It’s only error if the other side objects.

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