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INVESTIGATION AND VOIR DIRE IN CHILD SEXUAL ASSAULT CASES
INVESTIGATION AND VOIR DIRE IN CHILD SEXUAL ASSAULT CASES
Sound Familiar
Sound Familiar
We are going to learn how to make these cases stronger
We are going to learn how to make these cases stronger
INVESTIGATION
INVESTIGATION
Need to Establish Each Element
Need to Establish Each Element
Forensic Interview for Child
Forensic Interview for Child
Get the Details
Get the Details
Details
Details
Sensory Details
Sensory Details
Sensory Details (continued)
Sensory Details (continued)
Surrounding Details
Surrounding Details
Surrounding Details (continued)
Surrounding Details (continued)
Seek Evidence to Corroborate the Victim
Seek Evidence to Corroborate the Victim
Preserve Evidence
Preserve Evidence
Preserve Evidence
Preserve Evidence
Preserve Evidence
Preserve Evidence
Skinner w/ braids
Skinner w/ braids
Gundersons claw marks
Gundersons claw marks
Gundersons shoes
Gundersons shoes
Preserve Evidence (continued)
Preserve Evidence (continued)
Witness Statements
Witness Statements
Witness Statements (continued)
Witness Statements (continued)
Suspect Interview
Suspect Interview
Motion for Discovery from the Defendant
Motion for Discovery from the Defendant
Dan Lacey photo
Dan Lacey photo
Motion for Discovery from the Defendant
Motion for Discovery from the Defendant
Personally View Crime Scene and All Evidence
Personally View Crime Scene and All Evidence
Ambulance and Fire Department Reports
Ambulance and Fire Department Reports
Crime Lab Reports
Crime Lab Reports
Hospital and Medical Records
Hospital and Medical Records
Other Records
Other Records
Jail Phone Calls
Jail Phone Calls
Media/TV reports
Media/TV reports
Know the Defendant
Know the Defendant
Photo of Dunning
Photo of Dunning
Maps and Aerial Photographs
Maps and Aerial Photographs
Know Your Victim
Know Your Victim
Experts
Experts
VOIR DIRE
VOIR DIRE
Purposes of Voir Dire
Purposes of Voir Dire
Purposes of Voir Dire (continued)
Purposes of Voir Dire (continued)
THEORY
THEORY
IDEAL JURORS
IDEAL JURORS
POTENTIALLY DANGEROUS JURORS
POTENTIALLY DANGEROUS JURORS
POTENTIALLY DANGEROUS JURORS (continued)
POTENTIALLY DANGEROUS JURORS (continued)
AREAS FOR QUESTIONING
AREAS FOR QUESTIONING
GRAPHIC NATURE OF TESTIMONY
GRAPHIC NATURE OF TESTIMONY
GRAPHIC NATURE OF TESTIMONY (continued)
GRAPHIC NATURE OF TESTIMONY (continued)
GRAPHIC NATURE OF TESTIMONY (continued)
GRAPHIC NATURE OF TESTIMONY (continued)
FOLLOWING THE LAW AND THE LEGAL DEFINITION OF RAPE
FOLLOWING THE LAW AND THE LEGAL DEFINITION OF RAPE
STEREOTYPES AND BIASES
STEREOTYPES AND BIASES
STEREOTYPES AND BIASES (continued)
STEREOTYPES AND BIASES (continued)
STEREOTYPES AND BIASES (continued)
STEREOTYPES AND BIASES (continued)
JUDGING CREDIBILITY OF WITNESSES
JUDGING CREDIBILITY OF WITNESSES
JUDGING CREDIBILITY OF WITNESSES (continued)
JUDGING CREDIBILITY OF WITNESSES (continued)
BURDEN OF PROOF
BURDEN OF PROOF
BURDEN OF PROOF (continued)
BURDEN OF PROOF (continued)
ONLY REQUIRING STATE TO PROVE ELEMENTS
ONLY REQUIRING STATE TO PROVE ELEMENTS
RELATIONSHIP BETWEEN VICTIM AND DEFENDANT
RELATIONSHIP BETWEEN VICTIM AND DEFENDANT
VICTIMS BEHAVIOR, JUDGMENT OR LIFESTYLE
VICTIMS BEHAVIOR, JUDGMENT OR LIFESTYLE
VICTIMS BEHAVIOR (continued)
VICTIMS BEHAVIOR (continued)
VICTIMS BEHAVIOR (continued)
VICTIMS BEHAVIOR (continued)
EVIDENCE OR LACK THEREOF
EVIDENCE OR LACK THEREOF
EVIDENCE OF LACK THEREOF (continued)
EVIDENCE OF LACK THEREOF (continued)
Evidence or Lack Thereof (continued)
Evidence or Lack Thereof (continued)
VICTIMS BEHAVIOR AFTER THE ASSAULT
VICTIMS BEHAVIOR AFTER THE ASSAULT
VICTIMS BEHAVIOR AFTER THE ASSAULT (continued)
VICTIMS BEHAVIOR AFTER THE ASSAULT (continued)
VICTIMS DEMEANOR ON THE STAND
VICTIMS DEMEANOR ON THE STAND
LAW ENFORCEMENT
LAW ENFORCEMENT
KNOWLEDGE OF ANYONE
KNOWLEDGE OF ANYONE
FINAL THOUGHTS
FINAL THOUGHTS
Gunderson Photo
Gunderson Photo
BE PROUD: YOU ARE A PROSECUTOR
BE PROUD: YOU ARE A PROSECUTOR

: INVESTIGATION AND VOIR DIRE IN CHILD SEXUAL ASSAULT CASES. : amckittrick. : INVESTIGATION AND VOIR DIRE IN CHILD SEXUAL ASSAULT CASES.ppt. zip-: 1776 .

INVESTIGATION AND VOIR DIRE IN CHILD SEXUAL ASSAULT CASES

INVESTIGATION AND VOIR DIRE IN CHILD SEXUAL ASSAULT CASES.ppt
1 INVESTIGATION AND VOIR DIRE IN CHILD SEXUAL ASSAULT CASES

INVESTIGATION AND VOIR DIRE IN CHILD SEXUAL ASSAULT CASES

Ann-Marie McKittrick Deputy County Attorney Yellowstone County

2 Sound Familiar

Sound Familiar

Sexual assault cases are loser cases. There is never any evidence. You cant get a conviction on a so-called he said/she said case. Victims always recant or refuse to cooperate. The conviction rate on sexual assault cases at trial is only 50%. Only an idealist or true believer would take on these cases.

3 We are going to learn how to make these cases stronger

We are going to learn how to make these cases stronger

4 INVESTIGATION

INVESTIGATION

Gather every piece of relevant information. Think creatively.

5 Need to Establish Each Element

Need to Establish Each Element

Identification Act Mental state Date of offense Venue

6 Forensic Interview for Child

Forensic Interview for Child

Proper interview protocols must be followed. Get commitment from law enforcement.

7 Get the Details

Get the Details

The truth is in the details. Walk the child step-by-step through every detail. Details will help you establish time, location, victims credibility, and give you areas for further investigation. Details will also help establish the suspects intent. State v. Skinner, 2007 MT 175 (incest case; jury may infer the defendants intent of causing sexual arousal from the defendants actions and circumstantial evidence.)

8 Details

Details

Sensory details Surrounding details

9 Sensory Details

Sensory Details

Sights, sounds, smells, touch, taste Real-life examples: Choking on hair on banana Whisker burns on inner leg Smell of beer Spit from privates tasted salty Suspect made face before spit came out Groaning noise from suspect Sweaty stomach

10 Sensory Details (continued)

Sensory Details (continued)

Internal pain near belly button Suspect thrusting hips Suspect moved hand up and down on privates (contrasted with: suspect just barely touched penis with tip of finger very quickly)

11 Surrounding Details

Surrounding Details

Real life examples: T.V. show that was playing in background Suspect closed all shades prior to assault Locked door Isolation from parents Description of room (color of walls, bedspread, couch, items on wall) Example: green couch, mother worked nights Example: posters of My Little Pony on wall help show that suspects belief that child was 16 was unreasonable Example: scrapbook of dad to show no motive to lie

12 Surrounding Details (continued)

Surrounding Details (continued)

Lubricants Towel suspect used to wipe himself Evidence of grooming Be creative. Any detail you can think of. Cases can rise and fall one little fact.

13 Seek Evidence to Corroborate the Victim

Seek Evidence to Corroborate the Victim

There is no such thing as a he said/she said case. Do not let the child stand alone!!

14 Preserve Evidence

Preserve Evidence

Time is of the Essence.

911 tape Search warrants or by consent Photograph entire crime scene (even if crime occurred awhile ago) Also photograph crime scene under conditions crime occurred (i.e. at night, showing isolation)

15 Preserve Evidence

Preserve Evidence

Search Warrants/Photographs (continued) Seize or photograph all relevant evidence. Details from interviews will lead you. Examples: Locks on doors Shades Lubricants Bedding, mattresses, cushions Case with bloody mattress and dishwater in sink

16 Preserve Evidence

Preserve Evidence

Search Warrants/Photographs (continued) Photograph (or videotape) victim and suspect if possible. Shows demeanor and injuries

17 Skinner w/ braids

Skinner w/ braids

18 Gundersons claw marks

Gundersons claw marks

19 Gundersons shoes

Gundersons shoes

20 Preserve Evidence (continued)

Preserve Evidence (continued)

Send victim to hospital for sexual assault nurse examination if appropriate. (DNA collection, hairs, fibers, clothing, documentation of injuries, toxicology screens.) Dont forget to order all photographs later. Videotapes from businesses (many are taped over very quickly) Send Preservation Letter to social networking services (Myspace, Facebook)

21 Witness Statements

Witness Statements

Look for the following evidence Set a time line through 3rd parties if necessary (child memory problems; alcohol and drug issues) Corroboration Information as to whether suspect had access to child Family dynamics Change in behavior of child (sleep patterns, signs of distress, slipping grades; avoiding suspect) Grooming evidence

22 Witness Statements (continued)

Witness Statements (continued)

Examples of potential witnesses: First outcry witness Family members Teachers Beware of party cases. Interview as many as possible, because many of them could be the suspects friends. If you dont interview them, the defense will. Example: KOA campground clerk Again, be creative.

23 Suspect Interview

Suspect Interview

Lock the suspect into statement Follow up on investigating the suspects version/alibi Details important so that law enforcement can corroborate or rebut (i.e. admission vs. confession; statement that they had sex too vague)

24 Motion for Discovery from the Defendant

Motion for Discovery from the Defendant

Section 46-15-323, MCA: lineup; speak for identification by witnesses; palm print, photographs not involving reenactment; try on clothing; sample of blood, urine, saliva; handwriting sample; physical or medical inspection, witness statements.

25 Dan Lacey photo

Dan Lacey photo

26 Motion for Discovery from the Defendant

Motion for Discovery from the Defendant

Section 46-15-323, MCA: lineup; speak for identification by witnesses; palm print, photographs not involving reenactment; try on clothing; sample of blood, urine, saliva; handwriting sample; physical or medical inspection, witness statements. Move for photographs if victim has identified unique moles, rashes, injuries, etc.

27 Personally View Crime Scene and All Evidence

Personally View Crime Scene and All Evidence

Take investigators, witnesses, camera, measuring tape. Will help you find overlooked evidence and understand evidence. Not everything contained in written reports. Example: bloody Tweety-bird underwear Example: cut jeans

28 Ambulance and Fire Department Reports

Ambulance and Fire Department Reports

Facts, additional witnesses Excited Utterances

29 Crime Lab Reports

Crime Lab Reports

Read everything and speak to analysts. Pay attention if analysts request additional evidence and/or tests.

30 Hospital and Medical Records

Hospital and Medical Records

This is in addition to SANE reports. Get a release from victim or obtain through investigative subpoena In some cases, you may want to get previous medical records.

31 Other Records

Other Records

Telephone and cell phone records Burglar alarms Business records Employment records Birth certificate of victim Credit records Debit records Myspace and Facebook communications Example: to show fear: records from hotel and veterinarian

32 Jail Phone Calls

Jail Phone Calls

Statements of suspect May give you hint of defense May provide you with areas of cross-examination of witnesses.

33 Media/TV reports

Media/TV reports

34 Know the Defendant

Know the Defendant

Criminal record Pull all investigative files (see if using the same alibi witness, for example) Obtain certified copies of Information, Affidavit, and Judgment Rule 404(b)

35 Photo of Dunning

Photo of Dunning

36 Maps and Aerial Photographs

Maps and Aerial Photographs

37 Know Your Victim

Know Your Victim

If victim is older, obtain dirt that the defense may try to use. Secure cooperation from victim (if old enough)

38 Experts

Experts

Crime lab analysts Treating physicians Expert to explain nature and cause of injuries Expert to explain why no injuries Forensic interview expert Expert to explain behavior in child following crime (such as sexually acting out)

39 VOIR DIRE

VOIR DIRE

40 Purposes of Voir Dire

Purposes of Voir Dire

Select a favorable jury by removing unfavorable jurors. Each side is trying to stack the deck. Educate the jury. Disclose issues in the States case to minimize impact; begin educating jurors as to why those issues do not mean the defendant is not guilty. (Examples: delayed reporting, lack of physical injuries)

41 Purposes of Voir Dire (continued)

Purposes of Voir Dire (continued)

Minimize impact of the defense attorneys voir dire by covering issues he will raise, but framing them in a manner that is favorable to the States case. This leaves him little to say, and it builds your credibility. (Example: burden of proof) Build your credibility and trustworthiness with the jury.

42 THEORY

THEORY

A tree always falls in the direction it is leaning, and you cannot change that direction or the juror during trial. So during voir dire you want to identify those persons who are already leaning toward the defendant and remove them. Unfortunately, it is never as easy as in this movie. Just an educated guess. Rely on your intuition.

43 IDEAL JURORS

IDEAL JURORS

Fathers of daughters, especially if daughter is around the same age as the victim. Mothers of daughters People who identify with the victim. People who regularly make decisions and judgment calls particularly those who rely on statements of others. (i.e. managers who have had to fire employees)

44 POTENTIALLY DANGEROUS JURORS

POTENTIALLY DANGEROUS JURORS

People who have been accused of sex assault or people who know someone who has been falsely accused of a crime. Mothers of sons that are the same age as the defendant. Single males of same age as the defendant. Loners, nonconformists, oddballs. Those who do not trust law enforcement. People who are too forgiving. (i.e ministers)

45 POTENTIALLY DANGEROUS JURORS (continued)

POTENTIALLY DANGEROUS JURORS (continued)

People who are too demanding with their expectations of the evidence. (scientists, lawyers, engineers, accountants) Be careful of persons who work regularly with children, such as teachers or Boy Scout leaders. They may have realistic expectation of children and, for example, understand delayed reporting. On the other hand, they may fear being falsely accused and sympathize with the defendant.

46 AREAS FOR QUESTIONING

AREAS FOR QUESTIONING

Investigation and Prosecution of Child Abuse, APRI National Center for Prosecution of Child Abuse National District Attorneys Association schools Watch other trials and talk to other prosecutors; beg, borrow, and steal

47 GRAPHIC NATURE OF TESTIMONY

GRAPHIC NATURE OF TESTIMONY

Explain that you will be discussing matters of a graphic sexual nature that might be uncomfortable and emotional to listen to. (penis vagina, erection, lubrication, the term fuck and other profanity.) Apologize because these terms roll of my tongue, and it is a part of my job and required at trial.

48 GRAPHIC NATURE OF TESTIMONY (continued)

GRAPHIC NATURE OF TESTIMONY (continued)

Will you hold it against the State for using these terms? If it is going to bother you, we need to discuss it. Will the use of these terms be so offensive that you will be unable to listen to the evidence and and render a decision based on the facts? How do you feel about a witness describing explicit sexual matters in detail? Will you be so embarrassed that you cannot consider the evidence and the charges with an open mind?

49 GRAPHIC NATURE OF TESTIMONY (continued)

GRAPHIC NATURE OF TESTIMONY (continued)

Will you hold it against the State if a witness has to use profanity when describing what she was screaming to the defendant? Will you hold it against the State if I must ask a witness graphic details of the sexual abuse in order to prove this case? Even if it is upsetting to the witness?

50 FOLLOWING THE LAW AND THE LEGAL DEFINITION OF RAPE

FOLLOWING THE LAW AND THE LEGAL DEFINITION OF RAPE

Explain that they must follow the legal definitions and set aside their own definition, even if they disagree. This is especially important in statutory rape cases. The law decides what sexual intercourse without consent means, not you or me. You may have a different idea. Does everyone agree to follow the law that is provided by the Judge?

51 STEREOTYPES AND BIASES

STEREOTYPES AND BIASES

When you heard that this case involved allegations of rape or sexual assault, what were your thoughts? Prior to coming here today, did you have a preconceived idea of what a rape was? Did you wonder what a child molester (or rapist) might look like? Are you able to describe what a bank robber might look like? Do you think it is any easier to describe to a typical child molester?

52 STEREOTYPES AND BIASES (continued)

STEREOTYPES AND BIASES (continued)

What are you going to say to your fellow jurors if a juror says that they just cant believe that a nice looking man like the defendant would hurt a child? When you heard that this case involved allegations of child molestation, how many of you conjured up images of men luring children into cars with candy? (or jumping out of bushes at night to rape an adult)

53 STEREOTYPES AND BIASES (continued)

STEREOTYPES AND BIASES (continued)

Would it surprise you that most child molesters (or rapists) know the child? Do you have trouble believing that there are adults in our society who are willing to molest a child for sexual gratification?

54 JUDGING CREDIBILITY OF WITNESSES

JUDGING CREDIBILITY OF WITNESSES

How do you feel about being asked to judge the credibility or honesty of a witness? Have you ever been in a position of having to decide whom to believe when told directly conflicting stories? How did you decide? Have any of you had to fire or discipline an employee? Did you ever have to investigate someones work? Did you have to evaluate what people told you in order to make a decision? What factors did you consider?

55 JUDGING CREDIBILITY OF WITNESSES (continued)

JUDGING CREDIBILITY OF WITNESSES (continued)

Is motive an important factor to consider when deciding whom to believe? To a certain extent it goes against societal norms to judge people. But that is exactly what you are being asked to do in this case. Would you have a problem judging another person?

56 BURDEN OF PROOF

BURDEN OF PROOF

Do you understand that the State has the same burden of proof, beyond a reasonable doubt, regardless of whether the alleged crime is a rape or misdemeanor theft? Will you require the State to prove the case by a higher burden of proof, just because this case involves a sexual offense? Do not be afraid of this burden. How many of you have had to make decisions about very important things in your life such a medical decisions, buying a home, investigating money? You apply this burden in your important life choices.

57 BURDEN OF PROOF (continued)

BURDEN OF PROOF (continued)

Are you going to go back to the jury room and worry about the defendant being branded a child molester even if the State proves its case beyond a reasonable doubt?

58 ONLY REQUIRING STATE TO PROVE ELEMENTS

ONLY REQUIRING STATE TO PROVE ELEMENTS

BLT sandwich example. Elements are BLT. That is all the State must prove. If the State has established BLT, but no one could tell what kind of bread, has the State proved the elements? What if different persons testify that they drank coke instead of 7-up with BLT? Do you think you could follow the jury instructions? Or would you require the State to prove additional things?

59 RELATIONSHIP BETWEEN VICTIM AND DEFENDANT

RELATIONSHIP BETWEEN VICTIM AND DEFENDANT

(for older victims if dating, married, boyfriend, family member) Does a woman ever lose her right to say no? If a man takes his wifes life, society has no problem convicting the man. But what if he takes his wifes body? How do you feel about that? Does no always mean no?

60 VICTIMS BEHAVIOR, JUDGMENT OR LIFESTYLE

VICTIMS BEHAVIOR, JUDGMENT OR LIFESTYLE

(drinking, drugs, voluntarily allowing defendant into car or home, kissing, provocative clothing) Have you ever done something foolish? (hitchhiking, leaving keys in car) Do you think that a person who has made a mistake in judgment is still entitled to the protection of the law? Do you think a victim of rape should keep quiet even if she did something that you thought was foolish or stupid?

61 VICTIMS BEHAVIOR (continued)

VICTIMS BEHAVIOR (continued)

Do you think that if a woman goes to a bar alone to have a drink that she is asking to be raped? If a person wanted to rape a woman, why might a woman who has been drinking be a perfect target? (defenses down; more vulnerable) Do you understand that a woman who is voluntarily drinking is not volunteering for sex?

62 VICTIMS BEHAVIOR (continued)

VICTIMS BEHAVIOR (continued)

A person who is murdered cannot testify about the murder. Does everyone here understand that just because a victim does not remember being raped because of alcohol and cannot testify about the rape does not mean it didnt happen to her body? Does everyone deserve protection of the law, regardless of her class? Some people may have a different lifestyle than yours, or a life style that you disagree with (prostitution). Is that person still entitled to protection of the law? Should the law treat all human beings equally?

63 EVIDENCE OR LACK THEREOF

EVIDENCE OR LACK THEREOF

Do you believe that you could never convict a person if the evidence comes down to what one person says? (he said/she said) The State anticipates that the Judge will instruct you at the conclusion of the case that the testimony of one person whom you believe is sufficient to decide an issue. Would it surprise you that the law allows you to convict based on one witnesss testimony if you believe that witness?

64 EVIDENCE OF LACK THEREOF (continued)

EVIDENCE OF LACK THEREOF (continued)

Would you be able to follow that law? Does anyone here think that there needs to be a weapon or that the victim needs to suffer physical injuries? The law says that saying no is enough. Were you aware that sexual assault usually leaves no physical injury? In a crime like child molestation, involving for example, oral sex or touching, would you expect there to be physical injuries on the child?

65 Evidence or Lack Thereof (continued)

Evidence or Lack Thereof (continued)

Were you aware that many rapists use only the minimal amount of force necessary to enable themg to rape a woman? Are you aware that child molestation is a crime of secrecy? Why do you think that is? How many of you watch CSI? Do you understand that CSI is pure entertainment? Would you require the State to produce DNA evidence, even though the law does not require it? The testimony of one witness whom you believe is enough.

66 VICTIMS BEHAVIOR AFTER THE ASSAULT

VICTIMS BEHAVIOR AFTER THE ASSAULT

(delayed reporting; loving the perpetrator in incest cases; staying with the defendant) Do you think victims, especially children, always tell right away? Why do you think a child may believe that the molestation was his or her fault? Why do you think a child (depending on age) may not even understand that a crime has occurred? Do you think that the police should still take a report and investigate even if the report is delayed?

67 VICTIMS BEHAVIOR AFTER THE ASSAULT (continued)

VICTIMS BEHAVIOR AFTER THE ASSAULT (continued)

Do you think a delayed report automatically means that a crime did not occur? Do you think child molestation victims always hate the person molesting them? Have you ever had something bad happen, and you just wanted to be left alone? (i.e., if victim locks herself in room for days and doesnt tell anyone)

68 VICTIMS DEMEANOR ON THE STAND

VICTIMS DEMEANOR ON THE STAND

What expectations do you have about how the victim will act when testifying? What will you think if she does not cry? Can you understand why a victim who has had to repeat an account numerous times might show less and less emotion each time? Can you understand how nervous a teenager might be having to answer sexually explicit questions to a roomful of strangers? Do you understand that there is no Emily Post for how victims should act?

69 LAW ENFORCEMENT

LAW ENFORCEMENT

You will hear some testimony from law enforcement. They have special training, and that is a plus you may consider. But when they are in the courtroom, you must weigh their testimony. Can you do that? Do you know anyone whom you believe has been falsely accused of a crime? Has anyone here had any negative experiences with law enforcement?

70 KNOWLEDGE OF ANYONE

KNOWLEDGE OF ANYONE

Were you, a close friend, or a family member ever a victim of a sex crime? Can you decide this case based solely on the evidence presented in this trial? Were you, a close friend, or a family member ever accused of a sex crime?

71 FINAL THOUGHTS

FINAL THOUGHTS

Keep all your notes on all jurors in the event of a challenge under Batson v. Kentucky (1986) 476 U.S. 79. If a prima facie challenge is made for racial or gender discrimination, burden shifts and you must be able to offer a race/gender neutral justification. The Court decides if inference of discrimination. Run the facts as they will be presented to the jury to a 3rd party and then tailor voir dire questions to areas of concerns they raise..

72 Gunderson Photo

Gunderson Photo

73 BE PROUD: YOU ARE A PROSECUTOR

BE PROUD: YOU ARE A PROSECUTOR

INVESTIGATION AND VOIR DIRE IN CHILD SEXUAL ASSAULT CASES
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