Saturday, February 01, 2014

Misconduct is gross and flagrant and shows ill will

Daniel E. Monnat won in State v. Akins, No. 105,809 (Kan. Jan. 10, 2014), obtaining a new trial in a McPherson County aggravated indecent liberties with a child prosecution.  During cross-examination of the defense expert, the prosecutor asked if the witness knew that "Finding Words had been called the gold standard" and cited a case to the witness.  The KSC agreed with the state's concession that such questioning was misconduct:
We readily agree with the State's concession. Listing but several of the numerous reasons will suffice for our purposes. First, in identifying the Finding Words protocol as the gold standard, the prosecutor was improperly referring to facts that were never in evidence. This prohibition applies to all lawyers, but especially prosecutors.  And where a prosecutor refers to facts not in evidence, the first prong of the prosecutorial misconduct test is met.
Second, mentioning a court case as supporting authority in the jury's presence essentially implies that this aspect of the prosecutor's case against Akins already had judicial approval. More specifically, it improperly implies that a court had conclusively established that the Finding Words protocol was not only the "gold standard" but was also therefore unassailable.
The KSC was also bothered by the fact that the case cited by the prosecutor was not even a majority opinion, but merely a notation in a concurring opinion.

The prosecutor also repeated a theme that Mr. Akins had been "grooming" the victim.  The KSC agreed with the defense that this assertion was not founded in evidence:
Likewise, while the State is correct that the prosecutor never explicitly asserted that grooming is typical in sexual abuse cases, this absence does not necessarily mean she intended to use grooming in its everyday sense. We observe she repeatedly argued that Akins groomed the alleged victims in preparation for acts of sexual abuse. And because grooming is a well-known phenomenon in sexual abuse cases, the jury could reasonably infer that the prosecutor was referring to the psychological concept of grooming. Accordingly, the prosecutor's argument required supporting evidence; without it, the prosecutor was arguing facts not in evidence.
The KSC also held that the prosecutor improperly commented on the credibility of the witnesses.  The KSC held that the comments were gross and flagrant, motivated by ill will, and, as a result, remanded for a new trial.

The KSC also held that the district court improperly excluded evidence of prior false allegations made by the complaining witness against her father:
We conclude the district court erred by excluding testimony of Jennifer's and M's past allegations of sexual abuse by M's father based solely on the witnesses' relationship with Akins. K.S.A. 60-407(a) provides that "every person is qualified to be a witness." And a witness' familial relationship with a party, or some other potential biases, is not grounds for excluding the witness' testimony. The family relationship only goes to the weight of the evidence, i.e., credibility of the witness' testimony. Accordingly, the district court should not have required Akins to provide corroboration before admission of his evidence solely because it was composed of testimony of four family members. If the testimony is admitted at retrial, the State will be permitted to question the witnesses about their relationship with Akins because "'[b]ias, interest, or improper motives of a witness may always be shown in order to place the witnesses' testimony in proper perspective.'"

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