Strategies for Lawyers to Consider When Defending Child Criminal Sexual Conduct Cases

Cases involving allegations of criminal sexual conduct by children are some of the hardest cases to defend. The stakes could not be higher; the accused could not be more frightened; and much of the rest of the world will repeatedly and rhetorically ask, “how could a child say something like this unless it were true?” The allegations are disgusting and repulsive.

At Smith Blythe, we focus on defending these cases and have become leaders in the criminal defense community in terms of teaching and sharing our strategies with other lawyers. As such, Shannon Smith wrote this article which was published in a magazine for lawyers a few years ago – to help other lawyers develop strategies for their own cases. We hope that this article will help other lawyers handing criminal sexual conduct cases and families going through these difficult and tough cases.

Most often, the entire case hinges on the word of a child. Children, we are told, have no reason to know about sexual activity, have no motive to outright lie and have every quality of a “good” prosecution witness: sweet, innocent, sympathetic and young. Often, there is a delay in reporting the claims, resulting in an absence of biologic evidence. Rarely are there eyewitnesses to the alleged events. Since time is not of the essence where reporting is delayed, forensic interviewers allow children to give vague information about when they say the allegation happened. That in turn makes it impossible to pin down the timing, which in turn makes it difficult to identify and locate potential impeachment witnesses who could address specific accusations. Permissively vague reporting also deprives the accused of alibis who could verify what the accused was really doing at the time of the alleged assault.

People who are quick to believe the child are just as quick to impute a pedophilic intent to everything the accused has ever done (albeit never before the accusation): Why would he attend cheerleading events for his niece except because he was fantasizing about her? Why would he need a password on his laptop if he didn’t have something to hide? His eight-year-old daughter sits on his lap – that has to mean he’s grooming her to molest her! Accusers, upon making a disclosure, are automatically considered a “victim” (even via many states’ statutes), are taught that they are actually “survivors” (implying that there was abuse for them to survive), are thrust into therapy that presumes the accusations to be true, and receive the secondary gain of unwavering support from everyone around them.

The only thing worse than committing sex crimes against children is being falsely accused of doing so. Desperate for hope and a defense strategy, combined with overwhelming anxiety and fear, the accused needs a lawyer who is willing to discover the true story and present it affirmatively as the true narrative of the trial. At Smith Blythe, this is what we are known for. These are not cases where counsel can wait, react and deflect; the lawyer must turn the tables and prosecute their client’s story of how the false allegation was born, what factors brought it to life, and how it snowballed into a destructively life-changing case.

In every case involving child or teenage accusers, there are three aspects to investigate and consider: plausibility, credibility, and reliability:

(I) Plausibility

Attacking the plausibility of the accusation is usually the angle where the clients themselves can contribute useful evidence. This is typically the part of the case the lawyer simply cannot do for the client. Make a list of each detail the accuser includes in each of his or her accusations, and work through that list with the client and his or her supporters. What facts, independently verifiable, make the accusations impossible or implausible, or simply defy common sense?

Reconstruct a detailed timeline of events. If the accusation is narrowed down to a time frame, obtain credit card statements, bank statements, phone records, sports schedules, school calendars, e-mails, trip confirmations and other materials to determine every single thing that was going on in that time period. Identify vacations, visitors who came from out of town, games, events, even the county fair the family attended.

Have the accused reenact the typical routine schedule at home including when people leave for work or school, when people get home, when the cleaning lady or babysitter was present in the house. This exercise can remind protagonists of information they simply have not thought about and help them show the timing of the claims is impossible, that they would be unlikely, or the client would have to be crazy to think they could get away with it.

Obtain information about the child and his or her family:

1. Family law records from divorce files;

2. Petitions for restraining orders;

3. Records of custody disputes;

4. Evaluations by guardian ad litems;

5. Motions filed by one parent, claiming the child had behavioral issues caused by the stress of the divorce;

6. Motions filed by one parent, seeking orders for the other parent to pay for counseling;

7. Testimony or reports of therapists which do not include any reports of molestation accusations.

The goal is to obtain as much information as possible, so even reading that a child is working with a therapist is significant information and will be discussed further below.

Get a floor plan of the alleged scene and visit the location to see it for yourself. Ask the client to draw a diagram and provide photographs. Is there a large picture window with a clear view to the couch where the child alleges your client had sexual intercourse with her? Would five other family members be walking right past that window to get into the house at any moment in the course of the fifteen minutes when the child alleges this happened? Does the house have an open floor plan with little to no privacy where your client’s four kids would be able to walk around a corner and see something at any second? While a floor plan may not make an allegation impossible, sometimes it shows that the accusation is implausible because of the likelihood of detection.

Collect photographs and videos of the alleged victim. Children grow and change quickly. By the time a case gets to trial, a child who brought her accusations as a flat-chested 9-year-old is now a fully-developed sixteen-year-old who is trying to look like a sexualized adult. Jurors need to have an accurate image of what the accuser claims, to decide whether this defendant is the type of deviant who preys on a child who is, at the time of the alleged assault, unsexualized.

Some Things to Avoid:

There are some plausibility arguments to avoid. Unless there is a very unique set of facts that support these strategies, avoid defenses that include erectile dysfunction issues and penis size impossibilities. While many clients think it is persuasive to present testimony of their inability to achieve an erection with their spouse or other adults, jurors may conclude this is the case because they are only sexually attracted to and stimulated by children. Further, because a majority of sexually abused children do not present with physical findings, even in cases where they have been penetrated, the “it’s too big to fit” defense is generally not helpful. There is no research or evidence-based medicine to show that an adult penis cannot fit into a juvenile vagina or rectum. That defense could open the door to showing just how possible, and thus how horrific, adult-on-juvenile penetration really is.

(II) Credibility

There is no doubt that trial lawyers salivate over cases with seasoned liars who have reputations for untruthfulness; but jurors can believe that an accuser is a liar by nature yet also presume that even a liar would not make up a claim of sexual abuse. It is for this reason that discovering the story about the motives to lie is more critical. The stronger the motive, the more likely it would be possible.

Reverse roles with the accuser to understand why they may be saying what they are saying. Ask others to reverse roles as well to see if they discover new insights for what is driving the accuser to present this story.

Spend time speaking to anyone who will talk to you about the accuser or the circumstances surrounding them when they disclosed, including family members, friends, churchgoers, neighbors, and teachers. By understanding the child’s personality, it helps understand the motives that may appeal to the particular child in question. What was life like at the time the child disclosed? Were they feeling ignored by parents who were distracted and fighting with one another? Were they caught stealing at school, and pressed to explain why they were acting out? Never underestimate the power of the secondary gain that comes with getting attention and sympathy as adults believe an accuser has been victimized.

Ask about other instances where the child has lied or been dishonest. Remember that for a prior episode of dishonesty to be useful, the lie has to be substantial and serious – not minor matters such as turning in homework.

Find out whether the child has been in counseling before the accusation, and whether the child’s parents ever had to work with the school regarding behavioral issues. If possible, obtain the school and/or counseling records. Parents with legal custody should have a right to obtain these records or the defense will need to file appropriate motions with the court seeking supplemental discovery of the same. In Michigan, for example, lawyers can file motions requesting copies of privileged records as long as the defense articulates a reasonable belief the records will be material to the defense. If the lawyer cannot directly get the records, at least ask the court to conduct an in camera review of the records to see if there is information pertinent to the case.

If there are therapy or medical records available, find the initial intake appointment where the complainant would have likely been asked about a past history of physical and sexual abuse. If the allegation pre-dates the intake, the denial of any abuse would be important. Remember that therapists, physicians and mental health professionals are mandatory reporters – meaning they are required by law to report abuse when they suspect or have information that an adult perpetrated abuse on a child. The lack of an investigation, combined with a denial by the child, will be helpful information (more on this below).

Social media investigation is critical. Review Twitter, Facebook and whatever “App” is the hottest for the accuser’s age group. Do they post about their accusations? Do they appear to be seeking attention in other ways? Do they exaggerate? Do they lie in their posts? Figure out who their closest friends are and look through the friends’ profiles as well to find comments and posts from the accuser. Even if the postings are not admissible at trial, they nonetheless provide valuable insight for your role reversal with the accuser and his or her supporters (including any outcry witnesses, i.e., the person to whom the accuser allegedly first reported his or her allegations).

Obviously, obtain as much information and discovery to dissect every statement the child has made about the allegation. Highlight the inconsistencies, but do not believe that the presence of inconsistent statements will carry the day. Jurors will always excuse minor inconsistencies depending on the child’s age. It is up to you to present inconsistencies as a story in themselves – otherwise, jurors only see an adult lawyer nitpicking at a child.

Do not panic if the child is not a liar and you are having trouble developing credibility issues. Remember that children are subject to the influence of the adults in their lives. This is where the motives and bias of others come into play, which can be very useful in a child sex case.

If your client has been accused before, explore whether the prior allegations simply make the client an easier target. Explore whether the prior allegations are just a catalyst to further the claim that your client must be a bad person.

(III) Reliability

The reliability angle on child sex cases tends to be the most difficult for lawyers to grasp. Reliability and credibility are not synonymous. While credibility refers to the believability of the witness, reliability refers to the accuracy of the report.[1] If a child genuinely believes that his grandfather inappropriately touched him in the bathtub, he is not lying when he reports it. If his perception of that event is altered by a hypervigilant parent who is convinced something happened to him and integrates comments from that parent, his disclosure about being touched may not be reliable. It is possible the child believes he is telling the truth, but is simply unreliable.

What can we do to explore reliability issues – and to understand how otherwise truthful children may make false accusations?

Consult with an expert in forensic psychology with expertise in memory, suggestibility and forensic interviewing techniques.

Read two books that summarize the widely accepted consensus of important research regarding memory and suggestibility.

1. Ceci, S. J., & Bruck, M. (1995). Jeopardy in the courtroom: A scientific analysis of children’s testimony, Washington, DC: American Psychological Association.

2. Poole, D. A., & Lamb, M. (1998). Investigative interviews of children: A guide for helping professionals, Washington, DC: American Psychological Association.

These books are a great place for lawyers to start, instead of reading numerous individual studies which would be too complex and time consuming. The authors explain the mechanics of juvenile and adolescent memory, and reference many of the well-known studies that confirm how various factors can influence the reliability of information a child reports.

Learn how memory works. Memory is a constructive process. Many factors affect a person’s initial perception, storage, and recall. Recall of memories is not as simple as watching a tape of an event. It involves a reconstruction process in which content of previously presented material is unconsciously and unintentionally woven into a coherent whole story, with the aid of preexisting knowledge. Details may be distorted as the person forms a coherent story in his or her mind. For example, details that are consistent with the story may be added and details that are inconsistent may be dropped.

Understand that once memories have been altered, there is no way for experts or any others to determine the accuracy of reported events. Once a person or child has come to believe something has happened, memory is irreversibly and permanently changed. This is supported by a wide body of scientific research, which has been conducted in the fields of child development, psychology and sociology. The research on suggestibility of children and factors influencing the accuracy of reports is included in numerous peer-reviewed articles and books in the field – too many for any one lawyer to read. The two books listed above give excellent summaries of the overall consensus of the research, making it easier to digest and use in defending child sex cases.

Remember that based on research, once an idea or memory has been implanted, regardless of how the memory was acquired, the memory itself becomes the only reality. Consequently, children may be genuinely convinced of the veracity of their memory and subsequent retelling of an event. Further, although it is not within general knowledge, it is recognized scientifically that the degree of conviction a child may have can be inversely related to the probability of its accuracy.[2]

Trying to lead a child to admit they have lied is poor strategy. It would be better to advance the theory explaining why the child made the accusation. For example, confirm that the mother asked the child about the alleged abuse repeatedly every time the child returned home from parenting time weekends with dad over a six-month period. Show how a therapist helped a child “put together the pieces” of a story when the child expressed confusion about how her uncle was tickling under her arms and near her chest. For a very young accuser, allow him or her to speak freely to show his or her perception of reality and of truthfulness – to show that the judge’s preliminary question of “do you know the difference between the truth and a lie?” really does not fully address how such a young mind understands truthfulness.

It is also important to understand source monitoring error. Source monitoring error occurs when the brain incorrectly attributes the source of a memory to the memory itself. This is why, for example, children may believe they experienced abuse and not understand that the source of the memory was actually from their mother constantly suggesting that “daddy must have touched your privates.” What one believes or reports as the “truth” may be partial or total fantasy, or the result of familiarity with ideas gleaned from a variety of external sources other than direct personal experience, such as being questioned, being coached, being exposed to sexual material, or overhearing conversations. Although children have a generally good ability to distinguish between concrete fantasy and reality figures, there is some evidence that they have difficulty distinguishing between what they experienced through perception, and what they only imagined or were told they experienced.[3] Research by Pezdek and Roe demonstrates that children can be convinced of experiencing a different physical touch than that which actually happened.[4]

Obtain a copy of the forensic interviewing protocol or the guidelines used to interview the child.[5] The goal of a forensic interview is to obtain a statement from a child, in a developmentally-sensitive, unbiased, and truth-seeking manner. Protocols have been developed because the research shows how easy it is to intentionally and even unintentionally influence what a child reports. Per those protocols, forensic interviews should be conducted using a structured framework where interviewers are trained to remain neutral, objective and unemotional. In order to avoid diminishing the reliability of statements made, the interviewer is expected to remain dispassionate, detached and even skeptical as to the issues being evaluated. Questions are asked to the child in an open-ended, non-suggestive format, which has been shown to elicit the most reliable responses from children. The interviewer should also explore possible alternative hypotheses for why an accusation may have been made. For example, the interviewer may ask questions to explore whether an adult gave the child any guidance in advance of the interview, whether the child was confused about the way someone touched them and came to believe it was a “bad” touch, or whether they are making it up to avoid going back to their dad’s home for the weekend.

Find out how much training the person tasked with interviewing the child has had. While some law enforcement agencies have Child Advocacy Centers where interviewers with substantial training conduct the interviews, many times police officers, child protective services workers, social workers and other professionals with minimal training conduct the interviews. Sometimes this information can be obtained through subpoenas, Freedom of Information requests, and motions for supplemental discovery seeking training records and materials.

Do not be discouraged if the interview seems “clean.” Some interviews are conducted by highly qualified professionals who follow the protocols very well, avoiding leading questions, not reacting to the child’s statements, and properly seeking clarification of information. Even when there is no evidence of taint or suggestion from the interview itself, keep in mind that the child may have already had their memory irreversibly altered before the forensic interview – which makes the reported information at the interview still unreliable. A universal truth in the many cases I have defended is that the child is never the one to pick up the phone and call the police. There is always someone else who is an intermediary who talks to the child first. It may be a school counselor who hears the allegation and alerts law enforcement, a parent who asks questions and tries to determine what happened, or a friend whom the child has decided to tell. Many times, several people discuss the issue with the child before a properly trained interviewer sits down with them. Each of these people inevitably influences the child’s memory, and each successive conversation about the abuse implicitly encourages the child to commit to his or her original report. The effect is akin to adding fingerprints to a knife at the scene of a crime.[6]

Reverse roles with the witness to the disclosure, i.e., the person to whom the child initially disclosed. Most times, the person who hears the initial disclosure is someone the child trusts and someone who cares about the child – a counselor, a friend, a family member, and frequently a parent. The reaction of these people, as you can imagine, is typically exactly the opposite of what the protocols call for – emotional, upset, protective, anxious and biased. Many times they ask questions without thinking, trying to get information from the child without considering the importance of asking non-suggestive and non-leading questions.

When there is little to no information about the outcry witnesses, psychodramatic methods give us two critical techniques to turn to: role reversal and surplus reality. By simply putting yourself in the role of a second-grade teacher who just heard a child say that someone has touched them inappropriately, you can imagine your motivation in the moment, and all of the questions you would want to rapidly fire to get more information. Even if you do not know the exact tone of the conversation or specific things that were said, surplus reality gives us the chance to step into the scene and test out different reactions and play the conversations out in different ways. Finding other adults to participate in the exercise by doubling the outcry witness will offer other perspectives and ideas as well.

If the child was in therapy, keep in mind how therapy is different than the preferred way of eliciting information from children through forensic interviews. While forensic interview protocols are designed to limit the potential suggestion, influence and taint that is scientifically known to yield unreliable reports, the cognitive set and evaluative attitude between forensic interviewers and therapists are entirely different. Therapists are trained to be supportive, accepting and empathetic. Therapists proceed using the information that is provided to them by the person being treated, which may be incomplete, grossly biased or honestly misperceived. Their purpose is to further treatment, not to pursue validating the truth of the information provided to them. A therapist does not conduct a factual investigation into circumstances surrounding patient claims. They do not seek information that both supports and refutes the patient’s assertions. They do not have to examine potential reasons that the allegations could be made aside from what the patient relays. The patient is able to work collaboratively with the therapist to define the goals of the therapeutic interaction, free from a rigid structure. The veracity of claims is irrelevant to the therapist, and, therefore, the accuracy of the information itself, as revealed in therapy, cannot dependably be considered reliable.

That said, if a child has been in therapy, find out the techniques used by the therapist in treating patients. Some techniques have been widely criticized to yield, or encourage commitment to, unreliable information. Research supports, for example, that “play therapy” where small children are encouraged to use imagination can induce false autobiographical memories.[7] Additionally, therapeutic intervention that provides continuing support to the complainant can cause the alleged victim to become more attached to and convinced of the veracity of their memory. Therapists who encourage patients to concentrate on a topic, a reported memory for example, have the potential for generating supplemental but not historically reliable details. This is why in many cases, after periods of time have elapsed when abuse has been discussed in therapy, suddenly many complainants come to expand their allegations that they will claim they did not initially remember.

Design your cross-examination with these thoughts in mind and remain flexible with the story. It is easy, sometimes even lazy, to paint the divorcing mother as a manipulative liar who wants custody of the children. Sometimes the facts do not support that narrative. Maybe the mother misunderstood a bizarre statement her four-year-old daughter made, and sincerely believes something sinister may have happened. When children say things like, “Grandpa made me eat his red snake and I hated it,” adults can easily interpret that information in several directions. At the end of the day, it may just be that Grandpa gave the child Twizzlers. Remember that through questioning and information gathering, it is entirely possible someone unintentionally influenced the child without realizing it and it will be difficult to paint them as someone who coached the child with evil intentions. Since the defense has no burden to prove what did happen, the jury can be left with options that may appeal to some and not others. Either (a) the ex-wife is a manipulative and horrible person who set her son up to make claims (and that does happen, but you should be ready to support that story with evidence, not just argument) or (b) the ex-wife genuinely misinterpreted something the child said and through suggestive questioning, unintentionally elicited an even less reliable statement. Either way, the jurors will approve the story that makes sense to them based on their assessment of the witnesses.

Sometimes taking the less aggressive route is easier. Every mother will admit they love their child more than anything in the world. Every mother will admit they wanted to know what was wrong when their child was upset about something or they felt the child was hiding something from them. They will admit they would have done whatever it took to get to the bottom of it. Every child will admit that their mom loves them and that when they reported alarming information, they could tell their mother cared. Since good mothers talk to their children, every child will admit their mom talked to them a lot and showed them how much she cared. The child will usually also confirm that seeing their mom get upset made them more upset…and now the jury can see how the snowball started rolling down the hill.

The summation on reliability is you do not have to prove Evil in order to save your client, at least not on the part of the child or outcry witness. Prosecutors, in their exercise of prosecutorial discretion, are another matter.

FINAL REMARKS — HAVE HOPE!

While cases involving sexual allegations by children are some of the hardest to defend, there are many ways lawyers can defend them. Explaining to clients how the plausibility, credibility and reliability of the claims can be challenged, they will hopefully find hope at a time when they expect it the least. Any hope will give the accused the energy to work collaboratively on their case to turn over every stone in search of the truth and to dig for every shred of information that supports their defense. If you are facing an allegation of criminal sexual conduct in Michigan and need truly good representation for your defense and some hope to keep you going, please call us at (248) 707-5195.

[1] Bruck, M., Ceci, S., & Hembrooke, K. (1998). Reliability and Credibility of Young Children’s Reports. American Psychologist, 53(2), 136-151.

[2] Brainerd, C. & Reyna, F. (2012) Reliability of Children’s Testimony in the Era of Developmental Reversals. Developmental review : DR 32.3 (2012): 224–267.

[3] Johnson, M. K. (1997). Source monitoring and memory distortion. Philosophical Transactions of the Royal Society B: Biological Sciences, 352(1362), 1733–1745.

[4] Pezdek, K. & Roe, C. (1997). The suggestibility of children’s memory for being touched: Planting, erasing and changing memories.” Law and Human Behavior, 21(1), 95-106.

[5] See, e.g., https://www.michigan.gov/documents/dhs/DHS-PUB-0779_211637_7.pdf

[6] Klika, J. B. & Conte J. R. (2016) The ASPAC Handbook on Child Maltreatment Fourth Edition. Los Angeles, CA: Sage Publications, Inc.

[7] Mazzoni, G. and Memon, A. (2003). Imagination can create false autobiographical memories. Psychological Science, (2), 186-188; Mazzoni, G., Loftus, E. and Kirsch, I. (2001). Changing beliefs about implausible autobiographical events – a little plausibility goes a long way. Journal of Experimental Psychology: Applied, (1), 51-59.