This material was written for a lecture that I gave on defending a sex abuse case. It was written for lawyers defending sex abuse cases in Oklahoma State court. However, this material can also provide helpful legal information to non-lawyers. Nothing in this materials is intended to be legal advice for non-lawyers. Anyone who thinks that they may be suspected of a crime should seek the advice of a competent criminal defense lawyer immediately.
When I talk about a sex abuse case I am referring to someone who is charged with Sexual Abuse of a Minor Child under Title 21 O.S. Section 843.5 or someone who is charged with Lewd Molestation under Title 21 O.S. §1123. Sex abuse charges are very serious cases. Those convicted of sex abuse crimes are required to serve at least 85% of the sentence they receive and they are required to register as a sex offender. When sentencing those who have been convicted of sexually abuse charge, jurors are not very forgiving. If you client is charged with multiple counts and is convicted at a jury trial he or she may receive more time for sexually abusing a child than if he or she would have killed someone.
There are big differences between sex abuse charges other felony cases. When defending a sex abuse charge it is important to recognize these differences.
Unlike other serious charges such as murder, armed robbery and shooting with intent to kill with an accusation of sex abuse, there is often a question of whether or not a crime actually occurred. In most sexual abuse cases there is no physical evidence and the only evidence of a crime is the testimony of the alleged victim to prove that a crime actually occurred. When preparing the defense this is something that should be explored. No one wants to think about a child being sexually abused and as such, depending on the facts of the case, jurors may be more than willing to accept the proposition that the abuse did not really occur.
Unlike other cases where defense counsel or the defense investigator has an opportunity to interview the important witnesses that opportunity often does not exist in a sex abuse case. Most of the time the complaining witness, DHS workers, foster parents, or parents or guardians of the children are either unavailable or unwilling to talk to the defense. As a result defense counsel should be prepared to make the most out of any opportunity available to speak with the complaining witness or other witnesses available typically unavailable to the defense.
Most felony cases do not have child witnesses. Defense counsel must handle the child witnesses with care. Jurors are more forgiving of inconsistencies in the testimony of an alleged child victim. Defense counsel must try to find ways to discredit the testimony of the child without embarrassing or upsetting the child. And when defense counsel does impeach the child it should be done nicely. If defense counsel is perceived as being mean to the child he or she risks turning the jurors against the defense. Of course the older the child the greater latitude that can be taken.
The ideal way is to find ways to impeach that child without the child knowing that they are being impeached. Examples:
The child witness does not hear the other testimony so as many times as you can elicit testimony from the child that contradicts the other witnesses. The jury will know of the contradiction at the time of the child’s testimony or later in the trial but the child will not know. When doing this you need to make sure that this is highlighted and so that the jury will catch the contradiction.
I had a sex abuse case once where the complaining witness claimed that her step-father raped her every morning. That he would have intercourse with her for about 10 minutes.. That it occurred approximately 100 times and she never used birth control, he never used a condom and she never got pregnant. (She was 15 years old) Because of her lack of sexual experience the complaining witness did not know how unlikely of a scenario she had described.
Another major difference between sex abuse cases and other serious crimes is that there can be a time delay of months or even years between the alleged behavior and the reporting of the crime. Time delays present both problems and opportunities for the defense of a sex abuse case. While a long delay in reporting can raise doubts as to the truthfulness of the accusations, it provides the prosecution with a reason that the child is unable to provide many details of the abuse. A significant time delay can also provide the defense with opportunities to win a complete or partial dismissal on the basis of the statute of limitations. Those handling sex abuse cases in which there is a significant time delay should be aware of the case State v. Day, 1194 OK CR 67, 882 P.2d 1096, Para. 12 (Okla. Cr. 1994. )
In Day the Court stated the following:
We now hold that the statute of limitations begins to run and the offense has been "discovered" for purposes of Sections 152(A) and (C) when any person (including the victim) other than the wrongdoer or someone in pari delicto with the wrongdoer has knowledge of both (i) the act and (ii) its criminal nature.State v. Day, 1194 OK CR 67, 882 P.2d 1096, Para. 12 ( Okla. Cr. 1994)
The relevant time for the beginning of the statute of limitations is when someone other than the accuser or someone acting with the accuser knows of the act and knows of its criminal nature. This includes the alleged victim of the crime. If the state has a problem with the statute of limitations the alleged victim will either have to testify that at the time of commission of the crime they were either unaware that the act occurred or that they were unaware that the act was wrong. If the alleged victim were to testify to either of these statements the case against the defendant would be greatly weakened.
The other point that should be made concerning statues of limitations is that the relevant statute is the law in place at the time of the alleged conduct not necessarily the present statute.
There is a large body of research and writings concerning the proper way to interview a child that complains of sexual abuse. There is also a large body of case law concerning this subject and the related subject of child hearsay. Defense counsel needs to familiarize his or her self with this research and writing. Listed below are some resources that defense counsel may want to review.
All of the relevant social science research (through 1994) is reviewed and conclusions are made; all supportable by the research. The authors reference seven case studies: (1) the Salem witch trials; (2) the Little Rascals Day Care case (State v Kelly, supra.); (3) the Kelly Michaels case (State v Michaels, supra); (4) the Old Cutler Presbyterian case; (5) the Country Walk Babysitting Service case; (6) The rape on Devil’s Dyke case; and, (7) the Frederico Martinez Macias case. Against these factual backdrops, the authors evaluate the issues of the prevalence and statistics on child abuse; memory and suggestibility; the dynamics of structured and therapeutic interviews of children; repressed memories; age differences in reliability of children’s reports; and proper guidelines for the interviewing of children. (Ceci and Bruck wrote the amicus brief which was quoted by the New Jersey Supreme Court in the State v. Michaels.)
The subject of this book is quite simply: How we may come to believe in the reality of phenomena that spring from our imaginations and the function of imaginings in our emotional lives. Though, I suspect, we rarely think about it, concepts such as imagining, believing and remembering are definable. The parameters of the definitions of those terms explain how it is that we can believe in something that we have only imagined.
Frequently, we are confronted in a CSA case with the question, "If the allegation is not true, why is the child saying it?" The answer, which may be nothing more complicated than, "Because the child believes it," may tell us nothing of primary importance and may, ultimately, spell doom for our client with the jury. Perhaps in our efforts to redefine the issue and, hence, shape the trial, the question is better put, "How can this child have come to believe this story is true in the absence of a basis in fact for the story?" The various authors in this work provide some answers that we can explore and build on in our own cases to create theories and themes which will resonate as the truth to the jury.
Poole and Lamb, both developmental psychologists, provide guidelines for interviewers based on the latest social science research. They also present a flexible interview protocol which can be tailored to fit the particularized needs of each case. They also discuss language development and its impact on the interview process. With a knowledge of what should be done and–more importantly–why, we can better understand the shortcomings of the interviewers in our cases.
Given the Daubert and the Kuhmo Tire decisions referred to, above, the title of this book says it all. In this work, lawyers, psychologists, and social workers discuss the vexatious aspects of testimony and provide advice on the proper scope of expert testimony. The authors include discussions of the uses of expert testimony, the ethical standards to which psychologists who serve as experts should adhere, the kinds of evidence most offered in CSA cases, the admissibility of such evidence, the effects of this evidence on jurors, and, in the end, the authors provide analysis in an effort to achieve a sort of consensus of what constitutes ethical testimony.
The book is important to us in two respects. First, it helps us to see and understand when the expert against us is not being forthright and ethical. Second, it helps us guide our own presentations so that our experts do fall victim to the same sorts of criticisms.
How do false allegations occur? The usual situation is that a claim originates with a vague, ill-defined statement by a young child. Well-intentioned, but terribly misinformed, adults misinterpret these ambiguous statements and conclude that the child has been sexually abused. In response to the adult’s misinterpretations, the child undergoes numerous interviews. The sheer number of the interviews and the biased nature of the interviewer leads the child into describing things which never occurred. The child, then, finds himself in therapy where the therapist further contaminates what he thinks and remembers. The combined effects of this spiral can result in innocent people facing criminal charges and parents losing their children.
Dr. Campbell provides a number of cases detailing the false allegations of CSA and the issues raised in those cases. The DPA employee will enjoy reading Chapter 4 which details a case handled by Carolyn Clark-Cox, now of the Somerset field office.
Dr. Campbell discusses rumors and how false allegations grow in the same way rumors grow; interviewing children properly; the need for videotaping of interviews; fabrications; play therapy; repressed memories, "imagination inflation;" and, many other topics of professional interest to those of us who defend "perps." He provides an excellent basic understanding of how and why children can come to make such allegations as well as a lethal source for cross-examining everyone in the chain of contamination, from the parents of the complaining kids to the therapists.
Dr. Dawes takes on psychology and psychotherapy in a marvelously readable, and thought-provoking book. He explores common beliefs and "understandings" within these fields and reveals that the emperor is wearing no clothes. For example, he shows that Rorschach tests are nonsense; that greater clinical experience has nothing to do with being a better therapist; statistical analysis is a better indicator of a person’s future behavior than clinical expertise; and, how fraudulent claims of psychologists in court pose a real threat to the justice system. Simply because of the style in which it is written, it is a worthwhile read.
Very simply, if you handle CSA cases and have never seen color pictures of the ano-genital areas of children who have, and have not, been abused, then how would you know what to look for if, in your next case, you received such photographs in discovery? How would you know if the state’s expert actually saw something that was indicative of abuse or if she saw something that was common to non-abused children? The fact is, you wouldn’t. Therefore, this reference tool should be in every library.
The authors break down their Atlas into four sections. The first is just the techniques of conducting physical examinations of the children. The second section shows normal findings. The third section illustrates positive findings from non-sexual sources. The fourth section depicts findings that commonly result from sexual abuse. The differences are important and can mean the difference between jail and freedom for our clients.
This volume is also a quick reference for us in defending allegations of abuse. This work does not limit itself to sexual abuse, but deals pictorially with physical abuse of all kinds, as well. It shows us what the "other side" is looking for when it is looking for signs of abuse. We are well advised to remember that abuse does occur; with some regularity. We need to remember that when abuse does occur it has a face and fingerprints. This book can help us to identify the faces and the prints.
There are numerous psychological and medical review articles on the subject of interviewing children suspected of physical and sexual abuse. I would encourage any attorney handling a sex abuse case to perform an exhaustive search for the newest journal articles. One author who provides many great articles is Richard A. Gardner, M.D.
The following cases ought to be read and understood by defense counsel. The principles set out in these cases can be applied in a number of situations.
It is my belief that this case makes Title 12 O.S. 2803.1 unconstitutional. This is specifically discussed later in the materials.
Incriminating statements, admissible under the exception to the hearsay rule, are inadmissible under the confrontation clause unless the prosecution produces, or demonstrates the unavailability of, the declaring whose statement it wishes to use and unless the statement bears "adequate indicia of reliability." Reliability requirement can be met where the statement either falls within a firmly rooted hearsay exception or is supported by a showing of particularized guarantees of trustworthiness. (Note this is still an important case but it should be read in conjunction with Crawford v. Washington.)
The preeminent case dealing with the concept of "taint hearings."
A prior consistent statement introduced to rebut a charge of recent fabrication, improper influence, or improper motive is only admissible if the statement was made prior to the time the alleged fabrication, influence or motive came into being and, otherwise, is inadmissible. This can be very important if the state wishes to bolster an alleged victims testimony after cross examination.
Defendant's rights under 6th and 14th Amendments can require a trial judge to make an in camera inspection of child services records which would otherwise be confidential. (This case is referenced in the attached motion for disclosure of children’s records.)
Important pretrial discovery case; imposing on prosecutorial authorities the duties to ferret-out exculpatory information and to provide it to the defense.
An examining physician’s opinion that findings are "consistent with" history of sexual abuse given by complaining child is admissible. However, vouching for the child’s truthfulness or diagnosing "sexual abuse" is not permitted.
Oklahoma Statutes provide for the admission of child hearsay, of children under 13, describing physical or sexual abuse under certain circumstances. I believe that the United State Supreme Court's pronouncement in Crawford v. Washington, 124 S. Ct. 1354 (2004).makes this statute unconstitutional. On March 8, 2004 the United States Supreme Court issued its ruling in Crawford v. Washington, 124 S. Ct. 1354 (2004). In Crawford, the Supreme Court in a 9-0 decision overturned the conviction of a Washington state man because the state had introduced the testimonial statements of his wife after it was determined that she was unavailable.
In issuing its ruling the majority of the Court overruled its decision in Ohio v. Roberts, 448 U.S. 56 (1980) that allowed the introduction of an unavailable witness’s statement against a defendant if the statement bears adequate indicia of reliability by either falling within a firmly rooted hearsay exception or bearing particularized guarantees of trustworthiness. Crawford v. Washington, 124 S. Ct. 1354, paragraph 42 (2004). The Court held "where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy the constitutional demands is the one the Constitution actually prescribes: confrontation." Crawford v. Washington, 124 S. Ct. 1354, paragraph 108. (2004).
The language of Title 22 O.S. § 2803.1 closely mimics the language in Ohio v. Roberts. In §2803.1 (A) (1) the statute provides:
The court finds, in a hearing conducted outside the presence of the jury, that the time, content and totality of circumstances surrounding the taking of the statement provide sufficient indicia of reliability so as to render it inherently trustworthy.
Title 12 O.S. § 2803.1 (A) (1), emphasis added. As stated by the Untied States Supreme Court in Crawford “where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy the constitutional demands is the one the Constitution actually prescribes: confrontation.” Crawford v. Washington, 124 S. Ct. 1354, paragraph 108. (2004). An objection on Crawford grounds should be made to the introduction of any child hearsay. Furthermore, the introduction of child hearsay should be challenged under the provisions of the statute. Always request a hearing outside the presence of the jury because these hearings can be a great source of discovery.
Because of the severe consequences associated with a sex abuse charge these cases are difficult to resolve and much more likely to go to trial.
In most sex abuse cases there are two investigations; one conducted by a law enforcement agency and one conducted by the Department of Human Services. Often times some DHS records will be turned over to defense counsel along with the normal discovery but, I personally have never had a case where all of the DHS records were turned over voluntarily by the state. Defense counsel should always file a petition for disclosure of mitigating confidential DHS records. Included with these materials is a sample PETITION FOR ORDER TO RELEASE AND HAVE IN CAMERA INSPECTION OF CHILDREN'S RECORDSand an ORDER FOR DISCLOSURE OF RECORDS TO COURT. The defendant is entitled to have the DHS records reviewed by a judge and to have any exculpatory records delivered to the defense, STATE EX REL. SUTTLE v. DISTRICT COURT, 1990 OK CR 31, 795 P.2d 523 and Pennsylvania v. Ritchie, 480 U.S. 39 (1987). Title 10 O.S. §7005-1.2 lays out the procedure for obtaining these records. An important note is that the trial judge should not be the judge that reviews these records, the statute provides that the presiding judge of the district shall designate another judge to review the confidential records. Title 10 O.S. §7005-1.2 (D)(3)
It can also be helpful to describe in your petition for the review of these records what evidence that you are looking for that may be exculpatory. For instance, if you believe that the child has been repeatedly interviewed, that the child has given differing accounts of what allegedly occurred, that the child has made other accusations or accused other individuals of abuse in the past, if there is some motive for the child to make false allegations than describe the motive. Because the judge who is reviewing the records may not be aware of the facts of the case it may be necessary to give that judge a description of what may be exculpatory.
It is standard practice for the alleged victim to be interviewed on video tape by a forensic interviewer or a law enforcement officer. You should review the taped interview after you have become familiar with the proper way to interview a child who is alleging sex abuse. This video often contains some of the best evidence for the defense. There is almost never a transcript made of the video and often times not even the DA is not aware of everything that is said in the video. Often times the detective investigating the case and the DHS worker investigating the case will reference what was said by the child in the video but they will not include the exculpatory statements made by the child. They are making a case for guilt and they will leave out statements made by the child that raise doubts as to the validity of the claims made by the child. You should also make a transcript of this interview.
You need to develop a theme of your case. When I say a theme I mean you should be able to explain to the jury in a clear and precise way why your client is not guilty. If by the time you are prepared to go to trial you can not clearly explain to the jury why your client is not guilty than how do you expect them to figure it out on their own. An example theme “This case is about a girl who made up a lie to get out of trouble and the lie grew too big for her to take it back.”
In preparing for trial I always develop a written theory of defense. In a sex abuse trial I want to explain to the jury how we got here. If the child’s allegations have evolved throughout time I want to walk the jury through the evolution of the statements. I always want to explain the reason that the allegations against my client are false. This is typically done by focusing on the alleged victim’s motive to lie, such as being influenced by estranged parent, desire to get out of trouble, desire to get even, or refusal to submit to parental authority. However, this could be explained through improper interviewing techniques. Improper interviewing techniques can include anyone who questioned/spoke with the child concerning the abuse allegations and are not limited to forensic interviewers or law enforcement officials.
Typically my opening statement will be very similar to my theory of defense statement that I have created. I always try to tell the story in such a way that upon hearing it, the average person would say that my client is not guilty. For example;
At approximately 4:00 am of October 12, 2001 15 year-old Gwendolyn was riding around with a 23 year old man. This would have been a school night if Gwendolyn N---- was attending school at the time. Gwendolyn N---- had run away from home, she been kicked out of school for lying and arrested for shop lifting. When the officer asked her what her name was she lied about her name, she lied about her age, she lied about where she lived and she lied about what she was doing with the 23 year-old man. When the officer confronted her with her lies and began putting pressure on her, all of a sudden “my step daddy raped me.”
Motive to lie or some explanation of why what the alleged victim is saying is not true is very important in a sex abuse case. Jurors will wander why would the alleged victim say it if it were not true. You should provide the answer to this question. Most prosecutors have an attitude that if my witness says it than it must be true. You need to show why what the witness is saying is not true. In a sex abuse case you need to show more than inconsistencies. The state will try and dismiss those inconsistencies by explaining that the child has suffered great trauma, that the child was confused, and that it is an embarrassing thing to discuss. I have seen prosecutors go to ridiculous lengths to explain inconsistencies when they should have known that what their witness was saying is simply not true. The truth is easy to remember.
You should closely analysis the allegation that has been made. Do the allegations sound ridiculous on their face? For example the case I previously discussed where the alleged victim said that my client raped her approximately 100 times, that she never used birth control, he never used a condom and she never became pregnant. In my closing I discussed this. I said there are guys out there who try that one time and end up paying child support for the next 18 years. (I was also able to prove during the trial that my client was still capable of having children.) Does the child provide great detail, the type of details that one would only know if one had actually experienced the event? Does the child describe ejaculation? Does the child give the details that suggest the child experienced this event even without knowing all of the proper terminology?
Or does the child make some blanket statement such as “he put his pee-pee in my pee-pee” without any description or detail that would be expected from someone who had experienced the sexual event described. You probably will not want to ask this child these details during the trial but you certainly want to point out their absence in your closing. It may be uncomfortable to talk about and you may want to apologize to the jury for having to discuss it but if you cannot have a candid discussion with the jury concerning the sexual allegations made by the minor and point out what is wrong with the allegations you should not be handling a sex abuse case.
By the time that a defense lawyer stands up to cross examine an alleged victim in a sex abuse trial the complaining witness will have made several statements concerning the alleged abuse. It is not unusual to have the initial disclosure to a parent or other authority figure, an interview by a law enforcement official, an interview with a DHS worker, a forensic interview that is video taped, preliminary hearing testimony and of course the direct trial testimony. There are a lot of different statements to keep track of. I recommend making a data base out of all the statements. I go through each statement line by line and input that statement into a data base. Usually I build this database on Microsoft Excel. I also use my laptop during the trial so if the witness says something I am not expecting I can search the database for the witness’s previous statement. After I have constructed the database I review the statements for inconsistencies. This gives me complete command of the previous statements so that I can highlight the important inconsistencies.
Many times interviews with children who allege sexual abuse are video taped. These video tapes can provide valuable evidence for the defense. I always make a transcript of these interviews and input those interviews into my data base. Often times the video taped interviews contain valuable evidence for the defense that is not reflected in any of the police or DHS reports. The police and DHS workers are looking for evidence of guilt not innocence and as such exculpatory evidence rarely finds its way into their reports.
I recommend breaking key sections of the video taped statements into short playable sections. The reason that this is so helpful is that with DVD recorder markers can be placed at exact points in the video and accessed quickly during cross-examination. This is great for cross examination. Impeaching with a transcript is one thing, but it is even better if the jury can see and hear the child give a statement that contradicts the testimony that they just heard.
Send your questions to LawyerAdams@me.com I try to respond to all inquires as quickly as possible. If you need immediate assistance you can call my office (918) 582-1313 or my cell phone (918) 230-9513. If you are in need of emergency assistance feel free to call my cell phone anytime either day or night.