By Criminal Defense Lawyer Jeremy Rosenthal
The short answer to what advantages the defense has over the prosecution in sexual abuse charge is this: Not many.
Prosecutions for sexual abuse are like freight trains headed towards our clients. But the Defense does have an advantage here and there. It goes without saying we have to maximize those advantages is we want a chance. What few advantages an accused has are the topic of today’s article in my continuing series of blogs on sexual abuse charges.
The biggest advantage the defense enjoys is unilateral — or one way – discovery. This means we are entitled to virtually the entire prosecution’s file but the prosecution is not allowed to see ours nor are we required to disclose anything other than if we intend to call expert witnesses. The Statute controlling discovery in a criminal case is Tex.Code.Crim.Proc. 39.14.
Unilateral discovery is critical for defense work. I don’t know if my client is innocent or guilty when they walk in my door regardless of what they tell me happened. I wasn’t with them at the time of the crime or accusation.
But let’s say I was worried anything I learn about my case was subject to me handing over to a prosecutor. I wouldn’t interview witnesses for fear they’d say damaging things. I wouldn’t ask for forensic tests to be done for fear it could show my client is guilty. I wouldn’t have my client take a polygraph test or psychological evaluation for fear I’d have to disclose damaging evidence.
In short – if discovery was reciprocal Defense lawyers simply couldn’t do their job. We would hide from learning facts instead of aggressively investigating a case. Clients wouldn’t confide in us the truth and they would see coming to their own lawyer as just giving the prosecution more evidence.
So with unilateral discovery – if we do learn damaging facts then it stays in my file. To do otherwise would essentially degrade not only the attorney-client relationship but my entire ability to fight for someone’s innocence.
We Have the Ability to Know the Full Story – They Know Half
Along the lines of unilateral discovery – another advantage we have on the defense side is we have the ability to get our side of the story plus theirs. We already get the state’s file as I discussed above.
Once the accused has a lawyer involved – the prosecution and police’s ability to learn our side of the story is largely cut-off because they are not allowed to talk with the accused.
In cases where the police get a confession – they often have enough of an accused’s side of the story to make it extremely daunting.
Police know interviewing a suspect is a balancing act. They don’t want to set off any alarm triggers with the accused which will cause them to get a lawyer involved – because that will effectively end their ability to learn information from them. On the other hand they usually very much want a confession so most interviews are geared towards that goal alone.
We have the ability to sit with our client for hours at a time to learn about witnesses, facts and lines of defense law enforcement doesn’t know because they were never able to interview the accused or they weren’t interested in asking because it wasn’t on their radar or it didn’t help them get a confession. We also have the benefit of having friendly witnesses come to us too who don’t want to talk with the prosecution.
We Know Their Playbook – They Don’t Know Ours
Several blogs in this series have dealt with common prosecution tactics in sexual abuse cases. We have the advantage of knowing how they often take a one-size fits all approach which includes their common arguments and even many of the same witnesses and their tendencies.
The prosecution might know certain experts we use and be prepared for them – but beyond this, they really might not have much of a clue how we intend to defend any particular allegation.
Ex Parte Funding
Defendant has the ability in many cases to ask the court for funds to secure either investigators or experts in Texas if the accused is legally indigent. This is true whether or not counsel is retained or appointed. Ex Parte means the defendant gets to approach the judge without the prosecution knowing.
Asking for funding for investigators or experts in fields such as psychology, computers, DNA or any other discipline isn’t so much an advantage as much as it allows defense to offset some of the prosecution’s massive advantage in these areas.
It goes without saying the harder we work – the luckier we get. The prosecution and law enforcement are working very hard but we can always out work them. Make sure your lawyer is doing that.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is designated as a Texas Super Lawyer by Thomson Reuters.