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Sexual Battery – Defendant Entitled to New Trial

Posted by John P. Rutkowski | Jul 27, 2017 | 0 Comments

Complainant told the jury that she lived with her mother but periodically visited father's home. During one visit, when she was fourteen, she woke up to find father on top of her, raping her. In pain and in shock, she pretended she was asleep and waited for father to stop. The Complainant returned to her mother's home the next day but did not immediately report the assault. A few weeks later, she told a close friend what had happened. She then reported it to her mother and her guidance counselor.

Defendant asserted event it never happened. His lawyer argued that the daughter had reasons to fabricate the whole story, that she once suggested she may have dreamed it all, and that there were still other reasons to disbelieve her testimony. Defense lawyer also noted that there was no physical examination afterward, arguing that a timely exam could have shed light on whether there had been abuse.

Defendant argues he is entitled to a new trial because he was prejudiced by the State's undisclosed expert testimony. At trial, the State called a member of the State's child-protection team who had not been disclosed as an expert. After the witness testified about her background and qualifications, the State tendered her as a medical expert. Over Defendant's objection, the court allowed the witness to testify that, in her medical opinion, a physical examination of the daughter likely would not have shown signs of sexual abuse, whether there had been abuse or not.

In arguing that the court should allow the testimony, the State insisted it was critical because without it, “some juror is going to go, oh, all you had to do was take her to a doctor and then we would know, end of case, and so it has to be not guilty.” The court agreed to allow it, but first gave Defendant's counsel the afternoon to depose the expert and to otherwise prepare for her testimony.

During hearing the following morning, the defense argued it was prejudiced because it had no time to obtain its own expert to contradict the State's. The court nonetheless found no prejudice and allowed the witness to testify.

After a careful review, the court of appeals found there was a reasonable possibility that Defendant's trial preparation or strategy would have been materially different had the State properly disclosed its intent to introduce expert testimony and Order a new a new trial. 

About the Author

John P. Rutkowski

Mr. Rutkowski has been practicing law for the past twenty-five years. Prior to going to law school Mr. Rutkowski served as a deputy sheriff before retiring to attend law school. Upon graduating law school Mr. Rutkowski served as a prosecutor in Florida before going in to private practice and representing clients in three states.


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John P. Rutkowski, Attorney at Law, firm represents clients in the area of driving under the influence, boating under the influence, Criminal & Civil Traffic Offenses. Contact me today for a free telephone consultation.