573 S.W.3d 596
Ark. Ct. App.2019Background
- Jared Harper was convicted of rape, second-degree sexual assault, and sexual indecency with a child and sentenced to an aggregate 360 months' imprisonment after a retrial in April 2018.
- Victim K.S. first disclosed abuse in March 2015 (ages 7–10 alleged abuse), later recanted multiple times (2015 and 2016), and then reaffirmed the allegations in 2017; her direct testimony was central to the prosecution's case.
- Missy Davidson, a CAC program director/forensic interviewer, was admitted over Harper's objection to testify generally about forensic interview technique and the five stages of disclosure (including recantation), but she did not testify about K.S. specifically.
- Harper moved for a continuance shortly before trial after receiving a thumb drive with extensive data from the victim’s mother's phone; the trial court denied the continuance and Harper did not show specific prejudice on appeal.
- Harper requested the prosecutor’s notes from a March 6, 2017 interview with K.S.; the trial court denied production and refused to conduct an in camera review or seal the notes for appellate review. The appellate court remanded for in camera review because the record lacked the notes for review.
Issues
| Issue | Harper's Argument | State's Argument | Held |
|---|---|---|---|
| Admissibility of expert testimony on recantation | Davidson’s testimony amounted to improper profiling/bolstering of the victim | Davidson testified only generally about interview techniques and recantation stages, not about K.S. | Court affirmed: expert testimony about forensic interviews/recantation was admissible and not bolstering |
| Denial of continuance to review thumb-drive evidence | Denial prejudiced Harper because he could not meaningfully use voluminous files before trial | Contents were provided; Harper failed to identify what specific material was prejudicial | Court affirmed: no abuse of discretion shown or demonstrated prejudice |
| Production of prosecutor’s notes from March 6, 2017 interview | Notes could contain Brady or substantially verbatim statements; should be produced or reviewed in camera | Prosecutor stated notes were not verbatim and were work product/opinion and had disclosed substance already | Court reversed remand: trial court should conduct in camera review (or seal notes) to determine whether they are substantially verbatim or Brady material; if material, remedy per Ritchie/Taffner |
| Remedy where notes unavailable on appeal | Requested seal/in camera review for appellate preservation | Trial court declined; state urged notes were not discoverable | Court remanded for in camera review and instruction that if notes likely would have changed outcome, new trial required; otherwise verdicts stand |
Key Cases Cited
- Johninson v. State, 317 Ark. 431, 878 S.W.2d 727 (expert-admissibility standard and abuse-of-discretion)
- Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (expert testimony explaining investigative criteria is permissible and not automatic bolstering)
- Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (permitting expert testimony that recantation is not unusual)
- Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (prior statements that are substantially verbatim and contemporaneous must be produced)
- Sweeten v. State, 564 S.W.3d 575 (Ark. Ct. App. 2018) (upholding Davidson-style generalized testimony about forensic interviewing)
- Taffner v. State, 541 S.W.3d 430 (Ark. 2018) (applying Ritchie remand principle for in camera review of files that may affect outcome)
- Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (trial court should review confidential files in camera to determine materiality; remand for further proceedings if material likely to change outcome)