holding the trial court erred in allowing a doctor to testify that a victim had never been untruthful with her
How later courts described this case
- holding the trial court erred in allowing a doctor to testify that a victim had never been untruthful with her
- noting that the Supreme Court gives the commentaries printed with the North Carolina Rules of Evidence “substantial weight” in determining legislative intent
- testimony that the victim has “never been untruthful with me about it. Everything that she had to say to me somehow I’d find out later that she was telling the truth” was improper expert testimony to establish the victim’s credibility as a witness
- testimony that victim had not been untruthful with expert inadmissible
Written by the judges who cited it.
The opinion
Justice Martin
dissenting.
I respectfully dissent. The testimony of Dr. Barnette which the majority decides was erroneously permitted was not an expert opinion as to the victim’s character or reputation for truthfulness; the testimony was a response based upon personal knowledge to a factual question. Dr. Barnette testified merely that the victim was “never untruthful with me . . . [and that] [ejverything she had to say to me somehow I’d find out later that she was telling the truth.” This is not an expert opinion that the victim was always truthful, that is, had a reputation or character for truthfulness, but merely a statement of fact that during Dr. Barnette’s firsthand experience with the victim, the victim was *623 not untruthful to her. Compare State v. Aguallo, 318 N.C. 590 , 350 S.E. 2d 76 (1986), in which we found error in asking an examining psychiatrist whether he had “form[ed] an opinion about whether [the victim] was believable or not” (emphasis added), and State v. Heath, 316 N.C. 339 , 341 S.E. 2d 565 (1986), in which we found error in asking an expert if she had “an opinion as to whether or not [the victim] was suffering from any type of . . . mental condition which could or might have caused her to make up a story about the sexual assault.” Although Dr. Barnette had been qualified to testify as an expert witness, the particular testimony she gave in response to the question (“Dr. Barnette, as you evaluated and treated [the victim], did you ever find her untruthful with you?”) was not an expert opinion; it was a factual statement. As such, it falls neither under N.C.R. Evid. 608(a) nor 405 and was properly admitted into evidence.
I also disagree with the majority’s assumption that “the testimony complained of was part of an attempt by the prosecutor to rehabilitate the victim as a witness after she had been impeached by cross-examination concerning a prior inconsistent statement.” There is no evidence of record that this was the purpose for which the testimony was offered. It could just as well have been offered to test the strength of the witness’s own experience with the victim, or for some other purpose.
Finally, assuming, but in no way conceding, that the testimony was erroneously allowed by the trial court, I cannot agree that such an alleged error was prejudicial under N.C.G.S. § 15A-1443(a). The jury had before it plenty of evidence corroborating the victim’s account of events. It also heard Dr. Barnette testify that the victim had discussed with her the possibility of lying about the identity of the person who had committed the sexual acts. The jury, as fact finder, was thus well apprised of potential problems with the victim’s credibility and could make its own assessment of it. Defendant has failed to show how the testimony at issue here can reasonably be said to have tipped the balance against him.
For these reasons I find no reversible error in the admission of Dr. Barnette’s statement.
I am authorized to state that Justices Meyer and Browning join in this dissenting opinion.