As a board-certified criminal trial attorney, I have been asked the following question:
“How can the government prosecute me for child sexual assault when they have no evidence of my guilt?”
Unfortunately, the answer is anything but simple. Where allegations of child sexual assault are concerned, there's often no additional evidence beyond a child saying it happened. I’ve identified six problems with the prosecution of child sexual abuse cases in Michigan.
- Confirmation bias – many police officers or child protective services (CPS) workers want to confirm their suspicion—that you are, in fact, guilty--by choosing to “believe” the “victim”, no matter how ludicrous the claim may seem. This is called “confirmation bias.” They want to believe you are guilty. They don’t want to believe that the child may have been coached by a vindictive ex-spouse to falsify a claim of abuse. Then why are prosecutors more careful to examine the mental state of the accused in a homicide case? Don’t these sexual offenses against children carry a life sentence also?
- Elections – In Michigan, both state prosecutors and judges are subject to re-election. Unlike federal prosecutors typically appointed for a particular term, which often results in a resignation once the opposing party takes control over the executive branch, state prosecutors must file for re-election every 4 years. The best way to get re-elected is to show the voters that you are “tough on crime,” and that they often pledge to “protect victims and society.” This produces a quick trigger finger on the part of the prosecutors and their assistant prosecutors, who serve at the pleasure of the prosecuting attorney. MCL 49.42. Which means the assistant prosecutors may be fired without cause if their boss finds out they angered the wrong victim. In fear of losing their jobs, many assistant prosecutors are afraid to dismiss cases, in fear of the blow-back they may suffer at the hands of angry, victim-rights groups who have the ears of their bosses.
- Only Guilty People Hire Lawyers! – “only the a guilty man would hire a lawyer!”, as the old saw goes. Unfortunately, many people seem to think that because an accused person hires an attorney, or refuses to take a polygraph, they are guilty of something. Despite the clear prohibitions against compulsory self-incrimination (5th Amendment), and the right the counsel in criminal prosecutions (6th Amendment), skeptics are quick to point out that “the wicked flee when no man pursueth.” (Proverbs 28:1). They seem to imply that the guilty remain silent because they are guilty, or that the only reason one would hire an attorney is because they are guilty. Nothing could be farther from the truth. If the Innocence Project and other post-conviction exoneration cases have taught us anything, it’s that innocent people are convicted and incarcerated for long periods of time for these very types of offense. Those persons were once accused—and convicted—of a heinous crime. That makes them guilty, right?
- Lack of Training for Law Enforcement – most law enforcement officers—especially those who conduct forensic interviews of children, receive a weekend-long course on conducting forensic interviews of children. The Michigan forensic interview protocol was designed by experts in the field of child psychology to give law enforcement officers and protective services workers the tools to successfully ferret out false allegations from truthful ones. Unfortunately, they are not taught the theory underlying these protocols, and many of them have never read the actual research that formed the basis for the protocol. Worse, there are no required continuing education credits, or any type of board certification; so a government agent who completes the weekend course is anointed as proficient in interviewing children. In other words, Officer Feelgood goes to a hotel, attends a weekend conference presented by the prosecuting attorneys’ association, receives a certificate, and…voila! They are an expert in this field. Now Officer Feelgood, a career cop with no specialized training in child psychology, is “certified” to perform these interviews and elicit evidence from an impressionable child. The officer can perform hundreds of interviews, and do it wrong every time; yet nothing is done about it. There is no special instruction that the judge can read to the jury, warning them they should treat this child’s in-court testimony, elicited first by a tainted interview, with extreme caution.
- No Suppression Remedy for Violation of Forensic Interview Protocol – Sadly, in Michigan, there is no exclusionary rule which operates to suppress a statement by a child—or subsequent testimony by a child—due a substantial violation of forensic interview protocol. The exclusionary rule was adopted centuries ago to address situations where the government obtained evidence by ill-gotten means. For example, if the police broke into your house and started searching it without a warrant, the exclusionary rule would prevent them from presenting to a jury the evidence they unlawfully seized in violation of the 4th Amendment (which prohibits unreasonable searches and seizures). If the government did that to you, the judge would quickly throw out the evidence as “fruits of the poisonous tree.” However, it is basically unheard-of for the accused in a child criminal sexual conduct complaint to successfully have the judge suppress evidence seized from the child’s lips. Why? Because the 4th Amendment merely prohibits the government from unreasonably searching and seizing your person or property, not from seizing or fabricating evidence elicited from a child’s words. When the child is not your own person or property, you are not entitled to have their testimony suppressed in court. The law should be changed to force the government agents to receive board-certification in conducting forensic interviews. They should be forced to undergo continuing education in this area and be tested to ensure they remain proficient. Otherwise, we will continue to have incompetent persons conducting these important interviews. A person’s life depends on it, even demands it. The child’s well-being depends on it. Would you go to a heart surgeon for open-heart surgery if she wasn’t board certified in cardiovascular surgery? If the surgeon is not proficient, you could die on the operating table. Why should it be any different for police officers and protective services workers? If the officer is not proficient in child sexual abuse forensic interviews, you could die in prison.
- Corroboration not necessary. Michigan has a law which states the testimony of the victim need not be corroborated (confirmed or supported) by additional evidence in prosecutions involving criminal sexual conduct (CSC). MCL 750.520h. In the federal system, juries are cautioned strongly about accepting the word of a single witness without any additional evidence. The state system should develop a similar jury instruction, warning the jury to be very careful about how they view a single witness’s testimony where there is no additional evidence of sexual assault or physical abuse. An abundance of research has demonstrated that children can be led to believe things that never occurred, usually because those ideas have been suggested to them, and in some cases, foisted on their lips by their parents or law enforcement agents.
My dad used to tell me that life was not fair. In this case, life is definitely not fair for those who are accused of child sexual abuse. The system must be changed. Call your local state representative to change the law to be more fair to the criminally accused.
Patrick William O'Keefe specializes in criminal defense and works almost exclusively in this area of the law. If you are looking for a lawyer to aggressively defend you, a family member, or a friend in criminal proceedings, and who has extensive trial experience with criminal sexual conduct cases, contact O'Keefe Law today.
Caveat: This is not to be construed as legal advice. If you have a question or concern regarding a legal problem, you should consult a lawyer who specializes in that particular area. Nothing in the article should be construed as O’Keefe Law, PLLC providing legal advice.