http://www.deltabravo.net/custody/falseacc.htm

2004 PAUL G. STUCKLE...Attorney from Texas
A CRIMINAL DEFENSE ATTORNEY'S VIEW OF
FALSE CHILD SEXUAL ASSAULT ALLEGATIONS

By Paul G. Stuckle

"Our Prisons Are Full of Innocent Persons"
THE SPECIAL NATURE OF SEXUAL ASSAULT

Public hysteria regarding child molestation has changed the rules of
the criminal justice system. Child physical and sexual abuse cases
must be defended in an entirely different manner than the normal
criminal case. In theory the constitutional rights of the defendant
are still in place, however in reality those rights do not apply.
The truth is: The accused is presumed to be guilty.
There is merely an appearance of constitutional rights for the
accused in a child abuse case. The judge will still inform the jury
that it must presume the defendant to be innocent and require the
state to prove guilt beyond a reasonable doubt. However in reality,
once a false allegation is made, the defendant must both prove
himself innocent and that something "did not happen".

Our criminal justice system states that if the jury has
a "reasonable doubt" then it must find the defendant "not guilty".
This theory simply does not apply to child sexual assault cases. The
jury must be convinced they are not letting a child molester off and
back into the community. The jury must absolutely believe in the
innocence of the defendant. The state does not have to prove guilt,
but simply make the accusation. Once the accusation is made, the
defendant must prove innocence beyond a reasonable doubt. Failing
that, the jury will not take a chance the defendant may be a child
molester, and will convict. How Did We Come to This?

The media, legislature and the "child saving industry" has created a
national child molestation hysteria. Through their well funded
efforts, the general public is convinced a child molester lurks
behind every tree, waiting for the golden opportunity to snatch a
child. In addition, not satisfied with just terrifying the public,
these forces have created a perception that child abuse is rampantly
occurring behind the closed doors of our neighbors and friends.

Many politicians seek and maintain their positions by running
campaigns aimed at the voter's emotional desire to protect children.
An effective way to follow this campaign promise is to enact laws
that eliminate basic rights of criminal defendants charged with any
form of child abuse.

ELIMINATION OF CONSTITUTIONAL RIGHTS

Prosecutors and the child saving industry have convinced the
legislature that merely creating hysteria is not enough to insure
conviction for those accused. In addition, rights originally created
in our constitution to protect the criminal defendants must be
eliminated.

All across our nation, state legislatures have supported child
advocacy special interest groups. The following illustrates how
constitutional rights have been taken away in child sexual assault
trials:

1. No Right to Confront Your Accuser:

Criminal law codes have been rewritten to where in many cases, the
child accuser does not have to appear in court and face the accused.
Instead, the state can offer the child's testimony through a video
tape made by agents of the prosecution.

2. "Hearsay Evidence":

"Hearsay" evidence is when a witness testifies about something they
do not personally know, but were told by someone else. Hearsay is
considered unreliable and is normally inadmissible as evidence
against an accused. In child abuse cases however, hearsay evidence
is admitted as evidence of guilt.  A so called "outcry" witness can
testify as to what a child supposedly said to them regarding the
alleged abuse.

3. "Syndrome Evidence" Is Admissible Against the Accused:

In most states, the prosecution can have an expert witness testify
that the child is suffering from "Child Sexual Abuse Accommodation
Syndrome"(CSAAS). This psychological "mumble jumble" is an
unscientific theory of supposed traits of abused children. The
psychologist who came up with this syndrome many years ago has since
indicated that this theory is not reliable evidence in a court of
law. Prosecutors do not care! This junk science makes its
appearance in courtrooms across the country daily.

With syndrome evidence, the state replaces its lack of real proof
with speculation. CSAAS theorizes that because an alleged victim is
supposedly demonstrating certain behavioral patterns that he / she
must have actually been abused. Unfortunately, a big problem with
this and other syndromes is that the character traits offered to
show abuse are also common for non-abused children. If the child has
been crying, he / she must have been abused. If the child has
nightmares, he / she must have been abused. If the child is
withdrawn, he /she must have been abused. If the child is outgoing,
he /she must have been abused. If the child is happy around the
accused, its because the child enjoyed the abuse. The list of
factors goes on forever.  But to a jury, when an expert witness is
connecting typical childhood behavior with indicators of abuse, the
testimony is extremely damaging to the falsely accused.

4. Convictions Without Physical Evidence:

Our prisons are full of persons who have been convicted of child
molestation without any physical evidence ever introduced against
them at trial. In other words, the typical evidence in which the
state offers to convict a defendant, such as body fluids, blood,
semen, hair, DNA, are not introduced at trial to link the accused to
a crime.

Medical nurses and employees whose livelihoods depend upon their
contracts with child advocacy centers will give opinions that a
child was abused.  Failure to give the right opinion will mean the
contract is not renewed.  These opinions from medical "experts" will
say the findings are "consistent with" sexual abuse. Of
course, "consistent with" is not a true medical diagnosis. This
testimony, as demonstrated by a competent defense attorney will
reveal the findings given as "consistent with abuse" are just as
"inconsistent with abuse".

Instead of physical and medical evidence, the falsely accused are
convicted upon theories, inferences, and speculation. Prosecutors
secure convictions by manipulating the juries fear of releasing a
child molester back into the community. This fear will be combined
with hearsay, expert witness "syndrome evidence", misleading medical
testimony, and the biased opinions of child advocacy investigators.
To support this speculation, a biased child protective services
caseworker will produce a video taped interview of the child. This
biased interviewer will use leading, suggestive, and coached
questions to easily obtain an "admission" from a child. Many times
the child does not make a statement that abuse occurred, but merely
agrees with the adult authority figure who informs the child of the
abuse.  After an outcry, it is easy to find witnesses who can place
the accused in circumstances in which he was alone with the alleged
victim.

5. Independent Facts Which Lead To An Allegation:

The situations that create false allegations depending upon
circumstances, for example:
A. False allegations have been made by mothers who desire to gain
the upper hand in a custody battle.
B. Teen age children have alleged abuse to get the disciplinarian
father out of the house.
C. School age children will fabricate abuse after observing "Good
Touch, Bad Touch" type films at school.
D. Children know more about sex than our society is willing to
recognize. They are bombarded with sexual overtones through the
movies, magazines and advertisements.
E. Some children make false allegations for attention.
F. Some children make false allegations after hearing about real
sexual abuses that have occurred to friends or classmates.

Summary : Recipe for conviction:
1. "Outcry" from a child, interpreted as abuse;
2. Reporting of the outcry by a person required by law to report any
suspicion of child abuse, or someone with a hidden agenda or motive;
3. A biased investigation by employees of the child saving industry;
4. A biased medical report by a "nurse" contracted by the child
saving industry;
5. Syndrome evidence from an "expert" witness;
6. Circumstantial evidence of the accused's opportunity to be alone
with the child.
7. Motive or other variables leading to an accusation.

TYPICAL WRONG REACTION BY THE FALSELY ACCUSED

What should you do once an allegation has been made?
"I'm innocent. This is crazy. If I talk to them and explain it will
go away.  This is the initial feeling of the wrongfully accused.
They have done nothing wrong and therefore there should be no
adverse consequences. Those in authority will quickly recognize
their innocence, the mistake, the overreaction, and it will all go
away.

For the self-proclaimed child savers though, no mistakes are ever
made. "Of course the accused will deny it. Who among us would admit
to being a child molester? Children do not lie. Adults lie.
Molesters lie. You are lying." This is the mind-set of those who
will prosecute you. Child protective services caseworkers and
prosecutors believe the case is over once the child makes an outcry
of abuse and that outcry is subsequently substantiated during the
videotaped interview. No other evidence is necessary for them to
submit the case to a grand jury. No physical evidence of abuse. No
medical evidence of abuse. Nothing.

Now they may try to get such evidence. However, in their minds a
failure to obtain it does not undermine their conviction that abuse
has occurred. Hymen still intact? Well the hymen does not have to be
broken in order for abuse to occur, or for digital penetration. Lack
of semen? Well, of course, this offense occurred over the course of
years and the child did not make an outcry immediately after the
incident. Lack of substantiating witnesses? No
matter, molesters work behind closed doors, in private, when no one
else is around to witness. Lack of criminal record for the accused?
The accused is a child molester, he is interested in secretly
abusing children, not in committing adult crimes. Has the accused
pass a polygraph test? Those are not admissible because a savvy
adult can manipulate such tests.

Rule No. 1: Nothing an accused can say or do will convince a
childsaver (Child Protective Service, child advocacy prosecutor,
police investigator) that the abuse did not occur. NOTHING!

Rule No. 2: Talking to Child Protective Services or the police
investigator, or anyone without an attorney present is the single
worst thing a wrongfully accused person can do.

Rule No. 3: In most cases an experienced attorney will not allow you
to talk to Child Protective Services or the police or give a
statement. The attorney knows whatever you say will be used against
you.

The violation of the above three rules by those falsely accused is
commonplace. An innocent person believes sanity will intervene at
some point and decides to cooperate fully with the police and Child
Protective Services. The accused gives written statements and
videotaped statements to CPS and the police. In addition, the
accused talk on the phone to detectives
and caseworkers. They talk in the investigators offices without
knowing whether they are being recorded. They often talk themselves
into a corner that is extremely difficult to ever get out of.

Unfortunately, Child Protective Services and the police are not
interested in conducting a fair and thorough investigation. The
accused who walks into the child advocacy center without an
experienced attorney to "tell their side of things" or "clear this
all up" is doing exactly what the authorities want. The child savers
know what they are doing. At this meeting they will obtain real or
implied admissions and circumstances presenting opportunity for
abuse coming from the accused's own mouth.

The Child Protective Service investigator will start off by asking
questions that appear to be innocuous but are intentional set up
questions. The investigator may ask an alleged perpetrator if they
have ever given their child a bath or changed a diaper. The accused
will answer "Yes" as that is a normal parental function. Then the
investigator will move in for the kill.  The next questions will
focus on other instances in which the alleged perpetrator has
touched the genital areas of the child.  For example, the
investigator may ask if you have ever touched your child's
bottom or genital area. If the accused says "No", the next question
will be whether you have ever wiped your child's bottom after
changing a diaper. This will be followed by whether you have ever
applied medicine or a lotion for diaper rash. After the accused
says "Yes", the investigator will become more aggressive. "Are you
now are admitting to touching your child's genital area?". The
accused, knowing that any contact was done without sexual intent
and solely for personal hygiene reasons is confused. The accused may
say, "No, not in the manner that you are describing". The
investigator will follow up by saying, " Are you now denying
touching your child's genital area?" The follow up questions will be
to establish opportunity for abuse, such as: "Are you ever alone
with your child? Have you given baths while alone with the child? "
Applied medication to your child without any one else around ? What
about the date of the allegation, isn't it true that you
were alone with your child at that time?"

The falsely accused now will face an official investigative report
which will read like this: `Alleged perpetrator at first denied any
sexual contact with child, but then after questioning admitted such
contact. When this inconsistency was pointed out by the
investigator, the perpetrator attempted to limit admission of
contact by stating that same was done "only while giving baths and
applying medications". Investigator finds alleged perpetrators
answers to be inconsistent, evasive, and untruthful.'

A knowledgeable attorney can provide the accused with an appearance
of cooperation with authorities without providing evidence against
yourself. The investigators cannot twist your words and dictate
their interpretation of what you said if you have not talked to
them!! The attorney can assist you in making the decision of whether
to meet with child protective services or the police. In most
situations, the attorney knows that the arrest and charge decision
has already been made and that a meeting will not change the
forthcoming prosecution.

Finding the Right Criminal

Very few attorneys specialize in fighting false allegations. Many
lawyers represent clients with child abuse and child sexual assault
charges. These lawyers will handle such cases in addition to a
general criminal defense practice. Child Sexual Assault cases are
different than the typical criminal charge and must be handled
differently!

The falsely accused must have an attorney that does more than mere
representation. The attorney must actually defend the falsely
accused. Incredibly, many times an attorney will take the case and
concern themselves with a disposition that meets with the
satisfaction of the prosecution and judge. The prosecutor and judge
are the enemy in child abuse cases!

Consider the following in hiring the right attorney:
1. Length of Practice and Experience.

A false allegation case can only be defended successfully by an
attorney with significant trial experience and specifically with
child sexual assault cases. The falsely accused are not in a
position to have inexperienced counsel.

Unfortunately, the police, Child Protective Services, and the public
will consider you to be guilty. For the falsely accused it is
important to act immediately. The falsely accused must prove their
innocence! An attorney who does not begin an all out defense at the
very beginning is wasting valuable time and compromising your future.

It is a false allegation. This needs to be vocalized and acted upon.
The charge is false. The allegations are untrue. Scream it until
someone hears. And if your attorney does not hear, then fire him/her
and hire someone else.

There is no "home field advantage"in sexual assault cases. Do not
shy away from a good attorney who is located in a different county
from where you are being charged. Judges do not get re-elected if
the public views them as being soft on a child sexual assault
charge. It makes no difference how well
a local attorney knows the judge, that will not be of any assistance
with this type of charge. An "outsider" who does not care about
making the judge or prosecutor happy, but just wants to defend you
and win is much better than a local name.

Your attorney does not have to be board certified in criminal law.
Board certification usually means that the attorney practices
criminal law in general. For a child abuse or child sexual assault
allegation, the best is an attorney who specializes primarily in
those cases to the exclusion of other cases.

2. Reject Plea Bargains.

A false allegation of child sexual assault must be beaten through
either a dismissal or an acquittal (not guilty finding) at trial.
There is no victory in a plea bargain with these cases. The innocent
person's life will be destroyed by pleading guilty. At no time in
dealing with a false allegation should there ever be an admission of
guilt. A plea bargain may seem an easy way out, but it will ruin the
life of the falsely accused forever.

Deferred Adjudication, successfully served will not result in a
conviction for the defendant. However, the lack of a formal
conviction really is meaningless. Whether the accused receives
deferred, straight probation, or is released on parole, he will
still have to register as a sex offender.
Registration is by nature, public, and will result in the nature of
the charges being made known to anyone. Registration results in the
loss of employment and the inability to secure future meaningful
employment.

Community Supervision for sex offenders also requires sex offender
treatment courses. In these courses the offender is required to
admit that not only the actual charge is true, but also any
additional charges or allegations made in police or Child Protective
Service reports are true. It matters not that the charge is
exaggerated, untrue, or only partially true. It matters
not that the extraneous other charges did not occur. Failure to
admit that everything alleged is true will result in a revocation of
community supervision and placement in the penitentiary.

The prosecution will tempt the inexperienced defense attorney with
offers of deferred adjudication and "treatment" instead of
incarceration. Do not fall for this trap. Sex Offender probation has
but one goal: to take all of the defendant's money and then revoke
him and send him to the penitentiary. The percentage of defendants
who successfully make it through community supervision probation
without being revoked is small. The reason it is so difficult to
complete probation is the rules keep changing. Making community
supervision more difficult for sex offenders is a favorite of the
legislature. The changes politicians make offer the appearance of
fighting child molestation. No lobby group exists for sex offenders
and politicians can make community supervision success impossible.

A sexual assault conviction will mean that you will lose your
children

3. Prepare a vigorous grand jury defense to avoid prosecution.

If an attorney says to wait and see if your are indicted; walk away
immediately; the best time to get a dismissal is before a formal
charge; Many times the best method of winning a false allegation
case is to defeat it before it officially starts. These charges are
felonies and before the prosecutor can proceed, they must obtain a
grand jury indictment. The grand jury is a screening panel of
persons selected from the community to serve a six month term
reviewing cases to determine if "probable cause" exists. If
the grand jury finds probable cause , they will issue a `true bill"
of indictment. The case then gets assigned to a trial court for
disposition. If the grand jury issues a "no bill", the case ends.
The prosecutor has the right to present a case to another grand jury
if one entered a "no bill", however this is rare, and is usually
only invoked in cases which have gathered media attention.

A falsely accused defendant has a golden opportunity to avoid an
indictment by preparing evidence for the grand jury to review prior
to its decision. The grand jury is controlled by the prosecution,
and does not have to accept defensive evidence. It is customary,
however, for the prosecutor to provide defensive evidence to the
grand jury upon request.

The defense can provide the grand jury with information that might
not be admissible at trial, such as polygraph results, character
letters, and other forms of hearsay.  The defense can also provide
expert witness reports and affidavits explaining the unreliability
and tainted evidence obtained by the prosecution. Defendants and
defense witnesses can be made available to testify before the grand
jury, but the decision whether or not they are allowed to testify is
up to the grand jury. Defense counsel is not authorized to be in the
grand jury room when evidence is presented, nor is counsel allowed
to make oral argument. The defense attorney can be outside the grand
jury chambers and can prepare witnesses to testify.

Here are some common examples of evidence to build a grand jury
defense packet:
A. Your Criminal History;
B. Honorable Discharge and Military Records;
C. Education Records;
D. Polygraph Results;
E. Polygraph Report;
F. Psychological and Personality Testing of Client;
G. A Factual Summary of the Defense Version of the Case;
H. Sworn Statements That the Alleged Victim Has Made False
   Accusations in the Past;
I. Legal Research and Case-law to Show Reason to Not Indict;
J. Good Character Letters;
K. Availability of Defendant and Others to Testify If Requested;
L. Recantations from Alleged Victims When Available;
M. Expert Witness Testimony and Affidavits Regarding the Tainted
   Evidence Which Comprises the Prosecutors Case;
N. Test Results Showing the Accused Is Not a Child Molester or
   Pedophile.  If your attorney insists that pursuing a grand jury
   defense is a waste of time, fire him.

4. Prepare a vigorous defense for trial.

If the grand jury indicts, then the case must be prepared for trial.
It is rare for the state to dismiss a case once they have a grand
jury indictment.


Selection of the jury is critical for a child abuse or sexual
assault case. Potential jurors come into the case with strong
emotional feelings regarding any allegation of abuse to a child.
Your attorney must overcome the strong emotions the jury panel has
against child abuse and focus their attention on being fair and
acknowledging that false allegations are made. The jury panel
must see that the only thing worse than child abuse is being falsely
labeled as a child molester.

In addition, the attorney must educate the jury panel on how false
allegations could be made. The panel needs to understand how a child
can be coached through leading and suggestive interviewing
techniques into making statements about incidents that did not occur.

The attorney must be well skilled in cross examination techniques
for the states witnesses. This includes being ready to show
deficiencies in the states investigation through a preconceived
assumption of guilt shared amongst Child Protective Service workers,
police, and so called experts. Cross examination is a skill that can
only be obtained through years of trial practice itself.

The attorney must also be prepared to offer strong defensive
witnesses. Contrary to many criminal cases, the accused must testify
in a child abuse case if the defense wants an acquittal. Until the
jury hears it straight from the accused mouth that the abuse did not
occur, it will convict.

CONCLUSION

It is hoped that this information will be of help to anyone who is
ever facing the tremendous horror of a false accusation. With a good
lawyer, and a strong fight, these accusations can be overcome. It is
an uphill battle, with many bruises and bleeding along the way. But
there is no other way than to fight like hell.

www.paulstuckle.com
paulgstuckle@y...
Paul's law office is located in Plano, Texas in the Dallas-Fort
Worth Metroplex. He practices throughout the state.