Child molestation conviction reversed due to ineffective assistance of counsel
The Court of Appeals of Georgia recently ruled that defense counsel is deficient when it fails to object to expert testimony which improperly bolsters a victim’s credibility. Specifically, a psychological expert may not testify that his evaluation of a victim “strongly suggests” sexual abuse as alleged, and the failure of defense counsel to object to such testimony constitutes deficient counsel.
In Pointer v. State, the defendant, Pointer, was charged with aggravated child molestation, child molestation, and incest in regards to his first daughter and two counts of child molestation in regards to his second daughter. A jury convicted him of child molestation and sexual battery against the second daughter. The jury found him not guilty on the other charges.
During trial, a clinical psychologist testified as an expert for the state. The expert told the jury that the second daughter had told him that Pointer had fondled her three separate times, and that he “he stuck his finger in her” during the last incident. In preparation for trial, the psychologist had displayed psychological testing cards for the daughter and assessed her responses. At trial, the prosecutor asked the expert his opinion of the girl’s responses. The expert replied that the responses were “consistent with her reports of being sexually abused by her father.” The prosecutor then asked for the expert’s overall impression. The expert replied that the result of the evaluation “strongly suggests that [the child] had been sexually abused as alleged.” The prosecutor then asked if the abuse was committed by Pointer. The expert agreed. Defense counsel only objected to the final question. The trial court sustained the objection by ruling that the expert could only state that the child was abused but the expert could not state who committed the act. However, defense counsel did not ask for curative instruction and none was given.
On appeal, Pointer argued that defense counsel should have objected to the “strongly suggests” language used by the expert, and that the failure to object constituted ineffective assistance of counsel. The appellate court agreed with Pointer. In order to obtain a reversal based on ineffective assistance of counsel, a defendant must show that trial counsel’s performance was deficient, and that but for the deficient performance there is a reasonable probability the outcome would have been different.
In regards to expert witnesses, they may not testify as to whether a child has been sexually abused unless jurors are not capable of drawing such an inference for themselves due to a lack of specialized skill or experience. This is because such testimony takes the ultimate issue away from the jury. However, it is generally okay for an expert to say that a victim’s psychological exam was consistent with sexual abuse. The court determined that the language “strongly suggests” falls in the middle of these two examples, but when taken into consideration with the “as alleged” language, the testimony was a factual conclusion which should have been left to the jury to decide. Thus, defense counsel was deficient for not objecting.
The court also held that but for the deficiency there is a reasonable probability that the outcome would have been different. This is mainly due to the fact that the evidence against Pointer was not overwhelming and was largely based on the credibility of the witnesses. In holding so, the court reversed Pointer’s conviction and ordered a new trial.
Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.
