State v. Berry – How to Get Inadmissible Testimony in Front of the Jury

If you are a prosecutor, anyway:  When an objection is sustained, just keep asking similar questions so the jury can hear the inadmissible testimony before the objection is sustained each time.  Then, if the defense attorney does not properly preserve the objections by asking for a curative instruction, to strike the testimony, or for a mistrial, the jury will have heard the inadmissible testimony and it will not be preserved for appeal.  In State v. Berry, the defendant was convicted of criminal sexual conduct (CSC) with a minor, second degree.  At trial, the prosecutor repeatedly elicited inadmissible testimony from a therapist that was clearly designed to bolster the child-victim’s testimony.  Although the defense’s objections at trial were sustained for the most part, the prosecutor continued to elicit the testimony and the answers were heard by the jurors.  The S.C. Supreme Court held that defense counsel’s objections were not preserved for appeal and affirmed the conviction.  What lessons can a new prosecutor learn from this case and most other appellate opinions dealing with child victims?

  • It is difficult to put a child on the witness stand and make them testify;
  • In many cases child witnesses are unpredictable and not credible (if you have ever questioned your own children you will understand);
  • Jurors are more likely to accept and believe testimony coming from a credible adult witness; but
  • Based on prior case law, expert testimony that bolsters a child’s testimony or vouches for a child’s credibility is inadmissible;
  • Even if an objection to testimony is sustained, the jurors have usually already heard the answer even if it is stricken from the record;
  • Most defense attorneys will not properly preserve their objections, especially if the objection was sustained;
  • Even if an appellate court finds error, it will most likely be harmless error and the conviction will stand; and
  • You will not be disciplined or even called out by the circuit or appellate courts for eliciting inadmissible testimony.  You are the good guy.  Even when you’re not.

In this case, the state’s therapist was asked to testify as to whether the child’s statements (hearsay not testified to at trial) were consistent with abuse and whether the delayed disclosure was consistent with abuse.  This portion of the testimony was objected to and the objections were sustained.  Presumably after the questions were answered by the witness, at least in part.  The prosecutor continued the line of questioning prompting more objections that were sustained.  In a later portion of the testimony the therapist was asked about the child’s symptoms of PTSD and whether they were consistent with abuse.  As to this testimony, the defense’s objections were overruled although the grounds for the later objections were not clearly stated on the record.

The Court of Appeals found that the defense’s objections during the first part of the testimony laid out the grounds for the later objections as well.  The Supreme Court held that this was not true – because the first round of objections were sustained, they could not have been preserved for appeal unless the defense then moved to strike the testimony, for a curative instruction, or for a mistrial which the defense did not do.  Since the first objections were not preserved, the later objections were also not preserved.

For the defense, the lesson is clear – you are not going to get a break from the appellate courts, not in a child sex case anyway.  And you have to be prepared for a prosecutor who is going to push the limits – especially in child sex cases.  If you object to testimony you must state the grounds for the objection on the record.  If the judge will not allow you to state the grounds in front of the jury, have the court send the jury out so that you can make a record on the grounds for the objection.  If the objection is sustained, you have won – even though the jurors have already heard the objectionable testimony and they are absolutely going to consider it even though the Court tells them not to.  Because you have “won,” the objection is not properly preserved for appeal.

You must then move to strike the testimony.  If the Court grants the motion to strike, your argument is still not preserved for appeal and the jurors have still heard the objectionable testimony.  You may also have to move for a curative instruction from the Court.  Even if the Court gives a curative instruction, and even if the testimony is “stricken,” the only remedy that will remove the inadmissible testimony from the juror’s memories is to have new jurors.  Move for a mistrial and make it clear for the record that striking the testimony and the curative instruction are not sufficient to cure the error.  If the mistrial is not granted, then the objections and the prejudicial testimony may be preserved for appeal although it may still be harmless error in many cases.

I can’t think of many crimes that are more horrible than hurting a child.  There are prosecutors who are “true believers” and who will do whatever it takes to secure a conviction.  In the minds of some prosecutors and much of the public, it is better to take a chance on jailing an innocent person than it is to take a chance on releasing a person who is going to hurt children.  But, regardless of the horror and shock value of the alleged crime, this is not how our system works.  Although the reality in courtrooms often does not reflect it, our prosecutors are expected to be the ones who uphold the rule of law including the constitution and its protections.  That means not trying to put inadmissible testimony in front of a jury, regardless of whether you will be sanctioned for it or a conviction will later be upheld despite the misconduct.  Most cases can be won fairly by staying within the rules, and, if they cannot be won without cheating, they should not be won.  Being sure of a conviction and making sure that the decision is based only on reliable and therefore admissible evidence is the foundation of our criminal justice system.

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