Defending Those Accused of Sexual Assault Allegations

DEFENDING THOSE ACCUSED OF SEXUAL ASSAULT ALLEGATIONS SEMINAR INFORMATION Date Location Course Director Total CLE Hours

December 3-4, 2020 Hilton Houston Post Oak by the Galleria | 2001 Post Oak Blvd, Houston, Texas 77056 Heather Barbieri, Eric Davis, and Suzanne Spencer 12.50

Ethics: 0

Thursday, December 3, 2020 Time

CLE

Daily CLE Hours: 6.50 Topic

Ethics: 0

Speaker

8:00 am

Registration and Continental Breakfast

8:45 am

Opening Remarks

Heather Barbieri

9:00 am

1.0

Effective Storytelling

Eric Davis

10:00 am

1.0

Pre-Trial Investigation

Clay Steadman

11:00 am 11:15 am

Break 1.0

12:15 pm

Motions

Grant Scheiner

Lunch On Your Own

1:30 pm

1.0

Voir Dire

Jeff Kearney

2:30 pm

1.0

Cross Examination of Experts

Gerry Morris

3:30 pm 3:45 pm 5:15 pm

Break 1.5

Forensics & DNA

Dr. Greg Hampikian and Janet Layne

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

DEFENDING THOSE ACCUSED OF SEXUAL ASSAULT ALLEGATIONS SEMINAR INFORMATION Date Location Course Director Total CLE Hours

December 3-4, 2020 Hilton Houston Post Oak by the Galleria | 2001 Post Oak Blvd, Houston, Texas 77056 Heather Barbieri, Eric Davis, and Suzanne Spencer 12.50

Ethics: 0

Friday, December 4, 2020 Time

CLE

Daily CLE Hours: 6.0 Topic

Ethics: 0

Speaker

7:45 am

Registration and Continental Breakfast

8:15 am

Opening Remarks

Eric Davis

8:30 am

1.0

Cross Examination of a Child Witness

Katheryn Haywood

9:30 am

1.0

Laws Relevant to Sexual Assault, Preservation of Error

Bill Stradley

10:30 am 10:45 am

Break 1.0

11:45 am

False Memories in Children

Dr. Steven Thorne

Lunch on Your Own

1:15 pm

1.0

Extraneous Offenses

Damon Parrish

2:15 pm

1.0

Mental Health

Mark Mahoney

3:15 pm 3:30 pm

Break 1.0

Punishment Mitigation – Sex Offender Registration & DeRegistration

4:30 pm

Adjourn

6:30 pm

Holiday Dinner (ticket required)

Te’Iva Bell

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Defending Those Accused of Sexual Assault Allegations Table of Contents Speaker

Topic December 3-4, 2020

Eric Davis Clay B. Steadman Grant Scheiner Jeff Kearney Gerry Morris

Effective Storytelling : Drafting & Delivering a Great Opening and Closing Statement The Citizen Accused & Effective Pre-Trial Investigations Motions Jury Selection in Sex Assault Case Cross Examining Expert Witnesses in Sexual Assault Cases

Katheryn Haywood

Cross Examination of a Child Witness

William M. Stradley

Laws Relevant to Sexual Assault, Preservation of Error

Stephen A. Thorne, PhD Damon Parrish Mark Mahoney

False Memories in Children Opening the Door to Extraneous Offenses in Sexual Assault Cases Defending Autistic People: Sex Offenses

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Defending Those Accused of Sexual Assault Allegations December 3-4, 2020

Topic: Effective Storytelling : Drafting & Delivering a Great Opening and Closing Statement Speaker:

Eric Davis Harris County Public Defender’s Office 1201 Franklin Avenue, 13th Floor Houston, Tx (713) 274-6730 Phone eric.davis@pdo.hctx.net email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Defending Those Accused of Sexual Assault Allegations December 3-4, 2020

Topic: THE CITIZEN ACCUSED & EFFECTIVE PRE-TRIAL INVESTIGATIONS Speaker:

Clay B. Steadman Law Offices of Jesko & Steadman 612 Earl Garrett Kerrville, Texas 78028 (830) 257-5005 Phone (830) 896-1563 Fax csteadman612@hotmail.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

THE CITIZEN ACCUSED & EFFECTIVE PRE-TRIAL INVESTIGATIONS Clay B. Steadman Law Offices of Jesko & Steadman 612 Earl Garrett Kerrville, Texas 78028 Ph.:

(830) 257-5005

Fax:

(830) 896-1563

Email:

csteadman612@hotmail.com

1 | P a g e

TABLE OF CONTENTS Topic

Page

1. General Classifications of Sexual Assault

3-8

2. Problems We Face

9

3. Addressing Those Problems

10 - 21

4. Resources

22 - 43

5. Getting it Done on a Budget

44

6. Top 15 Points

45

2 | P a g e

I.

General Classifications of Sexual Assault 1. Sexual Assault of an Adult a. Sexual Assault (Texas Penal Code Section 22.011((a)-(1)) Elements: (i) A person (ii) Intentionally or Knowingly (iii) Causes the penetration of the anus or sexual organ of another person, by any means without that person’s consent, or (iv) Causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent, or (v) Causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor (vi) By compelling the other person to submit or participate by use of physical force or violence Section 22.011, as same pertains to the application of sexual assault to a case involving an adult victim, has several subsections under the statute which delineates between certain factors and/or classification of the alleged victim, such as (1) By threatening force or violence, (2) Unconscious person, (3) Disabled person, (4) Unaware person, (5) By intentional impairment of person, (6) By threatening force or violence against any person, (7) By public servant, (8) By health services provider, (9) By clergyman, and (10) By employee of facility.

Defenses:

Consensual Act

Note:

An unconscious, disabled, unaware, or person who has been subject to intentional impairment, cannot consent.

2nd Degree Felony Unless the victim was a person to whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Texas Penal Code Section 25.01 (Bigamy Statute), then is a 1st Degree Felony [this provision acts as enhancement statute]. b. Aggravated Sexual Assault (Texas Penal Code Section 22.021 ((a)-(1)-(A)) Elements: (i) A person (ii) Intentionally or knowingly

3 | P a g e

(iii)

Commits sexual assault as defined under Texas Penal Code Section 22.011 (a)-(1), and Causes serious bodily injury or attempts to cause the death of the victim or another person, In the course of the same criminal episode

(iv) (v)

Section 22.021, as the act pertains to the application of sexual assault to a case involving an adult victim, has several subsections under the statute which delineates between certain factors and/or classification of the alleged victim, such as (1) Threatens victim, (2) Threatens in presence of victim, (3) Uses or exhibits a deadly weapon, (4) Acts in concert, (5) Administers drugs, and (6) Elderly or disabled victim.

Defense:

Consensual Act

1st Degree Felony 2. Sexual Assault of a Child a. Indecency with a Child (Contact) (Texas Penal Code Section 21.11 ((a)-(1)) Elements: (i) A person (ii) With a child, younger than 17 years of age (iii) Whether the child is of the same or opposite sex (iv) Engages in sexual contact with the child or causes the child to engage in sexual contact Affirmative Defenses: Romeo defense wherein the actor is not more than 3 years older than the victim and of the opposite sex (instance where consent is a defense).

Actor was the spouse of the child at the time of the offense (instance where consent is a defense).

Otherwise a child cannot consent to a sexual act.

2nd Degree Felony If child is less than 14 years of age Defendant is not eligible for probation from jury. b. Indecency with a Child (Exposure) (Texas Penal Code Section 21.11 ((a)-(2)) Elements: (i) A person (ii) With a child, younger than 17 years of age 4 | P a g e

(iii) (iv) (v)

Whether the child is of the same or opposite sex With the intent to arouse or gratify the sexual desire of any person Exposes the person’s anus or any part of the person’s genitals, knowing the child is present, or causes the child to expose its anus or any part of its genitals

Affirmative Defense: Romeo Defense wherein the actor is not more than 3 years older than the victim and of the opposite sex (instance where consent is a defense).

Actor was the spouse of the child at the time of the offense (instance where consent is a defense).

Otherwise a child cannot consent to a sexual act.

3rd Degree Felony c. Improper Relationship Between Educator & Student (Texas Penal Code Section 21.12) Elements: (i) An employee of a public or private primary or secondary school (ii) Engages in a. Sexual contact b. Sexual intercourse, or c. Deviate sexual intercourse (iii) With a person who is enrolled in a public or private primary or secondary school at which the employee works 2nd Degree Felony d. Sexual Assault (Texas Penal Code Section 22.011((a)-(2)) Penetration or contact of a child under 17 years of age who is not the actor’s spouse Elements: (i) (ii) (iii) (iv)

5 | P a g e

A person Intentionally or knowingly Causes the penetration of the anus or sexual organ of a child by any means, Causes the penetration of the mouth of a child by the sexual organ of the actor

(v)

(vi) (vii)

Causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor Causes the anus of the child to contact the mouth, anus, or sexual organ of another person, including the actor, or Causes the mouth of a child to contact the anus or sexual organ of another person, including the actor

Affirmative Defense: Romeo Defense wherein the actor is not more than 3 years older than the victim and of the opposite sex (instance where consent is a defense).

Actor was the spouse of the child at the time of the offense (instance where consent is a defense).

Otherwise a child cannot consent to a sexual act.

2nd Degree Felony Unless the victim was a person to whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Texas Penal Code Section 25.01 (Bigamy Statute), then is a 1st Degree Felony [this provision acts as enhancement statute].

If child is less than 14 years of age Defendant is not eligible for probation from jury. e. Aggravated Sexual Assault (Texas Penal Code Section 22.021((a)-(B)) Victim younger than 14 years of age 1st Degree Felony Or an enhanced 1st Degree Felony with a minimum punishment of 25 years confinement in prison, if the child is less than 6 years of age or committed by perpetrator in a manner described under Texas Penal Code Section 22.021 ((a)-(2)-(A)) Not eligible for probation from a jury f. Continuous Sexual Abuse of a Child (Texas Penal Section 21.02) Elements: (i) (ii) (iii) 6 | P a g e

A person Commits 2 or more acts of sexual abuse During a period of 30 or more days in duration, and

(iv) (v) (vi)

At time of commission of each act of sexual abuse Actor is at least 17 years of age or older, and Child victim is younger than 14 years of age

In a jury trial the trier of fact is not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The only issues the jury must unanimously agree upon is that the Defendant during a period that is 30 or more days in duration, committed 2 or more acts of sexual abuse.

In the Kennedy v. State decision, the Seventh Court of Appeals held that under the plain meaning of Section 21.02 of the Texas Penal Code the commission of two or more acts of sexual abuse over a specified period of time is the actus reus element of the offense which requires jury unanimity.

The individual acts of sexual abuse that make up the series of acts are not themselves elements of the offense, as they are merely evidentiary facts which determine the manner and means by which the actus reus element is committed. See Kennedy v. State, 385 S.W.3d 729 (Tex. App. – Amarillo 2012, pet. ref’d). Therefore, where the evidence supports more than two acts of sexual abuse over the specified time, jurors need not agree as to which individual acts were committed so long as they agree the Defendant committed at least two acts of sexual abuse.

[Practice Note] Keep the issue of jury unanimity at the top of your list of issues to challenge and object to either pre-trial or during trial at the jury charge conference. Based upon the content and substance of the State’s indictment you may want to challenge and object to this issue pre-trial by filing a motion to quash. I would always object to this issue during the jury charge conference and have a prepared jury charge on this issue which requires jury unanimity on all issues, including the acts of sexual abuse. I generally object that the Court’s failure to require jury unanimity on all issues has the effect of lessening the State’s burden of proof and violating the Defendant’s constitutionally protected rights to due process and due course of law. While the current case precedent is not favorable for the defense bar, we must continue to object and argue against this statute’s violation of our client’s constitutionally protected rights.

1st Degree Felony with a minimum punishment of 25 years confinement in prison, and the defendant is not parole eligible for this type of offense (i.e.: Defendant serves day for day the prison sentence he receives).

3. Special Punishment Issues: Under Texas Penal Code Section 3.03 ((b)-(2)), in cases of indecency with a child, sexual assault, aggravated sexual assault, continuous sexual abuse of a child, prohibited sexual conduct 7 | P a g e

and sexual performance of a child, involving a child younger than 17 years of age, the Court has the discretion to sentence the defendant to concurrent or consecutive sentences, regardless of whether the counts and/or cases are tried together and/or consist of the same criminal episode.

Texas Penal Code Section 12.42 (c)-(2) provides for an automatic life sentence if the Defendant is convicted for sexual assault, aggravated sexual assault, or indecency with a child by contact, and the Defendant had been previously convicted of a type of sexually related offense as specified under Sections 12.42 (c)-(2)-(B)-((i)-(v)).

8 | P a g e

II.

Problems We Face 1. The Accusation When an accusation is made that should not be the sole determining factor in deciding if your client committed a specific criminal act. However, regarding an allegation of sexual assault, often, once the accusation has been made, we are left in a situation where we are having to overcome the accusation itself.

You have undoubtedly heard this before.

(1) Why would she/he lie about something like this?

(2) Why would a child lie about something like this?

(3) A person would not put themselves through an ordeal like this unless it was true?

The accusation itself takes on a life of its own because it is so inflammatory, and as such, it must be true. After years of defending against these types of allegations I have come to realize that people and children do lie, and it becomes second nature to them over the course of time. In the situation involving the sexual assault of a child, I have actually seen therapy and counseling records indicate that they addressed the issues regarding testifying in court and how it is important for all those involved to support the child. This position does not allow for the fact that the child’s outcry was a lie, and as such, is a false accusation.

This is often the point of no return, as I have rarely seen an alleged child victim recant at that stage of the proceedings. Often what we see develop, whether we can admit it or not, is that the burden of proof actually feels as though it shifts to a degree, where we must now prove nothing happened or the alleged victim is lying. Even in a case involving an accusation of sexual assault involving adults, we will often have a situation where it is a swearing match, but the State and law enforcement rally around the alleged victim without any substantial corroborative evidence. Again, in situations such as these, we are left with a set of circumstances which requires us to prove something did not happen or that it did not happen as reported.

9 | P a g e

III.

Addressing Those Problems 1. Organizing Your Pre-Trial Investigation into Categories

What do I mean by pre-trial investigation categories? Simply put, we should be able to break our investigation down into multiple components based upon the circumstances and nature of the allegations.

Examples of Certain Generic Categories (a) (b) (c) (d) (e) (f)

Alibi Motive to Lie Bias Family and Friends Physical Injuries Physical Environment of Allegation

The categories and components will vary from case to case, based on the specifics of the case and nature of the allegation. You should begin to break down the case by its components once you interview your client and receive the discoverable information and documents from the State. How you investigate the varied components of the case will depend upon the accusation and your trial strategy.

2. Defensive Strategy 1. a. b.

2. a. b.

Alleged victim is lying Act was consensual (Adult Case) Act did not occur (Adult or Child Case) Alleged victim is mistaken (sugar coated version of lying) Act was consensual (Adult Case) Act may have occurred but was committed by someone else (Adult or Child Case) Family members often cover or lie for other family members 3. Punishment case a. Act occurred and you begin to frontload your punishment evidence b. Rattle the bushes and negotiate a plea 3. Case Components Most sexual assault cases, whether it involves an adult or a child, involve similar components which must be investigated. Every sexual assault will involve an outcry which is made at some point by the alleged victim, whether that alleged victim is an adult or child. In the case of a sexual assault involving a child, the outcry takes on a more significant role under Article 38.072 of the Texas Code of Criminal Procedure, which will be discussed more in detail later in this paper.

10 | P a g e

1. The Outcry a. When made in relation to when alleged assault occurred b. How made and under what circumstances c. Who is the initial outcry made to?

2. The Alleged Victim [Personal and Medical History] a. Age b. Medical History c. Relationship to your client d. Family History e. Educational level and background f. Child Protective Services History 3. Were any Physical Injuries Sustained [Types] a. Bruises b. Scratches c. Abrasions d. Tears (On about or near Vaginal Cavity and/or Anus) [Practice Note] A qualified medical expert can assist you in identifying and working with the type and causation of certain injuries that may have been sustained.

4. Circumstances of the Alleged Assault a. Time and date when it occurred b. Details can be important c. What is the description of the physical location where act allegedly occurred?

- Type of lighting available - If occurred inside, what are the dimensions of the location and what type of furnishings were present - Is it a crowded neighborhood, and did anyone hear or see anything?

- If crowded neighborhood who else had access to the location and the alleged victim - Are there any cam recording devices either in the location itself or located outside of the location? (i.e.: a security cam at a convenient store may provide information) - It is always important to have your investigator canvas the neighborhood for this information, or you will need to do this yourself if an investigator is not available 5. Family relationships a. Between your client and the alleged victim - Motive and bias to lie - Family members often attempt to lie or cover up for the real perpetrator - Child Protective Services history b. Between the alleged victim and their family - Possible other suspects - Any other family members have violent or drug related criminal histories 11 | P a g e

c. If case is a child sexual assault, investigate the relationship between your client and the other parent - Motive and bias to lie - Bad breakup or divorce 6. Client’s background and history a. Medical history (physical anomalies of client’s anatomy) b. Mental health history c. Criminal history d. Child Protective Services history e. Client is a previous victim of sexual abuse f. Employment history g. Family background (i.e.: parents and where your client grew up) 7. Develop a Timeline of Events a. Using your breakdown of the alleged victim, the witnesses, family members, the location, any injuries sustained and causation, and any other material case facts, you will begin to develop a timeline of events b. Does your client have an alibi? c. Who else had access to the alleged victim? d. Who else was and/or could have been present when assault allegedly occurred? e. What were the physical circumstances which were present and/or should have been present?

4. Use of Experts and Investigator Based on the evidence, you will likely need the assistance of experts and an investigator in defending your client’s case.

Types of Experts: 1.

2.

3.

4.

5.

SANE Nurse Pediatrician Trauma and/or ER Physician Pathologist Other Medical Doctors or Professionals ((Pre-existing Injuries and susceptibility to injury (i.e.: alleged victim bruises easily)) 6. DNA, Molecular Biology and Forensic Molecular Biology 7. Child Psychologist (purposes of outcry and forensic interview) 8. Forensic Psychologist (Testing – Punishment Issue) 9. Sex Offender Treatment Provider (Counseling – Punishment Issue) 10. Counselor and Therapist

12 | P a g e

5. Obtaining Information After I begin to break down the case, what do I do next? You need to assess the case, and the current facts that you have obtained and determine what other assistance you require. You will possibly need to retain or request additional funds for an investigator, medical expert(s), crime scene forensics expert or reconstructionist, a pathologist, psychiatrist, psychologist, qualified social worker, mitigation specialist, etc. Once you have obtained some assistance, you and your defense team will begin to coordinate your investigative efforts.

In cases involving allegations of sexual assault, I believe it is imperative that you have at a minimum an investigator to assist you, and a medical doctor/pathologist to consult with regarding the facts of the case. This may assist you in gathering additional information and developing a defensive theory. Throughout this paper we will continue to discuss obtaining the services of certain professionals and expert to assist you in investigating the facts of the case.

Speak to Your Client. Depending upon whether your client is initially truthful with you regarding any specific facts you have questioned him on, your case theory will necessarily evolve and adapt during the course of your investigation.

6. Common Types of Information Available Client’s statement Witness statements Affidavits of Non-Prosecution (which is a type of statement) Personnel records Employment records Offense reports Medical records Probation records I.R.S. records Property records Court records CPS records Texas Department of Criminal Justice Institutional Division County Jail records Police Department records of complaints Texas Commission on Law Enforcement Mental Health records Educational/School Records Counseling and Therapy records Video Cam surveillance records Military records Crime Lab records Medical Examiner (autopsy) reports Crime Stoppers records 13 | P a g e

7. Interview Your Client a. Discover what his position is, and what he says occurred b. If applicable get a copy of the warrant of arrest and the accompanying PC affidavit. Texas Code of Criminal Procedure Article 15.26 provides in part that the warrant and the affidavit presented must be made available for public inspection, and any person may request copies of same. (Caveat: Can be difficult to locate, as may have to check with all J.P., Municipal, County Court, County Court at Law, and District Court judges) c. If applicable get a copy of the affidavit filed to support any search warrants issued by a magistrate or judge. Texas Code of Criminal Procedure Article 18.01 (b), provides in part that a search warrant shall not be issued unless a sworn affidavit setting forth substantial facts which establish probable cause is filed and available for public inspection, unless said affidavit is sealed under Article 18.011. d. Who are the witnesses which he is aware of, that either saw what occurred or can support his position regarding the allegations made against him? e. What is your client’s relationship with the child? f. During this process we begin to discover and investigate the who, what, when, where, and why of the case facts from your client’s perspective. g. Obtain all media reports (written, audio, or video), which have been reported on the case. h. You can begin to run down and locate witnesses and run a basic search on the criminal background of your client and the witnesses that he identifies, including the alleged victim.

Examples: (i) (ii) (iii)

(iv) (v) (vi) (vii)

14 | P a g e

Run a basic criminal history search, using the Department of Public Safety website (there is a fee of $3.00 per search).

Run a basic search of criminal history on any county website which is currently online.

Prepare an Open Records Request pursuant to the Texas Public Information Act, Chapter 552, of the Texas Government Code, to any Police Departments or other law enforcement subdivisions you believe could have information regarding your client or any of the witnesses he has identified.

Use of subpoenas to obtain T.D.C.J.I.D. records when necessary.

Use of subpoenas to obtain county jail records when necessary.

Use of subpoenas to obtain probation department records when necessary.

Use of releases to obtain your clients military, social security administration, employment, mental health, medical and educational records.

(viii) If your client gave an audio and/or video recorded statement to law enforcement, and you have the resources or the ability to request funds from the court, you should have this statement transcribed. If you do not have these resources, you should begin to transcribe this statement.

It is invaluable to have a written transcription of your client’s statement for use from the beginning of the case.

Request and Gain Access to the Information in Possession of the State Regarding the Charges, which will normally include the witness statements, your client’s statement (if any), the offense report, and any other non-privileged information the State obtained during its investigation.

Practice Tip: Never just rely on the information and records obtained by the State. I am not suggesting that the State will mislead you, but you should always, when possible, independently verify and investigate all information received.

We must look beyond the State’s “open file policy”, to find information that can assist our client and help resolve the case.

8. State’s Case Information a. b. c. d. e. f.

What is the State’s theory of prosecution?

What was the reason for your client’s arrest?

What established probable cause to initiate the arrest of your client?

What witnesses has the State identified in its investigation?

What is the causation of any physical injuries?

What are the conclusions of the medical expert(s) which provided statements and/or reports to the State? (ie: what are the autopsy conclusions) g. Compare the differences, if any, between the witnesses identified by the State and those witnesses your client can identify, and the information they have provided. h. Once you receive and review a copy of the State’s file you should interview your client again and identify any discrepancies which exist. i. If a discrepancy does exist, identify other sources information which can be obtained.

Examples: (i) (ii) (iii)

(iv) 15 | P a g e

Start locating and contacting the witnesses identified by the State.

I believe it is preferable that you have a private investigator locate and interview witnesses.

If you have recorded statements of the alleged victim and/or witnesses’ statements, and you have the resources or can request funds from the court, you should have these statements transcribed.

If you do not have these resources, you and your staff should begin to transcribe these statements. This is an invaluable tool to use in continuing your investigation.

Use social media and the internet to locate witnesses and develop a witness profile

(v)

Use of subpoenas to obtain education/school records of the alleged victim. (vi) Use of subpoenas to obtain medical records of the alleged victim. (vii) Use of subpoenas to obtain mental health records of the alleged victim. (viii) Use of subpoenas to obtain employment records of the alleged victim and their family members, and other witnesses if appropriate. (ix) Use of subpoenas to obtain counseling and therapy records of the alleged victim. (x) Use of a pre-trial motion to obtain crime stoppers records. Texas Government Code §414.008 provides for the privileged nature under which these types of records are protected, but subsection (b) provides for the manner in which you can obtain said records.

9. Witnesses and Alleged Victim Who are the participants and who are the spectators? Who is the protagonist and who is the antagonist? Start to use your investigative resources to explore and discover specific information regarding the child and those individuals involved in the child’s life. Once this cast of characters is established, any credible information we can obtain becomes part of the story that we intend tell to defend our client. As I begin my review of witness statements I will focus on specific information that is needed, targeting defensive issues, such as an alibi, contradictory eye witness testimony, motive and bias of witnesses, or the alleged victim’s motive to lie, as examples.

What is the nature, status, and condition of the relationship between your client, the alleged victim, and the witnesses? a. The nature of the relationship between your client and the alleged victim.

[Source of Motive or Bias] b. Identify the witnesses that have observed the relationship between your client and the alleged victim. [Source of Motive or Bias] c. The nature of the relationship between the identified witnesses and your client.

[Source of Motive or Bias] d. The nature of the relationship between the identified witnesses and the alleged [Source of Motive or Bias] victim. e. The relationship between the physical circumstances (ie: location, time of day, date of occurrence) involved concerning the crime as alleged, and your client.

[Example: Alibi Defense] f. What is the relationship between the physical circumstances (ie: location, time of day, date of occurrence) involved concerning the crime as alleged, and the alleged victim? [Example: Problem with Eye-Witness ID] g. What is the relationship between the physical circumstances (ie: location, time of day, date of occurrence) involved concerning the crime as alleged, and the identified witnesses?

16 | P a g e

[Source of Motive or Bias and Problem with Eye-Witness ID] h. Identify any physical injuries sustained by the alleged victim. You will need any to determine if the alleged victim had any pre-existing injuries and/or previously sustained similar type injuries? If possible, determine the time and date of the injuries. Based on the allegations, should injuries be present and visible, and they are not?

[Obtain all the child’s medical records and retain a medical expert] i. This list of issues is not intended to be all inclusive, but can help you identify the relationships that exist, and the facts and information which should be investigated, to develop your defensive theory.

10. Crime Scene a. In sexual assault cases, just as in a murder case, you must investigate and document the entire crime scene. b. If the crime scene is a residence, what are the dimensions and square footage of the residence? c. What furnishings were present during the occurrence of the injuries? d. What is your client’s connection to the crime scene? e. What is the alleged victim’s connection to the crime scene? f. What is the alleged victim’s recall and description of the crime scene? g. Do any of the witnesses have a connection to the crime scene? h. Is the crime scene in a remote location or populated area (this would possibly lead to other witnesses or possibly video of the offense)? i. If applicable, how long did it take law enforcement and/or emergency medical services to respond to the 911 call and arrive at the crime scene?

Common resources that are available and can be utilized for this type of investigation: a. Video of surrounding businesses or residences. (you or your investigator should complete a canvass of the surrounding neighborhood). b. Google Maps and Google Earth. c. Subpoena 911 call and dispatch records. d. Use a property records search to determine ownership and possession. e. If possible, review your client’s, the alleged victim’s, and any witness’s social media accounts to establish any connections between them and the crime scene. (It is surprising what people will tweet, post on Facebook, or put on Instagram or Pinterest) f. Determine square footage, and distances to other residence(s) or building (ie: if occurred in an apartment complex, usually can get a copy of floor plan of each type of unit, or is online) g. Sometimes you need to just bring a tape measure and a camera.

17 | P a g e

11. Forensic Interview of the Child Normally referred to as the KAP or CAC interview of the child. Normally, this type of interview will take place at an office or building designed for this specific purpose. In many cases, law enforcement will attempt to show that this type of statement is the first factually detailed statement regarding the alleged assault or abuse (ie: referred to as the initial outcry).

The statement itself is recorded and conducted by a trained forensic interviewer.

This type of entity is a non-profit organization, which has a board, and normally the personnel will consist of a coordinator, a lead forensic interviewer, depending upon the population base it serves several other forensic interviewers, an executive director and sometimes a prevention specialist. While they offer other services, it is my opinion that their primary objective is that of an evidence and statement gathering apparatus for the State.

While no other persons are present in the interview room itself, law enforcement and if available, the coordinator or other forensic interviewer(s) may be present, observing or listening to the interview, either via a video and/or audio feed or a one-way mirror.

This recorded interview may be critical to your client’s defense, so you need to review it and if possible, obtain a copy of the interview as soon as possible.

Getting a copy of the forensic interview is where you may start to encounter problems.

Article 38.45 [Evidence Depicting or Describing Abuse of or Sexual Conduct by Child or Minor] In my opinion this article basically limits the Court’s ability to make an otherwise discoverable witness statement reasonably available to defense counsel for purposes of review and trial preparation. The article allows the State unfettered access because they are in possession of this recorded statement, but as defense counsel we are limited in how we are given access under Article 39.15 of the TCCP. Article 39.15 [Discovery of Evidence Depicting or Describing Abuse of or Sexual Conduct by Child or Minor] Under this article this type of evidence, which includes the forensic interview of the child, must remain in the care, custody, or control of the court or the State as provided under Article 38.45 of the TCCP. In fact this article goes so far as to deny us any request(s) to copy, photograph, duplicate, or otherwise reproduce any property or material as described under Article 38.45 of the TCCP (ie: the forensic interview of the child) This article does require that the State provide you and your defense team (ie: your expert and investigator) ample opportunity to inspect and view this type of material. So long as the State provides this type of ample opportunity, it is considered reasonable. See Article 38.45 TCCP (d).

18 | P a g e

In handling sexual assault case involving a child, where the child has made this type of forensic statement you must be aware of and know how to respond to the issues which will arise in the discovery process.

Suggestions on How to Respond: If the State suggests that by making this video available to you and your defense team in their office is reasonable, you should object and argue to the Court that it is not reasonable because the State will necessarily have access to observe who is assisting and/or consulting with you regarding the forensic interview. It may be prudent at this point to request that the Court enter the forensic video into evidence under seal, with a Court Order, that allows defense counsel to check said video out from the district clerk’s office and review same in the courthouse. The State will in all likelihood object, bemoaning the fact they must keep it in their possession, but subsection (b) of Article 39.15 states it must remain in the care, custody or control of the court or the state, as provided by Article 38.45.

From a practical standpoint I have not had any difficulty in the past preparing an agreed protective order regarding the forensic video, which allows me to have a copy of same, and to disseminate same to my defense team, while the case is pending. However, the State has started to object to the use of the protective order, and now I have to argue and litigate reasonable access to view the forensic interview.

I have also filed a motion in the past to have the forensic video transcribed, and the Court has generally agreed with that argument, over the State’s objection that transcribing the video is a manner in which it is being duplicated, in violation of Article 39.15. In my opinion that argument is not logical, as I see no difference in me viewing the video and taking copious notes, and having a court reporter transcribe the contents of the video, as both processes are a form of note taking.

I believe that we need to continue to argue against the State’s efforts to control our access to and under which circumstances we can inspect and view the forensic interview. Under Article 39.14 it is clear to me that this type of forensic interview is a witness statement and is discoverable, perhaps even Brady material, depending upon what the child has stated during said interview. However, the State continues to use Articles 38.45 and 39.15 to limit and often attempt to circumvent our access to this information. In reviewing Articles 38.45 and 39.15, it is obvious what the legislature wanted to prohibit was the copying and dissemination of photographs and video depicting child pornography and abuse, not a process whereby the accused is denied his right to discoverable information under the recently revised Article 39.14 (MMA).

Keep in mind that the forensic video itself may be discoverable in a separate but parallel civil proceeding over child custody, to the extent that the child’s outcry of sexual assault or abuse was a basis of the Suit Affecting Parent-Child relationship which was filed.

19 | P a g e

I would also encourage you to file a motion seeking permission of the Court to inspect and photograph the KAP or CAC office building in which the forensic interview was conducted. I do this because the State will espouse the therapeutic advantages and services offered by KAP, and many times when you inspect these types of facilities you can demonstrate to the jury that it is just another device by which the State attempts to collect and solicit what may otherwise be inadmissible evidence.

12. Sexual Assault Nurse Examination Outside of the State’s use of the forensic interview in a child sexual assault case, the SANE exam is one of the most critical pieces of evidence which is gathered during a criminal investigation for sexual assault or aggravated sexual assault.

A SANE is a qualification for forensic nurses who have received specialized training to conduct a sexual assault exam for evidentiary purposes, in sexual assault cases. Based upon when the alleged sexual assault occurred, will depend upon whether a sexual assault evidence collection kit or rape kit, as it is sometimes referred to as, is completed by the SANE and attending physician. If it is determined that the sexual assault took place more than 96 hours prior to the SANE examination the use of an evidence collection kit may not be necessary, as it is unlikely that evidence would still be present on the alleged victim. However, evidence may still be gathered by documenting any findings obtained during the medical examination (i.e.: bruises, lacerations, or scratches), taking photographs, completing anatomical diagrams indicating points of injuries, and most importantly securing statements from the alleged victim about the incident. The Texas Attorney General’s website has general information regarding SANE training and the purposes of the program. The Texas Attorney General website states that the information included in the classroom training for a SANE includes: 1.

2.

3.

4.

5.

6.

7.

Advocacy Survivor Symptomology Documentation History Taking Skills Collection of Forensic Evidence Use of Sexual Assault Evidence Collection Kit Courtroom Testimony

This information clearly indicates for what purpose the State intends to use the SANE exam. While many SANE nurses are highly qualified, make no mistake that their sole responsibility is to gather and document evidence and statements of the alleged victim regarding an act of sexual assault and aggravated sexual assault.

20 | P a g e

The United States Department of Justice’s description of SANE program operations states that the SANE or other medical personnel (i.e.: emergency department physicians or nurses) must first assess the victim’s need for emergency medical care and ensure that serious injuries are treated.

The treatment by a SANE nurse must be confined to only minor medical issues because the SANE nurse is not a medical doctor and cannot provide medical treatment.

Although it is highly unlikely that the SANE nurse in obtaining a statement from the alleged victim regarding the sexual assault is doing so for purposes of getting a completing medical history. However, by gathering the information in this manner the State has designed a convenient exception to Hearsay, under TRE 803 (4), Statements for Purposes of Medical Diagnosis or treatment.

Based upon how and under what circumstances the SANE nurse conducts and completes her examination, it may be useful to consult with an expert in this field, preferably another qualified SANE nurse. In cases where there are no apparent trauma and/or injuries present in the medical record portion of the SANE report, and the only evidence of the sexual assault which exists is the alleged victim’s statement to the SANE nurse, you need to be cognizant of the fact that the SANE nurse will likely report that the alleged victim’s history (statement) is consistent with sexual assault. The problem with this logic is that it is also consistent with a hundred other issues and facts, including a false allegation. The most successful attempts to attack a particularly damaging SANE report is to attack the protocol utilized and any inconsistencies which are evident in the alleged victim’s statement to the SANE nurse.

21 | P a g e

IV.

Resources 1. Records and Documents In General: (i)

(ii)

(iii)

Interview and collect witness statements. If you have the resources I believe it is preferable to allow your investigator to obtain witness statements, otherwise if I take a witness statement I will advise and get the consent of the witness to record the interview.

If possible, obtain a non-prosecution affidavit or witness statement from the alleged victim or if appropriate their family members. Again, it is preferable to use an investigator in this situation, otherwise I will request their consent to record the conversation, and execution of the affidavit of non-prosecution. If the alleged victim or their family members do not consent to the recording of our conversation, I generally will decide not to meet with them for that purpose. I will discuss this more in detail, but you need to be aware of the various provisions of Chapter 56 of the Texas Code of Criminal Procedure regarding Rights of Crime Victims, when procuring an affidavit of non-prosecution.

Use of subpoenas to obtain CPS records, which generally are subpoenaed “in camera”. Note: Provisions which generally necessitate an “in camera” inspection of CPS records: A. Tex. Fam. Code Section 261.201 Confidentiality and Disclosure of Information B. 40 Tex. Admin. Code Section 700.202 Definitions C. 40 Tex. Admin. Code Section 700.203 Access to Confidential Information Maintained by the Texas Department of Protective and Regulatory Services (TDPRS) D. 40 Tex. Admin. Code Section 700.204 Redaction of Records Prior to Release E. 40 Tex. Admin. Code Section 700.205 Procedures for Requesting Access to Confidential Information F. 40 Tex. Admin. Code Section 700.206 Videotapes, Audiotapes and Photographs G. 40 Tex. Admin Code Section 700.207 Charges for Copies of Records Procedurally you can request and/or subpoena these records, and they will be subject to being redacted by the CPS legal/records department, and upon being “desensitized” they are produced “in camera” for inspection by the court. I sometimes receive the redacted records in hardcopy form, but lately have been receiving them in digital form on a CD or DVD. In reviewing these records if

22 | P a g e

you discover a redacted portion which may contain material, relevant or potentially exculpatory information you should file a specific motion for discovery on that issue, and assert you’re rationale for requiring the court to order CPS to produce that information in an un-redacted form. (iv) (v)

Use of subpoenas to obtain employment records.

Use of the Texas Public Information Act to obtain other possible incidents of unlawful conduct involving the alleged victim or their family members, or any other fact witnesses. At this stage, an investigator’s services can be invaluable, because these types of witnesses are generally more receptive to speaking to an investigator than the defense attorney. (vi) Use of Texas Public Information Act to make an open records request to Texas Commission on Law Enforcement regarding any law enforcement personnel involved, such that you can verify their education and training. (vii) Use of subpoenas to obtain medical, mental health, and/or counseling and therapy records. Again, at this stage you are verifying the State’s information, and at the same time looking for any type of discrepancy between what is alleged and what is possibly being reported to other sources at the time of the alleged offense. (viii) Use of subpoenas to obtain Crime Lab records. (ix) Use of subpoenas and open records request to obtain any pertinent Attorney General records. (x) Any individual who applies for and accepts compensation from the crime victim’s fund agrees to cooperate with and pursue the prosecution of the accused. I would argue that in these particular cases, where you may have a parent attempting to relocate, that this process can sometimes involve an incentive for the parent or guardian to pursue this case, such that they can receive these funds for relocation or other authorized purposes. Articles 56.311 through 56.54 of the Texas Code of Criminal Procedure, establishes the requirements of the application for, and the award and receipt of Crime Victims Funds from the Attorney General’s Office. There is no specific prohibition of which I am aware, that can keep you from requesting and obtaining this information. Further, if there is a hearing conducted under Article 56.40 on an application for compensation, this hearing or prehearing conference is open to the public, unless the Attorney General or hearing officer determines it should not be public. I would argue that this issue merits further thought, because given the right set of circumstances we should at least file a specific motion for discovery and/or subpoena these records “in camera”. Under Article 56.36 of the Texas Code of Criminal Procedure, an application for compensation must be verified, and contain among other things, the date upon which the criminally injurious conduct occurred, and a description of the nature and circumstances of the criminally injurious conduct. This

23 | P a g e

appears to be some type of sworn statement which should be discoverable. (xi) Investigate and secure any other court records, such as a civil case filing, wherein the alleged victim or any other witnesses supporting the State’s position may have made questionable statements and/or claims. (ie: Divorces and SAPCR) [Keep in mind if parents or family are fighting over custody, they are capable of making some of the most outlandish statements you can imagine] (xii) Use of Google Scholar and Google Books to research the State’s experts and determine if they have published any articles or publications. (xiii) If possible, interview any expert witness referenced in the State’s offense reports. Educate yourself first as to the terminology and language being referenced, and if possible, have a consulting expert assist you in forming the basis of your initial questioning. Sometimes these experts will refuse to speak to you, not return your calls, or not speak to you unless the prosecutor is present. Make sure you document the fact that the State’s expert refused to speak. (xiv) Independently subpoena any information that the State’s expert has in their possession or may rely upon in reaching their opinion. (xv) Use of social media and the internet to further investigate the motives and biases of the alleged victim and witnesses. Social media services such as Twitter, Facebook, LinkedIn, Yahoo, Instagram, Pinterest, Myspace, and other similar sites can often provide valuable information regarding the alleged victim’s parents and/or family.

Use of the Subpoena Duces Tecum: a. Once you have determined the source of the needed information, it is possible the only way to obtain this information is to subpoena this information. b. When subpoenaing medical records, mental health records, or counseling and therapy records, you will need the alleged victim’s full name, date of birth, social security number if available, the dates and/or period of treatment specific to your case, and the name and address of the facility and/or care provider. These types of subpoenas are sometimes objected to by the facility or care provider under HIPPA. If this is the case, I would file a specific motion for discovery on this issue and address same with the court, specifically identifying why this information is necessary. To have your specific discovery request granted you will need to demonstrate a compelling need. If the court grants your specific discovery request, re-issue the subpoena with the attached order stating that the described information is to be delivered “in camera” to the Court for inspection, and within the subpoena itself identify a pre-trial hearing date and time for which these records are to be produced. c. When subpoenaing education/school records, you will need to include the alleged victim’s full name, date of birth, social security number if available, the dates and periods of records you are seeking, and the name and address of the specific educational entity you are requesting produce the records. If the subpoena is objected 24 | P a g e

d. e.

f. g.

h.

i. j. k.

l.

to and/or not responded to, you should repeat the steps as outlined in subsection (b) above.

This same “in camera” process will generally apply to subpoenaing any CPS records.

When I am attempting to subpoena any information which I believe a party may deem sensitive, I will sometimes file a specific motion for discovery ahead of time and inform the Court that if granted I intend to subpoena this information “in camera” for the Court’s inspection. In the event that the Court decides after conducting an “in camera” inspection of the documents, that you are not entitled to review said documents, you must object and have the Court mark and seal the documents as an appellate exhibit, such that the Court of Appeals can review this information if a conviction results.

Many times, the entities involved will just comply with the subpoena request, because they do not want to have to come to court on a specified date and time to deliver the records requested.

You should begin your investigation and start gathering these records, as soon as possible. This is important because you will want to thoroughly review the records to see if they are useful or can provide names of other potential witnesses. If you want to use these records in trial, and they meet the requirements under the Texas Rules of Evidence 803 (6) – Business Records Exception, and the authentication requirements under Texas Rules of Evidence 902 (10), you will need to have the necessary affidavit completed and the records filed with the required notice at least 14 days prior to the commencement of trial. Further, under Texas Rule of Evidence 902 ((10) (a)), the proponent of the record must serve a copy of the record and the required affidavit upon all parties to the case, at least 14 days before the day on which evidence is first presented at the trial of the case. See Generally Texas Rules of Evidence 902.

If you are gathering information regarding the client and his family, and those individuals are cooperating with your investigative efforts, you will use basic releases for medical, military, counseling and therapy, mental health, education/school, social security administration, and I.R.S., records and information.

Most employment and/or personnel records will need to be subpoenaed from the home office of the business or employer in question Probation, County Jail, and T.D.C.J.I.D. records will need to be subpoenaed in most cases, as the respective counties and the Texas Department of Criminal Justice Institutional Division, deem them subject to certain confidentiality protections.

Generally, you can obtain Attorney General Records and/or documents by sending a written request to the Public Information Coordinator. Again, if this is not successful or you do not receive a response, file a specific motion for discovery and obtain a ruling, and attach the order to the subpoena, and request that said information be subpoenaed “in camera” to the Court on a specific date and time. At a minimum it will force the Attorney General of Texas to respond.

Chapter 56, Subchapter A of the Texas Code of Criminal Procedure provides for compensation to certain crime victims. This information it may be especially useful in your investigation. I would suggest that you initially file a specific motion of discovery, requesting this information, and explaining why it is relevant, and necessary in the preparation of the client’s defense (ie: demonstrate and outline your

25 | P a g e

compelling need given the known facts of your case). The application itself and its required contents under Article 56.36 is a variation of a verified and/or sworn statement, which should be discoverable. This will force the State, and perhaps the Attorney General’s office to respond and offer an argument and any applicable case authorities, suggesting why this information should not be produced. If you can obtain a ruling granting this discovery request, then you should subpoena the necessary records from the individual who has been designated in your county to be the Victim Assistance Coordinator. m. The Defendant has a right to Crime Stoppers Information. As such you will need to file a discovery motion requesting this information and/or prepare a subpoena to the individual in possession of the applicable local crime stoppers information. This information can be subpoenaed and produced “in camera”. Under Thomas v. State, 837 S.W.2d 106 (Tex. Crim. App. 1992), the defendant has a constitutional right to the production of crime stoppers information in the possession of the local Crime Stoppers program, the Crime Stoppers Advisory Council or the District Attorney’s office. Further, what is more interesting, under Crawford v. State, 892 S.W.2d 1 (Tex. Crim. App. 1994), any exculpatory information contained within a crime stoppers report is “Brady” material, and as such, there is no burden on the defendant under the Fourteenth Amendment to specifically request this material. This may present an interesting issue concerning the recently enacted amendments to Article 39.14 (Michael Morton Act), as the State has a continuing obligation to produce “Brady” material, which could potentially include Crime Stoppers information and records.

As a result of the potentially “Brady” element involved, you may want to subpoena the requested information “in camera”, because at a minimum the court can then make a determination if the requested information contains “Brady” material. If the court denies you access to this information, you should request that the information be sealed and marked as an exhibit for appellate purposes. At a minimum you have preserved error, and have made the Court the de facto gatekeeper of this information for purposes of trial, and as such, should it be deemed material at the time it is inspected or at any future stage of the trial, it must be released to the defendant for review. See Generally Thomas v. State, 837 S.W.2d 106 (Tex. Crim. App. 1992).

This presents an interesting dynamic at trial, because if the information is “Brady”, but initially withheld from the inspection of the defendant, I would argue that the release of this information during trial is a Brady violation, and request a mistrial and continuance if necessary to preserve error, and subsequently argue that jeopardy has attached.

Be Aware of the Circumstances When: a. Affidavits of Non-Prosecution (i)

26 | P a g e

If you have an investigator, allow your investigator to make the initial contact with the alleged victim or the alleged victim’s family. You will need to monitor the content of how your investigator should communicate with these individuals. In my opinion, it is not wise to allow your investigator to get too involved in procuring the affidavit, because you do not want to sacrifice the

credibility of your investigator or jeopardize their continued involvement in the case. (ii) Be aware that once you reach out to the alleged victim or their family, it is likely that they will notify the State or Law Enforcement of your actions. (iii) In contacting the alleged victim or their family, you need to be familiar with the rights of privacy, and other rights they may have under Chapter 56 of the Texas Code of Criminal Procedure (Rights of Crime Victims). (iv) Initially, as a general rule I will not contact or have my investigator contact the alleged victim or their family, for purposes of signing an Affidavit of NonProsecution, unless I have received information that they desire to cooperate with our investigation. (v) If the alleged victim or any family members desire to execute an Affidavit of Non-Prosecution, it can be accomplished for any specified reason as explained in the affidavit, but the basic rationale rests on two premises; (1) the alleged victim no longer desires to pursue the prosecution of the defendant, and the interests of justice are served by a dismissal of the charges, and (2) the alleged victim recants his previous statement as being untrue, and as a result the defendant should not be prosecuted. (vi) Never give legal advice to the alleged victim or their family members. If I end up meeting with these individuals, I will record the meeting with their consent, and explain to them that I cannot give them legal advice. (vii) It is my experience that most Affidavits of Non-Prosecution are executed because the alleged victim no longer desires to pursue the investigation. (viii) You need to explain to your client and the alleged victim and their family, that regardless of whether or not an Affidavit of Non-Prosecution is executed, the State will still have the prerogative to pursue criminal charges. (ix) Based on my experience, other than notarizing the affidavit if necessary, your staff should not discuss or play any role in obtaining the Affidavit of NonProsecution. b. Interviewing and getting a statement from the alleged victim (i) (ii) (iii)

(iv)

27 | P a g e

It is always preferable to use an investigator to get a statement from the alleged victim or their family members.

Other than notarizing the statement if it is sworn too or acknowledged, your staff should not discuss or play any role in obtaining a statement from the alleged victim or their family.

For purposes of a case involving a child, I will not allow a child to sign an Affidavit of Non-Prosecution, because it involves the notarization of their signature, but if the child is willing to speak with you and/or your investigator you should get a written and/or recorded statement. In rare instances, the child’s parents will allow my investigator to interview the child.

If an alleged victim, regardless of age, is recanting their statement, you need to document this information, and if possible, reduce this recantation to a written and/or recorded form. It is advisable that you and/or your investigator should have recorded documentation regarding this recantation or have a

(v)

(vi)

(vii)

witness present who can verify the recantation. This is critical at times, so that you and/or your investigator are not accused of tampering with a witness.

If this type of situation arises, having an experienced investigator assisting you, may allow you to use the recantation as a prior inconsistent statement in trial, if it is properly documented.

In contacting and getting a statement from the alleged victim or any of their family members, whether it is you or your investigator, be aware of Texas Penal Code Sections 36.05 (Tampering With Witness) and 36.06 (Obstruction or Retaliation).

If family or friends are cooperating with your investigation, and they are assisting in contacting or getting a statement from any of these individuals, they need to be made aware of Texas Penal Code Sections 36.05 (Tampering With Witness) and 36.06 ( Obstruction or Retaliation).

The purpose of mentioning these penal code statutes is based on my previous experience you may get a call from the State or law enforcement suggesting a line has been crossed, and you need to be familiar with them so you can respond appropriately.

c. Interviewing and getting a statement from a witness (i) (ii) (iii) (iv)

(v)

(vi) (vii)

28 | P a g e

Many of the same caveats and precautions which apply in interviewing and obtaining a statement from the alleged victim or their family apply to other witnesses as well.

It is always preferable to use an investigator in obtaining a witness statement.

Again, other than notarizing the statement if it is sworn too or acknowledged, your staff should not discuss or play any role in obtaining a statement from a witness.

The witness does not have to speak to you or your investigator. If they choose not to speak to you or your investigator, that needs to be documented, such that you can confront them with the fact that they refused to speak to you at trial.

If I am the person conducting an interview of a witness, I will ask permission and get consent to record the interview. If possible, I will have another person with me when I speak to a witness, so there is no confusion as to what was being discussed. If the witness will not allow me to record the conversation, and I don’t have a witness I will generally tread lightly, because of the fact that the witness could turn on you, and you have now become a witness to a prior inconsistent statement.

In contacting and getting a statement from a witness, whether it is you or your investigator, be aware of Texas Penal Code Sections 36.05 (Tampering with Witness) and 36.06 (Obstruction or Retaliation).

If family or friends are cooperating with your investigation, and they are assisting in contacting or getting a statement from a witness, they need to be made aware of Texas Penal Code Sections 36.05 (Tampering With Witness) and 36.06 ( Obstruction or Retaliation).

Use of Public Information Request: [Texas Public Information Act - Chapter 552 of the Texas Government Code] Listed below are some of the sections of Texas Public Information Act, which can be used and referenced and in obtaining certain public information and records: 1. §552.002 –Definition of Public Information; Media Containing Public Information 2. §552.003 – Definitions 3. §552.004 – Preservation of Information 4. §552.021 – Availability of Public Information 5. §552.022 – Categories of Public Information; Examples 6. §552.026 – Education Records 7. §552.0055 – Subpoena Duces Tecum or Discovery Request (A subpoena duces tecum or request for discovery that is issued in compliance with a statute or rule of civil or criminal procedure is not considered to be a request for information under this chapter) -- (ie: don’t refer to the information you may be requesting pursuant to a subpoena or your request for discovery as public information or records).

8. §552.225 – Time for Examination 9. §552.228 – Providing Suitable Copy of Public Information Within Reasonable Time 10. §552.231 – Responding to Request for Information That Require Programming or Manipulation of Data 11. §552.261 – Charge for Providing Copies of Public Information [Addresses and Contact Information] I have listed below several addresses and contact information sources which I have used in the past in obtaining information: (i)

Subject Matter:

Attorney General Records or Information Attention: Public Information Coordinator Office of the Attorney General P.O. Box 12548 Austin, Texas 78711-2548 Fax: (512) 494-8017 Email: publicrecords@texasattorneygeneral.org

(ii)

Subject Matter:

(iii)

Subject Matter:

Offender Visitor List Attention: Texas Department of Criminal Justice T.D.C.J. Open Records Office and Pen Packets Huntsville, Texas 77342-0099 Phone: (936) 437-8696 Fax: (936) 437-6227 Disciplinary Records

29 | P a g e

Attention:

(iv)

Subject Matter:

(v)

Subject Matter:

[Practice Note]

Texas Department of Criminal Justice T.D.C.J. Open Records Office and Pen Packets Huntsville, Texas 77342-0099 Phone: (936) 437-8696 Fax: (936) 437-6227 Inmate Grievance Records Attention: Custodian of Inmate Grievance Records 901 Normal Park, Suite #101 Huntsville, Texas 77320 Phone: (936) 437-8024 Inmate Medical Records Attention: Custodian of Medical Records Health Services Archives 262 FM 3478, Suite #B Huntsville, Texas 77320 Phone: (936) 439-1345 You may also need to contact UTMB Managed Care to subpoena medical records and can get their contact information by calling Lisa Lopez’ office at (936) 4391345. As such, once you contact this office you can determine if you need to issue to two separate subpoenas.

2. Internet a. Using social media sites such as Twitter, Facebook, Myspace, LinkedIn, Instagram, Pinterest, and Yahoo. (i)

(ii) (iii) (iv) (v) (vi) (vii)

30 | P a g e

Why should we use social media to investigate and discover information?

Because, law enforcement is using social media as an investigative tool, and they are starting to invest in training for officers to develop these specific types of investigative skills.

I will have my investigator monitor these sites to try and obtain information on witnesses and the alleged victim’s family members.

Use your client, or his friends or family members, to assist in gathering information off these sites.

Twitter is an online social networking and microblogging service.

Facebook is an online social networking service.

Using sites such as Facebook and Twitter can lead you to other witnesses and expose the motive(s) and biases of the alleged victim and their family members, as well as other witnesses.

When witnesses or the alleged victim engage in a Twitter or Facebook conversation regarding your case can sometimes provide especially useful information in establishing their specific motives and/or biases towards your client.

(viii) Myspace, Pinterest, and Instagram can provide similar type information. (ix) However, in using social media sites for purposes of investigation, be very aware and careful of how you initiate contact, and for what purpose. If an alleged victim or their family is on Facebook, and you attempt to “friend” that individual for investigative purposes, this could potentially lead to an ethical issue, based upon the context of the Facebook conversation which transpires. Social media is a form of recorded media, and it should be handled and treated carefully. I do not have an answer to this question but would advise you to tread lightly in this area. However, if the person’s page or account is public and/or has public content, in my opinion there would be no obligation to notify them of your representation. It is usually in the public account or public content pages where we discover useful information. b. General internet sites and search engines which may be useful in these types of cases. (i) (ii) (iii)

(iv)

(v)

Yahoo and Google are internet companies which are known for their search engines and web portal capabilities.

Yahoo, Google, and Bing are particularly useful web search engines which most of us are familiar with using.

Wikipedia is a general research site, with multiple sister projects, such as Wikibooks, Wikiquote, Wikidata, and Wikisource. This site will not provide very much information on specifics on a given case, but it is a general data base that I use to research pertinent topics regarding an investigation, or an expert used by the State.

Google Earth is a particularly useful site as it will allow you to get an aerial picture and/or mapped layout of a given geographic location. I will use Google Earth to determine distances, location, and terrain in some cases. You can upgrade to Google Earth Pro for a fee.

Google Scholar and Google Books is a useful site to research experts in their respective fields and any authored publications.

These sites can be helpful in either finding experts or researching the State’s experts for purposes of cross examination.

c. Specific internet sites which may be useful in these types of cases. (i)

31 | P a g e

Attorney General of Texas (free site) 1. Website: www.texasattorneygeneral.gov 2. The website is a good research tool and has a page specific for “Open Records Request”, under the Texas Public Information Act. 3. The page referencing the process by which you can request information under the “Open Records Act” provides you with a phone number to contact the Open Records Division, if you have not received

a response from a governmental body as required under the Texas Public Information Act. 4. Within 15 days of receiving your “Open Records Request”, the governmental body to which you directed your request must send the Attorney General of Texas its arguments for withholding such information.

5. In the event that you do not receive the information request, or a response as required, you may contact Jordan Hale, Public Information Coordinator, and Office of the Attorney General, P.O. Box 12548, Austin, Texas 78711-2548, and Fax (512) 494-8017. (ii)

(iii)

(iv)

(v)

(vi)

32 | P a g e

Digital Media Law Project (free site) 1. Website: www.dmlp.org 2. This website was founded in 2007 as the “Citizen Media Law Project”.

3. Basically, it was created to ensure that individuals and organizations involved in online journalism and digital media have access to the legal resources, education, tools, and representation that they need to thrive.

4. I have found this site helpful when needing to research certain requests for public information. Journalist often must rely on an open records request as part of their investigation, and there is no need to reinvent the wheel.

5. If you go to the legal guide and type in records and use Texas as your limited search reference, you can obtain information on Access to Public Records in Texas, and other informative information.

Texas Commission on Law Enforcement (free site) 1. Website: www.tcole.texas.gov 2. As previously mentioned, this site allows you to request under the Texas Public Information Act, an officer’s training history. Can be especially useful in cross examination of the officer.

Texas Department of Public Safety (free site for general information) 1. Website: www.txdps.state.tx.us/index.htm 2. I will use this site to perform a public search on an individual’s criminal history. To use this service, you must establish an account with a credit card, and there is a fee of $3.00 per search which is charged.

3. Useful in running basic criminal history searches which are available to the public. This is not a TCIC or NCIC criminal history search.

Texas Department of Criminal Justice (free site) 1. Website: www.tdcj.state.tx.us/index.html 2. I will use this site for basic information, and locating other inmates that may need to be interviewed or on which I need to request information and documentation from T.D.C.J.I.D. Window on State Government (free site) 1. Website: www.window.texas.gov 2. This is a general site for the Texas Comptroller of Public Accounts.

3. Under the Quick Start Guide, it has resources for Citizens, Business, and Government, which can provide links to other useful sources of information. (vii) Texas Association of Appraisal Districts (free site) 1. Website: www.taad.org 2. Under Resources, you can access all CAD website links, and has contact information for all county appraisal districts.

3. This can be useful in locating individuals if they are property owners. (viii) Anywho (free site) 1. Website: www.anywho.com 2. Basically, the white pages for the internet, but you can perform a reverse lookup if you have a phone number, and it is listed.

3. Also has yellow and white pages search data base.

4. Can also look up area and zip code locations. (ix) Various County Public Records Access (generally these are free sites) 1. Many counties now offer public records access, which is useful in finding witnesses, and sometimes even your client.

2. You can often locate arrest information on witnesses, the alleged victim, and your client.

3. When we open a criminal file, one of the first things my legal assistant does is print out the information available on the public records access website regarding the charged offense, including the jail and bond records information.

4. Kerr County’s website is www.co.kerr.tx.us/public.

5. Gillespie County has a similar website at http://odysseypa.tylerhost.net/Gillespie/default.aspx (x) The Official Website of the State of Texas (free site) 1. Website: www.texas.gov 2. This website has an expansive amount of information, most of which is not useful at all in obtaining and investigating your cases. However, if you go to the Agency Finder directory, it provides a list of 189 state agencies. This specific information can assist you in locating other sites which can provide useful information. (xi) Tarlton Law Library (free site) 1. Website: http://tarlton.law.utexas.edu/ 2. This is website for the University of Texas at Austin School of Law Can provide helpful information, but generally in the form of legal research. (xii) TCDLA 1. Website: www.tcdla.com 2. This is our website, and exclusive to members it provides access to the Listserv, Brief Motion and Memo Bank, Expert List, Directory Search, Significant Decisions, and other Resources.

3. The Listserv is a great way to gather information on certain State witnesses or experts, to the extent they have been used by the State before, even in different counties and jurisdictions.

33 | P a g e

(xiii) Texas District & County Attorneys Association 1. Website: www.tdcaa.com 2. I will sometimes use this site for general legal research, but it now has a “Brady” resources site, which has a list of their resources, including some reference materials, on the amendments to Article 39.14 (Michael Morton Act), and a list of those prosecutors which have completed the required training seminar. (xiv) This is a free site, but the information is limited unless you are a prosecutor. (xv) Intelius 1. Website: www.intelius.com 2. This website is free if say you are just looking up a person by name and city. However, once the person is located, other detailed information is only made available for a fee.

3. If I am utilizing the services of an investigator, I will usually rely on them to provide much of the information that is available through a website like Intelius. You should coordinate these efforts with your investigator. (xvi)

Naval Oceanography Portal 1. Website: http://www.usno.navy.mil/USNO/ 2. Free website that you can use for data on sunrise, sunset, and different phases of the moon.

3. In eyewitness identification cases can be helpful in determining the conditions of natural light. (xvii) Farmer’s Almanac 1. www.almanac.com 2. This website is free for most uses and has a weather site where you can retrieve basic information on historical weather, such as rain, snow, and temperature for a given city and state. (xviii) Weather.org 1. www.weather.org 2. Free website for most purposes that allows you to retrieve basic historical information on weather patterns 3. Pre-Trial Motions and Court Resources The use of certain pre-trial motions is a necessity in most sexual assault cases whether the alleged victim is an adult or a child. In a sexual assault case, I generally file the following motions at the very beginning of my representation of the client: 1.

2.

3.

4.

5.

Motion to Designate Experts; and Motion for Voir Dire of State’s Experts (TRE 701-705); and Motion for Notice of Extraneous Offenses (TRE 404 (b) and TCCP 38.37); and Request for Hearing Outside Presence of the Jury TRE 403); and Motion for Discovery of Arrest and Conviction Records of State’s Witnesses.

34 | P a g e

(This excludes law enforcement personnel, as the State should give you some type of “Brady” notice if any of their law enforcement witnesses have past criminal convictions) I prefer to file these types of motions early in the case, to get ahead of how the State expects me to proceed.

As to the specifics of receiving discoverable materials from the State, I will generally send the State a discovery and notice letter, which sets out specific materials I am requesting in accordance with TCCP Art. 39.14.

Once I have received the offense report and other discoverable materials from the State, it is at that point that I will make a list of potential documents and information which I believe need to be collected and reviewed. This list of documents and information which need to be collected may vary based on the type of sexual assault with which the client is charged, and the circumstances surrounding the allegation.

Case Involving a Child – General Documents to Collect 1.

2.

3.

4.

5.

6.

School Records Counseling/Therapy Records CPS Records Psychological Records Medical and Hospital Records Court Records

Case Involving an Adult – General Documents to Collect 1.

2.

3.

4.

5.

Counseling/Therapy Records Court Records Psychological Records Medical and Hospital Records Employment Records

You can file a general and specific Motion for Discovery to collect this type of information. I do not always file a general Motion for Discovery, unless I am having difficulty getting information from the State or I believe there are gaps in the information I have received.

Once I have reviewed the discoverable materials and offense report I will begin to draft and file specific or supplemental Motions for Discovery, where I am requesting certain detailed information from the State. In following up on this issue with a specific or supplemental Motion for Discovery, I will request that the information be produced, but if the information is not in the State’s possession or is not readily obtainable by the State I will request that the Court order that I shall be allowed to subpoena said records “in camera” to the Court for review. On occasions certain entities will not respond to a subpoena request for records, but if I attach a copy of the Court’s Order stating I can subpoena the records “in camera”, I will generally receive the records after the Court’s “in camera” inspection is complete. Procedurally, if the Court refuses to give you the subpoenaed records after the “in camera” inspection, you need to object to the Court’s decision regarding this issue and have all the records marked as a sealed Defendant’s Appellate Exhibit. A specific Motion for Discovery can be a useful tool in pointing out to the State that there are problems with the case, and it requires additional investigation. This lack of 35 | P a g e

information or an incomplete investigation can lead to productive plea negotiations and a potential resolution of the case, without having to proceed to trial.

Your efforts in attempting to draft a general or specific Motions for Discovery should mirror your work in subpoenaing any necessary records or information. As such, always follow up your Motion for Discovery with any applicable subpoena request. I do not consider these efforts duplicative or repetitive, but thorough. One way or another you need to get this information, as your defense strategy will likely depend on it.

As you begin to collect and gather information, depending upon the circumstances of the client’s case, you will invariably need to retain an investigator and/or certain experts. In court appointed cases or those cases in which you may have been retained but your client has no other available resources for an investigator or expert(s), you will need to request funds from the Court to retain these types of professionals. I will almost always file motions for experts “Ex Parte” as motions filed in this regard will have some information which can infer or tip your trial strategy.

I will not usually file a motion to authorize funds for an investigator “Ex Parte”, because I do not believe it involves trial strategy, but this motion can also be filed “Ex Parte” so long as you illustrate to the Court it involves an issue concerning your trial strategy. From a practical standpoint I do not file any motions requesting funding for an investigator “Ex Parte”, because your investigator is usually out in the community following up with witnesses and sometimes is getting information directly from law enforcement personnel. If the Court denies any “Ex Parte” motion filed by you requesting investigator or expert assistance, you will need to request that the Court provide you a hearing outside the presence of the State, such that you can enumerate on the record the reasonableness and necessity of your request.

As a matter of being thorough in drafting any “Ex Parte” motion for an investigator or expert, you should articulate with specificity the following: 1. You expect the State to have available to it and to present at trial certain testimony attributed to an expert or investigator, which you as legal counsel are not qualified to interpret or rebut for that purpose; and 2. How the specific professional services you are seeking are necessary to your client’s defense; and 3. Elaborate on the necessity and reasonableness, given the circumstances of your client’s case, for you to have access to these professional services for assistance in trial preparation and through trial; and 4. Detail to the Court that if you are not provided with access to the specific type of professional services requested, you may not be able to provide your client with effective assistance of counsel while investigating the facts of your client’s case and through trial; and 5. When detailing the funding required, you should put in the motion, based on your conversation with qualified experts, what you expect an initial retainer to be, include a reference to the proposed expert’s hourly rate and number of hours estimated (if applicable), and ultimately the estimated total expense of these types of services through trial; or 6. If you have a specific professional in mind to provide the services you require, put in the individuals name, their professional title, and their fee structure. (I will sometimes attach their CV and fee estimate as an exhibit to the motion) 36 | P a g e

7. To properly preserve error, this type of “Ex Parte” motion is required to be sworn to or have an attached affidavit supporting same. The supporting affidavit can be signed by the expert you intend to use which specifically describes the services to be provided and necessity of the services requested.

If you request and receive a hearing on an “Ex Parte” motion for funding, this satisfies the requirement that it otherwise be sworn to or supported by affidavit. However, whether you have previously sworn to the motion or support same by affidavit, I would insist that the court schedule a “Ex Parte hearing regarding same, such that you can elaborate and expand upon your rationale for the requested funding.

Generally, I have not had to file sworn “Ex Parte” motions in order to receive requested funding, but I do notify the Court if they intend to reduce or deny the requested funding that I will require an “Ex Parte” hearing to preserve same for purposes of appeal.

It has been my experience that this request will normally satisfy the Court’s inquiry regarding same, and I have not had to present further information or swear to the motion itself to have same granted. However, if you are practicing before a Judge who is not prone to grant funding requests in non-capital cases, then I believe that you must swear to this type of motion or support same with an affidavit from your chosen expert and set same for an “Ex Parte” hearing before the Court. It is my opinion that how you initially present an “Ex Parte” motion for funds to the Court is tactical decision you must make as the trial attorney based on your relationship and prior history with Court.

Over the last couple of years, I have had several cases in which it has been necessary to file a Motion to Quash. Specifically, those motions have dealt with the issue of recklessly, as that specific term is sometimes used in an indictment or the fact that the indictment does not charge the offense in ordinary and concise language, such that your client has notice of that which he or she finds themselves charged with. This issue does not come up very often in sexually related cases, because the conduct in question is alleged as intentionally and knowingly, and not recklessly. However, there are some situations in which the sexually related case is accompanied with an aggravated assault count in which a reckless form of conduct is alleged. There is also the situation where based upon the convoluted nature of the allegation, the State has a difficult time articulating in the indictment just how your client committed a criminal offense, such as a case where an attempted offense is alleged. The purpose of a motion to quash is to give notice to the Court that the State’s indictment does not provide the degree of certainty necessary to give the Defendant notice of the particular offense with which he or she is charged. Further, an indictment must specify the manner and means by which the Defendant has committed the offense. I would leave you with this thought regarding filing a motion to quash, if after reviewing the State’s indictment against your client you do not have a clear and concise understanding of the following, you need to file a motion to quash: 1. Who is your client accused of sexually assaulting? (child case will be a pseudonym); and 2. The general circumstances of the accusation (ie: Adult = Rape or Child = Consent not an issue); and 3. The manner and means by which your client is alleged to have committed the offense.

37 | P a g e

TRE and Pre-Trial Motions 1. Rule 403 [Relevance Balancing Test] You can and should request a gatekeeper hearing outside of the presence of the jury regarding the prejudicial effect of certain types of evidence, should the Court have overruled your basic objection as to relevance under Rule 401. You should object and explain to the Court that if the Court has found the evidence to be relevant, you would further move to exclude the evidence under Rule 403 in that the probative value of the evidence is substantially outweighed by its prejudicial effect. You can require that the Court engage in a balancing test based upon an objection made under Rule 403. See Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999).

Gigliobianco v. State, outlines the 6 distinct issues that the Court must balance and consider under a 403 analysis, as follows: (a) (b) (c) (d)

Inherent probative force of the proffered evidence along with Proponent’s need for the evidence against Any tendency of the evidence to suggest decision on an improper basis Any tendency of the evidence to confuse or distract the jury from the main issues of the case, (e) Any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (f) Likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

See Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006).

2. Rule 412 [Evidence of Previous Sexual Conduct – Rape Shield Rule] Generally, reputation/opinion evidence and evidence of specific instances of sexual conduct are not admissible.

There are exceptions to this general rule of exclusion such as: a. Evidence is necessary to rebut or explain scientific or medical evidence offered by the State (i.e.: the tears to the anus were due to another sexual encounter). b. Evidence is offered on the premise to establish the previous sexual behavior between the accused and the victim, for purposes of establishing consent. Note: If the state offers testimony to establish the relationship between the parties, you should certainly attempt to introduce this type of evidence because the State has opened the door. c. Motive or bias of the alleged victim. d. Constitutionally required, and e. Probative value outweighs the danger of undue prejudice.

38 | P a g e

If you intend to introduce this type of evidence, prior to questioning the alleged victim, you must inform the court and request a hearing outside of the presence of the jury. The Court will then conduct an “in camera” hearing, recorded by the court reporter, to determine what if any evidence of this type will be admissible, and will limit questioning accordingly. After concluding this hearing, the Court will seal the entire contents of the “in camera” hearing which was conducted for appellate purposes, and the record shall be sealed.

If you are limited or otherwise prohibited from questioning the alleged victim under Rule 412, you must make a record and object, and require the Court to conduct a mandatory “in camera” hearing, and as such, you have effectively made the Court a gatekeeper of this evidence for purposes of appeal.

3. Rule 703 [Expert Opinions] An expert can rely on basically any evidence including hearsay evidence, which would otherwise be inadmissible, in forming the basis of an opinion, so long as it is the type of information, facts or data reasonably relied upon by experts in a particular field.

4. Rule 704 [Expert Can Give an Opinion on an Ultimate Issue] If the Expert gives an opinion regarding an ultimate issue in the case, to be decided by the jury (i.e.: causation), it is not objectionable because it involves an ultimate issue reserved to the jury.

Note: While I understand the meaning of this rule, if the prosecutor asks an expert did my client sexually assault that child or person, I am going to object because that goes beyond the ultimate issue itself and is an attempt to usurp the jury’s function. This objection may not work, but fundamental fairness and due process of law should require the Court to not allow such testimony as unfairly prejudicial.

5. Rule 705 [Gatekeeper Hearing] The Court, upon request generally in the form of a pre-trial motion and/or notice, require that the expert appear and testify under a type of voir dire process, outside the presence of the jury, regarding their opinion and the underlying facts and data supporting said opinion. For the expert to be allowed to testify as to their opinion, it must be established that there is a sufficient basis for their opinion, otherwise the opinion is inadmissible. Further, the Court can conduct a balancing test when the underlying facts and data would be otherwise inadmissible, if the danger exists that they will be used for a purpose other than as an explanation or support for the expert’s opinion is outweighed by their unfairly prejudicial value. In this instance, you can request a limiting instruction.

Note: Keep in mind that that the Texas Rules of Evidence, are in fact rules of exclusion, with some exceptions. In cases involving sexual assault or aggravated sexual assault you need to have a firm command of these rules of evidence, and the applicable case precedent, to successfully defend your client and preserve error for appellate purposes.

39 | P a g e

6. Rules 404 (b) [Extraneous Offenses] Other crimes, wrongs, or acts is not admissible to prove the character of a person to show actin in conformity therewith.

However, this type of evidence may be admissible for limited purposes such as to prove (1) motive, (2) opportunity, (3) intent, (4) preparation, (5) plan, (6) knowledge, (7) identity, (8) absence of mistake or accident.

Must request notice and/or file a motion requesting notice. If you file a motion requesting notice you must get it ruled on and request a certain time frame in which to receive this information in advance of trial. You will need this time to investigate the nature of the alleged extraneous offenses.

Even if the state gives proper notice, you must make the State make an appropriate and sufficient proffer to the Court regarding the extraneous conduct allegation. Always request a hearing outside of the presence of the jury such that you can cross examine the State’s witnesses regarding this proffer of proof. The Court must make a finding, at the conclusion of this proffer, that the jury could find that the extraneous conduct was committed beyond a reasonable doubt. You must require the Court to make this finding on the record, and subject to your continued objection. You should also request that the State premise on which basis and for what purpose under 404(b) is the State requesting that the jury consider this evidence.

Once the evidence and/or testimony is admitted, over your objection, you must request a limiting instruction regarding the evidence and/or testimony. If you do not follow these steps in some form you will not preserve your objection for purposes of appeal, and you will not be entitled to a jury instruction regarding the extraneous conduct.

Important Cases: A. Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008) Extraneous offenses type evidence may be admissible to rebut defensive theories of fabrication, frame up, or retaliation.

Therefore, be aware of fact if you believe the child is lying because the mother is retaliating against you for some reason, you may have just opened the door to an otherwise inadmissible extraneous act.

B. Daggett v. State, 187 S.W.3d 444 (Tex. Crim. App. 2005) Leaving a false impression with the jury. If a defendant makes a general statement like I would never have sex with a minor, he may have opened the door to a relevant act or character trait. An extraneous act which tends to rebut such testimony may be admissible to impeach the defendant. However, when evidence of this nature is introduced at trial the jury may not consider it as substantive of the charged offense, but only as evidence that the defendant misrepresented himself.

40 | P a g e

[Practice Note] Ultimately, this rule of evidence is used in conjunction with TCCP 38.37 in child sexual assault cases, to introduce all types of extraneous acts to leave the impression with the jury that your client did it once, so therefore it is logical to assume he did it again.

Our recourse is to continue to object and hold the State to its burden regarding the proffer of testimony and/or evidence and require the Court to do its job in assessing the credibility of the testimony and/or evidence and give the Defendant an appropriate limiting instruction.

TCCP & Pre-Trial Motions TCCP 38.07 [Testimony in Corroboration of Victim of Sexual Offense] This provision provides that a conviction for Sexual Assault, and Aggravated Sexual Assault is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is said to have occurred.

This provision does not apply to on offense where the alleged victim is 17 years of age or younger; a person 65 years of age or older; or a person 18 years of age or older who because of age or physical or mental disease, defect, or injury was substantially unable to satisfy the person’s need for food, shelter, medical care or protection from harm.

TCCP 38.071 [Testimony of Child who is Victim of Offense] This provision provides the Court with guidance regarding the hearing to conduct in which the court determines that a child who is less than 13 years of age would be unavailable to testify in the presence of the defendant about an allegation regarding Indecency with a Child, Sexual Assault, and Aggravated Sexual Assault. There are other criminal offenses to which this section applies but have no application in this paper. This provision basically provides the Court with the parameters and guidelines by which it must determine during a hearing how and if the recorded statement of a child, made before the indictment is returned or complaint filed, is admissible into evidence. This provision allows for the child to testify in another room other than the courtroom and be viewed by the jury. This provision also allows for the propounding of written interrogatories to the child. If the Court determines that the testimony of the child is to be taken under Sections 3 or 4 of this article or if the Court finds that the testimony of the child taken under Subsection 2 or 5 of this article is admissible into evidence, the Court may not require the child to testify in Court at the proceeding for which the testimony was taken, unless the Court finds there is good cause. There are additional provisions for how the questioning and cross examination is to take place, and if the child is required to testify in Court, the reasonable steps necessary to protect the child’s psychological well-being including allowing the child to testify via closed circuit video.

Note: Be aware of the confrontation clause if this issue is raised, and object and require the Court to conduct the required hearing and argue that any type of accommodation which does not provide you with the ability to adequately cross-examine the alleged child victim violates the tenants of the confrontation clause of the U.S. Constitution.

Coronado v. State, 351 S.W. 315 (Tex. Crim. App. 2011) 41 | P a g e

A list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is not constitutional substitute for live cross-examination and confrontation. (Videotape procedures under Art. 38.071, §2, with use of written interrogatories in lieu of live testimony and cross-examination, did not satisfy Crawford v. Washington).

TCCP 38.072 [Hearsay Statement of Certain Abuse Victims] The outcry statement is the statement made by the child regarding the alleged assault to the first person 18 years of age or older describing in sufficient detail the alleged offense. The statement must be otherwise admissible under Article 38.37 of TCCP and Rules 404 and 405 of TRE. This article applies only in cases in which the child which makes the statement is less than 14 years old. A statement which meets the description as provided for under Subsection (a) of 38.072 is not inadmissible as hearsay if the State gives notice of its intent to use said statement, provides the subject matter of the statement, and by whom the statement is made. The Court shall conduct a hearing outside of the jury’s presence to determine if the statement is reliable.

Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990) The outcry witness is the first person 18 years of age or older, to whom the child makes a statement that is some discernable manner describes the alleged offense.

Note: You do not necessarily need to request notice of the outcry, as it is specifically required by statute if the State intends to use such a statement.

TCCP 38.37 [Evidence of Extraneous Offenses or Acts] This provision under Sec. 1 allows the State to use evidence of other crimes, wrongs, acts, if committed against a child victim less than 17 years of age for its bearing on relevant matters, including the state of mind of the defendant and the child; and the previous and subsequent relationship existing between the defendant and the child. This is in addition to and in some cases circumvention of TRE 404 and 405. This is the way the State attempts to circumvent the requirements of TRE 404 (b) and its limited use regarding other crimes, wrongs, or acts, which may have been committed by the Defendant. You should always request notice of extraneous offenses by way of a filed notice request and/or motion. If you file a motion requesting notice you must get a ruling and order stating how many days prior to trial, must the State give you of notice of said extraneous acts.

Under Sec. 2 of this article, if the State gives you at least 30 days’ notice of its intent to introduce evidence that the defendant has committed a separate criminal offense which is listed under Sec. 2 ((a) (b)) – (basically all listed offenses which are sexually related offenses), they are entitled to admit same into evidence for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.

This is basically the kitchen sink approach when it comes to extraneous offenses and their admissibility at trial.

Hearing must be conducted outside the presence of the jury for the Court determining whether a jury could find that the separate offense was committed beyond a reasonable doubt.

42 | P a g e

[Practice Note] Always object to any evidence coming in under this article and request the appropriate limiting instruction. Also, you should object to relevance under TRE 403, after you have sufficiently objected to this evidence on other grounds.

43 | P a g e

V.

Getting it Done on a Budget Many of the resources discussed previously in this paper can be utilized by you, when your budget is limited. The methods and resources which are of importance when investigating on a budget are the following: 1.

2.

3.

4.

5.

Develop a client profile.

Develop a defensive theory and trial strategy.

Use the client’s family and friends as a source for information.

Use the client’s family and friends as a method to gather and develop information.

Use the client’s primary medical care providers and other professionals involved with him to provide economical access to information.

6. Develop a specific list of records and information must collect.

7. Requests for information under the Texas Public Information Act. 8. Use of Subpoenas.

9. Educate yourself regarding the specific professional disciplines which are involved in your client’s case (ie: psychologist, medical professional, counselor, or SANE nurse, etc.).

10. Using social media (Be aware of the previous caveats referenced in this paper).

11. Use of websites which can provide specific information regarding the circumstances of the allegations.

12. Once you have gathered the information available to you through these resources, the process should be streamlined and allow you to save some money, if an investigator is still needed to follow up on the collected information and/or investigate the gaps in the information.

The key organizational component on investigating your case with limited funds is to streamline your accessibility to information and documents. If resources are limited take up the family member or friend any help they can provide. A family member with ties to the community can assist you a great deal in saving time and energy locating witnesses and developing a client profile. Family and friends are not only a reliable source of information, but they can also assist you in developing additional avenues in investigating the case.

As discussed previously, if you do find yourself in a situation where an expert or investigator is necessary, and your funds are limited, you should file a motion with the Court requesting funds for those services.

44 | P a g e

Top 15 Points For a Successful Pre-Trial Investigation 1. Learn to adapt and create other methods of obtaining information.

2. Train yourself to be a better listener.

3. Develop a defensive strategy early.

4. Prepare an outline and plan for your investigator.

5. Prepare an outline and plan for your expert.

6. Clearly state your expectations to your experts and investigators.

7. Document your file regarding your investigation efforts and progress.

8. Schedule regular defense team meetings.

9. If you have audio/video interviews, transcribe them in some form.

10. Lab reports: Request a copy of the supporting litigation packet.

11. Inspect the alleged crime scene.

12. Investigate any physical injuries concerning the alleged victim.

13. Be cautious when approaching an alleged victim for an interview.

14. Contact any experts referenced in the discoverable materials.

15. The defense team is a castle, not an island, you can ask for help.

45 | P a g e

Texas Criminal Defense Lawyers Association

Defending Those Accused of Sexual Assault Allegations December 3-4, 2020

Topic: Motions Speaker:

Grant Scheiner TCDLA President Scheiner Law Group, P.C. Houston, Texas (713) 581-4540 Phone grant@scheinerlaw.com Email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

MOTIONS What, When, How & Why to File Motions and Requests in Sexual Assault Cases

Texas Criminal Defense Lawyers Association “Defending Those Accused of Sexual Offenses” December 3-4, 2020 Houston, Texas

Grant M. Scheiner TCDLA President Scheiner Law Group, P.C. Houston, Texas grant@scheinerlaw.com C: 713-581-4540

Will R. Vaughn Scheiner Law Group, P.C. Houston, Texas will.vaughn@scheinerlaw.com

Biographies

Grant Scheiner Grant Scheiner is President of TCDLA. He is Managing Attorney for Scheiner Law Group, P.C. in Houston. Grant practices in state and federal courts. He is Board Certified in Criminal Law and currently serves on the Board of the Texas Board of Legal Specialization. Grant is a Life Member of the National Association of Criminal Defense Lawyers and a Life Fellow of the Texas Bar Foundation. He is a Past Chair of the Computer & Technology Section of the State Bar of Texas.

Grant earned his J.D. at the University of Houston Law Center and a B.A. in Communication from Trinity University.

Will Vaughn Will Vaughn is an active member of TCDLA and an attorney for Scheiner Law Group, P.C. in Houston. He practices in state and federal courts. Will earned his J.D. at South Texas College of Law. He attended Emory University on a baseball scholarship and obtained a B.A. in History from Texas A & M University.

Acknowledgments The authors gratefully acknowledge Jose Ceja (Houston), Neal Davis (Houston), and Rick Wardroup (Lubbock) for contributing excellent motions for this paper. If any defense lawyer has a motion to share for a future version of this paper or presentation, please contact Grant Scheiner at grant@scheinerlaw.com or Cell: 713-581-4540. You will receive an acknowledgment for anything we publish.

Š Grant M. Scheiner, Scheiner Law Group, P.C. 12.3.20

Table of Contents 1. Motion to Substitute Counsel .………………………………………………………………………….………..………. pg. 1 2. Request for Discovery, Notice & Speedy Trial ……………………………………………………………………… pg. 2 3. Brady Request …………………………………………………………………………..………………………………………… pg. 3 4. Motion for Production of Grand Jury Testimony …………………………………………………………………. pg. 4 5. Application for Subpoena Duces Tecum ……………………………………………………………………………… pg. 6 a. Writ of Attachment…………………………………………………………………………………………………. pg. 6 6. Motion for Discovery of Child Assessment Center, Therapy & Mental Health Records ..……… pg. 8 7. Motion for Disclosure of CPS Records …………………………………………………………………………………. pg. 8 8. Motion to Disclose Specific Information & Evidence (Alternatively, Depositions) ……………….. pg. 8 9. Motion to Inspect, Examine and Photograph Physical Evidence …………………………………………. pg. 8 10. Produce Complainant’s Video …………………………………………………………………………………………….. pg. 9 11. Transcribe Complainant’s Video …………………………………………………………………………………………. pg. 9 12. Motion for Hearing Outside Jury’s Presence on the Complainant’s Competency ………………. pg. 10 13. Motion for Declaratory Ruling on Admissibility of Extraneous Conduct ………………………...…. pg. 11 a. Motion for a Hearing and Exclude Evidence Under Texas Rules of Evidence 404 and 609 and Texas Code of Criminal Procedure Article 38.37…………………………………………...…….. pg.11 14. Motion to Exclude Evidence of Alleged Child Porn and Animated Child Pornography ……….. pg. 18 a. Brief in Support of Motion to Exclude……………………………………….…………………………… pg.18 15. Suppress Illegally Obtained Evidence ………………………………………………………………………………… pg. 19 16. Motion for Hearing on Admissibility of Outcry Statements ……………………………………………….. pg. 20 17. Defendant’s Motion in Limine …………………………………………………………………………………………… pg. 21 a. Motion in Limine Regarding Statutory Definition of Consent………………………………… pg. 21 b. Motion in Limine Regarding Blackmail………………………………………………………….….…… pg. 21 18. Prevent Closure of Courtroom During Presentation of Evidence ………………………………………. pg. 22 19. Defendant’s Motion for Community Supervision ………………………………………………………………. pg. 23 20. Defendant’s Sentencing Election ………………………………………………………………………………………. pg. 23

21. Defendant’s Motion to Require Prosecutor to Elect ………………………………………………………….. pg. 24

1. Motion to Substitute Counsel Whether you are newly retained or appointed, it is always a good idea to check the District Clerk’s records to see if there is a current attorney attached to the case(s). In some jurisdictions a person accused of a serious crime is automatically appointed counsel. The client may not even be aware -- especially if the appointed lawyer hasn’t had an opportunity to inform and meet with the accused. In some instances, the client has requested a court-appointed attorney but has since changed his mind, and the court-appointed counsel is still attached to the case. In other instances, the client may believe that a previous attorney has withdrawn, but there is no signed judicial order relieving the lawyer of his or her responsibilities.

If you discover there is a current attorney assigned to the case, you should not take any action on a matter until you have filed and the judge has signed a Motion to Substitute Counsel.

As a courtesy it is usually a good idea to contact the current attorney’s office and ask if he or she will sign the Motion and return it to you by email or fax. Do not sign the lawyer’s name “by permission,” even if he or she asks you to do so. Instead request that someone from the attorney’s office sign. Never ask your client to get the outgoing lawyer’s signature on a Motion to Substitute Counsel. Doing so might put your new client in an uncomfortable position. No one wants to explain to an outgoing attorney why he or she is being replaced.

If you can’t get the outgoing lawyer’s signature on the Motion, you can always go to the judge without it. The only signatures required for a Motion to Substitute Counsel are yours, the client’s and the judge. Some trial courts will ask whether you notified the outgoing counselor and the attorney for the state. While it probably isn’t technically necessary to notify the various

1

parties, you are usually better off doing whatever is required to appear on the case. You can’t help your new client if you aren’t allowed to sign on.

Unless you are on the eve of trial and substitution will substantially delay the proceedings or cause some type of material harm or prejudice, a judge will normally sign the Motion by virtue of your client’s constitutional right to choice of counsel. See United States v. Gonzalez-Lopez, 548 U.S. 140, 146-50 (2006) (Erroneous deprivation of defendant’s Sixth Amendment right to choice of counsel is structural error, not subject to harm analysis). However, in the event a trial court judge tells you there will be no further delays in the case and that if you sign on, you are going to trial soon -- whether you are ready or not -- you should seriously consider not appearing on the case. Never let a judge or anyone else intimidate you into committing ineffective assistance of counsel.

2. Request for Discovery, Notice & Speedy Trial Under Article 39.14 of the Texas Code of Criminal Procedure (a.k.a. the Michael Morton Act), you do not have to file a formal motion with the trial court requesting most discovery and the judge does not need to sign a formal order. TEX. CODE CRIM. PRO. Art. 39.14 (a) (“[A]fter receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports,” etc.). You only need to make a request. Id. Even if you are dealing with a District Attorney whose policy is to provide discovery and other items whether or not requested, be sure to send a written request to the appropriate prosecutor or District Attorney’s Office and file a copy with the District Clerk. In some jurisdictions the District Attorney will not supply

2

discovery pre-indictment. Nevertheless, as long as you file your Request for Discovery, Notice and Speedy Trial at the beginning of the case, you are covered in the event your client is indicted and the prosecutor accidentally or purposely withholds discoverable evidence. Additionally, since there is no rule against combining multiple requests in a single document, consider requesting notice under TEX. R. EVID. 404(b) [evidence of crimes, wrongs, or other acts]; TEX. R. EVID. 609(f) [impeachment by evidence of criminal convictions]; TEX. CODE CRIM. PRO. Art. 37.07 § 3 (g) [sentencing evidence]; TEX. CODE CRIM. PRO. Art. 38.37 [extraneous offenses or acts in sex crime cases]; TEX. CODE CRIM. PRO. 39.14 (b) [experts and non-lay witnesses]1; and, requesting a speedy trial.2 Do not file your requests for discovery, notice and speedy trial in the form of a motion. If you file a motion(s) and do not get a ruling, you risk waiving your right to the items requested.

See Mitchell v. State, 982 S.W.2d 425, 427 (Tex.Crim.App.1998) (“Pursuant to our recognition … of the distinction between a request for action addressed to the trial court and a request for action addressed to the State, we hold that when a document seeks trial court action, it cannot also serve as a request for notice [from] the State …”) Instead, file your requests in the form of a letter, which you can show to the trial court in the event of a discovery or notice dispute.

3. Brady Request Courtesy of Neal Davis (Houston), this paper includes a “Defendant’s General and Specific Requests for All Evidence and Information Under Brady and its Progeny.” Although prosecutors

1

See Kumho Tire Company, LTD. V. Carmichael, 526 U.S. 137, 141 (1999) (Daubert and FED. R. EVID. 702 applies not only to testimony based on “scientific” knowledge, but also to testimony based on “technical” and “other specialized” knowledge”).

2 See Barker v. Wingo, 407 U.S. 514, 528 (1972) (Defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.)

3

are required to disclose exculpatory evidence to the defense even in the absence of a request,3 the United States Supreme Court has held that a prosecutor’s failure to comply with a specific request may be more favorable to the accused on appeal. See United States v. Agurs, 427 U.S. 97 (1976) (Failure to tender the murder victim's criminal record to the defense did not deprive defendant of a fair trial where it appeared that the record was not requested by defense counsel). There is no downside to filing a Request for Brady Evidence. Always keep in mind that a prosecutor’s duty to supply Brady-type evidence is not limited to exculpatory material. A prosecutor is required to provide evidence which is exculpatory, favorable or may be used for impeachment. See Kyles v. Whitley, 514 U.S. 419, 450-51 (1995) (Although prosecution's list of cars in parking lot near scene of murder at midevening after murder did not rank with failure to disclose other evidence, such as eyewitnesses' statements, it would have had some value as exculpation and impeachment, and thus, nondisclosure of such list was required to be considered in determining whether “materiality” requirement for Brady violation was satisfied). The duty of disclosure applies to guilt/innocence and sentencing evidence. See Banks, 648 U.S. at 690.

4. Motion for Production of Grand Jury Testimony Oftentimes a prosecutor will indict an accused without presenting any live testimony to a grand jury. However, a prosecutor may occasionally call a live witness, such as a complainant, key witness, investigator, or police officer. Whenever you learn that an indictment was returned on the basis of live witness testimony, you should always try to get a copy of the transcript -- if one is available. (Some prosecutors purposely avoid having a court reporter in the grand jury

3

Banks v. Dretke, 540 U.S. 648, 690 (U.S. 2004).

4

room when a state-friendly witness testifies, because they don’t want a transcript which a defense attorney may later use for impeachment.) However, when an accused or suspected person testifies before the grand jury, a stenographer is required. Tex. Code Crim. Pro. Art 20A.201. An unintentional failure to record all or part of the examination testimony will not affect the validity of the grand jury proceeding. Id. When it comes to discovery, a defendant is not automatically entitled to a transcription of his own grand jury testimony. Brown v. State, 657 S.W.2d 117, 119-20 (Tex. Crim. App. 1983) (Trial court in incest prosecution did not err in failing to give defendant a transcription of his own grand jury testimony, in that evidence sought was not material to defense of the accused). The defense is entitled to disclosure of grand jury testimony only upon a showing of “particularized need.” Dennis v. United States, 384 U.S. 855, 874 (1966); Mott v. State, 543 S.W.2d 623 (Tex. Crim. App. 1976).

There is not much good case law on what constitutes a particularized need, sufficient to require a prosecutor to provide a copy of grand jury testimony. See Bynum v. State, 767 S.W.2d 769, 781-82 (Tex. Crim. App. 1989) (en banc) (Whether a prosecutor may be compelled to produce grand jury testimony based upon an accused’s showing of particularized need is within the discretion of the trial court.). In Bynum, the trial court's refusal to give defendant access to a primary accuser's grand jury testimony did not constitute abuse of discretion, where discrepancies between trial testimony and grand jury testimony largely involved dates and times, and defendant was free to question accuser on cross-examination with regards to any confusion surrounding dates. Id. at 783. Interestingly (some might say shockingly), prosecutors are not required to present exculpatory evidence to a grand jury. See United States v.

5

Williams, 504 U.S. 36, 51, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992). Therefore, your best bet in establishing a particularized need may be to point out that since Texas Rule of Evidence 615 requires prosecutors to produce such statements only after a witness testifies,4 it would slow down a trial to require a defense attorney to read through a transcript and assimilate the material into his or her pre-prepared cross examination. Rather than stopping a trial and inconveniencing jurors, efficiency and wisdom dictate that transcripts should be provided before trial. Indeed, if the state intends not to call a particular witness to testify at trial – one who has previously testified under oath before a grand jury -- the defense must have pre-trial access to a grand jury transcript, in order to intelligently decide whether to call the witness in the defendant’s case-inchief. You should make it clear to the Court that giving you a grand jury transcript in advance of trial will speed things up and help you do a better job for your client. Do that and you may just get an order to produce a grand jury transcript, over the objection of the prosecutor.

5. Application for Subpoena Duces Tecum 5a. Writ of Attachment Do not rely on the state to conduct the entire case investigation. Police and prosecutors aren’t normally interested in gathering evidence that weakens the state’s case. It is often necessary for you to gather that type of evidence.

For example, if you believe the complainant may have medical, mental health (psychiatric, psychological, therapy), or school records, which are not contained in the state’s file but may be

4

TEX R. EVID. 615 (a) provides: “After a witness other than the defendant testifies on direct examination, the court, on motion of a party who did not call the witness, must order an attorney for the state or the defendant and the defendant’s attorney to produce, for the examination and use of the moving party, any statement of the witness that: (1) is in their possession; (2) relates to the subject matter of the witness’s testimony; and (3) has not previously been produced.”

6

relevant to the case, consider subpoenaing those records from the appropriate entities. If you don’t know where the records are located, consider issuing a subpoena duces tecum for a parent or guardian to bring the records to court. Be prepared for the prosecutor to attempt to quash your subpoena on the grounds that, (1) Defendant is improperly using subpoenas to conduct discovery; (2) the subpoenas are overbroad and seek information beyond the scope of what is necessary and relevant in the case; and (3) Defendant is seeking information that is not within the parent or guardian’s possession. If that happens, you should point out to the court that your client’s right compulsory process is grounded in the state and federal constitutions, as is his right to effective assistance of counsel. If the trial court agrees with the prosecutor that the material sought should not be obtained through a subpoena duces tecum of the parent or guardian, you may consider asking to take the parent or guardian’s deposition. TEX. CODE CRIM. PRO. Art. 39.02; See May v. State, 738 S.W.2d 261, 273 (Tex. Crim. App. 1987) (A trial judge has wide discretion in deciding whether to order a deposition). If the trial court doesn’t grant a request for deposition, see if the judge will order the parent or guardian to supply a verified list of the complainant’s medical and mental health professionals and their addresses. That would allow you to subpoena the records directly from the entities themselves.

In the event that a subpoenaed witness does not show up for court at the designated time and date listed in the subpoena, you should file a writ of attachment with the trial court. A writ of attachment is an order commanding a peace officer to bring the body of a witness before the court, magistrate or grand jury on a day named or forthwith, to testify in behalf of the state or of the defendant. TEX. CODE CRIM. PRO. Art. 24.11. The witness must reside in the county of the prosecution and must have been duly served with a subpoena. TEX. CODE CRIM. PRO. Art. 24.12.

7

This paper contains a form application for subpoena duces tecum (in this case, high school records) and a writ of attachment.

6. Motion for Discovery of Child Assessment Center, Therapy & Mental Health Records 7. Motion for Disclosure of CPS Records 8. Motion to Disclose Specific Information & Evidence (Alternatively, Depositions) 9. Motion to Inspect, Examine and Photograph Physical Evidence In defending alleged sex crimes, you will come across all sorts of evidence that may be used to your client’s advantage. Some of it will be contained in the state’s file, some of it will not.

Occasionally you will come across evidence in the state’s file, which the prosecutor refuses to provide. You may also learn of evidence in the possession of the police, which typically requires a court order for inspection.

Attached to this paper you will find: Motion for Discovery of Child Assessment Center, Therapy and Mental Health Records, courtesy of Jose Ceja (Houston); Motion to Disclose Child Protective Services Records, courtesy of Rick Wardroup (Lubbock); Motion to Disclose Certain Specific Information and Evidence in the State’s Exclusive Possession or Readily Accessible to the State (or, Alternatively, for Depositions), courtesy of Rick Wardroup; Motion to Inspect, Examine, and Photograph Physical Evidence, courtesy of Jose Ceja. Note that the Motion to Inspect, Examine and Photograph Physical Evidence permits a defense expert to have access to the evidence. However, you should be careful about disclosing the identity of a consulting expert. A defendant is not required to disclose the identity of an expert whom the defense team does not plan to call as a witness at trial. See TEX. CODE CRIM. PRO. Art. 39.14 (b) (requiring disclosure, upon request, of “each person the disclosing party may use at trial to present evidence …”); see also

8

Axelson, Inc. v. McIhhany, 798 S.W.2d 550 (Tex. 1990) (Consulting expert exemption protects the identity, mental impressions and opinions of consulting-only experts).

10. Produce Complainant’s Video 11. Transcribe Complainant’s Video As of December 2020, Texas law does not permit a trial court to order the copying of a complainant’s video interview in a child sex crime case. See TEX. CODE CRIM. PRO. Art. 38.45 & 39.15 (a); In re State ex rel. Tharp, 2017 WL 4160990 (Tex. Crim. App. 2017) (unpublished) (“Article 39.15(a) permits discovery of the property and material like the [Child Assessment Center] recordings in question, among other things. But the recordings ‘must remain in the care, custody, or control of the court or the state as provided by Article 38.45.’”) (“A court shall deny any request by a defendant to copy, photograph, duplicate, or otherwise reproduce any property or material described by Subsection (a), provided that the state makes the property or material reasonably available to the defendant.”) (“Like Article 38.45(c), Article 39.15(d) permits the defendant, his attorney, or potential expert witness ample opportunity for inspection, viewing, and examination of the property or material, all while under the State's control.”) Nevertheless, as some Texas trial courts reportedly do allow such copying with the consent of the prosecutor and a protective order limiting what the defense team may do with the video and to whom it may be disseminated, this paper includes a Motion to Produce Complainant’s Video.

If your trial judge does not permit copying of the complainant’s video interview in a child sex crime case, you may consider requesting a pre-trial order to permit a court reporter to transcribe the video, for use in case preparation and at trial. But see In re Ligon, No. 09-14-00262CR, 2014 WL 2902324, at *1–2 (Tex. App.—Beaumont June 26, 2014, no pet.) (mem. op., per 9

curiam, not designated for publication) (granting mandamus to prevent court reporter from transcribing child’s video despite appellant’s argument that transcription is not reproduction). In addition to the above-mentioned Motion to Produce Complainant’s Video, this paper includes a Motion to Transcribe Complainant’s Video. Both motions are courtesy of Rick Wardroup (Lubbock).

Just a thought: If your trial judge permits neither copying nor transcription of a child’s video interview, how about hiring a shorthand reporter to take really good notes?

12. Motion for Hearing Outside Jury’s Presence on the Complainant’s Competency While witnesses are generally presumed to be competent to testify, a child or any person who lacks sufficient intellect may be found incompetent. TEX. R. EVID. 601 & 601 (a) (“Every person is competent to be a witness unless these rules provide otherwise. The following witnesses are incompetent: … (2) Persons Lacking Sufficient Intellect. A child—or any other person—whom the court examines and finds lacks sufficient intellect to testify concerning the matters in issue”). In determining competency, a trial court must consider three factors: (1) the ability of the child to intelligently observe the events at the time of their occurrence, (2) the child’s capacity to recollect the events, and (3) the child’s capacity to narrate the events. Torres v. State 33 S.W.3d 252, 255 (Tex. Crim. App. 2000). Courtesy of Neal Davis (Houston), this paper includes a Motion for Hearing Outside Jury’s Presence on the Complainant’s Competency. The motion can be modified to challenge the competency of any witness, not just the complainant. The motion could be adapted, for example, to challenge a friend or sibling of the complainant.

10

Do not worry about offending a jury by questioning a child witness too aggressively. For starters, a hearing to determine competency of a witness may be conducted outside the presence of the jury. TEX. R. EVID. 104 (“Preliminary Questions: (a) In General. The court must decide any preliminary question about whether a witness is qualified ...” (emphasis added); but see Reyna v.

State, 797 S.W.2d 189, 192 (Tex. App.—Corpus Christi, no pet.) (“There is no literal requirement in

the

[Texas

Rules

of

Evidence]

that

the competency

hearing of

a

child

be

conducted outside the presence of the jury. Moreover, appellant never objected to the court's examination of B.J.F. in front of the jury, and never requested that the jury be excused during the questioning. Appellant cannot therefore raise this issue for the first time on appeal.”).

Additionally, a literal reading of TEX. R. EVID. 601 (a) implies that examination on the issue of competency should come from the court, not counsel. TEX. R. EVID. 601 (a) (“A child—or any other person—whom the court examines and finds lacks sufficient intellect to testify concerning the matters in issue.”) (emphasis added). If you don’t feel comfortable examining a child witness on the issue of competency, ask the trial judge to do it.

When challenging the competency of a witness, be sure to request a hearing outside the presence of the jury. Keep in mind that if the trial court permits you to do the examination, it will give you an opportunity to size up the witness and determine how well she may do if given the chance to testify. It may also give the witness a chance to get comfortable in the courtroom, which may or may not be something you are hoping for.

13. Motion for Declaratory Ruling on Admissibility of Extraneous Conduct 13a. Motion for a Hearing and Exclude Evidence Under Texas Rules of Evidence 404 and 609 and Texas Code of Criminal Procedure Article 38.37

11

In order to challenge the admissibility of your client’s extraneous conduct in advance of trial, this paper includes a Motion for Declaratory Ruling on Admissibility of Extraneous Conduct, plus, courtesy of Rick Wardroup (Lubbock), a more comprehensive Defendant’s Motion for a Hearing and to Exclude Evidence of 404 and 609 and Texas Code of Criminal Procedure Article 38.37. Both motions serve essentially the same function. The former is a little more minimalist and does not alert the prosecutor to your theories about why the evidence should be excluded.

The latter mentions TEX. R. EVID. 609, which relates to impeachment by evidence of prior criminal convictions of felonies and crimes of moral turpitude. Regardless of the motion, obtaining a pretrial ruling on these crucial issues may help your client decide whether he should even go to trial.

It is often too late for you to help your client if, in the middle of the state’s case-in-chief, the trial court allows the jury to hear an avalanche of testimony about your client’s other sexual crimes and acts.

The primary tool that prosecutors use to offer into evidence a defendant’s extraneous, sexual conduct is TEX. CODE CRIM. PRO. Art. 38.37 (the “Article”). As discussed below, the Article, entitled “Evidence of Extraneous Offenses or Acts,” is essentially a two-pronged statute. The first prong applies to any prosecution for commission, attempt or conspiracy to commit the following types of Texas Penal Code cases, if perpetrated against a child under 17 years of age at the time of the alleged offense or act: Chapter 21 (Sexual Offenses)5, Chapter 22 (Assaultive Offenses), and Section 25.02 (Prohibited Sexual Conduct). TEX. CODE CRIM. PRO. Art. 38.37, Sec. 1 (a) (1). The first prong also applies to prosecutions for commission, attempt or conspiracy to commit any of 5

These include Continuous Sexual Abuse of a Young Child or Children, Public Lewdness, Indecent Exposure, Bestiality, Indecency with a Child, Improper Relationship Between Educator and Student, and a few others. TEX. PEN. CODE § 21.01, et seq.

12

the following types of types of Penal Code offenses, if committed against a person younger than 18 years of age at the time of the alleged offense or act: Section 43.25 (Sexual Performance by a Child), Section 20A.02 (a) (7) or (8) (relating to Child Trafficking), or Section 43.05 (a) (2) (Compelling Prostitution). TEX. CODE CRIM. PRO. Art. 38.37, Sec. 1 (a) (2).

The first prong of the Article mandates that: “Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs or acts committed by the defendant against the child who is the victim of the alleged offense [for which the defendant is on trial] … shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child.” TEX. CODE CRIM. PRO. Art. 38.37, Sec. 1 (b) (emphasis added). Because of the broad and nearly unrestricted language relating to admissibility of a defendant’s extraneous conduct committed against the same child who is the alleged victim of the charged offense(s), for which the defendant is on trial, coupled with the lack of a statutorily required gate-keeping hearing, it is extremely difficult to keep out evidence of your client’s extraneous sexual conduct. Although the defense can and should object on federal and Texas constitutional grounds6, as well as TEX. R. EVID. 4037, the best chance for excluding a defendant’s extraneous sexual conduct in this

6

See, e.g., U.S. CONST. 6th Amend. (rights of confrontation and effective assistance of counsel), Art. 1, Sec. 10 of TEX. CONST. (Texas counterpart to Sixth Amendment), and Due Process of Law provision of United States Constitution and Due Course of Law provision of Texas Constitution; see also Alvarez v. State, 491 S.W.3d 362, 367-69 (Tex. App. – Houston [1st Dist.] 2016, pet. ref’d) (Defendant failed to preserve for appellate review claim that statute, which allowed State to provide evidence of other children defendant had assaulted, violated his right to due process.).

7

See Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002) (In determining whether the prejudicial effect of C.C.P. Article 38.37 evidence substantially outweighs its probative value, under Texas Rule of Evidence 403, a trial court should consider the following factors: “1. how compellingly evidence of the extraneous offense serves to make a fact of consequence more or less probable; 2. the extraneous offense's potential to impress the jury in

13

instance may be to argue improper notice. Article 38.37, Sec. 3 provides that: “The state shall give the defendant notice of the state’s intent to introduce in the case in chief evidence described by Section 1 or 2 [i.e., the first two sections of the Article] not later than the 30th day before the date of the defendant’s trial [in the same manner as the state is required to give notice under Rule 404 (b), Texas Rules of Evidence].” TEX. CODE CRIM. PRO. Art. 38.37, Sec. 3.

In order to argue improper notice, the defense must first request notice under the statute. The easiest way to do this is to send the prosecutor or District Attorney’s Office handling the case something in writing (such as the Request for Discovery, Notice & Speedy Trial attached to this paper) requesting notice or, specifically, “notice of evidence of extraneous offenses or acts” under Article 38.37 of the Texas Code of Criminal Procedure. Next, you may need to cite relevant case authority. In Buchanan v. State, 911 S.W.2d 11 (Tex. Crim. App. 1995), the Court of Criminal Appeals ruled that a state’s open file policy (i.e., that the defendant knew or should have known of the existence of the alleged extraneous conduct), did not satisfy the requirement that the state provide notice in advance of its intent to use in its case in chief evidence of other crimes, wrongs or acts under TEX. R. EVID. 404 (b). Specifically, the Court held that “[t]he mere presence of an offense report indicating the State’s awareness of the existence of such evidence does not indicate an ‘intent to introduce’ such evidence in its case in chief.” Buchanan, 911 S.W.2d at 15; Cf. Lara v. State, 513 S.W.3d 135, 140-43 (Tex. App. – Houston [14th Dist.] 2016, no pet.)

(Erroneous admission of Article 38.37 extraneous conduct evidence, due to state’s lack of proper notice to the defense, was non-constitutional error. Additionally, the error (if any) was harmless,

some irrational but indelible way; 3. the trial time that the proponent will require to develop evidence of the extraneous misconduct; and 4. the proponent's need for the extraneous transaction evidence.”)

14

because Defendant only complained of surprise that the state planned to introduce evidence of extraneous conduct in guilt-innocence (not surprise of the existence of extraneous conduct evidence); did not ask for a continuance; and, did not establish harm – i.e., explain to the trial court how defendant’s trial strategy would have differed, had he known of state’s intent to introduce extraneous conduct).

The second prong of Article 38.37 may offer a slightly better chance of excluding your client’s alleged extraneous conduct in a child sex crime case, if only because the second prong requires the trial court judge to examine the strength of the evidence, in a hearing outside the presence of the jury, before the evidence may be admitted. See TEX. CODE CRIM. PRO. Art. 38.37, Sec. 2-a (1) & (2).

Article 38.37, Section 2 applies only to the trial of a defendant for: “(1) an offense under any of the following provisions of the Penal Code: (A) Section 20A.02, if punishable as a felony of the first degree under Section 10A.02 (b) (1) (Sex Trafficking of a Child); (B) Section 21.02 (Continuous Sexual Abuse of Young Child or Children); (C) Section 21.11 (Indecency With a Child); (D) Section 22.011 (a) (2) (Sexual Assault of a Child); (E) Sections 22.021 (a) (1) (B) and (2) (Aggravated Sexual Assault of a Child); (F) Section 33.021 (Online Solicitation of a Minor); (G) Section 43.25 (Sexual Performance by a Child); or (H) Section 43.26 (Possession or Promotion of Child Pornography), Penal Code; or (2) an attempt or conspiracy to commit an offense described

by Subdivision (1).” TEX. CODE CRIM. PRO. Art. 38.37, Sec. 2.

Strength of Evidence Test and Rule 403

15

One apparent difference between Sections 1 and 2 of Article 38.37 (the two prongs), is they appear to cover different offenses. However, a close look at the statute reveals some overlap between the two sections. It would be more accurate to say that Section 1 is broader than Section 2, covering virtually all of the serious, sexual conduct listed in Section 2, as well as some less serious and even some non-sexual conduct. Another difference, as previously mentioned, is that Section 2’s extraneous conduct may only be admitted into evidence after the trial judge: “(1) determine[s] that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt; and (2) conduct[s] a hearing out of the presence of the jury for that purpose.”

TEX. CODE CRIM. PRO. Art. 38.37, Sec. 2-a (1) & (2). Finally, an important distinction between Sections 1 and 2 is that Section 1 applies to extraneous conduct with the same child, who is the complainant in the charged case(s). TEX. CODE CRIM. PRO. Art. 38.37, Sec. 1 (b) (“… committed by the defendant against the child who is the victim of the alleged offense …”) (emphasis added).

Section 2 applies to extraneous conduct with a different child. TEX. CODE CRIM. PRO. Art. 38.37, Sec. 2 (b) (“… evidence that the defendant has committed a separate offense …”) (double emphasis added).

So, putting aside any potential issues relating to a constitutional challenge (which will likely fail)8 and improper notice (which can be argued during trial, at the time the evidence is offered), the defense may have a chance to keep out Section 2 extraneous conduct (involving a different child) by requesting the trial court to conduct a “strength of evidence” analysis outside

8

See Harris v. State, 475 S.W.3d 395, 398-403 (Tex. App. – Houston [14th Dist.] 2016, pet. ref’d) (Article 38.37 of Texas Code of Criminal Procedure found constitutional).

16

the presence of the jury.9 Additionally, assuming the trial court determines during this gatekeeping hearing that the evidence “will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt,”10 the defense should use the hearing as an opportunity to advance a Rule 403 argument. The relevant factors for a trial court in determining whether the prejudice of alleged extraneous conduct in a child sex abuse case substantially outweighs its probative value include: “(1) how compellingly the extraneous-offense evidence serves to make a fact of consequence more or less probable – a factor that is related to the strength of the evidence presented by the [state] to show the defendant in fact committed the extraneous offense; (2) the potential the other offense has to impress the jury ‘in some irrational but nevertheless indelible way’; (3) the time the [state] will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and (4) the force of the proponent’s need for this evidence to prove a fact of consequence, i.e., whether the proponent has other probative evidence available to him to help establish this fact, and whether this fact is related to an issue in dispute.” Burke v. State, 371

9

Nothing in Article 38.37 requires the judge to conduct a strength of evidence analysis during trial. The rule only requires the analysis be conducted “out of the presence of the jury.” Tex. Code Crim. Pro. Art. 38.37, Sec. 2-a (2).

Therefore, the defense (and the state) may ask the court to conduct a strength of evidence test, as well as any constitutional challenge and a Rule 403 analysis, before trial. A creative way to do that might be for the defense (either by itself or jointly with the state) to file a “Motion to Declare Admissibility of Extraneous Conduct Evidence” and request a pre-trial hearing. The defense could benefit from obtaining a pre-trial ruling by -- depending on the judge’s ruling – either adjusting its trial strategy or perhaps avoiding a trial altogether. The state might benefit in the same ways as the defense, as well as not losing “momentum” during trial by having to break up its case-inchief by conducting a hearing outside the presence of the jury. Finally, the court might benefit by shortening (or perhaps avoiding) a trial and wasting less of a jury’s time.

10

TEX. CODE CRIM. PRO. Art. 38.37, Sec. 2-a (2).

17

S.W.3d 252, 258 (Tex. App. – Houston [1st. Dist.] 2011, pet. ref’d, untimely filed) (citing Mozon v.

State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999)).

Because there is no rule preventing a trial court judge from conducting a threshold hearing on admissibility of evidence before a trial begins,11 you should press for a pre-trial hearing whenever possible. Let the judge know that it would benefit the state and the defense enormously to know where they stand on the crucial question of alleged extraneous conduct, in advance of trial. At the pre-trial hearing, you can lay out three options for each instance of conduct (or perhaps the entirety of the alleged conduct): (1) evidence is admissible, (2) evidence is inadmissible, (3) evidence is only admissible if the defense “opens the door” or leaves a false impression with the jury. Although it is beyond the scope of this paper, defense lawyers would do well to research the many ways that a defendant can inadvertently and very easily open the door to admission of extraneous conduct.

14. Motion to Exclude Evidence of Alleged Child Porn and Animated Child Pornography 14a. Brief in Support of Motion to Exclude

In defending people accused of sexual offenses, you may come across a wide variety of extraneous evidence, much of which you will want to exclude (a.k.a. suppress). Begin by asking yourself whether each piece of evidence is relevant to the question of guilt/innocence. TEX. R. EVID 401 & 402. If you believe an item of evidence may be irrelevant, consider filing a Motion to

11

Rule 611 of TEX. R. EVID. provides: “Mode and Order of Examining Witnesses and Presenting Evidence (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.”

18

Exclude Evidence (a.k.a. Motion to Suppress) and request a hearing in advance of trial. Even if you agree with the prosecutor that certain evidence may be relevant, ask yourself whether it is unfairly prejudicial. TEX. R. EVID. 403. This, too, may be a ground for effectively challenging and excluding evidence.

Courtesy of Chuck Lanehart (Lubbock), this paper includes a form Motion to Exclude Evidence of Alleged Child Porn and Animated Child Pornography and a Brief in Support of Motion to Exclude. There is usually no downside to filing these motions and requesting a pre-trial hearing.

Even if you lose, it may give you a window into the state’s theory of the case and allow you to size up the courtroom skills of the prosecutor and verbal capabilities of state’s witnesses. If you’re unfamiliar with the judge, a pre-trial hearing is usually an excellent opportunity to see your judge in action and get a feel for how she might conduct a trial.

15. Suppress Illegally Obtained Evidence Do not accept that all state’s or government’s evidence against your client was obtained legally. Even in an alleged sexual assault case, police may obtain statements, tangible evidence (including digital evidence stored in computers and mobile devices)12, and other items in violation of your client’s procedural and state and federal constitutional rights. Courtesy of Rick Wardroup (Lubbock), this paper contains a Motion for Hearing and Suppression (of Illegally Obtained Evidence). For reasons previously discussed, you should normally request a pre-trial hearing to determine admissibility of evidence.

12

See Riley v. California, 573 U.S. 373 (2014) (Warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional).

19

Beware of the judge who tries to pressure you into having a “dispositive” pre-trial hearing on your motion. In such an arrangement, your client normally agrees to plead guilty or “no contest” and either enter into a plea agreement with the prosecutor or ask the Court to assess the sentence. Even though you would normally retain the right to appeal an adverse ruling on the Motion to Suppress, a dispositive hearing seldom works to a defendant’s advantage. For one thing the defendant gives up his right to a verdict on guilt/innocence. If your client wants his chance at an acquittal, hung jury or perhaps a conviction on a lesser offense, you can still file a Motion for Hearing and Suppression and simply have the hearing at the time of trial. If that happens, do your best to put off the hearing until after jeopardy has attached, when the state typically has little or no right to appeal an adverse ruling.13 16. Motion for Hearing on Admissibility of Outcry Statements TEX. CODE CRIM. PRO. Art. 38.072 provides for the admissibility of “outcry” statements made by a child complainant or a person with a disability. For an outcry statement to be admissible, Article 38.072 requires that earlier than the fourteenth day before the proceeding the State must notify the defendant of its intention to offer the outcry statement, provide the defendant with the name of the witness through whom it wishes to offer the statement, and provide the defendant with “a written summary of the statement.” Id. at § 2(b); Sosa v. State, 2015 WL 3914834 (Tex. App. – Houston [14th Dist.], no pet.) (unpublished). Article 38.072 also requires the trial court to conduct a hearing outside the presence of the jury to determine whether the outcry statement is reliable based on the time, content, and circumstances of the

13

In Texas, jeopardy attaches when the defendant pleads to the charging instrument. Ortiz v. State, 933 S.W.2d 102, 105 (Tex. Crim. App. 1996) (en banc).

20

statement. Id. at Art. 38.072, § 2(b)(2).; Id. at *4. Article 38.072's notice and hearing requirements are mandatory and must be complied with in order for an outcry statement to be admissible over a hearsay objection. Id. at *4 (citing Long v. State, 800 S.W.2d 545, 547 (Tex.Crim.App.1990)). A trial court may designate multiple outcry witnesses so long as each one testifies about different offenses. Id. (citing Lopez v. State, 343 S.W.3d 137, 140 (Tex.Crim.App.2011)); see also TEX. CODE CRIM. PRO. Art. 38.072, § 2(a)(3) (stating outcry witness is first adult that complainant told about offense). Id. at *4.

Courtesy of Neal Davis (Houston), this paper includes a Motion for Hearing Outside the Jury’s Presence on the Admissibility of the Complainant’s Outcry Statements. Be aware that as TEX. CODE CRIM. PRO. Article 38.072 has undergone revisions over the years, you must be certain your motion is based on the correct version of the statute. A trial court should normally use the version that was in place at the time of the alleged offense. See Cordero v. State, 444 S.W.3d 812, 816 (Tex. App. – Beaumont 2014, pet. ref’d) (“Because Cordero was charged with committing offenses between August 1, 1991 and January 1, 1995, the 1985 version of article 38.072 is applicable in this case”).

17. Defendant’s Motion in Limine 17a. Motion in Limine Regarding Statutory Definition of Consent 17b. Motion in Limine Regarding Blackmail

The purpose of a motion in limine is to prevent particular matters from coming before the jury. Geuder v. State, 115 S.W.3d 11, 16 (Tex. Crim. App. 2003). It is, in practice, a method of raising objection to an area of inquiry prior to the matter reaching the ears of the jury through a posed question, jury argument, or other means. Id. As such, it is wider in scope than the 21

sustaining of an objection made after the objectionable matter has been expressed. Id. However, it is also, by its nature, subject to reconsideration by the court throughout the course of the trial.

Id. This is because it may not be enforced to exclude properly admissible evidence. Id. Courtesy of Rick Wardroup (Lubbock), this paper contains a Defendant’s Motion in Limine.

It contains general items that would be of use in many types of criminal trials. You should use it as a starting point and add items that are specific to your case. Courtesy of Chuck Lanehart (Lubbock), this paper also contains a pair of more specific motions: Motion in Limine Regarding Statutory Definition of Consent and Motion in Limine Regarding Blackmail. It is your choice whether to combine the general items and specific items into a single motion in limine or to file multiple motions. Filing specific motions (as Chuck Lanehart has) will signal to the judge that a particular item is important and should perhaps be considered more carefully. One suggestion for possibly improving your motions in limine is to include a statement in the Order to the effect of, “it shall be the prosecutor’s responsibility to instruct all state witnesses as to the scope of all granted items and the duty of each witness to obey the Court’s Order.” In the event that a state witness violates a granted motion, this extra language in the Order may allow you or the Court to inquire into whether, when and how the prosecutor instructed her witnesses in regard to the limine items.

18. Prevent Closure of Courtroom During Presentation of Evidence The Sixth Amendment of the United States Constitution guarantees the Accused the fundamental right to a public trial in all criminal prosecutions. Furthermore, the United States Supreme Court has held that the right to a public trial was created for the benefit of the Accused;

22

thus the right is a personal one and any violation of an Accused’s right to a public trial is a structural error that is not subject to a harm analysis. Presley v. Georgia, 558 U.S. 209 (2010). In the event your trial judge attempts to close the courtroom over your objection, you may file the attached Defendant’s Motion to Prevent Closure of Courtroom During Presentations of All Evidence. The Motion is courtesy of Rick Wardroup (Lubbock).

19. Defendant’s Motion for Community Supervision 20. Defendant’s Sentencing Election

This paper contains a Defendant’s Motion for Community Supervision and a Defendant’s Sentencing Election. First, if your client has never been convicted of a felony in this or any other state, you should always file a Motion for Community Supervision, if you plan to go to the jury for sentencing. This is true even if your client is charged with a crime for which a jury may not sentence him to community supervision following a conviction. It is always possible your client may be convicted of a lesser charge.

Second, unless it violates a court order, you should consider filing your Defendant’s Sentencing Election before the venire is empaneled but at the last possible moment. Filing the Election too early will tip your hand and may give the prosecutor more time to prepare her voir dire. In any event, you should get into the habit of calling the second phase of a criminal trial the “sentencing phase.” The Texas Code of Criminal Procedure refers to sentencing and the “punishment” phase interchangeably. There are many practitioners who view punishment as only one aspect of sentencing. Rehabilitation is obviously another important purpose of sentencing, should your case reach a second phase.

23

21. Defendant’s Motion to Require Prosecutor to Elect Courtesy of Rick Wardroup (Lubbock), this paper contains a Defendant’s Motion to Require the Prosecutor to Elect. In Texas, the state will typically allege than an offense occurred “on or about” a particular date but may prove that the conduct charged occurred any time on or before the presentment of the indictment and within the statute of limitations. See, e.g., Ex parte Goodbread, 967 S.W.2d 859, 860 (Tex. Crim. App. 1998). The prosecutor may offer into evidence multiple incidents of the conduct described in the indictment in order to prove the allegation in the indictment. Rodriguez v. State, 104 S.W.3d 87 (Tex. Crim. App. 2003). This Motion seeks to require the prosecutor to elect in writing at least 14 days before trial, which act of indecency and the specific date of such act, that the prosecution will rely upon in proving the allegations in the indictment. Alternatively, the Motion requests that the prosecutor required to state its election the close of its case in chief. You are more likely to succeed with the latter option than the former.

Conclusion While filing motions and requests will not guarantee a dismissal or acquittal in a sex crime case, it is almost impossible to achieve a stellar result without them. From the very beginning of the case, defense motions and requests are an opportunity for you to not only learn basic details that will help you chart your way forward, but to announce your presence in court as a lawyer who knows what she is doing. Understanding what, when, how and why to file various motions and requests can often mean the difference between success and failure in the high stakes defense of sexual offenses.

24

Table of Cases 1. Axelson, Inc. v. McIhhany, 798 S.W.2d 550 (Tex. 1990) ………………………………………………………………………… pg. 8 2. Banks v. Dretke, 540 U.S. 648, 690 (U.S. 2004) ……………………………………………………………………… pg. 4 3. Barker v. Wingo, 407 U.S. 514, 528 (1972) ………………………………………………………………………….…. pg. 3 4. Brown v. State, 657 S.W.2d 117, 119-20 (Tex. Crim. App. 1983) ………………………………………..… pg. 5 5. Buchanan v. State, 911 S.W.2d 11 (Tex. Crim. App. 1995) ………………………………………………………. pg. 14 6. Burke v. State, 371 S.W.3d 252, 258 (Tex. App. – Houston [1st. Dist.] 2011, pet. ref’d, untimely filed) …………………………………………………………………………………………… pg. 17 7. Bynum v. State, 767 S.W.2d 769, 781-82 (Tex. Crim. App. 1989) …………………………………..……… pg. 5 8. Cordero v. State, 444 S.W.3d 812, 816 (Tex. App. – Beaumont 2014, pet. ref’d)…….…………….. pg. 21 9. Dennis v. United States, 384 U.S. 855, 874 (1966) …………………………………………………………………………..… pg. 5 10. Ex parte Goodbread, 967 S.W.2d 859, 860 (Tex. Crim. App. 1998) ………………………………..…………... pg. 23 11. Geuder v. State, 115 S.W.3d 11, 16 (Tex. Crim. App. 2003) ……………………………………………….… pg. 21 12. Harris v. State, 475 S.W.3d 395, 398-403 (Tex. App. – Houston [14th Dist.] 2016, pet. ref’d) pg. 16 13. In re Ligon, No. 09-14-00262-CR, 2014 WL 2902324, at *1–2 (Tex. App.—Beaumont June 26, 2014, no pet.) ………………………………………………………………………………………….…. pg. 9 25

14. Kumho Tire Company, LTD. V. Carmichael, 526 U.S. 137, 141 (1999) …………………………………………………………………………….. pg. 3 15. Kyles v. Whitley, 514 U.S. 419, 450-51 (1995) …………………………………………………………………………pg. 4 16. Lara v. State, 513 S.W.3d 135, 140-43 (Tex. App. – Houston [14th Dist] 2016, no pet.) …… pg. 14 17. Long v. State, 800 S.W.2d 545, 547 (Tex.Crim.App.1990) ………………………………..……………… pg. 20 18. Lopez v. State, 343 S.W.3d 137, 140 (Tex.Crim.App.2011) …………………………..…………………… pg. 20 19. May v. State, 738 S.W.2d 261, 273 (Tex. Crim. App. 1987) …………………………………………….… pg. 7 20. Mitchell v. State, 982 S.W.2d 425, 427 (Tex.Crim.App.1998) …………………………….…………………… pg. 3 21. Mott v. State, 543 S.W.2d 623 (Tex. Crim. App. 1976) …………………………………………………….… pg. 5 22. Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999).……………………………………….. pg. 17 23. Ortiz v. State, 933 S.W.2d 102, 105 (Tex. Crim. App. 1996) (en banc)…………………………….… pg. 20 24. Presley v. Georgia, 558 U.S. 209 (2010) ……………………………………………………….……………………….… pg. 22 25. Reyna v. State, 797 S.W.2d 189, 192 (Tex. App.—Corpus Christi, no pet.) …………..……………. Pg. 11 26. Riley v. California, 573 U.S. 373 (2014) ……………………………………………………………………..…………… pg. 19 27. Rodriguez v. State, 104 S.W.3d 87 (Tex. Crim. App. 2003)……………………………………………..………… pg. 24

26

28. Sosa v. State, 2015 WL 3914834 (Tex. App. – Houston [14th Dist.], no pet.) (unpublished) pg. 20 29. State ex rel. Tharp, 2017 WL 4160990 (Tex. Crim. App. 2017) ……………….…..……………………………… pg. 9 30. Torres v. State, 33 S.W.3d 252, 255 (Tex. Crim. App. 2000) …………………………..……..…………… pg. 10 31. United States v. Agurs, 427 U.S. 97 (1976) ………………………………………………………………………………………. pg. 4 32. United States v. Gonzalez-Lopez, 548 U.S. 140, 146-50 (2006) ……………………………………..…………...…………………… pg. 2 33. United States v. Williams, 504 U.S. 36, 51, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992) ………….…….…………. pg. 5 34. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002) …………………………..….……………... pg. 13

27

CAUSE NO. ___________ THE STATE OF TEXAS VS. XXXXXXX

§ § § § §

IN THE ________ JUDICIAL DISTRICT COURT OF _____________ COUNTY, TEXAS

MOTION TO SUBSTITUTE COUNSEL TO THE HONORABLE _____________: COMES NOW, XXXXXXXXXX, Defendant in the above-entitled and numbered causes, and files this Motion to Substitute Counsel. Defendant would show the following: I Defendant’s present Attorney of Record is XXXXXXXXX.. Defendant has retained GRANT M. SCHEINER as Defendant’s new Attorney of Record.

Respectfully submitted, Scheiner Law Group, P.C. By:___________________________ GRANT M. SCHEINER 2211 Norfolk St., Suite 735 Houston, Texas 77098-4062 Tel: 713-783-8998 Fax: 1-866-798-9854 TBN: 00784913 Approved and Agreed: _______________________________________ NAME OF CLIENT Approved and Agreed: ______________________________________ NAME OF ATTORNEY TBN: ______________

CAUSE NO. ___________ THE STATE OF TEXAS VS. XXXXXXX

§ § § § §

IN THE ________ JUDICIAL DISTRICT COURT OF _____________ COUNTY, TEXAS

ORDER On this date came on to be heard the Defendant’s Motion to Substitute Counsel. After considering the same, the said Motion is hereby: ________ GRANTED. GRANT M. SCHEINER is Defendant’s new Attorney of Record in place of XXXXXXXXX. ________ DENIED SIGNED and ORDERED on this the ______ day of ______________, 20______.

_______________________________ JUDGE PRESIDING

Date, 20____

VIA EMAIL: ________________________ _________ County District Attorney's Office _______ Judicial District Court ADDRESS ADDRESS Re:

The State of Texas vs. XXXXXXX, Cause No. _____________; In the ______ Judicial District Court of XXXXXX County, Texas.

Dear Madam/Sir: This firm represents XXXXXXXXX, in the above-listed matter. In accordance with TEX. CODE CRIM. PRO. Art. 39.14, I request full discovery in this case and any related case(s). Please forward such discovery via email to grant@scheinerlaw.com, as soon as possible. If you believe any material in the possession of the state or its agents is exempt or protected from discovery (or is subject only to inspection and not production), please send an itemized list of such material, along with your discovery response, to the aforementioned email address. I also request Notice of Non-lay Witnesses, in accordance with TEX. CODE CRIM. PRO. Art. 39.14(b), via fax at 1-866-798-9854.

In accordance with TEX. R. EVID. 404(b) & 609(f), as well TEX. CODE CRIM. PRO. Art. 37.07. ยง 3(g), and, if applicable, TEX. CODE CRIM. PRO. Art. 38.37, I request notice under such rules and statutes. Please give full notice regarding the Defendant, as well as any state witness in the above-listed cause, regardless of whether you anticipate the witness testifying for the state at trial. Kindly forward such notice via fax, at the earliest possible date, to 1-866-798-9854, or by email to grant@scheinerlaw.com. Defendant requests and does not waive a speedy trial. Should you have any objections or questions, please respond in writing as soon as possible.

Thank you.

Respectfully submitted, Scheiner Law Group, P.C. By: ___________________________ Grant M. Scheiner GS/dm cc: NAME, ________ District Clerk

Via E-Filing

CAUSE NO. XXXXXXXXX STATE OF TEXAS v.

XXXXXXXXXXXXX

| | | | |

IN THE XXXX DISTRICT COURT HARRIS COUNTY, TEXAS

DEFENDANT’S GENERAL AND SPECIFIC REQUESTS FOR ALL EVIDENCE AND INFORMATION UNDER BRADY AND ITS PROGENY Defendant, through undersigned, generally as well as specifically requests the prosecution to do two things: (1) Immediately investigate, preserve, and disclose all evidence in the prosecution’s possession favoring Defendant and material to either the guilt-innocence or sentencing phase under Brady v. Maryland1 and its progeny, including but not limited to: (2) If the prosecution questions whether evidence is favorable to Defendant or material to the guilt-innocence or sentencing phase, submit this evidence for an in camera inspection.2 Specific to child sex abuse allegations, Defendant requests:

1

Brady v. Maryland, 373 U.S. 83, 87 (1963)

2

U.S. CONST. amend. V, VI, XIV; TEX. CONST. art. I, § 10, 19; TEX. CODE

CRIM. PROC. art. 2.01; TEX. DISC. R. PROF. COND. § 3.09

1

(a) All inconsistent or contradictory statements that any witness (including the complainant) has given, including to the prosecution or any prosecution assistant in any meetings on the case, regardless of whether they are oral or written or recorded, (b) Any information and evidence that would suggest someone other the defendant had committed a sexual offense against the complainant, (c) Any information and evidence that the complainant or family member has made false or unfounded accusations of a criminal offense or civil claim of anyone other than the defendant, (d) Any information and evidence of the complainant’s or family’s motive to make false allegations, including to obtain monetary gain, revenge, or leverage, (e) Any information and evidence of any State expert failing to qualify as an expert in court, and (f) Any information that the complainant and/or the complainant’s family applied for any victim’s compensation.

A. Basis for request 1. The due process protections of the United States and Texas Constitutions require the prosecution to disclose evidence favorable to the defendant when such evidence is material either

2

to guilt or punishment.3 Brady evidence includes evidence that can be used to impeach the State's witnesses, including but not limited to inconsistencies among the witness’s own statements or inconsistencies between the witness and other witnesses’ statements.4 Brady extends to the actual and constructive knowledge of the prosecution and its “team,” such as law enforcement.5 Brady applies to information that, while inadmissible, could reasonably likely lead to evidence admissible at trial.6 The duty to disclose Brady evidence overrides privileges, including the work-product or attorney-client privilege or confidentiality.7 2. Consistent with these due process protections, Texas Code of Criminal Procedure article 2.01 states that “[i]t shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict but to see that justice is done.

They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” Texas Disciplinary Rule of Professional Conduct 3.09 states that the prosecution shall “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, shall disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.”

Brady, 373 U.S. at 87 4 United States v. Bagley, 473 U.S. 667, 676-677 (1985); Giglio v. United States, 405 U.S. 150, 154 (1972) 5 Id. 6 Gentry v. Johnson, 95 F.3 1149 fn. 11 (5th Cir. 1996).

7 See, e.g., Ex parte Miles, 359 S.W.3d 647, 670 (Tex. Crim. App. 2012) 3

3

B. Definitions in Brady requests 1. For the sake of brevity in Defendant’s requests, “prosecution” means the prosecutor’s office and all of its agents, including but not limited to law enforcement.

2. “Evidence” means information, regardless of whether it falls under a privilege such as work-product, that is either admissible or reasonably likely to lead to admissible evidence.

3. These requests apply to what is in the State’s actual or constructive possession, custody, or control.

4. “This case” means the offense charged as well as any prior crimes, bad acts, or uncharged misconduct that the State has properly noticed.

C. Brady requests 1. Defendant generally requests all evidence that: (1) Casts doubt on any element of the offense that Defendant is charged with, (2) Casts doubt on the admissibility of any evidence in this case, (3) Casts doubt on the credibility of any evidence in this case, (4) Diminishes the degree of Defendant’s culpability, or (5) Mitigates Defendant’s sentencing.

2. Defendant specifically requests: (1) All criminal records from the Federal Bureau of Investigations, National Crime Identification Center, Texas Crime Identification Center, Texas Department of Public Safety, and local agencies

4

pertaining to any State’s witness or non-witness declarant in this case, regardless of whether the individual was formally charged or convicted or has charges pending, since it is reasonably probable that this information and evidence will go to the individual’s bias or untruthfulness and rebut any suggestion that the individual has an unblemished past.

(2) The names, addresses, and telephone numbers of any individual who may know any relevant fact and who the State does not intend to call to testify in this case, since it is reasonably probable that this information and evidence will exculpate Defendant or incriminate someone else.

(3) All information and evidence, including but not limited to any writing or recording, of any investigation of any suspect in this case, other than Defendant, since it is reasonably probable that this information and evidence will exculpate Defendant or incriminate someone else.

(4) All information and evidence, including but not limited to the date and nature, of all promises, agreements, offers of leniency, consideration, or understandings, whether implied or express, that the federal, state, or local authorities have made with any individual who may know any relevant fact in this case, in exchange for the individual’s assistance, including but not limited to the individual’s cooperation or testimony, since it is reasonably probable that this information and evidence will go to the individual’s bias or

5

untruthfulness and rebut any suggestion that the individual has an unblemished past.8 (5) All information and evidence, including but not limited to the date and nature, of all threats, whether implied or express, that the federal, state, or local authorities have made against any individual who may know any relevant fact in this case, in exchange for the individual’s assistance, including but not limited to the individual’s cooperation or testimony, since it is reasonably probable that this information and evidence will go to the individual’s bias or untruthfulness.

(6) All information and evidence, including but not limited to the date and nature, of any prior bad acts or wrongs of any State’s witness or nonwitness declarant in this case, since it is reasonably probable that this information and evidence will go to the individual’s bias, or untruthfulness and rebut any suggestion that the individual has an unblemished past.

Such benefits include but are not limited to: dropped or reduced charges, immunity, expectations of downward departures or motions for reduction of sentence, assistance in a state or local criminal proceeding, considerations regarding forfeiture of assets, stays of deportation or other immigration status considerations, monetary benefits, non-prosecution agreements, letters to other law enforcement officials (e.g. state prosecutors, parole boards) setting forth the extent of a witness’s assistance or making substantive recommendations on the witness’s behalf, relocation assistance, and consideration or benefits to culpable or at risk third-parties.

8

6

(7) All information and evidence, including but not limited to the date and nature, of any disciplinary complaints, regardless of whether they were found credible or are still pending, of all law enforcement officers, experts, and other State agents in this case, since it is reasonably probable that this information and evidence will go to the individual’s bias, or untruthfulness and rebut any suggestion that the individual has an unblemished past.

(8) All information and evidence, including but not limited to the names, addresses, and telephone numbers of witnesses and the nature, of the bad character or reputation of any State’s witness or non-witness declarant in this case, since it is reasonably probable that this information and evidence will go to the individual’s bias or untruthfulness, and rebut any suggestion that the individual has an unblemished past.

(9) All information and evidence that any State’s witness or non-witness declarant in this case has ever taken any narcotic or any controlled substance as defined under the Texas Controlled Substances Act section 481.002, since it is reasonably probable that this information and evidence will go to the individual’s capacity, specifically the ability to perceive, recall, or relate.

(10) All information and evidence that any State’s witness or non-witness declarant in this case has been treated for mental illness or impairment, since it is reasonably probable that this information and evidence will go to the

7

individual’s capacity, specifically the ability to perceive, recall, or relate.

(11) All statements of any individual that may know any relevant fact in this case, regardless of whether the statements were summarized or given verbatim, orally or in writing, such as grand jury testimony, law enforcement offense reports, admissions, and confessions, that tend to exculpate Defendant or incriminate someone else.

(12) All statements of any individual that may know any relevant fact in this case, regardless of whether the statements were summarized or given verbatim, orally or in writing, such as grand jury testimony, law enforcement offense reports, information control or lead sheets, Form 302s, admissions, and confessions, that conflict either internally or with other statements, since it is reasonably probable that these statements will exculpate Defendant or incriminate someone else, go to the individual’s bias or untruthfulness, and capacity, specifically the ability to perceive, recall, or relate, and be introduced as prior inconsistent or contradictory statements.

(13) All information and evidence that any federal, state, or local agent has acted improperly in investigating this case, including but not limited to violations of any constitutional or statutory provision or any administrative provision, such as the Houston Police Department General Orders, since it is reasonably probable that this information and evidence will exculpate Defendant and go to the agent’s bias or untruthfulness.

8

(14) All information and evidence, including tangible evidence, digitally stored evidence, or statements of witnesses or others, that are contrary to or inconsistent with other tangible evidence, digitally stored evidence, or statements of witnesses, since it is reasonably probable that this information and evidence will exculpate Defendant and go to the untruthfulness of the information of the evidence that the prosecution believes is inculpatory.

(15) All information and evidence that any such person, including but not limited to the complainant or a material witness, is, may be, or will be unavailable for the trial of this case, since it is reasonably probable that this information and evidence will exculpate Defendant.

(16) Specific to child sex abuse allegations: (a) All inconsistent or contradictory statements that any witness (including the complainant) has given, including to the prosecution or any prosecution assistant in any meetings on the case, regardless of whether they are oral or written or recorded,] (b) Any information and evidence that would suggest someone other the defendant had committed a sexual offense against the complainant, (c) Any information and evidence that the complainant or family member has made false or unfounded accusations of a criminal offense or civil claim of anyone other than the defendant,

9Â

(d) Any information and evidence of the complainant’s or family’s motive to make false allegations, including to obtain monetary gain, revenge, or leverage, (e) Any information and evidence of any State expert failing to qualify as an expert in court, and (f) Any information that the complainant and/or the complainant’s family applied for any victim’s compensation.

D. Conclusion Defendant therefore generally as well as specifically requests the prosecution to do two things: (1) Immediately investigate, preserve, and disclose all evidence in the prosecution’s possession favoring Defendant and material to either the guiltinnocence or sentencing phase under Brady and its progeny, and (2) If the prosecution questions whether evidence is favorable to Defendant or material to the guiltinnocence or sentencing phase, submit this evidence for an in camera inspection.

Respectfully submitted, NEAL DAVIS LAW FIRM, PLLC ____/s/_________________________ Neal Davis Texas Bar No.: 24001117

10

Harris County SPN: 01732446 1545 Heights Blvd.

Houston, Texas 77008 Tel: (713) 227-4444 Fax: (800) 760-7140 Email: Neal@NealDavisLaw.com Certificate of Service I certify that this Request has been delivered to the Assistant District Attorney via e-filing. _____/s/_______________________ Neal Davis

 11

CAUSE NO. XXXXX THE STATE OF TEXAS VS. XXXXXXXXXXX

ยง ยง ยง ยง ยง

IN THE _______ DISTRICT COURT OF _____________ COUNTY, TEXAS

MOTION FOR PRODUCTION OF GRAND JURY TESTIMONY TO THE HONORABLE XXXXXXXXXXXX: COMES NOW, XXXXXXXXXXX, the Defendant in the above styled and numbered cause, and pursuant to Rule 615 of the Texas Rules of Evidence respectfully moves this Court for an order directing the Assistant District Attorney to produce for inspection by the Defendant's counsel prior to the Defendant's trial a transcript of the testimony given before the Grand Jury that returned the indictment herein of each person who will be called as a witness by the State of Texas at the Defendant's trial. In support of this Motion, the Defendant would show this Honorable Court as follows: I. Defendant is entitled to disclosure of grand jury testimony upon a showing of "particularized need." Dennis v. United States, 384 U.S. 855,874 (1966).

II. That the Defendant's preparation for an effective defense can be facilitated if counsel for the Defendant is permitted to inspect, prior to trial, the Grand Jury testimony of each witness for the State.

This will allow the Defense to refresh the recollection of a witness, test the credibility of a witness, or impeach a witness.

III. The pretrial disclosure of the testimony given before the Grand Jury will allow the Defendant to properly challenge the presence of unauthorized people in the Grand Jury room.

1

IV. Should the Court deny the Defendant's request for inspection of the Grand Jury testimony of the State's witnesses prior to trial, then, in the alternative without waiving said request, and pursuant to Rule 615 of the Texas Rules of Evidence, the Defendant moves this Honorable Court to direct the Assistant District Attorney to produce a transcript of the Grand Jury testimony of each State's witness for inspection by the Defendant's counsel, after each witness has completed his or her direct examination at the Defendant's trial.

WHEREFORE, PREMISES CONSIDERED, the Defendant prays that this Motion be granted in its entirety.

Respectfully submitted, Scheiner Law Group, P.C.

By: /s/: Grant M. Scheiner_________ GRANT M. SCHEINER 2211 Norfolk St., Suite 735 Houston, Texas 77098-4062 Tel: 713-783-8998 Fax: 1-866-798-9854 TBN: 00784913 ATTORNEY FOR DEFENDANT

2

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion was delivered to the Attorney for the State of Texas, or her office, via EMAIL on this the

day of

20 .

/s/: Grant M. Scheiner____ GRANT M. SCHEINER

3

,

CAUSE NO. XXXXX THE STATE OF TEXAS VS. XXXXXXXXXXX

§ § § § §

IN THE _______ DISTRICT COURT OF _____________ COUNTY, TEXAS

ORDER The Defendant’s Motion for Production of Grand Jury Testimony of State’s Witnesses is hereby:

______ GRANTED ______ DENIED

_______________________________ JUDGE PRESIDING

4

CAUSE NO. ___________ THE STATE OF TEXAS VS. XXXXXXXXXXXXXX

ยง ยง ยง ยง ยง

IN THE _____ JUDICIAL DISTRICT COURT OF ______________ COUNTY, TEXAS

APPLICATION FOR SUBPOENA DUCES TECUM To the Clerk of said Court: Now comes, XXXXXXX, the Defendant by and through his attorney, GRANT SCHEINER, and makes application for issuance of subpoena for the person and items named below. The testimony of said person is believed to be material to the defense in the case.

Alief Hastings High School Custodian of Records and/or their designated representative, located at Alief Hastings High School at 4410 Cook Rd., Houston TX 77072; Tel: 281-498-8110 or wherever they may be found, **To bring to court all records relating to this case, including (but not limited to): 1. True and correct, unredacted, school records for COMPLAINANT (DOB: ______) including, but not limited to, grades, transcripts, disciplinary reports, disciplinary records, disciplinary citations and all other school records from Alief Hastings High School or any other school.

Compliance with this subpoena may be satisfied by providing the requested items, along with a business records affidavit to the attorney listed below before DATE. Kindly contact, GRANT SCHEINER at 713-783-8998, upon receipt of this subpoena.

Applicant prays that the subpoena be made returnable on _____________, 20________ at 9:00 a.m. at the ___________ County Courthouse, ADDRESS, CITY, Texas ZIP CODE Please Contact Upon Receipt: Scheiner Law Group, P.C. GRANT SCHEINER TBN: 00784913 2211 Norfolk St., Suite 735 Houston, Texas 77098-4062 Tel: 713-783-8998 Fax: 1-866-798-9854

CAUSE NO. ___________ THE STATE OF TEXAS VS. XXXXXXXXXXXXX

ยง ยง ยง ยง ยง

IN THE _____ JUDICIAL DISTRICT COURT OF ______________ COUNTY, TEXAS

SUBPOENA DUCES TECUM To Any Peace officer or person authorized in accordance with Art. 24.01 C.C.P. Greetings: Name of person other than a Peace Officer to execute summons: ____________________________________________________ YOU ARE HEREBY COMMANDED TO SUMMON: Alief Hastings High School Custodian of Records and/or their designated representative, located at Alief Hastings High School at 4410 Cook Rd., Houston TX 77072; Tel: 281-498-8110 or wherever they may be found, **To bring to court all records relating to this case, including (but not limited to): True and correct, unredacted, school records for COMPLAINANT (DOB: ______) including, but not limited to, grades, transcripts, disciplinary reports, disciplinary records, disciplinary citations and all other school records from Alief Hastings High School or any other school Compliance with this subpoena may be satisfied by providing the requested items, along with a business records affidavit to the attorney listed below before DATE. Kindly contact, GRANT SCHEINER at 713-783-8998, upon receipt of this subpoena. if to be found in your County, to be and appear before the Honorable ______, Judge of the _____ Judicial District Court of __________ County, located in the _______ County Courthouse, at ADDRESS on DATE to give evidence in behalf of the State and defendant in a certain cause wherein the State of Texas is Plaintiff, and XXXXXXXXXXX is defendant, and there to remain from day to day, and from term to term until discharged by the Court.

Herein Fail Not, and due return make of this writ; DATE at 9:00 a.m.

Witness my official signature this _______ day of ________________, A.D. 2018.

SCHEINER LAW GROUP, P.C. GRANT SCHEINER TBN: 00784913 2211 Norfolk St., Suite 735 Houston, Texas 77098-4062 Tel: 713-783-8998 Fax: 1-866-798-9854

NAME OF CLERK District Clerk, ________ County, Texas

BY:

______________________________

DEFENSE SUBPOENA ----------------------------------------------------------------------RETURN Came to hand on the ____ day of ________________, A.D. 20____ and executed by summoning the within named witness _______________________ in person, in the County ________________, at the dates as herein stated, viz:_________________________________________________________ _________________________________________________________________________________ and not executed as to witness ________________________________________________________ the diligence used in finding said witness ________________________________________________ being ____________________________________________________________________________ and who after due search and diligent inquiry, cannot be found in _______________ County Texas.

Received By: _________________________________ Signature _________________________________ Print Name __________________________________ Phone Date: ________________________________________

CAUSE NO. ____________ THE STATE OF TEXAS VS. XXXXXXXXXXX

§ § § § §

IN THE ________ JUDICIAL DISTRICT COURT OF ____________ COUNTY, TEXAS

DEFENDANT’S REQUEST FOR WRIT OF ATTACHMENT TO THE HONORABLE ______________: COMES NOW, XXXXXXXXXX, Defendant, in accordance with Article 24.12 C.C.P., in the above entitled and numbered cause, and moves the Court to command the Sheriff of HARRIS COUNTY, TEXAS and/or the Court’s designated PROCESS SERVER to immediately bring into custody in full compliance with a subpoena previously served in this case, the below-named individual(s): 1. NAME: ____________ 2. LOCATION: ______________________ In support of this request the Defendant would show this Court the following: I. The individual named in this request for a Writ of Attachment was served with SUBPOENA, returnable on DATE. See Defendant’s Subpoena Duces Tecum, on file with Harris County District Clerk and/or Attached as Exhibit 1.

II. The said witness(es) is essential, independent fact witness necessary for Defendant to obtain a fair trial in this matter.

III. No other witness(es) can adequately present such testimony. If the aforementioned individual(s) are not immediately brought before the court in full compliance with the aforementioned SUBPOENA, the defendant will be harmed inasmuch as the defendant will not be in a position to put forth an effective defense.

1

IV. RIGHT TO COMPULSORY PROCESS Further, unless the said witness is brought before the court in full compliance as hereinbefore described, the Defendant will be denied his right under the Sixth Amendment of the United States Constitution and Article I, Sections 9, 10 & 13 of the Texas Constitution, to have compulsory process for obtaining witnesses in his favor.

WHEREFORE, the Defendant prays that the Court grant this Writ of Attachment and issue an Order for the Immediate Custody of the named individual(s) to appear and fully comply with the SUBPOENA(S) DUCES TECUM issued in this case. The Defendant also prays for all such further relief to which Defendant may be entitled.

Respectfully submitted, Scheiner Law Group, P.C.

By: _____________________________ GRANT M. SCHEINER 2211 Norfolk St., Suite 735 Houston, Texas 77098 TBN: 00784913 Tel: 713- 783-8998 Fax 1-866-798-9854 Email: grant@scheinerlaw.com ATTORNEY FOR DEFENDANT

2

CAUSE NO. ____________ THE STATE OF TEXAS VS. XXXXXXXXXXX

§ § § § §

IN THE ________ JUDICIAL DISTRICT COURT OF ____________ COUNTY, TEXAS

ORDER On this date came on to be heard the Defendant’s Request for Writ of Attachment. After considering the motion, all available evidence, and arguments of counsel, it is hereby ordered that the Defendant’s Request is: _______ GRANTED _______ DENIED (To which the Defendant timely excepted) It is ORDERED that the Sheriff’s Department and/or the Court’s Process Server (or any other peace officer at the Court’s direction) shall immediately bring before the court the following individual(s) described in the Defendant’s Request for Writ of Attachment: NAME, ADDRESS It is further ORDERED that said individual(s) shall fully comply with the most recent, SUBPOENA DUCES TECUM existing in this case.

SIGNED and ENTERED on this the _______ day of _______________________, 20____.

_________________________ JUDGE PRESIDING

3

CAUSE NO. XXXXX THE STATE OF TEXAS VS. XXXXXXXXXXX

§ § § § §

IN THE _______ DISTRICT COURT OF _____________ COUNTY, TEXAS

MOTION FOR DISCOVERY OF THERAPY AND MENTAL HEALTH RECORDS AND SAPCR RECORDS TO THE HONORABLE XXXXXXX: COMES NOW, XXXXXXXXX, the Defendant in the above-styled and referenced cause, by and through his attorney of record, and moves the Court to order the State to provide undersigned counsel a full copy of therapy and mental health records of the Complainant, including approximately 387 pages of records from the Children’s Assessment Center, with accompanying medical or business records affidavits, and any records relating to any Suit Affecting Parent-Child Relationship (SAPCR).

The Court orders the State to disclose to the defense copies of such records, and further orders the defense not to disclose such records outside of the defense team.

WHEREFORE, PREMISES CONSIDERED, Defendant prays the Court will grant this Motion and enter its Order accordingly.

Respectfully submitted, Scheiner Law Group, P.C. By:______________________________ JOSE CEJA 2211 Norfolk St., Suite 735 Houston, Texas 77098-4062 Tel: 713-783-8998 Fax: 1-866-798-9854 TBN: 24067542 ATTORNEY FOR DEFENDANT

1

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion was delivered to the Attorney for the State of Texas, or his/her office, via EMAIL on this the _____ Day of 20

.

________________________________ JOSE CEJA

2

,

CAUSE NO. XXXXX THE STATE OF TEXAS VS. XXXXXXXXXXX

ยง ยง ยง ยง ยง

IN THE _______ DISTRICT COURT OF _____________ COUNTY, TEXAS S

ORDER On this the _____ day of ___________________, 20________, came on to be heard Defendant's Motion for Discovery of Therapy and Mental Health Records and SAPCR Records, and having duly considered same, this Court is of the opinion said Motion should be: ______ GRANTED ______ DENIED Having GRANTED said Motion, the Assistant District Attorney representing the State of Texas is hereby ORDERED to disclose to the defense copies of such records, with an ongoing duty to supplement, and further orders the defense not to disclose such records outside of the defense team.

_______________________________ JUDGE PRESIDING

3

CAUSE NO. XXXXXXXXX STATE OF TEXAS v.

XXXXXXXXXXXXX

§ § § § §

IN THE XXX DISTRICT COURT OF HARRIS COUNTY, TEXAS

DEFENDANT’S MOTION TO DISCLOSE CPS RECORDS Defendant through lawyer *, and pursuant to the Fifth, Sixth, and Fourteenth Amendment of the United States, Article I, Sections 10 and 19 of the Texas Constitutions, and Texas Code of Criminal Procedure Article 39.14, moves this Court to order disclosure of records from Texas Department of Family and Protective Services (DFPS) to the defense, or, alternatively, to conduct an in camera inspection and seal in the appellate record any records not given to the defense, showing specifically: 1. The defendant is charged with a sex offense involving a child.

2. DFPS generally conducts an investigation into any allegation of sexual or physical abuse or neglect, separate and apart from any law enforcement agencies.

DFPS records and reports that exist are crucial to the defense of this case. The Texas Department of Family and Protective Services (DFPS) is in possession of reports of abuse or suspected abuse or neglect, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under the Family Code chapter 261, or in providing services as a result of an investigation.

3. These records and reports are necessary for the defense to investigate and develop prior inconsistent statements by the complainant and witnesses, or to investigate and develop specific exculpatory testimony. This information is material and relevant to the defense of the instant case. In support of this Motion, the Defendant would assert that absent such discovery, the Defendant's rights under

1

Art. 39.14, Tex. Code Crim. Pro., Art. I, Sec. 10 of the Texas Constitution, and the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution will be violated, to his irreparable injury and will thus deprive the Defendant of a fair trial herein.

The defendant therefore asks this Court to order disclosure of records from Children’s Protective Services (or Texas Department of Protective and Regulatory Services, or Texas Department of Family and Protective Services), to the defense, or, alternatively, to conduct an in-camera inspection and make part of the appellate record any records not disclosed.

Respectfully submitted,

________________________ * * *, Texas * (***) ***-**** * TBN# Certificate of Service I certify that a copy of this Motion has been delivered to the Assistant District Attorney via e-filing.

_____/s/_________________ *

2

CAUSE NO. XXXXXXXXX STATE OF TEXAS v.

XXXXXXXXXXXXX

| | | | |

IN THE XXX DISRTICT COURT OF HARRIS COUNTY, TEXAS

DEFENDANT’S MOTION TO DISCLOSE CERTAIN SPECIFIC INFORMATION AND EVIDENCE IN THE STATE’S EXCLUSIVE POSSESSION OR READILY ACCESSIBLE TO THE STATE (OR, ALTERNATIVELY, FOR DEPOSITIONS) Defendant, through undersigned, moves this Court to order the prosecution to disclose, within 45 days, certain specific information and evidence that is in the State’s exclusive possession or readily accessible to the State or, alternatively, for depositions under the due process, compulsory process, and confrontation clauses of the United States and Texas Constitutions, Texas Rules of Evidence Articles IV and VI, and Texas Code of Criminal Procedure 39.02, showing specifically: 1. Defendant is charged with a child sex offense. The defense has reviewed the State’s evidence and conducted an independent investigation. However, because certain information and evidence is not available to the defense, and yet the State has exclusive access to it, the defense seeks the State to disclose this information and evidence because it may well lead to material and relevant evidence as well as to evidence and information that is impeaching, exculpatory, and mitigating evidence under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. The defense, through the exercise of due diligence, has tried to obtain this information and evidence, but the defense cannot due so absent the State being ordered to produce this information and evidence or, alternatively, the Court ordering depositions of the complainant and/or her guardian.

2. The defendant requests this Court order the State to obtain and disclose the following to the defense: (1)

All names, addresses, and telephone numbers of anyone who has interviewed the complainant about this offense, from Texas Department of Family and Protective Services (DFPS) workers to therapists to lay individuals, that are not otherwise listed in the discovery that the State has disclosed to the defense so that the defense may interview them,

1

(2)

All names of all schools that the complainant in the last five years, so the defense can obtain these school records,

(3)

All names, addresses and telephone numbers of all mental health providers, including but not limited to social workers, therapists, psychologists or psychiatrists, that are not otherwise listed in the discovery that the State has disclosed to the defense have provided services to the complainant,

(4)

All records from Texas Department of Family and Protective Services (DFPS) and Child Protective Services (CPS) pertaining to this case and any prior investigations, and allow the defense to inspect these records1,

(5)

All records of any Sexual Assault Nurse Examiner (SANE) exam, and allow the defense to inspect these records2,

(6)

All records of any “Crime Victims’ Compensation,” including any applications for it (regardless of whether compensation was awarded), and

(7)

All juvenile records on the complainant.

3. The information and evidence sought is in the exclusive possession of the District Attorney’s Office, its agents, or law enforcement officers, or is readily accessible to them by merely making some phone calls. None of this information and evidence is available to the defendant before trial except by order of this Court, and this information and evidence is within the proper scope of article 39.14, and the defendant needs this information before trial so the defense can properly prepare a defense for his trial on the merits.

4. Should the State argue against disclosing this information and evidence, or the complainant, the complainant’s guardians, or any State agents become uncooperative, then this Court certainly has the power to order depositions under Texas Code of Criminal Procedure article 39.02. This article authorizes deposing witnesses when “good reason exists for taking the deposition,” and requires the filing of “an affidavit stating the facts necessary to constitute a good reason for taking the witness’ deposition and an application to take the deposition. One Texas Court of Appeals has held the “refusal of a witness who

Child Protective Services (CPS), which falls under the umbrella of DFPS, routinely investigates cases involving alleged child sex abuse, even when nonfamily members are involved and police conduct their own investigation.

2 Like CPS investigations, Sex Assault Nurse Examiner (SANE) exams are routinely conducted up to 120 hours after the alleged child sex abuse, even if no penetration or other such physical intrusion is alleged.

1

2

possesses information critical to a significant factor at trial, or who has information exclusively within that witness’ knowledge, to talk to the defendant’s counsel (or investigator) constitutes good reason for ordering such witness’ deposition under Art. 39.02.”3 The Court of Criminal Appeals has implied in three cases that a witness' refusal to talk to counsel is good reason for ordering a deposition.4 Defendant therefore moves this Court to order the prosecution to disclose, within 45 days, certain specific information and evidence that is in the State’s exclusive possession or readily accessible to the State or, alternatively, for depositions.

Respectfully submitted,

________________________ * * *, Texas * (***) ***-**** * TBN# Certificate of Service I certify that a copy of this Motion has been delivered to the Assistant District Attorney via e-filing.

_____/s/____________________ *

State v. Morrow, 139 S.W.3d 736, 743 (Tex. App.—Texarkana 2004, no pet.)

See Cooks v. State, 844 S.W.2d 697, 729 (Tex. Crim. App. 1992); McKinney v.

State, 491 S.W.2d 404, 406–07 (Tex. Crim. App. 1973); Beshears v. State, 461 3 4

S.W.2d 122, 125–26 (Tex. Crim. App. 1970).

3

CAUSE NO. XXXXX THE STATE OF TEXAS VS. XXXXXXXXXXX

IN THE _______ DISTRICT COURT

§ § § § §

OF _____________ COUNTY, TEXAS

MOTION TO INSPECT, EXAMINE, AND PHOTOGRAPH PHYSICAL EVIDENCE TO THE HONORABLE XXXXXXX: NOW COMES, XXXXXXX, Defendant in the above styled and numbered cause, and moves this Court to order the State to produce certain items of physical evidence in its possession and control for inspection and photographing by Defendant and experts designated by Defendant. Defendant stands charged with the offense of sexual assault of child under 17 years of age. The material evidence consists of multiple items of physical evidence collected during this investigation. These items were collected from <Location(s)>.

The request for inspection of the specific items set out above is essential to ensure Defendant his right to a fair hearing, his right to confrontation, his right to prepare a defense in his own behalf, his right to the effective assistance of counsel and due process of law guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, Article I, §§ 10, 13 and 19 of the Texas Constitution and article 39.14 of the Texas Code of Criminal procedure.

WHEREFORE, PREMISES CONSIDERED, Defendant prays: (a)

That the State be ordered to produce all items of physical evidence described

herein and to allow Defendant and the experts designated by Defendant the right to examine, inspect, photograph said items at a time requested by Defendant (b)

That the time set for inspection and photographing of the items requested be

permitted as soon as possible.

1

(c)

That the Court enter an order requiring the State to make continuing disclosure of

all additional items of physical evidence obtained by the State concerning the charges against Defendant.

Respectfully submitted, Scheiner Law Group, P.C. By:_________________________________ JOSE CEJA 2211 Norfolk St., Suite 735 Houston, Texas 77098-4062 Tel: 713-783-8998 Fax: 1-866-798-9854 TBN: 24067542 ATTORNEY FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion was HAND DELIVERED to the Harris County District Attorneyâ&#x20AC;&#x2122;s Office on this the

day of

__________, 20_____.

____________________________________ JOSE CEJA

2

CAUSE NO. XXXXX THE STATE OF TEXAS VS. XXXXXXXXXXX

IN THE _______ DISTRICT COURT

ยง ยง ยง ยง ยง

OF _____________ COUNTY, TEXAS

ORDER On this date the court ordered the Defendant, by and through his agents including Attorneys GRANT M. SCHEINER and JOSE CEJA, plus any defense expert(s), be permitted to inspect, copy and photograph the following item(s) in the possession of law enforcement: Any and all physical and tangible evidence which was seized as a result of the investigation of this case from any location.

SIGNED on this the _________ day of __________________________, 20_____.

_________________________ JUDGE PRESIDING

3

CAUSE NO. XXXXXXX THE STATE OF TEXAS v.

XXXXXXXXXXXXX

§ § § § §

IN XXXX DISTRICT COURT OF HARRIS COUNTY, TEXAS

DEFENDANT’S MOTION FOR PRODUCTION OF THE COMPLAINANT’S VIDEOTAPED INTERVIEW Defendant, through lawyer *, and pursuant to the Fifth, Sixth, and Fourteenth Amendment of the United States and Article I, Sections 10 and 19 of the Texas Constitutions and Texas Code of Criminal Procedure art. 39.14, requests the Court to order the prosecution to produce, for inspection and copying of at least 45 days before trial, certain video/audio recorded evidence that is in possession of the State, showing specifically: 1.

The defendant is charged with a sex offense involving a child. A video/audio tape

was made of the complainant by the **HOUSTON POLICE DEPARTMENT, an agency of the State of Texas. This video recording is within the care, custody, and control of the District Attorney’s Office and/or a law enforcement agency.

2.

The complainant’s statements on the videotape are material to the allegations in

this case. In particular, the videotape contains details of the alleged offense. The videotape also contains evidence favorable to the defense, either direct or impeaching.

3.

Failure to provide the defense with a copy of the recording prior to trial deprives

the defendant of his constitutional right to present evidence on his behalf and to adequately cross-examine the witnesses against.

4.

It is well-established that to use of the content of a recording in court, as direct or

impeaching evidence, the proponent of the evidence must have the evidence in admissible form.

Part of the recording may be admissible and part may not be admissible in evidence. A trial

court does not abuse its discretion in refusing to admit a recording into evidence that contains both admissible and inadmissible statements, where the proponent has offered the entire recording into evidence and not just the admissible parts. Willover v. State, 70 S.W.3d 841, 84647 (Tex. Crim. App. 2002). The defendant therefore must have the opportunity before trial to edit the tape accordingly so it is admissible.

5.

Failure to provide the defense with a copy of the recording before trial also

deprives the defendant of his constitutional right to effective assistance of counsel.

The

defendant needs a copy of the videotape so that defense counsel may confer with the defendant and/or expert about the content of the recording in order to prepare his defense.

6.

Trial courts in **Harris County have previously ordered the prosecution to

provide a copy of a complainant’s videotape interview to the defense and this was held not to be err. See, e.g., State Ex. Rel. Rosenthal, 2002 WL 730786 (Houston [14th Dist.] 2002, no pet.) (not designated for publication). Recently, in In re District Attorney's Office of the 25th Judicial District, Applicant (State v. Charles Morgan Dittman, Sr.), the Court of Criminal Appeals denied the prosecution mandamus relief and held the trial court properly exercised its discretion in requiring the prosecution to provide the defense their own copy of the complainant’s videotape interview with the Children’s Assessment Center.

The defendant therefore prays that the Court order the prosecution to provide the defendant, at his cost, a copy of the complainant’s videotape at least 45 days before trial.

Respectfully submitted,

____________________________ * *

*, Texas * (***) ***-**** * TBN# Certificate of Service I certify that a copy of this Motion has been delivered to the Assistant District Attorney via e-filing. _____/s/_______________________ *

CAUSE NO. XXXXXXXXX STATE OF TEXAS v.

XXXXXXXXXXXXX

§ § § § §

IN THE XXX DISTRICT COURT OF HARRIS COUNTY, TEXAS

MOTION FOR COURT REPORTER TO TRANSCRIBE THE CHILD COMPLAINANT’S RECORDED STATEMENTS Defendant, through lawyer *, and pursuant to the Fifth, Sixth, and Fourteenth Amendment of the United States, Article I, Sections 10 and 19 of the Texas Constitutions, and Texas Code of Criminal Procedure Article 39.14, requests this Court to order the government to deliver to the Official Court Reporter of this Court all of the child complainant’s audio, video and/or electronically recorded statements so that the court report can transcribe the interviews, which the defendant will pay for, showing specifically: 1. The child complainant has given at least one statement that has been recorded in this case.

2. This recording is in the exclusive custody and control of the State.

3. Allowing undersigned to have a transcription of this recording would aid in providing effective assistance of counsel, due process, and equal protection, which are bedrock constitutional protections that ensure the defendant receives a fair trial. Indeed, **Harris County Courts have ordered such transcriptions of child complainants in sex offense cases.

See, e.g., State v. Anthony Tang, case numbers 138139-40 and 1383081-82, 262nd District Court, Harris County, Texas. As a practical matter, giving the defense a transcript would significantly expedite the cross-examination of the child complainant at trial.

Absent a transcript, the defense would have to pause and/or ask for a recess, to cue up the relevant portion of the recording, every time the recorded statement was used to impeach the complainant. In undersigned’s experience, this unnecessarily delays trial.

4. After the transcript is completed, the recording should be returned to the State, and a copy of the transcript should be provided to both the State and defense.

1

5. The defendant is willing to bear all reasonable costs associated with this transcription.

The defendant therefore requests this Court to order the government to deliver to the Official Court Reporter of this Court all of the child complainant’s audio, video and/or electronically recorded statements so that the court report can transcribe the interviews, which the defendant will pay for.

Respectfully submitted,

________________________ * * *, Texas * (***) ***-**** * TBN# Certificate of Service I certify that a copy of this Motion has been delivered to the Assistant District Attorney via e-filing.

__________/s/____________ *

2

CAUSE NO. XXXXXXXXX STATE OF TEXAS v.

XXXXXXXXXXXXX

| | | | |

IN THE XXXX DISTRICT COURT

HARRIS COUNTY, TEXAS

DEFENDANT’S MOTION FOR A HEARING OUTSIDE THE JURY’S PRESENCE ON THE COMPLAINANT’S COMPETENCY Defendant, through undersigned, moves this Court to hold a hearing outside the jury’s presence on the complainant’s competency pursuant to Texas Rule of Evidence 601, showing specifically: 1. Normally, witnesses are presumed competent to testify.1 But this is not so regarding children who lack sufficient intellect to testify concerning the matters at issue.2 Though no minimum age for competency exists, the court must nevertheless consider the following three factors: (1) the ability of the child to intelligently observe the events at the time of their occurrence, (2) the child's capacity to recollect the events, and (3) the child's capacity to narrate the events.3 “The third element requires the witness to be able to understand the questions that are asked, to be able to frame intelligent answers to those questions, and to be able to understand the moral 1

TEX.R.EVID. 601(a)

2

Id. Scientific studies show children up until around the age of four years old do

not have a clear idea of where truth begins or ends.

3 Torres v. State, 33 S.W.3d 252, 255 (Tex. Crim. App. 2000)

1

responsibility to tell the truth.”4 2. The “better practice” is to determine a witness’ competency outside of the jury’s presence.5 Indeed, Texas Rule of Evidence 104 states that “the court must decide any preliminary questions about whether a witness is qualified . . . or evidence is admissible” outside the jury’s presence “if . . . justice so requires.”

Defendant therefore moves this Court to hold a hearing outside the jury’s presence on the complainant’s competency.

Respectfully submitted, NEAL DAVIS LAW FIRM, PLLC _____/s/________________________ _ Neal Davis Texas Bar No.: 24001117 Harris County SPN: 01732446 1545 Heights Blvd.

Houston, Texas 77008 Tel: (713) 227-4444 Fax: (800) 760-7140 Email: Neal@NealDavisLaw.com

4

Escamilla v. State, 334 S.W.3d 263, 266 (Tex. App.—San Antonio 2010, pet.

ref'd) (emphasis added)

Cruice v. State, 2000 WL 328197 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (not designated for publication) (citing Schulz v. State, 957 S.W.2d 52 65

5

(Tex. Crim. App. 1997))

2

Certificate of Service I certify that a copy of this Motion has been delivered to the Assistant District Attorney via e-filing. _____/s/_______________________ Neal Davis

3

CAUSE NO. XXXXXXXXX STATE OF TEXAS v.

XXXXXXXXXXXXX

| | | | |

IN THE XXXX DISTRICT COURT

HARRIS COUNTY, TEXAS

ORDER ON DEFENDANT’S MOTION FOR A HEARING OUTSIDE THE JURY’S PRESENCE ON THE COMPLAINANT’S COMPETENCY After considering Defendant’s Motion for a Hearing Outside the Jury’s Presence on the Complainant’s Competency, it is ordered GRANTED / DENIED. ______________________________ JUDGE PRESIDING

4

CAUSE NO. ____________ THE STATE OF TEXAS VS. XXXXXXXXXXXXX

§ § § § §

IN THE _______ JUDICIAL DISTRICT COURT OF _______________ COUNTY, TEXAS

MOTION FOR DECLARATORY RULING ON ADMISSIBILITY OF EXTRANEOUS CONDUCT TO THE HONORABLE _____________: NOW COMES, XXXXXXXXX, the Defendant in the above entitled and numbered cause, by and through Counsel, and would show unto the Court as follows: I. The State of Texas filed its Notice of Intention to Use Extraneous Offenses and Prior Convictions on <DATE> (see “Exhibit A” attached). Counsel believes certain extraneous conduct included in the State’s Notice is inadmissible under Article 38.37 of the Texas Code of Criminal Procedure, Rule 403 of the Texas Rules of Evidence and in violation of Defendant’s rights under the Texas and United States Constitutions.

II WHEREFORE, PREMISES CONSIDERED, Defendant prays that this matter be set for hearing, and that the Court rule on the admissibility of alleged extraneous conduct on the part of the Defendant, so that the parties may prepare for trial effectively and the Court may conduct the trial of this case (if there is one) as efficiently as possible.

Respectfully submitted, Scheiner Law Group, P.C. 1

By: ____________________________ GRANT M. SCHEINER 2211 Norfolk St., Suite 735 Houston, Texas 77098-4062 Tel: 713-783-8998 Fax: 1-866-798-9854 Email: grant@scheinerlaw.com TBN: 00784913 ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE I certify that on ___________________________, 20_____ a true and correct copy of the foregoing Defendantâ&#x20AC;&#x2122;s Motion for Declaratory Ruling on Admissibility of Extraneous Conduct was sent via EMAIL to the attorney for the State of Texas. ____________________________ GRANT M. SCHEINER

2

CAUSE NO. ____________ THE STATE OF TEXAS VS. XXXXXXXXXXXXX

ยง ยง ยง ยง ยง

IN THE _______ JUDICIAL DISTRICT COURT OF _______________ COUNTY, TEXAS

ORDER BE IT REMEMBERED, that on this date came on to be considered the above and foregoing Motion for Declaratory Ruling on Admissibility of Extraneous Conduct by Defendant. After consideration of the same, it is the opinion of the Court that the same be: ( )

GRANTED. Extraneous conduct relating to allegations made by <INITIALS>

are inadmissible. ( )

DENIED. Extraneous conduct relating to allegations made by <INITIALS>

are admissible.

SIGNED on this the ______ day of ___________________________, 20______.

____________________________ JUDGE PRESIDING

3

4

CAUSE NO. XXXXXXX THE STATE OF TEXAS v.

XXXXXXXXXXXXX

§ § § § §

IN XXXX DISTRICT COURT OF HARRIS COUNTY, TEXAS

DEFENDANT’S MOTION FOR A HEARING AND TO EXCLUDE EVIDENCE UNDER TEXAS RULES OF EVIDENCE 404 AND 609 AND TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 38.37 The Defendant, through lawyer *, moves this Court to do three things: (1) Order a hearing, (2) Exclude all evidence under Texas Rules of Evidence 404 and 609 and Texas Code of Criminal Procedure article 38.37, and (3) Should this Court deny exclusion, make factual findings and legal conclusions as well as give limiting instructions at the time of the evidence’s admission and in the jury instructions.

A. Prior convictions under Texas Rules of Evidence 609 1. Before a prior conviction is admissible against a witness, the prosecution must meet its burden of complying with Texas Rules of Evidence 609 and showing: (1) The conviction was properly noticed, (2) The conviction was for either a felony or a misdemeanor involving moral turpitude, (3) The witness is the same person so previously convicted, (4) The conviction is a “final conviction,” and no direct state or federal appeal is pending, (5) The conviction does not involve a juvenile adjudication, (6) If not more than 10 years has passed since the date of conviction or release of the witness from confinement for the conviction,

1

whichever is later, this Court finds the probative value of admitting the evidence of conviction outweighs its prejudicial effect; if more than 10 years has passed, this Court finds the probative value of admitting the evidence of conviction substantially outweighs its prejudicial effect.

2. Regarding this last factor, this Court must consider the five “nonexclusive” factors set out in Theus v. State1 (1) The impeachment value of the prior crime (“crimes that involve deception have a higher impeachment value” than other offenses), (2) The temporal proximity of the past crime relative to the charged offense (admission is favored only “if the past crime is recent and if the witness has demonstrated a propensity for running afoul of the law”), (3) The similarity of the past crime and the charged offense (similarity militates against admission), (4) The importance of the testimony of the witness seeking to be impeached, and (5) The importance of the credibility issue (when the defense calls more than the witness who the prosecution seeks to impeach under Texas Rule of Evidence 609, the importance of the credibility and testimony decreases of the witness who the prosecution seeks to impeach and therefore militates against admission).

B.

Crimes, wrongs, or acts under Texas Rule of Evidence 404

1. Under Texas Rule of Evidence 404(b), evidence of “other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” “The plain language of Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to show character conformity.”2 “The objectionable evidence need not be a bad or wrongful act or a crime punishable by statute.”3 Character conformity evidence is inadmissible that

1

845 S.W.2d 874 (Tex. Crim. App. 1992) 2 Fox v. State, 283 S.W.3d 85, 92 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) 3 Id. (holding that cross-dressing, while not a crime or wrong, is an act that falls under Rule 404(b))

2

has no relevance beyond a tendency to show the defendant is a bad person or of a character from whom criminal conduct might be expected.4 2. Before an alleged crime, wrong, or act is admissible, the prosecution must meet its burden of complying with Texas Rule of Evidence 404 by showing: (1) The alleged crime, wrong, or act was properly noticed, (2) A jury could reasonably find beyond a reasonable doubt that the defendant committed the alleged crime, wrong, or act, beyond a reasonable doubt under Texas Rule of Evidence 104(b), and (3) The alleged crime, wrong, or act is being used for some other reason (e.g., proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) than proving character in conformity.

3. Even if the prosecution meets its burden of complying with Texas Rule of Evidence 404, this Court must determine whether the evidence is legally relevant under Texas Rules of Evidence 402 and 403. In determining this relevance, this Court must consider the four factors initially set out in Montgomery v. State5 and reiterated in Manning v. State6: (1) The probative value of the evidence, (2) The potential of the evidence to impress the jury in an irrational and indelible way, (3) The time needed to develop the evidence, and (4) The proponent's need for the evidence.

The last inquiry includes three subparts: (1) Whether the proponent has other available evidence to show the fact of consequence that the extraneous misconduct is relevant to show, (2) If so, how strong that other evidence is, and

4

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); Bargas v. State, 252 S.W.3d 876, 890 (Tex. App.—Houston [14th Dist.] 2008, no pet.)

5 810 S.W.2d 372 (Tex. Crim. App. 1990) 6 114 S.W.3d 922 (Tex. Crim. App. 2003)

3

(3) Whether the fact of consequence is related to an issue that is in dispute.7 C. Crimes, wrongs, or acts under Texas Code of Criminal Procedure article 38.37 1. Before an alleged crime, wrong, or act is admissible involving an alleged sex offense against a child under 17 years old, the prosecution must meet its burden of complying with Texas Code of Criminal Procedure article 38.37 and showing: (1) The alleged crime, wrong, or act was properly noticed, (2) The alleged crime, wrong, or act is relevant under Texas Code of Criminal Procedure article 38.37 and (3) The alleged crime, wrong, or act is legally relevant under Texas Rules of Evidence 402 and 403 in light of the four Montgomery factors (set out above).8 The defendant therefore moves this Court to do three things: (1) Order a hearing, (2) Exclude all evidence under Texas Rules of Evidence 404 and 609 [and Texas Code of Criminal Procedure article 38.37 in child sex offenses], and (3) Should this Court deny exclusion, make factual findings and legal conclusions as well as give limiting instructions at the time of the evidence’s admission and in the jury instructions.

Respectfully submitted,

________________________ * *

7

Montgomery, 810 S.W.2d at 391

8 See, e.g., Howland v. State, 966 S.W.2d 98, 103, (Tex. App.—Houston [1st Dist.] 1998), aff’d.

990 S.W.3d 274 (Tex. Crim. App. 1999).

4

*, Texas * (***) ***-**** * TBN# Certificate of Service I certify that a copy of this Motion has been delivered to the Assistant District Attorney via e-filing.

_____/s/__________________ *

5Â Â

CAUSE NO. XXXXXXXXX STATE OF TEXAS v.

XXXXXXXXXXXXX

§ § § § §

IN THE XXX DISTRICT COURT OF XXXX COUNTY, TEXAS

DEFENDANT'S MOTION TO EXCLUDE EVIDENCE OF ALLEGED CHILD PORNOGRAPHY AND ANIMATED CHILD PORNOGRAPHY TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW the Defendant, ***, by and through his attorney, ***, and files this, his Motion to Exclude Evidence of Alleged Child Pornography and Animated Child Pornography, and requests the Court to hold a hearing to determine the admissibility of the evidence under Rules 401, 402, 403 and 404(b) of the Texas Rules of Evidence.

I. Defendant is accused in the above cause of the offense of Aggravated Sexual Assault. In Cause No. ***, Defendant is accused of the offense of Possession of Child Pornography.

II. The State has provided defense counsel and a defense expert an opportunity to view the evidence of alleged child pornography in Cause No. ***. Said evidence consists of a video identified as “C:\Documents and Settings\***\My Videos\Debut.” Further, the State has provided defense counsel and a defense expert an opportunity to view evidence of alleged animated child pornography identified as “Child Porn Cartoon Character Pictures.”

III. Defendant would show that the video “C:\Documents and Settings\***\My Videos\Debut” in fact does not depict child pornography, but does depict an adult female engaged in sexual acts

with an adult male. Defendant would show that none of the images identified as “Child Porn Cartoon Character Pictures” depict illegal child pornography.

IV. Defendant would show that the State’s evidence alleging child pornography and animated child pornography are not relevant to the issues in the Defendant’s trial alleging aggravated sexual assault, in that said evidence has no “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” TRE 401, 402.

V. Defendant would show that the State’s evidence alleging child pornography and animated child pornography are not admissible as evidence of “other crimes, wrongs or acts” because said evidence does not constitute “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” TRE 404(b).

VI. Defendant would show that even if the State’s evidence alleging child pornography and animated child pornography are deemed relevant or otherwise admissible under Texas Rule of Evidence 404(b), said evidence should be excluded because its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. TRE 403.

WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully prays that this Motion be granted.

Respectfully submitted, ________________________ * * *, Texas * (***) ***-**** * TBN# Certificate of Service I certify that a copy of this Motion has been delivered to the Assistant District Attorney via e-filing. __________/s/____________ *

CAUSE NO. XXXXXXXXX STATE OF TEXAS

§ § § §

v.

XXXXXXXXXXXXX

§

IN THE XXX DISTRICT COURT OF XXXX COUNTY, TEXAS

BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO EXCLUDE All evidence of pornographic images found on the defendant’s computer should be excluded under Texas Rules of Evidence 401, 402, 403, and 404(b). Additionally, any evidence regarding a computer game called “RapeLay,” or instructions for such a game, should be excluded under these rules. The electronic discovery provided by the State conclusively demonstrates that the defendant did not possess any illegal child pornography. Animated cartoon depictions of children in sexual situations do not constitute illegal child pornography. Further, computer and video games are legally protected expressions under the First Amendment, as stated in Brown v. Entertainment Merchants Assoc., 131 S. Ct. 2729 (2011).

The legally possessed pornographic images, as well as the legally possessed computer game, are irrelevant to the offense with which the defendant is being tried, and as such are wholly inadmissible under Rule 402. If such evidence is relevant as an extraneous bad act, it has no relevance beyond its tendency to show conformity with character, and is therefore inadmissible under Rule 404(b). Finally, even if it found to have some relevance apart from showing character conformity, this evidence should be excluded under Rule 403 because any remaining probative value is substantially outweighed by the danger of unfair prejudice.

1

I. Irrelevant evidence is inadmissible.

Relevant evidence is evidence having any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. To determine whether a particular piece of evidence is relevant, the appropriate question is whether a reasonable person with some experience in the real world would believe that the evidence is helpful in determining the truth or falsity of any fact that is of consequence. Montgomery v. State, 810 S.W.2d 372, 376 (Tex. Crim. App. 1990). Evidence is relevant if it has any tendency at all, even potentially, to make a fact of consequence more or less likely than it would be without the evidence. However, if the evidence does not in the aggregate support a rational finding that such matter of consequence is true, the evidence should be excluded.

Fuller v. State, 829 S.W.2d 191, 1988 (Tex. Crim. App. 1992). The admission of relevant evidence is generally favored, while evidence which is not relevant is absolutely inadmissible. Tex. R. Evid. 402.

Not all relevant evidence is admissible. Evidence of the defendantâ&#x20AC;&#x2122;s other crimes, wrongs, or acts may be relevant to show his character, but it is always inadmissible to prove action in conformity therewith. Tex. R. Evid. 404(b). Evidence of extraneous bad acts may be admissible only if it serves a permissible purpose apart from character conformity. Such purposes include proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Tex. R. Evid. 404(b). The burden of persuasion is on the proponent to show that the evidence tends to establish some elemental or evidentiary fact or that it rebuts a defensive theory. See Bolles v. State, 2010 Tex. App. LEXIS 1080, 9 (Tex. App.--Amarillo, 2010). The only consideration before

2

the trial court under a Rule 404(b) objection is whether the proffered evidence is relevant beyond its character conformity value. Id. If the extraneous offense evidence is not relevant beyond supporting character conformity, it is wholly inadmissible under Rule 404(b) and the court has no discretion to admit it. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991). Any further analysis by the court is precluded and any probative value is deemed to be substantially outweighed by the danger of unfair prejudice as a matter of law. Id. (citing United States v. Beechum, 582 F.2d 898, 910 (5th Cir. 1978). If the evidence logically serves any permissible purpose, however, it is relevant beyond character conformity and may be admissible, subject to additional analysis under the balancing test of Rule 403.

Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tex. R. Evid. 403. The term “‘unfair prejudice’ refers to a tendency to suggest decision on an improper basis, commonly, although not necessarily, an emotional one.”

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). The prejudicial effect may be created by the tendency of the evidence to prove some adverse fact not properly in issue or to unfairly excite emotions against the defendant. Id. at 883.

Analysis under Rule 403 requires the court to balance a variety of factors. The inherent probative force of the proffered evidence is coupled with the proponent’s need for the evidence, and together they are placed on one side of the scale. Id. at 882. They must then be balanced against the Rule 403 counter-factors: any tendency of the evidence to 1) suggest decision on an improper basis, 2) confuse or distract the jury from the main

3

issues, 3) be given undue weight by a jury . . . or 4) consume an inordinate amount of time or repeat evidence already admitted. Id. at 883.

II. Evidence of Extraneous Sexual Activity is both irrelevant and highly prejudicial.

“Evidence of extraneous sexual activity that simply proves certain propensities toward sexual conduct in general is not admissible . . . .” Warr v. State, 2009 Tex. App. LEXIS 2538 (Tex. App.--Texarkana, 2009)(citing Boutwell v. State, 719 S.W.2d 164, 176-81 (Tex. Crim. App. 1985)(op. on reh’g). This type of evidence is both irrelevant under 404(b), and highly prejudicial. Both sexual misconduct and misconduct involving children are inherently inflammatory. Montgomery, 810 S.W.2d at 397. “Sexual offenses are highly emotional issues in our society and the defendants are regarded differently from the ‘ordinary’ criminal.” Boutwell, 719 S.W.2d at 177.

In Warr, evidence of the defendant’s legally possessed sex toys was inadmissible in his trial for indecency with a child. The State failed to connect the toys to the charged offense. There was no evidence that the toys were used in any way related to the complainant, and the toys were not mentioned by the complainant in any account of the alleged abuse. The court noted, “to suggest that possession of the toys would lend itself to establishing . . . intent . . . is to engage in speculation, or worse, to seek to convict on the basis of propensities.” Warr, 2009 Tex. App. LEXIS 2538 at 8.

Evidence of pornography was properly excluded as irrelevant in Eisenman v.

State, 2008 Tex. App. LEXIS 282, 40 (Tex. App.--Corpus Christi 2008). Although the existence of pornography on Mr. Eisenman’s computer was arguably illustrative of the relationship between the parties, it had no direct connection to his shooting or the events leading up to it. Id. at 37-39.

4

Because pornographic evidence is highly inflammatory, it is only admissible when the probative value of such evidence is significant, as when it is directly linked to the offense charged. See Allen v. State, 2012 Tex. App. LEXIS 4598 (Tex. App.-Houston [1st Dist.] 2012) (admitted where testimony of complainant revealed that the defendant used pornography immediately before sexually assaulting her); Garrett v.

State, 2010 Tex. App. LEXIS 685 (Tex. App.--Dallas 2010)(admitted to corroborate testimony that a pornographic video was used during the abuse); Brown v. State, 2012 Tex. App. LEXIS 5164 (Tex. App.--Eastland, 2012)(admitted because pornographic videos depicted similar events to that of alleged abuse). Additionally, evidence of unindicted illegal child pornography has been admitted to show the intent or knowledge of the defendant in his trial for Possession of Child Pornography. Wooley v. State, 2010 Tex. App. LEXIS 10306 (Tex. App.--Dallas, 2010).

III. Evidence of the defendantâ&#x20AC;&#x2122;s extraneous sexual activity or propensity is inadmissible because it is both irrelevant and highly prejudicial.

There is no indication that pornography, either adult or child-anime, was directly connected to the events which form the basis of this prosecution. Further, the instructions concerning the video game, RapeLay, predated the transaction by more than two years.

Without a direct connection to the charged offense, evidence of pornography or explicit video games on the defendantâ&#x20AC;&#x2122;s computer is irrelevant, just as similar evidence was irrelevant in Eisenman. This evidence, in the aggregate, does not support a rational finding that any matter of consequence to these charges is true. Irrelevant evidence, such as the digital discovery from the defendantâ&#x20AC;&#x2122;s computer, is strictly inadmissible under Rule 402.

5

If this evidence holds any probative value at all, it is that of an extraneous act and is limited to showing the defendant’s character or propensities. As such, it is wholly inadmissible under Rule 404(b). No permissible purpose is supported by the legal pornography or video games on the defendant’s computer. There is no logical connection between the defendant’s legal pastimes and any showing of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. This evidence simply has no relevance beyond character conformity. Like the sex toys in Warr, evidence regarding the defendant’s legally possessed pornography and sexually explicit video game must be excluded to avoid conviction based on speculation and propensities.

The inflammatory nature of this type of evidence suggests decision on an improper, emotional basis. Without even a tenuous connection to the charged offense, the State has no need for this evidence other than to excite the passions of the jury. Both sexual misconduct and misconduct involving children are emotionally charged subjects.

Evidence of the defendant’s legal collection of pornography, particularly the child anime, would serve no purpose in this trial other than to inflame the emotions of the jury. The evidence on the defendant’s computer shows nothing more than extraneous sexual activity that proves certain propensities toward sexual conduct. This evidence would likely be given inordinate weight by a jury, and would distract the jury from the main issues. The sexual nature of the charged offense means that the defendant is likely to be regarded differently by the jury than an ‘ordinary; defendant. Any slight probative value that may be found in this evidence is substantially outweighed by the danger of unfair prejudice. Texas Rules of evidence 401, 402, 403, and 404(b) require the exclusion of

6

this evidence as irrelevant and unfairly prejudicial. The Defendant, therefore, prays that this Court grant his Motion and exclude all such evidence in the trial of this cause.

Respectfully submitted, ________________________ * * *, Texas * (***) ***-**** * TBN# Certificate of Service I certify that a copy of this Motion has been delivered to the Assistant District Attorney via e-filing. __________/s/____________ *

7

CAUSE NO. XXXXXXX THE STATE OF TEXAS v.

XXXXXXXXXXXXX

§ § § § §

IN XXXX DISTRICT COURT OF HARRIS COUNTY, TEXAS

DEFENDANT’S MOTION FOR A HEARING AND SUPPRESSION Defendant, through undersigned, moves this Court to do three things: (1) Order and hold a hearing outside the jury’s presence on this motion, (2) Suppress all illegally obtained evidence, including its fruits, in the charged offense in this case or in any crimes, wrongs, or acts in this case that the prosecution properly noticed under Texas Rules of Evidence 404 and 609 as well as Texas Code of Criminal Procedure articles 37.07 and 38.37, and (3) Should this Court deny suppression, make factual findings and legal conclusions within 20 days of ruling.1 1. Defendant has standing to challenge the legality of how the evidence was obtained.

2. A hearing outside the juror’s presence is necessary to keep inadmissible evidence from prejudicing Defendant. Texas Rule of Evidence 101 relaxes the evidentiary rules on suppression matters involving a warrant: “These rules . . . do not apply in the following situations: * * * proceedings for the issuance of a search or arrest warrant.” Texas Rule of

1

U.S. CONST. amend. IV, V, VI, XIV; TEX. CONST. art. I, § 9, 10, 19; TEX. CODE CRIM. PROC. ch. 1, 14, 15,

18, 28; TEX. R. EVID. art. I; State v. Oages, 210 S.W.3d 643, 644 (Tex. Crim. App. 2006) (holding “when the losing party on a motion to suppress requests findings of fact and conclusions of law, the trial court must issue them, so that the court of appeals may properly review the trial court's ruling . . . Such a request is best accomplished by a formal motion for findings of fact and conclusions of law, made either on the record in open court or by written motion and timely presentation to the trial court”); State v. Cullen, 195 S.W.3d 696, 699-700 (Tex. Crim. App. 2006) (holding “the trial court has 20 days from the date of its ruling in which to file findings of fact if it has not already made oral findings on the record”)

1

Evidence 104 relaxes the evidentiary rules and prohibits the jury from hearing otherwise inadmissible evidence on a suppression issue, regardless of whether a warrant is involved: “Preliminary questions concerning . . . the admissibility of evidence shall be determined by the court . . . [which] is not bound by the rules of evidence * * * In a criminal case, hearings on the admissibility of a confession shall be conducted out of the hearing of the jury.” And Texas Rule of Evidence 103 states: “In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means . . . ” Under Texas and federal law, when a defendant challenges a confession from being involuntary, a hearing on admissibility is required outside the jury’s presence.2 3. Who bears what burden in a suppression matter depends on what the defendant is seeking to suppress. Under Texas and federal law, a defendant seeking suppression of a search of seizure bears the burden of proof to rebut a presumption of proper police conduct.3 The defendant satisfies this burden if it shown police acted without a warrant.4 The burden of proof then shifts to the prosecution to either produce a warrant or prove the reasonableness of the challenged conduct.5 If the prosecution produces a warrant, the burden of proof shifts to the defendant to show the invalidity of the warrant.6 If the prosecution is unable to produce a warrant, it must prove the reasonableness of the search or seizure.7 The prosecution’s burden is to show, by a preponderance of the evidence, that the search or seizure was reasonable.8

2

Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995) (holding “once a defendant moves to

suppress a statement on the ground of “involuntariness,” the due process guarantee requires the trial court to hold a hearing on the admissibility of the statement outside the presence of the jury. Jackson v. Denno, 378 U.S. 368, 380 (1964). Article 38.22, § 6 and Texas Rule of Criminal Evidence 104(c) have the same requirement.”)

3

See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005); McGee v. State, 105 S.W.3d 609, 613

(Tex. Crim. App. 2003); Porter v. State, 938 S.W.2d 725, 727–28 (Tex. App.—Houston [1st Dist.] 1996, pet. ref'd) 4

Id.

5

Id.

6

Id.

7

Id.

8

Id.; Nix v. Williams, 467 U.S. 431, 444 n. 5 (1984)

2

4. Consent is an exception to the warrant requirement. Under federal law, the prosecution has the burden of showing, by a preponderance of the evidence, that consent was voluntary.9 But Texas law provides greater protection to the defendant. In Texas, the prosecution must prove, by clear and convincing evidence, that consent was voluntary.10 5. Under Texas and federal law, when a defendant seeks suppressing a statement based on involuntariness, the prosecution has the burden of proving, by a preponderance of the evidence, that the statement was voluntary.11 6. Under Texas and federal law, when a defendant establishes that a prosecution witness has identified the defendant at a lineup conducted in violation of the Sixth Amendment right to counsel, the prosecution has the burden of proving, by clear and convincing evidence, that the witness’ in-court identification has a source independent of the tainted lineup.12 6. Defendant’s case raises at least one of the following suppression issues: • Any search occurred without a valid warrant, without probable cause, and without a search warrant exception • Any arrest was made without a valid warrant, without probable cause, and without an arrest warrant exception • Any detention was not based on reasonable suspicion • Any of Defendant’s oral, written, or electronically recorded statements were illegally obtained • Any eyewitness identification of Defendant, either in or out of court, was illegal Defendant therefore moves this Court to do three things: (1) Order and hold a hearing outside the jury’s presence on this motion, (2) Suppress all illegally obtained evidence, including its

9

United States v. Matlock, 415 U.S. 164, 176–78 (1974). Montanez v. State, 195 S.W.3d 101, 105 (Tex.

Crim. App. 2006) 10

Montanez, 195 S.W.3d at 105 (citing TEX. CONST. art. I, § 9)

11

Colorado v. Connelly, 479 U.S. 157, 169 (1986); Alvarado, 912 S.W.2d at 211

12

United States v. Wade, 388 U.S. 218 (1967); Williams v. State, 477 S.W.2d 885, 889 (Tex. Crim. App.

1972)

3

fruits, in the charged offense in this case or in any crimes, wrongs, or acts in this case that the prosecution properly noticed under Texas Rules of Evidence 404 and 609 as well as Texas Code of Criminal Procedure articles 37.07 and 38.37, and (3) Should this Court deny suppression, make factual findings and legal conclusions within 20 days of ruling.

Respectfully submitted,

________________________ * * *, Texas * (***) ***-**** * TBN# Certificate of Service I certify that a copy of this Motion has been delivered to the Assistant District Attorney via e-filing.

_____/s/_______________________ *

4Â Â

CAUSE NO. XXXXXXXXX STATE OF TEXAS v.

XXXXXXXXXXXXX

| | | | |

IN THE ___________ DISTRICT COURT HARRIS COUNTY, TEXAS

DEFENDANT’S MOTION FOR A HEARING OUTSIDE THE JURY’S PRESENCE ON THE ADMISSIBILITY OF THE COMPLAINANT’S OUTCRY STATEMENT Defendant, through undersigned, moves this Court to hold a hearing outside the jury’s presence on the admissibility of the complainant’s outcry statement pursuant to the due process and confrontation clause protections under the United States and Texas Constitutions, to Texas Code of Criminal Procedure article 38.072, and to Texas Rules of Evidence, Articles I, VII, and VIII, showing specifically: 1. Texas Code of Criminal Procedure article 38.072 provides a hearsay exception to the statement of an alleged child abuse complainant.

2. Before the complainant’s statement is admissible, Article 38.072 (2)(b)(2) requires a hearing “outside the presence of the jury” for the trial court to determine whether “the statement is reliable based on the time, content, and circumstances of the statement.”

3. This hearing outside the jury’s presence is consistent with the letter, if not the spirit, of the Texas Rules of Evidence. Texas Rules of Evidence 101 and 104 relax the evidentiary rules on admissibility issues. Texas Rule of Evidence 103 states: “To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.”

1

4. Aside from being reliable, the exception to the hearsay statement of an alleged child abuse complainant only applies: (1) When the alleged offense was committed against a complainant 12 years or younger, (2) To the first person, at least 18 years old, other than the defendant, to whom the complainant made a statement about the alleged offense.

(3) If on or before the 14th day before the day trial begins, the party intending to offer the statement: (a) Notifies the defense of its intention to do; (b) Provides the defense with the name of the witness through whom the prosecution intends to offer the statement, and (c) Provides the defense with a written summary of the statement.

Defendant therefore moves this Court to hold a hearing outside the juryâ&#x20AC;&#x2122;s presence on the admissibility of the complainantâ&#x20AC;&#x2122;s outcry statement.

2

Respectfully submitted, NEAL DAVIS LAW FIRM, PLLC _____/s/________________________ _ Neal Davis Texas Bar No.: 24001117 Harris County SPN: 01732446 1545 Heights Blvd.

Houston, Texas 77008 Tel: (713) 227-4444 Fax: (800) 760-7140 Email: Neal@NealDavisLaw.com Certificate of Service I certify that this Motion has been delivered to the Assistant District Attorney via e-filing. _____/s/_______________________ Neal Davis

3

CAUSE NO. XXXXXXXXX STATE OF TEXAS v.

XXXXXXXXXXXXX

| | | | |

IN THE ___________ DISTRICT COURT HARRIS COUNTY, TEXAS

ORDER ON DEFENDANT’S MOTION FOR A HEARING OUTSIDE THE JURY’S PRESENCE ON THE ADMISSIBILITY OF THE COMPLAINANT’S OUTCRY STATEMENT After considering Defendant’s Motion for a Hearing Outside the Jury’s Presence on the Admissibility of the Complainant’s Outcry Statement, it is ordered GRANTED / DENIED.

______________________________ JUDGE PRESIDING

4

CAUSE NO. XXXXXXXXX STATE OF TEXAS

§ § § § §

v.

XXXXXXXXXXXXX

IN THE XXX DISTRICT COURT OF HARRIS COUNTY, TEXAS

DEFENDANT’S MOTION IN LIMINE Defendant, through undersigned, and pursuant to the relevant provisions of the United States and Texas Constitutions, of the Texas Rules of Evidence, and of the Texas Code of Criminal Procedure, moves this Court to hold a hearing and order the prosecution and all of its witnesses not to directly or indirectly refer to certain matters in the venire’s or jury’s presence without first approaching the bench and obtaining a ruling on the admissibility outside of their presence.1 A. Arrests, crimes, wrongs, acts, and convictions 1.

Any arrests of the defendant other than in this cause number or of any defense witness until a hearing is held outside the jury’s presence under Texas Rules of Evidence articles IV and VI. ________ _________ ________ AGREED / GRANTED / DENIED 2.

Any criminal charges pending against the defendant other than in this cause number or against any defense witness until a hearing is held outside the jury’s presence under Texas Rules of Evidence articles IV and VI. ________ _________ ________ AGREED / GRANTED / DENIED 3.

Any crimes, wrongs, or acts that the defendant has allegedly committed other than in this cause number or that a defense witness allegedly committed until a hearing is held outside the jury’s presence under Texas Rules of Evidence articles IV and VI, and Texas Code of Criminal Procedure chapter 37. ________ _________ ________ AGREED / GRANTED / DENIED For the sake of brevity in the limine requests, “this case” means the offense charged as well as any prior crimes, bad acts, or uncharged misconduct that the prosecution has properly given notice of its intent to introduce against the defendant during guilt-innocence or sentencing.

1

1

4.

Any of the defendant’s or defense witness’s criminal convictions until a hearing is held outside the jury’s presence under Texas Rules of Evidence articles IV and VI. ________ _________ ________ AGREED / GRANTED / DENIED B. Witnesses 1.

Any expert testimony in this case until a hearing is held outside the jury’s presence under Texas Rules of Evidence article VII. ________ _________ ________ AGREED / GRANTED / DENIED 2.

Any scientific evidence, including but not limited to tests and their results, in this case until a hearing is held outside the jury’s presence under Texas Rules of Evidence article VII. ________ _________ ________ AGREED / GRANTED / DENIED 3.

Eliciting testimony about a witness’s truthfulness (e.g., a prosecution expert or lay witness’s opinion about whether the complainant was telling the truth, or the defendant was lying), since under Texas Rule of Evidence article VII the witness is not a lie detector machine and cannot under decide the ultimate issue for the jury of whether another witness is telling the truth. See, e.g., Schutz v. State, (Tex. Crim. App. 1997); Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993).2 “[E]xpert testimony that a particular witness is truthful is inadmissible under Rule 702.” Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993). For example, an expert may not offer a direct opinion on the truthfulness of a complainant’s allegations.

Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997). Moreover, an expert is not permitted to give an opinion that the complainant or class of persons to which the complainant belongs (such as child sexual assault victims) is truthful. Yount, 872 S.W.2d at 712 (testimony prohibited that only two to eight percent of child sex abuse allegations were false); cf. Schutz, 957 S.W.2d at 70 (testimony about children's ability to accurately perceive or remember is allowable, but not a particular child's tendency to do these things). This is because experts on child sexual abuse “are not human lie detectors. Nor are they clairvoyant.” Yount, 872 S.W.2d at 710. The Texas Court of Criminal Appeals found that “[v]irtually every jurisdiction which has addressed, in the context of a child sexual assault case, the admissibility of direct testimony as to the truthfulness of the child complainant, has held that such direct testimony is inadmissible.” Id. at 711 n. 8 (citations omitted). Although this issue generally arises in the context of expert witnesses, lay opinions must also be helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. See 2

2

________ _________ ________ AGREED / GRANTED / DENIED 4.

Calling the complainant a “victim” in this case or calling the alleged offense location a “crime scene,” since these are legal conclusions solely for the jury (e.g., if the jury acquits, the complainant or deceased is not a victim and there is no crime scene), violate the defendant’s presumption of innocence, comment on the weight of evidence, are argumentative, and inject the prosecutor’s personal belief about witness credibility (e.g., a crime was committed against a victim and the defendant is lying to suggest otherwise). See, e.g., Casey v. State, 2004 WL 2732240 (Tex. App.—Austin Dec. 2, 2004, no pet.) (not designated for publication) (reversing in part because the trial court commented on the weight of the evidence in jury instructions referring to the complainant as “the victim” of the alleged offense). ________ _________ ________ AGREED / GRANTED / DENIED 5.

Any witness’s invocation of a privilege (e.g., the constitutional and statutory right against self-incrimination or to an attorney). ________ _________ ________ AGREED / GRANTED / DENIED 6.

Any information or evidence that a warrant was involved until a hearing is held outside the jury’s presence under Texas Rules of Evidence articles IV and VIII and the constitutional TEX.R.EVID. 701. It follows, then, that a lay witness is not permitted to offer an opinion that another witness is truthful. Nonexpert testimony may be offered to support the credibility of a witness in the form of opinion or reputation, but “the evidence may refer only to character for truthfulness or untruthfulness.” TEX.R. EVID. 608(a)(1). A lay witness may not, under Rule 608, testify to the complainant's truthfulness in the particular allegations. See Schutz, 957 S.W.2d at 72. Further, evidence of truthful character, in the form of opinion or character evidence (referring only to the complainant in general, not her allegations specifically) may only be offered “after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.” TEX.R. EVID. 608(a)(2). Importantly, a defensive theory of fabrication (as opposed to recent fabrication) that generally denies the charges against a defendant is not the equivalent of an attack on the complainant’s general character for truthfulness so as to warrant the admission of character testimony. See, e.g, Fuller v. State, 2007 WL 1412062 (Tex. App.—Texarkana 2007, no pet.) (not designated for publication) (citing Stitt v. State, 102 S.W.3d 845 (Tex. App.— Texarkana 2003, pet. ref'd)) (reversing and remanding because defense counsel, in an indecency case, was ineffective in allowing the prosecution to call character witnesses to testify about the complainant’s truthfulness when the defendant, in merely denying the allegations and calling witnesses to contradict the complainant’s claims, did not open the door to this character testimony).

3

right to confrontation. ________ _________ ________ AGREED / GRANTED / DENIED 7.

That the State will call any “outcry witnesses,” or refer to the substance of any outcries, during its case until the Court has had a hearing on whether such proposed witnesses are in compliance with Art. 38.072 and the Court has exercised in Gatekeeping function required under Art. 38.072. ________ _________ ________ AGREED / GRANTED / DENIED 8.

Referring to any of the complainant’s statements that would otherwise qualify as hearsay, such as statements to non-outcry witnesses or in any forensic interviews. ________ _________ ________ AGREED / GRANTED / DENIED C. The defendant’s rights 1.

The defendant has exercised the right against self-incrimination or any other privilege, since this is logically and legally irrelevant under Texas Rules of Evidence 401 through 403 and improperly comments on the defendant’s constitutional right against-self incrimination and to counsel. ________ _________ ________ AGREED / GRANTED / DENIED 2.

The defendant’s post-arrest or post-charge silence, such as not speaking about the alleged offense to anyone, since this is logically and legally irrelevant under Texas Rules of Evidence 401 through 403 and improperly comments on the defendant’s constitutional right against-self incrimination and to counsel. ________ _________ ________ AGREED / GRANTED / DENIED 3.

The defendant has exercised the right to counsel in this case, has met with defense counsel regarding the case, or has spoken with defense counsel about the case, since this is logically and legally irrelevant under Texas Rules of Evidence 401 through 403, violates Texas Rule of Evidence 503, Texas Code of Criminal Procedure article 38.38, and improperly comments on the defendant’s constitutional right to counsel. ________ _________ ________ AGREED / GRANTED / DENIED

4

4.

The defendant has exercised the right to refuse a search or seizure.

________ _________ ________ AGREED / GRANTED / DENIED 5.

If disputed, the fact that a search, seizure, or confession occurred, or their fruits, until a hearing is held outside the jury’s presence under Texas Rules of Evidence article I, the relevant statutory provisions of the Texas Code of Criminal Procedure, and the relevant constitutional provisions. See, e.g., Jackson v. Denno, 378 U.S. 368, 380 (1964) (holding that when a confession is challenged, the suppression hearing must be held outside the jury’s presence); Ross v. State, 678 S.W.2d 491, 493 (Tex. Crim. App. 1984) (holding that when a search or seizure is challenged, the suppression hearing must be held outside the presence of the jury). ________ _________ ________ AGREED / GRANTED / DENIED 6.

The defendant has consulted with experts or any reason consulting experts were never called to testify, since such evidence is logically and legally irrelevant under Texas Rules of Evidence 401 through 403 and violates the attorney-client privilege under Texas Rule of Evidence 503, the work-product privilege, and the defendant’s federal and State constitutional rights to the assistance of counsel and due process. ________ _________ ________ AGREED / GRANTED / DENIED D.

Sentencing

1.

So-called victim impact evidence regarding an individual not named in the indictment, since this is logically and legally irrelevant under Texas Rules of Evidence 401 through 403.

See, e.g., Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997) (holding “danger of unfair prejudice to a defendant inherent in the introduction of ‘victim impact’ evidence with respect to a [complainant] not named in the indictment on which he is being tried is unacceptably high. The admission of such evidence would open the door to admission of victim impact evidence arising from any extraneous offense committed by a defendant. Extraneous victim impact evidence, if anything, is more prejudicial than the non-extraneous victim impact evidence found by this Court to be inadmissible in Smith, supra. We hold that such evidence is irrelevant . . . ”) ________ _________ ________ AGREED / GRANTED / DENIED 2.

So-called victim impact witnesses offering their personal opinion about the appropriate sentence (e.g., some term of penitentiary time), since these are “not a reflection of how their [the alleged victim or others’] lives have been impacted” by the alleged offense and are therefore logically and legally irrelevant under Texas Rules of Evidence 401 through 403. See, e.g., Simpson v. State, 119 S.W.3d 262 (Tex. Crim. App. 2003); Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995); Ewes v. State, 841 S.W.2d 16 (Tex. App.—Dallas 1992, pet. ref'd).

5

________ _________ ________ AGREED / GRANTED / DENIED Defendant therefore moves this court to hold a hearing and order the prosecution and all of its witnesses not to directly or indirectly refer to certain objectionable matters in the venireâ&#x20AC;&#x2122;s or juryâ&#x20AC;&#x2122;s presence without first approaching the bench and obtaining a ruling on the admissibility outside of their presence.

Respectfully submitted,

________________________ * * *, Texas * (***) ***-**** * TBN# Certificate of Service I certify that a copy of this Motion has been delivered to the Assistant District Attorney via e-filing. _____/s/_______________________ *

6

CAUSE NO. XXXXXXXXX STATE OF TEXAS v.

XXXXXXXXXXXXX

§ § § § §

IN THE XXX DISTRICT COURT OF XXXX COUNTY, TEXAS

MOTION IN LIMINE REGARDING STATUTORY DEFINITION OF CONSENT TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES, ***, the Defendant in the above styled and numbered cause, by and through his attorney of record, ***, and requests the Court to instruct the Criminal District Attorney, his staff, and all of the State's witnesses in the cause not to mention, discuss, allude to, interrogate concerning, or in any way suggest to the jury or the venire panel, either directly or indirectly, any of the following matters until such time as both (1) a hearing has been held outside the presence of the jury or venire panel as to the admissibility of such matters, and (2) the Court has determined that the matter in question is proper for the jury or venire panel.

I. Any suggestion to the jury, whether through void dire, testimony, or argument, that assentin-fact, in the context of sexual assault, may be legally nullified by any means not specifically identified in the eleven statutory definitions of “without consent,” enumerated in section 22.011(b) of the Texas Penal Code, including, but not limited to, the following: A. Any statement, implication, evidence, or argument that the existence of a quid pro quo agreement, which may be categorized as “blackmail,” “extortion,” “exploitation,” or other similarly derogative phrase, legally invalidates consent or otherwise serves as a means by which to commit an element of the charged offense of sexual assault.

In support of such motion, the Defendant would show: 1. Lack of consent is an essential element of the charged offense, which the State bears the burden of proving beyond a reasonable doubt.

2. The only appropriate statutory definitions of “without consent,” are enumerated in Texas Penal Code 22.011(b).1 A specific or local statutory definition will control over a more general one if there is a conflict.2 The eleven statutory definitions of “without 1 Tex. Penal Code 22.021(c)(“An aggravated sexual assault under this section is without the consent of the other person if the aggravated sexual assault occurs under the same circumstances listed in Section 22.011(b)”).

2 Tex. Gov’t Code Ann. § 311.026(a), (b) (Vernon 2009). See also Johnson v. State, 227 S.W.3d 180, 183 (Tex. App.—Houston [1st] 2007) (The general definition of consent found in Section 1.07(a) (11) has been rejected for sexual assault offenses because it is “broader and less specific . . . and could thus allow for conviction upon a wider range of facts.”)

consent” found in section 22.011(b) are “exclusive.”3 3. None of the eleven statutory definitions of the element, “without consent,” encompass non-violent quid pro quo agreements such as blackmail, extortion, or exploitation. The statutory definitions found in section 22.011(b) contemplate situations where there is assent-in-fact but consent is legally nullified. Three of the statutory definitions deal with the use or threat of physical force or violence.4 Four others contemplate situations where the victim is mentally impaired by disease or substance, and unaware of the assault or incapable of resisting it.5 The final four enumerated statutory definitions anticipate an abuse of authority or similar disparity in relationship.6 The Defendant would further show that such evidence, if presented before the jury or venire panel without first being tested for admissibility, could irreversibly taint the jury to the extent that: 1. Any alleged probative value would be substantially outweighed by the danger of unfair prejudice, 2. Such information tends to suggest decision on an improper basis, 3. Such information is likely to confuse or distract the jury from the main issues, 4. No instruction could cure its improper admission, and 5. It would necessitate a mistrial.

To allow such testimony without prior permission of the Court and objections from the Defendant would prevent the Defendant from obtaining a fair trial in violation of the Fifth and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 19 of the Texas Constitution, and Articles 1.04 and 1.05 of the Texas Code of Criminal Procedure.

WHEREFORE, PREMISES CONSIDERED, Defendant prays that the District Attorney, any member of his staff, and any witnesses appearing on behalf of the State be instructed not to refer to or discuss such matters until first approaching the bench and making its intentions known to the Court. In such event, the Defendant further prays that the jury be retired, that the evidence and objections be heard outside the presence of the jury, and that the Court rule on the admissibility thus preventing prejudicial error which no instruction can cure.

Respectfully submitted, ________________________ * 3

Elliott v. State, 858 S.W.2d 478, 480 Fn. 1 (Tex.Crim.App. 1993).

Tex. Penal Code 22.011(b) (1), (2), (7).

5 Tex. Penal Code 22.011(b) (3-6).

6 Tex. Penal Code 22.011(b) (8-11).

4

* *, Texas * (***) ***-**** * TBN# Certificate of Service I certify that a copy of this Motion has been delivered to the Assistant District Attorney via e-filing. __________/s/____________ *

CAUSE NO. XXXXXXXXX STATE OF TEXAS v.

XXXXXXXXXXXXX

ยง ยง ยง ยง ยง

IN THE XXX DISTRICT COURT OF XXXX COUNTY, TEXAS

ORDER CAME ON FOR CONSIDERATION Defendant's Motion in Limine. The Court, after considering the Motion finds that the same should be: (GRANTED) (DENIED) SIGNED AND ENTERED this the _____ day of _______________________, 20___.

_____________________________ JUDGE PRESIDING

CAUSE NO. XXXXXXXXX STATE OF TEXAS v.

XXXXXXXXXXXXX

§ § § § §

IN THE XXX DISTRICT COURT OF XXXX COUNTY, TEXAS

MOTION IN LIMINE REGARDING BLACKMAIL TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES, ***, the Defendant in the above styled and numbered cause, by and through his attorney of record, ***, and requests the Court to instruct the District Attorney, his staff, and all of the State's witnesses in the cause not to mention, discuss, allude to, interrogate concerning, or in any way suggest to the jury or the venire panel, either directly or indirectly, any of the following matters until such time as both (1) a hearing has been held outside the presence of the jury or venire panel as to the admissibility of such matters, and (2) the Court has determined that the matter in question is proper for the jury or venire panel.

I. Any use or mention of the following terms in the presence of the jury, whether through elicited testimony or argument, to categorize the existence of a quid pro quo arrangement or tradeoff agreement between the defendant and the complainant: A. B. C. D.

“blackmail,” “extortion,” “exploitation,” or other similarly derogative phrase

In support of such motion, the Defendant would show: 1. Blackmail, as it exists in this case, is not a criminal offense in Texas.

2. The Texas Penal code criminalizes blackmail and/or extortion only to the extent that a threat is made to obtain property or pecuniary value.1 The Defendant would further show that such language, if presented before the jury or venire panel without first being tested for admissibility, could irreversibly taint the jury to the extent that: 1. Such derogatory labels would be prejudicial and likely to create bias against the defendant, 1

Tex. Penal Code Ann §§ 31.01; 31.03; See also Paul H. Robinson, Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory, 89 Tex. L. Rev. 291, 308-309 fn.75 (2010).

2. Such information tends to suggest decision on an improper basis, 3. Such information is likely to confuse or distract the jury from the main issues, 4. No instruction could cure its improper admission, and 5. It would necessitate a mistrial.

To allow such testimony without prior permission of the Court and objections from the Defendant would prevent the Defendant from obtaining a fair trial in violation of the Fifth and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 19 of the Texas Constitution, and Articles 1.04 and 1.05 of the Texas Code of Criminal Procedure.

WHEREFORE, PREMISES CONSIDERED, Defendant prays that the District Attorney, any member of his staff, and any witnesses appearing on behalf of the State be instructed not to refer to or utilize such labels until first approaching the bench and making its intentions known to the Court. In such event, the Defendant further prays that the jury be retired, that the evidence and objections be heard outside the presence of the jury, and that the Court rule on the admissibility thus preventing prejudicial error which no instruction can cure.

Respectfully submitted, ________________________ * * *, Texas * (***) ***-**** * TBN# Certificate of Service I certify that a copy of this Motion has been delivered to the Assistant District Attorney via e-filing. __________/s/____________ *

CAUSE NO. XXXXXXXXX STATE OF TEXAS v.

XXXXXXXXXXXXX

ยง ยง ยง ยง ยง

IN THE XXX DISTRICT COURT OF XXXX COUNTY, TEXAS

ORDER CAME ON FOR CONSIDERATION Defendant's Motion in Limine Regarding Blackmail.

The Court, after considering the Motion finds that the same should be: (GRANTED) (DENIED) SIGNED AND ENTERED this the _____ day of _______________________, 20___.

_____________________________ JUDGE PRESIDING

CAUSE NO. XXXXXXXXX STATE OF TEXAS v.

XXXXXXXXXXXXX

§ § § § §

IN THE XXX DISTRICT COURT OF XXXX COUNTY, TEXAS

DEFENDANT’S MOTION TO PREVENT CLOSURE OF COURTROOM DURING PRESENTATIONS OF ALL EVIDENCE TO THE HONORABLE JUDGE OF SAID COURT: Now comes the Defendant in the above entitled and numbered cause, and makes this DEFENDANT'S MOTION TO PREVENT CLOSURE OF COURTROOM DURING PRESENTATIONS OF ALL EVIDENCE, and for good cause shows the following: I. The Sixth Amendment of the United States Constitution guarantees the accused the fundamental right to a public trial in all criminal prosecutions. U.S. Const. amend. VI. Furthermore, the Supreme Court of the United States has held that the right to a public trial was created for the benefit of the accused; thus, the right is a personal one and any violation of a defendant’s Sixth Amendment right to a public trial is a structural error that does not require a showing of harm. Presley v. Georgia., 558 U.S. 209, 130 S. Ct. 721, 723, 175 L. Ed. 2d 675 (2010) (“The Sixth Amendment right, as the quoted language makes explicit, is the right of the accused.”); see Waller v. Georgia, 467 U.S. 39, 46, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984). Johnson v. United States, 520 U.S. 461, 468-69, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997).

Closing a trial to the public is an act with constitutional repercussions. The right to a public trial is one of the few fundamental constitutional systemic requirements identified by the Supreme Court of the United States, and if the right is improperly denied, the error is categorically exempt from harm analysis. Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct. 1246, 113 L. Ed. 2d 302

(1991); Salinas v. State, 980 S.W.2d 219, 219 (Tex. Crim. App. 1998).

II. In Waller v. Georgia, the United States Supreme Court adopted the following test for determining when the defendant's right to a public trial is outweighed by other considerations: (1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, (2) the closure must be no broader than necessary to protect that interest, (3) the trial court must consider reasonable alternatives to closing the proceeding, and (4) it must make findings adequate to support the closure.

The findings must be on the record and specific. See Waller, 467 U.S. at 48, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (requiring that a trial court make findings of fact sufficient to support the closure).

The State has no overriding interest that is likely to be prejudiced by closing the courtroom during any presentation of evidence in this case. There are no minor children involved nor is there any confidential informant the State seeks to protect.

There is no interest advanced by the State that this Court needs to protect that is greater than the defendantâ&#x20AC;&#x2122;s fundamental constitutional right under the Sixth Amendment to a public trial.

There is no reasonable alternative to closing the proceeding in this case. The defendant has come to this Court to exercise his fundamental rights to trial by jury and confront witnesses. In doing so, the defendantâ&#x20AC;&#x2122;s indictment is public, the evidence against him is public and the witnesses who testify for and against him do so in public. The defendant shall not have his constitutional rights carved out for an alternative for which there is no need.

III. The charge the defendant stands accused of is aggravated sexual assault. In Mosby v. State,

the Court closed the courtroom for a case involving sexual assault; the discretion included the right to partially close the courtroom by excluding certain nonessential persons because of the extremely sensitive nature of the evidence being developed and the youthful age of the witness. Mosby v.

State, 703 S.W.2d 714 (Tex. App.—Corpus Christi 1985) (emphasis added).

The Supreme Court of the United States held it may be proper to close a courtroom when a minor child testifies, yet still balancing this against a defendant’s Sixth Amendment right to a public trial: “the sensibilities of a youthful prosecution witness, for example, might justify similar exclusion in a criminal trial for rape, so long as the defendant's Sixth Amendment right to a public trial were not impaired. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 600, 100 S. Ct. 2814, 2840, 65 L. Ed. 2d 973 (1980) (emphasis added).

The alleged victim in this case is not a minor child. The State has no overriding interest that is likely to be prejudiced by this Court upholding the defendant’s Sixth Amendment right to a public trial.

IV. WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Court grant DEFENDANT'S MOTION TO PREVENT CLOSURE OF COURTROOM DURING PRESENTATIONS OF ALL EVIDENCE.

Respectfully submitted, ________________________ * * *, Texas * (***) ***-**** * TBN#

Certificate of Service I certify that a copy of this Motion has been delivered to the Assistant District Attorney via e-filing. __________/s/____________ *

CAUSE NO. ______________ THE STATE OF TEXAS VS. XXXXXXXXXXXX

§ § § § §

IN THE ______ JUDICIAL DISTRICT COURT OF ___________ COUNTY, TEXAS

DEFENDANT’S MOTION FOR COMMUNITY SUPERVISION TO THE HONORABLE XXXXXXX: NOW COMES, XXXXXXXX, Defendant, prior to the beginning of the trial in the above entitled and numbered cause, and moves in writing that the JURY/COURT grant the defendant community supervision in said cause, and in support of this motion the Defendant would should unto the Court as follows: The Defendant has never been convicted of a felony in this or any other state.

WHEREFORE, the Defendant prays that the JURY/COURT suspend any sentence and grant community supervision upon the punishment of this cause, with reasonable conditions regarding the same.

Respectfully Submitted Scheiner Law Group, P.C. By:_____________________________ GRANT M. SCHEINER 2211 Norfolk St., Suite 735 Houston, Texas 77098-4062 Tel: 713-783-8998 Fax: 1-866-798-9854 TBN: 00784913 Email: grant@scheinerlaw.com ATTORNEY FOR DEFENDANT 1

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Defendantâ&#x20AC;&#x2122;s Motion for Community Supervision was delivered to the Attorney for the State of Texas, or his/her office, via HAND DELIVERY on this the

day of

, 20__.

____________________________ GRANT M. SCHEINER

2

AFFIDAVIT IN SUPPORT OF MOTION FOR COMMUNITY SUPERVISION STATE OF TEXAS COUNTY ______________

§ § §

BEFORE ME, the undersigned authority, on this day personally appeared the Defendant XXXXXXXXXXX, who being by me duly sworn did depose and state upon oath as follows: “My name is XXXXXXXXXXX. I am the Defendant in the above entitled and numbered cause.

I have read the attached application/motion for community supervision and hereby state

that said application is true and correct and that I understand and acknowledge that any untrue statement in said application may be grounds for denial or revocation of any community supervision that may be granted in said cause.” ____________________________ Defendant

SUBSCRIBED AND SWORN TO before me this the ____ day of __________________, 20___.

(SEAL) ______________________________ Notary Public, State of Texas ______________________________ My Commission Expires _______________________________ Notary Name, Printed or Typed

3

CAUSE NO. ____________ THE STATE OF TEXAS

§ § § § §

VS. XXXXXXXXX

IN THE ______ JUDICIAL DISTRICT COURT OF _____________ COUNTY, TEXAS

DEFENDANT'S SENTENCING ELECTION TO THE HONORABLE XXXXXXXXXXX: NOW COMES, XXXXXXXXX, Defendant, and in accordance with article 37.07, § 2(b) of the Texas Code of Criminal Procedure, elects that the sentencing, if any, be assessed by the JUDGE/JURY. Respectfully submitted, Scheiner Law Group, P.C. By:_____________________________ GRANT M. SCHEINER 2211 Norfolk St., Suite 735 Houston, Texas 77098-4062 Tel: 713-783-8998 Fax: 1-866-798-9854 TBN: 00784913 Email: grant@scheinerlaw.com ATTORNEY FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Defendant’s Sentencing Election was delivered to the Attorney for the State of Texas, or his/her office, via HAND DELIVERY on this the

day of

, 20

.

______________________________ GRANT M. SCHEINER

1

CAUSE NO. XXXXXXXXX THE STATE OF TEXAS v.

XXXXXXXXXX

§ § § § §

IN THE ***** DISTRICT COURT OF HARRIS COUNTY, TEXAS

DEFENDANT’S MOTION TO REQUIRE THE PROSECUTOR TO ELECT Defendant, through *, and pursuant to the Fifth, Sixth, and Fourteenth Amendment of the United States Constitution and Article I, Section 10 & 19 of the Texas Constitution, requests this Court to require the State to elect the act upon which the State will rely in seeking the conviction of the defendant, showing specifically: 1.

The defendant stands charged with indecency with a child “on or about” the

XXXXX day of XXXXXX, 20XX. 2.

The prosecutor may try to offer evidence of other incidents of the same conduct

on days other than the XXXXX day of XXXXXX, 20XX. 3.

In Texas, the prosecutor may allege in the indictment than an offense occurred

“on or about” a particular date but may prove that the conduct charged occurred any time on or before the date of presentment of the indictment within the statute of limitations. See, e.g., Ex parte Goodbread, 967 S.W.2d 859, 860 (Tex. Crim. App. 1998). Each act of sexual assault or sexual conduct is a separate offense. Id. The prosecutor may offer into evidence multiple incidents of the conduct described in the indictment in order to prove the allegation in the indictment. Rodriguez v. State, 104 S.W.3d 87 (Tex. Crim. App. 2003).

4.

The defendant requests that before trial the prosecutor be required to elect in

writing at least 14 days before trial, which act of indecency and the specific date of such act, that the prosecution will rely upon in proving the allegations in its indictment.

5.

Alternatively, the defendant moves the Court to require the prosecutor, at the

close of its case in chief, to elect the particular act or conduct and the particular date thereof upon which the prosecutor relies upon for conviction.

6.

In any event, the defendant moves the Court to charge the jury that they must find

beyond a reasonable doubt that the particular offense elected occurred on a particular date.

7.

The prosecutor should be required to elect prior to trial for several reasons:

(1) Failure to distinguish which is the primary and which is the extraneous offense does not give the defendant notice of the extraneous offenses and bad acts the prosecutor is going to offer into evidence, (2) Extraneous offenses should not be admitted into evidence until the establishment of the primary offense because they are not relevant to an issue in the case unless the offense alleged in the indictment is proved, (3) A defendant is entitled to a limiting instruction that is the purpose for the admission of the extraneous matter, which should be given to the jury at the time of the admission of the evidence. Jones vs. State, 944 S.W.2d 642, 653 (Tex. Crim. App. 1997); Montgomery vs. State, 810 S.W.2d 372 (Tex. Crim. App. 1990), and (4) Unless the prosecutor is required to elect which event is the one alleged in the indictment, it can not be determined whether the jury reached a unanimous verdict on a particular act, or whether some jurors believed one act occurred and others believed another act occurred. Francis vs. State, 36 S.W.3d 121, 124 (Tex. Crim.

App. 2000).

8.

If the prosecutor is not required to elect which act that it relies upon and the date

of that act, then the defendant is not given adequate notice of the charge, is not protected from being held twice in jeopardy for the same offense, and is deprived of his right to a unanimous verdict in derogation of his rights under the Fifth, Sixth and Fourteenth Amendments, United States Constitution, Article 1, Sections 10 and 19, Texas Constitution and Articles 1.04 and 1.05 of the Texas Code of Criminal Procedure. Yzaguirre vs. State, 957 S.W.2d 38, 40 (Tex. Crim.

App. 1997).

The defendant therefore requests this Court to order the prosecutor to elect the particular act or conduct, if any, that it will rely upon in attempting to prove the allegations of the indictment, and that date should be charged to the jury.

Respectfully submitted,

________________________ * * *, Texas * (***) ***-**** * TBN#

Certificate of Service I certify that a copy of this Motion has been delivered to the Assistant District Attorney via e-filing. _____/s/_______________________ *

Texas Criminal Defense Lawyers Association

Defending Those Accused of Sexual Assault Allegations December 3-4, 2020

Topic: Jury Selection in Sex Assault Cases Speaker:

Jeff Kearney Kearney Law Firm 3100 West 7th Street, Suite 420 (817) 336-5600 Phone (817) 336-5610 Fax egm@egmlaw.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

JURY SELECTION IN SEX ASSAULT CASES

Presented by Jeff Kearney Kearney Law Firm 3100 West 7th Street, Suite 420 (817) 336-5600 (817) 336-5610 (fax)

TCDLA Slaying Goliath: Defending Those Accused of Sexual Assault December 3-4, 2020 Houston, Texas

Sincere Appreciate is Given to Robert B. Hirschhorn of Cathy E. Bennett & Associates, Inc. and Stacy M. Schreiber Who Wrote Portions of this Paper

I. PRE-TRIAL STRATEGY A.

THINK ABOUT VOIR DIRE EARLY AND OFTEN

The initial interview is the one time during the case when the attorney will be in the same shoes as the potential jurors. An attorney’s perception of the case and the issues may be very similar to what the jurors may be thinking and feeling. As the client is telling you about the case for the first time, ask yourself these questions: 1.

What are the jury issues in this case?

2.

What questions do I have about the facts of this case?

3.

What are the facts, issues or problems in this case that cast the client in an unfavorable light?

When jurors first hear about the case in voir dire, they will conduct a similar analysis and evaluation.

As the case unfolds during discovery, subsequent meetings with the client or witnesses and hearings on pre-trial motions, jury issues are constantly being developed. Start framing these issues in the form of voir dire questions. Concentrate on questions that help your case, as well as those questions that must be asked to defuse potential problems. For example in a case involving a drive-by shooting, assume the Defendant has a previous association with a gang. From the Prosecution’s perspective, this will be viewed as a helpful fact. From a Defense perspective, this is a potentially serious problem that must be discussed and diffused during voir dire.

By using this develop-voir-dire-as-the-case-unfolds approach, the attorney is frequently identifying issues, writing a few voir dire questions at a time, and putting them in the voir dire file or trial notebook.

When all pre-trial motions are resolved and counsel is preparing for trial, the attorney is in a position to go through the voir dire questions he/she has accumulated and can begin the process of prioritizing the issues that need to be covered and the voir dire questions that will accomplish that goal.

B.

MOTION TO SUBMIT A JURY QUESTIONNAIRE

The number of judges who will allow a juror questionnaire is increasing. If the Judges in your jurisdiction do not use questionnaires, a Motion for a Juror Questionnaire (see Appendix A of this article) should be filed in an effort to persuade the court to try something new. There are three keys to persuading a judge to use a questionnaire: 1.

Questionnaires are granted in the vast majority of cases where the parties jointly move and agree upon the questionnaire’s content;

2.

All logistical problems associated with a questionnaire must be removed from the overworked and under-paid court staff. That is, the attorney must be prepared to take -2-

responsibility for the preparation, administration, copying, and dissemination of the completed questionnaires. This means bringing a sufficient number of questionnaires, black in pens1 and clip boards; and, 3.

Keep the questionnaire as short as possible, to the point and fair to both sides. In a typical case, the questionnaire should not exceed three to five pages. In more complex cases, the goal should be no more than seven to ten pages. Rarely should a questionnaire exceed ten pages. However, in a case which there has been extensive pre-trial publicity, complex and multi-faceted issues or in a capital murder case, it may be necessary that a more thorough questionnaire be prepared and submitted to the court. A sample questionnaire is attached to this article as Appendix B.

If the Judge has used questionnaires in other cases, obtain copies of them to get a sense of the type and length of questionnaire the Judge has found acceptable. Furthermore, just because a judge has never used a questionnaire in the past, do not assume that the Judge will not allow one to be used. For a more thorough discussion on questionnaires, we call the reader’s attention to Bennett’s Guide to Jury Selection and Trial Dynamics in Civil and Criminal Litigation, West Publishing Company 1993 (Updated 1995.)

C.

REQUEST THAT CHALLENGE FOR CAUSE QUESTIONING BE TAKEN UP AT THE CONCLUSION OF VOIR DIRE

Challenges for cause can consume a great deal of time in any voir dire. If an attorney has one or two jurors who give answers that suggest further questioning is necessary to determine if a challenge for cause is appropriate, the questioning process can exhaust precious time. Therefore, we encourage lawyers to ask the Judge if further challenge for cause questioning can be taken up at the end of the entire voir dire. We are finding that many judges throughout the State of Texas employ this method.

1.

It allows for the maximum use of the attorney’s time during voir dire and does not interrupt his/her flow;

2.

If the attorney has a talkative juror who is the subject to a challenge for cause on one issue and the juror wants to assert his/her view on another issue, the attorney can be polite and not offend the juror by saying, “[Juror’s Name], I know I am cutting you off, but we will be talking with the Judge a little later.”; and

3.

By doing the challenges for cause at the end, the attorney knows, and more importantly, the Judge knows, exactly how many jurors are being challenged, how many unchallenged jurors are left, and which of the challenged jurors are most likely to be excused for cause.

There are many inherent problems with the challenge-for-cause-as-you-go approach. For example, fully developing the challenges for cause as they arise is not time efficient, other jurors may get

1

Black ink increases the quality and readability of the questionnaires.

-3-

bored, qualified jurors may learn how to disqualify themselves, and some cases get reversed because the Judge doesn’t grant an early challenge for cause for fear there will not be enough jurors left. Therefore, counsel would be well-served to ask the Court to allow the additional challenge for cause questioning to occur at the end of voir dire.

II. TRIAL STRATEGY A.

LEARN, DON’T TEACH

It is human nature for an attorney who has spent months preparing a case to want to convince everyone in the courtroom that his or her position is the correct one, and that the client is deserving of a favorable verdict. Potential jurors come to the courtroom with a mind set that has developed over the span of many years, and seldom (if ever) will an attorney change a juror’s mind. In fact, it is rare to change a person’s mind and futile to try to change a person’s heart. We suggest that valuable time not be wasted trying to convince anyone to change. Attempting to convince jurors to change will only alienate them, shut down any possible dialogue, and encourage arguments, one-upmanship or lying. It is the wise and skillful attorney who listens to the jurors and learns from them.

The attorney who asks jurors questions with an I-want-to-learn-from-you attitude will find that jurors are more willing to share their feelings or opinions when there is no threat of a challenge or criticism.

These jurors will provide the information with which counsel can make meaningful challenges for cause and intelligently exercise peremptory strikes, while encouraging the other panel members to share their opinions or feelings because it is safe to do so.

B.

NEVER BE JUDGMENTAL OF THE JURORS

In any meaningful relationship, it is important to trust and not be judgmental of the other person.

This is especially true when it comes to jury selection. Too many times lawyers will alienate potential jurors by saying things like, “Do you understand the law says...” or, “Are you telling me that you cannot follow the law?”. When an attorney makes statements like these, the potential juror instinctively feels defensive or put on the spot. Even more damaging is the fact that the other potential jurors will feel empathy for the juror and animus towards the attorney. A better approach and one that will foster open communication is when the attorney has the courage to commend a juror who has given a painfully honest, yet negative answer. In our view, there is no such thing as a bad answer. The reason for this is because bad answers will open the door to challenges for cause or peremptory strikes. For example, imaging a situation where a juror has said that a person on trial should testify. Instead of responding with, “Do you understand that ever citizen has the right to not testify, and that the State bears the burden of proving a defendant guilty?”, say to the juror: “Miss Smith, I appreciate your honest and candid answer. The beauty of our system is that everyone is entitled to their own opinion. You have had the courage to express yours.

Is it okay with you if a little bit later we visit (some attorneys would feel more comfortable saying talk) with the Judge about this?”

-4-

This non-judgmental approach will be appreciated by the questioned juror and will create a setting that will encourage the other jurors to be honest with the attorney as well.

C.

CONCENTRATE ON THE FIRST THIRTY-TWO JURORS

With voir dire time strictly limited, it is important not to use valuable time talking to jurors who will never sit on the panel. Limit questions to the first thirty-two jurors.2 If some of the first thirty-two jurors will be subject to a challenge for cause, talk to a sufficient number of jurors past juror number thirty-two. For example, if you feel that four jurors may be excused for hardship or subject to a challenge for cause as a result of the prosecutorâ&#x20AC;&#x2122;s voir dire or answers contained in the jury questionnaire, then talk to jurors through number thirty-six. The exception to this rule is if there is an expert who can educate the panel on a very important point and whose number is beyond thirty-two. Otherwise, there is no benefit talking with jurors who will not serve, and valuable voir dire time that could be used getting to know potential jurors will be wasted.

D.

ORDERING TOPICS

Carefully consider the order in which topics are to be presented during voir dire. We encourage attorneys to plan the order of their voir dire to be consistent with the primacy/recency theory: jurors will remember the first and last thing they are told. By following this approach, the attorney is emphasizing the strongest aspects fo the case first and last, and diffusing issues and concerns in the middle.

We would recommend that the attorney divide the voir dire as follows: 1.

2.

3.

4.

5.

6.

Introduction Overview of the Case Strong Topic Areas of Concern Strongest Topic(s) Conclusion

Following this format and employing the techniques contained in this article (looping, closure question, etc.), an attorney can generate a reasonable amount of information on the jurors.

E.

STARTING YOUR VOIR DIRE

We call the very first part of the voir dire process the Introductory Phase. The purpose of the Introductory Phase of voir dire is to set the tone and mood for the trial. Property setting the tone for a case is critical if an attorney wants to conduct an effective voir dire. Remember our fundamental rule of voir dire; 2

The number of thirty-two was determined under Texas law as follows: a) twelve person jury; b) the Prosecution is entitled to ten peremptory strikes; and, c) the Defendant is entitled to ten peremptory strikes. If the numbers are adjusted (i.e., misdemeanor, capital murder, multiple defendants, additional peremptory strikes granted, alternates used or probable hardship or challenges for cause are developed during the Prosecutorâ&#x20AC;&#x2122;s voir dire), one should adjust the number of jurors whom the attorney questions.

-5-

LEARN, DON’T TEACH. By allowing the prospective jurors to verbalize their opinions, attitudes and feelings, the other jurors are more likely to give candid answers and the attorney will be able to intelligently exercise challenges for cause and peremptory strikes. The key is getting the jurors to open up, and that is accomplished by properly setting the tone.

Let’s examine the way many lawyers start their voir dire. It often begins something like this: “Good morning ladies and gentlemen. My name is Robert Smith, and I am the attorney who represents the Defendant in this case. This is the voir dire phase of the trial. The words, voir dire, are French and mean, to speak the truth. During this process, I will be asking you questions so we can find twelve fair and impartial jurors.”

This is a typical introduction. There words, or words very similar to them, can be heard every Monday morning in courtrooms throughout the state. The only effective portion of this typical introduction is the first sentence, “Good morning ladies and gentlemen.” The rest is wholly ineffective and counter-productive.

Let’s analyze the problems: 1.

“My name is Robert Smith, and I am the attorney who represents the Defendant in this case.” This entire sentence is flawed. The Judge just introduced Mr. Smith, the jurors know he is an attorney and the client has been dehumanized by being referred to as an object “... the Defendant.” Right off the bat, many jurors feel the lawyer is wasting time or talking in a condescending manner. Why would a lawyer want the jurors to remember his name, yet not even say his client’s name? Instead, the first sentence out of a lawyer’s mouth should grip the jury with the importance of the case.

2.

“This is the voir dire phase of the trial.” The concept is correct, but the delivery is not effective. The jurors know, either by prior jury experience, television or talking with other jurors in the jury assembly room, that the first part of any trial is jury selection. Lawyers must resist the temptation to begin jury selection with words or phrases with which jurors are unfamiliar (i.e., cause of action, voir dire, etc.)

3.

“The words voir dire, are French and mean, to speak the truth.” Who cares? Have you ever been at a cocktail party and been asked, “I’ve been wondering what do the words voir dire mean?” No, instead people at cocktail parties want to know, “How can you represent someone who is guilty?” “Why do defendants have more rights than victims?”

“How in the world could a jury acquit O.J. Simpson?” These are more substantive, probing and problematic areas that require our attention. Therefore, resist the teaching mode (“... voir dire means ...”), and focus on identifying the critical areas of inquiry and formulating open-ended questions that will probe the juror’s opinion, attitudes and feelings about the central issues.

4.

“During this process I will be asking you questions so we can find twelve fair and impartial jurors.” In our opinion, this is the single most damaging and destructive sentence of the entire introduction because it will condition jurors to give responses that -6-

are perceived as fair and impartial. Lawyer Smith is sending the jury a mixed message.

On one hand, he has told the jury to speak the truth and, on the other hand, he is saying the only good juror is the one who appears to be fair and impartial. Such a statement provokes the jurors to give responses that create the impression of fairness and impartiality, and are not necessary truthful. Therefore, in the typical voir dire the lawyer has conditioned the jurors to give appropriate, but not necessarily honest, responses to the questions asked. Our goal is to obtain honest, albeit at times painful, responses.

With these thoughts in mind, we encourage lawyers to set the tone in the following way: “Good morning ladies and gentlemen. I am proud to stand here with [Client’s Name] and have twelve of you decide this very important case. In this part of the trial, we3 need to find out your feelings, impressions or opinions about the issues in this case. I want you to know that there are no right or wrong answers. We will be honest with you, and we ask that you be as honest as you can with us.”

This introduction is substantively the same, but it sets a much more honest and open tone. There is a lot more a lawyer can say at this point.4 F.

OVERVIEW OF THE CASE

An attorney has the right to give a brief overview of the case to the jurors. In Powers v. Ohio, 499 U.S. 400, 114 L.Ed.2d 660, 111 S.Ct. 1364 (1991), the United States Supreme Court held, “...the voir dire phase of the trial is the juror’s first introduction to the substantive factual and legal issues in a case.” Id at p. 1371.

In many instances, the brief overview has often turned into the entire voir dire, with a few ineffective closed-ended voir dire questions thrown in during the process. The danger of the brief overview consuming the entire voir dire. Unfortunately, the typical voir dire is essentially a Pre-Opening Statement, is not persuasive, elicits little or no information upon which to base challenges for cause or peremptory strikes, and, in our opinion, is the primary reason many judges now impose time limits. During voir dire, an attorney must vigilantly resist the temptation to take charge and do all the talking. Remember our message: Listen, don’t teach; Learn, don’t lecture; Colloquy not soliloquy. Therefore, limit the overview to three to five minutes and then go directly into a questioning mode.

G.

THREE TO FIVE TOPICS

3

In the introduction, there is a constant reference to we. The we includes the lawyer(s), as well as the client. It is important to refer to we early and often. Hopefully, by the end of the case the we will encompass the lawyer, the client and the jury.

4

One point worth mentioning is that if there are any sensitive or potentially embarrassing issues which the jurors will be asked to discuss, the attorney may want to say, “Before I begin asking questions, I want to tell you that some of the questions are in areas we would consider to be private, sensitive or embarrassing. If you would feel more comfortable answering any question in private, please let us know and we’re sure Judge Goodperson will let us talk privately. If I were sitting where you are, I’d want to answer some of the questions privately.” This type of self-disclosure is an excellent way to get jurors to open up.

-7-

Pick the most important areas of the case and fully discussing these topics with as many jurors as possible. The more time the attorney spends asking questions, the jurors are more likely to open up and respond with his/her true opinions or feelings. By touching on a few meaningful areas, the chances are increased that jurors will want to expound on their answers.

H.

TALK TO EIGHT JURORS PER TOPIC

Limiting the number of topics presented to potential jurors increases the number of jurors with whom the lawyer can talk about each subject. It is important to talk to as many jurors as possible in order to flush out unfavorable jurors and to have the favorable jurors educate the rest of the panel. By allowing as many as eight jurors to talk on a topic, the attorney will have established a rapport with at least the first thirty-two jurors, and have provided the panel with the views of many of their fellow jurors on a variety of subjects. Additionally, talking to as many as eight jurors per topic allows the jurors to do the talking which, in turn, may actually encourage the Court to extend the voir dire time.

I.

ASK A JUROR NO MORE THAN THREE QUESTIONS AT A TIME

It is important to remember that while encouraging the jurors to talk, a lawyer does not spend too much time with the same juror. We recommend asking the same juror no more than three questions at one time. Asking the same juror too many questions may make the other prospective jurors feel slighted or ignored. The attorney also faces the danger of asking one questions too many and making a juror feel like he or she is being cross-examined or put on trial, thus causing the juror to become defensive or embarrassed. Too many questions may encourage a juror to react negatively or show off and speak out just to get attention. Remember, ask a juror three questions and move on to other jurors. If needed, it is always possible to come back to the topic and ask the juror another question or two.

J.

LOOPING

One of the most powerful and effective voir dire techniques is called looping. Looping is a technique whereby an attorney asks one potential juror a specific questions and the juror responds. The lawyer then uses the juror’s name, repeats the juror’s exact words, and then asks another juror for a reaction to what the first juror said. A third juror is then asked to respond to the answers given by the first two jurors5, with the attorney repeating their answers exactly and always using the juror’s name.

This communication technique has many benefits. The jurors are educating each other rather than the panel hearing the propaganda of the lawyers. By repeating the juror’s exact words, any juror who disagrees is, essentially, disagreeing with another panel member and not the attorney. Using the jurors’ names compliments the jurors who have spent all day being treated as nameless and faceless entities, and the attorney becomes the one person who has recognized the jurors as people. The jurors will feel that they are held in positive regard and that their answers are valued. This technique makes the jurors more likely to share honest feelings and opinions, and is the single greatest tool in encouraging a roomful of strangers to talk about their honest opinions or feelings.

5

We have referred to this as the double loop.

-8-

Looping is also an effective way to deal with unfavorable answers. Following an unfavorable answer, a lawyer should thank and praise the juror for the answer. The attorney should explain to the juror and the entire panel that the purpose of voir dire is to learn what people’s opinions and feelings about certain subjects are, that the beauty of our system is that everyone is entitled to their opinions, and that there are no right or wrong answers, just honest ones. The attorney can then determine how many jurors agree or disagree with the view expressed by that particular juror. Jurors who share a similar opinion or feeling can be identified. Once the attorney has determined this group of potentially unfavorable jurors, he or she can then focus on jurors who are favorable on this issue, i.e., they disagree with the previous (and unfavorable) answer. Opposing viewpoints can then be expressed by the other jurors. By handling an unfavorable answer in this manner, the lawyer has identified potential problem jurors, maintained or increased credibility, encouraged further candor from the jurors, and has once again segued back to positive ground by having the good jurors educate the panel.

K.

THE THREE “E’s”

As explained earlier, far too many attorneys begin the jury selection process by explaining to the panel that voir dire is derived from a French term meaning, to speak the truth. We suggest that voir dire is more than this. Voir dire is an invaluable time during which lawyers should concentrate on what we refer to as the three “E’s”: 1) Eliciting information; 2) Establishing rapport; and, 3) Educating by having the jurors teach each other.

To elicit information from potential jurors, lawyers must first make it easy for the jurors to open up and share important and personal information. Therefore, we suggest to attorneys that they open lines of communication by briefly sharing important and personal information about themselves. We call this selfdisclosure. If an attorney wants jurors to share personal information, then that attorney must be ready, willing and able to do the same and do it first.

Rapport means harmony, understanding and camaraderie. Rapport is established between an attorney and a jury by asking meaningful questions and not being judgmental of the juror or their answers.

Establishing rapport with the jurors is another powerful tool of an effective voir dire. After all is said and done, in a close case the jury usually listens to, remembers, and ultimately sides with the lawyer with whom they have formed a bond. As with any relationship, the foundation of the relationship built between an attorney and his/her jurors begins with the honesty and trust developed during voir dire. The jurors will feel that if the lawyer is honest and trusting enough to share the case with them (warts and all), the lawyer will be truthful throughout the presentation of the case. For the attorney, the first reward for this veracity comes when the jurors respond honestly and candidly.

Educating the panel is a critical aspect of an effective voir dire and should be done by other members of the panel rather than the lawyer. A lawyer should use open-ended questions so that a juror will reveal an experience or opinion in an area that is helpful to your case. The panel will more likely believe and remember information and knowledge shared with them by one of their peers, than they will if that same information comes from the attorney. Examples of questions that will allow the jurors to educate each other will include the following.

1.

What are some reasons why an innocent person would not testify?

-9-

L.

2.

Would you please share with us any negative experience that you or a family member has had with a police officer?

3.

What was your reaction when Detective Mark Furhman took the Fifth Amendment in the O.J. Simpson case?

4.

What was your reaction when the F.B.I. falsely accused Richard Jewell of the Olympic Park bombing?

5.

What was your reaction when you learned a woman falsely accused Michael Irvin of the Dallas Cowboys of sexual assault?

6.

Under what circumstances should a person be allowed to use deadly force to protect themselves or their family?

CLOSURE QUESTION

As a general rule, we do not advocate asking general questions to the entire venire. Many times, when a probing and meaningful question is asked in a group setting, jurors are reluctant to answer. For example, in this day and age most potential jurors have opinions and feelings on laws, crimes and punishment. Too many times we have heard a lawyer say to the jury panel, “Will any member of the jury panel hold it against the Defendant if he/she does not testify?” We know that many jurors have strong feelings and negative opinions on this topic and will usually share this information when properly asked on an individual basis (i.e., “What would your reaction be if a person on trial did not testify on his own behalf?” or, “What are some reasons why an innocent person would not testify?”). What often happens in a group setting is that no one will raise their hand. General questions to the panel will only encourage the most outspoken jurors to participate. These jurors are just looking for the opportunity to speak their minds. Our goal is to get the other jurors to talk. Therefore, we recommend that an attorney ask specific jurors specific questions until such time as the attorney is ready to bring the topic to a conclusion. That is the time to aks the entire venire the closure questions, “We have heard quite a few of your fellow jurors say they feel that there are valid reasons why an innocent person would not testify. Are there any members of the jury panel who feel differently or disagree? There is nothing wrong with disagreeing, but we need to know, so please raise your hand.” Conversely, if the prior jurors said that a person accused of a crime should testify, the attorney should ask a series of questions in the following manner: Before we leave this topic, I need to ask you as a group, how many of you agree and disagree with Mr. Gray and Ms. Dodson. First, how many jurors agree that a person should testify? Please raise your hands.

After recording the names and numbers of the jurors who agree, ask: How many jurors disagree with Mr. Gray and Ms. Dodson that there are valid reasons why a person would not want to testify?

Again, record the jurors’ names and numbers. This time go back and ask several of the jurors why they -10-

disagree. This will reinforce the third prong (self-education) of our Three E’s theory.

Finally, some jurors will not raise their hands at all. Pick two or three jurors and say: [Juror’s Name], I noticed that you didn’t raise your hand. What is your feeling or opinion about an innocent person on trial not testifying?

Flushing out that information brings closure to the topic. It is time to segue into the next area by saying to the panel, “Now I want to ask you some questions about [new topic].”

M.

THREE VOIR DIRE PROBLEMS - “MOST JURORS DON’T TALK; A FEW TALK TOO MUCH; SOME DON’T TELL THE TRUTH!” There are three fundamental problems with voir dire: 1.

2.

3.

MOST JURORS DON’T TALK; A FEW JURORS TALK TOO MUCH; and SOME JURORS DON’T TELL THE TRUTH!

The best trial lawyers have come to the conclusion that the most effective voir dire occurs when it is the jurors who do most of the talking. Most of the commentators and pundits assert that voir dire is an opportunity for the lawyers to persuade the jurors. In our view, an effective voir dire is an opportunity for the jurors to persuade each other on the issues associated with the case.

A key ingredient in solving the first problem (most jurors don’t talk) is to properly set the tone6, and then direct specific questions to specific jurors. The second problem (some jurors talk too much) is minimized when an attorney uses this interactive approach to voir dire. There are three options available for handling a juror who constantly raises his/her hand and volunteers information.

1.

If the information is helpful, let the juror talk and then use the information by looping;7

2.

If the information identifies the juror as a potential challenge for cause, say to the juror, “[Juror’s Name], I appreciate your answer. If it is okay with you, we would like to talk to you later in more detail with the Judge.” This way, when the juror subsequently raises his/her hand, the answer can be cut off by saying, “[Juror’s Name], we’ll talk to you about this as well,” then move on to another juror; and

3.

If the juror is a potential strike and is deep in the panel and may not be reached say, “[Juror’s Name], as you can tell, the Judge has brought in more jurors than we will need.

6

The tone is set in the Introductory Phase of voir dire. (See the heading entitled, “Starting your Voir Dire.”) Our method is to tell the jurors that there are no right or wrong answers, only honest ones and that the lawyer will ask questions and not give speeches or lecture to the jury.

7

For more information on this concept, see the heading entitled, “Looping.”

-11-

What I am saying is that we will probably not get to you. However, I appreciate your raising your hand, and if we think we may reach you, I will come back to you.” The attorney is then free to go on to another juror, has eliminated the problem, and has not alienated the juror (or any other of the other jurors) in the process.

The third problem (jurors who don’t tell the truth) requires an understanding of why the juror is not being candid. Some of the reasons why this occurs are because: 1.

2.

3.

4.

The juror is afraid of being stigmatized; The juror’s feelings conflict with his/her self-perception; The juror has an agenda; or, The juror would rather avoid the issue than confront it.

Being a good listener and carefully observing the juror’s non-verbal communication will help the lawyer identify those jurors who are not being candid. The attorney (or the consultant) must try and identify why the juror is reluctant to be honest. An empathetic approach may flush out the answer. The lawyer should consider asking such questions as: 1.

2.

3.

4.

I sense some hesitation in your answer. It is absolutely okay to have some hesitations or reservations; I just need to know; How would you feel if you were chosen to be on this jury?; Have you ever held a different view on this issue and what changed your mind?; or, What is another view that some other jurors might have on this issue?

The reality is that every jury panel has at least one juror who is not being honest. Since time is limited, make some attempt at determining why the juror is not being candid. Ask questions in an empathetic (not confrontational) manner. Many times we have heard jurors say, “Well, to be honest with you...” Those very words can open the juror up to a challenge for cause and save a precious peremptory strike.

N.

TOP 10 QUESTIONS AND PHRASES ATTORNEYS SHOULD NEVER USE

Most of this article is devoted to the techniques or methodology an attorney should use during a thirty minute voir dire. After participating in many trial and reading dozens of voir dire transcripts, we have assembled a Top 10 Questions and Phrases Attorneys Should Never Use in Voir Dire: 10.

Do you understand that the law says ...?

9.

I take it from your silence that no one disagrees with the proposition that ...?

8.

Does anyone have a problem with ...?

7.

Will you keep an open mind and not decide this case until you have heard all the evidence?

-12-

6.

Can you set aside your bias and decide the case on the facts?

5.

Has anyone formed an opinion about ...?

4.

Can every one of you be a fair and impartial juror in a case like this?

3.

Will you promise me that ...?

2.

I trust you will agree ...?

And the Number One Question attorneys should absolutely NEVER ask as a voir dire to the entire panel is: 1.

Do any members of the panel have any feelings about ...?

Just remember, regardless of a person’s gender, age, race, education, income, occupation, or national origin, everyone has feelings. Some jurors are more willing to express their feelings, while others have a harder time doing so. The question to ask is, “What feelings do you have [Juror’s Name] about ...?”

III. CASE SPECIFIC QUESTIONS FOR A SEXUAL ASSAULT OF A CHILD PROSECUTION A.

DEALING WITH THIS TYPE OF CASE

Attorneys should be hyper-sensitive to the fact that all jurors have very strong feelings about allegations involving molestation or abuse of children. This is certainly a fact that the jurors will be thinking about and talking about during deliberations. Attorneys should deal with this matter head on at the beginning of voir dire. The attorney should self-disclose his/her understanding that all of us have very strong feelings about these types of cases and should admit that the attorney also has strong feelings. By self-disclosing your feelings, you are more likely to have jurors tell you about their feelings. Some sample questions that can be used to get the jurors talking are as follows: 1.

When I hear of an allegation that a child has been sexually molested or abused, I can’t help but think about my daughter and what feelings I would have if something like that ever happened to her. Many people have strong feelings about these types of allegations. What are yours, Mrs. Brown? (Attorneys should then loop to several other jurors.)

2.

Given your strong feelings, wouldn’t [Client’s Name] start out with one strike against him?

3.

Many people will say that they can set strong feelings aside and judge a case strictly on the evidence. Please help us by sharing with us what process you would go through to keep your strong feelings regarding these issues from influencing your verdict.

-13-

B.

MAKE A FEAR LIST

Attorneys should identify everything that scares them about their case and make an exhaustive list of questions that deal with the issues that will come out during the trial. This list should include questions relating to the following: 1.

2.

3.

What facts are you most afraid of the jury hearing about?

What are you most afraid of the jurors thinking when they hear the evidence?

What are you most afraid that the jurors will talk about when they begin their deliberations.

Attorneys should get the jurors to talk about the issues on their fear list during voir dire because you can be assured that they will be thinking about them and talking about them during their deliberations.

You should get into the fear list questions as early as possible during the voir dire. The attorney should admit to the jurors that he/she is afraid of these issues and give the reasons why you are fearful. Be sure and ask open-ended questions to allow the jurors to express their true feelings regarding these sensitive issues.

C.

COMMUNICATE THE THEORY OF THE CASE WITH OPEN-ENDED QUESTIONS

During this phase of the voir dire, the attorney is allowing the jurors to educate themselves as to their life experiences that are consistent with the theory of the case. For example, if your theory is that a child mis-interpreted the actions of an adult and overreacted to it, you might want to ask these type of questions:

D.

1.

Mr. Williams, have you ever done something that was mis-interpreted by someone else? Tell us about it.

2.

Ms. Adams, have you ever misinterpreted something that was done or said to you?

Tell us about that.

3.

Mr. Smith, have you ever had anyone misinterpreted something you have said or done and had that person overreact to it? Please tell us about it.

4.

Ms. Jackson, if a child overreacts and causes the police to be called, and an adult is arrested, do you think it would be easy or difficult for the child to later say â&#x20AC;&#x153;I overreactedâ&#x20AC;?? Why or why not? (Loop to several other jurors.)

5.

Has anyone ever known someone who overreacted to a situation and got in too far to back out? I need your help on this. Can anyone think of an example where this has happened?

6.

Mr. Wynn, how might a twelve or thirteen year old girl confuse attention or affection as a sexual advance? Please give us your thoughts.

MAKE THE JURORS AWARE OF FALSE ALLEGATIONS -14-

One of the most important things an attorney can do during voir dire is to make the jurors aware of false allegations. Some questions that can be used to get the jurors thinking and talking about false allegations are as follows: 1.

Has anyone ever been accused of something that the did not do? Do you remember how you felt?

2.

Has anyone ever been punished for something they did not do? Do you remember how that made you feel?

3.

Has anyone ever accused someone of doing something, and you later found out that they did not do it? How did that make you feel?

4.

Did anyone accuse someone of doing something and then punish them, only to find out later that they did not do it? Do you remember how that made you feel?

5.

Would it be easy or difficult for a child to convince a parent that she was touched improperly? Why?

6.

Would it be easy or difficult for a child to convince a police officer that she was touched improperly? Why?

7.

Would it be easy or difficult for a child to convince a doctor that she was touched improperly? Why?

8.

Some people believe that there has been an increase of false reports by children regarding sexual molestation. How do you feel about that, Ms. Reagan?

9.

Mr. Bush, do you feel that every allegation of sexual molestation should be considered true? Why or why not? What would happen if every claim was automatically considered true?

10.

What would you do if a child falsely accused you of sexual molestation? How would you go about proving that you did not do it? Do you think it would be easy or difficult to prove that something did not happen?

11.

Has anyone ever promised their child that if they claimed a person did something bad to them, you would believe them no matter what? Should this be extended to other children, even children that you do not know?

12.

Has anyone ever known a child to fib or lie about something important? Tell us about that. Why would a child do that?

13.

Mr. Clinton, what are some reasons you could think of that a child would not tell the truth?

-15-

14.

Mr. Gore, do you think a child could make up a story about being sexually molested and fool everyone? Why?

15.

If a child tells a false story over and over to a number of different people, what effect would it have on the child? Why? If an adult praises the child for reporting the incident and reinforces what the child says, what effect would that have on the child? Why?

16.

Have you ever volunteered to work with children in the past? Given the number of false allegations, how do you feel about working with children now? Why?

17.

Have you ever truly believed something that your child told you, and it later turned out to be false? Please tell us about that. Were you absolutely convinced that your child was telling the truth? How did it make you feel when you found out that your child had lied to you?

-16-

Texas Criminal Defense Lawyers Association

Defending Those Accused of Sexual Assault Allegations December 3-4, 2020

Topic: Cross Examining Expert Witnesses in Sexual Assault Cases Speaker:

Gerry Morris 2202 Lake Austin Blvd Austin, Tx 78703 (512) 740-4282 Phone egm@egmlaw.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

11/23/2020

Cross Examining Expert Witnesses

in Sexual Assault Cases

BY GERRY MORRIS

Types of Experts

most often encountered • Medical Experts • Counselors and Psychologists • Forensic Science Experts

Discovering the Testimony • Ordinary discovery - Medical Records & Reports - Request Notice of Experts • Prior Testimony - Transcripts & Word of mouth • Publications and writings • Motions to Exclude the Testimony

1

11/23/2020

How the Prosecution will use the testimony What element of the offense does the testimony go to?

• Physical condition supports AV story • AV’s actions consistent with abuse • Identity of perpetrator • Traits of perpetrator

Limiting

the testimony • Motion to Exclude

- Standard of Admissibility - (a) the underlying scientific theory must be valid; - (b) the technique applying the theory must be valid; and - (c) the technique must have been properly applied - on the occasion in question.

LEARN THE SCIENCE! - Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992) TRE 702: Relevance TRE 705: Sufficient Factual Basis

Proponent’s Burden of Proof 

[T]he proponent must persuade the trial court, by clear and convincing evidence, that the evidence is reliable and therefore relevant Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992)

2

11/23/2020

Attacking the testimony • Is the expert biased? Is the expert credible?

- Alignment with the State - Works primarily with alleged victims - Get’s paid very well to do very little • Is the testimony consistent with the literature?

How to find it • Determine what literature the expert used - Preliminary hearing, reaching out • Obtain it through google scholar, library card

How to use it • TRE 803(18) • Get expert to call it a learned treatise on cross

Using the testimony • Can it be explained by your theory?

• Does it really prove anything?

Consistent with Abuse AND Consistent with Innocence

Medical Experts Physicians, SANE nurses • • • •

Can it be explained by your theory?

Does it really prove anything?

Acute v. Non-Acute Exam Consistent with Abuse Etiology issues: San Antonio Four • Ex Parte Mayhugh AND • 512 S.W.3d 285 (Tx.Cr.App 2016) Consistent with Innocence

3

11/23/2020

Mental Health Experts Counselors, Psychologists • Treating counselors - Subpoena records and notes • “Drive by” experts - Can be used for your case - Get transcripts!

- Perpetrator traits

Consistent with Abuse AND Consistent with Innocence

Forensic Science DNA, fingerprints, cell phone LEARN THE SCIENCE! • Case specific - Know what experts they COULD have called but didn’t • DNA - Transfer, secondary transfer, etc.

- Sperm fraction v. epithelial - STR v. Y-STR analysis - Serology

Expert Witness Cross them like anyone else • • • •

What are they gonna say?

Is it BS or not?

Does it help or hurt?

Can you explain it away?

Preparation is EVERYTHING

4

Texas Criminal Defense Lawyers Association

Defending Those Accused of Sexual Assault Allegations December 3-4, 2020

Topic: Cross Examination of a Child Witness Speaker:

Katheryn Haywood 9720 Coit Rd # 220-255 Plano, TX (214) 460-6800 Phone khhaywood2@gmail.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

THE LAW OFFICE OF KATHERYN H. HAYWOOD, PLLC. Khhaywood2@gmail.com Specializing in Assaultive Offenses and CAC Cases Additional Case Materials CHILD WITNEESS • • • •

CHILDREN ARE DIFFERENT THE STATE IS ALLOWED TO LEAD (SOMEWHAT) ON DIRECT EXAMINATION THE ABILITY TO COMPREHEND THE OATH OF WITNESS IS NOT AN ISSUE WITH IMMATURE CHILDREN THE COMPETENCY OF A CHILD TO BE ABLE TO RELATE FACTS OF A CASE IS AN ISSUE

A child is competent to testify, unless, after being examined by the court, the court does not believe the child possesses sufficient intellect to relate facts/narratives with respect to which he/she is interrogated. See Tex. R. Evid 601 (a)(2).

A trial court’s ruling on whether a child witness is competent to testify is reviewed on an abuse of discretion standard. Dufrene vs. State, 853 S.W.2nd 86 (Tex. App- Houston) (14th Dist) 1993, pet. ref’d, Macias vs. State, 776 S.W. 255, 257 (Tex. App- San Antonio 1989).

Texas Rule of Evidence 611(c) states, “Leading questions should not be used on direct examination of a witness except as to that which may be necessary to develop the testimony of the witness.”

With a 7 year old witness, trial court permitted flexibility in dealing with the stringent rule prohibiting the asking of leading questions. Jolly vs. State, 739 S.W.2nd 735, (TCA-14th Dist.

1984).

In cases dealing with child witnesses, the rule against leading questions is somewhat relaxed.

Clark vs. State, 952 S.W.2nd 882, 886 (Tex. App. – Beaumont 1997, no pet.). A prosecutor’s leading questions to a child witness on direct examination will seldom be the bias for reversal.

Uhl vs. State, 479 S.W.2d 55, 57 (Tex. Crim. App. 1972).

What can you do?

1. Challenge the child’s ability to understand the witness oath OUTSIDE the presence of the jury. This gives you a preview of their demeanor and aptitude.

However, keep in mind that “neither inconsistencies in a child’s testimony, including confusion about the obligation of the oath, nor the use of leading questions automatically render a child incompetent to testify.” Coachman vs. State, 692 S.W.2d 940 (TCA 1st Dist. 1985).

2. Do your HOMEWORK! • Watch listen to Forensic Interview with your expert • Know more about child that the child knows about self 3. Start your cross with non-confrontational topics to put child at ease and show the jury you are not unnecessarily confrontational. Develop a sense of trust with the jury and the child.

4. Do not repeat the details (or allow child to repeat) that were rehearsed and the jury has already heard from FI, child, detective, outcry witness.

5. Demonstrate how many adults child has spoken to to lay groundwork for suggested memory, accommodation syndrome, and confirmation bias. Child receives praise and attention in each new setting. Show that by asking questions where you know the answer is yes.

“You have spoken to so many adults about your story. Let’s talk about that. The adults were very understanding? They probably told you that you were doing a good job? No one fussed at you did they? NO one said they didn’t believe you? In fact you were given a good report card by everyone right? Anyone ever tell you that you wouldn’t get in trouble if you CHANGED your story? Anyone ever tell you that the truth is more important that anything else? What do you think should happen to someone who comes into court and tells a story that’s not true?”

6. Look for inconsistencies and pounce.

7. IF he/she leaves out specifics from testimony that would corroborate the offense, gently explore. How old is child? Does child go to public school? Does child know what sex is? Does child listen to music, own phone, own computer, watch videos? Does child have older cousins or siblings.

8. Don’t keep young kiddo on stand long. In and out. This is surgery. The longer the child is under the worse the outcome.

OLDER CHILD WITNESS Leading still permissible but you can object. Judge should not allow state to do the narrative.

Jury will expect older child to be able to communicate in question and answer form.

The older child can withstand a more aggressive/rigorous cross examination. Much easier to form a theory of the case with an older child. Especially look for revenge by child due to punishments or discipline by accused.

It is ok to challenge a teen aged child much like you would an adult. Never be unprofessional or ugly but remember you are the adult and treat the child like a principal at his/her school would if child called in for discipline.

Be wary of questions to which you do not know the answer. A savvy teen can manipulate and surprise.

BASIC CROSS KNOWLEDGE According to at least one judge, most lawyers do a good job in their opening statements, direct examinations, and closing argument, but never learn the art of cross-examination. To master that art, lawyers need to give cross-examination the same attention they do other phases of trial.

Judge William F. Rylaarsdam offers the following tips to highlight the special purposes of crossexamination and to be a guide for mastering the art of cross-examination.

• Don’t confuse cross-examination with a deposition. The purposes of each are completely distinct: the purpose of a deposition is to find out what information the witness has and nail the witness down to a particular version of the facts, and the purpose of cross-examination is to ascertain the truth of alleged facts.

• Consider whether to cross-examine at all. The answer to this depends on whether the witness has testified to anything that injures your case.

• Control your own demeanor during cross-examination. When counsel speaks pleasantly and frankly, shows confidence, refrains from acting surprised, and stays focused on the real issues, he or she projects credibility and adds to the credibility of his or her case.

• Keep it simple. Always keep cross-examination questions short and simple. Convoluted questions will lead the jury to conclude that you are trying to confuse witnesses rather than to get to the true facts.

• Keep it short. A long cross-examination may lead the jury to conclude that the witnesses’ testimony must be of particular significance.

• Only ask questions that help you. Never ask a question on cross-examination unless (1) you know what the answer will be, and (2) the answer aids your side of the case.

• Avoid open-ended questions. Open-ended questions give the witness too much latitude to answer. They are particularly harmful when asked of an expert witness who will then look toward the jury in a very professorial manner and explain the matter yet again to the dummy lawyer who didn’t get it the first time.

• Know when to quit. Always quit while you are ahead. When a cross-examination question elicits a helpful answer, don’t elaborate by asking a further question on the same subject because the witness will likely use those further questions to try to explain away the earlier answer.

• Make good use of deposition answers. Having the witnesses’ sworn answer to a question means that you can safely ask that question during cross-examination as long as it advances your position. If the answer is the same as that given during the deposition, then favorable information is before the jury, and if it differs, then you can impeach the witness with the deposition testimony.

•

Get the court’s help with a recalcitrant witness. Each time the witness gives an evasive answer, politely ask the court to instruct the witness to answer the question. Each time the witness’s answer goes beyond the scope of the question, ask the court to strike the offending portion of the answer and to instruct the jury to disregard it.

Cross-examination has been called the ultimate test of the litigator’s skill. The key to mastering the art of cross-examination is understanding its purpose, deciding carefully whether it’s necessary, and conducting it sensibly and carefully.

Texas Criminal Defense Lawyers Association

Defending Those Accused of Sexual Assault Allegations December 3-4, 2020

Topic: LAWS RELEVANT TO SEXUAL ASSAULT, PRESERVATION OF ERROR Speaker:

William M. Stradley Stradley Law Firm P.C. Heights Blvd Law Building 1545 Heights Boulevard, Suite 200 Houston, Texas 77008 (713) 224-5455 Phone Bill@StradleyLaw.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

LAWS RELEVANT TO SEXUAL ASSAULT, PRESERVATION OF ERROR

William M. Stradley Stradley Law Firm P.C.

Texas Criminal Defense Lawyers Association DEFENDING THOSE ACCUSED OF SEXUAL ASSAULT ALLEGATIONS December 3-4, 2020 Houston, Texas

WILLIAM M. “BILL” STRADLEY Stradley Law Firm P.C. Heights Blvd Law Building 1545 Heights Boulevard, Suite 200 Houston, Texas 77008 o: (713) 224-5455 c: (713) 724-9751 StradleyLaw.com Bill@StradleyLaw.com

BIOGRAPHICAL INFORMATION EDUCATION B.A. in Economics, The University of Texas at Austin 1987 J.D., South Texas College of Law 1990 LEGAL BACKGROUND William “Bill” Stradley has been practicing criminal law in Houston for 30 years and is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He started his career at the Harris County District Attorney’s office before beginning his criminal defense practice. He is a frequent speaker on Texas criminal defense issues and enjoys collaborating with other lawyers and helping them try cases.

‐ 2 ‐

LAWS RELEVANT TO SEXUAL ASSAULT, PRESERVATION OF ERROR 1. THE OFFENSES 2. CHARGING DOCUMENTS a. Counts vs. paragraphs b. TPC 22.011(f) c. Continuous Sexual Abuse d. Super Aggravated Sexual Assault 3. JOINDER / SEVERANCE 4. STACKING 5. ON OR ABOUT 6. ELECTION 7. LESSER INCLUDED OFFENSES 8. COMPETENCY OF CHILD WITNESS 9. OUTCRY STATEMENTS 10. RECORDED INTERVIEWS OF THE CHILD WITNESS 11. IMPEACHMENT OF THE CHILD WITNESS / TRE 412 RAPE SHIELD LAW 12. PRIOR FALSE ACCUSATIONS 13. ALTERNATE PERPETRATOR 14. CHARACTER TESTIMONY a. OF DEFENDANT b. OF THE COMPLAINANT 15. EXPERT WITNESSES 16. STATEMENTS FOR MEDICAL TREATMENT OR DIAGNOSIS / SANE NURSE / THERAPISTS 17. EXTRANEOUS OFFENSES, 38.37 18. JURY INSTRUCTIONS 19. PROBATION a. Probation Eligibility b. Early Termination of Probation c. Extension of Probation 20. SEX OFFENDER DEREGISTRATION

‐ 3 ‐

LAWS RELEVANT TO SEXUAL ASSAULT, PRESERVATION OF ERROR Laws unique to sexual offenses present special issues to practitioners. Jurors are particularly hostile to defendants accused of such crimes. Some judges and prosecutors, even if very familiar with general criminal law, may have limited experience with these special laws relating to the facts to particular cases.

The nature of the offenses can create special issues with charging documents, what evidence is admitted, experts, jury instructions, and punishment. This paper is a general overview of the unique laws relevant to sexual assault, how they may differ from traditional cases, and how to preserve error for appeal. Each of these topics could be their own paper.

THE OFFENSES The following are sexual offenses under Texas law with the range punishment: Tex. Penal Code Sect. 21.11 Indecency by touching (2 to 20) Tex. Penal Code Sect. 22.021 Aggravated Sexual Assault of a Child (5 to 99 or Life). If convicted of ASAC with a prior for ASAC, the punishment is automatic life without parole.

Tex. Penal Code Sect. 22.011 Sexual Assault (2 to 20) Tex. Penal Code Sect. 20.04(a)(4) Aggravated kidnapping with intent to sexually abuse (5 to 99 or Life) Texas Penal Code Sect. 30.02(d) Burglary of a Habitation with intent to commit a sex offense (5 to 99 or Life) Texas Penal Code Section 12.42(c)(2) a second offense with a prior for either Indecency or Aggravated assault is automatic life (parole is possible after 35 calendar years)

‐ 4 ‐

CHARGING DOCUMENTS A basic attribute of criminal law is that defendants need to know the specific charges being brought against them. Laws and case law relating to sexual offenses recognize that sometimes the evidence in those cases is not as specific as in other areas in the law and makes allowances for certain vagueness of detail. It can be a challenge to maintain fairness for the defendant in this environment. a. Counts and Paragraphs: Counts allege separate offenses. An indictment can include multiple counts and the state can achieve a conviction each offense defined by statute. The jury must be unanimous as to each count. Vick v. State, 991 S.W.2d 830 (Tex. Crim. App. 1999).

Paragraphs allege different manners and means of committing an offense, such as the manner of causing penetration, by a finger, sexual organ or other object.

Where the state alleges an offense in more than one paragraph, it can acquire only one conviction, and the jury must be unanimous as to whether the offense was committed. However, the jury need not be unanimous as to how the offense was committed, for example, what kind of object was used to cause the penetration.

Cook v. State, 192 S.W.3rd 115, 118-119 (Tex. App.- Houston [14th Dist.] 2006, no pet.)

The State may charge more than one manner of committing an offense in a single paragraph of an indictment but is required to prove only one of the multiple manner and means alleged. Badillo v. State, 255 S.W.3d 125, 129 (Tex. App.-San Antonio 20090, citing Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).

For both Aggravated Sexual Assault and Indecency by Touching for example, a separate conviction can be had for each discreet sexual act committed. Pizzo v.

State, 235 S.W.3d 711 (Tex. Crim. App. 2007).

A prosecutor may decide to file a single indictment with multiple counts to achieve multiple convictions. Or, they may decide to bring separate indictments for each offense.

‐ 5 ‐

b. TPC 22.011(f) enhancement Texas Penal Code Sec. 22.011(f) is a relatively new portion of the Sexual Assault statute that allows prosecutors to turn a second-degree felony into a 1st degree.

22.011(f) An offense under this section is a felony of the second degree, except that an offense under this section is: (1.) a felony of the first degree is the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from under the appearance of being married under Section 25.01 (Bigamy); or (2) a person with whom the actor was prohibited from engaging in sexual intercourse or deviate sexual intercourse under Section 25.02 (Incest) Originally, Sec. 22.011(f) was created to address the polygamous cases prosecuted in West Texas. c. Continuous Sexual Abuse The offense of Continuous Sexual Abuse was created by the Texas Legislature in 2007 as part of a series of significant changes to the Penal Code relating to sexual offenses against children, collectively known as Jessica’s Law, and these changes were encouraged by the Court of Criminal Appeals’ Justice Cochran in her opinion in Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006).

Found at Texas Penal Code Sect. 21.02. The child must be less than 14 years old, and the defendant must be over 17. There must be two or more acts of sexual abuse at least 30 days apart. It is not necessary that the two or more acts must occur in the same county, but they must have happened in Texas. See Lee v. State, 537 S.W.3d (Tex. Crim. App. 2017).

The acts of Sexual Abuse can be against more than one victim.

TPC 21.02(c) sets out the acts that constitute the “Sexual Acts” that can be alleged under the Continuous Sexual Abuse statute. Of note is the fact that “Indecency Fondling” can be used as an act of Sexual Abuse in the charging instrument, but not fondling the breasts.

‐ 6 ‐

TPD 21.02(g) informs that it is an affirmative defense to prosecution if the actor was not more than 5 years older than the victim, assuming the actor was not a sex offender at the time.

The range of punishment is 25 years to life without the possibility of parole.

Deferred adjudication is not an option unless the charge is reduced before the plea.

Section 21.02(d) The jury is not required to agree unanimously on which specific acts of sexual abuse were committed or the exact date. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse. Multiple cases have been litigated through the Courts of Appeals in Texas, and they have all found to be constitutional.

Double Jeopardy can be a consideration. The courts have held that the defendant cannot be convicted of Continuous Sexual Abuse and also Aggravated Sexual Assault of the same victim during the same period of time alleged in the continuous charge. See Price v. State, 434 S.W.3d 601 (Tex. Crim. App. 2014); Carmichael vs. State, 505 S.W.3d 95 (Tex. App.-San Antonio 2016). However, if the Aggravated Sexual Assault case is alleged to have happened outside of the time period alleged in the Continuous Sexual Abuse case, there is no double jeopardy violation. Dwyer v. State, 532 S.W.3d 535 (Tex. App.- San Antonio 2017).

The state need not allege the specific manner and means by which the defendant allegedly committed the predicate offenses to provide constitutionally sufficient note of the crime with which he is charged. Buxton v. State, 526 S.W.3d 666 (Tex. App.- Houston [1st Dist.] 2017/ The state does not have to elect with a Continuous Sexual Abuse case.

If a defendant has been previously convicted of Continuous Abuse of a Child, the second conviction results in Life in Prison without parole. d. Super Aggravated Sexual Assault Found at Texas Penal Code Sect. 22.021(f) where the child victim is less than 6 years old, or if the child was less than 14 and an aggravating factor found in Section 22.021(a)(2)(A) is alleged.

‐ 7 ‐

The punishment range is 25 years to Life, no parole. Deferred adjudication is not an option.

The state must elect still.

A second conviction for Super Aggravated Sexual Assault is subject is subject a punishment for a capital felony under Texas Penal Code 12.42(c)(2)(B)(ii).

However, execution for rape of a child was held unconstitutional by the U.S. Supreme Court in Kennedy v. Louisiana, 554 U.S. 407 (2008) JOINDER AND SEVERENCE Under Texas Penal Code 3.02, “a defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode.”

Multiple cases or counts involving different children can be prosecuted in the same trial. Diaz vs. State, 125 S.W.3d 379 (Tex. App.-Houston [1st Dist.] 2004, pet. ref’d).

When a single criminal action is based on more than one charging instrument, the state must file written notice of the action. The prosecution must file notice of joinder not less than 30 days prior to trial. A benefit of using multiple counts is that there is no need for a prosecutor to have to remember to file a notice to join the cases into one trial.

Pursuant to the 1997 amendment to Texas Penal Code 3.04, a defendant is not entitled to a severance of multiple child sex offenses unless the defense can show unfair prejudice.

STACKING Texas Penal code 3.03 was amended in 1997 to allow consecutive sentences for convictions arising out of a prosecution.

ON OR ABOUT The State may allege that an offense occurred on or about a particular date but may prove that the conduct charged occurred any time before the date the indictment was filed, within the statute of limitations for that offense. Goodbread v. State, 967 S.W.2d 859, 860 (Tex. Crim. App. 1998); Sledge v. State, 953 S.W.3d 253,

‐ 8 ‐

256 (Tex. Crim. App. 1997); Land v. State, 291 S.W.3d 23, 27 (Tex. App.Texarkana 2009, pet. ref’d).

When choosing a date to allege in the indictment, a prosecutor should be aware of the child’s birthday, particularly when he or she turns 14 (for outcry purposes) and the defendant’s 17th birthday. See Alberty v. State, 250 S.W.3d 115 (Tex. Crim.

App. 2008), where the jury instruction erroneously authorized a conviction for offenses that occurred prior to the defendant’s 17th birthday.

ELECTION Where the state has pled a single offense and the evidence shows more than one incident of the same unlawful conduct that is described by the indictment, that was committed at different times, upon request of the defendant the state must elect the particular incident upon which is relies for conviction. The purpose of the election rule is that tends to assure defendants of unanimous jury verdicts. Cosio v. State, 353 S.W.3d 766, 775 (Tex. Crim. App. 2011).

The law in Texas does not require the State to elect the particular offense upon which it relies for conviction unless the defendant makes the request. Scoggan v.

State, 799 S.W.2d 679 (Tex. Crim. App. 1990). If the defendant does make the motion to elect, the state is required to elect which act or incident it will rely upon for conviction. Failure to elect upon timely request results in constitutional error and requires reversal unless it is found beyond a reasonable doubt that the error did not contribute to the conviction or had but slight effect. Phillips v. State, 193 S.W.3d 904 (Tex. Crim. App. 2006).

While election error has long been considered to be of constitutional dimension, requiring reversal, The Court of Criminal Appeals recently concluded that such error can be harmless beyond a reasonable doubt, where if the trial judge had put the State to its election at the appropriate time, the defendant’s strategy would not have been meaningfully different. Garcia v. State (Aggravated Sexual Assault) (Harris) (PD-00335-18) (November 20, 2019) LESSER INCLUDED OFFENSES It is not uncommon for the state, and sometimes the defense to request lesser included offenses in the jury charge. In the case of a continuous sexual abuse of a child case, lesser included offenses are an obvious consideration.

‐ 9 ‐

Sexual assault or indecency with a child are generally lesser included offenses of aggravated sexual assault if they are part of the same course of conduct. Evans v.

State, 299 S.W.3d 138 (Tex. Crim. App. 2009) In the case of Price v. State, 434 S.W.3d 606 (Tex. Crim. App. 2014, the defendant was convicted of continuous sexual abuse and attempted aggravated sexual assault of a child. The court held the defendant may not be convicted for continuous sexual abuse and any of the identified predicate offenses. Continuous sexual abuse of a child is to be regarded as the “same” offense for double jeopardy purposes.

See also Texas Penal Code 21.02 (e) See also Jackson vs. State, 567 S.W.3d 405 (Tex. App.- Texarkana 2018, no pet.)

Anything more than a scintilla of evidence from any source is sufficient to entitle the defendant (or the state or the court on its own) to submission of the issue.

Bignall vs. State, 887 S.W.2d 21 (Tex. Crim. App. 1994). In conducting this evaluation, the court may not consider whether the evidence is credible, controverts or conflicts with other evidence.

COMPETENCY Children may not be competent to testify if, after being examined by the court, they “appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.” Rule 601(a)(2), Tex. R. Evid.

The party seeking to exclude a witness from testifying must raise the issue of competency and bears the burden of establishing incompetency. Gilley v. State, 418 S.W.3d 114, 121 (Tex. Crim. App. 2014).

The competency of a child-witness is a preliminary question for the trial court to determine under Rule 104(a) of the Texas Rules of Evidence, and the trial court is not bound by the rules of evidence in making that determination. Id. Where a defendant fails to request an inquiry into a child’s reliability, he forfeits his right to complain about the failure to conduct such an inquiry. McGinn v.

State, 961 S.W.2d 161 (Tex. Crim. App. 1998).

When a trial court gets to the point of deciding competency, no matter the procedure employed, the trial court should consider three elements: (1) the witness’ ability to observe intelligently the events in question at the time of the occurrence; (2) the witness’ capacity to recollect or recall the events; (3) the

‐ 10 ‐

witness’ capacity to narrate the events, including the ability to understand questions asked, to frame intelligent answers, and to understand the moral responsibility to tell the truth. Watson v. State, 596 S.W.2d 867 (Tex. Crim. App. 1980).

There is no particular age below which a child is automatically deemed not competent to testify. Fields v. State, 500 S.W.2d 500 (Tex. Crim. App. 1973).

Courts have frequently upheld the admissibility of testimony from children as young as three or four years of age. Escamilla v. State, 334 S.W.3d 263 (Tex. App.-San Antonio 2010, Pet. ref’d) The determination of the competency of a child-witness is an ongoing one for the trial court to make based on the witness’ actual testimony at trial. Gilley, supra.

OUTCRY STATEMENTS TCCP 38.072 creates an exception to statements that would otherwise be hearsay.

A claim of bolstering is not a basis for excluding an outcry statement. Villalon v.

State, 791 S.W.2d 130, 135 (Tex. Crim. App. 1990) The outcry witness must be the first person, 18 years or older, other than the defendant, to whom the child or person made a statement about the offense TCCP 38.072(2)(a)(3).

TCCP 28.072 Only applies to a child who is under 14 years of age when the statement is made. So, if the complainant is 15, for example and outcries to someone about an incident occurring when she is 10, an outcry witness is not allowed.

The child must be available for an outcry statement to come in. Available includes when the child is at the courthouse and available to the defendant for testimony.

Soto v. State, 736 S.W. 2d 823 (Tex. App.- San Antonio 1987, pet. ref’d) The trial court has broad discretion in determining the proper outcry witness and will not be reversed absent a “clear abuse of discretion.” In Nino v. State, 223 S.W.3d 749 (Tex. App.- Houston [14th Dist.] 2007, no pet.) the Court of Appeals found that the trial court abused its discretion in allowing the forensic interviewer to be the outcry witness rather than the complainant’s mother when the evidence showed that the complainant described the offense in a discernable manner to the mother first.

‐ 11 ‐

The “First Person” referenced in TCCP 38.072 is the first person to whom the child made a statement which in some discernible manner describes the alleged offense.

Discernible generally means “more than an allusion to sexual abuse but does not have to be very specific. Thomas vs. State 309 S.W.3d 576 (Tex. App.- Houston [14th Dist.] 1990, no pet.).

See Zinger v. State, 899 S.W.2d 423 (Tex. App.- Austin 1995), where the complainant gave more details to his mother thirteen days after first revealing an incident to her. The multiple statements to the mother were admissible since this was a continuous story over a period of days regarding the one event.

Under some circumstances, TCCP authorizes more than one outcry witness, if they each testify about different events, but there may be only one outcry witness as to the victim’s statement about a single event. Broderick v. State, 35 S.W.3d 67 (Tex. App.- Texarkana 2000, pet. ref’d) In order for the State to make use of an outcry witness they must give notice to the defense at least 14 days before trial. TCCP 38.072.

In the notice, the State must: 1. Identify the sponsoring witness by name, and 2. Provide a written summary of the outcry witness’ statement with the essential facts.

The statute requires the trial judge, upon the request of the defense to hold a hearing outside the presence of the jury on the reliability of the outcry statement before it can be admitted. Duncan v. State, 95 S.W.3d 669 (Tex. App.- Houston [1st Dist.] 2002, pet ref’d).

The Statute charges the trial court with determining the reliability based on “the time, content, and circumstances of the statement. It does not charge the trial court with determining the reliability of the statement based on the credibility of the outcry witness. Further, the statute does not require the trial court to conduct the hearing prior to trial, only prior to the admission of the outcry statement. Sanchez vs. State, 354 S.W.3d 476 (Tex. Crim. App. 2011) The outcry statute does not apply to a collateral matter or extraneous offense Beckley v. State, 827 S.W.2d 74 (Tex. App.- Ft. Worth 1992)

‐ 12 ‐

In Torres v. State, 424 S.W.3d 245 (Tex. App.- Houston [14th Dist.] 2014 pet. ref’d.) the court set out factors that may be considered by the court and argued by counsel at the reliability hearing:  Complainant testifies at trial and admits making the out-of-court statement;  The child understands the need to tell the truth and has the ability to observe, recollect and narrate;  There is other evidence that corroborates the statement;  The child made the statement spontaneously in the child’s own terminology or whether evidence exists of prior prompting or manipulation by adults;  The child’s statement is clear and unambiguous and rises to the level need for certainly;  The statement is consistent with other evidence;  The statement describes and event that a child of the victim’s age could not be expected to fabricate;  The child behaves abnormally after the contact;  The child has a motive to fabricate the statement;  The child expects punishment because of reporting the conduct; and  The accused had the opportunity to commit the offense.

See also Gonzalez v. State, 477 S.W.3d 475 (Tex. App.- Fort Worth 2015, pet ref’d.).

The uncorroborated testimony of either the child or an outcry witness suffices to support a conviction for indecency with a child. Gonzalez v. State, 522 S.W.3d 48 (Tex. App.- Houston [ 1st Dist.] 2017, no pet.).

RECORDED INTERVIEWS OF THE CHILD Almost all child sex abuse cases these days have a recorded interview of the child complainant by a professional forensic interviewer.

The prosecution cannot just play the recorded interview of the child as its evidence of the abuse for several reasons. The interview is hearsay, offered in court to prove the matter asserted. Tex. R. Evid, Rule 801(d). This does not mean that the videos, often devastating to the defense are never admissible.

‐ 13 ‐

Where a child testifies at trial, these prior recorded statements may become admissible under certain circumstances. Rule 801(1)(B), Tex. R. Evid., provides that prior consistent statements that meet the requirements of the rule are admissible.

(1) The declarant must testify at trial and be subject to cross-examination (2) There must be an express or implied charge of recent fabrication or improper influence or motive for the declarant’s testimony by the opponent; (3) The proponent must offer a prior statement that is consistent with the declarant’s challenged in-court testimony; and (4) The prior consistent statement must be made prior to a time that the supposed motive to falsify arose.

In Guevara v. State, 2009 WL 3425579 (Tex. App.- Amarillo 10/26/09) there need only be a suggestion of fabrication to give the trial court substantial discretion to admit a prior consistent statement under the rule. In assessing whether crossexamination of a witness makes an implied charge of fabrication or improper motive, the trial court considers not only the totality of the questioning, but may also consider clues from voir dire, opening statements, and closing arguments.

In Martinez v. State, 2008 W.L. 4344788 (Tex. App.- San Antonio 2008) a child’s forensic video was admitted into evidence after the defense suggested on cross examination that the child was coached by the prosecution and asked questions in such a way as to create the impression that she told a different story at trial that she had originally.

IMPEACHMENT OF THE CHILD WITNESS / TRE 412 RAPE SHIELD LAW To preserve error, always consider that it is the proponent’s burden to show why evidence of prior sexual behavior or false allegations of sexual assault should be admissible.

When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. Texas Rule of Evidence 104(b), TRE 412 sets out the rules regarding the admissibility of evidence related to the prior sexual behavior of the complainant.

‐ 14 ‐

Reputation or Opinion Evidence of the complainant’s past sexual behavior is ALWAYS specifically prohibited by TRE 412 Rule 412 applies to specific offenses: sexual assault, aggravated sexual assault, or attempt to commit those offenses. Rule 412 does not apply to indecency with a child cases. Esparza v. State, 513 S.W.3d 643 (Tex. App. 2016).

Rule 412(c) mandates that defense counsel get permission by requiring that: 1. Before offering any evidence of the victim’s past sexual behavior, the defendant must inform the court outside the jury’s presence (essentially a statutorily mandated Motion in Limine.)

2. The court must then conduct an in-camera hearing, recorded by a court reporter, and determine whether the proposed evidence is admissible.

3. The defendant may not refer to any evidence ruled inadmissible without first requesting and gaining the court’s approval, outside the jury’s presence.

Where Rule 412 does not apply, the admissibility of the evidence of prior sexual conduct will be determined in accordance with other provisions of the Texas Rules of Evidence. These rules include: 1. Rule 401 (Relevancy); 2. Rule 608(b) (Prohibiting attacks on a witness’ credibility with specific acts of misconduct); 3. Rule 404(b) (Crimes, wrongs or other acts to prove motive, opportunity, intent, etc.)

4. Rule 613(b) (Proof of a witness’s bias or interest) See Smith v. State, No. 12-14-002-CR, 2016 WL 3568041 (Tex. App. Tyler, June 30, 2016) Five exceptions to TRE 412’s General Rule that prior sexual behavior of the complainant is not admissible: A. B. C. D. E.

To Rebut or Explain the States Medical Evidence; Past Sexual Behavior with the Defendant as Proof of Consent; Past Sexual Behavior Relates to the Victim’s Motive or Bias; When the past Sexual Behavior is Admissible under Rule 609; When the past Sexual Behavior is Constitutionally Required to be Admitted

‐ 15 ‐

In Johnson v. State, 2016 Tex. Crim. App. Lexis 83 (May 25, 2016) the defendant wished to cross examine the complainant as to allegations that the complainant molested his sister in the past. The CCA decided that the defendant should have been able to cross the complainant on the topic saying, “where the believability of a complainant forms the foundation of the State’s case, Texas law favors the admissibility of evidence that is relevant to the complainant’s bias, motive, or interest to testify in a certain fashion.

Best arguments for admission and preservation of error: • The CCA in Johnson sets out the arguments for the defense: • 404(b) evidence allowed to show motive • 613(b) specific instances to show bias, self-interest and motive • 412(b)(2) allows evidence to show motive or bias.

• 403 should be used sparingly to keep evidence out PRIOR FALSE ALLEGATIONS BY COMPLAINANT Rule 608(b) prohibits inquiring into extrinsic evidence to prove “specific instances of the witness’s conduct in order to attack or support the witness’s character for truthfulness.”

Rule 613(b) however allows for cross examination regarding bias or interest.

In Hammer vs. State, 296 S.W.3d 555 (Tex. Crim. App. 2009) a conviction was reversed because the trial court excluded evidence that the complainant had made several false allegations of sexual abuse against other men in the past. The court noted: “The disallowed evidence demonstrates that [the complainant] was not above changing her story of a consensual sexual encounter with her boyfriend into a nonconsensual one with someone else to prevent her father from learning the truth and presumably punishing her for running away and having sex with her boyfriend.”

As such the defendant was, “unable to present any evidence of [the complainant’s] purported motive to fabricate allegations of sexual molestation.

‐ 16 ‐

TRE 404(b) explicitly permits the defense to offer evidence of other acts of misconduct to establish a person’s motive for performing some act, such as making a false allegation against the defendant. Hammer.

The doctrine of chances has been invoked as a possible basis for admitting evidence of a victim’s prior false accusation of rape. Hammer.

In Billodeau v. State, 277 S.W.3d 34 (Tex. Crim. App. 2009), the complainant’s false allegations against other should have been admissible by the defense, even though they were made after the sex assault for which the defendant was on trial.

In Pierson v. State, 426 S.W.3d 763 (Tex. Crim. App. 2014), Judge Price, J, in a concurring opinion noted, “I wish to emphasize that we have not altogether ruled out the possibility that the Confrontation Clause requires that a defendant be able to develop evidence of prior false accusations, at least in sex offense prosecutions, as general evidence of the complaining witness’s lack of credibility, notwithstanding Rule 608(b) of the Rules of Evidence.

In Jones v. State, 571 S.W.3d 764 (Tex. Crim. App. 2019) the CCA acknowledged recent lower court opinions pointed out the need to establish a logical relationship or causal connection: a showing by the proponent of the cross-examination that the circumstances he wishes to call to the witness’s attention, in fact, give rise to an inference of undue influence or bias. The Court allowed, “too strict an adherence to this principle would undermine Rule 613(b)’s implicit assumption, that a defendant be permitted to explore any possible basis for witness bias, whether or not the witness is willing to admit it.

The defendant should be allowed to develop false allegations by a witness other than the complainant where the witness testifies against him on the complainant’s behalf. Polvado v. State, 689 S.W.2d 945 (Tex. App.- Houston [14th Dist.] 1985).

However, where the individual making the false allegation is not a witness to the alleged crime on trial and not called as a witness by the state, the trial court does not abuse its discretion in refusing to admit the false allegations. Beckley v. State, 827 S.W.2d 74 (Tex. App.- Fort Worth 1992.)

Best arguments for admission and preservation of error with prior false allegations:  404(b) evidence allowed to show motive or modus operandi  613(b) specific instances to show bias, self-interest, and motive  412(b)(2) allows evidence to show motive or bias.

‐ 17 ‐

 403 should be used sparingly to keep evidence out  6th amendment right to confront the witness, and right to present a complete defense.

ALTERNATE PERPETRATOR EVIDENCE For “alternative perpetrator evidence” to be admissible, the defendant must show that his proffered evidence is sufficient, on its own or in combination with other evidence in the record, to show a nexus between the crime charged and the alleged “alternative perpetrator.” Wiley v. State, 74 S.W.3d 399 (Tex. Crim. App. 2002).

In Kelly v. State, 321 S.W.3d 583 (Tex. App.- Houston [14th Dist.] 2010, the trial court reversibly erred by failing to allow the defense to develop its theory, through direct evidence and cross examination, that the foster parents of the complainant children had abused the children and coached them to falsely accuse the defendant.

The evidence supporting this defense had been supplied to the defense by a neighboring district attorney’s office, not the prosecuting district attorney’s office.

The failure of the trial court to allow evidence and cross-examination violated the defendant’s 6th amendment right to present a complete defense.

When the defendant claims that the complainant made allegations against someone else other than the defendant, in order to be admissible as impeachment, there must be a showing that the extraneous allegations were false. Hughes v. State, 850 S.W.2d 260 (Tex. App.- Fort Worth 1993 pet ref’d).

CHARACTER EVIDENCE The defendant is allowed to call character witnesses to present testimony during the guilt and innocence phase of the trial. In Thomas v. State 669 S.W.2d 420 (Tex. App.- Houston [1st Dist.] 1984, pet. ref’d) the trial court erred in excluded testimony that the defendant had a good reputation in the community for being a moral person and for safe and proper treatment of young children. The court explained that the excluded evidence was relevant to show the improbability that the appellant raped his step-daughter.

For reputation testimony, the witness must be familiar with the defendant’s reputation in the community, although it is not required that he has met the defendant. A witness can opine on the pertinent character trait of the defendant in

‐ 18 ‐

the form of an opinion if the witness has sufficient personal experience with the defendant.

The complainant’s character for truthfulness can be attacked by witnesses for the defense, either in the form of a reputation question or an opinion if they are personally familiar with the complainant. If a witness’s general character for truthfulness has been attacked, Rule 608 allows opinion or reputation evidence of that witness’s good character or reputation for truthfulness See Michael v. State, 235 S.W.3d 723 (Tex. Crim. App. 2007) EXPERT WITNESSES Governed by Texas Rules of Evidence 702-705 Most of the experts utilized by the state in the trial of child sexual abuse cases are psychologists.

Rule 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

Rule 705(b): VOIR DIRE, Prior to the expert giving the expert’s opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall…be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.

Upon request, notice must be given at least 20 days before trial, including rebuttal witnesses. If no notice is given the defense can ask that the witness be excluded.

If the court denies the defense Motion to Exclude the defense must ask for a continuance or there is no error.

For expert testimony to be admissible under this rule, the party offering the scientific expert testimony must demonstrate, by clear and convincing evidence, that such testimony “is sufficiently reliable and relevant to help the jury in reaching accurate results. Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992).

The Court of Criminal Appeals in Nenno v. State, 970 S.W.2d 549 (Tex. Crim.

App. 1998) determined that experts can fall into one of two categories- Hard

‐ 19 ‐

Science experts or Soft Science experts. The majority of the experts we encounter in the trial of child sex offense cases will be in the category of soft science.

In addition to whether an expert is qualified, the CCA in Nenno set out the appropriate inquiries in a voir dire examination of experts in soft science include: 1. Whether the field of expertise is a legitimate one, 2. Whether the subject matter of the expert’s testimony is within the scope of that field, and 3. Whether the expert’s testimony properly relies upon and/or utilizes the principals involved in that field.

Many of the experts presented by the prosecution are called upon to testify in virtually every case. For example, the prosecution will call the director of the Children’s Assessment Center to talk about such things as Child Abuse Accommodation Syndrome, behavioral characteristics of abused children, and the concept of grooming behavior exhibited by alleged perpetrators.

In Perez v. State, 113 S.W.3d 819 (Tex. App.- Austin 2003, pet. ref’d.), the court recognized that common behavior and characteristics of sexually abuse children are relevant and admissible under TRE 702. Applying the soft science standard set out in the Nenno opinion, the Perez court determined 1. The expert’s field is a legitimate one. (psychology) 2. Due to the witness’s superior knowledge and experience, the common characteristics and dynamics of children who have suffered sexual abuse is within the expert’s expertise; and 3. The witness’s testimony supports a conclusion that his opinions and writings on sexual abuse of children were accepted by the relevant scientific community of psychologists.

Judicial notice of the validity of a theory: The subject of the dynamics of child sexual abuse is a legitimate field of psychology. Duckett v. State, 797 S.W.2d 906 (Tex. Crim. App. 1990).

Behavior of people who sexually victimize children is a legitimate field of expertise, see Nenno.

‐ 20 ‐

Conditioning or grooming practices associated with sexual assault of children is a legitimate field of study. Morris v. State, 361 S.W.3d 649 (Tex. Crim. App. 2011).

Using hypotheticals with experts: The testimony of the expert must be sufficiently tied to the facts, but this can be accomplished by way of hypotheticals. These hypotheticals can be based on facts not yet admitted into evidence as long as the prosecution eventually introduces those facts into evidence. Barefoot v. State 596 S.W.2d 875 (Tex. Crim. App. 1980).

Beware of Experts Opining on Truthfulness: Even if the expert’s testimony meets the rule 702 requirements, expert testimony that a particular witness is truthful is inadmissible under TRE 701 and 702. Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993).

An expert may not offer a direct opinion on the truthfulness of a child complainant’s allegations. Shultz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997).

Clearly, an expert is not allowed to comment on the truthfulness of a complainant.

Sometimes experts make such assertions without specifically being asked to do so.

Sometimes inexperienced prosecutors may not know that this line of questioning is off limits. If this happens, it is very important to preserve error. The proper objection is that such testimony amounts to an improper opinion under TRE 701 and 702. If the witness has already opined to that effect: 1. Object to Improper Opinion, and if sustained; 2. Ask the court to instruct the jury to disregard the witness’s statement, and; 3. Move for a mistrial.

It is important to remain on high alert for this type of expert opinion testimony.

A review of the cases dealing with experts in child abuse cases, where the appellate courts have found that trial courts have abused their discretion in permitting expert testimony, have been related to the qualifications of the expert. Fox v. State, 115 S.W.3d 550 (Tex. App.- Houston [14th Dist.] 202 pet. ref’d.); Perez v. State, 25 S.W.3d 830 (Tex. App.- Houston [1st Dist.] 2000, no pet.); Kelly v. State, 321 S.W.3d 583 (Tex. App.- Houston [14th Dist.] 2010, no pet.)

‐ 21 ‐

STATEMENTS FOR THE PURPOSE OF MEDICAL TREATMENT / SANE EXAMS / THERAPISTS Under Tex. R. Evid. 803(4), statements made for the purpose of medical treatment or diagnosis are admissible from third parties despite that fact that they are hearsay.

For the hearsay statement to a non-medical professional to be admissible, it is incumbent upon the proponent to make the record reflect both: 1. truthtelling was a vital component of the particular course of therapy or treatment involved, and 2. that it is readily apparent that the child-declarant was aware that this was the case.

-Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008).

However, where the person who received the statement is a medical professional, “it seems only natural to presume that the adults and even children of a sufficient age or apparent maturity, will have an implicit awareness that the doctor’s questions are designed to elicit accurate information and that veracity will service their best interest. Id at 589.

The proponent of admission of a statements to a SANE examiner does not have to affirmatively demonstrate the declarant was aware of the purpose of the statements and the need for veracity. Swofford v. State, 2015 WL 7919762 (Tex. App-Tyler 11/12/15) In Rangel v. State, 2016 Tex. App. Lexis 5368 (Tex. App.-Dallas 05/19/16) the trial court admitted hearsay testimony from an attending physician of the child’s history from the complainant’s mother. The doctor was allowed to recount the complainant’s mother’s rendition of the complainant’s outcry statement, which included the identity of the defendant. The court noted that Rule 803(4) does not limit its application to the patient-declarant’s statements; but that the declarant must simply have an interest in the proper diagnoses or treatment of the patient, and that statements made by a parent of an injured child for purposes of diagnosing or treating a child qualify as an exception under Rule 803(4).

Therapists are not considered to be medical personnel, but they can still relate the otherwise hearsay statements of the CW as long as they can establish that 1. Truthtelling was a vital component to the therapy involved, and 2. That it is readily

‐ 22 ‐

apparent that the child was aware that this was the case. Munoz v. State, 288 S.W.3d 55 (Tex. App.- Houston [1st. Dist.] 2009.

With therapists, the best issues to focus on while trying to keep their testimony out would be 1. Whether the therapist is really qualified, and 2. Whether the statements were pertinent to treatment.

EXTRANEOUS OFFENSES, CCCP 38.37 Generally, the rules of evidence are designed to prevent juries from convicting people for anything other than the facts in front of them. Specifically, they are intended to ensure people are convicted of specific crimes proven beyond a reasonable doubt and not because of their general bad character…but, In 2013, Texas Code of Criminal Procedure Article 38.37 was changed to allow uncharged allegations from other victims of certain sex offenses during the guiltinnocence phase of the trial to be admitted “for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.”

In his concurring opinion in the only Texas Court of Criminal Appeals case to date addressing Article 38.37 issues, Justice Newell noted, “It is startling to consider the scope of the license provided by this statute.” Jacobs v. State, 560 S.W.3d 205, 217 (Tex. Crim. App, 2018) (J. Newell, concurring opinion).

Article 38.37 Sec. 2 (b) expressly allows consideration of extraneous acts to show character conformity notwithstanding what Rule 404 says. For practitioners accustomed to how extraneous acts are handled in every other type of case and hundreds of years of jurisprudence, it can be jarring to see that 404 protections do not apply to certain child sex crime cases.

Evidence that the defendant has committed a “separate offense…may be admitted…for any bearing the evidence has on relevant matters, including the character of the defendant and the acts performed in conformity with the character of the defendant.”

Unlike Section 1 that only applies to extraneous acts “against the child who is the victim of the alleged offense,” Section 2 is not restricted to the same child.

‐ 23 ‐

Article 38.37 makes clear that other separate sexual offenses against other children are admissible, after a hearing. Further, 38.37 exempts explicitly the application of Rules 404 and 405. The statute did not mention whether a 403 analysis was still to be done and does not exempt 38.37 from a 403 analysis.

The Belcher opinion makes clear the continued necessity of 403 balancing test when requested by the defense, notwithstanding 38.37. Following the 2013 amendments, on September 2, 2015 the Tyler Court of Appeals added some clarity by declaring, “…before such evidence is admitted, the trial court must still conduct a balancing test under Rule 403. See TEX. CODE CRIM. PROC. ANN. Art 38.37 § 2(b) (permitting admission of propensity evidence “nothwithstanding Rules 404 and 405, Texas Rules of Evidence,” but not excluding from application Rule 403).

Belcher v. State (Tex. App. - Tyler, 2015 no pet.) When evidence of a defendant’s extraneous acts is relevant under Article 38.37, Section 2(b), the trial court is still required to conduct a Rule 403 balancing test upon proper objection or request. Id. at 847, quoting Hitt v. State, 53 S.W.3d 697, 706 (Tex. App. - Austin 2001, pet. ref’d).

In Caston v. State, 549 S.W.3d 601 (Tex. App. - Houston [1st Dist.] 2017, no pet.) the court confirmed the factors to balance when conducting a 403 analysis in the context of 38.37 Section 2 evidence: (1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issue, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).

PROBATION a. Probation Eligibility For all offenses committed after September 1, 2007, and codified under Texas Code of Criminal Procedure Article 42A.056(4), the jury cannot recommend probation for cases including the following, where the child victim is less than 14:

‐ 24 ‐

   

Section 21.11(a)(1) Indecency with a Child by contact Section 22.021 Aggravated Sexual Assault of a Child Section 22.021 Sexual Assault Aggravated kidnapping if the committed with the intent to violate or abuse the victim sexually.

Pursuant to Texas Code of Criminal Procedure Article 42A.054, the judge cannot give probation for the above list either. However, the judge can give deferred adjudication as long as he makes a finding in open court that placing the defendant on probation is in the best interest of the victim. b. Early Termination of Probation CCP Chapter 42A.701: A person who is required to register as a sex offender under CCP Chapter 62 is not eligible to seek an early termination of their probation. c. Extension of Probation for certain Sex Offenders CCP Chapter 42A.757: A person on deferred adjudication after conviction for Indecency with a Child, Sexual Assault or Aggravated Sexual assault may have his probation extended up to 10 years if he hasn’t shown commitment to avoid future criminal behavior and release of the defendant from probation would endanger trhe public.

SEX OFFENDER DEREGISTRATION Chapter 62 of the Texas Code of Criminal Procedure requires registration for all of the offenses involving sexual misconduct with children. Most offenses require LIFETIME registration and a couple of them allow for only 10 years registration, post discharge, under Chapter 62. The significant details of registration and the several ways a person required to register can run afoul his requirements are the subject for another lengthy discussion.

Given the difficulty surrounding being required to register as a sex offender, a common question for the criminal defense attorney is, “how can I get out of registration.”

‐ 25 ‐

If the Federal registration requirement is shorter than the Texas registration requirement, the applicant is eligible to apply for deregistration under CCP 62.403(b). One does not have to wait until the Federal registration period is over.

For example, where a defendant has a single reportable conviction for Possession of Child Pornography, deregistration is a possibility because the federal statute requires a 15-year registration, and Texas requires a lifetime registration.

1. Texas Administrative Code 27.3, adopted in March 2019. (Minimum Required Registration under Federal Law for Texas Reportable Convictions and Adjudications).

2. Records.txdps.state.tx.us for the must-see chart when determining who is eligible to seek early termination of registration.

Section 21.11(a)(1) Indecency with a child, by contact, if the victim is age 13-17, the federal law requires a 25-year registration. Under Chapter 62 in Texas the registration period for this offense is lifetime, so a person with this conviction or deferred adjudication would be eligible to seek an early termination of registration.

The person has to have only a single reportable offense. So more than one conviction or deferred adjudication will prevent consideration from deregistration.

‐ 26 ‐

Texas Criminal Defense Lawyers Association

Defending Those Accused of Sexual Assault Allegations December 3-4, 2020

Topic: False Memories in Children Speaker:

Stephen A. Thorne, PhD 1301 S. Capital of Texas Hwy, C-130 Austin, Texas (512) 342-1661 Phone (512) 306-9234 Fax drstephenthorne@yahoo.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

11/23/2020

False Memories in Children Stephen A. Thorne, Ph.D .

Texas Criminal Defense Lawyers Association (TCDLA) Defending Those Accused of Sexual Assault Allegations Houston, Texas December 4, 2020 (512) 342-1661 (ph) (512) 306-9234 (fax) drstephenthorne@yahoo.com

What is a false memory?

“a distorted recollection of an event or, most severely, recollection of an event that never actually happened”.

APA Dictionary of Psychology

Is this just “defense friendly” theoretical stuff?

1

11/23/2020

“Even when people are highly confident that they are remembering ‘the truth’ of the original situation, experimental evidence shows that they can be wrong.”

APA Dictionary of Psychology

McMartin Preschool

In cases of alleged CSA, who needs to know about this stuff?

2

11/23/2020

National Children’s Alliance (NCA) “The Cornerstone” “The Foundation”

NCA Standards for Accredited Members (2017 Edition) Important to note: “Forensic interviews are conducted in a manner that is developmentally and culturally sensitive, unbiased, fact-finding, and legally sound.” (p. 20) NCA accredited CAC’s must be able to demonstrate that their FI’s have successfully completed training that includes (among other things) “child development” and “suggestibility”. (p. 21)

American Professional Society on the Abuse of Children (APSAC) Practice Guidelines (2012) Important to note: “Interviewers should be knowledgeable about basic concepts of child development and linguistics.” (p. 10) “Memory source monitoring is the ability to recognize the source of a memory for an event. It is an important developmental consideration during a forensic interview.” (p. 11)

3

11/23/2020

THE BASICS – hopefully!

Childhood vs. Adult memory “Children are not simply miniature adults. As such, the memory of the child is significantly different from the memory of an adult. Furthermore, the ability to form memories is not innate and instead develops over the first nearly two decades life.”

(Peterson, Jones, Stephens, Gozenman, and Berryhill, Kindle location 2298-2299; In O’Donohue & Fanetti, 2016 - electronic edition of Forensic Interviews Regarding Child Sexual Abuse: A Guide to EvidenceBased Practice)

Having said that…

There are different types of memory, with autobiographical memory generally being the most relevant to CSA issues. Current consensus in the field is that capacity for reliable autobiographical memory develops in the first decade of life.

As it specifically relates to CSA, children 5/6 yo and up are generally thought to have the capacity to be an accurate witness and/or competent interviewee, BUT – two exceptions: -Undue influence -Improper interviewing (Dr. James Wood)

4

11/23/2020

Age Matters – but why?

“Young children (i.e., preschoolers) generally recall less information than do older children…Preschool children also are more susceptible to incorporating misleading information into their reported memories for events than are older children and adult (Rudy & Goodman, 1991)…Moreover, young children (i. e., younger than 6) have difficulty remembering the source of their memories (i. e., whether the source of a memory was a real event or an imagined one; Foley, Johnson, & Raye, 1983). Thus, although research has reliably demonstrated that older children perform similarly to adults, it has also demonstrated that very young children provide less accurate testimony than do older children or adults.”

(Kovera & Borgida, p. 188-189; In Ceci & Hembrooke, 1998 Expert Witnesses in Child Abuse Cases: What can and should be said in court)

Memory = Process ≠ Static

“The memory system is not static but is constructive; it elaborates, deletes and shapes its contents.”

(Klemfuss & Ceci, p. 158/Kindle Location 3428; In Kuehnle and Connell, 2009 – electronic version of The Evaluation of Child Sexual Abuse Allegations: A comprehensive guide to assessment and testimony). “

Cont’d Memory is an active process. We do not record events like a video camera and then recall them at will. Because of this constructive nature of memory, reports may be inaccurate because of a number of factors that intrude at the time of the initial recording (encoding) of the event, during the storage of the event, or at the time of the retrieval of the event. We sometimes add, delete and shape memories of our experiences…Thus, what gets retrieved is rarely a direct match of the original event.” (p. 4; 2009 paper authored by Laura Peterson as part of TCDLA presentation titled “Handling the Sex Offender Case”)

5

11/23/2020

Impact of “the process” “If older children or adults are asked to report events that occurred prior to age 3 or 4 (i.e., during the phase of infantile amnesia), it is highly unlikely that their reports will be based on clear or detailed memories of the events in question. Instead, they may reconstruct what ‘probably’ happened based on conversations with others (e.g., parents), interviewer and therapist suggestions, photographs, or from vague memories that have been reinterpreted over time and mixed with their current knowledge and beliefs.”

(La Rooy, Malloy, and Lamb, p. 52/Kindle location 1604-1615; In Lamb, La Rooy, Malloy, & Katz, 2011 – electronic edition of Children’s Testimony: A handbook of psychological research and forensic practice)

*important to note – we remember less than we think we do!

Suggestibility

Best predictor of memory accuracy and susceptibility to suggestibility?

Suggestibility cont’d Leading/suggestive questions and/or new information (e. g., “other people”) → compliance/acquiescence

Impact of comment and/or question type (by FI, counselor, parent, family friend, etc.) on content and/or accuracy of child’s statement. *often subtle, not intentional

6

11/23/2020

Suggestibility cont’d “Regardless of the research setting, delay between the occurrences of the tobe-remembered event and questioning has adverse effects on the strength of the memory trace…Interviewers should recognize that children interviewed after a substantial delay might require more time to retrieve details from recall memory, and they should also be more cautious when questioning children after long delays because such children are more susceptible to suggestion.”

(Lamb, Hershkowitz, Orbach, Esplin, Kindle location 1060, 2008; Electronic edition of Tell Me What Happened: Structured investigative interviews of child victims and witnesses)

Interview Considerations Efficiency vs. Accuracy Closed-ended ?’s vs. Open-ended ?’s “Because of the limited amount of information given in response to openended questions, interviewers typically must rely on more specific questions when working with younger children. Unfortunately, when preschool children are asked specific questions, their accuracy decreases, and when the questions are of the yes/ no type, their accuracy may not be above the level of chance (Clubb & Follmer, 1993; Gordon & Follmer, 1994).”

(Gordon, Schroeder,Ornstein, Baker-Ward, p. 103/Kindle location 2834; In Ney, 1995 – electronic edition of True and False Allegations of Child Sexual Abuse: Assessment and case management)

More on interviews…

“When an interviewer solicits information through leading and other nonprofessional questions, those errors may lead the interviewee to believe that abuse has occurred. So, interviewers should not use leading and suggestive questions; should never use their authority to press for answers; should not use reinforcement to encourage disclosure; should not use disconfirmation to correct the child’s answer, particularly when the interviewee says, “I don’t know”; and should not invite the interviewee to speculate an answer.”

Cheung, p. 295, 2012; Child Sexual Abuse: Best Practices for Interviewing and Treatment

7

11/23/2020

CHILDHOOD AMNESIA

Case Study

8

Texas Criminal Defense Lawyers Association

Defending Those Accused of Sexual Assault Allegations December 3-4, 2020

Topic: Opening the Door to Extraneous Offense in Sexual Assault Cases Speaker:

Damon Parrish 1201 Franklin St, 13th Floor ADDRESS 2 Houston, Tx (713) 368-0016 Phone damon.parrish723@gmail.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Opening the Door to Extraneous Offense in Sexual Assault Cases |Damon Parrish II

Opening the Door to Extraneous Offenses in Sexual Assault Cases Texas Legislators have per se “opened the door” in certain child sex cases through the Texas Code of Criminal Procedure Art. 38.37. That code provision provides that in certain child sex cases the State can introduce extraneous offenses without a witness or defendant doing anything affirmative to cause the introduction of the extraneous offense. Art. 38.37 can be divided into 2 categories: extraneous offenses involving the charged victim and extraneous offenses involving any other victim (Huffman Rule). The analysis of that code provision, its application, use and defenses will be discussed by another presenter therefore it will not be discussed in detail in this paper, except to say that in those cases “opening the door” is done without the witness / defendant doing anything affirmative to cause the introduction of the collateral evidence. This paper will discuss how a witness, or counsel, can “open the door” to the introduction of extraneous offenses or collateral evidence and how certain evidence, or arguments, do not “open the door.”

TEXAS CODE OF CRIMINAL PROCEDURE ART. 38.37 Art. 38.37 Sec. 1 primarily deals with extraneous offenses involving the charged victim.

As you can see, Sec. 1 allows for the admission of collateral evidence of the state of mind of the defendant and the child as well as the previous and subsequent relationship between the defendant and child to be admissible evidence. This collateral evidence can, and typically does, include extraneous offense between the Defendant and child.

The biggest limitation of Sec. 1 is that is limited to the interactions of just the Defendant and the child victim and can be used for the expresses limited defined purposes.

Art. 38.37 Sec. 2 primarily deals with extraneous offenses involving the Defendant and any other victim, as long as that victim was a child under 14 at the time of the extraneous offense.

Under Sec. 2 evidence that the defendant has committed one of the enumerated separate (extraneous) offenses can be admitted in the trial of the Defendant for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.

Basically, any previous rumor, allegation, investigation, charged or uncharged applicable extraneous offense can be admitted in trial against the Defendant for any relevant matter, not just the 404 limitations. This is a very broad statute with very broad uses.

OPENING THE DOOR There are many ways to “open the door” and allow the introduction of collateral evidence to attack the credibility of a witness. These attacks are usually paired with one of the listed exceptions to the general prohibition of character evidence in Texas: to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. 404. TX R EVID Rule 404. While Rule 404(b) requires the State to provide notice of other crimes, wrongs, or acts it plans to introduce in its case-in-chief, there is an exception to this notice requirement when the defense opens the door to such evidence by presenting a defensive theory that the State

Opening the Door to Extraneous Offense in Sexual Assault Cases |Damon Parrish II

may rebut using extraneous-offense evidence. Dabney v. State, 492 S.W.3d 309 (Tex. Crim. App. 2016). This rebuttal evidence must still be relevant and not prejudicial, further the rebuttal evidence is limited to rebut the defensive theory and is not a free for all for the State to introduce any evidence they desire.

Upon “opening the door” by a witness, the opposing party must show how the collateral evidence is relevant, not overly prejudicial and meets one of the exceptions listed in Rule 404.

1. Sexual Assault of a Child is a Crime Involving Moral Turpitude Texas courts have ruled that Sex Assault of a Child (SAC) is a crime of deliberate violence; concerns personal morality; is against good morals; is an act of baseness, vileness, and depravity; is immoral in itself; and shows a moral indifference to the opinion of respectable members of a community. It can be characterized as universally morally reprehensible.

Matter of G.M.P., 909 S.W.2d 198 (Tex. App. 1995) (citing Turton v. State Bar. 775 S.W.2D 712, 717).

Therefore, SAC is a crime involving moral turpitude and a defendant is entitled to present to the jury evidence of a pertinent character trait to show that it was improbable that he committed the crime. Matter of G.M.P., 909 S.W.2d at 208.

2. False Impression on Credibility Leaving a false impression with the jury is probably the easiest and most likely way a witness, or counsel, can “open the door.” When a witness leaves a false impression concerning a matter relating to his or her credibility, the opposing party is allowed to correct that false impression. Ramirez v. State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990).

Further, if a defendant testifies to their good moral character and that their good moral character is a reason why they did not commit the offense, then extraneous evidence relating to the defendant committing the same or similar offenses can be admissible. If a defendant testifies to a blanket Statement of good conduct or character-such as “I would never have sex with a minor”—he may open the door to the admission of extraneous acts evidence by leaving a false impression with the jury about a relevant act or character trait; evidence of an extraneous act that tends to rebut such testimony may be admissible to impeach the defendant. Daggett v. State, 187 S.W.3d 444, 452 (Tex. Crim. App. 2005).

This becomes an issue when a witnesses testifies that they are an honest person or not the kind of person that would commit the charged offense because it effectively opens the door to collateral attacks on their credibility and in certain sex cases, propensity to commit the charged offense.

3. Rebuttal of Defensive Theories

Opening the Door to Extraneous Offense in Sexual Assault Cases |Damon Parrish II

It is well-settled Texas jurisprudence that if a defendant is claiming that the victim consented to the sexual act, he opens the door to extraneous offenses that rebut that theory: “[t]his Court has consistently held that when a defendant raises a defensive theory of lack of intent to wrongfully engage in criminal conduct, an extraneous offense is admissible by way of rebuttal on the issue of intent.” Rubio v. State, 607 S.W.2d 498, 500-501 (Tex. Crim. App. 1980).

Texas courts have also held that evidence of the defendant’s modus operandi is admissible to rebut defense theories that the defendant does not know how to do something or would not do something in the manner charged. This is expounded under the “doctrine of chances theory” that modus operandi evidence can be admissible to show lack of consent, motive, or the manner of committing an offense. Casey v. State, 215 S.W.3d 870, 881 (Tex. Crim. App. 2007).

4. Opening Statement Although evidence is not being presented, it is possible to “open the door” to the admission of extraneous evidence in the defense opening Statement. A defense opening Statement can “open the door” to the admission of extraneous- offense evidence in the State’s case-in-chief to rebut the defensive theories presented in the opening Statement.

Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008) This is not a free-for-all attack against the defendant once their counsel proclaims their innocence in opening Statement, but it can be a direct attack on what was said during opening Statement, things that the State may be able to rebut with extraneous evidence.

This situation is highly fact specific as to what exactly was said by defense, what theories were propounded and what extraneous evidence that the State has. For example: defense counsel States that the defendant could not have possibly committed sexual assault because 10 years earlier the defendant lost his arm in an automobile accident and therefore could not hold down the complaining witness. This creates a defense theory of impossibility. If the State has extraneous evidence that the defendant, within the last 10 years, has committed sexual assault against other people by holding them down using a prosthesis, then this evidence would likely be admissible as modus operandi evidence as well as evidence to rebut the defense theory of impossibility.

5. Rule of Optional Completeness This rule applies equally to both the State and the defense. “The rule of optional completeness provides that when a portion of an act is given in evidence by one party, the whole of the same subject may be inquired into by the other, and any other act that is necessary to make it fully understood or to explain.” Arebalo v. State, 143 S.W.3d 402,407- 408 (Tex. App. 2004). This rule comes from fundamental concepts of fairnessneither party can mislead the jury. When either party presents misleadingly incomplete evidence, the other party can present evidence to show the complete picture and

Opening the Door to Extraneous Offense in Sexual Assault Cases |Damon Parrish II

“un”mislead the jury. The extraneous evidence is limited to only what is necessary to “complete the picture.”

When the defendant “opens the door” to an issue by attempting to present an incomplete picture of an incident, the State is permitted to complete the picture by presenting evidence that would have otherwise been inadmissible. However, there are two limitations to the introduction of evidence in this circumstance: 1. Only parts or items germane to the part or item offered (‘on the same subject’) become admissible; and, 2. The matter offered on the justification of completeness may be excluded under Rule 403 if its prejudicial effect substantially outweighs its probative value.”

Arebalo at 408.

An example of using this rule would be if the State presented a portion of the complaining witness’ Statement which implicates the defendant through some means. The defense would then be allowed to enter the other portion of the Statement if the remaining parts of the Statement puts that witness’ Statement in context and vindicate the defendant or show the portion of the Statement as used by the State is not what it purports to be.

6. Challenge To the Complaining Witness’ Credibility On Cross Examination It may seem that everything the defense does in a sexual assault trial can lead to “opening the door” to otherwise inadmissible extraneous evidence. One way that does not automatically “open the door” to other inadmissible extraneous evidence is attack the credibility of the witness. A challenge to the complainant's credibility on crossexamination does not automatically open the door to extraneous-offense evidence. Bargas v. State, 252 S.W.3d 876, 890 (Tex. App. 2008). One reason for this is that evidence relating to credibility and bias are almost always relevant trial issues.

However, it is possible to “open the door” to rebut a defensive theory with extraneous evidence if the responses to cross examination questions undermine the State's testimony and effectively place in controversy a fact that testimony was offered to prove.

Bargas at 890.

This may seem similar, but it is distinct from other ways of “opening the door” in part because it depends entirely on the responses of the witnesses and not the Statements of defense counsel or the defendant. The Bargas case involved a defensive theory of “frame up” or “retaliation.” The witness’s cross examination responses illustrated not just that the complaining witness was lying but that the complaining witness was lying to “frame” the defendant or to “retaliate” against the defendant. In that situation, extraneous evidence can be admitted showing a similar modus operandi and rebut the defensive theory. Extraneous evidence cannot be offered to bolster the credibility of the complaining witness because of a successful cross examination attack on that witness’ credibility but it can be offered to rebut a defense theory established.

Opening the Door to Extraneous Offense in Sexual Assault Cases |Damon Parrish II

The central theme in how someone can “open the door” is to either rebut specific defensive theories that can be rebutted extraneous evidence or to avoid misleading the jury. In both cases, the extraneous evidence must be limited in scope and use to accomplish the Stated goal of either rebutting the defensive theory or clear up the picture for the jury. The extraneous evidence must be relevant and not overly prejudicial. In a sexual assault case, whether adult or child, extraneous evidence of other sexual assault offenses will almost always be relevant and not overly prejudicial.

It is therefore important for the defense to request all §404 Evidence and all extraneous evidence so a successful defense strategy can be created and the State must provide all extraneous offense and prior bad act evidence to the defense to avoid Brady, Texas Code of Criminal Procedure 39.14 and Rules of Evidence notice challenges. We must be careful with our trial strategy and diligent in our questioning to avoid “opening the door” to the extraneous offenses that we are working so hard to keep out.

Texas Criminal Defense Lawyers Association

Defending Those Accused of Sexual Assault Allegations December 3-4, 2020

Topic: Defending Autistic People: Sex Offenses Speaker:

Mark Mahoney 70 Niagara St Fl 3 Buffalo, NY (716) 853-3700 Phone mmahoney@harringtonmahoney.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Defending Autistic People: Sex Offenses Mark J. Mahoney

DEFENDING THOSE ACCUSED OF SEXUAL ASSAULT ALLEGATIONS HILTON HOUSTON POST OAK BY THE GALLERIA | 2001 POST OAK BLVD, HOUSTON, TEXAS 77056 DECEMBER 3-4, 2020

Contents Introduction

1

Chapter 1: General considerations

3

1.1. A human rights issue

3

1.2. Extraordinary goals and efforts required

4

1.3. Science not sympathy

5

1.4. The family client

6

Chapter 2: The Science – the vulnerability of autistic individuals to engaging in inappropriate and offensive behavior

8

2.1. Our inherited tools for social understanding and social survival

10

2.2. Failure to “see” the social world

12

2.3. Autism: a social learning disorder

15

2.3.1. Typical development of “moral reasoning”

15

2.3.2. Impaired social learning in autism

20

2.4. Without social perception and intuitive social thinking, social norms and taboos are not evident to the person with ASD 23 2.5. Lacking in social intuition, young men with ASD are vulnerable to unwitting engaging in offensive behaviors 24 2.6. Without social intuition, the individual with ASD will not see the implication of social scenes, in life and in photographs.

25 2.7. While autism makes young men vulnerable to unwittingly transgressing social norms, their autism renders them generally “rule bound” and assiduous at following the social rules they are told about 26 2.8. Other vulnerabilities of autism

27

2.9. Credulity and gullibility

29

2.10. Executive functioning

32

2.11. Online addiction

33

2.12. Bullying

35

2.13. “Not learning his lesson”

36

2.13.1. Learning with ASD

36

2.13.2. Abstracting from one situation to the next

37

2.14. “Candor” i

37

2.15. Inappropriate affect

38

2.16. Intelligence is not an antidote to social learning deficits

40

2.17. DSM-5

41

2.18. Epidemiological data and the “misnomer” of “high functioning autism.”

42

2.19. Personal and clinical experience

44

2.20. Research

44

2.21. Counterfeit deviance

47

Chapter 3: ASD and sexuality 3.1. ASD is not related to sexual deviance Chapter 4: The theory of “defense”

49 50 51

4.1. A problem of time

51

4.2. Not all child exploitation offenders are dangerous

52

4.3. Educating the prosecutor and the judge

53

4.3.1. Meeting the prosecution

54

4.3.2. Child Pornography issues

56

4.3.3. The path to viewing child pornography

56

4.3.4. What are they looking at?

58

4.3.5. Critical issues

59

Chapter 5: Social media, chatting, sexting soliciting and the internet context

60

5.1. Teenagers, Sex, and the Internet

61

5.2. The Online Disinhibition Effect

62

5.3. Sexting prevalence

63

5.4. Cybersex

63

5.5. Trolling

66

5.6. Enticement by others

67

5.7. Practice considerations

68

Chapter 6: Childhood Sexual Experimentation

69

6.1. Normative child sex play

69

6.2. ASD and child’s sexual experimentation

72

6.3. Autism and “age discordant” sexual experimentation

72

6.4. Practice considerations

73

Chapter 7: Sting Operations

74

Chapter 8: Interrogation of persons with ASD

76

ii

Chapter 9: Competency and Criminal Responsibility

80

9.1. Theoretical framework incorporating autism

81

9.2. Question of timing

82

9.3. Practice considerations

83

9.4. Lack of Criminal Responsibility

84

Chapter 10: The Role of Treatment

85

10.1. Treatment for Individuals with Asperger's Syndrome

85

10.2. Comparison to sex offender treatment programs

87

Chapter 11: Clinical evaluations in cases of online offending

88

11.1. Different from a “forensic” report

90

11.2. Empiricism

91

11.3. Comprehensiveness

91

11.4. Testing the brain

94

Chapter 12: The Americans with Disabilities Act and Rehabilitation Act Chapter 13: Sentencing

96 100

13.1. A Human Rights issue

101

13.2. Actual sentencing practices in online offending by those with ASD

103

13.3. Disability rights in the sentencing context

104

Chapter 14: Conclusion

106

References

106

iii

Introduction

Many criminal offenses codify social norms, sociosexual rules and cultural taboos

that are not explicitly taught but are presumed to be understood. Many of these offenses, especially sexual offenses, are in a category of crimes for which lack of knowledge of wrongdoing is not a legal defense. However, the rules embedded in these crimes are neither appreciated, nor understood well enough, by many persons with autism spectrum disorder (ASD). They may be intelligent, but nevertheless “markedly impaired” in grasping “norms for social interaction” “in their cultural context.” DSM‐5.

This is a defining feature of autism. It calls for a discretely different approach in criminal defense, an approach which has proven successful in many cases, whereas treating ASD on a par with other mental disorders is largely ineffective.

Prosecution of those who, as a result of a developmental disability, are unaware

of the severe opprobrium for their offending behavior, raises moral and human rights concerns. Autism is a syndrome condition that provides powerful pragmatic, moral, and legal arguments that can succeed in obtaining diversion of these cases from criminal prosecution and its further debilitating consequences, especially sex offender registration. With primary focus on empirically‐based exercise of prosecutorial discretion, the clinician and the defense counsel need to overcome substantial obstacles facing the accused with ASD: the moral panic over child exploitation offenses; bias against those with disabilities; pervasive ignorance about autism and disability rights in the criminal justice system; confusion about the how rules of competency and lack of criminal responsibility apply to the developmentally disabled; irrational statutes and their arbitrary application; and overall focus of criminal justice systems on punitive, rather than therapeutic, justice.

The focus of this paper is on autistic persons charged with online sex offenses.

However the fundamental propositions about ASD and its typical effects on the individual, and its relationship to problems of social competence and other 1

consequences, are broadly and obviously pertinent to offending behavior in other contexts.

2

Chapter 1: General considerations

There are concerns about autism and criminal justice that can be stated

generally, before we get into the particulars of defending cases involving autistic persons.

1.1. A human rights issue

The issue of developmental disabilities, especially for those who are intellectually

intact, does not fit neatly into the prevailing criminal law framework. The treatment within the criminal justice system of persons with developmental and intellectual disabilities must be understood primarily as a matter of human rights. In the United States, we have the Rehabilitation Act, which applies to federal government actors, and the Americans with Disabilities Act, which applies to state governmental actors.

Internationally, we have Article 13 of the UN Convention on the Rights of Persons with Disabilities (CRPD), the UK has the Equality Act 20101, and the Canadian Charter of Rights and Freedoms includes an explicit equality rights guarantee for persons with disabilities.2 The import of these directives is that all governmental officials, with no exception for prosecutors and judges, must meaningfully and substantially take disabilities into account in the exercise of their functions, and follow statutory mandates. There is no direct precedent for these principles’ enforcement as they relate to prosecutors’ or judges’ treatment of accused persons with autism. This is due in no 1

The US is one of the few countries to have signed but not yet ratified the CRPD. Canada has ratified the CRPD, but it is unclear whether predictions of its usefulness have come true (Sala, 2012). At least in the mental health area, it has been observed that “Despite the lack of explicit implementation, the CRPD has helped to facilitate a larger shift in social and cultural paradigms of mental health and disability in Canada” (Hoffman, Sritharan & Tejpar, 2016). My aim would be to have this paradigm shift occur in the US through the confluence of the ADA/Rehabilitation Acts and the CRPD. In the UK, both the CRPD and the Equality Act 2010 have been suggested as sources for an obligation of law enforcement to take autism into account (Holloway, 2018).

2 Convention on the Rights of Persons with Disabilities: First Report of Canada (2014). This report catalogs legislative provision from the Charter to the Canadian Human Rights Act (CHRA) to provincial and territorial enactments protective of persons with disabilities.

3

small part to the fact that, so far, defense counsel have failed to consider these principles, and relevant precedent, and bring them to bear on criminal cases, despite, in the U.S., compelling advisories from attorneys in the Department of Justice Civil Rights Division3 and initiatives from the autism community.

1.2. Extraordinary goals and efforts required

The barriers to an enlightened approach to resolving criminal charges against

those with ASD are too substantial for any routine approach by attorneys, clinicians, or advocates for the disabled. Extraordinary results – dismissal, deferred prosecution – have occurred in some cases, but only with focused extraordinary effort and moral commitment. The demonstrated attainability of what might now be considered extraordinary results in a small number of cases in fact lifts the bar for what results should be sought and what efforts qualify as effective representation by counsel.

Frankly, most attorneys have difficulty envisioning diversion in these cases, but it must be the primary object. (Allely and Cooper 2017).

For clinicians also, workmanlike, even exemplary, clinical reports presenting a

compelling autism diagnosis, a reasoned course of therapy, and a plea for humane lenity simply will not satisfy the degree of empirical input that is needed to overcome the assumptions and heuristics that dominate the current law enforcement approach to these cases.

3

What about thinking of autism and developmental disabilities in the context of civil rights and the Equal Protection clause of the US Constitution? Treatment of those with developmental disabilities as a suspect class or quasi‐suspect class for purposes of the Equal Protection Clause of the 14th Amendment to the US Constitution was foreclosed in City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432 (1985). The Americans With Disabilities Act was enacted in 1990 in response to Cleburne, “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” (Hoge, 2015). Ironically, later efforts to elevate persons with disabilities to a status falling within a protected class were hindered by the passage of the ADA since the passage of that legislation, in 1990, supposedly demonstrated that those with disabilities were not “politically powerless,” one of the considerations for determining whether a class of persons might be protected by the Equal Protection clause. See St. Louis Developmental Disabilities Treatment Ctr. Parents Ass’n v. Mallory, 591 F. Supp.

1416, 1471 (W.D. Mo. 1984). (Strauss, 2011). While that is an assumption disputed by the four‐judge minority in Cleburne, and in congressional findings in adopting the ADA, whatever “power” the developmentally disabled community might have has not been exercised in support of the criminally accused with developmental disabilities, especially those charged with a sex offense.

4

1.3. Science not sympathy

Efforts to date on behalf of those with ASD charged with crimes have generally

been aimed at evoking the sympathy of prosecutors or judges, based on what is objectively a tragic situation for the accused or his family. This approach is modeled on cases where the accused had a history of mental illness or personality disorder, of victimization of one sort or another, of physical handicap, or of myriad other impediments which similarly did not amount to a legal defense, but might be considered mitigating. It may seem dutiful and involve sincere effort. However, it goes neither far enough, nor in the right direction.

First, in the cases of child exploitation or sex offenses or threats, prosecutors and

judges – overwhelmed by the harm and risks they attribute to the charged behavior and concern for possible reoffending – are generally inured to all “excuses” for the behavior.

Second, while such an approach may yield appreciable results in the form of reduced charges or sentences, it does not address the annihilating effects of sex offender registration for disabled persons. Third, without also explaining that many young men with autism never present with the offending behaviors, relying on the diagnosis of autism and how it has made life difficult for the accused enables a negative reaction from prosecutors or judges. Without full understanding, they may actually believe that autism enhances risk, that “empathy deficits” is a trait of an antisocial personality, or that repetitive or compulsive behaviors and rigidity of thinking predict repeat offending.

Indeed, defense counsel have been known to avoid discussing their client’s autism, even as a mitigating factor, because they share these misunderstandings.

So, countless young men with autism have gone to prison, and they and their

families suffer a range of additional debilitating consequences of sex offender registration, because the legal system, though sometimes feeling sorry for them, has not caught up with the science of autism.

On the other hand, when counsel have brought to bear the mounting data and

decades of pertinent research and clinical experience on particular cases, they have gotten better results. They have succeeded in demonstrating persuasively to 5

prosecutors and judges why those with ASD, and with specific social learning deficits and other deficits associated with ASD, are particularly vulnerable to engaging in objectively offensive behavior without any deviant sexual interest or awareness of wrongdoing; that they present no danger and are very unlikely, with appropriate therapy, to be similarly involved in the future. In other words, prosecutors and judges are in fact capable of coming to a distinctly empirical understanding of what autism experts have known for decades and how this addresses their concerns.

1.4. The family client

More than with any other kind of case, defending persons with autism accused of

crimes requires that the family be part of the defense team. The lawyer is going to be heavily dependent upon the accused’s parents and siblings for gathering the developmental history of the client. Lawyers tend to seriously overestimate the ability of clients with ASD to accurately remember relevant events or coherently narrate them, understand what they have been told by the lawyer, or make decisions about the conduct of the defense. Obtaining a thorough developmental history from the family in an organized way is a critical first step for many reasons, but primarily because it may help cure the mistaken impression that this is a working attorney‐client relationship in which the involvement of parents or other advocates is not essential.

The attorney needs to understand how sensory processing issues, literal

interpretation, concrete thinking, and other autistic traits, with which the family is usually intimately familiar, can invisibly negate whatever understanding the lawyer thinks the client has of what is going on. Critically, if the lawyer does not understand the means by which the client has given the usually false impression of understanding the lawyer, the lawyer will be very impaired in assessing competence or explaining how the client, “pretending to be normal,” may have, through “social scripting” or mimicry, or other adaptive means so typical of those with ASD, behaved in a way that lends support to the view that the defendant was not conscious of wrongdoing.

Full understanding of how the client presents himself in different situations can

also help the attorney to envision the types of “negative demeanor” that might have an 6

effect on how the client is perceived by the prosecutor, judge, or jury, as well as the inability to express remorse. (Allely and Cooper 2017)(Haskins and Silva 2006).

The next step is to keep family members in the loop and enlist them to help

ensure that the client understands what is happening, to the best of his ability, and assist in making decisions about the conduct of the client’s defense.

Breakdowns in the attorney‐client relationship and the relationship with the

family ae common in these cases. This typically begins with the failure of lawyers to conceptualize and embrace the need for this family defense team. The first step in this breakdown is the attorney insisting that she cannot talk to the parents about the case in one respect or another, or in its entirety, because their son, not his parents, is her client.

This is not only common, but even occurs in cases where the parents have complete legal guardianship!

Another step in this breakdown is simple failure to communicate with the parents

– and the accused as well. While lack of communication with clients is one of the most prominent ethical problems with lawyering in general, and responsible for a large numbers of bar complaints, in these cases it almost always involves a lack of understanding of autism, and what parents have struggled with before their legal nightmare began. Many attorneys allow themselves to be put off by parents who are felt to be meddlesome and dismiss the parents’ horror at what is described as an inevitable outcome – prison and registration as a sex offender – as simple naïveté about the realities of the local criminal justice system.

The main point of this discussion is that defense counsel generally need a great

deal of help understanding their client and the implications of his autism for all aspects of their representation. They cannot do this without being able to see him through the eyes of the parents and embracing what they have to say about him and his way of seeing the world. Clinicians – whether already involved in treating the accused or hired as consultants or experts – cannot be shy about offering advice to defense counsel about managing the relationship with the client and his family.

7

Chapter 2: The Science – the vulnerability of autistic individuals to engaging in inappropriate and offensive behavior

As described above, the task of the clinician and the attorney for the accused is to

demonstrate how those with autism are particularly vulnerable to engaging in offensive behavior without antisocial traits or disorder, or any deviant sexual interest in the case of sex offenses, or awareness of wrongdoing, and, further, why he is very unlikely, with appropriate therapy, to be similarly involved in the future.

The point of this is not to throw under the bus those who, though not on the

autism spectrum, have serious mental health issues which justly warrant diversion or mitigation. There can never be “too much justice,”4 and our system cries out for “therapeutic jurisprudence” for all (Marinos & Whittingham, 2019). However, it is essential to differentiate autism from other conditions, however much, in a therapeutic jurisprudence, they too would warrant therapeutic, rather than punitive approaches.

One has to remember the downside of zealous advocacy in creative efforts to avoid the worst consequences: it has always been hard to get prosecutors and judges to take seriously the many conditions, other than psychosis and extreme intellectual disability, offered in mitigation.5

So, it is most essential in any case of a person with autism, to make clear above

all else that autism is remarkable in that failure of social perception and intuition is the core characteristic among those with autism who come into contact with the criminal 4

U.S. Supreme Court Justice Lewis Powell wrote for the majority in McCleskey v. Kemp, 481 U.S. 279 (1987) that accepting the argument that race played a significant role in the administration of the death penalty would call into "serious question the principles that underlie our entire criminal justice system." The famous words of Justice William Brennan's dissent noted that this evinced a "fear of too much justice."

5 A partial list of the disabilities that attorneys have attempted to insinuate into the criminal trial would include drug addiction, alcoholism, hypoglycemia, compulsive gambling/pathological gambling disorder, voluntary subliminal television intoxication, intermittent explosive disorder, battered child syndrome, battered spouse syndrome], alcohol amnesia syndrome, amnesia, paranoid delusions, minimal brain disfunction, XYY chromosomal abnormality, automatism, somnambulism, epilepsy, old age, posttraumatic stress disorder (PTSD), delayed stress response syndrome], premenstrual stress syndrome], psychopathic personality disorder, kleptomania, learning disabilities, arteriosclerosis, paresis, trauma, encephalitis, pseudologia fantastica, etc. This litany describes a range of sane people who are unable in degrees to adjust to the demands or the conditions of modern society, including the environment, the social order, economic conditions, and so on. (Mahoney, 1985)

8

justice system. (Constantino, et. al., 2017) This deficit directly impairs the ability to intuit implicit social norms. DSM‐5 This goes directly to the question of moral culpability, and cannot be brushed aside in a system of law whose validity and integrity rests on the concept of blameworthiness.

It is not enough to present conclusions about how autism can render one

vulnerable and morally blameless when it comes to transgressing social boundaries.

There is a huge chasm between our scientific knowledge and clinical experience of autism, on the one hand, and the premises on which law enforcement typically respond to such transgressions, on the other. That chasm can be bridged only by allowing law enforcement, prosecutors, and judges to see for themselves what autism is, how pervasively it affects these young men, and how different their situation is from others as a result. It is not enough to simply assert that people with autism are markedly impaired in grasping social norms, despite their intelligence. To be effective, one must explain why this is so.

Thus, it simply is not enough to explain that those with autism are “socially

awkward,” or “fail to pick up on social cues,” or are “naïve” or “childlike” in some variety of ways. Those not intimately familiar with autism have great difficulty understanding how these traits are different from the deficits they see in other defendants, or how these traits support the ultimate conclusion that a particular accused is not morally blameworthy for his conduct. These common expressions are superficial and fall far short of capturing the cause, and pervasiveness of autism’s effects.

There are many ways to view the biological causes of autism, but the “consensus

is that autism is a behavioral syndrome caused by one or more factors acting on the central nervous system,” (Volkmar, et al., 2008) the primary critical effect of which, in our context, is the disruption of social learning. The typical expressions for this, such as “not picking up on social cues,” fall far short of the reality, and give the dangerously false impression that all the person needs to do is simply “pay attention to social cues” and everything will be all right.

9

The problem goes deeper than that. The brains of these individuals, who have

acted obliviously to important social taboos, stopped seeking social information altogether in early childhood. (Constantino, et al. 2017). And, however intuitive it may seem to the autism researcher, clinician, or parent that this relates to why the person ultimately does not intuit implicit social norms, it is not altogether clear to a prosecutor or judge why this might be so. Here we confront the conundrum that, as hard as it is for persons with autism to understand how those without autism think, it is equally or more difficult for the so‐called “neurotypicals,” to envision what it must be like to think and see the world as a person with autism does.

What follows is an effort to trace step by step the direct line between the

neurological differences in autism and the precise functional deficits that operate prominently in these cases.

2.1. Our inherited tools for social understanding and social survival

In their brilliant introduction to Simon Baron‐Cohen’s seminal work on autism

and theory of mind (Baron‐Cohen, 1995), John Tooby and Leda Cosmides show us that the path to social understanding begins in our own minds: We look at an apple. The apple is red. Or, our brain tells us that the apple is red. But, for those with some form of colorblindness, the apple may be green or shades of gray. Under different conditions, the apple might seem to change colors. We live our lives with the feeling that color is an inherent property of things, yet we have to accept the scientific fact that objects actually have no inherent color, but rather the characteristic of absorbing some light frequencies while reflecting others; and what we perceive as color is the operation of our brain responding to the ability of cells in our retina to differentiate light frequencies, allowing us to attribute color to things. Indeed, we “see” and name colors that are not even in the light spectrum, like brown. We understand that not all living things have color vision and that some living things have better coloration than we do. Seeing color is an invention of natural selection, giving those who have it, among other things, the ability of our ancestors to tell which are the poison berries and which are safe to eat.

10

Just as intuitive as the idea that color is an independent property of objects, or,

say, that the earth is flat, or the sun goes around the earth, explain Tooby and Cosmides, is the feeling that our comprehension of the social world around us is the product of how that world came to us “pre‐packaged” and “acted through the senses and through general‐purpose learning mechanisms to build our concepts, interpretative frameworks, and mental organization.” In other words, in this “folk psychology” they describe, we feel we know the world and how it works because it presented itself to us as infants and our senses and intelligence were enough to teach us what it all meant.

But in the latter decades of the 20th century, scientists made the astonishing

discovery that there existed “face cells” in the brains of monkeys. Cells that were dedicated exclusively to detecting a face – a monkey face, a human face, even a “face” carved on a pumpkin. (Bruce, et al., 1981). And while we assume that we have simply learned the ability to detect that someone has made eye contact with us, the direction of another’s gaze, or that we and they are giving “sharing attention” to some other thing, there are in fact cells in our human brain dedicated to these and other social tasks. Indeed, our survival as a species depended on our living in groups, and for that our brains had to develop tools to “understand and participate in complex social interactions” and did so over millions of years as our frontal lobes tripled in size to perform these advanced social tasks (Baron‐Cohen, 1995). And this, Tooby and Cosmides tell us, gives us at birth a wide array of neurological tools designed to solve adaptive problems endemic to our hunter‐gatherer ancestors. Each of these devices has its own agenda and imposes its own exotic organization on different fragments of the world. There are specialized systems for grammar induction, for face recognition, for dead reckoning, for construing objects, and for recognizing emotions from the face. There are mechanisms to detect animacy, eye direction, and cheating. There is a "theory of mind" module, and a multitude of other elegant machines.

Thus, just as our brain paints the world with color to give us a richer life, it is enabled by “battalions of evolved, specialized neural automata,” each of which “makes its own distinctive contribution to the cognitive model of the world that we individually 11

experience as reality.” We have “theory of mind,” a mind‐reading skill, to “a universal, evolved language of the eyes, which is mutually intelligible to all members of our species [and] can bring two separate minds into an aligned interpretation of their interaction.”

But these neural tools operate so automatically that we are not aware of them, and we mistake the representations they construct (the color of a leaf, the irony in a tone of voice, the approval of our friends, and so on) for the world itself – a world that reveals itself, unproblematically, through our senses.

“Yet,” Tooby and Cosmides write, “even well‐designed machinery can break down.” And those who are impaired in neural areas of the brain which enable us to speak this “language of the eyes,” become blind to the existence of other minds, while still living in the same physical, spatial, visual, and many‐hued world as unimpaired people do.

For beings who evolved to live woven into the minds of mothers, fathers, friends, and companions, being blind to the existence of others' minds is a catastrophic loss.

This then is the key neurological problem of autism: impairment in evolved neurological tools designed to allow us to perceive, understand, and survive in the social world. The practical problem for the advocate is to understand how this conflicts with the “common sense” view that the world “reveals itself, unproblematically, through our senses” and that those who are both percipient and intelligent can figure the social world out on their own.

Because attorneys, and forensic clinicians unfamiliar with this specialized area,

have to know why this is not so, and exactly how this “mindblindness” in autism actually comes about, findings of other seminal research will be detailed below.

2.2. Failure to “see” the social world

The most salient consequence of the disruption of our inherited social tools is

that the person with autism simply does not see the countless cues in expressions, intonation, and body language that give meaning to social interactions and social 12

scenes. In his pivotal studies using eye tracking technology, Dr. Ami Klin demonstrates this concept by comparing the gaze patterns of persons with autism to those of typically developed individuals while looking at a movie scene from “Who’s Afraid of Virginia Woolf” (Klin, 2002).

The typically developed viewers

looked at the faces of the actor speaking, George Segal, the person spoken to, Elizabeth Taylor, and the actor playing her husband, Richard Burton, in the background. Their gaze patterns are not surprising; since the impact of the scene derives from the inviting, flirtatious nature of Elizabeth Taylor’s interaction with George Segal, we expect the viewer to have natural curiosity as to how Richard Burton will react. In contrast, the viewers with autism focused on the mouth of the person speaking, with only a glance toward the body of the person spoken to. Thus, the individuals with autism did not seek out the nonverbal information which would be key to the scene’s meaning and an understanding of the movie’s dynamic plot. Instead, they were trying to capture the words of the speaker to understand what was going on.

13

Similarly, in another scene, where two of the actors remain silent but display

visibly shocked expressions with their mouths open and their eyes wide, persons with autism still looked at the mouths – even with no words coming out to interpret – and disregarded the balance of the actors’ wide‐eyed facial expressions.

Numerous studies replicating this

tracking of mouths over eyes confirm that something happens in the brain of individuals with autism that prevents their eyes from seeking out the social meaning of what they watch (Pelphrey, Sasson, Reznick, et al., 2002; Constantino, et al., 2017). As a result, those with ASD are significantly worse than controls in recognizing emotions in others, a predictor of impairment in perceiving and learning from the social world (Baron‐Cohen, 2006; Chilvers & Skuse, 2008). Similar research shows marked difficulty in identifying emotions and mental states in pictures or from context (Baron‐Cohen, 2006; Rattazzi, Gonzalez‐Gadea, Torralva, et al., 2012).

Arising out of this same phenomenon is the difficulty those with ASD have in

recognizing and distinguishing faces, holding memory of faces, and being able to tell gender and age from faces (Behrmann, Thomas & Humphreys, 2006; Njiokiktjien, 2001).

Autistic individuals tend to see faces as objects, made up of parts; they show less than normal deterioration in performance when matching upside‐down faces when compared to matching right‐side‐up faces (Schulz, et al., 2000).

14

What this research shows is the effect of the autistic brain’s difficulty in

processing the critical nonverbal information which typically developed brains process effortlessly and unconsciously. A variety of brain‐scanning research also shows that the typical autistic brain has a different structure when it comes to the white matter and passageways that normally would convey this type of information.

High Definition Fiber Tracking (HDFT) showing very different pathways in the brain’s white matter of person with ASD on the left (Image of Temple Grandin’s brain).

The effect is as if, in order to avoid utter confusion, the brain simply does not

seek this information, just as in cases of amblyopia caused by slight cross‐eyedness, the brain filters out the signal from the weaker eye to avoid the confusion of ”seeing double” in the area of binocular vision.

2.3. Autism: a social learning disorder

How do these differences impact the individual with ASD? To address this

question, we must first consider what the benefits are to typically developed persons of the reciprocal social interactions they experience.

2.3.1. Typical development of “moral reasoning”

For typically developing individual, social interactions teach our minds how to

instantly read others from the countless nonverbal cues in their facial expressions, 15

intonations, and body language. We develop the intuitive ability to conceptualize how other people feel and what their intentions are. We can predict what others will do, and we can imagine, and do imagine, what their experiences feel like. In a reciprocal way, we also learn about our own feelings and how to express them. Collectively, these experiences give us a sense of how the social world works, and the ability to intuitively navigate social situations. We develop “social intuition.”

The question of how typically developing people develop a sense of “right”

versus “wrong” is one that has perplexed philosophers and researchers since the dawn of history. Socrates famously challenged his ancient Greek society to examine their assumptions about what made certain behaviors “good” or “true” or “just,” often using his questioning to expose contradictions or unsound assumptions others had based on social norms.

This inquiry has continued into the present. Jonathan Haidt, in his book, The

Righteous Mind: Why Good People are Divided by Politics and Religion (2012)surveys decades of widely cited‐studies on moral values in different cultures and how moral codes seem to emerge from emotional impulses, “gut feelings” about what is right or wrong, rather than being arrived at through rational deduction. This concept is known as “moral intuitionism.” Haidt at 4‐7.

Haidt contrasts studies of developing moral development in children, beginning

with Swiss psychologist Jean Piaget and American psychologist Lawrence Kohlberg in the 1960s‐1980s. Piaget and Kohlberg both concluded that children develop the ability to understand right from wrong in stages, corresponding to their level of exposure to others and the need to navigate more complex moral situations. As a person’s experience grows, so does their ability to understand increasingly complicated moral rules. This is what is generally known as “moral rationalism,” the notion that people reason through moral decisions with increasing effectiveness as they age and become more intelligent. Id. at 7‐8.

16

Piaget and Kohlberg agreed that children actively learn moral reasoning skills by

interacting with and perceiving the real world, especially other peoples’ perspectives, and expecialy other children: Kohlberg’s most influential finding was that the most morally advanced kids (according to his scoring technique) were those who had frequent opportunities for role taking—for putting themselves into another person’s shoes and looking at a problem from that person’s perspective. . . . If you want your kids to learn about the social world, let them play with other kids and resolve disputes; don’t lecture them about the Ten Commandments.

Id. at 9‐10. This, children come up with their own rules for social behavior on their own.

These conclusions, Haidt notes, are compelling, but they are not the entirety of the picture. New insight was later brought by research done under the supervision of a former student of Kohlberg’s, psychologist Elliot Turiel: His [Turiel’s] innovation was to tell children short stories about other kids who break rules and then give them a series of simple yes‐or‐no probe questions. For example, you tell a story about a child who goes to school wearing regular clothes, even though his school requires students to wear a uniform. You start by getting an overall judgment: “Is that OK, what the boy did?” Most kids say no.

You ask if there’s a rule about what to wear. (“Yes.”) Then you probe to find out what kind of rule it is: “What if the teacher said it was OK for the boy to wear his regular clothes, then would it be OK?” and “What if this happened in another school, where they don’t have any rules about uniforms, then would it be OK?”

Turiel discovered that children as young as five usually say that the boy was wrong to break the rule, but that it would be OK if the teacher gave permission or if it happened in another school where there was no such rule. Children recognize that rules about clothing, food, and many other aspects of life are social conventions, which are arbitrary and changeable to some extent.

Id. at 11. Turiel discovered that these responses differed, however, when the questions concerned physical harm to others.

But if you ask kids about actions that hurt other people, such as a girl who pushes a boy off a swing because she wants to use it, you get a very different set of responses. Nearly all kids say that the girl was wrong and that she’d be wrong even if the teacher said it was 17

OK, and even if this happened in another school where there were no rules about pushing kids off swings. Children recognize that rules that prevent harm are moral rules, which Turiel deemed as rules related to “justice, rights, and welfare pertaining to how people ought to relate to each other.”

In other words, young children don’t treat all rules the same, as Piaget and Kohlberg had supposed. Kids can’t talk like moral philosophers, but they are busy sorting social information in a sophisticated way. They seem to grasp early on that rules that prevent harm are special, important, unalterable, and universal.

And this realization, Turiel said, was the foundation of all moral development. Children construct their moral understanding on the bedrock of the absolute moral truth that harm is wrong. Specific rules may vary across cultures, but in all of the cultures Turiel examined, children still made a distinction between moral rules and conventional rules.

Id. at 11‐12. But this distinction between moral and conventional rules is also not all‐ encompassing. Haidt, citing comparative anthropological studies between different societies and cultures, notes that even what constitutes the “moral truth that harm is wrong” can vary wildly from one culture to another.

If Turiel was right that morality is really about harm, then why do most non‐ Western cultures moralize so many practices that seem to have nothing to do with harm? Why do many Christians and Jews believe that “cleanliness is next to godliness”? And why do so many Westerners, even secular ones, continue to see choices about food and sex as being heavily loaded with moral significance?

Id. at 15. The answer, Haidt suggests, is beyond rationalism. Different societies have such radically different impulses about hypothetical wrongs. Haida considers research

by University of Chicago psychologist Richard Shweder comparing answers given by Americans and citizens of India to different moral questions. Both Americans and Indians generally agree that it is wrong to kick a dog. But Indians felt it was acceptable for a man to beat his wife after she saw a movie without his permission, whereas Americans generally said this was wrong. Conversely, Americans saw no problem with a young child addressing his father by his first name, whereas in India, this was viewed as 18

severe disrespect. Id. at 19.

This illustrated a large flaw in Turiel’s approach. Turiel had suggested that

children intuitively understood a “bright line” moral rule about harming others, but that “bright line” was cultural, not universal. Shweder’s study, even young children agreed that it was acceptable for a man to beat his wife if she saw a movie without his permission, irrespective of “harm” to the woman.

If Indians said that these actions were wrong, then Turiel would predict that they were condemning the actions merely as violations of social conventions.

Yet most of the Indian subjects—even the five year old children—said that these actions were wrong, universally wrong, and unalterably wrong. Indian practices related to food, sex, clothing, and gender relations were almost always judged to be moral issues, not social conventions, and there were few differences between the adults and children within each city.

Id. at 18.

Haidt demonstrates that human beings unconsciously internalize social customs and norms as moral rules from a very early age, and that we internalize them so strongly that we usually make a moral decision before we develop a rational justification for it. He briefly summarizes his argument as follows: • The moral domain varies by culture. It is unusually narrow in Western, educated, and individualistic cultures. Sociocentric cultures broaden the moral domain to encompass and regulate more aspects of life.

• People sometimes have gut feelings—particularly about disgust and disrespect—that can drive their reasoning. Moral reasoning is sometimes a post hoc fabrication.

• Morality can’t be entirely self‐constructed by children based on their growing understanding of harm. Cultural learning or guidance must play a larger role than rationalist theories had given it.

19

Id. at 30.

Thus, it is true that children are learning rules from their interaction with their peers, and no doubt parents, etc., but these are not universally accepted harm-based moral rules constructed logically from these experiences. Rather, they are absorbing cultural rules that are accepted as universal moral codes, which can be oblivious to the harm, or lack of harm, in the behavior. And what passes as “moral reasoning,” is often “a post hoc fabrication.”1

Thus,it is from thousands of reciprocal social interactions, from birth to

adulthood, that we learn social mores and taboos, and develop common sense as to what is appropriate and inappropriate behavior. We develop intuition as to how the social rules we learn will be applied in novel situations.

2.3.2. Impaired social learning in autism

Next, we must consider, what we would be like if, instead of that life experience

of processing the myriad social cues over thousands of social interactions that gave us our social common sense, we had none of that input, none of that reciprocity, and no developed intuition about the feelings and intentions of others, or the social rules that society sets, or how to apply those rules to every new social situation. This is the “catastrophic loss” described by Cosmides and Tooby. It is very hard to imagine. But it is from this perspective that one has to consider the problem at hand – judging one with ASD who appears to have engaged in proscribed social misbehavior. Mindblindness in autism is the result of the brain avoiding the social cues essential to the social competence we take for granted and mistakenly assume to be innate.

To really explain the scope of the problem for persons with autism, it is very

useful to examine the mental operations on which typically developed individuals rely in their daily lives. As part of his Nobel Prize‐winning work, Daniel Kahneman makes exactly the same connection as autism researchers between the ability to perceive social information and the development of intuitive thinking abilities about the social world. In his best‐selling book recapping and expanding on his behavioral research with 1

Non‐production child pornography laws are a good example, justified on (1) false economics – that downloading images “creates a market” for producing images, when it does not reduce the supply of images – or (2) psychokinesis, the idea that viewing an image of child pornography “revictimizes” the person depicted.

20

Amos Tversky, “Thinking, Fast and Slow,” Kahneman describes the natural human inclination to see the social, the mental, and the psychological everywhere in the world around us. He refers, at p. 76, to the work of psychologists Heider and Simmel in the 1940s: They made a film, which lasts all of one minute and forty seconds, in which you see a large triangle, a small triangle, and a circle moving around a shape that looks like a schematic view of a house with an open door. Viewers see an aggressive large triangle bullying a smaller triangle, a terrified circle, the circle and the small triangle joining forces to defeat the bully; they also observe much interaction around a door and then an explosive finale. The perception of intention and emotion is irresistible; only people afflicted by autism do not experience it. All this is entirely in your mind, of course. Your mind is ready and even eager to identify agents, assign them personality traits and specific intentions, and view their actions as expressing individual propensities. Here again, the evidence is that we are born prepared to make intentional attributions: infants under one year old identify bullies and victims, and expect a pursuer to follow the most direct path in attempting to catch whatever it is chasing.

Kahneman’s observation, as matter of fact that, “The perception of intention and emotion is irresistible; only people afflicted by autism do not experience it,” identifies the core of the problem.

The centrality of the importance of social world perception for Kahneman is

evidenced at the beginning of his book. The first chapter opens with a picture of the face of an obviously angry woman:

21

Your experience as you look at the woman’s face seamlessly combines what we normally call seeing and intuitive thinking. As surely and quickly as you saw that the young woman’s hair is dark, you knew she is angry. Furthermore, what you saw extended into the future. You sensed that this woman is about to say some very unkind words, probably in a loud and strident voice. A premonition of what she was going to do next came to mind automatically and effortlessly. You did not intend to assess her mood or to anticipate what she might do, and your reaction to the picture did not have the feel of something you did.

It just happened to you. It was an instance of fast thinking.

This fast thinking is what Kahneman calls “System 1” or “Type 1” thinking. It is automatic, intuitive, effortless, and often unconscious and impossible to control, and applies to practiced tasks like driving or speaking. Contrasting with this is what Kahneman calls “System 2” or “Type 2” thinking, which involves orderly computation, doing things in stages, and remembering and applying rules; it is controlled, effortful, and logical. He describes how infants less than one year old have intuitive or Type 1 thinking and how this intuition derives from the perception of the social world.

But in describing Type 1 thinking, Kahneman is describing capabilities that a

typical infant would have, but that those with ASD do not have – but that are essential to social survival. And without those perceptions of the other, and the intuitive thinking that can only grow out of that, the autistic person needs to find some other way to navigate the world. One such way is by grasping at taught or intentionally discerned rules: In this context, individuals with AS were said to mediate their social and emotional exchange through explicit verbal and logical means cognitively, rigidly, and in a rule‐governed fashion (Volkmar, et al., 2005).

The enormity of the problem for the autistic individual suddenly becomes apparent when Kahneman tells us that “most of the work” or 90% of what our mind does during the day is this easy, unconscious thinking arising from intuitions and predictive abilities that come from social perception. Clearly, he is talking about Theory of Mind here, 22

something the person with autism does not have. Because the rest of us have that intuition to get us by in most tasks, we expend only a relatively small amount of effort and time on the more difficult, deliberate, step‐by‐step logical thinking that is directed by whatever rules and evidence we have at hand.

For the individual with ASD, this mental workload stands on its head. Without

those perception‐based intuitions which typically developed people can get by with most of the day, for the person with autism, everything social can be an exhausting struggle.

2.4. Without social perception and intuitive social thinking, social norms and taboos are not evident to the person with ASD

It is widely understood and problematic that individuals with ASD see the

concrete and do not grasp or “appreciate [the] unwritten rules of social engagement.”

“Everything that is not explicit, everything that is unstructured, everything that is not defined and expressly supported, is a difficulty for individuals with Asperger’s Syndrome.” Their behavior may appear “inappropriate or embarrassing when, in addition to failing to use these social niceties, they violate clear social conventions” which oftentimes results from an unawareness of other people’s feelings or point of view. (Mesibov, Shea & Adams, 2001).

Lack of awareness of social norms and taboos, which figures into both domains of

the diagnostic criteria for ASD, arises directly and inevitably from the absence of social intuition and its antecedent, “social visual engagement,” with its neurodevelopmental underpinnings. (Venter, Lord, and Schopler 1993; Loveland, 1991; Gutstein & Whitney, 2002). Social competence, including awareness of social norms, is simply a part of social intuition.

Since Hans Asperger’s initial study (1944), the disorder of Asperger syndrome (AS) has been synonymous with individuals who are challenged to attain even minimal social success, although they possess relatively unimpaired language and intelligence. * * * The inability to develop social competence is the leading factor in the 23

failure of most adults with autism to attain even a minimal level of quality in their lives (Howlin & Goode, 2000).

(Gutstein & Whitney, 2002). The authors demonstrate why it is so difficult for those with ASD to acquire intuitive social competence even with instructions on how typically developed persons acquire it.

The consequence of all this is that those with ASD have to be explicitly told these

untaught social rules, as every expert and parent experienced with autism will tell you.

Takeda et al. found intact external (subject to predetermined rules) moral reasoning, but impaired internal (autonomous) moral reasoning, particularly higher‐level autonomous‐altruistic moral reasoning, among children and adolescents with HFASDs relative to typical peers.

* * *

Individuals with HFASDs appear to learn specific behaviors most effectively via explicit, rules‐based instruction; this type of learning appears to apply to the domain of moral reasoning and behavior as well.

(Lerner, et al., 2012). Thus, say these authors, “the social and emotional deficits within ASDs may be salient during incidents of unintended criminal . . . behavior.” Clearly, the problem is not that these individuals do not “know right from wrong,” but rather that what is regarded as right and wrong is often unwritten, untaught, and implicit, and therefore not apparent to many of the most severely affected young men with autism.

2.5. Lacking in social intuition, young men with ASD are vulnerable to unwitting engaging in offensive behaviors

Researchers have noted for some time that, although young men with ASD are

not more prone to criminality than their neurotypical peers, they seem susceptible to a range of sexually offensive behaviors such as “inappropriate courtship scripts, exposing one’s genitals and/or masturbating in public, touching others in a sexual manner, and downloading child pornography” (Mogavero, 2016). Researchers have noted that ASD itself “has a critical role among the minority who commit sexually‐related offenses” because of its effects on understanding social norms (Mogavero, 2016; see also Lindsay, et al., 2014).

24

2.6. Without social intuition, the individual with ASD will not see the implication of social scenes, in life and in photographs.

Social competence for adolescents and adults involves not only knowing

untaught social rules, but also how to interpret social situations in order to apply those rules. The problem for those with ASD is that the same neurological deficits which inhibit social visual engagement in personal encounters also impair the ability to interpret whole social scenes. These individuals are not just missing what we see in others’ eyes or facial expressions; they are missing the entire social scene, in multiple social cognition domains (Baez, et al., 2012). This includes social scenes in photographs.

When Daniel Kahneman wrote that, “The perception of intention and emotion is

irresistible; only people afflicted by autism do not experience it,” he was not guessing.

Using the same 1944 animation on which Kahneman commented, Dr. Ami Klin had demonstrated that those with ASD are significantly less able than their typically developed peers to recognize the social cues in the animation, even when prompted, and even with age. Frequently, they see none of them. (Klin, 2000)

The above research adds breadth to the fundamental eye tracking research by

demonstrating that those with ASD do not just have a brain that avoids seeking the social cues in obviously social scenes. They also have a mind that does not attribute social meaning to things from which the minds of typically developed persons cannot avoid creating a social narrative – even moving geometric objects. For many prosecutors and judges, this stark demonstration of how differently those with ASD perceive the world, so directly tied to social experience and understanding, is a precipitate factor in reconsidering the reliability of the usual intuitions and heuristics of enforcement of child pornography laws.

We have two assumptions when it comes to persons who are viewing sexual

images of underage persons: first, that they are aware of the social rules related to viewing such images and how that behavior is viewed by others; and second, that in viewing such images, persons are cognizant of the social implications of the scene and the perspectives of the persons therein. These assumptions simply do not hold true for those with autism in the face of autism research and clinical experience.

25

2.7. While autism makes young men vulnerable to unwittingly transgressing social norms, their autism renders them generally “rule bound” and assiduous at following the social rules they are told about

The pervasive effects of the inability to develop socially intuitive thinking leaves

most of those with ASD desperate to figure out the important social rules they cannot intuit and which no one has expressly shared with them. DSM‐5 observes that being rule‐bound is a trait under both domains of diagnostic criteria. This is a trait which all clinicians, teachers, and others who work with those on the autism spectrum know well.

Being rule‐bound can be a problem for children with ASD and frustrate their efforts to play with others. They will insist on adherence to rules, whether or not they accurately understand them, and complain about others violating them.

But when it comes to assessing risk for future offending, being rule‐bound is an

asset which prosecutors and judges can rely on. Research shows greater compliance with conditions of supervision by persons with ASD, amplifying the very important point that, despite rendering affected individuals vulnerable to committing online offenses, autism also provides assurance against the risk of reoffending or worse. Based on the typical rigid adherence to rules by those with ASD, once they are told the rules, there is a strong assurance of future compliance with the law: Youth with ASD were also less likely to be charged with probation violations. This may be due to several factors, including increased rule adherence in youth with ASD, the fact that youth with ASD are less likely to be prosecuted, and therefore less likely to serve probation, or because youth with ASD may be more closely supervised by adults than youth without a developmental disability.

(Cheely, et al., 2012). This same research notes the increased frequency with which cases involving those with ASD were diverted: We also found significant differences in outcomes between youth with ASD and comparison youth, such that youth with ASD were less likely to be prosecuted and were more likely to have their charges diverted than comparison youth.

26

2.8. Other vulnerabilities of autism

A lack of visual social engagement leads to mindblindness. Which in turn leads to

failure to develop social intuition, including the ability to intuit social norms.

Individually and in combination this can be catastrophic. But mindblindness can also be associated with other important characteristics of autism. For this we return to "Theory of Mind" ("ToM") and how it occurs.

In his landmark work “Mindblindness” (1995), Simon Baron‐Cohen demonstrates

from the view of evolutionary biology and evolutionary psychology how "the inherited architecture of the human mind is the product of the evolutionary process" and how "the evolution of a mind‐reading capacity" in typically developed individuals is best seen in contrast with autism, "a genetic pathology that causes certain individuals to be born mind blind."

Evolutionary psychology looks at the brain (and thus the mind) as an organ that, via natural selection, has evolved specific mechanisms to solve particular adaptive problems.

(See also Cosmides, et al., 1992). Baron‐Cohen focuses on "one specific adaptive problem–the rapid comprehension and prediction of another organism's behavior," which is "mind‐reading." (Baron‐Cohen, 1995, p. 12). This problem should be viewed in the context of our prehistoric hunter‐gatherer of many thousands of years ago, including the period of "massive neurocognitive evolution" in the Pleistocene epoch when the brain tripled in size to its current dimensions of about 1350 cc. This increase in large part was due to the need for greater "social intelligence,"(Brothers, 1990; Byrne & Whiten, 1988; Cosmides, 1989; Humphrey, 1984), i.e. "the ability to process information about the behavior of others and to react adaptively to their behavior because the vast majority of non‐human primate species are social animals, living in groups that range from as few as two individuals to as many as 200 . . ." and "making sense of the social behavior is staggeringly complex. One needs a powerful device–or set of devices–to make sense of actions, rapidly, in order to survive and prosper” (Baron‐Cohen, 1995, p. 14).

The challenge for the primate was (and remains) to understand, predict 27

and manipulate the behavior of others in the group. . . . In primate groups it is this social intelligence that determines who wins higher status (Baron‐Cohen, 1995, p. 15). Baron‐Cohen quotes paleontologist Richard Leakey: The world of higher primates‐of monkeys, apes, and humans‐is quintessentially a game of social chess, a keen intellectual challenge.

The challenge is keener yet than the ancient board game itself, because the pieces not only unpredictably change identity‐knights becoming bishops, pawns becoming castles, and so on‐they occasionally switch colors to become the enemy. . . . What each individual seeks, of course, is reproductive success: producing as many healthy, socially adept offspring as possible. . . . In higher primates, the greatest reproductive success (in both males and females) is shaped much more by social skills than by physical displays, either of strength or appearance. The complex interactions of the primate social nexus serve as an exquisite sorting system, in which the individuals with an edge in making alliances and monitoring the alliances of others may score significantly in reproductive success. (Leakey and Lewin 1992, pp. 191‐293).

The metaphor of "social chess" came from Cambridge neuropsychologist Nicholas

Humphrey. His idea was that "the chief role of creative intellect is to hold society together," distinguishing between social intelligence and other kinds of intelligence.

Humphrey writes: "Social intelligence" required, for a start, the development of certain abstract intellectual skills. If men were to negotiate the maze of social interaction it was essential, they should become capable of a special sort of forward planning. . . . In a complex society, such as those we know exist among higher primates, there are benefits to be gained for each individual member both from preserving the overall structure of the group and at the same time from exploiting and out‐maneuvering others within it. Thus social primates are required by the very nature of the system they create and maintain to be calculating beings; they must be able to calculate the consequences of their own behavior, to calculate the likely behavior of others, to calculate the balance of advantage and loss–and all this in a context where the evidence on which their calculations are based is ephemeral, ambiguous, and likely to change, not least as a consequence of their own actions. . . . The game of social plot and counter‐plot cannot be played merely on the basis of accumulated knowledge, any more than can a game of chess.

28

. . . . [O]ver and above the cognitive skills which are required merely to perceive the current state of play (and they may be considerable), the social gamesman, like the chess‐player, must be capable of a special sort of forward planning. Given that each move in the game may call forth several alternative responses from the other player this forward planning will take the form of a decision tree, having its root in the current situation and branches corresponding to the moves considered in looking ahead at different possibilities. . . . There may be, of course, strong and weak players–yet, as master or novice, we and most other members of complex primate societies have been in this game since we were babies.

(Humphrey, 1984, pp. 4, 20‐21). Baron‐Cohen points out (Baron‐Cohen, 1995, p. 19) that “not all social interaction is competitive,” and “even cooperative social interaction requires considerable mind reading.”

Like the chess expert, we are social experts. Our social reasoning process has become automatic and effortless–possibly as a result of years of daily practice, possibly also because, right from the beginning of life, the human brain is programmed to automatically and effortlessly interpret social behavior in this way, as a result of millions of years of evolution. Perhaps we never go through a stage of finding social interaction an effort to decode. Rather, we are born understanding social chess, or at least we have many of the basic principles that we will need in order to make sense of and take part in the game. We have some key neural mechanisms that allow us to "see" the solution to a social situation intuitively.

(Baron‐Cohen, 1995, p. 20).

ASD, at its core, is a disruption of these key neural mechanisms. Failure to

understand implicit social norms can bring those with ASD into contact with the police.

Other phenomena can then complicate these encounters: bullying, gullibility, credulity, difficulties in executive functioning, excessive candor, and inappropriate affect.

2.9. Credulity and gullibility

Mindblindness leads to credulity and gullibility in those with ASD. While it creates

vulnerability to all kinds of victimization, this trait leaves those with ASD extremely susceptible to police “sting” operations, even for behaviors they would not otherwise ordinarily engage in. This is a major area where police nation‐wide need greater training 29

in autism.

"Children or adults with Asperger's syndrome can be confused by sarcasm, and

prone to teasing by others, as they are remarkably gullible and assume that people say exactly what they mean." (Attwood, 2007, p.116; Greenspan, Loughlin & Black, 2001). In this context, Attwood defines credulity as ‘a tendency to believe something, usually a highly questionable statement or claim, despite scanty evidence’ and gullibility as ‘a vulnerability to being tricked or manipulated' (p. 102). He notes that people with developmental disabilities are more credulous and gullible than typically developing persons. Low social intelligence and specifically high credulity and gullibility lie at the heart of poor social outcomes for children and adults with ASD (Greenspan, et al., 2000; see also Sofronoff, et al., 2011). The luminary neurologist and author Oliver Sacks, in his assessment of Temple Grandin, "An Anthropologist on Mars" (Sacks, 1990), wrote: In her ingenuousness and gullibility, Temple was at first a target for all sorts of tricks and exploitations; this sort of innocence or guilelessness, arising not from moral virtue but from failure to understand dissembling and pretense . . . , is almost universal among the autistic.

Research traces this dynamic to the ToM deficits in autism and the consequent

lack of social intuition. Development of ToM requires appreciating that others may have different beliefs and intentions, and that those can change in various contexts, or imagining different mental states for oneself or others. This begins in the visual social engagement with caregivers in infancy, stories and experiences involving "make‐ believe," pretending, and deception.

Baron‐Cohen observes several familiar ways in which typically developing infants

and small children experience and develop ToM, where infants with autism do not.

Reddy has shown that very young infants are sensitive to changes in an adult's goal. For example, they respond to the distinction between a give and a “tease" (Reddy, 1991).6 This means offering an object to a child but pulling it back just as the child reaches for it, rendering the action "ambiguous." Typically developing infants of 9 to 18 months, versus infants of the same age with a variety of mental handicaps, will immediately look 6

Reddy also gives examples of 9‐month‐old infants themselves teasing – offering an object and then pulling away.

30

at the eyes of the giver to discern what their intent is. Only a small percentage of those with ASD will (Phillips, Baron‐Cohen, Rutter, 1992). Typically developing children around the age of 18‐24 months begin to pretend and recognize pretending in others (Dunn & Dale, 1984; Leslie, 1987). Between ages 3 and 4, these children begin to understand that people can believe things that are false, and “pretend” that something is true which they know is false. Thus, by this age, typically developing children have the ability to understand, using Baron‐Cohen’s example, the deception at the heart of "Snow White" (Snow White did not know that the nice woman selling apples was really her evil stepmother) and other such fairy tales (Baron‐Cohen, 2000).

This development lags in children with autism who are mindblind. They typically

lack the visual social engagement essential to understanding the minds of others, and thus they are unable to detect pretense and deception. The autistic child's play is characterized by a lack of the usual flexibility, imagination, and pretense found in other children. A wide range of tests, called “false belief tests,” demonstrate that children with autism have a genuine inability to understand that others have different beliefs, or understand false beliefs (Baron‐Cohen, 1995, pp.69‐76). Returning to Baron‐Cohen’s example, they would assume that Snow White knew what they know: that the woman selling apples was the evil stepmother.

As a result of this deficit, those with ASD do not have the ability to see when

someone may be trying to mislead or trick them. Those with ASD endorse traits of credulity and gullibility: Is easily fooled Believes someone when they have lied to them in the past Lent money or things to someone who is unlikely to repay Been deceived by someone who has already deceived them before Done something that has got them into trouble at the suggestion of others Doing unreasonable favours with little chance of return Tricked into buying another child's lunch or treats Believe what s/he is told regardless of source reliability 31

Believe what s/he told regardless of prior deception by same person Tricked into giving up objects of value Believes things that other people would view as clearly untrue Given in to suggestion to say something that could get into trouble for Believes many things that sees/reads in advertisements/internet Believes rumours even when come from unreliable source

(Sofronoff, et al., 2011, p. 362). Lack of protection from peers or close friends also leaves those with ASD particularly vulnerable to exploitation.

Even for individuals who are otherwise intelligent, the severity of social deficits

offsets the supposed intellectual ability to intuit when one is being deceived. This is central to understanding the behavior of those with ASD who fall for “stings” or are put up to offensive behavior by others. It also relates to executive function.

2.10. Executive functioning

Executive functioning consists of those skills needed to assess one’s situation and

manage oneself and one's resources in order to achieve a goal. The concept includes use of a battery of neurological skills such as working memory, fluid reasoning, the ability to envision alternative outcomes from available choices, rationally weigh the risks and advantages of competing choices, the ability to consider different alternative goals or means, and mental control and self‐regulation.

Executive functions (EFs) make possible mentally playing with ideas; taking the time to think before acting; meeting novel, unanticipated challenges; resisting temptations; and staying focused. Core EFs are inhibition [response inhibition (self‐control—resisting temptations and resisting acting impulsively) and interference control (selective attention and cognitive inhibition)], working memory, and cognitive flexibility (including creatively thinking "outside the box," seeing anything from different perspectives, and quickly and flexibly adapting to changed circumstances).

(Diamond, 2013). The ability to engage in “social chess,” and to become competent in 32

navigating complex social situations is the developmental precursor to executive function. Mindblindness has a catastrophic effect on these precursors. Numerous researchers have examined this connection from a number of perspectives (Ozonoff, et al., 1991; Perner & Lang, 2000; Sabbagh, M.A., et al., 2006).

This correlation is very important in (1) understanding behaviors of those with

autism and (2) evaluating competency in the criminal justice context. It can be bewildering to observers how a young man with ASD can persist in the pursuit of an objective, or in the use of certain means, without noticing otherwise obvious signals that the objective or the means, or both, are unwelcome, inappropriate, or illegal. This is most evident in cases of sexting or trolling behavior where which becomes obsessive and perseverative. This behavior always involves ToM deficits in understanding norms and social scenes.

Impairments in executive function also point directly to concerns about legal

competence. Competence implicates the ability to utilize whatever knowledge the accused with ASD has about the legal process, or the facts of the case, and bring it to bear in properly assisting in his defense. It bears critically on the ability to autonomously make important choices, or even participate in making important choices, in the conduct of his defense, or any of the essential decisions that are his alone to make.

2.11. Online addiction

Modern society is generally familiar with the idea of online addictions – the most

common perhaps being online computer games and gambling. Those with ASD seem very susceptible to obsessive pursuit of computer games and we generally understand this in terms of circumscribed interests and repetitive behaviors. In understanding seemingly compulsive or obsessive sexual online behavior, whether it is in the viewing and downloading of underage explicit images or indiscriminate seeking of sexual partners, we do not regard sex as a “circumscribed interest” as understood in the diagnosis of ASD. Interest in sex is a common denominator.

But there may be more going on with those with ASD who become “addicted” to

seeking online social connections than meets the eye. First, social isolation and 33

loneliness can be a powerful driver of behavior. There is a TED Talk by Dr. Rachel Wurzman titled “How isolation fuels the opioid addiction.” She describes how naloxone – an ingredient in Narcan® – which blocks opioid receptors in a part of the brain called the striatum, also disrupts persons’ ability to socially connect. There are naturally occurring opioids in your brain and not having opioid‐receptor binding makes it difficult for us to feel the rewards of social interaction. She then relates the deleterious effects on the brain of "loneliness," the disruption of our need as human beings, to be connected to one another through "authentic, reciprocal relationships” (Cacioppo, et al., 2014; Luo, et al., 2012). “Loneliness creates a hunger in the brain which neurochemically hypersensitizes our reward system. . . . If we don't have the ability to connect socially, we are so ravenous for our social neurochemistry to be rebalanced, we're likely to seek relief from anywhere. And if that anywhere is opioid painkillers or heroin, it is going to be a heat‐seeking missile for our social reward system. Is it any wonder people in today's world are becoming addicted so easily? Social isolation [caused by chemical treatments like naloxone] contributes to relapse.” Her answer to the opioid problem is that “we need to practice social connective behaviors instead of compulsive behaviors, when we're lonely, when we are cued to remember our drug.”

Persons with autism are by nature starved for interpersonal interaction on an

authentic level and desperate to discover their own sexuality. They experience the same urges everyone feels. Dr. Tyler Whitney draws the comparison to ASD: "Individuals with ASD have such long histories of social failure. Desiring to be a sexualized being is a one of the drives in all of us, but people on the autism spectrum don't know how to appropriately meet that need. Being deprived of this reward, we are neurochemically unbalanced and are likely to seek balance anywhere it appears we can find it," like Dr. Wurzman's "heat seeking missile."7

Typically developed persons can easily experience "authentic, reciprocal

relationships" with others, even strangers. Even persons addicted to opioids have experienced emotional reciprocity in their development and daily lives – it is still accessible to them. This is not so for some with ASD. Without therapy, some are going 7

Personal correspondence from Dr. Whitney, of Alpharetta, GA

34

to be especially susceptible to obsessive pursuit of emotional or sexual arousal experiences they are only able to enduringly pursue online.

2.12. Bullying

Children with ASD are often bullied in school and other social situations. Their

social awkwardness makes them a target for this just like those with physical disabilities.

Without essential mind reading skills, they lack the ability to see the malicious intentions of their tormentors and frequently mistake their intentions as “friendly,” as indeed they tend to see any attention at all as being “friendship” (Jawaid, et al., 2012).

They often do not get how the joke is on them, and tend to be compliant or unresponsive, which can inspire further bullying (Wainscot, et al., 2008). A child with ASD has difficulty understanding teasing and can neither reciprocate good natured teasing nor distinguish it from malice (Heerey, et al., 2005; Sofronoff, 2011, p. 368). This research showed that those with ASD endorsed victimization directly related to their social naivete, such as: Been victim of physical bullying Tricked into telling secrets Tricked into taking the blame when not their fault Been taunted or insulted by other children to point of distress Subject of practical jokes when been tricked before by the same person Victim of provocation and retaliated and only one that gets into trouble Treated unkindly by a teacher because of difficulties Excluded from activity by teacher because of difficulties

Sofronoff, 2011, p. 362). “Social vulnerability was found to be strongly and positively correlated with bullying in children with AS” (Sofronoff, 2011, p. 369).

Young man with ASD are subjected to bullying in every social environment.. The

history of bullying can have an effect on their brains, including the memory, and it is a factor which must be explained in connection with any threat of incarceration. In jails 35

and prisons, it is the norm for those with ASD to be bullied, psychologically and physically, and spend inordinate periods of time in solitary confinement for their own protection.

2.13. “Not learning his lesson”

Even parents are bewildered when their son with ASD engages in the same

inappropriate behavior, with similarly catastrophic results, a second time around – or even repeatedly. And the interpretation of this by those who do not routinely work with autism is that the repetition of inappropriate behavior shows willfulness and disregard for the feelings or safety of others, and antisocial traits. Especially where the prior incident(s) resulted in some outcry or law enforcement intervention, it is natural to say, “he should have learned his lesson.”

There are several problems with this reflexive thinking. The learning method for

persons with autism is very different. Persons with ASD have diminished capacity to abstract from one experience to another arguably similar experience, and to abstract from the application of a “social rule,” in one instance to an arguably similar instance, and difficulties in executive function in applying what they have learned. Also, what typically developed persons think are similar situations may be very dissimilar to the person with autism, or in fact.

2.13.1. Learning with ASD

While persons with autism may be very good at rote learning of facts, when it

comes to learning social roles and how they apply in any particular circumstance, very explicit, step‐by‐step instruction is required.8 It cannot be supposed that the “lesson” 8

“For older or higher‐functioning children, the core of the educational program should be an intensive focus on social and communication skills training. Positive actions in frequently troublesome situations may have to be rehearsed and scripted. Concrete social and communication skills–including eye gaze, voice modulation, gestural communication, posture, proximity, greeting behaviors, rules of conversation, and social expectations–may have to be taught in a very explicit fashion. Children whose vocalizations are just emerging and for whom vocal communication is a realistic goal. The setting for the social and communication skills therapy may have to alternate between small group instruction (in which appropriate behaviors can be practiced and supportive feedback can be gained) and naturalistic settings (in which the newly acquired skill can be put to practice or additional problematic behaviors can be identified for practice in the small setting). Successful techniques used for this purpose include modeling of behaviors by an instructor, self‐observation, role playing, and the use of individualized social stories.

The advent of numerous computer interventions and applications adaptable to the individual's situation and levels of functioning are now available” (Volkmar, et al., 2017).

36

we would take from an adverse experience will be a lesson for a person with autism.

Every aspect of the “rule” must be broken down and addressed, and the person has to be tested on his understanding of the principle.

2.13.2. Abstracting from one situation to the next

A substantial component of our social intuition has to do with understanding the

differences between social settings, from very formal to very casual, and from very public to very private. Within this we also understand whether a social rule that is clear in one social setting applies, or applies differently, in a different social setting. This in turn involves a calculus of what social settings are similar in relation to the behavior that is the subject of the rule. This kind of multi variate thought process, intuitive for us, is simply not accessible for one with autism, for whom each social scenario, in each possible setting, with respect to each behavior at issue, must be considered explicitly and anew.

2.14. “Candor”

We have noted that children with autism who are “mindblind” have difficulty

understanding the minds of others, and hence are unable to detect pretending and deception. For decades studies show that in children with autism spontaneous pretend play is severely impoverished or altogether absent. (Baron‐Cohen, 1995 p.77). But, for typically developing children, what comes with understanding pretending and deception is also the ability to deceive others (Sodian, 1991; Sodian, et al., 1992). Here, too, autistic children are lacking. And so, it is frequently observed that persons with ASD are “candid to a fault.”

This can appear as “rudeness” in the unfiltered expression of thoughts which may

be embarrassing or offensive to others, owing to the failure of the person with ASD to be thinking of or discerning the feelings or sensibilities of others. “Your arms are very fat.” “Your skin is black.” But this lack of filtering can also appear in lack of filtering in giving a narrative. Here, again, the person with ASD is not thinking about the feelings or sensitivities of the listener, and therefore does not choose words or content to avoid being offensive. By the same token, the individual with ASD is unlikely to be able to tailor a narrative, or “spin” it to suite the expectations of the listener, to achieve an 37

emotional effect, to distort or deceive, to make an account more interesting or fantastic or believable, or most important, to put themselves in a favorable or even fair light. All such tactics require understanding how others think, and a lifetime of practice at influencing thoughts.

Thus, it is not uncommon to hear parents say that their autistic child “does not

know how to tell a lie.” Indeed, polygraph examiners often confront the problem when preparing control questions for those with ASD based on the assumption that people lie all the time. This is not necessarily the result of being extremely moral, but more simply not having habits and “theory of mind” skills essential to conjuring up a deception with a view toward affecting what another is thinking.9 This is not to say that a child or adult with autism are not capable of saying something that is not true. They are just as susceptible to giving reflexive denial when accused of doing something wrong, to avoid consequences, as small children in response to “Did you steal the cookies?” This involves no calculation of the mental states of the other, or how to alter such states, and requires only childish communication skills. Persisting in such reflexive denials, or giving an exculpatory narrative is usually unattainable.

2.15. Inappropriate affect

Inappropriate facial expressions, including smiling or laughing inappropriately,

are diagnostic indicators for ASD. The original set of diagnostic criteria, outlined by Gillberg and Gillberg in their seminal publication (Gillberg & Gillberg, 1989) refers to “non‐verbal communication problems” including “inappropriate facial expression.” This is also a diagnostic criterion under DSM V10 and is described as “incongruent” or “inappropriate” “affect.” It has long been noted that such non‐verbal communication

9

Nevertheless, it is also said very frequently that persons with autism tend to be very moralistic, and prone to “black and white” thinking. “Black and white” thinking is a component of rigid thinking patterns, which is a specific indicator in section B.2. of the DSM‐5 Autism criteria. To "think of issues as being black and white" was expressly referred to in DSM‐IV as a characteristic of AS in Section B. As a result, persons with autism can be very upset in the extreme if they learn that someone has lied to them, even if the lie was a “white lie” or for a good reason. This is as much tied to rigid thinking as it is to the lack of ability to take the perspective of others.

10 DSM V refers to “2. Deficits in nonverbal communicative behaviors used for social interaction, ranging, for example, from poorly integrated verbal and nonverbal communication; to abnormalities in eye contact and body language or deficits in understanding and use of gestures; to a total lack of facial expressions and nonverbal communication.”

38

deficits are a serious problem in encounters with police, because inappropriate facial expressions suggest to police many negative things other than the actual developmental disability that is its cause, such as lack of remorse, sadism, psychopathy, mental illness: The perceived lack of empathy or remorse is legally significant because it might be mistaken as an indicator of psychopathy. Psychopaths are human predators, while AS individuals are socially naive and immature.

While both give the impression of a lack of empathy, the psychopath actually has no remorse, whereas the AS individual's outward communicative cues simply do not express remorse in expected and anticipated ways.

(Wauhop, 2009).

An article jointly authored by a judge, psychologist, and a law enforcement

consultant describes the problem: “Attorneys and judges must avoid misinterpretation of behaviors and characteristics typical of those with ASDs since these behaviors and characteristics could be misinterpreted as evidence of guilt, indifference, or lack of remorse.”

People with AS often get into trouble without even realizing they have committed an offense. Offenses such as making threatening statements; personal, telephone, or internet stalking; inappropriate sexual advances; downloading child pornography . . . would certainly strike most of society as offenses which demand some sort of punishment. This assumption, though valid at face value, may not take into account the particular issues that challenge the AS individual.

Problems with sensory overload, poor social awareness, semantic misunderstandings, inability to deal with changes in routine or structure, and limited to absent understanding of non‐verbal communications are the very kinds of things that make more appropriate responses to society very difficult for someone with AS.

* * *

What are AS dilemmas for prosecutors, defense attorneys, probation officers and judges? Left unexplained, the person's courtroom displays of laughing or giggling, loud vocal tone, and aloof body language—also inherent to the condition of AS— could lead many judges to conclude that this is, indeed, a guilty and remorseless person. Everything in the suspect's demeanor says so.

The person may very well have no idea of the effect his/her behavior is having 39

on a judge, jury, or even his/her own defense attorney. Even the best defense attorney might see guilt in his/her client's display of behaviors.

(Taylor, Mesibov, & Debbaudt, 2009). Also,

Web sites dedicated to autism and Asperger’s syndrome, like Wrong Planet, are

loaded with personal stories about the prevalence of problematic smirking and laughing at the most inappropriate times like when being reprimanded by a supervisor or teacher or confronting police officers. Parents of children with autism frequently complain about their children smirking or laughing when the parent is angry at them or at other inappropriate times. Books by individuals with autism have described this phenomenon. (Robison, 2008). Almost a quarter of persons with ASD have a “tic” disorder (Canitano & Vivanti, 2007). Tourette Syndrome is one of the tic disorders, but it's not the only one. This can also include laughing or smiling and “smirking” at socially inappropriate moments.”

The failure of the police or a court to consider the extent to which the behavior

of the accused is accounted for by his autism, has resulted in reversals, on pure evidentiary sufficiency grounds. E.g. State v. Suber, 2008 WL 942622 (Minn.2008) (failure to rule out ASD as the cause of indicia of impairment in operating motor vehicle, as opposed to marijuana); United States v. Cottrell, 333 F. App'x 213 (9th Cir. 2009)(reversal for failure to consider evidence of Asperger’s condition in determining the specific intent required for conviction).

2.16. Intelligence is not an antidote to social learning deficits

One of the primary challenges for those with ASD caught in the criminal justice

system is the difficulty for those in the criminal justice system in understanding how those with ASD who are “higher functioning” – intelligent enough to graduate from high school, or capable of earning a college, or even graduate degree – might not on their own have perceived the cultural, social and legal taboos underlying child sexual exploitation offenses and other sex crimes. These include taboos regarding viewing child pornography, and age difference and “age of consent” when it comes to sexual communications and sexual contact between an adult and a minor.

40

As discussed above, it is just generally assumed that intelligence is all that is

needed for developing social intuition and competence. But, in fact, our ability to perceive and understand the social world is an evolved skill which utilizes areas of the brain dedicated to making sense of social interactions. When these social “modules” are disrupted by autism, intelligence alone cannot make up for the difference.

That the deficits in social understanding typical of autism can be just as severe for

those who are also highly intelligent may be evidenced in a number of ways: the consensus of the scientific community expressed in the DSM, clinical experience, the personal experience of “high functioning” autistic persons, and survey data.

2.17. DSM‐5

DSM recognizes the core social learning problem in autism, and that this operates

independent of intelligence. We see this in the first domain of diagnostic criteria for ASD in DSM‐5: A. Persistent deficits in social communication and social interaction such as:

1. Deficits in social‐emotional reciprocity, e.g. abnormal social approach . . . .

* * *

3. . . . difficulties adjusting behavior to suit various social contexts

Later in the commentary to ASD this is explained further: Even those with average or high intelligence have an uneven profile of abilities. The gap between intellectual and adaptive functional skills is often large. . . . Cultural differences will exist in norms for social interaction, nonverbal communication, and relationships, but individuals with autism spectrum disorder are markedly impaired against the norms for their cultural context.

Nowhere is this socialization deficit tied to lack of intelligence. Rather, it is tied to the neurological effect of autism: the failure of the autistic brain to seek and process the social information from which typically developed persons derive the social intuition on which we depend for social competence (Constantino, et al., 2017).

41

2.18. Epidemiological data and the “misnomer” of “high functioning autism.”

The diagnostic features of autism are not limited to any range of intellect. Of

children who qualify for the diagnosis of ASD, 31% have an intellectual disability (intelligence quotient (IQ <70), and 25% are in the borderline range (IQ 71–85). But 44% have IQ scores in the average to above average range (IQ >85) (Baio J, Wiggins L, Christensen DL, et al., 2014).

The inevitable question, “where is he on the spectrum?”, fundamentally

misconceives the problem. There is no single point in any conception of the autism condition which represents the distinctive pattern of differences in the affected areas of development. It is typical for persons with autism to have average IQ but significant variations across “multiple intelligences” (math, language, music, computers, etc.)

(Krasny et al. 2003; Gardner 1999). This is referred to as “asynchronous development” or, better, “developmental discontinuity.” (Wetherby, Schuler & Prizant, 1997). They may have social skills at a level of a small child. This is why the term “mild autism” makes no sense to people who have autism, but only to people who have no idea what it is like to have autism.

The problem can be that the mental graphic image of the autism “spectrum” is

that of a linear horizontal range or intensity, like the spectrum of visible light: red ‐ yellow ‐ green ‐ blue – indigo – violet.

Very autistic < ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐> A little autistic

This is a scale that is sensitive to only one thing, wavelength. But the autism spectrum is really made up of a matrix of characteristics which can present in differing degrees and asynchronous with each other. Imagine rather a color wheel, where the color violet then becomes adjacent to red with purple in between, and with different intensities of color from the outside of the wheel to the inside. In this conception, the autism characteristics and effects are in different colors and can be represented by differing 42

intensities.

Individuals with autism are more prevalent in regions that are rich in jobs in

Information Technology (IT) (Roelfsema, et al., 2012). A survey of almost half a million people in the general population using the AQ test for autism traits revealed that being in a STEM (i.e. “Science, Technology, Engineering, Math”) career showed a likelihood of having ASD, with an AQ score above a 32 cutoff (Ruzich, et al., 2015). Another study in 2015 confirmed a likely genetic link between autism and genius—families that were more likely to produce autistic children were also more likely to produce geniuses.

(Rommelse, et al., 2015) More to the point, those with above average intelligent with ASD have greater problems for social cognition than those with lower intelligence, relative to TD peers of similar intelligence. (Klin et al., 2007; Tillman, et al. 2019) Moreover, the social deficits for those with ASD increase with age. (Tillman, et al. 2019; Matthews et al. 2017).

43

So, actual research concerning intelligence and autism, in very large robust

studies, refutes the suspicion that those with “higher functioning” ASD are not going to have severe deficits in social competence. Hence, it is appropriate to call “high functioning autism” a “misnomer” (Alvares, Bebbington, Cleary, et al., 2020; Tillman, et al. 2019; Prizant, 2012; Saulnier & Klin, 2007).

2.19. Personal and clinical experience

There are many, many stories of extremely intelligent individuals, especially in

the areas of science and math, who lack fundamental social skills, who are known to be, or probably were autistic, as we now understand the condition. Steve Silverman’s popular book, “Neurotribes,” provides many portraits of historical figures of considerable accomplishments who are presumed to have had Asperger’s precisely because of the kind of social ineptitude we associate with “higher functioning” autism, including Henry Cavendish and Nikola Tesla. (Silverman 2015).

Seminal research, aimed at evaluating the experience of accomplished persons

actually diagnosed with autism, observed that even as adults they all experienced “social impairment, withdrawal, difficulties in grasping emotions and understanding implicit rules and social conventions . . .” (Chamak, et al., 2008).

The story of Nick Dubin is that of a man with a doctoral degree who was a prolific

writer on autism, especially on bullying in the context of autism. Because of his autism condition, however he was oblivious to the social opprobrium regarding viewing underage images. (Attwood, Hénault and Dubin, 2014).

Any therapist experienced in the treatment of adults with autism can recount

many stories of individuals with ASD possessed of very high intelligence, and significant academic achievement or professional standing, who have just as much difficulty intuiting social taboos. Most of these men do not land in the criminal justice system.

They are luckier in that their curiosity and interests led them a different way, or they had learned these taboos explicitly, or that they simply had not gotten caught.

2.20. Research

44

Because it is so well understood that deficits in understanding social norms are

prevalent among higher functioning persons with autism, this is not an area where it is easy to find actual research dedicated to giving examples of this. However, in response to the skepticism of a federal judge in one case on this issue, in early 2019, we created a Google Forms survey to obtain data about awareness of males with ASD of critical sexual taboos. The link to the questionnaire was circulated on Facebook pages for autism groups and was sent out by autism organizations, and by Twitter accounts of well‐known persons with ASD who had substantial followings.

Overall, there were 351 people who responded to the questionnaire over a two‐

week period. Of these, 90 were facially qualified as males with an actual ASD diagnosis from all over the US and Canada. 22% had an education level above high school, with nearly half having a bachelor’s degree or higher. 14% had advance degrees. They listed a

wide array of professions.11

The first “taboo” we asked about involved “sexting” involving exchange of

sexually explicit pictures with minors. One quarter of these respondents did not understand the serious inappropriateness of receiving an explicit sexual photograph 11

Healthcare, chemistry research and development, network engineering, management, accounting, copy editor, data scientist, attorney, interfaith minister, educator, psychology researcher, university math professor, foreman, professor, full‐time museum docent, stock trader, digital marketing, gunsmith, software developer, video editor, supervising cashier in New York City Criminal Court, web developer, data analytics, pharmaceutical scientist.

45

from an underage person.

10% of the male respondents with ASD admitted they were not aware of the strong social taboo against viewing child pornography or the harsh criminal prohibition of such conduct. This is based on self‐reporting, so it is likely a conservative number.

These responses were distributed fairly evenly over all educational levels, except no 46

Ph.D. level respondent acknowledged not knowing the taboo related to child pornography. While these data alone validate the point that even very intelligent individuals with ASD may not be aware of strong sociosexual taboos, the obvious follow‐ up question revealed that many of those who stated they did understand these taboos at the time of responding to the questionnaire, acknowledge that they learned this either in the questionnaire itself or substantially later than adolescence, when their typically developed peers would have understood this.

74% of the respondents agreed or strongly agreed that “autism involves social

learning difficulties that can leave individuals with autism unaware of social taboos, despite being intelligent.”

2.21. Counterfeit deviance

An extremely useful way to conceive of the problem presented in some cases

where an individual with ASD faces sex offense charges is in the term “counterfeit deviance,” first used by Hingsburger, Griffiths, and Quinsey in 1991. (Hingburger et al., 1991) Counterfeit deviance occurs when an individual engages in behavior that “topographically look[s] like a Paraphilia but lack[s] the recurrence of and the 47

pathological use of sexual fantasies, urges, or behavior.” Rather, the behavior is explained by “experiential, environmental, or medical factors rather than of a Paraphilia.” (Griffiths et al., 2007). The fourth edition of the DSM acknowledges that in certain individuals “there may be a decrease in judgment, social skills, or impulse control that, in rare instances, leads to unusual sexual behavior” that is distinguishable from Paraphilia and considered a differential diagnosis. DSM‐IV did not adopt any name for this differential diagnosis. This phraseology is not continued in DSM‐5.

Under the Diagnostic Manual‐Intellectual Disability (DM‐ID‐2), “counterfeit

deviance” is a differential diagnosis for Paraphilia. This differential diagnosis must be “based on an evaluation of the individual’s environment, sociosexual knowledge and attitudes, learning experiences, partner selection, courtship skills, and biomedical influences.” Individuals with an intellectual disability who are alleged to have committed sexual offenses may engage in unusual sexual behavior due to challenges in judgment, social skills, or impulse control, which is diagnostically different than Paraphilia. “Such misbehavior can result from a lack of privacy (structural), modeling, inappropriate partner selection or courtship, lack of sexual knowledge or moral training, a maladaptive learning history, or medical or medication effects” (Griffiths, et al., 2007).

While ASD is not categorized as an Intellectual Disability (“ID”) because of the

usual presence of average to high intelligence, there is significant overlap between those with ID and ASD, including similar deficits in adaptive functions and socialization skills, such as “lack of sociosexual skills and knowledge, decreased opportunities for sociosexual behavior, sexual victimization, difficulties projecting consequences, and difficulties recognizing and expressing emotions.”(Griffiths, et al., 2007) This overlap makes the concept of counterfeit deviance equally applicable to both ID and AS because the person’s IQ has no real bearing on this adaptive deficit (Griffiths & Fedoroff, 2009; Kellaher, 2015).

The autism research literature is loaded with depictions of inappropriate sexual

behavior by those with ASD, supporting the common conclusion that this is a problem of the disorder, and not malice, antisocial tendencies, or deviant mindset (Mogavero, 2016).

48

Counterfeit deviance looks at what is causing the behavior that superficially

appears deviant. It is necessary to look at the way in which individuals process the world and what the intention was behind the apparently deviant actions. Individuals with ASD exhibit many of the same factors that influence sexual conduct in individuals with ID. Therefore, when an individual with AS is accused of deviance or a sexual offense, a careful assessment must be conducted to determine if a paraphilia is indeed present, which is not impossible, or if the differential diagnosis of counterfeit deviance applies.

Chapter 3: ASD and sexuality

Adolescents with ASD physically mature with their peers. However, typical

aspects of ASD will influence sexual experience and behavior. This includes sensory interests, hyper or hyposensitivity, compulsiveness, social deficits and naivete about anatomy, sex, sexuality and sociosexual norms. “On both explicit and implicit levels, information about sexuality and sexual codes might not be clear to people with ASD” (Dewinter, et al., 2015).

Young men with ASD are often severely naive sexually, and sorely lacking in

sociosexual information with delayed social maturity (Peterson, et al., 2007). Their typical social rejection and isolation reduce opportunities to obtain sexual knowledge from peers (Brown‐Lavoie, et al., 2014). Studies that compared the sexual knowledge among those with ASD and neurotypicals revealed that those with ASD had less sexual knowledge, and received less sexual education from social sources (parents, teachers) and more from non‐social sources (television, internet) (Mehzabin and Stokes, 2011; Brown‐Lavoie et al., 2014; Ousley and Mesibov, 1991). This can result in inappropriate behavior with regard to courtship and dating since they do not have peers to teach them or to share their experiences with (Mogavero, 2016).

Teens with ASD are significantly delayed in their sexual and social‐emotional

maturity, but they are right on schedule with puberty, and often engage in behavior perceived to be inappropriate (such as touching others, touching their own private body parts in public, and publicly talking about sex in ways that are inappropriate compared 49

to the ways their peers talk about sex) because of their social skills deficits (Ashley, 2007, p. 257). Thus ASD experts express the need for parents to explicitly “broach the subject of sexuality” repeatedly “to ensure that your child thoroughly comprehends the social rules surrounding sexuality,” lest they become “unwitting sexual offenders or vulnerable to sexual victimization.” (Mesibov, Shea, & Adams, 2001).

What gets young adults with ASD into legal trouble is not abnormal sexual

desires, but their tendency to express or pursue normal interests in a manner outside social conventions. In fact, once social and legal rules governing sexual conduct and interests are explicitly explained to the individual with ASD, this problem is generally solved. This is the reason why many clinicians and advocacy groups conduct sexual education and socialization training (Debbaudt, 2018). While grasping social norms does not come intuitively, important rules, and strategies for understanding how they apply in different situations, can be learned in therapy that takes into account their learning abilities.

3.1. ASD is not related to sexual deviance

There is nothing inherent in ASD to make individuals likely to develop sexual

fantasies of one kind or another or to make individuals inclined to sexual deviance of any kind. “A person with AS is intrinsically naive in terms of sexual knowledge and experience. This naivety increases his or her vulnerability, his or her risk of becoming a victim, and the chance that he or she may display inappropriate sexual behaviors.”

(Henault 2014)

Thus, ASD is not a predictor of pedophilia, or any other paraphilic disorder or

sexual offending. Those with ASD are much more likely to be victims rather than victimizers (Klin, 2005). As psychiatrist Richard Kleinmann testified, “having this disorder actually makes improper sexual behavior less likely because individuals with Asperger’s Disorder are not charismatic and are perceived, even by children, as different and bizarre,” and thus, unlikely to entice children even if so inclined. State v. Burr, 921 A.2d 1135, 1142 (App. Div. 2007). Their social deficits render most men with ASD unable to strike up conversations with strangers, even children.

50

Chapter 4: The theory of “defense”

There is enormous pressure on prosecutors to prosecute and seek harsh

penalties for child exploitation cases. The general view is that there are no “excuses” to be had when it comes to these offenses. Partly this derives from the assumptions that prevail in law enforcement that everyone who views child pornography or engages sexually with minors is a threat to children. Judges also respond to a seemingly unlimited public appetite for harsh treatment and ostracization of “sex offenders” presumed to be child predators.

Thus the primary task in defending these cases is to remind prosecutors, and if

necessary, judges, that not everyone engaged in these behaviors is dangerous, and some are morally blameless, particularly those with autism spectrum disorder and other neurological differences which have similarly impaired their ability to intuit the pertinent social taboos or the potential harm from their behavior. As it happens, in a significant number of cases, appreciation of the empirical facts about the nature of ASD, and how it undercuts moral blameworthiness for such conduct, on the one hand, and counters concerns about risk of future offending, on the other hand, has led prosecutors, and judges, to support dramatic deviations from the typical results in the ordinary child pornography case and other cases, including diversion, pleas to offenses not involving sex offender registration, or significantly lower sentences and conditions of supervision tailored to the individual needs of those with ASD. 4.1. A problem of time

Getting the client released pending the prosecution is absolutely critical and

hopefully there will be some diagnostic evaluations already in existence that can be used to explain the condition, and address all these issues. Time before the decision on release may allow for testing of adaptive functioning, such as the Vineland Adaptive Behavior Scales which can be done quickly and gives sometimes shocking information about the severity of deficits related to social competence.

The big problem with defending these cases is that it is very difficult for the

attorney to learn what he or she has to know, before making important decisions about 51

the direction in which to take the case. Moreover, the clinical evaluations that are needed are going to take much more time to complete and they need to be done by clinicians experienced in the diagnosis and treatment of adults with autism who may have a difficult schedule to begin with.

So, one of the very first tasks is to take every step possible to ensure that the

case proceeds along a slower track than might ordinarily be the case. Typically, this will require disclosing why the case is unusual, how autism renders young men with ASD vulnerable to such conduct without awareness of its wrongfulness, and how autism explains that the accused is not dangerous nor likely to offend again. While the first appearance may present an opportunity for this, later opportunities to do this should be pursued as an ongoing effort to get the judge on board with a lengthier timetable.

4.2. Not all child exploitation offenders are dangerous

It is well understood that that viewers of child pornography are not monolithic.

The Department of Justice identified three different psychological “typologies” of viewers of child pornography, including “Recreational users” who were not considered problematic, and “At‐risk users” who would never have looked at child pornography but for the Internet, and “sexual compulsives.” Only the last category was identified as “hav[ing] a specific interest in children as sexual objects.” (Wortley, Smallbone, 2012).

The U.S. Sentencing Commission observed that “not all child pornography offenders are pedophiles, and not all child pornography offenders engage in other sex offending,” (U.S. Sentencing Commission, 2012). The discredited “Butner Report” noted that it “is indisputable that certain factors (e.g., psychiatric disorders, developmental and psychological vulnerabilities)” may be at work in some cases, but that “the influence of these factors on child pornography offenders is unknown.” But it recognizes that a “small minority” of child pornography offenders “are motivated by non‐sexually deviant interests.” (Bourke & Hernandez, 2009).

Very little research has been done on the actual size of that “small minority” but

the best research available, (Babchishin, et al., 2015), indicates that those offenders most likely to be in the completely nonproblematic “child pornography only” viewers

52

are the developmentally disabled.12 And autism especially provides an especially strong and scientifically based explanation as to why individuals in this group might be looking at child pornography without being motivated by deviant sexual interests. They are just looking at a continuum of sexually oriented images without appreciating the socially and culturally inculcated boundaries that are reflected in the child pornography laws or concepts like “age of consent” age of development and age‐appropriateness of interests.

Notwithstanding all of this, there is generally no legal structure and no internal

policies aimed at diverting those who present no danger, and perhaps have no knowledge of wrongdoing, from the harshest consequences. Part of the reason for this is that, even if prosecutors were to accept, in principle, the idea that some putative offenders should be diverted from the system, they are very concerned about the Type II error of believing that offender is not dangerous when in fact they are, and thus do not trust themselves to decide, in effect what “excuses” are good and what “excuses” are not, in general, and in individual cases.

Secondly, prosecutors and judges have the bias of thinking that the diagnosis of

autism is subjective, and “everybody is a little autistic,” and therefore diagnoses, especially those attained after the arrest, are not persuasive.

4.3. Educating the prosecutor and the judge

Therefore, the task is to help prosecutors and judges educate themselves. This

begins with ensuring that clinical evaluations thoroughly establish the diagnosis of autism and address all of the problematic behaviors in the case from the viewpoint of autism. Essential to this is measuring the severity of the autism related deficits in the individual case to provide support for the view that the accused might not have understood the wrongfulness of his actions.

12

Additionally, prosecutors and judges naturally think that if autism is not a curable

The study identifies a number of “meta‐variables” detected in the source studies that very likely correlate to or rule out autism: cognitive distortions, "victim empathy deficits, callous, emotional identification with children, antisociality, employment problems, hostility, internet preoccupation, loneliness, etc. However, these data have not been analyzed with a view to correlation of ID/DD to the lowest risk category.

53

condition, and that if those defendants have intense interests and engage in repetitive behaviors, then it is expected that they will continue in this behavior, or in some other inappropriate or dangerous sexual behavior. So here it is essential to explain the therapies which are available, how different they are from the therapies which are appropriate to typically developed offenders, and relatively much more successful, and how other aspects of autism, such as adherence to rules and the capacity for emotional empathy provide assurance of future compliance.

As this volume and chapter demonstrate, there is far more to learn about autism

and its effects than a clinician is going to be able to put into a report. It is never sufficient or wise to simply hand over clinicians reports and test results, no matter how thoroughly done. Even if the clinical report identifies seminal books, treatises, and research articles, the prosecutors are unlikely to seek out this material. Therefore defense counsel need to produce materials for the prosecutor telling the rest of the story of autism, and explaining the research and experience outlined in this volume, and presenting policy statements from autism organizations and researchers that will help in the education process. Community support from autism organizations should be sought, and brought to bear. Anything which can be done, such as videos of the client, to assist the prosecutor, and possibly the court, to understand the mind of the accused, and his disability from the perspective of the parents and clinicians and teachers, must be considered.

4.3.1. Meeting the prosecution

At the initial stage of a case effort should be made to get a commitment from the

prosecutor to sit down with defense counsel and the clinician after all this material has been provided. Often more than one meaning is necessary, later meetings including supervisors or elected prosecutor or the United States Attorney for that district. On a moral level is the question of how we treat people who, because of a neurological disability, did not understand the wrongfulness of what they have done. On a policy level there is an obligation of all government officials to take disabilities into account in exercising their discretion. These are compelling reason to explain why the elected prosecutor or the appointed U.S. Attorney or otherwise top level prosecutor must be 54

involved.

It is important that these meetings not be negotiations about the strength of the

evidence, the possible exclusion of evidence, the applicability of sentencing enhancements, and so on. Rather, the focus of such a meeting should principally be to supplement the written submissions on the science related to autism and the empirical evidence of how severely it has affected this individual’s perception of the social world and its taboos. The availability and success of treatment and the inappropriateness, dangerousness, and tortuousness of incarceration for one with autism spectrum disorder are important topics. The disproportionate impact of sex offender registration on those with disabilities and their families is important.

The only limit to what is presented is the imagination. But it is important not to

just duplicate what has been provided to the prosecutor previously.

It is essential in preparing for such a meeting and at such a meeting, to actually

listen to the concerns of prosecutors and law enforcement and address those concerns with empirical evidence related to the defendant’s autism condition. The pervasiveness of the effect of autism, in the decades of research available, all but assures that there is an empirical or experienced based answer to every concern raised in most cases. This is why it is essential to have an expert psychologist or psychiatrist with significant clinical and diagnostic experience with adults with autism in attendance.

There is now significant experience, contrary to all expectation, that prosecutors

and judges and probation officers are capable of responding humanely and appropriately when thoroughly and systematically informed about ASD and its effect on a particular accused: how individuals with ASD may unwittingly engage in criminally sanctioned conduct, with no interest in sexual contact with children, and how their condition makes them less likely to reoffend in the future, they. Results have included cases of non‐prosecution, pretrial diversion, reduced pleas not requiring sex offender registration or incarceration or at least sentences that are dramatically reduced compared to the norm – most often to probation.

55

Let us turn to specific issues in encountered in cases of online offending by

persons with ASD. 4.3.2. Child Pornography issues

As noted at the outset, the challenge here is demonstrating persuasively to

prosecutors and judges that autism explains why those with ASD, and with specific social learning deficits and other deficits associated with ASD, are particularly vulnerable to engaging in objectively offensive behavior without any deviant sexual interest or awareness of wrongdoing, and very unlikely, with appropriate therapy, to be similarly involved in the future. This is not a legal defense. But it is a precursor to the favorable exercise of discretion by the prosecutor or judge to accommodate the disabled accused with diversion from the criminal process, or avoiding sex offender registration, or at least imprisonment.

Implicit in this is the view that it is very unlikely that much will be accomplished

at the trial of a child pornography case. This is not to say that it might be necessary in some cases, for example where the highest charge is one of “distribution” based upon unwitting sharing of images in a shared directory on one’s computer which participates in a “peer to peer” filesharing network. This is will arise where the prosecution leaves the defense with no choice but to try the case, perhaps with the hope of an acquittal on the basis of lack of criminal responsibility, something exceedingly difficult to accomplish.

The focus here is on the majority of cases where the best hope is prosecutors and

judges coming to understand that a particular accused with ASD is substantially lacking in moral blameworthiness and future dangerousness and may safely be spared the typical harsh treatment. This begins with ensuring that the prosecutor is fully educated about the features of ASD and the severity of its presentation in the accused.

It has been described already how those with ASD can be severely lacking in

social intuition and the understanding of social taboos. It is easier for prosecutors and judges to believe that a young man with ASD might not appreciate the taboo against underage sexual images if they understand how completely naïve they can be sexually.

4.3.3. The path to viewing child pornography

56

“It is important to state that an interest in illegal pornography is not an

anticipated characteristic of adolescents and adults who have Asperger’s syndrome.”

(Attwood, Henault and Dubin, 2014 p. 130). Nevertheless, there are different ways a young man with ASD is vulnerable to entering paths that may lead a person with ASD to child pornography. Experience with many of these cases shows that for those with ASD, the path to child pornography does not begin with pursuit of sexual images of children on the internet. The exception is for children simply seeking naked pictures of other children when they are children themselves. While typically developed children do this too, the problem for those with ASD is that they may not “grow out” of this habit.

In many cases the developmentally disabled child has been lured by an older

person with these curious images that may seem fascinating rather than revolting. Or these images might be posted in chat rooms about computer games or topics attractive to those with ASD, such as Japanese style animations (anime, hentai, manga) or "furries" or "My Little Pony," etc. Most often it seems that it is the exploration of the online world of pornography that inevitably leads some AS individuals to exposure to child pornography.

Put aside any illusion that because these young men with ASD are so naïve

sexually that they are only looking at photos and videos of naked teenagers posing seductively. As observed before, such cases are not investigated or prosecuted. In practical terms, it is almost unheard of for a child pornography prosecution to be brought without for online viewing of explicit and sexualized images prepubertal children, except for the sexting situation.

But here is the important thing. While browsing the internet for sexual material,

even perhaps knowing that mere possession of sexual images of post pubertal children is unlikely to result in prosecution, and is not “deviant,” typically developed males are still likely to see a “yellow flag,” if not a “red flag,” when coming upon this material. He may hesitate, because he knows that he is nearing a boundary.

The young man with ASD, socially isolated, sexually naïve and yet intensely

curious about sex and romance turns to the Internet for his education. The problem is that when it comes to these boundaries, he Is not going to see these flags. He is likely to be aware of the problems of age difference in relation to personal contacts with 57

younger persons. But a certain percentage of young men with ASD will be completely unaware they have crossed any moral or legal line when it comes to looking at sexual images of under 18‐year olds.

Young adults with AS might be more interested in looking at photographs of

younger individuals because of their own social and emotional immaturity, resulting in AS individuals seeing themselves as younger than their calendar age. Their severe social limitations with same‐aged peers confirm this self‐image. These boundaries are unknown to them unless they have specifically been told. They simply do not have the social awareness to intuit the rules that others have learned from social interactions.

“The lack of sociosexual knowledge is always the major issue.” (Henault 2014 p. 200) Unfortunately, most parents would not think to discuss these boundaries or child pornography with their son with ASD either because they see him as asexual or are afraid that informing him of the existence of such images will spark his curiosity and lead to an obsessive pursuit of such images.

When it comes to pre‐pubescent or younger individuals, these same factors come

into play. The individual with ASD is no more likely to see a boundary based on developmental stage – pubescence and attendant stages of breast and physical development, the social (and possibly even biological) implications of which they typically do not understand ‐ than the arbitrary ages of 16 or 18 used to define the upper child pornography boundaries. Individuals with AS typically show very poor anatomical and sociosexual knowledge. Pubescence is deliberately masked in so much online material by removing pubic hair, that this is a very blurry distinction. Whatever the significance the lack of pubic hair means to the average person viewing it in images or in real life, this tendency further blurs age‐based distinctions for the individual with AS. However, interest in prepubescent images is where suspicion of deviance arises.

4.3.4. What are they looking at?

Most frequently, when questioned about what actually interests them in such

images, young men with ASD, who are not often good with such questions, will simply say that it is the sexual body parts they’re looking at, more or less the common denominator of all viewing of erotica. They do not, it seems, as a pedophile might, see 58

the child in these images as a child. As several defendants with ASD have reported when asked, they just see sexual “body parts.”

This should not be surprising in light of what we now know about how differently

those with ASD actually “see” the world. The most salient deficit in autism is in the capacity for “social visual engagement” (Constantino, et al. 2017). Even with seemingly appropriate “social gaze” those with ASD are still not processing social information (Georgescu, et al. 2013). With such a huge difference in the way persons with autism see the world, why would we even suspect that a young man with autism “sees” the same thing in an erotic image that a typically developed persons sees?

It is important to repeat in this context that persons with autism for example

have difficulty telling age or gender from faces or identifying “pleasant” or “attractive” faces (Behrmann, et al., 2006; Njiokiktjien, et al., 2001; Murakami, et al., 2018; Roy, et al., 2016). If persons with autism see faces in parts, not the whole face (Schulz, et al., 2000) and are “mindblind” to the social cues in images or social scenes (Klin, 2000; Baez, et al. 2012) it seems far less likely that they see the gestalt of the child in social context in these images.

Stark evidence of this difference in perception arose in a case where the

defendant with autism had been chatting on Instagram with a person purporting to be a 16‐year‐old girl who promised a photo of herself and a friend. After receiving an explicit photo showing a full image of two girls no more than seven years old, he responded, “are you the one on the right or the left?”

4.3.5. Critical issues

This last feature is critical, because it is not enough to explain why those with

autism may not understand the social taboos related to viewing child pornography.

That explains why a “red flag” would not go up when encountering this material and viewing it. But when typically developed persons actually see child pornography, which in the ordinary case now includes images of infants and toddlers, feelings of disgust and revulsion are the rule. This makes it very hard to understand that one who appears to be seeking out this material (which most likely came in a mass download of files from a “peer‐to‐peer” network) is not attracted to it, nor pathologically callous to the abuse, 59

pain and harm it depicts.

The explanation lies in the fact that, hard as it is to grasp, those with ASD whose

social learning is so affected that they are unaware of these taboos to begin with, are simply not seeing the social attributes and implications of what is presented in these images. Time after time in these cases the answer is the same: until asked about it after arrest, these young men rarely gave a thought to how these images came about or why they were made or how the children in them might feel about this or be hurt by it.

Often, when they gave it a thought, they did not think it was real, or that these were actors or some variety of “selfies.” When it is all explained to them they are generally horrified at what they have done, even though they do not naturally display this.

Correlatively, a very important point must often be reiterated. The disgust and

revulsion of the typical viewer over these images is the product of a brain that seeks social information, in fact cannot shut it out, and the resulting socialization that occurs I in the cultural context. It is not somehow innate. The typically developed viewer cannot fail to think about the social story behind the images and have the sense of viewing something actual. But this is simply not the case naturally with individuals with ASD who are so seriously affected in their social learning that they are oblivious to these taboos to begin with.

Chapter 5: Social media, chatting, sexting soliciting and the internet context

Cases involving online communications with minors exchanging photographs are

more challenging than simple cases of possession of child pornography. Requesting that a minor send sexual photographs, however common among children, can be charged as “production” of child pornography or also “solicitation” under U.S. federal laws, carrying mandatory minimum sentences of 15 and 10 years respectively. However common “sexting” may be among minors, when it involves an adult encouraging a minor to send photographs it is considered predatory and a precursor to “hands on” offending. If the children seeking sexual experience on the internet have underlying emotional, social, and psychological problems, things these defendants do not intuit or understand, their 60

behavior can be seen as even more egregious.

Defending such cases requires explaining the Internet environment in which this

occurs and the effect of that environment on the youth who spend so much time there, both typically developed or developmentally disabled. It is also necessary to objectively evaluate not only the behavior of the accused but also the behavior of his minor counterparts. While any discussion of the behavior of children evokes reflexive accusations of “victim blaming,” the ultimate point is that both the defendant and those minors with whom he is engaging are the victims of the Internet environment.

At alarmingly young ages, many children are seeking sexually charged

experiences on the Internet. Emotionally identifying with these younger individuals, and unable to socially connect to their peers, young men with ASD seek to participate in this online environment, generally oblivious to how seriously this is viewed and the potential harm to these children. While their older age exposes them to criminal prosecution, they are less mature, as a result of their autism condition, than the children and teenagers they communicate with. Other aspects of their autism condition are pertinent to understanding their obliviousness, and their sometimes‐unfathomable persistence in these online pursuits.

The challenge here is to help prosecutors and judges to consider the matter from

the viewpoint of the developmentally disabled person who is extremely immature and perceives these children as equal, willing participants in widespread activity that is most akin, in their minds, to online computer games. As they remain “mindblind” to the social implications of these encounters, until explicitly brought to their attention.

5.1. Teenagers, Sex, and the Internet

Today’s teenagers have never known a world without the internet. They spend

an enormous amount of time each day using entertainment media (e.g., computers, smartphones, electronic devices, television, etc.). This dramatic shift toward this technology has had an equally dramatic impact on sexual exploration among teens, and on what is considered by them to be acceptable sexual behavior, at least on their phones and the Internet.

61

Parents are unable to effectively supervise the online presence of their children

and teenagers, many of whom see the Internet and cellular world as a free range where they can find and exchange sexually explicit photos, videos, and text messages. Sexting (sending a sexually explicit text or nude photo via text message) is ubiquitous, and not considered to be a “big deal” by adolescents. Some teenagers even use sexting for as mundane a purpose as countering boredom (McEachern, et al., 2012). But virtually none of these children would engage in the same or equivalent activity openly. Why they are doing this should help one to appreciate why those with autism, who attempt to participate in this activity, are also so oblivious to how seriously inappropriate their behavior would be viewed.

5.2. The Online Disinhibition Effect

Typically developed people say and do things on the internet that they would not

ordinarily say or do in person. The explanation for this is what is called the “Online Disinhibition Effect,” coined by John Suler. (Suler, 2004). Suler’s explanation for why people engage in behavior online that they would likely not even consider in their offline life boils down to this: the Online Disinhibition Effect creates the sense of an anonymous environment where “anything goes,” nothing matters, everyone is equal, and if trouble does arise, it is easy to escape. While this is true for all Internet users, it is especially true for adolescents whose underdeveloped brain does not fully grasp the impact their online sexual behaviors. Suler's framework is most useful in understanding why even preteens would be involved in explicit sexual role play or sexting, thinking they were probably never going to meet the person they are "flirting" with online.

This all applies forcefully, but slightly differently, for those with ASD. They do not

have culturally fostered “inhibitions” needing to be dulled. They are not escaping the rules of the social world, which they do not “get.” But, like their typically developed peers, they also see no limitations on the internet, where there are none, and where all of Suler’s principles apply, especially that “everyone is equal.” So, it is no surprise that those with ASD are significantly more likely to talk about sex on the interned (46% v.

27%), four times as likely to show their genitals or bottom to others, more likely to send naked pictures or movies of themselves (6% v. 0%), twice as likely to send naked 62

pictures or movies of others (8% v. 4.2%), and almost doubly likely to engage in Cybersex (12% v. 2.2%) (Dewinter, et al., 2015).

This translates to huge risk for these individuals which is not mitigated by any

organized efforts to ensure that the developmentally disabled are educated as to issues of sexuality and risk on the Internet. The Internet is a place where they feel comfortable without the stress or much of the confusion entailed in personal interaction, and it is a trap for them to fall in to. We have to understand what they see here and how they interpret what is happening in this virtual context.

5.3. Sexting prevalence

Among 606 high school students in Utah in 2013, almost twenty percent reported

that they had sent a sexually explicit image of themselves via cell phone. Double that admitted to having received them. Among those who received a sext, over 25% had forwarded the picture to someone else (Strassberg, et al., 2013). This is a big jump from a similar study of 800 twelve‐to‐seventeen‐year old’s in 2009 where still 4% sent sexually suggestive images of themselves by phone while 15% received sexts also containing images of someone they knew (Lenhart, 2009). The report’s author contends that these images are shared as a part of, or instead of, sexual activity, or as a way of starting or maintaining a relationship with a significant other. And the images are also passed along to friends for their entertainment value, as a joke or for fun. Though typically developed they do not foresee how badly this can go for them, or for those to whom they send pictures.

A national telephone survey of 1560 internet users between the ages of 10 and

17 in 2012 found lower overall numbers, perhaps for reasons of methodology, but found that even children as young as 10, though in relatively small numbers, admitted appearing in, creating, or receiving nude or nearly nude images (Mitchell, et al., 2012).

5.4. Cybersex

Cybersex is generally understood to refer to an online interaction between two

or more people who exchange sexually explicit message, photos, or video footage for the purpose of self‐gratification. Cybersex is like sexting except that it is not restricted to 63

text messages.

Cybersex can occur through public and private online chatrooms, online video

games, email, cellphone applications, telecommunication programs, Instagram, SnapChat, interest groups and “fandom” sites.

Cybersex includes an array of “random chat” sites, like Omegle. These sites

randomly pair strangers for text or video meetings where explicit sexual conversations are a common thing, from which participants can migrate to other meeting places where they can intentionally continue communicating, like Skype or cell phone messenger applications like Kik or WhatsApp.

While what happens routinely on Omegle is shocking to any adult, adolescents

take it in stride as simply a place where they can anonymously explore sexual interests in a way that they would not, or can not, pursue in their “real” worlds. This is where many young men with autism encounter minors who appear to them as willing and equal participants in whatever follows.

Different forms of “role play” commonly occur on the Internet, and may follow

from the above types of encounters. Some are structured around existing online games like World of Warcraft where players create their own characters. Also, some engage in “fandom” role play, where the players create an improvised, original storyline for an already existing character they have adopted from a fictional source. Often these games become sexually explicit. Other role play is explicitly sexual, but often with players adopting scripted roles such as “Submissive/Dominant,” and “Master/Slave” or “Daddy/Baby.” This may involve playing games such as “Truth or Dare.” These are all vehicles for explicit sexual fantasy sometimes about meeting personally, which rarely happens, and the exchange of explicit photographs.

The problem for young men with autism in this kind of role play is primarily that

they do not see how inappropriate it is for them to be involved with minors in this fashion. They are also not good at it, and this leads to another problem that requires explaining terms used earlier “social scripting” and “mimicry” in the context of autism.

64

While individuals with ASD do not have the capacity to learn the social skills we

acquire from productive and reciprocal social exchanges, they do have other skills with which they try to overcome this. One skill those with ASD learn is to mimic the expressions of neurotypical individuals. They are very quick to pick up on the wording and expressions and gestures of others that seem to work in the environment. This is related to what is generally called “social scripting,” Tony Attwood, describes as “borrowed phrases.” (Attwood, 2007 p 39‐40) Calculated mimicry of these successful representations of what is considered socially acceptable in a particular milieu helps mask their social confusion. (Ormond, et al., 2018)

The young man with ASD has spent countless hours observing or experiencing

others play these games and seeing the Dom or Sub get the prize of a photo from the other. As those with ASD learn to do, he borrows “scripts” from this experience and tries to mimic the behaviors he has seen in order to play the game. However, he still lacks the ability to take the perspective of the other. He does not understand the psychosocial dynamics, the irony, or the humor or teasing that can keep this interesting for others. So, the game deteriorates into tireless and sometimes mean or threatening requests for pictures or videos until the other person gets bored and moves on.

A big problem here is that in mimicking behaviors of skillful role players, and

adapting their scripts, however ineptly, the young man with ASD will come off as far more clever and manipulative than he really is, That has used “sophisticated language” or had been “manipulative’ or “aggressive” and therefore must have as social capabilities, or antisocial tendencies, above what the evaluation or testing suggests. On close examination, they are not really understnaindt thei individual situations and the mistakes that show up often expose the childishness of it. The tireless repetition over what can be tens of thousands of lines of chat exhibit the inability to adjust the approach to each different person.

Roleplay can be liberating for those with autism who lack personal social

connections in “real life.” Such encounters and efforts to connect on social media like Instagram can be pursued obsessively with very little capability to assess the utility or appropriateness of the behavior, or understand how short it falls from typical social interaction. While this persistence can appear pathological, it needs to be interpreted in 65

light of autistic traits of obsessiveness and lack of executive function.

Sometimes, these encounters can become intense in these cases where someone

is encountered who expresses feelings of alienation, depression, or self‐loathing, or who is abused or engages in self‐harming behavior. This can be very attractive for the autistic person who does not experience this emotional exchange offline. Despite true concern for the welfare of the other person and mutual expressions of “love,” the young man with ASD may not be able to resist using these exchanges also to request explicit pictures, again using “scripts,” like telling a girl she is beautiful – which he really might think is so even if others may not – to persuade. This too can be interpreted as antisocial behavior. In reality, the young man with autism most probably has less understanding of the social context and implications of the situation than the younger person does.

5.5. Trolling

Internet “trolling” is very complicated social behavior, heavy on irony, ambiguity,

and inside jokes, with bad behavior hinted at or shielded in plausible deniability. It existed on this form on the Interned even before the World Wide Web. (Donath, J., 1996). Trolling behavior on the internet seems to have a strong attraction for some young men with ASD, to observe and attempt to emulate this behavior, even though, as with sexual role play, its subtleties and dependence on understanding the perspective of others, guarantees that they will fail and their ineptness will be discovered and lead to their rejection. But their persistence, “scripting” what they have learned from others, as in “role play,” can give the appearance of more skill and understanding than they have.

Young men with ASD, “trolling” may partially supplant the lifetime experience of

being bullied and give a sense of control never before experienced, or feeling of being accepted by a group appearing to defy norms, and their upholders (“normies”). In any event young men with ASD have attempted to attach themselves to these groups, sometimes to very troublesome ends (e.g., trolling families of victims of mass shootings or suicides). However, pertinent here, they have at times conflated their rendition of different kinds of trolling behavior with incomprehensible “games,” the object of which, like much of sexual role play, is to get sexual pictures from the people they encounter.

66

The logic of these games can be quite baffling. And since trolling behavior is by

design very obnoxious, and devoid of meaning to “normies,” this behavior does not lend itself to easy explanations. But it is not malicious, especially compared to the genuine article, and the young men with ASD do not see the serious wrongfulness of it with which it is viewed by others, given their age and the object of their game.

Moreover, many of the typically developed persons who engage in trolling are

not that clever, and often their behavior consists of simply copying or mimicking what they see others so. (Cheng, et al. 2017) Of course, this is the precise modus operandi of the person with autism, as described in the previous section, again with the same lack of appreciation of the social dynamics and especially the necessary understanding of the perspective of the persons being “trolled.”

Still, this is behavior which, upon thorough clinical exploration, can be helpfully

explained in terms of autism, and generally here as well the lack of understanding of the wrongfulness of the behavior can be evident. Those with ASD are quick to recognize the wrongfulness and harm of this behavior once it is explicitly pointed out to them, something that it is well to demonstrate in the clinical setting.

5.6. Enticement by others One of the most frustrating traps for those with autism on the internet occurs when minors, for various reasons, have reached out to the “adult” with ASD to strike up a relationship. This can automatically absorb him because of this extraordinary interest shown in him. This interest can be fueled in different ways and catastrophe is almost inevitable.

More than one case has arisen where the young man with autism encounters a

minor who attracts him with a story of suffering or abuse. Some recent cases stem from claims by a teenager of being abused by her father, which encouraged the defendants to attempt a “rescue.” These gestures turned catastrophic with charges based on receipt of explicit images the girl had sent, and allegations of attempted kidnapping. In these cases, the defendants flew off – two internationally – to rescue the girl, with absolutely no plan of what to do after the rescue.

67

Another recurring pattern is similar without the claims of abuse. Cases where

young girls or boys will “friend” an autistic person on Facebook, or on a “fandom” site or chat area. Again, for individuals with ASD, who have difficulty discerning that bullies are not their friends, these approaches have strong traction. In one case, young teenage girls decided to entertain themselves by “messing with pervs.” This involved reaching out on a gaming chat area to befriend a stranger, a young man with autism who had never spent a day in his life away from his mother. They pretended to be a beautiful 19‐ year‐old college student flirting with this man, who has never had a sexual experience.

They sent him pictures of themselves, after revealing their true age. When they tired of this, and stopped sending pictures, he got upset like a child. He demanded they send more pictures, making impossible threats about “hacking” them in one form or another if they did not. (The threat of “hacking” someone to get what one wants is frequently “scripted” on chat sites). Hearing one of the girls joking about this in the schoolyard, a teacher intervened and the events were exposed. The defendant received a 135‐month prison sentence.

Other examples are minors who “friend” young men with autism and offer

explicit pictures for money, iPhones or, in one case, Play Station 4 gift cards.

5.7. Practice considerations

The challenge in these cases is having to squarely address the conduct of the

minors who were involved in order to have the context of the conduct of the accused fairly considered from his perspective as a person with impaired social understanding.

This may be assailed as “blaming the victim.” However, this must be done if the defendant’s perspective is to be taken into account. Moreover, the concept of “age of consent” does not remove all agency from children, even if the accused was aware it.

Another serious challenge is that in most of these cases the prosecutor has live

victims and their parents to answer to. Here, again the point must be made that there are many victims of the internet, and the developmentally disabled are among them when they fall into social situations they do not sufficiently understand, bound by rules they do not know.

68

In these cases, it can be suggested that the parents of these children be also “at

the table” in some fashion so they also can possibly understand the perspective of the disabled person and his family. Prosecutors should be encouraged to share the defense memoranda and clinical reports with the parents of the victims. The parents may actually be more ready than the prosecutors to consider the defendant’s disability and its effects, and give permission to the prosecutor to be merciful. Here the defense clinician can possibly take a central role in mediating the views of all.

Chapter 6: Childhood Sexual Experimentation

In a small percentage of cases, young men with ASD charged with online

offending have also admitted to having sexual contact with children, usually when they were children themselves but sometimes continuing beyond adolescence. This almost exclusively involves relatives, cousins or siblings, or very familiar neighborhood children.

Usually it involves contact with significantly younger children. Invariably, these involved cases where the information came only from the accused, often volunteered to police (Sugrue, 2017).13 By associative coherence this powerfully supports an intuition, however mistaken, that the young man is a child predator. Therefore, it is essential that such conduct, whether charged as part of the offense or not, be considered in the contexts of normal childhood behavior and ASD. This provides a rational basis to differentiate, for those with ASD, between what is essentially “normal” child sexual experimentation, and something more concerning.

6.1. Normative child sex play

Child sexual experimentation, including child‐on‐child play, only began to be

formally studied four decades ago. Even now, after numerous studies, few recognize how prevalent it is among normal, healthy children without a history of abuse. Child sexual experimentation, beginning as early as toddler‐age, is a normal part of sexual development (Lamb & Coakley, 1993; Haugaard, 1996; Finkelhor, 1980). As children learn about their bodies and observe sexual behaviors, they experiment with their own bodies and are curious about those around them and may experiment with each other.

13

As Dennis Sugrue observes, when accused of wrongdoing by anyone in authority, persons with ASD may tend to be self ‐condemning.

69

For the present discussion, “child sexual experimentation” or “child‐on‐child sex

play” is considered to be episodic, and not a preromantic relationship, occurring once or a few times over a relatively short period of time and then ceasing, and not focused on sexual gratification. Eventually, socially defined romantic rituals take over for typically developed individuals.

Up to 85% of children have engaged in some sort of childhood sexual play

experience where the level of physical involvement was related to perceptions of normality, if not for sexual pleasure (Kellogg, 2010). Results differ with different methodologies. In one study 82.5% of the respondents had sexual experiences with another child that entailed kissing and cuddling, showing and touching of genitalia, and looking at pornographic videos (Larsson & Svedin, 2007). A study of child self‐reports found that 5‐6% of urban children aged 11‐12 had touched another child’s penis or vagina. (Pluhar, et al., 2005). Retrospective research involving college women in the US found 85% had engaged in sexual play in childhood: one quarter had shown their genitals to another child; 15‐17% had touched another child’s genitals while clothed and while unclothed; 6% had used some object around the genitals in their play; and 4% engaged in mouth–genital contact (Lamb & Coakley, 1993).

Boys experience more sexual experimentation than do girls. However, girls are

more likely than boys to engage in same sex sexual experimentation. Explanations for this include more prevalent perception of homophobia among prepubescent boys (Finkelhor 1980). Two thirds of children who have engaged in child‐on‐child sexual experimentation stated it occurred before adolescence and it peaked across the ages of 6‐12 years old (Finkelhor 1980). This age range could be affected by access to sexual materials (i.e., media, print, etc.), observations, observation of parents’ behavior and reactions, etc. (Kellogg, 2010).

Child sexual experimentation is seen as part of normal development. A child

“discovers” their genital areas and tends to repeat the act of touching and rubbing because it creates a sense of pleasure. Boys often touch or hold their penis in public.

Boys and girls often engage in “child on child” sexual experimentation. They begin mimicking adult affectionate behaviors such as kissing, hugging, and holding hands.

70

Preschool staff have reported observing children looking or showing each other’s genitals (Wurtele & Kenny, 2011).

The mere fact that childhood sex play is normal may not ensure that it is always

healthy. The engagement in sexual play does not appear to be a predictor of early commencement of adolescent sex, paraphilic disorders, or sexual orientation. These early childhood sexual experiences do not appear to correlate particular effects on adult adjustment (Okami, et al., 1997; Leitenberg, et al., 1989). Some consider them beneficial in terms of typical sexual development into a healthy adult (LeVay, Baldwin & Baldwin, 2015). While worries about sexual abuse of children may lead adults to reinterpret memories of mutual play as abusive, abusive experiences might also be remembered fondly as early sexual play and games because they were experienced that way or because they were re‐envisioned as a means of coping (Lamb & Plocha, 2014).

Of particular interest, in a study of 1,000 college students, those who played in

childhood with friends or relatives, as opposed to unfamiliar children, viewed their sexual encounters as more positive. Counterintuitively, the type of sexual acts, like kissing, exposing or fondling genitalia, oral sex, or intercourse, was not associated with the response. Rather, the atmosphere surrounding the sexual experience was what had the greatest influence on the response to it (Haugaard & Tilly, 1988). Women asked about their sexual experiences and sexual play and games in childhood revealed that the type of sexual behavior engaged in had very little to do with the effect associated with it (Lamb, 2002). The takeaway from this and similar research is a lesson to investigators in the frailty of adult intuitions about the impact of childhood experiences: Although adults may differentiate between lesser and more serious sexual acts, a child, it appears, can feel every bit as guilty and stressed about something an adult might consider minor and feel positive and casual about something an adult might feel is fairly adult and substantially sexual.

(Lamb and Plocha, 2014, pp. 421‐22).

It is usually a friend, cousin, or sibling with whom the child has their first sexual

experimentation. Presumably this is due to the level of comfort or familiarity with the 71

family member or friend (Finkelhor, 1980). Thus, where a report of child sexual behaviors involves contacts with such close relations, normal child, sexual experimentation should be explored as a differential explanation from more reflexive, and concerning, characterization of the behavior “molesting.”

6.2. ASD and child’s sexual experimentation

While there appear to be no studies specifically of the prevalence of child sexual

experimentation among those with autism, there is no reason to believe that it happens any less with this population. Rather, since the cessation of child sex play correlates with appreciating social norms and learning socially acceptable paths to dating and romance (Kellogg, 2010) – distinct weaknesses for those with ASD – we expect the window for such behavior to be longer in duration for those with ASD. Supporting this is the common observation that those with ASD are years delayed in social maturity.

6.3. Autism and “age discordant” sexual experimentation

While there is much research on the greater sexual victimization of the

developmentally disabled child, there is nothing on their “normal” sexual development stages in childhood. So, we see no studies focusing on the prevalence, characteristics or age of sexual experimentation. Unfortunately, adolescents with disabilities are often deliberately excluded from studies of adolescent sexuality (O’Sullivan & Thompson, 2014).

In a small percentage of cases arising from online activities there are examples of

young men with autism having sexual contact with younger siblings or cousins just like what one would see in child‐on‐child sexual play. Typically, the sibling or cousin might be four to five years younger and well aware of the social deficits and awkwardness of their older relative, and accustomed to his easier engagement with them as opposed to his inability to associate with his age peers. This includes same sex or opposite sex contact that is episodic and not forced. In all these cases, though the individual with ASD is older, they are far less mature than their younger relative.

Young adults with ASD are typically delayed five years in their development and

can often engage in behavior seen as inappropriate, including touching others. Because 72

of the inherent deficit in social skills, often these behaviors are engaged with younger children who are seen as peers by the individual with ASD (Ashley, 2007). Accordingly, clinicians warn parents of teens with ASD to repeatedly educate their child about inappropriate touch in order to avoid "becoming either an unwitting sexual offender or vulnerable to sexual victimization" (Mesibov, Shea & Adams, 2001).

These encounters are categorized as “age discordant sexual play,” and not

“molestation” because when this experience ends, there is no more experience with younger minors, or, very often, anyone else, thereafter. In other words, this behavior does not represent the beginning of a pattern of seeking out sexual or romantic experiences with minors, which might typically be validated by polygraph testing.

“Age discordant sex play” is familiar in the sexual therapy literature (O’Sullivan &

Thompson, 2014; Bruce, et al., 2012; Lee, et al., 2003).14 The Arc advises that “Sex Offenses by a person with I/DD are often not the result of sexual deviance. . . . Often, sex offenses are the result of counterfeit deviance” and “ignorance of what is considered appropriate,” and that persons with developmental disabilities “may engage in acceptable sexual behaviors but with someone who is not an appropriate age—this is called ‘age discordant sex play’.”15

Therefore, when it comes to reports or allegations of a young man with ASD

involved in sexual contact with minors that might, but for the age differential, fall into the category of “child sexual experimentation,” it is essential to determine whether this might more accurately be considered to be a case of age discordant sex play, rather than molesting behavior.

6.4. Practice considerations

Similar to “sexting” type cases, the prosecutor is going to be highly sensitive to

having a live victim, and that child’s parents, to be concerned about. However, unlike 14

See also the Declaration of Nancy Thaler in Markelle Seth v. District of Columbia, et al., 18‐cv‐01034‐BAH, Document 29‐3, 10/26/18 (“In some cases, individuals with IDD engage in sexual activity with individuals who are not of an appropriate age, which is sometimes called “age discordant sex play”).

15 “5 Facts Attorneys Need to Know When Representing or Working with Citizens with Intellectual and Developmental Disabilities (I/DD)” https://thearc.org/wp‐ content/uploads/forchapters/NCCJDTipSheet_Attorney_CopyrightBJA.pdf

73

the “cybersex” cases, where the victim may be in another state, or another country, here the victim is close at hand. So, defense counsel has to pay seriously attention from the very beginning to minimizing inter‐ or intra‐family tension, which can be the source of trauma for everyone and will not help obtaining the pretrial release of the accused or favorable resolution of the case.

Chapter 7: Sting Operations

While undercover operations may be conceived to provide an opportunity for the

target to commit a crime, and the target’s acquiescence as intent to commit a crime, the reality is quite different in the case where the target is a person with autism. Those with autism have trouble catching the switch from fantasy to reality in online discussions.

They may have great difficulty seeing and processing how the terms of an encounter change from what they thought it was about to what the undercover agent is actually proposing. They are literal and cannot “read between the lines” in spoken and written language in order to detect deception (Engel, et al, 2012). They are credulous and gullible and unable to turn down “too good to be true” offers. Once the “bait” is taken, they lack the executive function or self‐assertiveness needed to change course even if they smell a trap.

All these factors combine to make those with ASD particularly vulnerable to

“sting” operations. And, unfortunately, criminal investigators are well aware of the propensity of “sex predator” stings to trap those with autism, but fail to alter their own methodology or take steps to divert these individuals from prosecution rather than subject them to often horrific punishments and lifetime sex offender registration.

In one sting operation in Florida, investigators posted on Craigs List this simple

“Personal” advertisement: “Get me pregnant.” The “bait” was that a female person wanted to have sex with an ulterior desire to have the benefit of a child. After the bait was taken there was a “switch” in that the undercover would ask if the target thought it was a problem that she was 15 years old. Numerous persons arrested were thought to be developmentally disabled and certainly more than one had autism.

74

In Kentucky investigators placed a personal advertisement in the “women seeking men” section of a web page. It consisted simply of the number “18” and a photo of a well‐ developed young woman–revealing her body but not her face – with a phone number. Typically developed individuals would see this as a “too good to be true” offer, or some kind of sting, or an advertisement for prostitution. To this young man with ASD this woman was indiscriminately willing to have sex with him, social skills or not, and nothing was inappropriate about it

In that case, the first “switch” was that, when he called the number, he asked the

undercover agent if she was “legal,” expressly indicating he did not want to have sex with someone who was “under age,” a “rule” that he knew. The undercover agent said she was almost 18. The age of consent being only 16, the target was happy. But the second “switch” came when she asked for a “donation” to have sex with him. He neither understood that this then became prostitution, a crime, and a serious felony because she was not 18.

Rules for “entrapment” differ, but autism may well fuel a successful defense by

demonstrating excessive susceptibility to police suggestion, or the lack of “predisposition” to commit the offense, or the outrageousness of police practices which fail to protect the disabled. These cases require complete exploration of the defendant’s problems with processing, receptive language, rigid thinking, and executive function. Difficulty in any of these areas affects the ability to appreciate obvious connotations of the deal or how the “switches” may change the fundamental character of the deal – what he is getting himself into – or to read into the switches themselves the need to be more cautious because of the reality that this was a case of false 75

advertising to begin with. Problems with executive functioning can make it exceptionally difficult to evaluate the wisdom of the course of action or change it even if he begins to suspect that it’s not going in an appropriate direction.

Even homespun sting operations like this, to be fair and tolerable in our neuro‐

diverse society, have to be structured and executed in a way which does not make them so clearly a trap for the disabled. With a net cast this broadly, the police and prosecutors must be willing to cut loose those who are not there because of genuine criminal desires or tendencies.

Chapter 8: Interrogation of persons with ASD

Reasons to avoid “litigating” issues like suppression of evidence have been

discussed already. Added to this is the fact that in most cases there is plenty of evidence to convict without regard to statements made by the accused. Moreover, even statements by the accused were suppressed, and inadmissible at trial, admissions to things like having physically touched a sibling become an indelible part of any non‐trial settlement of the case.

However, issues relating to the reliability or interpretation of statements made to

the police by the defendant with autism can be very important in settling on what the actual behavior or understanding of the accused was, or at least countering misinterpretations. Moreover, if it comes to the question of competency, it may be important to demonstrate that the defendant did not understand his rights in the interrogation process, even if there is no motion to suppress. And developing issues related to Miranda can assist the judge understanding autism and the defendant’s deficits, which can help in many ways. Of course, it goes without saying that it is very unlikely that these defendants truly understand the rights read to them, or that by acknowledging their rights and deciding to talk to the police that they are waiving their rights. (Salseda et al. 2011)

According to leading scholars in the area of wrongful convictions and false

confessions (Drizin & Leo, 2004), up to 25% of all wrongful convictions are the result of false confessions (see also Scott‐Hayward, 2007). Thus, this is one of the leading causes 76

of actual false confessions.16 According to the National Registry of Exonerations, between 1989 and 2019, there have been 147 mentally ill or intellectually disabled persons who have been exonerated from their supposed crime(s). Of those 147 exonerees, 102 of them–a staggering 69%–were originally convicted because of a false confession (National Registry of Exonerations, 2009). Individuals who are mentally impaired are simply, and predictably, like juveniles, more susceptible to making false confessions than the average person (Scott‐Hayward, 2007).

The sad record of proven false confessions is filled with stories of the police

taking advantage of those with disabilities and juveniles to get them to endorse what the police officer incorrectly thinks he “knows.” This is partly the product of widely used psychological interrogation techniques that encourage suspects to agree with the suggestions of interrogators, whether or not they reveal the truth. This is partly as a result of coercion, or implicit promises that agreeing with interrogators will result in benefits which never happen, including more lenient sentencing or release from custody of youth and disabled persons desperate to go home.

In any case of a police interview of the accused with ASD it is necessary to

evaluate the result from the perspective of autism.

Individuals with ASD may be more susceptible to interrogative pressure during formal interviews known as interrogative suggestibility (Gudjonsson, 1984). If they give into interrogative pressure, they may provide misleading statements. Standard interrogation techniques utilize deception that may confuse those with ASD who tend to be “concrete‐thinkers” into providing false confessions (Debbaudt, 2004).

North et al. (2007) measured interrogative suggestibility among a sample of 26 individuals with ASD and demonstrated that they were more susceptible to compliance and were more eager to please to avoid conflict or confrontation. This is important when opting for a MH defense to determine whether ASD is a mitigating factor, as forensic psychiatrists/psychologists must ascertain the reliability of suspect statements to police (Mogavero, 2016).

16

When the term "exoneration" or "false confession" is used here, this is reference to exonerations of innocent criminal defendants and admission/confessions proven in that context to have been false.

77

Those with “higher functioning autism” “are at risk for false confession and manipulation during interrogation, especially when techniques such as deception are used, which they are considerably less likely to comprehend” (Lerner, et al., 2012). The Arc, the national organization supporting those with intellectual and developmental disabilities, in its position statement on criminal justice, cautions that, among the unique problems facing those with developmental disabilities like ASD, is the problem of “Giving incriminating statements or false ‘confessions’ because the individual is manipulated, coerced, misled, confused by either conventional or inappropriately used investigative techniques, or desires to please the questioner.”17 One cannot pretend that false confessions do not exist in a significant number of cases.

Over 90% of police have had no training to recognize and understand the

behavioral symptoms of ASD (Adams‐Spink, 2005). This is dangerous for individuals with ASD because it means that most police may not recognize how susceptible these individuals are to suggestion, how literal they are, how poorly they understand questions, despite sometimes pedantic and seemingly sophisticated expressive language, and how prone they are to saying what they believe the person in authority wants to hear. On the other hand, even officers who are unaware of the features of autism will often quickly realize that the suspect is forthcoming and compliant and will “acknowledge” almost any fact or conclusion suggested to them with enough pressure and skill.

Those with ASD have learned that agreeing with a person, especially a person in

authority, is an effective way to mask their lack of interpersonal skills. They are also very quick to accept any official perspective. This is another dimension to the “rule – bound” nature of those with ASD. When confronted by the police they are noticeably compliant and courteous to requests from the police (North, Russell, & Gudjonsson, 2005). And, when accused of wrongdoing by anyone in authority and rules then being explained, they are very quick to internalize that rule and express guilt. Sugrue explains: To further complicate matters, people with ASD often have a very rigid conscience. They are guilt prone and often truthful almost to fault. They 17

https://www.thearc.org/who‐we‐are/position‐statements/rights/criminal‐justice

78

are prone to be what some polygraphers informally term a “guilt grabber”—an innocent person who fails a polygraph test not because he or she is actually guilty of having done anything wrong, but because he or she feels guilty at the mere thought of doing something wrong (Sugrue 2017).

In a very typical case involving a young man with ASD a few years ago in Iowa, the

police executed a search warrant at this young man’s house and questioned him about his viewing of child pornography. When it was apparent that he was not sure, still, why they were there, they explained to him that his viewing child pornography is bad because it “creates a market” for child pornography, which creates incentive for people to abuse children to produce more. Later, when he was being questioned at the police station, the interview turned to the question of “distribution,” which really only was the question of whether he was aware that he was making files available to others in a peer‐ to‐peer network. After indicating that he was unaware of this, he added that he would not do that because he “would not want to make a market for child pornography.”

While this was a concept he had no knowledge of prior to talking to the police that day, it now incorporated as part of his “memory” of earlier events. This phenomenon is often a challenge for psychologists and defense attorneys needing to understand what his thinking was a priori.

Often it is simple enough to realize that the defendant with ASD has just “put it

together” from the police raid itself, and initial discussions with the police, which are rarely recorded, from which they learned about the criminality of their behavior. This, combined with this tendency to self‐accuse and to please the police, can come off as suggesting that they knew all along that their conduct was wrongful, when this was far from the case. This is another question that needs to be carefully explored in the clinical interviews.

Those with ASD, despite being intellectually able to understand questions and

provide articulate responses, may be more compliant and deferential than other interviewees (North, Russell, & Gudjonsson, 2005). That can make them more susceptible to manipulative interrogation techniques, which in turn leads individuals with ASD to answering the questions incorrectly or giving inadvertent confessions to 79

escape situations causing them distress.

But the techniques employed are not the only issue in interrogating someone

with ASD. Memory also plays a significant role in the interrogation process. Over the last half a century, there have been a growing number of studies which have found that individuals with ASD experience specific memory impairments which ultimately influence the way they perceive, understand, interpret and also reconstruct everything around them. There is a unique memory profile of individuals with ASD in that some memory processes are impaired while others appear to be spared (Maras & Bowler, 2014). So while some of the memory processes are intact including: cued recall (Bennetto, et al., 1996), priming (Gardiner, et al., 2003), recognition (Bowler, et al., 2008a), and memory for facts (Bowler, et al., 2008b), others are impaired such as source monitoring (Bowler, et al., 2004), episodic recollection, and the ability to recall personally experienced events (Bowler, et al., 2000; Bowler, et al., 2007).

One study found an impaired ability to consciously recollect events in individuals

with ASD and that this group tends to guide their memory based on feelings of familiarity (Bowler, et al., 2000). This may lead to something being incorrectly judged to have been witnessed when that suggested detail creates a feeling of familiarity. A predisposition towards complying with the interviewer in order to please them may also be more likely in individuals with ASD (Maras & Bowler, 2012) as a result of, for instance, their potential increased social anxiety stemming from their impaired social skills.

Thus, interrogations have especially great potential to lead to false statements on

behalf of those with ASD, all of which has to be carefully examined and deconstructed in the clinical interview. In this sense, the interrogation itself may assist in demonstrating the cognitive, communication, and social deficits of the accused.

Chapter 9: Competency and Criminal Responsibility

Problems with receptive language, rigid thinking, abstract thinking, memory,

working memory, intellectual or reasoning impairments, emotional regulation, tics and repetitive motions and sensory processing problems, and especially executive function, 80

all may give rise to obvious concerns about the ability of a person with ASD to “understand the nature and consequences of the proceedings against him or to assist properly in his defense.” 18 USC 4241(a).18 These may impair understanding the attorney, providing useful narrative of events, being able to be attentive or follow court proceedings, and understanding the import of testimony or what the lawyers say in court. Difficulties in working memory and executive function especially impact on the necessary ability to make autonomous decisions that the accused needs to make. ToM deficits and working memory and literal and concrete thinking may impact on the ability to give a narrative as a witness or follow questions or see traps being laid by a cross‐ examiner, or avoid being led into inconsistent or damaging answers that are not correct.

The difficulty here is that forensic psychologists or psychiatrists rarely have

significant experience diagnosing and treating adults with ASD. Without such experience the forensic examiner may not anticipate these typical defects in autism or how the affect genuine competence. It is all too common for clinical or forensic psychologist or psychiatrists to miss the diagnosis altogether, or being aware of the diagnosis, give it no attention in their analysis. Professional articles on evaluating competency sometimes omit to consider developmental disabilities entirely.

9.1. Theoretical framework incorporating autism

Methodologically, the view has been expressed by forensic psychologists and

psychiatrists that, in assessing competence, the diagnosis is not relevant, only functioning relevant to the tests for competency. Treating the individual’s mental status as something of a “black box” with the only question being the individual’s functional capabilities has its attraction, especially for a forensic specialist who may never have diagnosed or treated an adult with autism. However, a syndromal condition like ASD points to a very specific set of probable deficits that can impair competence in ways needing to be explored, and thus the diagnosis of ASD provides a critical roadmap of 18

"[T]he tests must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402 (1960). "An inability to make any meaningful contribution to his defense marks a defendant as incompetent to stand trial." United States v. Gigante, 982 F. Supp. 140, 166 (E.D.N.Y. 1997). The issue is "whether the defendant has sufficient competence to take part in a criminal proceeding and make the decisions throughout the course." Godinez v. Moran, 509 U.S. 389, 403 (1993; Kennedy, J. concurring).

81

things to suspect or rule out as affecting competence.

Psychologists Daniel Murrie and Heather Zelle describe the question of legal

competence as "open‐textured" in the sense "that competence may vary across contexts, is subject to a variety of operational definitions, and can probably never be adequately captured by one set of facts." Competence is therefore "both functional and contextual." They propose a series of basic abilities, based on extensive studies by other researchers, which are central to the determination of competence. These are: (1) understanding relevant information; (2) appreciating the situation and its consequences; (3) manipulating information rationally (i.e. reasoning); (4) assisting the defense; and (5) decision making (Murrie and Zelle 2015)

One of the luminaries in the field, University of Virginia Law Professor R.J. Bonnie,

described the holistic nature of the question of competence, suggesting that the legal framework of competence, as rooted in due process, is to ensure the basic dignity, reliability, and autonomy of the individual being evaluated (Bonnie, 1992). This is most apt in the case of those with autism, and the insight of the autism clinician is needed to guide any possible examination of the question.

This is why it is so important, before having a forensic evaluation, to already have

a thorough autism evaluation pertinent to the charges, that also highlights all the relevant deficits and illustrating how they might impair function in the areas that are important to competence. That evaluation of autism can become a template for what must be addressed by a forensic psychologist or psychiatrist hired by the defense. This is why it is not likely to be appropriate, in the case of the defendant with ASD or suspected of having ASD, without such an evaluation in hand, to request a competency determination, if this may result in the court appointing a forensic examiner unlikely to be sufficiently familiar with the autism condition to fairly assess how it may affect competence.

9.2. Question of timing

But even if there is a thorough autism evaluation in hand, and issues of

competence are identified, there are compelling reasons to forego formally raising the issue of competence with the court as soon as issues of competence are apparent. First 82

of all, making a motion for a competency determination in most jurisdictions sets the case on an automatic roller coaster of litigation, and perhaps several rounds of litigation. This will divert attention from a focus on educating prosecutors and a possible meeting of the minds to an “I win, you lose” battle. Rather, concerns about competency may serve best as a backdrop for discussions about the suitability of the defendant with ASD for being prosecuted criminally, or some other favorable outcome.

Generally, it seems that it is advisable to avoid litigating issues of competency until it becomes clear that the prosecutors are unbending in achieving the best possible outcome by agreement.

9.3. Practice considerations

Because of the multiple issues of competency which may arise, it may be best, as

part of this evaluation, to have the clinician observe earnest efforts by defense counsel, or perhaps “stand‐in” defense counsel to work through real scenarios that require an understanding of the charges and the consequences, or meaningfully assisting the attorney preparing the case, giving a narrative, appropriately answer questions, and otherwise assist in his defense. Most importantly, because this is the area which most often is the problem, the clinician should observe the attorney engaging with the accused on the various decisions he is going to have to make, to test the capacity of the accused to autonomously make a rational decision of the kind that realistically reflects the kind and complexity of choices in the case, such as whether to go to trial or not, or whether to take a plea or whether to take the stand and testify.

Pandemic experience has led us to accomplish this with video recording of

attorney interviews with the client, to evidence efforts to educate the accused regarding the nature of the charges and the legal process and the decisions to be made and what the accused can do to productively assist in his defense. These sessions can migrate from the purely educational to actual testing of the client’s relevant capabilities in these areas. Such recordings can be used for other purposes as well, for example to illustrate for prosecutors what the accused is really like, as opposed to how he presented himself in the offense conduct or police interviews.

83

This takes quite a bit of preparation to do, but it’s clear pertinence to the actual

question at hand is such that it lends tremendous support for the clinician’s conclusions.

If there is a conclusion that the accused is not competent to proceed, and that derives in material respect from his ASD, this will assist prosecutors and the Court ultimately in focusing on the unique circumstances of his permanent mental disability, rather than conflating disability with mental illness, which often bears the prospect of “restoration” of competence.19 Only then is it appropriate to make a motion for a competency determination.20 9.4. Lack of Criminal Responsibility

The arguments on behalf of the ASD defendant regarding his lack of “moral

blameworthiness” closely parallels the argument that the person lacks criminal responsibility. The argument is that as a result of his disability he was unaware of the nature (in its cultural context) or wrongfulness of his conduct.

However, the person with ASD, who is not also intellectually disabled, is capable

of understanding the nature of his conduct or its extreme wrongfulness if it is explained to him at that time. Rather, because of his ASD he was substantially impaired in intuiting on his own the social norms and taboos that pertain to the conduct. Thus, absent having received explicit instruction on these rules, he was incapable of knowing them on his own. Nevertheless, the issue does not ever appear to have been tested.

Still, the psychosis in a colorable case of “insanity” may be a fleeting, condition, just as much as the sociosexual ignorance of the accused with ASD, and so the two should not be treated differently.

The main argument for caution in raising lack of criminal responsibility if one is

forced to trial is that one found not responsible by reason of a mental disease or defect for a sex offense will presumably still have to register as a sex offender once discharged

19

A finding of lack of competence based on deficits directly tied to autism is not likely one which is susceptible to the accused attaining competence.

20 One can imagine a sort of ethical conundrum where counsel, seeing obvious deficits which call into question certain aspects of competency, fears that it is inappropriate to proceed without a determination of competency by the court. First, a premature determination of the question is unlikely to succeed. Moreover, since the primary aim of the representation is diversion of the case, very little "competence" is required for that. Diversion also being better in many respects than the uncertain "roller coaster" of competency litigation, it is clearly in the client’s best interest to hold off the question of competency until it is ripe and necessary.

84

(Weiss & Watson, 2008). That may be less of a concern where the alternative is a lengthy prison sentence.

Raising a question of criminal responsibility is, it seems, a last resort.

Chapter 10: The Role of Treatment

Knowing options for appropriate treatment for clients with ASD is essential to

effective advocacy in these cases. Accessible and effective treatment provides prosecutors and judges reassurance that the defendant will not reoffend. Explaining the differences between appropriate therapy and typical sex offender treatment programs can help ensure that conditions for pretrial diversion, probation, or post release supervision are actually appropriate and effective, at the same time enhancing the quality of supervision.

10.1. Treatment for Individuals with Asperger's Syndrome

Individuals with intellectual and developmental disabilities convicted for sex

offenses, as pointed out so persistently by Dorothy Griffiths, does not require “rehabilitation.” It requires “habilitation.” Offending, based on blindness to social norms, or the social implications of what is looked at online, or what is said in online communications, calls for treatment that supplants the intuitive socialization and sexuality learning processes experienced by typically developed individuals. This must be in a program that can present this explicitly to those with autism in a way they can understand it. “Habilitation” uses active education and training about social norms and appropriate behaviors. It must be adapted to take into account the learning capabilities of the individual and the difficulty of those with ASD in generalizing how social rules apply across situations. For an individual with ASD who does not present with a paraphilia, a traditional sex offender treatment program would be damaging and, more importantly, would create greater confusion for the individual. (Griffiths & Fedoroff, 2009).

Marks and Garretson observe that “[t]raditional sex offender treatment also

requires that the client replace deviant behaviors with pro‐social coping strategies.”

These coping strategies require the client to “accurately interpret the environment and 85

situations, label and express feelings appropriately, . . . be able to make choices for behavior, self‐evaluate those actions, . . . [and] tolerate difficult emotions, among other factors.” While suitable to typically developed offenders, the authors identify specific problems and poor outcomes with this approach when used to treat those with ASD. These include aversive reactions when problematic behaviors and attitude distortions are directly identified, as individuals with ASD may have a very difficult time accepting criticism. Some suggestions that have been offered for treating individuals with ASD include providing the information piecemeal, “us[ing] an adapted style of communication (visual aids),” using concrete descriptions, “being mindful of the reality that talking about feelings too much and for too long may only make them more confused,” making lists, and providing a clear overview of the overall treatment plan to create structure. (Marks & Garretson, 2004)

Proven, effective treatments for individuals with ASD involve teaching “skills,

concepts, [and] appropriate procedures . . . in an explicit and rote fashion using a parts‐ to‐whole verbal teaching approach, where the verbal steps are in the correct sequence for the behavior to be effective.” This requires teaching “[a]daptive skills intended to increase the individual’s self‐sufficiency . . . explicitly with no assumption that general explanations might suffice or that he/she will be able to generalize from one concrete situation to similar ones,” and teaching “how to identify a novel situation and to resort to a pre‐planned, well‐rehearsed list of steps to be taken,” among others.

Communication and behavioral interventions are needed, with instructions on “how to interpret other people's social behavior . . . taught and exercised in a rote fashion,” setting specific guidelines to deal with frequent, problematic behaviors, and discussing these guidelines with the individual in “an explicit, rule‐governed fashion, so that clear expectations are set and consistency across . . . settings and situations is maintained.”

(Klin & Volkmar, 1995).

Very explicit sex education is needed for individuals with ASD. Such education

should be concrete and literal, with an emphasis on behavioral rather than cognitive interventions (Bolton, 2006).

86

So, the consensus of clinicians in this area is that what individuals with ASD who

have sexually offended actually need is sociosexual information and communication skills. This supports the understanding that the condition being addressed is not one rooted in deviance or sociopathy. The cure is telling us something about the condition.

These methods of treatment are successful because they give these individuals an ability that make up for what they missed due to their neurologically‐based social learning deficits.

This evidence of what is appropriate and effective treatment provides powerful

support for the understanding that these individuals are not typically deviant or likely to reoffend if treated appropriately.

10.2. Comparison to sex offender treatment programs

Traditional sex offender treatment focuses on enhancing empathy for the victim

and on recognizing cognitive distortions, among other goals.21 The program is based on learned socially deviant experiences whereas for those with autism the difficulties come from “a failure to benefit from any experience, rather than learning on the basis of socially deviant experiences.” The focus of the treatment, i.e. recognizing cognitive distortions, and promoting empathy, are unlikely to be effective in individuals with ASD, even though it is effective in neurotypical individuals, who need behavioral rather than cognitive interventions. (Bolton, 2006).

Specifically, the problem with those with ASD is not “cognitive distortions”

because they are not aware of the social norms that such mechanisms serve to circumvent. While those with ASD have issues of “empathy,” their issues are very different from what sex offender treatment programs are aimed at. These are designed for individuals who know very well the physical and psychological impact of sexual aggression on victims, but care little about it. This is the technique suitable to the person with anti‐social features. The anti‐social person is not only aware of the feelings and fears of the other person, they readily take advantage of these feelings and fears to manipulate the other person. They lack “emotional empathy.”

21

Cognitive distortions include the kinds of rationalizations or “thinking errors” that are used by antisocial persons to justify their manipulation and taking advantage of others.

87

Individuals with ASD are completely the opposite. Because of their condition,

their brain simply does not pick up on the feelings of others, so they lack “cognitive empathy.” If the true feelings of others are pointed out to them, they are then very concerned about the other person’s feelings and will try to act appropriately.

Traditional sex offender treatment programs generally involve group sex offender

therapy with serious hands on offenders and often involve pressure from other group members. These are things that young men with autism are very uncomfortable doing or incapable of doing. For an individual with ASD, who does not present with a paraphilia or antisocial traits, traditional sex offender treatment program would pointless and damaging. (Griffiths and Fedoroff 2009). Effective treatment of an individual with ASD requires an individualized treatment program focusing on sexuality training and education on sociosexual boundaries and tools he can use to assess social situations.

The difference between what is required for typically developed sex offenders

and those with ASD who have offended points to how different the causes and cure is for these different types of offender.

Chapter 11: Clinical evaluations in cases of online offending

In the case of an individual with ASD charged with a criminal offense, more than a

workmanlike, or even exemplary diagnostic evaluation is necessary. The audience is not a treating therapist, or a school attempting to meet a student’s needs, or an employment program, all of whom have the relevant experience and knowledge needed to take such a report at face value. Here the primary audience is law enforcement and prosecutors. In some of the toughest cases, these prosecutors are dealing exclusively with offenses involving child exploitation. From their viewpoint, “everybody has an excuse.” So, they are especially resistant to the notion that an intelligent person engaging in this behavior might not understand its serious wrongfulness, or would not have an interest in sex with children and be at imminent risk of doing so, given the opportunity. Their constituents are advocates for victims of the production of child pornography, parents whose children have been predated upon on the Internet, and 88

they have seen real and horrific sexual exploitation of children.

Of course, child pornography is a scourge, and the abuse of children and the

harm caused is egregious, and children must be protected from abuse of any kind.

Empirically, however, it is beyond dispute that some individuals who engage in this behavior are not interested in having sex with children or a threat to them, and the protection of society does not depend upon their annihilation. Within this group are individuals with a neurological difference, the most salient consequence of which is the lack of the social intuition necessary to discern, on their own, the implicit social mores and taboos being violated by their conduct, or the ability to actually “see” the criminality, abuse, and pain evident in images of child exploitation.

Thus, whether we are talking about sex offense or other offenses involving

transgression of implicit social boundaries or other offenses where ASD has blinded the defendant to the harmful prospective consequences of their actions, the are, in degrees, morally blameless.

Thousands of parents, special education teachers, clinicians, researchers and

autism advocates understand this perfectly well. That understanding, and the knowledge it is based on, has to be shared effectively with those making decisions about whether or how to prosecute or judge individuals with autism who sexually offend. It must be remembered that the premise of this monograph is that, when well informed of the undisputed scientific facts about autism, and the manner in which it can so severely affect even intelligent individuals, very experienced prosecutors, even ones considered “hardened” by their experience, have indeed made extraordinary accommodations in cases of defendants with autism. The clinical evaluation has to carry a great deal of the load in this process.

Consequently, the evaluation in these cases has to be expansive, empirically

supported, and address the concerns of victims, law enforcement, prosecutors and judges. The report should explain exactly how the social learning deficits at the core of autism come about, their severity in the individual, how that impaired his learning of social norms, and otherwise his understanding the wrongfulness of his behavior or the harm that might result. The report must directly address the appropriateness of possible 89

prosecutorial decisions to the extent that this knowledge and expertise allows. If the person who knows the most about autism and its affects is not making it clear if their opinion is that diversion from the criminal process needs to happen, the prosecutors will never come to this conclusion on their own. The report has to compellingly advance its conclusions.

11.1. Different from a “forensic” report

Forensic psychiatrists and psychologists may hesitate on the invitation to the

clinician to essentially advocate for the consideration of autism in the criminal justice process, and to opine on the blameworthiness of the accused. This may be felt as a threat to the objectivity to which forensic psychiatrists and psychologists aspire (AAPL, 2005). But the underlying concern for objectivity here is not that the clinician be neutral, or have no stake in what determination is made, but simply that they “not distort their opinion in the service of the retaining party.” Even for forensic psychiatrists and psychologists testifying as to competency or insanity, there is nothing inappropriate about insistent, passionate, “partisan,” and even emotional advocacy for understanding of the scientific facts about autism and zealous advocacy for the examiner’s opinion in the case (AAPL, 2013).

Forensic examiners are in a position to help improve the law. In these cases,

there is a struggle to get the criminal justice system to meaningfully and substantially take into account developmental disabilities and disability laws in relation to the accused. Zeal is not only appropriate, it is necessary.

The kind of report needed in these cases is not the typical “forensic”

psychological evaluation. The examiner in this case is not primarily testifying to a legal mental state or competency. The primary audience is not the judge or the jury. The examiner is not appointed by the court, so there is no risk of accusations of “dual agency,” i.e. obligation as a court‐appointed examiner conflicting with the appearance of championing the cause of the particular accused. Rather, the report contemplated here is directed to the prosecutor, an independent executive officer, whose discretion is bound by disability laws and moral principles, and is therefore dependent on an empirical understanding of disabilities. The examiner in these cases helps fulfill that 90

need at the same time as advocating for their conclusion as to how the autism condition of the accused bears on the question of the moral, if not legal, culpability, and what should be done with him.

While lack of understanding of the “wrongfulness” or harmfulness of the conduct

is not a “defense” to a crime, it is a fact on which a prosecutor can rest a decision to forego or “defer” prosecution, to allow a plea to a reduced charge not requiring sex offender registration, or to not charge an offense with a mandatory minimum sentence.

11.2. Empiricism

Clinicians cannot expect to be taken at their word. The following language has

been quoted by judges in criminal cases excluding evidence of an autism diagnosis: That the expert failed to subject his [undisclosed analytic] method to peer‐review [sufficiently to explain his methodology] . . . is not dispositive, but if these guarantees of reliability are not satisfied, the expert 'must explain precisely how he went about reaching his conclusions and point to some objective source to show he has followed the scientific method, as its practiced by at least a recognized minority of scientists [or mental health experts] in his field Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 598 (9th Cir. 1996). Thus, even though it would be unusual in normal clinical practice, it is essential to cite available authority for conclusions, including treatises, publications of seminal research in peer‐ reviewed journals, in support of even the most basic premises. In connection with testing, there should be references to the validation studies and error rates for the tests. Authoritative guides on rendering a diagnosis, including, of course, diagnostic criteria and relevant commentaries in DSM‐5 and DM‐ID‐2 and ICD should be specifically referenced.

11.3. Comprehensiveness

When the defense is advancing the proposition that the defendant was impaired

in intuiting or perceiving the wrongfulness of his conduct, is essential for the clinician to explain how this might be so in respect to every material aspect of the defendant’s conduct. The relevant conduct may not be limited to the actual charges, but to things that investigators or prosecutors or judges might misinterpret. Defense counsel needs 91

to help identify these things and have the clinician address them. Often what seems like a very bad thing is simply an innocuous symptom. (Allely and Cooper, 2017). One defendant who was “smirking” during police interrogation was taken to be sociopathic.

Police thought that all the Disney videos in another defendant’s bedroom were devices to lure children.

Familiarity with the defendant’s history of Internet practices and how he was first

exposed to pornography or child pornography is essential. Often there is victimization there, or clues to explaining future problematic behavior. Familiarity with the contents of images and videos is required, not because it is of particular significance,22 but so the examiner does not later appear naïve as to exactly what the defendant had done, or in suggesting that he might not process the social implications of what he has looked at or solicited.

In cases where there are “chats” with minors, sometimes very extensive, the

prosecutor need only focus on a handful of worst things said by the defendant to make the point. This evidence can only be addressed objectively and effectively in the context of the chats overall, which are always instructive. There may be incessantly repeated routines, stark indications of inability to tell age or differentiate stages of sexual development from photographs, evidence of ToM problems (“mindblindness”) even in text chats, signs of real empathy for others, absence of antisocial traits, the defendant being taken advantage of without knowing it, and so on. Critical in these cases is to identify the extent of reliance on “social scripting” and mimicry, and the absence of intuitive response: this will counterbalance the implication of social competence in the language and methods used by the defendant in “chats.” It has appeared that the defendant cannot identify or recall huge portions of the chats, having been on a kind of perseverative or dissociative “autopilot” for hours on end.

22

It is essential to investigate in a structured way exactly what the defendant was

Even for typically developed individuals, some of the most highly regarded researchers in the field, using the most extensive data ever, have determined that the number or content of the images (related to the age of the child or the kind of activity depicted) has no relationship to dangerousness, or risk of recidivism or even actual sexual interest of the accused. Seto, M., & Eke, A., " Predicting Recidivism Among Adult Male Child Pornography Offenders: Development of the Child Pornography Offender Risk Tool (CPORT)," Law and Human Behavior (2015).

92

thinking at the time of the relevant events. In the course of arrest alone most defendants with ASD become quite aware that they must have done something seriously wrong. Being deferential to police and quick to condemn themselves, these sensations often take firm hold. It can be a challenge to get them to try to remember how they understood their conduct before their arrest. Careful probing is needed to test the degree to which, and how, their actual appreciation of the wrongfulness of their conduct was impaired.

Note that the significant question is not whether or not the defendant was aware

that there might be something illegal about the conduct, although that is most often the case also. If the defendant had the idea that there was something illegal about his behavior, it is well to find out what exactly he thought was illegal about it, and how serious did he think it was compared to other things that are illegal (speeding, smoking marijuana, stealing, assault, actual sexual abuse as depicted in child pornography). Most defendants with autism turn out not to have considered how or why or under what circumstances child pornography is made. As noted previously, those few that seem to have thought about it have very “autistic” (in contrast to cognitively distorting) things to say, for example that the children were probably just actors, or these were probably “selfies” taken by children, or that these were not real children.

Statements during interrogations need to be evaluated. For those who told the

police that they knew that what they were doing was wrong, probing is needed to test the quality of this statement. Can they discuss why the behavior was wrong in their minds, or how seriously it might be wrong (wrong like looking at adult pornography?), or how they learned this or what the harm of the behavior might be. In many cases the police very well understand that the arrestee has a developmental disability or autism specifically and focus for that reason on getting the defendant to say that he was aware that his behavior was wrong. Clinicians should consider relevant research, referenced previously, on the vulnerabilities of those with autism in the interrogation setting.

In the case of a second arrest, the first arrest also has to be contextualized in the

framework of autism. The failure of the defendant to have “learned his lesson” from that prosecution heavily affects the attitude of the prosecutor and the judge. It may 93

seem that the most that can be done in these cases is to somehow avoid sentencing enhancements that may ordinarily apply to a second offense. But this is not necessarily so. Prosecutors are able to appreciate that the effects of the defendant’s autism may not have been taken account, even by defense counsel in the first case, which by all rights maybe never should have been prosecuted or should have been resolved very differently. This almost certainly will trace back to not having had a correct diagnosis at the time, or the failure to have received appropriate therapy. This is as much a “system failure” as a strike against the accused. Also, where the defendant is already registered as a sex offender, there is significantly less pressure – at least if there is no present live victim – on the prosecutor to get a conviction for a sex offense.

Reference should be made to resources from the autism community helping to

reinforce the points made, including appropriate policy statements by experts and organizations. (Klin, et al. 2008; The Arc 2014, 2015, 2017).

The report should also address the kinds of therapy that are appropriate for the

accused with autism, and how successful the therapies are. Such programs should be compared with the typical sex offender treatment program, whose appropriateness or efficacy for those with autism in general or the accused specifically should be addressed.

The report should address ways in which the defendant’s autism characteristics help ensure that he will not reoffend and research tending to support his. The report should address what the prison experience is like for persons with autism and his vulnerabilities in that environment. The report should suggest what kind of accommodations would be appropriate for the defendant in the criminal process, and in the prison setting (especially for safety and mental health) and on supervision.

11.4. Testing the brain

In one case, after substantial live testimony regarding different kinds of

neuroimaging studies showing marked differences in the brains of persons with autism, one judge said, “But they didn't go inside and do brain wave tests. . . . in other words, nobody went in, took a look at his brain and said, ‘Here is a physical manifestation of Autism’.” The judge disregarded the evidence of autism and sentenced the young defendant to over 11 years in prison.

94

In another case, the U.S. Magistrate Judge had recommended that the accused

was not competent to proceed, and the government objected to the finding. The extremely thorough defense evaluation observed that the accused had “obvious neurodevelopmental disabilities involving frontal brain function.” All the neurological deficits were well documented. The U.S. district judge seized upon the fact the psychologist did not perform tests “routinely employed by neuropsychologists to correlate deficits to regions of the brain.” He specifically named five tests or batteries of tests supposedly fitting this description,23 none of which are routinely used in autism evaluations. On this and equivalent complaints about the psychologist’s report, this judge rejected the Magistrate Judge’s recommendation. He did this without a hearing where the defense clinician could easily have answered these concerns. This same judge also declared, “If [the defendant] can learn organic versus hard surface computer modeling, he can be taught how the criminal justice system functions from the perspective of an accused.”

The comments by these federal judges illustrates a persistent problem certain

prosecutors and judges have in considering autism. They find it very difficult to accept that archetypal characteristics those with autism actually apply to the accued merely on the basis of an autism diagnosis, no matter how well it is supported in the developmental history, clinical observations, or typical testing, or the volumes of research verifying the pertinence of all that to the diagnosis. This begs the question of whether or not it might be necessary in some cases, or appropriate in every case, to do whatever testing that can identify any brain abnormality that can be associated with the particular defendant’s deficits, however unnecessary for diagnostic purposes.

It would be wonderful to show that in fact the defendant’s gaze followed the

same patterns identified in the seminal “eye tracking” studies (Klin, et al., 2002) or that he performed similarly to the persons with autism in protocols used in the “Social Attribution Task” (Klin 2000), or that his neural pathways look more like that of Temple 23

“the Halstead‐Reitan Neuropsychological Test; the Cambridge Neuropsychological Test Automated Battery (CANTAB); the Finger Tapping (Oscillation) Test; the Luria‐Nebraska Neuropsychological Battery; the Word Memory Test.”

95

Grandin’s when observed using High‐Definition Fiber Tracking (LRDC).24 More pointedly, since the fundamental question in these cases seems to be whether the defendant is autistic or antisocial, perhaps we should replicate studies using MRI and fMRI to differentiate between the neural correlates of the lack of emotional empathy in persons with antisocial character and the neural correlates of the lack of cognitive empathy in autism to detect the neurological correlates for the condition of the accused (Wallace, 2012). Perhaps genetic tests could be developed for the same purpose (Jones, 2009).

While the reality is that a highly accurate and optimally useful autism diagnosis

can be achieved with very little testing (Monteiro, 2010), getting the science of autism credited in the criminal justice system requires more. Any kind of validated and empirical testing that can support the conclusions of the clinician needs exploration.

Chapter 12: The Americans with Disabilities Act and Rehabilitation Act

At the outset of this monograph, it was observed that the issue of the treatment

of persons with developmental disabilities in criminal courts is in fact a human rights issue. Reference was made to conventions and treaties and domestic statutes. It does not appear that any of these international or individual country laws have been brought to bear in criminal courts in any jurisdiction to provide substantive or procedural protections. Indeed, it is not clear how such principles can be brought to bear.

Nevertheless, whatever uncertainty there may be about how these principles

may be enforced, there is no uncertainty that a duty is imposed upon prosecutors and judges from these enactments, a duty to meaningfully and substantially take developmental disabilities into account in exercising their discretion in relation to the developmentally disabled accused person.

Disability laws requires that government officials take disabilities into account

and accommodate those who are disabled when performing their functions. The principles of § 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794)25 are applicable to

25

The same standards apply to claims under the “Americans with Disabilities Act” (“ADA” 42 USC 12101‐1213) as under the Rehabilitation Act and case law construing the latter generally pertains equally to claims under the

96

federal actions. The Americans with Disabilities Act (“ADA”) applies to states.

Discrimination under either statute generally includes: (1) intentional discrimination; (2) discriminatory impact; and (3) a refusal to make a reasonable accommodation to the disabled. Alexander v. Choate, 469 U.S. 287, 295‐96, 105 S.Ct. 712 (1985). In Choate, the Court reiterated that disparate impact of otherwise non‐discriminatory actions can violate the disability laws and that “reasonable accommodations” may have to be made for the disabled. Thus, treating the accused “like anyone else,” the results, even if unintended, still establish discrimination because of the disproportionate effect such a “neutral” approach is having and will have on him because of his disability.

Disability laws apply to those enforcing the criminal law. (Dinnerstein and

Wakschlag, 2019).26 It is well that police officers are obliged to take an apparent disability into consideration when making the decision to arrest an individual, and in making post‐arrest accommodations. See Sheehan v. City and County of San Francisco, 743 F.3d 1211, 1217 (9th Cir. 2014)(joining the “majority of circuits” holding that ADA applies to police interactions), rev’d in part on other grounds, 135 S.Ct. 1765 (2015); Seremeth v. Bd. of Cnty. Comm’rs of Frederick Cnty., 673 F.3d 333, 338‐40 (4th Cir. 2012) (“[t]he ADA applies to the investigation of criminal conduct”); Waller ex rel. Estate of Hunt v. City of Danville, Va., 556 F.3d 181, 175 (4th Cir. 2009); Gorman v. Bartch, 152 F.3d 907, 912‐13 (8th Cir. 1998) (police department is a public entity and an arrest is a program or service); Gohier v. Enright, 186 F.3d 1216 (10th Cir. 1999); Lewis v. Truitt, 960 F.Supp. 175, 178 (S.D. Ind. 1997)(denying officer’s motion for summary judgment because a genuine question of material fact existed as to whether the defendants “knew [the plaintiff] was deaf but refused to take steps to communicate with him and then arrested him because he did not respond to them appropriately”); Sacchetti v.

Gallaudet Univ., 181 F.Supp.3d 107 (D.D.C. Apr. 20, 2016)(denying officers’ motion for summary judgment because genuine question existed as to whether defendants knew

former. Bradley v. England, 502 F.Supp.2d 259 (D.R.I. 2007). The Rehabilitation Act, the precursor to the ADA, applies to federal agencies, contractors, and recipients of federal financial assistance. Calero‐Cerezo v. U.S. Dept. of Justice, 355 F.3d 6 (1st Cir. 2004) Calero‐Cerezo v. U.S. Dept. of Justice, 355 F.3d 6 (1st Cir. 2004).

26 E.g. Lewis v. Truitt, 960 F.Supp. 175 (S.D. Ind.1997); Lewis v. Truitt, 960 F.Supp. 175 (S.D. Ind.1997); Calloway v.

Boro of Glassboro Dept. of Police, 89 F.Supp.2d 543 (D. N.J. 2000); of Calloway v. Boro of Glassboro Dept. of Police, 89 F.Supp.2d 543 (D. N.J. 2000); McCray v. City of Dothan, 169 F.Supp.2d 1260 (M.D. Ala. 2001).

97

that plaintiff’s decedent was autistic and mentally ill but arrested him over a minor altercation with his roommate).

Prosecutors in the U.S. are nominally obligated to take the defendant’s disability

into account, both as a consequence of these laws, and as a moral proposition.

It should be noted that mental illness is not a crime. Prosecution and incarceration are inappropriate responses to symptoms of mental illness. Law enforcement agencies have a responsibility to distinguish criminal behavior from conduct that is the product of mental illness but has no criminal intent. . .

Paula N. Rubin and Susan W. McCampbell, “The Americans With Disabilities Act and Criminal Justice: Mental Disabilities and Corrections,” p.2, Research in Action, (NIJ July 1995). The paper made clear that the reference also was to developmental disabilities involving “substantially diminished capacity for coping with ordinary demands of life.”

It might be supposed that the ADA and Rehabilitation Act would apply with lesser

force to discretionary decisions about whether to arrest or what to prosecute for, if at all. But this is not so. The Disability Rights Section of the Civil Rights Division of the Department of Justice has asserted: By its plain terms, Title II applies to all governmental entities, including law enforcement agencies. The statutory text contains no "exception that could cast the coverage of" law enforcement entities "into doubt."

Robinson v. Farley, et al., CA № 15‐803‐KBV (DC) ECF #38. The U.S. DOJ has put out technical guides on the applicability of disability laws to law enforcement (U.S. Department of Justice, 2006). (Dinnerstein and Wakschlag, 2019).

“Examples and Resources to Support Criminal Justice Entities in Compliance with

Title II of the Americans with Disabilities Act.” USDOJ, Civil Rights Division, Technical Assistance Publication, January 11, 2017, p.2, stated the goal of nondiscrimination requirements is to “avoid[ ] unnecessary criminal justice involvement for people with disabilities” and the importance of “assessing individuals for diversion programs” on the basis of developmental disabilities. It later gives as an example of compliance with the ADA the setting of “eligibility criteria for diversion programs such as community 98

services, specialty courts, or probation programs,” and “[r]equir[ing] court staff to explore reasonable modifications to allow qualified individuals with these disabilities to participate in diversion and probation programs and specialty courts” as “reasonable modifications in policies, practices, or procedures when necessary to avoid disability discrimination.”

This guidance goes further to insist that governments must prevent unnecessary institutionalization of people with disabilities. Governments have complied with this obligation by using community‐based treatment services to keep people with disabilities out of the criminal justice system. These governments have recognized that the responsibility for effectively serving people with mental health disabilities or I/DD cannot fall to law enforcement alone.

Therefore, they ensure that their disability service systems offer sufficient community based services and support criminal justice entities to coordinate with, and divert to, community‐based services.

These policies were reinforced in a later bulletin entitled “Ensuring Equality in the Criminal Justice System for People with Disabilities,”(U.S. Department of Justice Civil Rights Division) which again speaks to “avoiding unnecessary criminal justice involvement for people with disabilities,” as well as in policy speeches by Deputy Assistant Attorney General Eve Hill of the Civil Rights Division given at the White House Forum on Criminal Justice Reform and People with Disabilities on July 18, 2016, (U.S. Department of Justice, 2016) echoing the head of the Civil Rights Division, Vanita Gupta, in Baltimore on June 16, 2016, speaking at the National Disability Rights Network’s Annual Conference.

Because even 17 years after Olmstead and more than 25 years after passage of the ADA . . . we see this gap in our justice system, as too many people suffer from policies that criminalize mental illness or other disabilities. . . . Because make no mistake: the community integration mandate in Olmstead applies not just to some, but to all public entities.

And that includes public entities in our criminal justice system. . . . In our courts, where appropriate, we want to divert individuals with mental illness from incarceration and connect them with community‐ based treatment. (Gupta, 2016).

99

These powerful statements from the Department of Justice hold that prosecutors should primarily be considering diversion, as a policy for I/DD individuals, unless it “would fundamentally alter the nature of the service, program, or activity.” Since it is not a fundamental feature of federal criminal prosecutions to criminalize those who are not aware that they are doing anything wrong, and present no cognizable danger to others, this proviso is no obstacle.

Second, this guidance holds that “governments must prevent unnecessary

institutionalization of people with disabilities,” which would militate against seeking pleas to offenses requiring mandatory minimum sentences which can be so very arbitrarily sought in the U.S., and where the question whether jail is “necessary” is best left to a due process determination by a judge.

It is not clear what can be done to force prosecutors to follow these authoritative

directives. However, attorneys representing defendants with autism spectrum disorder have every right to insist they do, and that judges likewise insure that prosecutors are cognizant of this duty, and acknowledge that they too have a duty as judges to understand disabilities and meaningfully and substantially take them into account.

It is proposed that, just as a judge might be obligated to insure that the

prosecutor has abided by the requirements of discovery, or the rules of Equal Protection under Batson v. Kentucky, 476 U.S. 79 (1986), he judge might also conduct an inquiry into whether the prosecutor has meaningfully and substantially taken the disability of the accused into account in exercising discretion as to whether, or how to prosecute the case.

Chapter 13: Sentencing

The approach to sentencing may be something of a replication of the

presentation to the prosecutor. In each case we are trying to inform the discretion of government officials, hoping that they will meaningfully, and substantially, take into account the pervasive developmental disability of the accused. Hopefully the defense has taken advantage of earlier opportunities to inform the judge about the defendant’s autism condition and its consequences. Such a head start can be helpful because the 100

amount of time a judge has to consider sentencing is typically not enough to learn what he or she needs to know about ASD, and how it is presented in this individual.

In the sentencing presentation, there will be more emphasis on prison, and how

tortuousness, harmful, and counterproductive it is for those with autism spectrum disorder. As the alternative, focus must be on the success of community treatment actually suited to the young man with ASD, and so much more effective for him and the safety of the community than if delayed by years of gratuitous incarceration devoid of habilitation. The issue of blameworthiness remains the same: to what extent was the accused, because of his neurological difference, unaware of the wrongdoing and potential harm involved in his behavior? This, and the “rule bound” tendency of those with ASD to follow important social rules, once they understand them, are critical factors in imposing sentence.

13.1. A Human Rights issue

Sentencing, where the judge does have the choice not to imprison, squarely

involves a choice about treatment of persons with disabilities, and the human rights concern addressed at the outset of this chapter. But the backdrop for this exercise is not a pretty one. The criminal process, as every experienced criminal lawyer understands at some level, is ritualistic. And in this ritual the imposition of sentence is largely symbolic. And the more symbolic it is, the less concern is seen for the actual blameworthiness of the accused. As Rene Girard has demonstrated, in every human culture rituals of human sacrifice were used as an organizing principle to create social cohesion in the face of existential fears of enemies, epidemic, drought and the wrath of gods, and to quell cycles of retributive violence and blood feuds within. The evolved neurological modules for “mind reading,” were necessary, but not sufficient for holding social groups together, it seems. Those ritual practices evolved into religions, in which sacrifice, human or otherwise, or representations of sacrifice continued to serve this organizing principle. Religions formed ecclesiastical courts which in turn evolved into civil courts, which continue to use the same mechanism, but cloaked in legalistic justifications (Girard 1977). The victims for sacrifice need not have been tied to the phenomena which provoked fear, nor to be guilty of any transgressions, and were often 101

explicitly innocent. Scapegoats typically were different, but not too different from the norm. Jews, ethnic and religious minorities, poorly integrated groups, those with a physical or moral 'abnormality', and the marginal insider (person of privilege), women, children and old people were the ones chosen as scapegoats.

In every culture, and in every generation of humanity we have seen the

scapegoat mechanism at work: ritual human sacrifices of primitive societies, the killing of the pharmakos in Ancient Greece, the Christians killing of Jews by who they blamed for deaths caused by plague, the burning and hanging and torturing of witches and heretics, and lynching of blacks in the United States. All these examples of collective scapegoating violence serve the same underlying function of attempting to unify the community against an individual (or group) which has been made the object of the community’s fears of crisis and violence within. The nominal effort of the state to supplant and hegemonize violence only masks the fact that scapegoating violence is "that enigmatic quality that pervades the judicial system when that system replaces sacrifice” with a “violence that is holy, legal, and legitimate.” (Girard, 1977, p.23). The criminal trial is, essentially, a ritual, at its core no different than the earliest prehistoric events at the root of culture, where the group descended on one person to sacrifice, for the betterment of the community. Indeed, that value is served even where the convicted person is innocent. Herrera v. Collins, 506 U.S. 390 (1992).27

Nothing evokes the need for scapegoats like panic. As demonstrated at the

outset of this chapter, especially in a few countries, we remain enmeshed in an enduring and cultivated moral panic over the fear of sexual exploitation of children by strangers.

The sex offender against children is the ultimate societal pariah. The developmentally disabled are the perfect scapegoat: their noticeable difference has made them a target of fear and a subject of abuse. This is exemplified by the fact that in the US the vast majority of young persons with autism are, almost pathognomonically, bullied. The combinant developmentally‐disabled‐sex‐offender, is therefore the best victim of scapegoating – so easy to incriminate, technically guilty, no agency to defend himself, 27

In Herrera v. Collins, 506 U.S. 390 (1993), the U.S. Supreme Court rejected the effort to avoid execution for murder on a claim that new evidence demonstrated the factual innocence of the Mr. Herrera. His legal guilt, and the interests of “finality,” required his execution.

102

and because of his difficulty perceiving and adapting to the social world, seen as something less than “human.”

The belief in witches was fervent, and the persecution of witches was approved

by sober community leaders. We find it hard today to take seriously their beliefs. But if we find laughable the beliefs of earlier generations which were used to excuse the sacrifice of human beings, how laughable in the future will appear our efforts to rationalize our massive use of incarceration, and annihilating civil stigmatization, upon those with autism, for merely looking at pictures of horrible crimes committed by others, but with no concept of the opprobrium and fears this arouses among others, and presenting no cognizable risk of harming a child?

An important thing to remember in all of this is that it is no use to simply

denounce the prosecutors or the judges who are essential partners in these convictions.

They are doing what they think is expected of them. Indeed, scapegoating processes only work best when the participants do not perceive the sacrificial nature of the process that lies below the superstructure of legality. It is the banality of this that we have to deal with.

A core premise for Girard is that scapegoating can be destroyed by the simple

revelation that the victim is a scapegoat, and innocent of what drives the fears underlying the community’s panic. He even refers to the role of the one who defends the prisoner, alluding to the Biblical “Paraclete” who “dissipates the fog of mythology” in protecting the scapegoat (Girard 1986). This theme is implicitly understood by the lawyers experienced in representing persons against whom the death penalty is sought who try to neutralize the legalistic mechanisms of moral disengagement on which prosecutors rely to legitimize their pursuit of death, if only simply by talking to jurors about them (Haney 1997).

13.2. Actual sentencing practices in online offending by those with ASD

Of course, judges everywhere are required to take individual characteristics into

account, especially factors would which affect blameworthiness of the individual or the degree to which incarceration is needed to protect society. There is every reason to believe that they will understand the need to take developmental disabilities into 103

account, out of simple fairness. There is good evidence that this will be so in four studies

by Colleen M. Berryessa, and colleagues,28 discussed in detail by Claire S. Allely and Penny Cooper, who also catalog the particular traits of persons with autism likely to affect how they are viewed, and important tactical considerations that attorneys must address in any proceeding involving an accused person with ASD (Allely and Cooper 2017).

This author has attempted to identify and track state and federal criminal cases in

the U.S. involving defendants with ASD, and especially where a significant effort was made to educate the judge about the role of ASD in the offense and its significance for estimating the risk of reoffending. Most of the cases involve online sexual offenses. Of those cases, excluding the dismissals, and pretrial diversion, but including cases involving reduced charges not implicating sex offender registration, there are 33 cases.

Of these cases, the following observations apply: 

In federal cases, average downward departure by judges from the bottom end of the federal Sentencing Guideline range – 84%



In federal cases, for those defendants not subject to a mandatory minimum, the defendants not sent to prison ‐‐ 54%



In federal cases, for those defendants not subject to a mandatory minimum who were sent to prison, the average sentence – 32 months



In 17 state cases, defendants sent to prison – 0%

These results, despite the limited number of cases,29 reflect extraordinarily different results than would be expected in similar cases involving typically developed defendants. This is not to say that there are not plenty of cases where horrific results have occurred. But it is evident that many judges in the U.S. will respond positively to efforts to edify them concerning autism and its effects.

13.3. Disability rights in the sentencing context

In addition to the antidiscrimination provisions in disability statutes and

international conventions and resolutions, there is a particular provision in the U.S. 28

(Berryessa, C.M. 2014a), (Berryessa 2014b), (Berryessa, 2015), (Berryessa 2016).

Please inform the author of any cases involving a criminal defendant with Asperger’s or Autism Spectrum Disorder.

29

104

statutes that is called the “integration mandate.” Section 504 of the Rehabilitation Act requires agencies to conduct their programs and activities in “the most integrated setting” appropriate for the individual with a disability. 29 U.S.C. § 794(a).

Describing the problem of mass incarceration of persons with intellectual and

developmental disabilities, Robert Dinerstein and Shira Wakschlag demonstrate how the integration mandate applies to state and federal prisons and the criminal justice process. This not only relates to the conditions of confinement, but the need for diversion from incarceration entirely, stopping the “school‐to‐prison‐pipeline” for those with intellectual and developmental disabilities, and avoiding unjustified imprisonment (Dinnerstein and Wakschlag, 2019). These authors suggest that Olmstead v. L.C., 527 U.S. 581 (1999) supports our argument that, in certain instances, individuals with mental disabilities who are serving penal sentences must be placed in community‐based programs in lieu of jails or prisons

One comes across pronouncements that the ADA and Rehabilitation act “do not

apply to sex offenders.” On its face this notion is not relevant to the accused prior judgment – he is not a sex offender until sentence is imposed. So, all the argument for diversion or other dispositional accommodations are well‐founded in these disability statutes. In the sentencing connection, any such limitation, if real, would be concerning.

However, this rubric does not survive close examination.

Of course, “status as a sex offender does not qualify as a disability” even though

it is very disabling. See, e.g., Shaw v. Smith, 206 Fed. Appx. 546 (7th Cir. 2006); Sears v.

Kentucky, 77 F.3d 483 (6th Cir. 1996). And the statute excludes things like pedophilia from being considered as disabilities. 28 C.F.R. § 35.104(5)(I) stated, “disability does not include... sexual behavior disorders.”

However, no cases suggested that a person who otherwise qualified as disabled

would lose whatever benefits to which they might be entitled under the ADA and Rehabilitation Act merely because they became a sex offender.

105

Chapter 14: Conclusion

Representing persons with ASD presents an extraordinary challenge for the

advocate. We must mediate between two worlds: a punitive world overcome with fear for the sexual exploitation of children, and which tends to demonize those who exhibit any potential sexual interest in children; and another world that struggles on a daily basis to assist those with ASD to adapt to a social world they do not naturally understand. A big part of success for the defense of these cases is having the faith that prosecutors and judges will respond appropriately to the consensus of the scientists, researchers, and organizations about the realities of ASD and the evidence of how directly that relates to the blameworthiness of the accused. .

References References AAPL. (2005). Ethics Guidelines for the Practice of Forensic Psychiatry, Section VI. Retrieved from https://www.aapl.org/ethics.htm AAPL. (2013). Ethics Questions and Answers Opinions of the AAPL Committee on Ethics, Question 17. Retrieved from https://www.aapl.org/docs/pdf/Ethics%20Questions%20and%20Answers.pdf Adams‐Spink G., Justice System ignores autism. 2005. http://news.bbc.co.uk/2/hi/uk_news/4354086.stm Adler, A. (2001). The Perverse Law Of Child Pornography, Colum. L. Rev. 101:209, nn. 36, 130.

Allely, C., Kennedy, S., Warren, I., (2019) A legal analysis of Australian criminal cases involving defendants with autism spectrum disorder charged with online sexual offending. International Journal of Law and Psychiatry. 66:101016 Allely, C. (2015). Experiences of prison inmates with autism spectrum disorders and the knowledge and understanding of the spectrum amongst prison staff: a Review. Journal of Intellectual Disabilities and Offending Behaviour 6(2):55 ‐ 67.

106

http://dx.doi.org/10.1108/JIDOB‐06‐2015‐0014 Allely, C.S., Cooper, P. (2017) Jurors' and Judges' Evaluation of Defendants with Autism and the Impact on Sentencing: A Systematic Preferred Reporting Items for Systematic Reviews and Meta‐analyses (PRISMA) Review of Autism Spectrum Disorder in the Courtroom J Law Med. 25(1):105‐123 Allely, C.S., & Creaby‐Attwood, A. (2016). Sexualoffending and autism spectrum disorders. Journal of Intellectual Disabilities and Offending Behaviour 7(1):35 ‐ 51.

Allen, D., et al., (2008). Offending Behavior in Adults with Asperger Syndrome. Journal of Autism Development Disorders 38:748.

Allen, M. (2018). Mandatory minimum penalties: An analysis of criminal justice system outcomes for selected offences. Juristat. Available via Statistics Canada Catalogue no.

85‐002‐X: https://www150.statcan.gc.ca/n1/pub/85‐002‐x/2017001/article/54844‐ eng.htm. Accessed April, 2020.

Alvares, Bebbington, Cleary, et al. (2020). The misnomer of 'high functioning autism': Intelligence is an imprecise predictor of functional abilities at diagnosis, Autism 24(1):221‐232.

Anderson, C.J., Colombo, J., Jill Shaddy, D. (2006). Visual scanning and pupillary responses in young children with Autism Spectrum Disorder. J Clin Exp Neuropsychol.

28(7):1238‐56.

Ashley, S. (2007). The Asperger's Answer Book: the Top 300 Questions Parents Ask. Illinois: Sourcebooks.

Attwood, T., Henault, I., Dubin, N. (2014). The Autism Spectrum, Sexuality, and the Law: What every parent and professional needs to know. New York: Jessica Kingsley.

Attwood, T. (2007) The Complete Guide to Asperger's Syndrome. London: Jessica Kinglsey.

Attwood, T., The Pathway to Accessing Child Pornography (2014), in Attwood, T., 107

Henault, I., Dubin, N. (2014). The Autism Spectrum, Sexuality, and the Law: What every parent and professional needs to know. New York: Jessica Kingsley.

Babchishin, K., Hanson, R., VanZuylen, H. (2014). Online Child Pornography Offenders are Different: A Meta‐analysis of the Characteristics of Online and Offline Sex Offenders Against Children. Arch Sex Behav 44:45‐66.

Baez, S., Rattazzi, A., Gonzalez‐Gadea, M.L., Torralva, T., Vigliecca, N.S., Decety, J., Manes, F., & Ibanez, A. (2012). Integrating intention and context: assessing social cognition in adults with Asperger syndrome. Front Hum Neurosci 8(6):302.

Baio, J., Wiggins, L., Christensen, D.L., et al. (2018). Prevalence of Autism Spectrum Disorder Among Children Aged 8 Years ‐ Autism and Developmental Disabilities Monitoring Network, 11 Sites, United States, 2014. MMWR Surveill Summ 2018;67(No. SS‐6):1‐23. DOI: http://dx.doi.org/10.15585/mmwr.ss6706a1 Baron‐Cohen, S. (2006). Impaired recognition of negative basic emotions in autism: A test of the amygdala theory. Social Neuroscience 1(34):349‐363.

Baron‐Cohen, S. (2000). Ch. 1 "Theory of mind and autism: A fifteen year review," at p.

5; in S. Baron‐Cohen, H. Tager‐Flusberg, & D. J. Cohen (Eds.), Understanding other minds: Perspectives from developmental cognitive neuroscience (pp. 3‐20). New York, NY, US: Oxford University Press.

Baron‐Cohen, S. (1995) Mindblindness ‐ An Essay on Autism and Theory of Mind. MIT Press.

Behrmann, M., Thomas, C., Humphreys, K. (2006). Seeing It Differently: Visual Processing in Autism. Trends In Cognitive Sciences 10(6): 258‐64.

Behrmann, M., Thomas, C., Humphreys, K. (2006). Seeing It Differently: Visual Processing in Autism. Trends in Cognitive Sciences 10(6): 258‐64.

Bennetto L, Pennington BF, Rogers SJ (1996). Intact and impaired memory functions in autism. Child Dev. 67: 1816‐1835.

Berryessa, C.M., Milner, L.C., Garrison, N.A. and Cho, M.K. (2015). Impact of Psychiatric 108

Information on Potential Jurors in Evaluating High Functioning Autism Spectrum Disorder (hfASD). Journal of Mental Health Research in Intellectual Disabilities 8(3‐4): 140‐67.

Berryessa, C.M. (2014a). Judiciary Views on Criminal Behaviour and Intention of Offenders with High‐Functioning Autism. Journal of Intellectual Disabilities and Offending Behaviour 5(2): 97‐106.

Berryessa, C.M. (2016). Brief Report: Judicial Attitudes Regarding Sentencing of Offenders with High Functioning Autism. Journal of Autism and Developmental Disorders 46(8): 2770‐3.

Berryessa, C.M. (2014b). Judicial Perceptions of Media Portrayals of Offenders with High Functioning Autistic Spectrum Disorders. International Journal of Criminology and Sociology 3: 45‐60.

Bolton, W. (2006) Developmental Theory and Developmental Deficits: The Treatment of Sex Offenders with Asperger's Syndrome, Ch2 in Hiller, J., Woods, H., Bolton W., Sex, Mind, and Emotion. Routledge, New York.

Bonnie, R.J. (1992). The Competence of Criminal Defendants: A Theoretical Reformulation. Behavioral Sciences and the Law 10:291‐316.

Bourke, M. L., & Hernandez, A. E. (2009). The"Butner Study Redux": A report of the incidence of hands‐on child victimization by child pornography offenders. Journal of Family Violence 24:183‐191.

Bowler D M, Gardiner J M, Berthollier N. (2004). Source memory in adolescents and adults with Asperger's syndrome. Journal of Autism and Developmental Disorders 34: 533‐542.

Bowler DM, Gardiner JM, Grice SJ. (2000). Episodic memory and remembering in adults with Asperger syndrome. J Autism Dev Disord. 30: 295‐304.

Bowler DM, Gaigg SB, Gardiner JM (2008a). Effects of related and unrelated context on recall and recognition by adults with high functioning autism spectrum disorder.

Neuropsychologia 46: 993‐999.

109

Bowler DM, Gardiner JM, Gaigg SB. (2007). Factors affecting conscious awareness in the recollective experience of adults with Asperger's syndrome. Conscious Cogn. 16: 124‐ 143.

Bowler DM, Gaigg SB (2008b). Memory in ASD: Enduring themes and future prospects.

In: J Boucher, DM Bowler (eds). Memory in Autism. Cambridge: Cambridge University Press.

Brothers, L. (1990). The social brain: A project for integrating primate behavior and neurophysiology in a new domain. Concepts in NeuroScience 1:27‐51.

Brown‐Lavoie, S.M., Viecili, M.A. and Weiss, J.A. (2014). Sexual knowledge and victimization in adults with autism spectrum disorders. Journal of Autism and Developmental Disorders 44(9): 2185‐96.

Bruce, D., Harper, G. W., Fernández, M. I., & Jamil,O. B. (2012). Age‐concordant and age‐ discordant sexual behavior among gay and bisexual male adolescents. Archives of Sexual Behavior 41:441‐448 Byrne, R., & Whiten, A. (1988). Machiavellian Intelligence: Social Expertise and the Evolution of Intellect in Monkeys, Apes, and Humans. Oxford: Oxford University Press.

Cacioppo, S., Capinatio, J., Cacioppo, J. (2014) Toward a neurobiology of loneliness.

Psychological Bulletin 140(6): 1464‐1504. doi: 10.1037/a0037618 Calleja, N. (2016). Deconstructing a Puzzling Relationship: Sex Offender Legislation, the Crimes that Inspired It, and Sustained Moral Panic. Justice Policy Journal 13:1.

Canada (2014) Convention on the Rights of Persons with Disabilities: First Report of Canada. ISBN 978‐1‐100‐21419‐1.

Canitano, R. & Vivanti, G. (2007). Tics and Tourette syndrome in autism spectrum disorders. Autism 11: 19‐28.

Challenges to Treating Adolescents with Asperger's Syndrome Who are Sexually Abusive (Marks & Garretson, 2004) Chamak, Bonniau, Jaunty, Cohen (2008). What Can We Learn about Autism from Autistic 110

Persons? Psychotherapy and Psychosomatics 77:271‐279.

Cheng, J., Bernstein, M., Danescu‐Niculescu‐Mizil, C., Leskovec, J. (2017) Anyone Can Become a Troll: Causes of Trolling Behavior in Online Discussions, CSCW Conf Comput Support Coop Work 1217‐1230 (2017) doi.org/10.1145/2998181.2998213 Constantino, Kennon‐McGill, Weichselbaum, Marrus, Haider, Glowinski, Gillespie, Klaiman, Klin & Jones (2017). Infant viewing of social scenes is under genetic control and is atypical in autism. Nature 547(7663):340‐344. doi:10.1038/nature22999. Epub 2017 Jul 12.

Corden, B., Chilvers, R., Skuse, D. (2008). Avoidance of emotionally arousing stimuli predicts social‐perceptual impairment in Asperger's syndrome. Neuropsychologia.

46(1):137‐47.

Cosmides, L. (1989). The logic of social exchange: Has natural selection shaped how humans reason? Studies with the Wason selection task. Cognition, 31(3): 187‐276.

Cosmides, L., Tooby, J., and Barkow, J. (1992). Introduction: Evolutionary psychology and conceptual integration. In Barkow, J., et al., (eds.) The Adapted Mind. Oxford: Oxford University Press.

Craig, L., Lindsay, W.R. (2010). Sexual offenders with intellectual disabilities: Characteristics and prevalence. In L. Craig, W.R. Lindsay, W.R., & K.D. Browne (Eds.), Assessment and treatment of sexual offenders with intellectual disabilities (13‐36).

Chichester, UK: Wiley‐Blackwell.

Debbaudt, D. Beyond Guilt or Innocence. AHA/AS/PDD. Available online at: http://www.aha‐as‐pdd.org/Debbaudt.htm. Accessed Aug. 15, 2018.

Dewinter, J., Vermeiren, R., Vanwesenbeeck, I., Lobbestael, J., & Van Nieuwenhuizen, C. (2015). Sexuality in Adolescent Boys with Autism Spectrum Disorder: Self‐reported Behaviours and Attitudes, J Autism Dev Disord 45:731‐741.

Diagnostic Manual ‐ Intellectual Disability: A Textbook of Diagnosis of Mental Disorders in Persons with Intellectual Disability, Robert J. Fletcher, Jarrett Barnhill, Sally‐Ann Cooper (eds.) NADD 2016.

111

Diamond, A. (2013). Executive Functions, Ann Rev Psychol. 64: 135‐168.

Donath, Judith. (1996). Identity and Deception in the Virtual Community, Ch. 2 in Kollock, P. and Smith, M. (eds). Communities in Cyberspace. London: Routledge (1998) Drizin, S. & Leo, R. (2004). The Problem of False Confessions in the Post‐DNA World, 82 N.C. L. Rev. 82:906‐07.

Dunn, J. & Dale, N. (1984). I a daddy: 2 year olds' collaboration in joint pretence with sibling and with mother. In Bretherton, L. (ed.), Symbolic Play. The Development of Social Understanding. Academic Press.

Engel, D., Williams Woolley, A., Jing, L., Chabris, C., & Malone, T. (2014). "Reading the Mind in the Eyes or Reading between the Lines? Theory of Mind Predicts Collective Intelligence Equally Well Online and Face‐To‐Face," PLoS One 9(12).

Finkelhor, D. (1980). Sex among siblings: A survey on prevalence, variety, and effects.

Archives of Sexual Behavior 9:171‐194.

Freckelton, I. (2013). Forensic Issues in Autism Spectrum Disorder: Learning from Court Decisions, Ch. 8 in Fitzgerald, M.,( Ed.) Recent Advances in Autism Spectrum Disorders ‐ Volume II, IntechOpen.

Gardiner, J.M., Bowler, D.M., Grice, SJ (2003). Further evidence of preserved priming and impaired recall in adults with Asperger's syndrome. J Autism Dev Disord. 33: 259‐ 269.

Gardner, H. (1999). Intelligence reframed: Multiple intelligences forthe 21st century.

New York: Basic Books.

Georgescu, A.L., Kuzmanovic., B., Schilbacha, L., Tepesta, R., Kulbida, R., Bente, G., Vogeley, K. (2013). Neural correlates of "social gaze" processing in high‐functioning autism under systematic variation of gaze duration. NeuroImage 3:340‐351.

Gillberg, C. & Gillberg, C. (1989). Asperger Syndrome ‐ Some Epidemiological Considerations: A Research Note. 30 J. Child Psychol. Psychiatry 30:631, 631‐38.

Girard, R. (1986). The Scapegoat. Baltimore: Johns Hopkins Univ. Press. Originally 112

published as Le bouc émissaire, Paris: Bernard Grasset (1982) Girard, R. (1977). Violence and the Sacred. Baltimore: Johns Hopkins, 1977. Originally published as La violence et le sacré, Paris: Bernard Grasset (1972) Goffman, E. (1959) The Presentation of Self In Everyday Life, Doubleday.

Golan, O., Baron‐Cohen, S. (2006). Systemizing empathy: Teaching adults with Asperger syndrome or high‐functioning autism to recognize complex emotions using interactive multimedia. Development and Psychopathology 18:591‐617.

Greenspan, S., Loughlin, G., & Black, R. S. (2001)("Greenspan, et al."). Credulity and gullibility in people with developmental disorders: A framework for future research. In International review of research in mental retardation 24:101‐135.

Griffiths, D., et al. (2007). Sexual and Gender Identity Disorders, in Diagnostic Manual‐ Intellectual Disability: A Textbook of Diagnosis of Mental Disorders in Persons with Intellectual Disability.

Griffiths, D. & Fedoroff, J.P. (2009) Persons with Intellectual Disabilities Who Sexually Offend, Ch 25 in F.M. Saleh, A.J. Grudzinskas, J.M., Bradford, & D.J. Brodsky (Eds.), Sex Offenders: Identification, Risk, Assessment, Treatment, and Legal Issues (pp352‐374).

New York: Oxford University Press (2009) Gupta, V. (2016). Head of the Civil Rights Division Vanita Gupta Delivers Remarks at the National Disability Rights Network's Annual Conference. Retrieved from https://www.justice.gov/opa/speech/head‐civil‐rights‐division‐vanita‐gupta‐delivers‐ remarks‐national‐disability‐rights Hamilton, M. (2012). The Child Pornography Crusade And Its Net Widening Effect.

Cardozo Law Review 33:1.

Haney, C. (1997). "Violence and the Capital Jury: Mechanisms of Moral Disengagement and The Impulse to Condemn to Death," Stanford L. Rev. 49:1447 Hart Jr., H.M. (1958) The Aims of the Criminal Law, 23 Law and Contemporary Problems 401‐441 (Summer 1958) 113

Haskins, B., & Silva, J.A. (2006). Asperger's Disorder and Criminal Behavior: Forensic‐ Psychiatric Considerations. J Am Acad Psychiatry Law 34:374.

Haugaard, J. (1996). Sexual Behaviors between Children: Professionals Opinions and Undergraduates Recollections. Families in Society: The Journal of Contemporary Social Services 77:81‐89.; Haugaard, J., & Tilly, C. (1988). Characteristics predict‐ing children's responses to sexual encounters withother children. Child Abuse and Neglect 12:209‐218 Heeramun, R., Magnusson, C., Gumpert, C.H., et al., (2017). Autism and convictions for violent crimes: population‐based cohort study in Sweden. J Am Acad Child Adolesc Psychiatry 56:491‐497.

Heerey, E. A., Capps, L. M., Keltner, D., & Kring, A. M. (2005). Understanding teasing: Lessons from children with autism. Journal of Abnormal Child Psychology, 33(1), 55‐68.

Henault, I. (2014) Sex Education and Intervention (2014), in Attwood, T., Henault, I., Dubin, N. (eds.) The Autism Spectrum, Sexuality, and the Law: What every parent and professional needs to know. New York: Jessica Kingsley.

Henshaw, M., Ogloff, J.R.P., Clough, J.A. (2017). Looking Beyond the Screen: A Critical Review of the Literature on the Online Child Pornography Offender, Sexual Abuse, 29(5): 416–445 Hingsburger, D., Griffiths, D., Quinsey, V. (1991). Detecting Counterfeit Deviance: Differentiating Sexual Deviance from Sexual inappropriateness. The Habilitative Mental Healthcare Newsletter. 10:51‐54.

Hoffman, S.J., Sritharan, L., & Tejpar, A. (2016). Is the UN Convention on the Rights of Persons with Disabilities Impacting Mental Health Laws and Policies in High‐Income Countries? A Case Study of Implementation in Canada. BMC international health and human rights, 16(1):28. doi:10.1186/s12914‐016‐0103‐1.

Hoge, S. (2015). Cleburne and the Pursuit of Equal Protection for Individuals With Mental Disorders. J Am Acad Psychiatry Law 43:416‐22.

114

Holloway, C. (2018). Facilitating Access to Justice: Exploring the Experiences of Autistic Individuals Arrested and Detained in Police Custody. https://www.researchgate.net/publication/328172042_Facilitating_Access_to_Justice_ Exploring_the_Experiences_of_Autistic_Individuals_Arrested_and_Detained_in_Police_ Custody. Accessed April, 2020.

Howlin, P., & Goode, S. (2000). Outcome in adult life for people with autism and Asperger's syndrome. Autism 4(1):63‐83.

Humphrey, N. (1984). Consciousness Regained. Oxford: Oxford University Press.

Jawaid, A., et al., (2012). 'Too withdrawn' or 'too friendly': considering social vulnerability in two neuro‐developmental disorders. Journal of Intellectual Disability Research 56:335‐350.

Jones, A.P., et al. (2009). Phenotypic and aetiological associations between psychopathic tendencies, autistic traits, and emotion attribution. Criminal Justice and Behavior 36:1198 ‐1212.

Katz, N., & Zemishlany, Z. (2006). Criminal Responsibility in Asperger's Syndrome. Isr J Psychiatry Relat Sci 43(3): 166‐173, 171.

Kellaher, D. (2015). Sexual Behavior and Autism Spectrum Disorders: an Update and Discussion, in Current Psychiatry Reports 17:25.

Kellogg, N.D. (2010). Sexual Behaviors in Children: Evaluation and Management.

American Family Physician 82(10): 1233‐1238.

Kermani, K. (1982, Apr. 25). Kid Porn: A Billion Dollar Scandal. Albanv Times Union.

King, C. & Murphy, G.H. (2014). A systematic review of people with autism spectrum disorder and the criminal justice system. Journal of Autism and Developmental Disorders 44(11):2717‐33.

Klin, A., et al. (2008). Principles for Prosecutors Considering Child Pornography Charges Against People with Asperger Profiles. From AANE. Available online at https://www.aane.org/principles‐for‐prosecutors/. Accessed May, 2020.

115

Klin, A., McPartland, J., Volkmar, F. (2005). Asperger syndrome. In F. Volkmar et al.

(Eds.), Handbook of Autism and Pervasive Developmental Disorders (pp.88‐125).

Hoboken, NJ: John Wiley & Sons.

Klin, A. (2000) Attributing Social Meaning to Ambiguous Visual Stimuli in Higher‐ functioning Autism and Asperger Syndrome: The Social Attribution Task. J. Child Psychol. Psychiat. 41(7): 831‐846.

Klin, A., Saulnier, C. A., Sparrow, S. S., Cicchetti, D. V., Volkmar, F. R., & Lord, C. (2007).

Social and communication abilities and disabilities in higher functioning individuals with autism spectrum disorders: The Vineland and the ADOS. Journal of Autism and Developmental Disorders 37(4):748–759 Krasny, L., Williams, B.J., Provencal, S., Ozonoff, S. (2003). Social skills interventions for the autism spectrum: essential ingredients and a model curriculum. Child Adolesc Psychiatric Clin N Am 12:107– 122.

Krone, T. (2005). Child pornography sentencing in NSW. Australian Institute of Criminology High Tech Crime Brief 8. https://www.aic.gov.au/publications/htcb/htcb008. Accessed April, 2020.

Lamb, S. & Coakley, M. (1993). ‘Normal' childhood sexual play and games: Differentiating play from abuse. Child Abuse & Neglect 17:515‐526.

Lamb, S. & Plocha, A. (2014). Sexuality in Childhood, Ch. 14 in Tolman & Diamond (eds.), APA Handbook of Sexuality and Psychology, Vol. 1: Person‐Based Approaches. APA Publications.

Lamb, S. (2002).The secret lives of girls: What good girlsreally do‐Sex play, aggression, and their guilt. New York, NY: Free Press.

Larsson, I. & Svedin, C‐G. (2007). Sexual behaviour in Swedish preschool children, as observed by their parents. Acta Paediatrica 90:436‐444.

Leakey, R., and Lewin, R. (1992). Origins Reconsidered. New Yorl: Doubleday.

Learning Research & Development Center (LRDC). (n.d.). Walt Schneider Lab: 60 116

minutes. Retrieved from http://www.lrdc.pitt.edu/schneiderlab/content/60‐minutes‐ 20120716.asp Leary, Mary Graw (2010). Sexting or Self‐produced Child Pornography? The Dialog Continues ‐ Structured Prosecutorial Discretion Within a Multidisciplinary Response, Virginia Journal of Social Policy & the Law, 17(3): 488 Lee, J. K., Jennings, J. M., & Ellen, J. M. (2003). Discordant sexual partnering: A study of high‐risk adolescents in San Francisco. Sexually Transmitted Diseases 30:234‐240.

Leitenberg, H., Greenwald, E., & Tarran, M. J. (1989).The relation between sexual activity among children during pre adolescence and/or early adolescence and sexual behavior and sexual adjustment in young adulthood. Archives of Sexual Behavior, 18, 299‐313.doi:10.1007/BF01541950 Lenhart, A. (2009). Teens and Sexting. Pew Research Center: Internet & Technology.

Available online at: http://www.pewinternet.org/2009/12/15/teens‐and‐sexting/.

Accessed April, 2020.

Lerner, M., Haque, O.S., Northrup, E., Lawer, L., & Bursztajn, H. (2012) Emerging Perspectives on Adolescents and Young Adults With High‐ Functioning Autism Spectrum Disorders, Violence, and Criminal Law. J Am Acad Psychiatry Law 40:177, 182, 187.

Leslie, A. (1987). Pretence and representation: The origins of "theory of mind."

Psychological Review 94:412‐426.

LeVay,S., Baldwin, J., & Baldwin, J. (2015).Discovering Human Sexuality. Sunderland, MA: Sinauer Associates.

Levenson, J., Grady, M., & Leibowitz, G. (2016). Grand Challenges: Social Justice and the Need for Evidence‐based Sex Offender Registry Reform. Journal of Sociology & Social Welfare 43:3.

Lindsay, W. R. (2009). The treatment of sex offenders with developmental disabilities.

Sussex, UK: Wiley‐Blackwell Lindsay, W., Carson, D., O'Brian, G., Holland, A., Taylor, J.L., Wheeler, J.R., & Steptoe, L. 117

(2014). A comparison of referrals with and without autism spectrum disorder to forensic intellectual disability services. Psychiatry, Psychology and Law 21(6):947‐54.

Lord, C. (1993). The complexity of social behaviour in autism. In S. Baron‐Cohen, H. Tager‐Flusberg, & D. Cohen (Eds.), Understanding other minds: Perspectives from autism (pp. 292–316). New York: Oxford University Press.

Loveland, K. (1991). Social affordances and interaction II: Autism and the affordances of the human environment. Ecological Psychology, 3: 99–120 Lundström S, et al. (2011). Autistic‐like traits and their association with mental health problems in two nationwide twin cohorts of children and adults. Psychology Medicine 41:2423‐2433.

Luo, T., Hawkley, L., Waite L., & Cacioppo, J. (2012). Loneliness, Health, and Mortality in Old Age: A National Longitudinal Study. Soc Sei Med 74(6):907‐914. doi: 10.1016/j.socscimed.2011.11.028.

Ly, T., Murphy, L., & Fedoroff , P. (2016). Understanding Online Child Sexual Exploitation Offenses. Curr Psychiatry Rep 18:74.

Mahoney, M (2009) Asperger Syndrome and the Criminal Law: The Special Case of Child Pornography. Available via AANE. https://www.aane.org/aspergers‐syndrome‐and‐the‐ criminal‐law‐the‐special‐case‐of‐child‐pornography/. Accessed April, 2020.

Maras KL, Bowler DM. (2012). Brief report: Suggestibility, compliance and psychological traits in high‐functioning adults with autism spectrum disorder. Research in Autism Spectrum Disorders. 6: 1168‐1175.

Maras KL, Bowler DM (2014) Eyewitness testimony in autism spectrum disorder: a review. J Autism Dev Disord 44: 2682‐2697.

Marinos, V., Whittingham, L. (2019). The role of therapeutic jurisprudence to support persons with intellectual and developmental disabilities in the courtroom: Reflections from Ontario, Canada. Int J Law Psychiatry. 63:18‐25. doi: 10.1016/j.ijlp.2018.07.004.

Marinos, V., Griffiths, D., Stromski, S. , Whittingham, J. (2020) Complexities and Gaps in 118

Understanding Persons with Intellectual and Developmental Disabilities and the Criminal Justice System, Ch. 1 in Marinos, V., Griffiths, D., Stromski, S. , Whittingham, J. (Eds), Intellectual and Developmental Disabilities & the Criminal Justice System, NADD Press.

Matthews, N., Malligo, A., Smith, C.J. (2017). Toward the identification of adaptive functioning intervention targets for intellectually‐able, transition‐aged youth with autism: An examination of caregiver responses on the Vineland‐II. Autism Res. 10 (12): 2023‐2036.

McEachern, A., McEachern‐Ciattoni, R., Martin, F. (2012). Sexting: New Challenges for Schools and Professional School Counselors. Journal of School Counseling 10(20):1, 16.

Mehzabin, P. &Stokes, A. (2011). Self‐assessed sexuality in young adults with high‐ functioning autism. Research on Autism Spectrum Disorders 5(1):614‐21.

Meloy, M., Curtis, K., & Boatwright, J. (2012). The sponsors of sex offender bills speak up: Policy makers' perceptions of sex offender, sex crimes, and sex offender legislation.

Criminal Justice and Behavior 40: 438‐452.

Mesibov, G., Shea, V., & Adams, L. (2001). Understanding Asperger Syndrome and High‐ Functioning Autism. In Mesibov, G. (ed.) The Autism Spectrum Disorders Library, Vol. 1.

Springer, Heidelberg, p. 10.

Mitchell, K., Finkelhor, D., Jones, L., & Wolak, M. (2012). Prevalence and Characteristics of Youth Sexting: A National Study. Pediatrics 129(1):13.

Mogavero, M. (2016). Autism, sexual offending, and the criminal justice system. J. Intellectual Disabilities and Offending Behaviour 7(3):116‐126.

Monteiro, M. (2010). Autism Conversations ‐ Evaluating Children on the Autism Spectrum through Authentic Conversations. Western Psychological Services.

Mouridsen, S.E. (2012). Current status of research on autism spectrum disorders and offending. Research in Autism Spectrum Disorders 6(1):79‐86.

Mouridsen, S.E., et al., (2008). Pervasive Developmental Disorders and Criminal Behavior: A Case Control Study. Intl J Of Offender Therapy and Comparative Criminology 119

52:196.

Murakami, Sakai, Takeda, Sawamura, Yoshida, Hirose, Ikeda, Mani, Yamamoto, Ito (2018). Autistic traits modulate the activity of the ventromedial prefrontal cortex in response to female faces. Neuroscience Research 133:28‐37.

Murrie and Zelle, "Criminal Competencies,"in the APA Handbook of Forensic Psychology: Vol. 1, Individual and Situational Influences in Criminal and Civil Contexts (2015); Murrie, D.C., Warren, J., Kristiansson, M., & Dietz, P.E. (2002). Asperger's Syndrome in Forensic Settings. International Journal of Forensic Mental Health 1(1): 59‐70.

Nielsen, S., Paasonen, S., & Spisak, S. (2015). ‘Pervy role‐play and such': girls' experiences of sexual messaging online. Sex Education, 15(5):472‐485.

Njiokiktjien, C., et al., (2001). Disordered recognition of facial identity and emotions in three Asperger type autists. Eur. Child Adolesc. Psychiatry 10: 79‐90 North, A., Russell, A. and Gudjonsson, G. (2005). 'An investigation of potential vulnerability during police interrogation of adults with autism spectrum disorder: a focus on interrogative suggestibility and compliance.' Paper presented at the 1st International Symposium on Autism Spectrum Disorder in a Forensic Context, September, Copenhagen, Denmark.

O'Sullivan, L. & Thompson, A. (2014). "Sexuality in Adolescence," in Tolman & Diamond, (eds.)APA Handbook of Sexuality and Psychology: Vol. 1. Person‐Based Approaches. APA Publications.

Okami, P., Olmstead, R., & Abramson, P. R. (1997). Sexual experiences in early childhood: 18‐year longitudinal data from the UCLA family lifestyles project. Journal of Sex Research 34:339‐347.

Ormond, S., Brownlow, C., Garnett, M.S., Rynkiewicz, A., Attwood, T. (2018). Profiling Autism Symptomatology: An Exploration of the Q‐ASC Parental Report Scale in Capturing Sex Differences in Autism, Journal of Autism and Developmental Disorders, Volume 48, 389‐406, February 2018.

120

Ost, S. (2002). Children at Risk: Legal and Societal Perceptions of the Potential Threat that the Possession of Child Pornography Poses to Society. Journal of Law and Society 29:436.

Ousley, O.Y. & Mesibov, G.B. (1991). Sexual attitudes and knowledge of high‐functioning adolescents and adults with autism. Journal of Autism and Developmental Disorders 21(4):471‐481.

Ozonoff, S., Pennington, B.F., & Rogers, S.J. (1991). Executive Function Deficits in High‐ Functioning Autistic Individuals: Relation to Theory of Mind. J Child Psychol Psychiat , 32(7):1081‐1105.

Pelphrey, K.A., Sasson, N.J., Reznick, J.S., Paul, G., Goldman, B.D., & Piven, J. (2002).

Visual scanning of faces in autism. J Autism Dev Disord 32(4):249‐61.

Perner J, Lang B. (2000). Theory of mind and executive function: Is there a developmental relationship? In: Baron‐Cohen S, Tager‐Flusberg H, Cohen D., (eds.)

Understanding other minds: Perspectives from autism and developmental cognitive neuroscience. 2nd ed. Oxford University Press; Oxford, England: pp. 150‐181.

Peterson, C., Slaughter, V. and Paynter, J. (2007). Social maturity and theory of mind in typically developingchildren and those on the autism spectrum. Journal of Child Psychology and Psychiatry 48(12): 1243‐50.

Phillips, Baron‐Cohen, Rutter, (1992). The role of eye contact in goal detection: Evidence from normal infants and children with autism or mental handicap, Development and Psychopathology, 4:375‐383.

Pluhar, E., DiIorio, C., Jennings, T., & Pines, K. (2005, May 10). "Sexual possibility situations" and progressive heterosexual behaviors among children ages 6–12. Poster presented at the Annual Conference of the American Association of Sex Educators, Counselors and Therapists, Portland, OR. Prizant, B. (2012). High‐ and Low‐Functioning Autism: A False (Harmful?) Dichotomy?

Autism Spectrum Quarterly 31‐33.

Reddy, V. (1991). Playing with others' expectations: Teasing and mucking about in the 121

first year. In Whiten, A. (Ed.), Natural theories of mind: Evolution, development and simulation of everyday mindreading, pp. 143‐158. Cambridge, MA, US: Basil Blackwell.

Richard Wortley, R. & Smallbone, S. (2012). Child Pornography on the Internet. Problem‐ Oriented Guides for Police Problem‐Specific Guides Series No. 41. Available online at: www.cops.usdoj.gov. Accessed April, 2020.

Robison, J.E. (2008). Look Me in the Eye: My Life with Asperger's. New York: Random House.

Roelfsema, M.T., Hoekstra, R.A., Allison, C., Wheelwright, S., Brayne, C., Matthews, F.E., et al. (2012). Are autism spectrum conditions more prevalent in an information‐ technology region? A school‐based study of three regions in the Netherlands. J Autism Dev Disord 42:734‐9.

Rommelse, N., Langerak, I., van der Meer, J., de Bruijn, Y., Staal, W., Oerlemans, A., Buitelaar, J. (2015). Intelligence May Moderate the Cognitive Profile of Patients with ASD. PLoS One 10(10):e0138698. doi: 10.1371/journal.pone.0138698. eCollection 2015.

Rooney, R. (1983). Innocence for Sale: A Special Report on Child Pornography. Ladies' Home J, 79, 128‐30.

Roy, M., Dillo, W., Osterhagen, L. (2016). In the eye of the beholder‐rating of facial attractiveness in adult asperger syndrome. J Autism 3:2.

Rubin, P., McCampbell, S.W. (1995). "The Americans With Disabilities Act and Criminal Justice: Mental Disabilities and Corrections," in Research in Action, National Institute of Justice.

Ruzich, E., Allison, C., Chakrabarti, B., Smith, P., Musto, H., Ring, H., Baron‐Cohen, S. (2015). Sex and STEM Occupation Predict Autism‐Spectrum Quotient (AQ) Scores in Half a Million People. PLoS ONE 10(10): e0141229. https://doi.org/10.1371/journal.pone.0141229 Sabbagh, M. A., Xu, F., Carlson, S. M., Moses, L. J., & Lee, K. (2006). The development of executive functioning and theory of mind. A comparison of Chinese and U.S. preschoolers. Psychological science 17(1):74‐81.

122

Sacks, O. (2012). An anthropologist on Mars: Seven paradoxical tales. Vintage.

Sala, J., (2012). How the UN Convention on the Rights of Persons with Disabilities (CRPD) Might Be Used in Canadian Litigation. CCD. Salseda, L.M., Dixon, D.R., Fass, T., Miora, D., Leark, R.A. (2011) An evaluation of Miranda rights and interrogation in autism spectrum disorders, Research in Autism Spectrum Disorders 5: 79–85.

Saulnier, C., Klin, A. (2007). Brief Report: Social and Communication Abilities and Disabilities in Higher Functioning Individuals with Autism and Asperger Syndrome, J Autism Dev Disord 37:788‐793.

Schulz, Gauthier, Klin, Fulbright, Anderson, Volkmar, Skudlarski, Lacadie, Cohen, Gore (2000). Abnormal ventral temporal cortical activity during face discrimination among individuals with autism and Asperger syndrome. Arch Gen Psychiatry 57(4):331‐40.

Scott‐Hayward, C. (2007). Explaining Juvenile False Confessions: Adolescent Development and Police Interrogation, 54.

Seto, M.C., Hanson, R.K., & Babchishin, K.M. (2011). Contact sexual offending by men with online sexual offenses. Sexual Abuse 23:124‐145.

Silverman, S. (2015). NeuroTribes: The Legacy of Autism and the Future of Neurodiversity. Avery, New York.

Sodian, B., Taylor, C., Harris, P., and Pemer, J. (1992). Early deception and the child's theory of mind: False trails and genuine markers. Child Development 62: 468‐483.

Sodian, B. (1991). The development of deception in young children. British Journal of Developmental Psychology 9:173‐188.

Sofronoff, K., Dark, E., & Stone, V. (2011)("Sofronoff et. al."). Social vulnerability and bullying in children with Asperger syndrome. Autism, 15(3):355‐372.

Strassberg, D., McKinnon, R., Sustalia, M., & Rullo, J. (2013). Sexting by High School Students: An Exploratory and Descriptive Study. Archives of Sexual Behavior 42(1): 15, 18.

123

Strauss, M. (2011). Reevaluating Suspect Classifications. Seattle University Law Review, 35:135.

Sugrue, D. (2017). "Forensic Assessment of Individuals on the Autism Spectrum Charged with Child Pornography Violations." In Dubin & Horotwitz (eds.) Caught in the Web of the Criminal Justice System. New York: Jessica Kingsley Publications.

Suler, J. (2004). The online disinhibition effect. Cyberpsychology & Behavior 7:321‐326.

Taylor, K., Mesibov, G., & Debbaudt, D. (2009). Asperger Syndrome in the Criminal Justice System. Available via AANE: http://www.aane.org/asperger‐syndrome‐criminal‐ justice‐system/. Accessed April, 2020.

The Arc. (2014). Position Statement Criminal Justice System. Retrieved from http://www.thearc.org/document.doc?id=3636 The Arc. (2017). Competency of Individuals with Intellectual and Developmental Disabilities in the Criminal Justice System: A Call to Action for the Criminal Justice Community. Retrieved April 30, 2020, from http://thearc.org/wp‐ content/uploads/2019/07/16‐089‐NCCJD‐Competency‐White‐Paper‐v5.pdf The Arc. (2015). Sex Offenders with Intellectual/Developmental Disabilities: A Call to Action for the Criminal Justice Community. Retrieved April 30, 2020, from http://thearc.org/wp‐content/uploads/2019/07/NCCJD‐White‐Paper‐2_Sex‐Offenders‐ FINAL.pdf The International Center for Missing and Exploited Children (2016) Child Pornography: Model Legislation & Global Review. Available via ICMEC: http://www.icmec.org/wp‐ content/uploads/2016/02/Child‐Pornography‐Model‐Law‐8th‐Ed‐Final‐linked.pdf.

Accessed April, 2020.

The National Registry of Exonerations ‐ Age and Mental Status of Exonerated Defendants who Confessed, http://www.law.umich.edu/special/exoneration/Documents/Age%20and%20Mental%2 0Status%20of%20Exonerated%20Defendants%20Who%20Falsely%20Confess%20Table. pdf, 2009 124

Tillmann, J., San José Cáceres, A., Chatham, C., Crawley, D., Holt, R, Oakley, B., Banaschewski, T., Baron‐Cohen, S., Bölte, S., Buitelaar J.K., Durston, S., Ham, L., Loth E., Simonoff, E., Spooren, W., Murphy, D.G., Charman, EU‐AIMS LEAP group. (2019) .

Investigating the factors underlying adaptive functioning in autism in the EU‐AIMS Longitudinal European Autism Project. Autism Res. 12(4):645‐657. doi: 10.1002/aur.2081. Epub 2019 Feb 11.

U.S. Department of Justice (2017a). Examples and Resources to Support Criminal Justice Entities in Compliance with Title II of the Americans with Disabilities Act. Retrieved from https://www.ada.gov/cjta.html U.S. Department of Justice (2006). Commonly Asked Questions About the Americans with Disabilities Act and Law Enforcement, section I, question 2. Retrieved from https://www.ada.gov/q&a_law.htm U.S. Department of Justice (1993). Americans with Disabilities Act: Title II Technical Assistance Manual 1994 Supplement § II‐ 7.1000(B), illustration 3. Retrieved from http://www.ada.gov/taman2up.html.

U.S. Department of Justice (2016). Deputy Assistant Attorney General Eve Hill of the Civil Rights Division Delivers Remarks at the White House Forum on Criminal Justice Reform and People with Disabilities. Retrieved from https://www.justice.gov/opa/speech/deputy‐assistant‐attorney‐general‐eve‐hill‐civil‐ rights‐division‐delivers‐remarks‐white U.S. Department of Justice (2017). "Ensuring Equality in the Criminal Justice System for People with Disabilities," in Information and Technical Assistance on the Americans with Disabilities Act. Retrieved from https://www.ada.gov/criminaljustice/ U.S. Sentencing Commission (USSC). (2020) Quick Facts on Child Pornography Offenders. https://www.ussc.gov/sites/default/files/pdf/research‐and‐ publications/quick‐facts/Child_Pornography_FY19.pdf U.S. Sentencing Commission (USSC). (2012). Report to the Congress: Federal Child Pornography Offenses. Available online at: 125

https://www.ussc.gov/research/congressional‐reports/2012‐report‐congress‐federal‐ child‐pornography‐offenses. Accessed April, 2020.

Venter, A., Lord, C., Schopler, E. (1992). A follow‐up study of high‐functioning autistic children. Journal of Child Psychology & Psychiacry & Allied Disciplines, 33(3), 489‐ 507 Volkmar, F., Westphal, A. Gupta, A., Wiesner, L. (2008). Medical Issues, Ch. 10 in Katarzyna, C., Klin, A., Volkmar. F., Autism Spectrum Disorders in Infants and Toddlers, Diagnosis, Assessment, and Treatment, The Guilford Press.

Volkmar, F., Paul, R., Klin, A., Cohen, D.(2005). Asperger Syndrome. In Matson, J.L., & Sturmey, P., (eds.), Handbook of Autism and Pervasive Developmental Disorders, Vol. 1: Diagnosis, Development, Neurobiology, and Behavior, 3rd Ed. New York: Springer.

Volkmar, F., Klin, A., Schultz, R., State, M., (2017). Chapter 44 ‐ Autism Spectrum Disorder and Social Communication Disorder, p. 3585 in Sadock, B., Sadock V., Ruiz, P., (eds.) Kaplan and Sadock's Comprehensive Textbook of Psychiatry. Wolters Kluwer.

Wainscot, J. J., Naylor, P., Sutcliffe, P., Tantam, D., & Williams, J. V. (2008). Relationships with peers and use of the school environment of mainstream secondary school pupils with Asperger syndrome (high‐functioning autism): A case‐control study. International Journal of Psychology and Psychological Therapy, 8(1).

Wald, P. (1964), Pretrial Detention and Ultimate Freedom: A Statistical Study, 39 N.Y.U. Law Review 631; Walker Wilson, M. (2013). The Expansion of Criminal Registries and the Illusion of Control. Louisiana Law Review 73:509, 519‐522.

Wallace, Lee, Clasen, et al. (2012). Distinct Cortical Correlates of Autistic versus Antisocial Traits in a Longitudinal Sample of Typically Developing Youth. The Journal of Neuroscience 32(14): 4856‐60.

Wauhop, B. (2009). Mindblindness: Three Nations Approach the Special Case of the Criminally Accused Individual with Asperger's Syndrome. Penn State International Law Review 27:959.

126

Weiss, K. & Watson, C. (2008). NGRI and Megan's Law: No Exit? J. Am. Academy of Psychiatry and the Law Online 36(1): 117‐122.

Westphal, A. (2017). Public Perception, Autism, and the Importance of Violence Subtypes, J. American Academy of Child & Adolescent Psychiatry 56(6).

Wetherby, Schuler & Prizant (1997). Enhancing Language and Communication Development: Theoretical Foundations, Ch. 24 in D. Cohen & F. Volkmar (Eds.), Handbook of autism and pervasive developmental disorders. (Wiley, Second Edition).

Will Dobbie, Jacob Goldin, and Crystal S. Yang (2018),The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, American Economic Review, 108(2): 201‐240; Woodbury‐Smith, M.R., Clare, I.C.H., Holland, A.J., & Kearns, A. (2006). High functioning autistic spectrum disorders, offending and other law‐breaking: findings from a community sample, The Journal of Forensic Psychiatry & Psychology, 17:1, 108‐120, DOI: 10.1080/14789940600589464 Wortley, R., Smallbone, S. (2012) Child Pornography on the Internet, in Problem‐ Oriented Guides for Police Problem‐Specific Guides Series, No. 41. ISBN 1‐932582‐65‐7. https://popcenter.asu.edu/content/child‐pornography‐internet‐0.

Wurtele, S. & Kenny, M. (2011). Normative sexuality development in childhood: Implications for developmental guidance and prevention of childhood sexual abuse.

Journal of Multicultural Counseling and Development 43:1‐24.

Ye Luo, Louise C. Hawkley, Linda J. Waite, and John T. Cacioppo. Loneliness, Health, and Mortality in Old Age: A National Longitudinal Study. Soc Sei Med. (2012) 74(6): 907‐914. (doi: 10.1016/j.socscimed.2011.11.028)

127

Texas Criminal Defense Lawyers Association Membership Application (Effective 4/2019)

Contact Information Your membership is effective upon approval of application and receipt of annual membership dues. q Mr. q Ms. q Mrs.

______________________________________________________

__________________________ __________________________

______________________________________________________

______________________________________________________

Name (first, middle, last) Address

Date of Birth*

Ethnicity*

City, State, Zip

___________________________ ___________________________ ___________________________ ___________________________ County

Phone

Cell phone

Fax

_____________________________________ ____________________________________ ____________________________________ Business Email Website

______________________________________________________ Bar Card Number/Date Licensed

______________________________________________________ Member of Local Bar

New-Member Endorsement (must be completed for new members) As a current member of TCDLA, I believe this applicant to be a person of professional competency, integrity and good moral character.

______________________________________________________ Printed Name of Endorser

______________________________________________________ Signature of Endorser

* These questions are optional and for internal statistics only. The information provided will not be distributed at any time.

Membership Fees Membership Category and Yearly Fees: $_______ $100 First-time ($100 for each of the first two years) $_______ $180 Regular member $_______ $60 Public defender (must be a PD employee) $_______ $330 Voluntary sustaining (required for TCDLA officers and directors) $_______ $100 TCDLA past president $_______ $80 Distinguished member (70+ years old) $_______ $20 Law student (not auto-renew) $_______ $80 Affiliate (: q Paralegal q Investigator q Expert q Other (law professors & others

approved by board) I prefer not to participate in auto-renewal

$_______ Total

Get Involved: Committees/Lawyer Locator q I’m interested in serving on a committee—send information. q Send me a Board application. q Yes! Include me in the online Lawyer Locator.** You may list up to three areas of specialty in criminal defense law for public access (example: DWI, sexual assault, appeals).

_________________ __________________ ________________

**Disclaimer: Provider makes no promises, guarantees, or warranties regarding the attorneys listed on its Lawyer Locator. Said attorneys are TCDLA members who have requested inclusion on provider’s website to provide the public with choices for possible legal services. Provider expressly disclaims all warranties, including the warranties of merchantability, fitness for a particular purpose, and non-infringement. Moreover, content contained on or made available through this website is not intended to and does not constitute legal advice, and no attorney-client relationship is formed. The accuracy, completeness, adequacy, or currency of the content is not warranted or guaranteed. Your use of information on the website or materials linked from the website is at your own risk.

q I would like to donate to the TCDLEI scholarship fund, 501(c)(3) organization, in the amount of $__________________________________.

Payment Method For your convenience, TCDLA uses AUTO RENEWAL for all membership dues, using your checking account or credit card. You will be automatically enrolled in the autorenewal program so you do not have to do anything while continuing to enjoy membership benefits every year! You can always opt out of auto-renewal anytime by simply contacting TCDLA by emailing mrendon@tcdla.com or by checking the opt-out option above.

As the account holder at the financial institution I have designated for Automatic Draft, I authorize TCDLA to automatically draft the account I have designated and I authorize my financial institution to debit my payments automatically from the Draft Account on the date the payment is due. I further understand and agree as follows: • This authorization will remain in effect until TCDLA receives a written notification of cancellation at least 10 business days in advance of the next payment due date.

____________________________________________________

______________________________________________________

Type Name to Authorize Payment Date

q C hecking Account Name of Institution* _____________________________ Financial Institution 9-Digit Routing # __________________________ Account # __________________________

q Credit card (Visa, Mastercard, Amex, or Discover)

______________________________________________________ Credit Card Number

______________________________________________________ Expiration Date

Tax Notice: $36 of your annual dues ($19 if a student member) is for a one-year subscription to the Voice for the Defense. Dues to TCDLA are not deductible as a charitable contribution but may be deducted as an ordinary business expense. The non-deductible portion of regular and initial membership dues is $39 in accordance with IRC sec. 6033.

Information will be used for TCDLA communication (legislative, SDRs, seminars, events, and other announcements related to criminal defense). Contact office to opt out. For refunds please note credit cards may take 2-5 business days, checks may take longer. Contact mrendon@tcdla.com for any questions or concerns.

TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA

OUR HISTORY

Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases.

From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education.

TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas.

TCDLA continues to foster these relationships and develop additional affiliations.

As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

ABOUT TCDLA

The Texas Criminal Defense Lawyers Association strives to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are being made to curtail these rights; to encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance; and through this cooperation, education and assistance, to promote justice and the common good.

ABOUT CDLP

The Criminal Defense Lawyers Project strives to improve the competency of defense lawyers through designing and promoting a series of continuing legal education seminars and producing legal publications available at low cost to attorneys throughout the state.

ABOUT TCDLEI

The Texas Criminal Defense Lawyers Educational Institute is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staffs.

For more information about the association, or to learn about upcoming CLE seminars and events, please visit www.tcdla.com.

WWW.TCDLA.COM

Save $$$ with Auto Renew

Texas Criminal Defense Lawyers Association Membership Application (Effective 7/18/2018)

Contact Information Your membership is effective upon approval of application and receipt of annual membership dues. Please allow two to four weeks for confirmation and certificate receipt. q Mr. q Ms. q Mrs.

______________________________________________________

__________________________ __________________________

______________________________________________________

______________________________________________________

Name (first, middle, last)

Address

Date of Birth*

Ethnicity*

City, State, Zip

___________________________ ___________________________ ___________________________ ___________________________ County

Phone

Cell phone

Fax

_____________________________________ ____________________________________ ____________________________________ Company Email Website

______________________________________________________ Bar Card Number/Date

______________________________________________________ Affiliate Association

* These questions are optional and for internal statistics only. The information provided will not be distributed at any time.

Nominating Endorsement (must be completed for new members) As a current member of TCDLA, I believe this applicant to be a person of professional competency, integrity and good moral character.

______________________________________________________ Printed Name of Endorser

______________________________________________________ Signature of Endorser

Membership Category q Automatic Renewal $160—save $20 annually in select categories (regular, sustaining & voluntary sustaining members). As the account holder at the financial institution I have designated for Automatic Draft, I authorize TCDLA to automatically draft the account I have designated and I authorize my financial institution to debit my payments automatically from the Draft Account on the date that the payment is due. I further understand and agree as follows: This authorization will remain in effect until TCDLA receives a written notification of cancellation at least 10 business days in advance of the next payment due date.

Checking Account

Name of Institution* _____________________________ Financial Institution 9-Digit Routing # __________________________ Account # __________________________ One-year membership. Please check appropriate box. q First-time member reg • $100 for each of the first two years q Regular member (renewal) reg • $180 (auto renew save $20: $160) q Public defender member (must be a PD employee) pd • $60 q Texas or q Federal q Voluntary sustaining member (required for TCDLA officers and directors) vs • $330 q Sustaining member (required for TCDLA associate directors) sus • $230

q TCDLA past president member ppres • $100 q Distinguished member (70+) dis • $80 q Law student member stu • $20 q Affiliate member aff • $80

q Paralegal paral q Investigator inv q Expert exp q Other (law professors and other persons approved by the board of directors)

q I would like to donate to the TCDLEI scholarship fund, 501(c)(3) organization, in the amount of $__________________________________.

Tax Notice: $36 of your annual dues ($19 if a student member) is for a one-year subscription to the Voice for the Defense. Dues to TCDLA are not deductible as a charitable contri-

bution but may be deducted as an ordinary business expense. The non-deductible portion of regular and initial membership dues is $39 in accordance with IRC sec. 6033.

Get Involved: Committees/Lawyer Locator q I’m interested in serving on a committee—send information. q Send me a Board application. q Yes! Include me in the online Lawyer Locator.* You may list up to three areas of specialty in criminal defense law for public access (example: DWI, sexual assault, appeals).

____________________________________ ___________________________________ ____________________________________ *Disclaimer: Provider makes no promises, guarantees, or warranties regarding the attorneys listed on its Lawyer Locator. Said attorneys are TCDLA members who have requested inclusion on provider’s website to provide the public with choices for possible legal services. Provider expressly disclaims all warranties, including the warranties of merchantability, fitness for a particular purpose, and non-infringement. Moreover, content contained on or made available through this website is not intended to and does not constitute legal advice, and no attorney-client relationship is formed. The accuracy, completeness, adequacy, or currency of the content is not warranted or guaranteed. Your use of information on the website or materials linked from the website is at your own risk.

Payment Method q Check payable to TCDLA q Credit card (Visa, Mastercard, Amex, or Discover) Auto renewal saves $20 a year for regular members.

______________________________________________________

______________________________________________________

______________________________________________________

______________________________________________________

Credit Card Number

Name on Card

Expiration Date

Signature

Information will be used for TCDLA communication (legislative, SDRs, seminars, events, and other announcements related to criminal defense). Contact office to opt out.

TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers.

New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code.

Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments.

With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form).

Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported.

The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission.

Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements.

Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure.

In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county.

As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process.

Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate.

The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study.

Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases.

While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases.

The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions.

To learn more about this research please visit the study website at http://texaswcl.tamu.edu.

WWW.TIDC.TEXAS.GOV

MARCH 2014

WWW.TCDLA.COM

Texas Criminal Defense Lawyers Educational Institute Make a Difference Support an Attorney The Texas Criminal Defense Lawyers Education Institute (TCDLEI) is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staff. Your generous tax-deductible contribution to the Texas Criminal Defense Lawyers Educational Institute can be applied in several ways to fund a variety of legal and educational services for our membership.

Deserving members without the wherewithal to attend our seminars can get financial aid to help in their continuing legal education.

Pledge Options Choose a fund that’s near and dear to you: For the q ASSOCIATE FELLOWS FUND ($750) q FELLOWS FUND ($1500) q SUPER FELLOWS FUND ($3000) q In one lump sum q Quarterly q Monthly q In ____ payments of $________.

I would like to designate this donation for use on these specific funds: q CHARLES BUTTS Law Student Scholarship in the amount of $_________ q Financial CLE SCHOLARSHIPS $___________ q For the COMANCHE CLUB in the amount of $_________ q F or _CHRISTINE S. CHENG MD MEMORIAL Asian-American Scholarship & Travel fund in the amount of $___________ q BERTHA MARTINEZ TRIAL COLLEGE Travel Scholarship in the amount of $___________ q KELLY PACE MEMORIAL NEW LAWYER TRAVEL FUND in the amount of $___________

Contact Information _________________________________________________________________ Name

__________________________________________________________________ Bar Card Number/Date

_________________________________________________________________ Street

__________________________________________________________________ City, State, Zip

_________________________________________________________________ __________________________________________________________________ Phone Email

Payment Method q Check payable to TCDLEI q Credit Card (Visa, Mastercard, Amex, or Discover) _________________________________________________________________ Credit Card Number

__________________________________________________________________ Expiration Date

_________________________________________________________________ Name On Card

__________________________________________________________________ Signature

Mail completed pledge form with payment to TCDLA • 6808 Hill Meadow Drive • Austin, Texas 78736 TCDLA Office Use Only Amount:______________________________ Check/cc: ________________________________ Entered By: ______________________________ Date: ___________________________

www.tcdla.com

© 2020