EXPERT WITNESS: In criminal court, you must get real

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By Michael G. Brock

I recently received a request from another state to serve as an expert witness on a CSC case. I had worked with this attorney before and my feeling was that he did not have the level of investment necessary to do justice to our clients. Experience has been that these cases are highly labor intensive, and that if an attorney and/or expert is not willing to put in the time and effort necessary, it is impossible to achieve a fair outcome for the defendant. You've all heard me say before that in a CSC case the defendant is presumed guilty until proven innocent beyond all doubt. Why else would prosecutors fail to record forensic interviews and work so hard to keep exculpatory evidence out of the hands of jurors? Because they, more than anyone, understand this principle and know how to exploit it.

I was leery of taking on a case with the same attorney, but did not want to immediately rule it out. I did, however, think it wise to clarify what I thought was important and necessary to do a professional job representing our clients. I wrote back to say: I'm not opposed to taking on new CSC cases in your state, but I need to know we have some chance of winning. If we are going to do these cases, I think we need to do the following:

- Decide whether I believe our client to be innocent or guilty and, if the latter, my work on the case would be finished. You would need to decide on your trial strategy and you could still use the information we discussed in doing so, and possibly negotiating a fair plea bargain.

- Know the forensic interview as well as possible. This is very difficult to do if we are only allowed to look at it in the prosecutor's office and there is no transcript. We need to make more of an effort to get a copy of the video and/or a transcript of the interview to obtain justice for our clients. Without a copy of the interview, our clients really cannot understand the evidence being presented against them, nor can their defense team.

- Obtain permission to testify about the holes in the forensic interview and to go through it for the jury in detail. To say that the forensic is hearsay (as a judge ruled on a previous case) is ridiculous; it is forensic evidence, i.e., an interview designed to produce evidence to be used in court. It is what justifies the prosecutor's decision to charge. You have the right to introduce it for impeachment purposes, as they would the right to use former statements for a defendant for the same purpose.

- If we cannot get permission for me to testify, then you have to know where the holes are in the child's interview well enough to convince a jury that the child was led to her disclosure by suggestive interviewing techniques, or that she outright lied because she was put up to it, or had an ax to grind, i.e., wanted to change custody from dad to mom. She may simply have wanted to be close to her mother by identifying with her mother's disclosure of abuse to her, as in the last case. There is no point in putting me on the stand if I can't testify to the specifics of the forensic interview. And there is no point going to trial if you cannot construct a credible alternative to the story being constructed by the prosecution. If the only thing the jury hears is the child's testimony on the stand, that is what they are going to believe.

- Obtain counseling records, if they exist, and see if the child was led by the counselor to believe she was abused. The prosecution typically likes to have their cake and eat it too on this one. They want the allegations that emerged during therapy to be taken seriously, but they don't want the jury to hear how those allegations emerged, which in most cases is through highly suggestive questioning, play therapy, and investigation in the name of therapy. The child may well believe the story manufactured by this process, so it is up to us to explain why it is improper.

- Compare the child's statements in the preliminary hearing to those made in the forensic and at trial. In a false allegation, these statements will morph considerably over time. The preliminary hearing is very important for impeachment purposes. A judge wouldn't even dream of excluding a defendants prior statements from evidence; it is equally improper to exclude those of the accuser. In theory, the law is supposed to bend in the favor of the accused if it bends at all, but fairness is what we are looking for.

- Work together as a team to decide how to attack the prosecution's case. I am not a lawyer, but I do know the evidence in these cases, and I have researched them from both the mental health and legal perspectives. If they have physical evidence the prosecution's case is a slam dunk, but they rarely do. They count on jury bias favoring them-which of course it does-which will help them win their case with bad evidence. It's our job to explain why it's not reliable.

- We have to educate the jury; they will not get this stuff if we don't teach it to them. The prosecutors don't get this stuff either. Our advantage is that they don't want to get it. Their case is built, in most cases, on bias and obfuscation. We have to know this better than they do so that we can convince a jury they should accept only valid evidence.

- We both have to know what particular protocol is being used in the jurisdiction where the case is being tried, especially if they vary from county to county in your state. They all contain the same basic elements, and are usually done poorly, but we have to be able to show that to the jury, and we can't do it without knowing the specifics of the protocol.

- The NICHD protocol does not specifically state that alternative hypotheses should be investigated, but forensic literature does, including Michael Lamb's work, the writer of the NICHD protocol. We need to point out the importance of that. Also, the blind interview question in the last trial took me aback because I thought the interviewer should have known the child's statements about her dad running someone over with a car were not true. But the interviewer had no way of knowing at the time because she hadn't been informed. However, the prosecutor did know it was not true, and you could have brought that to the jury's attention.

- These are difficult cases to win, but they can be won if we put in the time and effort and know our stuff. We can't win them with less than our best effort.

I have yet to hear back. I am serious about my work in these cases, as I am about my work in all my cases. I really don't want to work with people who won't put in the time and effort. Toward clarifying my role in CSC cases I have developed a contract, which I now require to be signed before I begin work. The contract includes agreement regarding:

My fee for preparation and testimony, including: review of forensic interview, including notes and feedback; review of police and prosecutors notes; review of preliminary hearing; forensic interview of the child (if requested and allowed by the court); conference with defense counsel regarding how interviews were conducted and opinion on the veracity of the child; discussion of strategy for cross examination of the accuser and forensic interviewer; discussion of strategy for direct examination of defense expert, if expert testimony seem prudent.

I also clarify the following important point: If, in my opinion defendant is guilty, it would not be prudent to have me testify, as I will not mislead the court or the trier of fact to believe otherwise.

My testimony would be regarding what constitutes a good forensic interview, and whether Forensic Interviewing Protocol was followed, including factors that determine what constitutes a credible narrative from a child, and how evidence may have been tainted; whether child provided a coherent narrative according to Michigan Forensic Interviewing Protocol and relevant forensic literature; whether alternative hypotheses were explored effectively; whether child's allegations appear to be the productive of a free narrative, or suggestive questioning; and the reliability of the evidence, given factors that may taint the evidence.

Judges vary regarding what they will let in and what they will let an expert testify to, so it is absolutely essential that the defense attorney knows the material as well as the expert. Ultimately, they may have to explain the science to the jury, and they will have a lot more latitude than any expert to do so. They will also be able to argue the case with considerably more passion because they will know the science well enough to have a strong conviction of the innocence of their client. They will be able to discuss the science both in their opening and their closing, and they will be able more effectively cross examine the prosecution witnesses.

These cases can be won, but not without disciplined effort and a realistic understanding the burden and standard of proof; that is that the burden of proof is on you, and the standard is proof beyond all doubt. To believe otherwise is live in a fantasy, and criminal court is not fantasy land; it is very real.

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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.

Published: Wed, May 16, 2018

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