When can Utah courts find child victim testimony inherently improbable? In re S.M. Explained

In In re S.M., the Utah Court of Appeals addressed when child victim testimony may be deemed inherently improbable and therefore insufficient to support a conviction. The case provides important guidance for practitioners handling juvenile delinquency cases involving sexual abuse allegations.

Background and Facts

S.M., a 13-year-old, babysat three siblings aged 8, 6, and 3. After the babysitting session, the two older children immediately told their mother that S.M. had touched their private parts. The children provided consistent accounts during subsequent forensic interviews at a Children’s Justice Center and later testified at trial. S.M. sent an unsolicited text message to the mother stating “if I did anything I didn’t mean to do it.” The juvenile court found the children’s testimony credible and adjudicated S.M. delinquent on two counts of aggravated sexual abuse of a child.

Key Legal Issues

S.M. challenged the adjudication on two grounds: (1) the children’s testimony was inherently improbable and therefore insufficient evidence, and (2) counsel was ineffective for not requesting a continuance to investigate medical records from the alleged victim’s doctor visit on the day of the incident.

Court’s Analysis and Holding

The court applied the inherently improbable doctrine, which allows appellate courts to disregard testimony only in rare cases where it is “so incredibly dubious or inherently improbable that it could not support a conviction.” The court emphasized that testimony will generally be disregarded only when no corroborating evidence exists and the testimony runs “so counter to human experience” that it is inappropriate for consideration.

S.M. argued three problems with the children’s accounts: positioning on a five-foot couch, failure to witness each other’s abuse, and contradictory testimony about phone calls to the mother. The court rejected each argument, noting that the couch owner and S.M. herself testified that both children could fit on the couch, that the children were watching a movie and could have been distracted, and that minor inconsistencies are common in child testimony and can be explained by age and lack of sophistication.

Regarding ineffective assistance, the court found no demonstrable prejudice where S.M. merely speculated that a doctor would have contradicted the mother’s testimony about reporting the abuse, without providing any evidence to support this claim.

Practice Implications

This decision reinforces that challenges to child victim testimony must focus on material inconsistencies rather than peripheral details. Courts recognize that children may testify “somewhat inconsistently, especially in sexual abuse cases,” and inconsistencies can often be explained by the child’s “age and lack of sophistication.” The inherent improbability standard requires more than “garden-variety credibility questions” and demands testimony that fundamentally contradicts human experience.