Questioning a Prospective Attorney

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Carefully determine if the attorney you select is the proper attorney for you. They must have a real desire to win. Discovering you have the wrong attorney as your jury is being picked is certainly not beneficial. There are many issues that should be openly discussed with any attorney that you are considering and the following questions should be resolved before any final decision is made on your part.

How much of your practice is devoted to criminal defense work?

• It is strongly advised that the attorney you retain have an established background in criminal defense work. Retaining a corporate lawyer to defend a false accusation case most probably would benefit no one, especially the accused.

Are you easily reached at your office during office hours and, if you are out or busy, what is the average call-back time?

• This is an important issue because with some attorneys, it can be days before your call is returned.

Can I reach you on a 24-hour basis?

• This is an absolute must. Do not “pester” an attorney, but it is extremely important that you have the ability to reach them and not just an answering machine or secretary.

How many sexual abuse allegation cases have you personally handled?

• Most attorneys will quickly tell you that they have handled these cases previously, when in fact, many have never been near a false allegation case. The key to determining the truthfulness of their response to this question is in their response to the next question. Never lose sight of the fact that there are attorneys who will tell you anything prior to being paid or retained.

If you have defended false allegations cases in the past, what experts did you use, or have you used?

• Defending a false allegation case without the use of experts is similar to playing Russian Roulette with a fully loaded chamber. There is usually no chance for survival. If their response is that they have not needed experts, they most probably are not being truthful about having defended these cases, or at least a major case of this type.

What is your opinion of the use of experts and what experts would benefit me?

• Without question, a qualified investigator, someone who specializes in false allegation cases. That individual will actually prepare the overall defense for the attorney. Any attorney who tells you that they can prepare your defense without an investigator most probably has no intention of preparing any defense whatsoever. Also consider the possibility of using a polygraph examiner, but only under the most controlled circumstances, as well as experts who have administered various psychological tests to the accused and experts that have the ability to discredit the State’s expert witnesses.

Is this a Daubert or Frye state regarding the admission of expert testimony?

• Under Daubert, expert testimony must be based on scientific fact and, as a result, personal opinions will not be accepted by the court unless that opinion has been scientifically proven.

How would you determine the specific testimony of a state appointed psychologist who interviewed a child accuser prior to trial?

• File a pretrial motion to exclude testimony. During that hearing, determine what portion of their testimony is scientific and which part is aimed solely at inflaming a jury. Object to anything not proper and assure that the court will not allow such testimony in front of a jury.

How would you handle a psychologist’s testimony at trial when they stated that in their expert opinion, the child accuser matches the profile of a sexually molested child?

• Object immediately and ask for a mistrial since there is no such recognized profile. That issue should have been dealt with during a pretrial hearing and never allowed because once a jury has heard it, that bell cannot be unrung, regardless of the fact that the judge tells them to disregard what they have heard.

Is it your practice to waive a preliminary hearing? If so, why and if not, why not?

• Waiving the preliminary hearing misses the opportunity to cross examine the child accuser, if the prosecutor puts that child on the stand and many do. The preliminary hearing provides one of the only circumstances under which a child can be questioned harshly, because it does not take place in front of a jury and there is no fear of a jury convicting based only on sympathy. In addition, the preliminary hearing is one of the only opportunities you will ever have to carefully question the child accuser prior to trial. It can provide the perfect setting to require the child accuser to “detail” the facts of their allegation. At the very least, you can expect testimony from the child to have very little or no detail, simply because they are not able to respond to events that never took place. Normally, when the child is pushed for detail, tears flow. That is the last thing that needs to be done in front of a jury because, many times, they take the attitude that the attorney is “beating up” on the poor child. On occasion, a prosecutor elects not to put the child on the stand and uses a detective instead. In that case, you must look for an alternative to questioning that child prior to a jury setting. It is vital to use every means possible to expose the lie before a trial.

When do you file a Motion for Discovery and what does it entitle us to?

• A Motion for Discovery should be filed immediately after either an arrest, an indictment or the attorney is retained. A Motion for Discovery entitles the defense to have everything the State has and will use against the accused, including all documents, reports, tests and a synopsis of all witnesses and their testimony. When the State has not complied within a normal time frame, the attorney should file a Motion to Compel, asking the Court to force the State to comply. As soon as discovery is received, it should be carefully analyzed to determine if the State has complied with “all” discovery the defense is entitled to. If not, again, there should be a Motion to Compel filed. If the State denies any aspect of discovery, telling the defense they are not entitled to some evidence, the defense should file a motion for an in-camera review by the court.

Have you personally experienced a prosecutor withholding exculpatory evidence?

• Many prosecutors provide discovery at the last possible minute and in some cases, withhold discovery that would benefit the defense. A defense attorney should file a Motion to Compel and force the State to produce any material the defense is entitled to and the State has failed to produce. The information obtained from discovery is absolutely vital to the defense.

What would your reaction be to multiple interviews of a child accuser?

• It is a proven fact that multiple interviews of a child, especially by non-qualified individuals, actually coaches the child and in some cases, can be grounds for filing motions to restrict any or all of a child’s testimony. There is certain criteria for interviewing children and very few people are really qualified, as is found in a great majority of false abuse allegation cases. When an interviewer shows “sympathy” for the child, the child gets the clear message they are telling the interviewer what they want to hear, and that certainly does not have to be the truth. Non-qualified individuals all seem to have one thing in common. Without realizing it, the greatest majority of their interview with a child is conducted by using sympathy and leading questions. There have been numerous cases overturned in many circuits because of leading questioning and because the questioning technique actually tainted the child’s testimony. There are experts who have the ability to educate the court as to the damage of multiple interviews.

What would your opinion of the use of SAC (sexually anatomically correct) dolls be?

• SAC dolls act as a coaching aid and should never be used. They are a training tool and coach a child. In many instances, the person who used the dolls during the interview was not qualified to use them at all. There have even been cases where a prosecutor has used dolls prior to having a “child victim” testify so they can “get their testimony” straight. The same is true of sexually anatomically correct drawings. Neither are recommended by the APA, based on a study by their task force in 1991.

What motions would you consider filing as part of the defense?

• The attorney should consider filing a motion to require that any and all adult contact with the minor children be video taped, with copies of each tape supplied to the defense within three (3) days, something very seldom done. In many cases video and/or audio taping will prevent multiple interviews, coaching, leading and sympathy questioning of a child, aimed at increasing the allegations. There is no good reason not to tape the sessions and there can be absolutely no dispute as to what transpired during the interview when there is such a record. If the State responds negatively to a motion, ask yourself what are they afraid of or what are they attempting to hide. The attorney should also consider filing a motion to have the child evaluated by a court appointed psychologist, again, something very seldom done. It is not abnormal for the State to appoint a “prosecution” psychologist and the benefits would be great at having the child interviewed by an unbiased professional. Most State appointed psychologists are nothing more than an assistant to the prosecutor. It would certainly be beneficial to have a neutral party deal with the child. In addition to these, there are numerous other motions the attorney may wish to consider.

Would you have me testify?

• In these cases, normally to acquit, the jury demands hearing from the accused that they did nothing wrong. If the attorney you are talking with tells you it is not their policy to have a client “testify” in these matters, you have a problem. Again, in most of these cases, everything normally comes down to your word against the child’s and who the jury believes. How can they believe you when you refuse to testify.

How do you handle a child on the witness stand who has testified for the state and then begins crying uncontrollably when being cross-examined?

• Ask for a recess, keep the questions simple and prove to the jury by your actions that you are not causing what they are seeing in the child. There is an absolute art to dealing with a child on a witness stand and your attorney better have the knowledge and experience to handle that child without infuriating the jury or you can almost rest assured you will be convicted.

While there are numerous issues when considering any attorney, the better educated you are personally as to the basics regarding criminal procedures, the better off you will be in discussing specific matters with your lawyer.