Tactics to Consider in Trying a Child Sex Case

By Jill Paperno, Second Assistant Monroe County Public Defender

I just finished a child sex offense trial, and I thought I'd share some thoughts. I tried a few different things this trial that you may want to consider (or not):

1. Voir dire:

In voir dire the potential jurors are asked if they can be fair when the case involves young children. I tried explaining more about what it was going to be like - the door will open, a young child will walk in escorted, but then walk up alone. The room is too big, the child is too small, you may not hear the child's voice when they're sworn, the chair is too big, their feet may dangle. You may get a sick feeling in the pit of your stomachs. Because whether or not this happened, children don't belong here. More people decided they couldn't be fair after that.

I also addressed the topic of a supposed expert on "Child Sexual Abuse Accommodation Syndrome" in voir dire - what is science, how to determine if someone is an expert, are they comfortable making the assessment, is anecdotal information scientific, etc.

2. Opening Statement

When I opened I talked about how doctors from the local Child Abuse Advocacy Center often determine that findings are normal in children, but then opine that this determination was consistent with the child having been abused. I talked about how any child - even one of their own, could be seen by such a doctor, and come away with a description of findings consistent with abuse. I also talked about the CSAAS expert would likely conclude that all behavior, anything a child does, is consistent with CSAAS. So no matter whether the child is abused or not, he will conclude the behavior is consistent with CSAAS. I then noted that any defendant starts any case with two witnesses against him, the doctor from the child abuse advocacy center and the CSAAS "expert", whether or not he's guilty.

3. Cross-Examination

As usual, the photos are critical. In my recent case what they showed about the height of the bed and the number of particular toys was of great help in examining the People's witnesses. Always examine the photos. Look for the details. Also, I rarely address the actual act in my cross -just all the circumstances around. Happy to share if you have any questions.

I questioned the kids a lot about the trial preparation they had with the District Attorney and others. Listen to how the prosecutor questions the kids and reinforces the testimony and consider whether you can use that to support a claim that the children were led and reinforced in their version of events.

4. Summation

I began the sum by saying that no juror comes into the courthouse on a child sex offense case saying "I can't wait to acquit." I then told them they must. There are different approaches to summations. I often mention reasonable doubt. In fact, for many of my cases, if I never mentioned reasonable doubt in a summation, I'd have very little to say. It's my chorus.

I again talked about the sadness of a child being in the courtroom - whether or not the events occurred. I acknowledged what it looked like for a kid to be testifying and what it may have felt like for them.

I actually talked about acquitting on a technicality- I think you have to be careful as to how you phrase it, but I talked about the uncertain dates given by the kids perhaps being what some might think of as technicalities, but they go to the reliability of the testimony. So even if the dates weren't proven BRD, they had to acquit.

I told them not to compromise. There were some weaker witnesses and one stronger one. I told them that if they felt there wasn't PBRD with respect to the other kids, but John Doe was a strong witness, they shouldn't say, well he's the strongest, so let's convict on his counts. I suggested that if each case were tried separately, they wouldn't find the evidence in his case to be PBRD, so they shouldn't compare and compromise. (Be careful of this argument - you don't want them to refuse to compromise and convict on the top count. But I thought I had nothing to lose with that argument in this case.)

I also talked about how some of my questions which might be thought of as stupid lawyer tricks weren't intended to trick the kids, but instead show that when they were off the script, they couldn't keep things straight.

At each stage of the case, I talked about how young children may not tell the truth, but may not be intentionally lying, because their perceptions and recollections can be shaped by people they've spoken with, reactions, questions that have been asked, etc. (got a little help from the People's doctor on that one). I also told them I expected the DA might argue that in order to acquit they'd have to find the kids were lying. Then talked about how if the kids weren't intentionally lying, but their memories or testimony were shaped over time by the various factors, their testimony was not reliable, and not the basis for PBRD.

So in this case I talked more directly about the elephants in the room.

5. Miscellaneous

Object to really inflammatory language. Anticipate that the prosecutor will argue "why would they lie" or "what's their motive to lie" and when you lose your motion to preclude on burden shifting answer it in your summation.

(Editors note- Jill (who recently received the Jeffrey A. Jacobs Memorial award for her outstanding work as criminal defense attorney) is too modest to mention that she obtained a complete acquittal on charges involving four children. Brian Shiffrin)