TURNING CASE WEAKNESSES TO STRENGTHS Robin Sax 310-650-6494 www.robinsax.com

1. TURNING CASE WEAKNESSES TO STRENGTHS Robin Sax 310-650-6494 www.robinsax.com

2. Case Challenges “Bad” victim Delayed Reporting Lack of physical evidence Inconsistent Statements Reluctant Witness Lack of physical resistance Lack of Scientific Evidence

3. Tools to Strengthen The Victim Interview Pretext call Polygraph Defendants Statements Prior Bad Acts/Prior Sexual Assault Audio and Video Tape of all Interviews Fresh Complaint Witnesses Expert Witnesses

4. SEX CRIMES MANTRA What you file is a function of what you want the outcome of the case to be.

5. THINK OF YOUR SEXUAL ASSAULT CASE LIKE A HOMICIDE . . . . . BUT YOU GET A CHANCE TO INTERVIEW THE VICTIM

6. Prepare for a successful victim interview Postponing the interview Review all case information Consider victim’s demeanor Anticipate a defense

7. Begin the victim interview Select an appropriate location Discuss who should be present

8. Techniques to encourage the victim to tell her story • Use open-ended prompts • Allow the victim control • Avoid leading questions • Explain the questions asked • Maintain eye contact • Use effective body language • Avoid touching the victim • Monitor the victim’s body language • Engage in active listing • Clarify & summarize

9. Victim Interview • Don’t draw conclusions about victim’s credibility based on: • manner of dress • voluntary use of drugs or alcohol • how victim met suspect (e.g., bar, sex chat room) • prior consensual sex • prior record (e.g., prostitution) • late report • failure to take opportunity to escape • lack of resistance, passive • absence of emotion Offenders often target “imperfect” victims

10. Cognitive interviewing techniques Reconstruct the circumstances Be complete Recall in reverse order Change perspectives

11. Evaluation of Evidence and Victim One-on-one is not always a reason to reject a case Corroboration and evaluation of strengths and weaknesses • Is the V absolutely credible • Can V carry a case • Are any inconsistencies explainable • Do facts and physical evidence make sense? • Can V relate details/conversations? • V’s behavior after the assault • V’s interaction with D before and after assault • Does V have motive to fabricate

12. Evaluation of Evidence and Victim(Continued) Victim’s desire not to prosecute is not reason solely to reject a case Can we prove case through other means: - DNA - Other witnesses - D statements

13. Pretext Calls Consider relationship between victim and suspect. Evaluate victim’s ability to handle it. Know as much as you can about the case and the suspect before the call. Evaluate what tactic will raise least suspicion; discuss with victim. Outline important points, but don’t script. Rehearse.

14. Pretext Calls (cont’d) • Be prepared for questions: • Where are you? Can I call back? Are you alone? Can I meet you? Have you gone to the police? Are you tape-recording this? • Give victim a way to terminate call (e.g., someone’s here; call you back). • At beginning of tape, identify date, time and parties. • Monitor conversation; write notes if necessary. • Consider using tape in suspect interview.

15. Suspect Interview • Always do one. • Tape it. • Consider polygraph • D statement • May establish defense from the outset • Presence- may just put D at scene • May be used to show intent • Even total denial is helpful as it locks in defense or may conflict with physical or scientific evidence

16. Suspect Interview (Cont’d) • Admission / Confession • presence: just putting himself there can help case • intent: always important and always at issue - Consent Defense • look for exaggeration, or how much victim “wanted it,” how he satisfied her, etc. • look for dispute with victim: can he provide a reason for her to lie?

17. Suspect Interview (Cont’d) - Denial • locks suspect into denial or alibi • may conflict with physical evidence - Consciousness of Guilt; Fabricating/Suppressing Evidence - Knowledge of age

18. Medical ExamVictim Suspect • Don’t shower, bathe, change clothes (unless collected), or brush teeth. • Bring change of clothing if appropriate. • Go to a trained expert. • Get follow-up if victim went to own doctor. • OCJP form • Sexually transmitted diseases • Drug and alcohol screening • DNA • Injuries • Sexually transmitted diseases • DNA • Trace evidence

19. Search Warrants • Suspect’s home, vehicle • clothing • trace evidence • instrumentalities • sexual paraphernalia • condoms • photos, videos • drug paraphernalia

20. Other Evidence • Defendant’s prior record • Victim’s prior record • DCFS and Dependency Court Records Welf. & Inst. Code, § 827 • School Records • Employment Records

21. Other Evidence (Cont’d) • 911 tape • Jail visits • Disabled victim - get evaluation by expert if necessary • Phone records

22. Expert Witnesses

23. Do You Need An Expert? • What kind of case is it? • What is/are the likely defense(s): • What myths are associated with the charge(s)? • What problems do you have with the case? • What can an expert say? • How can you justify the need for an expert? • When are you going to put the expert on the stand?

24. EXPERT DEFINED An expert witness is someone with specialized knowledge, skill, experience, training or education who is able to explain to jurors something about the litigation that they may not otherwise understand.

25. Sexual Assault What type of victim: Child Adult Types of Experts in Sexual Assault Medical Scientific Psychological An expert to rebut a specific defense (i.e. eyewitness identification, confession expert, etc.)

26. AN EXAMPLE A medical doctor was testifying in a child sexual abuse case involving the digital penetration of the child’ vagina. She was attempting to explain why the fact that the child’s vaginal opening was smaller than the circumference of the defendant’s finger was of no significance. The doctor talked at length of elasticity and flexibility of tissue, but the defense attorney persisted that the size disparity proved his client’s innocence. Finally, the doctor turned to an analogy: “Let me explain it to you this way, Mr. [defense attorney],” she began, “I could not measure the opening of your anus and determine the size of the largest stool you ever passed.” That the jury understood.

27. WHEN SHOULD YOU CALL AN EXPERT • -To explain the lack of findings and that it is not inconsistent with the account of abuse. • -Cases where there is minimal fondling, oral copulation, digital penetration and/or fondling in the past (or other cases where you would necessarily expect medical findings), may be other circumstances that would warrant the calling of an expert. • -In circumstances in which the child testifies that that painful penetration and/or bleeding occurred

28. Reasons NOT to Call a Medical Expert • Hope that the defense will call them • Budget Reasons • You may use other types of experts that may be more “helpful” to the jury

29. Why Include Scientific Evidence • Judges and juries have come to expect it. • Fingerprint dusting, DNA= Good Stuff

30. Always Investigate the Possibility of Procuring Scientific Evidence • If tests are impossible present an expert to explain WHY you don’t have it • Failure to explain lack of testing may create reasonable doubt in the minds of jurors

31. DNA • Can be performed on a variety of physical evidence • You need to understand the BASIC SCIENTIFIC PRINCIPLES in DNA analysis sufficiently to present your witness fully and completely and to cross examine any defense witness • USE Strategies specific with DNA testing

32. PREPARATION FOR DNA EXPERT • Know the process, you must have a working knowledge of DNA. • Visit the lab if possible. Have your analyst walk you through the process. • If you are using an outside lab, learn the protocols and procedures of that lab. • Become familiar with the instrumentation used and how it’s maintained, tested and serviced.

33. Familiarize yourself with lab’s credentials. Know when the lab obtained accreditation and by what agency. Has the lab had contamination incidents or other issues that resulted in any type of audit or loss of accreditation? What controls are in place to protect against contamination? What steps were taken to rectify any past contamination incidents? What types of proficiency tests are given to the analysts at that lab? How often are they tested? Was your analyst tested? When? Did you analyst pass?

34. Preparation for Defense Expert Research the defense expert thoroughly a. Current curriculum vitae b. Transcripts of prior testimony c. Literature published by the expert d. Reviews or comments by other experts

35. AS TO BOTH PROSECUTION AND DEFENSE EXPERTS • Obtain whatever information you can about the expert • Meet with your expert • Become familiar with current scientific authorities on DNA • File pretrial motions/stipulations • Prepare your direct and cross exams

36. HAIR EVIDENCE The significance of hair evidence is: where it’s found and what kind of hair it is

37. MORE DNA STRATEGIES • Bring a copy of defendant’s birth certificate to eliminate the possibility of “my brother/sister did it” defense • Chain of evidence of is CRITICAL- explain • Use EXHIBITS • Come up with familiar analogies • If you use statistics, make them meaningful. • Obtain recent Census Bureau Reports, giving you the number of people in your jurisdiction. Remember to reduce that number by sex, appropriate age, and race.

38. MENTAL/PSYCHOLOGICAL EXPERTS IN SEX CASES

39. FACTORS TO CONSIDER BEFORE USING A MENTAL HEALTH EXPERT • The battle of the expert issue • Defense may have more resources to call “more” experts • More of a market for defense experts • Issue of appeal where there is a conviction and an expert was used • Can “open” the door • Could cause “pretrial evaluations” which can be very traumatic and difficult for a victim

40. Where you may NEED an Expert a. Delayed disclosure b. Disclosure in bits and pieces c. Recantation d. Child returning to the circumstances on which s/he was abused e. An inability to recall dates, duration or number of abusive incidents f. The child’s loving relationship with the offender

41. Behavioral EvidenceEvidence That Will Rebut Common Misconceptions Rape Trauma Syndrome • A syndrome of behavioral, psychological, physical reactions to rape or attempted rape. An acute stress reaction to a life-threatening experience. • Wide range of emotions: fear, shock, disbelief, humiliation, shame, embarrassment, anger, revenge. • Sleep disturbances, eating disturbances. • Physical symptoms: sore all over; continuing pain to area that was focus of attack. • Intrusive thoughts. • Change in hygiene, appearance, social life, school, work activities. INTERVIEW THESE WITNESSES FOR CORROBORATION

42. Behavioral Evidence (Cont’d) Fresh Complaint • Permits hearsay evidence in court of statement made after assault. • Rebuts common belief that someone who has been sexually assaulted will report immediately. Interview witnesses regarding: • victim’s demeanor • what was said • why victim did not call police

43. Behavioral Evidence (Cont’d) Child Sexual Abuse Accommodation Syndrome • expert testifies regarding syndrome in general, not to diagnose your victim • offered to rebut common misconceptions about delayed report, minimization, recantation

44. Other “Potential Experts” • School Teachers • Day-Care Providers • Child Protective Service Workers • Police Officers

45. Presenting Expert Testimony…Whatever Crime In court, perceived credibility is more important than actual credibility: • Looks count • Demeanor counts • Be prepared • Tell the truth • Be yourself • Speak plain English • Know Your Audience • Say it three times • Get three opinions into one

46. What NOT to Do • Don’t expect the expert witness to teach the jury alone. The witness is dependant upon your questions. • Don’t rely too much upon prepared questions—LISTEN. • Don’t forget the goal is to get the jury to understand what the witness is talking about and to trust the opinions and work of the expert witness. • Don’t try to show off to the jury (or judge). • Don’t indulge in overkill. Keep it simple.

47. An Analogy Everyone Can Understand If unraveled, the DNA within each cell of the human would stretch six feet long. Remind jurors that if one were to cut a golf ball in half, the string inside a one inch gold ball, if unraveled, is 90 feet long.

48. Other Crimes Evidence 1101, 1108 Expressly allows evidence of prior sexual misconduct to show defendant was disposed to commit sexual offenses. • Obtain all reports of prior or subsequent crimes of an assault of a sexual nature – including rejects. • Locate and interview witnesses. • Consider re-examination of evidence from other cases.

49. Creative Places to Find 1108 • Military records • DMV from other places D has lived • School records/employment records • Prior court records (family, civil, dependency) • Friends and family

50. 1108/1101 DOES NOT REQUIRE • Reported or documented • Prosecuted • Resulted in conviction