Defending Criminal Sexual Conduct Cases in the age of Survivorship: Why the American Jury System Remains Your Best Hope for Justice.

During a recess in my criminal sexual conduct trial, I overheard a spectator saying she hoped everything that’s gone on at Michigan State University (with the sexual misconduct lawsuits against a former physician), would help convince the jury that my client is guilty.

As I listened to her, I was reminded of the hysteria that now surrounds charges of criminal sexual conduct and false allegations of sexual assault. I wanted to address the woman by setting the record straight about the workings of a criminal jury trial, but I knew there was nothing this criminal trial lawyer could say that was going to convince her of her erroneous thinking.

The jury system in America is still the greatest system in the world. American juries, on whole, have been getting it right for centuries. They understand their role in a criminal case: to hold the government to its burden of proof (beyond a reasonable doubt), and acquit the accused if the government fails to meet that burden.

In my experience, juries are not influenced by outside considerations like the civil lawsuit cases. They are very good at basing their decisions solely on the evidence which is properly admitted throughout the course of the trial. They don’t let prejudice or sympathy drive their decision.

In Michigan, juries are often dealing with a case where there is no physical evidence. This typically is present in cases where the accuser waits years—even decades—to make a report. Prosecutors like to remind juries—especially in places like Ingham, Eaton, Clinton, Shiawassee, Ionia, Kent, Jackson, and Livingston counties—that the law does not require that the testimony of the victim be corroborated (supported) by any other evidence, if you believe the “victim’s” testimony beyond a reasonable doubt.

So how is it that so many prosecutors continue to get convictions on these cases where circumstantial evidence is scant or non-existent? I believe the answer is simple: because the law says they can, and because juries often are not reminded by the criminal defense attorney that they can do whatever they want. They are the law.

In a “he said, she said” case, the most common question asked by prosecutors is:

Why would the victim lie about something like this?

As Henry Ford once said, “Whether you think you can, or think you can’t, you’re right.” In my cases, I have been very successful reminding these juries that although the law does not require corroboration of the “victim’s” testimony, they are free to do whatever they think is fair and just. I am careful to remind them that although the law does not require corroboration, they can—and should—demand more. They should demand more especially when the accuser’s story changes when it’s time for him/her to testify at trial.

These cases can be difficult to defend, but there is a critical aspect of the defense strategy in responding to this question of “why would she lie?” The prosecutor, by inviting the jury to speculate as to why the accuser would fabricate a story, often engages in impermissible “burden-shifting” (where the prosecutor tries to get the jury to believe that the defendant must prove his innocence). The answer is simple: I tell these juries the accused is not required to prove anything, especially when it comes to whatever cockamamie ideas may be running through the accuser’s head.

By inviting the jury to question why the victim would fabricate a story like this, the prosecutor opens the door to many different aspects of the case which otherwise may not be relevant. For example, the victim’s character is typically not relevant. But in some cases, victims have made prior false accusations, which is very relevant. In other cases, accusers have developed mental and/or emotional problems. Some accusers may even believe that the government is watching them. In my most recent trial, one of the accusers testified that she believed the government was conspiring against us, brainwashing us, and tracking our whereabouts by planting chips in our coins.

There is also a real dynamic of “sister survivorship.” Strength in numbers can be a very powerful thing. If a jury is shown only one victim, they may not be as persuaded as if they were shown two victims. They may be more likely to conclude there is a pattern of deviant behavior if there are multiple victims lining up to testify. This is a fairly new phenomenon, ushered in by the “Me Too” movement and accusations used to destroy various celebrities. The scenario when multiple victims communicate together—which is often collaborative endeavor with victim advocates—to create a false narrative of sexual assault, is a very real scenario that must be treated with great scrutiny.

In some cases, accusers are even coached by police, prosecutors, friends, or other fellow accusers to believe that major inconsistencies in their testimony are not a big deal, no matter how unbelievable and patently false they may seem. But in the case where the sole evidence is testimonial from the accuser, and is unsupported by any corroborative evidence, these “little” inconsistencies are a huge deal. A recent accuser told the police that before she was raped, the accused was unbuckling her belt in order to pull down her pants. At trial, she testified she was wearing sweatpants before she was raped. Have you ever heard of someone wearing a belt with sweat pants? No. Neither have I. But this is just another example of how the accuser will always get their day in court, because Michigan prosecutors all succumb to the mounting pressure of reelection. If they don’t pursue prosecution, and give the accuser his/her day in court, they may receive negative publicity, and may not be re-elected.

Differences further exist between civil and criminal cases. When I try a criminal case, I always remind the jury that if it were the accuser filing a lawsuit against the accused, the burden of proof would be preponderance of evidence, which means the evidence in favor of the plaintiff outweighs the evidence against the plaintiff. But when criminal charges are issued—whether it be for criminal sexual conduct, child sexually abusive activity, or accosting a minor for immoral purposes—the plaintiff becomes “The People of the State of Michigan.” The burden of proof increases to proof beyond a reasonable doubt, and the accused is not required (much less expected) to prove his or her innocence.

In these cases, the criminal defense attorney must make it clear to the jury that the plaintiff is not the accuser, and the burden of proof increases substantially—to proof beyond a reasonable doubt—when criminal charges are filed. We must remind the jury that the men who wrote our constitution wanted to make it hard for the government to secure a conviction. They understood that it was better to have a guilty man go free than to convict an innocent man.

In summary, the “survivor movement” has had a huge impact on society, but the impact on a criminal trial is more of a fear than a reality. Although there has been a steady uptick in criminal sexual conduct trials—and more convictions of innocent people—the juries must be reminded of their function. It is extremely important for criminal sexual conduct trial attorneys to educate the jury about the difference between accusations and evidence.

In my humble opinion, our jury system does not need reform. Our laws need reform. Our laws should make it harder—not easier—for criminal sexual conduct charges to stick. Although the “survivor movement” has had a huge impact on society, its impact on a criminal trial is more of a fear than a reality. Although there has been a steady uptick in criminal sexual conduct trials—and more convictions of innocent people—juries must be reminded of their function. It is extremely important for sexual assault trial attorneys to educate the jury about the difference between accusations and evidence, and the difference between the burden of proof in a civil and criminal trial.

A last piece of advice—if you are accused of criminal sexual conduct, do not speak to the government. They will only twist your words and make you look and sound guilty. The mere allegation can’t ruin your life, but your novice and unguided response to the allegation can ruin you. If you have questions or concerns about your criminal sexual conduct case, pick up the phone and call me. My number is (517) 253-0114. Call for an initial consultation. It may be the best call you will ever make.

-Patrick William O’Keefe