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Molestation Conviction Reversed Due to Improper Judicial Comments

June 1, 2016

In Alday v State, the Georgia Court of Appeals reversed the defendant’s convictions for two counts of child molestation, finding that a series of comments made by the judge during the trial improperly expressed opinions about the evidence in the case.

The defendant was convicted of child molestation as a result of allegations made by his granddaughter. On appeal, he argued that he was entitled to a new trial due to several improper judicial comments made in the presence of the jury.

Under Georgia law, “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.”

During the cross-examination of the forensic interviewer, defense counsel questioned the interviewer about the child responding “no” repeatedly when asked if she had been touched. Following an objection from the prosecutor, the judge interrupted to say that a distinction had been made “between [the words] touching and a massage.” The judge was referencing the interviewer’s previous testimony, in which she said that she believed that the child’s varied responses were a result of using the word “massage” as opposed to the word “touch,” and that using specific language could have been part of the defendant’s “grooming process” of the child.

The Court of Appeals found that this interjection could have been interpreted by the jury as the judge expressing a favorable opinion of the interviewer’s testimony, as well as a rejection of the defense’s argument.

During the same cross-examination, the judge also interjected when defense counsel asked the interviewer if the child saying she had been touched was different than her saying that she told someone she had been touched. The judge interrupted again and asked the interviewer if such a distinction was merely “a matter of semantics,” to which the interviewer agreed. Again, the Court found that the judge’s comment could have been construed by the jury as a suggestion that defense counsel was attempting to draw a meaningless distinction.

The Court held that both of the judge’s comments could have been viewed by the jury as him expressing his opinions about the credibility of the State’s witnesses and the arguments of defense counsel. As a result, the Court reversed the defendant’s convictions and remanded the case for a new trial.

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