Why criminal defense attorneys have to learn the science

“If your [defense counsel’s] client didn't do it, why is the child saying he did?...There can be no loose ends in your explanation [to the jury] as to why the false allegations arose. Maybe mom's repeated and suggestive questioning of the child about an imagined molest has turned the child into a believer with a story to tell. But make sure you can prove this before it becomes your theory of the case…The physical findings are normally going to be presented to the jury by a child advocate masquerading as a physician. The doctor whose only role in the case is to come before the jury and say “I didn't find anything, but that's entirely consistent with sexual abuse having occurred” needs to be precluded on relevance grounds. Offer to agree not to argue the absence of physical findings (it will occur to the jury anyway) and thereby remove any possible relevance this doublethink has.”
— Richard Lougee
“Defending Allegations of
Sexual Abuse” (2017)

“In criminal cases, the importance of science (and understanding the limits of science) cannot be gainsaid. The statistics are clear: in a review of homicide cases in Cleveland, Ohio, the clearance rate was higher [63.1 percent] for cases with probative results — either matches or exclusions — than in cases without such evidence [56.3 percent], and the average sentence imposed was higher in the former category. Yet there is a confounding problem – the consumers of forensic evidence have little or no scientific training, either at the college level or ‘on the job.’ Perhaps 5 percent of lawyers [and judges] studied science, a number presented in research papers and confirmed repeatedly by polling attendees at legal education conferences. And the consequences are severe.”
— Jules Epstein
The Judicial Edge (2016)

“Unfortunately, the destructive pattern of catering to the forensic confirmation bias persists because of a stark disconnect between the scientific and legal communities…neither field is likely to address the forensic confirmation bias without substantial incentives for structural change. First, lawyers and forensic analysts have inherently conflicting goals. While analysts seek to describe their results objectively, lawyers have an obligation to zealously advocate for their clients. As such, it is unlikely that lawyers will take steps to mitigate the very bias that bolsters their chances at obtaining evidence that will support their case. Furthermore, in the criminal justice system, the interests of prosecutors tend to prevail because law enforcement officials, who subscribe to similar prosecutorial goals, tend to have significant control over affiliated crime laboratories…lawyers lack fundamental knowledge of the operations and intrinsic limitations of forensic testing…As such, they are often unable, without the proper education, to appreciate the effects of the forensic confirmation bias on the interpretation of data and test results.”
— John Perez
Yale Law Review (2014)

Forensic science is performed by and favors the prosecution. The forensic interviewers (FI) in a child sex abuse investigation are supposed to be impartial scientists who are using a scientific method to arrive at truth. However, the FI is part of the prosecution team, and their work shows their bias, conscious or unconscious, toward the guilt of the accused. This is evident in a number of ways, but can be seen most readily in the violation of the three most important aspects of a forensic interview:

a) The most important evidence in a sex abuse case is contained in a narrative account of the allegations, and all forensic protocols emphasize obtaining narrative accounts of any and all allegations made throughout the interview. The most important changes in recent years to a process that has stayed fairly consistent for some time, is emphasis on obtaining more information through asking for narrative at every phase of the interview, even during the question and clarification phase. Instead of following this procedure, the FIs begin to seek specific incriminating information early and frequently, bypassing the narrative entirely, or building the narrative themselves with long questions requiring short answers, and containing information the child has not yet mentioned. These questions make it sound like the child is telling the story, but the story is actually being built by the FI. Unfortunately, though research and protocols all emphasize the importance of the amount and quality of the narrative, they do not stress that a poor quality narrative equates to a poor quality of evidence, leaving that decision entirely to the prosecutor, who will then do whatever he or she can to keep the jury from seeing the process by which the evidence was disclosed.

b) The child should never be asked leading questions presuming correct answers, or containing information the child has not yet volunteered, but most forensic interviews are replete with such questions. Again, there is no guideline regarding at what point such questions and the disclosures they produce constitute leading and coercive interviewing, which is no longer “child centered ,” but very much controlled by an interviewer who disregards information that does not fit a preconceived notion of events. Again, the prosecution makes the decision about whether the interview was conducted properly, and will try to prevent the jury from seeing and being informed about the interviewing process, and therefore being allowed the opportunity to decide whether they believe the evidence presented at trial is the tainted fruit of a poison tree.

c) The interview, in order to be truly scientific, must consider alternative hypotheses . If only one hypothesis is considered, it will inevitably be confirmed. Often, alternative hypotheses are suggested by the child’s response to questions asked by the FI, but they are rarely followed up on. Answers that demonstrate the child was told what to say by parent or presenting relative, statements that the non-custodial parent treats the other parent badly, demonization of the accused parent by reports of bad acts that unproven or demonstrably not true, repeated accusatory phrases with no connective tissue, reference to the accused parent by first name, or tales that mix fantasy with improbable allegations, all are suspect and should be followed up with open ended questions to investigate other possible explanations for the allegations, but rarely are.

P. 25 of the Michigan Forensic Interviewing Protocol offers the following possible alternative hypotheses to the possibility that the child has been abused by the person on trial:

• Someone misunderstood the child’s statement.

• The child was abused but misidentified the perpetrator.

• An injury was accidental.

• A rash was caused by a medical condition.

• An injury resulted from a medical condition (e.g., falling down from a seizure).

• Touching occurred during routine caregiving.

• The child witnessed, but did not experience, the alleged abuse.

• Repeated questioning made the child believe abuse occurred.

• Someone coached the child to report abuse.

• The child wanted to retaliate against the accused.

• The child made up a story to get out of trouble.

• The child reported sexual abuse to cover for evidence of sexual activity.

• The child lied about abuse or neglect to attempt to change a living or visitation arrangement.

• The child exaggerated about an event to show off to friends.

• The child lied about who the perpetrator was to protect the actual perpetrator.

People I believe to be innocent are serving long sentences on the unsupported word of a child in which these alternative hypotheses should have been, but were not adequately explored. In one of these cases the child had made a previous unfounded allegation of abuse against a teacher, but her lack of credibility did not stop the innocent defendant from being convicted.

However, errors in the forensic interview are not the only concern about distorted evidence making its way as fact to the jury. The person to whom the initial disclosure is made (sometimes referred to as the outcry witness) is typically not an objective professional who will be trying to follow a proper protocol to assess exactly what has happened to the child. More often, it is a family member who, with or without any motivation to implant ideas of abuse in the mind of the child, has typically questioned the child in a very leading and aggressive manner.

The parent or grandparent who is questioning the child in this situation is concerned/upset, and is asking very specific and even demanding questions, “Did daddy touch your peepee?” “Did he make you touch his peepee?” “Did you feel any wet stuff?” etc. This initial interviewer will also frequently divulge a history of abuse, if they have one, sending a clear message to the child that they expect her to divulge a similar experience. This is a great deal of pressure for a child, and they are reluctant to let mom or auntie down.

It is also very likely that the child will also be interviewed by a therapist, police officer, school social worker, or child protective services worker, and the records of these interviews are sketchy at best. Each interview provides opportunity for taint. Moreover, after the disclosure, the child is often praised for their courage and honesty in divulging what the interviewer has already decided is a factual account of abuse. To take back the allegation at any point after that would be to let down a trusted loved one, to disappoint mom or grandma, or another approving authority figure. Moreover, even if the disclosure is not true, they may quickly come to view it as such. By the time this child gets to the FI with their confirmatory bias, they will already have a great deal of motivation to stick with the story, regardless of veracity.

Prosecutors, like defense attorneys, typically don’t know much about the science behind forensic interviewing, but they will present the forensic results as facts and juries will not question them. If defense counsel knows what the science actually says, he can effectively contest the jury’s predisposition to accept the prosecutor’s word as gospel. Remember that the forensic interview in these cases is effectively the grand jury. The decision to prosecute a criminal sexual conduct (CSC) case without physical evidence is based on the forensic interview. These interviews are rarely conducted according to the science, and the child’s testimony in a false allegations case will morph over time and retelling.

Defense counsel does not have to attack the child to win acquittal, but he will have to attack the child’s story and show the obvious inconsistencies. Sometimes this can be done by conducting a ”virtual” forensic interview on the stand, showing that the child can repeat key phrases, but cannot relate a narrative of event(s) connected with the allegations, or getting the child to relate a narrative which is full of contradictions and obvious fabrications and makes no sense, and sometimes revealing the real motive for the allegations. But to do this, defense counsel has to know the science—what a proper forensic interview should be.

Doctor’s will testify that “There is no physical evidence of abuse, but that doesn’t mean there hasn’t been any abuse.” It also doesn’t mean the child has not been molested by the judge, the prosecutor, and all the members of the jury, but they will still offer an opinion — based on nothing scientific — that the abuse happened. Their opinion regarding whether abuse occurred is irrelevant, but given the doctors’ status, will still have an impact on the jury. Attorney Lougee’s opinion (stated above) is that such testimony should be precluded on the basis of relevance. A basic principle of law is that it is impossible to prove the negative, and the doctor is not telling anyone anything they don’t already know.

That said, there is dispute among medical researchers whether or not penetration of a child will leave any physical signs of abuse. Pediatrician Steven Guertin compiled and provided to me an unpublished paper citing several studies that support the intuitive sense that a child’s hymen would show signs of trauma long after the fact, and citing sources. Whether or not it is wise to bring a medical expert to the case is the attorney’s call, but if they have one on the stand, you might want to be prepared with a rebuttal witness.

Dr. Guertin’s paper states in part: “…However, the issue is: since a transection is what almost certainly would have occurred after penile vaginal intercourse (which is the degree of “penetration” you have asked me about) in a prepubertal child, would you expect to see evidence of that injury within days (or even years) later? Absolutely.

1) Finkel in 1989 followed a prepubertal girl with transection. It was persistent.

2) McCann and Voris (1992) followed three prepubertal girls with transections. They persisted even into adolescence.

3) Pokorny (1992) followed 6 transections. All persisted.

4) Hostetler and Muram (1994) followed four prepubertal girls with traumatic fenestrations of their hymens. Unless surgically repaired, the injuries persisted.

5) Slaughter in 1997 followed 18 adolescents and 4 adults with transections; none had reunited at follow-up.

6) Boos followed one case (1999). The transection persisted.

7) Heger (2003) followed 17 transections. In 6 they tried surgical repair and even then, 4 of the transections persisted. In every non-surgical case the transection persisted.

8) These studies led Pillai in 2008 to conclude, “A full thickness transection through the posterior hymen is reliable evidence of trauma and does not heal without surgical repair.”

9) Pillai likely was not aware of the study by McCann published in 2007 which showed that there is the possibility of healing to the point of appearing normal. In this study 4-8 percent of the follow-up examinations done of transections which occurred during the pre-pubertal period could subsequently have been interpreted as normal or possibly normal. On the other hand, more than 90 percent of the follow-up exams did show residual abnormality.
Again, although < 10 percent of the total, some of the follow-up exams after prepubertal transections would have, or possibly could have, been interpreted as being normal. As the transections healed only 25-30 percent remained as complete transections. However, only 3 (1 normal and 2 “unable to be determined”) of the 38 follow-up exams (8 percent) could have been interpreted as being normal. If those 3 exams were all final exams, then 3 of 21 patients (14.3 percent) could have been interpreted to have had normal exams when seen beyond one month of injury. However >85 percent of them would have continued to be abnormal. Even if healing to this degree was to occur, it would not do so in 1-5 days. There were no changes after one month (no further healing).

In other words, in the only study (McCann, 2007) that has ever shown that prepubertal transections can heal to the point where the exam, done later, could be interpreted as normal, >85 percent of the exams (at least) remained ABNORMAL. Certainly within a few days such an injury would still be raw and obvious.”

So much for medical evidence. This is not my area of expertise and I am including Dr. Guertin’s research here simply to show that there is no hard and fast evidence to support the idea that extensive trauma with no physical evidence is unlikely, and that there is medical research that shows it is probable, contrary to some popularly held beliefs. Most importantly, the studies that Dr. Guertin cites in his paper making the claim that such healing is possible, and even frequent, are bases primarily on children’s claims of abuse rather than children who have been followed by someone who has observed the trauma and subsequently healing process. The fact that we have reached a point where the unlikely is believable if it supports a preconception of abuse, is a testimony to the political climate, not the science.

Likewise, forensic interviewers are products of the political climate. The fact that the underlying presumption of this climate is that men are inherently predators and not to be trusted, is something about which there is apparently no longer serious debate. But thorough examination of the forensic interview will often reveal this bias and defense attorneys have to know what they are looking for. If you can show that the interview was flawed, you can undermine the prosecution’s case. However, you should not rely solely on your expert to do this for several reasons:

• The judge may not let your expert testify.

• The jury may find the prosecution witness more credible.

• The jury has watched Law and Order SVU and consumed the frequent media stories about horrific cases of multiple victim abuse, and will in all likelihood be biased in favor of the prosecution.

• The jury will probably hear more people say it happened than that it didn’t happen.

• The jury needs to hear it from defense counsel to know that you believe your expert, and, more importantly, believe in your client.

• The forensic interview is the basis for the case being before the jury; you need to be sure the jury understands this—if the interview is poorly done, the entire case is built on sand.

• In a false allegation case, what the child says at the forensic interview and the preliminary hearing will differ substantially from what the adult who initially questioned the child has said; you need to point out the clear
contradictions.

• In a false allegation case, what the child says at the trial will be different from what she says at the preliminary hearing and in the forensic interview. You need to point out the inconsistencies.

False allegers are either quiet and say only what they are led to say, or are loquacious and will spin long and improbable tales of fantastical abuse and other improbabilities. You need to know which kind of child you’re dealing with to be effective on cross examination without alienating the jury. Like defendants who babble at trial and wind up putting their foot in their mouth, a child telling a tall tale is likely to do the same. The more the child’s story veers from reality and approaches fantasy, the less probable the story becomes.

It may be helpful to provide accounts to the jury from the McMartin case, the Kelly Michaels case, or the Little Rascals day care case, all of which involved convictions overturned on appeal and including fantastical and extremely improbable stories of abuse that were the result of suggestive interviewing. These cases have been widely studied and well documented in “Jeopardy in the Courtroom” (cited above) and “Investigative Interviews of Children,” as well as in the press. The fact that we have to keep reinventing the wheel is a testament to the power of mass hysteria. Juries need to be made aware of this phenomena and the similarities between those cases and that of the innocent defendant you represent.

After having spent a lifetime in mental health, and most of that time serving as an independent evaluator and expert witness in the courts, I have become somewhat disenchanted with the law as a means of seeking the truth. I don’t see that truth seeking is always the goal of legal proceedings. Indeed, it has been said by someone who should know that “The first casualty of a criminal proceeding is the truth.” Many lawyers and judges see the legal process as a sport in which the truth can and should be obfuscated by clever argument in an effort to win at all costs. Though current propaganda suggests that it is defense attorneys who think this way, and that prosecutors—as representatives of the government—seek only justice and fairness, I do not share this view. Increasingly, prejudicial techniques are employed by prosecutors in pursuit of obtaining convictions, the most blatant of which I’ve seen are strategies to prevent the accused from mounting a defense, preventing the jury from seeing all the evidence, or examining the evidence in detail from the defense perspective.

The adoption of these attitudes by the ruling elite in the closely aligned fields of politics and the media means that there is virtually no area of American life where truth carries a great deal of weight. No wonder knowledgeable and sober people are predicting the imminent demise of our society , and evidence of social insanity is everywhere evident. That said, the duty of the three hundred at Thermopylae was to hold the line as long as possible, and so we must. But regardless of which side you blame, the unraveling of American democracy is proceeding at a breathtaking pace. Part of me wishes that I had no offspring to witness what will come.

Given the new American reality that truth is given short shrift in the courts, and that “might ultimately makes right,” prosecutors know that there are frequently holes in the forensic interview, which is why they will try to keep the specifics of the interview out of evidence and do everything they can to keep your witness off the stand. If your witness cannot testify, or is not allowed to testify to what you need him to say, you must be willing and able to present the truth to the jury. That means you have to understand the scientific truth well enough to explain it.

I am baffled that there are defense attorneys who have not read the Michigan (or their own state’s) Forensic Interviewing Protocol. It is not enough to know the law. You are in a field where it does not take any evidence to send your client to prison for life. Those are the rules and that is the reality. Don’t pretend you live in a world where “truth will out. ” This is not a Shakespeare play. The burden of proof is on the defendant; the standard of proof is beyond all doubt, and everyone starts with a presumption of guilt. Radical politics has taken over the justice system, just as most other areas of American life. Don’t expect fairness, rule of law, or any other fiction you may have been taught to believe it. The people I’ve seen who are most realistic about the legal realities are women lawyers who understand how much radical feminists hate men just for having a penis. Learn from them. It is what it is; if you understand that you can win, but not if you underestimate your enemy or your task.

If defense counsel is unable to impeach an abuse allegation by showing that the child is not credible, the versions of the story have morphed considerably over time, or allegers have a clear motive to fabricate, conviction is a slam dunk. If you know the science you are better prepared to impeach the child witness and the FI. If you can get the FI to admit she made major mistakes in the forensic interview, or if she is unable to tell you why there is no alternative hypothesis, why she asked leading questions, or why there is no narrative, you may thereby convince the jury she was biased, and how that bias led the child to make an allegation she otherwise would not have made.
I know that defense lawyers have to defend the guilty. I don’t envy them that task, but I understand that it needs to be done. If the guilty are convicted with bad evidence, the innocent will be too, so holding to evidentiary standards keeps everyone honest. But I don’t have to defend guilty people and I will not testify for someone I believe to be guilty. More importantly, I believe, and have read and heard lawyers say that defense counsel has to believe in their client’s innocence to be effective at trial. If you know the science, you can make a more impassioned plea for someone you believe to be innocent. I sometimes question whether defense attorneys believe that any of their clients are innocent, or whether they too, accept the propaganda that says everyone accused is guilty — especially when it comes to sex crimes.

I believe that many people accused of CSC, where there is no physical evidence, are actually innocent of the acts which they are accused of committing. I hate working for lazy or cynical lawyers who let themselves off the hook by telling themselves, “Well, he probably did it anyway.” I’ve heard it. Your clients deserve better, at least a thorough investigation of the evidence, which means knowing the forensic protocol. And if you know the science, you will have a better handle on whether he is innocent. Everyone else drinks the Kool Aid—ingests the propaganda that says sex crimes are rampant, presumes guilt, and favors the prosecution. If you agree with a guilty verdict prior to investigation, you are in the wrong business; you’re part of the problem, not part of the solution. The more you know about the science, the more control you have over the case. You know whether to plead your case or go to trial, and if you go to trial, you know what the evidence is against your client, so you know how to argue the case. You know how to cross examine witnesses, and what witnesses to put on the stand. It should help you sleep at night, and it should make you a better lawyer.

Mark Twain said that a jury is made of 12 people whose job it is to decide which side has the best lawyer. This is not very fair, but it is true. In the final analysis law may not be the best way to arrive at truth, but it’s what we have. It seems more driven by politics, prejudice, personal ambition, and the press than by a search for truth. One might think a civilization that could put a man on the moon could devise something more accurate, but we haven’t. But then again, any form of truth seeking, scientific, religious, artistic or legal, is only as good as the integrity of people who are doing the seeking, and that varies wildly, and is a product of the times.

People who are drawn to law and politics seek power. Truth seekers may be drawn to science or the arts, though I would argue that political correctness has done as much damage to art and literature (and possibly science) as it has to justice. But juries do care about the truth, and if you can convince them that you have the best handle on it, you can win despite whatever preconceived notions they have about whether your client is a criminal because he happens to be male. You have to know the science to convince the jury you are the best lawyer. Maybe you have to know the science to be the best lawyer.

––––––––––

Michael G. Brock, MA, LLP, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. The majority of his practice in recent years relates to driver license restoration and substance abuse evaluation. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; 313-802-0863, fax/phone 734-692-1082; e-mail, michaelgbrock@ comcast.net; website, michaelgbrock.com.