By Criminal Defense Lawyer Jeremy Rosenthal
A chain is only as strong as its weakest link.
The prosecution in a sexual abuse charge with a child victim has a particularly daunting challenge – their star witness is normally a child. So the state’s case is often only as strong as their child witness.
Many child witnesses can actually be quite good on the witness stand, but then again, children come in all ages, sizes and intellectual abilities. It goes without saying when we ask a child to testify – we’re asking a child to do an adult thing. There are memory issues, concerns about others trying to influence the testimony, and concerns about embellishment of details or the opposite – minimization of details. And the concerns about child testimony obviously don’t end there.
Today in my series of blogs about sexual abuse we discuss the prosecution’s strategy in sexual abuse cases and how they deal with what is typically the “weak link” in their chain.
Strengthening the Weak Link
Anyone defending sexual abuse cases understands the Children’s Advocacy Center (“CAC”) was built like a machine to secure convictions. Their playbook is simple, effective, and designed to steam-roll anyone in the defendant’s chair.
The CAC does everything in their ability to try and relay to the jury they believe the child is telling the truth and they have the unique power to know when a child is lying or telling the truth. They provide often multiple witnesses for each trial which attempt to act as human polygraph machines. Forensic interviewers, detectives, and other professionals from the advocacy center are highly polished career witnesses.
I call these folks the “truth detectors.” But does strengthening every other link in the chain make the weak link any stronger?
Challenge #1 with Strengthening the Weak Link
Rules of evidence and due process prohibit what is known as “bolstering” and they also prohibit an expert witness telling the jury directly an opinion defendant is guilty. So it would seem parading one witness after another from the CAC to wink and nod at the jury would be prohibited?
The prosecution takes advantage of rules on expert witness testimony which give flexibility to witnesses. Rule of evidence 702 allows witnesses with a particular knowledge and expertise in an area the ability to discuss their training and experience and to some degree allow them to opine more than a common or fact witness. Judges are somewhat timid in shutting down these practices which have since been upheld by higher courts… meaning the defense has a harder time making legal challenges to this type of testimony.
Forensic interviewers are often allowed to testify as “outcry” witnesses even though their hearing the allegation from the child isn’t the first person over the age of 18 to hear the account of the abuse — and their hearing the allegation is a pre-meditated effort towards trial strategy.
Challenge #2 With Strengthening the Weak Link
The training and experience utilized by professionals at the children’s advocacy center tends to be highly anecdotal – so on the job learning instead of actual science. The problem with the anecdotal experience is it really isn’t any good when your on the job training is in an echo chamber. Not only this, at some level the actual science matters. This is why being a candy-striper at a hospital for 20 years doesn’t mean you get to do surgery.
Also, even the science and psychology about children and sexual abuse tends to be highly subjective and malleable… and unfortunately some professionals at the advocacy centers don’t concern themselves much with the actual science and psychology.
So what we often get in trial are forensic interviewers or detectives who say things like:
“If the child recants the abuse – it’s because defendant is guilty;
“If the child sticks to the story – it’s because defendant is guilty;
“If the child looks the jury in the eye to tell confidently tell their story – it’s because defendant is guilty;
“If the child looks down and cries to tell their story – it’s because defendant is guilty;
“If the child omits huge chunks of their story – it’s because defendant is guilty and child is ashamed to tell their story;
“if the child gives graphic details – it’s because the child is emboldened and an empowered survivor and it’s because defendant is guilty.
The problem is the “truth detectors” might not be wrong about some or all of these assertions in any given case…. and as you can see there is nothing a witness like this can’t spin into “he’s guilty.” Also, most of these observations are more conventional wisdom than actual science. This is the juries job to resolve – and providing them an editorial shouldn’t be necessary.
Not all Trials are the Same
Evidence in each case obviously varies. In some cases there might be a confession. In other cases, DNA evidence or medical injuries might be present. But a common denominator is the playbook from the CAC. Fortifying the weak link.
I’ll be discussing how, as defense lawyers, we deal with and combat the prosecutions strategy later on in my continuing series.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters.