South Carolina Lawyers Weekly
In a criminal sexual conduct with a minor trial, the court admitted the testimony of the purported victim of an uncharged second crime and her mother (Mother 2), who was in the U.S. illegally and who had been granted a U-visa (a visa which allows victims of certain crimes, who have suffered mental or physical abuse and are helpful to the government in the investigation or prosecution of the criminal activity, to be lawfully present in the U.S.); however, the trial court erroneously prevented defendant from cross-examining Mother 2 about her U-visa application. Our Court of Appeals erred in determining that this error was harmless because, in making that determination, the Court of Appeals engaged in a credibility analysis that should have been left to the jury.
We reverse and remand for a new trial.
Because there was no physical evidence of the alleged abuse, this case rested solely on credibility determinations. Thus, defendant’s opportunity to elicit testimony from the state’s witnesses regarding any potential bias was critical to his defense.
In particular, the mothers (Mother 1 and Mother 2) of both purported victims (Minor 1 and Minor 2) both applied for U-visas as a result of their daughters’ accusations. Considering the significance of obtaining a U-visa and the manner in which the visa is acquired, a jury could see the U-visa applications as a means of establishing bias in both minors and their mothers.
Mother 2’s U-visa testimony was relevant to any theory that the victims falsely alleged these crimes in an attempt to gain citizenship for their parents. Therefore, prohibiting Mother 2 from testifying about her U-visa application prevented defendant from establishing a full picture of the witnesses’ biases. Moreover, testimony concerning Mother 2’s U-visa application would not have been cumulative to other testimony in the record.
The trial court’s failure to admit evidence of Mother 2’s U-visa application was particularly significant in this case given (1) the lack of physical evidence of the alleged abuse and (2) Minor 1’s conflicting testimony.
The Confrontation Clause violation was not harmless. Accordingly, we reverse the Court of Appeals’ decision and remand for a new trial.
Reversed and remanded.
Concurrence
(Hearn, J.) I write separately because I believe we should take this opportunity to overturn our holding in State v. Wallace, 384 S.C. 428, 683 S.E.2d 275 (2009), which has so expanded the admissibility of prior bad acts in sexual offense cases that the exception has swallowed the rule.
The Wallace majority held, “A close degree of similarity establishes the required connection between the two acts and no further ‘connection’ must be shown for admissibility.” Under this framework, prior bad acts are admissible as a common scheme or plan in sexual abuse cases when the similarities to the charged crime outweigh the dissimilarities.
Without requiring a greater degree of connection beyond only a mere similarity, the exception has been enlarged such that it has become simply a means to prove a defendant’s criminal propensity. Just as mere similarities between the prior bad act and the crime charged would be insufficient in the case of all other crimes, it should likewise be insufficient when sexual misconduct is involved.
State v. Perez (Lawyers Weekly No. 010-061-18, 12 pp.) (Donald Beatty, C.J.) (Kaye Hearn, J., joined by Donald Beatty, C.J., concurring in the result) (Costa Pleicones, Acting Justice, not participating) Appealed from the Circuit Court in Charleston County (J.C. Nicholson Jr., J.) On writ of certiorari from the Court of Appeals. Jason Luck and Robert Dudek for Petitioner/Respondent; Alan Wilson, Amie Clifford, and Scarlett Wilson for Respondent/Petitioner. S.C. S. Ct.
