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.
My experience has been that some prosecutors do not
carefully read investigative reports until just shortly before trial.
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
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
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 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
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
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.
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.
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
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
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
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).
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.
For most pre-trial activities, the investigator will
not have to be present. There are some instances, however, where they
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.
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.
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.
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
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
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
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.
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
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.
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.
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.
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.
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.