Читать книгу False Allegations Of Child Sexual Abuse - Edward Nichols - Страница 7

[1] The attorney who is not prepared to prove his client's "innocence" will usually have his client found "guilty".

In the context of allegations of child sexual abuse, whether in civil or criminal court, the "innocent until proven guilty" maxim is as useful and practical as a third leg. Judges on the civil side "err on the side of caution". Many family court judges have told me, "Whether or not he did the sexual abuse, there's something terrible going on here and he should not be around that child." On the criminal side, in my experience, juries are harsher than judges. The general thinking is: "The state would not be putting on this case unless they KNOW he's guilty". Add to this that your client is likely to look like, dress like, smile like, cry like and even sit like a child molester in the eyes of a jury that is essentially ignorant of the dynamics of pedophilia.

Attorneys who prepare their case with a view of the "standard of proof", be it a "preponderance of evidence" or "beyond a reasonable doubt", are not in touch with reality. A trial involving the allegations of the sexual abuse of a child is one that calls for OVERKILL. Be prepared to "prove innocence" and you will likely meet the more lenient language of the law.

[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.