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What's Up in the 8th

Due in large part to "cold case" funding by the Feds, and the belated effort to clear up the backlog of rape kits that have been sitting around the Cleveland police evidence room for much of the past twenty years, we've had a big upsurge in rape cases here.  Two decisions by the 8th District last week could have a major impact on how those come out.

The "substantial impairment" subsection of the rape statute has provided trouble in the past, largely because the courts haven't done a lot to define exactly what it constitutes.  The Supreme Court's only shot at it came in State v. Zeh, a 1987 case.  Even there, the court only tangentially addressed the question of substantial impairment; the real issue was whether the State could use expert testimony regarding their tests of the victim's mental deficits, when the defense had been denied the opportunity to conduct their own examination. 

The inherent vagueness of the definition doesn't help the defendant in State v. Browder; everybody, with the exception of Browder, agrees that his 16-year-old victim is cognitively impaired.  The girl's school psychologist testified to her learning  deficiencies, the family testified that her maturity level was such that she spent her time with much younger children, and the police and medical responders testified that they could tell she was impaired within a couple of minutes of talking to her.  And so, apparently, could the jury - the court's opinion refers to the victim's "childish testimony" supporting the observations of the responders and the testimony of the victim's family.  In fact, if anything, Browder caught a break:  despite the evidence that Browder grabbed the girl's arm and dragged her into his house, then lured her into his bedroom with promises of candy and kept her there while he raped her, the trial court merged the convictions of rape and kidnapping.

There's a saying that hard cases make bad law, but sometimes easy ones do, too.  The evidence of impairment was overwhelming in Browder's case, and the court could have left it at that, but stuck in the middle of paragraph 19 is this: 

It is sufficient for the state to establish substantial impairment by establishing a reduction or decrease in the victim's ability to act or think.

That's my emphasis, and the problem with that is that the vast majority of "substantial impairment" cases deal with women operating under the influence of alcohol or drugs, and if you're going to allow the prosecution to show substantial impairment by a "reduction or decrease in the victim's ability to act or think," you're setting the bar awfully low.  Last year, in State v. Rivera (discussed here), the court did an excellent job of explaining that simple consumption of alcohol, and even intoxication, does not establish substantial impairment.  If you're handling that type of a rape case, be prepared to explain why Rivera trumps Browder.

The problem of expert testimony in child rape cases is the focus of In re R.E.A. Back in 1989, the Supreme Court ruled in State v. Boston that an expert witness couldn't give an opinion as to the veracity of a child's complaints of sexual abuse, but could testify that, in his expert opinion, the child had been sexually abused.  That's a fine line, and the expert in R.E.A. tries to walk it.  He testifies that the child gave a clear, uncontradictory history, and disclosures that were "consistent with children who have been sexually abused."  That seems to fall on the right side of the Boston line, but the panel decides to the contrary.  It distinguishes Boston because in that case "the expert also had physical evidence that the child was abused to support his conclusion because the medical examination indicated "probable vaginal penetration and possible rectal penetration."  Here, no physical evidence existed to support the abuse finding, and thus the doctor's conclusion was "based solely upon the child's statements," and that's a no-no.

Except it's not quite that clear.  There are several earlier cases on this, like State v. Winterich, an 8th District decision from 2008, where the court was less definitive:  while "there has to be something other than the child's unsupported allegations that assisted the expert in arriving at his or her opinion," that something can be "the expert's observations of the child's demeanor or other indicators tending to show the presence of sexual abuse."  That leaves a lot of room for play, for example, the child's description of the sexual acts:  would a doctor's statement that the child's description portrayed knowledge that a child normally wouldn't have be an "other indicator" of sexual abuse?

There is one other feature of In re R.E.A. that's helpful to the defense.  In numerous cases over the years, the 8th District (and others) have held that Boston doesn't apply if the child testifies.  As I explained in this post, that's a complete misinterpretation of the law.  The court was so impressed by my analysis that two years later they held  they extended that to hold that a police officer could testify as a witness' veracity, so long as he witness testified.  But the fact that the victim testified in R.E.A. doesn't even rear its ugly head, so maybe we can forget about that line of cases.

One other interesting point in R.E.A.  The court notes that the victim was 4½ years old at the time of the act, but the trial didn't take place until four years later.  The court concludes:

Upon remand, if a new trial is pursued, the child will be approximately 11 years old, further hindering her recollection regarding an incident that occurred approximately six years before. We suggest that the prosecutor take this into consideration when deciding how to proceed.

Hey, it could happen.

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