Sunday, September 28, 2014

Consulting With An Expert in a Child Sex Case Is More Than A Good Idea

In child sex cases in which these is no corroboration for the child's allegations, prosecutors frequently call a doctor to testify that the absence of any physical corroboration, even when the allegations are of years of anal or vaginal intercourse, is consistent with the allegations and do not undermine the complainant’s credibility.

Without consulting with an expert defense counsel is unable to effectively cross-examine and/or respond to the testimony of the People’s medical expert. Without such consultation, counsel cannot effectively establish, either through cross-examination of the prosecutor's expert or by presentation of a defense expert, what evidence of trauma doctor look for and was not present,  Nor can counsel effectively challenge the research supporting the prosecution expert's testimony or present the actual research findings.

 Thus, in granting federal habeas petitions in New York child sex cases in which the defense counsel neither consulted nor called a medical expert, the Court of Appeals for the Second Circuit has held that “because of the centrality of medical testimony, the failure to consult with or call a medical expert is often indicative of ineffective assistance of counsel.” (Gersten v Senkowski, 426 F3d 588,  607 [2d Cir 2005] [citing Eze v. Senkowski, 321 F.3d 110, 127-28 (2d Cir. 2003); Pavel v. Hollins, 261 F.3d 210, 224 (2d Cir. 2001); Lindstadt v. Keane, 239 F.3d 191, 210 (2d Cir. 2001)]).

The Second Circuit explained in Eze, in the context of a sexual assault case, that “[a] lesson to be learned from Lindstadt and Pavel is that when a defendant is accused of sexually abusing a child and the evidence is such that the case will turn on accepting one party’s word over the other’s, the need for defense counsel to, at a minimum, consult with an expert to become educated about the ‘vagaries of abuse indicia’ is critical. The importance of consultation and pre-trial investigation is heightened where, as here, the physical evidence is less than conclusive and open to interpretation.” Eze, 321 F3d at 128 (internal citations omitted).

As the Second Circuit has explained “[d]efense counsel may not fail to conduct an investigation and then rely on the resulting ignorance to excuse his failure to explore a strategy that would likely have yielded exculpatory evidence.” Gersten at 611.Thus, where counsel failed to make a reasonable  investigation that is reasonably necessary to the defense, a court will usually conclude that the decision not to consult with and/or call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland’s prejudice prong. (Gersten v. Senkowski, 426 F.3d at 611 [2d Cir. 2005]; Pavel v. Hollins, 261 F.3d at 223 [2d Cir. 2001]; Lindstadt v. Keane, 239 F.3d at 201 [2d Cir. 2001]).

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