ChildLine Administrative Hearings in PA | FAQs

What is the PA ChildLine and Abuse Registry

Mandated by 23 Pa.C.S. § 6331 of the Child Protective Services Law (CPSL), ChildLine is a statewide database in Pennsylvania that contains information related to suspected, indicated and founded reports of child abuse, including sexual abuse. The database includes and is limited to the types of data listed in 23 Pa.C.S. § 6336, which among other items, includes 1) the names, social security numbers, age, race, ethnicity and sex of the subjects of the reports, and 2) the date or dates and the nature and extent of the alleged instances that created the need for protective services.

Why are Individuals Placed on the ChildLine and Abuse Registry?

Individuals' names and other personal information appear on this registry as a result of a mandated reporter (23 Pa.C.S. § 6311) or any other individual having made a report of alleged child abuse. Names and information remain on the registry in several situations, including during pending investigations; when reports have been deemed "indicated" or "founded;" and when unfounded reports of child abuse are awaiting expunction.

Who Has Access to this Information?

Although reports are not generally available to the public, Child Protective Services Law gives numerous persons access to indicated reports, including physicians and hospital administrators who treat children, a guardian ad litem, agency and court personnel, federal auditors, law enforcement officials and designated county officials (See 23 Pa.C.S. § 6340).

What Occurs Once an Individual is Reported to ChildLine?

Upon receiving a report of suspected child abuse by a perpetrator from an individual, the "county agency" will immediately begin an investigation in order to assess the validity of the allegation. Among other actions, the Agency will interview the child (within 24 hours or sooner if in an emergency); determine if he or she would be at risk if not removed from the current residence; provide a medical screening if warranted; and interview witnesses. In accordance with 23 Pa.C.S. § 6368(j)(1), investigations to determine whether to accept the family for service and whether a report is founded, indicated or unfounded must be completed within 60 days.

What if I am Asked to be Interviewed as a Part of the Investigation?

The county agency is required by law to attempt to interview all "subjects" of the report, including the alleged perpetrator. (If you are asked to be interviewed, invoke your right to counsel.) Before conducting an interview of any subject with the exception of the alleged victim, the Agency must give oral notification of  (i) the existence of the report; (ii) the subject’s rights under 42 Pa.C.S. § 6337 (relating to right to counsel) and 6338 (relating to other basic rights); (iii) the subject’s rights pursuant to this chapter in regard to amendment or expungement, and (iv) the subject’s right to have an attorney present during the interview. Written notice of this information is required to be given within 72 hours after oral notification.

What is an "Indicated Report," and What Proof is Necessary for This Finding?

At the conclusion of an investigation, a report of child abuse is characterized as an "indicated report" if the investigation by the county agency or the Pennsylvania Department of Human Services (formerly Department of Public Welfare (DPW)) determines that "substantial evidence" of the alleged abuse exists based on available medical evidence, the child protective service investigation, or an admission of the facts of abuse by the perpetrator. “Substantial evidence” is evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion (23 Pa.C.S. § 6303) (this will be discussed in detail later).

What if the Report Against Me Was Deemed "Indicated?" Can I Appeal?

Although currently being subject to legal scrutiny, Pennsylvania law does not require a pre-deprivation hearing before the indicated report goes into the registry, i.e., an alleged perpetrator's name and other personal information is added to the ChildLine and Abuse Registry even before an opportunity to be heard at an evidentiary hearing is given. 

"Within 90 days of being notified of the status of the report, one must request an administrative review by, or appeal and request a hearing before, the secretary to amend or expunge an indicated report on the grounds that it is inaccurate or it is being maintained in a manner inconsistent with this chapter." (23 Pa.C.S. § 6341(a)(2))

If an administrative review is requested, the Department of Human Services must within 60 days send notice of the secretary’s decision. If the secretary refuses a request to amend or expunge an indicated report, or does not act within the prescribed time, the alleged perpetrator has the right to appeal and request a hearing before the secretary – this request must be made within 90 days of notice of the initial decision. Upon receiving a request for a hearing, the Department must within 10 days schedule the hearing. Unless a continuance is agreed upon by all parties, the hearing must be held before the Bureau of Hearings and Appeals within 90 days of the date the scheduling order is entered.

Administrative Hearings in ChildLine Cases

Prior to the hearing, the Department or county agency must provide a person (and hopefully his or attorney) making an appeal with evidence gathered during the child abuse investigation (subject to certain confidentiality laws). The hearing is similar to a criminal trial, but different in several aspects. The evidence, including live testimony from all parties, is heard by an Administrative Law Judge (AJL), who governs all aspects of the case under Administrative Agency Law. The Department or county agency bears the burden of proving by substantial evidence that the report should remain categorized as an indicated report. However, given that the definition of substantial evidence is "evidence which outweighs inconsistent evidence…," the appellant implicitly has the burden of assuring that all inconsistent evidence is presented before the ALJ.

Substantial Evidence Burden in ChildLine Cases

As opposed to a criminal trial where the burden of evidence is "beyond a reasonable doubt," the burden of evidence in a ChildLine administrative hearing is the much-less-burdensome standard of "substantial evidence," which is defined as "evidence that outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion" (23 Pa.C.S. § 6303). Generally speaking, the standard of proof is lower because a finding of "indicated" does not automatically yield criminal liability, and because the law was designed to err on the side of caution in regard to potential victims of child abuse. As mentioned previously, the Department or county agency bears the burden of providing evidence that outweighs inconsistent evidence, but the appellant implicitly bears the burden of producing or eliciting through testimony the inconsistent evidence.

Inconsistent Evidence in ChildLine Cases

The key focus for an appellant's counsel is producing "inconsistent evidence," but this term is not explicitly defined under 23 Pa.C.S. § 6303. Although it is commonly understood to mean evidence that does not stay the same throughout, it's actual meaning is much more expansive. After all, if the only evidence that was to be considered was that which has been inconsistent, other evidence such as consistent lies and impossibilities would be ignored. Instead, after examining numerous appellate court cases, this author opines that this term might be better defined as all evidence that conflicts with the County's evidence, whether produced from the County's evidence or produced independently by the appellant (see generally A.P. v. Dep't of Pub. Welfare, 98 A.3d 736, 2014).

The overarching goal of the Administrative Law Judge (AJL) is to judge the credibility of allegations. In cases where these is no physical evidence, the law requires him or her to consider all of the child's testimony, not just the selective parts that described the alleged abuse (G.H. v. Dep't of Pub. Welfare (In re S.H.), 96 A.3d 448, 2014, Appeal Denied). In doing so, he or she might consider the following factors in the analysis: demeanor, taint (adult influence), motivation, lapses in memory, falsehoods, implausibilities, inconsistencies, contradictions, impossibilities, vagueness of testimony, opposing testimony and reputation evidence. At the conclusion of the case, the ALJ is tasked with utilizing a "weighing dynamic" in order to determine whether the Agency has demonstrated by substantial evidence that the report should be maintained (see G.V. v. Dep't of Pub. Welfare, 625 Pa. 280, 2014). The ALJ's decision must be rendered, filed and served upon the parties within 45 days of the date upon which the proceeding or hearing is concluded, with certain exceptions.

What are My Options if the ALJ Maintains the Report?

Under 23 Pa.C.S. § 6341(g), parties have "15 calendar days from the mailing date of the final order of the Bureau of Hearings and Appeals to request the secretary to reconsider the decision, and have 30 calendar days from the mailing date of the final order of the Bureau of Hearings and Appeals to perfect an appeal to Commonwealth Court." It is imperative to understand that the 15-day time limit for filing for reconsideration is included in the 30 days provided to perfect an appeal to the Commonwealth Court.

Conclusion

It's unfortunate that Pennsylvania law allows potentially innocent people to be placed on a list of suspected child abusers even before given the opportunity to testify at an evidentiary hearing. Although the ChildLine Registry is not open to the public as is the Megan’s Law registry, it is made available to professional agencies and is also used when issuing certain clearances for employment.

Although the outcome of such a hearing does not automatically trigger criminal penalties or even charges, all evidence that is produced can in fact be used in a subsequent criminal case should one be started. Therefore, one cannot afford to navigate this process without the direction of an attorney who is highly experienced with these types of cases. Premier Defense Group approaches these hearings, despite being civil in nature, with the same level of commitment as it does a criminal case.

DISCLAIMER

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. 

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SVP Designation Under PA SORNA Deemed Unconstitutional

On October 31, 2017, the PA Superior Court (in Commonwealth v. Butler, 2017 PA Super 344) ruled that the methodology or “framework” used to designate individuals as Sexually Violent Predators (SVPs) under the State’s SORNA laws is unconstitutional.

Pennsylvania law (42 Pa.C.S.§ 9799.24) requires PA courts to order anyone convicted of a sexually violent offense (SVO) to be assessed by the Sexual Offenders Assessment Board (SOAB) in order to determine whether the individual  should be classified as a sexually violent predator. Prior to sentencing, the court “shall determine whether the Commonwealth has proved by clear and convincing evidence that the individual is a sexually violent predator.” If an individual is deemed an SVO, he or she is required to register as a sex offender for life.

In Commonwealth v Butler, Appellant was required to register as a sex offender for a 15-year period based upon his conviction; however, as a result of being deemed an SVO he was subsequently required to register for life. In this case, the PA Superior Court analyzed this “framework” with consideration of Commonwealth v. Muniz, 164 A.3d 1189, in which case the PA Supreme Court ruled that SORNA’s requirements are “punitive,” i.e., they are to be considered punishment.

In its option, the Superior Court in Butler followed the findings of Alleyne v. United States, 133 S.Ct. 2151 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), and ruled:

“Thus, as our Supreme Court has stated, if registration requirements are punishment, then the facts leading to registration requirements need to be found by the fact-finder chosen by the defendant, be it a judge or a jury, beyond a reasonable doubt.”

“In other words, since our Supreme Court has held that SORNA registration requirements are punitive or a criminal penalty to which individuals are exposed, then under Apprendi and Alleyne, a factual finding, such as whether a defendant has a “mental abnormality or personality disorder that makes [him or her] likely to engage in predatory sexually violent offenses[,]” 42 Pa.C.S.A. § 9799.12, that increases the length of registration must be found beyond a reasonable doubt by the chosen fact-finder.”

In essence, because designating someone as a SVP under PA’s laws automatically increases his or her minimum registration period to lifetime (assuming the person is not already Tier III), this action creates added punishment. Therefore, this determination must be made by the trial fact-finder (judge or jury), AND must be proved “beyond a reasonable doubt”, not via “clear and convincing evidence,” which is the burden of proof in civil cases.

In light of its findings, the PA Superior Court forbade trial courts from designating anyone as an SVP, and from holding SVP hearings “until our General Assembly enacts a constitutional designation mechanism.”

This ruling is applicable to individuals who were designated as Sexually Violent Predators under SORNA laws (enacted December 20, 2012), AND whose registration period was increased to lifetime as a result of the designation.

DISCLAIMER

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. WE DO NOT HANDLE REGISTRATION MATTERS.

 

 

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PA Supreme Court Declares Retroactive Application of SORNA / Megan’s Law Unconstitutional – 2017

****UPDATE – Petition for Writ of Certiorari Denied – U.S. Supreme Court Appeal – January 22, 2018 – This means that the below ruling was not disturbed****

Since Pennsylvania’s implementation of SORNA on December 20, 2012, numerous legal challenges regarding its seemingly unconstitutional application have found dead ends. That is until today, July 19 2017, when PA’s highest court released its opinion of the case Commonwealth v Muniz (No. 47 MAP 2016). Today, the Pennsylvania Supreme Court has declared the retroactive application of the state’s SORNA laws to be unconstitutional under the ex post facto clauses of the United States and Pennsylvania Constitutions.

BACKGROUND

Until today, Pennsylvania courts have found that the registration, verification, and counseling requirements of Megan’s Law/SORNA “were not sufficiently onerous to be considered punishment.” And because the provisions were not deemed punishment, their retroactive application did not violate the ex post facto clause of Pennsylvania’s Constitution. Since such rulings, such as in Commonwealth v. Williams, 832 A.2d 962 (Pa. Sept. 25, 2003) and Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. Ct. July 9, 2014), politicians and lawmakers have continued to add to the restrictions and requirements of those who were required to register as sex offenders. And as the court in Muniz found, these additional burdons have finally tipped the scale from remedial to punitive effects.

CASE SUMMARY

As a result of a conviction for Indecent Assault in Cumberland County, PA, Defendant was scheduled to be sentenced on May 8, 2007 at which time he would have been required to register as a sex offender for 10 years. Because Defendant absconded, he was not sentenced until after PA implemented its SORNA laws, and therefore was sentenced with lifetime registration requirements under SORNA. Upon appeal, the PA Superior Court affirmed the trial court’s decision on August 7, 2015. Defendant appealed the decision to the PA Supreme Court, which brings us to today’s ruling.

In its analysis, the PA Supreme Court court in Muniz was tasked with determining whether PA’s existing SORNA requirements, when applied retroactively, violate the PA Constitution and/or the United States Constitution. Having found that the legislative intent of SORNA was not to punish, the Court was next required to determine whether SORNA is “sufficiently punitive in effect to overcome the General Assembly’s stated non-punitive purpose” using the Mendoza-Martinez factors.

FINDINGS OF MENDOZA-MARTINEZ FACTOR ANALYSES

i. Whether the Statute Involves an Affirmative Disability or Restraint

“….we find the in-person reporting requirements, for both verification and changes to an offender’s registration, to be a direct restraint upon appellant and hold this factor weighs in favor of finding SORNA’s effect to be punitive.”

ii. Whether the Sanction Has Been Historically Regarded as Punishment

“We conclude the weighing process with regard to this Mendoza-Martinez factor presents a much closer case than the Smith Court’s analysis of Alaska’s registration statute in 2003. We consider SORNA’s publication provisions-when viewed in the context of our current internet-based world-to be comparable to shaming punishments. We also find SORNA and the Alaska statute are materially different in their mandatory conditions such that SORNA is more akin to probation. We therefore hold this factor weighs in favor of finding SORNA’s effect to be punitive.”

iii. Whether the Statute Comes into Play Only on a Finding of Scienter

“….we agree with the Smith Court in finding this factor is of little significance in our inquiry.”

iv. Whether the Operation of the Statute Promotes the Traditional Aims of Punishment

“Under the circumstances, we conclude SORNA is much more retributive than Megan’s Law II and the Alaska statute at issue in Smith, and this increase in retributive effect, along with the fact SORNA’s provisions act as deterrents for a number of predicate offenses, all weigh in favor of finding SORNA punitive.”

v. Whether the Behavior to which the Statute applies is Already a Crime

“As with the third Mendoza-Martinez factor discussed above, this factor carries little weight in the balance.”

vi. Whether there is an Alternative Purpose to which the Statute may be Rationally Connected

“We therefore conclude there is a purpose other than punishment to which the statute may be rationally connected and this factor weighs in favor of finding SORNA to be nonpunitive.”

vii. Whether the Statute is Excessive in Relation to the Alternative Purpose Assigned

“Accordingly, we conclude SORNA’s requirements are excessive and over-inclusive in relation to the statute’s alternative assigned purpose of protecting the public from sexual offenders.”

viii. Balancing of Factors

“Our review of SORNA under the Mendoza-Martinez factors reveals significant differences between Pennsylvania’s most recent attempt at a sex offender registration statute and the statutes upheld in Williams II and Smith. As stated, we have determined four of the five factors to which we have given weight-all except for whether there is an alternative purpose to which the statute may be rationally connected-weigh in favor of finding SORNA to be punitive in effect despite its expressed civil remedial purpose. We conclude SORNA involves affirmative disabilities or restraints, its sanctions have been historically regarded as punishment, its operation promotes the traditional aims of punishment, [*72]  including deterrence and retribution, and its registration requirements are excessive in relation to its stated nonpunitive purpose. Accordingly, we hold the retroactive application of SORNA to appellant violates the ex post facto clause of the United States Constitution.”

State Ex Post Facto Claim

“For those reasons, we find Pennsylvania’s ex post facto clause provides even greater protections than its federal counterpart, and as we have concluded SORNA’s registration provisions violate the federal clause, we hold they are also unconstitutional under the state clause.”

What This Means for Current Individuals on The Registry

1) If you were initially not required to register as a sex offender as a result of a conviction prior to December 20, 2012, and subsequently was required to register retroactively as a result of this conviction due to Pennsylvania’s implementation of SORNA on December 20, 2012, you are entitled to relief.

2) If you were required to register as a sex offender as a result of a conviction prior to December 20, 2012, and subsequently was retroactively required to register for a longer period of time as a result of this conviction due to Pennsylvania’s implementation of SORNA on December 20, 2012, you are entitled to relief.

3) If you were required to register as a sex offender as a result of a conviction prior to December 20, 2012, and subsequently was retroactively required to fulfill more obligations as a result of this conviction due to Pennsylvania’s implementation of SORNA on December 20, 2012, you are entitled to relief.

To put it simply, if your conviction was prior to December 20, 2012, SORNA’s provisions shall not apply to you.

RECOGNITION

The Defender Association of Philadelphia and the Pennsylvania Association of Criminal Defense Lawyers

The Association for the Treatment of Sexual Abusers

Assessment and Treatment Alternatives

The Joseph J. Peters Institute

The Collateral Consequences Resource Center

The Social Science Scholars

DISCLAIMER

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. WE DO NOT HANDLE REGISTRATION MATTERS.

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PA Supreme Court: “Two or More Convictions” Must Stem From Multiple Acts & Convictions to Trigger Lifetime Registration Requirement

Section 9799.14 of Pennsylvania’s sex offender registration laws classifies the State’s sexual offenses into three tiers: Tier 1 requiring a 15-year registration period, Tier 2 requiring a 25-year registration period, and Tier III requiring lifetime registration. Included under the Tier 3 designation is 9799.14(d)(16), which states:

“Two or more convictions of offenses listed as Tier I or Tier II sexual offenses.”

On appeal, the PA Supreme Court in Commonwealth v. Gehris, 54 A.3d 862 (Pa. 2012) was tasked with deciding whether this statute meant that a person should be required to register for life if he or she was convicted of multiple Tier 1 or Tier II offenses arising from a single act and prosecution. Prior to this undertaking, the Superior Court ruled that the above language is unambiguous, and therefore a person in such a circumstance should indeed be required to register for life. Unfortunately, the PA Supreme Court in Gehris was evenly divided, and therefore the ruling of the Superior Court was affirmed.

Fortunately the PA Supreme Court in Commonwealth v. Lutz-Morrison revisited the issue, and yesterday (8-15-2016) came to a logical decision:

“It is enough to note we hold that Section 9799.14, considered in the context of the statutory language as a whole, is susceptible to two reasonable constructions, and the statute, which sets forth a graduated (three-tier) scheme of registration, encompasses a recidivist philosophy. As such, the statute requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise subject to a fifteen- or twenty-five-year period of registration.”

It’s important to note that the same general ruling was made with respect to the “two or more convictions” language included in Megan’s Law II (pre-SORNA). See A.S. v. Pa. State Police, 24 MAP 2014, J-36-2016 (Pa. filed Aug. 15, 2016):

“In accordance with the Gehris Opinion in Support of Reversal (OISR), as supplemented by our analysis below, we hold the provision, considered in the context of the statutory language as a whole, is amenable to two reasonable constructions; and we further hold the statute, which sets forth a graduated scheme of registration, encompasses a recidivist philosophy.2 We therefore conclude the statute requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise triggering a ten-year period of registration.”

“Fourth and finally, and returning to the subject of predicate ambiguity, we note there is some validity in the point made in the dissent below that it would be absurd and unreasonable if a single act, giving rise to a single prosecution yielding two convictions for overlapping predicate offenses, subjected an offender to lifetime registration. In conclusion, we hold the statute requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise triggering a ten-year period of registration. Accordingly, the award of mandamus relief is hereby affirmed.”

CONCLUSION

Please note that our firm does not handle registration issues. If you believe that this case could afford you legal relief, please contact a local attorney. For those in the Pittsburgh area, you might contact the Law Offices of David J. Shrager.

DISCLAIMER

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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PA’s Tender Years Hearsay Act versus the 6th Amendment

A Trial Without Testimony

Constitutional_RightsIn a previous blog titled “Right To Confrontation is Sexual Abuse Cases“, we discussed how the Crawford case strengthened one’s right to confront his or her accuser during the criminal court process. Prior to this ruling, prosecutors relied upon the Roberts case to have out-of-court hearsay statements admitted at trial in lieu of live testimony, so therefore a defendant could be convicted without ever having an opportunity to have his or her lawyer cross examine the accuser.

Of course, in order for this to happen, the out-of-court statements first had to be admitted via a hearsay exception rule, such as Pennsylvania’s Tender Years Hearsay Act (42 Pa.C.S. § 5985.1).  This particular hearsay exception allows out-of-court statements made by individuals 12 years of age or less to be entered into evidence under certain conditions. In order for the State to have such statements admitted into evidence in lieu of live testimony, the trial court had to find that a) the statements were relevant and reliable, and b) that the child was “unavailable” as a witness.  If such determinations were made, the out-of-court statements were admitted into evidence and the defendant would go to trial without the opportunity to have his or lawyer cross examine the child witness.

Crawford Changes Things

Unfortunately at that time, a 6th amendment confrontation challenge would have failed because the Roberts case gave no protection against the above described method – as long as a court determined that the out-of-court statements had adequate “indicia of reliability”, and that the declarant was “unavailable”, a confrontation challenge would fail under Roberts. However in 2004, approximately 24 years after the Roberts case was decided, the Crawford decision overruled the Roberts decision and changed the landscape – the U.S. Supreme Court ruled that, regardless of a finding of adequate “indicia of reliability”, any out-of-court statement that is testimonial in nature is not admissible unless the defendant has had a full and fair opportunity to cross examine the declarant regarding these statements AND the declarant is unavailable as a witness. Therefore, even if the child witness (declarant) was deemed unavailable as a witness and his or her statements were deemed reliable, the statements could not be used at trial as a substitute for live testimony unless the defendant (defendant’s attorney) had a previous opportunity to cross examine the child witness.

Prosecutors Dismantle Crawford’s Protection

Since then, however, prosecutors have been finding ways to work around this prosecutorial “road block.”  They focused in on the fact that the Crawford decision only grants confrontation rights in cases where the out-of-court statements are “testimonial” in nature. Therefore, if a court rules that the desired out-of-court statements are non-testimonial, the Crawford decision does not preclude these statements from being used at trial in lieu of live testimony. Unfortunately, the Crawford case gave little guidance as to how a statement should be analyzed to determine whether it is testimonial or non-testimonial.

Testimonial versus Non-Testimonial

Over the years, various courts have struggled to firmly define these words. In 2015 the U.S. Supreme Court (Ohio v. Clark, 135 S. Ct. 2173 (U.S. 2015)) summarized its prior analyses of testimonial versus non-testimonial, which were made in Davis v. Washington, 547 U.S. 813 (U.S. 2006) and Michigan v. Bryant, 562 U.S. 344 (U.S. 2011):

“We held that the statements in Hammon were testimonial, while the statements in Davis were not. Announcing what has come to be known as the “primary purpose” test, we explained: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”  Because the cases involved statements to law enforcement officers, we reserved the question whether similar statements to individuals other than law enforcement officers would raise similar issues under the Confrontation Clause.

In Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011), we further expounded on the primary purpose test. The inquiry, we emphasized, must consider “all of the relevant circumstances.”  And we reiterated our view in Davis that, when “the primary purpose of an interrogation is to respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause.”  At the same time, we noted that “there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.” “[T]he existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry.” Instead, “whether an ongoing emergency exists is simply one factor . . . that informs the ultimate inquiry regarding the ‘primary purpose’ of an interrogation.”

One additional factor is “the informality of the situation and the interrogation.”  A “formal station-house interrogation,” like the questioning in Crawford, is more likely to provoke testimonial statements, while less formal questioning is less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the accused.  And in determining whether a statement is testimonial, “standard rules of hearsay, designed to identify some statements as reliable, will be relevant.”  In the end, the question is whether, in light of all the circumstances, viewed objectively, the “primary purpose” of the conversation was to “creat[e] an out-of-court substitute for trial testimony.”

Of particular importance from the Bryant case is the following statement, which suggests that statements, while initially “non-testimoninal” in nature, can evolve into “testimomnial” statements as the scope of the questioning changes:

“a conversation which begins as an interrogation to determine the need for emergency assistance” may “evolve into testimonial statements.”

We also suggest reading the Pennsylvania Supreme Court’s decisions in In re N.C., 105 A.3d 1199 (Pa. 2014) and Commonwealth v. Allshouse, 614 Pa. 229 (Pa. 2012). For defense attorneys, it is critical to gain a thorough understanding of the above analyses. Undoubtedly, prosecutors will attempt to bypass defendants’ 6th amendment rights and convict using only non-testimonial out-of-court statements. They can legally accomplish this without violating the Crawford ruling; however, they still need to meet the requirements of the hearsay exception used to admit the statements into evidence. In Pennsylvania, the most commonly used exception is the Tender Year’s Hearsay Act (42 Pa.C.S. § 5985.1).

Pennsylvania’s Tender Years Hearsay Act (TYHA)

Pennsylvania’s Tender Year’s Hearsay Act (42 Pa.C.S. § 5985.1) is as follows:

(a)  General rule. — An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal homicide), 27 (relating to assault), 29 (relating to kidnapping), 31 (relating to sexual offenses), 35 (relating to burglary and other criminal intrusion) and 37 (relating to robbery), not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:

(1)  the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and

(2)  the child either:

(i)  testifies at the proceeding; or

(ii)  is unavailable as a witness.

(a.1)  Emotional distress. — In order to make a finding under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child’s ability to reasonably communicate. In making this determination, the court may do all of the following:

(1)  Observe and question the child, either inside or outside the courtroom.

(2)  Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child in a medical or therapeutic setting.

(a.2)  Counsel and confrontation. — If the court hears testimony in connection with making a finding under subsection (a)(2)(ii), all of the following apply:

(1)  Except as provided in paragraph (2), the defendant, the attorney for the defendant and the attorney for the Commonwealth or, in the case of a civil proceeding, the attorney for the plaintiff has the right to be present.

(2)  If the court observes or questions the child, the court shall not permit the defendant to be present.

(b)  Notice required. — A statement otherwise admissible under subsection (a) shall not be received into evidence unless the proponent of the statement notifies the adverse party of the proponent’s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement.

Pennsylvania’s Tender Years Hearsay Act Combined with Dismantled Crawford

As previously mentioned, it the State wishes to admit out-of-court, non-testimonial statements made by a child in lieu of live testimony, it can do so without violating the defendant’s 6th amendment right to confrontation. However, the State must first meet the requirements of the hearsay exception, which for purposes of this discussion will be Pennsylvania’s Tender Year’s Hearsay Act. To meet the requirements, prosecutors must establish that a) the statements are relevant and reliable, and b) that the child witness is “unavailable” as a witness.

In order to find that the statements are relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability, the PA Superior Court in Commonwealth v. Walter, 625 Pa. 522 (Pa. 2014) stated:

“In determining whether out-of-court statements of a child contain “particularized guarantees of trustworthiness surrounding the circumstances under which the statements were uttered to the person who is testifying,” Delbridge, 855 A.2d at 45 [Attorney Tom Pavlinic’s case], and, therefore, are admissible under the TYHA, the focus is on the truthfulness of the statements, which is assessed by considering the spontaneity of the statements; the consistency in repetition; the mental state of the child; the use of terms unexpected in children of that age; and the lack of a motive to fabricate.”

It is important that attorneys understand that there is a clear legal distinction between competency and reliability, and therefore do not blend PA Rule 601 with 42 Pa.C.S. § 5985.1(a)(1) – the Court in Walter made clear that a child witness does not have to be declared competent to testify in order for his or her statement to meet the requirements 42 Pa.C.S. § 5985.1(a)(1):

“..we hold that a child need not be deemed competent to testify as a witness in order for the trial court to admit the child’s out-of-court statements into evidence pursuant to the TYHA. “

Disclaimer

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in 6th Amendment Issues, Hearsay Exceptions |
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“On or About” in Texas Sex Crime Indictments

Being accused of a sex crime against a child is perhaps the most difficult accusation to defend yourself against in a court of law. We know that children and teens make false accusations – there are often stories in the news wherein the accusers later recant their stories, or DNA evidence exonerates the accused. Nevertheless, juries often have a difficult time trying to understand why children or teens would fabricate such stories, and this mandates defendants to prove their innocence.

Proving Something Didn’t Happen Numerous Years Ago

Defending yourself against allegations of sexual conduct that took place numerous years ago adds another layer of difficulty. You are tasked with proving that something DIDN’T happen, and quite often face numerous obstacles such as 1) deceased witnesses, 2) the inability to collect physical evidence, 3) the inability to interview the accuser at the time the allegations were made, and 4) faded memories. In such cases, the only evidence that you might be able to offer to the jury is your own statement denying that the conduct occurred. Having said that, you might be wondering about using where you were when the crime was alleged to have occurred as evidence. Well, because of the “on or about” language used in Texas indictments, using that evidence can be an impossibility.

Proving Where You Weren’t “On or About”

When multiple instances of sexual conduct are alleged to have occurred numerous years ago, Texas does not expect the accusers to recollect the exact dates, or even months and years when the conduct allegedly occurred. Logically, it may be true that accusers sometimes cannot recall specific dates or specific instances, but how is one to defend himself if the State cannot even tie the alleged conduct to a date or specific instance (.e.g., a party)?

A typical Texas indictment may read something like this: “The defendant did engage in sexual intercourse with the victim on or about December 17, 2000.” To a lay person, “on or about” would perhaps mean a couple of days, or even within a week.  Even if this were the legal definition, you would be tasked with proving your whereabouts during each of the days which were 15 years ago. This however, would be a luxury compared to what you really are tasked with under current Texas law.

The legal definition of “on or about” is construed to mean the following [Mireles v. State, 901 S.W.2d 458 (Tex. Crim. App. 1995); (see also Martin v. State, 335 S.W.3d 867 (Tex. App. 2011))]

“the State may prove that an offense was committed before, on, or after the date alleged in the information, so long as the date is anterior to the presentment of the information and not barred by limitation”

Tex. Code Crim. Proc. Art. 21.02(6) provides:

“The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation.”

This creates a nightmare for defense counsel as well as for the accused. Here is an example of how this works:

  1. the accuser alleges that she was sexually assaulted at least 20 times from 1997 to 2000
  2. the State charges the defendant with 20 counts of sexual assault of a child using arbitrary time frames with the “on or about” language
  3. during her testimony, the accuser gives no specific dates or instances that the defendant can challenge
  4. the jury is sent out to begin deliberations, and while it believes beyond a reasonable doubt that the defendant did have sexual intercourse with the accuser, it is unable to tie the alleged conduct to any specific time-frame in the indictment
  5. the jury reads the legal definition of “on or about”, and learns that it means any time before the indictment was filed as long as the statute of limitation had not expired
  6. believing that it occurred at least once, the jury has no reason to believe that it did not happen 20 times, so they enter GUILTY verdicts for all counts
  7. although sentences arising from a single criminal episode are required to be concurrent, there is an exception for sexual offenses against a child, so the judge sentences the defendant consecutively for each count

Ever-Changing Statute of Limitation

At this point you might be wondering as to why the statute of limitation had not expired in this theoretical situation. The answer is because the clock for the statute of limitation resets each time the statute of limitation is amended under law, as long as the statute of limitation prior to that amendment has not expired (see Phillips v. State, 362 S.W.3d 606 (Tex. Crim. App. 2011).

“Texas courts have upheld the constitutionality of extending an unexpired criminal statute of limitations. Thus, a statute oflimitations may be extended by the legislature, but a prosecution within the new time period will be permitted only if the limitations period had not already run before the law was changed.”

For example, let’s say a crime was alleged to have occurred in April 1990 when the accuser was 8, and at that time the statute of limitation (SOL) for that crime was 10 years. Then in 1998 an amendment was made that change the SOL to 10 years after the 18th birthday of the victim. In 1998, prior to the amendment, the SOL was two years away, but because that SOL had not expired PRIOR to the amendment, the new SOL would now be 2010 (victim would be 18 in year 2000, and ten years after that birthday would be 2010.)  Furthermore, because there apparently is no need for the accuser to tie alleged conduct to a specific date or instance, the SOL could be intentionally avoided by the State simply by framing the indictment within the SOL.

Fuel for False Convictions

The aforementioned is just a taste of what someone faces when accused of committing a sex crime numerous years ago. Many of these laws have been fueled by public outcry to protect children, but in fact people are ignoring that these laws undoubtedly are fueling false convictions. Currently, Texas has no statute of limitation for sex crimes against a child. Imagine being falsely accused of such a crime and trying to defend yourself 20 years later. What evidence would you have? If you find yourself in this position, you should hire a lawyer with decades of experience in sex crimes defense. If you would like to speak with attorney Tom Pavlinic about your case, call him today for a free consultation.

Disclaimer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Posted in Criminal Procedure, Trials |
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Extending Registration Period in PA Violates Contract Law

In December of 2013, we discussed the PA Superior Court's decision in Hainesworth, wherein the court found that the defendant was not required to register as a sex offender retroactively under SORNA because non-registration was a term of his plea contract. On September 9, 2014, the Superior Court expanded this legal rationale to include the extension of one's registration period. In Commonwealth v. Nase, 2014 (Pa. Super. Ct. 2014), the defendant accepted a plea bargain that required him to register under Megan's Law for a period of 10 years. Subsequent to the passage of the new version of Megan's Law on December 20, 2012, however, he was told that his registration period had been extended to 25 years. After being denied relief by the lower court, he appealed to the Superior Court of Pennsylvania. The Superior Court applied the same legal analysis used in Hainesworth, and was tasked with determining whether the "ten-year registration period was a material part of the plea agreement." It found that the record in the case did establish that a ten-year period of registration was part of Appellant's plea agreement, and that he "is entitled to the benefit of his bargain, and is not subject to additional registration beyond that envisioned by his plea agreement." It is not clear what the standard of proof is when determining whether registration, or a registration period was a condition of a plea agreement, but based upon the Hainesworth and Nase cases, one has a much better chance of winning this legal challenge if there is some mentioning of either condition in the plea transcript. This is not to say that a legal challenge could not be made based upon implicit evidence, however.

UPDATE DECEMBER 2016: See the most recent favorable verdicts regarding this issue:

1) http://cases.justia.com/pennsylvania/superior-court/2016-862-eda-2016.pdf?ts=1482358757

2) http://www.pacourts.us/assets/opinions/Supreme/out/J-29C-2016mo%20-%2010282682612021420.pdf?cb=1

Disclaimer

Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If this ruling is applicable to your situation, you should contact and hire a criminal defense attorney in your area immediately.  If you or someone you know is currently being charged with a sex crime and needs legal assistance, please visit our website and contact us. The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in SORNA |
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PA Superior Court Upholds Enforcement of Plea Agreement Precluding Sex Offender Registration

Prior to reading this article, we recommend that you first read our previous article in which we discussed the laws surrounding plea agreements, and the issue of plea agreements involving sex offender registration.

On December 12, 2012, a Pennsylvania Common Pleas Court issued an order precluding Defendant from having to register as a sex offender under the new laws because his plea agreement was negotiated by both parties to avoid this consequence. The Commonwealth appealed the ruling, and the PA Superior court released its opinion on December 12, 2013.

BACKGROUND – TRIAL COURT

In the instant case (Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. Ct. 2013)), Defendant was charged with three counts of statutory sexual assault (18 Pa.C.S. § 3122.1), two counts of aggravated indecent assault (18 Pa.C.S. § 3125(a)(8)), three counts of indecent assault (18 Pa.C.S. § 3126(a)(8)), and two counts of criminal use of a communication facility (18 Pa.C.S. § 7512). A plea was negotiated, however, where Defendant plead guilty to three counts of statutory sexual assault, three counts of indecent assault, and one count of criminal use of a communication facility, none of which charges required registration under laws at that time (2009). The two counts of aggravated indecent assault, which would have required registration were withdrawn.

After learning that he would be required to register pursuant to SORNA laws that were to be enacted in PA on December 20, 2012, Defendant filed a motion seeking termination of his supervision on December 13, 2012. The trial court denied the petition, but entered an order stating that Defendant was not subject to the registration requirements of SORNA:

Application of [SORNA] to [Defendant] violates due process of law, fundamental fairness, and provisions of the negotiated plea agreement entered into between Defendant and the government. It would also destroy the process of negotiated plea agreements essential to the efficient disposition of criminal cases in Westmoreland County.

SUPERIOR COURT OPINION

The Commonwealth appealed the decision, and the Superior Court issued its opinion. Defendant argued that that non-registration was a term of his plea agreement, and he is due the benefit of his bargain. As expected, the Commonwealth attempted to use the “collateral consequence” argument; however, the high court noted that this was not the proper standard of review, and instead, that Defendant properly framed the issue as an analysis of contract law.

The first part of their analysis was to determine “what the parties to this plea agreement reasonably understood to be the terms of the agreement.” The court noted two important and obvious pieces of evidence that addressed this question: 1) the specific discussions of not having to register in the sentencing transcript, and 2) the fact that every count of the one crime that required registration was withdrawn by the Commonwealth. With this evidence, the Court concluded that the plea was fashioned to preclude Megan’s Law registration.

The next question was whether “it was error for the trial court to order specific enforcement of the terms of that bargain.”  The court again noted that the Commonwealth’s contention that SORNA registration is a non-punitive collateral consequence was not relevant to the instant standard of review, and that “the dispositive question is whether registration was a term of the bargain struck by the parties to this appeal.”  The court stated:

The terms of plea agreements are not limited to the withdrawal of charges, or the length of a sentence. Parties may agree to — and seek enforcement of — terms that fall outside these areas. See Kroh, 654 A.2d at 1169 (ordering specific enforcement of a plea bargain that barred the Commonwealth from calling the defendant as a witness in a separate proceeding). Moreover, even though a plea agreement arises “in a criminal context, it remains contractual in nature and is to be analyzed under contract law standards.” Id. at 1172.

In negotiating a plea that will not require him to register as a sex offender, the defendant trades a non-trivial panoply of rights in exchange for his not being subject to a non-trivial restriction. Fundamental fairness dictates that this bargain be enforced.

[Defendant’s] reliance on the decision of the United States Supreme Court in Santobello v. New York, 404 U.S. 257 (1971), lends support to this conclusion. The Santobello Court ruled that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”

The Commonwealth attempted to analogize the instant case to prior decisions, but the high court found these analogies to be misplaced. In one case relied on by the Commonwealth Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super. 2004)), the defendant entered a plea of guilty that subjected him to a 10-year registration requirement, but later was required to register for life when a new version of Megan’s Law was enacted. The defendant argued that his plea was involuntary and unlawful because he was not made aware of the registration requirement by the trial court, or, in the alternative, that he should be subject to the 10-year requirement in effect at the time of his plea. The high Court found the this case was easily distinguishable from the instant case because registration WAS a requirement of his plea, AND the record did not support the defendant’s contention that he had bargained for non-registration as a term of his plea.

The Superior Court also stated that “the cases relied upon by the Commonwealth address the voluntariness of those defendants’ pleas. (See Benner, supra; Commonwealth v. Leidig, 956 A.2d 399 (Pa. 2008)). The defendants in Leidig and Benner did not seek specific enforcement of their pleas under contract law principles. In the instant case, [Defendant] does not challenge the validity of his plea, or seek to withdraw it; rather, he asks this Court to enforce the terms of his plea. Thus, the cases cited by the Commonwealth do not control the issue currently before this Court.”

SUPERIOR COURT RULING

Accordingly, we conclude that the parties to this appeal entered into a plea bargain that contained a negotiated term that Hainesworth did not have to register as a sex offender. As such, it was not error for the trial court to order specific enforcement of that bargain, and we affirm the trial court’s order.

Conclusion

What does this mean? This means that if you have “proof” that your plea agreement was fashioned to avoid sex offender registration, and you were subsequently required to register pursuant to SORNA, you should contact a defense attorney to file a motion to enforce your agreement based upon the outcome of this case. The level of “proof” required is not explicity clear, but examples of proof include: 1) transcripts, 2) correspondence documents, 3) admissions by prosecutors, and 4) legal documents showing which charges were dismissed.

Disclaimer

Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If this ruling is applicable to your situation, you should contact and hire a criminal defense attorney in your area immediately.

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in SORNA |
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Padilla – What It Means for Ex Post Facto Violations

Sex offender registration (SOR) in Pennsylvania has long been considered to be a collateral consequence as opposed to a direct consequence. A few examples of "collateral consequences" include the loss of the right to vote, the loss of the right to carry a firearm, and the suspension of one's drivers license. The ramifications of this opinion are numerous and serious for those that have been convicted of sex crimes.

For example, courts have ruled that because SOR is a collateral consequence, defendants have no right to withdrawal their plea simply because they were not informed that they would be required to register. Claims of ineffective assistance of counsel raised based upon a collateral consequence are invalid; defense attorneys are not required to warn their clients of potential collateral consequences.

(Direct versus Collateral) versus (Punitive versus Civil)

The court in Commonwealth v. Duffey (1994) (cited in Commonwealth v. Abraham (2012)) stated, "The distinction between a direct and collateral consequence of a guilty plea has been effectively defined by this Court as the distinction between a criminal penalty and a civil requirement over which a sentencing judge has no control." In other words, if the consequence is not considered to be punitive (a criminal penalty), then it is a "collateral consequence". Commonwealth v. Masker (2011) was the latest case to uphold the opinion that sex offender registration is not punitive. Interestingly, in regard to what constitutes a collateral consequence, this case relied upon the findings of Commonwealth v. Leidig (2008), which relied upon Commonwealth v. Leidig (2004), which relied upon Commonwealth v. Frometa (1989).

The court in Frometa (1989) ruled that because deportation was a collateral consequence, counsel was not required to advise the defendant of this possible consequence: "Deportation is but one of a host of collateral consequences of pleading guilty". However, this ruling was just recently abrogated by the United States Supreme Court in Padilla v. Kentucky (2010). This court stated that because deportation is a “particularly severe penalty," is “intimately related to the criminal process,” and the statutory provisions providing for the imposition of the consequence are “succinct, clear, and explicit”, the direct versus collateral analysis used in Frometa (1989) is "ill-suited". The court explained:

"We have long recognized that deportation is a particularly severe “penalty,” but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context."

This was a highly significant ruling for those who are charged with sex crimes. In essence, the court set aside the direct versus collateral analysis, and instead relied upon whether the consequence was intimately related to the criminal process, certain, automatic, and severe. The next chapter of the journey began with Commonwealth v Abraham (2012). In this case, the defendant argued that his plea was not entered voluntarily and knowingly pursuant to Padilla, because his counsel failed to warn him that he would lose his state pension.

Ultimately, the court ruled that:

"..we cannot conclude forfeiture of an employment benefit is so enmeshed in the criminal process that it cannot be subjected to a direct versus collateral consequences analysis."

Based upon this statement, it appears as though the court conceded that when a consequence is "enmeshed in the criminal process", a Padilla analysis would be appropriate as opposed to a direct versus collateral analysis. This obviously would give great hope to those convicted of sex crimes. After all, what is more intimately related to the criminal process, certain, automatic, and severe than sex offender registration?

"Accordingly, we hold Padilla did not abrogate application of such analysis in cases that do not involve deportation. Frometa's general holding remains:
a defendant's lack of knowledge of collateral consequences of the entry of a guilty plea does not undermine the validity of the plea, and counsel is therefore not constitutionally ineffective for failure to advise a defendant of the collateral consequences of a guilty plea."

This seems to be a fair and encouraging ruling. The court is stating that in cases where the consequence is not deportation, a direct versus collateral analysis MAY still be appropriate pursuant to Frometa. In other words, the court is saying that the direct versus collateral analysis is not dead because of Padilla, and is still viable in certain instances. Depending upon how one interprets the case, it does not appear that the court is saying that the Padilla analysis can only be applied to deportation. Although in a very recent Superior Court case, a more literal interperation was used Commonwealth v. Perri (2013) (non-precedential).

It will be interesting to see how Padilla is ultimately applied to sex offender registration requirements by the Pennsylvania Supreme Court. Could this be applied to ex post facto considerations? After all, ex post facto issues are based upon a direct versus collateral analysis. Perhaps its time for the PA Supreme Court to apply Padilla here. It should be noted that Commonwealth v. Masker (2011) touched upon the Padilla / SOR issue, but very "weakly".  One might say that this court's (Superior, not Supreme) reference to Padilla was misplaced (read the dissenting opinion). It should also be noted that this case was in regards to SVP status, not registration in general (which is automatic).

Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If you will be negatively affected by certain laws, we suggest that you contact the Pennsylvania chapter of RSOL (reform sex offender laws), and/or contact the Pennsylvania ACLU to learn about any current appeals that may be planned. If you or someone you know has been charged with a sex crime and has not yet been convicted, please contact our experienced team of sex crime defense attorneys.

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Posted in SORNA |
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Amnesty to Those Who Have Made False Accusations of Sexual Abuse

Yes, you’ve read the title of this article correctly, and soon you’ll understand.

Contrary to what most prosecutors believe, people (including children) make false accusations of sexual abuse. Sometimes these accusations are deliberate; sometimes they arise due to the accuser’s inability to accurately perceive and convey the actions of the alleged offender; and sometimes they arise due to biased interviews, suggestive questioning, and/or taint. Regardless of the reason, the point is that people are falsely convicted of sex crimes, and their lives are forever shattered. Occasionally, alleged victims will come forward and recant their false accusations due to guilt, sympathy, or because they now realize that they were simply mistaken. This is exactly what recently happened in Virginia.

In 2008, a teen (then 17 years old) accused a Virginia man of sexually assaulting her while she was 10, and he was 14. The man was convicted, and sentenced to 7½ years in prison. Just this month, the accuser told investigators that her parents caught her looking at pornographic websites in 2007, so she fabricated the story to explain her behavior. The accuser stated that she blamed the man because his family had moved away and she didn’t think police would be able to find him. Although there is an additional shocking twist to this story, it is not germane to this discussion.

Prosecutors are unsure as to why this teen now decided to come forward with the truth. Regardless, she has done the honorable thing, and we commend her for this act of bravery. As a result of her coming forward, however, she was charged with perjury. Personally, we do not feel as though a perjury charge is adequate for destroying a man’s life, but we must think outside of the box here.

It is imperative that those who have falsely accused a person of a sex crime be given every incentive to come forward and tell the truth. Punishing people for coming forward with the truth will likely prevent others from coming forward, which we do not want. On the other hand, we must give incentive to people to NOT make such accusations by punishing them to the fullest extent of the law. As you can see, this is a dilemma.

Therefore, it would be logical to grant amnesty and confidentiality, for a fixed period of time, to anyone who comes forward with the truth. The goal here would be to free as many people as possible that are currently in prison due to false accusations. After this time period is over, anyone who is convicted of deliberately making false accusations of sexual abuse would be subject to more-severe penalties. This would send a clear message to people that such accusations will not be tolerated, and hopefully would prevent individuals from being wrongly imprisoned from that point forward. There would, of course, need to be latitude given to certain cases depending upon the circumstances under which the accusations were made.

Please let us know what your thoughts are on this issue. Also, please share stories and/or links regarding incidences where an alleged victim has recanted his or her story, and came forward with the truth.

 

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in Reform |
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Who is the Sexual Predator – The Accused or the Lying Teen?

We’ve encountered many instances where a man has been lured into the web of a deceptive, promiscuous teenager.  Quite often these men are of good nature, and have developed successful lives after overcoming the obstacles that life offers. With one swift drop of the gavel, however, everything these men have worked for is gone forever.

The question to be asked is who is the predator: the man that has sexual relations with a teen who lies about her age, or the teen who ruin a mans life by lying about her age?  In many states, mistake as to age is not a defense in the criminal justice system.  Therefore, even if an underage teen posts a false age on Facebook, tells a man that she is of a legal age, and has consensual sex with the man, he is held criminally liable.

If the goal of laws are to prevent these types of relationships, why not punish the teen for lying about her age?  What is currently being done to the teens in these situations?  Nothing.  What is being done to prevent these teens from ruining the life of another man?  Nothing.  No one will truly understand how unfair and unreasonable the laws are when it comes to sex crimes until they or a loved on are accused of such a crime.  Hopefully this will never happen, but meanwhile citizens should be open-minded and not be afraid of being labeled as a sex offender supporter simply for standing up to laws that are unfair.

Posted in Age Of Consent | Tagged |
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Excited Utterances in Child Sex Abuse Cases

Although each state’s sex crime statutes differ, an excited utterance can be defined as a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.  An example of an excited utterance is if a child yells out, “mommy, he just touched me in a bad place” directly or shortly after being touched.

Court’s have ruled that such statements are highly credible because they are spontaneous and unreflected, without influence from thought, design and reason.  They reason that an excited utterance is the event speaking and not the speaker.  For these reasons, these types of statements are admissible, and are not barred by ordinary hearsay rules.

The problem is that courts often apply the definition very broadly.  For example, the court in Commonwealth v. Gore, 262 Pa. Super. stated, “The crucial question, regardless of the time lapse, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes remain in abeyance”.  Using such interpretations, a child’s out-of-court statements may be admitted even if the statement was made days, or weeks after the alleged event.  Courts often allow out-of-court statements made by children to be admitted in lieu of live testimony to spare children from the stress of testifying.

We have encountered this issue numerous times, and have many highly compelling arguments on hand to counter this maneuver.  This is an example of why it is imperative to hire an attorney who has extensive experience in child sexual abuse defense.  We highly recommend your reading our blog on Confrontation Rights.

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