Motions and Experts to Consider
In False Allegation Cases
Provided by Allen N. Cowling
Motions and Experts to Consider
- Full Medical Evaluation of the Child - On any case where a
child is alleging any type of penetration by an accused, I would strongly recommend an independent
medical examination be conducted as soon as possible in order to safeguard the accused. I have seen
many medical examinations conducted by the State in which "findings" support abuse, but
those findings were not accurate. I have also seen cases where examinations state, "No medical
findings, but the examination is consistent with abuse." That is a play on words. The fact is,
in most cases of alleged abuse there is no supporting medical evidence, so when they say
"consistent with," what they really mean is it normally does not exist anyway. The issue
is simple; "Isn't it also consistent with non-abuse as well?" Where a medical report
alleges physical evidence, you most certainly will require a defense expert to rebut it, especially
where colposcopic photographs exist. Again, you do not know what future allegations might bring and
it is better to be safe than sorry. Say this is not done and also say that a child accuser changes
their story 6 months from now and says the accused actually stuck a finger in her, it hurt and she
was bleeding. A medical exam would prove nothing because and injury would most likely have healed.
Had you done an exam close to the time of the allegation, the hope would be that there was no
trauma.
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Psychological Evaluation of the Child
- On cases where I find that there have been multiple interviews
of children, questionable interview techniques have been used, or it appears that the child may
be being "coached" by one parent to make allegations against another, I usually
recommend that the defense attorney consider a Motion for an Independent Psychological
Evaluation.
- If you consider such a motion, you need to assure that you do
not get a biased therapist with an agenda who believes the allegations just because the child
said it happened. I would locate an "unbiased" professional who works with children
and has the ability to properly communicate with the child. If the child is currently seeing a
"validator," I would file a motion, asking that there be no further contact between
the child and the current therapist.
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When considering an expert, you want someone:
- You want them to be experienced in sexual abuse
allegations, both real and false. If they have no experience in false allegations, it is a
safe assumption that to them all abuse is real.
- You want a professional who has experience and expertise in
parental alienation issues. If they do not have that knowledge or experience they may not
believe that it is even possible for a mother to coach or lead a child into making false
allegations of sexual abuse to gain the upper hand in a custody battle.
- You want to assure that you have an expert who can deal
properly with children. If they cannot, you are wasting your time. You want an expert who
quickly establishes a relationship with a child so that the child will feel comfortable
talking about anything with them.
- You want an expert whose opinion the Court is willing to
accept. Accomplishing what you think is a perfect evaluation means nothing when a judge
refuses to listen to the expert's opinion.
- Finding the proper evaluator is not an easy task, but when
asking the Court to consider this evaluation, you should be prepared to provide at least three
potential names for consideration.
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Several jurisdictions give the trial judge discretion to order a
victim to submit to a psychological evaluation when the defendant can show compelling need
for such an evaluation. The trial court's denial or grant of the defendant's request
is then reversed only if the trial judge abused his discretion. Pickens v. State, 675 P.2d
665 (Alaska App. 1984); Koerschner v. State, 13 P.3d 451 (Nev. 2000); State v. Michaels, 642
A.2d 1372 (N. J. 1994) [5] ; Forbes v. State, 559 S.W.2d 318 (Tenn. 1977); State v. Delaney,
417 S.E.2d 903 (W. Va. 1992). In Delaney, the West Virginia Supreme Court adopted the
following guidelines for the trial judge to employ in balancing the defendant's need for
the examination against the victim's right to privacy: In order for a trial court to
determine whether to grant a party's request for additional physical or psychological
examinations, the requesting party must present the judge with evidence he has a compelling
need or reason for the additional physical or psychological examinations. In making the
determination, the judge should consider:
- The nature of the examination requested and the
intrusiveness inherent in that examination;
- The victim's age;
- The resulting physical and/or emotional effects of the
examination on the victim;
- The probative value of the examination to the issue before
the Court;
- The remoteness in time of the examination to the alleged
criminal act; and
- The evidence already available for the defendant's
use.
- Delaney, 417 S.E.2d at 907. In Delaney, the trial judge denied
the defendant's request for a psychological examination of the victims (three small girls).
The Delaney court affirmed because the defendant failed to present "any reason, compelling
or otherwise, to justify the examination," although the court indicated "in many
cases with similar circumstances, the trial court would be justified in allowing the
examination." Id. at 908. The defendant simply did not meet his burden of setting forth a
compelling need.
- Other courts have taken the position that compelling a victim
to submit to a psychological examination violates the public policy designed to protect the
victim's right to privacy and to prevent further trauma to the victim. People v. Espinoza,
95 Cal. App. 4th 1287 (Cal. App. 2002); [6] State v. Horn, 446 S.E.2d 52 (N.C. 1994). The North
Carolina Supreme Court considered many of the same factors as the Delaney court, including the
conflicting interests of the defendant and victim, before concluding "‘the possible
benefits to an innocent defendant, flowing from such a court ordered examination of the
witness, are outweighed by the resulting invasion of the witness' right to privacy and the
danger to the public interest from discouraging victims of crime to report such
offenses.'" Horn, 446 S.E.2d at 452 (quoting State v. Looney, 240 S.E.2d 612, 627
(1978)). The court commented further, "in balancing the rights of the victim and the
defendant, ‘zealous concern for the accused is not justification for a grueling and
harassing trial of the victim.'" Id.
- See http://www.ipt-forensics.com/journal/volume1/j1_2_3.htm if
considering filing a Motion for Evaluation. (Copy and paste link into browser). Ralph
Underwager, Ph.D., who prepared that information is deceased, but the data is excellent for
forming a proper motion.
- Motion to Require all Investigative Contact with the Child
Videotaped - Rarely done, but an excellent motion in any false allegation case. There really is
no reason not to video, or at the very least, audio tape interviews between a child accuser and
social service workers, law enforcement and/or therapists. Most probably the main reason for not
doing so is the fear that the interview protocol may actually damage the State's case. A child
that is making a false allegation is usually unable to provide detail to events that never took
place, therefore, their story has a tendency to change drastically from interview to interview.
Obviously, having a word-for-word account of each interview would most probably assist the defense
greatly, so this motion should be carefully considered. In reality, taping an interview will not
present a problem to a professional, who has nothing to hide.
Experts to Consider
- Interview Protocol Experts. On any false allegation of child sexual
abuse case that gets out-of-hand and becomes a criminal issue, depend on the fact that the child
will, most probably, have undergone multiple interviews and, in many cases, those interviews are
filled with leading and suggestive questioning. When you are fortunate enough to have audio or
video tapes of those interviews, it is very beneficial to have an expert view them, especially for
protocol. One of the best books available today is titled "Jeopardy in the Courtroom," by
Ceci and Bruck and published by the American Psychological Association. It is the
"authority," based on current research, of a child's testimony and memory, and deals
with the issues of multiple interviews and leading and suggestive questioning. The problem with
those issues is that, many times, it is not possible to determine if a child is giving an account
of events that really happened or if their allegations are based on what they learned during the
interview process. A proper expert will be well aware of the current literature and studies as they
apply to interview techniques. As a perfect example of the importance of this issue; I was retained
by the family of a man who was scheduled for a criminal trial a week after I got involved. In
reviewing all prior interviews, I learned that the allegations surfaced at a
"sleep-over." The child accuser told other children, "Pawpaw touched me down
there." One of the older girls responded, "You mean under your clothes?" to which
the accuser said, "Yes." She was then asked, "You mean under your underwear?"
to which the accuser said, "Yes." Now, in both cases, the accuser only "agreed"
with what was said, she did not personally make the allegation and there was plenty of
documentation to support that, but it got worse. The accused was being charged with
"penetration." Amazingly, as I viewed the interview tapes, I discovered that the child
accuser "never" said she was penetrated, she simply "agreed" that it happened
when it was brought up by her interviewer. Thankfully, the attorney who represented the accused was
replaced, a "taint" hearing was granted that delayed the trial and a proper defense was
prepared.
- Expert to Rebut State Appointed Psychologist. Frequently, in a
child sexual abuse allegation case, the State will retain a psychologist to "treat" or
examine the child and then offer "expert" testimony. In one of the worst cases I have
seen, after a child recanted her allegations and told the jury that she had never been molested,
the State's psychologist testified that the child matched the profile of a sexually molested
child, was telling the truth when she said she had been molested and was lying when she recanted.
That testimony was given without objection by the defense. First, there is no "profile"
of a molested child recognized by the overall scientific community and, for that reason alone, that
testimony would have been reversible error if the defense had objected and the Court had overruled
that objection. Far too many times, psychologists give testimony well outside the scope of their
authority, so the defense needs to be prepared to deal with it. The following are but a few of the
Ethical Principles and Code of Conduct of the American Psychological Association, and I am
including these because an accusing child may be referred to or seeing a same therapist. So many of
the "experts" the State uses are simply "validators." They have a pre-conceived
idea that the child was molested and they want to help her get through her ordeal, including
assisting her with her potential testimony and "expanding" details in her
story.
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Psychologists recognize the boundaries of their particular
competencies and the limitations of their expertise.
- Psychologists maintain knowledge of relevant scientific and
professional information related to the services they render, and they recognize the need for
ongoing education.
- Psychologists who engage in assessment, therapy, teaching,
research, organizational consulting, or other professional activities maintain a reasonable
level of awareness of current scientific and professional information in their fields of
activity, and undertake ongoing efforts to maintain competence in the skills they
use.
- Psychologists avoid improper and potentially harmful dual
relationships.
- Psychologists appropriately document their professional and
scientific work in order to facilitate provision of services later by them or by other
professionals to ensure accountability, and to meet other requirements of institutions or the
law.
- When psychologists have reason to believe that records of their
professional services will be used in legal proceedings involving recipients of or participants
in their work, they have a responsibility to create and maintain documentation in the kind of
detail and quality that would be consistent with reasonable scrutiny and in adjudicative
forum.
- Psychologists do not make public statements that are false,
deceptive, misleading, or fraudulent, either because of what they state, convey, or suggest or
because of what they omit, concerning their research, practice, or other work activities or
those of persons or organizations with which they are affiliated.
- Psychologists' forensic assessments, recommendations, and
reports are based on information and techniques (including personal interviews of the
individual, when appropriate) sufficient to provide substantiation for their
findings.
- In forensic testimony and reports, psychologists testify
truthfully, honestly and candidly and, consistent with applicable legal procedures, describe
fairly the basis for their testimony or conclusions.
- Psychologist have an obligation to be familiar with this Ethics
Code, other applicable ethics codes, and their application to psychologists' work. Lack of
awareness or misunderstanding of an ethical standard is not itself a defense to a charge of
unethical conduct.
- Experts to Examine State Reports. If the State had a colposcopic
examination completed on the child accuser, assure that photos are provided as a part of discovery
and have an expert review those photographs. If the State had any DNA testing done, assure that you
have your own expert evaluate the State's findings.
- Expert to Rebut State's Experts. Determine who the State's
experts will be, what testimony they will provide and then have a defense expert ready for
rebuttal.
- Expert to Rebut Department of Social Services Investigation. It is
always good to have someone who can define and rebut a DSS investigation as to findings and
protocol.
Medical Examinations
- Has the accusing child been medically examined and, if so, what
were the results and what reports are available?
- Based on the allegations, was a medical examination appropriate
and, if so, was one actually conducted? If not, why not?
- Do medical reports identify, "No trauma, but consistent with
abuse?"
- Do the reports identify "trauma" and, if so, was there a
colposcopic examination and were photographs taken? If so, assure that a defense expert examines
those photographs.
- Was the examining physician personally interviewed? I have been
involved in cases where the examining physician has provided far more useful information verbally
than they ever put into their report.
Medical Expert
- Consistent with Abuse. In many criminal cases, it is not uncommon
for the State to put on a medical witness who may testify that "the exam was normal, but
consistent with abuse." That quickly misleads a jury. The fact is, in about 98 % of child
abuse cases, there is no medical supporting evidence so, in that light, a lack of finding is
"consistent" with abuse, or what they normally see. You need someone capable of
explaining that to a jury.
- What is Normal with the Vagina and Rectum. You may also require a
medical expert who has the ability to testify as to what is normal and abnormal in a vaginal or
rectal examination, depending of the State's findings. I have seen the State, in some cases,
have a medical expert testify that a certain "mark" seen in the vaginal area was
consistent with sexual abuse and/or penetration, when that was not the case at all. The worst case
I have ever seen was a State appointed medical doctor who conducted an examination of a child
accuser who was alleging penile penetration by an adult male, repeatedly. The problem was, that
child, even by the State's own expert's admission, had an "intact" hymen. When
asked to explain that, the State's expert told the jury that her exam was exactly what she
would expect to find with a child who gave the history she had received and that a hymen can regrow
or repair itself. That testimony was absolutely absurd, but it was unexpected and the defense
attorney was unable to combat it. The more questions he asked, the deeper the doctor was able to
dig in, making her case. The inability to handle the problem properly was simply a lack of
preparation.
Miscellaneous Motions to Consider
- Motion for Pre-Trial Hearing to Determine Reliability of
Complaining Witness' Testimony
- Motion to Determine Admissibility of Complainants
Testimony
- Motion for Autopsy of Minor Child to Include Specific Procedures;
Autopsy to be Videotaped
- Defendant's Request for Notice of Evidence Intended for Use in
Case in Chief
- Defendant's Proposed Jury Instruction Relating to Closed
Circuit Testimony of Child Witness
- Motion to Compel Co-Defendant Statements
- Motion to Determine Competency of Complaining Witness
- Motion to Suppress Confession
- Motion to Compel Disclosure of Evidence to States Attorney by State
Agents
- Motion for Production of All Relevant Police Reports
- Request for Discovery With Memorandum
- Motion to Exclude Use of Anatomically Detailed Dolls
- Motion to take Deposition of Dr. _______, a Defense
Witness
- Motion for Exparte Hearing and Determination for Court Approved
Appropriations for Fees and Expenses of Experts and Investigators
- Motion in Limine Limiting the Number of Photographs of the Victim
to be Shown to the Jury
- Motion in Limine to Exclude any Testimony of the Physician Other
Than the Specific Physical Findings
- Motion in Limine to Prohibit Any Display of Evidentiary Exhibits
Until Proffered
- Motion to Prohibit the Filming, Photographing or Videotaping of
Defendant While He is in the Courtroom
- Motion to Disqualify Counsel and Appoint Special
Prosecutor
- Motion Directing a Complete Copy of the State's File Be Turned
Over to the Court for Review and Sealed for Appellate Record
- Motion to Sever Counts
- Motion to Suppress Defendant's Statement
- Motion for Disclosure of Witness' Statements Prior to
Trial
- Motion for Defense Expert to Interview Complaining Witness or, in
the Alternative, be Present in Court During the Complaining Witness' Testimony
- Motion in Limine for Admissibility of Defense Expert
- Motion for Release of Grand Jury Testimony
- Motion in Limine to Exclude Any Uncorroborated & Unrecorded
Hearsay Statements of the Complainant and/or any State Witness
- Motion in Limine Regarding Testimony Presented to the
Jury
- Motion for Jury Questionnaire With Memorandum and Proposed
Questionnaire
- Motion for Deposition of Complainant
- Motion to Exclude Testimony of Sexual Conduct
- Motion to Exclude Admissions of Masturbation and X-Rated
Tapes
- Motion for Independent Medical Examination of the Complaining
Witness
- Response in Opposition to Closed Circuit Television
Testimony
- Motion to Require Prosecutor to Give Notice of Intent to Use
"Bad Acts" Testimony Pursuant to Evid. Rule 404(b) and Motion in Limine to Determine
Admissibility of Said Evidence
- Request for Pretrial Discovery
- Motion for Bill of Particulars
- Motion in Limine Regarding Shaken Baby Syndrome
Testimony
- Motion to Preserve and Produce Rough Notes
- Motion to Produce Documents Used to Prepare Witness
- Motion to Compel Complainant to Submit to Mental
Examination
- Motion for Independent Psychological Examination of Complaining
Witness
- Motion in Limine for the Admissibility of Prior Findings and
Allegations of Sexual Abuse Defendant's Former Wife
- Motion to Suppress
- Motion to Compel Law Enforcement Officers to Turn Over and Advise
the State of all Information Acquired During the State's Investigation
- Motion to Compel State's Attorney to Investigate and
Disclose
- Motion for Supplemental Discovery Request
- Motion to Suppress With Memorandum
- Motion to Dismiss for Selective Prosecution
- Motion Ordering Video Taping of all Complaining Witness'
Interviews and Statements
- Motion to Exclude Use of Prejudicial Terms
- Motion in Limine Excluding Any Hearsay Statements Made by
Complainant as She/He had a Motive to Fabricate or Lie with Supporting Memorandum
- Motion to Set Reasonable Bond
- Motion to Exclude Video Testimony and Affix Standards
- Motion for Admissibility of the Penile Plethysmograph or Abel
Assessment
- Motion for Emergency Hearing Regarding Child Abuse By Foster
Parents to Complainant in the Present Matter
- Motion for Resume's for Each and Every Professional Who
Interviewed or Questioned Each Complainant/Child Witness and Protocols Relied Upon
- Motion for the Admissibility of Evid. Rule 404(b) Testimony of the
Complainant
- Motion in Limine to Exclude Any Witness From Mentioning Any
Indicators Allegedly Observed and/or Described Concerning the Complainant in this Cause
- Motion in Limine to Exclude any Mention of Behavioral Changes or
Indicators of Complainant As Indicative of Sexual Abuse by MHP
- Motion to Elect (Multiple counts with similar import)
- Motion for Production of Exculpatory Evidence
- Motion in Limine to Exclude any Testimony From Suicide Hot-Line As
Being Indicative of Child Molestation
- Motion in Limine Excluding Any Mention by Complainant's Parents
Regarding Any Type of Behavioral Indicators and/or Changes as Relevant to Any Elements of the
Allegations
- Motion in Limine Excluding any Mention of Performances/Behaviors in
School by Complainant as Relevant to any Elements of the Charges Against Defendant
- Motion to Dismiss on Grounds of Prosecutorial
Misconduct
- Motion in Limine to Exclude any Testimony of the Examining
Physician
- Motion in Limine to Exclude any References to Polygraph
Examinations
- Notice of Defendant's Intent to use Complainant's Prior
Sexual Activity at Trial
- Motion to Modify and Delete Registration Requirements From
Sentence
- Demand for Discovery (Predator Hearing)
- Motion to Dismiss (Predator)
- Motion to Exclude (Predator)
- Brief to Dismiss and Brief for Pretrial Release
For additional information, see
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attorney's hands. A mistake could easily put you in prison for years.
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