By Criminal Defense Lawyer Jeremy Rosenthal
How do you corroborate your story with a completely he-said/ she-said debate about something which happened 5 years ago?
This is one of the big challenges of sexual abuse prosecution and defense. Physical evidence such as DNA or other injuries which might be associated sexual abuse can be rare – particularly when an outcry is delayed for months or years.
So it’s often the case each side takes seemingly small or what may seem like insignificant scraps of evidence and do their best to magnify it by 10,000% to try and corroborate their story. The ensuing debate in the courtroom over just what the small shred of evidence might mean is what I call “fist fighting over evidence” and it’s the topic of today’s blog in my continuing series on sexual abuse cases.
Most offense reports I read allege something to the effect of the child making the outcry of abuse — and the report goes on to say the specifics of incident x happened “over the summer” or “sometime in March” or “a few months ago” in a certain location (i.e. aunt’s house, friend’s apartment) in a certain room of the home. The reports then detail the specifics of the abuse if any are given by the child.
So if I’m having a conversation with a client who insists he is innocent – he can never answer the question, “where were you every day last summer and how can we prove that?” He can never answer the question of “okay, even if you were at aunt’s house sometime in March – how can we prove victim wasn’t there at the same time and/or you and victim weren’t alone?” The task is virtually impossible in most cases.
So if there is any nugget of evidence which tends to show Defendant’s story is the truth – it becomes huge.
The Best Example – Brett Kavanaugh’s Calendar
Without getting into details of cases I defend – probably the clearest example of a “fist fight over evidence” would be Supreme Court Justice Brett Kavanaugh’s calendar which he contended was proof of his innocence against allegations of sexual assault and the US Senate then having a “fist fight” over what the calendar actually proved.
Staying away from the politics of it all – was the calendar proof Mr. Kavanaugh didn’t sexually assault Dr. Ford? Maybe yes and maybe no – but my point is this is all he had other than his word.
The calendar even got parodied on Saturday Night Live.
Smart Phones – Evidence in a Box
A major difference between 1982 and the 21st century are smart phones. Today we can tell if someone took the tollroad on a certain day, their GPS location at any given time, or pictures they took… etc. So today we actually have a lot more potential to strive and attain some small nugget of proof which we hope can corroborate our story.
*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.