Alleged gang activity: What’s good for the prosecution goose is good for the defense gander
Kudos to Virginia’s intermediate appellate court for reversing a second degree murder conviction, due to the trial court’s refusal to allow the defendant to present a self defense theory surrounding the alleged gang membership of the decedent and one of his star witnesses, to try to show the decedent’s propensity for violence (to bolster a self defense theory) and to show that the prosecution’s star witness, as an alleged fellow gang memer, had a motive to lie for the benefit of the decedent or the decedent’s honor. Cousins v. Virginia, ___ Va. App. ___ (May 25, 2010).
The essence of the Cousins’ holding is that the defendant’s “proffered [gang] evidence was relevant, material, and more probative than prejudicial and that the trial court’s refusal to allow appellant to use it during trial in an attempt to show bias was reversible error.” Cousins . Moreover, Cousins determined that the trial court’s error in excluding jury voir dire and testimony about alleged gang activity was not harmless error beyond a reasonable doubt. Therefore, the remedy is a retrial of Cousins.
In reversing Cousins’ conviction, the Court pointed to several Virginia appellate cases directly on point, except to the prosecution’s favor in the cited appellate cases. What is good for the prosecution goose is good for the defense gander. If prosecutors are permitted to introduce testimony about alleged gang activity against the defendant and his or her witnesses, then clearly the defense is permitted to do so as to alleged victims and prosecution witnesses.