Thursday, February 09, 2006
It's not technically criminal, but worth mention. My former boss, Jessica Kunen won a SVPA reversal in In re Foster, No. 91,324 (Kan. Feb. 3, 2006), the KSC found prosectorial misconduct when the assistant attorney general made opening statements about how the committees had reviewed the SVP proceedings and that a judge had found sufficient evidence to have a SVP trial. The KSC found that this improperly vouched for the case and implied that there was judicial approval of the prosecution. I suppose it would be like arguing in a criminal case that "look, I charged the guy and the judge bound him over for trial . . . he must be guilty," which is pretty obviously incorrect. The KSC also held that polygraph results are not admissible in SVP proceedings, distinguishing (my) previous loss that held that polygraph results are admissible in probation revocation proceedings. And expert opinions based on inadmissible evidence (like polygraph results) are themselves inadmissible, even where the expert never explictly testifies regarding the inadmissible evidence.