EvidenceProf Blog

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

Wednesday, December 26, 2012

As My Next Witness: Court of Appeals of Kansas Finds Defendant Couldn't Call Prosecutor as Witness

Kansas has statutes precluding judges (KSA 60-442) and jurors KSA 60-443. By implication, then, does the absence of a rule precluding the prosecutor in a trial from testifying mean that prosecutors can be called to testify at trial? According to the recent opinion of the Court of Appeals of Kansas in State v. Rivera, 2012 WL 6642109 (Kan.App. 2012), the answer is "maybe, but not in this case."

In Rivera, Monica Rivera was convicted of involuntary manslaughter and child endangerment. This crimial action came after a child-in-need-of-care (CINC) case, after which the judge (1) ordered that Rivera's daughter, G.R., be placed in the custody of the Kansas Department of Social and Rehabilitation Services; and (2) entered a restraining order preventing Rivera's boyfriend, Jason Jones, from having any contact with G.R. Thereafter,

On July 20, the district court held a CINC hearing...At this hearing, the State advised the district court that the State believed it was in G.R.'s and the family's best interests for the court to approve an informal supervision agreement. Under the terms of the informal supervision agreement, G.R. was released from SRS custody and was placed back in Rivera's custody, Rivera and Jones were required to complete a parenting class, Jones was required to complete a counseling intake to determine what counseling services he would be required to attend, and the no-contact order preventing Jones from having any contact with G.R. was eliminated....The district court approved the informal supervision agreement.

After Rivera was convicted, she appealed. At her criminal trial, Rivera had sought to call the prosecutor as a witness because the prosecutor because the prosecutor was involved in the CINC case. Specifically, Rivera claimed that the prosecutor's involvement in the CINC case made the prosecutor privy to information that Rivera believed was vital to her defense. The trial judge, however, had granted the prosecutor's motion to disqualify himself as a witness

In addressing Rivera's appeal, the Court of Appeals of Kansas noted that 

In deciding a motion to disqualify an attorney when opposing counsel wishes to call that attorney as a witness, a court should consider: (1) whether it has been shown that the attorney would give evidence material to the determination of the issues being litigated; (2) whether the evidence could not be obtained elsewhere; and (3) whether the testimony would be prejudicial or potentially prejudicial to the testifying attorney's client.

The court then found that

In this case, Rivera has failed to show that the prosecutor's deposition or trial testimony was necessary to her defense. First, the prosecutor's rationale and decision-making process for agreeing to an informal supervision agreement and dropping Jones' no-contact order was not material to the issues being litigated in the case. The main issue in the case was whether Rivera could have reasonably foreseen that Jones could cause harm to G.R. when she left G.R. alone in Jones' care, not whether the prosecutor reasonably foresaw this possibility. Second, and even more significant, is the fact that Rivera was able to present the information she wished by other means. During the trial, both Willcott, Rivera's attorney during the CINC case, and Horsky, G.R.'s guardian ad litem, testified. Rivera's counsel had the opportunity to question these attorneys as to why the parties agreed to recommend the adoption of the informal supervision agreement and the removal of the no-contact order. In fact, Rivera's attorney posed this question to Horsky. Furthermore, Rivera also admitted a transcript of the July 20 CINC hearing. In that transcript, the prosecutor explains why the State was recommending the informal supervision agreement. Thus, Rivera has failed to show that the district court erred in denying her motion to depose the prosecutor or to call the prosecutor as a witness.



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