As I mentioned last month, Timothy Heinle and I are nearing completion of an updated Superior Court Judges’ Benchbook chapter on Evidence Issues in Criminal Cases Involving Child Victims and Child Witnesses.
One of the most challenging and error-prone topics covered in the chapter is what an expert may and may not testify to. In the great majority of cases involving child sexual abuse, no physical evidence supports the allegations. Thus, credibility is central, and North Carolina appellate courts have been careful to prevent experts from opining on the credibility of the child victim. See State v. Stancil, 355 N.C. 266 (2002) (expert testimony that sexual abuse occurred based on exams and an interview but without physical evidence was ruled improper); State v. Aguallo, 318 N.C. 590, 599 (1986) (improper to testify that a child was “believable”).
Other frequently-litigated topics are what the expert can say about physical injuries when they are present, what experts can say about common characteristics and syndromes of abused children, as well as the characteristics or syndromes of the child in the present case, and what expert testimony constitutes an impermissible legal conclusion and what is permissible testimony on an “ultimate issue” (a prior post addresses this dichotomy in the context of mental health defenses).
In the Benchbook chapter, Timothy and I discuss the case law on expert testimony in these cases in detail. Timothy has also created a useful quick reference guide setting forth the core legal tenets. When our former colleague Jessie Smith taught this material, she often used direct excerpts from colloquies between lawyers and experts to illustrate the fine distinctions our courts have drawn between permissible and impermissible testimony.
In teaching this material to defenders, prosecutors, and judges, I have found it valuable to scrutinize concrete examples of expert testimony: the specific verbiage and phrases our courts have deemed proper or improper. I’ve taken a page from my colleagues’ approaches and developed an “Expert-Testimony Phrase Chart,” organizing the material by topic and dividing phrases into “green light,” “red light,” and “yellow light” categories. The chart can be found here. I hope you find it useful and would welcome any feedback.
