November 2013: Understanding Jury Expectations
Understanding Juror Expectations for Those Prosecuting and Investigating Child Sexual Assault Cases
This month’s Missing and Exploited Children’s Program (MECP) newsletter provides investigators and prosecutors with tools and resources for successfully investigating and prosecuting child sexual abuse. Historically, these cases have proven to be difficult to investigate and prosecute, but as we are learning now, for jurors, the challenge is for them to accept the realities of such horrendous crimes.
To help us explore the topic of juror expectations, our first article summarizes this month’s MECP webinar presentation by Chuck Gillingham, Supervising Deputy District Attorney from Santa Clara County, CA. Mr. Gillingham provides considerations for law enforcement and court personnel who are involved in the investigation and presentation of child sexual assault cases. Our second article is by Keith Burt, Retired Deputy District Attorney in San Diego, CA, who shares his expertise in preparing cases for trial, working with victims, and presenting cases to juries. Finally, we provide an overview of resources available from the American Bar Association’s Center for Children and the Law on their training, technical assistance, and other resources offered to criminal justice practitioners working in this field.
We hope this issue of the newsletter will better prepare you for responding to child sexual abuse cases, and alert you to some of the resources that are available to help you prepare for trial.
Webinar: Understanding Juror Expectations for Those Prosecuting and Investigating Child Sexual Assault Cases
Last month, MECP invited law enforcement and court personnel to view November’s presentation, Understanding Juror Expectations for Those Prosecuting and Investigating Child Sexual Assault Cases. Chuck Gillingham, Supervising Deputy District Attorney, Santa Clara County Office of the District Attorney, described recent studies on jurors’ expectations and their reactions to testimony and evidence in child sexual abuse cases. Mr. Gillingham discussed the impact of juror expectations on the investigatory process and offered his thoughts on how sexual assault cases should be prepared in order to meet expectations and ultimately present a winning case.
This presentation is only available to law enforcement and court personnel and requires pre-authorization. The approval process is based on our discretion. If you are law enforcement or court personnel, please register here (CLOSED).
Considerations for the Investigation and Prosecution of Child Sexual Abuse Cases
Provided By: Keith Burt, Retired Deputy District Attorney in San Diego, CA
The Role of the Investigation-Prosecution Team
Law enforcement and prosecutors share a public trust that they will protect the community from harm. Nowhere is that trust tested more than in the area of child sexual abuse cases. Effective investigation and prosecution of child sexual abuse cases requires a comprehensive understanding of the nature of the crime and the unique harm that attends it.
The prosecutor should proceed bearing in mind the goals for the case: salutary outcomes for the victim, proper application of the law to the facts by the jury in reaching a verdict, a just disposition for the perpetrator, and community understanding of the resolution. The prosecutor’s focus on these goals should never waver – from the crime scene through the investigation, witness interviews, victim interviews, evidence collection, court appearances, trial, sentencing, and post judgment.
The Team Approach
Effective teamwork involving both the prosecutor and law enforcement is necessary for success. Even better is implementation of a multidisciplinary team (MDT). A child sexual abuse case has collateral effects on many sectors of the community. The MDT includes other disciplines, such as child protective services (CPS), special medical staff (e.g., a sexual assault nurse examiner, or SANE), and others, into the process. MDTs increase the likelihood of minimizing residual harm to the victim, reduce the consequences to the community, and enhance opportunity for a successful resolution.
In Contemplation of the Jurors
The possibility of a jury trial should inform the progress of the case from the outset. One of the most critical determinations in the case (felony conviction of the perpetrator) may ultimately be decided by a jury. Scientific studies have confirmed what prosecutors have known about jurors anecdotally for decades. Jurors come to court with significant misunderstandings about child sexual assault and its victims. Recent research studies have found the following:
- Up to 50% of jurors mistakenly believed that most sexually abused children sustain a physical injury from the act.
- Some 20% maintained the stereotypic image of a child molester as “a dirty old man.”
- More than one-third of jurors wrongly believed that child sex abuse victims actively resist, cry for help, or seek to escape.
- Over 30% did not believe children can remember well enough to be reliable witnesses.
- More than 30% did not believe that children are capable of distinguishing between the truth and a lie.
- Roughly 30% were not aware that children can be manipulated or misled into making a false report of sexual abuse.
- Over 50% believed “that repeatedly asking open-ended questions (e.g., ‘What else happened?’) could lead to untrue allegations.”
- These misconceptions cut both ways, depending on which particular fallacy is operative, so it behooves both sides of the case to correctly educate the jury not only as an ethical and moral compulsion but as a matter of practicality.
Need for Experts
The foregoing findings of jurors’ misapprehension of the realities of child sexual abuse victims suggest that an expert witness could help jurors properly evaluate the testimony of a child witness or related evidence, which could benefit both the prosecution and the defense. Expert testimony during trials regarding what is commonly referred to as Child Sexual Abuse Accommodation Syndrome (CSAAS) has been found to help jurors understand and properly evaluate evidence. An important caveat is that while many states have established case law allowing for such evidence, others restrict its use or ban it entirely.
The effects of child sexual abuse on victims are regularly described as devastating, and research demonstrates that the effects are long lasting. In addition to physical injury, victims often suffer depression and other manifestations of psychological trauma, including substance abuse, sexual maladjustment, shame, self-destructive behavior, and guilt, among many others. This is particularly true when the perpetrator is a family member. Other manifestations of traumatization are delayed disclosure, inconsistent reporting, and recantation. It is important for those involved in the prosecution to know that studies have shown that the latter symptoms are commonly believed to be evidence of fabrication by the victim, which is incorrect.
A critical aspect of acquiring admissible and credible evidence from the victim is the involvement of a trained investigator or counselor who uses modern forensic interviewing techniques during a recorded interview. Such interviews also facilitate jury understanding of the evidence. When collecting tangible evidence, the importance of physical evidence to the jurors should be considered. Regardless of the so-called “CSI effect” being positive or negative for the prosecution or defense, it is clear from various studies that jurors expect physical evidence in trials and many expect such evidence to resolve the case for them. This is because physical evidence often discredits or corroborates a witness’s testimony and thus her/his credibility. In child sexual assault cases, the need to present corroborating evidence cannot be overemphasized.
Finally, it is important to understand one’s role. For the prosecutor, it is the pursuit of justice, which includes objectively investigating and prosecuting the case.
American Bar Association: Center on Children and the Law
The American Bar Association’s Center on Children and the Law strives to improve children’s lives through the advancement of law, justice, knowledge, practice, and public policy. The center offers training and technical assistance on a variety of topics, including child welfare trial skills, substance abuse in child welfare, parent representation, foster care and education, infant and toddler health, and many other issues.
For more information about ABA and its current projects, trainings, and resources please visit: http://www.americanbar.org/groups/child_law/what_we_do.html.
January 15–17, 2014: 21st Annual Children’s Law Institute. The Children’s Law Institute (CLI) is a statewide, multidisciplinary conference addressing issues of importance in child welfare and juvenile justice. CLI has grown from a small gathering of lawyers to an event that attracts more than 1,000 educators, child welfare workers, judges, lawyers, juvenile justice personnel, advocates, foster parents, young people, lawmakers, and others. The event is sponsored by New Mexico State University’s Southwest Region-National Child Protection Training Center. To register for this event, please visit: http://swrtc.nmsu.edu/cli-2/2014cli.
January 26–31, 2014: The 28th Annual San Diego International Conference on Child and Family Maltreatment. The Chadwick Center proudly announces the 28th Annual San Diego International Conference on Child and Family Maltreatment, which will feature an array of speakers discussing evidence- and research-based practices, as well as current thinking and new ideas. International experts and practitioners in the field will explain science-based interventions based on practical experience and real-world solutions. For more information, please visit: www.sandiegoconference.org.
MECP’s Training Center
Request Training and Technical Assistance From MECP. MECP offers training and technical assistance tailored to meet the specific needs of State, local, and tribal law enforcement agencies, nonprofit organizations, and other juvenile justice practitioners. For more information on how your agency or organization can receive training and technical assistance on missing and exploited children’s issues, please contact MECP at 1–888–347–5610 or [email protected]. To submit a request for training and technical assistance, please complete a training and technical assistance form.
 Allegations of child sexual abuse are also difficult to defend against.
 See Swerdlow-Freed, D.H. (n.d), Juror Knowledge of Child Sexual Abuse and the Role of Expert Testimony, retrieved from http://www.drswerdlow-freed.com/articles/juror-knowledge-of-child-sexual-abuse-and-the-role-of-expert-testimony; Morison, S., & Greene, E. (1992), Juror and expert knowledge of child sexual abuse, Child Abuse and Neglect, 16, 595–613; and Quas, J.A., Thompson, W.C., & Clarke-Stewart, K.A. (2005), Do jurors “know” what isn’t so about child witnesses? Law and Human Behavior, 29, 425–56.
 Compare, for example, California, Connecticut, and Kentucky.
 Browne, A., & Finkelhor, D. (Jan 1986), Impact of child sexual abuse: A review of the research, Psychological Bulletin, 99, 66–77.
 See Shackel, R.L. (2008), The beliefs commonly held by adults about children’s behavioral responses to sexual victimization, Child Abuse and Neglect, 32, 485–95.