Criminal Sexual Conduct (CSC) cases often require expert testimony to achieve an acquittal[/caption] Criminal Sexual Conduct (CSC) cases are unique in so many ways that they deserve their own sub-category within the world of criminal cases. The fact of the matter is, while your average Criminal Defense Attorney should be more than competent to handle a typical drunk driving, retail fraud, or possession charge, only an experienced Michigan Criminal Sexual Conduct Attorney will even begin to be aware of the intricacies of CSC cases that could mean the difference between your freedom and the rest of your life in Prison and on the Sex Offender Registry (SORA).
This is serous business, and the issues in your case require serious consideration. Along with DNA evidence, scientific principles, complex Michigan CSC laws and definitions, and forensic interviewing, one major factor that distinguishes an excellent Criminal Sexual Conduct Lawyer from your average "general" Criminal Defense Lawyer will be their knowledge of when and how expert witnesses should be used in your defense. In-fact, there are certain cases where Michigan CSC laws all but require your Defense Attorney to consult with an expert witness - but if you ask 9 out of 10 Criminal Defense Attorneys in Michigan, most of them will have no idea that the law requires this!
Why does this matter? Because having an expert witness for your defense against CSC charges can win your case and lead to your acquittal of the charges. As a general matter, the accused could potentially call an expert witness to the stand to testify about any topic. There are no "hard and fast" rules for what things an expert witness can testify to, and the list is forever expanding - it is technically possible for you, as a person accused of Criminal Sexual Conduct, to present expert testimony on any topic you wish within the limits of the law.
For example, you may recall that the Casey Anthony trial made headlines when Judge Belvin Perry, Jr. allowed controversial new "dog sniff" expert testimony for the first time ever in an American courtroom. All the law requires is that the Judge determine that the expert's "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Assuming that is true, the expert must obviously be "qualified as an expert by knowledge, skill, experience, training, or education."
Finally, the testimony must meet what is known as the "Daubert standard" - (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Now even though we have Judges applying these laws and coming to controversial decisions allowing new "dog sniff" expert testimony (what some would call "junk science"), other sciences that have been around for a long time, like Polygraph test results, have never met this legal standard and therefore are generally not allowed as evidence at trial anywhere in the United States.
RELATED: Should You Take a Polygraph in a Sexual Assault Case?
In Michigan Criminal Sexual Conduct cases, there are as many types of possible expert witnesses as there are issues in CSC cases (DNA, etc.). But in this article, when we refer to expert witnesses, we are talking about the most common type - clinical and forensic expert witnesses that testify to psychological factors that would bring the reliability your accuser's story into question. For these type of experts, our Courts have specifically defined some things that they can and cannot testify to. Here are some things that our Courts will allow a qualified expert to testify to to help you fight your Criminal Sexual Conduct charges (assuming your case is a certain type of CSC case):- Child Forensic Interviewing: in the case of First Degree Criminal Sexual Conduct or Second Degree Criminal Sexual Conduct, did the forensic interviewer properly follow the Michigan DHS Forensic Interviewing Protocol when interviewing your young accuser at CARE House, Kids Talk, the Child Advocacy Center, or other forensic interview place? If not, the expert may testify that studies show that such failures can produce unreliable stories by the accuser.
- Memory: is the memory of your accuser reliable? Even where the accuser has come to believe they are being truthful (and thus may appear truthful on the witness stand - think of the wrongful CSC conviction stories in the news), an expert can explain how the process of memory is a constructive one. Memory does not reflect reality, and it is even possible to have a false memory of an event that never occurred planted in someone's mind.
- Suggestibility: is your accuser "under the influence"? By the time your accuser undergoes a forensic interview or testifies in Court, they will have spoken to numerous individuals about their allegations. Was one such person an angry parent or spouse who spoke about you with hatred? Were they threatened or rewarded for saying the "right" things? An expert can testify about how these and other influences may produce an unreliable story, and how even proper use of the Forensic Interview Protocol can't fix the problem.
- Delayed Disclosure: Prosecutors and Prosecution experts (yes, they can call them, too) often sell the idea that when someone is telling the truth when they claim Sexual Assault, it is completely normal due to "trauma" for them to wait months, years, and even decades to "come out" with their story. This is commonly called "delayed disclosure," and has been given the name Child Sexual Abuse Accommodation Syndrome (CSAAS). However, a good expert for you will be aware of the fact that the more reliable studies indicate that this is NOT the case - real victims of Criminal Sexual Conduct come forward soon and give consistent, specific description of what happened, not a partial disclosure or a story that grows and changes over time.
- Sex Offender Behavior: experts know that real sex offenders exhibit certain patterns and behaviors. Do you fit that bill? If not, it makes it less likely to the Jury that the accuser's story is reliable, and the Jury may be allowed to hear about it.
- Credibility: an expert cannot testify to their ultimate opinion that either your accuser is lying or that you are telling the truth. Credibility is different than reliability. Credibility means whether someone is being deliberately deceptive. Reliability refers to whether the accusations should be trusted even if the accuser believes they are telling the truth.
- Ultimate Opinion on Guilt or Innocence: an expert cannot testify to their ultimate opinion as to whether someone is reliable - only the Jury can decide that. The expert can only point to factors the Jury should consider in deciding.