While there are many pretrial issues a defense attorney must contend with, such as discovery, pretrial motions, retaining experts and overall defense strategy, there are usually several vital areas where experience and expertise during trial are vital when defending a client falsely accused and several pretrial decisions as to the use of certain tools.

Pretrial Considerations

• The Jury View - As I have stated several times in other documents on this website, I have had the pleasure of working with attorneys who do specialize in defending false allegations and one of the most effective tools I have ever seen used is what is termed a "jury view."  Unfortunately, this technique is seldom used or even discussed by an inexperienced attorney. A jury view requires a motion, asking the court to allow the jury to be transported to a certain location during trial, in order to visually see a specific area.  As a perfect example, in a prior case, a child accuser stated that her step-father sexually molested her in the shower, but also claimed that the bathroom door was standing wide open and that her mother and step-sister were in a room, just "down the hall."  In that case, the jury had the opportunity to visually see what just "down the hall" meant and no picture or explanation could have explained it better. The mother and step-daughter were seated at a desk, in a room just "across" from the bathroom, and each had a clear and unobstructed view of everything that had taken place in that bathroom. During trial, when testimony was presented as to where each individual was during the alleged abuse, the jury quickly determined the allegation was false and the defendant was acquitted. The old saying that a picture is worth a thousand words is correct, but many times a photograph, video or explanation of an area will not come close to honestly defining a layout as clearly as having the ability to view it first-hand.

• The Use of Visual Aids - In many false allegations of sexual abuse, a child accuser begins with an allegation that changes drastically from interview to interview and, where the initial charge was one specific incident, the defendant can easily find themselves facing 15 separate indictments. Most authority figures, detective or social worker, who interview a child accuser usually have no clue as to the proper procedures for conducting such an interview and, as a result, it is not uncommon for an inexperienced interviewer to even question the validity of a child's story. It is also not uncommon for the interviewer to treat the child as a "victim" as opposed to what they really are, a "complainant." If the interviewer treats the child as a victim, they usually show sympathy for the child, something very visual that the child can read as, "I am telling a good story and my interviewer believes me." Never fail to realize that a false allegation is a lie. When a child tells that lie to their interviewer and that interviewer has a "sad" look, or possibly makes statements, "Oh, you poor thing," they just told the child the "lie" was believed. That indicates to the child that they are doing fine and soon, they begin to expand their story, especially since they are doing so well and everything they say is accepted at face value. This type of interview actually tells the child it is okay to lie and further, that they are telling a "good" story. Further, since a child who is telling a lie about being abused will want to please their interviewer, they usually respond appropriately to leading and suggestive questions. As a perfect example. If the child accuser alleges that they were sexually molested by a male, the interviewer might be interested in whether or not the accused actually reached a climax or had an orgasm. The improper way to ask the child would be, "Did anything come out of the end of his penis?" That is leading, suggestive and provides the child with a potential response. The proper question should have been, "Did anything strange happen to his penis?" There was no possible response provided and a child normally cannot provide details where there are none. Now, the problem with the lie is, it will change from interview to interview and most child accusers are interviewed on multiple occasions. That can easily be a blessing to the falsely accused. As an example, during a child's first interview, they say the accused touched them on top of their clothing.  In their second interview, the accused put his hand inside of their pants. In the third interview, the accused took his clothes off and had sex with her. In the fourth interview, the accused raped her more than 100 times and, then during testimony at a preliminary hearing, the child claims the accused penetrated her rectum and vagina with his finger and his penis. Here, a visual aid can be imperative to the defendant. Each statement the child made, from the beginning, should be carefully examined and clearly identified in a "flow chart" that can be enlarged and placed before the jury. This is most effectively used during cross examination of the child accuser and also, during closing arguments. There is a big difference in trying to explain a breakdown of 15 individual allegations to a jury and showing them, in a chart, the inconsistencies between each allegation. Again, a valuable tool used by the experienced attorney when defending a client that was falsely accused of sexual abuse.

Jury Voir Dire

The first consideration during trial will be selecting the proper jury. Prior to trial, it will be necessary to select a jury consisting of either 6 or 12 members plus an alternate or alternates, depending on the jurisdiction. In a jury consisting of 12, usually there is one alternate selected that can assume the duties of someone on the jury panel who was excused, for whatever reason, after the trial began and prior to deliberations. That jury panel is selected from a group of people in the community who have been summoned to the courthouse for jury duty. If, as an example, there are 100 people summoned, the sitting panel must be chosen from that group so, in most states the prosecutor and defense attorney have the ability to address the entire group and ask questions in an attempt to weed out certain individuals either side may not want sitting on the final panel. Voir dire means to "inquire" or "ask," and the proper jury voir dire is vital to any defendant who has been falsely accused of child sexual abuse. One, it provides the defense attorney the opportunity to actually begin laying out the case and two, hopefully it identifies individuals who, simply because of the charges, would not be fair to the defendant. I have actually seen some attorneys accomplish more with jury voir dire than most do even with opening statements.

Jury voir dire in a false allegation of sexual abuse case is different than it would be for any other criminal case and certain issues should be addressed. As said, jury voir dire is one of the best opportunities that any defense attorney has to educate the overall jury panel and actually change their thinking somewhat. Normally, in a case of child sexual abuse, when the jury panel hears the indictment read, many will form some opinion and it is usually negative. One of the best trial attorneys I have ever worked with would always ask the entire panel, "How many of you have children?" Obviously, the response was that most did. Then he would ask, "How many of you have told your child to eat something they did not want to eat, be home at a certain time that was before they wanted to or told them to clean their rooms and had them say, you are child abusing me or I am calling social services? The entire panel usually raises their hands and laughs, but suddenly it hits them. Children do have the knowledge to make "reports" and they do not have to be true.

The following are examples of questions I have collected through various trials over the years.

Basic Questions

• Is there anyone who does not understand that this trial is going to be very emotional because it is about an allegation of child sexual abuse?

• How many of you will be upset with me or my client if I ask the child questions and they cry?

• How many of you will believe that I am picking on the child just because I ask them questions?

• How many of you will get upset if the child gets mad or angry with me when I question them?

• Will any of you hold it against my client because I have to question the child?

• Does everyone understand that, if by chance you run into my client in the hallway, or even at a restaurant during lunch, that you are not to communicate with him, in any manner, and that he is not to communicate with you? I just want you to know this so if you do bump into him and he walks away, he is not being rude. That was what he was instructed to do.

General Issues

• Is there anyone here that believes that everyone who is put on trial is automatically guilty?

• Is there anyone here that believes that just because someone was charged with a crime that they are automatically guilty?

• Does anyone believe that someone should be considered guilty until proven innocent when it comes to allegations of child sexual abuse?

• Is there anyone here who, simply because these allegations are so emotional, will not have the ability to weigh all evidence before reaching a conclusion as to the guilt or innocence of the Defendant?

• Is there anyone here who believes that the Defendant is automatically guilty since more than one child is making an allegation?

• Would you tend to give a child more credibility as a witness than any other witness, just because they are a child?

• Would you tend to give a police officer more credibility as a witness than any other witness, just because they are a police officer?

• Would you tend to give a social worker more credibility as a witness than any other witness, just because they are a social worker?

• Would you tend to give a therpapist or counselor more credibility as a witness than any other witness just because of their profession?

Overall Child Truthfulness

• Is there anyone here who believes that children do not lie?

• Is there anyone here who believes that a child will not lie about something as serious as being molested?

• Is there anyone here who does not believe that a parent or a relative could or would coach a child to lie about something as serious as being molested?

• Is there anyone here who does not believe that improper and repeated interviews of a child accuser can actually prompt that child into making a false allegation of sexual abuse?

• Is there anyone here who believes that leading and suggestive questioning of a child by an interviewer can not prompt a child into making a false allegation of sexual abuse?

• Is there anyone here that does not believe that even well meaning authority figures can unintentionally question children in a leading fashion that gets the child to give an untrue story?

• How many of you believe children can confuse or exaggerate answers when questioned by upset adults?

• Does anyone not believe that some small children tend to want to please authority figures?

• Does anyone not believe that well-meaning professionals can unintentionally lead a child to make false disclosures of sexual abuse?

Specific to the Defendant

• Is there anyone here who could not be fair and impartial to the Defendant simply because of the nature of the allegations being made against him?

• Is there anyone here who believes that since the Defendant was indicted, that he must be guilty?

• How many of you believe that since the Defendant was accused, that there must be something to the allegations?

• Is there anyone here that does not believe that a person, falsely accused of child abuse will be angry?

• Is there anyone here that does not believe that a person, falsely accused of child abuse will be scared?

• Is there anyone here that does not believe that a person, falsely accused of child abuse will be frustrated.

• Is there anyone here who does not believe that a person, false accused and forced to go through a criminal trial will not be frustrated, scared and angry?

• Is there anyone who does not understand that the State must prove their case to you and that the defense has no obligation to present any evidence?

• How many of you would like the Defendant to testify and explain his side of the story?

• Do you understand the decision for the Defendant to testify is one that I will make with the Defendant's input after hearing the evidence put on by the State?

• If I decide not to call the Defendant to the stand, do you promise not to hold that against him?

• How many of you will think the Defendant has something to hide if I choose not to call him as a witness in this matter?

• How many of you expect the Defendant to explain why the allegations came about, if they are not true?

• Do you have any thoughts on how you believe the Defendant should act and emotionally respond after being accused of child sexual abuse?

• Do you promise that you will deliberate, no matter how hard it may be, to decide this case on facts only and not on emotions?

• If the law says that the prosecution has to prove an offense touching, with sexual gratification, can you promise to hold the prosecution to proving both the offensive touching and the issue of sexual gratification beyond a reasonable doubt?

Personal Jury Issues

• Is there anyone here who has ever been personally molested, or known anyone who has?

• Is there anyone here who has ever been accused of molesting or abusing a child, or known anyone who has?

• Is there anyone here who is connected with any children's rights groups, or know anyone who is?

• Is there anyone here who works with children in any capacity as a means of employment, or ever has?

• Do you think children can talk about sexual things without understanding what they are saying?

• Have any of you ever been threatened by a child with a call to child protection services because of discipline?

• How many of you have children who have participated in child abuse prevention programs at school?

• How many of you have read articles or saw television shows on false allegations of child abuse?

• How many of you believe you can tell the difference between a fabricated or forgotten event that is suddenly disclosed?

• Is there anyone here that does not believe that someone can be falsely accused of child abuse?

• Is there anyone here that does not believe that young children will make claims of sexual abuse that are not true?

• Is there anyone here that does not believe that multiple children can unintentionally be led to believe they were molested, even if it's not true?

• Would any of you find more credibility in a child's testimony if the child is sitting with an alleged victim advocate?

• Does the fact that a child has an advocate lead you to assume that somewhere along the line some court or professional has already determined the child is a victim?

• If the prosecutor refers to any of the children as a victim, is that because the child really is a victim?

• Who believes professionals who investigate these cases are more credible than ordinary witnesses?

• Would you expect professionals who interview children to know the proper guidelines and protocols for interviewing children?

• How many of you have had training concerning children?

• How many of you have had any child development courses?

• How many of you have had any courses in child psychology?

• How many of you have had any courses in social work?

• How many of you have had any courses in law enforcement?

• Are any of you mandatory reporters?

• How many of you have an idea in your head of what you think a child molester is, how they do things and who they target?

• How many of you have been around children that you believe were abused?

• Is it appropriate to err on the side of safety, when dealing with children?

• How many of you believe that memory gets better as time goes on?

• How many of you believe it is impossible to prove something that did not happen?

• How many of you have ever had any dealings with child protective services?

There are a number of other issues to address in addition to the above, but most attorneys, who have limited or no experience defending false allegations of abuse, do not realize the power or importance of proper jury voir dire.

Opening Statements

Opening statements by a defense attorney can be one of the most powerful tools to get the jury to keep an open mind during trial and to "point" them in a direction of "looking" for evidence to support the fact that their client is innocent. Some of the best opening statements I have heard have included, "Ladies and gentlemen, all the defendant asks is that you carefully weigh all evidence before you reach any decision as to innocence or guilt." "We realize that this trial will be very emotional for everyone, especially since a child is involved, but it is our intention to prove to you that the allegations being made against this defendant are false and we will even go so far as to show you why the allegations were even made." "I would ask that you remember exactly what I am telling you now because, after all the evidence has been presented, during closing arguments, I will summarize this entire case, repeat these very words and ask that you acquit this defendant and allow them to have their life returned to them." A jury is normally made up of ordinary people and they will remember what was said in opening statements. Asking them to remember your words, telling them what you expect to prove and then telling them that you will tie it all together in closing arguments, gives them something to watch for and they will. Of course, the defendant has a serious problem if the defense attorney is not able to deliver what they promised the jury they would, but opening statements can be a very effective tool in getting a jury to think rather than get caught up in emotion only. They will also be impressed by the heart, or lack of, in the statements the defense attorney makes on the part of the defendant. Again, a jury consists of ordinary people who will quickly determine, "If the defendant's own attorney does not believe they are innocent, why should we?"

Cross Examining the Child Accuser

Improper cross examination of the child accuser can easily result in a conviction for the accused, sending them straight to prison. Many times, a jury will convict simply because they did not like the defense attorney "beating up" the child, just to get their "pervert" client off. Sounds harsh, but reality is and many times, these trials are more about emotion than proof or evidence. The defense attorney must deal with the child properly and that, in many cases, is not an easy task. A child accuser, who is lying, will have very little problem when being questioned by the prosecutor. There is really no threat to them and they can normally tell their story without being questioned on details. The problem begins on cross when they have to respond to details and, if the defense attorney is properly prepared, details they may not have been previously coached on. More often than not, when a child is put into the position of having to respond to these details, when they do not exist, they will resort to tears and in many cases they will all but shut down with responses becoming, "I don't know." The key is, showing that the child is lying without the jury feeling like the child is being abused on the witness stand. This can be a very frustrating event for many defense attorneys who have never dealt with a child accuser and sometimes so frustrating that the child actually controls the cross examination. Some attorneys simply cannot deal with the tears and the "I don't know" responses so they end their questioning with the explanation to their client, "I didn't want to make the jury mad." The key is short, easy questions and immediately asking for recess when the child starts crying. Dealing properly with a child accuser takes preparation and is not accomplished by shooting from the hip, so-to-speak.

Cross Examining the State's Experts

It is not possible to deal properly with the State's experts unless a defense attorney knows what testimony is acceptable; what is scientifically acceptable and what is garbage. For example, if a psychologist testifies for the state, is qualified as an expert, and tells the jury that the child accuser matches the profile and characteristics of a molested child and the accused matches the profile of a pedophile or a child molester, that testimony in itself, can easily convict the defendant. If the defense attorney has not dealt with that issue prior to trial, they will not be prepared and that testimony could easily come in. Objection or not, the jury would have heard it and that bell cannot be unrung. The fact is, there is no such profile, recognized by the scientific community, for either a molested child or a child molester and the testimony would only be for the purpose of attempting to influence the jury as to the defendant's guilt. A properly prepared defense attorney can easily turn a State expert into a defense witness, but only with adequate pretrial preparation.

Making a Record with Proper and Timely Objections

A defense attorney must be conscious of making a record with proper objections throughout the trial for the purposes of appeal should the jury convict the defendant. A perfect example would be the testimony of a state expert, the psychologist discussed previously, who testifies that the child accuser matches the profile of a molested child. If an objection is made by the defense attorney, the judge will either allow the testimony to stand or will "sustain" the objection and tell the jury to disregard the statement. If the judge allows the testimony, the issue would be a very strong point to address on appeal. Most jurisdictions would overturn the conviction stating, "As there is no scientifically recognized profile of a child molester, the testimony of the psychologist unfairly influenced the jury against the defendant." The sad part is, there are defense attorneys who would allow the psychologist's testimony, without objection, because they simply did not know what was acceptable and, without objection, there would be nothing for the higher court to reverse on. It is vital to make the "record" during trial.

Admitting Defense Experts

Many experts available to the defense will have no problem coming in, such as experts who testify, based on scientific study, that children can and do extort the truth, but there are others that could easily present a problem. When a defendant has been falsely accused of molesting a child, one of the tools available to prove their innocence would be testing to determine sexual preference, such as the plethysmograph or the Abel Screen. The problem is, where these tests are widely accepted in the scientific community as being valid in treatment, many jurisdictions do not accept them as a means of identifying a sexual offender and, as a result, the tests probably will not be admitted over the objection of the prosecutor. As a perfect example, many of our clients complete the entire Abel Screen. The testing is not simply for "sexual preference," but consists of a 2-day overall battery of psychological testing, including a polygraph and interviews with Dr. Abel. While the test itself may not come in, in many cases, Dr. Abel is qualified as an expert in dealing with sex offenders and "he" is admitted as a defense expert. During examination, the defense could ask, "Doctor, have you had an opportunity to work with the defendant and, if so, do you have an opinion, to a reasonable degree of medical certainty, as to whether or not this defendant has any sexual interest in a minor child?" Defending these cases is far different than defending any other criminal case and the defense attorney must have several backup plans of how they intend to use experts and have their testimony and/or reports admitted.

Direct and Re-Direct Examination of the Defendant

Many defense attorneys do not want their client to testify and, in a false allegation case, for the most part, that is one of the most serious tactical blunders imaginable. In most cases, where a defendant has been accused of molesting a child, a jury will not consider acquitting them unless they hear the defendant deny the allegations and unless they believe the defendant. The real key is in properly preparing the defendant to testify. Proper preparation goes far beyond a defense attorney telling them to "just tell the truth." They must be prepared so well that regardless of whether they are being questioned by their attorney or the prosecutor, they make no statements that indicate to the jury that they are guilty. The best procedure is to retain an expert in witness preparation, well before trial, especially since the future of the defendant could easily rest in their own testimony and, for that reason, there is no room for any mistakes. Witness preparation takes time and is vital to a proper defense.

Closing Arguments

Unfortunately for the defense in a criminal case, the last person the jury hears before they "get" the case is the prosecutor. In closing arguments, the prosecutor begins, followed by the defense attorney and then the prosecutor closes, so the final argument by the defense attorney must be powerful. The final arguments by both the prosecution and defense are the last "pleas" to the jury by the attorneys in an attempt to convince the jury of the accused's guilt or innocence and usually amount to making a summation of all evidence presented during trial. As stated previously, one of the best "tools" available to a defense attorney, especially in a false allegation case, is the use of visual aids. A large poster-board, clearly and simply breaking down the many inconsistencies in a child accuser's story, sitting before the jury during closing arguments is an invaluable tool. The jury has something solid to look at as the defense makes their argument. The use of such a diagram can easily make the difference between an acquittal and a conviction. It is always best to use visual aids whenever possible and whenever appropriate.

For addition information for the accused, see The Falsely Accused and Winning at Trial.

Synopsis

Any attorney who defends a client that has been falsely accused must have an excellent pretrial strategy and use every tool possible to prove to the jury, beyond a reasonable doubt, that their client is innocent. That strategy may include the use of experts, potential witnesses, preparing their client to testify or making a determination that a "jury view" of a specific location could assist in the overall defense, but all bases will be thoroughly covered well before entering the courtroom. Anything less amounts to a haphazard defense and risks conviction and a lengthy prison term for the accused.

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