Attorney Richard L. Lougee Writing on a Document


Richard L. Lougee March 3, 2017

How did the prosecutor get that way?

In response to graphic accounts of child torture and abuse, Congress in 1974 enacted the Child Abuse Prevention and Treatment Act. While noble in purpose, this act spawned a “child-saving” industry which has been fed by the thousands of increased (and often) false reports resulting from the law's mandatory reporting requirements.

CAPTA poured millions of dollars into state programs established to protect children from child sexual abuse. Much of this funding went to treatment programs and therapists with no training or certification. “Recovered memories” of child sexual abuse became the rage of the 1980's. Roseanne set the tone for the period when she announced on Oprah, “If you're asked if you were sexually abused as a child, there are only two answers: “yes” or “I don't know”.

Special prosecution teams began forming and training to handle the new cases of child abuse being reported. All across the country sex crime prosecutors attended “training” programs designed to convince them their cases were “different”. “Advocacy facts” and “advocacy numbers” became common:

  1. Children don't lie about things “like this”

  2. A recantation is proof of the original allegations

  3. 1 of every 3 females and 1 of every 6 males has experienced sexual abuse at some point in their lives

  4. Most sexual abuse allegations are eventually substantiated

  5. Physical examinations can provide conclusive proof of abuse

  6. Precocious sexual knowledge is indicative of abuse

  7. Children who are sexually abused will “repress” the experience

  8. There are clear emotional and behavioral signs of abuse

These “advocacy facts” were not based on valid scientific study and research (ie. peer reviewed) but rather on the intuitions of those who saw their jobs as “saving children”. Books such as The Courage to Heal became best sellers and advised credulous readers that if they didn't remember being victims of child sexual abuse, they probably were.

Thus, by the 90's, the defense of the child sexual abuse case had become not unlike the defense of the Salem witch case in the late 17th century. The crime alleged was unspeakable and guilt was presumed. “Spectral evidence” was replaced with “syndrome evidence” but the effect was the same: proof of guilt based not on case-specific facts but rather on the a priori conclusions of the accusers. Emotion and sympathy replaced dispassionate evaluation of the facts. Exceptions to the rules of evidence were created because these were “special crimes.” And the tribunals themselves, faced with the political pressures to convict, routinely abandoned their duties to provide fair hearings for the accused.

So when you get your first case of child sexual abuse and the prosecutor seems different and the rules look altered, don't be surprised: they are. And you must proceed accordingly.

Special considerations

For some reason, people charged with sex crimes feel compelled to talk to the police. It is important this not occur since it is really not possible to give a good statement in a sex case (absent the rare single occurrence for which there is an alibi).

Interviewers in these cases are trained to develop information about the “character” of the accused. Does he have a good sexual relationship with his wife? Did he fondle a 7 year old on the bus years before? Does he spend lots of time with 5 year old boys? This background material is obviously being developed to “type” the defendant and will be used by the prosecutors in deciding how to handle the case even if the material is inadmissible at trial. Don't let the client give the government this stuff—it's deadly.

Also, remember many of the people involved in investigating these cases believe the allegations even before they have all the facts. The client won't be giving his statement to a neutral and detached interviewer. Often the following questions are asked:

"Little Mary's always been truthful before with you hasn't she?" "We have physical evidence that someone has had intercourse with little Mary. Do you know anyone Mary might have had sex with?" (Mind you, Mary's 8) "Why would little Mary lie and say you put your penis in her?"

Finally, the defendant can often “type” himself. While denying the specific allegations, he can admit prior inappropriate behavior:

"She slept in my bed while her mom worked…" "She took showers with me…"I don't remember molesting her…"

I did have sex that night but it was dark, I was sleepy and I thought it was my wife… (A variation on this was given by a client who was charged with molesting his 12 year old daughter's 11 year old friend at a slumber party. His explanation was it was dark and he thought it was his daughter he was molesting.)

A related consideration is whether the client should talk to the child protective services worker or to the state's therapist or psychologist as part of a “plan” to reunite him with his children. It is safe to say that if the client is charged with repeated intercourse with his 7 year old, child protective services is not planning a reunion of the family. Secondly, if the client admits to an offense which carries a life sentence, he'll have no family with which to reunite. Write the child protective services worker and advise her that your client will be willing to participate in therapeutic programs once the criminal case is resolved and not before.

Once the client is charged with molesting his daughter, child protective services will often pressure the wife or mother to “emotionally support” her child. What this really means is she is not to cooperate with the client or his counsel. In Arizona there are written contracts the mother must enter which ensure her cooperation with the prosecution as a condition of her continued custody of the child. As the defendant's lawyer, you cannot give legal advice to the mother. Advise her to get her own lawyer, one who understands these cases and how the government operates in prosecuting them.

If the investigation is just beginning, demand by letter that the government's agents videotape all interviews with the child. This is critical. There is no legitimate reason not to videotape these interviews. The circumstances surrounding the interviewing of the child are often the heart of the case. As I will discuss next, an improper, suggestive interview with the child at the outset of the case can irreparably taint that child's later testimony.

The “tainted” child witness

Judges are finally being taught at “judge schools” that there can be problems with children's memories if the interviewing techniques are suggestive. See Psychological Research on Children as Witnesses: Practical Implications for Forensic Interviews and Courtroom Testimony, 28 Pacific Law Journal 3, Fall 1996.

Research now indicates that children, even pre-school children, have good memory ability. However, the following interviewing techniques can replace actual memory with implanted facts:

  1. Multiple interviews

  2. Repeated questions

  3. Leading questions

  4. Confirmatory questions

  5. Use of anatomically correct dolls

See Jeopardy in the Courtroom, Ceci and Bruck, American Psychological Association, 1995.

In many jurisdictions, it is now becoming the rage for prosecution teams to employ therapists to train the child as a witness. Before a recent trial, I learned that state-funded therapists were conducting mock trials for 11 and 12 year girls who played the roles of judge, defense attorney and prosecutor. Playing the defendant was a 6 foot doll with velcro appendages (penis included). At the end of the session the children were encouraged to attack the “perp” doll and pull off the parts, ostensibly to relieve stress. This type of role playing is becoming common and has serious implications for the integrity of the child's testimony.

When there is an issue as to suggestive interviewing (or the effects of the “team recruiting” approach used by the therapists with the practice trials) request a pretrial taint hearing. Authority for this hearing is State v. Michaels, 136 NJ 299, 642 A2d 1372 (1994):

“The pretrial hearing should be conducted pursuant to Evid. R. 104. The basic issue to be addressed at such a pretrial hearing is whether the pretrial events, the investigatory interviews and interrogations, were so suggestive that they give rise to a substantial likelihood of irreparably mistaken or false recollection of material facts bearing on the defendant's guilt.”

If you have any of the following investigative errors in your case, Michaels is authority for a taint hearing:

  1. Absence of a taped initial interview

  2. Inability to control familial factors

  3. Lack of spontaneous recollection

  4. Interviewer bias

  5. Leading questions

  6. Repeated questions

  7. Incessant questions

  8. Vilification of accused

  9. Bribes, threats, cajoling

  10. Appearance of suggestiveness through voice or body language

  11. Multiple interviews

  12. Other influences

The physical findings

In most jurisdictions a claim of sexual abuse by a child will trigger a physical examination. These are often conducted by physicians working for advocacy centers set up by prosecutors. In Tucson, we have the Southern Arizona Child Advocacy Center which the local prosecutors describe as “one stop shopping” for the collection of evidence.

These examinations are often preceded by a social worker taking “the history.” Often the doctor will not discuss the facts with the child but will rely on the “history” taken before her examination. The protocol written by Pima County prosecutors to guide the doctors in these cases recommends the doctors not talk to the children. It is expressly stated that such talks create the risk of the child making inconsistent statements. Remember, the “history” taken at these examinations is not a medical event but a legal event. The statements given by the child at the examination should be challenged as hearsay and not admissible as statements made for diagnosis or treatment. But the prosecutors are right: you want any statements given by the child at any time for purposes of trial impeachment.

Doctors in most large or medium-sized hospitals have colposcopes available to them. A colposcope is nothing more than a magnifying device with a camera attached. They're not that expensive and they're easy to use. The significance of magnified photographs of the claimed medical findings is obvious—your expert gets to see what the government's doctor supposedly saw. The literature is replete with the recommendation that colposcopes be used in physical examinations of children claiming to be sexually abused. The Medical Evaluation of the Sexually Abused Child, Jan Paradise, p. 857; “The Use of the Colposcope in the Diagnosis of Sexual Abuse in the Pediatric Age Group”, Woodling and Heger, Child Abuse & Neglect, Vol. 10, pp. 111-114 (1986); “Use of the Colposcope in Childhood Sexual Abuse Examinations”, John McCann, Pediatric Clinics of North America, Vol. 37, No. 4 (Aug. 1990) pp. 863-879.

Recently I asked a doctor why she didn't use a colposcope during her sexual abuse examination of a child. When she replied “the literature no longer supported the use of the colposcope in such situations” I asked for the literature. What I got was an article with the following quote: “The use of the colposcope has not been found to increase the rate of prosecutors' success in these cases.” Failure to use the colposcope for such reasons by a doctor who collects evidence as part of a prosecution team may constitute the bad faith failure to preserve evidence necessary to support a motion to preclude the doctor's testimony. Arizona v. Youngblood, 488 US 51 (1988); California v. Trombetta, 467 US 479 (1984).

The literature related to the evaluation of children for suspected child abuse is relatively new. Furthermore, few of the doctors who evaluate children and render opinions in sexual abuse cases are competent to do so. In a 1987 study by Ladson, Johnson and Doty, 129 physicians, primarily pediatricians and family practitioners, were surveyed. When asked to label anatomic parts on a picture of the genitalia of a 6 year old, only 59% correctly identified the hymen, 78% the urethral opening and 89% the clitoris. Finally, even those doctors who are competent to do such examinations must base their opinions on the subjective clinical experiences of their predecessors which has been unaccompanied by corrective feedback. “Medical Diagnosis of the Sexually Abused Child”, Bays and Chadwick, Child Abuse & Neglect, Vol 17, 1993.

Questions to be answered at trial

As any experienced trial attorney knows, relying as a defense on the failure of the state to prove its case rarely carries the day. Juries know that you as the defense attorney know more about the case than they do and they want to find out what you know. They're not impressed with legal theories such as presumption of innocence or burden of proof: they want you to tell them in a convincing manner why your client didn't do what the government says he did.

In sex cases involving children, there are really three questions you have to answer if you're going to be successful with a jury:

  1. If your client didn't do it, why is the child saying he did?

  2. If your client didn't do it, where'd the child get the precocious sexual knowledge and vocabulary?

  3. How do you explain the physical findings the doctor says are consistent with sexual activity?

As to the reason for the child's accusations, the possibilities are endless but there is one rule to keep in mind: imputed motive to fabricate is usually not persuasive. If your theory is mom wants to get dad, but the initial disclosure is by the 6 year old to her friend on the playground, there is a real question as to whether a conspiracy theory involving mom and the daughter is going to be persuasive. The point is there can be no loose ends in your explanation as to why the false allegations arose. Maybe mom's repeated and suggestive questioning of the child about an imagined molest has turned the child into a believer with a story to tell. But make sure you can prove this before it becomes your theory of the case.

Precocious sexual knowledge is becoming easier and easier to handle. Juries understand that there are very few 7 year olds untouched by a culture steeped in sex. Nevertheless, it doesn't hurt to cover the bases and to produce evidence that the child saw a porn movie the night before she left for visitation with your client. Obviously, the younger the child, the more important it is to explain the child's information in a manner consistent with your client's innocence. (Note: In the case of the ten or eleven year old who is describing very mature sexual activity, evidence that the child has herself engaged in such activity with someone else is arguably admissible as an exception to the rape shield law).

The physical findings are normally going to be presented to the jury by a child advocate masquerading as a physician. The doctor whose only role in the case is to come before the jury and say “I didn't find anything but that's entirely consistent with sexual abuse having occurred” needs to be precluded on relevance grounds. Offer to agree not to argue the absence of physical findings (it will occur to the jury anyway) and thereby remove any possible relevance this doublethink has. Also, if the doctor did find a fissure or a small healed tear or an enlarged hymenal opening, there is now a great deal of literature which undermines any claims that such findings are diagnostic for sexual activity. “Guidelines for the Evaluation of Sexual Abuse of Children”, American Academy of Pediatrics, pp. 254-259, Pediatrics, Vol. 87, No. 2 Feb. 1991.

The multiple victim case

This is not the place to discuss all of the considerations and difficulties in defending the multiple victim child abuse case. Obviously if the facts are compelling and the defense is not, try to sever the counts involving each victim. Use Evidence Rule 404 (character evidence) as the starting place for your argument that evidence as to each child would not be admissible in the other children's trials were they tried separately. Appellate courts often use this analysis in determining whether a severance should have been granted.

But cases similar in type (age, gender of the child, type of sexual activity) and close in time are probably going to be tried together under your state's version of the emotional propensity or lustful disposition rule. This rule, originally a judicially engrafted exception to the character evidence rule, has now been made a federal rule of evidence and in Arizona has recently been codified. (The question whether the legislature can create rules of evidence which conflict with established rules is a separation of powers issue which has yet to be resolved in Arizona.)

If you have to try a multiple victim case, take the following approach: connect the victims and go after the weak case. Let me give an example: last spring I represented a man charged with molesting his 15 year old daughter, his foster child and his ex-wife's sister. The state's case against the defendant relating to his natural daughter was strong, the foster child less so, and the ex-sister-in-law preposterously bad. In fact, the ex-sister-in-law claimed she was impregnated by the defendant and had an abortion which no one in her life seemed to know anything about. When I learned this victim was conducting Courage to Heal workshops for the other victims (yes, there is a workbook), the case got remarkably better. The jury acquitted my client of all counts in 3 hours.

Remember, there are fundamental principles of advocacy at work in these cases. Not only does the jury look to the lawyers for what happened, it looks to them to assess the truth of the versions presented. A lawyer who argues vigorously on behalf of a weak claim loses credibility-- she diminishes her personal ethos in the courtroom. When the jury stops believing her on one victim, the rest of her claims are in jeopardy. And since many prosecutors are child-savers who believe all victims, it is not uncommon for them to taint the victim pool with a child along for the ride. Look for this and work it.

Picking a jury

There is no lonelier moment than when the 12 count indictment alleging sodomy of a child is read to the prospective jurors and you are sitting next to a client who looks like Chester the Molester. As the judge assures the panel that your client has pled not guilty to all of the charges and is presumed innocent, the arms fold across the chest and hundreds of eyes drill your soul. It's a crisis moment in the personal ethos area. Your client is now presumed guilty and you are presumed a scallywag. Don't let this moment linger. Ask the judge pretrial for permission to give a 5 minute opening statement to the panel. If she allows it, use this opportunity to undo the damage caused by the reading of the indictment. Tell the jurors, indeed argue to the jurors, why your client didn't commit these heinous crimes. Mention that you are appalled by child sodomy but that this case won't be an opinion poll on that issue—the issue will be why your client is being falsely accused. The sooner the panel gets this message, the less your personal credibility suffers.

It is critical in these cases that the prospective jurors give candid information about their backgrounds and biases. You won't get this information from group questioning. Request that the court give the panel members a short questionnaire (a sample is attached) which will focus on the intensely personal areas these cases involve. You can sell this approach to the court by convincing it the questionnaire will save time (judges love to save time) and will elicit information oral questioning will not develop. My experience is that 40-50% of the prospective jurors will be struck for cause based solely on their answers to the questionnaire.

Cross-examining the child witness

If there is one thing to keep in mind, it is that the 5 year old child is never going to be seen by the jury as a malevolent perjurer. She may be the victim of your client or she may be the victim of a suggestive interview process—but she will remain a victim. You must treat her accordingly. A gentle but firm tone is best—but never anger or impatience.

Ask questions that contain one fact and which require an answer only to that one fact: “It was daylight”, “It was cold”, etc. Don't threaten the child with the “fact stick”: “Isn't it a fact it was daylight” or “It was cold, isn't that true.” You can lead a 5 year old but you can't push them—they won't go.

Many sex crimes detectives make a living off the principle that misleading information in a question to a child affects the child's later responses to the same question. While this approach is unconscionable when used by the police, it can be an effective cross-examination technique to show the flights of fantasy a child will take. For example:

"After Miss Jones touched you, she chopped off your penis? She held it in her hand…She put your penis in the closet…Then she locked it in the closet…And she never gave it back."

Obviously you need a factual basis for the initial question to use this approach. (For example, here the child has claimed to the detective Miss Jones “chopped off his penis”). But if you have it, run with it. The child will follow you down the garden path if you keep it simple and non-threatening. Be soft-spoken and don't wander: remember, whatever the child says, however he acts, he's 5 and he's a victim.