Child’s Therapy Records Form Basis for Reversal in Molestation Case

The alleged victim accused the defendant of touching her on several occasions when she was between the ages of seven and thirteen. The alleged victim’s therapy records were obtained by the trial court and made a part of the record on appeal. The records contained therapist’s notes that the child  had “a history of lying to her mother” and that the mother had told the therapist that she could not trust her because she “constantly lies to her and does things to be vindictive.”

The trial attorney testified that she believed that the best way to bring out this evidence was by asking the alleged victim on cross examination, “Do you always tell the truth?” and“[Do you] tell the truth to figures of authority?” The court would not permit trial counsel to ask those questions, noting that O.C.G.A. § 24-6-608 only permitted questions concerning “specific instances of conduct” on cross examination.

The proper way to elicit this testimony would be by questioning the mother about her opinion of the child’s character for untruthfulness. Trial counsel testified that she was not aware that she could ask the mother about this without first questioning the child. The Court found that trial counsel was mistaken and that the mother’s opinion about the child’s untruthfulness was admissible regardless of whether the child testified about it.

As a result, the Court found that “trial counsel’s performance fell below an objective standard of reasonableness.” The Court added that the evidence was not overwhelming and the alleged victim’s statements were not completely consistent. Considering that the alleged victim’s credibility was crucial to the State’s case, the Court concluded that there is a reasonable probability that counsel’s error affected the outcome of the trial.

Therefore, the Court reversed the defendant’s aggravated sexual battery and child molestation convictions and remanded the case for a new trial.