As any parent knows, children say the darndest things. The other day, during bedtime, my three-year-old niece turned to her father unprompted and said, “I don’t want you to read me a story tonight. I want you to tell me when and how Santa Claus died.”
Given their proclivity to imagination, it’s not always easy to know when a child is telling the truth. But when a child falls victim to a sex crime, discerning whether the child is testifying accurately about what happened is vital. Generally, that determination is left to the jury. Experts are not permitted to opine on whether a child is telling the truth. See, e.g., State v. Thaggard, 168 N.C. App. 263, 274, 608 S.E.2d 774, 782 (2005).
But what happens when an expert simply wants to testify that a child did not appear to be coached on what to say? Is that opining on the child’s truthfulness? In a matter of first impression, the Court of Appeals said no. Witnesses may opine on whether a child appeared to be coached. See State v. Collins, No. COA22-488, 2023 WL 2762773 at *1 (N.C. App. 2023).
Collins involved a forensic interviewer who testified that she saw no indication that a child victim had been coached. Id. The defendant challenged that forensic interviewer’s testimony as inadmissible. The Court of Appeals observed that there was no published decision on “whether an opinion regarding coaching is admissible”—at least not one that either party identified. Id. However, the Supreme Court of North Carolina had previously stated that “a statement that a child was not coached is not a statement on the child’s truthfulness.” State v. Baymon, 336 N.C. 748, 752, 446 S.E.2d 1, 3 (1994). So the Court of Appeals held that the trial court did not err in admitting the forensic interviewer’s testimony.
Notably, the Court of Appeals made its decision based on a “predict[ion]” of how the Supreme Court of North Carolina would rule. That reasoning stood out to me, as I can’t remember a previous instance where the Court of Appeals explicitly grounded its ruling on how it predicted the Supreme Court would come out. If anything, the Court of Appeals’ typical practice on an issue of first impression is to look to “other jurisdictions for persuasive guidance.” N.C. Ins. Guar. Ass’n v. Weathersfield Mgmt., LLC, 268 N.C. App. 198, 203, 836 S.E.2d 754, 758 (2019). The Court of Appeals did not cite a previous North Carolina case as precedent for its “prediction” approach. Collins, 2023 WL 2762773 at *1. Instead, it simply noted that this was the practice in the federal courts. Id.
Perhaps, prediction was appropriate in this case. The Supreme Court had at least mentioned the issue of coaching vs truthfulness in Baymon. 336 N.C. at 752, 446 S.E.2d at 3. Still, by my reading, Baymon did not explicitly hold that that a statement regarding a child’s coaching was not a statement regarding the child’s truthfulness. The line “a statement that a child was not coached is not a statement on the child’s truthfulness” comes from the Supreme Court’s summary of the State’s argument. Id. It is not a direct holding. And while the Supreme Court noted that it “agree[d]” with the State’s argument, that agreement appeared more related to the fact that the defense counsel had opened the door to this testimony than whether opining on coaching is different than opining on truthfulness. Id. at 752-53, 446 S.E.2d at 3.
Whether the Court of Appeals will resolve future unsettled issues by “predicting” how the Supreme Court of North Carolina will turn out remains to be seen. But regardless, the Court of Appeals holding in this case is likely to play a crucial role in juvenile sex cases. True, a witness still cannot state whether they think a child is lying or not. But being able to opine on whether a child was coached will likely have a strong effect on whether the factfinder believes the child’s testimony.
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