Category Archives: Defenses to Sex Crimes

Defenses to Sex Crimes

Mitigation is sometimes the best defense

Having a client evaluated for a risk assessment in a New Jersey sex crimes case

Dealing with Other Crimes Evidence 404(b) in New Jersey Sex Crimes Cases

Mitigation is sometimes the best defense

You can only play the cards you are dealt and as a criminal defense attorney, some of your clients will in fact be guilty. Of course, the State has to have the evidence to prove that. It is only when your client is in fact guilty and the State has overwhelming evidence that makes a trial impossible does the primary defense shift to 100% mitigation. While top notch defense attorneys want to win every case, sometimes scoring an amazing plea bargain is the next best thing given the circumstances. What separates the great defense attorneys from the good ones is how they handle the mitigation.


There is no one way to work on mitigation evidence; like anything else, it starts with the facts of the case. However, mitigation evidence has to be developed. You cannot just ask nicely for a good plea. You have to explain why you should get it. The mitigation evidence should focus on why the crime happened and why it won’t happen again. When it comes to sex crimes cases, a psychological evaluation with a risk assessment aspect is very important. However, this should be followed up with treatment. Contrary to popular opinion, not all sex offenders are monsters in the sense that they are actively plotting to harm children. Instead, they often have some serious mental health issues and may have been abused themselves.


One example is the defendants charged with Internet child luring. Most of my clients reported severe depression and other mental health issues. Most also had no prior record or accusations. Clearly, something caused them to engage in this offense. With these cases, thought should be given to distinguishing between using a computer to engage with a purported child versus doing it in real life and how the client’s mental health might have blurred their judgment. If the client has a prior history of mental health issues, this could certainly help. However, just because the client does not have a history, does not mean that they do not suffer from any problems. Either way, an updated evaluation needs to be performed to see how the mental health issues helped lead to this conduct.


The age of the victim or purported victim is also important as is the age of the defendant. A 22 year old looking to have sex with a 14 year old may be looked at more favorably than a 44 year old. This fact needs to be emphasized. Again, an evaluation will help determine if the client is a pedophile, hebephile (someone into older children) or if the person is merely an opportunist who is not necessarily obsessed with children but will have sex with them if given the chance.


Regardless of the client’s personal situation, the prosecutor needs to feel comfortable that the client has identified their problem and is seeking treatment. This will seriously help recidivism which is one of the most important issues for the State.

Having a client evaluated for a risk assessment in a New Jersey sex crimes case

One of the most difficult decisions for a defense attorney to make at the early stages of a case is whether or not the defendant should submit to a risk assessment. A risk assessment can help the defendant get out on bail and obtain a better plea agreement. However, some experts will not perform a risk assessment on a defendant that denies the allegations against him. A psychological evaluation is not to determine if something occurred. It is simply to determine if the defendant is at risk of committing a future offense and therefore how he will do on bail, what treatment is recommended and if he is repetitive and compulsive.


Clearly, if the defendant admits to the accusations, this analysis is much easier. However, some defendants are very reluctant to admit guilt, especially in the beginning of the case. Of course, some clients are actually innocent! Thus, the long term strategy needs to be discussed with the client and/or the client’s family to determine where this case is going. Are we looking to get a good plea or are we looking to go to trial. An early evaluation can lead to early treatment and thus, a better plea bargain down the road. If the defendant maintains his innocence, he has be be prepared both emotionally and financially to possibly go to trial. Once charged, it is rare (but not impossible) for these cases not to end in either a plea or a trial.

Dealing with Other Crimes Evidence 404(b) in New Jersey Sex Crimes Cases

Nothing strikes fear in the hearts defense attorneys like a case involving both 803(c)(27) issues as well as 404(b) issues. They are a deadly combination and therefore, very difficult to overcome. Of course, the primary defense is to keep them out of the trial all together. Again, it is the skill used during these pre-trial motions that sets the experienced criminal defense attorneys from the pretenders. Its also the reason why these cases are more expensive than almost all other cases.


404(b) evidence otherwise known as other crimes evidence is just that, evidence of some other crime. While it cannot be used to prove that the defendant is more likely to be guilty because he did something bad at another time, that is the essential impact it has on the jury. Whether this evidence comes in or not depends on a variety of factors including who the judge is and what the defense is. If the defense is consent, then it will be more likely to come in. Of course, if there is 404(b) evidence that resulted in a conviction, the consent defense may be a long shot at best. If the defense is something other than consent, then the analysis will depend on the specific facts of the current allegations and the prior bad acts.


The first step to dealing with these issues is to see if there is even an issue at all. Not all defendants are honest with their attorneys because they don’t want to admit that they are bad or even have the defense attorney think that they could be a bad person. There is a perception that the attorney will not fight as hard for them if they are guilty. Thus, you have to get the defendant to tell you if anything may come up from anyone about any past issues regardless of whether or not they actually happened. You could also advise the State that your client is a first time offender (at least with regard to these issues). Either the prosecutor will agree with you or they will tell you about what their investigation uncovered.


The next issue to deal with is how much of your defense you give up to the State. Of course, pre-trial motions and reciprocal discovery can make keeping your defense under your hat quite difficult. However, there are at least some cases where only cross examination and an artful summation will win the day and thus, you can keep the prosecutor in the dark, at least officially. Most sex crimes prosecutors are quite skilled and thus, can sniff out your defense anyway. While the secret defense strategy may not advisable in most cases, it should at least be a consideration.


If a 404(b) motion is filed, the State must meet the four part test articulated in State v. Cofield, 127 N.J. 328 (1992) which is 1) the evidence is relevant to a material issues, 2) the other crime is similar in kind and reasonably close in time, 3) there is clear and convincing proof of the other crime and 4) the probative value is not outweighed by the apparent prejudice. While the defense should obviously attack all four factors, the key to victors will likely be factors 3 and 4. Factor 3 will require a hearing in which a mini-trial will be conducted. The clear and convincing burden is quite high which is both good and bad. While it may be difficult to get the evidence in, if it does come in, it may be readily believed by the jury because it already withstood a powerful test. At least the defense attorney can order the transcript and prepare accordingly to battle the witness again.


Judges are always concerned with prejudice so factor 4 should be hammered home as well. Of course, if the other crime evidence is very similar to the crime at issue, prejudice may be difficult to show. However, if the other crime evidence is much more serious, then prejudice will be easier. The defense will argue that the defendant will be convicted on the more serious prior act than the less serious current accusation.


Please keep in mind that other crimes or other bad acts is separate and apart from res gestae. In State v. L.P, 338 N.J. Super. 227 (App. Div.) cert. Denied, 170 N.J. 205 (2001), the Appellate Division explained that res gestate evidence relates directly to the crime that is charged rather than separate bad acts of crimes. Nevertheless, the defense should still attack this evidence from every possible angle.


Any 404(b) evidence that is introduced is devastating because it forces the defense to conduct at least two trials at once. Furthermore, it is likewise difficult to establish a trial theme that can encompass both defenses. While each case has its own unique set of facts and therefore, its own defenses there are a couple of considerations when confronting a case with 404(b) evidence. One is to just switch defenses away from the one that the 404(b) evidence is seeking to undermine. This may lead to exclusion of the evidence or it can be argued that it is irrelvant and the State is seeking to tar and feather the defendant because they are desperate for a conviction. Another option is just ignore the 404(b) evidence and focus 100% of the attack on the crime the defendant is charged with. Of course, this is tough because the purpose of the 404(b) evidence is to undermine the defense itself and ignoring evidence is rarely helpful. However, you can maintain credibility with the jury if you don’t attack evidence that is clearly against you but instead, focus your attack elsewhere.


Yet still another option is to formulate a trial theme that covers both crimes. This can be difficult to do but there are scenarios where this is possible. If the primary accuser knew about the prior bad acts, this can be used to show motive for coaching the victim or the victim could be exploiting this for some reason. If the right facts are present, the defense can be the the two victims are involved in a conspiracy to frame the defendant. This requires either a direct link between the two victims, family members, friends, class mates etc or another link such as the same law enforcement officer DYFS worker investigating the case.


No matter what defense theme is chosen, the defense attorney must take the 404(b) evidence into account and be prepared to deal with it one way or another.