The Falsely Accused and Winning at Trial

There is no magic answer to the question, "How does the falsely accused win at trial?" because every case and the personality of every accused is different. The biggest mistake I see is trying to build a defense without understanding the personality of the accused. Think about it. The accused will actually carry 50% to 75% of their defense themselves when they testify and above all, they must identify with the jury. That being said, you do not build a defense and then "stick" the personality of the accused into it, but rather you build your strategy "around" the personality of the accused. That is the only way to properly prepare them for trial and for their testimony. Consider the following:

Many criminal defense attorneys will tell an accused they do not want them to testify. That may work in cases other than false allegations when a child is involved, but it will not work in a case of that nature. That case, without question, is a "she said / he said." If a young child testifies, cries, points to the accused and said they molested them, you are asking a judge or jury to call that child a liar if the accused is acquitted. That is a hard pill to swallow. Perfect example. I just had a case in Oregon. I went in, did an assessment, met with the client, explained what they were facing and how to deal with it. After I left, I found that nothing I had recommended was done, including replacing their attorney. That man's trial was scheduled for August, several months after I left. We contacted them and his wife told us he had been convicted. When the child got on the stand and started crying, it was all over. The shame is, it did not have to be "all over," and would not have been had the attorney been prepared for that. Obviously, he was not.
This brings us to our second issue, the attorney. The greatest majority of them have absolutely no idea how to successfully defend against a false allegation of abuse, but they will sure tell you they can. Consider a perfect example. In a Connecticut case, my client was accused of touching a child in an inappropriate manner. About 6 months later, a second child came forward. At that time, my client had what was considered the top criminal defense attorney in the state, but since that attorney's sole defense amounted to "take a plea," my client was forced to replace him. As I do with all my cases, I prepared a preliminary document that details the case in a short format. The client gives that document to a number of attorneys along with a letter that states, "Attached is my problem." "If you believe this is a case you could, or would like to defend, I would like to make an appointment with you so you can explain your strategy." My client passed out 125 of the packets I had prepared and then had interviews with 44 lawyers. Out of that 44 he talked with, he was told 44 different stories. The attorney we ended up retaining was the only attorney who answered the majority of my client's questions with, "I don't know." Out of all those interviews, he was the only attorney who was honest. The others were asked the same questions, but they gave answers that were not close to reality. Later in that case a third child came forward and my client ended up facing 9 felony counts from 3 accusers. Amazingly, the attorney that we retained had done only one criminal trial since he began his practice, but what a pleasure it was working with him. He had no ego, but he did have a driving desire to learn and to defend. By the time that "non-experienced" attorney finished the month and a half trial we were involved in, the jury did not give one ounce of credibility to any of the 3 accusers or their allegations. That is how a trial is won. Not with the big-dog lawyer, but with the caring, want to learn, roll up their sleeves and prepare a defense attorney such as that one was. In the past 18 years of devoting my practice to these cases only, you will note that there are only 7 attorneys throughout the country listed on the expert's page of my website. These attorneys are the cream of the crop. I have been honored to have worked with, and obviously learned from, each of them, but stop and think; 7 attorneys, out of the hundreds of cases I have worked sure identifies the fact that something is seriously wrong.
Without question, there are several things that a successful defense attorney will do at trial in these cases:
- Attack all State witnesses so they have no credibility. In a prior case, the defense attorney refused to attack any of the social workers who testified for the State. He said he wanted to wait for the State's expert before attacking their failure to adhere to proper protocol. The end result was, the judge found the social workers credible, something that played a large part in his decision to convict the accused.
- Have a proper defense expert prepared to explain issues that result in false allegations of abuse. Normally the State will present testimomy dealing with delayed disclosure, why a child usually does not disclose all at once, especially when there are inconsistent statements from the accuser, issues on grooming a child or anything that might explain problems they may have with their case. It is critical that the defense have an expert, well versed in allegations of abuse, both real and false, who has the ability to counter the State's experts.
- Cross examine the child accuser in detail about their allegations. Most children are coached before they testify, but rarely are they coached as to the specific details about the abuse itself. That is because the people "coaching" the child believe the abuse happened and that the child can explain it. A child who is making a false allegation of abuse cannot supply details to events that never happened, although they may try and that is the defense attorney's opportunity to "expose the lie."
- In a prior case, a defense attorney told the Court in opening statements that he expected the child accuser to come across credible on the witness stand. If that was the case, that would be a very serious problem for the accused. A child that is lying about being sexually molested should not be credible but, as previously stated, that is up to the defense attorney to show that through proper questioning. That does not mean "beating the child up." It does mean taking each and every allegation the child made and having the child supply absolute details for everything they claimed happened.
- During trial in a prior case, I asked the attorney to have the 7-year old child accuser demonstrate the exact position she was in when the 300 pound accused put his private in her private. The little girl got off the witness stand, walked in front of the judge, sat on the floor and leaned back at about a 45 degree angle with her legs straight out in front of her and her feet apart about 12 inches. She was then asked, "Is that the position you were in every time he put his private in your private?" and she responded, "Yes." That was physically impossible and it is also something the "coaches" failed to go over with her. She thought she needed to give an answer, but since she had no one to help her, she just guessed. She guessed wrong.
- Attack all the allegations, not just the serious ones. In a prior case, a jury found an accused not guilty of all serious charges, but they did find him guilty of "Risk of Injury to a Child." You cannot fail to deal with everything.
- One final word on attorneys. There are many out there who profess to have experience in false allegation cases, but are also quick to tell you, "Oh, it has gone too far." "There is nothing I can do now." I am always amazed when I hear that, especially considering that most cases I become involved in are in an "emergency" state when I begin. Never lose sight of the fact that, in the end, your very life hangs in the balance of your attorney's desire and ability to defend you.
Now, there are many issues with accepting a jury or a bench trial. There is no set answer. Again, it depends on the case. I have a case in Maryland now that we have opted for a bench trial. The reason is, that client is facing 25 counts based on allegations from 2 young girls. In that case, I would have a hard time trusting a jury because of the emotion. I would rather have a seasoned judge, who looks at facts not emotions, but before making that decision we had issues we needed to address. Would that judge do what was right or what was politically correct? Would that judge make his decision based strictly on the case facts and not become caught up in emotion? All of that needs to be considered along with prior cases and prior rulings they have had. Now, "the attorney" opted for a bench trial in a Phoenix case and that blew up in his face. That judge was an older man, running for re-election and the last thing he would have wanted was a headline that read, "Judge calls children liars and frees a child molester."
There really is no simple answer as to how you win. Again, each case is different. You must look at each case, determine what you have and then begin preparing a defense strategy that is ready to cover just about anything that comes at you. There is an art to preparing an accused to testify and it is far more than, "Tell the truth."
The real winning combination is a caring attorney who believes in the innocence of the accused, the accused being properly prepared and a well thought out defense strategy that is capable of dealing with whatever the State throws at them. It is far easier to lose these cases than it is to win them. These cases are usually won or lost well before they ever get to the courtroom. I have heard a number of clients ask their attorney, "Do you believe I am innocent?" and had the attorney respond, "It does not matter what I believe, I am there to defend you." Believe me, that statement is far from reality. A jury can see the passion in the defense attorney and, if there is none, many think, "If his own attorney does not believe he is innocent, why should I?"
Obviously, getting all discovery and going through it properly is a must. You can leave no stone unturned and you have to be able to change strategy quickly, sometimes by the month, week, day or even hour or minute.
You have to know what evidence can, or should come in, what will not and how to deal with what the State plans to admit. In far too many cases, the defense is blind sided because they did not ask for specific discovery or the experts they used were less than professional or were not allowed to testify. Those are issues that should be handled and "known" prior to trial.
Unfortunately, many false allegation cases are defended in much the same manner as playing Russian Roulette. You just "hope" you get a blank cylinder before pulling the trigger, but hey, you pull that trigger and have a live round, the game is over with no chance of playing again. Point is, in a defense, if you "unload" that gun, it cannot go off at all. If, prior to trial, you still have one live round, you are exposing the accused to possible conviction. Yes, it takes work to unload that gun and that will never be accomplished with a haphazard defense.
During the past several years, I have had at least 3 attorneys I have not worked with call me and thank me for my website, telling me they just had a client acquitted on allegations of abuse and that their entire defense came straight from my website. Now, compare that to the many attorneys that clients have actually printed my website and taken it to who are not interested in even glancing over it. When an attorney is either too proud or too lazy to accept help, you have a problem and a possible conviction - same as an attorney who is yelling "plea." It takes a team effort to win and no one person is any more important than anyone else on that team.

In any case I am involved in, I do not begin to even think about preparing a defense strategy until I meet personally with the client and first understand their personality. Every case and every defense is different, no two cases will ever be exactly alike and much of that is based on the fact that every client and every personality is different. The client is the defense. You first understand the personality of the accused, then you build your strategy. You do not build a generic defense strategy and then try to "fit" a client's personality to it.

One perfect example that comes to mind was a case in Ohio about 10 years ago. The client was facing 14 counts, 2 of them rape. Rape in Ohio is penetration, regardless of how slight and if you are convicted of rape in Ohio, the sentence is mandatory life with no possibility of parole.

In that case, the State first accused my client of one inappropriate act. He retained the best criminal law firm in the state. For the next month, the client and his attorney did nothing but "wait to see what they were facing before they got excited." Just a little more than a month later, he was indicted on 14 counts. The first thing his "high profile" law firm did was send my client to a sexual abuse treatment center in California at a cost of about $76,000.00 for 30 days. Why would anyone send a non-offender to a sexual abuse treatment center? Well, his attorney thought by doing so, he could get a better plea offer from the State.

A short time later, the State did offer a plea of 8 years to serve and sex registration for the rest of his life. His attorney told him that he could not win at trial and, based on that, my client considered it. That same night, my client sat up in his bed, looked at his wife and said, "Enough is enough." "I did not do this and I will not ever say I did, even if it means prison for the rest of my life." His wife agreed. At that point, another attorney and I got involved. We worked harder than anyone can imagine for about 3 months, then went through a 3-week trial where my client was acquitted on all counts.

Following his trial, as we were all standing in a parking lot, his attorney asked him and his wife, "What won this case for you?" That was somewhat of a trick question and they could not answer it. The attorney laughed and said, "I'll tell you what won it." "Your testimony won it." They smiled at each other, then the attorney said, "Now, stop and think." "Every word that came out of your mouth on that witness stand was exactly what Allen would have said had he been sitting up there." Then it hit them. I had trained them to testify, but I never told them that was what I was doing. You do not tell someone what or what not to say on a witness stand. I have found that relating interesting stories to clients as I am working with them, is by far the best method of teaching them. Those "stories" have a way of "hitting them" at the appropriate time and after 18 years of preparing clients for trial, I have found this to be a very successful method of preparation.

Now, in this case, and this is the reason I used it as an example, when I first got involved, I simply spent time with the family. I did not ask anything, I just observed them in their daily lives and routines. I recall this vividly. About 5 days after spending time with them, I returned to my hotel room and started typing on a Tuesday, about noon. I worked straight through Tuesday night, Wednesday, Wednesday night, Thursday, Thursday night and finally finished Friday morning at which time I took the "Do Not Disturb" sign off the door and took a shower, something my neighbors probably really appreciated. During my work, I ended up typing over 300 pages, then ended up shortening it down to about 50. That Friday afternoon, I took that document to the defense attorney and asked him to read it. As I sat there, I watched his eyes getting bigger and bigger. When he finished, he looked at me in amazement and said, "This is it." "This is the defense, and no one has seen it." In that particular case, my client was "more of a mother" to his children than most females. He had been divorced and raised a daughter, who was 12 at the time, on his own. If you understood that "he" was the "mother" to his children, then nothing the State was trying to imply about him to support their case was wrong, but if that issue was not carefully explained to the jury, then the State would have had them believe he was nothing less than a monster. A perfect example of a case where an innocent man would have been convicted had a defense not been prepared to match him and his personality.

Again, why is it important to understand the personality of the accused when preparing them to testify before a jury? Because that testimony can be the deciding factor as to whether they are convicted or not and it can be one of the most critical aspects of the defense.

First, remember that jury has the power to send you home or send you to prison. Most people serving on a jury are usually simple, everyday people and they tend to react and respond based on their own life experiences and their emotions. As an example, when an accused goes to trial, the first issue will be picking a jury. Now, in reality, you do pick a jury, you eliminate those you believe would be problematic and take whatever is left over. Before doing anything, the charges against the accused are read to the entire jury panel and, at that time and if those charges are allegations of child sexual abuse, normally, an accused is "guilty" right then. Rarely does anyone on a jury understand that there is no scientifically recognized symptoms or characteristics of a molested child or a child molester, so they revert to their own experiences, such as television programs they may have seen. Based on this, it is vital that any accused act appropriately in the courtroom. Acting appropriately means, sitting stone faced at the defense table and not reacting to anything, but that does not mean that is the posture to take while on the witness stand. One of the that best sources of training and education I have had since I began defending the falsely accused was interviewing people who served on a jury that convicted someone falsely accused of molesting a child. The number one answer given by most people was, "They did not testify." That is hard to believe since such a great deal goes into "The accused does not have to testify," but regardless, if a child says an accused hurt them and the accused does not testify, that can easily be an automatic conviction. Therefore, it is inexcusable when a defense attorney "automatically" tells their client they do not want them to testify.

The second response I have gotten from people who served on a jury was, "They didn't show any emotion or they did not show the right emotion." There are two things I have heard from attorneys over the years. One, "I don't want to risk putting you on the stand," and two, "If you do testify, I want your answers short, to the point and I don't want to see any emotion from you." While that may be the advice from some attorneys, it is not what I have been told repeatedly by members of a jury who have convicted people on allegations of child sexual abuse. In addition, if an accused is going to testify, there is far more preparation necessary than simply telling them, "Just tell the truth and you will be fine."

Now, how much power can the testimony of an accused carry? The perfect example is an Iowa case I had several years back. It began as a custody case. My client's ex-wife claimed he molested their 9-year old daughter. When that was proven untrue during the investigative stage, her 18-year old daughter came forward and claimed that he molested her when she was 12-years old. That case went to trial and my client was facing 3 counts and 60 years. My client's attorney and I had somewhat of a disagreement right off the bat. From the jury panel, I wanted a 14-year male social worker, a true professional, and also a pediatric's nurse who specialized in abused children. Just by their occupation, he was afraid of them. In my mind, we had done nothing wrong, had nothing to hide and I would have welcomed true professionals. Both ended up on the jury and we went forward.

I had worked for months with my client on his testimony and he was well prepared. He was prepared to take the stand on the upcoming Thursday and he was totally confident. He was "not" prepared when we ran out of witnesses Wednesday afternoon and had to put him on for about an hour. It was horrible. My client sat stiff, glared at his attorney and responded with yes/no answers in a robotic manner. Frankly, I would have killed him had their been no witnesses in the courtroom. No, I am only kidding. I did not say anything to him that afternoon because he had visitation with his children, but we did discuss it the following morning when he picked me up for trial. Well, discuss it is really not a fair statement. Better to say, my nose was not more then 6 inches from his from about 6:45 a.m. until about 8:30 a.m. I read him every riot act imaginable and did exactly what I meant to do. Scared him to death. That was called for in "that case at that time."

At 9:00 a.m., my client took the witness stand again. I had his attorney ask him, "Mr. Smith, you testified yesterday for a while, hopefully got a good night's sleep and are back again." "How are you feeling?" With tears rolling down his cheeks, he looked at the jury and said, "I am scared to death." "I am sitting here, being accused of something horrible I never did and I am scared," Of course there was an immediate objection from the State, but the jury heard it and I watched them. At that point, by their expressions, it was clear that everyone on that jury had sympathy for my client. He got to them and he did it with his heart. The tears he shed were "not" phony and "not" a ploy. The jury knew that. He testified for 4 hours and did the most brilliant job imaginable. When he got off the stand, they did closing arguments, the judge gave the jury instructions and we went across the street for a late lunch. We ordered and had not gotten our food when the phone rang and we were told the jury was coming back in. Most were in a panic. A jury that was out only 15 minutes must have found him guilty. They did not have time to even discuss the case. We returned to the courthouse. The jury was brought in and they gave their verdict, "Not Guilty, on each count." I remember hugging my client until we about squeezed the life out of each other. Amazingly, the foreman of the jury was the 14-year male social worker. Equally amazing, when the judge dismissed the jury, instead of leaving through the door they normally did, they filed by the defense table. They either shook his hand, hugged him or apologized to him for having been put through what he had been. 4 members of that jury remained behind, including the foreman, demanding a meeting with the prosecutor to ask why she had wasted the tax payer's dollars bringing such a ridiculous case to trial. Now, who accomplished all of that? Me? Not on your life. The attorney? No. The accused did through his own testimony and his actions while in that courtroom. That is how powerful the testimony of an accused can be and that is the reason they should be well prepared before they ever walk into a courtroom.

Fear and testimony. Fear can have a great deal to do with your testimony. In the above example, in my client's mind, as I said previously, he was prepared to testify on Thursday, he was "ready" to testify on Thursday, he was "psyched up" to testify on Thursday. He was "not" ready when we had to put him up Wednesday. He let a change of plans take him completely off his game plan and when he got on the stand that Wednesday, it was like he had forgotten everything he had been taught. You must be prepared mentally for changes at the last minute and believe me, in a trial, changes take place often.

Again, the key is the personality of the accused and knowing and understanding exactly how they will react and respond under pressure. There is no question that the right attorney, who has the expertise to question a child properly, who has gotten all possible discovery and who has planned out a good defense is critical, but in the end, the accused is the star. Consider it a play and the accused is the sole actor. If they give a good performance, they are applauded and they go home. A bad performance that results in boos, also results in possible conviction. The best possible advice I can give anyone is, speak from the heart, talk to the jury and do not be afraid to show true emotions, fear, anger, hurt, etc., but make absolutely sure that the emotions shown are true emotions and not something manufactured to meet a need. A jury can see through a phony very quickly.

I am often asked, "What do I tell someone who is going to testify?" I tell them:

Can the falsely accused win at trial? Absolutely, but it will take a great deal of effort and caring on everyone's part.