[2] "Convincing" a court that it is not putting a child molester on the street will prevail over "proving" any matter of law.
I have talked to enough judges and jurors to be convinced that it is the "factual case", and not matters of law, that holds the keys to acquittal. The general view is: "When in doubt, bury him under the jail". This is a hard, cold reality. Attorneys faced with mounds of opinion without foundation and hearsay, find it easier to pound the points of law. This seldom succeeds. The foundation for your expert's opinion must be carefully, and consistently, fed to the trier of fact. The notion that a judge "can't" do this or that, as a matter of law, ignores the reality that, in the area of the sexual abuse of children, judges can, and often do, interpret the law and the rules of evidence to support their finding of fact.
It is common knowledge that murderers, bank robbers, and drug dealers are put on the streets regularly on the basis of technicalities as a matter of law. The idea being: "Better one-hundred guilty go free than one innocent person be convicted." This is not the stuff that child abuse hearings are made of. In these cases, based on my experience, the motto reads: "Better it shall snow in hell than I should allow a child molester back into his home." You will best serve your client by spoon-feeding the factual case in lieu of attempting to stuff "matters of law" down the court's throat.
[3] The side with the best expert testimony will prevail, regardless of the "truth" or the evidence that supports it.
This is a frightening statement, but one that I have seen confirmed in case after case. If it is indeed true that falsely accused individuals will go to jail as a result of superior adverse expert testimony, as I believe, then it must be equally true that child molesters and incest perpetrators will be set free by equally superior expert testimony. Though the principles of justice in America provide for the guilty walking free to protect the innocent from conviction, the sexual victimization of children is a particularly serious crime from which our children must be protected.
It is the extremely rare case in which any physical evidence links a defendant to the alleged sexual abuse. The vast majority of these cases are settled without hearing. It is the testimony of experts that more establishes the "facts" than the testimony of the "factual" witnesses. Typically, a factual witness will report a behavior or event and an expert will "interpret" the factual testimony. It is this "interpretation" that the court often considers as the "facts of the case" wittingly or unwittingly.
Effective Case Organization:
[4] The attorney who does not use all of the discovery allowed before trial is like the pilot who does not use all of his checklist before takeoff.
Many cases involving the false allegations of child sexual abuse begin as civil cases in a domestic court. What is at stake here, typically, is visitation or custody. A false allegation made in a domestic court has a chilling result: Visitation is generally ended, or supervised, the parent falsely accused is generally considered to be wearing the black hat until "he can clear" his name. The "reality" of the "burden of proof" is very different than the law.
In a civil case a "preponderance of evidence", or the tipping of the scale, is all that is needed to prevail. However, domestic court judges most often "err on the side of caution" when the scale is not clearly tipped.
In most jurisdictions the discovery rules are more liberal on the civil side than on the criminal side. Typically, interrogatories may be used, documents may be forced to be produced, and virtually anyone may be deposed or called as a witness. Many jurisdictions do not allow such discovery in criminal cases.
The general flow of these cases is as follows: The prosecutor waits to see the outcome of the civil case. Not infrequently, a member of the prosecutor's office plays a role in the civil case. It is generally thought that if an accused is able to prevail under the civil "preponderance of evidence" standard, he will certainly prevail under the criminal "beyond a reasonable doubt" standard.
But often the exception becomes the rule! It is not uncommon for the accused to prevail in the civil case and get buried under the jail in the following criminal case! This outcome is strongly possible in the following two circumstances: When the prosecutor realizes that the material not discovered in the civil case will protect the "weakness" of their expert testimony; and when the prosecutor assesses that a jury will not possess the intellectual resources of the domestic court judge, nor will they have to deliberate on both matters of law and matters of fact.
In any case, the only prudent course is to utilize all the discovery available. This may be performed within the confines of a reasonable budget, but rarely, if ever, may it be performed "on-the-cheap". A client, however, should be made to realize that in many jurisdictions the criminal sanctions for the sexual abuse of a child, in practice, often exceeds the sanctions that would be imposed in murder cases! Appropriation of resources should be made with this in mind.
The attorney will have to understand the practices of his jurisdiction. In my experience, the criminal prosecution of sexual abuse is much more frequent in small, often rural, jurisdictions than it is in large metropolitan jurisdictions. The former most often have a prosecutor who is very experienced at such cases which appear under every rock and are highly publicized. The latter are often most concerned with murderers and drug-rings.
Regardless of the setting or circumstances, the attorney that foregoes discovery rights will frequently find himself in the same state of shock as the pilot who liftsoff the runway with only a part of his takeoff checklist confirmed.
[5] The exact details of who has "interviewed" or "counseled" a child witness is a "chain of evidence" that can free or shackle the falsely accused.
When a competent police officer arrives at the crime scene of a murder, he ropes off the area and begins a sophisticated process to preserve the "chain of evidence", i.e., to account for the discovery and possession of every piece of evidence that may ultimately be presented to a court in the prosecution of the accused murderer. Many so accused have been found "not guilty", under the law, for lack of such an accounting of the "chain of evidence".
This is a well established principle of law that is, in my opinion, virtually ignored in the defense of the person falsely accused of sexually abusing a child. Perhaps this is primarily because the most convincing evidence is not a gun containing the fingerprints of the accused, but rather, it is the star-witness, alleged-victim-child alleging a "story" considered by the court to be the damning "fingerprint" of the crime.
But whose fingerprint does this child bare? Only the most careful and comprehensive accounting of the "Who, What, Where, When and Why's" of the child's experiences with parents, relatives, caseworkers, "validators", police, doctors, psychologists, social workers, "counselors", attorneys, and any other interested party will allow a forensic expert to render an opinion that might vindicate your client (much more on this later). What tape recordings and video tapes exist? Will the court order, at the earliest possible stage, that named individuals record interviews and/or counseling sessions? What is your plan to preserve the "chain of evidence"?
I have been amazed, if not appalled, to be called in on cases where none of these factors were considered. Perhaps this is because many attorneys working on these matters in civil courts have little criminal experience, and conversely, many attorneys working on these matters in criminal court have little family law experience. In any event, I can assure you that these cases combine the challenges of both systems!
[6] There is an orderly relationship between "vigorous" discovery and the withdrawal of the plaintiff's case.
