Maryland Nurse’s Opinion Testimony Triggers Conviction Reversal Because She Was Never Declared as an Expert Witness

nurseThere are several ways to get a criminal conviction in Maryland overturned on appeal. One way is to establish that the prosecution was allowed to introduce improper testimony on an essential issue of the case. This is what happened recently in one rape-and-assault case. A nurse, who was brought in as a lay witness, gave opinion testimony despite never having been authorized as an expert witness. That entitled the defendant to a new trial, according to the Court of Special Appeals’ ruling.

In this case, the defendant was a stepfather who stood accused of raping his adult stepdaughter. The state’s case contended that the stepfather, who was at the stepdaughter’s home to take her to a doctor’s appointment, committed the assault, then took the daughter to the appointment, and later drove her back home. Allegedly, it was not until later in the night that the stepdaughter felt safe enough to disclose what happened.

The stepdaughter went to a hospital in Hagerstown. There, a nurse dedicated to performing sexual assault forensic examinations performed an exam on the woman. The exam revealed an absence of vaginal trauma or bruising or red marks on the woman’s body, even though the stepfather allegedly had pinned the stepdaughter against a refrigerator in committing the alleged assault.

This forensic proof was essential to the stepfather’s case, since his defense was that he and his stepdaughter did have sex, but it was entirely consensual. To counter this defense, the prosecutor brought the nurse who performed the forensic exam to the stand. The nurse testified that the alleged victim showed no external signs of trauma. However, in questioning the nurse, the prosecutor asked her to opine regarding how it was not uncommon for sexual assault victims to have no external injuries.

Eventually, the jury convicted the stepfather of second-degree rape and second-degree assault.

The stepfather appealed his conviction, arguing that the trial court denied him a fair trial by allowing the nurse, who was never declared as an expert witness, to give improper expert opinion testimony by explaining to the jury that “the female anatomy makes it possible that non-consensual sexual intercourse may leave no evidence of physical injury.” Given that the issue of consent or the lack thereof was the only contested point in the trial, the nurse’s improper expert testimony offered “critical guidance” on that one issue, meaning the conviction had to be reversed, according to the stepfather’s argument.

The Court of Special Appeals agreed with this argument. Previous case decisions have established where the line is between medical providers giving lay witness testimony and expert opinion testimony. If the medical provider’s testimony only covers what she did and what she observed in treating the patient, it is not expert testimony, and the medical provider does not need to be qualified as an expert.

That is not what happened in this stepfather’s case, the appeals court decided. The nurse gave opinion testimony that it was possible for the body of a woman who had had non-consensual sexual activity to display a total lack of visible external injuries. This testimony was based upon the nurse’s experience as a forensic exam nurse, professional nursing training, and education as related to the physiology of the female body, rather than on what took place in the examination of this patient.

Since this opinion testimony was offered for an essential point, namely, to establish that, even though this alleged victim’s body did not display external signs of injury or trauma, that did not make it impossible for her to have been sexually assaulted. This meant the stepfather was entitled to a new trial.

When you or a loved one is facing criminal charges, experienced criminal counsel can help you defend your rights and provide a strong defense. Maryland criminal defense attorney Anthony A. Fatemi has been helping the accused for many years. Contact us at 301-519-2801 or via our online form.

More blog posts:

What Happens When the State’s Expert Lies on the Stand in a Maryland Criminal Trial, Maryland Criminal Lawyer Blog, Nov. 4, 2016

Maryland Court of Appeals Rules in Favor of Petition for Post Conviction Relief, Maryland Criminal Lawyer Blog, Feb. 5, 2016

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