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Judge limits expert scope, hears legal argument over meaning of "penetration" ahead of Venier trial
Summary
During the trial of Dr. Nir Venier, attorneys argued over whether a SANE nurse or other witnesses may define "penetration" or offer expert interpretation; the judge limited testimony and said he would rule before the nurse testifies.
A Jefferson County judge told lawyers on Friday he will limit expert testimony and make a ruling before the sexual-assault nurse examiner testifies after defense objections over how the word "penetration" may be defined for the jury.
The dispute began when defense counsel objected to anticipated testimony from the SANE (sexual-assault nurse examiner) that the state's use of the term "penetration" should be conflated with a medical examiner's description of contact. Prosecutor Michael Coleman told the court the state would not conflate touching with penetration and proffered that the nurse would testify he and she shared a "common meaning" of penetration as "breaking the plane," specifically "breaking the plane of the labia majora." Defense counsel argued the words should be given their common, lay meaning and objected to an expert offering a novel definition.
Why it matters: The legal characterization of what counts as penetration is central to the charges. If jurors are presented testimony that reinterprets statutory language, defense attorneys said, it could change the elements the jury must find beyond a reasonable doubt.
At a hearing outside the jury's presence, counsel debated whether case law supports the prosecutor's formulation. The state cited case law it said supports the proposition that "penetration is complete, however slight," while defense counsel stressed that the penal code does not itself define the term. The judge said he will not permit the SANE to offer undisclosed expert opinions and will make a pre-testimony ruling. "So I'm going to let her testify as to what her understanding is of her job, which is, do I file this case? Is there evidence that there was touching or penetration?" the judge said.
The court also addressed the prosecutor's effort to offer a SANE supervisor as a witness. The defense pointed out the supervisor had not been disclosed as an expert; the judge signaled he would allow the nurse to lay foundation and explain routine SANE procedures and reports but not to offer undisclosed expert conclusions interpreting another nurse's findings.
Other evidentiary rulings reached in the hearing included the judge's decision to review, outside the jury, a body-worn camera recording of the complainant and to rule on hearsay objections. The judge sustained the defense hearsay objection to the state's proffer of an officer-recorded interview as an "excited utterance" and excluded the video from admission on that basis after previewing the recording.
Defense counsel repeatedly emphasized the presumption of innocence and that jurors must follow legal definitions the court gives them at charge conference. The prosecutor argued prosecutors, SANE personnel and detectives routinely rely on training and case law in deciding whether a report meets the threshold to present charges.
The court said it would revisit the disputed issues immediately before the SANE examiner takes the stand and directed counsel to confer and provide the court any case law they rely on before testimony begins. Trial proceedings were scheduled to resume the next morning at 9 a.m.
