Can behavioral change testimony in child sexual abuse cases constitute prosecutorial misconduct? State v. Pritchett Explained

In State v. Pritchett, the Utah Supreme Court addressed whether testimony about a child victim’s behavioral changes following alleged sexual abuse constitutes prosecutorial misconduct and clarified the proper use of preliminary hearing transcripts to refresh witness memory.

Background and Facts

John Pritchett was charged with rape and aggravated sexual abuse of nine-year-old B.B. The alleged incident occurred during a sleepover where Pritchett allegedly digitally penetrated the victim’s vagina. At trial, the State elicited testimony from B.B.’s mother about changes in B.B.’s behavior following the incident, prompting defense objections for improper bolstering. The trial court also allowed B.B. to refresh her memory using her preliminary hearing transcript, after which she testified about digital penetration. The jury acquitted Pritchett of rape but convicted him of aggravated sexual abuse.

Key Legal Issues

The case presented four main issues: (1) whether continued questioning about behavioral changes constituted prosecutorial misconduct; (2) whether allowing the victim to refresh her memory with preliminary hearing testimony violated hearsay rules; (3) whether the evidence was sufficient to support the conviction; and (4) whether Utah’s probation statute requiring admission of guilt violated constitutional rights.

Court’s Analysis and Holding

The court applied an abuse of discretion standard to the prosecutorial misconduct claim. It found that Pritchett failed to adequately argue how behavioral change testimony was improper, distinguishing cases involving expert testimony on victim veracity. Critically, the defense’s failure to preserve a record of the bench conference where examination parameters were established proved fatal to appellate review.

Regarding the hearsay challenge, the court held that using the preliminary hearing transcript under Utah Rule of Evidence 612 to refresh memory was proper. The transcript itself was not admitted as evidence—only used to help the victim testify independently at trial, where she was subject to cross-examination.

Practice Implications

This decision emphasizes the importance of creating a complete appellate record, particularly during bench conferences that establish evidentiary parameters. Defense counsel challenging behavioral change evidence must provide meaningful legal analysis beyond conclusory statements. The ruling also confirms that memory refreshing under Rule 612 is permissible even with prior testimony, as long as the witness testifies independently at trial and is available for cross-examination.