Santa Clara County DA’s Office Turning over Secret Videotapes of SART
Exams Dating Back to 1991.

By Michael Kresser

In the case of People v. Uribe (2008) 162 Cal.App.4th 1457, trial counsel discovered, after a guilty verdict against his client but before sentencing, that the sexual assault exam of the alleged 9-year-old victim had been videotaped. Trial counsel had not been provided with a copy of the videotape, only a series of still photographs taken with the aid of a colposcope. His trial expert, who had testified at trial that he did not think the photos showed definite evidence of penetrating trauma, declared that viewing the videotape strongly reinforced his opinion that there was no observable signs of trauma. This was contrary to the testimony of the examiner, Physician Assistant Mary Ritter, and her supervisor, Dr. David Kerns. Despite this evidence in support of a motion for new trial due to Brady error, and no new evidence from the prosecutor as to why the videotape was not helpful to the defense, the trial judge denied the motion and sentenced the defendant to multiple life terms.

On appeal, the Sixth District Court of Appeal determined that the SART team at the Center for Child Protection, part of the Valley Medical Center in San Jose, was part of the “prosecution team’ which had a duty to disclose to the defense any exculpatory evidence. It further held that the videotape was favorable to the defense and reversed Mr. Uribe’s convictions.

The Uribe case led SDAP panel attorney Larry Gibbs to ask the Santa Clara County DA’s office for any videotape of the SART exam conducted in a retained case he was then handling on federal habeas. He received a videotape and submitted it to an expert, who stated that with the aid of the videotape, he was able to offer a much stronger opinion that there was no evidence of trauma than he was able to give using only the still photos that had been previously turned over. In the opinion of this expert, and another expert who viewed the Uribe case tape, the still photos were taken in a way that highlighted minor normal irregularities in the hymenal opening, while putting healthy hymenal tissue behind the opening in shadow, which created the illusion of damage to the hymen.

Part of the DA’s opposition to the new trial motion in the Uribe case was the claim that the videotaping in Uribe was done for“training” purposes, not “investigative” purposes. While the Court of Appeal made short shrift of this argument, noting that the stills were taken from the videotape, the claim suggested that videotaping was done on a very limited basis. However, after the second video tape requested was turned over, it appeared that many exams had been taped, and that such tapes had been saved.

Consequently, on October 30, 2008, I wrote to Santa Clara County District Attorney Dolores Carr. I pointed out that the Uribe decision had determined that the VMC SART team was part of the prosecution team, that the DA’s office was legally in constructive possession of the tapes, and that the duty to turn over exculpatory evidence continues after conviction. I therefore asked that the DA’s office determine how many tapes of SART exams existed at VMC and how many of those were related to cases in which the DA’s office had obtained a conviction. I then stated it was the duty of the DA’s office to turn such videotapes over to trial counsel in those cases.

As of this writing, the DA’s office has agreed to turn over the tapes. It appears that some 3,300 videotapes of SART exams dating back to 1991 were at VMC, and that at least 600 of these videotapes were connected to cases in which convictions or juvenile delinquency findings were obtained.

The Santa Clara County Public Defender’s Office is preparing to receive the tapes limited to clients they represented and to obtain experts to view the tapes. If you handled a Santa Clara County case on appeal in which SART exam testimony was offered against your client, and the client was represented by the Santa Clara County Public Defender, you may wish to write a letter to that office, alerting them to that fact and offering any additional information that may assist them in showing how important the SART exam testimony was in the context of all the evidence presented at trial.

As of this writing, it is unclear what resources may be available to similarly situated clients represented at trial by private counsel, either retained or appointed. If you represented such a client represented at trial by private counsel, please contact our office, and we will attempt to see that the case receives a review in light of the previously suppressed evidence.

(January 30, 2009)

Back to News

TEL (408) 241-6171 FAX (408) 241-2877      95 S. Market Street, Suite 570, San Jose CA 95113