State v. Buccheri-Bianca, __ Ariz. Adv. Rep. __ 2CA-CR 2012-0315 (App. Div. II, October 30, 2013) (J. Espinosa)
COUNSEL MAY SUCCESSFULLY PRECLUDE ADMISSIBILITY OF EVIDENCE THEN ARGUE IN CLOSING FOR A VERDICT BASED UPON THE ABSENCE OF THE EVIDENCE; EXPERT MAY TESTIFY TO GENERAL PRINCIPLES WITHOUT APPLYING THOSE PRINCIPLES TO FACTS OF CASE
Defendant was convicted of five counts of child molestation. One of the three victims was a Mexican immigrant who obtained a "U-Visa" which allowed her to legally stay in the United States as an aid to prosecution. The defendant wanted to put this into evidence to prove that this victim had a motive to fabricate—her assistance to the prosecution got her and her family legal status in the U.S. The court precluded the evidence based upon the prejudicial value being outweighed by the probative effect (R. Evid. 403relying upon evidence of other statements made to support the testimony before the Visa was obtained. Later the state argued in closing argument that because there was no evidence of any motive for any of these victims to lie they should be believed and the defendant convicted.
Defendant's objection to this argument was overruled. Finally, an "expert" on child molestation was allowed to testify for the state regarding her experience with child molestation victims, how to judge victim veracity and which demographics (age, sex and family situation) is most likely to fabricate. Defendant objected to this evidence claiming an absence of foundation because the witness had no familiarity with the facts of this case. The trial court allowed the testimony The Arizona Court of Appeal affirmed finding all of these evidentiary rulings appropriate.
The court of appeals ruled that Rule 404 gives very broad discretion to the trial court. Here there was ample evidence of the veracity of the victim's testimony and lack of knowledge of the significance of the U-Visa and therefore a finding the prejudicial value exceeded the probative value was appropriate. The court further had no problem with the state's closing argument simply saying that counsel is entitled to argue all reasonable inferences from the evidence or absence of evidence. The fact that the same counsel had successfully blocked the admission of the evidence is of no consequence.
Finally, relying heavily upon State v.Salazar-Mercado, 232 Ariz. 256, 304 P.3d 543, 548 (App. 2013), the court found that an expert need not meet the Daubert standards (Ariz. R. Evid. 702) where the expertise is based upon experience.