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Jury Access to Inadmissible Evidence Results in New Trial for Washington Criminal Defendant

A jury must base its decision on the evidence before the court and may not consider evidence outside the record.  While courts do their best to ensure that juries are properly instructed and not exposed to outside information, jurors still sometimes consider extrinsic information in robbery and other theft cases.  When this happens, a Washington robbery defense attorney may seek a new trial for his or her client.

SignSuch was the case recently, when a jury was exposed to a video that had not been admitted into evidence at trial.  The defendant was charged with second-degree robbery of a restaurant.  Police apprehended him at the end of an alley about five blocks away shortly after the robbery.  There were shoe prints in the alley matching the defendant’s shoes.  He had a roll of pennies on him and just a few dollars more than what had been taken.  The robber’s shirt was found in a garbage can along the alley.  The employee, however, did not think the defendant was the robber.

There were three videos from inside the store and another that captured the parking lot.  The outside video also showed the robber walking out of the building in the general direction of the alley.  All four videos were put onto a DVD admitted as a prosecution exhibit.  However, just the videos inside the store were admitted at trial.  The prosecution did not have a witness to establish a foundation for the exterior video, so it was withdrawn after the defense objected.  The existence of the exterior video came out at trial when the defense asked an officer about not having watched it.

The defense challenged the adequacy of the police investigation and the evidence of identity.  The defense attorney referenced the exterior video as “a missing piece of evidence.”

The DVD was given to the jury along with the other evidence.  Afterwards, the prosecutor reminded the court that the exterior video was on the DVD, and the court retrieved it.  It was not determined if the jury had watched the videos, but the bailiff had shown them how to work the equipment.

The trial court instructed the jury to disregard track four if they had seen it and provided them with a corrected exhibit.  The jury found the defendant guilty on the robbery charge, and the defense moved for a new trial.

The trial court noted that the jury knew the video existed, so it was not really extrinsic evidence.  It was, however, in contrast to the defendant’s argument.  The judge indicated that the rule of lenity suggested a new trial, which she granted.

The state appealed, arguing that the trial court had never determined if any of the jurors watched the exterior video.  The appeals court found, however, that this issue was not the appropriate focus for the appeal.  The jurors knew the video existed; it was the fact it was not “missing evidence” that was unknown to them.  The jury was made aware that the “missing evidence” was present in the courtroom from the track listings on the DVD.  It did not matter whether they watched the video itself, since the track listing would show that the defendant’s argument the video was missing was erroneous, which would affect his credibility.

The appeals court also rejected the state’s argument that the disclosure was not extrinsic evidence because the jury knew the video existed.  The appeals court noted that the presence of the video in the courtroom was extrinsic evidence, even if the existence of the video was not.

The state further argued that the trial court erred in relying on the rule of lenity.  This doctrine provides that ambiguous statutes are construed in a criminal defendant’s favor.  The rule did not apply because there was no statute at issue, but the appeals court found that the judge was just indicating that a new trial was needed to prevent the defendant from suffering from ambiguous circumstances.  The state also argued the defendant had not shown he was prejudiced by the video.  The appeals court found, however, that the video supported the prosecution’s theory that the robber went toward the alley and undercut the defense position that the police had not connected the alley to the robber.  The appeals court found the trial court had a tenable basis for granting the new trial and did not abuse its discretion.   The appeals court affirmed the trial court’s order granting a new trial.

A trial court is allowed significant discretion in granting a new trial, and its decision to do so can only be overturned if there was an abuse of that discretion.  The Washington robbery defense attorneys at Blair and Kim, PLLC, understand the importance of a verdict that has not been influenced by outside information.  We fight to protect our clients’ rights to a fair trial.  If you are facing criminal charges, call us at (206) 622-6562.

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Alternative Means and Unanimous Jury Verdicts in Washington

Washington Appeals Court Finds Exclusion Appropriate Remedy for State’s Failure to Disclose Witness

Image: FreeImages.com / Robert Linder