McCafferty v. Solem

McCAFFERTY, Bruce Petitioner Appellee, SOLEM, Warden,

Herman South Dakota Penitentiary, Respondent Appellant.

Nos. 16137.

Supreme Court of South Dakota. Aug.

Considered Briefs 1988.

Reassigned July 1989.

Decided Dec. 1989.

Rehearing Denied Jan. 1990. M.

Timothy Davenport, Gebhart of Ev- ans, Smith, Falls, Hurwitz & peti- Sioux for appellee. tioner and Bratt, Gen., Pierre, Atty. Mark L. Asst. respondent appellant; Roger A. Pierre, Tellinghuisen, Atty. Gen., on brief. MORGAN, (on reassignment). Justice appeal This arises from decision on the corpus petition of Bruce McCaffer ty (McCafferty) challenging the constitu tionality of his for a conviction sexual con tact This offense. court affirmed that con appeal. viction direct State v. McCaf ferty, (S.D.1984) (McCaf 356 N.W.2d 159 I). ferty From the determination of the (habeas court) court below certain tes timony admitted, should not have been appeals. By notice review McCaf- 591 prior felony of his convictions and the habeas evidence claiming that ferty appeals, appoint a psychi- trial refusal to ruling other the court’s on certain erred in its court psychologist to examine the vic- reverse the atrist at trial. We errors procedural the admis tim. court on of the habeas decision on the testimony but affirm of the sion only part judg- of the appeals notice of re McCafferty’s by raised

issues admissibility relating to the ment view. believability of experts’ victim, stating the it is in the issue: whether case are stated facts of this The give expert to an on error for an witness the He was convicted McCafferty I. believability a opinion regarding in the of knowingly engaged sexu- charge that he at person under fif- child sexual abuse victim “unavailable” another al contact with McCafferty of notices review years age, of violation SDCL teen judgment relating of to the admis- part a habit- the also found to be 22-22-7.1 He was and the trial prior The of his convictions 22-7-8. trial sion offender under SDCL ual appoint psychiatrist court’s refusal to a McCafferty to fifteen sentenced court grounds the victim.2 He his is- Penitentiary. examine in the Dakota years South (1) thusly: as his to this sues constitutional violations McCafferty appealed conviction refusal the trial court to court, decision was whether the of where the trial court’s appoint psychiatrist to assist the defense with in- part and remanded affirmed McCafferty's right to a fair trial to determine violated to the trial court structions (2) process rights; and state- and due whether out-of-court victim’s whether reliability.” McCafferty’s prior felony of the admission had sufficient “indicia of ments process. remand, deprived him of due I, convictions supra. On McCafferty hearsay statements found that court remedy post-conviction of habe- reliability to indicia of be sufficient bore provisions corpus restricted as 19-16-35. McCaf- admissible under SDCL prior and decisions of SDCL 21-27-16 time, ferty appealed for second McCaf- provisions statutory court. The were II, summarily court affirmed ferty decision, fairly in our well summarized McCafferty, the trial court. State Erickson, S.D. N.W.2d (1986). The United States Su- N.W.2d that, (1964), pointed wherein we out McCafferty’s petition preme Court denied remedy is nature of a in the since the of certiorari. South for writ upon judgment, the attack a final collateral Dakota, 476 106 S.Ct. U.S. proceed corpus scope of review habeas L.Ed.2d 983 As we “habeas cor ings is limited. said: corpus (1) initiated this habeas only pus can used to review whether be (State), against Herman action Solem jurisdiction of the crime and the court had defendant; (2) Dakota State Peniten- Warden South person of the whether granted tiary. by law; The habeas court McCaffer- the sentence was authorized corpus cases, ty’s petition for writ on whether incarcerat certain grounds deprived his conviction was based has been basic ed defendant Id, erroneously rights.” admitted at constitutional who offered at 715. also Goodroad two witnesses N.W.2d See Solem, believability N.W.2d 141 Habe- testimony on the However, corpus remedy correct proper habeas court is not the victim. corpus rather, habeas petition irregular procedures, McCafferty’s extent denied jurisdictional error. Id. 406 only reaches were al- that his convictions based 143; pur 21-27-16. For trial N.W.2d SDCL at the at legedly erroneous admission conviction, were McCafferty's issues raised Subsequent 2. Both notice of review SDCL 1. I, Legislature appeal McCafferty 22-22-7 was amended direct affirmed on "Any knowingly engages 1984). person (S.D. who read: ... person ... contact with another under in sexual age years guilty of Class 4 the felony.” sixteen (Amendment underlined.) Curran, psychologist, poses corpus, constitutional vio Dr. a clinical testi- of habeas deprive case as follows: lations' a criminal fied Goodroad, jurisdiction. court of Q you any Have ever had trouble with 143; Solem, 408 at Podoll v. things past telling you in the [S.F.] Therefore, (S.D.1987). if N.W.2d 759 that were not true? corpus show a habeas can No, I that I say A can’t have. action that his conviction has been obtained Q are you You think can tell when kids constitution, is enti in violation he of trying pull your the wool over Further, upset not may tled to relief. eyes? findings they unless are habeas court’s always. pretty Not A I think kids are 15-6-r52(a); clearly SDCL erroneous. Sat good. area, you know, on One based Solem, ter v. 425 research, psychological is that We first address the issue raised abuse, areas of child sexual would admissibility experts’ State on the percent be less than popu- one testimony opinion form of an as to lation that. lie about And it would of a victim believability of child sexual pretty sophisticated cognitive take a specific abuse. This issue has not been system to create that. And I don’t previously by this addressed court. think system has kind of [S.F.] case, testimony the wit- this functioning yet that she could create presently under nesses attack was: that. teacher, Haugland, preschool special

Pam Because of the who circumstances cases, sexual testified as child abuse several follows: evidentia- ry developed. Testimony rules have relat- Q you say you Would had established ing concerning to the child’s statements rapport some with [S.F.]? contact if sexual are admissible the court Yes, very A much. of reliability. finds sufficient indicia Mat- Q opened other Has she on occasions C.L., (S.D.1986); ter 397 N.W.2d 81 up you? I, supra; An SDCL 19-16-38. Oh, yes. A expert may testify as certain character- Q you you rely Did feel that could of sexually may istics children abused you what she told or believe what she compare even those characteristics to ac- you? told particular of a tions victim. United States Pierre, (8th Cir.1987). A Definitely. v. Saint 812 F.2d 417 rule, however, general is that Q else, you anything Did ask her Mrs. may testify one witness not as to another Haugland, pursue any or fur- credibility truth-telling capacity witness’ ther? because such would invade the Oh, A province jury we talked lot and talked about exclusive to determine

different, that thing, kind of and the of a witness. Of recent touching feeling game. years, And I impact allowing type just point at this felt I find out better in child abuse has sexual cases if any penetration, considered, there’d been coupled general been with the anything of this nature. “[Ejxpert testimony particularly And asked rule. Daddy her if put anything ever danger prejudice courts the of undue ofor honest, her. she very confusing And “No. misleading issues or 3 truly special Just kleenex.” And I reliability don’t because of its aura of know what meant that. Logue, about trustworthiness.” v. [S.F.] State 372 stopped (citation talking pretty (1985) omitted). Then she N.W.2d 157 Thus, much that. Very about honest. some held permit- courts have I, police, McCafferty 3. vagina[.]” McCafferty In a statement had ad- her into 356 N.W.2d at may finger mitted that "he have inserted [his] 165.

593 Iverson, (S.D. v. State give her N.W.2d ting an truth, imper- 1978) telling puts (ruling granting suspended sen victim is testi- v. stamp believability to that Crew applied retrospectively); missible tences not Azure, v. F.2d States Nelson, United mony. (1974) 88 S.D. Lindsey, v. (8th Cir.1986); State (Boykin rights applied only prospectively (1986); P.2d 149 Ariz. Locke v. Erick hearings); in misdemeanor (Iowa 1986); People Myers, 382 N.W.2d 91 son, Matlock, Mich.App. hearing (right preliminary to counsel at Seese, (1986); Commonwealth Thwing, applied' retrospectively); (Penn.1986). 439, A.2d 920 Pa. (Mi 391, (1969) N.W.2d 277 not, however, applied randa bright- rights retrospectively). cases were These emerged They slowly and halt- line tests. Auto, State v. One Pontiac In surrounding problems ingly out (S.D.1978), N.W.2d 362 we established cases. prosecution of child sexual abuse following criteria to whether a determine decade, strug- past have Over the courts particular given retro- decision should be gled experts go to how far to allow with “(1) spective purpose effect: lie generally whether children explaining decision, (2) prior reliance on the rule of abuse, attempting to about sexual while law, upon the effect the administra- of the defendant. See protect rights Id. at justice.” tion of 365. Hutton, Rees- Child Sexual Abuse Cases: facts at Applying those criteria to the tablishing the Balance the Adver- Within hand, it is ill-advised to retro- we believe sary System, 20 Univ. Mieh.J.L.Ref. spectively apply 1985-plus cases on (1987). At the McCaffer- 498-501 time of trial in 1983. testimony to a that occurred ty’s trial, permitting experts to courts were opinions their as the believabili- express First, earlier, purpose noted as was ty were of children because these cases Azure, supra, of cases such as State being “different.” recognized clarify far an could comment how Kim, Haw. 645 P.2d a These are child witness’ truthfulness. Myers, (1982); attempting courts not cases where are (Minn.1984). Rather, prosecutorial overreaching. deter I, recognized that attempts process they to refine due are involving very young sexual abuse cases rights, at the same time deal with while special cases confrontation victims are with inarticulate difficulties involved legislature purposes and that clause child sexual terrified victims of often years” exception to adopted a “tender had say any legitimate We cannot that abuse. just In- hearsay rule for cases. such by imposing purpose would be served deed, empirically have we seem to stated retrospec- evidentiary of an rule refinement unlikely young that “a child is to fabricate tively. activity a account of be- graphic sexual activity beyond the realm cause such Second, prece judge had experience.” N.W.2d at 164. his or her saying Haugland’s and rely on that dent to in 1989 we hold that a trial The fact Kim, testimony was admissible. Curran’s admitting Haugland’s court erred supra. Our guidance supra; Myers, truthfulness, testimony as to does Curran’s I seemed to children say require prescience must not mean we graphic a account could not fabricate sitting judge trial in 1983. a To claim now that a sexual abuse. seen this judge sitting in 1983 should have Following the lead of the States United This trial Walker, is ridiculous. shift in the law Linkletter Supreme Court others, on valid many relied judge, and 14 L.Ed.2d 601 85 S.Ct. U.S. expert testi precedent type admit this (1965), long recognized has this court folly to mony. We believe would be rights need not be emerging constitutional rulings. those retrospectively overturn applied retrospectively in criminal cases. Third, (S.D.1981), applying evidentiary rul psychi- wherein we held that the ing retrospectively complaining would have disastrous atric examinations of witness- justice system. may It es in effects on the criminal sexual offense cases be ordered molester, every upon child at the trial would invite whose court’s discretion a sub- expert testimony showing justification. trial included about the stantial of need and victim, to demand that That has continued to our truthfulness be rule. State v. Carlson, (S.D.1986); his conviction be likewise overturned. 392 N.W.2d 89 point justice sys Hallman, where the There comes 391 N.W.2d 191 society right tem and has a to consider that persuaded change Nor are we it. The fairly conviction obtained is final. In this authority by McCafferty, cited Ake v. case, we are satisfied that victim’s state Oklahoma, U.S. 105 S.Ct. ment, along McCafferty’s admission (1985), clearly distinguish- L.Ed.2d 53 police, guilt to the and that established able, inasmuch as Ake dealt with the fail- fairly his convictionwas obtained under the appoint psychiatrist ure of a trial court to evidentiary place rules in at the time of his interposing to assist the defense in an in- sanity defense where the defendant had sanity likely shown that his was to be a McCafferty’s on We next examine issues significant McCafferty factor at deprived notice he of review: whether was attempt plead insanity made no to an de- process of a fair trial and due when the fense. ap- trial court denied his motion for the pointment psychiatrist to aid in a his Likewise, Armontrout, we find Little v. defense and when the trial court admitted (8th Cir.1987), unpersuasive. F.2d prior felony evidence aof conviction. Both We read hypnosis, Little deal with a ap- these issues were raised on direct very special psychiatry, present field of peal, although without constitutional victim, rape in this case. In Little a while trappings. hypnosis, under had identified the defen- permit

‘This court will not Eighth accused to dant as her assailant. The Circuit appeal judgment his of conviction and en suggest banc decision Little did not speculate upon securing only his chances of a that the deciding criteria in the neces- then, judgment sity appointment reversal and after the psychiatric expert of a affirmed, balancing conviction is come into court in was the inter- defendant’s a corpus proceeding and raise the in avoiding prison against est a term grounds same issue on other avoiding which state’s interest in relatively might petitioner entitle the expenditure a new trial small required, that would be custody.’ or his McCafferty’s release from suggests. brief Rather the court said: Jameson, 362, 370, State v. 80 S.D. Ake and together Caldwell4 taken hold (1963) (citation omitted).

N.W.2d that a defendant Granted, must show more than a McCafferty attempts now to raise possibility mere of assistance from an standing, these issues to a constitutional expert. Rather the defendant “[mjere must but assertions of denial of constitu- probability show a reasonable that an rights tional party do not entitle a relief expert would aid in his defense that upon adequate unless found to true be denial of assistance would proof result hearing.” submitted at the State v. Roth, an unfair trial. 166 N.W.2d 835 F.2d at 1244. issue, regard I, With to the first McCafferty fail In we determined that appoint psychiatrist, ure to “McCafferty a we considered has not made a substantial prior that issue showing under our decision State justification need and nor as- Head, v. Wounded 679 serted that has mental or moral [victim] defendant; Mississippi, indigent 4. Caldwell v. 472 U.S. 105 S.Ct. bald assertion of need for (1985) (question showing 86 L.Ed.2d 231 of obli- aid with no of reasonableness of the gation appoint non-psychiatric expert request). for Swallow, her requirement. distort or tendencies which delusions (S.D.1987); Cross, The 356 N.W.2d at 167. N.W.2d credibility.” Cochrun, (S.D.1986); that his record shows from be argued that should trial counsel S.F. psychiatrist

examined a defense because that, I, McCafferty we determined be- seven, incon- age, alleged her her young defense counsel had failed to renew cause sistent accounts of whether proper suppression motions at crime, and possibility committed times, make the trial court had failed to mother that Dr. treatment of the Curran’s sup- ruling on the record on the motion might judgment. cloud her What and S.F. press issue to and we remanded that McCafferty’s counsel failed to substantiate proceedings. court for further There was no trial court critical. findings trial court’s of fact conclu- showing Dr. Curran was or biased pro- evidencing weighing sions of law opinions impor- her were inaccurate. More cess in favor of admission of the evidence McCafferty’s tantly, though counsel had judgment resulted the second was psychiatrist, another there was contacted summarily affirmed. showing pro- absolutely no that he would McCafferty’s argument ap- sole conclusion vide different than Curran’s peal is that the of evidence admission re- There wrong. conclusions were her unfavorably McCafferty’s flecting credi- showing simply no of a reasonable bility unfairly prejudicial was too because McCafferty’s expert would probability that expert testimony of the admission aid in the defense that denial credibility. supporting the victim’s As in in trial. expert result an unfair would issue, the discussion the first the McCafferty’s was able to counsel never testimony, admissibility expert of the we request raise for witness issue must view the in the context the speculation that another personal above his the it existed at the time of trial. law as the needed and could assist was admissibility is at least Our rule on defense. requirements the for stringent as federal by rule our We think that the established prospective, From process. due this we pro- adequately fulfills the due decisions in error say cannot that the trial court was Little, cess as set in su- requirements out prior admitting felony the evidence for in pra, we affirm the habeas court on and impeachment. affirm purpose of We issue. decision on that court on that issue. the habeas regard second Finally, with to the court on the notice We affirm habeas review, issue on notice of the admission of and the issue of of review issues reverse on fel testimony regarding McCafferty’s prior testimony remand with admissibility of and record, ony again we con we note that quash to the writ habeas instructions in In this sidered that issue I. corpus.

appeal, McCafferty that the due concedes MILLER, J., WUEST, C.J., and process guarantee of fundamental fairness by is not admission concur. violated of evidence prior

a defendant’s convictions unless SABERS, JJ.', HENDERSON proba potential prejudice outweighs its dissent. Texas, value, citing Spencer us to tive HENDERSON, (dissenting). Justice 648, 87 S.Ct. 17 L.Ed.2d U.S. (1967). (Rule 609(a)), question, us sets have before a basic 19-14-12 We SDCL land, appellate this plus requirement courts of re- out the same criteria novel by subject Science garding the “Behavioral prior punishable crime was Testimony”. Basically, we are confronted imprisonment death in excess of one per- question: this state state this Should year, dishonesty or involved or false with courtrooms, ment, mit, behavioral science regardless punishment. Our in its particular child told the testimony this that a consistently decisions have followed decision, Bachman being sexually Relat- In said abused? drome”. truth about impliedly setting rule on this edly, special further must writer forth nu dissented question: behavioral testi- Should science against merous authorities academic sexually mony to show that by be admitted premise majority written class, generally as a do tell Miller, abused children J. Chief Wuest and Mor Justice sexual abuse? J., truth about Sabers, Bachman gan, concurred in J., specially and concluded wrote to dissent respectfully I dissent to the decision writ by joining special writer’s dissent. J., by Morgan, for the reason ten waxing in into depth Without the dissent of defendant, of sexual deprives a accused myself Sabers, either suffice it Justice Therefore, abuse, fair of a say agreed both of with the us Hertz, Judge the decision of would affirm Logue, State v. language of in Ad judge this criminal action. (S.D.1985), Curran, written Chief Justice testimony mitting the of Dr. Wuest, nun) which (also holding seriously eroded a and Mrs. psychologist clinical Bachman. The same three teacher, justices in Haugland, deprived now process. joining fair only jus of not trial but also due this decision are the three here fairness was violated who majority Fundamental tices constituted in the If violation is evidentiary error. such a Bachman decision. I feared the movement crucial, critical, “material in sense of a Court, of this in the direction that it now factor”, a constitu highly significant then walks, by my special as reflected concur transgression tional has been established. Hallman, rence Francis, Collins v. 1336-37 F.2d 191, 196-7 (S.D.1986). opening I feared (11th Cir.1984), reh’g. reh’g. en banc testimony permit, door which would den., den., cert. 734 F.2d 469 U.S. effect, hearsay/expert impale 105 S.Ct. 83 L.Ed.2d defendant a conclusion that “he did apply We this same standard Sabers, it” —in effect. Justice his dis Machin v. Wain corpus requests. relief Bachman, specifically pointed sent out wright, (11th Cir.1985). F.2d “was also of therein corpus proceeding. This is a habeas Our credibility”. fered establish Have ex scope proceed in corpus of review habeas science, in perts, the field of behavioral Erickson, ings is limited. 80 S.D. trials, jury taken over the of in now role 639, (1964). is, 712 in There Bachman, Dakota and South via now this my opinion, great danger opening in The Yes. decision? answer is: corpus proceedings types to all of eviden- Logue; in I voted its lan- believed tiary in during error found the the record guage spirit. holding and its I now see its However, when the error is so sub shattered. great stantial and so it becomes Corp., In Bastow v. General Motors “highly signifi “crucial” and “critical” and (8th court, Cir.1988), 511, cant then the at factor” we must address F.2d question: language the in United quoted approval Did accused have funda with Barnard, jury mentally Obviously, Judge 907, fair trial? States F.2d 912-13 think (9th Cir.1973), Hertz did not so. Justice does den., 416 U.S. Sabers cert. Erick not think so. Neither do I. Under S.Ct. L.Ed.2d 310 wherein son, may at we review the 9th Circuit held: an “... whether defendant incarcerated Credibility jury jury ... is for the is —the deprived has been of basic constitutional lie the detector in the courtroom.... It rights.” suggested psychiatrists now is [expertise 13, 1989, psychologists have more in September On Court filed weighing in State Dakota v. opinion veracity its the of a South than witness] of Bachman, judges juries, either or and that their There, adopted opinions can of general determining this Court the the be value propriety testimony, during [credibility]. sis of The Perhaps. the of effect of re- trial, by syn ceiving however, “experts” “rape testimony, may on trauma such opportunity judge the given com- never surrender their own juries to cause jury credibility Surely, weighing testimony; sec- child. mon sense judge adversely the credi going ond, produce a within a trial was may Cleverly, impor- bility of nun. collateral but still an on what is a great testimony the nun’s with to imbue tant matter. integrity, ques she was and unassailable message This United was also a sister tioned and answered that she was Azure, If are 801 F.2d at 340. we States v. Thus, the Heart the Sacred Convent. away jury with trials and sub going do prejudice outweighed probative unfair experts, have we not stitute abolished value, quot In Logue, Dokken. at right any pos citizen precious most Amaral, 488 F.2d 1148 ed States United or the United States Constitution sesses via (9th Cir.1973) approval: “Expert testi with citizen Constitution which that [danger of mony particularly courts the liberty person? her enjoys or as a free confusing the issues prejudice undue weighing credibility of witnesses and “The jury] aura misleading because of its the jury.” is for evidence reliability special and trustworthiness.” Myers, upon psy Dr. testified that based Curran rule law. Such a hornbook is percent chological research —less than one quoted approval This with old rule of children lie about abuse. sexual above, Azure, quotes which further cited in coup grace judge was: The trial de Rosenberg, approval, United States v. expert testimony; on ob structed (S.D.N.Y.1952), af F.Supp. qualified as an viously, Dr. Curran was (2nd Cir.1952). fir’d., What F.2d 666 Haug- expert. layer A final of error: Mrs. do to law of evidence does this decision that she what land testified could believe federal and firmly so entrenched our (the victim) told that “S” was “S” her and Dr. to the state courts?! Curran testified honest, mine). (emphasis supplied very Question: you Did truthfulness of S.F. diversity rely appears told to me that there is a you feel that could on what she It testimony on you? appellate opinion An of you and what she told believe on, However, near- Definitely. courts Later Dr. Curran child sexual abuse. swer: honest, unanimity called ly they ”. are very approach she was ... when testified “and testimony approve upon from a to have a This nun had courts, Most of in fact a great impact jury. probative credibility. Its thereof, outweighed great reject the danger majority far value was experts when prejudicial effect on defendant’s of these science unfair behavioral required testify directly balancing they under case. A SDCL my of Dokken, children. are some v. 385 N.W.2d 493 individual These 19-12-3. State 277, Ross, (S.D.1986). People v. 745 P.2d testimony placed The nun’s authorities: Oliver, (Col.Ct.App.1987); People v. impermissible stamp believability of in the 278 222, (Col.1987); v. Mor- This P.2d 225 State word of the child. absolute 745 378, (1986). an, 248 ly jury’s judge the Ariz. 728 P.2d destroyed right 151 See, State, N.E.2d 151 v. v. 519 credibility of a witness. State Accord: Head Iowa, 232, (Ind.1988). in Thomas, Supreme In our sister state 381 N.W.2d Court v., Brotherton, Dakota, 1986, 1986, up 384 for a decision South testimony that a court it was held that holding the trial which refused concerning young could not fantasize report worker’s written con child admit a social improper indirect testimo- previous a sexual act was taining an victim’s (b) (a) telling concerning credibility. For disposition ny truth or the child’s Here, support supporting the dissents lying. jurisdictions, I still that decision. other writer, point, necessarily jury had to conclude of Justice Sabers this 463, Jackson, Kan. 721 lying alleged sexual v. 239 was about see: State Reinhardt, 232, (1986); People must v. guilty. and was therefore We P.2d 238 abuse 275, 584, 282 testify Mich.App. 423 N.W.2d the child did not remember (1988); Miller, Therefore, was during this trial. (Minn.Ct.App.1985); person serving appellate court who Bailey, 212, (1988); N.C.App. researching, entirely 365 S.E.2d State must then turn to de Middleton, 1215, P.2d 294 Or. against novo. It is also one of our oldest (1983); 1221 n. 11 Commonwealth v. principles appellate which is that review Pa.Super. 534 A.2d McNeeley, we should confine ourselves to those issues (1987). by sandbag established the briefs and not court, opportuni- who never had an Furthermore, the courts have refused to ty rule on the matter. Counsel for permit experts science these behavioral petitioner sandbagged but most likewise opinions sexually offer importantly, petitioner appellate has his Reinhardt, abused children as a class. props cut out him. from under Could be Matlock, Mich.App. supra; People v. seeking, majority opin- we are via the (1986); Townsend ion, This, also, to reverse? we have con- (Nev. State, 103 Nev. 734 P.2d 705 past. Lytle Morgan, demned in the 1987); Davis, Commonwealth v. 518 Pa. Substantive law (1988). 77, 541 A.2d 315 overpowers the decision of this to- Court indicate, myAs authorities above I am in day, by authority as reflected the extensive accord Justice Sabers’ recitation of set forth in appears this dissent. It weight what constitutes “the clear au- majority opinion away would wash least, thority” say specific and to his precedent naught, and hold it for under a by citation on the treatise written McCord “retrospective” thesis. Petitioner did not Criminology 1, as found 77 J.Crim.L. & dig many out of the books the that I cases my have support cited dissent to Inceptually, I addressed the fundamental Rather, position. this writer has. How- Though fairness issue. I did not cite it ever, petitioner clearly had his foot in the before, previously Court has an- provide argument door and did and some nounced rule on fundamental fairness authority expert testimony that this mentioning which bears instanter. It is improperly legal admitted. If this Court’s Webb, found in State v. 251 N.W.2d 687 position in McCafferty wrong I was be- (S.D.1977). Therein, we held that over-expansive language, cause of its (this harmless error rule issue briefed loyal should not be to a mistake. Justice is parties us) both ought the case before by justifying ruling served a court’s justify never be used to unfairness at trial. that does violence to a fundamental rule of find, I struggle to in majority opinion, fairness. dissertation on “harmless error” and seem Therefore, I would stand South Dako- pinpoint Instead, unable to its mention. precedent, ta namely Logue, and with the majority opinion find in the an extensive unanimity near the courts this land “retrospective” rationale on application. thereby uphold Judge reject Hertz and Again, I turn to the briefs and can find no majority opinion. rationale of the retrospective dissertation on application of evidentiary rulings in this case. We have SABERS, (dissenting). Justice held, past, in the that briefs should contain I would affirm the court because issues, a concise statement legal testimony the offensive went to McCaffer- argument related and citation authority ty’s guilt or The innocence. habeas court supporting argument. See, the v. and Shull, determined stated: (S.D.1983); 331 N.W.2d 284 Gra- State, ham v. 328 N.W.2d 254 indicated in out-of-court state- [S.F.] Therefore, rather than to Haugland discuss “harm- ments to and Curran that briefed, less error” majority McCafferty which is the sexually had abused her. legal point witness; decision zeros which was unavailable as a con- [S.F.] parties appeal the to this sequently, any have not dis- jury decision the as to depth. tremendously cussed in This is un- her necessarily would have petitioner. fair to the It is also unfair to a been based statements of other wit- even in the absence have convicted Haugland and Cur- would Specifically, nesses. directly truth- the error. ran testified [S.F.] ’s truthfulness of Typically, the fulness. the error in ad- This court finds that heavily accused bears the victim or the testimony [S.F.j’s truth- the mission of guilt the upon, is intertwined with Rather, harmless error. fulness was not the defendant. State innocence of of this evidence constitut- the admission (Iowa [91,94 ... Myers, 382 N.W.2d as the error process ed a due violation was 1986)]. The statements [S.F.] deny magnitude as to the was of such course, believable, indi- honest Petitioner fundamental fairness at lying about was cated that criminal trial. and therefore alleged sexual abuse the clearly correct The habeas court was credibility was an [S.F.j’s guilty. was go to concluding testimony that “the did There can in this case. important issue McCafferty’s guilt or innocence.” believability of the be no doubt by the testi- story was bolstered majority The in the fatal defect [S.F.] ’s As Haugland. Dr. mony upon by Curran its conclusion that the cases relied aforementioned, testify at did retrospective [S.F.] the habeas court constitute * clinical find- than some the trial. Other evidentiary rule.” “refinement of an true; made Peti- statements ings and somé Conclusory opin opposite Just the tioner, testimony jury to the came her testimony concerning the truthfulness ion Dr. hearsay statements from form of the always prohibited and of a witness was Haugland. In Mrs. United Curran and majority The errs in assert inadmissible. (8th Azure, F.2d 336 ... States v. [801 ing expert opinions the believa about Cir.1986) alleged testified at ], the victim generally admissible bility of children were jury, the and this trial and in front of fact, McCafferty’s trial. In the time of at testimony then declared to be honest was trial, only one court had at the time of testimony of via the (cid:127) and truthful testimony. majority The cites allowed such case, Here, in this Dr. ten Bensel. cases, Kim, 64 Haw. two opportunity did have an jury never (1982), Myers, 359 P.2d 1330 and State v. credibility. jury had judge [S.F.j’s (Minn.1984), Myers but was rely than testimo- nothing to on other McCafferty’s tri in 1984 well after decided Haugland. Dr. and Mrs. ny of Curran support provide al and could not jury gave pattern The trial court court’s decision. testimony, instruction on witness’ contrast, considering courts numerous testimony presumably because prior to McCaffer cases child sexual abuse Additionally, it is given by Dr. Curran. inad such to be ty’s trial found first took that when Dr. Curran noted Carter, E.g., missible. Commonwealth stand, elicited the fact prosecutor (1980) Mass.App. 403 N.E.2d qualified only she a well that not was failing doc (Trial to strike court erred she psychologist, but also that clinical telling testimony that child tor’s Heart Convent was a sister in the Sacred truth.), 417 N.E.2d 383 Mass. Thus, Yankton, Dakota. South aff'd (1981); 86 A.D.2d People Fogarty, established, any testimo- background (Child psychia 446 N.Y.S.2d [S.F.j’s credibility would be relating to ny complainant’s infant trist’s about eyes jury. greatly enhanced com veracity “improperly bolstered guilt innocence of McCaffer- Since unduly colored credibility and plainant’s question of ty inherently turned on the veracity.”); of his jurors’ assessment [S.F.j’s credibility, it cannot be said (Tex. State, 634 S.W.2d doubt Black beyond a reasonable * any person whose trial includ- other majority opinion evidence of is also defective in con- expert testimony truthfulness of McCafferty's about the cluding overturning ed convic- fact, testimony has In since such crimi- the victim. have disastrous effects on the tion "would unlikely that always it is system.” argument pure been inadmissible justice con- This nal person. majority part there is another jecture as there is no (“[EJxpert testimony regard judge to have foreseen a shift

Ct.App.1982) ing complainant’s propensity law, to tell the been no shift. since there has impermissible.”); People v. truth was Ser McCafferty merely application seeks Cal.Rptr. gill, Cal.App.3d Indeed, it case. the correct law to his (1982) (“We authority find no strained recently not until that the state veracity support proposition that the admissibility. against urge the rule to police report crimes to the is a those who brief, argue that in its State does not beyond experi sufficiently matter common admitting expert 1983 courts were testimo- require ence of an ex regarding veracity, in- ny a witness’ but Middleton, pert.”); 294 Or. attempts argue that courts are stead (1983) (“We 438, 657 P.2d ex Thus, beginning testimony. to admit such witness, Oregon pressly hold that ex recognizes August the State that in even otherwise, may pert give opinion testimony Haugland 1983 the and Cur- telling on whether he believes a witness is generally ran was inadmissible. truth.”). irony majority The final is that the mis- weight always authority The clear has takenly by apply- reverses the habeas court against expert’s been admission of “an ing retrospectively. incorrect law complain- child sexual abuse McCord, telling Expert ant truth.”

Psychological Testimony about Child

Complainants in Sexual Abuse Prosecu- Foray A Admissibility tions: into the Evidence, Psychological

Novel Criminology

J.Crim.L. & As a

result, McCafferty’s require claim does not

Case Details

Case Name: McCafferty v. Solem

Court Name: South Dakota Supreme Court

Date Published: Dec 13, 1989

Citation: 449 N.W.2d 590

Docket Number: 16121, 16137

Court Abbreviation: S.D.