Miles's blog

I am always the first person who decries anyone who comments on a legal proceeding based upon what they read in the newspaper or hear on television. Without knowing the full context of what happened in court no one can really intelligently comment. However, a couple of articles in today’s newspaper have inspired me to break my own rule, realizing I could be way off base.

A murder trial in Denver resulted in a mistrial when the prosecution’s star witness, the defendant’s girlfriend, blurted out, apparently despite repeated admonitions, that the defendant was a sex offender. At first blush this seems to be an accurate ruling. Under the Rules of Evidence, even relevant evidence should be excluded if the danger of unfair prejudice substantially outweighs the probative value. Certainly a jury knowing a defendant is a sex offender carries the risk of extreme prejudice. Only were the information significantly probative should the prosecution be allowed to present such evidence, if the information is relevant at all. OK, fair enough.

The article, in an unusually complete reporting of context, related that the witness volunteered this information in response to questions about why the defendant refused to call 911 to get help for the child he is accused of strangling to death. Why did he balk? According to the witness because he was an unregistered sex offender and calling risked exposing him. Whoa! That puts an entirely different spin on this evidence. I don’t know the facts of the case, of course, or how important it is that the defendant failed to get medical care. I assume part of the prosecution’s theory is that the cause of death was not only the act causing the injury, but that timely medical care could have saved the child, and his failure to seek timely care was both reflective of his desire to avoid prosecution, and itself an act of child abuse. If the defendant had significant motive to refuse to call for help, I can’t see how this should be excluded. The prosecution needs to prove who caused the injury, especially in a case where there is an alternate suspect. They need to show that the defendant acted knowingly or recklessly.

His defense certainly will claim something like the child didn’t look too bad, or the defendant had no idea the kid was hurt. Explaining why someone would fail to seek assistance for a child he had injured goes a long way toward completing the story for the jury. Without such explanation the jury is likely to think the defendant acted reasonably because who would fail to seek help for an obviously injured child. The fact the defendant should have called for help but had a really good reason not to is extremely probative.

Again, I don’t know what the pretrial rulings were or whether the prosecution sought to admit this evidence or not, but it struck me as another overreaction on the part of the judiciary of “Oh my God, we can’t let the jury hear this. Prior convictions are absolutey forbidden.” This is the kind of superficial analysis I am glad I don’t have to argue about anymore.

The very next article described a preliminary hearing in a Douglas County murder case. According to the article, the public defender tried to establish the basis for some sort of mental state defense by asking the detective whether her client had served tours of duty in the military in Pakistan, Afghanistan, and Iraq, and that the defendant told the detective he suffered from PTSD. How the heck is this relevant to probable cause? There can be no possible use for this testimony in a preliminary hearing. All this questioning reflects is the public defender’s seeking to get some testimony on the record for use down the road. Mental defenses such as PTSD cannot be used at preliminary hearings. All of this is completely irrelevant.

What is the common denominator here? The defense is the beneficiary of these rulings. Here is where my frustration with the system lies. Despite the public perception that the prosecution holds all the cards, in reality, the bench is so concerned about the potential for wrongful convictions that they are putting up significant barriers to any convictions. Thus, no talk of sex offender status, and preliminary hearing testimony without limits. Never let it be said that I sought convictions based on insufficient evidence or the admission of inadmissible evidence. But the Rules of Evidence are party-neutral. Aside from constitutional limitations which prevent the prosecution from admitting some kinds of evidence, the prosecution is entitled to admit all relevant evidence permitted by the rules. Sometimes, I fear, there is an excess of caution on the part of judges.

Again, I don’t know really what happened in these courtrooms. I could be way off base here. But my speculations as to what happened is based on 30 years of experience as to what actually does happen. Not my problem anymore.