3.2-A. Work with Experts to Understand and Explain the Evidence

Consider which experts, if any, will assist you in understanding the significance of the evidence and explaining it to the jury. Experts can help the prosecutor understand the results of a SAK examination or other medical reports, toxicology results, or forensic evidence (e.g., DNA or the results of a forensic examination of a cell phone). They can also help explain issues commonly misunderstood by juries — victim behavior, the effects of trauma, offender tactics, cultural factors impacting victimization, etc. Expert testimony can assist the jury in reaching an informed verdict based on the evidence rather than myths or misconceptions.

Early consultation with experts ensures your case is prepared with as much information and context as possible. Consultation is useful even if expert testimony is not anticipated. In considering whether expert testimony may be necessary, consider the following:

• Medical, forensic/technical, or toxicology evidence will usually require expert testimony —for example, jurors should not speculate what a .3 blood alcohol content (BAC) means for a person’s ability to consent, perceive/recall events, or engage in other activities. Nor should they be asked to conclude on their own whether injuries are consistent with the victim’s account of the attack. See Appendix F on Considerations for Working with Experts and Appendix G on Stages of Acute Alcohol Influence/Intoxication.
• How effectively can the victim explain his or her own behavior during and after the assault? How understandable would the explanation sound to someone untrained in sexual assault dynamics and victim responses to trauma?
• Are there other factors that jurors might find confusing or troubling, such as an absence of visible physical injury? Were there tests, examinations, or analyses not performed because they were deemed unlikely to produce any useful information? The significance of the absence of certain types evidence should be explained by an expert to avoid jury speculation.
• Also consider whether an expert is appropriate for a specific case and/or jury as well as the costs of retaining an expert.²²⁸

Meet with potential expert witnesses in person, well in advance of trial, to discuss their qualifications, the content of their proposed testimony, the scientific foundation for their opinions if necessary, and the content of any mandatory expert report.²²⁹ Obtain the expert’s most recent C.V., which should be provided to the defense.

File appropriate and timely motions to introduce expert testimony.²³⁰ See 3.3-G for tips regarding the introduction of expert testimony at trial. Provide appropriate notice to the defense and the court so any disputed issues can be resolved well in advance of trial.

Become familiar with your jurisdiction’s evidentiary rule on expert testimony²³¹ as well as any case law governing the admissibility of expert testimony on victim behavior, SAKs, toxicology, DNA, etc.

The admissibility of expert testimony to explain victim behavior varies widely across jurisdictions; in conducting legal research on the caselaw, search for cases involving both child and adult victims of sexual assault, as well as victims of domestic violence – including cases involving the admissibility of expert testimony on the behalf of defendants who raise battering or abuse as a defense.

Another analogous type of expert testimony is that of specially trained or experienced police officers who testify about drug distribution or gang activity. Determine whether the admissibility of a specific type of expert testimony is governed by Daubert or Frye.²³² Absent authority (statutory or caselaw) from your jurisdiction, research other jurisdictions with similar evidence rules that may have persuasive caselaw.

Discuss with your expert how to respond to defense requests for an interview.²³³ The expert, like any other witness, is free to agree or refuse an interview by the defense, but refusal may result in defense suggestions of bias when the expert is cross-examined at trial. You can ask the expert to let you know if the defense contacts them and what was discussed, which may provide some insight into defense strategy or possible weaknesses that should be addressed with the expert before trial.

It is advisable to be familiar with the proposed expert’s social media activity. The defense is likely to research the expert’s online activity, and any posts regarding specific cases or sexual assault allegations are usually fair game for cross-examination — for example, to support a claim of bias. Any troublesome posts should be discussed with the expert so you both are prepared to respond to such questioning at trial.

The defense may be planning to present expert testimony, as well, either to rebut or undermine the testimony and conclusions of the prosecution’s expert(s) or to support a defense such as intoxication or mental disease/defect.

• If the defense is presenting expert testimony in support of a defense, you will usually want to present your own expert in rebuttal. Find one and prepare that expert as you would one called in your case in chief.
• The defense is required to provide pretrial notice of an intent to present expert testimony. If you have not received notice of intent to call an expert, inquire on the record during a pretrial conference or hearing whether the defense will be calling any experts. If the answer is “no,” then any attempt to present expert testimony during trial should be barred. If the answer is “yes,” insist upon a deadline, well in advance of trial, for production of the expert’s C.V. and a report or summary of the proposed testimony.
• Consult with your expert to review the report or summary from the defense expert.
  • Use your expert’s suggestions to prepare for an interview of the defense expert.
  • Review the defense expert interview with your expert afterwards, and follow up with the defense about any unresolved issues.
• If the defense expert refuses to meet with you, prepare to cross the expert on that issue (assuming, of course, that your own expert was responsive to the defense’s request).
• Carefully inquire of the defense expert the basis for their opinion, e., the information or authorities relied upon. Was the expert provided with only selected reports or statements? Does the opinion rely solely on the defendant’s version of what occurred? Does the expert accept the authority of widely recognized experts in the field?
• Prepare to challenge the defense expert’s qualifications prior to trial. Research the defense expert’s professional history and training, and find out from other prosecutors, including those in nearby jurisdictions, whether they are familiar with this expert and their qualifications. For example, a general medical doctor with no specific training or experience in sexual assault forensic exams would lack the requisite expertise to provide an opinion concerning the significance of absence of physical injury.
• If the challenge is unsuccessful, prepare a cross-examination to highlight the defense expert’s deficiencies in expertise, unfamiliarity with the area’s wide scope of literature, and degree to which the opinion contradicts scientific consensus on the issue. Your expert should be able to suggest areas for cross-examination of the defense expert at trial.

The below sections briefly discuss the types of issues that will arise in a case and how experts can help prepare the case and provide testimony at trial. See Appendix F to help identify experts who can assist with specific issues that may arise in a case.

3.2-A-1. Victim Behavior²³⁴

Public perceptions about how victims should respond to physical and emotional trauma often conflict with their actual responses, and such misconceptions can significantly impact juror assessment of victim credibility. Victims have individual responses to trauma; different victims could survive the same attack and have very different reactions.

It is important to communicate to the jury that there is no “typical” response. Consider whether a victim behavior expert witness would be beneficial in your case, given the facts and the victim’s ability to explain her/his own behavior.

Remember, too, that identifying an expert and putting that expert on your witness list does not commit you to presenting that expert testimony; you can make the final determination about the need for expert testimony after the victim testifies.

Professionals you might consider calling as experts in victim behavior include:

• Advocates
• Counselors
• Therapists
• Psychiatrists and psychologists
• Law enforcement
• Healthcare professionals (g., SANE)
• Scholars

Experts in victim behavior should not be asked to provide an opinion as to whether the victim in this case was sexually assaulted, a victim of trauma, or truthful in their report or testimony; this applies to defense experts as well, and prosecutors should object to any attempts to introduce this type of testimony. Rather, they should be used to educate the factfinder by describing, in general, the varied responses to trauma during and after a sexual assault.

To maintain victim privacy and the integrity of the case, do not use a victim behavior expert who has been working with the victim – such as the victim’s own advocate, counselor, or therapist. Doing so would blur the lines between the experts’ testimony on victim behavior and an assessment of the victim’s credibility; it would also open the door to defense requests to examine the victim’s counseling records.

Most jurisdictions have clear rules or caselaw permitting expert testimony to explain victim behavior, but it is still important to carefully review statutes and caselaw to determine what type of experts are permitted to testify and the scope of that testimony.²³⁵

Like any other expert, victim behavior experts must be qualified, but their qualifications may be accepted largely on the basis of their training and experience, rather than by standards more strictly applicable to scientific evidence.²³⁶

3.2-A-2. Medical Evidence

The absence of physical injury can present difficulty for criminal justice professionals — either because they lack training about its prevalence or significance (causing them to doubt the victim’s report) or because they believe jurors will refuse to convict in a sexual violence case without injury. Review the victim’s medical records with a medical professional (e.g., SANE or trained ER physician) and discuss the findings and documentation to ensure a thorough and accurate understanding.²³⁷

Treating medical professionals (provided they have sufficient training and experience) or others may be qualified as experts in the area of sexual assault and associated medical treatment and findings.²³⁸ Expert medical testimony is important evidence, as jurors often mistakenly believe that sexual violence victims will invariably have serious vaginal and other injuries.²³⁹ On the contrary, research has shown that in cases of sexual assault involving adult female victims, vaginal and other physical injuries are the exception rather than the rule.²⁴⁰

In cases of alcohol-facilitated sexual assault, expert witnesses can testify that incapacitated patients are statistically significantly less likely to have genital and non-genital trauma than patients who were not incapacitated at the time of the assault.²⁴¹ A medical expert can also explain the relevance of anatomy to the likelihood of genital injury and, where helpful, the fact that the most common type of non-genital sexual violence injury is bruising to the arms and legs.²⁴²

During the case in chief, the prosecutor’s job is to establish all the elements of the crime, which may include penetration. An expert can testify about available research on injuries associated with sexual assault, and explain that a lack of physical trauma is generally not inconsistent with this crime.²⁴³

Expert testimony explaining the significance of injury or lack thereof can make the difference between a verdict of guilty or not guilty. In addition, you must understand your law’s definition of “penetration,” as usually the slightest degree is sufficient.²⁴⁴ However, even if only slight penetration is required, if the victim describes full or complete penetration, absence of injury should be explained lest the jury conclude the victim is untruthful or exaggerating.

In addition to questions about injury, elicit testimony to address the general consistency of the victim’s account with the findings, describe unfamiliar anatomical or medical terminology, and (where relevant) explain the significance of sexually transmitted infections (STIs).

As with all experts, you will need to qualify them prior to testimony. It is crucial to emphasize a medical expert’s training and experience in the examination and treatment of sexual assault victims, including in the effects of emotional trauma. Finally, make sure any medical testimony is easy for the jury to comprehend by having your medical expert use terms and examples easily understood by the average juror. ²⁴⁵

3.2-A-3. Toxicology

Research shows that alcohol and drugs are commonly used to facilitate sexual assault.²⁴⁶ Because of the prevalence of intoxication in both victims and perpetrators, it is important to understand the effects of alcohol and drugs on behavior (before, during, and after an assault) and on memory.²⁴⁷ One should also consider the effect of alcohol or drugs on the memory of any witnesses.²⁴⁸ Consult with experts on toxicology in order to properly analyze cases where the victim, offender, or witnesses are intoxicated.

Testimony by toxicologists can help establish elements of the crime, such as a lack of capacity to consent.²⁴⁹ A toxicologist can explain the effects of alcohol or specific drugs on memory²⁵⁰ and psychomotor skills, extrapolate blood alcohol content (BAC)²⁵¹ to the approximate time of the offense, and review evidence to suggest further investigations that may be helpful. Toxicologists can also help rebut defense claims regarding the intoxication of the victim, offender, or witnesses.²⁵²

3.2-A-4. Technology

Technology has changed how individuals interact with the world around them. Smartphones, digital tablets, and computers are constantly used to stay connected with friends, family, and colleagues. Criminals likewise are using technology to commit crimes or to communicate with others, leaving trails of digital evidence.²⁵³ In a sexual assault case, technology may become a factor in several ways. There may be video recordings or digital photos of the crime itself, as well as messages and posts about the crime that can be found on cell phones or posted to social media.

Prosecutors must be familiar with the following:

• Crimes may be perpetrated, recorded, and documented using technology.²⁵⁴
• Victims may be traumatized by the dissemination of intimate photos or videos, whether created consensually or not.
• Digital evidence can be preserved and obtained for trial.
• Victim privacy can be protected by carefully redacting cyber evidence to provide defense counsel with only the exculpatory information, relevant and material to the case. Any redactions should be clearly noted.
• Prosecutors can protect victim privacy and safety during the discovery process by moving to limit access to intimate photos or video.²⁵⁵
  • In some jurisdictions, prosecutors may be permitted to fulfill their discovery obligations by permitting the defense to view the evidence under supervised conditions rather than providing a digital copy.
  • If a copy must be provided (g., for purposes of review by defense expert), the prosecutor should obtain a protective order prohibiting copying or further dissemination of the copy and requiring its return to the prosecutor at the conclusion of the case.

• Digital evidence can be admitted at trial through testimony of a witness, a forensic examiner, or custodian of business records (or by a business records affidavit).²⁵⁶

3.2-A-5. DNA and Forensics

Juries may expect DNA and other forensic evidence to be presented at trial and may be skeptical about the quality of the investigation when it is not. Prosecutors should understand the relevant science to inform their decisions about whether and how to present such evidence.

Carefully consider what questions should be asked of the experts to best explain the relevance or significance of test or comparison results. If certain tests or examinations were not performed, consider having the expert explain why — whether the sample was inadequate or compromised in some way, or whether testing was deemed unnecessary for some reason. Jurors should feel confident, at the conclusion of the case, that all appropriate investigation was conducted.²⁵⁷

With DNA testing, there are numerous steps involving multiple lab technicians who may participate in the testing of a single sample. Failure to call to the stand all the technicians involved in the testing may result in a defense objection to the testimony of the analyst who interpreted the raw data to reach a conclusion about the contributors to any samples collected from the victim.

The defense may contend that the defendant has a right to confront each of the technicians involved in the testing. The United States Supreme Court considered this issue in Williams v. Illinois,²⁵⁸ but the plurality opinion in that case reached no definitive conclusion. Similar issues have been decided, with disparate results, since Williams in 2012. Prosecutors should be aware of the potential issue and carefully consider which witnesses must, or should, be called for trial.²⁵⁹

Similar confrontation issues may exist for cold case prosecutions in which the original expert is no longer available for trial. Courts — and prosecutors — continue to grapple with these issues, with varying outcomes around the country. Seek guidance from your appellate unit, your state Attorney General’s Office, or AEquitas for assistance in proceeding in such cases.²⁶⁰

Be familiar with statutory requirements for the admission of DNA evidence in your jurisdiction, such as notice to the defense, production of the results, and response to discovery requests for other materials related to the testing/lab protocols.

3.2-B. File Motions to Shield Victims and Expose Defendants

In its quest to undermine the victim’s credibility, the defense may seek to introduce irrelevant evidence of past sexual behavior, gain access to private medical and mental health records, attack the victim’s character, and more. Defendants and their allies may engage in subtle or

overt intimidation to prevent the victim from testifying.²⁶¹ Prosecutors should proactively protect victim privacy and the integrity of the prosecution by filing appropriate pretrial motions. This section will discuss the most common motions that arise in sexual assault prosecutions.²⁶²

3.2-B-1. Use Rape Shield Laws to Exclude Irrelevant and Prejudicial Evidence²⁶³

Rape Shield laws exist in every jurisdiction in the country.²⁶⁴ Their purpose is to exclude irrelevant evidence of a victim’s sexual history and behavior.²⁶⁵ Whether codified in the jurisdiction’s rules of evidence or in its criminal code, all such provisions require the exclusion of the victim’s sexual history unless the evidence comes within a specified exception.

The most common exceptions to Rape Shield laws are:

• Evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
• Evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
• Evidence whose exclusion would violate the defendant’s constitutional rights.²⁶⁶

A common defense tactic is to attempt to introduce this evidence under one of these three exceptions, often relying on the third and final catchall for evidence whose exclusion would violate the defendant’s constitutional rights. In responding to motions to admit such evidence, research the relevant case law in your jurisdiction, but do not overlook the value of research demonstrating the tenuous relevance of such evidence on issues of consent and credibility.

While the defense has the obligation to seek the court’s approval before introducing evidence covered under rape shield, it is best to inquire on the record whether the defense anticipates introducing such evidence.

If you are aware of prejudicial and irrelevant evidence that the defense may seek to introduce at trial, proactively file a motion to preclude it. There is little likelihood of revealing information that will be “news” to the defense, and it is far better to obtain a ruling in advance than to object after the harmful question has already been asked at trial or harmful answer elicited.

Some helpful strategies for filing, or responding to, rape shield motions include:

• Identify and familiarize yourself with the evidence in your case.
• Determine whether your statute applies only to victims or to other witness as well.²⁶⁷
• Be aware of the time requirements for defense motions and proactively inquire on the record whether the defense plans to introduce such evidence, specifying any evidence you are aware of that the defense might attempt to introduce.
• Litigate the admissibility of rape shield evidence in advance of trial whenever possible.
• If the defense disclaims any intention of introducing rape shield evidence, request an appropriate order prohibiting the defense from referring — during jury selection, opening statement, examination of witnesses, or otherwise — to the victim’s alleged sexual history or other conduct.
• If the court chooses to defer ruling on the evidence based upon a need for additional testimony, request that a hearing be scheduled without delay. If the court indicates its reluctance to decide the issue until the case has been more fully developed at trial, request an order that the defense not refer to the disputed evidence until the court has ruled on its admissibility.
• Be sure to prepare your trial witnesses (and appropriately redact exhibits such as medical history) to avoid references to evidence the court has ruled inadmissible. You do not want to inadvertently open the door to this evidence.
• File a rape shield motion whenever the prosecution wishes to introduce a victim’s/witness’s prior sexual history, if it is relevant to some issue in the case (g., in a human trafficking case with collateral sexual assault charges).
• In cases where the victim is a sexually exploited person, determine whether that sexual history is relevant to any issue in the case and where not relevant, proactively file a motion in limine to exclude the history of commercial sexual exploitation.
• It is important to recognize that there may be cases in which you decide, after consulting with the victim, to introduce evidence that could be excluded under rape shield. The wisdom and desirability of presenting such evidence should be considered on a case-by-case basis after careful consultation with the victim.²⁶⁸ Remember to evaluate the significance of apparently consensual sex in a relationship characterized by intimate partner violence. What may appear to be consensual sexual activity may have been coerced in the context of the violent relationship. Such acts may be evidence supporting similar coercion in the present case.

3.2-B-2. Introduce Evidence of Other Crimes and Bad Acts Where Relevant ²⁶⁹

Federal Rule of Evidence 404 and equivalent state, tribal, or military evidence rules²⁷⁰ prohibit the introduction of evidence of a crime, wrong, or other act to prove a person’s character in order to show that that the person acted in conformity with that character trait on a particular occasion. In the criminal context, this translates to a general prohibition on evidence tending to show that the defendant has a propensity to commit a particular crime.²⁷¹

The rule, however, is often considered to be one of inclusion rather than exclusion; in particular Federal Rule of Evidence 404(b) permits evidence of such acts to prove matters other than propensity — issues such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The listed purposes are not exclusive; generally, any legitimate issue relevant to proof of the crime or of the defendant’s guilt (e.g., consciousness of guilt) can be grounds for admitting such evidence. Sometimes referred to as other bad acts, such evidence can consist of uncharged or unreported acts, prior convictions, or possibly prior acts for which the defendant was acquitted of any crime.²⁷² Some jurisdictions, however, explicitly do allow propensity evidence in sexual violence cases.²⁷³

Evidence of other bad acts can be a valuable tool in sexual violence prosecutions, as it can demonstrate the predatory aspects of the defendant’s acts and present a more complete picture of their criminal culpability. Prosecutors can employ the following strategies to identify and admit this evidence:

• Check your jurisdiction’s law to determine the categories of other acts evidence specified in their rules of evidence (or other statutory provisions) and how those categories, and other permissible purposes for which the evidence may be introduced, have been analyzed by the courts. Especially note whether your jurisdiction permits evidence of propensity.²⁷⁴
• Review police reports, interviews, and criminal histories — and obtain the files from other cases, whether adjudicated or not — to search for relevant evidence of defendant’s prior crimes or bad acts that may be applicable to the proofs in your case.
• Find out whether the victim has knowledge of others who may have been victimized.
• Some relevant bad acts may have been committed by the offender subsequent to the sexual assault. These acts may be evidence of consciousness of guilt or, when charged, substantive evidence of stalking, witness tampering, violation of court orders, etc.
• Working with law enforcement and advocates, identify witnesses to any relevant acts involving victims unrelated to the current case.
• Comply with notice provisions required by your rules of evidence, including providing discovery to the defense.
• Identify all purposes for which the evidence might be admissible.
• Be prepared to show that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.²⁷⁵
• Research the applicable case law to determine the appropriate standard of proof of the other act²⁷⁶ and the procedural requirements for a motion (g., whether an offer of proof is sufficient or whether testimony is required).
• Consider drafting a proposed limiting instruction to be given at the time the evidence is admitted and again at the conclusion of the case. The instruction should specify the purpose(s) for which the evidence may be considered and should specifically instruct the jury not to consider it as evidence of the defendant’s character or propensity to commit similar acts (unless, of course, your jurisdiction permits evidence of propensity). Providing the proposed instruction at the time of your motion may help to persuade the judge that admission of the evidence will not be unfairly prejudicial.

Ensure that the judge articulates the legal reasoning and analysis supporting a decision to permit admission of the evidence. Request that the court address each of the proffered purposes in the alternative. This can be done orally on the record or by written decision.

Here are a few examples of circumstances where other crimes evidence may be useful and probative.

3.2-B-2-A. Provide Context for Sexual Violence as Part of Broader Abusive Conduct

Acts of sexual violence are often a feature of other types of criminal conduct: intimate partner violence, human trafficking, or gang activity. In such cases, the broader course of criminal activity places the act of sexual violence in a specific context — to terrorize or control and intimate partner; maintain subjugation of a trafficking victim; punish an errant gang member or intimidate others as part of gang activity.

The overall context of the violence is important to understanding why the act was committed, its intended impact on the victim or others, and effect on victim behavior. Evidence the offender engaged in stalking, although often overlooked, may often precede, follow, or co-occur with a sexual assault.

3.2-B-2-B. Expose Perpetrator’s Intent, Purpose, and Plan

In sexual violence cases, defendants will commonly raise a consent defense. Evidence of other acts can help overcome this defense by, for example, establishing the perpetrator’s plan, intent, or preparation for the assault. In some cases, a defendant’s methods of carrying out the assault will be so distinctive that previous assaults can be used to identify, or support the identification of, the defendant; see 3.2-B-2-E below.

Other acts may help to prove the defendant’s intent or plan. For example, assaults involving the same plan to offer an intoxicated victim a ride home after friends have left the victim alone at a bar helps show that this was part of a predatory plan.

3.2-B-2-C. Establish a Motive

Prior assaults of sexually exploited persons, featuring derogatory statements toward the victims, could help to prove this defendant was motivated by hatred for sexually exploited persons or the need to punish them.

3.2-B-2-D. Challenge a Claim of Mistake or Accident

Repeated accusations of assault upon a victim who was incapacitated due to intoxication would help to prove the offender was not mistaken about this intoxicated victim’s ability to consent.

3.2-B-2-E. Proof of Identity

Where identity of the perpetrator is at issue, evidence of “signature crimes” may be admissible. If, for example, the defendant is on trial for an incident of sexual violence in which he abducted his victim in a public park at night, asking for help finding his lost dog, and then released the victim after apologizing and saying she reminded him of his first girlfriend, then evidence of another incident of sexual violence with those same elements, in which the defendant was positively identified, could prove he was responsible for the present assault as well.

This prong of 404(b) is the most difficult to establish, and the most vulnerable to attack on appeal, because it requires the similarities be sufficiently unusual to amount to a “signature” – making it unlikely that anyone other than the defendant was the perpetrator; mere similarity and common features between the crimes are not sufficient.²⁷⁷

3.2-B-3. Proceeding to Trial on a Case with a Nonparticipating Victim

The challenges presented in the course of investigating and prosecuting sexual violence cases can be daunting. Among the most difficult of these obstacles is the inability or unwillingness of victims to participate in the process. This reluctance may be based upon a variety of factors, including the effects of trauma and/or victim’s fear, shame, distrust of law enforcement, or poor treatment by the system.

Though not impossible, it is extremely rare to proceed to trial without victim testimony because the prosecution must prove that the victim did not, or was unable to, consent. Typically, this evidence of nonconsent comes in the form of the victim’s testimony.

Sexual violence prosecutors proceeding without the victim’s testimony should consider impact of Crawford,²⁷⁸ potential applicability of forfeiture by wrongdoing,²⁷⁹ and the efficacy of trying the case without the victim’s participation.

3.2-B-4. Guard Victim Privacy and Dignity Through Other Available Motions in Limine

Exclude prejudicial evidence:

• Work to identify potential defenses suggested by the discovery, preliminary hearings, plea negotiations, victim interview, defense interviews with fact and expert witnesses, and police investigation.
• Anticipate common defenses or defense strategies related to victim’s character or intoxication.
• Move to preclude irrelevant attacks on the victim’s character based upon specific acts or general reputation.

3.2-B-5. Other Potential Motions

• Consider whether to oppose a defense request for pretrial access to a crime scene that is now occupied by the victim or a third party. If access is permitted, ask the court to impose strict limitations on access. For example, law enforcement should be present to supervise the visit; scheduling should be at the convenience of the occupant (who should be able to decide whether to remain present); access should be limited to one defense attorney and one investigator, with the defendant not permitted to be present; photos and video should be prohibited; sketches or information gathered in the course of the visit should be restricted from public dissemination.
• Unless the suspect consents to any necessary physical examination or collection of biological samples, move for an order to submit to such examination or collection as soon as possible after charging.
• Oppose any defense motions for psychological or physical examination of victim.
• Litigate motions to join/sever counts relating to separate victims, multiple incidents, or multiple offenders as early as possible.
• Litigate motions related to any victims or witnesses with disabilities (g., motion for presence of support object/animal/person; motion governing manner of cross-examination).²⁸⁰
• Where the defendant elects to proceed pro se, file a motion to appoint counsel for purposes of conducting cross-examination of the victim. If the motion is denied and the defendant is permitted to personally cross-examine the victim, move for limits on the conduct of the defendant during cross (g., prohibiting the defendant from approaching the victim on the stand).
• Oppose any defense motion for production of private records or other attempts to pierce confidentiality, including victim’s immigration file and application for a U Visa, where relevant.
• Move for any necessary amendments to the charging instrument not affecting the defendant’s substantive rights (g., typographical/scrivener’s errors; correct language but wrong subsection specified; misspellings of names; minor corrections to dates or locations). If there is insufficient evidence to support one or more of the counts, move to amend to a lesser-included charge or to dismiss, as appropriate. If you determine that proofs on a peripheral count are legally sufficient but weak, consider dismissing such counts if dismissal will better support your overall trial strategy.
• Submit proposed jury instructions where statutory language is untested or where special instructions are anticipated, including instructions about 404(b) evidence. See section 3.3-J on Final Jury Charges and Verdict Sheet.

Provide support for the theory of the case through direct and cross-examination of witnesses.

Closing is the last opportunity to impress upon the jury the case theory. Remember, the goal is not only to remind the jury of the evidence they have heard — including the all-important corroboration of as many details as possible — but to help them make sense of it all.

3.2-D. Anticipate and Overcome Predictable Defenses Resting on Victim Blame and Shame

The typical defenses in sexual assault cases are predictable and rest on the dual strategy of distorting the significance of victim behavior — using it as a means of undermining credibility — while portraying the perpetrator’s behavior as accidental, normal, nonviolent, or welcomed. The prosecutor must carefully prepare to meet all potential defenses and defense strategies.

It helps for the prosecutor to possess a certain mental flexibility to adjust trial strategy (though not the theory of the case) as the evidence unfolds in whatever way that it does. The following sections will address defenses commonly encountered in sexual assault prosecutions and strategies to overcome them.

3.2-D-1. Consent Defense

Cases of sexual violence involving the consent defense are among the most difficult a prosecutor will try. Consent is always an issue in sexual assault prosecutions even when not an available defense, or included as an element of the law.²⁸² You must be prepared to identify and introduce testimony, evidence of the victim’s words or behavior, and other circumstances that cumulatively prove the victim did not consent to the sexual conduct at issue.

Determine how consent is defined in your jurisdiction by consulting statutes and caselaw. Review reports and statements of victim and witnesses, including the defendant and defense witnesses, which provide evidence of victim’s verbal and nonverbal behavior inconsistent with consent. In some jurisdictions, there are specific statutory provisions invalidating expressions of consent induced by coercion, fraud, or intoxication.

The defense strategy will be to discredit the victim’s memory or perception of events (typically where alcohol is involved) or directly challenge her/his credibility, portraying the victim as having “buyer’s remorse” — someone who later regrets a voluntary act.

The defense may attempt to prove a motive to fabricate, question the victim about prior consensual sex with the perpetrator, pierce the rape shield, or present other evidence to impugn the victim’s character for the purpose of making the jury dislike the victim.

Another defense strategy is to minimize evidence of force by focusing on the victim’s prior consensual acts with the perpetrator, characterizing any injury as trivial or an accidental byproduct of “rough sex.” To the extent that defense strategies rely on improper evidence, they can be opposed with pretrial motions.

Victim-blaming strategies not involving improper evidence can be effectively countered at trial through carefully planned testimony and argument. For example, prosecutors can ask victims to describe how they felt during SAK examinations or interviews with the responding officer, and then ask the jury why the victim would endure that humiliating process to punish someone for being merely insensitive or inconsiderate.

While it is never proper for the prosecutor to express a personal belief in the victim’s truthfulness, it is important to always project confidence in the victim’s veracity and reality of the harm suffered.

Remind the jury that no one asks a robbery or burglary victim what they did to bring on the crime. No one would ever suggest that making a charitable donation means that one’s property is free for the taking. No one would contend that allowing a plumber or house painter into the home to make repairs means that one’s home can be entered at will. Unfortunately, sexual consent is somehow perceived differently. But as the examples make clear, individuals retain the right to decide whether, and under what circumstances, they allow someone to take their property or enter their homes. Consent under one set of circumstances does not imply to consent on another occasion under similar or different circumstances.²⁸³

3.2-D-2. Refute an Intoxication Defense

Even where intoxication is not a legal defense, the defendant’s intoxication is almost always found to be relevant. The best strategy is to focus on the defendant’s claim of intoxication and whether it is viable.

It is also important to clearly distinguish the victim’s level of intoxication from the defendant’s. A person’s gender, physical size, quantity of alcohol consumed, individual tolerance, and any food that was consumed are all important factors assessing the potential effects of alcohol.

Consultation with a toxicologist – or with a law enforcement officer having experience assessing levels of intoxication, such as one assigned to handle impaired driver crimes – may assist in understanding the degree of intoxication resulting from drinking. Expert testimony, along with witness observations of behavior, may help to establish the extent of impairment from intoxication.²⁸⁴

Where the defendant’s intoxication is at issue, present any available evidence of the defendant’s purposeful acts and cognitive ability. Could the defendant drive a car, undress the victim, physically support the victim, carry on a coherent conversation? Does the defendant recall other critical details of the events surrounding the incident? Carefully review investigative reports and witness statements. Who was buying the drinks? Did the defendant sign a bar tab? Compare signature with handwriting exemplar or other available signatures of the defendant. Did the defendant play pool, darts, or other games which require a degree of physical coordination?

3.2-D-3. Distinguish Between Intoxication to the Point of Blackout and Pass-Out

Blackouts are alcohol-induced periods of memory loss that occur when the brain’s ability to form long-term memories from short-term memories is destroyed.²⁹² Blackouts are not predicted by BAC only.²⁹³ They are more likely to occur when one’s BAC rises rapidly as opposed to slowly by, for example, consuming shots of liquor, or, quickly drinking a glass of wine or champagne .²⁹⁴

Generally speaking, a person who blacks out will be showing visible signs of gross intoxication and will be drowsy or sleepy. It is critical for investigators to interview individuals who interacted with the victim at a time near the assault.

“Passing out” is alcohol-induced unconsciousness. Sedation occurs as a result of the depression of the central nervous system, and resembles the state of sedation associated with surgery. Unconsciousness can last for hours, and the groggy-sedated feeling can linger for 24 hours.²⁹⁵

Strategies for analyzing the difference between these defenses and overcoming them are in Appendix J on Overcoming the Blackout vs. Pass Out Defense.

3.2-D-4. Debunk the Mistake-of-Fact Defense by Demonstrating How the Victim Communicated Lack of Consent

Mistake-of-fact defenses are grounded in the belief that if a defendant did not know, at the time of penetration or contact, that the victim had not consented to the act – and therefore the defendant should not be convicted of sexual violence.²⁹⁷

This defense is available in more than half of U.S jurisdictions; even where the formal defense is unavailable, the court may still allow a jury instruction to that effect.²⁹⁸ The defense requires that the mistaken belief exist in the mind of the defendant at the time of the act and that the mistake be a reasonable one.^299]

Mistake-of-fact defenses often cause concern among professionals responding to sexual assault crimes because it appears to allow perpetrators a sure way to escape accountability. These fears are not entirely unfounded, because the defense has been used with a measure of success.

However, prosecutors can overcome this defense by demonstrating the unreasonableness of the defendant’s professed belief (e.g., extreme intoxication of the victim leading to difficulty walking or even moving), in addition to looking for evidence that discredits the honesty of the belief.

For example, did the defendant say anything before or after the assault to demonstrate that he knew the victim had not consented or could not consent (e.g., “She was so wasted she couldn’t even remember her own name!”). Highlighting such evidence not only overcomes the defense but also creates stronger cases. Understand the law of your jurisdiction as it applies to mistake-of-fact defenses and be prepared to rebut such defenses when advanced.

3.2-D-5. Reinforce Victim Credibility

Victim credibility is always critical, but is even more heavily scrutinized by factfinders in sexual violence cases; it is important to impress on the jury all the reasons the victim’s report and that his or her testimony should be believed.

Where the facts permit, emphasize that the victim has nothing to gain in this criminal case; the victim is not a party to the case, the state is. Further, although civil avenues are open to the victim, if the defendant is of modest means, how much is a victim likely to recover even if they were to sue? Where the defendant has resources, explaining the financial and emotional costs of the victim pursuing a criminal and even civil case can help demonstrate how unlikely it would be for a victim to endure the litigation process unless their claim was valid.

Stress the details that corroborate the victim’s account — demeanor at the time of the report, during the SAK exam, and/or on the stand; photos of injuries,³⁰⁰ details of medical reports, prior consistent statements to other witnesses, absence of motive to fabricate (which can be contrasted with the defendant’s motive to lie to the police or while testifying). Likely, the defendant’s own statements and testimony, even those that are self-serving, will corroborate many details of the victim’s account. These details should be emphasized. If the victim acknowledges unflattering or embarrassing details, their willingness to do so supports credibility.

Contrast the plausibility of the victim’s testimony with the defendant’s version of what occurred, highlighting aspects of the defendant’s account that do not make sense or are contradicted by other evidence. Eliciting sensory details during the victim’s testimony — what the victim felt, smelled, or was thinking at the time of the assault — gives the testimony a ring of truth.

3.2-E. Where Plea Offers are Appropriate, Ensure the Agreement Reflects the Seriousness of the Assault

Following charging, prosecutors have an ethical obligation to be available to engage in plea negotiations.³⁰¹ There is no legal or ethical obligation, however, to offer a particular defendant a plea agreement of any kind in a criminal case. As part of a plea agreement, a prosecutor may commit to recommending a particular sentence, including, where applicable, conditions of probation or release.³⁰²

In some cases, there is no agreement on a specific sentencing recommendation, but only to the charge(s) to which the defendant will plead guilty, with the other charges to be dismissed. Significantly, the prosecutor cannot commit to the imposition of a particular sentence; only the court has the power to impose sentences.³⁰³

At the time of a plea, the court will question the defendant to ensure that they understand the charges, their rights, and is voluntarily entering a plea. Whether a defendant must provide a factual statement in support of a guilty plea varies from one jurisdiction to another.³⁰⁴

A defendant may be permitted to withdraw a guilty plea before sentencing; in some jurisdictions the plea can be withdrawn at any time before sentencing, while others impose time limits, which may or may not be strictly enforced.³⁰⁵

Before engaging in plea negotiations, and especially before an agreement is finalized, discuss the possibility of a plea with the victim to determine their position on it.³⁰⁶ Some victims wish to avoid testifying if at all possible, while others believe the opportunity is of paramount importance and would prefer the risk of trial to the certainty of a plea, regardless of the offer.

Ultimately the decision to offer a plea agreement is the prosecutor’s, but they should always consider the victim’s wishes in making that decision. In discussions with the victim, it is important to communicate your continued belief in the case, and willingness to go to trial if an appropriate agreement cannot be reached. It is also important to assure the victim that any agreement will still permit the victim to speak at sentencing about the impact the assault had on them.

Victims with mental health concerns may be advised by their doctor, family, or friends not to testify, leading the prosecutor to consider a plea to a lesser offense. In this situation, first explore alternative means to reduce stressors by requesting accommodations in the courtroom (e.g., a support person, object, or animal) to ease the victim’s anxiety and distress.

In extreme cases, where there is a risk of serious emotional harm to the victim as a result of testifying, the most appropriate disposition is the one that ensures victim safety – the top priority.

Plea negotiations can occur at any time after arraignment and, technically, up until the return of a verdict. Defendants are frequently reluctant to plead guilty to sex offenses because of the collateral consequences, including registration requirements, so it is not unusual for these defendants to offer to plead guilty to a non-sexual offense (such as kidnapping or aggravated assault), even for a lengthy prison term. Such pleas are often perceived as contradictory to the prosecutor’s mandate to seek justice and protect the public, which has a strong interest in exercising maximum control over individuals who have committed sex crimes.

Sometimes the prosecutor will determine that only a trial will satisfy the interests of justice in a particular case. In such circumstances, a defendant who wanted to avoid a trial could plead guilty to all of the charges without a recommendation as to sentence.

If there is a recommended sentence, it is important to note that courts are not bound by plea negotiations and may determine the recommended sentence is either inappropriately lenient or severe. The court has the power to “undercut” the agreement, but not impose a greater sentence; if the court believes the sentence is too lenient and is unwilling to impose it, the defendant has the right to withdraw the plea.³⁰⁷

A plea in a sexual assault case can be appealing where evidence is scarce or so complex that the prosecutor is concerned about juror perceptions. Plea agreements may be appropriate as a means of conserving finite resources, provided that an appropriate outcome can be achieved without a trial.

It is important, however, for prosecutors to examine their motives — particularly where the agreement under consideration involves a plea to a non-sex offense or a sentence significantly lower than what could be achieved after conviction at trial.

It is important to ensure that the reasons for considering such a plea are not attributable to causes that can be remedied by meticulous preparation; increased efforts to understand the evidence or engage the victim; additional investigations; further consultation with experts, technical assistance providers (such as AEquitas), or colleagues who can provide mentoring with regard to gaps in trial skills or techniques; supplementary review of the relevant research (both legal and non-legal), and a continued willingness to explore alternative strategies to prove the case. Most of the problems encountered at trial, and their solutions, are addressed within this RSVP Model.

It is important to be consistent across various office units with regard to what is considered an acceptable outcome — one that ensures community safety and  satisfies the need for general and specific deterrence as well as the victim’s wishes.

Making informed and responsible plea offers allows resources to be expended on cases where no such resolution can be reached. Recognize the value to the victim and the community in trying complex cases versus pleading them for charges/sentences substantially less than the crime warrants.