Читать книгу False Allegations Of Child Sexual Abuse - Edward Nichols - Страница 8

[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.

As a privately retained expert, I have seen it happen in almost half of the cases I've been involved in: When "vigorous" discovery has been conducted on the caseworkers, supervisors, agency directors, "hired gun validators", accusing parties, medical experts and others, the plaintiff often "reconsiders" her position and decides to withdraw the action "for the sake of the child". I suspect that the real motive is a very different matter.

The standard operating procedures of most protective service agencies are a well kept secret for lack of discovery: What are your guidelines? What is your written policy? Explain in detail the background and "training" of each individual involved. Send me the written record, the manuals, the written policy, etc.

In my experience, juries and especially judges are often shocked to be "educated" as to these realities. When an attorney begins the appropriate discovery process, the agency or prosecutor who normally expects the typical "Made the World Safe for Children" press coverage, now wakes in the middle of the night with a nightmare headline: "Former Burger King Employee Becomes Sex Abuse 'Expert' in Five Weeks"!

Moreover, "vigorous" discovery assisted by an "out-of-town" expert, has proven to be especially effective. It is a sad reality that the mental health professionals in most nonmetropolitan areas belong to the "Don't ask, Don't tell" fraternity. They often have worked together and normally have developed referral "networks" that make them financially interdependent. What is more, working for the defense of the falsely accused could leave the impression that the professional is not against child abuse, or worse, "helped that child molester get off!"

Vigorous discovery activities often rock the boat of "business as usual". It is easier to castoff one case than it is to weather a storm that threatens a local industry!

[7] Trying a case "on-the-cheap" will almost always produce a worse result than "negotiating".

Perhaps the greatest reason that I decline to participate in a case, as a witness or a consultant, is because it is obvious to me that the attorney is attempting to perform a service without appropriate resources. I find this to be true in almost half of the cases where my services are requested. This is not to say that only by hiring a forensic expert with a national practice may a party prevail, but rather, you simply need the resources to get the job done considering the risks involved!

I am personally familiar with dozens of cases that prove the rule. I regularly observe cases to improve my skills and note the skills of others. One such recent case involved a middle-aged man who was accused of placing his finger in the vagina of his niece. It was a criminal case. He was represented by three attorneys. Two of these three attorneys enjoyed very distinguished careers and reputations. They were able to negotiate a plea to a lower offense with no jail time. The defendant, who maintained his innocence and passed a lie detector test, wanted his "name cleared". He now resides in jail. His attorneys were sure that the jury would see how sincere he was on the stand and how the evidence against him was virtually nonexistent. They were wrong.

Another recent case involved an allegation made against a daycare owner who had a sterling reputation. As is common, the case began in civil court where there was an attempt to pull her daycare license. Again, the client had passed a lie detector test, and her attorney was sure that when he brought in dozens of witnesses to nominate her to be a modern Joan of Arc, she would prevail. He did, however, ask me my opinion.

I outlined for him an extensive discovery plan that would not only assure a good chance at prevailing in the civil case, but more importantly, would be likely to eliminate a subsequent criminal indictment. The attorney thought it was an "Overkill" and explained that it was his "duty to be sure his client did not spend any unnecessary funds". The result: The woman prevailed in the civil matter, given the rather incredible nature of the allegations and the character witnesses, and the solicitor brought a criminal case based on the feeble defense on the civil side.

The cost of defending the criminal action was much greater than my original estimate, but what is worse, the attorney now must try the criminal case without the benefit of the discovery that was available in the civil case (A fact I am sure did not escape the prosecutor).

A client that insists on losing a case to prove a point does not require the services of a distinguished attorney to reach his goal. I once had a professor who stressed that: "The essence of professionalism is common sense." In this vain: If you do not have the resources to do the job, you probably won't and your client will likely pay more than the cost of doing the job properly.