INVESTIGATION AND VOIR DIRE IN CHILD SEXUAL ASSAULT CASES

1. INVESTIGATION AND VOIR DIRE IN CHILD SEXUAL ASSAULT CASES Ann-Marie McKittrick Deputy County Attorney Yellowstone County

2. Sound Familiar? • Sexual assault cases are loser cases. • There is never any evidence. • You can’t get a conviction on a so-called he said/she said case. • Victims always recant or refuse to cooperate. • The conviction rate on sexual assault cases at trial is only 50%. • Only an idealist or “true believer” would take on these cases.

3. We are going to learn how to make these cases stronger.

4. INVESTIGATION • Gather every piece of relevant information. • Think creatively.

5. Need to Establish Each Element • Identification • Act • Mental state • Date of offense • Venue

6. Forensic Interview for Child • Proper interview protocols must be followed. Get commitment from law enforcement.

7. Get the Details • The truth is in the details. Walk the child step-by-step through every detail. Details will help you establish time, location, victim’s credibility, and give you areas for further investigation. • Details will also help establish the suspect’s intent. • State v. Skinner, 2007 MT 175 (incest case; jury may infer the defendant’s intent of causing sexual arousal from the defendant’s actions and circumstantial evidence.)

8. Details • Sensory details • Surrounding details

9. Sensory Details • Sights, sounds, smells, touch, taste • Real-life examples: • Choking on hair on banana • Whisker burns on inner leg • Smell of beer • “Spit” from privates tasted salty • Suspect made face before spit came out • Groaning noise from suspect • Sweaty stomach

10. Sensory Details (continued) • Internal pain near belly button • Suspect thrusting hips • Suspect moved hand up and down on privates (contrasted with: suspect just barely touched penis with tip of finger very quickly)

11. Surrounding Details • Real life examples: • T.V. show that was playing in background • Suspect closed all shades prior to assault • Locked door • Isolation from parents • Description of room (color of walls, bedspread, couch, items on wall) • Example: green couch, mother worked nights • Example: posters of “My Little Pony” on wall help show that suspect’s belief that child was 16 was unreasonable • Example: scrapbook of dad to show no motive to lie

12. Surrounding Details (continued) • Lubricants • Towel suspect used to wipe himself • Evidence of grooming • Be creative. Any detail you can think of. Cases can rise and fall one little fact.

13. Seek Evidence to Corroborate the Victim • There is no such thing as a he said/she said case. • Do not let the child stand alone!!

14. Preserve Evidence. Time is of the Essence. • 911 tape • Search warrants or by consent • Photograph entire crime scene (even if crime occurred awhile ago) • Also photograph crime scene under conditions crime occurred (i.e. at night, showing isolation)

15. Preserve Evidence • Search Warrants/Photographs (continued) • Seize or photograph all relevant evidence. Details from interviews will lead you. • Examples: • Locks on doors • Shades • Lubricants • Bedding, mattresses, cushions • Case with bloody mattress and dishwater in sink

16. Preserve Evidence • Search Warrants/Photographs (continued) • Photograph (or videotape) victim and suspect if possible. • Shows demeanor and injuries

17. Skinner w/ braids

18. Gunderson’s claw marks

19. Gunderson’s shoes

20. Preserve Evidence (continued) • Send victim to hospital for sexual assault nurse examination if appropriate. (DNA collection, hairs, fibers, clothing, documentation of injuries, toxicology screens.) Don’t forget to order all photographs later. • Videotapes from businesses (many are taped over very quickly) • Send Preservation Letter to social networking services (Myspace, Facebook)

21. Witness Statements • Look for the following evidence • Set a time line through 3rd parties if necessary (child memory problems; alcohol and drug issues) • Corroboration • Information as to whether suspect had access to child • Family dynamics • Change in behavior of child (sleep patterns, signs of distress, slipping grades; avoiding suspect) • Grooming evidence

22. Witness Statements (continued) • Examples of potential witnesses: • First outcry witness • Family members • Teachers • Beware of “party” cases. Interview as many as possible, because many of them could be the suspect’s friends. If you don’t interview them, the defense will. • Example: KOA campground clerk • Again, be creative.

23. Suspect Interview • Lock the suspect into statement • Follow up on investigating the suspect’s version/alibi • Details important so that law enforcement can corroborate or rebut (i.e. admission vs. confession; statement that they had sex too vague)

24. Motion for Discovery from the Defendant • Section 46-15-323, MCA: lineup; speak for identification by witnesses; palm print, photographs not involving reenactment; try on clothing; sample of blood, urine, saliva; handwriting sample; physical or medical inspection, witness statements.

25. Dan Lacey photo

26. Motion for Discovery from the Defendant • Section 46-15-323, MCA: lineup; speak for identification by witnesses; palm print, photographs not involving reenactment; try on clothing; sample of blood, urine, saliva; handwriting sample; physical or medical inspection, witness statements. • Move for photographs if victim has identified unique moles, rashes, injuries, etc.

27. Personally View Crime Scene and All Evidence • Take investigators, witnesses, camera, measuring tape. • Will help you find overlooked evidence and understand evidence. • Not everything contained in written reports. • Example: bloody “Tweety-bird” underwear • Example: cut jeans

28. Ambulance and Fire Department Reports • Facts, additional witnesses • Excited Utterances

29. Crime Lab Reports • Read everything and speak to analysts. • Pay attention if analysts request additional evidence and/or tests.

30. Hospital and Medical Records • This is in addition to SANE reports. Get a release from victim or obtain through investigative subpoena • In some cases, you may want to get previous medical records.

31. Other Records • Telephone and cell phone records • Burglar alarms • Business records • Employment records • Birth certificate of victim • Credit records • Debit records • Myspace and Facebook communications • Example: to show “fear”: records from hotel and veterinarian

32. Jail Phone Calls • Statements of suspect • May give you hint of defense • May provide you with areas of cross-examination of witnesses.

33. Media/TV reports

34. Know the Defendant • Criminal record • Pull all investigative files (see if using the same alibi witness, for example) • Obtain certified copies of Information, Affidavit, and Judgment • Rule 404(b)

35. Photo of Dunning

36. Maps and Aerial Photographs

37. Know Your Victim • If victim is older, obtain “dirt” that the defense may try to use. • Secure cooperation from victim (if old enough)

38. Experts • Crime lab analysts • Treating physicians • Expert to explain nature and cause of injuries • Expert to explain why no injuries • Forensic interview expert • Expert to explain behavior in child following crime (such as sexually acting out)

39. VOIR DIRE

40. Purposes of Voir Dire • Select a favorable jury by removing unfavorable jurors. Each side is trying to stack the deck. • Educate the jury. Disclose issues in the State’s case to minimize impact; begin educating jurors as to why those issues do not mean the defendant is not guilty. (Examples: delayed reporting, lack of physical injuries)

41. Purposes of Voir Dire (continued) • Minimize impact of the defense attorney’s voir dire by covering issues he will raise, but framing them in a manner that is favorable to the State’s case. This leaves him little to say, and it builds your credibility. (Example: burden of proof) • Build your credibility and trustworthiness with the jury.

42. THEORY • A tree always falls in the direction it is leaning, and you cannot change that direction or the juror during trial. So during voir dire you want to identify those persons who are already leaning toward the defendant and remove them. • Unfortunately, it is never as easy as in this movie. Just an educated guess. Rely on your intuition.

43. IDEAL JURORS • Fathers of daughters, especially if daughter is around the same age as the victim. • Mothers of daughters • People who identify with the victim. • People who regularly make decisions and judgment calls – particularly those who rely on statements of others. (i.e. managers who have had to fire employees)

44. POTENTIALLY DANGEROUS JURORS • People who have been accused of sex assault or people who know someone who has been falsely accused of a crime. • Mothers of sons that are the same age as the defendant. • Single males of same age as the defendant. • Loners, nonconformists, oddballs. • Those who do not trust law enforcement. • People who are too “forgiving.” (i.e ministers)

45. POTENTIALLY DANGEROUS JURORS (continued) • People who are too demanding with their expectations of the evidence. (scientists, lawyers, engineers, accountants) • Be careful of persons who work regularly with children, such as teachers or Boy Scout leaders. They may have realistic expectation of children and, for example, understand delayed reporting. On the other hand, they may fear being falsely accused and sympathize with the defendant.

46. AREAS FOR QUESTIONING • Investigation and Prosecution of Child Abuse, APRI National Center for Prosecution of Child Abuse • National District Attorneys Association schools • Watch other trials and talk to other prosecutors; beg, borrow, and steal

47. GRAPHIC NATURE OF TESTIMONY • Explain that you will be discussing matters of a graphic sexual nature that might be uncomfortable and emotional to listen to. (penis vagina, erection, lubrication, the term “fuck” and other profanity.) • Apologize because these terms roll of my tongue, and it is a part of my job and required at trial.

48. GRAPHIC NATURE OF TESTIMONY (continued) • Will you hold it against the State for using these terms? • If it is going to bother you, we need to discuss it. • Will the use of these terms be so offensive that you will be unable to listen to the evidence and and render a decision based on the facts? • How do you feel about a witness describing explicit sexual matters in detail? • Will you be so embarrassed that you cannot consider the evidence and the charges with an open mind?

49. GRAPHIC NATURE OF TESTIMONY (continued) • Will you hold it against the State if a witness has to use profanity when describing what she was screaming to the defendant? • Will you hold it against the State if I must ask a witness graphic details of the sexual abuse in order to prove this case? Even if it is upsetting to the witness?

50. FOLLOWING THE LAW AND THE LEGAL DEFINITION OF RAPE • Explain that they must follow the legal definitions and set aside their own definition, even if they disagree. This is especially important in “statutory” rape cases. • The law decides what “sexual intercourse without consent means, not you or me. You may have a different idea. Does everyone agree to follow the law that is provided by the Judge?