Investigative Procedures in Allegations of Child Sexual Abuse Part V: The Defense Perspective (Continued)John C. Wideman*ABSTRACT: This is the final part of a series on basic
investigative procedures in child sexual abuse cases. The investigator's
role from the defense perspective is discussed in terms of defense
strategies and and the investigator's role at trial. Common defenses, such
as alibi, mistake, social influence and conditioning, and revenge are
described and important areas of investigation for each are noted. The
investigator can be helpful in obtaining and organizing evidence,
interviewing witnesses, examining police investigative procedures and
evidence, and working with the attorneys during the trial. Defenses As in every defense investigation, there is the consideration of what defenses will be raised which indicate the innocence of the defendant. Some of the most common are: 1. Alibi. The defendant was not there at the time and place alleged by the state, so he could not have committed the crime. 2. Mistake. The incident may have actually occurred, but the child mistakenly has identified the defendant when the victim really meant the act was committed by someone else. 3. Social Influence and Conditioning. The incident never occurred, or was committed by someone else, and the child has been so influenced by parents, peers, professionals and law enforcement officers that the child now believes that the incident actually occurred, and/or that the defendant committed the act alleged. 4. Revenge. The allegation is wholly false and was made as an act of revenge for some real or imagined slight. Although rare, this does occur. In these situations, the child may be a pawn of adults seeking revenge, or possibly seeking grounds for a civil action to obtain money from someone of wealth. A subset of this defense is the jealousy defense which comes from a child being jealous of a favored adult's attention to another child. Usually, the defense attorney will not be well grounded
in defense of child sexual abuse allegations. It is imperative that both
the attorney(s) and the investigator(s) educate themselves in this
somewhat esoteric area. In order to properly structure the investigative
plan, some consideration must be given to potential defenses. Alibi This defense will initially come from the client. If the client is advised of the state's allegation and categorically denies his presence at the time and place stated in the indictment, then this will be the obvious choice of a defense. However, things are not always that simple. How, for example, do you establish an alibi for someone who lives alone and was in bed, alone, asleep at home at the time alleged? Possibly there are nearby neighbors who can testify to the defendant's presence at home, his car in the driveway, or seeing him move about the house at the time in question. Maybe not. An alibi defense investigation will receive its orientation from the client. Where exactly was the client at the time alleged; who was with him; where was he for two or three hours before the time alleged and after the time alleged? From these initial questions an investigation will have to be structured. An investigation should seek to account for the whereabouts of the defendant, chronologically, for at least two or three hours before and after the time alleged. In some cases, it may not be possible to show the exact location of the defendant at the time alleged, but it might be possible to show the defendant's location at a time and place before or after the alleged time and place which would have made it physically impossible for the defendant to have been at the scene of the crime due to elapsed time and distance. Evidence which goes toward this chronological history might include cash register tapes(34), time cards, bank videos, parking tickets, traffic tickets, Automatic Teller Machine videos(35) and receipts, check cashing store videos and photographs, etc. This is the age of the computer and many locations provide dated, timed receipts for purchases. These might help the defendant as an aide memoire or perhaps refresh the memory of the store clerk as well. All such evidence should be carefully collected, identified, logged, and preserved for trial. Copies can be used for investigative interviews. When interviewing alibi witnesses, do not provide the witnesses with so much initial information that they adopt it as their own. Nothing is worse than having a witness, from the witness stand, say that he really doesn't remember the incident, but that is what was told to him by the defense investigator. Always seek to determine if there is some related corroborative item which could aid the witnesses with their recollection. For instance a birthday, a holiday, a special occasion, the day government checks are delivered, something unusual that happened that day, or a memorandum of the contact in a diary might be available. There is the old saying that everyone remembers where they were when they heard of the attack on Pearl Harbor or the assassination of President Kennedy. People remember less momentous occasions as well. After all witnesses have been interviewed and all
corroborative materials collected, a time line or chronology should be
constructed to determine if the defendant's whereabouts can be proven, or,
in the alternative, he can be excluded by physical events from possibly
having been present at the scene of the crime. Mistake If the alibi cannot be conclusively proven, then a secondary defense of mistake might be raised. People mistake other people because of similarities in appearance or because of preconceived notions. It is a common fact of everyday life. We have all had the experience of making a mistaken identification, of seeing someone we thought was someone else. Some cases have proven more embarrassing that others, at least in my experience. The investigation of this situation requires the investigator to first determine how the initial identification was made. There is a greater chance that a mistake was made if the victim and the defendant were unknown to each other, or not well known, than in a case where they are well known to one another. The whole process of identification may have been flawed. For instance, if a photographic line up was used, the photographs may be so similar that the child could not distinguish one from the other and picked one because she thought she had to pick one of the several offered. Sometimes, in an excess of investigative zeal, law enforcement officers will "help" the child a little if they have a suspect. Such "help" might simply be directed verbal encouragement to pick out the "bad man" who did this to "you." Thus, a positive statement is being made that the "bad man" is among the photographs as opposed to "Do you see the man who you said did this to you among these photographs?" Another possibility is that the defendant was detained and arrested somewhere near the scene and taken to the scene to be identified by the victim. The victim thus has one choice to make: Is the man handcuffed in the back seat of the police car the one who did this to you? A third possibility is that the identification was made
not as a result of identification by the victim, but by collateral
witnesses. The whole structure of the identification methodology must be
carefully studied to determine why the defendant, of all the people
available, was chosen. It is specifically on that point that the state's
case must be attacked if the defense of mistake is to be raised. The
collateral witnesses must be interviewed, if possible, and the exact facts
of their involvement in the case determined. NEVER DEPEND ON WHAT YOU ARE
TOLD BY LAW ENFORCEMENT PERSONNEL OR WHAT YOU READ IN THEIR REPORTS.
They
are human; they make mistakes. Social Influence and Conditioning There is no need to dwell on this topic at length since it has been covered very thoroughly in several publications(36). Memory is reconstruction, not recall. Thus, memory is flawed by intervening time and intervening perceptions. It is possible therefore to interview people in the United States who know nothing of the facts of the McMartin Preschool Case, for example, and obtain from them a dissertation on why the defendants are really guilty. They have been conditioned by the news media to believe that what the news media tells them is accurate and factual. When impressionable young children receive inaccurate information from authority figures, they are likely to adopt that information as their own and as factual. We have all had the experience of intensely believing something as true only to find out that we were mistaken. Once this mistaken belief goes on long enough, if it is not corrected by presentation of the true facts to, and adoption of the true facts by, we may well adopt the wrong set of facts as true and correct. In children, this is very possible. Various historical examples are readily available from the Children's Crusade to the Hitler Youth.(37) How do you investigate this? Usually through interviews of the child's peers and other persons associated with the child (e.g. teachers, ministers, Sunday School teachers, day care persons). In addition, the construct of the story will have inconsistencies which need to be looked into. The story may not be as improbable as some recent notable examples, but it will have its points. The state usually maintains that these are a result of age, trauma of the incident, or simply harmless mistakes. The state also tries to convince the jury that these errors in recitation make the rest of the story more believable because it is not "pat." Another area might be the number of times the child denied anything happened before stating that something did happen. Once again, the state sees this denial and then recantation as "normal" for abused children. It's the old saw: If they say it didn't happen, it did; if they say it did happen, it did. The state always wants it both ways. Unfortunately, some people on juries will believe that theory. There may be collateral witnesses (e.g. peers, playmates, teachers) to whom the child has said that the incident did not happen at all, but said it did "just because." These witnesses may come into play well after the fact of the notoriety of the case, publicity and indictment. For this reason, selectively reinterview certain witnesses who have regular contact with the victim to determine if any such exculpatory statements have been made. Get information on all contacts and formal and informal
interviews the child has had with persons who believe the abuse is real.
Particularly useful are audio-or videotapes of interviews with the child.
Such tapes often graphically demonstrate the extent of the pressure and
coercion an adult has placed upon the child(38). Nothing is more troublesome, or morally reprehensible, than an adult using a child in a perverse way to achieve some goal of the adult. But then again, that's exactly what we are talking about in this series of articles. Children can be used in such a manner both by a prospective sexual abuser and by unconscionable adults. Many times, the revenge theme is encountered in situations where a domestic dispute, usually a divorce or child custody, is ongoing. What better way to sway the court to your side than to accuse the other side (e.g. father) of sexually abusing the child, or permitting the child to be sexually abused by someone (e.g. the new boyfriend, the brother of the new girlfriend)(39). In these cases, there is rarely any physical evidence, only the reported accusation of the child, usually made to the intervening parent, that something in the nature of a sexual abuse occurred. Since there are already lawyers and judges involved, the allegation results in a whole new flurry of activity. Law enforcement officers may be called in to investigate. Doctors will examine the child for physical signs of sexual abuse. Even mental health professionals will get into the act because the "accused" side will want to have the child examined for evidence of "brainwashing" by the accusing side. These cases are rarely resolved to anyone's satisfaction and some parents may go to extremes, such as hiding the child from the "abuser" and authorities, going to jail for failing to comply with court orders directing visitation with the other parent, or such other theatrical postures. Certainly, in these cases, prosecutors and law enforcement personnel look carefully at the situation and usually with a jaundiced eye. They are very aware that someone wants the criminal justice system to balance a perceived inequity in the civil justice system, or someone wants the criminal justice system to "punish" someone who has done a civil, and emotional, wrong. Yet, these same prosecutors and law enforcement officers will wade headlong into a reported incident where no apparent domestic strife is present; comfortable in the belief that some bad act has occurred. This is precisely because we have all been conditioned by experience to know that when a highly charged emotional atmosphere is present, people will make wild, unsubstantiated, untrue accusations. Therefore, in the absence of obvious strife, the prosecutors and officers assume the alleged incident is true. In the same vein, if someone were to report to authorities that a homicide by shooting and stabbing had occurred, and upon initial inquiry no evidence of a homicide could be found except for the absence of the alleged victim, few agencies would continue with a homicide investigation. The matter would be relegated to a missing persons" report. This is because we are conditioned to believe that homicides must contain certain physical elements. Yet, when an unsubstantiated allegation of sexual abuse of a child is raised, we adopt all sorts of unreasonable assumptions. It is easier to believe a child's story that sexual abuse occurred (because children can't make up such stories) than it is to accept that an adult has prompted the child to tell the story to help the adult achieve some goal. For the defense investigator, a revenge defense is not
unlike the other defenses. Each witness must be carefully interviewed to determine the possible motive
behind such an allegation. Not to be overlooked is the possibility of
extortion. In these cases, you will usually find that the reporting adult
has been in contact with a lawyer concerning civil litigation. The contact
with such a lawyer might be determined from bank records (checks for
retainer fees), surveillance (following the reporter to the lawyer's
office), filed lawsuits, and comments by the child to peers, playmates and
others ("I talked to a lawyer yesterday," "My dad said we're
going to get everything Mr. X has.") Such contact is important to the
defense of a case and for use in cross-examination of the reporter and the
child. And, of course, the big giveaway is an offer in settlement or
compromise of the criminal complaint made through some third party, not
usually a lawyer who intends on keeping his law license. A Special Note About Videotapes The rental of prerecorded videotapes is a multimillion, if not billion, dollar industry. There are estimates that approximately 60 percent of American homes have videocassette recorders (VCR). If the defense will have to explain how the child became knowledgeable of certain sexual factors, check on the family of the child to see if they have membership in one of the local video rental stores. This can be ascertained through surveillance, canvass, deposition, or interview. If a membership is found, have a subpoena issued for the rental records of the video store. The subpoena should include the names of all family members just in case more than one membership is held. Most of these stores use a computer-based rental system which will show a record of the rentals of the subscriber to include the date of the rental and the title of the video rented. Many of these stores rent X-rated videos which graphically portray sexual activity of every variety. Perhaps of even more importance, several of the titles currently available involve incest themes. Several of the titles imply sex between parents and children while placing the disclaimer on the video box that "all models are over 18 years of age." Once the titles rented by the victim's family members are obtained, carefully review them to determine if any are X-rated or R-rated, and if any have graphic depiction of sexual activity or incest themes. Where any possible connection exists, rent the video(s) and review them carefully for any activity which could give rise to the issues contained in the allegation. Conversely, if the law enforcement authorities, during any search of the defendant's premises or belongings, have recovered prerecorded videotapes of the type noted above, review the actual tapes to determine their actual content. Pedophiles may use prerecorded video tapes to record pedophilic activities thinking that the title and an initial lead of tape will cover the true contents of the tape. An apparently innocent tape, G-rated, such as a traditional children's movie, may contain several hours of covert, pedophilic recordings. Do not rely on a police listing of tape titles to satisfy you. If you do not aggressively pursue discovery, they certainly are not going to help you. The same point is true of audio tape recordings and
photographs. Carefully review them for any evidence which might tend to
incriminate, or exculpate, the defendant. Reports Everything the defense investigator does should be reduced to writing. Separately record each interview and prepare transcripts of recorded interviews along with a summary of the interview. Index all depositions with a cross-reference among all the written items. One of the major ways in which an investigator can help the defense team is to keep his written materials in an orderly, logical format. Assuming you have a word processor, you can maintain a running alphabetical index of witness interviews and related materials. For this purpose a loose-leaf notebook is adequate. For unusually large volume cases, something like a banker's box could be used. The important aspect is to keep the information readily available and cross-referenced. The ultimate object of such organization is to have the materials ready for trial in a form that can be easily used by the attorney(s). If they are kept this way as you go along, there will be less confusion as the time for trial approaches. All official records obtained should likewise be handled. Enlarge all official records (e.g. medical records, government records) which are going to be used at trial and put them on easily handled boards. The current foam core boards are preferred to poster board since they are semi-rigid and stand up to use at trial. The reason for this is that witnesses will have to explain certain portions of the documents in detail. If a small document is used and then published to the jury, some jury members may not understand what it is that they are seeing. Whereas, if they see it when they hear it, they are more likely to comprehend what is being said. Remember that very few laymen can interpret or decipher a professional document with which they are not personally acquainted. Also, jurors have advised me that if they do not understand what is on a document, or what it is about, they simply ignore it in the deliberations. When using depositions or transcripts of previous
hearings or trials, keep one copy of the transcript whole and break up a
second copy so that the relevant testimony of each person is filed under
that person's name. This way, the attorney does not have to keep flipping
through a single copy of the transcript, but if a question is raised in
court, he has the complete transcript available for reference. Pretrial As the trial approaches there will be a lessening of investigative activity and an increase in legal activity. There may be some pretrial hearings such as a suppression hearing on evidence obtained or on witness testimony (particularly if a young child is involved). There may also be hearings on motions in limine in an attempt to keep certain information out of trial. The investigator may play a lesser or greater role in these hearings depending on the individual circumstances of each case. Usually at some time prior to trial, the attorneys will want to personally interview at least the key witnesses to confirm, and review, their testimony. The attorneys may want the investigator present to assist in this review. There will be one or more trial strategy sessions by
the attorneys. The investigator is usually involved in these sessions so
that he can assure that all factors and information concerning the case
are reviewed. Trial The investigator occupies an unusual position at trial, being neither fish nor fowl. Obviously, if you are expected to testify at trial, you may be sequestered along with the other witnesses and not be permitted to attend the trial proceedings. If this is the case, your time is best spent in another location doing collateral trial work such as contacting witnesses and arranging for their presence at trial, preparing and marking exhibits to be used in the defense presentation or closing, or some other useful function. Also, be available at breaks, meals and the end of the day for the trial strategy discussions. If you are permitted to attend the trial, you can occupy one of two positions. You may be permitted to sit at counsel table and assist the attorney(s) during trial. Be sure that your exact duties are discussed with the attorneys. Most experienced investigators know trial etiquette and what not to do at trial. Take copious notes and provide brief notes or questions to the attorneys when such questions arise. Choose your time to give these notes to the attorneys so as not to interrupt them or detract them from testimony. Conversely, the attorneys should talk to you before starting examination of a witness and after completing examination of a witness to insure that critical areas have been covered. Defense work is a team operation. A second location for the investigator is in the courtroom audience. Sometimes this allows for an evaluation of the trial from outside the rail. The investigator will have a bigger perspective of the trial than the combatants on the floor who are watching intensely what is going on before them. In addition, an experienced investigator can watch, and sometimes, gauge jury reaction to certain evidence. This can be done less conspicuously from the audience than from counsel table. If you are in the audience, hold any contact with the attorneys to an absolute minimum to avoid disrupting the trial, or possibly being censured by the judge. Most information can be relayed at breaks. At the end of each day of trial, insure that all documents are returned to the appropriate folders or indexes. Attorneys have a habit of stuffing papers in folders without regard for order during the heat of trial. They are best served by rearranging the folders in their original order each evening so that the next day, when the trial resumes, they can readily recover any document they seek. If you are fortunate enough to be working with a large law firm, they may have paralegals who will perform this task. If you are handling defense witnesses prior to
testimony, have them arrive about an hour or so prior to the time they are
expected to testify. They will have been interviewed previously by the
attorneys at some time prior to the beginning of trial, or possibly not.
Give them a copy of the memorandum of their interview, or a copy of their
statement, and allow them to review it. Do not permit them to take the
memorandum or statement into the courtroom unless the attorneys
specifically request you to do so. Shadow Juries In some cases, attorneys may want to use "shadow juries." These are five or six average people who are available to come to trial every day and sit in the courtroom audience and act as though they were on a jury. The difference is that at the end of each day, they are debriefed as to their impressions of the trial, evidence presented, credibility of witnesses, etc. Needless to say, after a day of trial, the attorneys usually are not inclined to debrief shadow jurors, so the task falls on the investigator. These jurors are paid a minimal sum of money for their time. Try to pick people who are not intimately familiar with the details of the allegation, of average intelligence and willing to provide a critical opinion of the items sought. When debriefing the shadow jurors do so one at a time. Inquire into the following areas: 1. Credibility of each of the witnesses. Did they believe what the person was saying? If so, why? If not, why not? This is particularly important in child sexual abuse cases where the child's testimony is virtually the only evidence available. The states vary dramatically in the manner in which child victim testimony is permitted.(40) (See Appendices A and B.) 2. Value of any evidence presented to the overall question of guilt or innocence. Did something strike them as critically important? 3. Did anything that happened at the trial that day really impress them as to the guilt or innocence of the defendant? 4. If they had to vote at that moment, what would be their verdict? Take detailed notes of their answers. Then discuss these notes with the attorneys and, if required, reduce them to written form. This may give the attorneys some insight on how they, and the evidence, is being perceived by average persons. Then, just prior to closing argument, where possible,
get the shadow jurors all together in a room and let them deliberate and
discuss the evidence. Watch their rationalization processes carefully for
indicators on where to stress on closing. Their focus on the evidence is
another critical area. If the defendant did take the stand in his own
defense, how was he perceived? If he did not, how was that perceived?
After they have deliberated, have them vote on a verdict as a jury would
vote. After you have picked up the vote and reviewed it, share it with the
shadow jury and discuss the vote with them. In some cases, a hung jury
will result. Discuss with the shadow jury what factors caused them to
hang. Posttrial If there is an acquittal, everyone goes home and the trial documents are stored in boxes. If there is a conviction, a partial conviction, or a hung jury, there will be the possibility of a second trial. Insure that the trial documents are, once again, returned to their proper places and the index maintained with the documents. Another area where the investigator may be used is in
any posttrial consideration of appeal matters. Interviews may be required
of witnesses to corrupt jury acts, as an example. At any rate, as Yogi put
it, "It ain't over til it's over." Conclusion In the preceding five parts of this series of articles,
I have tried to outline the areas in child sexual abuse cases where
investigators can assist both in the prosecution and the defense of such
cases. I have made some very general statements at times and investigators
in various jurisdictions should always follow the rules, statutes, and
case law of their various jurisdictions. I hope that investigators,
regardless of their assignment, would read both parts and come to a
balanced understanding of the investigative process in child sexual abuse
cases. It is hoped that some of the ideas presented here may lead to
changes in operations and law where the rights of victims, the rights of
defendants and ends of justice will be fully served. Footnotes(34) Many stores store and keep their cash register tapes which contain specific purchase information concerning items purchased, time, date, amounts of money, etc. This information may be important in establishing an alibi for the defendant even though he may not have kept the receipt itself. Of particular importance are unusual purchase items such as certain products or brands of products (e.g. Dom Perignon champagne). The sooner that the store personnel can be interviewed, the better. Also be aware of any unusual circumstances that might have occurred at the time of the sale which could further serve to corroborate the alibi or could refresh the memory of the witness (e.g. a traffic accident that occurred outside the store at the time of the purchase). [Back] (35) Today, almost every business entity that handles money instruments and large cash volume has a video or photographic system which regularly records transactions. The vast majority of these are kept for a specific time and then destroyed, or the tapes reused. ATM machines are particularly valuable because they record a specific person at a specific place and time doing a specific, recorded thing. Again, time is of the essence. [Back] (36) Wakefield, Hollida and Ralph Underwager.
Accusations of Child Sexual Abuse
( (37) Lucksted, Orlin. D. and D. F. Martell. "Cults: A Conflict Between Religious Liberty and Involuntary Servitude?" FBI Law Enforcement Bulletin. Part I, April 1982, pp 16-21. Part II, May 1982, pp 16-23. Part III, June 1982, pp 16-21. These cover the technical problems associated with law enforcement, but give some idea of the depth of "conditioning" or "brainwashing." To really give flavor to simple conditioning on a giant scale, two of my favorites are: Department of the Army Pamphlet 550-104, Human Factors Considerations of Undergrounds in Insurgencies, September 1966, Special Operations Research Office, American University, and Department of the Army Pamphlet 525-7-2, The Art and Science of Psychological Operations: Case Studies of Military Applications, 2 vols, April 1976, American Institute for Research, Washington, DC. We readily admit that it can happen to "our boys" in Korean prisoner of war camps and to whole nations, but are reluctant to admit that it can be done to a child. [Back] (38) Underwager, Ralph, and Hollida Wakefield. The Real World of Child
Interrogations ( (39) Cowan, Diane. "Interviewing the Child Victim of Sexual Abuse." The Legal Investigator. Vol. XIX, No. 3, February 1990, pp 2-3.[Back] (40) Whitcomb, Debra. Prosecution of Child Sexual Abuse: Innovations in Practice. Research in Brief. Washington, DC: U.S. Department of Justice, National Institute of Justice, November 1985. [Back] [Part I] [Part II] [Part III] Part IV] [Part V] |
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