Every type of criminal case presents inherent challenges for defense lawyers. Throughout his career of defending individuals accused of alleged sexual crimes, Tom has identified certain challenges that, in his opinion, are prevalent and even unique in these specific types of cases.
Although any given case can yield unexpected evidentiary issues, many sex crimes cases involve common statutory and philosophical issues that can and should be expected. Tom understands how important it is to be prepared for these unique, yet predictable legal challenges in order to prevent make avoidable mistakes. Below, he has presented below an overview of why sex crimes cases are, in his opinion, unique.
Establishing Motive in Sex Crimes Cases
In cases involving murder, for example, it is important for the prosecution to establish the motive behind the defendant’s actions so that the judge or jury has an answer to the key question: “Why would he do it?”
In sex crimes cases there is always a default answer to this question: “because the defendant is a pervert.” Therefore, the burden (in Tom’s opinion) shifts to the defendant to answer for the judge or jury the question: “why would the alleged victim (especially a child) say this happened if it did not?”
Sometimes Tom and co-counsel can develop a fairly clear motive as to why the allegations might have been fabricated (see State v. M.G., 2017, Case results). At times when the motive is more obscure, they must instead underscore facts that give rise to plausible theories that the jury can consider (see State v. R.C., 2015, Case results). In cases where it simply unclear as to what the motive could have been, they focus on inconsistent (see West Virginia v. Roger D., 2013, Case results) and contradictory statements (see Commonwealth v. James W., 2013, Case results) in order to create necessary reasonable doubt.
Establishing When the Alleged Abuse Occurred
In cases such as robbery or murder, investigators are usually able to determine a relatively narrow time frame during which the alleged conduct must have occurred. It is therefore possible for a defendant to have an alibi for the time that the crime was committed.
In sex crimes cases involving children, however, a child complainant is often not required to recall specific dates. The prosecution is also at times not required to prove that a certain act was committed on a certain day, as long as there is “evidence” that the alleged act occurred within the time-frame specified by the indictment, often a period of years. This is called an “expanded indictment.” (See Crispino v. State, 417 Md. 31, 7 A.3d 1092, 2010).
These “expanded indictments” can make an alibi defense impossible and burden the defendant with proving that something did not happen on an unknown date. Tom has faced this hurdle, and while working with Heather Barbieri overcame it in Texas (See Texas v. C.D., 2014, Case results).
Problematic Legal Statutes
Certain laws that were crafted to protect the accused ‘s constitutional rights and to prevent the inclusion of prejudicial and/or unreliable evidence sometimes do not apply in sex crimes cases. These laws include legal exceptions that permit statements that are ordinarily deemed inadmissible under the rules of evidence. They also include provisions that permit testimony that is not offered to prove guilt, but in reality, can potentially influence the jury as to a defendant’s guilt. This concept is known as 404(b) evidence.
Example 1) Certain statutes permit the admission of out-of-court statements made by a minor that would otherwise be considered inadmissible hearsay (See Commonwealth v. Walter, 93 A.3d 442, 625 Pa. 522, 2014 Pa). Such statements can be relayed to the jury not only by witnesses to whom the statements were made, but also by playing audio or video recordings of statements made by the minor complainant during child forensic interviews.
In State v. R.C., 2015 (Case results), Tom and Melanie Morgan secured a not-guilty verdict despite the prosecution’s having played, for over two hours, out-of-court video statements made by two alleged minor victims to both social workers and law enforcement.
Example 2) Certain statutes can allow the admission of evidence of prior sexual acts allegedly committed by the defendant, which may include acts for which he was convicted as well as acts that are simply alleged to have happened (See Va. Code Ann. § 18.2-67.7:1 – Evidence of similar crimes in child sexual offense cases; and “sexual propensity exception” in Thompson v. State, 988 A.2d 1011, 412 Md. 497, 2010, respectively).
Theoretically, such evidence is not to be considered by the jury as to the ultimate issue of whether the defendant is guilty of the instant crime but rather offered to prove, for example, motive, opportunity, and intent. Nevertheless, such evidence has the potential to unfairly prejudice the jury.
A perfect example of how this statute is implemented can be seen in our case State v. C.W., 2017, where “propensity evidence” was admitted. Tom and Corinne Mull secured a not-guilty verdict in this case.
Cross-Examining Child Complainants
Conducting a cross examination of an alleged victim of a sexual crime is a very delicate undertaking that requires confidence, finesse, and at times the appearance of compassion. At the beginning of a trial, the jurors are expected to embrace a sense of neutrality and impartiality. However when a child takes the stand and describes the alleged sexual abuse, jurors can be swayed by emotion and empathy.
The overcoming of this colossal hurdle while not alienating the jury is an evolving skill that is acquired through experience. Throughout his career, Tom has cross-examined numerous minor witnesses (see case results), and has developed a balanced approach which is based upon the age, maturity and demeanor of the witness, as well as the nature of each specific line of questioning.
Of notable importance is that it is not uncommon for an alleged victim to be significantly older at the time a trial commences compared to when the conduct was alleged to have occurred. Such witnesses bring their life experiences to the witness stand.
Free Legal Consultation
Due to the dynamic nature of sex crimes cases, it always important to expect both the expected and unexpected. Should you be in a legal situation where Tom’s experience described above could be of help to you, you may call 24 hours/7 days a week at 800-993-0632 for a free legal consultation.