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Criminal Practice – Sex Offense & Indecent Liberties – Expert Witness – Victim’s Credibility – New Trial

State v. Ryan (Lawyers Weekly No. 12-07-1083, 31 pp.) (Douglas McCullough, J.) Appealed from Johnston County Superior Court (Ola M. Lewis, J.) N.C. App.

Holding: Where prosecution expert Dr. Laura Gutman testified that she had no concerns the child victim was giving a fictitious story, this was tantamount to expert opinion testimony that the child was not lying about the sexual abuse allegations. Therefore such testimony was inadmissible.

Dr. Gutman’s testimony that there was no evidence of any other perpetrator of sexual abuse on the child other than defendant likewise constituted improper expert opinion testimony concerning both the guilt of defendant and the credibility of the child.

Given that Dr. Gutman’s testimony was central to the state’s case, and in light of the minimal physical evidence and conflicting testimony from other witnesses, Dr. Gutman’s improper opinion testimony vouching for the credibility of the child had a probable impact on the jury’s finding defendant guilty. As such, the admission of such testimony constituted plain error.

Defendant is entitled to a new trial.

 


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