Pretrial Discovery Issues
In False Allegation Cases
Provided by Allen N. Cowling
As soon as you are charged, your attorney has the
ability to file a pretrial Motion for Discovery that requires the State to provide you (your attorney)
with all evidence that the State has and plans to use against you as well as the names of each person
they intend to call as witnesses against you. Assure that the Motion for Discovery is filed at the
first possible moment.
It is vital to know everything possible about the
charges against you, who made them and why, exactly who will testify against you and what will they
say. Remember, it's a feather in a DA's cap to "nail" a child molester, regardless of
whether they did it or not, so it is not unusual at all for them to intentionally withhold certain
discovery, especially material that could benefit the defense.
Your attorney should consider filing a request for
production of documents with Child Protective Services and attempt to obtain all their records,
documents, notes or any other material pertaining to you. That is also true of any psychologists or
counselors who talked with the children.
The days of "trial by ambush" are long over
and if your attorney does his job properly, through the use of "discovery," they will
determine everything that will be used against you, who will testify against you, what their testimony
will be and what, if any, exhibits will be used in support of the State's case.
Likewise, the State also has the right to know who you
will call as witnesses, experts or otherwise and what documents or exhibits you plan to present. In
short, if "discovery" is conducted properly, there should be absolutely no surprises
whatsoever during trial.
Now, let's keep things very simple for a moment.
Think carefully about what material is out there that would assist you. The State may have lab reports,
investigative notes and reports, audio or video recordings of interviews between you and investigators,
audio or video recordings between investigators/the prosecutor and the minor children, reports from
social services, youth courts, school counseling records, reports from medical doctors, psychiatrists,
psychologists or other counselors or written statements from witnesses who plan to testify against you.
It would certainly benefit you to obtain everything possible at the fastest possible time and if your
attorney honestly cares, he will do so.
In addition, there are numerous other areas open to your
attorney, such as pretrial motions and pretrial hearings, in the event the State, or anyone else denies
discovery that you are entitled to.
As an example of what you are entitled to in discovery,
consider the following which should consist of the very least asked for in the motion:
- The names and last known addresses of persons whom the State
intends to call as witnesses.
- Any written confession, admission or statement of the defendant and
a list of witnesses thereto.
- Whether there was an oral confession, admission or statement made
by the defendant and a list of witnesses thereto.
- The results of any scientific examination conducted upon any
evidence.
- Any material or information within the State's possession or
control which tends to negate the guilt of the accused as to the offense charge or would tend to
reduce his punishment.
- An opportunity to inspect any physical evidence prior to
trial.
It is vital that you know and understand a little about
discovery, because without it, your attorney is like a pilot flying at night with no instruments. I
recall one specific case I was involved in where the attorney was retained several days following the
arrest of my client, yet it took that attorney over two (2) months before he even filed a Motion for
Discovery. Worse yet, the State did not even comply with the defense's motion until two (2) days
prior to my client's trial and then intentionally failed to provide certain material that would
have benefitted the Defense. That fact was discovered several years later, following a conviction, when
the boy's father filed a lawsuit against that attorney, charging him with legal malpractice and
ineffective assistance of counsel. No attorney that cares about their client would have allowed the
State to conduct Discovery in that manner.
Discovery issues can also play a vital role in
post-conviction relief. If the defense attorney did file a proper motion for discovery and then,
following conviction, you are able to prove that the prosecution wilfully withheld information or
evidence "beneficial" to the defense, depending on the nature of what was withheld, that
would be grounds for requesting a new trial based on a violation of your constitutional rights. In the
same manner, if the defense attorney did not file a proper motion, failed to compel the State to comply
if they failed to provide the material required by law or if you can prove that the outcome of your
trial would have been different had the defense attorney conducted discovery properly, you have a
reversible issue on ineffective assistance of counsel, also a violation of constitutional
rights.
Discovery Issues
- How long after you retain an attorney was a Motion for Discovery
filed?
- What discovery was obtained? You are looking for investigative
reports, reports from social services, audio and/or video tapes of interviews, medical reports, lab
reports, list of witnesses the State plans to call and identification of the State's
experts.
- Police and investigative reports often contain a synopsis of the
case and identify statements made by the child accuser or other persons who were interviewed.
Usually these reports provide an excellent opportunity to "identify" specific statements
made by the accuser that can then be compared against other statements they may have made during
other interviews, depositions or during a preliminary hearing. Obviously, the more inconsistent
statements made, the better for the defense. Some interviews may have been audio or video recorded
and others consist of investigative notes only. Usually, reports will identify if the interview(s)
was/were recorded. Obviously, if a police report states that an interview with a child accuser was
audio recorded, but no audio tapes were provided to the defense in discovery, proper steps should
be taken to secure the tape or tapes. Audio and/or video taped interviews provide the perfect
opportunity to determine whether or not correct interview protocol was used and will quickly
identify the interviewer's use of leading and suggestive questioning. It is not all that
unusual to find that specific allegations made against an accused were the result of a child
"agreeing" with their interviewer that something happened, rather than the child actually
saying so. Read any and all reports or listen to tapes carefully.
- Department of social service reports, as with police reports, often
provide a full case synopsis, including interviews with the child accuser and, as with police
reports, they often identify whether or not the interviews were recorded. Again, you are looking
for inconsistent statements and to assure that any audio and/or video tapes were provided to the
defense. I actually found a "note" in a D.S. file in a very serious criminal case that
said, "The child (who was alleging rape) was asked if the accused's penis was straight out
or hanging down and they responded, hanging down." Needless to say, that one statement
assisted the overall defense greatly.
- Therapy reports can prove invaluable. On occasion, when a child has
made an allegation of abuse, the State will refer the child to a psychologist or therapist for
evaluation. It is rare that written reports will exist, but if they do, again you are comparing
statements made by the child to statements they made during other interviews. If the State does
refer to a therapist, many times a prosecutor will tell them to provide a verbal assessment, but
not to put anything into writing so they are not obligated to turn it over to the defense. In these
cases, consider a pre-trial motion to exclude the therapist's testimony and then during the
hearing, outside the presence of a jury, you have the opportunity to ask specific questions and
determine the scope of the therapist's testimony. In most cases, when the State refers to a
therapist, they are normally "validators," looking for ways to strengthen the State's
case. Many times their reports, again, if they exist, can be subpoenaed.
- If audio tapes and/or video tapes are obtained and there are no
written transcripts provided, have someone prepare a word-for-word transcript of each tape, then
analyze the tapes and the transcripts, looking for any inconsistent statements, or any clue as to
why the allegations are false. It is vital that an accurate, word-for-word transcript accompany the
tapes, especially if you will ask an expert to examine them. Many times, clients have been provided
tapes with no transcript. In some cases, the tapes are of very bad quality and, also in some cases,
we have had to have the sound enhanced and then have a professional transcribe them.
- Medical reports provide information as to who conducted a medical
examination on the accusing child, when was it conducted and what type examination was done? If no
medical reports were obtained, carefully look through all discovery to see if there is any mention
of an examination and then take whatever steps are necessary to secure a copy of the medical
report. As I have said, look for the wording, "No trauma, but exam consistent with
abuse." That is a play on words. Most cases of abuse have no medical corroborating evidence
and, "consistent" with abuse is also "consistent" with non-abuse. Also be very
careful to determine whether or not a colposcopic examination was completed and, if so, were photos
taken? A colposcope is a device that "enlarges" the vaginal and rectal areas so they can
be seen easier and, especially where irregularities are noted, many times, they will take
colposcopic photographs. Assure that a defense expert examines these.
- DNA reports should be carefully analyzed. It is highly doubtful
that this will be an issue in this case, however, I am covering it just in case. It is absolutely
absurd to accept the State's DNA analysis at face value. Have a defense expert examine any and
all DNA evidence. Perfect example was a client who was "scared" into accepting a plea
because "his" DNA was on a child's panties and "that" made him guilty. Fact
was, in that case, there was an "unknown" strain also identified that no one paid
attention to. That "unknown" strain belonged to the person who "planted" the
accused's DNA on the panties so, read all DNA reports carefully.
- Does analysis of any of the available discovery indicate that other
material exists that has not been obtained? In a prior South Carolina case, one report I read
stated that the accuser had been interviewed on two occasions and that the interviews had been
video taped, yet the defense did not have the tapes. In that particular case, the defense attorney
was not even aware that the tapes even existed because he had not read any of the material that the
State had provided him with.
- When it appears that any evidence or material has been withheld,
was there a Motion to Compel filed? This is a motion asking the Court to order the State to turn
over any and all exculpatory evidence to the defense. If your attorney files a motion for discovery
and the State has not provided it within 30 days, question him/her about filing a Motion to
Compel.
- If the State has denied discovery, such as "confidential"
reports from social services, was a motion filed asking for in-camera inspection? This is a motion
asking the Court to review the material and make a determination as to whether or not the defense
is entitled to it.
- Once all discovery is obtained, prepare chronological detail of all
allegations, based on all written reports and audio or video taped interviews. This serves many
purposes. It can easily identify problems in the State's case and it identifies the overall
problem for any expert that may be brought in. Obviously, any expert would want a synopsis of the
case and it is imperative to supply them with one, yet this is something that is rarely done. In
this case, this is something you can accomplish and it will be very beneficial to your attorney, if
done correctly.
Problems We Have Seen with Discovery
- In some cases we have been involved in, a Motion for Discovery was
never filed by the defense. In a case in Virginia, following a conviction, I was going through the
case documents and found a pre-sentence report where a psychologist evaluated the accused prior to
sentencing. In that document, the psychologist referred to a number of other documents and
interview transcripts they relied on, but that were not part of anything I had been provided with.
I had the young man's parents visit their son's attorney and ask where the documents were.
When he said he had never seen any of them, they asked him if he had ever filed a Motion for
Discovery. His reply, "No, to tell you the truth, we don't do that here." "The
prosecutor will let me look at anything in his file, but he would never let any of it go out of his
office." Obviously, he never reviewed any documents.
- In some cases, attorneys have said, "We do not need to file a
Motion for Discovery, or a Brady Motion, because the prosecutor has a open-door policy and we can
see whatever they have." You need to file the motion, regardless, as a matter of
record.
- In one case, a Motion for Discovery was filed months after my
client's arrest and well after their trial had already been rescheduled twice. Obviously, had
the trial not been delayed and had gone forward as scheduled, the defense would never have even
seen any discovery and, the pitiful thing was, that was not really an issue of concern to the
defense attorney.
- In one case, a Motion for Discovery was filed in a timely manner,
but when the State had not complied some 8 months later, my client had to "insist" that
his attorney file a Motion to Compel, ordering the State to provide what the defense was entitled
to. Begrudgingly, the attorney filed the Motion to Compel and was then satisfied with the 7 pages
the State turned over.
- In one case, discovery was obtained from the State a year prior to
my involvement in a case and, when it was handed to me, it was a neat packet of papers, stapled
together and not a crease in any sheet. None of the discovery had even been looked at in the year
that it sat in the attorney's file.
- In one case, discovery was obtained, consisted of only a few pages,
but referred to "prior" video taped interviews conducted with the accuser, yet none of
the tapes were ever turned over to the defense, and defense counsel did not even know that they
existed. He had not even read the few pages he received.
- In one case, video tapes of interviews were turned over to the
defense, but the audio quality was so poor, they had not been viewed or seen as important. We had
the audio enhanced, prepared a transcript and quickly determined that statements made during the
interviews were grossly inconsistent with other statements the accuser made, but they were never
used as rebuttal at the trial in which the accused was convicted.
- In one case, medical reports received by the defense, as a part of
discovery, were never properly read because the writing was so poor. When we had another physician
interpret the reports, the information was very beneficial to the defense. In one particular case,
after reading the medical report, I interviewed the physician who had actually been told by a child
accuser, during her examination, that she had never been penetrated, anally or vaginally by anyone
or anything. That certainly ended up assisting the defense, especially since the child accuser was
alleging penetration. Although that information was readily available, no one from the defense
thought it was necessary to even talk with that doctor.
- In one discovery matter, the State refused to supply
"confidential" Department of Human Service records and the matter was simply dropped and
forgotten, that is until a new attorney was retained and a Motion for an In-Camera Review was
filed. Following that motion, the Court went through the records and turned several statements over
to the defense. In one statement, the child accuser had been asked, "How was it
pointing?" referring to the accused's penis. The child responded, "It was always
pointing down." In other words, the accused's penis was never erect and that alone all but
destroyed the allegations.
- In another case, as a part of discovery, the State turned over a
DNA report that identified the accused's sperm on the child accuser's clothing. An open and
shut case, so the defense quickly recommended a plea. Obviously, they did not have their own expert
review the State's findings, nor did they read the report in it's entirety. Yes, the
accused's DNA was found but, in small print, there was also another "unmatched" DNA
found. It did not belong to the child or the accused. The DNA was matched and it belonged to the
person who "planted" the evidence.
- In one case, when going through discovery, a Department of Human
Service document clearly stated that the child accuser had told a friend of hers that she was mad
and that she lied when she made her allegations, yet no one had even been interested enough to
interview the friend, even though the document identified her by name and address.
- In one case, discovery clearly identified that the child accuser
had made allegations of abuse against another individual, prior to making them against my client,
but no one had followed up on that information. We talked with the individual that the first
allegations were made against and with their attorney. The allegations in that case were so absurd
that when the child accuser was confronted with that information, she admitted that her current
allegations were a lie as well.
- I have seen cases where "partial" interview transcripts
were provided as a part of discovery and no one even questioned the whereabouts of the full
transcripts or tapes from which they were made. Why would any attorney accept "partial"
transcripts and not demand the full transcripts and tapes from which they were
prepared?
Discovery Analysis
- Any attorney handling a false allegation of child abuse case should
be aggressive in obtaining discovery. They should file a Motion for Discovery in a timely manner
and a Motion to Compel if the State fails to provide same. They should carefully analyze everything
they receive in an attempt to determine if the State fully complied.
- Once obtained, all discovery should be sorted and the information
used to prepare a chronological order of events. Time and again, in my cases, nothing of this
nature was even considered until I got involved.
- My initial concern is to take any and all statements that the child
accuser has made and identify them in date order, from the initial out cry through the Preliminary
Hearing and even the trial, if my client was convicted prior to my involvement. This is vital and,
a perfect example would be a case where a child testified during a Preliminary Hearing that the
accused "molested" her on 5 occasions, over a period of one month, but nothing ever came
out of his penis. She also testified that she had touched the accused's penis and it was never
wet or sticky. Approximately two months after the Preliminary Hearing, a note from the State's
forensic expert stated that the accused ejaculated in the child accuser's mouth and that he had
set her on his lap and ejaculated between her legs. That information could only have been supplied
to the forensic expert by the investigating officer, yet it was not close to anything the child
accuser had ever said, so whose story was it?
- Consider a false allegation of child abuse case as a 1000 piece
puzzle scattered over a table. You have the pieces, but nothing is together. There is no
understanding and no direction. The smart person begins with the border first, then separates other
pieces as to color, sky, grass, etc. In putting the puzzle together in that manner, it goes
together. In a false allegation case, consider the information you receive from discovery as the
border. If you do not have it, you cannot construct the border. If what you do have is not
complete, you cannot complete the border. First, assure that a Motion for Discovery was filed in a
timely manner. Second, assure that you have all the discovery you are entitled to. Third, carefully
analyze all discovery and, from that, form the "border" of the case. That border will
simply be the beginning and it will point you in the proper direction to enable you to secure the
other pieces of the puzzle. For example, discovery may provide details specific to the allegations
and, those details could easily dictate certain actions. If the child accuser claims to have
"night terrors," is depressed and can't concentrate, consider getting their school
records, reports and interviewing school teachers and school counselors. You may also consider
interviewing friends of your daughters.
The bottom line is that discovery provides you with the ability to build
the case. Without it, you are simply lost. Get it, analyze it and follow whatever lead may be provided
by it.
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.
|
