by Jill Paperno, Esq., 

author of Representing the Accused:A Practical Guide to Criminal Defense 

A while back, after I completed a child sex trial, I wrote a post on this site as to Tactics to Consider in Trying a Child Sex Case. After a few years more experience, including a child sex trial this past week, there are some additional tactics and strategies I would like to share.

There are certain things we can expect in a child sex abuse case.  Particular types of arguments and proof seem to consistently make their way into these cases.  The best way to handle these issues is to anticipate them and try to address them in advance, or at least be prepared at trial.  The following are some common tactics and suggestions for ways of handling them:

Before trial

1.  The defendant’s statement indicates he was the subject of sex abuse as a  child:  Investigators routinely elicit this information from defendants, perhaps in an effort to seem sympathetic during the interrogation,  but more likely, to attempt to get that information before a jury, which is likely to believe that someone who has been abused in the past will be an abuser.  The U.S. Government Accountability Office surveyed studies and concluded that there was no conclusive evidence that those abused as children would become abusers as adults.  http://www.gao.gov/products/GGD-96-178.  So if you have this inflammatory information in your client’s interrogation, move in limine to keep it out.  If it’s deemed relevant, request a Frye hearing, arguing that if the science does not support this, the evidence should not come in.  And even if it does, it’s probative value is outweighed by its prejudicial effect.  (Thanks Roger Brazill for the GAO article and suggestion for my motion.)

2.  The claim that the child’s school performance deteriorated after the alleged abuse:  This is often given anecdotally by relatives.  But again, there is a study that supports a conclusion that there is no correlation between childhood sexual abuse and poor school performance (again pointed out to me by Roger Brazill).  http://www.economica.ca/ew12_2p1.htm.  So again, move to preclude the use of any testimony of declining performance by the child, or ask for a Frye hearing.

There are numerous other motions in limine to make prior to trial.  I still move to preclude the CSAAS witness (you can’t make me call him “expert”).   Amusing anecdote – this fellow always testifies he is on the faculty of an upstate medical school.  I’ve looked into it.  I asked him if he said he was on the faculty there.  He said yes.  Did he have an office?  No.  Does he get paid a salary?  No – he does not get paid.  Is he on their website?  No.  (I’d called the school previously and they’d said that he was not on their faculty.)  He apparently takes interns and apparently gives a lecture or few lectures in which he teaches students to be sensitive to how children disclose.  I’m not quite sure.  I didn’t say it at the time, but where I come from, if you working for free, I think you’re called a volunteer. 

Many motions in limine you may make depend on the facts of your case.  If your client has had many youthful indiscretions, pay attention to whether the prosecution will try to highlight his many children with many mothers, and try to limit that citing People v. Presha  83 AD3d 1406. 

Jury selection

 I’ve written before about some of the issues I raise in jury selection.  I’ve added one to the collection.  At trial, prosecutors in our county almost always try to create the impression that the child must be testifying truthfully by eliciting details – colors of clothing or furniture or other things that, realistically, I doubt any child recalls.  So I ask a juror in voir dire, “If I said that you came into my garage and stole my bicycle last year, would that  be true?”  They almost always say no.  (This week was a funny exception.)  I then ask, “If I said that you came into my garage and stole my bicycle last year.  The garage is in our house, which is tan.  The bicycle is blue, and it was leaning against a green shelf.  You were wearing a red shirt that day.  Would that be true?”  Then I talk about details not making something true.  In the case I just tried, when the complainant said she remembered that during an incident alleged to have occurred two years ago she was wearing clothing with a certain cartoon character in a certain color, it seemed like it was so scripted. 

Prosecutors have started asking, if it’s a one witness case, whether a juror can convict on the testimony of one witness.  We’ve got to make sure we get right back at those jurors reminding them that of course they can convict if the witness’s testimony amounts to PBRD, but can they acquit if it doesn’t?  Will they?  Even if the witness is a child?

I do some voir dire on the CSAAS witness.  I talk about whether they can assess whether an opinion is scientific and what they will base it on.  I also talk about how they will hear that he does not know anything about the evidence in the case, and will come in and say every type of behavior is consistent with a child having been abused.  But he will also say every type of behavior is consistent with a child not having been abused. 

I talk about how our local specialist doctor in this area will come in and say that all normal findings are consistent with child sexual abuse if a complaint has been made, and that will be her conclusion in this case.  Not inconclusive or non-specific, but consistent with.  Can they promise to judge whether her testimony is unbiased and whether she adds anything to the information they have? 

Open

I talk to the jurors about how they will hear that there will be two witnesses offered as experts.  And that the doctor will claim that the findings are consistent, even if they are normal.  So the child of any person in the building, if a complaint was made , would have findings consistent with the child having been abused.  And the CSAAS witness testifies regardless of what the claims are.  So in every case where there is a complaint,  any person, guilty or not, will start out with two so-called expert witnesses testifying against him.

 Summation

I think all the CSAAS testimony is designed to reduce the burden of proof.  (And if you have a CSAAS witness coming to trial, please contact me.  There is so much to talk about!)  So I think we have to take the case out of the realm of child sex abuse and remind jurors they are not social workers, they are jurors in a criminal court.  This was my effort in my most recent case, in which there were numerous inconsistencies, and the complainant said she kept returning to the house to see the other kids who lived there (she did not live with the defendant) , she could have been picked up in the evening, but she decided to spend nights because she wanted to spend nights with the kids, even though the alleged abuse and attempted abuse happened nearly every time when she was sleeping there.  From my sum:

You heard Jane Doe’s testimony.  You know it is inconsistent and you know it doesn’t make sense.  And I’m guessing in another context, after hearing such testimony you would not hesitate to acquit.

So let’s think about how you would perceive a claim of your next door neighbor saying he was assaulted by another neighbor.  And the neighbor says, this guy came to my house while I was barbecuing and punched me.  He called me to the backyard and punched me.  He did it on three separate days.               

Then the neighbor says, well, yes, I told someone else the first time was when I was sleeping in a chair on the front porch.    Yes, I told a third person it was four times, and I told a cop it was once. 

I hated it when he punched me.  It was awful.

And every week I go to this guy’s house for dinner.  I like the company. 

You get the picture.  You would clearly discount the testimony. 

But we all recognize that claims of child sexual abuse are different.  They are the stuff that secrets are made of.  So yes, a secret may be kept.  And that is why Roland Summit wrote his article suggesting clinicians be open minded.  And his second article, cautioning about the use of this theory in court.

You are not clinicians, trying to provide treatment to a child who has made a claim.  You know this.  You are jurors here to assess whether there is proof beyond a reasonable doubt of each element. 

So whether or not you accept Summit’s theory, as Summit said, it was not intended to guide what happens in the courtroom.  In the courtroom there is a set of rules.  And those rules require proof beyond a reasonable doubt.

Unreliable testimony of a child, cannot be the basis for PBRD.  You’ve promised not to decide this case based on sympathy.  You agreed to make a determination – whether all of the elements of each charge have been proven beyond a reasonable doubt.

I also think it’s important to acknowledge the difficulty in dealing with a child sex abuse case to the jury.  So I’ll say something like this:

We have now, ended the testimony in this case.  But although that may have been a difficult process, the real challenges lie ahead for you.  Because nobody comes into a courtroom hearing allegations about sexual abuse and seeing a young child testify, and thinks “I can’t wait to acquit this guy.”

But you must.

Because the prosecution has failed to meet its burden of proof beyond a reasonable doubt with respect to each count of the indictment.

These are tough cases, and of course, you have to do what’s comfortable for you.  But I think these cases present a unique challenge, and it’s helpful to consult with others who have handled them.  And in fact, if you have any experts coming in at trial, it’s not only helpful, it’s required.  Good luck!

(Editor's note: Jill is too modest to mention that, once again, she obtained a complete acquittal for her client).