Metropolitan News-Enterprise


Wednesday, May 21, 2008


Page 1


Court: Videotape of Assault Victim’s Medical Exam Brady Material




A videotape of the medical examination of the alleged victim of a sexual assault, in the possession of a medical professional who works with police and prosecutors, should have been turned over to defense lawyers as potentially exculpatory evidence, the Sixth District Court of Appeal has ruled.

In an opinion filed April 24 and certified for partial publication Monday, the justices said the tape might have been helpful to attorneys for Agustin S. Uribe because it supported a defense expert’s conclusion that the subject—Uribe’s granddaughter, now in her teens—showed no signs of sexual trauma.

Anna Doe, as she was identified in the opinion, initially alleged Uribe had assaulted her on several occasions from the time she was 5, including in her mother’s home in Milpitas, near San Jose, and in a van on a family trip to Mexico. But because she later recanted and her testimony was inconsistent, the case relied heavily on medical evidence.

Examined by Team

Pursuant to state statutes, the girl was examined by a ‘’sexual assault response team,’’ or SART. Such exams are used to document any bruising, tearing or other evidence of genital trauma.

At Uribe’s trial in Santa Clara Superior Court, experts called by prosecutors testified that photographs taken during the exam proved the girl had been assaulted. A defense expert said they did not, but the prosecution experts said the witness’ conclusion was wrong.

Uribe was convicted of two counts of sexual assault on a child and two counts of lewd or lascivious acts on a child, and was sentenced to 38 years to life in prison under the One-Strike Law.

After he was convicted, however, his lawyers learned that the exam had also been videotaped and moved for a new trial. The medical center at which SART exams are conducted for the county was apparently routinely taping the exams, but did not inform the District Attorney’s Office that it was doing so.

Argued Not Exculpatory

In response to Uribe’s motion, prosecutors argued that the tape was not exculpatory under Brady v. Maryland (1963) 373 U.S. 83 because the defense claim was not credible, and that even if it was exculpatory, there was no Brady violation because the tape was not in possession of the prosecution.

Judge Paul Bernal denied the motion, leading the defense to appeal.

Justice Wendy Clark Duffy, writing for the Court of Appeal, said the tape should have been disclosed, and that failure to do so was a prejudicial Brady violation.

‘’This court simply cannot reach the unwavering conclusion . . . that the SART video offered nothing that would have been helpful to the defense,’’ the justice wrote.

Duffy went on to say that the SART examiner and associated medical personnel acted as part of the “prosecution team,” so that knowledge of the evidence they gathered and collected was imputed to the prosecution for Brady purposes.

Statutory Protocol

The evidence, she noted, was gathered in accordance with a statutory protocol that governs the training of medical personnel so that they can aid victims of domestic abuse, child abuse, elder abuse and sexual assault and “provide comprehensive, competent evidentiary examinations for use by law enforcement agencies.”

The protocol, she added, contains specific provisions as to how the evidence is to be collected, reported, and preserved, and mandates that the costs associated with the exams be borne by the public and not by the victim.

In this particular case, Duffy elaborated, the examination “was clearly spearheaded by the police,” who told the examiner that the subject was the victim of an alleged sexual assault, and the examiner—in accordance with standard practice—provided a copy of the forensic report to the police.

The circumstances, Duffy wrote, are thus similar to those in In re Brown (1998) 17 Cal.4th 873, in which the court ruled that a  crime lab actively assisting the district attorney in the investigation and prosecution of cases was part of the investigative “team” for Brady purposes.

The case is People v. Uribe, 08 S.O.S. 2938.


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