908 N.W.2d 757
S.D.2018Background
- Defendant Jonathan Wills lived with girlfriend Lisa Trebelcock and her children; Trebelcock later accused Wills of sexually abusing child E.G. and a forensic interview at Child’s Voice produced E.G.’s disclosures.
- Wills was indicted for first-degree rape and sexual contact with a child; the forensic interviewer Robyn Niewenhuis (trained in the CornerHouse protocol) testified for the State and the interview video was played.
- Wills testified and denied touching E.G. and denied sexual attraction or curiosity about young girls.
- On cross-examination the State impeached Wills with prior inconsistent statements he made during an unrelated child pornography investigation; the agent who prepared the report was not called and the report itself was not admitted, but Wills reviewed it and gave explanations.
- Wills proffered Dr. Sarah Flynn, a forensic psychiatrist trained in the NICHD interview protocol, to critique the forensic interview; the trial court excluded Dr. Flynn for lack of familiarity with CornerHouse.
- The jury convicted Wills on both counts; on appeal the Supreme Court of South Dakota affirmed the impeachment ruling, reversed exclusion of Dr. Flynn, and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Wills) | Held |
|---|---|---|---|
| 1. Impeachment with prior inconsistent statements | Impeachment was proper under SDCL 19-19-613; statements were defendant’s own and not hearsay | Admission violated Confrontation Clause and was improper because the interviewing agent did not testify | Impeachment was proper; Confrontation Clause not implicated because statements were Wills’s prior inconsistent statements used only for impeachment |
| 2. Whether State’s failure to call agent was prosecutorial misconduct | No misconduct; State informed court it could call agent if needed and Wills ultimately admitted making the statements (though disputed context) | State’s failure to call agent was deceptive and prejudicial; charges had been dismissed so impeachment was improper | No plain error; no misconduct found; State had no obligation to call agent once Wills admitted making statements |
| 3. Admissibility of defense expert (Dr. Flynn) | Dr. Flynn lacked experience with the CornerHouse protocol and thus her critique was unreliable under SDCL 19-19-702/Daubert | Dr. Flynn was qualified in child and forensic psychiatry; she could reliably critique the interview based on shared, generally accepted principles | Exclusion was error. Dr. Flynn was qualified and her testimony should have been admitted; exclusion prejudiced defendant and warranted a new trial |
| 4. Prejudice and remedy | Evidence and rulings were within trial court’s discretion | Exclusion of defense expert was sufficiently prejudicial to require reversal | Affirmed impeachment ruling; reversed exclusion of expert; remanded for new trial |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars admission of testimonial statements by unavailable witnesses without prior cross-examination)
- Douglas v. Alabama, 380 U.S. 415 (1965) (reading accomplice’s confession to jury without opportunity to cross-examine can violate confrontation rights)
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (trial judge’s gatekeeping role for expert testimony under reliability standards)
- Marks, 816 F.2d 1207 (7th Cir.) (examines proof and extrinsic evidence rules for prior inconsistent statements)
- Bell, 624 F.3d 803 (7th Cir.) (treats impeachment by prior inconsistent statements as a permissible non-404(b) use)
- Cerno, 529 F.3d 926 (10th Cir.) (same)
- Gay, 967 F.2d 322 (9th Cir.) (same)
- Stockton, 788 F.2d 210 (4th Cir.) (same)