By Collin County Criminal Defense Lawyer Jeremy Rosenthal
When someone is professing innocence it seems easy to simply point out certain factors or character traits we think would naturally support those claims. It would also seem some arguments about positive traits would carry the day in the absence of physical evidence such as DNA or injury.
But the battle in a courtroom often turns into a rhetorical one. What I mean by this is evidence of innocence can be flipped into evidence of guilt with a clever one-liner by the opponent. This is the topic in today’s blog in my continuing series on sexual abuse cases.
I agree it flies in the face of the presumption of innocence. If the prosecution is going to argue a certain character trait actually proves guilt and not innocence they should at least provide evidence and not just a retort.
I’m frequently told by my clients, “well what about this fact” or “what about that fact” – and it’s a hard conversation to let them know just how highly polished and frankly good at their job the children’s advocacy center can be at turning those arguments on their head.
But I’ve Never Been In Trouble Before
The State’s reply: That’s how child molesters are. They hide in plain sight.
Presto change-o. Your lifetime of great behavior instantly becomes a negative.
But that Child Was Always Friendly to Me?
I’m frequently shown pictures of birthday parties, family gatherings, and other fun occasions after the date where the child alleges the abuse occurred.
I’m told, “if I had sexually molested him/her then why would they be so friendly to me after the fact?”
The State’s reply: It’s because the child was confused and hurt that they were trying to gain the abuser’s love and support.
But I Love Kids
Perhaps true and perhaps a great sign a person is innocent. Then again, you don’t have to look much further than the Jerry Sandusky case to see situations where serial pedophiles intentionally put themselves around or near children for the most sickening purposes.
Ask Any of the Other Children I’m Around
The Prosecution’s reply: Sure the other children will say you’ve never done anything sexual to them. It’s because you chose this particular child because they are quiet, shy, isolated, etc.
But There is No Physical Proof
The State’s reply: Of course not. He’s so good at committing this crime he’s careful not to leave any clues.
On this topic It’s probably worth noting the role of a Sexual Assault Nurse Examiner or a SANE Nurse. SANE nurses often examine a child for clues of sexual abuse – even months after the allegations. It’s not uncommon for the nurse not to find any evidence of abuse.
But the real reason the SANE nurse is called to testify is to explain to a jury that what seems like evidence of innocence really isn’t. They commonly testify in court about how the human body heals and how certain injuries do not necessarily occur during an instance of sexual abuse.
In sum: The SANE Nurse is there to take evidence of innocence (no physical injury) and turn it into a tie.
“Why Would The Child Make This Up?”
This is a common question asked by a detective to a suspect during an interview. It seems straight forward but it’s really not for several reasons.
Here are just some the assumptions the question makes:
- The only reason the allegation might not be accurate is an intentional plot by a child to have a grown up locked away in prison forever;
- The child has a full understanding of the subject matter/ terminology;
- The child appreciates the severity of the allegation as an adult would enough so that they understand the severe consequences of a mis-truth relative to them fibbing about what happened at school;
- A child thinks rationally and makes rational decisions the way an adult would.
When the police ask this question to a suspect – they are looking for a twitter style response in 140 characters or less. But cases like these are typically thousands of pages because of their complexity. And the question really only shows the police have already made up their mind when they ask the question.
In Summation on Today’s Topic
A huge mistake I see inexperienced lawyers make in trials like these is not anticipating the State’s replies to these common arguments made by those professing their innocence. A good defense needs to think multiple steps beyond how the prosecution is thinking.
*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.