Criminal Practice – CSC with a Child – Forensic Interview – Limited Cross-Examination – Interview Techniques

Defendant’s problems with a prosecution witness’s forensic interview techniques should have been brought up outside the presence of the jury, while the trial court was deciding the issue of admissibility. The trial court properly declined to allow defendant to cross-examine the witness about her interview techniques before the jury.

We affirm defendant’s conviction for first-degree criminal sexual conduct (CSC) with a minor.

Defendant argues the circuit court erred in preventing him from cross-examining the interviewer about her methodology and “suggestive interviewing technique.” He asserts recent decisions—particularly State v. Anderson, 413 S.C. 212, 776 S.E.2d 76 (2015), and State v. Kromah, 401 S.C. 340, 737 S.E.2d 490 (2013)—do not preclude his cross-examination because he was not seeking the interviewer’s opinion on the alleged victim’s truthfulness. Instead, he says, he was seeking to highlight the ways the interviewer may have inadvertently affected the nature and scope of the disclosure.

Our disagreement with defendant’s argument is driven by the fact that the law contemplates challenges to the interview method being hashed out in front of the judge and away from the jury. S.C. Code Ann. § 17-23-175(A)(4) says a recorded interview is only admissible if the court finds, after a hearing, “that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness.”

Anderson explains the interviewer should be called to testify in camera. There, the interviewer “must” testify to establish her training and background, the method or technique employed in the interview, and anything else relevant to the statute’s “trustworthiness” factors. If the court finds the interview admissible, the interviewer’s “sole purpose” in front of the jury is to lay the foundation for the interview. The discussion of techniques, including that the child was instructed about the importance of telling the truth, is not allowed. Although this testimony helps establish the “guarantees of trustworthiness,” it necessarily (albeit implicitly) bolsters the child’s credibility.

Defendant did not argue against any of the trustworthiness factors. He proposed to attack them not in front of the judge but before the jury. He cannot do so because whether particular questions were leading questions and whether the interviewer’s method was appropriate are part of the determination of whether the interview satisfies the statute’s criteria for admission. That is a question for the judge, not the jury.

Moreover, if defendant can attack method and training, the state must necessarily dispute defendant’s viewpoint, and it is difficult to envision how the state could dispute the attack without bolstering the child’s credibility.

The circuit court declined to allow questioning on topics prohibited by precedent, instructing instead that the interview was “fair game” for closing argument. This approach was sound and therefore not an abuse of discretion.

Other Issues

Defendant challenges the circuit court’s exclusion of testimony by his expert witness, Dr. Amanda Salas. Much of the testimony that defendant wished to elicit from Salas was a direct comment on the credibility of the statements in the child’s interview. Our precedents cannot be reasonably read to support allowing Salas’ proposed testimony.

In a police officer’s body cam footage, a person named “Ashley” is mentioned, but Ashley is not referenced in the officer’s report. Defendant claimed a violation of Brady v. Maryland, 373 U.S. 83 (1963), because the state was unable to locate and turn over the officer’s notes. However, none of the witnesses at trial, including the child’s parents, knew who Ashley was. The child did not reference Ashley in the recorded interview or in her trial testimony. These two things in conjunction make it unlikely that Ashley had any information about the child’s sexual abuse (or that Ashley even existed). Defendant cross-examined witnesses about Ashley at trial. Thus, we agree with the circuit court that defendant did not establish a Brady violation.

Affirmed.

State v. Clark (Lawyers Weekly No. 011-012-23, 10 pp.) (Blake Hewitt, J.) Appealed from Pickens County Circuit Court (Donald Hoeker, J.) Cameron Jane Blazer for appellant; Alan McCrory Wilson, Ambree Michele Muller and William Walter Wilkins for respondent. S.C. App.