Criminal Law – arguments of “odds” and reasonable doubt and racial statistics: Washington v. Commonwealth (COA 7/24/2009)

Washington v. Commonwealth
2007-CA-001404 07/24/2009 2009 WL 2192171

Opinion by Judge Wine; Judges Nickell and Stumbo concurred.

The Court reversed and remanded for a new trial appellant’s conviction for robbery in the second degree and being a persistent felony offender in the first degree. The Court held that the trial court erred by allowing the Commonwealth to advance improper racial arguments at trial when the prosecutor used guesswork to arrive a racial population statistics in order to make the question of appellant’s guilt or innocence one of “odds.” The state interest was not compelling when the prosecutor could have easily relied on other evidence and the jurors were free to look at the pictures introduced to determine whether they thought the suspect was appellant. Attempting to sway the jury to convict appellant based upon “odds” rather than the reasonable doubt standard was unnecessary and improper. The Court also held that the testimony by a police officer that another officer made an identification was not improper hearsay when it was used to explain the subsequent actions of the police in response to defense counsel’s arguments suggesting that local police did not undertake a legitimate investigation.

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