I'm writing a response brief. The Appellant is claiming that "the trial court erred in permitting a member of the prosecution team to testify under the guise of being the complaintant's counselor."

My forensic interviewer was the outcry witness. The child did testify via CCTV, so there is no Crawford issue. The issue they are trying to raise comes from the fact that my interviewer also counsels victims and helps me prepare vics for trial. In this case, the family was non-supportive and trying to (literally) torture the girl into recanting. We could never get the vic or her little sister into counseling because the family would not cooperate. Needless to say, they wouldn't cooperate with me at all. I subpoenaed the school and went there with the interviewer/counselor 2-3 times a week for about 6 weeks in order to build a rapport and prepare the child for trial. The vic's sister was at the same school. Sometimes the counselor and I would split up and work with the kids one-on-one and then trade kids. Sometimes we were in the same room with both kids. Sometimes we were in the same room with only the victim.

The Appellant is arguing that because I asked the counselor to get involved she was really a member of the prosecution team. Therefore, the Appellant argues, her testimony is inherently unreliable.

At trial the counselor testified to the outcry, the forensic interview process, signs and symptoms of abused children and stated that this child's behavior was consistent with a child who had been abused. When she was testifying about signs and symptoms consistent with abuse, she relied on her role as counselor.

If anyone has had to respond to this type of argument, I'd love to know what you used. I'm not finding much in case law. In fact the Appellant didn't use much case law either. He used Kelly v. State. Then he argued that it was abuse of discretion to allow her testimony because she is part of the prosecution team.

I cannot believe that an ADA cannot use a counselor during trial prep. I just can't find anything to back me up other than logic.

Bethany

Seems to me if she's qualified as a counselor, then she should be able to testify. It's the Nenno case, not Kelly that controls the "soft sciences" like psychology. First of all, can't everyone just view the forensic interview tape to verify the accuracy of her testimony about the outcry? Ultimately, it sounds like a jury issue about her credibility. Good for you for prosecuting a case with crazy, uncooperative family members.