Charged with Child Sexual Abuse - What Wins and Loses Trials

Jury Voir Dire
- Before trial begins, a jury "panel" will be brought into the courtroom. These people are the group from which the jury will be selected. I say "selected," but in reality you do not "pick" a jury. You eliminate those that you believe would be problematic, then your jury consists of those that are left.
- Before the Court, the prosecutor or the defense attorney has a chance to speak to the jury panel, the charges against the accused are read aloud and at that time, especially in a child sexual abuse case, the accused is usually considered to be guilty. Later, during questioning of the panel, members may state:
  - They will listen to all evidence before making any decision.
  - They believe the State has to prove it's case.
  - They understand the Defense does not have to prove anything.
  - They will not hold it against the accused for not testifying.
- When in reality, many are thinking:
  - The police do not make mistakes.
  - No child would lie about something so serious.
  - The prosecutor would not be bringing the case unless it happened.
- Jury Voir Dire represents the first time that both the prosecutor and the defense attorney will get to address the panel. It also represents a time that the defense attorney can educate potential members of a jury. One of the best attorneys I have ever seen would ask the entire panel, "How many of you have children?" Most would respond by raising their hands. He would then ask, "How many of you have made your child do something they did not want to do, be home before they wanted to, clean their room or eat something they did not want to, and have them yell, "Abuse," or "I am going to turn you into social services,?" to which, again, many raise their hands while laughing, but then quickly realize that kids do know how to yell abuse and it does not have to be true.
- It is critical that the defense attorney have the ability to relate to and interact with prospective members of the jury. A good defense attorney will take this opportunity to build their credibility and to attempt and actually build somewhat of a relationship with the panel.
- There are several very important aspects to Jury Voir Dire that can be critical to the defense.
  - Proper preparation and asking the proper questions.
  - The attorney's ability to relate to the panel.
  - The attorney's ability to get members of the panel to talk and express opinions.
  - Carefully monitoring the panel to determine members that could potentially be problematic.
- Again, the real key issues are
  - Relating to the panel.
  - Proper questioning.
  - Ability to interact with the panel.
  - Carefully observing the panel for individual reactions as voir dire is conducted.
  - Keeping the least problematic individuals during the selection process.
- I have seen cases where attorneys did an excellent job asking well thought-out questions, relating and interacting with the panel perfectly, then picking the worst possible jury. That can happen when no one actually paid attention to the members and their reactions during the voir dire phase. Obviously, this can be a huge mistake and result in a conviction.
The State's Case
- Law Enforcement or Social Workers
  - In some cases, the State will begin their case with either a police officer, detective or a social worker in order to give the jury a history of the "outcry" and background on the accusing child.
- Medical Experts
  - Often the State will bring an expert who conducted an examination of the accusing child. Expect these people to say whatever supports the State's case. As an example, a 13-year-old accusing child may have claimed they were digitally penetrated over a thousand times over a period of six years, but the medical evaluation was within normal limits and showed an intact hymen.
  - Expect the State's expert to testify that although there was no signs of trauma, the exam was consistent with abuse.
    - Possible Defense Questions
      - Isn't it also true that no signs of trauma is also consistent with no abuse?
      - Why would you attempt to mislead this jury by telling them, no trauma but consistent with abuse?
      - Would you explain to the jury exactly what a hymen is?
        
        Exactly where is it located?
        
        What does the hymen do?
      - Explain what are some things that could tear a hymen in a young girl.
        
        So simply riding a bicycle could tear a hymen, but you would not expect to see any damage from repeated digital penetration over a period of years?
      - How much force would it take to tear a hymen?
      - Can a hymen regrow? (prepare to rebutt the State's expert if they tell the jury that a hymen can regrow).
- Forensic Interviewers
  - Forensic interviewers are supposed to be individuals who are trained professionally to properly interview children. Most are not properly trained and are usually validators. In other words, if the child said it, it has to be true.
  - When testifying, many will explain that their training taught them to use open-ended questions, not leading or suggestive.
    - Possible Defense Questions
      - Are you familiar with the book, "Jeopardy in the Courtroom?"
      - Are you familiar with the works and studies by Doctors Ceci and Bruck?
      - Are you familiar with the current scientific literature specific to leading and suggestive questioning?
      - Are you familiar with the current scientific literature specific to multiple interviews?
      - Would you explain to the jury the danger of using leading or suggestive questioning when interviewing a child.
      - Would you explain to the jury the danger of multiple interviews when dealing with a child who has made an outcry of sexual abuse.
      - Do you know how many times this child was interviewed before they got to you?
      - What does the current scientific literature warn about allegations of child sexual abuse that are made in the middle of a divorce or custody battle?
      - Are you familiar with the term, "S.A.I.D. Syndrome?"
        
        Sexual Allegations in Divorce - You have never heard of it?
        
        You would agree that the overall medical community would not identify something as a syndrome unless it had been proven and tested?
        
        Would you agree that something that happens "rarely" would never be named a "syndrome?"
      - How many children have you interviewed?
      - Considering all the children you have interviewed professionally, how many did you later learn were false allegations?
      - Reflecting back, what differences did you see in children who were telling the truth and children who were not?
- Therapists Seeing the Accusing Child
  - On occasion, after an outcry, the accusing child will be referred to a therapist, but often the child was actually seeing a therapist when the allegation was made.
  - These therapists have normally worked with children for many years and usually they have a great deal of credibility in front of a jury. Obviously, they are there to bolster the testimony of the accusing child.
  - Normally, these therapists have a history of testifying for the State.
    - Possible Defense Questions
      - How many abused children have you seen in your practice?
      - In your practice, how many children who made an outcry of sexual abuse were not telling the truth?
      - Would you expect a child that was lying about being abused to cry?
      - Would you expect a child that is making a false allegation, and who has told their story again and again to different people, to stick to that story or admit they lied?
      - Why would a child who is making a false allegation of abuse be so credible?
      - Can you give the jury reasons why a child might lie about being sexually abused?
      - What does the current scientific literature say about multiple interviews?
      - What does the current scientific literature say about the dangers of using leading and/or suggestive questioning?
      - How many times was this child seen, interviewed or evaluated in this case, to your knowledge?
      - What does the current scientific literature say about using care when allegations of abuse are made in the middle of either a divorce or custody battle?
      - Do you believe that children making false allegations of child sexual abuse is rare?
      - Do you know what the term, S.A.I.D. Syndrome means?
      - Would you agree that the medical community is not going to identify something as a "syndrome" that has not been thoroughly researched?
      - Are you aware that while the nation's overall crime rate fell 22 percent from 2003 to 2007, reports of child abuse and neglect grew by 8 percent and confirmed cases increased 4 percent?
      - Are you aware of the 2008 statistics where only 1 million cases of abuse were confirmed out of over 3 million reported?
      - Are you aware that one-half of all Americans believe child abuse and neglect is the most important public health issue facing this country, compared to other public health issues like drug and alcohol abuse, heart disease, cancer and HIV/AIDS?
- State's Experts
  - Frequently the State will call experts to explain to the jury that anything the Defense plans to use has no credibility.
  - If the Defense plans to show that the child changed their story frequently, and over a period of time, the State's expert may say that a "delayed" outcry is normal in a child.
  - If the Defense plans to use photos and various holiday cards to show a close relationship between the accusing child and the accused, expect the State's expert to tell the jury, "Oh, that is perfectly normal." "An abused child will migrate to their abuser."
  - Dealing with symptom and characteristic testimony:
  - - There have been cases where a State's expert testified, "The accusing child matched the symptoms and characteristics of a molested child," and that testimony would easily have been considered reversible error should an appeal have been necessary. The fact is, the overall scientific community does not recognize any specific "symptom" and/or "characteristic" of a molested child or a child molester. Because some experts have gotten hammered on cross for even attempting to discuss it, many have now changed their "diagnosis" and approach to discussing PTSD, or Post Traumatic Stress Disorder. Why is that funny? When a State expert attempted to use "symptoms" as a justification for the outcry by the accusing child, their desire was to tell the jury that a molested child:
    - Becomes belligerent and irritable.
    - Fails in school.
    - Becomes depressed.
    - Wets the bed.
    - Has night "terrors." (Far more dramatic than nightmares).
  - The expert is simply attempting to bolster the credibility of the accusing child by explaining that "the child" matches the characteristics of a molested child. Now consider the "symptoms" of someone diagnosed with PTSD. They have:
  - - Sleep problems.
    - Concentration problems
    - Irritability
    - Increased startle response
    - Hypervigilance
    - Nightmares
    - Unwanted thoughts of traumatic events
    - Flashbacks
    - Avoiding triggers for traumatic memories including:
    Places
    Conversations
    Other reminders
  - In other words, the professional can now use somewhat exactly the same wording to bolster the credibility of the child accuser by discussing PTSD, as opposed to risking a mistrial or reversible error by discussing the non-existent symptoms and characteristics of a molested child or a child molester. The key for the defense is, "Who diagnosed the child?" and "What other conditions aside from being molested would cause the symptoms you are describing?"
- The Accusing Child
  - There is usually no way to determine how the testimony of an accusing child will actually come in, however, it is normal to expect to see a great deal of emotion and crying.
  - Defense attorneys use different approaches when dealing with a child on the witness stand. For example, if a child cries, some attorneys just continue to question them and some ask for an immediate recess. In asking for a recess, the message is very clear, "I have a job to do." "I am going to question the child, but I am not going to "beat them up"." Make no mistake, a jury will convict the accused if they believe the defense attorney is abusing a child.
  - As a very simple example of how one of the best attorneys I have seen cross examined a child accuser, when the child began to cry, the defense attorney asked for an immediate recess. The message was clear to the jury, "I am not going to harass the child." Recess was granted. When the child returned to the stand, as soon as the first question was asked, she began to cry again and again the defense attorney asked for and was granted a recess. When the child returned to the witness stand, she began to cry again. The defense attorney actually asked for and was granted eight recesses. That child believed that by crying she could avoid the questions she knew she was going to be asked, but after 8 recesses, the judge, the jury,the prosecutor and everyone else knew the tears the child was shedding was an act. When she returned to the stand after her 8 recesses, it was very clear that someone told her not to do it again because she was angry, frustrated and defensive. When questioned, suddenly her testimony became, "He made me take a shower with him every day for 3 years, and he made me "milk the cow" every time I was in the shower with him." That was new testimony and far more than anything she has ever said previously. The jury did not buy it and the accused was acquitted.
  - As another example, I have seen attorneys take Father's Day, Christmas or birthday cards and/or happy photos of the allegedly abused child and the accused, and have the child explain them. Many times, if the approach is careful, detailed, and thorough, the child will all but self-destruct. Yes, an argument is that an abused child had or kept a close relationship with their abuser, but to most people sitting on a jury that just does not fly.
  - The real key to cross-examination of the accusing child is a soft approach, asking for recesses when they become emotional, then thorough and detailed questions specific to all allegations, asking them to explain various inconsistencies.
- Hearsay Rule and Exceptions
  - Admissions - A mother told a social worker, "I know I hit her too hard, but I will not do it again." The social worker would be allowed to testify as to what the mother said, even though it is an out-of-court statement offered for its truth, because it was also the admission of a party. Such an admission is thought to be reliable because it was against the mother's interest to make it.
  - Excited Utterances - An out-of-court statement that is made spontaneously under extreme emotional excitement, such as a child disclosing abuse to a school counselor, may be admissible as an exception to the hearsay rule. An excited utterance is viewed as trustworthy because the speaker's excitement at the time it was made is thought to prevent them from reflecting long enough to fabricate the statement. The length of time between the event and the statement is a critical factor in determining the admissibility of such statements.
  - Regularly Kept Records - Records are hearsay because they contain second-hand information, but their contents will be considered reliable and, therefore, admissible when they are kept regularly, systematically, and routinely. The regularity of the record-keeping process by persons with a duty to supply accurate data ensures trustworthiness. The foundation for the admission of records is established by the testimony of the person who made the record or the custodian of the records. This exception may be applied to medical records, police reports, school records, and child protective service files.
The Defense's Case
- Experts to combat the State's experts
- - The following are simply examples of what the State has gotten across to a jury in prior cases:
  - - Oh no, a child that is lying about sexual abuse would not cry. They would become "flippant."
    - Oh no, a child that is lying about sexual abuse would not be able to cry appropriately for what they would be discussing. In other words, you could tell they were phony.
    - A false allegation by a child is very rare.
    - Some false allegations may be the product of a divorce, but not this one.
    - Some children who are sexually abused for years make very high grades because their excelling is their method of dealing with all the trauma of the abuse.
    - The State has done a masterful job in showing the jury that this case must be real because the accusing child cried when they said they were abused.
- Consider using experts to:
  - Explain to the jury that false allegations of abuse do happen and they can be a product of:
    - Divorce or custody and especially when a father is attempting to gain custody.
    - An angry child.
    - A child looking for attention.
  - Explain that there are many sexual abuse allegations made by children during a divorce. The S.A.I.D. Syndrome, "Sexual Allegations in Divorce," is certainly proof of that fact. The medical community would not identify something as a syndrome that happens rarely. Some State experts alleged that false allegations happen rarely.
  - Explain that there are studies that show that many of the reported claims of abuse are false allegations.
  - Explain that children do cry when they lie about things. Many will use tears in an attempt to give what they are saying credibility. To even suggest that a child lying about something as serious as being sexually abused will not cry is absurd.
  - Simply because a child cries hysterically does not mean they are telling the truth.
  - Explain that multiple interviews:
    - Should never be used.
    - That the current scientific literature clearly recommends one interview conducted by a professional who has been trained to properly interview children. The interview should be videotaped so that it can be shared with other agencies involved in the investigation to eliminate the need for additional interviews.
    - That multiple interviews can send a clear message to a child, "You did not give enough information last time."
    - Explain that every time a child is subjected to additional interviews, it serves as a teaching or coaching tool.
  - Leading and suggestive questioning by an interviewer:
    - Should be avoided, clearly covered in training.
    - The danger is that the interviewer can actually "coach" a child into making allegations.
    - As a perfect example, an interviewer stated, "He didn't touch you down there, did he?" It may never have happened, but the question could easily be answered, "Yes," Now we have an allegation of improper touching.
    - Children are smart. They can easily determine if what they are telling their interviewer has credibility or not, mainly from the reactions of the interviewer.
  - There is no question that some cases of abuse would fall into what would be known as "delayed reporting," but not all. Abused children have the ability to give a clear and detailed narrative of what they personally experienced without an interviewer having to "coax" it out of them.
  - A child cannot normally provide details to something they have not experienced, but many will try, believing that they must do so in order for their allegation to have credibility.
  - Consider an expert in protocol if there is an issue with improper interviewing of the child accuser or if the accusing child has been interviewed on multiple occasions. Expect the State to classify this as "delayed reporting," and the jury needs to understand how improper interviewing can actually result in a false allegation of abuse.
  - Consider a medical expert to rebutt the State's expert who claims that there was a normal hymenal exam even after over a thousand digital penetrations by an adult male over a period of years, or testimony that a hymen can regrow.
- Character witnesses
  - I am very sorry to say this, but normally character witnesses are a complete waste of time. A character witness is there to testify that, to their knowledge, the accused would never do what they were being accused of.
  - The fact is, Adolph Hitler could have gotten 10 people to say he was a nice guy, but we all know that is not the truth.
  - In addition, during cross examination by the State, the question is normally asked, "So you were not present on such and such a date when this was supposed to have happened, were you?", to which the answer would obviously be no. That would normally be followed by, "So you have no idea what he did or did not do to this child, do you?", to which normally the answer is no.
  - In many cases, the time it takes to put character witnesses on the stand can actually water down the defense's case.
  - It is usually better to stick to fact witnesses.
- Testimony of the Defendant
- - Most probably, one of the most important aspects of any defense in an allegation of sexual abuse trial would be the testimony of the accused.
  - I have seen cases where an accused was told not to testify or they were told if they did testify not show any emotion.
  - Consider this. When someone is accused of molesting a child, it is rare that there is any corroborating medical evidence, DNA or witnesses. It usually comes down to the child's word against that of the person they accused. In short, who has credibility and who would a jury believe.
  - During trial when the accusing child testifies, their testimony may be absurd, but they will have credibility because they are a child.
  - Usually, in order for an acquittal, the accused must testify and they must have more credibility and be more believable than the accusing child.
  - You can almost bet that the accusing child will be emotional on the witness stand and probably crying throughout their testimony. How would the accused survive if they did not testify, or if they took the stand and showed no emotion? Now every case is different and when the risk of putting the accused on the stand outweighs the good their testimony might do, then it might be best for them not to testify. An example that comes to mind would be an accused who had what appeared to be child pornography on their computer and that would come out only if they testified.
- Consider a professional to work with the accused where they understand:
- - They do not need to give the appearance that they are trying to intimidate any of the State's witnesses, especially the accusing child.
  - They do not need to react to things said from the witness stand, regardless of who said what. It is unprofessional to visibly laugh at or ridicule people and the jury would most probably react negatively to that.
  - They do not need to show any emotion during the trial.
  - They do need to show emotion when they testify.
  - - Someone with experience can prepare the accused to testify properly and with credibility. There is far more involved than simply telling the accused to tell the truth.
  - They do not need to sit and feverishly write notes to their attorney.
  - That the jury will be observing everything they do and they do not need to do anything that would or could come across in a negative manner. Simply put, a jury that dislikes an accused, for whatever reason, can easily convict. If they like or respect the accused, it is harder for them to convict.
  - The accused is simply an actor in a play. They are the star. If they give an overall good performance the audience (jury) applauds and they go home. If they give a bad performance, for whatever reason, a conviction is likely.
Closing Arguments
- Some judges will limit closing arguments to a very short time.
- The prosecution usually addresses the jury first, then the defense, and then the prosecutor is allowed to give a final summation, meaning that the last thing that the jury will hear is the prosecutor.
- Many child sexual abuse trials are won or lost in closing arguments and many times this is based on emotion or the lack of it. As an example, the first time the prosecutor addresses the jury they may stick to issues of law and show very little or no emotion. Once the defense attorney has completed their closing and the prosecutor addresses the jury for the final time, it is not surprising to see a great deal of emotion from them. After all, the Defense will have no other opportunity to address the jury, so the final words of the prosecutor can really damage the Defense. As an example, a prosecutor, showing a great deal of emotion, points to the accusing child who is sitting in the courtroom crying, and states, "If you let this Defendant go, you will have to call this child a liar." That is emotionally disturbing and very powerful, especially if that child cried when they testified. Who wants to be responsible for telling a child, who is claiming they were sexually assaulted, that they are lying?
- The Defense will need a strong, emotional, and fact based closing in order to combat the prosecutor's final remarks.
Emotions
- One of the most important aspects of the trial will be the emotions shown by the attorneys. I realize that most attorneys would not agree, but it is a fact and for a very simple reason. Normally in a trial where the accused was charged with child sexual abuse, there is more emotion because you are dealing with abuse and a child, something that touches heart strings. You can usually depend on the fact that the prosecutor will show emotion and they do it in different ways. Some show emotion throughout the trial while others methodically present their case, then get emotional during closing arguments. If a defense attorney has no emotion, and is simply going through the motions, that can easily lead to a conviction.
Recap
- Does your attorney have passion in defending you? Many attorneys just do a job and go through the motions. That may be acceptable in murder, robbery or other cases, but it is not necessarily in a case where a child has made an outcry of sexual abuse. In cases of that nature, you will normally see a great deal of passion and emotion from the prosecutor. Not seeing the same from the defense attorney can be problematic.
- Does your attorney really believe that you are innocent? Many have asked their attorney, "Do you believe I am guilty?" to which the attorney responds, "It does not matter what I believe, my job is to defend you." That is certainly an accurate statement, however, if your attorney honestly believes in you, that will come across to others and especially those sitting on a jury. If a jury does not think that the defense counsel believes that their client is really innocent, why should they?
- Does your attorney properly prepare for jury voir dire with a check list of issues and questions?
- Does your attorney observe the entire panel during jury voir dire and, based on observations, is the best jury possible selected?
- Does your attorney have the ability to interact with the jury and is your attorney credible to them?
- Does your attorney properly cross-examine the State's experts?
- Was the cross-examination of the State's experts done in such a manner that either through poor questioning or preparation it made the State's experts appear more credible?
- Has your attorney provided experts to rebutt the State's experts?
- Exactly what experts has your attorney called and what is their purpose?
- Does your attorney have a well thought-out and specific plan of exactly what they want the jury to see and hear in order to counter the State's case?
- Does your attorney have experience in cross-examining a child on the witness stand?
- Does your attorney object to you testifying and, if so, why?
- Does your attorney have compassion and do they display real emotion as they present facts during closing arguments? A defense attorney just going through the motions and doing their job may well fall short of a prosecutor who has a great deal of emotion. The prosecutor's final words are the last thing a jury hears.
For the accused, normally they get one shot. It is too late to wonder if things were done right when the jury says, "Guilty as Charged."