Prior bad acts win

Pat Dunn won in State v. Dayhuff, No. 94,797 (Kan. App. May 18, 2007), getting a new trial in a Labette County agg indecent liberties case. The COA agreed that the trial court improperly admitted bad act evidence that was not "strikingly similar" and therefore not proper to show plan. The COA also agreed that the trial court should have held an immediate hearing to inquire into allegations that a child advocate was coaching the child witness during her testimony. The trial court would not hold a hearing during trial, but said it would take it up at a motion for new trial if necessary. The COA held that Mr. Dayhuff was entitled to immediately inquire into the situation and make a record. The trial court erred by delaying the hearing on the allegations for months until the motion for new trial.

I suspect this kind of coaching goes on quite a bit in cases with child witnesses (often times it may be sort of subconscious). But in the context of a trial and in light of the Confrontation Clause, it is quite damaging. The lawyer in Dayhuff had a witness in the courtroom to testify to the child advocate's improper actions. It is probably a good idea to have a witness around when children are testifying with a parent or child advocate present in the courtroom. (Maybe this is true in other cases with adult witnesses too).

[Update: the state did not file a PR and the mandate issued on June 21, 2007].