THE EXPERT WITNESS: Lessons learned from one specific CSC case

By Michael G. Brock

I recently completed work on a Criminal Sexual Conduct (CSC) case in Michigan. The defense was successful in obtaining a not guilty verdict for an innocent man. I am even hopeful that I may eventually get paid on it, but when I take cases where the state or the county is picking up the tab, I am always a little wary about the financial end of things. That said, I don’t take these cases for the money; I always wind up putting far more effort, time and research into a criminal case than I do into a driver license restoration. Both are important, but if someone is turned down for a driver’s license, it is not the end of their life. If they are found guilty of CSC, for all practical purposes, it is.

The conventional wisdom is that we learn from our mistakes, but I have found that we also learn from our successes. There are some lessons in this case that will carry over to other cases in the future. In fact, one of the reasons that justice prevailed in this case was that defense counsel, Ezra Goldman, and I had learned from past experience, and from other lawyers and experts who had considerable experience in these cases and had published regarding their lessons learned. Some of these lessons are:

A medical expert who is merely going to testify that the lack of physical evidence of abuse is not proof that abuse did not occur, does not have anything to add to the case, and should be objected to on grounds of relevance, unless an agreement can be made with the prosecutor that defense will not raise the issue so the doctor’s testimony is not necessary.1 However, if a pediatrician is going to testify, defense counsel should be aware that
they have a protocol2,3 that should be followed and rarely is.

Most prosecution witnesses have a confirmatory bias and pediatricians are no different. Under the guise of obtaining a medical history they will typically asked leading and even coercive questions in violation of proper protocol. Given that the forensic interviewer, as part of the prosecution team, will also have a pro-prosecution bias and that is why a false allegation case is being tried in the first place, the jury does not need to hear one more biased interview; especially one that has not been recorded, and in which the interviewer has already read or been informed of the disclosure and is merely mining for more detail. The end result is that the jury is hearing the same allegations yet another time, and from someone with the supposed high level of credibility of an MD. There is little chance that it can result in anything but further bias, given that the doctor’s story will be largely a repetition of the forensic interview, but without the safeguards.

If the doctor is allowed to take the stand, defense counsel should be aware of the standard of practice and should be able to confront failure to comply with the standard. Attorney Goldman and I discussed this matter and there was an issue as to which standard applies. The relevant endnotes cite two documents: 1) A National Protocol for Sexual Abuse Medical Forensic Examinations Pediatric, U.S. Department of Justice Office on Violence Against Women April 2016, and; 2) Pediatrics, August 2013, VOLUME 132 / ISSUE 2, From the American Academy of Pediatrics, Clinical Report, The Evaluation of Children in the Primary Care Setting When Sexual Abuse Is Suspected.

Attorney Goldman asked if the first reference would not be more relevant than the second; first, because it is a national guideline, and secondly, because it is the more recent. My position is no for several reasons: The name notwithstanding, the DOJ article document states that it is not intended as a specific protocol for interviewing a child in forensic circumstances, but references another DOJ document for that specific information.4 And the document cites psychologist Daniel Swerdlow-Freed5 as the primary source for its information regarding forensic interviewing.

Dr. Freed is a competent forensic psychologist who has done his homework. However, his publications are limited primarily to his website and contain information that, while accurate, are not footnoted regarding primary sources, or, to my knowledge, published elsewhere. My conversations with Dr. Freed—to whom I have both referred and from whom I have received referrals—indicated to me that his primary sources were Debra Poole, author of the Michigan Forensic Interviewing Protocol6, and the NICHD Protocol7, authored by Michael Lamb. The importance of these protocols, and the DOJ article referenced, is that they form the basis for the national and international standards of forensic interviewing.

What this means is that A National Protocol for Sexual Abuse Medical Forensic Examinations Pediatric cannot be taken seriously as a guide for interviewing children in forensic settings, except that Dr. Freed’s website publications are an accurate reflection of the standards established by others. If this document has any meaning at all, it is that anyone who performs a forensic interview, whether mental health or medical profession, should be held to the same standard of practice, and that because someone is an MD, should not allow them to provide bad evidence from a poorly done interview without being called on it. This is, unfortunately, done with some frequency.

The second document, The Evaluation of Children in the Primary Care Setting When Sexual Abuse Is Suspected, supports this contention, when it states in part, “...The pediatrician should not ask leading or suggestive questions. It is important to begin with open-ended, general questions about the child’s likes and dislikes or about the people in the child’s family. Then ask about things the child is worried or confused about, or about things that have happened to the child that have been unpleasant or stressful. A question should never suggest an answer. Examples of open-ended questions include the following: ‘Is anything bothering you?’ ‘Tell me why you’re here today.’...Examples of incorrect questions are as follows: ‘Who touched your privates?’ ‘I know that Uncle Joe hurt you; tell me about it.’” It is also noteworthy that this publication is from the American Academy of Pediatrics, and that the standard of practice they describe is universal.

In our case, the need to address the issue of the pediatrician’s interview—which was extremely leading and suggestive—was circumvented by our willingness to stipulate that lack of physical evidence was not conclusive. There is dispute about whether this is so in the medical community, as I have noted in previous publications, but experience has been that it is better to have no doctor take the stand than to have two doctors giving contradictory evidence. A confused jury is more likely to give the benefit of the doubt to the prosecution in a CSC case, where the defendant is presumed guilty and must prove his innocence.

Attorney Goldman and I also discussed the child’s behavior and whether or not that behavior was consistent with a child who had been abused. I said that I did not see or hear evidence of trauma from the child, but that we could not raise the issue. The jury may draw an inference from the evidence presented; however, if we were to raise the issue, Michigan case law8 provides that the prosecution may respond by referencing Child Sexual Abuse Accommodation Syndrome (CSAAS).9

CSAAS is not a scientific study and was not meant to be presented as such in a court of law, but child advocates will still try to use it, and it shows up in ostensibly scholarly articles by pro-prosecution experts.10 Its author, Roland C. Summit, states that: “The syndrome is composed of five categories, of which two define basic childhood vulnerability and three are sequentially contingent on sexual assault: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed, unconvincing disclosure, and (5) retraction.”

This may have some utility as a treatment model once abuse has been established, but it is not a diagnostic or forensic tool for what should be obvious reasons: it suggests that if a child is unwilling to disclose it is because the child is sworn to secrecy; assumes the child feels helpless and needs to be empowered; and has not objected to or acted out against the perpetrator because she see no other option but accommodation. All of these suggestions imply that children need to be encouraged to disclose abuse, as opposed to the basic principle of forensic interviewing that states children should feel free to talk, but should not be encouraged or coerced to make an allegation by someone with a preconceived opinion. The interviewer should be impartial, nonsuggestive and nonleading.

Most egregious when presented as a part of a legal proceeding is the suggestion that unconvincing disclosure and retraction are both indications that abuse has taken place! Therefore, both convincing and unconvincing disclosures of abuse, and both allegations and retractions of allegations are confirmation that abuse has occurred! This is ideology in its purest sense; everything is evidence of what the interviewer has already decided to believe. There is no way a defense attorney can open the door to the introduction of this lunacy as evidence.

Proving the defendant’s innocence can be more effectively achieved by attacking the child’s story. If the child is lying or has been coached, the story is more likely to morph11 over time. Of course, it is not helpful to beat up on a child, which is a sure way to lose the jury, but it is essential to impeach the child’s testimony. Toward this end, it is extremely important to collect all of the stories told by the child at multiple interviewers.12 The child has typically been interviewed by a concerned or coaching parent, Child Protective Services, the police, a Child Advocacy Center, a pediatrician, and under oath during the preliminary hearing before the case goes to trial.

In a false allegation case, these stories will vary considerably, and they must be explored skillfully to show the contradictions. In this particular case, defense counsel chose not to put me on the stand, but through our discussions of the child’s interviews he was very clear about the contradictions. He had also done a skillful job of questioning the child during the preliminary hearing. Sometimes attorneys waive this hearing. I’m not sure why they would pass on their only opportunity to interrogate the accuser under oath before trial, but it is a serious and often fatal mistake. If I know that the attorney has waived the preliminary, I think twice about taking the case. Someone contacted me recently about a case in which she had already waived the preliminary hearing and I told her I thought it was a missed opportunity. She didn’t call back, but I dislike working with an attorney who will not make the same investment in their client that I will.

I do see that defending CSC cases is very time consuming, and I know that the state does not pay public defenders well. The lawyers who have discussed their fees with me talk about 50-100K, and I can see that the time involved justifies the fee. Some lawyers vary their fees according to what the market will bear, but all should go in with the understanding that this is not district court where they can plea bargain an OUIL to an impaired driving without ever having read the file. These cases require work; a false allegation of CSC is the easiest way to send an innocent person to prison. If you are not willing to give your clients your best regardless of their financial circumstances, and if you are not totally committed to mounting a vigorous defense, you shouldn’t take these cases on. You are up against true believers; so you must be a believer in your client’s innocence.

Attorney Goldman and I had some discussions about whether our client had opportunity to commit the offense. My view is that lack of opportunity is a weak argument, especially given that a specific time frame is not an element of the crime. People can always find a time and a place for sex if they are determined, and juries will give a child a lot of latitude regarding time and even place. The younger the child, the more latitude. Therefore, to pursue this line of investigation and questioning is a red herring. We came to agree on this.

Electronic evidence was a concern. I have been involved in other cases where there has been an effort to introduce evidence of electronic communications that was allegedly inculpatory. There was also some discussion between defense counsel and me regarding whether electronic messages declaring love and affection between the accused and the accuser were exculpatory. In my view, allegedly exculpatory evidence of affection is irrelevant. Real victims can have very mixed feelings about their abusers, so the expression of affection does not mean they have not be subjected to abuse. On the other hand, the messages of an inculpatory nature allegedly sent between victim and alleged perpetrator would be very damaging if they were true. If I were on the jury I would consider those messages—requests for favors from a child, presumably of a sexual nature—to be strong evidence if they were real.

Therefore, I would make a concerted effort to verify such messages if I were the prosecution, or to keep them out if they had not been verified if I were the defense. FRE 902 and MRE 902 address the issue of when this evidence is self-authenticating, but Michigan has not accepted all of the elements of the Federal Rule, so the defense has to know and understand the differences. The law is also somewhat behind the technology, and does not preclude technological evidence from being admitted under MRE 901, “Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.”13

In our case, the judge chose to honor Attorney Goldman’s motion to keep these non-authenticated messages out, based on the arguments that: 1) The screenshot of the alleged messages were not taken from a device he owned or had access to at the time they were sent, and; 2) In order for the Facebook screenshot to be valid, the accuser would have had to keep the Facebook messenger open and unchanged for a year (from the time it was taken until it was printed), given the broad timetable during which the alleged events would have to have taken place (the timing of police reports, forensic interviews, etc.) and the date the screen shot was taken.

Importantly, however, my IT expert says there is no way of knowing exactly when and by whom messages were sent without the data package, including the date, time, location, and IP address. This issue was not accessed by either prosecution or defense in this case, and could only have been provided or verified by an expert with data from Facebook itself. He pointed out that in the Kwame Kilpatrick case the data package was submitted and verified in order to authenticate the text messages admitted into evidence.

This information is discoverable, and I don’t see why both sides wouldn’t want it. If I were the prosecution, I would want to know whether someone were manufacturing evidence to falsely incriminate someone else. But if the judge had ruled that the messages could come in, then the defense could prove definitively the messages were bogus and had to have been manufactured by the accuser. An analysis of his phone could even prove that the accused was not in the vicinity of where the messages were sent from at the time they were sent. Again, if I were a jury member, knowing that someone had gone to the extent of manufacturing perjured evidence to frame someone else would provide more than reasonable doubt of the defendant’s guilt. That is to say, it would go a long way toward proving his innocence.

The forensic interview is also important, both regarding how it is done, and the child’s specific responses. The forensic interviews were important in this case for several reason: first, because in the initial forensic interview the child said several times that she lied because she was angry with her father; she was not entirely sure what about. (Dad told us she was angry about him taking her phone.) Another allegation was made and another forensic interview was conducted. As part of the phased interview the interviewer asked if the child knew the difference between the truth and a lie. The child responded that, “...telling a lie, you want like sometimes you want it to happen or to look popular or something but it’s not really true.” Some experts and researchers say that it is not really important for a child to be able to explain the difference between the truth and a lie, just that the child agrees to tell the truth. However, in this case, how the child saw the difference between the truth and a lie was telling regarding a motive to lie, hence, the development of an alternative hypothesis to explore.

That this forensic interviewer had no intention of pursuing any alternative hypothesis is evident from a sequence of events late in the interview. The child gave two different accounts about what was allegedly the most recent event, first stating that she had successfully foiled her father’s attempts to rape her by rolling off the bed, and he accepted her refusal. Five minutes later, she claimed that he achieved full penetration. When the forensic interviewer pointed out the contradiction, the child was allowed to rehabilitate her story by saying that he threw her back on the bed and raped her, to which the child said she responded, “Oh, come on!”

It is telling that the prosecution team found this a credible enough allegation to pursue, but as I have said before, prosecutors who handle these cases are a lethal mix of crusader and opportunist. If the shoe had been on the other foot, and they were interviewing a suspect rather than a prosecution witness, they would have known they had a guilty suspect by the inconsistency in the story, but in this case it suited the prosecution’s interests to ignore this evidence; it was exculpatory.

Attorney Goldman provided both a copy of the forensic interview recording, and, per my request, had the recording transcribed. Although the recording is the best evidence, the transcript is valuable because it provides a more efficient way of reviewing the interview, and, in court, it is a way to go specifically to a disputed section of the interview and provide definitive proof of what was said. Of course, if the issue is still in dispute, the video of the interview can be referenced, but the prosecution is not going to make points with the judge or the jury by wasting time to prove your point. As it turned out, counsel elected not to have me testify, but we were both better prepared by having the transcript to analyze, and being better prepared than your adversary is essential. Moreover, you can only make an informed decision whether or not to have your expert testify if you are certain of the facts and the applicable law. Experts don’t win these cases; preparation wins. And if the attorney is unprepared, the best expert will be of no help.

This allegation was obviously manufactured; either the product of a child who wanted attention, or a change of custody, or that of a parent who maliciously coached the child, either for revenge or some end of her own. And though it ended about as well as it could have, given the circumstances, it still benefitted the accuser to make this allegation. It was damaging to our client financially. He had to pay attorney fees, and if my fees were not authorized by the court, he would have had to come up with the money to pay me or go without what I brought to the case. He may still have won, but Attorney Goldman listened to what I had to say, and I believe it made our case stronger. I’ve been on cases with attorneys who thought they knew everything and lost cases I thought we should have won.

Our client has probably lost forever any possible relationship with this child. This child has lost the stability that her father brought into the relationship, and even as a flawed parent, his history was more stable than the mother’s.14 More importantly, he has also had is parental rights terminated, not just to this child, but to two other children who insisted that nothing had happened to them, nor did they believe anything had happened to their sister.

This is a great and irreparable loss to both the father and his children. But if it is the case that one must prove his innocence in a criminal cases, it is absolutely the case that there is no way to disprove an allegation of abuse where a lower standard of proof is sufficient. The evidence required to terminate parental rights is miniscule in a sex abuse case, and essentially met by the allegation. Moreover, it is more expense, and those with limited resources have to decide how much justice they can afford.

Finally, there will never be any consequences to either the child or whoever else may have put her up to making the allegation. If it was the mother, she has at the very least succeeded in getting custody. At one point our client stated that he thought mother was behind the allegations, and she hoped to not only gain custody of the children, but move our client’s home. If successful, she would no longer be homeless and subject to eviction by relatives who are tired of her freeloading, as had happened in the past (The child confirmed this in the forensic interview.). Whether it is true or not in this particular case, incentivizing false allegations by providing rewards for success but no consequences for failure must inevitably produce more false allegations of abuse.

But while false allegations of abuse may provide benefits for the accuser, it is not just the client and his innocent children who suffer. Society has to pay the bill for court proceedings and for housing those who are wrongfully convicted. Beside the injustice of doing so, it is a questionable expenditure for a society that runs up increasingly vast amounts of red ink every year. It seems inevitable that government gets bigger all the time and never smaller, but another phenomena seems to be increasingly apparent: there is a law of diminishing returns when it comes to government; a point at which big government inevitably becomes bad government, and at which it begins to devour the population it portends to serve. It is increasingly clear that we have passed that point.
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1 “...The physical findings are normally going to be presented to the jury by a child advocate masquerading as a physician. The doctor whose only role in the case is to come before the jury and say ‘I didn’t find anything, but that’s entirely consistent with sexual abuse having occurred’ needs to be precluded on relevance grounds. Offer to agree not to argue the absence of physical findings (it will occur to the jury anyway) and thereby remove any possible relevance this doublethink has.”--Richard Lougee, Defending Allegations of Sexual Abuse (2017)
2https://www.justice.gov/ovw/file/846856/download, A National Protocol for Sexual Abuse Medical Forensic Examinations Pediatric, U.S. Department of Justice Office on Violence Against Women April 2016, “Recognize that a forensic interview is different from the medical history. The forensic interview is a component of a comprehensive child sexual abuse investigation (Newlin et al., 2015)...In-depth discussion of forensic interviewing is beyond the scope of this protocol. See Newlin et al. (2015) for best practices in interviewing children in cases of alleged abuse.
3 http://pediatrics.aappublications.org/content/132/2/e558, Pediatrics, August 2013, VOLUME 132 / ISSUE 2, From the American Academy of Pediatrics, Clinical Report, The Evaluation of Children in the Primary Care Setting When Sexual Abuse Is Suspected, Carole Jenny, James E. Crawford-Jakubiak, COMMITTEE ON CHILD ABUSE AND NEGLECT, This Policy Is A Revision Of The Policy In 116(2):506 103(1):186
4 DOJ, September 2015, Child Forensic Interviewing: Best Practices Chris Newlin, Linda Cordisco Steele, Andra Chamberlin, Jennifer Anderson, Julie Kenniston, Amy Russell, Heather Stewart, and Viola Vaughan-Eden https://www.ojjdp.gov/pubs/248749.pdf
5 https://www.drswerdlow-freed.com/forensic-interviewing-of-children/
6 https://www.michigan.gov/documents/dhs/DHS-PUB-0779_211637_7.pdf
7 http://nichdprotocol.com/wp-content/uploads/2013/03/RevisedProtocolTMWH2final-1.pdf
8 Michigan’s Supreme Court decided in People v. Peterson, 450 Mich. 349, 537 N.W.2d 857 (1995), 450 Mich. 349, 537 N.W.2d 857 (1995) that Child Sexual Abuse Accommodation Syndrome (CSAAS) could not be presented as evidence of guilt in a court of law unless the reverse (that the absence in the child of symptoms associated with abuse) was argued by the defense.
9 https://www.ncbi.nlm.nih.gov/ pubmed/6605796
10 Allegations of Sexual Abuse of a Child: What to Do When a Single Forensic Interview Isn’t Enough, Kathleen Faller, Journal of Child Sexual Abuse 19(5):572-89 · September 2010. “In his landmark article, community psychiatrist and pioneer in the practice area of sexual abuse Roland Summit (1983) described the dynamics of children’s responses to sexual abuse, which he termed the child sexual abuse accommodation syndrome (CSAAS).” (P. 572)
11 “Experts question the reliability of children’s testimonies when the case timeline, which is a document tracking the history of every alleged or recorded disclosure, contains concerning patterns. For example, it is troubling when most of the critical information in children’s reports originated from adults and when details morphed over time in ways that exceed what is typical of children’s eyewitness reports. When there is concern about interviewer influence, evidence of influence is more important than what knowledge an interviewer had going into an interview.” Poole, Debra A. Interviewing Children: The Science of Conversation in Forensic Contexts (Kindle Locations 910-914). Kindle Edition.
12 As Debra Poole states, “A second or third interview can benefit the prosecution when children do not contradict central details and new, valuable information emerges, but subsequent interviews are invaluable to the defense when these conversations document significantly changed stories, a pattern of adult influence (e.g., the infiltration of changing adult beliefs into children’s reports), and expanding stories with obvious confabulations.” Poole, Debra A., Interviewing Children: The Science of Conversation in Forensic Contexts (Kindle Locations 3205-3209). Kindle Edition.
13 “Michigan Rule of Evidence 901 Requirement of Authentication or Identification (a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims..[including] (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.”
14 In fact, this is the second case I have had recently where the probable reason for the false allegation was that the mother believed she would not regain custody of the child any other way.
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Michael G. Brock, MA, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. Much of his practice in recent years relates to driver license restoration and substance abuse evaluation, but he also consults and serves as an expert witness regarding forensic interviewing and the use of forensic interviewing protocols in cases of child sexual abuse allegations. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; 313-802-0863, fax/phone 734-692-1082; e-mail: michaelgbrock@comcast.net, website, michaelgbrock.com.