Allegations of sexual assault are common. The sexual assault case that involves a stranger invading the victim’s home or accosting a woman on a trail or in a parking lot is relatively uncommon. Most often the complaining witness and the accused have some relationship to each other, even if they just met the same day as the alleged assault. Quite often, one, if not both, of the parties involved were consuming alcohol or drugs.
Most cases begin when the complainant calls the police alleging that a sexual assault has occurred. Usually the call is made close to the time period of the alleged assault although sometimes in a case of sexual assault involving an adult there is a delayed outcry of weeks, months or years after the alleged assault occurred.
If the outcry is close in time to the alleged offense, the police will encourage the complaining witness to go to a hospital and undergo a sexual assault examination by a nurse trained to conduct this kind of examination. This examination will include carefully observing and recording any bruising or tearing or other signs of violence, and the extraction of DNA samples. The examiner will also get a detailed statement concerning the allegation from the complainant.
The police investigator assigned to a sexual assault case also will often have the complainant call the suspect to discuss “what happened” on the telephone and will record the conversation without the suspect’s knowledge. The police hope the suspect will incriminate themselves, must often in the form of the apology to the complainant.
Generally, the investigator will seek to interview the suspect. Usually the police do this by calling the suspect and scheduling a time for the suspect to give a statement at the police station. The police most often are highly skeptical of a suspect’s denial, but there are cases in which the suspect can help their case by providing the police with a statement. However, one should absolutely NEVER meet with police without the assistance of an attorney to objectively evaluate the case and determine whether it is in the client’s best interest to give the police a statement.
Because the police immediately will seek to get an incriminating statement from the suspect, it is imperative, therefore, that if someone learns that they are being accused of sexual assault that they do not delay contacting a board-certified criminal defense lawyer with experience in defending cases of alleged sexual assault. Proper legal advice at this stage may be the difference between a case being dismissed or spending decades in prison.
People accused of these offenses often mistakenly believe that they will not be charged with an offense because the case boils down to a “he said, she said.” This is not true, and the police and prosecutors routinely bring cases to trial in sexual assault cases in which there is little to no corroborating evidence.
Usually, the defendant in these cases learns of the accusation before being formally charged or indicted by a grand jury. During this period of time the defense generally does not have the ability to examine the State’s evidence.
Even with limited information, in some cases the defense will attempt to prevent the client from being indicted by submitting a “grand jury letter.” In most Texas counties prosecutors are willing to provide the defendant’s grand jury letter to the grand jury for consideration when deciding whether to return an indictment against the defendant. One must be cautious, however, before taking this step. The downside to presenting such a letter is that the State will then know of facts favorable to the defense or how the defense plans to defend the case.
One of the most difficult cases for prosecutors and investigators to handle are those in which the complainant admits they were so intoxicated they have little recollection of what transpired but are sure they would never had consented to having sex with the defendant. Although having sex with an intoxicated person is usually considered grounds for expulsion from college, there is nothing under Texas law that states an intoxicated, but conscious, person cannot give consent.
In these cases, and other exceptionally weak sexual assault cases, rather than tell the complainant that they are refusing to prosecute, the prosecutors will often make a “grand jury referral.” Instead of arresting the defendant, the prosecutors will present a summary of the case to the grand jury and then inform the grand jury considering the case that the prosecutor is not requesting that the grand jury return an indictment but will defer to whatever decision the grand jury makes.
Sometimes defense counsel and the defendant make a decision to have the defendant submit to a polygraph examination or “lie-detector” test. If the defendant passes this test, prosecutors in some counties will permit the inclusion of this passed result with a grand jury letter. Most grand juries are impressed by a passed polygraph examination if the relevant test question conforms to the details of the accusation and the polygrapher is reputable. At Broden & Mickelsen we use a polygraph based in Dallas with a sterling nationwide reputation.
Polygraph examinations, however, are not admissible in a jury trial. A properly administered test is said to inaccurately indicate that a defendant is lying roughly 15% of the time, and inaccurately indicate that the defendant is telling the truth, about 5% of the time. Other than to a demoralizing effect of a failed polygraph examination and the cost (usually about $1,000), there is little downside to taking such a test.
Most sexual assault cases involving an adult are charged simply as “sexual assault” or “aggravated sexual assault.” Sexual assault is defined as the penetration of the sexual organ or anus without consent. Aggravated sexual assault requires in addition that there was “serious bodily injury; threat of serious bodily injury or kidnapping; use or exhibition of a deadly weapon; or use of a substance intending to impair the victim to facilitate the assault. Indecent assault involves touching, without necessarily penetrating, another person’s genitals, anus or breast for purposes of sexual gratification.
In Texas, a defendant has a right to elect whether the jury or the judge will decide punishment if the defendant is convicted. However, the rules concerning probation eligibility (or a non-custodial sentence) differ.
A jury may only sentence a defendant to probation if the defendant has never been convicted of a prior felony in any state. Then, if the jury decides to impose a sentence of 10 years or less, the jury can “probate” the sentence so that as long as the defendant complies with all the conditions of “community supervision,” the defendant will not have to go to prison.
If the jury is imposing a prison sentence, it may sentence a defendant from 2-20 years for sexual assault, or 5-99 years for aggravated sexual assault conviction, and up to one year in jail for indecent assault.
Upon conviction at trial, a judge may not sentence a defendant to probation for these type of offenses.
Nevertheless, a judge has a unique power that the jury does not have in cases where the defendant has pleaded guilty. In these cases, if the defendant has never been sentenced to some form of probation previously, the judge may “defer” finding the defendant guilty and place the defendant on community supervision. If the defendant successfully completes the community supervision, (usually a term of 10-years), the defendant will have no final conviction (but will nevertheless have to register as a sex offender).
As one can see, the potential sentences for these offenses are severe. Experience shows that often first-time offenders, upon conviction, receive lengthy sentences. If someone is accused of one of these offenses it is imperative to hire a highly skilled criminal defense attorney who is experienced in these cases.
Finally, one should be aware that these offenses require registration as a sex offender if a person pleads guilty or is convicted at trial. Obviously, sex offender registration is an enormous life handicap from job applications, living arrangements, personal relationships, etc.
Most often the State has one glaring weakness in its case. Usually it must rely solely on the uncorroborated word of the person alleging the sexual assault. When it has corroboration, often that corroboration is simply the circumstances that suggest a consensual sexual encounter was unlikely. However, in some cases, the State has a strong corroboration, such as the complainant making an immediate hysterical outcry.
Because so often in these cases the evidence amounts to “he said, she said,” preparing the defendant to testify effectively is critical. Although the judge will instruct the jury at the beginning and at the end of the trial that it should not consider the fact that a defendant elected not to testify, it is highly doubtful that jurors are uninfluenced by the defendant’s failure to testify and deny guilt under oath. Naturally, the jury expects a defendant to deny guilt but often the defendant can provide a compelling narrative that the sexual encounter was consensual. Nevertheless, the defense must carefully weigh the downsides of testifying. For example, if the defendant has a prior conviction, or if the defendant testifying will “open the door” to the admission of adverse evidence, the costs may outweigh the benefits.
Besides engaging an experienced private investigator and preparing the defense witnesses to testify, the other things a good attorney may do in terms of trial preparation will vary from case to case. Some cases call for consultation with, and possible retention of, one or more expert witness. Some cases will call for the issuance of numerous subpoenas (legal documents that require people to produce evidence in their possession). Other cases will require an extensive pretrial motions practice that may pertain to the legality of seized evidence, the admissibility of evidence, the validity of the indictment, among other things. Most cases require employing several of these tactics.
Usually the first day of the jury trial is taken up with the process of jury selection. In most cases, the spectator or gallery portion of the courtroom is filled with potential jurors. The judge will give this “panel” of prospective jurors some preliminary instructions and then the State will be permitted to question the jurors for about an hour. After the State questions the prospective jurors, the defense will be given an equal opportunity to question them. Neither side will be permitted to discuss the specific facts of the case and are limited to discussing the law that applies to the case. Usually a great deal of time is expended discussing the State’s burden of proof and related issues.
Typically, there will many more or less outspoken jurors who say something in response to a question that tends to show some bias or favoritism to one side or the other. Each side has ten “preemptive strikes,” so these jurors likely will be struck for any reason (with very limited exceptions) by one side or the other. Some jurors will take issue with the legal principles governing the case, or have some other conflict preventing them from serving as jurors, such as knowing a witness or one of the parties, or have a irreconcilable scheduling conflict, and will be excused by the judge or by agreement reached between the lawyers.
After jury selection, the State will make an opening statement, briefly summarizing the anticipated testimony of its witnesses. The defense then has a right to make a statement. Many defense lawyers decline to give an opening statement. We believe, however, that the defense almost always make an opening statement unless in the very exceptional case where there is a compelling reason not to do so. We believe it is important to inform the jury as early as possible as to what exactly the defendant’s answer to the accusation is.
After opening statement, the State will put on its witnesses. Usually the State begins with the complaining witness. Then the State often calls eyewitness to the events and circumstances surrounding the alleged sexual assault. Finally the State will call the investigators to satisfy the jury that the State did the best it could to gather all the relevant evidence, and usually the State will call a an advocate for sexual assault victims who tell the jury that there is no one size fits all reaction to being a victim of a sexual assault.
Many defense lawyers believe that they must destroy the credibility of the complaining witness to win the case. In our experience, this is not necessarily the case, and aggressive efforts to destroy the credibility of the child witness may fail. While every case is different, even if an aggressive attack on the credibility of the complaining witness is ill-advised, the complaining witnesses can often be effectively cross-examined by eliciting every favorable fact from them, or by more subtly suggesting problems with the reliability of their testimony. There are other cases that call for unique and unusual cross-examination strategies. Of all the skills a criminal defense lawyer should possess, cross-examination is the least subject to generalization. It is often referred to the “art of cross-examination” for this very reason.
If the jury does convict one of the most difficult things to do is to “shift gears” and effectively advocate during the punishment phase of the trial. It is difficult for a lawyer to credibly go from passionately arguing the innocence of the client to acknowledging the jury verdict’s and arguing for leniency. Moreover, it is difficult for many defendants to discuss this topic in advance of trial. As a result, the punishment phase of the trial is often short, and many defense lawyers put offer little meaningful evidence in this phase of the trial. Still a good criminal defense lawyer will prepare for any possible outcome.
Depending on the circumstances one may be able to call members of the defendant’s family, clergy or close friends as effective witnesses in the punishment phase.
It may be possible to call a sex offender treatment provider to testify concerning the defendant’s future risk of reoffending.
Usually the defense should call a probation officer to testify about the sexual offender programs that are eligible for the defendant. Jurors are often surprised to learn that the sexual offender treatment programs for offenders in Texas are rigorous and the rates of recidivism are low.
There are few more difficult situations that one can confront then being accused of sexual assault. The stakes are enormous, and an effective defense requires a lawyer of extensive skill and experience.
Clint Broden and Mick Mickelsen are two such highly skilled lawyers who have decades of combined experience in successfully defending clients against these accusations in Dallas, Tarrant, Collin, and Denton counties and others throughout North Texas. In addition, they are both board- certified in criminal trials and in criminal appellate law.