posted by admin on Feb 7

“Hysteria” may be defined as the outbreak of feelings that greatly exaggerate reality. With respect to the subject of allegations of child sexual abuse, a certain measure of “hysteria” exists among child protective agencies, the courts, and a significant segment of our population. As a direct result of this hysteria, innocent parties are found to have perpetrated the sexual abuse of a child when in fact no such sexual abuse has taken place. This happens in civil cases in the context of domestic disputes, and increasingly, in criminal actions. Thus the false allegation of child sexual abuse has become a strategic weapon in the arsenal of some, and in other cases, persons of good intent have been seduced into the hysterical atmosphere that characterizes the false allegation. It is generally agreed that at least one-third of child sexual abuse reports turn out to be “unfounded”.

To be sure, children are indeed sexually abused, but there is only one word to describe the thinking of those who attempt to justify the conviction of the innocent - “hysterical”. Thus, it is very important to understand certain “principles” necessary to stem the tide of those whose zeal to “protect” children has begun to threaten the integrity of our system of justice - both in civil and criminal matters.

How is it that false allegations may prevail against the best efforts of the innocent client’s attorney? The seeds of this breach of justice are sown in three broad areas in which attorneys have failed to provide effective advocacy:

First, the public hysteria regarding the sexual abuse of children needs to be recognized and effectively addressed. This reality places upon the attorney a “special” burden of proof that addresses the dynamics of the emotional issues.

Second, the attorney must be an effective case manager able to initiate appropriate discovery activities, able to identify and preserve the critical “chain of evidence”, and able to manage the available financial resources effectively.

And finally, the attorney must be ever-mindful of the importance of the expert testimony. He or she must be skilled at identifying and using the appropriate research to organize effective cross-examination and to present effective and compelling testimony to support the falsely accused client.

From these factors Edward Nichols has distilled ten “principles” which may be violated only at great risk to the falsely accused:

[1] Though there is no legal burden to do so,  attorneys who are not prepared to “prove” the client’s “innocence” will usually have his client found “guilty”.

[2] “National research has shown that the most critical aspect of preparing a false allegations defense is the attorney’s “theory of the case”.

[3] Having expert consultation on both sides of a criminal case is the best way to convert a witch hunt into a search for the truth.

[4] The attorney who does not  get familiar with the specific forensic and psychosocial issues that need to be addresses in pretrial motions will not be prepared to try the case.

[5] The exact details of who has “interviewed” or “counseled” a child witness is a “chain of evidence” that can free or shackle the falsely accused.  This requires professional, clinical evaluation.

[6] There is an orderly relationship between “vigorous” discovery and the disposition of the case.

[7] Trying a case “on-the-cheap” will almost always produce a worse result than “negotiating”. To properly defend a false allegations case requires substantial resources.

[8] The expert able to explain complicated concepts with simple language will prevail over the expert with an impressive pedigree and a complicated manner.

[9] When cross-examining an adverse expert, the only safe question to ask is one that your expert will answer to the benefit of your client.

[10] The “reasoned and seasoned” expert will be more persuasive than the “hired gun” of any extreme.

[For complete details, see False Allegations Of Child Sexual Abuse: Attorney & Client Desk Reference, Section A: "The Principles of Successful Representation"].

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