Every criminal case is different. The skills and strategy that work in one type of case may be completely different from those needed to win another type of case. Tom doesn’t subscribe to the “Jack-of-All-Trades” model when it comes to sex crime cases. Certain types of cases require a high degree of sophistication as well as unique knowledge and experience. One only has to see that prosecutors are assigned to specific areas of the law – there are different divisions for murder, drug, property and, of course, sex offenses.
In our country, the United States Constitution says that all persons charged with a crime stand, before all the courts of each and every state, innocent until proven guilty. In addition, the Constitution mandates that the prosecution must prove the defendant’s guilt, “beyond a reasonable doubt.” The accused does not have to prove anything and can invoke his right to remain silent.
The legal process also allows for the picking of an “impartial, unbiased” jury panel of 12 citizens who must follow the judge’s instructions and agree unanimously on guilt before a conviction can be entered. These lofty principles are the foundation of the American criminal justice system. But, as a practical matter, they do not seem to apply to sex crimes charges, especially when the alleged victim is a child.
What makes a sex crime accusation so unique is that these bedrock Constitutional concepts are often turned upside down when it comes to defending such offenses. Experienced sex crimes attorneys see the prejudice and bias that characterize all the unfortunate individuals who are so charged. In such cases the presumption of innocence is tenuous, as there often exists a perception in the courts that the accused must prove his innocence.
The myths prevail:
- “children don’t lie,”
- “something must have happened,”
- “he looks or sounds like a molester”
- and all the other small-minded nonsense
More importantly the system is sometimes controlled by inexperienced social workers, heavy-handed police officers, zealous prosecutors and, most regrettably, prosecution-oriented judges who believe they must err on the side of the state in order to “protect the children.”
Some Unique Challenges
- MOTIVE – In most types of cases the prosecution must establish the motive behind the defendant’s actions. i.e., why would he do it? This burden does not apply in sex crimes cases. On the contrary, the burden shifts to the defendant to answer for the judge or jury the question of “why would he or she (especially a child) say this happened if it did not?” This especially applies if there is no physical evidence, which is common, and becomes most difficult if there are multiple alleged victims in a single trial.
- TIME OF CRIME – In most other cases investigators are able to determine a 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, the prosecution often must only prove that the alleged sex act occurred during a general time frame which can span many years. The child “victim” need not recall specific dates. These ‘expanded indictments’ can make an alibi defense impossible, and as you can image, make many aspects of any defense more difficult.
- LEGAL EXCEPTIONS – Certain state laws that were crafted to protect the accused ‘s constitutional rights and to prevent the inclusion of prejudicial and/or unreliable evidence often do not apply in sex crimes cases. These legal exceptions give special privileges to evidence involving alleged sexual acts, especially those against minors. Such exceptions can allow the admissibility of several types of hearsay evidence that would normally not be permitted; allow the admissibility of evidence of prior sexual acts (both charged and uncharged acts) by the defendant; forbid the admissibility of certain evidence of prior sexual acts by the alleged victim; and allow the admissibility of certain recorded conversations that would otherwise be illegal under Wiretapping laws. The proper usage of these exceptions must be scrutinized, and their impact must be minimized by defense counsel.
- UNAVAILABILITY OF EXCULPATORY EVIDENCE – Statutes of limitations are “intended to foreclose the potential for inaccuracy and unfairness that stale evidence and dull memories may occasion in an unduly delayed trial” (United States v. Levine, 658 F.2d 113, 127). Yet, such limitations do not exist for sex crime charges in some states and can span decades in others. Complainants therefore can, and often do make accusations numerous years after the alleged crime. By this time potentially exculpatory evidence could be lost or destroyed, and memories of witnesses including the defendant might have faded. At trial, alleged victims sometimes utilize a “selective memory” by recalling only facts that benefit their stories.
- CROSS EXAMINATION – 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 alleged sexual abuse, human nature takes its course. The overcoming of this colossal hurdle while not alienating the jury is an absolute art which is only mastered through experience.
Leveling the Playing Field
In most state jurisdictions, particularly those with vast resources, sex crimes cases are assigned to prosecutors who handle mostly or only these specific types of cases. Some of these attorneys could even be considered experts in this area, and know exactly how to capitalize on the unique challenges with which the Defense is faced. These prosecutors often work as a team and spare no expense in their zealous efforts to convict the Accused. Unfortunately, some operate under the philosophy that the end justifies the means.
Despite this tough opposition and these unique obstacles, our team approach “levels the playing field” by offering a defense that is the product of Attorney Pavlinic’s decades of sex crimes legal expertise combined with a local Group attorney’s vast state criminal law expertise.
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“Know thy self, know thy enemy. A thousand battles, a thousand victories.” – Sun Tzu, The Art of War