Tuesday, November 23, 2010

Up the Creek with a Paddle

By Gavin Boyles

State v. Brown, 2010 VT 103

This opinion answers one question: is the fact that defendant used a paddle to discipline a child admissible at his trial for sexually assaulting her?

The state introduced the paddling evidence to rebut defendant’s contention that the child’s three-year delay in reporting the assault reflected her tendency to lie.  The state countered that such delays are common in child sexual-assault cases, particularly when the perpetrator inflicts other violence on the victim.  Among other things, the state elicited testimony from several witnesses that defendant had paddled the victim and her sister.

The Court engaged in a familiar two-step analysis to determine whether the district court erred in admitting the evidence: (1) whether the evidence was relevant; and (2) whether its probative value was outweighed by the risk of unfair prejudice.  As to the first point, the Court held, as it has in other cases, that evidence of such violence is probative to rebut the inference that the victim’s delay reflects only dishonesty, fabrication, or inaccuracy.

As to the second, the Court found that defendant had not raised the unfair-prejudice argument with sufficient specificity below, and accordingly reviewed it only for plain error.  You may not be surprised to learn that the Court found none.  You may, however, be interested to know that the standard applied was whether the evidence was too “horrific”: “The [State's] evidence that defendant hit C.M. and her sister was no more ‘horrific’ than” evidence that defendant himself had introduced that he used to slap the victim’s face and yell at her grandmother.  In other words, Defendant started this boat up the creek, and the Court is not going to stop the State from giving it an evidentiary push along.  Thus it was not plain error for the district court to find no unfair prejudice to defendant.

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