EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, July 6, 2008

About Face: Defendant Accepts Plea Deal Despite Alleged Victim's Reluctance To Testify

In a jarring turn of events, an Arkansas man charged with raping a seven year old girl agreed to a plea bargain after the alleged victim broke down on the witness stand for the second time.  Sixty-two year-old Jerry Don Foster was charged with raping a seven year-old girl at the Searcy livestock auction.  The initial claim of Foster's attorney was that he was incompetent to stand trial, but the judge denied the motion on the basis of psychiatric evaluations performed on him.  The case then proceeded to a preliminary hearing in April, where the alleged victim began to render testimony against Foster; however, she was soon overcome by emotions and was unable to continue.

In another pretrial hearing this Tuesday, though, the prosecution apparently caught a break:  the judge ruled that a statement made by the alleged victim to a third party in the wake of the assault would be admissible at trial pursuant to Arkansas Rule of Evidence 803(2), the excited utterance exception to the rule against hearsay.  That ruling, however, was soon called into jeopardy when the alleged victim attempted to testify at the same hearing, but again was overcome by emotion.  Thereafter, Foster accepted a plea bargain under which he pleaded guilty to the lesser charge of sexual assault and was sentenced to 20 years incarceration.

At first, I thought that the plea bargain resulted from the prosecution realizing that it should offer Foster a deal because the alleged victim's reluctance to testify could have made it difficult to secure a verdict against Foster (and it could have invalidated the court's excited utterance ruling if the court deemed the statement "testimonial").  As it turns out, it was Foster who instigated the deal, with Deputy Prosecutor Phyllis Hendrix indicating that "[Foster] pleaded guilty to the reduced charge to save the family and the child the trauma of a jury trial."



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