VIB Law

Strategies for Defending Sex Crimes

VIB Law

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The following article, Strategies for Defending Sex Crimes, was written by VIB Law partner Riccardo Ippolito in 2014. It provides an authoritative perspective on best practices for representing clients accused of sex crimes. Riccardo will guide you through the evolving nature of sex crimes in today’s world, with emphasis on addressing issues that arise in sex crimes cases and exploring how social media have impacted the investigation of sex crimes. He also provides tips on investigating the legal and ethical rules that govern discovery through social media, determining whether the client’s offense will trigger sex offender registration requirements, and understanding the practical aspects of managing a heavy caseload. Finally, he reveals his strategies for planning defensively, keeping abreast of changes, and finding creative solutions in a dynamic area of law.

Challenges and representing people charged with sex crimes

One of the main challenges in sex crime cases is that the consequences for the defendants in these cases are more severe than for those individuals changed with any other type of crime, aside from homicides. For instance, many defendants who are convicted of sex crimes are sentenced to life imprisonment, twenty-five years to life, or fifteen years to life. Years ago, the penalties in this area were not as severe—i.e., a defendant would serve limited mandatory prison time in cases where nobody was killed or had lasting physical injuries.

Another new and challenging aspect of these cases pertains to the fact that a convicted defendant must register as a sex offender. Also, in California, the law is different from the law in other states, in that any conviction for specified sex offenses—whether the charge involved a misdemeanor or a severe felony—imposes lifetime registering requirements. For example, you can be convicted of a misdemeanor sex offense and receive no jail time or any formal probation, and yet you have to register as a sex offender every year for the rest of your life. It should be noted that in some misdemeanor cases, after a period of seven to ten years—depending on the charge itself—you can apply for what is called a certificate of rehabilitation, which, if granted, would relieve you of your duties to register. However, you cannot receive this certificate just by filling out forms; it is an involved process whereby you have to show that you are fully rehabilitated.

What types of offenses are considered sex crimes?

The types of offenses that are considered sex crimes include a misdemeanor such as annoying or molesting a child—and it should be noted that a twenty-five-year-old who asks a seventeen-year-old for a date could be considered to have committed an annoying act, to the extent that, if convicted, they would be required to register as a sex offender for the rest of their life under Section 290 of the California Penal Code. Lascivious conduct with someone under age fourteen is considered a felony, as is rape or forced oral copulation. Literally hundreds of sex crimes are listed in the Penal Code.

The list of sex crimes, and the definition of such crimes, has definitely expanded over time—in some cases because of the development of new technology; i.e., hiding a camera in a bathroom. For example, I had a case where my client, who worked as a janitor, left his bag in the women’s bathroom; it had a hole cut out in the side and contained a camera that faced towards the women’s toilets. Recent changes in the law have made filming in bathrooms, in cases where the subject does not know they are being filmed, a crime. At the same time, the new “Google glasses” allow you to videotape anything you see; and while it has been found that some men are using those glasses to look down girls’ shirts or up their skirts and film what they see, doing so is not yet against the law.

The California legislature recently enhanced the severity of the penalties for possession of child pornography, particularly if the defendant is found with more than 600 images of somebody under the age of twelve. There are also new penalties for so-called “revenge porn;”—i.e., a boyfriend or husband may take nude pictures in the context of a consensual relationship, but after the couple breaks up the pictures show up on Facebook. Such an action is considered a misdemeanor sex crime. The child pornography enhancement for punishment is found in Section 311.11 of the California Penal Code, and revenge porn penalties are found in Section 647 Subdivision J of the Code. Again, as technology evolves—and that includes the increasing use of social media—more types of sex crimes are being prosecuted. Indeed, in some cases officers will arrest someone just because they have done something that looks bad, even if they are not sure that it is technically illegal. This happened about a year ago when an officer arrested the client for videotaping conversations he had with women using the new Google glasses. The officers arrested him because they felt it was creepy and there had to have been some violation. However, the case was never filed upon because, at that time, it was not against the law.

How to deal with the District Attorney

Whether these new charges are leading to more convictions, acquittals, or settlements depends, in large part, on who is the acting supervising District Attorney (DA) who is in charge of filing sex crime cases. Here in Santa Clara County, one district attorney may take a look at a case and say, “The evidence you have shown me is not enough to file charges.” However, I have had two cases where the district attorney originally decided not to file charges, but another district attorney took over and refiled those cases. Fortunately, both of those cases were eventually dismissed on the trial calendar because they should never have been filed in the first place—but again, much depends on the personality of the DA you are dealing with. One of these cases involved a professional who decided he had to go masturbate on his lunch hour. In this case, he parked his vehicle in a secluded area and took every precaution not to be seen. Security happened upon him while he was in the act. He was arrested for indecent exposure. The first district attorney rejected the case. A new Deputy District Attorney took over the unit and filed on the case. After I brought to it their attention that the jury instruction is clear that the intent of the defendant has to be that he wanted to be seen in the public, they dismissed the case. For instance, one of the Santa Clara County DAs is filing virtually every sex crime case that comes in—a situation that does lead to more acquittals, because many of these cases do not have sufficient evidence to carry over through a preliminary examination or a jury trial. Certainly, if a DA has had bad experiences in this area in their own life, they are likely to file more sex crime cases than someone who has not had such experiences.

Understanding the personality of the DA you are dealing with will definitely help you decide how to attack a case. For instance, we know that new DAs on the sex crime unit are not going to have as much leeway to deal with a case because they must report to a supervisor; simply put, they do not have sufficient seniority to do what they think is right. If a supervisor is filing these cases you have to be prepared for a battle; and you are not going to get anything you ask for unless you can show some chinks in the armor of their case. One example of this is a client I had was charged with lewd conduct on his children. After speaking with him, we learned that his ex-wife (who filed the report) was still very angry with him for divorcing her. After pulling up family court records, we learned that she had twice sought to have the court grant her permission to take her children to Mexico to live. This was denied twice. After providing this motivation to the District Attorney, they reevaluated the case and dismissed the case. His job was given back to him with back pay for six months. On the other hand, if the DA has a lot more responsibility and has been around for a while you can often negotiate with that person, and their supervisor will give them a little more leeway. I had a case where my client was charged with lewd lascivious conduct with someone under the age of fourteen. As I was about to set the case for a preliminary examination, the Deputy District Attorney asked if I would settle. I told him I would take a misdemeanor but his supervisor would not agree. He responded that since he had the case right now, he could make that offer. Due to his experience, he realized the case was overcharged and was willing to offer something more appropriate. Needless to say, my client took the offer.

Recent case law rulings related to sex crimes

In a recent civil case in this area, an individual who was a victim of child pornography—i.e., her nude picture was posted online—sought $3.4 million in restitution from one of the individuals who was convicted of child pornography. The first court that heard that case said that she could not sue; however, the second court said she could, but since not just one person was liable she had to seek damages from everybody who viewed that picture. It remains to be seen how this case will impact the ongoing evolution of case law going forward—for instance, in terms of civil plaintiffs bringing post-conviction lawsuits. Also, it remains to be seen how much money people will actually have to pony up—as both poor and rich people have been found to be in possession of child pornography.

Unique characteristics of sex crimes

I have found that it is a lot more difficult for somebody to admit that they are guilty of committing a sex crime, as opposed to some other criminal offense. For instance, someone may more readily admit, “I stabbed that person” than they are willing to say, “I inappropriately touched my niece.” In fact, many of these cases are extremely difficult to settle simply because nobody wants to admit what really happened.

I have always had an issue with the way the law is structured in this area. Many individuals have told me, “Yes, I have been having these thoughts and feelings but there is nowhere for me to go. If I go to a therapist they are going to have to report me under the Mandatory Reporting Act.” This act is codified in California Penal Code Section 11164.4 In that section, the code lays out who is a mandatory reporter. Under this Act, anyone who is listed as a mandatory reporter must report any suspected child abuse or neglect. This report must be made to any sheriff department or police department. So clients ask themselves, “How can I get help for my situation? I cannot get help until I get convicted; then they will order me into therapy.” Basically, there is no safe haven for people who recognize that they have an issue and that they need help.

I believe that there should be an exception to the Mandatory Reporting Act that would provide some leeway for therapists to make a decision when it comes to helping a person or reporting them. In many cases, a therapist will err on the side of caution; they do not want to lose their license for life, and therefore, they will report any potential sex crime offender. However, I feel there must be some safe haven for people to get help with their issues in this area. If, as a society we are trying to prevent sex crimes, then we have to work together to get people help who are asking for it. It does not help the victim that the defendant gets therapy after the incident. We need to prevent the incident from happening at all. The only way to try to curtail sex crimes in the future is to let therapists assist people who are seeking help for their abnormal thoughts and behaviors, instead of reporting them.

How are sex crimes enforced and investigated?

Many police departments have child porn units and officers who comb the Internet and look for IP addresses that red flag certain search terms. There are certain software programs that help officers locate Internet Protocol or IP addresses for computers that are downloading child pornography or suspected child pornography. They also have specialized units that go after people who are in possession of child porn, or who are accused of annoying or molesting a child—i.e., an officer who is driving down the street may get flagged down by the mother of a fourteen-year-old who was just stared at by someone who was driving by on a bike.

In Santa Clara County, the police will typically go after many types of cases in this area. For instance, Section 290 of the Code provides a grant from the State of California to prosecute those who do not register as sex offenders. There is also a grant for prosecuting statutory rape cases—cases involving consensual intercourse with someone under age eighteen, even if the couple is a twenty-two-year-old and a seventeen-year-old, although the punishment may be more severe if the parties are farther apart in age. One reason why there is a grant for such prosecutions is because if the female partner is pregnant or gets pregnant the state wants to ensure that someone is liable for financial reasons—i.e., it does not fall on the state to raise the child.

Apprehending perpetrators

There are many different scenarios that lead to the apprehension of a perpetrator of a sex crime. For instance, as previously noted, a twenty-two year-old could be arrested for having unlawful sex with a minor, even if it was a consensual encounter. The mother of a sixteen-year-old girl may look at her daughter’s telephone and finds sexually explicit text messages and pictures from a twenty-two-year-old man. The mother confronts the daughter, the daughter admits what is happening, the mother calls the police, the police talk to the daughter, and even if the daughter says that the relationship was consensual, the police will consider her to be a victim because she is under eighteen years old.

If the victim is agreeable the police will then ask her to make what is called a pretext phone call or send text messages to her older boyfriend with the officer present to get the boyfriend to admit what is going on. For example, the officer will have her send a text saying, “That was great when we had sex last Saturday night;” and the boyfriend responds, “Yeah, I had a good time; I cannot wait to do it again—but next time we should try something different.” Soon after, he gets a knock on the door.

These “pretext” calls are hugely important in sex crime cases. In many instances, a client will consult me after an officer has contacted them and requested an interview. First, we will tell the client that they should not participate in any interview with an officer; and then we will ask them if they have recently received any phone calls from their girlfriend that seemed abnormal—i.e., she started asking questions about their sex life. If so, I will tell the client that their conversation was recorded for use as a pretext phone call, and it will be used to try to convict the client. Also, if they have not yet received such a phone call, I tell them that they will—and they should not answer it or make any statements because it is going to be recorded and used against them.

Mistakes made by law enforcement during sex crimes investigations

One of the biggest mistakes that law enforcement makes in these cases is failure to investigate before recommending that a sex crime case should go to the DA’s office. I have had several cases where it turned out that the prosecution did not investigate the whole story—which does not come to light until after my client has been in custody for a while. For example, I had a case where my client was charged with taking a woman to the park, raping her in the back of his car, and then dropping her off and going home. The officer immediately arrested my client and put an immigration hold on him because he was not a citizen. After talking to the client for thirty to sixty minutes in jail it turned out that he had been having an affair with his accuser, who was married and had gotten pregnant by him, and she did not want to tell her husband. Fortunately, he had videotaped the encounter on his cell phone; and he also had a pair of her panties and love letters. When we had a hearing I spread out all of the evidence on my desk so that my client’s lover would see it when she walked in. Ultimately, she broke down crying and the prosecution dismissed the case, but my client was deported. Consequently, he suffered a lot of damage—and had the officers investigated the case a bit more thoroughly it would never have been filed.

In another case in Santa Clara County the officer used a falsified DNA report to get my client to make a confession. At the jury trial, the prosecution introduced that false DNA evidence report to the jury and got a conviction. Fortunately, we discovered that there was no DNA evidence or reports; and as a result, the conviction was overturned. All too often, however, the prosecution is allowed to use falsified DNA evidence as a ruse to get a confession, even though they cannot introduce that confession at a jury trial.

Working effectively with law enforcement/prosecuting attorneys

Obviously, it always pays to be cordial with the officers who you are dealing with in a sex crime case. When you call up an officer and say, “My client is not going to come in and talk to you,” you know that the officer will be angry because you are stopping their investigation in its tracks. Normally, the only time they really want to talk to your client is when they do not have a great case; if they have a great case they are just going to arrest your client.

In any case, it pays to be friendly. For instance, if my client receives a warrant we will tell the officer to let us know when the warrant becomes active. We tell them we can do a self-surrender by agreeing to a location that is acceptable to everyone. We have actually done these at our office. Our pitch to the officer is that it is safer for everyone involved to do this. Otherwise, if they surprise the defendant, he might be armed, scared, or be with his children. There are a lot of variables when you execute an arrest warrant so we believe it is safer to agree to a controlled self-surrender. Also, if you are friendly the officers may give you more information than you had before. Our firm has always been on friendly terms with the prosecuting attorneys in these cases.

To obtain discovery information in a sex crime case we have to send out an informal discovery letter before we file a formal motion. Unfortunately, our local DA’s office here in San Jose, CA has been understaffed, and the people who do work there have not always been doing their job. That being said, the DA will typically respond to our request by saying, “As we get this information we will be redacting everything, and we will get it to you as soon as we can.” By law, the District Attorney cannot release personal information that would compromise the safety of the complaining witnesses. In fact, our firm has not experienced too many issues involving intentional violations of not turning over discovery that is requested. If we have received a preliminary set and we do not have what we have asked for, the DA’s office will continue with the case until we get everything that we need. I currently have a high profile case in which a preliminary hearing was set two months out. As the date approached, I realized I still did not have all of the reports. I informed the District Attorney about this and he indicated that we can continue this preliminary examination farther out to make sure we had everything.

How to put together an effective strategy in a sex crimes case

After we discuss their case with the client we set up a meeting with the client and our investigator. That meeting lasts for about an hour or longer so that our investigator can find out as much information as they can, start investigating potential witnesses, and determine whether we need to obtain camera, tape, or cell phone records. Basically, we are starting an investigation process that the DA is not a part of, and that gives us a big advantage, because the DA has only half of the story.

Investigation is key in these cases, as it can make a mediocre attorney into a great attorney—and not doing enough investigation can hamper your case. Therefore, your main goal should be to talk to your client as much as possible to learn anything that might be helpful to their case. For example, you need to know whether other people live in the house where the sex crime allegedly took place, whether they know the victim, whether they are aware of the history of the victim, the layout of the house—in other words, information that could shed light on the credibility of the victim. Again, after we start the process by talking with the client, our investigator will interview witnesses and obtain whatever cell phone records and text messages we need to build our case. Ultimately, we will use the information we have obtained to enter into negotiations, plea bargain, or prepare for a jury trial, depending on the facts of the case.

In some cases, you cannot interview a child victim; therefore, we have to utilize different strategies to obtain the information we are seeking. One strategy is to interview the victim’s friend or relative. The hope is that the victim told them something different than what they told the police. Or maybe they would let us know of some possible motivation for the victim that was told to them. In some cases, DNA evidence is important. For example, I once defended a client in a gang rape case; he was charged with raping a woman who drank too much, along with two other men; and after we requested the DNA evidence it exonerated my client and the case was dismissed.

What is the client’s role in forming a defense strategy?

The client plays an important role in these cases in terms of providing information, as noted. We need them to help us tailor how our investigators are going to proceed with the case and who they are going to interview. For example, we might have a list of potential interview subjects, and the client will say, “Do not interview that person—he hates me and he will help to convict me.” We will also ask the client whether we should ask a particular witness a certain question, because we will have to turn over our interview to the DA’s office if we are going to call that individual as a witness—and we do not want to turn over something that is going to hurt our case.

In interviewing the client, we use a standard intake form that covers their basic personal information, addresses, and prior criminal history. If they are reluctant to give information over the phone we set up a meeting where we write everything down. After we are retained we conduct a case review meeting where we give the client the redacted copies of our reports and ask them what they have to say about our findings. We may ask them if they have any ideas regarding how to refute the accusations they are facing, and if they have any witnesses who may help their case.

Educating our clients

Many of our clients are afraid to talk to the officers who are handling their case—even if they are completely innocent and they feel they could exonerate themselves, they do not want to go through that process—and rightfully so. To help educate the client in this area, we tell them that these officers are highly trained in the interview process. For instance, they will often utilize the “good cop/bad cop” approach—i.e., an officer will yell at the client and leave the room, and then the other officer will say, “I can make this all go away—do not worry about him. I am just interested in learning more about this aspect of the case.” In many instances, the officer will try to trip you up; they will tell you something false and hope that you correct it—i.e., “We know that you only had sex with her seventeen times—oh, it was only three times? Write that down.” Essentially, the client may think that if they meet with the officer they can talk their way out of the case, when they are really talking their way into it. A statement that they may have thought was benign often takes on a whole different context when it is written down. Therefore, we tell our clients that they are not going to gain anything by talking to the officers, as they may not really listen to the client.

On the other hand, there are some cases where an interview with the officer results in a situation where the officer decides not to file the case at all. There was a football player from the San Francisco Giants, for instance, who was accused of committing a sex crime in Santa Cruz. His attorney decided to go with him and talk to the officers—and ultimately, the officers decided not to file the case. In most situations, however, there is no reason to take that risk; there is simply too much at stake. Again, the officers could use what your client says against him; and he could spend the rest of his life in prison.

Challenging elements of assembling an effective defense strategy

It is always important to research the law in the case to make sure what the client did was actually illegal. For example, I once had a case in which my client was living in an apartment building and took pictures of the girl across the courtyard when her blinds were drawn; all you could see was a silhouette. After researching the situation I determined that what my client did was not illegal; the courtyard was a public place and the photography was not an invasion of privacy since the photo was taken from his apartment and he did not use any device (like zoom lenses to enhance what was noticeable to the naked eye). My client had also sent a letter to the tenant (victim) asking for a time where she could be his dominatrix. With this letter, he enclosed a copy of the photograph he had taken of her. This consisted of a silhouette of her since she was behind the blinds of her room. We ultimately settled on a charge of disturbing the peace. This was a tough case because the facts showed the odd behavior of my client but the law did not support the conviction, no matter how hard the DA tried. However, unless you know the law and whether an act is legal or illegal you do not have any leverage to try to settle a case. Therefore, you need to educate yourself on the law in your client’s case, what the charge is, and if it really applies to the facts.

It is also important to keep in mind that sex crime cases involve a statute of limitations. For example, I have a case where I am defending a client who is eighty-two years old, and the allegations involve something that happened twenty years ago. The plaintiff was twenty-seven when she went to the officers, which was appropriate under the statute of limitations—she had to be under twenty-eight; if she was twenty-nine the case would be dismissed.

Some sex crime cases have a ten-year statute of limitations, while a misdemeanor sex crime has a three-year statute of limitations. In a case that would carry a lifetime sentence there is no statute of limitations; such a case can be brought at any time—i.e., a case involving oral copulation with a minor under ten years old would carry a sentence of fifteen years to life; intercourse with someone under ten years old carries a sentence of twenty five years to life. Continued sexual/lascivious conduct with someone under age fourteen is a crime under Penal Code Section 288.6 and such a case must be filed before the plaintiff turns twenty-eight.

Plea bargain issues with sex crimes

I am currently representing a client who is charged with lewd and lascivious conduct with someone under fourteen years old. This Felony 288 charge in California carries a maximum of eight years in prison, and you have to register as a sex offender for the rest of your life—you cannot get a certificate of rehabilitation. The only way to avoid prison is to obtain a favorable 288.1 report or a psych report that determines whether the client is amenable to rehabilitation. In this particular case we are trying to set up a preliminary examination hearing, because my client is adamant that he is innocent—i.e., he did not touch the girl’s breast. The DA has made an offer that would result in a misdemeanor conviction in which the sentence is six months in the county jail. This is a tough case, because my client could be convicted based on the facts presented to me in the reports. Or, the jury could acquit him after a jury trial. I have explained to the client that if he is only convicted of a misdemeanor he would have to register as a sex offender but he could obtain a certificate of rehabilitation; and as a result, he would no longer have to register as an offender after ten years. Also, he would end up doing three months in jail on a six-month sentence. If he were to be convicted of the Felony 288 charge, he would be facing a maximum of eight years in prison, felony probation, and have to register as a sex offender for the rest of his life, with no relief. Therefore, I would advise accepting the misdemeanor plea, which would represent a huge difference from receiving a felony sentence and probation. Essentially, I tell my clients that they are not necessarily accepting a plea because they are, in fact, guilty—they are pleading because the consequence of being found guilty outweighs the risk of losing at a trial.

Similarly, I had a case in which my client was arrested on a Felony 288 charge involving a niece; and during the interview with the officers he mentioned that twenty years ago he did the same thing with a different niece. Because of my client’s statement we were suddenly dealing with a case involving two victims who were under fourteen years old—a case with a potential lifetime sentence. However, after six months of battling in court and a full confession the DA agreed to a plea bargain deal involving an eight-year prison term. Certainly, an eight-year sentence is severe, but if the client had been convicted he would have spent the rest of his life in prison.

It should be noted that the DA’s office does not normally extend offers; you have to make an offer. Also, when dealing with some lower level DAs you can make an offer and they will decide what to do. Certainly, in cases that involve life in prison we have to make an offer—i.e., I might ask for a thirty-year sentence as opposed to a life sentence, and the DA will review the facts and decide whether they will accept our offer.

Plea practices typically differ by jurisdiction; the law in every county is different. Alameda County, for instance, is a lot more lenient than Santa Clara County, and it has a very different jury pool that includes more poor and out of work people, as does Oakland County. Santa Clara County jury pools tend to include Silicon Valley engineers; and the juries are typically extremely conservative, which results in a lot of convictions. On the other hand, Oakland and Alameda Counties are a lot more liberal and jurors tend to hand out fewer convictions. Such considerations must also play a part in plea bargaining, because the DA will take into consideration whether he can obtain a conviction. If I think that my client is going to be convicted at a jury trial the best thing to do is to try to plea bargain prior to a preliminary hearing. We can also make the point that we will not make a thirteen or eight-year-old get up on the stand and go through the grueling and traumatic cross-examination experience; instead, we are seeking a reasonable settlement.

Probably the most effective way to get a good plea bargain in a sex crime case is to prove the victim’s lack of credibility, and point out that the DA is not going to easily win their case. Simply put, there are some major issues in the DA’s case, and even if they put their victim on the stand at the preliminary hearing and at trial and make them go through that traumatic experience they will end up with a not guilty verdict. If the DA accepts that reality it will weigh heavily on how they decide to deal with the case. Essentially, you need to show that you have a strong case and the DA has a weaker case than they thought. The case I have currently is an example of this. The victim seemed very credible and testified well at the preliminary examination. However, it turned out after we had our investigator talk to family members, we learned that the victim had undergone hypnosis through her therapist. This is when she had learned of these memories. Evidence Code 7958 lays out strict guidelines for the admissibility of testimony obtained after hypnosis. Now because of this information, we have a little more leverage to negotiate since the victim never mentioned hypnosis during the preliminary examination or to the District Attorney. The victim’s credibility has now been compromised.

When to Go to Trial: Preparing the Client for Court

There are two factors that you have to evaluate when deciding to take a sex crime case to trial: the consequences of losing at a jury trial and how strong a case you have. For instance, if you feel that you have a strong case and the consequence of losing at a jury trial is not that severe—i.e., the client may spend a year in the county jail or three years in prison—you are going to be more apt to go to trial. On the other hand, even if you feel that you have a strong case, if you know that if you lose your client could spent fifty years to life in prison you may decide not to go to trial because you never know what a jury is going to do and you want to try to minimize the risks for your client.

The process of preparing a client for court in these cases is based on common sense. For instance, you should explain that you do not want them to wear a tank top and shorts; they should be clean-shaven, dressed nicely, and act respectful. You should also explain that, depending on the case, the trial process may take one to two weeks, and it is going to be grueling. The client is going to hear things that are going to make them upset, but they cannot show any reaction. You should also let the client know that there is a chance that you might call them to the stand; and if so, the DA is going to ask them certain questions. In such cases, I will ask one of my partners to cross-examine the client and prepare them for that process. One of our partners will role play the District Attorney and will cross-examine our client. This way we can help prepare our client for the types of questions they may be asked at a trial. This also helps us evaluate whether our client would be able to testify confidently on the stand. This helps us to determine whether to let them testify.

Opening and closing statements

Ultimately, I rarely allow my clients to testify on their own behalf in a sex crime case, and I rarely give opening statements. In most cases, we do not have a lot of witnesses that are going to testify at trial; and secondly, if I do not present an opening statement it throws the DA off a little bit—they are relaxed and expecting you to speak for twenty minutes, and instead, the judge will be asking them to call their first witnesses. Personally, I have never heard a juror say, “That was the best opening statement I ever heard and it focused me on the issues at hand.” Also, if you say in your opening statement that Witness A is going to testify that a certain event happened and they do not do so then the DA will use that against you in their closing statement.

On the other hand, presenting a good closing statement is very important—even though some jurors will focus on something that you did not even mention in your closing argument. One case I had I focused on the fact that the victims could not have been molested since the alleged act happened in the same room and one of them would have noticed the other one being molested. Instead, the jury focused on a neighbor who said my client drank a lot. That case hung in favor of acquittal the first time and hung in favor of guilt the second trial. We ended up settling for a misdemeanor. Basically, you want to point out that the jurors have already heard all of the evidence and then make your best arguments. If you have favorable witness statements, you want to make sure to highlight those. Every case is going to have its own set of unique facts so you just need to make sure you tailor your argument to fit those facts most important to you. You may ask the jury to review their initial reaction when they heard the charge and saw your client. You may then point out that the charges are wrong and misleading, and your client could not have possibly done whatever the other party said happened.

Much also depends on how the trial unfolds. During voir dire I always make it a point to ask the jury to be honest when I ask them about their initial reaction to the charges—they cannot assume my client is guilty because he has not been proven guilty; and they have to keep that in mind throughout the entire case until they hear otherwise. Unfortunately, that is often a tough sell, because juries are inclined to think that someone who is charged with a sex crime is guilty right off the bat.

How to overcome defense challenges during trial

In fact, one of the biggest challenges for the defense in these cases is overcoming the jury’s initial reactions to the charges and picking the right jury. In every single sex crime trial I have participated in, there have been instances where a juror raises their hand and asks to talk to the judge in private; and it turns out that the juror had been molested twenty years ago. Consequently, picking a jury is extremely difficult in these cases, because we are dealing with a very polarizing charge. Some jurors do not care if a gang member stabbed another gang member, or if someone committed insurance fraud, but if you mention that your client is accused of fondling their niece at a birthday party that will raise some hairs on the back of their neck.

Fortunately, investigation witnesses can help to counteract some challenges in this area. For example, I once tried a case in which my client was accused of grabbing a baby from a swing in a public park and masturbating.However, we were able to prove that the mother was unstable, and her friend also testified that the event did not happen. At that point, the jury overcame their initial reactions to the charges and realized they could be totally wrong; in fact, they turned in a not guilty verdict.

Upcoming changes in the defense of sex crimes cases

Looking ahead, I think that technology will continue to be a huge factor in the defense of sex crime cases. Just as the prosecution can use text messages and photos to help their case, we can also use such evidence to help our case. The victim may say, “This guy has been harassing me; I had no interest in him, and he has been stalking me;” but we find that her text messages say, “I miss you, I cannot wait to be with you. When are you going to see me again? You need to break up with your wife.” In upcoming years, there may be other technology that will put us on an equal footing with the prosecution.

In the meantime, we have to fight the good fight in terms of making sure that our clients’ rights are protected and not trampled on, and that the DA’s biases are not allowed to interfere with the checks and balances of the legal system. Ultimately, we are not only advocates but mediators for the client. If our client is accused of touching a twelve-year-old girl’s breast and the DA wants to sentence him to life in prison, that is not fair. We need to insist that the court consider all other factors—i.e., the client has three kids, a great job, and a wife, and he can be rehabilitated; it is not a life in prison case. Again, we need to keep the DA’s biases in check and obtain a neutral, fair result based on what actually happened.

My advice for defense attorneys

To succeed as a defense attorney in this practice area you have to know the law, and research the statutes, including all statute of limitation issues. Secondly, you need to talk to and really get to know the client. After one or two meetings, the client may come up with information that you did not know before—something that they did not remember to tell you, which could be important. That is an asset that the prosecution does not have. Thirdly, you need to work with a good investigator.

Ultimately, your goal is to make your case as strong as possible so that you will have all of the information that you can use as leverage for a plea bargain or to obtain a not guilty verdict at a jury trial. Otherwise, you cannot effectively represent your client.

Key Takeaways