A 14-year-old boy won his child sex abuse case before trial because the defense thoroughly tested the child’s competence to testify.
The accusation: That 14-year-old Dominic had fondled the genitals of three-year-old Carly, the sister of a boy whose home he often visited.
The charge: Child Molestation in the First Degree.
The possible sentence: imprisonment until age 21, and life-long consequences such as mandatory sex offender registration.
The defense David Marshall presented:
One day Carly’s mother, Sharon, discovered blood in Carly’s panties just after Dominic had left their house. Unaware that many things other than manipulation can cause bleeding from the genitals, Sharon immediately suspected Dominic of molesting Carly. Her unintentionally leading questions elicited a false report from Carly, seeming to confirm Sharon’s suspicion. Because Carly, as a four-year-old, had only primitive memory skills, the false account she gave her mother soon became her reality.
The result: David was able to persuade the prosecuting attorney to dismiss the case before trial.
What helped win the case: When David interviewed Carly in preparation for trial, he tested her ability to give competent testimony. The prosecutor’s child interviewing specialist, when she had interviewed Carly, had told Carly not to guess when she did not know an answer, but only David tested Carly’s ability not to guess. It turned out that Carly could not keep from guessing.
David made this point vivid to the judge when he cross-examined Carly at the hearing to determine whether she was competent to testify. After Carly had been told not to guess when she didn’t know, David drew Carly’s attention to the judge at the hearing. David then asked, “What did the judge have for breakfast this morning?” Carly replied, “A muffin.” Carly was also willing to testify what David had had for breakfast.
This was just one of the forms of Carly’s unreliability that David stressed when he argued the prosecutor should dismiss the case.
A 14-year-old boy won his child sex abuse case before trial because his lawyer thoroughly tested the child’s competence to testify. No previous interviewer of the child had done so.
It was my privilege to be that lawyer.
Dominic was an honor roll student whose main extracurricular activities were athletics and church work. Before being charged with first-degree child molestation, he had never been in serious trouble of any kind.
Dominic often played with Norm, a neighbor in his Seattle suburb. One Saturday morning in Norm’s daylight basement, they played Twister with Norm’s three-year-old sister, Carly, and another neighborhood child. In Twister, players contort and entwine their bodies over a mat. Any player who falls to the mat is out of the game. In the course of play, Dominic’s body pressed against Carly’s, and she fell to the mat.
After playing Twister and some other games, Dominic went home. Not long after he did, Carly called out from the bathroom that it hurt to urinate. Her mother, Sharon, responded and saw spots of blood in her panties. Sharon had never seen that before in a child’s panties, and Carly had never before complained of pain on urination. Sharon remembered Carly had told her, after playing in the basement, “Dominic poked me.” She asked Carly some questions and quickly concluded Carly was saying Dominic had touched her genitals.
Sharon immediately took Carly to a nearby hospital, where she reported in front of Carly that Dominic had touched Carly’s genitals.
They were referred to the Harborview Medical Center in Seattle for a sexual assault exam. There a novice child interviewer elicited from Carly statements that Dominic had taken her to a secluded area of the basement and had poked her three times in her “front,” meaning her crotch.
The medical exam at Harborview found Carly to have irritation of the vaginal introitus. Like pain on urination, that can come from sexual molestation, but also from many other things, such as the poor wiping skills common to small girls. The prosecution’s medical expert witness therefore classified Carly’s condition as “non-specific.”
A few days later, a child investigative interviewing specialist at the prosecutor’s office interviewed Carly. That interviewer told Carly not to guess but did not test her ability to follow that instruction. Carly again reported poking of her genitals by Dominic, and he was formally charged with child molestation.
When my opportunity to interview Carly came, I told her how I wanted her to answer my questions-to tell me only things that had really happened, to correct me if I made a mistake, not to guess when she didn’t know an answer, and so on. The prosecutor’s interviewing specialist had told her the same, but I went a step further. I tested Carly’s ability to follow those instructions.
After I told Carly not to guess, I asked her, “What color is my house?”
Carly thought a moment, then answered, “White.”
I pointed out to her she had never been to my house, so she should have said, “I don’t know.” I then checked to see whether she now could answer correctly. “What is my dog’s name?,” I asked.
Another pause, then Carly answered, “Skippy.”
I tried another couple of times to teach her to say “I don’t know,” but she never got it. I moved on to the other questions I had intended to ask and completed the interview.
Weeks later, Carly came to court to testify before the judge who would decide whether she was competent to testify. When my turn to question her came, I demonstrated to the judge that she could not refrain from guessing. I asked her what the judge had had for breakfast. “A muffin,” she said. When I asked what I had had for breakfast, she had a guess for that, too.
At the end of the hearing, the judge said he would announce later whether he would allow Carly to testify.
I thought the judge would likely decide Carly was not competent to testify, but he might still find her out-of-court statements admissible. Dominic could be convicted without Carly’s testifying.
I appealed to the prosecutor’s sense of fairness. Carly had demonstrated in many ways she was not a reliable reporter. Her inability to refrain from guessing was only the worst example. While Dominic’s unblemished record as a well-behaved young man did not guarantee he would not molest a child, it should count in his favor, too, I argued.
The prosecutor agreed. He dismissed the case. Dominic won without having to go through a trial.