RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – DEFENSE WITNESSES

RHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald

DEFENSE WITNESSES

State v. McDowell, 620 A.2d 94 (R.I. 1993). The trial court refused to allow defendant’s son to testify about a conversation he had with the complainant in which she threatened to bring another charge against defendant as a result of an argument with the son. R.I.S.C. reversed.

This testimony was clearly relevant to argue that the complainant’s allegations were fabricated.
State v. Benoit, 697 A.2d 329 (R.I. 1997). The trial court precluded the defense from introducing character witnesses to testify that defendant was trustworthy with children. R.I.S.C. remanded the case for the trial judge to determine the admissibility of the character evidence given the proper foundation, and the likely affect on the verdict. After hearing, a new trial was ordered.

“We believe that evidence of good character on the part of an accused may well be a significant element in his or her defense. Generally, the crime of sexual molestation depends upon the credibility of the complaining witness as opposed to the credibility of the defendant. Therefore, excluding evidence of good character in respect to a pertinent trait cannot generally be considered harmless.” Id. at 331.
State v. Vocatura, 922 A.2d 110 (R.I. 2007). Defense counsel proffered testimony, on behalf of the defendant, that the victim had called counsel and admitted that her injuries were caused by a fall down the steps and not by a domestic assault.

Defense counsel’s testimony was not subject to exclusion on the grounds that counsel was unable to lay a proper foundation, because he was prepared to testify that he recognized victim’s voice from numerous contacts he had with her in the past.
However, defense counsel’s testimony was barred under rule of professional conduct prohibiting a lawyer from acting “as advocate at a trial in which the lawyer is likely to be a necessary witness.” To present the testimony, counsel should have requested to withdraw from the case.

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