PCR granted for failure to object to hearsay and bolstering by forensic interviewer
In Smith v. State, decided February 16, the S.C. Supreme Court granted post conviction relief to Smith, finding that it was ineffective assistance of counsel to fail to object to hearsay testimony by a forensic interviewer that corroborated and bolstered the testimony of the alleged victim.
Smith was charged with criminal sexual conduct (CSC) with a minor and with contributing to the delinquency of a minor. At trial, the forensic interviewer testified without objection that the alleged victim told her that she had been sexually assaulted and that she believed the alleged victim was telling the truth. The prosecutor then used the bolstering in her closing argument, reinforcing the interviewer's testimony that the alleged victim was believable.
To prove a claim of ineffective assistance, the petitioner must show that: (1) counsel's performance fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defendant's case. When the trial lawyer articulates a valid trial strategy, ineffective assistance is not found (failure to object because the lawyer does not want to upset the jury is not a valid trial strategy).
In this case, the trial lawyer testified at the PCR hearing that there was no trial strategy to explain his failure to object to the hearsay and bolstering, and the Court found that there was prejudice because there was conflicting evidence presented at trial. If the hearsay and bolstering had not been allowed in front of the jury, the outcome may well have been different.
