Lead Opinion
The appellant, Michael Smith, was convicted of rape, statutory rape, child molestation, and cruelty to children, and was sentenced to terms of imprisonment. Smith appeals and we reverse.
Smith and his son lived with the victim, her brother, and her mother. As proof of the allegеd offenses, the state offered testimony of an expert witness on “child abuse syndrome,” testimony of two social workers, testimony of an investigator from the sheriff’s deрartment, and the victim’s own testimony.
Outside the presence of the jury, Smith proffered the testimony of ten witnesses, including himself, regarding alleged past false accusatiоns by the victim of sexual misconduct by men other than the defendant. Five testified that they had heard that the victim made similar allegations against them; each witness denied аny such wrongdoing. Another witness testified that he had heard about similar allegations against him and that the victim had recanted in his presence; this witness also denied any wrongdoing. Two other witnesses testified that they were present when the victim recanted some of the allegations against persons other than Smith, and a ninth witness testified that she heard similar allegations and that she heard the victim recant these allegations. The defendant stated that the victim had made similar allegations against “ten or twelve” people and had recanted at least some of these accusations.
The court did not admit this evidence because it found that the raрe-shield law, as construed in Taylor v. State,
1. Initially, Smith contends that the rape-shield law does not prohibit evidence that the victim had lied about sexual misconduct by men other than him, and that if the law is so construed, the law is unconstitutional as violating his right of confrontation. We agree that the raрe-shield law does not prohibit such testimony.
We now turn to the state’s argument that, even if the rape-shield law does not prohibit such testimony, the testimony relates to the victim’s character, which can only be attacked by evidence of the victim’s general reputation for veracity. See OCGA §§ 24-2-2; 24-9-84. The state argues that any specific instances of untruthfulness are prohibited. However, regarding evidence that the prosecutrix in a sex-offense case has made prior false accusations against men other than the defеndant, a majority of jurisdictions that have considered the question have held that the evidentiary rule preventing evidence of specific acts of untruthfulness must yield to the defendant’s right of confrontation and right to present a full defense. These courts have held that evidence of prior false accusations is admissible to attack the credibility of the prosecutrix and as substantive evidence tending to prove that the instant offense did not occur. E.g., Clinebell, supra,
However, the courts that have considered the admissibility of such evidence have ruled that, before such evidence can be admitted, the trial court must make a “threshold determination [outside the presence of the jury] that a reasonable probability of falsity exists.
Because the trial court erred in excluding the proffered testimony based on the rape-shield statute, and because we cannot conclude that such error was harmless, we must reverse Smith’s convictions. However, one other enumeration by Smith requires discussion as the issue could recur on remand.
2. Following the testimony by several defense witnesses that they would not believe the victim under oath, the trial court permitted the state’s child-abuse expert to testify that, in her opinion, the victim told the expert the truth regarding the allegations against Smith in the expert’s interviews with the victim. She also added that “[s]he [the victim] is upset about being away from her mother, but she’s telling the truth, and she’s not going to go back on it regardless of the consequences. ...”
The court permitted this testimony оver the defendant’s objection, and on appeal Smith argues that the trial court erred. We agree.
The rule in this state is that “an expert may not testify as to his оpinion as to the existence vel non of a fact . . . unless the inference to be drawn from facts in evidence is beyond the ken of the jurors — that is, unless the jurors, for want of sрecialized knowledge, skill, or experience, are incapable of drawing — from facts in evidence — such an inference for themselves. Smith [v. State,
Judgment reversed.
Notes
The alleged offenses occurred between June 1 and Seрtember 24,1987. The grand jury for the November 1987 term of Barrow Superior Court indicted Smith. Smith was tried on November 23-25, 1987. The jury convicted Smith on November 25. Ruling that the statutory rape conviсtion merged with the rape conviction, the court imposed one 20-year sentence for rape and statutory rape. The court imposed two five-year prison terms for child molestation
Some of thе proffered testimony may be subject to other objections, such as hearsay. However, because the objection to this proffered evidence was based solely on the rape-shield law, and because the trial court excluded the testimony on that ground, we need not rule on this question now.
As previously noted, thе trial court in the instant case relied on the decision of the Court of Appeals in Taylor, supra,
Concurrence Opinion
concurring specially.
As to Division 2, I agree that an expert’s testimony that a particular victim in a child abuse case is being truthful is inadmissible. Howеver, it is entirely permissible for an expert on child abuse to testify about the typical characteristics of child abuse victims. See Smith v. State,