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HELENA — A man convicted of rape a decade ago, and subsequently released from prison, deserves a review of the case because his daughter has since recanted the testimony that helped convict him, the Montana Supreme Court says.

Daniel Crosby was convicted in 1996 in Missoula of raping his daughter, then 10, who testified against him. He was sentenced to 10 years at the Montana State Prison and was released in 2000. His sentence expired in 2005.

His daughter recanted her testimony as an adult in 2004. She said her mother had influenced her to accuse her father. She said the events she had described to the court did not occur.

But prosecutors called witnesses questioning the authenticity of the daughter's new claim, saying her earlier testimony was more believable. In 2004, District Court Judge Douglas Harkin of Missoula ruled against Crosby and denied his request for a new trial.

But a divided state Supreme Court ruled that Crosby should get a review by the court and possibly a new trial.

The Supreme Court said it was wrong for the lower court to say it would only grant a new trial "when the judge is satisfied the recantation is true."

"In doing so, the court improperly placed itself in the role of fact-finder," wrote Supreme Court Justice Patricia Cotter, in an opinion also signed by Chief Justice Karla Gray and Justices William Leaphart, Brian Morris and James Nelson.

Also, the Supreme Court told the lower court to disregard testimony brought by prosecutors from an expert who said he thought the daughter's earlier testimony was more accurate.

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Justice John Warner wrote a dissenting opinion, saying the lower court had the authority to decide whether it believed the daughter's latest testimony.

And Justice Jim Rice wrote his own opinion partially agreeing with the majority opinion for a new review. But he said the expert's testimony should stand.

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