Can a witness advocate influence the jury in a trial for rape?

The complaining witness in a prosecution for rape may be accompanied by a witness advocate. ( 868.5, subd. (a); People v. Stevens (2009) 47 Cal.4th 625, 641.) The trial court, in its discretion, may remove a witness advocate who improperly influences the jury. ( 868.5, subd. (b).)

The record does not disclose any circumstances indicating that I.A.'s witness advocate improperly influenced the jury. (People v. Myles (2012) 53 Cal.4th 1181, 1214.) Before I.A. testified, the trial court briefly explained the role of the advocate to the jury. It said that "[the advocate] is not here to influence testimony." I.A. became emotional during her testimony. While she was looking at pictures and listening to recordings, the advocate touched her and rubbed her back. Defense counsel brought this to the court's attention. The court admonished the prosecutor to have the advocate "tone that down a little bit." The advocate curtailed the behavior. Defense counsel later asked for a mistrial or a curative instruction.

The trial court denied the motion for mistrial. It instructed the jury to base its decision on the evidence and not to be swayed by sympathy. It found that "doing more than that is going to highlight that." The advocate's conduct, as described by the trial court on the record, was not of such a character as to prejudice the defendant or influence the verdict. (People v. Myles, supra, 53 Cal.4th 1181, 1215.) "Having observed the courtroom proceedings firsthand, the trial judge was in the best position to

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evaluate the impact of [the witness advocate's] conduct in front of the jury." (Id. at pp. 1215-1216.)