Special Assault Defense FAQ

It’s the modern American nightmare: you’re accused of abusing a child. When you have been accused of sexual assault, child abuse, rape, domestic violence, elder abuse or other special assault, important questions arise right away.

Below are answers to questions from those who are reeling from the immediate aftermath of an accusation of special assault. If you’re a lawyer and have been contacted by someone accused of child abuse, sexual assault, or any other special assault, visit The Lawyers’ Corner.

The police want to talk to me about an accusation against me. What should I do?

Normally the best course is to tell them you want to talk to a lawyer before you say ANYTHING about the accusation. Don’t answer questions in person, on the phone, in writing—no communications in any form until you consult with a lawyer.

Virtually anything you say to the police can be used against you in court. Most people, whether innocent or guilty, will say something during police interrogation they will regret later. Even if you don’t actually say anything to regret, it will probably be the police officer’s account of what you said, not yours, that the court will believe. The officer may also tell the court, in effect, that your demeanor during the interrogation suggested you were lying—and you’ll have no way to prove otherwise.

Silence is also usually the best course when questions come from other government agents, such as Child Protective Services workers.

If I have information that shows I'm innocent, I have to tell the police about it, don't I?

No. Your lawyer can provide information to the police for you. It is difficult for the police or prosecutor to use communications from your lawyer against you.

If I refuse to talk to the police, won't it appear I'm guilty? So won't I probably get charged?

Refusing interrogation without a lawyer doesn’t show guilt; it shows good judgment. Most police officers who conduct interrogation would consult with a lawyer before undergoing it themselves.

Most prosecutors make charging decisions according to the strength of their evidence. If you answer questions, you give them evidence. Refusing interrogation cannot strengthen their evidence, even if it strengthens their hunches. For that reason, refusing probably won’t make it more likely you’ll be charged with a crime.

What do I tell my spouse?

Talking about the accusation to anyone but your lawyer is hazardous.

You may need to assure key people, such as your spouse, of your innocence, but you should not go beyond that until you discuss the situation in detail with a lawyer. (Anyone who has a confession to make should make it first to his or her lawyer.)

What will happen when I ask to speak to a lawyer before I answer questions for the police?

Most likely, the police will simply end the questioning. They likely won’t put you in touch with a lawyer, because they know most lawyers would advise you not to speak to them. And if they are willing to end the questioning, they probably aren’t required to provide you a lawyer right away.

A few police officers will continue to question a suspect even after he has asked to speak to a lawyer first. They do this because the answers can be admissible in court under some circumstances. If you’re put in this situation, your best course is probably to repeat, as often as necessary, that you decline to answer any questions until you speak to a lawyer.

Although the law forbids it, there are some officers who will hint that if you don’t answer their questions without a lawyer, you will go to jail immediately. They do have the power to put you there, at least overnight. If the police threaten you this way, gather your courage and continue to insist on a lawyer. Protecting your rights in a child abuse, rape, or other special assault investigation is much more important than avoiding a short stay in jail.

What medical evidence needs to be preserved when physical abuse of a child is suspected?

Urine and serum specimens should be gathered, preferably when the child’s condition is at its worst. Some child injuries that appear to result from abuse actually result from undiagnosed inherited metabolic disorders. Geneticists call these “inborn errors of metabolism,” or IEM. Laboratory testing can discover IEM—if urine and serum are preserved for testing. They are rarely preserved, though, without a lawyer’s intervention. Even a wet diaper may yield a sufficient specimen.

If the child has died, there is no substitute for an autopsy. Specimen collection should include liver and bile.

Repeated unexplained injuries to a child incline physicians to diagnose child abuse. More than one SIDS death in a family affects them that way, too. Yet these recurrences also suggest a hereditary metabolic disorder.

The police want me to take a lie-detector test. Since it's not admissible in court, I have nothing to lose, right?

Wrong.

Polygraph (lie-detector) results are not always accurate. An innocent person can fail the exam. And when someone does fail it, police often press him hard to confess. In fact, the main reason police ask suspects to take polygraph examinations is their hope that failure and confession will result.

Even if you could withstand police grilling after failing the polygraph, the failure could influence the prosecutor to file a charge—either because it convinces her she has justice on her side, or because she fears the wrath of the complaining witness or that person’s family if she declines to file a charge that has been “proven” by polygraph.

If you want to take a polygraph exam to demonstrate your innocence, that can be done privately, without telling the police until you know you’ve passed. A lawyer can set that up for you. Don’t count on your passing a polygraph exam to stop the police or the prosecutor, though.

If there's no evidence, an accusation has to fail in court, doesn't it?

Testimony is evidence. If someone—even a child—says you touched him or her illegally, a jury would probably be entitled to believe it and convict you.

A child’s statements can come into evidence at trial either in the form of the child’s testimony, on the witness stand, or someone else’s testifying to what the child said out of court.

In child sex abuse cases, medical evidence is rare. Molestation often leaves no trace, especially if weeks or months pass before a medical exam. So a lack of medical evidence does not stop an investigation or prosecution.

Doctors say my child has suspicious fractures. Why would they say that? And how can I defend myself?

Sometimes parents who take their child to the emergency room are not allowed to take the child home afterwards—the child instead goes into protective custody because a physician has found fractures and has concluded they were likely inflicted through abuse. When a physician concludes this, it is usually for one of three reasons:

  • The part of the skeleton fractured is said to be one that is rarely fractured except through abuse;
  • The fracture’s age and appearance do not match the parents’ account of how it happened;
  • The child has several fractures of different ages.

This is an area where vigorous child abuse defense often requires attacking the consensus of opinion among American physicians.

I'm eligible for a public defender. Is there any reason to hire a private lawyer instead?

Many of the most dedicated and capable lawyers in America are public defenders. Yet many people who have been represented by public defenders are dissatisfied.

In most public defense offices, the lawyers have too many cases. That means they cannot give much time to each case. A private lawyer may be able to investigate and prepare your case much more thoroughly.

Also, when you hire a private lawyer, you choose your lawyer. When a public defender represents you, someone else usually chooses him or her. You might be assigned a first-rate lawyer—and you might not.

If you decide to hire a private lawyer, choose one carefully. Many private lawyers don’t have the right experience to do a good job in special assault defense, and some do not devote adequate time to their cases.

How much would it cost for a private lawyer to represent me? When would I have to pay?

Private lawyers charge for their work according to many different systems. The most common are hourly fees, in which the client pays according to how much time the lawyer spends, and “flat fees,” in which the client pays a pre-determined amount for the lawyer’s handling of a case or a particular phase of a case.

Many criminal defense lawyers require payment in advance. Also, many have a non-refundable minimum charge.

Where can I find a good lawyer to help me?

There is no simple way to be sure a lawyer will do a good job for you. Reputation counts, but some lawyers have reputations built more on glad-handing and good public relations than on first-class legal work.

Ask how much of the lawyer’s practice is devoted to defense of your kind of case—child abuse, sexual assault,  domestic violence, etc. There are many considerations in special assault defense that come up again and again—recurring fact patterns, such as misleading interviews of children and biased diagnoses by doctors, and recurring legal issues, such as the risk that a civil investigation by child protection officials will lead to criminal prosecution. It helps if your lawyer has experience with these recurring problems.

Note how willing the lawyer is to listen to you and to learn about your case. Lawyers sometimes conclude quickly that a new case can be handled just like one of their old ones. They sometimes forget that superficial similarities in cases can mask critical distinctions. You lawyer must take the time to recognize that your case is unique.

Does the lawyer seem to try to understand people and how they feel? A lawyer who can empathize with everyone in the courtroom—yes, even with the prosecutor—will have a much better chance of winning for you. (You don’t need a lawyer who wants to be nice to the prosecutor. You need one who will pay attention, for your benefit, to the prosecutor’s desires and fears.)

Beware lawyers who fear trial. Trial is an intense experience, for a lawyer as well as for the accused. Many lawyers flinch at the prospect. Even when a case settles without trial, the lawyer who relished the prospect of battle often gets the better settlement.

Pay attention to the chemistry between the lawyer and you. Your lawyer will probably advise you on some big decisions in the course of your case. You want a strong relationship with the person who advises you on those decisions.

The National Child Abuse Defense and Resource Center in Holland, Ohio, (419) 865-0513, www.falseallegation.org, keeps track of lawyers around the United States who focus on defending persons accused of child abuse.

If things don't go well at trial, I can appeal and start over, right?

Wrong.

A trial court—either a jury or a judge acting without a jury—hears testimony and looks at other evidence. Then the court decides which testimony and other evidence is the most believable, and it decides the case accordingly.

Courts of appeal don’t receive evidence. (They usually don’t even have witness stands in their courtrooms.) Courts of appeal generally just decide whether the trial judge ran the trial according to law. They generally don’t consider whether the side that won the trial was the one that should have won.

Trial is your best opportunity to win. Don’t wait until after trial to give your case the expertise and attention it requires.

Disclaimer—These materials have been prepared by The Marshall Defense Firm for informational purposes only and should not be relied upon as legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship. Internet subscribers and on-line readers should not act upon this information without seeking competent counsel. The information contained in this web site is provided only as general information and may not reflect the law governing a particular person’s situation. This information is not provided in the course of an attorney-client relationship and is not intended to substitute for obtaining legal advice, tailored to one’s individual circumstances, from a duly licensed attorney.