Common Mistakes in Sex Crime Cases

Sex crimes are gravely serious matters that require the highest degree of care, attention to detail, and thoughtful planning as to the approach, deliberations, and execution of an unrivaled legal defense strategy. Some people and attorneys fail to take each of these truths as a factual necessity and their approach can leave holes and gaps that lead to mistakes. Getting a sex crime conviction such as criminal sexual conduct, sexually abusive materials, or public indecency is a major obstruction to a person’s life and future. Dealing with the fallout of potential jail time, probation, and the possibility of a lifetime registration as a sexual offender are not obstacles that any person wants in their path.

Thankfully, we have thoughtfully laid out some of the most common mistakes and some of the lesser-known pitfalls that can befall a person. These instructions are meant not only to educate, inform, and enlighten, but also to demonstrate to you our expertise in the field.

Failing to Defend Against Lesser Included Offenses and Inferior Offenses

Under a 2001 case decided by the Michigan Supreme Court, People v. Bearss, issued an opinion that created the possibility to be convicted of a lesser offense if the prosecution fails to carry their burden on the charge brought at trial. Therefore, a common mistake is not defending against the elements of the lesser crimes while presenting your case-in-chief for the charges brought.

There are two types of lesser included offenses and both require special care and attention. There are necessarily included lesser offenses and cognate lesser offenses. Cognate lesser offenses require even more attention to detail and care to defend against, because of the complex nature of needing to defend against additional elements of a crime that are not even at issue. It is necessary to be aware of these cognate offenses lurking in the shadows and to prepare your case-in-chief to artfully defend against all of the elements of the charge brought, as well as, additional cognate lesser offenses that include entirely distinct elements.

Necessarily included lesser offenses are offenses that are included in the greater offense except for the absence of a specific element or several specific elements. This is important, because if an unskilled attorney believed he or she had strong evidence to prevent the prosecution from proving a particular element of the crime, then he or she would believe that he or she could beat the charges, because the prosecution would fail to meet his or her burden of proof. However, the reality is that it is necessary to defend against all the elements of any charge brought to avoid a conviction of a lesser offense.

Finally, inferior offenses are offenses that are included in the Criminal Sexual Conduct degree scheme and if the prosecution fails to carry the burden of proof on the crime indicted, then a judge or jury can still issue a conviction for one of the inferior offenses. For example, if criminal sexual conduct first degree was brought at trial, but the elements could not be made out, then the court could still render a verdict for a conviction of criminal sexual conduct second degree. Therefore, when defending against criminal sexual conduct charges at trial it is necessary to consider defending against all inferior offenses in addition to the charge that was brought in the indictment.

Submitting to a Police Polygraph Examination Before Taking a Private Polygraph Examination

Polygraph examinations are powerful tools in pre-filing and negotiations with the prosecution. Despite the fact that the results are not admissible in court except for the limited circumstances of motions for suppression of evidence and post-conviction requests for new trials, polygraph examinations have become increasingly useful as tools in the legal process.

However, when to use a polygraph examination is just as important as what polygraph examiner you choose. You do not want to agree to a police polygraph examination until you have had the opportunity to take a private polygraph examination conducted by a reputable polygraphist in your area. Selecting the most reputable and trustworthy polygraphist is important, because the weight a prosecutor is willing to place on the results determines how much value the outcome will have in negotiations.

If the private polygraph results are favorable and the prosecutor approves, then he or she may decide not to move forward with charges. Although, occasionally a prosecutor will condition not pursuing charges on completing a polygraph examination with police, or will ask for a police polygraph examination before making a charge decision. After a person has taken one or more private polygraph examinations then it may make sense to submit to a police polygraph examination. However, one of the mistakes that are often made is to take a police polygraph examination immediately upon request without first vetting how you or the person you care about will react to a polygraph examination.

Another option after completing one or multiple private polygraph examinations is to offer one to the accuser, especially if the accuser is older. An offer typically includes knowledge that you passed your polygraph examination, and are willing to pay to have the accuser take an examination with an examiner of their choosing. If the accuser refuses to take a polygraph examination then it will cast doubt upon their testimony, and if they take the examination then there is a possibility that they will fail. There is also the potential, which has occurred on numerous occasions, that the accuser will confess that they fabricated the entire story.

Police Interrogation Without Counsel Present

It is important to avoid saying more than is necessary to law enforcement officers, because it can be used to incriminate you during any subsequent prosecutorial proceedings in court. There are two primary stages that a person is especially vulnerable and susceptible to making comments or answering questions that could be used against them.

First, is during an arrest. During an arrest police may ask questions and invite you to incriminate yourself, but there is no reason to communicate more than is necessary, especially if you are already under arrest and going to jail. Being arrested is an especially tenuous time, because your 6th amendment right to counsel is not actually triggered until you are placed in a custodial interrogation.

Therefore, the best course of action while being arrested is to remain silent and once you get to jail invoke your 6th amendment right to counsel and call your attorney. As soon as you are placed in any sort of confinement or holding cell and asked questions, your 6th amendment right is triggered and you have the right to demand to speak to your attorney. You are not required to answer any further questions and the police are, in fact, required by law to cease asking you questions.

Failing to Properly Cross-Examine Witnesses

Cross -examining witnesses is an inherent right protected by the 6th amendment of the Constitution. Effectively, cross-examining a witness requires finesse, agility, and the ability to understand what information you are trying to uncover and how to question the witnesses in a way that they divulge the relevant information without knowingly betraying themselves. Typically, if a witness has resigned themselves and their scruples to deceit and lie for the purpose of accusing an innocent person, they will not willingly unfold their web of deception without being led around the issue first. Of course, it is also often necessary to cast doubt on the witness’s entire testimony by placing them in a light that is not becoming for their veracity and character for truthfulness.

One of the challenges with cross-examination of sex crime victims, especially minors are the hearsay exceptions that have been carved out and codified in the Michigan Rules of Evidence. Typically, out of court statements are not permitted at trial to prove the truth of what the statement asserted. For example, Jon could not testify that he heard from Sally that the accused was walking away from the crime scene on the night in question. One of the purposes of the broad prohibition on hearsay is that it protects defendants fundamental 6th amendment right to confront their accuser. Consequently, to refer back to the example, if the prosecution wanted to admit the testimony of what Sally saw, then Sally would need to come to court to testify. Testifying in court is paramount, because it provides the defense an opportunity to cross-examine the witness about what it is they are saying.

However, under MCR 803A, an adolescent’s out of court statements may be used against the accused without testifying at trial if the prosecution lays the foundation for the exception. The primary components of the foundation for this hearsay exception are that the statements were made by someone under the age of 10 and were made immediately after or soon after the incident unless the delay was caused by fear or excusable delay. Additionally, the statement must be shown to have been spontaneously made and not manufactured, and the testimony must be admitted by someone other than the person who made the statement.

The primary issue is that it deprives the accused of the ability to cross-examine the witness about the testimony presented. Therefore, it is indispensable to inform and educate both the judge and jury of the susceptibility and therefore, the unreliability of child testimony. Children are notorious for aiming to please both their parents and authority figures and if asked a similar question repeatedly will inevitably select the answer that fits the line of questioning. Additionally, children are particularly susceptible to coercion and influence. There are numerous motives for a person attempting to coerce a child into lying about false allegations including financial motives, personal scorn, and divorce and child custody disputes.

These issues are not isolated to children under 10 years of age, but extend to all child testimony. Children over 10 years of age may be required to testify, but they are still susceptible to coercion, influence, and coaching. Consequently, it is necessary to apprise and enlighten the judge and jury that child testimony is unreliable.

The Michigan Supreme Court in People v. Gonzales addressed memory issues as they relate to being placed in a “marked state of suggestibility,” and ruled that using these ephemeral states of suggestibility are inadmissible to refresh a witness’s recollection of forgotten or repressed memories. Similarly, the principle could be extended to child testimony, because children are arguably always in a marked state of suggestibility. Failing to express and display these inadequacies of child testimony is often a common mistake in sex crime cases.

Overlooking Key Pieces of Evidence

Another common mistake in sex crime cases is failing to properly evaluate all of the evidence. As simple as it may seem, it may be surprising to learn how often fundamental evidence is mismanaged. Oftentimes errors can include overlooking evidence altogether, or failing to properly identify the role a piece of evidence should play in a case. There is an element of creativity to using evidence in ways that bolster your position and prove your case, and oftentimes the winning angle is overlooked. This is another example of why it is so vital to be represented by a skilled and experienced trial attorney that is familiar with turning the evidence over to understand exactly what piece of the puzzle fits.

Failing to Apply for a Sex Offender Registration Exemption

The Romeo & Juliet exemption process is described under MCL 28.723a for certain tier two and tier three listed offenses under the Sexual Offender Registration Act (SORA). Qualifying offenses are sodomy, gross indecency, and even criminal sexual conduct third degree and criminal sexual conduct first degree. Although, the exemptions are typically only available for cases of statutory rape, if the statutorily enumerated qualifications under MCL 28.722(w)(iv) are met then a young person with a criminal sexual conduct first degree or criminal sexual conduct third degree conviction can claim an exemption and avoid having to register as a sexual offender under the Sexual Offender Registration Act for the rest of his or her life.

To successfully obtain an exemption from sex offender registration the person who was convicted must claim the exception and a hearing on the matter must be held after a conviction is entered, but before a sentence is issued. Therefore, the time of filing for the hearing is crucial, because if the time window is missed then the opportunity for claiming an exemption expires. For criminal sexual conduct offenses the requirements that must be proved at trial are that the alleged victim consented to the conduct and was at least 13, but younger than 16 years of age at the time of the offense. Additionally, it must be shown at the hearing that the person convicted was not more than four years older than the alleged victim.

Grabel & Associates is the Premier Legal Defense Firm Specializing in Sex Crimes

Defending against sex crimes is a complex and complicated process that is fraught with the possibilities of mistakes and mishaps. Perhaps, the single biggest mistake made while defending against sexually related crimes is hiring an attorney who is unskilled, untalented, or inexperienced, because of the rigors and stresses associated with trial. Grabel & Associates has been protecting the client’s rights against sex crime charges and Child Protective Services for more than 19 years. Please take a moment to review our testimonials and recent success stories.

We are available 24 hours a day, seven days a week, at 1-800-883-2138. Call today for your free consultation and case evaluation, so we can begin developing your comprehensive, analytic, and effective legal defense strategy.

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