On April 9, 2014, the South Carolina Court of Appeals decided State v. Portillo.  Although the Court of Appeals found two types of error, the Court concluded that error was not reversible error in this case.

The Court relied on our Supreme Court’s opinion in State v. Kromah and held the trial judge erred in qualifying the interviewer as an expert in the filed of forensic interviewing.  The Court additionally held that the interviewers “testimony may violate two types of questions now prohibited by Kromah.”  The interviewer testified that the child “was not coached” and about certain “hand gestures and PTSD symptoms.”  The Court viewed this testimony as vouching “for the child’s believability” and “opining that the child’s behavior indicated the child was telling the truth.”

The Court of Appeals, nonetheless, held this error to be harmless.  The Court relied on physical evidence consistent with a sexual assault.  This physical evidence, however, was slight compared to the physical evidence in other cases where the appellate courts applied the harmless error analysis.

Portillo also contended that permitting the child interviewer to testify about symptoms of PTSD when the witness properly qualified.  The Court concluded that this issue was abandoned on appeal and, therefore, did not address the merits in any meaningful way.

Portillo is troubling for two reasons.  First, the Court found two types of error under Kromah that weigh in favor of reversal.  Second, it is very strange that the Court concluded that testimony about PTSD symptoms violated Kromah but would not address the purported expert’s qualifications to render those opinions.

Our Supreme Court should review Portillo to determine whether the harmless error analysis was appropriate and to reiterate the limitations on expert testimony.

Please click here to read the Court of Appeals opinion in State v. Portillo.