South Carolina Criminal Defense Blog

In State v. Douglas, the S.C. Supreme Court held that it was not appropriate for the trial court to qualify a forensic interviewer as an expert in the RATAC method, but that it was harmless error.

Here, Herod testified she had been employed as the Sumter County victim’s assistance officer since 1998. Although she did not have a college degree, she had attended a 40-hour training course on forensic interviewing, and had completed two weeks of training classes. She had interviewed hundreds of victims and had testified in court several times before. Herod testified she had been back for follow up courses and advanced courses and that there was a monthly national newsletter in order to enable her to keep up with things going on nationwide regarding the forensic interviewing process.

Herod also testified as to her utilization of the R-A-T-A-C method to establish a rapport with child victims, and testified as to her interview with the victim in this case. Ultimately, Herod testified that based on the interview, it was her opinion the victim needed to go to the Durant Center for a medical exam.

We find the testimony given by Herod in the present case simply was not required to be presented by an expert witness.[2] Herod testified only as to her personal observations and experiences, and her interview with the Victim in this case. Accordingly, we find it was unnecessary for the trial court to have qualified her as an expert. However, although Herod did not need to be so qualified in this case, we nonetheless affirm the result reached by the Court of Appeals, because Douglas suffered no prejudice either as a result of Herod’s testimony or by her qualification as an expert.

The Court held that it was harmless error because the jury was not likely to give her testimony more weight because she was an expert (this assertion is "untenable," the Court says). Also, the testimony of the forensic examiner was not "vouching" for the witness' credibility ("There is no evidence whatsoever that Herod believed the Victim to be telling the truth").

Pleicones' dissent is more intellectually honest, as he points out that "qualification as an expert clothes the witness with an air of authority that does not attach to 'ordinary' witnesses." Of course the jury is going to attach more importance to the testimony of someone the judge admits as an "expert." Also, despite the majority's assertion that there was "no evidence whatsoever" that the witness was vouching for the child's credibility, that seemed to be the sole reason for the states' calling the witness to the stand.

Herod’s testimony went to an ultimate issue for the jury: the victim’s credibility. Herod testified that in applying the RATAC method, she and the victim “talk a lot about telling the truth and telling a lie and we make an agreement with each other that I will tell her the truth and that she will tell me the truth” and “if the child agrees to do that” Herod continues the interview. Herod testified that after concluding the interview, she determined “that [the victim] needed to go to the Durant Center for a medical exam . . . .” I agree with the Court of Appeals that the only reasonable conclusion to be drawn from Herod’s testimony is that, based upon her training, she believed that the victim was being truthful. Juries do not require the assistance of human “truth detectors” in assessing the credibility of testimony.

Pleicones points out that, although there was physical evidence that the child had been abused, nothing other than the child's testimony connected the defendant to the crime. The interviewer's qualification as an expert, coupled with her vouching for the witness' believability, was not harmless. I wonder whether this outcome would have been the same if this had been any other type of crime (other than DUI, of course). No-one wants a child abuser to escape punishment or to remain free to abuse again, but that does not mean that we should afford a person accused of child abuse any less due process than any citizen accused of any crime is entitled to.