10 Tips (Maybe Eleven) for Defending Against False Child Sex Abuse Allegations
(Child Sexual Abuse Crimes: Easiest to Accuse – Hardest to Defend)
Authors note: This Ebook is targeted mainly toward non-lawyers, those who suddenly find themselves or someone close to them accused of child sexual abuse. As the contents of this article are based almost entirely upon my personal experience and opinions developed from nearly 30 years of criminal trial experience as a prosecutor and defense attorney, the use of legal citations will be omitted as much as possible. The purpose of this Ebook is to provide individuals accused of child sexual abuse with basic practical legal information and a framework for things to consider as they begin the process of deciding how to defend themselves. However, such individuals should always keep in mind that every case has unique and challenging facts that may call for different considerations or actions then those discussed in this article. Anyone accused of a crime should follow the advise of an attorney experienced and knowledgeable in the defense of these cases and who is familiar with the specific facts of the individual’s case.
In recent years the criminal justice system and local and national media have paid more and more attention to child sexual abuse crimes. Sensational stories of child predators abducting children and abusing them, and stories about the sex offender registry laws enacted as a result of such tragic cases, have lead to a near witch hunt atmosphere where the public seems to believe that there is a child predator around every corner and on every door step.
What is usually overlooked, however, is that the great majority of child sexual abuse cases do not involve stranger abduction or even the convicted sex offender who lives down the street. The great majority of child sexual abuse allegations are made against a family member, friend, or relative such as a father, stepfather, uncle, teacher, pastor, priest, counselor, or other person close to the child. Certainly, when the person accused is guilty, child sexual abuse is a crime of opportunity. In other words, the offender’s close relationship to the child provides the offender access to the child and the opportunity to commit the crime. However, the close relationship in most child sexual abuse allegations can also provide a motive for a child or someone close to the child to make a false allegation, and in fact many false allegations are made. The public needs to realize that anyone can be accused and that false allegations are often made. However, the media tends to overlook the stories about false allegations. When was the last time you saw a story in the news where the media told you about a case where the allegations of a sexual crime against a child turned out to be false, unless the story happened to involve a celebrity? You never see that story, but I know they exist because I have represented these individuals.
For example, I have represented clients in cases where a child made an allegation because she wanted go live with her biological parent, a case where the child’s mother wanted to change shared custody with the father to sole custody by her which would have provided her a ten fold increase in child support, a case where a child wanted to go live with her mother rather than her father because he was too strict, a case where a teenage boy wanted to be able to brag that he had sexual relations with his girlfriends mother. All of these cases are examples of cases that I have actually handled and in which we have obtained dismissals or not guilty verdicts. (Footnote 1)
Allegations of child sexual abuse are the easiest crime to accuse and the hardest to defend. With alleged crimes such as a drug deal, or bank robbery, or any other type of crime the authorities and juries usually require some corroborative evidence before they will bring charges or find the accused guilty. In child sexual abuse cases, however, the authorities and juries are much more likely to believe the uncorroborated and unsubstantiated allegation of the accuser. The mere allegation by the sole accuser, who can be as young as the youngest child simply able to speak, can cause investigators to bring criminal charges, juries to convict, and an innocent person spending for the rest of his life in prison.
There are several reasons for this response by the criminal justice system. First, many adults simply do not want to believe, that a child has the capability to lie about sex. This response I believe is rooted in the fact that fifty, thirty, or only twenty years ago a child under a particular age simply would not know certain details about sexual activity unless they had been abused. However, as children have become more and more sexually active at younger and younger ages, and especially as children are now exposed to strong sexual content through the media and the internet at extremely young ages, often times a child now has the ability to describe specific sexual content when making an allegation that years ago the child would not possess. Many individuals and many authorities simply have not accepted that our children are now often sexualized to the extent that they do have the sexual knowledge to make a false allegation.
Secondly, police officers and social workers that work in this area of the criminal justice system usually enter into this type of work out of a strong desire to protect children. They view themselves – even if they will not admit it – as an advocate for children, not un-biased investigators. Therefore, when a child makes an allegation of sexual abuse, the investigators start by assuming the accused is guilty rather than acting as a neutral investigator searching for the truth.
Thirdly, the natural repulsion felt by any person against child sexual crimes, fueled by the witch hunt atmosphere created by the media in recent years, simply creates an up-hill battle for anyone accused of such a crime. While our constitution is supposed to require that anyone accused of any crime is presumed innocent until proven guilty, from a practical standpoint the reverse is in fact the situation with child sexual abuse allegations. Anyone accused of child sexual abuse needs to understand that they need to be prepared to do their very best to convince the authorities or the jury that they did not commit the crime.
From my experience both prosecuting and defending child sexual abuse cases I have developed a list of what I have found to be the most important things that any person accused of such a crime needs to consider when preparing his or her defense.
Tips on Defending Against a False Child Sexual Abuse Allegation
1. Get a defense attorney involved immediately upon the allegation and have him investigate.
As of the date of this article, in every case in which I have become involved before the State actually brought criminal charges, we have been able to avoid criminal charges being filed. The criminal justice system does not like to admit it made a mistake. It is much easier to fend off the filing of charges than it is to obtain a dismissal of the charges once they have been filed. Although as stated above I believe that most investigators and social workers have a natural bias in favor of the child when investigating these cases, I have also found that once they are confronted with evidence in favor of the accused they can often be brought around and will begin to look at the case objectively. Their bias is not from ill will. They are not out to bring charges against innocent individuals. Thus, while the initial bias may prevent them from looking for exculpatory information, if it is brought to their attention and they are forced to consider it, criminal charges can often be avoided.
Early investigation however is perhaps most important because it provides the best chance to find or develop favorable evidence before the case is locked in. Once a child has made a statement to a school counselor, and a police officer, and a detective, and a social worker, they have recounted the allegations three, four, and five or more times and have been locked in to their story, and getting the truth becomes more and more difficult. Although we are not able to interview the accuser in all cases, depending upon the cooperation of the custodial parent or guardian, in the cases that we can immediately interview the accuser, we often find favorable information.
For example, in one case in which we defended the accused, a ten year old stated that she saw her stepfather (our client) having sexual contact with her sister (the Client’s stepdaughter). The alleged victim denied the claim but charges were imminent because the police believed the allged victim’s sister who claimed she saw the sexual contact. We immediately interviewed the ten year old sister who claimed she observed the sexual contact. When asked what she saw, one of the things she alleged was that she saw the stepfather French kissing the sister. When asked to explain what French kissing was she said that she did not know. The point that we were able to make to the prosecutor considering criminal charges was: why would the girl use the term French kissing if she did not know what that term meant? The obvious conclusion from other facts we developed in our investigation was that the girl was coached in what to say by the biological father because he wanted custody. When our interviews were provided to the grand jury considering charges the grand jury dismissed the case.
There are other things, that in certain cases, the defense will want to do in order to fend off potential charges before they are brought. Although lie detector results are not admissible in court in most jurisdictions, the state’s investigators love lie detectors and they believe them to be reliable and valid. However, there is a reason the tests are not admissible in court and that reason is that they are not extremely reliable and the results of a lie detector can be influenced by such things as nervousness and fear. Therefore, even innocent individuals may want to decline consenting to a lie detector test. Yet there are times to consider taking a lie detector test and strategies to employ. Even though the results are not admissible in court once a lie detector is taken and failed such a result will certainly confirm for the investigator his bias and it will be even more difficult to avoid formal charges. However, refusing the test will also do the same thing. Thus, the accused is often caught in a catch-22 situation. Therefore, in certain cases I will have a client do a dry run with a polygraph expert hired by the defense. If the accused is able to handle the stress of the exam and pass the exam, I will in some cases recommend he agree to a test by the authorities. Taking and passing a lie detector test is possibly the quickest way to refocus law enforcement away from the bias against the accused and to get them to begin to consider that the allegation is false.
There are also psychological exams called psychosexual exams. These tests and the results are also not admissible in court in most jurisdictions in the guilt phase of the trial. Although no psychological test can say for sure whether a particular person for certain did or did not commit a particular sex crime against a particular child, the theory is that a psychosexual exam will identify certain psychological traits that fit the profile of the type of a person that is more likely to sexually abuse a child. If a person does not posses those particular personality or psychological traits, we can use that to attempt to convince the authorities that the allegations are false. Therefore, on some occasions I will have my client take the exams and then submit the results to the authorities. Although not as powerful as passing a lie detector, a favorable exam result can also begin to refocus investigators. If we are able to provide both a favorable lie detector result and a favorable psychosexual exam result, we are often well on our way to convincing the authorities not to file formal charges.
2. Determination of and presentation of the child’s motive to make a false allegation of sexual abuse are essential.
It is absolutely essential that during the defense investigation that a motive for a false allegation be discovered and that the child’s motive be presented to the investigating authorities or to the jury. As discussed above no one likes to believe that a child would lie about sex. To overcome the inclination of most individuals to immediately believe the child, you need to provide a reason the child would lie. As discussed above, motives for such allegations can include the child’s desire to live with the other parent, an attempt to avoid discipline, the bragging rights of a teenage boy, or a child’s desire to please the other parent by complying with instructions of the other parent to make the allegation. These are just some examples of what I have encountered. There are many others and discovering which particular motive is in play in a particular case will require a very through review of the facts. Even in a case where the motive is not obvious or readily apparent, one should develop at least a working theory of the possible motive constructed from all circumstantial evidence.
In some cases and especially in cases involving very young children, the motive might be the motive of another adult in the child’s life and the child is simply repeating what he or she has been coached to say. Children, especially very young children, can be coached. The younger the child the less likely the child will be able to distinguish reality from fantasy. In other words, a very young child can be coached to make statements that the child believes to be true.
A final note about motive: Sometimes there will be no intentional motive by the child or anyone else. I believe that sometimes parent hysteria can cause an unintentional false allegation or an exaggerated allegation. If a parent is constantly inquiring of the child about whether the child has been abused, a child and again especially a very young child, may actually develop a false memory or belief of being touched, or may develop an overly sensitive response to legitimate touches in response to constant questioning. (Footnote 2) For example, in one case my office reviewed, the child’s mother was extremely controlling and always asking the child if she had been abused. The child was left with the father’s mother one weekend while the parents went out of town. Upon return the child, when again asked by the mother if the child had been touched, stated that her grandmother touched her. The mother became hysterical and called social services and the police. What had happened was the grandmother had bathed the child and in drying the very young child with the towel she did touch some private parts with the towel. This case was resolved rather easily, but we believe it was only because the allegation was against the grandmother, and the system bias we have spoken about earlier, did not exist because of the gender of the grandmother. Had the grandfather given the child the bath I believe we would have had to fight much harder to avoid formal charges. Therefore, if you have been accused and another adult in the child’s life has been obsessive with the child about abuse this is something that needs to be explored in preparing your defense.
3. Demonstrating the basis of the child’s knowledge of sexual terms, situations, and acts is very important.
As discussed above, many individuals will credit a child’s statement of sexual abuse simply because the allegation involves detailed sexual information that is not age appropriate. In such cases, it is important to be able to demonstrate that the basis for the child’s knowledge came from a source other than the alleged abuse.
In order to demonstrate the child’s knowledge regarding sexual matters, an investigation needs to be conducted into the child’s access to television, movies, cable, internet, the child’s other relationships, dating behaviors, pornographic material in the home, the child’s sexual education curriculum, and last but not least information being provided by the child’s peers. A child can learn quite a bit from a sexually active friend who has confided in the child.
4. Use civil custody and dependant / neglect proceedings to gain information and to assess the State’s case.
When the accused is a parent, step parent, or someone who is a custodial care taker of the child, chances are that, in addition to possible criminal charges, the State will file a civil proceeding to obtain court orders for the accused to stay away from the accuser. The first inclination of the accused may be to forgo any rights to have a hearing in the civil court because the accused does not wish to challenge his or her right to parent the child, at least for the time being. This can be a serious mistake.
In many States the rights of the accused in a criminal proceeding to gain access to prior witness statements, and to take depositions is very limited or just not allowed. Unless the custodian of the child allows your attorney to talk to the child, you can find yourself going into trial charged with a heinous sexual offense against a child and facing years in prison – all without knowing exactly what the accuser is claiming you did. You should therefore use the civil proceedings as an opportunity to prepare for your criminal case. In many states civil discovery is much broader than criminal discovery. Use the civil discovery rules to take depositions of the child, and anyone to whom the child made a statement. Use the custody or dependant / neglect hearing to obtain a sworn statement from those individuals. In this way you not only know exactly what to prepare for, but you may very well be able to develop statements that are inconsistent. If the child or other witness gives sworn testimony in the custody, dependant / neglect case that is different from what they give in their testimony during the criminal case, you can argue that the witnesses in not credible.
5. Words Matter
A jury has a very minimal amount of time to make assessments and determinations about you and the accuser. Therefore, I believe even terminology can be the difference between a not guilty or a guilty verdict.
Lawyers and judges who work in the system every day have a habit, simply as a sort of verbal short hand, of referring to individuals not by name but as the “victim” or the “defendant” – even before a person’s guilt or innocence has been established. Your attorney should humanize you as an individual. Never let your attorney refer to you as his client, or the defendant. You are Mr. / Ms. and your last name, or you are referred to by your first name. The jury needs to understand that if they find you guilty, they are affecting the life of a real person with a real identity beyond someone who is simply the “defendant”. Alternatively, do not recognize the child as a “victim”. Do not – I repeat do not – call the child the victim or even the “alleged victim”. I believe this sends a powerful message to the jury. If they hear the term victim repeated enough they will eventually come to view the child as “the victim”. I would not even refer to the child as “the child”. The attorney should refer to the child as the accuser whenever possible as opposed to using the child’s name. If you are testifying, it would seem unnatural and seem coached for you to say accuser, so you should use the child’s name.
One favorite question of prosecutors when conducting a cross examination of the accused is to ask whether the child is lying. They especially like to ask this question when the accused has a close relationship with the accuser, for example when the accused is the parent. Although this question is highly objectionable, it is often made before the defense attorney has a chance to object. Once the question is out, an objection may be even more damaging than allowing the accused to answer. Therefore, unless the child is very young and it can be argued that he or she may have a false memory, the accused needs to be very willing to say the child is lying. I have seen many individuals who were accused reluctant to call the child a liar because they are the child’s parent or because they just felt it was not nice to call a child a liar. However, as I stated, words matter. You are on trial for your life. If the child is not lying than she is telling the truth. If she is lying you better be willing to say so. Hesitating could cost you your freedom.
6. Have a strategy for what to do with the forensic interview.
A “forensic interview” is simply an interview performed by a person, usually a social worker, who is supposed to be trained in how to interview children in a manner that will make sure the interview provides reliable information. As the person interviewing a young child can easily influence what the child says forensic interviewers are supposed to be trained in how not to ask leading questions and how not to influence the child’s answer. The problem is that, due to their bias in favor of children and against anyone even simply accused of sexual abuse, many so-called forensic interviewers nevertheless conduct very leading interviews of the child. The “forensic interview” is typically videotaped. Most jurisdictions will allow the attorney for the accused to view the videotape of the interview. Some jurisdictions will also provide a copy of the tape. Other jurisdictions will not allow the attorney to have a copy and the attorney must go to the prosecutor’s office, or detectives office, or social services to view the tape.
What you should be looking for on the tape is whether the interviewer uses leading questions and other manipulative interviewing acts such as refusing to accept a negative response by the child. I have actually seen forensic interviews where the child, in response to a specific question regarding sexual abuse, stated that it did not happen. Instead of ending the interview the interviewer continued asking what was done to the child and used leading questions until the child made an allegation.
After reviewing the interview, decisions should be made about several things. First, should an expert psychologist or forensic interviewer be hired to review the interview to determine whether, given the child’s age and the conduct of the interview, the interviewer influenced the child and aided or coached the child into an allegation. The interview should also be reviewed to determine whether there were inconsistent statements made by the accuser that suggest the story is not true? Second, if it is determined that the forensic interview was done improperly, or that there were material inconsistent statements made, it needs to be decided whether or not to make an issue at trial of how the interview was conducted or about the inconsistent statements. At first glance one would certainly think that this information should be presented to the jury. However, there can be very serious negative consequences to making an issue of how the forensic interview was conducted.
If the forensic interview is challenged as being conducted inappropriately, or if it is alleged there were material inconsistent statements made during the interview it is likely the prosecution will be able to play the entire interview for the jury. In such an event, in addition to the jury having heard the accuser testify once on the witness stand, they will now hear the testimony a second time as the forensic interview is played for them. This is generally something that should be avoided, because it in effect allows the accuser to testify twice. I believe that in court, just as in everyday life, that a lie repeated often enough will eventually be believed.
Therefore, I am usually only in favor of making an issue about how the forensic interview was conducted when the interview was so leading and so manipulative that having the jury see the forensic interview, in addition to the child’s testimony, would not likely benefit the prosecution. In cases where the jury can readily see that the child was manipulated and the investigation was obviously biased, the interview techniques should be attacked. If there are concerns about how the interview was conducted but they are subtle and not obvious to the layperson, an expert may be needed to explain why the interview was not conducted in a proper manner. In these circumstances, I would file a motion to be heard by the judge (and not the jury) to prohibit the use of the child’s testimony during trial based upon the grounds that the testimony is so tainted by prosecutorial misconduct from the inappropriate forensic interview that the child’s testimony can not be reliable and would be more prejudicial than probative and therefore should not be allowed.
Likewise I am generally not in favor of playing the forensic interview for the jury to show prior inconsistent statements to the jury unless the statements are so inconsistent and so incredible that having the jury hear that information clearly outweighs having them sit thru an hour long interview where a child accuses my client of sexual misconduct in addition to sitting thru her trial testimony.
7. Your attorney should pay close attention to several special evidence rules.
There are rules that govern the type of evidence that is admissible in a criminal trial and under what circumstances certain evidence can be admitted. In most jurisdictions, those rules include a prohibition against allowing an accused to present evidence regarding an accuser’s past sexual history. This rule is often referred to as the rape shield law and typically numbered as Evidence Rule 412. There are also rules that prevent the accused from presenting specific instances of the accuser’s character. For example, usually any evidence regarding a lie the accuser told about another person not involved in the case would not be allowed. This rule is typically numbered as Evidence Rule 608. However, most jurisdictions also have special exceptions to these rules, which under certain circumstances do allow the defense to show to the jury evidence regarding the accuser’s sexual history and specific instances of the accuser’s character. Because it is unusual for a court to allow an attorney to use these exceptions, many defense attorneys are not as familiar with the exceptions to the rules as they should be or need to be. Cases involving allegations of child sexual abuse often involve facts and circumstances that are more likely than other types of cases to allow the attorney defending the case to effectively argue that the accusers past sexual history or specific examples or instances of the accusers character is relevant and admissible.
Therefore you need to make sure that your attorney has recently familiarized himself with these rules and their exceptions and any court cases that discuss those rules and exceptions. For example, if a young accuser has knowledge of sexual terms and acts which are not age appropriate, the exceptions to the rape shield law under Rule 412 should allow the accused to present evidence that the accuser has been sexually active with another person in order to explain the reason the accuser would have knowledge about sexual terms or acts. An example of an exception to the prohibition against presenting evidence of specific instances of poor character of an accuser is if an accuser has made a prior false allegation of sexual abuse against another individual. This specific instance of bad character should be allowed under Rule 608.
Issues to address during jury selection.
8. Selecting the Jury
In a criminal case involving child sexual abuse allegations, the accused will have the right to a jury trial. Most courts during jury selection will allow the lawyers to ask potential jurors questions. The lawyer will then have a certain number of jurors they can disqualify. I have said on occasion that, while it is still possible to lose a case after doing a good job on selecting the jury by making an error later in the trial, you can never win the case after doing a poor job selecting the jury. Due to the extreme repulsion of citizens against sexual crimes against a child, and that, as a practical matter, a person accused will not enjoy the presumption of innocence from most jurors, the importance of selecting the jury in a child sexual abuse case cannot be overly stated.
Any trial attorney who has tried very many cases understands that it is important to ask open questions in order to learn as much about the juror as possible. In other words the attorney should ask questions of the jurors that require some sort of explanation rather than a simple yes or no. For example, your attorney should ask questions such as: “Tell me what things you will look for in determining whether a witness is telling the truth?” rather than “If a witness gives two conflicting statements would you still believe her?”
There are several subjects that need to be addressed in the child abuse sexual allegation case. I will address two of them. The first subject that needs to be addressed with a potential jury in the sexual abuse allegation case is the child as super witness. I call child accusers in sexual abuse allegation cases super witnesses because I believe jurors automatically give a certain amount of credibility to them as witnesses simply because they are children and simply because of the nature of the allegation. As stated at the beginning of this article, people do not want to believe that children will lie about sex. This fact, along with the jurors’ inherent desire to protect a child, will cause the juror to want to believe the child from the beginning -rather than listen to the testimony with an open mind. Thus unlike most witnesses – the child witness alleging sexual abuse begin their testimony with the assumption that they are telling the truth – which is why I call them super witnesses. Therefore questions to potential jurors need to address this problem and jurors need to be asked about their ability to treat the child witness’ testimony like any other witness. For example, ask questions such as:
“Mr. Jones, how do you feel about whether children tell the truth more than adults just because they are children?”
“Mr. Jones, tell me some reasons that you can think of for why a child might make a false allegation of sexual abuse?”
While this will not totally avoid the problem of the child as a super witness it at least gets the jury thinking in the right direction and once in a while a juror will respond with an answer that helps make your point to the rest of the jury.
Another issue to address in these types of cases is the crying witness. The crying child accuser turns the child witness from super witness to super and bullet proof. The crying just exacerbates the jury’s instinctive desire to protect the child. Using open-ended questions like the ones above make the jury understand that stress, fear, and frustration can cause a child witness to cry and that many children know how to manipulate others by crying just as well as many adults know how to manipulate others by crying. Simply because the child witness is crying does not mean the child was in fact abused.
9. Fully and properly prepare the accused to testify
In many cases of this type, there will be little to no evidence to corroborate the accuser’s allegations, and little to no evidence to corroborate the denial by the accused. In other words, most cases will come down to what is called a “He said – She said” case. Given the inclination of the jury to treat the child accuser in a sexual abuse allegation case as a super witness, the ability of the accused to effectively testify is essential.
In other types of cases the jury may be more forgiving if the accused appears especially nervous or rambles or gets confused or gets angry. In this type of case the jury will be harder on anyone accused of child sex abuse. While only the truth must be presented, the manner in which the accused presents the truth is extremely important. The accused should have a good understanding of what will be asked by his attorney and what will likely be asked by the prosecutor on his cross examination. All questions the attorney for the accused will ask and all questions it is believed the prosecutor will ask should be reviewed with the accused in practice sessions. There can be a fine line, however, between adequately preparing the accused and over preparation that will cause his testimony to appear coached. Practice sessions should be stopped once the accused appears to have a good grasp of what questions will be asked and the fundamentals of how he needs to present himself. In other words, the accused needs to know what questions to expect in order to avoid surprises and he needs to practice overall presentation such as body language, but his testimony should not be scripted word for word.
10. Use of experts
In a criminal trial typically the only witness allowed to give an opinion is one who the court finds to be an expert. Typically all other witnesses may only testify to facts: what they saw, heard, or did. An expert however may testify to what he believes a particular fact means, for example, whether in his opinion a particular injury is consistent with sexual abuse.
Certainly, if there is forensic evidence in the case such as hair, fiber, blood, or semen that implicates the accused but the accused maintains his innocence, defense experts will be needed to review the tests, findings, and conclusions of the State’s experts. However, in the typical child sexual abuse allegation case there is not much, if any, forensic evidence. Typically there are two situations in which to consider using an expert witness in a child sexual abuse allegation case: 1) to review and possibly testify regarding whether any findings of tearing or scarring of the vaginal wall or hymen or anus are consistent or inconsistent with sexual abuse; and 2) to review and possibly testify regarding whether or not the forensic interview was conducted in a leading or suggestive manner causing the accuser’s testimony to be unreliable.
Generally, I do not favor use of an expert witness to testify to the obvious. For example, if the forensic interviewer’s questions and manner is so obviously leading and suggestive that any one can see how it would improperly influence a witness -then an expert is not needed to point out the obvious. In fact I believe the jury may resent the use of an expert is such a situation wondering why the defense believes it necessary to have an expert testify to the obvious. However, more subtle forms of leading and suggestive questioning, especially of very young children, may require expert testimony to inform the jury of how even non-obvious leading and suggestive interviewing can cause a young child to provide false information. Furthermore, expert testimony may be needed to explain to the jury how, because of a faulty interview, a young child over time may actually believe as true the false information they provided.
As discussed above in tip number six, before presenting expert testimony regarding the forensic interview, be sure that the expert’s opinion is strong enough and powerful enough to justify the result that the introduction of that expert’s opinion will cause the State to be able to introduce the actual interview and in effect allow the accuser to testify a second time thru the interview.
In cases where there is evidence of tearing or scarring the state will typically present an expert to testify and give an opinion that the tearing or scarring is consistent with sexual abuse. In such situations the defense will want an expert to review the evidence to determine the possibility that the injury could have been caused by consensual sexual activity with someone other than the accused, or by accidental means, such as a fall involving a straddling injury received in an activity such as biking, horse back riding, or gymnastics. Straddling injuries, although rare, can occur.
There is often a temptation to forgo consulting with a defense expert when the State’s expert is expected to testify to facts that are obvious or not in dispute, or the State’s expert gives a pre-trial statement that the defense believes is helpful to the defense. Why hire your own expert when the State’s own expert gives a helpful opinion? Be extremely cautious in giving in to this temptation because the State’s expert may change that opinion. Once in trial and actually testifying, State experts have a habit of exaggerating or changing their opinions to better fit the State’s theory especially if the prosecutions case is not going well. When this happens confronting the expert simply on the basis of their prior statements is not likely to be effective, as they will try to explain away the inconsistency with techno speak and terms that go over everyone’s head and what the jury remembers is ultimate opinion.
For example, I once had a case where in a pre-trial interview the State’s expert, a forensic nurse, stated that the scarring observed in the hymen was just as consistent with the teen accuser having engaged in consensual activity with a boy as it was with the teen having been sexually abuse by the accused. However, when she testified at trial stated that, although possible, it was highly unlikely that the scarring occurred from consensual sexual activity. Therefore, to avoid this problem hire an expert for everything when financially able. It may very well be that you do not actually use the expert but it is far better to have one ready and not need him than to need one and not have him . Given the stakes involved in the sexual abuse allegation case, the cost is well worth it.
11. The attorney must display a belief in his client.
I fully believe that a defense attorney, in defending against the child sex crime allegation, can do everything technically correct by presenting all the right evidence, making all the right arguments, conducting a great cross examination, and making all the right objections, but nevertheless lose the case because he did not display true passion in the belief of his client.
I believe true passion is often the difference between a guilty verdict and a not guilty verdict. These cases are very emotional from the state’s side and the defense better be able to respond with its own emotion. Chances are the accuser will cry and chances are the prosecutor will shout his disgust about how the accused stole the child’s innocence. The attorney for the accused who believes in his client needs to respond. The attorney for the accused must be willing to shed a tear for the injustice that has been wrought upon the accused. The defense attorney must respond with indignation at the unfairness of the accusations. The attorney for the accused should not give an inch and should never concede even the possibility that the accused might be guilty but the state just has not proven the case beyond a reasonable doubt. For if the attorney does not act like he is absolutely convinced of the innocence of the accused and that a terrible injustice will occur by a guilty verdict, the jury is not going to be convinced to vote not guilty.
Child sexual abuse is the easiest crime to be accused of and the hardest to defend against because of society’s repulsion against sexual abuse of a child and the assumption by many people that children would not make false allegations about sexual abuse. The stakes are extremely high. With very lengthy prison terms and mandated sex offender registry requirements, it is not an exaggeration to say that the penalties and ramifications of a conviction for child sexual abuse are stricter than for most homicide cases. Anyone accused of such an offense needs to take the situation very seriously and employ counsel who knows the special problems these types of cases present.
By Brent Horst
Attorney at Law
Licensed in Tennessee
First Edition October 17, 2007.
Second Edition March 30, 2016.
(Footnote 1) Disclaimer: Not all results are provided for all cases. The prospective client’s individual facts and circumstances may differ from the matter in which the prior results have been provided and may affect the ability of the lawyer to achieve similar results for the prospective client.
(Footnote 2) See: Bruck, Ceci, 1999. The Suggestibility of Children’s Memory. Annu. Rev. Psychol 50:419-39. See, Bruck, Ceci, 1999. The Suggestibility of Children’s Memory. Annu. Rev. Psychol 50:419-39.