Washington Court of Appeals Holds the Failure to Make a Timely Objection to Inadmissible Testimony Regarding a Victim’s Credibility Constitutes a Waiver of the Objection

Under Washington law, evidence that a victim’s account of an alleged assault has remained consistent is inadmissible to corroborate the victim’s testimony. As outlined in Washington v. Kleinsmith, however, a failure to make a timely objection to inadmissible testimony will result in a waiver of the objection. In Kleinsmith, the Court of Appeals of the State of Washington upheld the defendant’s conviction for second-degree assault regardless of the fact the prosecutor introduced inadmissible testimony regarding the victim’s credibility, due to the defendant’s counsel’s failure to make a timely objection to the testimony. If you are charged with assault, it is essential to your defense to retain an experienced Washington assault defense attorney who will fight to have any inadmissible testimony precluded from evidence.

Facts of the Case

Reportedly, the defendant and her alleged victim were neighbors in an apartment building. The victim heard someone sag to “get out” as she walked past the defendant’s apartment, and when she turned around, she saw a woman with a butcher knife. The victim further alleged the woman began to chase her and screamed, “don’t come back.” The victim reported the incident to an employee in the building’s front office, who called the police.  The victim described her assailant as a blonde woman wearing a t-shirt and shorts. When the police arrived, the building employee advised them that the defendant matched the physical description of the assailant.

Allegedly, the police repeatedly knocked on the defendant’s door, but she would not answer. The police eventually opened the defendant’s apartment with a key. When they entered the apartment, the defendant came from the back of the apartment and advised she was sleeping. The defendant was arrested and informed of her Miranda rights, after which she requested an attorney. She asked the officers to retrieve items from her apartment, and one of the officers noticed a large knife by the kitchen sink. As the defendant was escorted from the building, the victim advised the officers she was “one hundred percent” sure that the defendant was her assailant. The defendant did not testify at the trial. The building employee and arresting officer both testified and stated the victim’s story remained consistent. The defendant was convicted of assault in the second degree, after which she appealed.

Ruling of the Court of Appeals of The State of Washington

On appeal, the defendant argued the prosecutor engaged in misconduct when he asked the building employee and arresting officer their opinions as to whether the victim was credible. The court agreed that evidence that a witness’s story remained consistent is not admissible to substantiate the witness’s testimony, and therefore, the prosecutor’s behavior was improper. The court noted, however, that the defendant’s attorney failed to object to the prosecutor’s line of questioning or subsequent testimony, which constituted a waiver of the objection unless the defendant could prove there was a substantial likelihood it influenced the jury’s verdict. The court further held that where a defendant fails to object to inadmissible testimony, the defendant must prove the statements were so flagrant or ill-intentioned that an objection could not cure the prejudice. The court stated there was substantial evidence that corroborated the victim’s testimony. As such, the court found it was unlikely the inadmissible testimony affected the jury’s verdict. The court also noted that the defendant did not offer any evidence that a timely objection would be insufficient to cure any prejudice.

Consult an Experienced Washington Criminal Defense Attorney

If you are charged with assault, it is crucial to obtain an assault defense attorney who will aggressively advocate on your behalf. The experienced criminal defense attorneys of The Law Offices of Smith and White will fight to preclude any prejudicial evidence from being offered against you. Contact our offices at 253-203-1645 or via the online form to schedule a consultation.

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WASHINGTON MAN GETS $500 LFO THROWN OUT IN JUDGMENT IN ASSAULT CASE December 30, 2016, The Law Offices of Smith & White Blog

LESSER INCLUDED OFFENSES, JURY INSTRUCTIONS, AND GETTING YOUR CONVICTION OVERTURNED IN WASHINGTON December 21, 2016, The Law Offices of Smith & White Blog

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