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GA Child Molestation Conviction Reversed on Improper Jury Instruction

March 28, 2015

In Palmer v. State, the Georgia Court of Appeals reversed the defendant’s convictions for aggravated child molestation and statutory rape, holding that the trial court’s jury instructions impermissibly expressed an opinion on the reliability of the alleged victim’s statements.

At trial, the State introduced a video of the alleged victim’s forensic interview and played it for the jury. In charging the jury, the trial court gave the following instruction:

“A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another shall be admissible in evidence by the testimony of the person to whom made if the child is available to testify in the proceedings and if the court finds that the circumstances of the statement provide sufficient indicia of reliability.

O.C.G.A. §17-8-57 provides that a judge in a criminal case may not “express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” If a judge violates this provision, the appellate court is required to reverse the conviction, even if no objection was made by the defense, and it cannot be considered harmless error.

In Rolland v. State and Starr v. State, the Court of Appeals had previously considered virtually the same jury instruction and, in both cases, the Court found that the instruction violated O.C.G.A. § 17-8-57 and required reversal because the jurors could have reasonably interpreted the instruction to be an expression of the trial court’s opinion that the child’s statements were reliable or true.

Therefore, the defendant’s convictions were reversed and the case was remanded for a new trial.

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