What actually happens during trial will determine whether or not there is a conviction and a great deal of what happens will actually depend on the accused. It is fair to say that a trial is like a play. The accused is the actor and the jury is the audience. If the accused gives a good performance, the audience applauds and the accused goes home. If the accused gives a bad performance, the audience boo's and that could easily result in the jury voting for a conviction.

Never lose sight of the fact that the prosecutor is well aware of this and, aside from presenting their case, if they can make the jury dislike the accused, that is very beneficial to the State. A jury who dislikes an accused will have no problem convicting them, so a key element is in the demeanor of the accused and how they come across to the jury.

In most instances, the accused has never been to trial and many have never been inside a courtroom aside from being present during various hearings that may have taken place, but the fact is, a courtroom can be a very scary and unnerving experience.

Now, as I said, the demeanor of the accused will have a great deal to do with the entire case and that includes how the accused dresses, how they act sitting at the defense table and how they testify.

If I have said it once, I have said it a thousand times. It is critical for the accused to testify when they have been accused of sexual abuse by a child. Most people, sitting on a jury, who heard a child tell them that the accused did something inappropriate, will not vote to acquit unless they hear the accused tell them they did not and they must believe the accused. The two elements, again, the accused must testify and the jury must believe them. In any case of child sexual abuse, it will usually come down to who is credible, the accuser or the accused. The defense attorney can discuss 5th Amendment rights all they like, but to a jury in a case of this nature, when the accused does not testify, most people will believe they are hiding something and therefore, they must be guilty. Without question, most people on a jury would rather err on the side of safety of the child.

Normally, every courtroom is basically the same. There are a row of benches in the rear for spectators, two fairly large tables where the defense and prosecution sit, a witness box, chairs for the jury and alternates and the judge's bench. When the accused arrives in the courtroom, they will usually sit at the table with their attorney and the prosecutor sits at the other table. Usually, before anything is done, the Court will hear whatever motions will need to be heard. One thing the accused needs to be prepared for are motions by the State to exclude certain evidence and/or testimony that the defense may be planning to use. All of these motions are normally held pretrial and the results can be devastating to the accused.

As a perfect example, say the accused had previously been evaluated for sexual preference with the Abel Assessment for Sexual Interest. The defense would have listed the individual who did that evaluation as one of their experts. The State may file a Motion to Exclude that testimony, stating that it does not meet either the Daubert or Frye Standards. In any state, there are specific laws which govern what expert testimony would be allowed. Most states are Daubert states, but there are still a few that would be considered Frye. Frye was the governing law for years until Daubert vs Merrell Dow Pharmaceuticals Inc., 509 U.S., 113 S Ct 2786 (1993), took it's place. Daubert is one of the most important decisions to come along in years. In the most simple terms, Daubert states that all expert testimony must be based on scientific foundation and not simply an opinion. While that may not seem important, consider this. Many innocent men have been convicted on charges of sexual abuse simply because of the "expert" opinion of a psychologist; an opinion that was absolutely worthless, but an opinion that was accepted by the jury simply because that psychologist was qualified as an "expert," and was called "Doctor." As a perfect example, say the State's expert psychologist testified that the accusing child matched the characteristics and profile of a molested child, or that the accused matched the characteristics and profile of a child molester. There are no such characteristics and there is no such profile. Those characteristics and profiles simply do not exist in the scientific community, therefore, Daubert would keep that testimony out and, if it was allowed in over the objection of the defense, that would be considered "reversible error" for appeal purposes, should the accused be convicted.

Also consider that, prior to Daubert, when psychologists testified for both the prosecution and the defense, the "winner," was the one, not necessarily with the facts or the truth, but with the "silver tongue." In Daubert, the Court stated that when "expert", "scientific" testimony is offered, the trial judge must determine whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. Focus must be solely on principles and methodology. Scientists typically distinguish between "validity," (does the principle support what it purports to show?) and "reliability" (does application of the principle produce consistent results?). The key factor is to evidentiary reliability; that is, trustworthiness. In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity.

In the above example discussing the Abel Assessment, clearly, the Abel has been accepted in the overall scientific community as a valid tool in the treatment of sex offenders, but not in their identification. One major argument with the Abel Assessment is that, regardless of who administers the testing, it is sent to Dr. Abel's office in Atlanta, Georgia for the results, so no one has any idea how it is actually graded, nor can they explain the scientific validity behind it, including the error rate. When the defense plans to admit an Abel Assessment, if the prosecutor objects, the defense should request a pretrial Daubert or a Frye Hearing and, without question, in the case of an Abel Assessment, they should use Dr. Abel personally as their expert. No one can explain the assessment to the Court better than Dr. Abel. He invented the test and he will usually testify at those hearings telephonically.

Now, let's examine other testimony that may or may not be allowed. Let's say that the allegation of abuse resulted from a heated custody battle, as many do. Let's say the accused is the father and there is absolutely no doubt, in his mind, that his wife, or ex-wife has coached or used their child and a false allegation of sexual abuse, to gain the upper hand in the custody battle. Let's further say that, during the custody battle, a custody evaluator has determined that the father would be the more fit parent to have custody and further, that testing has indicated that the mother has a very serious psychological disorder. Obviously, the father will want that evidence and testimony used during his criminal trial, however, do not be surprised at all if the Court denies it. Regardless of how much the father, the accused, may believe that his ex-wife is the person behind the allegation, it is rare that he can actually prove it, so it is not unusual for the Court to rule that any evidence or testimony identifying the ex-wife's problems or issues will not be allowed, since it is the child who is making the allegation.

I have repeatedly told clients and defense attorneys not to attack the wife unless they can absolutely prove that she is personally responsible for the allegations and that can be proven beyond any doubt. Doing this can either confuse a jury or make them angry. A jury thinks, the child made the allegation, so why are they attacking the wife instead of the allegations themselves? A confused or an upset jury can easily convict.

Again, it is not unusual for the accused to walk into the courtroom, believing they have a perfect defense and then finding out that a great deal of that perfect defense will not be allowed in. Obviously, the defense attorney needs to make a thorough and complete record of their objections, if that is the case for the sake of an appeal, should the accused be convicted.

The next two issues are, how should the accused dress and how should they act? Normally, I always recommend that the accused wear a plain, dark blue suit with a white shirt and a conservative tie. You do not want to dress in any manner that would cause concern for the jury. A "preppie" outfit, such as a sport coat and slacks could easily send the message of, "Look at me." "I am better than you are." You also do not want to dress in a manner where you come across to the jury as unkept, such as wearing wrinkled clothing and unshined shoes. A plain, dark blue suit is simply "middle of the road," if you will.

Aside from dress, the most important discussion will be how the accused should act. When you are sitting at the defense table, sit calmly, with your feet on the floor in front of you and your hands on the table. Yes, you can make notes, but do not lean back in your seat with your legs crossed. That could easily send a message to the jury that you just don't seem to care. Never lose sight of the fact that most people sitting on a jury will watch the accused carefully, looking for some hint as to whether they are guilty or not, or even whether they like them or not.

When the jury is seated, look at them occasionally, but all of them. Do not pick one and do not simply sit there staring at them. When someone is on the witness stand, look at them and also either the prosecutor or defense attorney, whoever might be questioning them. Do not sit there with a staring gaze at the witness, especially when they are testifying for the State. That can easily give the appearance that you are trying to intimidate them. Show no reaction, whatsoever, to any evidence or testimony. In other words, if the child accuser is testifying, regardless of what they say or how ridiculous it may sound, do not make facial expressions of disbelief. Any reaction you make can easily be misinterpreted by they jury.

Now, when you are in the courtroom and all motions are complete, the judge will ask that the jury panel be brought in. In some states a jury consists of 12 people and in some states, only 6, however, there will be a number of people in the initial jury panel. For the purposes of our discussion, we will use 12. That actual jury panel may consist of 30 to 50 people. From those, you get your jury of 12 and either 1 or 2 alternates. An alternate is someone who sits through the trial, as a possible member of the jury and, in the event someone on the jury gets sick or has to be replaced, an alternate will take their place.

Although the expression used is, "picking the jury," that is not entirely accurate. You do not "pick" a jury, but rather you remove those from the panel that you believe would be detrimental to your case and what you have left is your jury. There are two ways to remove prospective jury members; one is through cause and the other would be that both the defense and the State have the ability to remove a certain number just because they want to. Removing for cause means that there is some reason that person would not be able to serve. Say, for example, a female member of the panel tells the Court that she was molested as a child and could not be fair and impartial in this case. Obviously, she would be removed for cause.

The real key to selecting the proper jury is through a thorough and proper jury voir dire, or pretrial "questioning" of the jury panel by the judge, the prosecutor and the defense attorney. Some states allow the prosecutor and the defense attorney to question the overall jury panel in open court and, in some states, there is "individual" jury voir dire, which, obviously, can take a great deal of time.

It is imperative that the defense attorney ask the proper questions, and jury voir dire, in a sexual abuse allegation case, is far different than in any other criminal case. It provides the defense attorney with an excellent opportunity to educate the jury and to weed out those he does not want. Keep in mind that, when the jury panel is brought into the courtroom, the Court will read the indictment to them, so at that point, they know what the case is about and what the accused has been charged with. Also at that point, many people on the panel will form an immediate dislike for the accused and will begin watching them like a hawk. As I stated above, there are no characteristics, nor is there an accepted profile of a child molester, but when the indictment is read, many people on that panel will begin trying to figure out in their mind if the accused "looks" like what they would perceive a child molester to look like. I realize I have made this statement previously, but I simply cannot stress this enough.

In short, in these cases, when the indictment is read, the accused is guilty and they must then "prove" their innocense. I fully realize that people will say, "Oh no, that is not the case." "You are innocent until proven guilty," but that is normally not the case in a child allegation of sexual abuse.

Now, back to jury voir dire. As I said, the defense attorney should be well prepared to question the entire panel and those questions need to go a lot further than, "Will you all promise to wait until all the evidence is in before making a decision?" There are questions specific to sexual abuse issues and they need to be asked. In addition, as they are asked, the accused and anyone else they may have helping them, needs to keep a careful eye on everyone in the jury panel. As an example, let's say the defense attorney asks, "Is there anyone here who does not believe that a mother is capable of coaching a child into making a false allegation of sexual abuse?" As that question is being asked, you need to determine if anyone on the panel reacts in a negative manner. The last person you want seated on your jury was a female who used her own child to get the upper hand in her own custody battle. Point is, you must ask the questions to weed out potential problems and also to educate the entire panel. One of the best attorneys I have ever worked with would ask the entire panel, "How many of you have children?" Most would respond that they do. He would follow that up with, "How many of you have told your child to do something they did not want to do and then had their child tell them they were going to call the police or social services because you were child abusing them?" Normally, most people on the panel would laugh and raise their hands, but then it would hit them. Children do know how to make "false" reports.

Again, jury voir dire is critical to the defense, and the key is asking the proper questions and looking for reactions. I have a list of questions on my site, that I have gathered during trials over the years, that a defense attorney could use as a basic foundation.

Once jury voir dire concludes, the accused will discuss with their attorney various problems they see with members of the panel: IE, people they want to keep and people they want to eliminate. Once the selection is made, the defense attorney, the prosecutor and the judge will discuss the challenges and, after eliminating those requested by the defense and by the prosecution, you are left with 12 in the jury box and either one or two alternates.

At that point, the jury will be sworn in and the judge will instruct them that they are not to discuss the case with each other, nor form an opinion until all the evidence is in. Following that, the prosecutor makes their opening statement, telling the jury what they believe their case will show. The defense attorney can, or does not have to make an opening statement. The State is obligated to "make" their case. The defense is not obligated to do anything. The defense does not have to make any opening statement, they do not have to call any witnesses and they do not have to present evidence at all, but the fact is, usually they do.

Once opening statements are completed, the State begins presenting their case by calling their first witness and normally, that is the child accuser. The prosecutor questions the child and that is what is known as "Direct Examination." Once that is completed, the defense has the right to "Cross Examine" that witness. When that is complete, the State can "Re-Direct" if they have more questions, and the defense can "Re-Cross" if they desire to do so. It is so important, during this phase, that the defense rely on strategy and strategy can change minute to minute. In one prior case, the prosecutor called the child witness to the stand. The child made absolutely no disclosure whatsoever and, realizing they were getting no where, the prosecutor said, "No further questions." The prosecutor was hoping that the defense would question the child and that would then open doors and get the child talking, however, the defense attorney simply said, "No questions." That shut the prosecutor down and the jury was left with a child who made no allegations, not something the State planned for or wanted. Problem is, there are those defense attorneys who would have decided to go ahead and question the child anyway and that could have opened Pandora's Box, if you will.

The State will call all their witnesses, present all their evidence and then rest. At that point, usually the defense presents a Motion for a Directed Verdict, asking the Court to dismiss the case. Obviously, most are rejected and at that point, the defense can either rest or put on their case.

One point I have made for years is in telling defense attorneys to stay away from most character witnesses. Adolph Hitler could have gotten 10 people to say he was a fine guy, but that did not make it so. Also, consider a character witness. They usually have no knowledge of the facts of the allegation itself. They are simply saying that the accused is a fine person. That usually does not sway a jury, especially when the prosecutor asks them, "Where you present on such and such a date, when this happened?" they respond, "No," and the prosecutor then says, "So, you have no real knowledge of this at all, do you?"

Simply put, stick to fact witnesses and keep things as simple, direct and straight to the point as you can.

The last person the defense should put on the stand is the accused and, that can easily make or break the case. Up until the accused actually takes the stand, they have been emotionless and expressionless. When they take the witness stand, that changes drastically.

About 25% of my work consists of cases where there has been a conviction based on a false allegation of child sexual abuse. That has provided me the unique opportunity, over the years, to actually talk with people who served on various juries. When I ask them why they voted to convict, it was either that the accused did not testify, or that the accused showed no emotion. If I have heard that statement once, I have heard it 100 times. An accused who shows no emotion at all is asking for a conviction.

That being the case, obviously, the accused does need to show emotion and they need to relate to the jury, but that emotion needs to be real, but that time is when they are actually on the witness stand. In one prior case I was involved in, I had worked with the accused on their testimony and there was no question they knew exactly what to do and how to do it. The problem was, we had to put them on the witness stand earlier than we anticipated. The accused sat straight up, hands in his lap, staring directly at the defense attorney and "robotically" responded with "Yes" and "No" answers. To that jury, he looked rehearsed and guilty. Trial concluded that day after he had been on the witness stand for about an hour. The next morning, prior to reaching the courthouse, he and I had a discussion about his prior testimony and, to say the least, that discussion was far from pleasant, at least for him. When we arrived back at the courthouse and he took that stand again that morning, the defense attorney began with, "Mr. Accused, you testified yesterday for a few minutes and, hopefully, you were able to get some rest last night." "How are you feeling?" With tears in his eyes, the accused looked at the jury and said, "I am scared to death." "I am sitting here, accused of something I didn't do and I am scared." The prosecutor objected, but the jury heard it and that was all that mattered. I watched that jury as he spoke. They sympathized with him. He humanized them. They had compassion. He identified with them and he reached them and that is exactly what it takes; no less. You talk to that jury. They are the ones who can send you home or send you to prison.

There is an art to testifying properly and that involves far more than simply having a lawyer tell you to tell the truth. When you testify, yes, you show emotion, but again, as I have previously stated, that emotion must be real. If an accused shows what the jury believes to be "fake" tears, that can turn them against the accused faster than anything.

Keep religion out of your testimony. I have seen instances where an accused has gotten on the witness stand with various religious symbols attached to the lapel on their coats or on their clothing. One example was an accused who wore a religious fish hook on his coat lapel and the prosecutor asked him what it was. The accused told him it was "fishing for lost soles." The prosecutor asked the accused if he attended church and the accused said yes, but as the conversation continued, it came out that the accused really only started attending after the allegations were made. Needless to say, that had a great affect on the jury. In other words, he became religious because he got caught. One thing that turns a jury off and against an accused quicker than anything is if they believe the accused is "using" God in some manner to get off the hook.

More often than not, a defense attorney will tell a client to provide short, yes and no answers to everything. That is normally the advice because the attorney really does not understand their client, what they are capable of or what they might say under pressure. That is the safe approach, no question. I have worked with many clients over the years and their testimony. There are many things that can be done if you honestly understand the client, their personality, how they act and how they respond under pressure. That is the real key to testimony. In a recent case I was involved in, the defense attorney approached me with a simple list of questions they had prepared for the client, stating that they were concerned about his testimony. I told the attorney that I had known and worked with the client for the past two years and had total confidence that he would respond properly to anything he was asked. The attorney breathed a sigh of relief and put his client on the stand with confidence. The client's testimony was absolutely perfect. The fact is, a client's testimony is the single most important event to me at a trial. I use my client and their testimony to get important points across to the jury that may not have been brought out during trial. Unfortunately, since each and every case and every individual is different, I cannot cover the aspect here. One thing I can say is, know your case, inside and out, and think carefully about what you want to get across to the jury. What is it that is important for them to hear in order to find you innocent? In most circumstances, the defense attorney will ask you if you have heard the allegations that have been made against you and then ask you if they are true, or if you have done what was alleged or not. A simple "No," will suffice, however, I have had clients to follow that up with statements such as, "No, sir." "It would not have been physically possible," "No, sir, and she would not have wanted to keep getting into that hot tub with me had it been true." The question is, what do you need to say to the jury to make them really think and to put doubt in their minds? No, do not attempt this on your own because what you think is important may not be and it could easily have an adverse affect so, if at all possible, work with someone who does have experience before you take the stand. Your testimony and your credibility will be the main issue and could well mean the difference between acquittal and conviction.

Basic What to Do and What Not to Do

In the Courtroom

On the Witness Stand, In General

On the Witness Stand, Direct Examination by Defense Attorney

On the Witness Stand, Cross Examination by the Prosecutor

When the defense competes their case, they rest and the State has the ability to call rebuttal witnesses if they so desire. If they do not, the case is over and closing arguments begin. The State begins their closing argument, followed by the defense and then the State has the right to go again, since the entire burden of proof is on them.

Once closing arguments are complete, the judge gives the jury instructions and they begin to deliberate. It takes a unanimous jury, (all members) to convict or acquit. If you have 1 or more who do not and will not agree with the others, you have a hung jury and a mistrial.

If the verdict is not guilty, the judge will usually ask if either the prosecution or defense wants the jury polled, meaning that each juror is asked if they voted as was indicated. If the verdict is guilty, the judge will still ask if the jury needs to be polled. At that point, the defense attorney will normally ask that the defendant be allowed to remain free, pending sentencing and/or appeal. On a rare occasion, the Court agrees, but more often than not the accused is removed by the deputies and taken to jail. Following that, the defense attorney renews his request for bond, files a standard motion for a new trial and someone will file a notice of appeal.

Yes, anyone falsely accused and going through a criminal trial, will be afraid, angry and frustrated, but as I have said, a trial is like a play and the accused is the star. Do not over act, or respond to things in a manner that could be misleading to others. Be yourself, talk from the heart and do not be afraid to show your emotions when you get on the stand. Remember the number one reason I have had, over the years, from former jurors stating that they voted to convict because the accused show no emotion. Another reason I did not mention was that the jury thought the accused was "faking it," that the emotion they did show seemed rehearsed and phony. That jury or that judge has the future of the accused in their hands so, be yourself and again, speak and act from the heart.

You have accessed one of the many pages here at the Cowling Investigations, Inc., a False Allegation Defense Website. For an explanation of how we assist our clients who have been falsely accused, see Our Expertise, We Can Help. If you have been falsely accused, see What to Do - What Not to Do When Falsely Accused.