Scamardo v. State: Third Time Is The Charm

20 06 2012

After a few rebriefing orders justice was finally done in Scamardo v. State.  The Arkansas Court of Appeals not only reversed and remanded the case, but also issued an extremely straightforward and well-written opinion.  As is typical in sexual assault cases, the young victim recanted her allegation that Scamardo touched her private area.  The victim told her aunt that she was being made to lie about the incident.

At trial, the court refused to allow the aunt to testify to the statement and deemed it inadmissible hearsay.  Scamardo argued that it was only being offered to impeach the alleged victim’s credibility and not for the truth of the matter asserted.  Under Arkansas Rule of Evidence 613(b) evidence of a prior inconsistent statement of a witness is admissible if the witness was given an opportunity to admit or deny the statement.

Here, the victim was asked about the statement and denied making it.  The victim was therefore given an opportunity to admit or deny the statement.  Consequently, the aunt should have been permitted to testify regarding the statement.  The Court of Appeals found it was not harmless because the outcome of the trial necessarily turned upon the victim’s credibility.

The Court of Appeals also found error because the trial court allowed the victim’s father to testify to what he was told regarding the incident approximately one month after it occurred.  The Court of Appeals decided that this could not be deemed an “excited utterance” and was too far removed to be admitted into evidence.




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