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CROSS EXAMINATION OF SEX CRIME WITNESSES
CROSS EXAMINATION OF SEX CRIME WITNESSES
A presentation given on February 3, 2011 and May 18, 2011 for the Maine Commission on Indigent Legal Services
- 1. BE WILLING. DON’T TAKE THESE CASES UNLESS YOU ARE WILLING TO GET YOUR HANDS DIRTY. (The trailer park story-see PFA’s).
2. USE COLLATERAL HEARINGS to get a crack at the “complaining witness.”
a. PFA’s
i. Often brought by parents at DHHS/advocate insistence.
ii. Consider the goals-balance discovery with keeping fear alive.
iii. Subpoena away!
b. Divorces
i. Courts will likely not allow child testimony even in light of allegations but collateral witnesses can be crossed.
c. Child Protective Hearings
i. Court unlikely to allow child testimony but MACWIS logs & collateral witness/taped interviews are gold.
d. Probate Court (rare)
e. Substantiation hearings. A much bigger part of the practice now.
f. Consider the “fear factor?” Wil you desensitize the witness to testifying? Is that desireable from a plea bargaining/trial strategy statndpoint?
g. Be aware of your personal aura. Are you a mean scary looking guy or a cuddly grandmother type. Understand how witnesses will react to you-tone it down or amp it up depending on the desired response.
3. BE KIND (But Don’t Back Down)
a. Often these are real victims and honey will get you more than vinegar.
b. Don’t make the jury hate you. See 2(g), above.
c. Good relationship with DA might get you an interview.
d. Often it is more productive to use a sympathetic cross of the child witness gather gold on the “real” abuser (social worker, cop, accusing parent etc) than to attack the story directly.
e. at the same time, if you can’t go after a child witness why bother to have a trial.
Julio: sorry that kid cried, blame me!
4. BE ALERT TO COLLATERAL INFLUENCES.
a. Boyfriend needs to hear she was “raped”
b. Parents need to hear the same thing . ..
c. Overzealous social workers/VWA’s
d. Sympathetic cop not following basic interrogation procedure
i. Failure to separate
ii. The 15 minute rape investigation
e. DA rehearsal (“The Mike Roberts Story” or “Kids say the darndest things!”
f. OTHER?
5. LISTEN TO THE LANGUAGE. Often its not what is being said it is what is not being said or how it is being said that will give you important clues to holes in the case (see the Mike Roberts Story). Look at the witness, not your notes.
6. PRETRIAL INVESTIGATION. Often fruitless but necessary. MACWIS LOGS & CLIFFORD ORDERS. Social Media & texts. Be prepared to fly blind.
7. CHAOS IS YOUR FRIEND. Be alert to unexpected opportunities. Explore the story in detail. Surprising things can pop out of nowhere. You often will not have an opportunity to develop information independent from what’s in the police report. If you only ask the question you know the answer to then you may simply reinforce the State’s case. Be prepared to make some magic, take a chance.
8. NEVER LEAVE A BAD ANSWER HANGING. The corollary to taking a chance is always have a backup plan. If your “take a chance” question leads into a bad answer be prepared to back out and go back to a “known” good fact. Never leave a “bad” fact hanging as the answer to your last question.
OTHER SEX CASE CONSIDERATIONS
7. DON’T BE AFRAID TO TRY THESE CASES. PREJUDICE AGAINST THESE TYPES OF DEFENDANTS IS A MILE WIDE AND AN INCH DEEP.
8. UNDERSTAND THE FOLLOWING DOCTRINES/RULES:
a. Hearsay.
b. Rape Shield Law MRE 412
i. exceptions for other source of injury
ii. specific past instances which might support a consent defense.
iii. “Tender years” doctrine and its limits.
iv. First Report
10. TRY THESE CASES. Even the dead-bang losers-you will get very favorable plea bargains in the long run.
11. PLEA BARGAINS. 10 year registry v. lifetime. Probation conditions and counseling. Non-sexual drop-downs. Move out of family dwelling. Young relatives/kids. Child porn/federal.
12. THE POLICE ARE OUR FRIEND. Sometimes our friends let us down. Regretfully point out the sloppy investigation.
