EvidenceProf Blog

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

Wednesday, May 25, 2016

10th Circuit Reverses Child Sexual Abuse Conviction Based on Brady Violation

Pursuant to the Supreme Court's opinion in Brady v. Maryland, the prosecution violates the Due Process Clause by failing to timely disclose material exculpatory evidence to the defense. But what happens if a sexual assault nurse examiner (SANE) misrepresents her credentials at trial, with correction by the unknowing prosecutor? Is that SANE nurse part of the prosecution team, meaning that there is a Brady violation. According to the recent opinion of the Tenth Circuit in McCormick v. Parker, 2016 WL 1743388 (10th Cir. 2016), the answer is "yes." 

In McCormick, Robert McCormick was convicted of child sexual abuse in large part based upon the testimony of SANE nurse Carolyn Ridling, who conducted a sexual-assault examination on the victim.

Ridling testified she was certified as a SANE nurse. In answering a question about her training, Ridling testified:
I have continuing ed that you have to have, because I'm certified by the Attorney General's office in the State of Texas to do exams on adults and pediatrics. And in order to do that, you have to have 50–something hours every two years—which I have more than that, but you have to have continuing ed to keep it going....
On cross-examination, counsel asked, “And are you current on your certification through Texas?” Ridling answered, “Yes.”

After he was convicted, McCormick appealed

with an affidavit from the Office of the Texas Attorney General showing that, contrary to Ridling's testimony, she wasn't certified as a SANE nurse in Texas when she testified at his trial. McCormick also submitted an agreed order from the Texas Board of Nursing finding that Ridling misrepresented herself as a certified SANE nurse “to patients, court officials and the public” from October 2006 to April 2007.

In determining whether this was a Brady violation, the Tenth Circuit had to decide whether a SANE nurse is part of the prosecution team, meaning that the prosecution suppressed material exculpatory evidence. The court noted that it had 

found only one other court that has. In People v. Uribe, the California Court of Appeal found a Brady violation when the prosecution didn't disclose a videotape of a sexual assault exam....The court characterized the exam as investigative in nature, noting that a “major purpose of the examination was to determine whether the allegation could be corroborated with physical findings.”...The court also noted that police initiated the exam as part of a criminal investigation, concluding those conducting the exam acted on the government's behalf....Under those circumstances, the court ultimately imputed the hospital personnel's knowledge of the video's existence to the prosecution because those responsible for conducting the exams “were part of the ‘prosecution team’ for Brady purposes.”

The Tenth Circuit adopted this analysis, concluding that

Here, as in Uribe, Ridling examined [the victim] “at the behest of” law enforcement as part of a criminal investigation into [the victim]'s allegation that McCormick sexually abused her....Moreover, Ridling explicitly testified that she kept a record of the exam to prepare herself to testify later. Under these circumstances, we agree that Ridling was part of the prosecution team for Brady purposes. Accordingly, we must impute her knowledge of her own lack of certification to the prosecutor....And because the prosecutor didn't disclose Ridling's lack of certification to the defense, we conclude the prosecution suppressed evidence.



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It seems strange to me to characterize a runaway expert as a member of the prosecution team. In a certain sense, the prosecution was as much a victim of the nurse's deceit as the jury--unless one happens to believe that the prosecution knowingly put an unlicensed nurse on the stand, but there doesn't seem to be any evidence of that. So while I think this is the right result i am not convinced that what actually happened was a Brady violation. It seems to me a generic due process violation.

Posted by: Daniel | May 26, 2016 9:19:55 PM

Daniel: Wouldn't it be quite a simple job for the prosecution to check that their licensed nurse really is a licensed nurse, not just take her word for it? Otherwise it would be too easy for the prosecution to just turn a blind eye, and put any old person on the stand - even though they're gathering evidence for the prosecution.

Posted by: Cupcake | May 29, 2016 1:24:11 AM

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