What You Need to Know about Special Assault Cases

If you’ve just learned you’ve been accused of child abuse, sexual assault, or any special assault, go to READ THIS FIRST. Then come back here when you have time.

To achieve victory, you need to understand how child abuse and other special assault cases are handled, and how they are won. Make sure to ask your lawyer your questions about this.

Certain questions come to us time and again from our clients. Below are the answers we usually give. You’ll also want to visit Our Approach.

If you are a lawyer and have been contacted by someone accused of child abuse, we’ve put some things you may want to consider in Lawyers’ Corner.

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. You can learn more about this here.

In child sex abuse cases, medical evidence is rare. Molestation often leaves no trace, especially if weeks or months pass before a doctor looks. 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. Learn more here.

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 child abuse 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. Track records count, but a lawyer who only takes strong cases to trial may have a good track record just because of that. 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, elder abuse, 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.

If you want some help from other people in choosing a lawyer, here are some places to turn.

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

If you already know a good lawyer whose practice doesn’t include child abuse defense, you can ask her or him to recommend a lawyer.

If you’re not confident a local lawyer would handle your case to your expectations, you can hire a lawyer from another city or state. This would probably cost more, at least because that lawyer would have to spend time and money traveling.

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 your best effort.