By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Proving innocence in any capacity is hard if not impossible regardless of the case. To prove this point during jury selection, I’ll often invite a juror to prove they are innocent of not running a stop sign on the way to court. I shoot down argument after argument (you didn’t get everyone’s license plate at that intersection did you? You didn’t happen to have a passenger did you? If you did bring a passenger – of course they’re your family and will lie for you). Eventually they see it is their word against someone else’s word. Proving you are innocent of sexual abuse charges really isn’t any easier.
So if the defense can’t prove our client’s innocence – then were should the defense focus? This is today’s topic on my continuing series on sexual abuse charges.
Playing Offense – Theories of the Case
The major challenge of any sexual abuse case is why the child’s allegations are not so. No blog or article dedicated to this topic would fairly do it justice. But the complexity and difficulty of the topic underscore just how thorough the defense needs to be in evaluating not only the child but the child’s circumstances as well as the circumstances of the adults around the child.
Child and teenage psychology is such a vast ocean you could earn a Ph.D. on the topic and dedicate your entire life to studying, researching, and improving it. The defense needs to explore different theories of the case based on every bit of evidence they can muster. An effective defensive theory is more than just conjecture and should be supported by academics.
A misconception about a defense which suggests what a child is saying is untrue is that it is done with malice by either a child or adult hatching a plot to ruin someone’s life. This binary misconception tends to thrust or flip the burden of proof onto an accused to not only prove they are innocent, but to also show a jury some evil intent by an accuser.
Many defensive theories focus not only on children who make the allegations but on the adults who surround them have a profound effect on what and how their children communicate to them.
Focusing on the adults around the children can reveal whether an outcry was in response to repeated questioning, suggestive questioning, or cross-examination of a child by a hysterical parent or adult. Focusing on adults around the child, too, can reveal whether a child has been “congratulated for their bravery,” rewarded, or otherwise put on a pedestal with positive attention for saying what adults might want to hear about a ne’er-do-well relative or acquaintance.
These examples, of course, represent just the tip of the iceberg for situations where an outcry has gone awry. You can read article, after article, after article about the terrible an unjust turns these types of cases can turn based on the hysteria and mismanagement of the adults who handle these cases.
So What Does the Defense Need to Focus On?
*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.