Arizona has passed several laws prohibiting specified sexual conduct toward minors, including:
indecent exposure; public sexual indecency to a minor; sexual abuse; sexual conduct with a minor; and molestation of a child. Conviction for violation of some of these statutes results in serious felony punishment, including incarceration, sex offender registration, and fines. However, as with the prosecution of all crimes, the government bears the burden of proof. There are also multiple defenses to sex crimes against a minor that can be raised by a skilled Phoenix sex crimes attorney.
Prosecution for a sex crime against a child often requires heavy reliance on statements made by the child. In fact, in many cases there is no physical evidence and the child’s outcry statements and court testimony constitute the primary evidence presented by the State. Therefore, it is imperative to examine the credibility of the child’s statements.
When a child makes an outcry, the person to whom the alleged criminal behavior is reported will typically interview the child concerning the circumstances of the alleged sexual misconduct by the adult. This interview may be conducted by school personnel, medical personnel, law enforcement, or others involved in the criminal justice process. Some of these interviewers are highly trained in techniques related to interviewing children – some have little or no training. However, it is now widely understood by professionals that poor forensic interview techniques used with children can result in false allegations of criminal sexual conduct. Therefore, the attorney must carefully review the child’s recorded interviews, along with all written statements of interviews with the child, to determine if the interviewer made mistakes that should be challenged. These interviews generally are not available to the public at large. A trained attorney who knows the law can assist in obtaining these statements for analysis.
Additionally, because analysis of interview techniques employed with children is complex and beyond the knowledge of the average person, attorneys often consider retaining an expert witness who can assist both in evaluating the evidence and explaining poor interview techniques to the jury. Expert witnesses may be psychologists, psychiatrists, social workers, or former law enforcement employees who are trained in forensic interview techniques. These witnesses carefully review and analyze the setting of the interview with the child, the word choice by the interviewer, the responses by the child, and the use of questioning techniques. Many cases are successfully defended by use of such experts.
In some cases, especially when there is a related civil case involving a contested divorce or custody battle, a child may relate inaccurate or fabricated allegations of sexual abuse. Because very young children are highly subject to suggestibility by a parent, the fabrication may be the result of the parent’s behavior, and unintentional on the child’s part. In other words, one parent may attempt to create a false memory of sexual abuse in the child to gain an advantage in the civil litigation. Older children may have their own motives, such as with whom they would like to live, for falsely alleging sexual abuse by a parent. The existence of such motives can provide important evidence for the defense of an alleged sex crime against a child.
The State often proves elements of its case by using statements, admissions, and confessions made by the accused during one or more interviews. If law enforcement asks you to submit to an interview in a sex crime case, it is imperative that you first consult with an attorney. However, even if you have provided a statement to law enforcement, it may be deemed inadmissible against you at trial if the government failed to honor certain safeguards provided by the United States and Arizona Constitutions.
Statements made by a defendant, to be admissible in a criminal prosecution, must be voluntary. The statements cannot be coerced by improper promises or threats. However, law enforcement personnel are permitted to use trickery and deceit in their questioning techniques. Therefore, a trained legal professional must examine any interviews conducted with the accused to determine if a potential constitutional or other legal violation occurred. If the defendant alleges a proper case for suppression of the statements, the defendant is entitled to a hearing and the State then has the burden to prove that the statements were obtained lawfully. If the State does not meet its burden, the Court will exclude the statements from use at trial.
Additionally, as most citizens have become aware, an individual must be advised of and waive his or her Miranda rights before custodial interrogation is conducted by law enforcement. If the accused is not advised of his or her Miranda rights, or does not legally waive them, a lawyer can have success in suppressing the use of the statements by the government against the accused.
In some cases the prosecutor will have physical evidence available, such as DNA samples. The State is required to follow specific procedures, such as chain of custody requirements, in safeguarding the integrity of such evidence. Your attorney should carefully review these procedures to determine if the State complied with all legal requirements. If not, the evidence may be excluded at trial.
The prosecutor may also attempt to use physical evidence obtained in a search of the defendant’s home, office, car, or other property. If so, the search must be conducted lawfully because the accused is protected against unreasonable search and seizure. Law enforcement personnel must follow the correct procedures in obtaining and executing search warrants. In those rare cases where warrantless searches are permitted, the government must prove that the circumstances fell within a legal exception to the warrant requirement. Failure to follow the appropriate legal procedures may result in exclusion at trial of the improperly gathered evidence.
While this article outlines some of the most common defenses available in a prosecution for a sex crime against a minor, there can be others, depending on the specific facts of the case. If you or a loved one is facing prosecution for a sex crime or other serious offense, call Phoenix sex crimes defense attorney Howard A. Snader at 602-899-0590.