False Allegations Of Child Sexual Abuse. Edward Nichols
who is falsely accused of the sexual abuse of a child. Though today virtually anyone may be so falsely accused, the largest number of falsely accused, in the author's experience, are to be found among the increasing large number of fathers involved in custody disputes. The false allegations in that context may be called the nuclear weapon in the strategic arsenal of the parent who will go to "any length to win" a domestic controversy. Experience has also taught, however, that any attorney involved representing anyone so falsely accused will benefit from much of what is presented here.
How is it that the false allegations may prevail against the best efforts of the innocent client's attorney? The seeds of this breach of justice are sown in three broad areas in which attorneys have failed to provide effective advocacy:
First, the public hysteria regarding the sexual abuse of children needs to be recognized and effectively addressed. This reality places upon the attorney a "special" burden of proof that addresses the dynamics of the emotional issues.
Second, the attorney must be an effective case manager able to initiate appropriate discovery activities, able to identify and preserve the critical "chain of evidence", and able to manage the available financial resources effectively.
And finally, the attorney must be ever mindful of the importance of the expert testimony. He or she must be skilled at identifying and using the appropriate research to organize effective cross-examination and to present effective testimony to support the falsely accused client.
Based upon the author's experience, ten principles of successful representation have been observed that fall into these three areas.
Public "Hysteria" & False Allegations:
[1] The attorney who is not prepared to prove his client's "innocence" will usually have his client found "guilty".
In the context of allegations of child sexual abuse, whether in civil or criminal court, the "innocent until proven guilty" maxim is as useful and practical as a third leg. Judges on the civil side "err on the side of caution". Many family court judges have told me, "Whether or not he did the sexual abuse, there's something terrible going on here and he should not be around that child." On the criminal side, in my experience, juries are harsher than judges. The general thinking is: "The state would not be putting on this case unless they KNOW he's guilty". Add to this that your client is likely to look like, dress like, smile like, cry like and even sit like a child molester in the eyes of a jury that is essentially ignorant of the dynamics of pedophilia.
Attorneys who prepare their case with a view of the "standard of proof", be it a "preponderance of evidence" or "beyond a reasonable doubt", are not in touch with reality. A trial involving the allegations of the sexual abuse of a child is one that calls for OVERKILL. Be prepared to "prove innocence" and you will likely meet the more lenient language of the law.
[2] "Convincing" a court that it is not putting a child molester on the street will prevail over "proving" any matter of law.
I have talked to enough judges and jurors to be convinced that it is the "factual case", and not matters of law, that holds the keys to acquittal. The general view is: "When in doubt, bury him under the jail". This is a hard, cold reality. Attorneys faced with mounds of opinion without foundation and hearsay, find it easier to pound the points of law. This seldom succeeds. The foundation for your expert's opinion must be carefully, and consistently, fed to the trier of fact. The notion that a judge "can't" do this or that, as a matter of law, ignores the reality that, in the area of the sexual abuse of children, judges can, and often do, interpret the law and the rules of evidence to support their finding of fact.
It is common knowledge that murderers, bank robbers, and drug dealers are put on the streets regularly on the basis of technicalities as a matter of law. The idea being: "Better one-hundred guilty go free than one innocent person be convicted." This is not the stuff that child abuse hearings are made of. In these cases, based on my experience, the motto reads: "Better it shall snow in hell than I should allow a child molester back into his home." You will best serve your client by spoon-feeding the factual case in lieu of attempting to stuff "matters of law" down the court's throat.
[3] The side with the best expert testimony will prevail, regardless of the "truth" or the evidence that supports it.
This is a frightening statement, but one that I have seen confirmed in case after case. If it is indeed true that falsely accused individuals will go to jail as a result of superior adverse expert testimony, as I believe, then it must be equally true that child molesters and incest perpetrators will be set free by equally superior expert testimony. Though the principles of justice in America provide for the guilty walking free to protect the innocent from conviction, the sexual victimization of children is a particularly serious crime from which our children must be protected.
It is the extremely rare case in which any physical evidence links a defendant to the alleged sexual abuse. The vast majority of these cases are settled without hearing. It is the testimony of experts that more establishes the "facts" than the testimony of the "factual" witnesses. Typically, a factual witness will report a behavior or event and an expert will "interpret" the factual testimony. It is this "interpretation" that the court often considers as the "facts of the case" wittingly or unwittingly.
Effective Case Organization:
[4] The attorney who does not use all of the discovery allowed before trial is like the pilot who does not use all of his checklist before takeoff.
Many cases involving the false allegations of child sexual abuse begin as civil cases in a domestic court. What is at stake here, typically, is visitation or custody. A false allegation made in a domestic court has a chilling result: Visitation is generally ended, or supervised, the parent falsely accused is generally considered to be wearing the black hat until "he can clear" his name. The "reality" of the "burden of proof" is very different than the law.
In a civil case a "preponderance of evidence", or the tipping of the scale, is all that is needed to prevail. However, domestic court judges most often "err on the side of caution" when the scale is not clearly tipped.
In most jurisdictions the discovery rules are more liberal on the civil side than on the criminal side. Typically, interrogatories may be used, documents may be forced to be produced, and virtually anyone may be deposed or called as a witness. Many jurisdictions do not allow such discovery in criminal cases.
The general flow of these cases is as follows: The prosecutor waits to see the outcome of the civil case. Not infrequently, a member of the prosecutor's office plays a role in the civil case. It is generally thought that if an accused is able to prevail under the civil "preponderance of evidence" standard, he will certainly prevail under the criminal "beyond a reasonable doubt" standard.
But often the exception becomes the rule! It is not uncommon for the accused to prevail in the civil case and get buried under the jail in the following criminal case! This outcome is strongly possible in the following two circumstances: When the prosecutor realizes that the material not discovered in the civil case will protect the "weakness" of their expert testimony; and when the prosecutor assesses that a jury will not possess the intellectual resources of the domestic court judge, nor will they have to deliberate on both matters of law and matters of fact.
In any case, the only prudent course is to utilize all the discovery available. This may be performed within the confines of a reasonable budget, but rarely, if ever, may it be performed "on-the-cheap". A client, however, should be made to realize that in many jurisdictions the criminal sanctions for the sexual abuse of a child, in practice, often exceeds the sanctions that would be imposed in murder cases! Appropriation of resources should be made with this in mind.
The attorney will have to understand the practices of his jurisdiction. In my experience, the criminal prosecution of sexual abuse is much more frequent in small, often rural, jurisdictions than it is in large metropolitan jurisdictions. The former