holding, though appellant argued against the admission of videos prior to the victims' testimony, he failed to make any constitutional arguments in support of his objection, and therefore his argument that his constitutional rights were violated was not preserved
How later courts described this case
- holding, though appellant argued against the admission of videos prior to the victims' testimony, he failed to make any constitutional arguments in support of his objection, and therefore his argument that his constitutional rights were violated was not preserved
- finding circuit court's admission of forensic interviewer's reports that vouched for the victims' credibility was not harmless when no physical evidence was presented at trial and the victims' credibility was the most critical determination of the case
- concluding there was no other way to interpret the language in the forensic interviewer's reports that each child had "provide[d] a compelling disclosure of abuse by [appellant]" than to mean she believed the children were truthful
- finding error in the admission of hearsay evidence and the forensic interviewer’s report making a “compelling finding” of child abuse, interpreted to mean the interviewer found the children believable; the error was not harmless where “[t]here was no physical evidence presented in this case” and “[t]he only evidence presented by the State was the children accounts of what occurred and other hearsay evidence of the children’s accounts”
Written by the judges who cited it.
The opinion
Chief Justice TOAL.
I respectfully dissent. While I agree with the majority’s disposition of Appellant’s argument regarding the timing of the introduction of the videos, I disagree with the majority regarding the prejudicial nature of the forensic interviewer’s written reports. I would hold that the admission of the written reports was harmless error and that the reports did not vouch for the children’s veracity.
The majority points to a string of cases to support the assertion that improperly admitted hearsay testimony that is merely cumulative to the victim’s testimony can never be harmless error. See Smith v. State, 386 S.C. 562 , 689 S.E.2d 629 (2010); Dawkins v. State, 346 S.C. 151 , 551 S.E.2d 260 (2001); Jolly v. State, 314 S.C. 17 , 443 S.E.2d 566 (1994). I do not dispute that our cases say as much, but I do disagree with those holdings. Although I concurred in the Jolly opinion, I have come to believe that the Jolly case and its progeny go too far, and consequently, I believe we should take this opportunity to overrule Jolly . In my opinion, these cases create a rule of per se prejudice when testimony is cumulative to the victim’s testimony. Such a rule is contrary to the traditional analysis of improperly admitted hearsay testimony, which requires a finding of prejudice. See State v. Weston, 367 S.C. 279, 288 , 625 S.E.2d 641, 646 (2006) (“The improper admission of hearsay is reversible error only when the admission causes prejudice.”).
*484 In my view, the admission of the written reports was harmless error. The video of the forensic interview was shown at trial, as allowed by statute, the victims testified, and Appellant testified. The jury heard both sides of the story and nonetheless convicted Appellant. Appellant has not shown that the introduction of the reports so tainted the verdict that he was prejudiced. As stated previously, I disagree with the per se rule created by Jolly and its progeny. In my opinion, a defendant should always be required to prove he suffered prejudice from the improper introduction of cumulative hearsay testimony.
I do not believe the forensic interviewer’s report vouched for the credibility of the victims. The interviewer did not state she believed the victims. In fact, she testified that her role as a forensic interviewer was “to interview children and to report the information that they share,” and that “[i]t’s not [her] job to prove guilt or innocence or to prove whether someone is telling the truth or not.” Therefore, in my view, the reports did not vouch for the victims.
Thus, Appellant suffered no prejudice from the introduction of the reports, and I would hold their admission to be harmless error.