Wednesday, June 1, 2005

Prosecutor's closing argument (alluding to victim's inadmissible statements) and cross-exam reversible error

[CASE] Division 2 reverses a conviction for child molestation because of two types of prosecutorial misconduct: comments during closing argument and cross-examination. State v. Boehning, --- P.3d ---, 205 WL 1154834 (Wash. App. May 17, 2005), Find Result - 2005 WL 1154834.

The court summarizes (I love it when the judge lays it out so clearly!):

1 Randy Allen Boehning appeals his conviction of three counts of first degree child molestation. We hold that prosecutorial misconduct occurred when the prosecutor referred to three counts of rape that had been dismissed while suggesting that the victim's statements supported those counts but she was not "comfortable" enough to testify about those rapes at trial. * * * This argument appealed to the passion and prejudice of the jury, was flagrant, and called on the jury to determine guilt on improper grounds.

2 The prosecutor also impermissibly bolstered the victim's credibility by arguing that her prior statements, which were (1) plainly hearsay, (2) not admissible (the victim was 10 years old at the time of the hearsay so chapter 9A.44 RCW was not implicated), and (3) not admitted, were consistent with her trial testimony. The prosecutor based this argument on the fact that the defense counsel did not impeach the victim with any prior inconsistent statements to witnesses. The State's claim that this is a reasonable inference is wrong; this argument also constituted prosecutorial misconduct.

3 During trial, the prosecutor also asked Boehning whether the victim had "made [it all] up." * * * This placed Boehning in a position where he had to challenge the truthfulness of the child's testimony. This is flagrant prosecutorial misconduct and highly prejudicial in a case where there were no witnesses or physical evidence to corroborate the victim's testimony.
(citations to record omitted)

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