When the Jury In a Rape Case Hears the Defendant Molests Childre
When the Jury In a Rape Case Hears the Defendant Molests Children, Is It a Fair Trial?
By Kimberly B. Cheney
Justin Smith was convicted by a jury of sexual assault by forced oral sex, and rape of B.H. He was sentenced to 10 years to life in prison.At trial, B.H. testified that she went to Smith’s place to buy marijuana, and shared a couple of hits with Smith, who then forced her to a bedroom and raped her.B.H. and Smith had known each other for years – in fact, her best friend was the sister of Smith’s girlfriend. She also testified she had police recorded calls with Smith in which denied the rape. The state’s additional evidence was a police recording of a call between Smith and his girlfriend in which Smith admitted having consensual sex with B.H., and a police officer hearing Smith say “he had fucked up, and B.H. was now calling it rape.”
Soon after the claimed rape, B.H. told her friend E.C. she had been raped. E.C testified about the conversation. The state had a CD recording of a police conversation with E.C about the incident.The CD was turned over to the defense the night before the trial.After E.C, testified, the defense attorney requested the CD be played in open court to show discrepancies between E.C.’s testimony and what she told the police.
However, the C.D.contained an additional statement in which B.H. told E.C. Smith had discussed molesting his girlfriend’s minor daughter. This too was played to the jury. The defense objected immediately after that statement, and requested a mistrial, which was denied. The judge told the jury to disregard the “last portion of the recording” without explaining what the “last portion” was. After conferring with the attorneys in private, the judge ruled the entire CD would be played to the jury without the prejudicial statement. He told the jury “objectionable material had been removed. However, inadvertently a statement by E.C. about Smith molesting the child was played again.By now the jury had heard the statement three times.
Smith appealed, claiming he didn’t get a fair trial because of the C.D. evidence. The Supreme Court acknowledged that evidence of prior sexual misconduct in a sex assault trial was “the most prejudicial evidence imaginable.” It would suggest to the jury that Smith was a chronic sex offender who preyed on children as well as adults, and would encourage thejury to convict him because of his bad character, rather than because he raped B.H. The Court noted that without these statements, there was little evidence of rape.Smith stated to police the sex with B.H. was consensual. He made no incriminating statements to others.B.H. admitted smoking marijuana with Smith.So this was a “he said, she said” case.
The Court ruled this was a “rare” case, where the challenged evidence prevented Smith from getting a fair trial.The heart of the problem was the way the judge addressed the jury after twice allowing prejudicial evidence to be presented.Instead of instructing the jury that under no circumstances could they consider O.K.’s statements as proof of guilt, and strongly admonishing them not to consider the evidence, the trial judge merely said to disregard the “last portion” of the recording without clearly, and explicitly stating what evidence was to be disregarded and why. The Court ruled this vague instruction deprived Smith of a fair trial, especially since the jury had heard the improper evidence three times.
It is not unusual for a jury to inadvertently hear objectionable evidence.In this case the Court is instructing trial judges how to respond to such events.Trial judges undoubted will appreciate the guidance, as will Smith who may avoid 10 years in prison.State v. Justin Smith 2010 VT 15
