Sexual Abuse Charges – Blog 16: The Focus of the Defense

December 7, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

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?

Everything.

*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 15: What Advantages does Defense Have?

December 6, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

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.

Unilateral Discovery

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.

Work Ethic

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.

 

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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 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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Sexual Abuse Charges – Blog 6: Indecency With a Child by Exposure

November 27, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Today we’ll talk about the basic law of indecency with a child by exposure in my continuing blog series about sexual abuse charges.  It goes without saying sexual abuse is an incredibly complex topic in every way – so you can reference this blog as an index to the others including this one.

What is Indecency By Exposure?

This is where a person either exposes themselves to a child or causes the child to expose themselves to any person.  The lynchpin to the exposure being a crime is it must be done with “intent to gratify or arouse any person.”  See Tex.Pen.C. 21.11(a)(2).

Like with Indecency by contact – the legislature felt it better for a jury to decide which situations constituted an offense and which didn’t.

Indecency by exposure is considered an act of sexual abuse for the purposes of the “continuous sexual abuse of a child” statute.

The “Romeo and Juliet defense” is available for indecency by exposure if the actor is not more than three years older than the victim and the victim is 14 years or older.

Sex Offender Registration – A Major Difference

One major difference between indecency by exposure and indecency by contact are the sex offender registration requirements under Chapter 62 of the Code of Criminal Procedure.  Indecency by exposure triggers a ten-year registration instead of a lifetime registration.

*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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