GA Court of Appeals Reverses Aggravated Child Molestation Conviction

Under Georgia law, no witness may testify as to whether another witness is telling the truth. This type of testimony is referred to as improper bolstering and stems from the general principle set out in O.C.G.A. § 24-9-80 that the credibility of a witness is a matter to be determined solely by the jury. Improper bolstering tends to occur rather frequently in child molestation cases where a witness, often times an expert or someone the child allegedly confided in, attempts to offer his or her opinion that the child appears to be telling the truth about the abuse. (Click here for a complete discussion of improper bolstering testimony from our Georgia Sex Offense Law blog).

During the trial, the alleged victim’s father testified for the prosecution and stated that he believed his daughter when she told him about the allegations. The court overruled the defense’s objection to this testimony, refused to give a curative instruction to the jury, and denied a subsequent motion for mistrial.

The Court of Appeals reversed Gaston’s child molestation convictions, dismissing the prosecution’s argument that the father’s testimony concerned his state of mind rather than his daughter’s credibility. The court noted that since there was no physical evidence or other witnesses to the alleged incidents, the child’s credibility was a critical issue at trial. In addition, the child’s various accounts of the alleged incidents contained inconsistencies. Unlike a case where the effect of improper bolstering may have been minimized by the existence of other evidence of the defendant’s guilt, the lack of any other evidence against Gaston led to the court’s reversal of his conviction.

The defense attorneys in Gaston’s case followed the model of properly objecting to improper bolstering testimony. They made a timely objection when the improper evidence was offered, made a motion for mistrial, and requested that the jury receive a curative instruction advising them to disregard the improper bolstering testimony. Because of the steps taken during trial, the defense team was able to properly preserve the issue for appeal. Often times, criminal defense attorneys will fail to properly object to this prejudicial testimony which, by itself, may be powerful enough to lead a jury to convict.