Sexual Abuse Charges – Blog 12: Fist Fights Over Evidence

December 3, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

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.

The Challenge

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.

 

 

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Sexual Abuse Charges – Blog 11: The Prosecution’s Trial Strategy

December 2, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

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.

 

 

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Sexual Abuse Charges – Blog 10: How Most Sexual Abuse Investigations Work in Texas

December 1, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Today’s topic in my continuing series on sexual abuse is the process for investigations in Texas.  Sexual abuse allegations typically follow a different pattern than investigations for things such as property crimes, drug crimes, or even other crimes against persons like robbery or murder.   This is because many Texas counties have built their own unique infrastructure specifically designed for sexual abuse cases.

Children’s Advocacy Centers

It’s hard to understand the investigation process in an abuse case without understanding a Children’s Advocacy Center (“CAC”).  A CAC is a combined law enforcement initiative.  It’s a central facility and organization where different police agencies can pool their resources under one roof specifically for the investigation and prosecution of crimes against children.  The CAC houses detectives along with other professionals who work with children in an effort to assist in criminal investigation and prosecution.

The CAC typically has liaisons with prosecuting agencies such as District or County Attorneys and it is not unusual for them to “roundtable” their cases where both prosecutors and law enforcement are present.  Most of the professionals who work directly with the children or the accused also testify in court on a routine basis.

My understanding is most, if not all, Children’s Advocacy Centers are non-profits under 501(c)(3) of the tax code.  Many testifying from the CAC are quick to point this out to a jury.  I argue to juries this claim is true for tax purposes but is a bit misleading because it leaves the impression the CAC is a neutral fact-finding group.  The truth is the Children’s Advocacy Center is really just a very unique police station.

What the Advocacy Center Does When they Get an Allegation of Abuse

Allegations of abuse (both physical and sexual) probably hit the CAC from all angles.  It could be a referral from Child Protective Services (CPS), a call to the police from anywhere within the county, or potentially they are even directly contacted by victim’s parents.

Forensic Interviews of the Complaining Witness

It’s very common for the CAC to conduct what is known as a forensic interview of a child they believe to have been sexually or physically abused.

A forensic interview is where a person sits down with a child and asks them open-ended questions and passively steers the conversation to to talking about the alleged abuse.  The interviewer does their best not to show judgment, approval, or anger towards the child’s claims.  The interviewer also does their best not to inject their own terms, phrases, or ideas into the conversation.

The purpose of the forensic interview is part human-polygraph and part legal strategy.  The forensic interviewer typically testifies as an “outcry” witness later in trial.

Suspect Interviews and Interrogations

It’s also common for a suspect to be brought to a CAC for an interrogation.  Perhaps this is because it is less daunting to lure a suspect into “Children’s Advocacy Center” than it is to a police station.  Many of these situations end with the suspect leaving in handcuffs whether or not the police get a confession.  Then again, I’m sure a suspect or two have managed to talk their way out of trouble too (but no lawyer who knows what they are doing will ever advise you to attempt this on your own).

Cross-County or State Investigations

It’s also common for CACs in different locations to coordinate with one another when they need to.  For instance if a child has since moved since the incident or allegation of abuse – the advocacy center where the child now lives may conduct the forensic interview(s) and/or interrogations of suspects.

Decision Making and Prosecution

The CAC staff and personnel go through their decision making process — whatever that may consist of — and they take whatever action they deem necessary.  That could consist of referring the case to a grand jury for prosecution, more investigation, or not proceeding with charges against someone accused.

Optimally an accused gets a lawyer involved as soon as they know the wheels are in motion at the Children’s Advocacy Center for a prosecution.  The lawyer can help talk “apples to apples” with the CAC detectives and try to do their best protect their client.

Of course, ultimately in America decisions about guilt and innocence aren’t made behind closed doors at a roundtable which doesn’t include the accused… which is why we see so much of advocacy centers and their personnel in the courtroom.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

 

 

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Sexual Abuse Charges – Blog 8: Double Jeopardy

November 29, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Today I’m covering an extremely technical legal aspect of sexual abuse cases which tends to be problematic for the courts – double jeopardy.  For the 40,000 foot view of all my blogs in the sexual abuse categories you can read here.

Why is Double Jeopardy Such a Headache in Sex Cases?

Double jeopardy has different applications.  It prevents folks from being put on trial twice for the same crime.  It also prevents defendants from being convicted and/or sentenced twice of the same crime.

There is a danger defendants are getting convicted and sentenced multiple times for the same singular criminal act simply because our legislature has written so many over-lapping criminal statutes.

For example (and I apologize in advance, as always, for the graphic nature of the subject matter), let’s say there is an act of molestation against a 13-year old which includes the actor causing genital to genital contact of the victim:

In that instance the following criminal offenses have been committed:

  • Indecency by exposure (2-10 years TDC)
  • Indecency by contact (2-20 years TDC)
  • Aggravated Sexual Assault of a Child (5-99 years or life).

But did the legislature intend for there to be three distinct punishments or just one?  If the answer is three punishments then a person could be sentenced to up to 129 years in prison.  We hear these type of sentences in other States, but not Texas.

This is a routine challenge for prosecutors to properly legally strategize as well as Courts and defense lawyers to make sure these things are properly legally handled.

Prosecutors obviously don’t want a defendant acquitted merely because they fail to prove the highest possible charges.  It’s a common tactic for prosecutors to “plead in the alternative” or to plead lesser charges as well as the higher charges for that very possibility.

But here’s the danger for the prosecutors – they risk having some of their good convictions vacated on appeal if those convictions punish someone twice for the same distinct criminal act.

Lesser Included Offenses

One of the challenges is because of what are known as “lesser included offenses” or “lesser included.”  A lesser included means a charge within a charge.  For example, if the prosecution alleges theft over $100 but less than $750 – but at trial it is shown the item stolen was only worth $98 – then defendant may be guilty of the “lesser included” charge of theft under $100.

It’s unfortunately not as clear-cut in sex crimes with regards to “lesser included” offenses.  This is because the statutory scheme by the legislature simply didn’t draft the offenses the same way theft charges or assault charges are drafted.

The test for whether a charge is a “lesser included” offense is if one charge contains an element (a required unit of proof) which the potentially greater charge does not.

Areas Where the Law Gets Extremely Messy

One of the distinct problems with sexual abuse cases is there tend to be often not only multiple allegations of different acts of abuse – but those acts are often alleged to have been committed on different dates and frequently at different places.  Because these cases deal with children who aren’t always the best at communicating the abuse they’ve suffered to the authorities, the courts and lawyers dealing with the cases have a hard time sorting out things too.

Often a prosecutor can charge the defendant with continuous sexual abuse of a child – which tends to “clean up” and legally simplify the charges and the jeopardy issues.  Then again, it’s hard to blame a prosecutor, too, for simply alleging every charge they can articulate in every different way so as to make sure the defendant is convicted.  But the prosecutor may be opening the door to double jeopardy issues down the road on appeal if they do so.

Why Double Jeopardy is an Important Issue

The way a case is charged by the prosecutor affects everything from plea negotiation, preparation of the defense and even frequently post-conviction if the defendant is seeking an appeal.  Sorting out and quantifying the legal impact of the prosecution “throwing the book” at your client is simply part of defending these types of abuse cases.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

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Sexual Abuse Charges – Blog 7: The Confrontation Clause

November 28, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

I’m continuing my series of blogs today on sexual abuse charges.  I’ve broken down the categories into three:  the technical or legal components, the subjective nature of the evidence, and finally the advocacy related topics from the defense perspective.

Today I’m talking about the importance of the confrontation clause under the sixth amendment of the US Constitution to sexual abuse charges which is a common denominator in any sexual molestation charge.

What is the Confrontation Clause?

Your right to confront means the right to cross examine your accusers in open court.

I’m continually amazed by the depth of human intuition and understanding of the framers of our constitution.  Even back in 1789 they seemed to know not just the mob mentality of “the good guys” who prosecute or bring charges – but also some of the mental laziness which comes along with it.  What I mean is asking an accuser “what happened…” followed then by “and then what happened…” and “what happened after that…” doesn’t necessarily get you to the truth.

Cross examination allows the questioner to ask pointed, leading questions to state’s witnesses – questions the accused or witnesses from the state may not want to answer yet are required to do so.

One of my favorite quotes about cross examination:

Cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth … Cross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial-procedure.

– John Henry Wigmore

How Does the Right to Confront Impact Sexual Abuse Cases?

Your right to confront means the accuser likely has to testify in almost any case.  There are several rules in place in particular for cases involving child-witnesses.

  • The Testimony Has to Be Live

Courts have been clear:  the right to confront means the right to confront before a jury.  In fact, many of the opinions involving child sexual abuse cases where the prosecution has wanted to have a child testify via closed-circuit television are now particularly applicable as authority during the COVID-19 crisis.  Legally the consensus is a “Zoom” or virtual trial would violate these precedents set by child sexual abuse cases.

  • Outcry Laws

The prosecution is allowed to call witnesses known as “outcry” witnesses.  An outcry witness is any person over 18 years old who was the first adult to hear of the sexual abuse claim from a child.  Courts have construed outcry as a “process” so it’s not uncommon to have several outcry witnesses – some of whom are law enforcement interviewers – all come and testify in an effort to fortify the child’s claim.

An outcry witness can even contradict a child in cases where a child recants an outcry.

One important concept about an outcry witness is they can never replace a child witness altogether.  If the child witness does not or otherwise cannot legally testify – neither can the outcry witness.

  • A Child Witness Must be Competent to Testify

All witnesses have to be “legally competent” to testify.  Texas Rule of Evidence 601(a)(2) deals with children and the judge can examine them to see if they have “sufficient intellect” to testify concerning the matters at issue.  If the court determines the child does not have the ability to testify – then again – they are “unavailable” for confrontation rules and the outcry witnesses cannot replace them.

When is it Not Necessary for a Child Witness to Testify During a Sexual Abuse Case?

The prosecution is tasked with proving each element of a case beyond a reasonable doubt to the finder of fact (either a judge or a jury).  It would not be necessary for a child to testify where the elements of the case can be established through other witnesses with first-hand knowledge of the events – typically eye witnesses but also potentially medical experts if there is sufficient medical evidence in any particular case.

*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.

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