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GA Court of Appeals Affirms Ex Parte Dismissal of the Jury

April 16, 2014

In Hoke v. State, the Georgia Court of Appeals affirmed the defendant’s convictions for child molestation and aggravated child molestation, upholding the trial court's decision to dismiss the jury ex parte. The Court also held that critical testimony from the State’s medical expert did not constitute improper bolstering of the alleged victim.

The record showed that after the first day of trial, the State learned that while their expert witness was at the airport waiting to fly to Georgia and testify, he had been called by his employer to come back to work. The next morning, the State told the court and defense counsel, who agreed to a one or two day delay to allow the state to fix the problem. Later that day, the State updated the court on the situation without defense counsel present. The judge dismissed the jury after selection but before they had been sworn in. The State later moved for a continuance, which the defendant opposed. The court granted the continuance, and then informed defense counsel for the first time that the jury had already been dismissed.

On appeal, the defendant argued that the trial court erred in its ex parte dismissal of the jury. By statute (OCGA § 17-8-33(a)), a court may grant a continuance whenever required by the absence of a material witness or the principles of justice. The Court of Appeals held that while it was within the trial court’s discretion to grant the continuance, it did not condone the granting of the continuance ex parte. The fact that is was done ex parte, however, did not amount to an abuse of discretion.

The defendant also alleged that the trial court erred in allowing the State’s expert witness to bolster the credibility of the victim, and that defense counsel’s failure to object to this constituted ineffective assistance of counsel. The record showed that the State’s expert witness, a doctor who conducted a physical exam on the child, testified that when children come in, he would “look for other reasons why the child may say they were touched.” He said that doctors ask for details about reported incidents, to see if children can articulate “information that a child wouldn’t learn from being coached.” He further testified that the child in this case said that it hurt to use the bathroom after the defendant touched her, which in his experience “a child typically will not know unless it actually happened.”

The Court noted that an expert witness is not allowed to give an opinion on whether a complaining witness is telling the truth, because that is an issue of fact for the jury to decide, and it is not beyond the ken of the average juror. The Court stated that it was acceptable, however, for an expert to describe exam techniques and to give an opinion about whether the results of an exam are consistent with sexual abuse. The Court held that the expert’s testimony fell into the latter category, and the fact that it was indirectly related to the credibility of the child did not ​​​render it inadmissible. Thus, the Court concluded that defense counsel’s failure to object to the testimony did not constitute ineffective assistance of counsel.

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