Defense of Child Sexual Abuse Cases
Defense of Child Sexual Abuse Cases
STANLEY G. SCHNEIDER
Schneider & McKinney, P.C.
5300 Memorial Drive, Suite 750, Houston, TX 77007, (713) 951-9994
During the past several years, we have experienced a great increase in the number of criminal prosecutions that depend on the testimony of child witnesses, children under the age of 18 years of age. These cases present distinct and difficult problems for the criminal defense lawyers.
For example, traditionally, lawyers are taught to aggressively cross-examine. Terrence MacCarthy, from Chicago, preaches that during cross-examination, the defense lawyers should be in total control of the witness and ask only close-ended questions that require only a “yes” or “no” answer. Another theory is that the lawyer tells the client’s story with our questions irrespective of the answer. The defense of a child sexual assault case requires a clear understanding of the client’s version of events, the relationship between the accused and the child.
When questioning a child, aggressive techniques can interfere with a strong defense and require a defense lawyer to rethink his or her approach to the preparation and execution of the cross-examination. First, many people have very strong feelings about the victimizations of children either as actual victims of crimes or witnesses to criminal conduct that require their appearance in court. Second, our culture abhors child sexual or physical abuse. Third, most potential jurors enter a courtroom wanting to believe all children and to fiercely protect them from both the lawyer defending the accused as well as the child’s alleged abusers.
We have all heard of innocent people being charged with offenses involving children. Yet, as lawyers, we are caught in a dilemma. How do we defend these difficult cases using traditional methods? Experience teaches us that many traditional avenues of cross-examination work only marginally with children. As will be discussed later, a good leading question can do the accused more harm than good because experts suggests that leading questions by examiners, such as CPS or police investigators, can contaminate or manipulate a child by suggesting to the child a desired answer.
Another problem is the changing law regarding the admissibility of extraneous allegations of misconduct. This paper will discuss the problem the practitioner faces with the child witness, extraneous offenses and suggest ways to effectively and creatively prepare a defense. This paper borrows heavily from papers published by Annabelle Hall, lawyer extra ordinaire, from Reno, Nevada, and Jan Marie DeLipsey, Ph.D, a Dallas psychologist, concerning the cross-examination and competency of child witnesses and incorporates their ideas with those of jury consultants Robert Hirschhorn and Nona Dodson, of Cathy Bennett and Associates.
I. Preparation for Cross-Examination
There are many different theories on how to prepare a defense. Some have specific plans to set up a witness with the one question that will clearly establish the innocence of the accused. No matter how you approach a child and the child’s accusation, your preparation is the key to being successful.
A. THEME OF THE CASE
Often a lawyer will actually begin to prepare the defense when the accused first enters the lawyer=s office and the lawyer begins to develop and think of the theme or defensive theory or story that the lawyer will tell that evolves into that wonderful two word verdict. Every single case, regardless of its size, must have a theme that is implanted in voir dire, developed in opening statement, fleshed out in cross-examination, and hammered home in closing argument. The theme must be one that the jury is able and willing to accept.
B. VOIR DIRE
From the theme, a lawyer begins preparation for the defense during the jury selection process. The lawyer has to be mindful that throughout the trial, the jury has to give permission to the lawyer to cross-examine the child witness. Voir dire will provide the basis for your exploration of your defensive issues with the child witness.
Voir dire should incorporate your trial theme and the theme for your cross-examination of the child witness. Voir dire should explore the jurors experiences and feelings about whether children can and do lie and how an adult can cause a child to falsely accuse a person of an act. The collective experiences of the jury panel can effectively educate each other and identify your issues and your client=s experience based on their own feelings and background.
Annabelle Hall reports that in debriefing jurors after trials, jurors often want to know the answers to questions like:
1. Why would a child lie about sexual abuse?
2. How can a child know so much about sex if she has not been abused?
3. Would children lie about sexual abuse?
4. Why would a child make the story up?
These questions can be answered by the jury panel by incorporating them into your voir dire by asking questions like:
1. Based on your experiences, do children lie about important things that happen to them?
2. Can a mother cause a child to lie about something important?
3. Can the age of a child impact the manner in which a child describes events that the child observes. Is there a difference in a child’s perception of events based upon the child’s age?
What is the difference, if any, between a child’s perception of events and a child’s fabrication of events?
4. There are some crimes that make people so angry that just because a person is accused of the crime, they believe he is guilty. Would you agree with that? Why?
5. Some people think that if more than one child claims to have been molested by a person, there must be some truth to their stories. What do you think?
6. What are some reasons that the children of a man=s ex-girlfriend might say they were sexually molested but were not?
7. What would you do if children falsely accused you of sexual molestation or assault?
8. [To a teacher] Given your experience with children, have you ever known a child to lie or fib about important things? Why?
Each of these questions can incorporate issues or your trial theme that can be thread throughout your presentation.
Annabelle Hall, The Cross-Examination of a Young Child in a Sexual Assault Case, VOICE FOR THE DEFENSE (October 1999).
C. BECOME AN EXPERT ON THE CHILD
Knowledge can be a very powerful tool of the lawyer in preparing for cross-examination of any witness. The more you know about a child, the better able you are to tell your client=s story and show that the government theory of prosecution is wrong.
1. Interview the Child.
If it is possible, try to interview the child witness prior to the commencement of trial. It is important to know how the child is going to react to questions and for you not to be a total stranger. Most of the time, the first opportunity that the lawyer gets to meet the accuser is in the courtroom.
When dealing with young children, one effective way to meet the child and perhaps question the child is to challenge the competency of the child to testify. Texas Rules of Evidence Rule 601 provides that as a general rule every person is competent to be a witness. A child is not incompetent if the child appears to the court not to posses sufficient intellect to relate transactions with respect to which they are interrogated. Often this means that the trial court asks a child a series of questions about colors and whether the child knows what is a lie and what is the truth. The child will be competent to testify. However, the important thing to remember is that you will have met the child and to observe the child’s answers questions. This will help you a great deal in preparation for the actual cross. You will not be a stranger.
2. Review Records.
Review all of the child’s permanent records, including, but not limited to, medical records and school records. Issue subpoenas early in your investigation for school records, medical records, day care center records or any other type of document that can provide information about the child. For example, in a sexual assault trial, on direct examination, a child, in the fourth grade, testified that the last time that the accused molested her was during the summer before third grade and she remembered that he moved out of the house while she was in the third grade. It was established from a number of independent witnesses, including the child’s mother, that the accused moved out while the child was in the first grade and not the third grade. The child’s cross-examination created a time line of events relative to her third grade experience and the accused moving out of the house just before Christmas the year before the trial. Her impeachment would come from other witnesses and the school records. Her veracity could be questioned indirectly based on circumstances of the allegations and relationship between the parties.
3. Child’s Interests.
Find out all you can about the child’s interests by talking to others that know the child. It is important to make the child be at ease with you and get the child use to answering questions that are easy. You might be able to create a situation whereby the child answers all of the State’s questions with full answers and then answers all of your questions with a single word yes or no or nope. By getting the child talking about his or hers interests, the jury can observe the child answer questions of no importance yet be unable to converse or answer questions about the allegations or her relationship to the accused or other witnesses.
In one case, a child lived with the accused for several months and loved to play with the accused’s large dog. The child was asked, “Did Charley have a dog at his house?” The child replied no. This clearly showed the jury that the child’s memory was impaired concerning the time period that was important to the child’s story. Part of our theme was that the child was trained to tell a particular memory.
In that same trial, part of our defense was that the child’s created memory was also limited by his perception of events based on the child’s experiences and vocabulary. During the competency hearing, I learned that the child liked baseball so I began my cross by talking to him about baseball using baseball cards. Then I used the baseball cards to exhibit to the jury the boy’s cognitive skills by asking him to describe the actions being depicted on each card.
4. Family Dynamics.
The child’s family dynamics can provide the background information to explain the child’s need for attention as a basis for the lies or the basis for his perception of events observed. Learn the particular problems of the family. Then find how they impact the situation that lead to the allegations. You will need to contact a psychologist to discuss the impact that the family dynamics might have on the child’s emotional, physical or intellectual developments.
For example, assume a man lives with a woman for three years and leaves her for an older woman. Assume also that the man owns the house they all live in. After he leaves, the jilted woman=s three children, a boy and two girls, accuse the man of sexually abusing each of them. These simple facts lead to three possible topics during cross-examination:
a. the mother’s anger and embarrassment for being replaced by an older woman;
b. the children’s feelings of insecurity because of the man=s ownership of their home;
c. the desire of the children to please their mother and that they are dependent on her.
5. Child Interviews.
Review all interviews of the child conducted by police or “unbiased” agencies. In Harris County, we must view the tapes in the district attorneys office. Arrange to view the video in private and in the company of your expert. Take lots of notes about the process that is used by the interviewer. View the tapes more than once.
Remember that open ended questions require a narrative response. Closed ended questions require a “yes” or “no” answer. A narrative style report from a child is more likely to be free from error. Closed ended questions, suggestive questions, leading questions, and repetitive questions are associated with inaccurate statements or false claims by children. The younger the age of the child, the passage of time, and the lack of neutrality by the interviewer increases the problem of inaccurate reporting.
Caveat: After the child testifies, request an opportunity to review the child’s video statement prior to the commencement of your cross-examination. Texas Rules of Evidence, Rule 615. The judge should be reminded of your right to review both the recorded statement and any verbatim summary of that statement. Rule 615(d) requires the trial court to grant a recess to afford trial counsel the opportunity to review the statement and “prepare for its use in the trial.”
6. Psychological Examination.
Determine if the child has been examined by a psychologist in preparation for trial or for treatment related to the trial issues. Attempt to obtain any notes written by the therapist relating to statements made by the child witness. Arguably the statements are discoverable. If the trial court rules that they are not discoverable then surely the number of meetings with the therapists should be discoverable so that you can establish that the child was trained to answer questions and tell a particular story.
For example, the State presented an expert witness, pretrial, relating to the closed circuit presentation of the child to the jury. In the year after the events that were the basis for the indictment, the child was never taken to treatment. However, the therapist=s notes reflected that in the eight weeks prior to trial, the therapist met with the child ten times to help the child get ready to tell his story.
II. Possible Defenses
1. Contamination:
Children can be “taught, coached, manipulated” into believing that they have been sexually abused, the witness contamination follows for the duration of the case. Children are trapped by the system designed to continue a case, even in view of horrendous contamination.
2. Parental Alienation:
(a specific type of contamination of Family Law cases) Dr. Richard Gardner of New York has written quite a bit on this subject. In a divorce/child custody case, this will most often be the defense. Learn it well. The Parental Alienation Syndrome and the Differention Between Fabricated and Genuine Child Sex Abuse, Richard A Gardner, M.D., Creative Therapeutics, 1987, 155 County Road, Cresskill, NJ 07626.
3. Impact of the Defense of Contamination on the Cross-Examination of the Child:
a. Most often, the child truly believes she/he has been abused.
b. The courtroom atmosphere will be ugly and tension high after the child’s direct examination, and now you stand up to cross-examine. This atmosphere affects you as the lawyer too. Change it as quickly as you can.
III. The Setting for Cross-Examination
TEX. CODE CRIM. PROC. ANN. art. 38.071 (Vernon 2001) allows, in almost any prosecution in Texas involving offenses against persons, where a child is either a witness or alleged victim, for the court to allow the testimony of a child outside of the courtroom either by prerecorded testimony or via closed circuit television, if the court determines that a child younger than 13 is unavailable to testify in the presence of the accused. A child is unavailable to testify based on a number of relevant factors, including age, relationship with the accused, and the offense alleged. Ultimately, the trial court=s determination is based on whether the child is more likely than not to be unavailable to testify because:
1. of emotional or physical causes, including the confrontation with the defendant; or
2. the child would suffer undue psychological or physical harm through his involvement at the hearing or proceeding. Caveat: Annabelle Hall reports there are more not guilty verdicts when video testimony is presented by the State rather than live in a courtroom. The use of video dilutes the emotional impact of the child. Should you agree to closed circuit testimony? NO. Never agree to proceedings that allow close circuit telecasting of a child’s testimony. The hearing required will provide a great deal of discovery that is not normally allowed; eg., the child’s therapist.
IV. Length of Child’s Testimony
Another consideration is the ability of the child witness to be questioned for a long period of time. Be careful to observe the child’s demeanor and, when the child begins to fidget or appears to be tired, request a break so that you can maintain the child’s attention and focus for questioning. The State might argue that the child did not answer a question during cross because the child was tired.
V. Interviewing the Child Witness
Jan DeLipsey, suggests that the accuracy in a child’s report can fluctuate tremendously depending upon several factors: cognitive development, cognitive demands of the circumstances, cognitive demands of the interview, emotional and social factors, motivation to be truthful, motivation to please others. The prosecution will often challenge the defense to prove that the child witness is fabricating a story. But all experts will agree that the observations of a child depends on the child’s perspective and ability to verbalize the events that are observed. Prior to cross-examining the child, you need to learn about the child’s development; strengths and weaknesses. Based on the background or the interviews conducted by the State or others there may be misleading information or suggestive interviewing associated with false reporting. This would include the child’s understanding of abstract concepts, language abilities, attentional abilities, and memory capacity. For example, a child’s allegation that a man hit his brother in the stomach, hit him on the back, and put a pillow on his brother=s face can translate to chest compressions, clearing air passages and patting the child on the back during CPR.
The lawyer’s preparation must include learning the source of the child’s memory which is referred to as “Source Monitoring.” Source Monitoring is the research finding that explains how children may come to believe they were injured or describe the events that are subject of the testimony. The younger the child, the more difficulty that child will have in being able to know the actual source of the memory. The younger the child the more errors in identifying the source of the memory. The passage of time usually has a detrimental impact on recall. Younger children are particularly vulnerable to making reporting errors with the passage of time.
The lawyer’s preparation must include learning the source of the child’s memory which is referred to as “Source Monitoring.” Source Monitoring is the research finding that explains how children may come to believe they were injured or describe the events that are subject of the testimony. The younger the child, the more difficulty that child will have in being able to know the actual source of the memory. The younger the child the more errors in identifying the source of the memory. The passage of time usually has a detrimental impact on recall. Younger children are particularly vulnerable to making reporting errors with the passage of time.
3Jan Marie DeLipsey, Ph.D., Child Sexual Abuse, EXPERT WITNESS MANUAL (Family Law Section, State Bar of Texas 1999).
VI. Cross-Examination
The cross of the child, like any other witness, should have a beginning, a middle and a strong ending. Based on your investigation and preparation and defenses, an outline of your cross can include the following:
1. Beginning:
Make the child talk. You are a stranger and probably have never met the child or talked to the child. Find a topic that will allow the child to relax.
2. Identify who the child is:
a. Determine the physical abilities of the child.
b. What is the educational level of the child?
c. What is the child’s personality?
3. Identify the child’s living environment:
a. Typical day of the child.
b. Type of housing for the child.
c. Who does the child depend on?
d. How many children or adults are in the home?
4. If relevant, identify the basis for the child knowledge of sex.
5. Determine the origins of the child’s story.
6. Identify stressors in child’s life.
7. Identify rewards for disclosing abuse.
8. Watch for key prosecution phrases repeated in rote fashion by the child.
9. Explore the child’s feelings for role players in the case and the strength of the child’s feelings toward them.
10. Show the attention given to the child because he is a witness.
11. The allegations:
a. never repeat the abuse.
b. bring out physical impossibilities.
c. bring out prior inconsistent statements.
d. reveal differences between other child witnesses.
e. demonstrate vulnerability to suggestion.
12. End on a strong note that leaves the jury with a positive feeling towards you. During a cross of a 4 year old boy, I asked if he had ever seen a teddy bear that I pulled from a box at my feet. He asked to hold it. We talked about it. Then he wanted to take a nap with the teddy. The child denied ever seeing the bear. Later, I showed the jury a picture of the teddy bear in the child’s bedroom in my client=s house.
VII. Extraneous Offenses
Texas has long subscribed to the common law rule regarding the admission of extraneous act evidence in sex offense cases, particularly those involving sexual abuse of children. The extraneous acts must be between the defendant and the victim. Battles v. State, 140 S.W. 783 (Tex. Crim. App. 1911). Alvarado v. State, 775 S.W.2d 851 (Tex.App. – San Antonio 1989, pet. ref’d). The principle was followed in the 1985 Boutwell case, in which the Texas Court of Criminal Appeals noted that such rule permits:
[T]he admission of acts which occurred between the minor complainant and the defendant so as to explain the charged act and view such an unnatural act in light of the relationship of the parties as well as to make a child’s accusation more plausible. A jury would otherwise hear essentially an incomplete version of the charged offense, as though it had occurred in a vacuum as a one-time act. Such evidence, standing alone, might be considered implausible or incredible. [This] narrow exception seeks to alleviate some of that problem.
Boutwell v. State, 719 S.W.2d 164 (Tex. Crim. App. 1985).
In Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992), the Court pointed out that after Montgomery, the rule of Boutwell must be considered in conjunction with 404(b). The appeals court’s analysis of the case was found to be flawed inasmuch as it offered no “. . . plausible reason for thinking that proof of the prior extraneous offenses actually made any fact of consequence to the prosecution in this cause more or less likely. . . .” See also Pavlacka v. State, 892 S.W.2d 897, 902 (Tex. Crim. App. 1994)(holding, following the dictates of Montgomery, that the victim in a child sexual assault trial who is impeached cannot be rehabilitated by testifying to other acts of the defendant’s sexual misconduct against him). Because of these decisions, the Legislature enacted Tex. Code Crim. Proc. art. 38.37 which explicitly admits the type of evidence rejected in Pavlacka and Vernon.
Rebut Defensive Theory.
a. In General. If the defense stakes out a strategy which raises the relevancy of extraneous offenses, the uncharged misconduct may be admissible to directly or indirectly rebut that defense. The defendant has “opened the door” to the admission of uncharged misconduct. See, e.g. Logan v. State, 840 S.W.2d 490, 497 (Tex. App. — Tyler 1992, pet. ref’d)(when defense to felony murder was accidental fire, State could show defendant’s role in helping burn a relative’s mobile home, also for insurance proceeds); Wiggins v. State, 778 S.W.2d 877, 881-87 (Tex. App. — Dallas 1989, pet. ref’d)(extraneous offense admissible to refute a defensive theory or strategy; when defendant in rape case testified both that he did not have intercourse with victim and that the victim consented to any acts that he did commit, he raised defensive issue of consent, thereby making evidence of other nonconsensual sexual acts admissible); Pleasant v. State, 755 S.W.2d 204, 205-06 (Tex. App. — Houston [14th Dist.] 1988, no pet.)(extraneous offense admissible to rebut alibi defense); Yarbough v. State, 753 S.W.2d 489, 490 (Tex. App. — Beaumont 1988, no pet.)(when defendant claimed self-defense, he could be cross-examined on two extraneous knifings in which he was the aggressor and State could bring on witnesses to prove them up when defendant denied their commission).
This exception does not justify the wholesale introduction of extraneous offenses. The evidence sought to be introduced must contradict or show improbable some specific aspect of the defensive theory. Williams v. State, 481 S.W.2d 815 (Tex. Crim. App. 1972). For example, in Gale v. State, 747 S.W.2d 564, 567 (Tex.App. – Fort Worth 1988, no pet.) the defendant, on trial for injury to a child, claimed that he himself had been abused as a boy. The State took that as an invitation to prove that the defendant had also assaulted the victim’s mother, claiming that the evidence was justified by the “defensive theory.” The court noted that a defensive theory “is one which, if believed, negates the culpability of the accused.” It then found that this claim by the defendant could not “by any twist of logic be termed as a defensive theory” and reversed. Id.
b. Child abuse cases. This is an area in which appellate courts have frequently addressed the admissibility of uncharged misconduct to rebut a defensive theory – usually that of fabrication by the victim or manipulation of the victim by others. In Wheeler v. State, 67 S.W.3d 879, 884-84 (Tex. Crim. App. 2002), the Court of Criminal Appeals held that the State was entitled to cross-examine a defense witness concerning a prior allegation of sexual abuse and offer specific evidence of the prior act. The defensive theory was that the defendant was not the kind of person who would commit such an act and that he had no opportunity to commit the offense because of the close proximity to other people at the time. The defendant called a children’s protective services worker to testify that there was no risk of abuse or neglect found in defendant’s home. The Court held the State could inquire into the witness’ opinion and the basis thereof, as well as question the witness about information of which she was aware, but upon which she did not rely, ie., the allegation of a prior assault. Id. at 883. Additionally, the State was entitled to offer testimony, during rebuttal, regarding the facts of the extraneous act because, like the case at bar, it involved an allegation of abuse which took place in close proximity to other people. Id. at 886.
In Waddell v. State, 873 S.W.2d 130, 132-38 (Tex. App. — Beaumont 1994, pet. ref’d), the trial court properly admitted evidence of an extraneous offense in an indecency with a child trial when the defendant’s theory was recent fabrication and that the victim’s parents were engaged in a scheme to discredit the defendant’s reputation.
Similarly, in Creekmore v. State, 860 S.W.2d 880, 883 (Tex. App. — San Antonio 1993, pet. ref’d), the State was permitted to offer, during rebuttal, testimony of three other victims who were near the age of the victim in an indecency with a child prosecution. Here the victim’s testimony was challenged by suggesting that: 1) she was jealous; 2) she told lies; 3) her testimony was contradicted by defendant’s witnesses; 4) her mother was a lesbian; 5) she and her mother watched X rated movies; and 6) she and her mother touched each other in sexually suggestive ways. The defense attempted to show that the child’s testimony was all a plot against the defendant because he was a strict disciplinarian.
In Silva v. State, 831 S.W.2d 819, 822 (Tex. App. — Corpus Christi 1992, no pet.) the court held that evidence of defendant’s prior sexual conduct with the child-victim was admissible once the defendant testified denying the event occurred and implying the child was lying. The trial court allowed the extraneous acts during the State’s case-in-chief. The court of appeals, however, held that the error was cured when defendant testified. Id.; but see Owens v. State, 827 S.W.2d 911, 917 (Tex. Crim. App. 1992)(error to admit evidence of defendant’s prior sexual conduct with his elder daughter at age 11 in prosecution for sexual assault of younger daughter at age 11 even though defendant testified and denied that event occurred and implied that he was a victim of “frame-up” by daughters who lied; here trial court admitted evidence to prove defendant’s “system,” but it was only at appellate level that rebuttal of defensive theory was raised).
