Tuesday, September 23, 2008

Jurors Not Swayed By Defense Expert

From the Mitchell Republic:

Among Friday’s witnesses was Rich Kaplan, founder of Child’s Voice in Sioux Falls [South Dakota] and a specialist in child abuse cases. Kaplan gave opposing testimony to the state’s medical expert, Nancy Free, regarding the physical exam of the 13-year-old victim.

Upon Kaplan’s review of the videotape of the physical exam, he said he found no indication that sexual abuse occurred. “I have done over 1,000 exams and I don’t know what Dr. Free means by (the girls’ vaginal area) feeling differently,” Kaplan said. “I feel the jurors’ decision should be made on the best possible science.”

When cross-examined by Assistant Attorney General Brent Kempema, Kaplan admitted he could not make a factual diagnosis of abuse since he has not reviewed the oral history of the victim.[...]

[Kempema] said the victim has no reason to lie and that this was the toughest decision she will make in her life. He said Fisher has every reason to lie and nothing to lose. [...]

[Defense atttorney Chris] Nipe told jurors the state did not prove its case beyond a reasonable doubt.

The jurors disagreed with the defense attorney who likely hoped that the victim's testimony would be disregarded out of unfounded fear that this was a false accusation. They found Ernest Fisher guilty on all 8 counts including one count of first degree rape.

I'm glad that this defense expert admitted that he could not make a factual diagnosis of abuse in his review of the physical exam of this victim and more glad that the prosecutor didn't forget to ask this question. Many times any questioning of the physical exam is wrongly assumed to be reasonable doubt.

Those who want to baselessly dismiss victim testimony in rape and sex crime cases likely view this verdict as a miscarriage of justice since they would demand that the physical exam in cases which go to trial find injuries which every expert reviewer would agree could only come from rape. For this to happen the victim would likely need to be maimed or require emergency surgery.

That gives rapists -- including child rapists -- clear parameters for when they expect to get away with sexual violence.

As one commenter who arrived at my blog with "false rape" as part of his Google search wrote recently:

the legal system is so screwed up when a man is accused of a crime against a woman or child. It has nothing to do with evidence when a woman accuses a man.

What this commenter doesn't acknowledge is that testimony is evidence.

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posted by Marcella Chester @ 7:44 AM   0 comments links to this post


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