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142537 - People v Rao (Malini)

The People of the State of Michigan,
Marilyn J. Day
(Appeal from Ct of Appeals)
(Oakland – Young, J.)
Malini Rao,
Frank D. Eaman


​After a report of possible child abuse was made to Children’s Protective Services, a caseworker visited Malini Rao’s home and observed that her adopted daughter had a swollen cheek, bruised face, black eye, and cuts to her lower lip and eyelid. Rao admitted that she sometimes struck the child in the face in order to discipline her. The caseworker took the child and Rao to the hospital so that the child could be evaluated by a physician. X-rays revealed multiple rib fractures at various stages of healing; the examining physician reported that the number of injuries of varying ages made him suspect “non-accidental trauma” or child abuse. A physician with expertise in child abuse reached the same conclusion after reviewing those x-rays and conducting a skeletal survey.

The child was removed from the home, and Rao was charged with second-degree child abuse. The jury trial lasted ten days, and both the prosecutor and Rao’s counsel presented medical evidence regarding the abnormalities observed to the child’s ribs on x-rays. The prosecutor’s expert witnesses testified that the injuries were caused by child abuse, but the defense’s experts testified that the injuries were likely the result of accidental trauma or a metabolic disorder. The jury convicted Rao as charged; she was sentenced to a five-year term of probation.

In 2009, ten months after she was convicted, Rao moved for a new trial. She claimed that recent x-rays established that abnormalities were still present in the child’s ribs; this evidence supported her claim that the rib injuries were the result of a metabolic disorder, not abuse, Rao asserted. The trial court denied the motion for a new trial, but in a split unpublished opinion, the Court of Appeals reversed and remanded the case for an evidentiary hearing on the alleged newly-discovered evidence. The majority concluded that the 2009 x-rays were newly discovered, because Rao could not have known the condition of the child’s ribs at the time of trial. Moreover, the majority stated, the evidence was exculpatory, “shatter[ing] the scientific cornerstone of the prosecution’s evidence that the rib abnormalities were consistent only with fractures, not an underlying bone abnormality.” Identifying important factual questions regarding the significance of the 2009 x-rays, the majority remanded the case to the trial court for an evidentiary hearing to address whether the new evidence likely would have affected the outcome of Rao’s trial. The dissenting judge concluded that the evidence was not newly discovered – in fact, it did not even exist at the time of trial. But even if it was, said the dissenting judge, reversal was not warranted because it was unlikely that the evidence would make a different result probable on retrial. The prosecutor appeals.