Investigative Procedures in Allegations of Child Sexual AbusePart IV: The Defense PerspectiveJohn C. Wideman*ABSTRACT: In the first two parts of this series, basic investigative procedures in approaching child sexual abuse cases were discussed. The third part addressed the investigator's role in the indictment and trial. In this part, the investigator's role from the defense perspective is discussed. When persons are confronted with an accusation of having sexually abused a child they turn first to an attorney to defend them. The attorney may get into the process at the very beginning, while the criminal investigation is still under way, or later, after an indictment has been handed down or an arrest made. For the attorney, there is one cardinal rule concerning defense investigators: The sooner the investigator can become involved, the greater the chance of any success. The proper function of the private investigator in criminal defense matters is: 1. Insure that the police have conducted a thorough, proper, technically and legally correct investigation with all of the suspect's rights preserved. 2. Serve as investigative advisor to the defense attorney. 3. Conduct a thorough investigation, separate from that conducted by the police, to insure that any legitimate defense raised by the suspect is explored. This position undoubtedly will put the private defense investigator into an adversarial relationship with the police. Adversarial does not mean necessarily hostile or acrimonious. In our system of justice, the suspect is afforded the same opportunity to present his defense as the government is afforded to present its prosecution. That guarantee extends to investigative support as much as it does to legal support. However, it is not a proper function of a private investigator to: 1. Help the guilty go free. 2. Use unethical means to subvert witnesses or the judicial process. Within the private investigative profession, there is often a suggestion of "sleaze," or lack of ethical standards, engendered primarily by Hollywood stereotypes and the occasional unethical practitioner. This suggestion can only be overcome by the defense investigator adhering to the highest principles and standards. The investigator will usually be called by the attorney or a member of
the attorney's staff. After the investigator has been notified, he
should begin preparation for his investigation. Defense
investigation is not exactly a mirror image of a criminal
investigation. It has its own paths and techniques. Client Interview Probably the first thing that will occur, after a brief contact with the attorney, is the client interview. The attorney, if inexperienced in these matters, may have made some sort of preliminary investigation of his own and may have developed a theory of the defense. DO NOT be led by this. Listen politely to the attorney, taking note of his concerns and listening to his reasoning. Discuss any areas which the attorney feels are pertinent. Advise the attorney that you will interview the client, review the police report, conduct such interviews as required and report all of your activity in writing. Obtain from the attorney any scheduling dates (e.g. hearings, discovery cutoffs, trial). These dates may set time limits on your investigation. Some attorneys will want periodic oral or written reports. Make sure that you and the attorney understand what he wants and when he wants it so that the client will not be penalized by a lack of communication in the defense team. In conducting the investigation, you will not be doing the client, or the attorney, any favors if you attempt to find and report only information which may exculpate your client. You should attempt to find and report all information objectively. By objective reporting, the attorney is given a complete view of the aspects of the case, both good and bad. No reasonable attorney wants to know only the helpful information. Often, knowledge of potentially adverse witnesses will allow the attorney to prepare cross-examination questions to neutralize the witness's information or cause its credibility to be brought into question. This will be your first opportunity to obtain the client's version of the matter. Probably the most critical aspect of this interview is your mind set. Regardless of what you have read or heard through the news media, or what your private thoughts are, go into the interview with an absolutely open mind. A mind beset with preconceptions will only hinder any investigation. Just as the law enforcement investigator, you must collect the facts and let the facts tell you what occurred. Do not become a prisoner of the defense investigation or the defense theory. Finally, if there is more than one defense attorney, make sure that one attorney is designated as your point of contact in the case with the understanding that attorney will forward all information provided by you to the other attorney(s). The interview may take place at the attorney's office, the local jail or the client's home. Regardless of the location, the interview site should be quiet and allow privacy. Interview the client with no one else present, except perhaps the attorney. Some attorneys may want paralegals or other staff to sit in on the interview, but it is ill advised at this juncture where you are trying to gain your initial information from a client who is frightened and probably confused. Allow the client to tell his story without coercion, pressure or intimidation since it will probably be the first time that he has had such an opportunity. Clearly understand your legal position vis á vis the attorney and the client. In some circumstances, the investigator's work becomes part of the attorney's work product and is exempt from discovery by the prosecution. However, if there is some indication that you might testify at trial, a whole new arena of problems is opened. This is a very tricky area which is fraught with some peril for the unwary investigator or the unwary attorney. Statements made by the defendant to a defense investigator might be discoverable under certain circumstances. For this reason, it is critical that you and the attorney have some idea of what might happen down the road at trial. For example, the defense attorney might call you to impeach a witness who has changed stories since the interview. How the attorney handles you on direct questioning might open unfavorable avenues on cross examination by the state. If you are going to give substantive evidence of probative value, then it would probably be better to have a second investigator, who is not expected to testify, handle certain areas which involve the defendant. In interviewing the client, first establish rapport by making small talk and explaining about your purpose. At this point, the client has only been interviewed by police investigators and may have some concern about who really is the defense investigator. Once rapport has been established, explain that you are the defense investigator, retained by the defense attorney, to assist the client. After obtaining the usual biographical and personal data, allow the client to explain his situation in his own words without interruption. During this explanation, take notes and observe the client's demeanor. For some clients, the repetition of the story of the accusation may be traumatic, for others, not. Part of this process is to allow a cathartic repetition of what the client feels is important about his case and part of this is to assess the client's version of events. There will be three essential client versions of events in a child sexual abuse case where the client denies any guilt. These are: 1. Outright denial of any contact with the child and any suggestion of sexual abuse. 2. Admission of acquaintance with the child, but denial of any suggestion of abuse. 3. Admission of acquaintance with the child, presence at the time alleged, but denial of any abuse or sexual contact with the child. All of these versions are consistent with innocence. Once the client has exhausted his version of events, take the client through the story again, only this time in extreme detail. As always, people telling events will report only those events they think are important, not realizing the importance of other information. Some of the areas to be covered are: 1. The exact relationship, if any, between the client and the victim (e.g. parent, sibling, relative, neighbor, stranger). 2. The exact extent and type of contact, if any, between the client and the victim (e.g. every day, once a month, never; parental care, day care, school related activities, social activities). 3. The exact circumstances of the client's activities on the date contained in the allegation. For this purpose, start with the time the client got up that morning and move through the day in as much detail as possible. Be particularly alert for detail that might corroborate an alibi defense if one is raised (i.e. he was not there at the time of the alleged incident). 4. The identity of any persons who might be witnesses to the client's activities on the day in question. There is one extremely important area of concern. Any
well-trained investigator will tell the client that it is absolutely
essential that the client always be truthful with the investigator
regardless of what is the truth. The purpose for this is so that the
investigator properly focuses his investigation to ensure the most
objective fact collection. However, this sometimes turns into a
situation where the investigator wants the client to confess his guilt, if
such is the case. It is best to simply offer the client the
opportunity to tell his story. Obviously, there will be other
interviews of the client as you develop the facts of the case.
Ultimately, there may come a time where the client's story is so
dissimilar to the known facts that a moment of truth may have to be had
with him. To this end, it is always prudent to have a very careful
and candid discussion with the attorney before confronting the client with
the discrepancies. In many cases in my experience, the attorney will
want to have this revelation of facts in a meeting among the attorney, the
client and the investigator. The Police Report The first thing to do after the client interview is to obtain everything available to the defense attorney concerning the case. No document or information is too insignificant. Sometimes, the police report of investigation will be made available to the defense attorney by copy or by the ability to review the prosecutor's file. The police report, while important, should not guide your investigation. The police report is useful for two purposes:
Few police-obtained statements can be relied on. In my experience over the last 22 years, from the perspectives of both a law enforcement officer and a defense investigator, police-obtained statements generally lack detail and anything the least bit exculpatory. Thus, interview every listed witness again with a view toward a complete review of any knowledge the witness might have concerning the incident. Most important, ask the witness about any other witnesses. Experience has shown that police sometimes interview people and do not report the interview if it does not serve their purpose or ignore the lead altogether. Review the police report with a view toward the exact sequence of events in the police investigation and the methodology employed. A well-trained private investigator, experienced in criminal defense matters, will often have significant expertise in legal aspects of police work (e.g. Fourth, Fifth, and Sixth Amendment questions as they relate to the client). From this review, critical elements may be located which could result in the dismissal of certain evidence or even the charge itself. Also, although the police report may seem to be completely correct on the surface, later witness information may show that different sequences occurred thereby jeopardizing the seizure of evidence or statements made by the client. Areas which should be of particular concern are: 1. Probable cause for any warrantless search or arrest. The exact circumstances of any such search or arrest will be critical since the courts generally hold warrantless arrests and searches to very strict guidelines. 2. Probable cause for any search warrant or arrest warrant. 3. Circumstances leading the police to the client as a suspect. Be particularly alert for other identified suspects in the police report. 4. Exact circumstances under which police first talked to client and any subsequent interviews. 5. Exact time, place and circumstances of an advice of "rights" (e.g. Miranda rights, consensual search rights) as well as any expression on the part of the client that he wished to exercise those rights. Be particularly alert for signed "waivers" of any rights. 6. Any photographic lineup. Obtain copies of all the photographs used and the exact circumstances under which they were used. If a live lineup was used, get the identity of all persons in the lineup and the identity of all persons present with the victim at the time of the lineup. 7. Any use of so-called "anatomically-correct dolls," including the exact brand name and any associated publications. 8. Any physical evidence taken from the client (e.g. blood, hair, nail scrapings) and any concomitant laboratory examinations. 9. Any photographs of crime scenes, victims, client, vehicles, other suspects, etc. 10. Anything listed in the report which would be subject to pretrial
discovery under your state laws, or Federal law, which does not show up in
the discovery requested. Sometimes, the police will forget to
provide discoverable items to the prosecutor. If these later prove
to be exculpatory under Brady V. Maryland, 373 US 86, it could
result in reversal of an unfavorable verdict. If the prosecutor
attempts to later use items not provided under proper discovery rules, the
items may be excluded from the trial. The Investigative Plan Once the initial information is obtained from the attorney, the client and any extant police reports, the next step is to make an investigative plan. This plan should be a logical investigative progression which ensures coverage of all information and witnesses. Write out the investigation with the names of all witnesses, records reviews, scene examinations and other activities noted. Cases with multiple alleged victims present a special problem. In some cases of child sexual abuse, the government will come up with multiple victims and an indictment will be handed down with multiple counts, sometimes multiple counts for each of multiple victims. This complicates matters. To aid in conducting the defense investigation, handle each count involving each alleged victim separately. It is also possible that there will be some instances where alleged victims will cross-corroborate each other's abuse, and thus each count of the indictment. In those situations, it is best to handle each count separately and then join them for examination after the investigation has proceeded to the point that more is known about the situation. Rely on careful file management techniques and visual investigative aids (e.g. link analysis diagrams, family genealogy) to ensure that information is collected, stored, analyzed, collated and disseminated properly to the defense attorneys. The investigator should become the historical data base for the attorney to use at trial. Careful file management will go a long way toward ensuring that an orderly trial file is available at the appointed time. Some areas of difficulty will arise for the defense investigator: 1. Contact with the alleged victim. This is one area which will be extremely sensitive. It is highly unlikely that you will ever have access to the victim. Most courts have proven extremely protective of alleged victims, only rarely giving permission to defense mental health professionals to examine them. In the extremely unlikely event that your are offered the opportunity to interview a victim, careful preparation is in order. 2. Contact with alleged victim's family. The court may not be as inclined to limit defense investigative access to adult or adolescent members of the victim's family. Usually, this type of access is coordinated between the prosecutor and the defense attorney although, absent a statute, local rule or court order, there is no reason why you could not simply present yourself to the adult persons to be interviewed without prior agreement of the prosecutor. The more distant the relationship between the victim and the interviewee, the less likely the court will care about access. 3. Contact with any co-defendants. If there are co-defendants
involved with your client, then there will have to be coordination between
the respective defense attorneys. In most cases, it is highly
unlikely that you will be allowed interview access to a co-defendant
unless the defendants are joined at trial and using a joint defense of
some nature (e.g. alibi). If interview access is allowed, the attorney
will certainly be present and the areas of inquiry may be limited.
The best thing is to have a pre-interview discussion with the attorney and
determine what are the limits of the interview. The Investigation Witnesses Witnesses should be interviewed in a sequence that is logical to the investigator. For this reason, there is no set structure of which witnesses should be interviewed first, and which, last. A possible solution is to interview the critical, or eye witnesses, early on mostly to obtain their version of events before intervening information or contact with other persons causes a change in that version of events. With these witnesses, use standard interview techniques [SEE PART II] and collect detailed information. Be on the lookout particularly for unreported witnesses. Often persons who are unknown to the police investigators, or known to the police but not interviewed, will be located. For this reason, ask each witness about the presence of other witnesses and canvass the alleged crime scene area to locate such witnesses. Conduct the canvasses at about the same time of day and day of the week as the alleged offense. People live in patterns and you may find a witness who passes the incident location only at the time that the incident allegedly occurred. This is particularly true on the first, fifteenth and last days of the month when certain government checks are sent or certain industries pay their employees. Consider route personnel (e.g. postal carriers, milk men, paper boys, delivery men) since they are on the streets constantly. There are several ways to preserve interview information. These are: 1. Investigator's memorandum of interview based on the contemporaneous notes of the investigator. 2. Written statements of the witness, not under oath. 3; Written statements of the witness, under oath. 4. Tape-recorded statements. Since many people are extremely sensitive about being involved in a criminal case, particularly one of notoriety, conduct the interview and take notes, at least at first. If, after the information needed has been obtained, you feel that the witness is likely to agree to a statement, ask him to do so. A statement under oath is the most preferred manner of preserving witness testimony. While many law enforcement officers are empowered statutorily to administer the oath, private investigators are not unless they also happen to be notaries public. A notary public is usually available for this purpose if you are not so designated. Tape-recorded statements may be taken openly or surreptitiously depending upon the desires of the defense attorney and any relevant state law. If the tape recording is made openly, it should be prefaced with: 1. The date, time and place. 2. The identity of the investigator taking the statement. 3. The complete name, address, and date of birth of the person making the statement. 4. If the oath is to be given, it should be given here with the witness making the appropriate response. 5. An affirmation by the witness, based on a question by the investigator, that the statement is being given freely, voluntarily and without any threats, rewards or promises of reward having been made to the witness in return for the statement. 6. The time the statement is concluded. Don't shut off the tape recorder during the interview. An uninterrupted tape will show that the interview was continuous and stops were not made to coach the witness. If a witness knows that his statement has been recorded in this manner, he is very unlikely to change his testimony knowing that the tape exists. Surreptitious recording of interviews is permissible under Federal law and undermost state law where the state adopted the Federal language allowing one-party consent recordings. There are some good and bad aspects to the surreptitious recording of interviews. 1. The investigator must constantly be aware of what he is saying to the witness and avoid the use of profanity or gratuitous comments which will injure the credibility of the interview. 2. Some people (e.g. jurors) look upon the surreptitious recording of interviews as unfair. 3. if the witness later decides to materially change his testimony at trial and denies making certain statements to the investigator, a surreptitious record of the interview is extremely powerful impeachment material. Whether to surreptitiously record an interview is a decision that
should be made by the investigator and the attorney with consideration for
all the local and legal factors pertaining to the individual case.
Illegal electronic interception of communications is never worth it. Photographs If a physical crime scene area is extant it should be photographed with both video and 35 millimeter film where possible. In some instances, there may have to be an agreement with the prosecutor for the defense team to have access to the scene (e.g. front room of victim' residence). Photography is important for several reasons: 1. The photographs so obtained can be compared with police crime scene photographs to look for discrepancies or changes. 2. The photographs can be used to orient the defense attorneys, particularly where the scene is so distant that regular travel to it is burdensome. 3. The photographs can be used to check witness statements concerning the incident(s). 4. The photographs can be used to debrief the client without having the client seen at the "scene of the crime. 5. In the event that the court does not allow a jury view of the crime scene, they might be used to demonstrate certain facts to the jury. 6. The photographs may be used at trial to cross examine victims and witnesses. 7. If a wooded, rural, remote or unusually large area is involved, additional aerial, hand-held 35 millimeter photography may be in order. Be thoroughly familiar with the equipment and film used. In the
event that you are called to testify you should be able to speak
knowledgeably about your photography. Laboratory Examinations With the advent of DNA (deoxyribonucleic acid) testing, science has provided the law with a two-edged, sword. Ultimately, it is believed that DNA testing will trap the guilty and free the innocent. However, there are a few flaws to date. DNA testing, while accepted tentatively in some jurisdictions, has not been adopted in every jurisdiction. Prior to the advent of DNA testing, and to some extent still in most jurisdictions, the scientific use of blood groups, with concomitant statistical inference, had been used. In this method, an expert was allowed to state the degree of probability with which the defendant's blood group characteristics appeared in the questioned sample from the victim or crime scene (e.g. 1 in 10,000; 1 in 1 million). DNA testing offers the possibility, with future refinement, that absolute identification between a questioned sample of biological material and a known sample of biological material is possible. That would mean ultimately that a defendant could have his blood tested against the DNA present in the questioned sample, and if different, would virtually establish his innocence. In many child sexual abuse cases, however, there is no biological evidence from the offender or the offender was of such a close relationship or proximity to the victim that biological evidence such as hair, fingernails, and nail scrapings, would not be useful to the prosecution. If such biological evidence is available and the laboratory examination closely links the client to the victim, then get an explanation, dispositive of guilt, as to how this is possible. Review other laboratory examinations such as toolmark evidence, firearms evidence, tire mark evidence, bite mark evidence, clothing, or other weapons in the same manner to provide the client an opportunity to explain the circumstances. There are very few types of physical evidence which are not subject to
attack by the defense. Never roll over for the prosecution just
because they have a fingerprint, a hair, a fiber, semen or a blood sample
which seems, initially at least, to implicate your client. Carefully
explore all the possibilities and review the professional literature
concerning forensic evidence. You may want to suggest the use of an
independent expert in some cases where the physical evidence is
questionable and can be challenged by an expert in the particular field. Post-Mortem Examinations In those cases where a homicide, or other manner of death, has occurred in conjunction with the case, carefully review the post-mortem examination. For this purpose, do your homework and review appropriate medical and investigative texts regarding the cause of death.(31) In some cases, the pathologist cannot state within a narrowly defined time frame the time of the injury resulting in death. This is particularly true in some instances of abdominal trauma where the damage goes undetected for a period of time and death ultimately results from hypovolemic shock. Interview the pathologist and confirm his opinion as to the nature and
cause of death. If there is an instance where the nature of death
could be other than homicide, explore the various options with the
pathologist to determine how he is going to deal with those questions on
cross-examination by the defense attorney. This information may
require that a defense expert in forensic pathology be retained to refute
the conclusions of the state's pathologist. Police Activities The courts are becoming more and more lenient regarding actions taken by law enforcement officers in the areas of arrest and search and seizure. However, the Fourth, Fifth, Sixth and Fourteenth Amendments to the US Constitution have not been totally thrown away. Law enforcement officers are still making bad arrests and making bad searches every day, everywhere. As long as human beings are conducting these activities, they will err. Of particular concern, and focus, should be any arrest, search or
seizure made without a warrant. The courts look very carefully at
these situations and place the burden significantly on the state to show
their correctness. Arrest If questions arise as to the propriety of the client's arrest, interviews of any possible witnesses may be in order, particularly if the arrest was made without a warrant. Areas of primary concern include: 1. Probable cause. What led up to the arrest of the client? Did the arresting officers have sufficient probable cause and/or was it properly articulated in the affidavit for the warrant? Is there a discrepancy between the arresting officer's affidavit, known facts, and/or preliminary hearing testimony? Do witnesses tell a different story from that of the officer(s)? 2. Identification of the client as
perpetrator. How was the client identified as the perpetrator?
Find the witnesses and review the police process with them. (32)
If a lineup was used, have the attorney obtain the photographs used, or
the identity of the persons in the lineup to determine (a) exactly how
much they all resemble each other and the description provided by
witnesses/victim, and (b) where they were on the day and time in
question. Often mug shots are used in photographic lineups.
Check on the whereabouts of the persons whose photographs were
shown. If they have no alibi, they may become a suspect too.
Remember that by the time a hearing comes around, the witness will almost
always identify the man in the orange jumpsuit and handcuffs, sitting
between the two defense attorneys in suits, as the person he or she saw. Search and Seizure Search and seizure issues often play a critical part in child sexual abuse cases. If items of evidence were seized pursuant to valid search warrant, they will usually not be excluded on the basis of the search and seizure. However, in some cases, seizures are made pursuant to arrest or pursuant to a consent search. The courts have pretty well defined both of these areas. Searches pursuant to arrest are generally limited to the area within the control of the person being arrested. Here again, if a search was conducted, any witnesses to the search will have to be interviewed. Law enforcement officers will rarely admit if they made a bad search or a bad arrest. If it comes down to the officer's word against the defendant's word, the courts will virtually never take the defendant's word. Consent searches are a strange animal unto themselves. The courts have fairly well gutted the Fourth Amendment issues and left a "totality of the circumstances" aura around consent searches. A couple of areas to consider are: 1. Was there probable cause for the search? In some cases, the officer will tell the defendant that the defendant may consent to the search or the officer will go get a warrant. If no probable cause exists for the search, the court may suppress the fruits of any subsequently given consent search. States, and even Federal circuits, vary widely on some of these issues. Review the current law of your state, or jurisdiction, and then determine who should be interviewed to determine if the consent was freely, knowingly, voluntarily given and if the person giving such consent had the standing to permit the search. 2. The exact circumstances surrounding the consent. Was it coerced? Several court cases have held that if the defendant was in a coercive atmosphere, the consent was not voluntary. Review the chain of custody of the evidence seized. Although this is usually not a fruitful area of endeavor, it may pay to take the attorney over to the police evidence room prior to final, pretrial hearings and take a look at the evidence. Look at each of the evidence tags and trace the handlers. If at trial, a question arises as to who handled the evidence, you will be prepared for what the state knows. Something as simple as this may cause a critical piece of the state's evidence to remain out of trial. Also, by reviewing the physical evidence, information may be gleaned that may cause a witness's credibility to be called into question.(33) (This discussion of the defense perspective in investigative procedures
in allegations of child sexual abuse will be concluded in the next issue
of the journal.) Footnotes(30) See Part II of this
series for suggestions; Underwager, Ralph and Hollida Wakefield, The
Real World of Child Interrogations ( (31) DiMaio, Dominick J. and Vincent J. M. DiMaio, Forensic
Pathology ( (32) It is not uncommon for arresting officers to present the arrestee, alone, usually in handcuffs, and seated in the rear of the police car, to the witness and/or victim to obtain a positive identification. Needless to say this is a highly suggestive identification. [Back] (33) Physical evidence tells an investigator many things about the crime and the crime scene. Blood stain evidence, tears in clothing, lack of certain stains, diatom comparison of dirt, trace element evidence, all go to making the word picture of the crime. They all exclude, as well as include, a particular person or persons. [Back] [Part I] [Part II] [Part III] Part IV] [Part V] |
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