What's the hurry?

B. Joyce Yeager won in State v. Huntley, No. 97,338 (Kan. App. March 7, 2008), getting a new trial in a Wyandotte County rape and aggravaed criminal sodomy prosecution. The COA reversed because the district court refused to grant a continuance to allow hiring an expert to evaluation the child witness' testimony:

With regard to the district court's stated ground for denying the continuance because the expert assistance or testimony would be inadmissible because such matters are things "jurors normally know" or "are common sense" and would be inadmissible, we respectfully disagree. We note that at the outset of our analysis that there was no physical evidence here; the reliability of the child witness was a critical aspect of the case. At least one--if not the predominant--theme of the defense, was that M.E.'s natural mother may have been instrumental in suggesting testimony to M.E. Thus, the defense sought expert assistance "to view there videotapes, and analyze the testimony of these children."

. . . .

We do not view the district court's concern over rescheduling to be an appropriate weighing of the [State v. Howard, 221 Kan. 51, 557 P.2d 1280 (1976)] factors. Clearly, Huntley was willing to pay the price of staying in custody until another trial date, as acknowledged by his counsel. As we have noted, there is no credible suggestion that the defense had been less than diligent in considering and attempting to secure such a witness, and there was no discussion regarding the probability of the witness' likely appearance at a later trial. Weighing these factors against the potential importance of the witness and the possible prejudice to the defense, we fail to understand the court's concern over rescheduling.

Most importantly, however, is that the judge's second ground seems to have circled back to the first ground in stating he "probably would not let [an expert] testify." As we have already indicated, this premature statement as to admissibility was an erroneous legal conclusion. The importance of the witness and the prejudicial impact on the defense of proceeding in lieu of such witness is critical in the assessment of a motion for continuance.

Given the importance of such expert testimony in these kinds of cases and given the lack of good reason to not continue the case, the result is not suprising.

[Update: after some delay for substitution of appellate counsel, the state did not file a PR and the mandate issued on May 29, 2008.]