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Criminal Practice — CSC with a Minor – Expert Testimony – False Memories – Violence against Others

In this case involving a victim’s delayed disclosure about sexual abuse by her mother’s boyfriend, when the trial court decided to exclude a defense expert’s testimony about false memories, the court made the determinations required by Rule 702, SCRE, including relevance. Although the expert indicated that schizoaffective disorder (from which the victim suffered) could result in false memories, he also acknowledged false memories could occur in the absence of the disorder, which casted doubt on a causal link. Furthermore, the expert said he would need to evaluate the victim, or at least review her records – neither of which he had done – to opine on whether the victim’s memories of the alleged abuse by defendant were false. Finally, because of the absence of any evidence that the victim fabricated or otherwise imagined her recollections of her past abuse, the probative value of the expert’s proposed testimony would have been substantially outweighed by the possibility that it would confuse the issues or mislead the jury. The restriction of the expert’s testimony was within the trial court’s discretion.

We affirm defendant’s convictions of criminal sexual conduct with a child in the first degree and lewd act upon a child.

Defendant argues the trial court abused its discretion in allowing a prosecution expert to testify about the risk factors of childhood sexual abuse because the subject matter of the testimony was not beyond the ordinary knowledge of the jury. However, in State v. Acker, Op. No. 5892 (S.C. Ct. App. Filed Jan. 19, 2022), this court found an expert’s testimony concerning risk factors such as substance abuse in the home, a child’s age, a child’s special needs or disabilities and behavioral problems were beyond the ordinary knowledge of the jury. We likewise find the risk factors associated with childhood abuse admitted in this case (e.g., a single-parent household with a live-in caregiver) were not likely to be within the common knowledge of jurors. The trial court did not abuse its discretion in admitting this evidence.

Where the prosecution expert testified at length regarding her qualifications as a licensed professional counselor, provided a source with an overview of the topics she was expected to testify about, and explained that it contained an extensive bibliography of the topics related to child abuse, the trial court acted within its discretion in qualifying her as an expert witness regardless of whether she fully complied with defendant’s subpoena duces tecum.

Before allowing the victim to testify about defendant’s violence against her mother, the trial court should have conducted the balancing test required by Rule 404(b), SCRE. However, given the extensive evidence of defendant’s other violent acts, which was admitted without objection, this was harmless error.

The trial court allowed the victim’s mother to testify about a letter, which she could not produce, that defendant had written to her. Since the letter referred to abusive behavior against the mother, not sexual abuse of the victim, the original letter was not required because it referenced a collateral matter under Rule 1004(4), SCRE. Moreover, any error in admitting testimony about the letter was harmless as cumulative based on the many other instances of violence admitted without objection.


State v. Galloway Microsoft Word – Op. 5905 – The State v. Richard K. Galloway ( Weekly No. 011-021-22, 11 pp.) (Paula Thomas, J.) Appealed from Greenville County Circuit Court (Perry Gravely, J.) Joanna Delany for appellant; Alan McCrory Wilson, David Spencer and William Wilkins for respondent. S.C. App.

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