I've just received an appellate brief on an aggravated sexual assault of a child case where the first issue is that the CPS investigator was allowed to testify without laying the proper predicate that the defendant's houseboat smelled like "cigarettes, stale beer, and sweaty sex". Apparently the defense had some question as to how she would know what sweaty sex smelled like (her ID of stale beer and cigarettes seems to have gone unquestioned). For future reference, does anyone have any helpful ideas on what kind of predicate we SHOULD have established, since the appellant's brief was a bit unclear on this?

Elizabeth Foley
Ass't Crim. D.A.,
Galveston County

It seems to me that the question is not about establishing a predicate to admit evidence about the smell of sweaty sex, but about the weight to be given that testimony. If it is a predicate issue, you would have to qualify the person as an expert on sweaty sex (the training and education received for that would certainly perk up a jury) or establish some sort of personal knowledge on the subject (which would also liven things up). I think that the issue is the weight that can be given to that characterization, which the defense wouldhave to attack on cross examination.

Isn't this a "lay" opinion under TRE 701?

Is it possible that beer and cigarettes themselves are a predicate to sweaty sex?

If it truly is a predicate matter, then any testimony regarding smells would require laying a foundation of expertise or personal knowledge. Common sense dictates that there are some smells with which we all are familiar. The question is whether this is one of them. If this truly is a predicate matter, the only applicable predicate would seem to be whether the description was (a) rationally based on the worker's perception and (b) helpful to determination of a fact in issue (or understanding the worker's testimony).

[This message was edited by Scott Brumley on 03-08-05 at .]

as the prosecutor on that case, I can say...that was one bench conference I'll NEVER forget.

Was there no objection raised? If not, then there is no issue preserved.

Alternatively, what is the state of the evidence without the "sweaty sex smell" testimony. If there is enough evidence without it, just state there is sufficient evidence to support the conviction.

I nominate David Curl for line of the year.

Excuse me, but we are acting as if the CPS worker's opinion on the smell was negative in tone. Many people like cigarettes and beer. They are legal and provide fine, uplifting chemicals in a time of need.

As for sweaty sex, from what I have seen on TV, that, too, is a good thing. Nothing wrong with good, healthy human contact.

So, what exactly, was the harm of hearing the CPS worker describe a typical American home?

C'mon A.P., we're waiting...

Surely there was a banjo somewhere on this houseboat?

I don't have a dog in this hunt. I don't even have a houseboat, you can call home and ask my wife. And I have a sinus infection thank you very much, so I'm not even able to smell Pasadena when I drive over the ship channel at this time. But the topic does conjure memories of former subjects we've enjoyed, such as the difference between smell and scent; the photo of the dog and his nose in the back of that pickup with the dead hogs, the two fellows from the ukelele band and kazoo ensemble dancing with the catfish and the topic that won't die: driving while cellphoning.

Being from the country, this country as a matter of fact, I am aware that animals are able to ascertain the prospects for impending or recently accomplished carnal relations simply by poking their noses where they don't or perhaps, do, belong. Maybe the same is true for CPS workers, I don't know, I'm only an underpaid D.A.'s investigator who works extra jobs and plays the banjo.

But I do wonder if sweaty sex smells that much more different than sweaty socks.

The one-hit wonder group that sang about smelling "sex and candy." That would make a little more sense with Agg Sex of a Child, right?

Going back to the original question, I've always thought the predicate to "sweaty sex" was dinner and lots of wine. For some reason, it doesn't seem to work like it used to. I might need to research it again.

Was that one-hit wonder band singing about Michael Jackson's house?

BREAKING NEWS:

Yep, having now read the transcript, banjo music's definitely a requirement on this one. Our pedophiliac, incestuous hero, in a valiant attempt to defend himself as the family man he undoubtedly is, informed the jury of the following in his testimony:

1)"Anyone who's been on a pig farm in Illinois knows I am not guilty."

2) (apparently deciding not to trash his in-laws/family too badly after all):
Q. Right. The Turners are bad; right, do we agree?
A. No. We disagree on that. Let me tell you why. Jack Turner, Junior is my cousin. We're all related.

Xochitl, how did you manage to make it through all this with either a straight face or your sanity?!

Elizabeth Foley
Ass't Crim. D.A.,
Galveston County

Elizabeth, it was difficult for both me and Charles (my co-counsel and keeper of the sanity) at times. Another prosecutor in our office suggested after defendant's revelation #1 (known as The Pig Farm Declaration) that we call Jimmy Dean as a rebuttal witness.

I do have to add that Charles' cross examination of the defedant was *brilliant*

Also, this was the second time we tried this case, the first ended in a hung jury. During the first trial the great Perry Mason moment during the defendant's testimony came when it was revealed that he had a certain body part pierced and he wanted to show the jury...right there and then. He is a sick sick man who got every bit of time he deserved...but what a circus!

I too, "enjoyed" a case several years ago as a new prosecutor where the DWI defendant testified that he could not have been intoxicated because he had been able to drive to the acreage where his family kept their pigs and "was obviously sober enough to feed them". That was pretty funny but compounding the defendant's dilemna was the fact that he had a speech impediment and pronounced "piglets" as "pewg-wets" and of course he said that word about 20 times during his testimony. Bless his heart. Turned out when his relatives testified about his sobriety that night that the family kept a refridge on the property where their pig pens were located and normally kept copious amounts of beer there with the pigs.

I have never been on a pig farm in Illinois, but I have been in pig pens and feed lots that my East Texas relatives used to maintain on their land. I didn't see any connection with that and the search for the truth, could someone explain how those two items are related.

The appellate court should enjoy your brief. Perhaps when you argue this appeal, the Court, by special motion, might allow a little banjo accompaniment to the appropriate portions of your argument. All in the search for truth and justice, mind you.

quote:

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Originally posted by Scott Brumley:
Is it possible that beer and cigarettes themselves are a predicate to sweaty sex?

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I was going to join the discussion, but I have this sudden need to run out to the nearest convenience store.