Public Defense

Where have you gone, Justice Berdon? Part Two

By Gideon

From State v. Juan V, issued yesterday. Berdon, J., dissenting:

This is a difficult case, not because of the applicable law, but because it involves allegations of sexual assault and abuse of J, a four year old child, allegedly perpetrated by the defendant, Juan V., her grandfather, the  thought of which would arouse the emotions of anyone. But we are a nation of laws, and a jury must decide the guilt or innocence of a defendant on the basis of legally admissible evidence. In such cases, it is the duty of this court to rule on claimed errors even when its decision would result in a new trial. In the present case, I believe that the trial court committed error, that the defendant?s conviction of sexual assault in the first degree and risk of injury to a child should be reversed and that a new trial should be ordered on both counts.

and:

I am bewildered by the majority?s footnote six. First, Berrien referred clearly to ??the interview.?? He did not state ??in an interview.?? I hope that we can all agree that J was interviewed only once at the advocacy center and that this interview was conducted by Agudelo. Second, it is clearly indicated to the reader that I added ??with Agudelo?? by placing that phrase in brackets. No matter how the phrase is read, Berrien was in essence writing that J?s statement in the interview was credible. By doing so, Berrien overstepped the limits imposed on expert testimony and invaded the factfinding province of the jury.

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Full post as published by A Public Defender on July 24, 2008 (boomark / email).