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.