In many cases where we represent a client that has been accused of sexual abuse, as a part of our strategy in building their defense, we recommend that they complete a polygraph examination and a battery of psychological tests which include sexual interest, depression inventory, Wender Utah Rating Scale, sexual addiction screen, Minnesota Multiphasic Personality Inventory-2 (MMPI-2), PDQ-4, sexual behavior assessment and reaction time assessment.

It is important to understand that none of the testing we recommend is for the purpose of proving or disproving the client's guilt. We are not asking them to take the tests so that we can decide whether they "did it" or not. The fact is, we would not consider testing any client whose innocence we questioned. It is extremely unlikely that anyone who molested a child could pass these tests and, obviously, in order for the tests to be beneficial, our client must successfully complete all of them.

Our desire is to obtain a report, following an evaluation that states, "We find no evidence and have no reason to believe that this person has any sexual interest in a minor child and have found no evidence suggesting any type sexual deviate behavior." Keep in mind, no expert or examiner can ever offer testimony that addresses the ultimate issue, guilty or innocent.

To many, these tests are very controversial. I have seen many attorneys tell their client that these tests are not beneficial and the examiners would not be admitted as experts and be allowed to testify regarding the results. That statement is absolutely correct in many instances. Most courts, applying the Daubert standard, have excluded the tests based upon scientific unreliability. Simply put, the test failed to qualify under Daubert's scientific validity prong. These tests, although accepted as being useful in the treatment of sex offenders, are not accepted as "proof of innocence" because they have no accepted standards in the scientific community as valid diagnostic tools.

There are, however, attorneys who have gotten the results in by qualifying the examiner as an expert in behavioral sciences without divulging the tests and then, during their testimony, asks, "Have you had an opportunity to work closely with the accused?" "What exactly is your evaluation designed to show and what tests were used in your evaluation?"  "What were the results of your evaluation?" again, keeping in  mind that the opinion cannot speak directly to guilt or innocence. There are ways to get the points across to the jury and keep in mind, as far as a jury is concerned, any examination that shows an accused is not a pedophile and has no sexual interest in a child is certainly beneficial if the Court allows that testimony.

As to the tests themselves, any similarity between us and others who use these tests to defend the falsely accused usually ends at the completion of testing, strictly because of "what is done with the test results." It appears to be normal procedure to "loudly" broadcast the results to the court, the prosecution or other side in a civil case as a means of proving the accused's innocence. Rarely does that accomplish anything. Why would anyone accept, at face value, the results of a test the "accused" took, by an examiner of "the accused's choosing" as proof of "the accused's" innocence? Would the defense in a case of this nature accept, at face value, test results from an accuser, supporting the guilt of the accused? Absolutely not.

Our overall goal, when defending anyone falsely accused, is to do whatever is in our power to have any allegations being made against them dismissed as unfounded well prior to a trial or even indictment, and there is where careful planning and strategy come in. In short, the overall testing program we recommend is far more detailed and in-depth than any test "the other side" may request and for that reason, we want it in our client's heads, "we took the roughest there was available and passed, so bring on anything you want and I'll pass it too." Psychological, but very powerful.

For our clients, when all testing has been successfully completed, we advise them to say nothing to anyone regarding the results. We find a method of approaching the "other side" and offering to submit to a polygraph examination or any other testing they desire in order to "prove" the accused's innocence. If accepted, the accused submits to their test/tests with the knowledge and confidence that they have a "powerful" tool in their arsenal; the results of the examinations they have already taken. If they pass the tests requested by the other side, fantastic. If not, then the results of the initial tests are revealed and the question is asked, "How is it that the accused successfully completed a full battery of psychological testing and a polygraph examination, yet failed your test?"

As a perfect example, I have client in Chicago who had been repeatedly accused by his wife of sexually molesting their two daughters. Following our initial involvement, not only were all allegations of abuse discredited and unfounded, the client was actually awarded temporary custody of the very daughters he had been accused of molesting.

Once the probability of criminal prosecution was gone, only the civil aspect of the divorce and child custody remained and my concern was that his wife's attorney, in one final act of desperation, would file a motion, asking the court to order that my client submit to a psychiatric evaluation to determine if he was or was not a child molester.

My two main concerns over the possible evaluation were:

• That is perfectly normal for an evaluator to request various psychological testing as a part of their overall evaluation and there was no doubt in my mind that my client would "panic" if these tests were ordered.

• The possibility of getting an evaluator who would determine that he was a molester, regardless of what testing showed.

Based on my belief, I suggested that my client complete a battery of tests in Atlanta, Georgia. Surprisingly, he had been talking with another man, also accused of sexual abuse, who happened to be in the same judicial jurisdiction. That man had previously submitted to testing, but the court refused to accept his results. He flatly told my client that the tests were a waste of time, effort and money and would not be beneficial to him at all. I simply told my client he needed to determine who he was going to listen to.

He chose to follow my advice and did complete a two day battery of testing, including a polygraph, in Atlanta, Georgia, along with a complete psychological evaluation by Dr. Gene Abel, all of which he passed successfully. When that testing was complete, the report was sent to me, not to my client, and I instructed my client not to mention his testing to anyone at that point.

As expected, a month after my client successfully completed his testing, his wife, through her attorney, filed their motion and the court did order that my client submit to an evaluation. When my client, as instructed, contacted the psychiatrist's office to schedule an appointment, he was told that as a part of the evaluation, they required him to submit to a "penile plethysmograph," "polygraph examination" and an "Abel Screening Assessment."

Just prior to his being tested, at a hearing regarding another matter, the judge asked about the progress of the testing and the matter was brought up that the evaluator required a polygraph. The judge stated, "we do not even require murderers to submit to such testing," so the polygraph, requested by the evaluator, was canceled.

My client then completed all testing the evaluator required of him, after which he was interviewed. His wife's evaluator said, "You seem like a decent man, but I have two tests in my back pocket that tell me you are a liar and a child molester." Not only did he make that statement, but he put it into writing and even went so far as to say that it was unfortunate that "he," my client, manipulated the system and got out of the polygraph. The evaluator stated that he was positive that a polygraph examination would have shown him for what he was.

Just after the evaluation report was completed, I instructed my client to give a copy of his Abel Assessment to his attorney, something that had not been done at that point. Although it was not my desire to withhold anything from his attorney, I was concerned about how my client's testing would be accepted and/or used in his defense. The best procedure would have been for his attorney not to identify the report, even in discovery, hold it for trial and use it as rebuttal. You are not required to expose evidence pretrial that you use as rebuttal, or to show that a witness is lying during their testimony. I knew that the wife's evaluator/psychiatrist would testify that, in his expert opinion, and based on the results of testing my client completed, that he, my client, was a child molester and had molested his own children. Once he did, my client's attorney could ask him, "Doctor, isn't it true that one of the tests you used in your evaluation was the Abel test?" When the response was yes, he could hand him the report of the testing my client took personally from Dr. Abel and ask him to explain why his determination was so different.

When the results were presented to my client's attorney, his immediate reaction was a desire to immediately present the report directly to the court. My client prevented that, but agreed that it could be given to the other side as discovery, but only after my wife's evaluator had given them his written report. Once the evaluator's report was received, the wife's attorney was given my client's report from Dr. Abel. Needless to say, he was more than a little upset.

During trial, surprisingly, during a break at trial, and just prior to the wife's evaluator testifying, he met my client in a hallway and said, "He had rewritten his report, changed his opinion, based on the Abel report he had seen and was confident that my client was telling the truth and had not molested his daughters." I'll never forget my client's words. "Thank God I took the tests with Dr. Abel." "They gave me the confidence to get through those others and thank God I had something to back me up when they claimed I molested my daughters." He was absolutely correct. Had it not been for those tests my client personally took, at my suggestion, his wife's evaluator would have tried to and easily could have destroyed him.

The final result of that case, which began in February, 1999 and ended in February, 2001, was well worth every effort we applied. He was awarded full custody of his daughters and the marital home. The wife was given 4 hours, supervised visitation with her daughters a week and ordered to pay $44,000.00 of my client's legal fees. She was also warned that if she continued any attempt to "plant" the idea into either of her daughter's minds that their father had molested them, she would lose any and all rights to see them. This client's entire ordeal, in his own words, can be viewed here, Success Story

In that case, the very testing that someone told my client was no good, could not be used and was a waste of time effort and money, in fact, saved his life. I certainly cannot be responsible for the manner in which others use their testing, but ours is recommended and used in an overall defense strategy. I have yet to see one case I have been involved in where the testing we used was not beneficial.

The Abel Assessment has been used over 200,000 times in this country and as met Daubert standards in some states. In Louisiana, a psychologist conducted an evaluation to determine if a defendant had sexual interest in underage females. The evaluation included testing the defendant on the Abel Assessment for sexual interest (Abel). The psychologist concluded that the defendant did not have sexual interest in underage girls. The prosecution entered a motion to exclude the testimony of the psychologist on the grounds that the Abel would not be admissible under the Daubert ruling (Daubert v. Merrell Dow Pharmaceutical, Inc.). The Supreme Court set out four factors a district court is to consider when determining if a scientific methodology meets the Daubert Standard:

• Whether the theory or technique has been tested;

• Whether the theory or technique has been subjected to peer review and publication;

• The known or potential rate of error of the method used and the existence and maintenance of standards controlling the technique's operation; and

• Whether the theory or method has been generally accepted by the scientific community.

The District Court ruled that the Abel Assessment for sexual interest met all of the factors, and the testimony of the psychologist was admissible as evidence. U.S. District Court, Western District of Louisiana, Criminal Action No. 99-20063-01, Judge Tucker L. Melancon. The date of the Ruling and Order was April 17, 2000.

In Texas, a prior client, being investigated by the Department of Human Services with regards to an allegation of child sexual abuse, was asked by the department's investigator to submit to an Abel Screening, to be conducted by an examiner who "contracts" with them for said testing in Texas.

In Ohio, the Abel Screen has been admitted on several occasions in the Cleveland area.

These battery of tests can be an invaluable part of a defense or a complete waste of time, effort and money, depending on the manner in which they are used. We use them primarily as a "confidence builder" for our client, arming them with the knowledge that they can then pass anything thrown at them and, as a means of rebuttal in the event the client "fails" any exam the "other side" may request. Win by beating them at their own game and that is not accomplished by "shouting" results of a test "you" took with an examiner of "your" choosing. For additional information, see Abel Psychological Testing

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