Right to confrontation compromised, murder conviction vacated.


Byline: Barry Bridges

A defendant was denied an opportunity to confront adverse witnesses against him in violation of the Sixth Amendment and article 1, section 10 of the Rhode Island Constitution, the state Supreme Court has held, overturning his conviction for the 1990 sexual assault and murder of an elderly West Warwick woman.

The case did not come to trial until 2015 after DNA evidence from sperm at the crime scene was newly matched to defendant David Roscoe, establishing a high probability that Roscoe had sexual contact with the victim, 85-year-old Germaine Mouchon, before her death.

With the medical examiner reporting that Mouchon's cause of death was a heart attack or cardiac arrest following a traumatic event, a key issue was whether that sexual contact had been consensual.

At trial, a detective involved in the 1990 investigation testified as to his conversations at the time with several relatives and friends of Mouchon. Although the actual words spoken by those now-deceased witnesses were not elicited at trial, the content of their statements that Mouchon was not involved in a relationship at the time of her death could be inferred by the jury. Further, that inference was reinforced by the prosecutor in his closing arguments.

"The Confrontation Clause applies with full force when the jury can readily infer the contents of untested out-of-court testimonial statements," Justice Francis X. Flaherty wrote for a three-member majority of the high court. "Although it is true that the statements of the now-deceased declarants do not identify...

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