Everett, Wash.
Published: Wednesday, July 23, 2008

RAPE CASE

Cross-examination a constitutional right

 As the defense attorney in the case, I have been troubled to read the automatic assumptions that the judge did something wrong, the prosecutor was incompetent and, most shocking of all, that a juror involved in the case behaved "lecherously." None of this is accurate.

The witness testified on the stand that she had a tattoo across her lower back large enough to cover up injuries so a nurse would not have seen any. I asked the witness to show the tattoo to the jury. After discussing the issue at side-bar, the judge ruled the evidence was appropriate to be shown to the jury since she had raised the issue.

As court transcripts show, the witness was instructed not to lower her pants. The witness simply turned and flipped up the back hem of her shirt for a second. The juror seated at the end of the box was unable to see, so the judge instructed the witness to turn slightly and she again flipped up the hem of her shirt so that juror could view the evidence.

It is unfortunate that the witness was embarrassed by this but the tattoo was not in a private area of the body. If it had been, the showing of the evidence would have been handled in a different fashion. It is one of the most valued parts of our judicial system that inaccurate testimony may be challenged at trial. Cross-examination is a constitutional right that I would certainly hope this country never chooses to take away from its citizens.

The defendant was acquitted, not because of the evidence of the tattoo, but because the complaining witness never, at any point during the investigation or trial, identified the defendant as her attacker.

oline Mann
Snohomish County Public Defenders Office
Everett
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