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Nashville man accused of four counts of sexual battery gets a new trial after the Tennessee Court Criminal of Appeals found that cumulative effect of evidentiary errors warranted new trial.

Dr. Heng Lac Liu, a Nashville acupuncturist, will be getting a new trial. The Tennessee Court of Criminal Appeals reversed Dr. Liu’s conviction of two counts of rape and two counts of sexual battery and remanded the case for a new trial.

On appeal, Dr. Liu’s attorney Patrick McNally argued that the trial court had admitted hearsay evidence that shouldn’t have been admitted, excluded evidence of the alleged victim’s bias and lack of credibility that should have been admitted and that the cumulative effect of those errors warranted a new trial.

To see opinion click here: State of Tennessee vs. Heng Lac Liu

Statements made out-of-court and offered in-court for the truth of the matter asserted are called hearsay. Such statements are thought to be unreliable and are therefore generally excluded from evidence at trial. However, sometimes hearsay statements are allowed if they meet an exception to the general rule of exclusion.

At trial, the court admitted several hearsay statements. First, there was testimony of another acupuncturist who the alleged victim sought treatment from following treatment from the defendant. The acupuncturist testified that the alleged victim told him she had been sexually abused by the defendant. The court concluded that these statements were hearsay, did not meet an exception, but were harmless error to have allowed.

Next, there was testimony from a friend of the alleged victim and from a police officer who interviewed the alleged victim. The appeals court held that these statements were hearsay but that they met an exception to the hearsay rule. Specifically, the appeals court said statements made to a friend about sexual battery were admissible to rehabilitate the alleged victim’s testimony because the defendant had insinuated that she was fabricating the story to get a visa to stay in the country.

Similarly, the appeals court held that the police officer’s testimony that the alleged victim had been sexually assaulted by the defendant were admissible to rehabilitate the alleged victim. However, the trial court made an error by not properly instructing the jury about how to treat the friend’s and police officer’s testimony. Because the testimony was allowed for the purpose of showing that the alleged victim had told others that she was sexually assaulted, the court should have instructed the jury that the evidence could not be used to determine whether the assault had actually occurred. By not properly instructing the jury, the court held that the defendant was entitled to a new trial.

The trial court denied the defendant’s request to enter into evidence a psychologist’s report indicating that the alleged victim had been sexually abused in the past, and that purpose of counseling was for past abuse and not solely because of the alleged incident between the defendant and alleged victim. The state argued that the rule making prior sexual acts inadmissible was operative. However, the appeals court said that some of the evidence in the report was not barred by that rule and the trial court should, on remand, make findings with respect to those parts of the report.

In addition to not properly instructing the jury with respect to testimony provided by the alleged victim’s friend and the police office, the court held that the cumulative effect of errors also entitled the defendant to a new trial.

Patrick McNally is an experienced attorney who has represented clients in the Tennessee Court of Criminal Appeals, Tennessee Supreme Court and the Sixth Circuit Court of Appeals. If you are facing criminal charges at trial or on appeal, contact attorney McNally today to schedule a consultation to discuss your case.