Author Archives: TCLAW202
Obtaining a medical exam in a sex crimes case in New Jersey
Depending on the timing of the disclosure and the age of the victim, the medical examination may be important evidence for both sides of the case. However, the defendant does not have an automatic right to obtain its own medical examination. In State v. D.R.H., 127 NJ 249 (1992), the New Jersey Supreme Court set forth the criteria that needed to be shown before a trial court will order that the victim undergo a separate medical examination. The Court stated that the defendant must make a sufficient showing that its own examination can produce evidence that 1) has substantial probative value and 2) if admitted and believed by the trier of fact could refute or neutralize incriminating evidence or impugn the credibility of prosecution witnesses. The value must also outweigh the harm to the victim.
In the D.R.H. Case in front of the trial court, it seems that the defense was attacking the ultimate conclusion that the breaking of hymen was consistent with sexual abuse. Another examination would not have shed any additional light on this issue. The NJSC also noted that the defense made their motion years after the alleged abuse occurred so it didn’t seem likely that any additional evidence would be uncovered by a new examination at that point.
Thus, defense attorneys should file these motions right away but a report from the defense expert should either accompany the motion or be prepared to be filed in response to the State’s objection or else the motion may get denied. Of course, defense attorneys should not be careful not to show their hand to quickly. Depending on the discovery provided by the State (i.e the thoroughness of the State’s expert’s report) a new examination might not be necessary. If you file such a motion, the State will know that you have an expert and can prepare accordingly. If it is only the conclusion that you are attacking and not the physical findings, then a new examination might not reveal anything. Most defense experts are forensic experts, that is, they review the data provided and come up with a conclusion. They do not perform their own examinations. Thus, care should be taken to understand exactly what the defense will be and what needs to be done to achieve a good verdict.
Dealing with facts beyond change in a New Jersey sex crimes case
Lawyers fail to appreciate the importance of facts beyond change when developing their trial themes. You will lose all credibility with the jury if you ignore facts beyond change. If you do not incorporate the facts beyond change in your defense, it will be very difficult to win.
A fact beyond change is just that, a fact that you must accept and that you can’t do anything about. If your client admitted to being alone with the child at issue and you can’t explain why he or she would say this when it wasn’t true, then this must be part of your trial theme in one way or another. It must be explained or dealt with. Ignoring it will not help you. Another example is if your client has a criminal record and it will come out. In one trial I had, my client had a criminal record. Instead of just ignoring it, I told the jury that my client was likely set up by another party because they knew about his criminal record and he would make a good fall guy. Thus, instead of running from his criminal record, it became part of the theme.
The same holds true for a sex crime case. In just about every trial, there will be bad facts that you will have to deal with. A trial lawyer’s job is to determine how to deal with those facts. With the ones that are beyond change, ignoring them will not make it go away. Thus, if they are not part of your theme in one way or another, you lessen your chances for a great result.
The use of shadow juries in child sex cases
Shadow juries are a group of people that sit in the courtroom and watch the trial (or parts of it) and then are debriefed at the end of each day. It helps the defense to tailor its strategy, especially in a long trial or to pick up on issues that only a jury would notice. Any defense attorney who has kept a jury out for four days on a rather simple case knows that feeling of “what did they miss” or “what are they thinking”. Clearly, your perception of the case is not their perception. Besides being biased, you as the defense lawyer is not like the average juror. Your intelligence and experience is far beyond what they possess. Remember the show, Are you smarter than a 5th grader? Those people are your jurors.
Thus, it may be helpful to have a shadow jury. Of course, this does not come cheap as these people will not likely give up their lives for free just to help you out. Nevertheless, websites like Craigslist can help find people that are willing to be a shadow juror for a small amount of compensation. I would want at least three but no more than six. Anything more than six would be too expensive and there is the law of diminishing returns.
The next question is who is going to organize these people and debrief them? Clearly, you as the defense lawyer have enough to do then to hire people, organize them, debrief them, pay them, etc. Someone from your office staff can do all of this but if they are not a lawyer, how will then know how to debrief these people? The other problem is that if they know they are working for the defense, they may be a bias towards your case, especially since you are paying them. Furthermore, it may be hard for them to critique you if they know they are speaking to a member of your office staff. Thus, you may want to hire a criminal defense consultant to handle everything for you. The consultant should not identify which side they are working for, if any side at all. The consultant can then meet with you and help you alter your strategies or hone in on which ones are having an impact. This is the best way to ensure you are getting an honest answer from your shadow jurors.
Because the cost of running an effective shadow jury could run from $1,000 to $1,500 per day on the low end, you may want to only bring them in for the critical parts of the case to minimize expenses. Of course, if money isn’t that much of an issue, you want them there the entire time.
The importance of motions in child sex abuse cases in New Jersey
Most defendants and their families simply cannot appreciate the amount of work that goes into the defense of a child sex abuse case in New Jersey. One of the reasons why there is so much work is because of the amount of motions involved. A motion is a legal request of the court to do something. The jury is the finder of fact but the judge controls the law. There are many requests that both sides can make in a child sex case, far more than just about any type of case.
These motions are important for a number of reasons. First, the Defendant’s life is on the line. A conviction will change his or her life forever. Second, the law on these case favors the prosecution. Because these cases could be so difficult for the State to try, the Constitution has been bended (some would say thrown out) to put both sides on an even playing field. However, I think the playing field is far from even. Thus, these motions are needed to help shape the trial for both sides. What evidence will be left in and what will be left out? All of this will be decided by way of motions.
Other motions help the defense gather more ammunition for trial. The State will rarely perform a full investigation. For example, we had a case where the child denied any wrongful contact with her father, our client. An hour later, after having access to her mother and a DYFS case worker, the child completely changed her story. You would think that the detectives would want to know why the story changed so dramatically and so quickly. Of course, such questions were never asked. The detective was seemingly pleased that the child made this disclosure period and she just acted like the first statement never happened. The motions unique to these cases will help the defense exclude testimony or gather new evidence to help destroy the State’s case.
It is these unique rules and the motions the accompany them that make it very important to find a lawyer that has experience with these cases. A lawyer can handle 1000 robbery cases successfully and still not be prepared for a child sex case. Unfortunately, some people base their decision on who had the lowest price and not who is the most qualified. Often times, the results are disastrous. If you or your loved one is facing a serious child sex abuse case in New Jersey, you want the case to be expensive! You want that lawyer to be compensated fairly. You want the lawyer to fight for you or your family member. Always remember that you get what you pay for. I don’t know too many lawyers that are going to file a ton of (quality) motions if they are not compensated accordingly or if they don’t even know what they are doing.
Motion for a psychological examination of a child victim in a New Jersey sex crimes case
In the case of State v. R.W., 104 N.J. 14 (1986), the New Jersey Supreme Court set forth the standard for how trial courts should rule on an motion for a psychological (or psychiatric) evaluation of the child victim. The Court held that the moving party must establish a showing of substantial need. This means that there must be “some deviation from acceptable norms, such as an identifiable or clinical psychiatric or similar disorder, beyond the realm of those human conditions that ordinary experience would confirm as normal”. In other words, the defense needs to point to something for the court to hag its hat on. Fishing expeditions are not permitted.
Keep in mind that this case was from 1986. That was a world away from where we are now. Back then, the attitude was that only the most disturbed children see a psychologist or therapist of some sort. Now, child psychology and therapy is routine as is children on medication. Furthermore, there has been an explosion of children with “special needs” which ranges from mild cases of learning disabilities to severe cases of autism / autism spectrum disorder. Once again, school records and medical records will be key in developing the ammunition needed for such a motion.
The relationship between the alleged victim and defendant will also be key. The defendant or the defendant’s family may provide the information necessary for such a motion. However, where the defendant is a complete stranger, it will become more difficult. Not every child is brought to a psychologist for treatment. Some go undiagnosed. Nevertheless, witnesses that have interacted with the child along with the video of the child’s statement could contain important clues. If something seems off to you and/or others that know the child, you could consider having an expert review the material and witness statement to determine if it is possible that the child suffers from one disorder or another. Most experts do not like to go out on a limb like this because they want to protect their credibility. However, they report could indicate that they witnessed various issues with the child, that these issues could be signs of one disorder or another, and that further examination would be necessary to confirm. This should be supported with reference to research articles, DSM criteria and anything else that could support the expert’s opinion. While this may be difficult to pull off, it is certainly better than nothing at all.
Is a child competent to testify as a witness in a New Jersey child molestation case?
One of the first issues that arises with the testimony of a child witness is competency. Clearly, children incapable of verbal expression are not competent witnesses. Beyond that however, the defense may have a tough time convincing a judge that the child witness is not competent to testify. However, this doesn’t mean the issue should not be challenged.
The specific rule of evidence on competency is found at N.J.R.E. 601. However, it is the case law that really damages the defendant’s rights here. For example, in State v. G.C., 188 N.J. 118 (2006), the New Jersey Supreme Court held that the trial court properly determined that the child victim was competent to testify. After asking a series of questions, the child told the judge that it was good to tell the truth and that she was not going to tell a lie. Despite the fact that this doesn’t indicate anything about the child’s understanding of what a lie is, the New Jersey Supreme Court found that this was enough.
Of course, a defense attorney should insist upon more. A common test is asking the child victim questions about what is going on right now. If a judge picks up a pen and says, if I say that I am not holding a pen, is that the truth or a lie. Almost every child will say its a lie. However, this is a rudimentary understanding of truth and lies based upon direct perception. Instead, the defense attorney should submit questions that focus more on the defense them of the case such as “if your Mommy told you that (fill in the blank) happened and it really didn’t, would you say it was the truth?”. The child can also be asked to come up with some examples of a lie, especially ones that the child may have told before.
I don’t expect most judges to rule that a child is not competent to testify on the eve of trial but that doesn’t mean you shouldn’t make a record. However, if there is something in the child’s school records or medical records to indicate that there may be serious competency issues, then this motion should be made way in advance of trial. This may make it easier for the judge or the State to resolve the case in some other fashion such a plea or dismissal.
Jury selection in a child sex case in New Jersey
This is perhaps the most difficult case for a jury selection process that a defense attorney can face in New Jersey. The vast majority of jurors may disqualify themselves as soon as they hear about the case. Luckily, a good judge with a lot of trial experience will take this into account. However, the defense attorney has to be ready to have ideas in case the judge looks to them for guidance or suggestions. After all it is your defendant whose freedom is on the line.
Before jury selection even begins, the defense attorney should have submitted a long list of questions for the jury. I always prefer a long list because many of these question will not be asked. Instead, there will be debate over which questions to ask and why. Be sure to make a record of what questions will not be asked and why. This is easily overlooked in such a trial especially if discussions are held in chambers. One way to make the process easier for the panel of prospective jurors is to only focus on the time commitment and the nature of the charges. Everyone that has an issue raises their hand and then forms a line to discuss the issue at sidebar. Most jurors will be excused and you could be left with a quarter of the jury panel or less.
Some jurors want to serve but are conflicted about their duty to serve versus their personal feelings about the allegations. Some judges can guilt trip these jurors into remaining on the case. The defense attorney must be able to get this potential juror to commit 100% to being fair and impartial. Most people cannot do so and thus, they should be excused.
Care should also be taken to listen to how the jurors respond and not just what they say. Some people seem too eager while other people seem too reluctant. Other people are hardly on the same planet with the rest of us despite correct answers to the questions. Hopefully, the judge will allow both attorneys to ask some follow up questions. This process should not be abused. It is not an invitation to interview the prospective juror at length.
During jury selection, remember to be polite to every possible juror, even those that will be leaving. Some of the people in the courtroom may be on the jury and you are just as much on trial as your client. If they have a negative opinion about you, they may have a negative opinion about everything you say. If you need help with your case, call the NJ Child Sex Crimes Lawyers today.
Motion for a bill of particulars in a NJ Sex Crimes case
In New Jersey, defense lawyers rarely file a motion for a bill of particulars. While it may be common in other states of Federal court, it is generally not an issue in New Jersey especially because the indictment mostly mirrors the statute. In sex crimes cases however, this motion is more common, especially in child sex abuse cases. Detectives rarely push child victims for great detail. Thus, the indictment may be very broad thus encompassing a wide range of dates and allegations. The case law on this issue provides guidance as to how to handle these issues.
In State in the interest of K.A.W. 104 N.J. 112 (1986) the New Jersey Supreme Court found that the defendant has the right to defend against accusations which includes the need for an indictment to let a person know of what he has been accused but that there is a concern that young children who have been victimized do not normally have specific recall of dates. As a result, upon motion for a bill of particulars, the Court can order the State to reinterview the child. This interview should supply dates or other reference points such as weather, seasons of the year, grade in school or events such as birthdays and weddings. If the State cannot do so, the indictment can be dismissed.
Obviously, a reinterview of the child can pay big dividends for the defense, especially if the child changes the story or if the dates supplied allow for a credible alibi defense. Despite the availability of such a motion, it does not mean that the defendant will get very specific information. In State v. C.H., 264 N.J. Super. 112 (App. Div. 1997), the court held that the child indicating that she was eight years old at the time of the abuse was enough notice for the defendant.
Taking statements from witnesses in a New Jersey child molestation case
Sex crimes, such as child molestation rarely have witnesses. If the defendant denies his or her guilt, there will be no actual witnesses since nothing occurred. Furthermore, alibi defenses may be difficult because children do not have a great sense of time. Earlier in the year may be “a long time ago” to a five year old. Thus, defense attorneys in child abuse cases must get creative when taking statements.
As always, its tough to take a statement in a vacuum. Knowing as much about the case as possible is vital to identify who should be interviewed, when and what questions to ask. Of course, timing is everything and you want to strike while the iron is hot. People have bad memories and loyalties may change as the case develops. Once sufficient information is developed, the statements taken may focus on a wide variety of issues such as alibi, character of the defendant, character of the accused, interaction with other children, character of others who may have coached the child, mental health issues of all parties involved, attacks on possible State’s witnesses, etc.
The attorney should avoid interacting with the witness as much as possible, especially without witnesses present. A good private investigator will need little to no help from the attorney during the interview. However, input from the attorney is vital to helping the private investigator draft the appropriate questions. I prefer to use former police officers for big cases such as child molestation. They have a better understanding for what the State is looking for and how to set up the questioning.
Most private investigators start with a pre-interview to see if the witness has appropriate testimony to give. Once the statement is established, it should be typed out and signed by the witness. This will help prevent the witness from wiggling out of it in the future. For multiple page statements, each page should be initialed. Some investigators have the witness initial each line. This way, there can be no claim that the statement has been altered.
The attorney should advise the witness that they may be contacted by investigators from the State and that they have the right not to answer questions. However, they cannot be told not to answer questions. Furthermore, the defendant needs to be reminded that he or she should not even discuss this issue with the witness. The last thing anyone here needs is a charge of witness tampering.
Now the question becomes when to release the statement to the State. If it is clearly exculpatory, strong consideration should be given to sending it to the State pre-indictment has Hogan evidence. If it is Hogan evidence, the State must present it to the grand jury. However, most of the time, the State will just dismiss or remand the case instead of wasting time at the grand jury.
If the statements are handed over after indictment, be sure not to violate any discovery rules. Instead, review the rules carefully. In general, the State has to hand over the entire file. The defense attorney only has to hand over that which it intends to use.
Should a defendant take a polygraph (lie detector) test in a New Jersey sex crimes investigations
A common issue that arises in a New Jersey sex crimes investigation is whether or not the defendant should take a polygraph test. Of course, polygraph tests are not admissible in New Jersey. However, law enforcement puts a lot of trust in them. Our team of sex crimes defense attorneys have blown up some huge cases by having my client submit to and pass a polygraph test. Like all defense strategies, there is no one size fits all approach here.
One of the best moves for a defense attorney is to set up the client with a private polygraph test. Our lawyers have worked with some of the best in the industry and it has proved to be invaluable. Even clients that have sworn up and down that they were 100% innocent have failed the polygraph test. If my client failed a polygraph test that was administered by a detective, there would clearly not be any follow up questioning. Even without a statement, this result could lead detectives to believe that they are on the right track. This is why they insist on it even when the person is represented by counsel. This is why I insist that my client take a private polygraph test first.
Before a private polygraph test is undertaken, the attorney needs to find out as much as possible about the facts of the case so that the questioning can better match the expected questioning of the detective. The defendant also needs to be prepared to accept a negative outcome of the test. Many defendant who fail a test could get angry at the person administering the test, the defense lawyer or both. The lawyer must ensure the defendant before the test is taken that he or she will fight for the defendant no matter what the result is. A good examiner can only soften the blow by explaining the many reasons for a negative result.
The defense attorney also needs to have contingency plans of either the private test or law enforcement test results in failure. If you put all of your eggs in one basket, the client may abandon you if he or she thinks that there no back up plan. If the result is positive, instead of taking another test with law enforcement, it may be possible to just provide the results of your private test to the detective or prosecutor in charge of the case.
The Sex Crimes Lawyers 