Investigative Procedures in Allegations of Child Sexual Abuse

Part III: Indictment and Trial

John C. Wideman*

ABSTRACT: In the first two parts of this series, we discussed the basic investigative procedures to use in approaching cases of child sexual abuse.  In this part, the investigator's role in the indictment and trial is discussed.
  

At this point in the investigation, it is time for the investigator to take everything he has obtained to the prosecutor and begin the judicial process.
  

The Prosecutor

My experience has been that some prosecutors do not carefully read investigative reports until just shortly before trial.  In those cases, the prosecutor usually winds up either sending the investigator out to run down leads at the last minute or simply goes with what is available, leaving holes in the case that can be exploited by the defense.  Therefore, have a face-to-face, detailed meeting with the prosecutor concerning the case before presentation to the Grand Jury.  Review the case carefully to convey areas of concern to the prosecutor at the meeting.  Also, a case summary is often valuable in bringing the prosecutor up to date, if he has not been closely involved throughout the investigative process.

At the time of the meeting with the prosecutor, all of the investigative activities should have been completed, including the receipt of all laboratory reports.  Copy and logically organize all written materials for the prosecutor.  All too often, investigative documents come to the prosecutor piecemeal and are stuffed in a file folder.  When this happens, material may be misplaced, and subsequently not properly furnished to the defendant pursuant to a discovery request and a portion of the case will be jeopardized.  To avoid this, present the investigation to the prosecutor in an orderly format.  The prosecutor needs the investigative documentation in loose leaf format since it will be copied at least once while it is in his possession.  To aid in this process, take the investigative material, arrange it, and bind it in a three-ring, loose leaf binder or with any other form of simple three-hole binder.  The important thing is to have all the information in one place in a readily accessible form.  The arrangement of the materials is not of significant importance as long as there is a comprehensive index of the materials.  A suggested format is as follows:

1. Investigative report (investigator's written report of his investigative activities and any drawings made by the investigator such as crime scene sketches, etc., unless they are too large for this format).

2. Written statement(s) of suspect, signed or unsigned.

3. Non-written, verbal statement(s) of suspect. (i.e. transcripts of tape recorded statements or investigator's summary of verbal statement not electronic ally recorded.  A copy of any audiotape should be included).

4. Written statement(s) of victim.

5. Non-written, verbal statement(s) of victim.

6. Written statement(s) of witness(es).

7. Non-written, verbal statement(s) of witness(es).

8. Physical evidence (usually this will be a list of the physical evidence available in the case since most physical evidence is too bulky to include in a file folder and the investigator will want to maintain control of the chain of custody of the evidence for later trial purposes.  Fully describe each item of evidence and include its relevant evidence item number so that correlation with laboratory reports will be simpler.  This will eliminate confusion when there are, for example, several different blood samples, hair samples, etc.).

9. Laboratory examination reports; autopsy protocols.

10. Photographs (each photograph should be individually numbered, have the appropriate case number, the date it was taken, the photographer's name and any other technical information placed on the back.  Prepare a separate sheet indexing the photograph number and giving a detailed explanation of what the photograph shows and its relationship to the case.  In complex cases, a photographic diagram showing the crime scene and the location from which each photograph was taken may be in order.  Retain the negatives of all photographs in his case file since they are not needed by the prosecutor at this early stage, if at all.  Make copies of videotapes and give a copy to the prosecutor along with a transcript).

This arrangement will make it easier for the prosecutor to quickly review the case.  It should have a very comprehensive index in the front of the case if there are a large number of witnesses, many pieces of physical evidence or numerous photographs.  This will materially aid the prosecutor, and the investigator, in rapidly finding items at a preliminary hearing or trial.
  

The Arrest

The prosecutor may, for any number of reasons, want to have an arrest warrant issued prior to an indictment of the matter.  If this is the case, obtain the warrant through the routine channels and execute the warrant on the person named.  The warrant will probably be issued upon the affidavit of the investigator.  Carefully review the affidavit for sufficiency before it is used for the warrant since an insufficient affidavit may make the warrant, the arrest and anything following from the arrest invalid and not useable at trial.(25)

Make the arrest in accordance with state law and department policy.  At the time of arrest, advise the arrestee of the fact that a warrant has been issued for his arrest and the nature of the crime charged.  Next, advise him of his "Miranda" rights (see also Part II of this series for a discussion of the Miranda rights) in accordance with state case law and departmental policy.  I have seen several cases jeopardized by officers who waited until they got the arrestee back to the stationhouse, jail or magistrate's office before advising the arrestee of his rights.  In the interim between arrest and arrival, important discussions took place which were later ruled inadmissible.  Don't take a chance.  After the arrest situation is secure, advise the arrestee of his rights.  People have a penchant for wanting to "explain" or mitigate their situation early on in custody situations as if that will somehow lessen what is about to happen to them.  If the investigator acts promptly in advising the arrestee of his rights, this situation may be exploited.
  

Search Warrants

A brief word needs to be said here about search warrants.  As we are all well aware, a search warrant, based on an affidavit, may be issued at any time during the investigation that sufficient probable cause exists to have a magistrate, or other authorized court officer, issue one.  There is a tendency on the part of some investigators to use a consent search while they are there and someone is amenable to letting them search the suspect premises or location.  Often times, it is difficult in the field to determine just exactly who has standing to permit a warrantless search of what area.  On occasion, exigent circumstances exist where a warrantless search might be called for.  These are truly rare.  In every case, where time permits and there are no exigent circumstances, GET A WARRANT.  If necessary, leave an officer to protect the location while the warrant is obtained.

When obtaining the warrant, include every possible class of item that might be conceivable in your case.  The usual items include clothing (underwear, shirts, socks, trousers, shoes, etc), equipment (knives, guns, rope, twine, blindfolds, wire), and transportation (cars, trucks, bicycles, motorcycles).  Don't forget some of the unusual items like men's ties, jewelry (rings may contain biological items from the victim), handkerchiefs, rags used to wipe off blood, semen, etc.  Pay particular attention to the interior of any vehicles used to transport the victim, or even if not used to transport the victim, to transport the suspect to or from the crime scene.  For example, if a suspect denies ever having been in the area of the crime scene an examination for, and comparison of, diatoms found in the dirt on the car floor carpeting with the dirt at the crime scene might make a comparison which will tie the suspect to the crime scene.

In child sexual abuse cases, there will rarely be physical evidence of the abuse except in those cases where there has been actual sexual intercourse, ejaculation or other transference contact.  In many cases, the contact between the suspect and the victim will have been such that certain biological materials such as hair, skin, saliva and possibly even blood might not be indicative of sexual abuse or of probative value in your case.  In the cases where "touching" is the only accusation, there will probably be no physical evidence.

During the search, be thorough and imaginative.  Always check the garbage, clothes washer, dish washer, laundry hampers and other areas where items might have been placed.  Check trash heaps in the back yard.  Be aware of newly turned earth where something may have been buried.  Always check crawl spaces under houses, attics and exterior buildings.  When in doubt, seize the item, mark it for later identification, properly bag it for transportation to the forensic examiner and note it on the return of the search warrant.  If it is not needed, or is negative for forensic evidence, it can always be returned to the suspect.

In those cases where the suspect has no valid reason for having been in contact with the victims (e.g. the Wayne Williams case in Atlanta), careful forensic examination of clothing and other items belonging to the suspect is in order.  Take extreme care to insure that no cross contamination occurs between the victim's belongings and the suspect's belongings while the items are in police custody.  For this reason, NEVER bag, store, ship or handle the items at the same time or same place while wearing the same clothing or gloves.  Handle the items completely separately until they can be examined by a forensic specialist in the proper laboratory environment.  Professional forensic scientists change smocks, gloves and locations when working with comparison fiber evidence items.
  

The Preliminary Hearing

In the event that an arrest is made prior to any Grand Jury action, there will be a preliminary hearing held within a short period of time.  At the preliminary hearing, there will be a determination as to whether there is sufficient probable cause present so that the matter should be bound over to a Grand Jury.  A so, bail will be set for the suspect, if this has not already been done.

Most competent defense attorneys will use the preliminary hearing as a means of discovery.  Some magistrates will let them go to significant lengths in this regard.  Some will not.  In child sexual abuse cases, there are two different theories about whether or not a preliminary hearing should be risked, and if the victims should be present to testify at the preliminary hearing.  Let's look at the different possibilities.

Taking a case directly to the Grand Jury, without arresting the suspect, eliminates the preliminary hearing, lessens discovery possibilities for the defense and totally eliminates the possibility that a victim will have to testify at that hearing.  An indictment from a Grand Jury can be obtained solely on the testimony of the investigator.  However, a pre-indictment arrest will result in a preliminary hearing and offers the possibility of defense discovery.

A consideration will be the strength of the case and the suitability of the victims.  I am aware of circumstances where the victim was so strong that a preliminary hearing was held to demonstrate to the defense the strength of the case.  That case resulted in an information being filed and an early plea.  For this reason, the prosecutor will rely, initially, on the investigator's opinion of the case and will probably, at some point, want to talk to the victim himself.

It is rare that the victim will be asked, or required, to testify at a preliminary hearing.  The task of presenting information will fall on the investigator.  For this reason, the investigator should be thoroughly knowledgeable about the case.  An investigator's testimony at a preliminary hearing is taken under oath, and sometimes recorded.  In virtually every case in my memory, investigator mistakes on testifying at a preliminary hearing have led to extreme problems at trial, in some cases fatally injuring the state's case.  Testifying at the preliminary hearing is just as important, if not more so, than testifying at trial.

At the hearing, answer questions clearly and completely.  Any attempt to "tapdance" or evade questions by defense counsel will point up weaknesses in the state's case.  Conversely, if a record is kept of the areas explored in detail by defense counsel, it may give some idea of areas of interest to the defendant areas which might require further investigation by the investigator.  Prior to testifying, confer with the prosecutor to make certain that sufficient information is presented, and all elements of the crime covered (including venue), to insure that the case is bound over to the Grand Jury.  In most cases, all the evidence obtained will not be placed before the magistrate at a preliminary hearing.  Other, non-victim, substantive witnesses might be used at the preliminary hearing to add detail if the prosecutor deems them necessary.
  

The Grand Jury

Usually, the prosecutor will review the case and then call the investigator to appear before the Grand Jury for a presentation of the matter.  There is a hot debate that has been going on for many years about abuse of the Grand Jury system.  It is often said that the Grand Jury is little more than a prosecutor's tool.  In some cases, proven at law, this has been true and the Grand Jury process has been corrupted(26).  Often, however, there are only mistakes made with Grand Juries which create problems for a case.

Grand Jury appearances are an integral part of the judicial system's assurance of fairness for all accused persons.  The Grand Jury is the first point of formal accusation by an accused's peers.  For this reason, Grand Jury testimony is seen by the courts as an important step, subject to review and, if abused, grounds for reversal of a conviction(27).

The investigator must be scrupulously proper and accurate in his testimony before the panel.  Respond directly to the questions posed by the prosecutor or the Grand Jury members, but do not not give assumptions, opinions or conclusions.  The fastest way to jeopardize a case is to get out of line.  I have child sexual abuse cases on file where the investigator testified before a Grand Jury without a prosecutor present, misstated the elements of the crime, misstated the law, made assumptions, and gave opinions.  It is not the investigator's job to advise the Grand Jury on the law and to direct the Grand Jury.  To do so places the investigator in a completely untenable position and opens him up to significant, hostile cross-examination at trial.

Just as with the preliminary hearing, the investigator's testimony will be taken under oath and recorded.  The record of this testimony, and that of other witnesses, will be provided to the defendant if the Grand Jury witnesses, including the investigator, testify at trial, in accordance with Jencks(28).  Be assured that any testimony at preliminary hearing and Grand Jury will be used to cross-examine the investigator at trial.

Many cases are now being decided which require the prosecutor to present exculpatory evidence (that evidence tending to indicate innocence or lack of guilt) and well as inculpatory evidence (that evidence tending to indicate guilt) to a Grand Jury.  In some cases, a conviction has been overturned because such exculpatory information was not provided to the Grand Jury.  If the investigator is aware of any such information, he should bring it to the attention of the prosecutor so that it might properly be presented.  What might constitute exculpatory evidence is a decision the prosecutor will have to make, to be second guessed by the Court at a later date.  If a victim materially alters her story, or changes her story, is that exculpatory?  Some authorities argue that changing stories is indicative of child sexual abuse.  If there are significant deviations by the victim from known fact, is that exculpatory?  If the victim first accuses, then later denies anything happened, is that exculpatory?  When in doubt, give it all to the prosecutor.
  

Pre-Trial Activities

For most pre-trial activities, the investigator will not have to be present.  There are some instances, however, where they will.

As trial approaches and the interaction between prosecutor and defense counsel increases, areas of concern to the prosecutor will be highlighted.  As these occur, the prosecutor will turn to the investigator for followup.  In child sexual abuse cases, it is not uncommon for other, unknown victims to come to the attention of authorities once the suspect has been identified publicly.  Whether these are actual victims or persons who are falsely reporting for one reason or another will have to be determined.  As a rule, unless there are compelling reasons to do so, one case already at the post-indictment stage should not be contaminated by another case not yet thoroughly investigated.  There are conceivably instances where a superseding indictment is in order, but do not succumb to the temptation to "pile it on" the suspect in the hope that more counts will cause a plea to be forthcoming or the case will somehow be strengthened.  Once collateral matters are joined to another case, it is extremely difficult to ever separate them again except on motion by the defense.

There is also the possibility that while the first report of abuse was valid, subsequent alleged acts might not be.  Each allegation of abuse requires its own separate, thorough investigation.  If such allegations occur before indictment or arrest, it might be wise to hold off on any such action until the allegations are investigated and a determination is made as to their validity.

Another thing that may occur is that other witnesses will be identified.  These may be persons who come to authorities and offer their information, persons identified by the victims or other witnesses as having relevant information, or persons identified by the defense as witnesses in their behalf.  In order that all possibilities might be covered, as the witnesses are identified, have them interviewed and statements taken from them.  These statements can then be integrated into the case file where necessary.

A special note is required about defense witnesses.  Some of the defense witnesses will be substantive witnesses, particularly if an alibi is raised.  These witnesses should be carefully interviewed and statements taken from them, if they agree to be interviewed.  Remember that you cannot make someone talk to you if they do not wish to do so.  A low key, non-threatening demeanor will go a long way toward avoiding that possibility.  If they agree to be interviewed, be thorough and obtain a written statement, if possible.  If they refuse to be interviewed, politely excuse yourself and make a note of the date and time of the refusal.  Such refusal can be used by the prosecutor in cross-examination of the witness at trial to impeach the witness's credibility.

In my experience, it is extremely rare for law enforcement investigators to interview defense witnesses prior to trial.  An advantage, with no cost to the state, is lost by not interviewing these witnesses.  In some cases, if the witnesses are interviewed, the prosecutor may want to locate, or if they are already available, bring on rebuttal witnesses to contradict, or impeach, the testimony of defense witnesses.

Some of the defense witnesses will be character witnesses.  If they are numerous, the prosecutor may go to the Court and ask the Court to instruct the defense to identify those witnesses who are character witnesses, as opposed to those who are substantive, evidentiary witnesses.  In many cases, the Court will order such a distinction for purposes of "judicial economy" and to make the case flow smoother at trial.  As a general rule, character witnesses will give very limited testimony, generally concerning the defendant's reputation for truth and veracity in the community.  This is especially true if the defendant takes the stand and testifies in his own defense.  Most of the time, it is not worth the investigative effort to interview these witnesses.  However, the prosecutor may want some interviewed for purposes that are idiosyncratic to the case.  Also, everyone knows that the Court will limit character testimony to just a few witnesses.

Although the investigator will have little to do with it, there is a growing body of case law wherein juvenile victims of sexual abuse are being required by the Courts to undergo psychological evaluation by either Court appointed psychologists or defense requested psychologists.  This varies widely from jurisdiction to jurisdiction.  Of interest to the investigator is that this factor should be a consideration throughout the pendency of the investigation.  Since the investigator will have more contact with the victim(s) than the prosecutor, the prosecutor will probably ask the investigator's opinion of the viability of the victim under such examination, as well as under trial examination.  If the investigator is aware of any prior psychological or psychiatric history of the victim(s) he should seek to obtain the relevant records and provide them to the prosecutor.  The records can usually be obtained with a standard written release from the victim(s) parents or guardians.

One area that the investigator may have some interaction with is if the Court orders the victims to be made available to the defense attorneys, investigator or expert for interview.  Usually, the Court will set the conditions for the interviews in order to protect the victims from any harm.  These interviews should be recorded and a copy of any tapes provided to both parties.  In this case, the investigator should immediately review the tapes, and any available transcripts, for the purpose of integrating the information into the case file.  Also, typically there will be variations in information received from the victims because of the fact that they are children and because of differences in interview techniques among interviewers.  These differences need to be carefully cross-referenced because the defense will certainly raise them at trial.
  

Suppression Hearing

The last thing before trial will be a suppression hearing.  It is at this point that the defense will seek to limit the use of certain evidence collected by the investigator, usually evidence directly connected to the defendant, such as statements.  It is here that the investigator realizes the benefits of having covered each of the investigative steps properly.

If a statement is involved, the investigator will undoubtedly be called to testify at the hearing since the burden is on the state to show that all proper steps were taken in obtaining it.  To this end, copies of all statements, writings, tapes, transcripts, consent forms and other matters associated with the statement will be required.  If the Court is satisfied that the statement was properly taken in accordance with applicable case law, the statements will usually be allowed in at trial.
  

Trial

NO ONE knows more about the case file and evidence than the investigator who prepared or collected it.  For this reason, the investigator plays a very important part at trial.  The investigator is the historical data base on the case.  Most prosecutors will have the investigator sit at the prosecutor's table at trial to assist the prosecutor in the case.  In many jurisdictions, there is only one prosecutor available to try the case and on him falls the entire burden of doing and remembering everything, a truly impossible task.  For this reason, the investigator becomes critically important as the prosecutor's right hand.

Prior to trial, the investigator and the prosecutor should sit down one final time and go over the case and the investigator's expected testimony.  At this time, review all physical evidence to insure that it is present and in proper form.  This final meeting will also be a final review to make certain that all points in the case have been covered and to deal with any last minute problems.

The investigator will usually testify either first or last at a trial, with testimony at the beginning of the trial being the most common.  When the investigator testifies first, he sets the stage for the case with a summary of his investigation.  When he testifies last, he summarizes the case for the jurv.

The prosecutor will usually ask the Court to allow the investigator to be waived from sequestration with the other witnesses.  Of course, if the investigator testifies first at trial, this will not be necessary.  In most cases, the Court will allow this so that the investigator will be able to assist the prosecutor during the trial.  However, every Court is different and some may not allow the investigator to remain with the prosecutor if the investigator is expected to testify later.

Some prosecutors, especially in those jurisdictions where they have the luxury of a second attorney at trial, may not require the investigator to be present during the entire trial, but only when his testimony is required.  In that case, the investigator may only need to be available on the day he is expected to testify and just generally available the rest of the time in case questions arise during the trial.

Where possible, avoid sitting around with the other witnesses and victim(s).  Defense attorneys will often use such proximity to try to show the jury that officials of the state were with the witnesses, and especially the victim(s), right up to the time of their testimony in an effort to shore up a "weak" case that has no "true foundation."  Also, the investigator usually has plenty of other work to do and could use the waiting time more economically.

Testifying at trial is something that investigators do frequently and most develop their own style of testifying that suits their personalities, background and experience.  However, in child sexual abuse cases, the investigator will be thoroughly cross-examined by defense counsel since the investigator is usually the link between a sometimes weak child victim and the indictment.  In addition, everything the investigator has done will be examined in minute detail.  If the investigator used techniques such as anatomically-correct dolls, which are of extremely questionable value and validity, then the investigator should be prepared to justify their use in his investigation.  The same holds true for anything else that was done during the investigation, including investigative technique, interview technique, evidence collection and marking, etc.  With the possible exception of the victims, no one will be on the witness stand longer than the investigator.
  

Post Trial

Once the trial is completed and a verdict is rendered, the investigator's job is almost finished.  If there was a verdict of acquittal, then the case is over and the files may be closed.  If there was a verdict of guilt, then an appeal process may be undertaken with the ultimate result being the reversal of the verdict and a retrial of the case.  If this happens, the investigation may have to be reopened, further work done and the case retried.  If a hung jury results, then it is up to the prosecutor whether or not to retry the case.

What is immediately obvious is that a case is rarely over after a verdict is rendered.  For this reason, the case file and all evidence, used at trial or not, should be carefully preserved for several years or until a final determination has been reached.  An orderly system of filing the case file and evidence will readily assist any future prosecution of the case.  Also, if follow-on cases are to be tried some common elements may require the use of materials in the initial case.
  

Conclusion

In the initial part of this series, we have discussed the various aspects of investigating allegations of child sexual abuse from the standpoint of the law enforcement investigator.  As can be seen, there are areas where special techniques are required because of the uniqueness of having children as putative victims and the potential irreparable harm to a person's reputation because of false allegations.  However, careful planning, good investigative technique and sensible precautions can prevent loss of a good case or miscarriage of justice.

Probably the best example of what can be done wrong is the recent McMartin Pre-School Case from Manhattan Beach, California.  What started out as the most sensationalized instance of child sexual abuse in history came to an indecisive end when the jury returned not guilty verdicts on all counts against Peggy Mc Martin Buckey and hung, with a majority voting for not guilty, on 13 counts against Ray Buckey.  The case was fatally flawed from the beginning and the flaw was compounded by poor police practices, inexperienced prosecutors, the use of social workers untrained in these kinds of investigations, and media hysteria.  It is little wonder that people were disappointed in the verdict after the news media had virtually promised that the Buckeys would be found guilty.  Yet, not one shred of physical evidence to corroborate the children's stories was ever found in spite of a thorough investigation by various police agencies, including the FBI.

So, after nine years, three years of trial and $15 million dollars, no one is happy with the outcome.  Don't become a prisoner (or a victim) of your investigation.

Perhaps the best review of the McMartin case is in the comments of the jurors to the press(29) following the verdict:

The children were never allowed to say in their own words what happened to them.  When the interviewers interviewed the children, all the questions were leading.

The key evidence that swayed me was the tapes.  The questions that were given to the children were ... too biased, too leading.

Commenting on the letter which police sent to local parents identifying Ray Buckey as a suspected child molester and seeking to have the parents question their children in an effort to find other victims,

The police letter should never have been sent.  It put too much information out there for other people.  What kind of police investigation is it when everybody knows what's happening?

You felt at sometime someone should have said, "Wait a minute, did this really happen?"

In the next part of this series, we will examine child sexual abuse cases from the aspect of the defense investigator.
  

Footnotes

(25) Investigators should not take comfort in cases such as Easton v. City of Boulder, Colorado, 776 Fed 2d 1441 (CA10, 1985), where the court found that "even if children's testimony was inadmissible in court, their statements could nevertheless be used as basis for probable cause to support issuance of warrant for arrest of individual whom they alleged had sexually molested one of them."  [Back]
(26) See for example Hilliard v. Williams, 516 Fed 2d 1344 (CA6, 1975).  [Back]
(27) See for example White v. Frank, 680 F. Supp. 629 (SDNY, 1988).  [Back]
(28) Jencks v. US, 353 US 657 (1957) codified at 18 USC 3500.  Although this pertains to Federal jurisdictions, many states have adopted similar rules for disclosure of Grand Jury materials, and other statements, at trial.  [Back]
(29) Charleston, WV Sunday Gazette-Mail, January 21, 1990, Section A, page 16, "McMartin prosecutors failed to provide convincing evidence," Michael D. Harris, UPI.  [Back]

[Part I]  [Part II]  [Part III]  Part IV[Part V]

* John C. Wideman is a private investigator and can be contacted at Wideman & Associates, Inc., Po Box 507, St. Albans, West Virginia 25177.  [Back]

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