HOW THE LAW FAILS TO PROTECT THOSE WHO ARE ACCUSED
OF SEXUAL ASSAULT AND CRIMINAL SEXUAL CONDUCT
When I left the prosecutor’s office back in 2013, I had very little understanding of the unfairness inherent in the sexual assault realm of the criminal justice system. I assumed that kids always told the truth; adults never coached their kids; custody disputes were never a factor in disclosures of abuse; and police officers were properly trained to conduct interviews of children. Boy, was I wrong! Since I became a board-certified criminal defense attorney, I have been asked to defend some very serious sexual assault cases. Although I never kept track of my trials, I estimate that I have tried over 250 jury trials in my 16 year career, as both a prosecutor and defense attorney. False accusations are not a new thing here in Michigan or around the world. They have been happening since the beginning of time. But the law has changed rapidly in this area, which has become a minefield for the accused to navigate. I would like to spend some time analyzing this minefield an identifying some “problem areas” in the field of criminal sexual assault.
NO CORROBORATION REQUIRED IN MICHIGAN (MCL 750.520h)
Many problems have arisen here in Michigan with the handling of alleged sex crimes involving children. CSC or sexual assault in any degree remain some of the few charges in Michigan that do not require any corroborating evidence of the accuser’s testimony, so long as the jury believes the accuser’s testimony proves the defendant’s guilt beyond a reasonable doubt. Corroboration simply means evidence which confirms or supports a statement, theory, or finding; confirmation. For example, let’s say a person is accused of sexually assaulting a young child. If the young child has merely told someone (usually a law enforcement officer) that something bad happened, the government may proceed with prosecution of the accused without any additional evidence. I have had many clients who asked, “how can they convict me when they have no evidence.” In their own general understanding, they think there should be some kind of corroboration of the alleged victim’s testimony. But Michigan law does not require this. When no corroboration is needed, prosecutors have an easier time getting convictions.
EXCLUSIONARY RULE AND FRUIT OF THE POISONOUS TREE DOCTRINE
The 4th Amendment to our U.S. Constitution holds that all citizens deserve to be free from unreasonable searches and seizures. Searches and seizures conducted without a search warrant are presumed to be unreasonable, unless they meet a certain exception (consent to search; probable cause; hot pursuit; investigatory detention; Terry stop; stop and frisk; plain view; protective sweep; community caretaker; inventory search).
The government is prohibited from using evidence seized in violation of the Defendant’s constitutional right to be free from unreasonable searches and seizures to convict the accused. If the evidence (e.g., drugs, guns, fingerprints) were obtained unlawfully, then they must be excluded or suppressed at trial. That is the exclusionary rule and the doctrine of fruit of the poisonous tree. It is the notion that the government must not be permitted to take away another right (the accused person’s liberty) with ill-gotten gains.
In any criminal case, evidence that is unlawfully seized from the accused (either from his person or property) must be suppressed as fruit of the poisonous tree. In other words, it must not be admitted against the accused at trial. But this concept is easily understood when admissions are made by the accused or items are unlawfully seized by the government. For example, if the government barges into your house without a warrant at 2 in the morning, and they find your stash of cocaine, the evidence that was seized unlawfully from your home cannot be used against you at trial. That evidence must be excluded, hence the term “exclusionary rule.” That evidence is the “fruit of the poisonous tree” because it has been tainted by the government’s unlawful interference into an area where citizens have a reasonable expectation of privacy (e.g., person or property) and the government cannot be rewarded for their unconstitutional seizures.
NO EXCLUSIONARY RULE OR FRUIT OF POISONOUS TREE DOCTRINE APPLIES IN CSC OR SEXUAL ASSAULT CASES INVOLVING CHILD VICTIMS
Thus far, the exclusionary rule and fruit of the poisonous tree doctrines have only been applied in cases where an accused’s statement (e.g., Miranda rights are violated) or property was unlawfully obtained by the government. But in cases where there is an alleged child victim, the exclusionary rule is not triggered. Why? The answer is relatively simple: because the courts have never decided a case like it. They’ve decided plenty of cases where confessions were coerced, evidence unlawfully seized, and people unlawfully arrested without a warrant. The exclusionary rule serves to keep out that evidence and prevent it from being introduced at trial. In contrast, the mother, therapist, and/or police officer may have planted a false memory into kid’s head. That false memory begins to set, like cement. It’s like a kid taking his hands and pressing them into freshly poured concrete. By the next day, the concrete has dried, yet the handprints remain. And they cannot be erased.
As it stands, the exclusionary rule has never been used to successfully bar the child from testifying about facts that were planted there through leading or repeated questioning or coaching. In other words, even if the child’s forensic interview is botched, the prosecutor is still permitted to put the kid up on the witness stand to testify to those same sets of facts. In fact, I have seen a recent case where the prosecutor had the child sit down and watch his recorded forensic interview so he would remember what he said the first time he spoke to the officer.
As more and more states continue to eliminate or expand their statutes of limitations for sex crimes—in Michigan there is no statute of limitations for the charge of CSC 1st Degree—we will begin to realize a greater need for competent, disciplined, and comprehensive investigations in child sexual abuse cases. Many times, the kid’s word is the only evidence the government has. And so long as the jury is convinced beyond a reasonable doubt that the accused person is guilty, the judge will instruct the jury that the prosecutor does not need any additional evidence to secure a conviction.
We can expect that over the course of time, as sexual assault cases are prosecuted, the courts will visit this issue and will need to make a determination as to whether the exclusionary rule should operate to bar the government from presenting the child as a trial witness. Granted, it would be unfortunate in cases where children may actually be telling the truth, but the method used by the government in seeking the truth was so flawed as to be considered unreliable. But I will say this—if the courts start to invoke the exclusionary rule and fruit of the poisonous tree doctrine in these cases, these police officers and protective services workers would start doing a much better job at conducting a competent and unbiased interview.
Research has shown that there were more false allegations among children involved in custodial disputes (33% of the reports were unsubstantiated) than among children not involved in such disputes (5% of these children’s reports were unsubstantiated). Imagine that! A third of the allegations made by children in the middle of custodial disputes were false!
 Jeopardy in the Courtroom, by Stephen J. Ceci and Maggie Bruck (citing 1988 study by Paradise, Rostain, and Nathanson)
CASE STUDY #1 – DIVORCE POISON AND PARENTAL ALIENATION
Let us start with a young child, “Troy”, age 11. Troy is the child of Bethany and James, who are now divorced. His parents divorced when he was about 8 years old. Troy lives with his mother but stays with his father every other weekend. His parents share joint physical and legal custody, even though the majority of his time is spent in the care of his mother. Bethany has suddenly decided that Troy is better off living with her full time, but she cannot find a legal basis to take Troy away from his father.
COACHING BY MOM
As the custody battle rages on, Bethany begins having a dialogue with Troy about all the “bad” things his dad allegedly did to him before the divorce, about “good touch, bad touch,” about how it’s important “to tell” someone when abuse has occurred, and so on and so forth. She has been coaching the boy to disclose abuse. After repeatedly and suggestively questioning young Troy, his mother seeks to elicit a disclosure of sexual abuse so that she can terminate James’s parental rights. She sees this as the best way to get Troy all to herself. Troy finally buckles under his mother’s pressure, and states that his father had sexually abused him when he was about 6 years old. Troy says his mother was at work and he was home alone with his father when the assault happened. Troy’s mother takes him to see a therapist and explains to the therapist that Troy had disclosed sexual abuse to her. The therapist repeatedly questions Troy and the boy again states his father sexually abused him when he was 6 years old.
Eventually, Bethany contacts the police to report that Troy has accused his father of criminal sexual conduct involving penetration (CSC 1st Degree) when he was 6 years old. In Michigan, CSC 1st degree, with a child under the age of 13, carries a mandatory minimum sentence of 25 years in prison. A detective is assigned to the case. We will call him Detective Niedermeyer. Niedermeyer has been a detective for approximately 15 years. Although he has received training on conducting interviews of children—these are called “forensic interviews”—he has not been deemed proficient by his department. Everybody at the police department knows Detective Niedermeyer isn’t any good at getting kids to open up. Besides, Niedermeyer will be busy collecting evidence from other witnesses, if there is any other evidence.
Niedermeyer contacts a colleague of his to conduct the forensic interview of Troy. We will call her Officer Friendly. Officer Friendly has been a police officer for approximately 20 years. 17 years ago, she received training on how to conduct a forensic interview of a child. She has never gone back for additional training, but has conducted hundreds of forensic interviews of children. Niedermeyer schedules Officer Friendly to conduct a forensic interview of Troy for the following week. Troy spends the entire weekend and week preceding the interview with his mother, who continues to talk to him about his “allegations.” Officer Friendly is scheduled to conduct the interview at a children’s assessment center, which is separate from the police department and is specially designed to make children feel comfortable and safe. In advance of the interview, Officer Friendly is supposed to perform background investigation in order to develop viable, alternative hypotheses that could offer an innocent explanation for the disclosure. For example, the child may have been touched through routine caregiving (wiping, washing, etc.); the touching was accidental; or there was bad blood and a custody battle where mom is trying to take Troy away from dad.
But Officer Friendly does not take the time to explore these alternative hypotheses. Michigan’s Forensic Interview Protocol requires the interviewer to develop these alternative hypotheses before conducting the interview. But Friendly has her own “confirmation bias,” which means Friendly has a tendency to interpret evidence as confirmation of her existing beliefs or theories. She enters the room with only one belief, that James is guilty of sexually assaulting his son. Now all she needs is a disclosure from Troy and they are off to the races. When she enters the interview room, Friendly immediately begins talking to Troy about something “bad” that may have happened to him. This opens the door for Troy to talk about how his father sexually abused him when he was 6 years old. Troy cannot remember exactly when it happened, but he remembers it happened in his bedroom while his mother was at work. Troy has great difficulty remembering details. When he does remember details, they are bizarre and make no sense. Officer Friendly helps him out by suggesting things that may have happened to him, and by suggesting that his father is a bad, violent, or dangerous guy. Friendly encourages Troy to talk about all the bad things his dad has ever done. Troy tells Officer Friendly that his dad had pushed him down a flight of stairs one time, although he suffered no injuries as a result and never reported it to his mother.
Troy is not supposed to know that Officer Friendly is a police officer. In fact, Officer Friendly is wearing plain clothes to look as if she is not a cop. This is in keeping with forensic interview protocols. If Troy knows she’s a cop, he may be more likely to agree with her because she is an authority figure. This is especially dangerous when Troy has been taught to respect and agree with police officers, which his mom and dad taught him at a young age. But Troy’s mom, in the car on the way to the interview, tells Troy that he is going to be interviewed by “Officer Friendly.” So Troy already knows she’s a cop despite her being dressed in plain clothes and not having her gun or her badge in the interview room.
Eventually, Troy tells a story about how his father sexually assaulted him, one time, back when he was around 6 years old. It’s been about 5 years since this allegedly happened, so there is no DNA to be collected from Troy’s person. Additionally, the penetration described by Troy is slight, oral penetration—which still constitutes CSC 1st Degree. Any entry into Troy’s mouth, no matter how slight, is enough to constitute penetration. But because the penetration described by Troy is not physically traumatic, there is no evidence of injury. Troy’s description of the one sexual act is not likely going to result in an injury to Troy’s body. In summary, there is no physical corroboration of Troy’s account. There is only one piece of evidence: Troy’s statement.
Now, you are probably thinking, ‘why did this guy spend so much time talking about this case, and what does it have to do with the exclusionary rule and fruit of the poisonous tree doctrine?’ The answer is simple. Unlike a drug case where evidence that has been seized unlawfully by the government, these cases have the opposite effect. Evidence is essentially being planted into the mind of the child. And not only is it planted, but it is fertilized through improper questioning, confirmation biases, and the prosecutors’ zeal to convict these people because of a mere allegation; an allegation that is planted and burned into the child’s memory, perhaps for the rest of his life.
With the story of Troy, the prosecutor now has everything she needs to get a conviction of James. In fact, even if the prosecutor fails to convict James in the criminal court, she may still proceed in terminating James’s parental rights using the same faulty evidence they used in the criminal trial. The recording of the forensic interview itself is hearsay. In Michigan, hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted (See Michigan Rule of Evidence 801(c)). https://courts.michigan.gov/Courts/MichiganSupremeCourt/rules/Documents/Michigan%20Rules%20of%20Evidence.pdf
Remember, all the prosecutor needs to sustain a conviction is for Troy to say those magic words on the witness stand. They do not need any additional, corroborating evidence to sustain a conviction. The law does not require it. So once the false memory has been “planted” by Troy’s mom, therapist, and Officer Friendly, it gets stuck there, and Troy may come to believe it actually happened. This is especially common in cases where the child delayed reporting the alleged abuse for several years because most often, the child is very young when the abuse is said to have occurred.
PLANTING THE SEEDS OF FALSE MEMORIES
All over the country, police officers and prosecutors are planting seeds of false memories into the minds of innocent children. Revisiting our previous case study, over the next several months, Troy’s mom continues to take him through therapy. His dad, James, was arrested a week after his forensic interview. James was indicted on one count of CSC 1st Degree and faces a mandatory minimum of 25 years in prison, and up to life in prison, if convicted. James has been denied bail. Troy does not know that his father is sitting in jail facing a life offense, all because of a “memory” that had been foisted upon him by a vindictive mother and a cop who is eager to put these “sex offenders” away for good.
Friendly leads Troy into the interview room, which is quiet, austere, and sparsely furnished. A camera is mounted in the corner of the room; these interviews must be recorded when conducted in the course of a criminal investigation. Officer Friendly introduces herself to build rapport with Troy. She lays the ground rules: don’t guess; tell the truth; correct me if I misstate something. Troy affirms his responsibilities, and down the rabbit hole they go. Officer Friendly asks Troy if he knows why he is here today. Troy says he does. He says he is there to talk about how dad put his penis into his mouth. Troy does not offer many details. Of the few details he does offer, they are bizarre. He describes a point in time when his dad dumped water on himself in the room; that his dad forced him to watch pornographic videos; and in one of the videos, a porn star had given birth at the end.
Friendly fails to follow up on the bizarre answers. Instead of encouraging more free narrative, she neglects to ask the boy to tell her more about some of the bizarre answers. Friendly fails to inquire into other alternative hypotheses. She does not ask about the family dynamic since mom and dad were divorce; the custody battle; the potential for coaching; or the possibility that dad touched him through routine caregiving. By the end of the interview, Friendly has aided and abetted Troy in forming a false memory of abuse, and she has failed to explore any viable alternative hypotheses that could point to dad’s innocence.
Famed psychologist Elizabeth Loftus has studied false memories extensively, and currently is ranked as the 58th among the 100 most influential psychologists of the 20th century. Loftus has studied this phenomenon extensively, and yet it remains entirely opaque to the average person. The idea that a false memory can be planted in someone’s head is, at its essence, counterintuitive to everything we have been taught. Since the days of the Salem witch trials, people believed that children were inherently trustworthy, and were incapable of lying. However, research has consistently proven these assumptions to be untrue. Memory experts like Loftus have been proving that not only is memory unreliable, it can also be manipulated as “evidence” in criminal cases. Once the memory is planted, it cannot be undone, and further research has shown the children tend to believe these memories even into adulthood. In other words, once the toothpaste is squeezed out of the tube, there is no way to put it back in. That memory is out there, and it begins to crystallize to the point where it cannot be undone.
This phenomenon makes the proper implementation of Michigan’s Forensic Interview Protocol (https://www.michigan.gov/documents/dhs/DHS-PUB-0779_211637_7.pdf) and other child interview protocols across the nation, essential to the fair investigation of CSC complaints.
POOR TRAINING AND NO CONTINUING EDUCATION REQUIREMENTS FOR FORENSIC INTERVIEWERS
In Michigan, the Prosecuting Attorneys Association of Michigan puts on trainings every year to train police officers, protective services workers, and even prosecutors on the proper implementation of the Forensic Interviewing Protocol. These courses are typically taught over the course of a weekend and resemble a business training course conducted at a hotel conference room. At the end of the three or four day training seminar, the trainee is “certified” to conduct forensic interviews. Sadly, that is the only training they need. There is no written test. They do not have to show that they know and understand the protocol itself. They do not have to go back to continue their training and keep their “certification.” There is no governing board to ensure they maintain certification and possess the requisite competency to do such interviews. All they have to do is show that they have a basic understanding of how to conduct the interview by performing a mock interview of an adult standing in as a child. And BAM, just like that, they are anointed as experts in interviewing children.
Sadly, most police officers who conduct forensic interviews have no idea what they are doing. They do not understand the psychology behind the protocol. They don’t even know the protocol. It ought to be a law that police officers cannot conduct these interviews, especially the very police officer who is charged with the task of investigating a potential crime or crimes. There simply is too much confirmation bias, too little training, and no way to undo the damage they can cause to a case.
CASE STUDY #2—DEVELOPING VIABLE ALTERNATIVE HYPOTHESES
In a recent trial where I defended a man who was falsely accused of sexually assaulting his ex-girlfriend’s twin daughters, I asked the detective who conducted the interview—and investigated the criminal case itself—if she could name any of the alternative hypotheses listed in the Michigan Forensic Interviewing Protocol. (She had held herself out as an expert in conducting these interviews).
On Page 29 of Michigan’s Forensic Interviewing Protocol, the common alternative hypotheses are listed as follows:
- 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.
Yet the detective could not name a single one of these alternatives. As I read them aloud, the detective acted like she did not recognize them. This astonished me because she was supposed to be a forensic interviewing guru. And the prosecutor volleyed multiple objections, seeking to disrupt my rhythm as I got closer and closer to exposing the detective for a fraud. It did not make sense to me that a prosecutor would try so hard to obfuscate the truth and to hide important details from the jury that would negate the defendant’s guilt. In that particular case, the child delayed reporting for a decade. When she turned 16, she saw Taylor Swift came out and disclosed that she had been sexually assaulted. An infamous physician at Michigan State University, Larry Nassar, had recently been convicted of sexually assaulting hundreds of young girls under the guise of medical treatment. Her dad had also shown an interest in wrestling away their mother’s custody rights. At the trial, wherein my client was accused of sexually assaulting this girl, her friends sat in the gallery of the courtroom like they had come to watch a movie. Had the detective, who was also a student resource officer at these girls’ high school, sniffed out this viable alternative hypothesis (e.g., the child exaggerated about an event to show off to friends), we may never have gone to trial. My client may never have been arrested.
Now in this case, the girls’ father was very bitter toward my client. My client started dating the girls’ mother as she was in the process of divorcing the father. The father was insanely jealous of and angry with my client, to the point where he threatened to have my client sent to prison for breaking up his family. It also seemed that the father was doing some coaching with his daughters; that they had recently read a novel about a high school girl being sexually assaulted. Although the girls were now 16 years old, they were describing something that allegedly happened when they were around 6-8 years old.
What used to be taboo and difficult to talk about now has become something that is honored in the name of bravery and courage. They used to be called “victims” of abuse. Now they are called “survivors.” They used to be called “Jane Doe.” Yet many young women now publicize their claims under their real names, and may even seek media attention and book deals.
In this case, there were probably at least a half dozen alternative hypotheses. Yet the detective did not explore any of them. And that is a real problem we have in America where detectives consistently fail to explore alternative theories. They want to see the accused get charged, arrested, and convicted before they will ever consider they could be wrong.
In an era where corroboration of the child victim’s testimony is not necessary, we will see more and more prosecutions based solely on the child’s word and nothing more. Without a special exclusionary rule, the government will continue to foist false allegations onto the lips of the child. There is a dire need for extensive and regular training for police officers and protective services workers who conduct forensic interviews of children. There is also a need for a governing body to ensure that only those persons who are competent will obtain and retain their certification as a forensic interviewer. They should not be permitted to testify as though they are some kind of guru who has the special ability to coax an allegation out of a child simply because they have been doing these interviews for a long time, especially when most of them have been doing it wrong the whole time. The shifting climate from shame to acceptance—even notoriety—for sexual assault victims also creates new problems for those persons who are accused of these crimes. The chances of them being seen as “believable” will increase as the fervor surrounding victims’ rights continues to grow. The danger of this “default to truth” theory—that no child in his right mind would ever fabricate such an allegation—can be found in the hundreds, if not thousands of convictions of innocent persons around the country, especially here in Michigan. These dangers are especially inherent in custodial disputes, where 33% of the allegations are false and likely due to coaching and repeated questioning designed to make the kid believe there was abuse when there was none. We have entered a new era, the era of uncertainty. We need effectuate change in this area before another innocent person is convicted of this heinous crime.
ABOUT THE AUTHOR
Being accused of sexual assault, criminal sexual conduct (CSC), or possession of child pornography in Michigan has devastating consequences. Sex crimes are some of the most difficult cases for lawyers to defend, unless you’re Patrick O’Keefe. Board Certified Criminal Defense Attorney Patrick O’Keefe is a proven winner, both inside and outside the courtroom. He tries and wins big cases. Mr. O’Keefe has a track record of success. He is one of only three board certified criminal defense attorneys in Michigan. To learn more about what it means to be board-certified, visit www.nbtalawyers.org or watch this video.
If you are accused of a sex crime, you need a lawyer who knows the system inside and out. CSC, sexual assault, and child porn cases have devastating consequences, including but not limited to draconian prison sentences, sex offender registration, and lifetime electronic monitoring while on parole. Do not take a chance on hiring the cheapest lawyer—you will likely regret that decision the rest of your life. Whether you have been charged, are awaiting charges, or want to make charges go away, contact O’Keefe Law now to schedule a case consultation.