Defending the Innocent in Child Sexual
Abuse Cases

A four or five year old takes the stand and states, "He (she) touched my pee pee."

In dozens of courtrooms across the country, this scenario is played out again and again. More often than not a judge or jury is swayed by this generally emotionless testimony--testimony that is repeated with the sincerity of a nursery rhyme or a rendition of "What I had for breakfast this morning." It is, indeed, common for a child to be unable to remember what was served for breakfast that morning, or the day before.

Nevertheless, when a child makes such an accusation it is usually presumed to be true, without question. Compare this to a situation where an adult woman makes a similar accusation against another adult. How closely is this accusation scrutinized? Is the adult woman's accusation taken as seriously? Are ulterior motives investigated and held to a higher standard? Is the accused in that case shunned by the entire community? Does the case appear on the front page the Los Angeles Times, the Chicago Tribune? Are the parents of the alleged victim on 60 Minutes? The answer, of course, is "No!".

There is no crime in America or Great Britain today that is as emotionally charged as child sexual abuse. If you start adding words such as "mass molestation" (multiple victims, multiple perpetrators) or "satanic mass molestation," you have taken this very emotionally charged subject and turned it into a nuclear legal issue.

There is no other crime charged in English-speaking countries where the accused is so generally presumed to be guilty even before any evidence is presented. Often, the accused's own family, friends and professional colleagues will turn on him or her and assume the worst.

From the moment a person is accused of this crime, it is assumed by all that there must be some truth to the allegations simply because they were made by a child. The fact is, most allegations of this nature are not originally made by the alleged child victim. They are made by parents, police officials, child advocate workers, social workers, child welfare workers, prosecutors, and other quasi-professional persons who care for, or work in, a child-care type business or environment.

This article addresses the manner in which charges of child sexual abuse are brought, investigated, and presented at trial.

Investigation of child abuse is a billion dollar a year industry in the US. In Illinois, the agency which is responsible for the investigation of child abuse has an annual budget in excess of one hundred million dollars. Entire hospitals depend on the income derived from the evaluations of children sent to their institutions.

Unlicensed therapists who were once making $10,000 a year as child advocate workers are now making $100,000 a year on the lecture circuit as satanic abuse experts. Police officers who are working in a city with a population of less than 20,000 and making an annual salary of about $24,000 declare themselves experts in ritualistic and satanic abuse. They suddenly featured in People magazine. They then propel themselves into a very special category and go on speaking tours attended by other police officers and child care "professionals." Their own departments refuse to recognize them as experts in this area, but even without benefit of formal training, education, or practical experience, they become self proclaimed experts who in all likelihood will also testify as expert witnesses in a court of law.

If you are involved in the defense of a person who has been accused of one of these crimes, you are entering into an area of law where the law, the judge's ruling, and the State's tactics are geared to convict your client. Approximately 75 percent of the time, your client will be a white male, probably a professional who earns about $50,000 a year. He will probably be self-employed, with no criminal background. He will most likely be married, with children in their late teens or older, or he may he starting a second family in a new marriage. He will think that this is a simple misunderstanding that will straighten itself out in a couple of weeks without you, and will have faith in the police department and the justice system.

His education about real life starts from the moment he enters your door. You will tell him that everything he thinks he knows about the law and these types of investigations are not what they seem. He will be most familiar with lawyers as depicted on L.A. Law who solve problems in 47 minutes. You will tell him that you and he are embarking on a voyage that will last 12 to 36 months. He will almost never he prepared to learn what his defense will cost him financially! "I'm innocent, why do we need to hire experts?"

The case will require a thorough investigation--not the police investigation which will almost always conclude that your client is not only guilty, but that the assembly of the gallows should have been completed by the end of their investigation. (No trial necessary, thank you). The real investigation starts when your client or his attorney retains you.

The first thing you should do after you have been retained is to get the complete biographical background of your client:

Personal Data

Alibi Information

As a rule, your client will usually be charged with several counts which will allege no specific date. At the initial meeting, you must have your client reconstruct his life for the past year. 

Use a family calendar, desk diaries, computer diaries, travel schedules, doctor appointments, court appearances, church attendance, meetings with accountants, school personnel military training dates, etc. Your client's checkbooks (both personal and business) should also be examined as they are valuable sources for confirming his whereabouts on certain days. Credit card histories serve the same purpose. All work records from your client's place of employment must also he subpoenaed, especially if your client punches a clock or is on a strict schedule. Additionally, all of your client's telephone records for the last year should also be subpoenaed, as they will help him recall specific telephone conversations, both local and long distance, both car and business. Subpoena the telephone records of persons close to the defendant (parents, wife, siblings, business contacts). It is important that you, or the attorney, obtain any written materials for safe keeping as soon as possible as these will more than likely be used as evidence in the criminal trial.

Mr. Wizard and Demonstrative Evidence

Trial and hearings are generally a show of the personalities of the judge, the prosecutor(s) and defense lawyer(s). If you want a jury to decide your client's fate merely on the strength of one of these three principal personalities, do not make any effort to bring in demonstrative evidence. The rule for demonstrative evidence is that you can never get enough of it in the courthouse. Assuming that your client is unjustly charged, you are well advised to take away the government's most effective tool--the testimony of the cute and personable five year old. The only way to accomplish that is with facts. Remember, the State is trying to get the jury to ignore the common sense issues. They are hoping the outcome will turn on how well the alleged child victim testifies.

With limited exceptions, the enlarging of photos, witness statements, charts, medical reports, and the construction of a scale model are extremely effective types of demonstrative aids. I have yet to see an alleged victim or witness describe a room accurately when confronted with a scale duplication of that room.

Windows they say were there disappear. Beds, chairs, and tables disappear, as well. Partitions that were described as being from floor-to-ceiling are suddenly reduced to 30 inches. This is not only true for child witnesses, but also for the majority of adult witnesses such as police and social service professionals. This immediately creates an inexplicable credibility problem for the State, because almost all of the State's witnesses will have the identical problems, as they all rehearsed their testimony with the same person.

In order to build a scale model, several things must be accomplished immediately: (1) Take detailed photographs of the scene of the alleged crime; (2) obtain blueprints; and (3) obtain or prepare a scale drawing of the scene.

As the State will almost always try to have this model kept from the jury, be prepared to have experts (architects, artists, mechanical engineers) attest to its accuracy.

Photographs

When the allegations are made that your client has been injured or scarred in an alleged attack, or that he has a particular scar, tattoo or identifiable mark on him or her, you need full body photos and a detailed physical examination by a medical doctor as soon as possible. Often, when the alleged victim is questioned by the police, he is assisted and assaulted with a full litany of identification questions. They will often say your client has scars and tattoos that never existed.

Case in point: I had a client accused of being a "satanic prince." In the course of these alleged witnessed satanic duties, he was observed to have had many self-inflicted injuries which were done with daggers, swords and sewing scissors. Within 48 hours of the accusation, I had him examined by an uninterested doctor and had detailed photos showing no such trauma. This is just another opportunity to peck away at the credibility factor.

Another area of photographic interest is the scene of the crime. The sooner it is photographed, the better. Do not wait for the client to redecorate, it has to be accurate and must be photographed as soon as possible. In most cases, your client's home or day care center will be portrayed as a sex shop where hideous crimes occurred. It is your job to make sure, in a demonstrative manner, that Joe Lunch Bucket lives here and not Charles Manson.

The size of the photographs is very important. Remember: "BIG." You want charts and photos blown up to about40x60inches. If you have 15or20 of these placed throughout the courtroom, you have taken over and you have the jury's undivided attention.

Enlargement of Other Documents

As with the photos and sketches, any written report which tends to be exculpatory in nature should be blown up so that the author of that report or document can testify to it. Remember, people as a rule remember the following when listening to evidence: Taste, 1%; touch, 1 to 1.5%; smell, 3 to 3.5%; hearing, 11%; and sight, 83%.

Seeing and hearing evidence simultaneously is difficult to beat. As most of these trials last from one week to a month, and may involve 60 or 70 witnesses, the jury has a tendency to remember, or be most impressed by, what they last heard.

Experts

Now that you have spent several thousand dollars on demonstrative evidence, you need to find "Mr. Wizard" to explain it to the jury. If your client thought that the model was expensive, wait until "Mr. Wizard's" bill arrives. Look for experts whose credibility is unimpeachable.

Finding the right people will be one of the most difficult tasks in your investigation. For the most part, your experts will render opinions based on the work of others.

Your first expert will be the medical doctor (MD). This person must be a board certified pediatrician, emergency room physician, or OB/GYN specialist, who has performed thousands of pelvic examinations, preferably on young, pre-pubescent children. He/she should have held teaching positions at major hospitals or a university, have published in recognized medical journals and should have previously testified for both prosecutors and defense attorneys. Your MD is to be a rational, objective scientist who is not swayed by facts that do not exist, or by the imagination of the government's star witness.

If your client has been accused of self-mutilation or having scars only his wife or mother should have known about, this is the witness who should have examined your client and rendered a detailed report with findings.

Next, choose a psychiatrist or psychologist with unimpeachable credentials. This person should be board certified in child and adult psychiatry, a Fellow of the American Academy of Child and Adolescent Psychiatry, with years of experience in dealing with both civil and criminal allegations of sexual assault. It is imperative that this expert be able to examine as many of the key players in the case as possible. In civil trials, this is often accomplished, but in criminal cases, it is not routinely done. However, if the prosecution plans to introduce psychiatric evidence, your client usually has the right to an independent examination.

The aforementioned doctors are the minimum number of professionals that need to be presented. Listed below are other experts or lay witnesses who should also be considered:

This article reflects the minimum amount of work that the investigator and trial team must consider prior to the commencement of trial. The investigation of the case in chief against your client is another matter entirely, and beyond the scope of this article.

In trial preparation work, the investigator will carry a heavy burden of ensuring that the Defendant's case is properly prepared. However, in closing, there are two things you should never, never, ever forget:

Reprinted from The Legal Investigator, May 1994