Tuesday, October 22, 2013

Baby Talk

A conviction that arose out of injuries sustained by an infant in the defendant's care was affirmed by the Montana Supreme Court.

Among the issues were the conduct of the defense attorney in breaching confidentiality and work product in her discussions with the medical examiner.

The court here found significant the fact that the examiner was not called as a trial witness.

The prosecutor

began her closing argument with a first-person narrative from the perspective of the infant, relating the State's view of what happened as though [the victim] was testifying on her own behalf. During rebuttal, the prosecutor then told jurors that the infant was "speaking to you" and asked the jurors to "tell [the victim] that you heard him and that you find the defendant guilty."

The defense did not object.

A dissent would find plain error in the prosecutor's "channeling" argument and would reverse on that basis.

There is a problem with the link -- the case is State v. Nevade Ugalde, decided on October 17.  (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2013/10/a-conviction-was-affirmed-by-the-montana-supreme-court-despite.html

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