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My name is Jess Johnson. I'm a criminal defense lawyer in Atlanta, Georgia, and I've been representing clients accused of child molestation in the state for the past 15 years.
And over those years, we've developed a winning and comprehensive strategy to tackle child molestation charges head-on and to be successful in court. And one thing I think it's important for people to know right out of the box is that sex offense cases, especially child molestation cases, are different from most criminal cases.
We've all been taught that the state has to prove any criminal case beyond a reasonable doubt, which is a very high burden to me. And that is technically true, but from a practical standpoint, people want to believe a child. They want to believe that the child's explanation for what happened is true and accurate. They don't want to consider the fact that a child could be lying.
And so in these cases, all the state really has to do to win the case is to put the child on the witness stand and have that child testify at trial. That alone is enough to sway many juries. And if the defense doesn't have a comprehensive defense that it's developed prior to trial, then they're likely going to know what it feels like to get a losing verdict.
In any sex offense case where the allegation is child molestation, it is extremely important that you hire a lawyer who is steeped in these cases, who has a lot of knowledge and experience for handling these cases because the penalties are so severe and life-changing. Child molestation carries a mandatory minimum sentence of five years in prison, and that goes up to 20 years per count under Georgia law.
There's also the offense of aggravated child molestation. An aggravated child molestation usually occurs when there's an act of sodomy, either oral or anal, involved in the case. And that is a much more severe penalty. That carries a mandatory minimum of 25 years in prison that the defendant has to serve every day of, and that sentence can go up to life.
So, at a trial, what does the state have to prove to convict you? Well, there are three elements to child molestation, and the state tactically has to prove each of these elements beyond a reasonable doubt. The first element is that the defendant committed an immoral or indecent act. The second element is that the act was committed to or in the presence of a child under 16 years old. And the third element is that the act was done with the intent to arouse or satisfy the sexual desire of the child or of the defendant.
So, to be convicted of the more serious offense of aggravated child molestation, and again, that carries a 25-year mandatory minimum sentence up to life, to be convicted of that offense, the state has to prove the additional element of sodomy.
Now, before we can understand how to defend these cases, we really need to understand the evidence that the state is going to use at trial to get a conviction. Once we understand that, we can develop a defense around it. And as I said earlier, all the state really needs to do is to put the child on the witness stand at trial and have that child testify that the defendant touched them inappropriately to win a conviction for child molestation.
But normally, the state's going to do more than just put the child on the witness stand. In all of these cases, the state is going to introduce what's called a forensic interview. Early on in the case, after the police receive a report of child molestation, they're not going to actually interview the child. What's going to happen is that they're going to take the child to an expert, or so-called expert, in interviewing children, and that is called the forensic interview.
When that interviewer interviews the child, and now forensic interviews are recorded, and normally nine times out of ten, the state is going to play that evidence, or that recording, at trial. And that is often going to be the state's most powerful evidence in these cases.
The state is also going to have outcry witnesses testify. An outcry witness is simply a person that the child made an outcry to. The state will also present any medical evidence that it may have. Normally, after an allegation, a child will be taken to a hospital and examined by a nurse or a doctor. And what they're looking for is a couple of things, but that's primarily going to be if there are any STDs that the child has, or if there's any tearing, something that would be indicative of child abuse.
In some cases, the state may also introduce DNA evidence. And the DNA may not just come from the child. We've surely seen DNA cases where the state has introduced evidence of DNA either on a bedspread or a sofa, something along those lines.
The state is going to try to introduce any statements that the defendant may have made during the course of the investigation. So, prior to an arrest, the state will have interview witnesses, they will have taken the child to get checked out by a doctor, and the forensic interviewer. And the last step in all of this is going to be contacting the actual target in the investigation, the defendant, and asking that defendant if they will submit to an interview.
Those interviews are typically going to be recorded, and if a statement was given that is incriminatory, then they're often going to play that at the trial. Now, these statements that the defendant gives, a lot of times they're not full-blown confessions. Instead, what the law enforcement officer is doing the interview tries to do is he tries to get the defendant to admit to various things, that you were at this house on a particular date, that you interacted with this child on a particular date, that you've been alone with the child before. Those things, the state can use to build a case against someone.
The state is also going to try to introduce any other evidence that it obtained during its investigation. And this can be anything from text messages or electronic communications, or photographs of where the abuse allegedly happened. It can be sexual paraphernalia, or it could be a DNA swab. Whatever it is that pops up in their investigation that they think that they can use against you at trial, they will certainly try to introduce it.
The state will also try to introduce other bad acts. So, if someone was previously convicted of a sex offense, or it doesn't even have to be a conviction. If there was some improper conduct in the past that the state believes is relevant to these charges, then they're going to try to introduce that into evidence.
So now that we know the evidence that the state is likely to introduce at trial to get a conviction, we can start to build a defense around it. And from a ten-thousand-foot view, that defense is almost always going to center on the fact that the child is either lying or that the child is simply mistaken about what occurred. Either way, the jury is going to need an explanation for why the child is lying or why the child is mistaken about what occurred.
And as far as lying goes, there are a number of reasons why a child might lie. One is, some children have a very strong imagination, and sometimes they get things in their heads. And some children are known for lying, and some children have a reputation for that. And so we've actually had witnesses who know the child very well, sometimes a school teacher or neighbor, who comes in to testify that, yes, this child often lies, that's what they're known for.
In other cases, there's probably something going on in the family, there's some family discord, oftentimes a divorce, a heated contested divorce, and there's a reason why the child might be lying. And that is that a mom or an aunt or grandmother might be coaching the child to lie. And then there are a number of other reasons for why the child might be lying in a case.
And one of them that we've seen before is what's called perpetrator substitution. And that's where the child has actually been abused, but the child's abuser is someone that scares that child so much that what the child does is they blame another adult for it. They blame an adult that they're not scared of. But by telling someone about it, the child is now protected and usually out of harm's way. But we have certainly seen that be the case in a number of instances, and it's something that we explore in every case.
So, when it comes to developing a defense in these cases, the first step is always going to be to conduct your own independent investigation. And this is likely going to mean hiring your own private investigator because a private investigator can go out and interview witnesses, gather documents, preserve communications on social media or text messages, whatever communication is out there, they can get their hands on and preserve that.
We are always surprised the number of cases where there are some text messages or Facebook messages or Instagram messages that are going to play a vital role in the case. And the sooner the defense can get their hands on those things and understand what was taking place prior to these allegations, the better off the defense is going to be.
Something else that we like to consider in these cases is polygraph evidence. In some cases, where it makes sense, we'll have our clients submit to a polygraph examiner. Now, polygraphs are not admissible in court unless the state agrees for them to be admissible and the defense also agrees for them to be admissible. But a polygraph can be powerful information for the state to consider when deciding if they're actually going to bring charges in a case. Not always, but we have certainly had the state decline prosecution or not charge someone because of a polygraph examination that they trusted.
The next step in defending these cases is to file motions and to be aggressive with motions prior to trial. A strong motions practice is going to be essential in these cases. And motions begin with a motion to suppress the evidence. So, if law enforcement got a search warrant and searched your house or your vehicle or your cell phone, they're likely going to try to use any incriminating evidence against you at trial. But if that evidence was illegally obtained, or if law enforcement didn't have probable cause to get the search warrant, or if law enforcement exceeded the scope of the search warrant, then what we can do is file a motion in court, arguing that they violated your Fourth Amendment rights against an unreasonable search and seizure. And if the judge agrees with me, the judge will essentially throw that evidence out. The state can't use it at trial.
Similarly, what we can do is file a motion to suppress statements in the case. If statements were made and there was an admission or a confession, but they were unlawfully obtained by law enforcement, then we can file a motion to suppress statements, arguing that law enforcement violated your Fifth Amendment rights against self-incrimination.
Another type of motion that is common in these cases is to file a motion to exclude irrelevant or prejudicial evidence. And we also see this in the form of either a prior conviction in a case or prior bad act, where someone is accusing you of acting inappropriately in the past, or say they searched your house and they found Cialis, and the state wants to use that at trial against you. We can argue that that's wholly irrelevant and prejudicial and should be kept out of the trial process.
Another very, very important motion that should be filed in virtually every child molestation case that goes to trial is that the defense lawyer needs to file a motion for defects and counseling records. The reason why is that a lot of times in these cases, the alleged victim will have some interaction with defects in the past or school counselors in the past, or it could be that they have a counselor that they've been going to see before or since the allegations. That's going to be very relevant to the case.
But you can't get those records normally unless you file a motion with the court asking for them specifically and explaining to the court why you need these records. And we are surprised every single time that we get our hands on these records, the amount of useful information that is in it. We have seen alleged victims in these cases recant, tell an entirely different version of events, or we find out that the child has accused multiple other people of this, and that those have been lies as well. So, it is incredibly important for your lawyer to take that step to file those motions and to get the records. It is something that can delay the case by at least a few months, but ultimately, it's almost always worth it to look under that stump.
Lastly, one common motion in these cases is going to be what's called a special demurrer. And a special demurrer is essentially where you're arguing that the indictment is not in perfect form. And one of the biggest issues in child molestation cases is that the state will often allege a very large date range when, let's say that there's only one instance of wrongdoing. Well, if the state is able to narrow down the window of when that may have occurred, then they're required to do so. But unless your lawyer actually files a special demurrer and argues it, that's not going to happen.
And so you sometimes have to force the state to narrow that window. And by narrowing the window, you can greatly increase your odds of being successful because it means that you can focus on a specific date and talk about where you were and if you weren't with that child, then that can be very helpful to the case.
A strong defense will also employ the use of their own experts to defend against these allegations. And in particular, what you really need is an expert in forensic interviewing or in child psychology. And the purpose of this, of course, is to attack the validity or credibility of the state's forensic expert witness. So, if you don't get your own expert witness, then it's really just the state's expert that the jury is going to be hearing from, and that can be highly problematic because it's really the state's forensic interviewer who puts their stamp of approval on this case and says that the child is credible. And that's something that you really don't want to have go unanswered in a jury trial.
And so having your own expert come in to testify is critical. And these experts will often be able to attack the methodology used by the state's expert. And what I mean by that is they're going to be looking for things like, is the interviewer leading the child? So, in these cases, the interviewer is often supposed to use open-ended questions, but what ends up happening a lot of times is they're closed-ended questions, or they suggest what the answer should be. And children pick up on that. They can tell when an adult is suggesting the right answer, quote unquote, and that's when they give oftentimes false statements to the forensic interviewer.
In other cases, we've seen where these forensic interviewers, they go on way too long. These interviews should be very short, oftentimes just 10 minutes or so. But what we see end up happening is we get 30-minute, 45-minute, hour-long interviews of these children. And what experts will tell you is that after a certain period of time, the child is just not credible anymore because they just want to get out of there, they're tired, they don't want to talk about this, and so they start saying whatever they think that person wants them to say. And again, that's something that the defense expert can talk about at trial.
Perhaps most importantly, is that a defense expert can testify that the child's language and behavior were inconsistent with a child who's been sexually abused. And so while they can't say directly that the child is lying, because that's a question for the jury, they can say that their behavior and demeanor were inconsistent in this case, and that this could have led to a false positive. And they do this by examining the word choice that the child used. So, they're using words that's from a vocabulary of a much older child, that's going to suggest that they've been coached by someone else to say these things. Or, in the alternative, if the child's language lacks sensory details that you would expect from a child of that age, then that might be also indicative that this is a false statement or a false positive, and that they are simply fabricating what happened.
Another type of expert, of course, might be a medical expert or a DNA expert to come in and to critique the state's expert regarding medical testimony or DNA evidence. And with regard to the medical expert, a lot of times what happens is the state's medical doctor or expert will come in and testify that there was tearing of some kind indicative of child abuse. But what defense experts will tell you is that that's not always the case. A lot of times that tearing that you see can be perfectly normal and is not indicative of child abuse.
Another critical element in any case, there are going to be fact witnesses and character witnesses. Fact witnesses can talk about the fact that a child wasn't there at the house when the child is claiming that someone was there at the house. A fact witness can talk about this child has never acted strangely around the defendant, that the child's always had a good relationship with the defendant. Every case is a little bit different, but you oftentimes lead fact witnesses to assure a jury that it's really not possible that it happened the way the child is saying it happened.
Another type of witness is going to be a character witness. And a character witness in one of these cases often comes forward to testify that they know this person, that this is a good person, that they have good relationships with children, and that they've never seen this person be inappropriate around any children. And character witnesses can be family, can be friends, can be co-workers. Oftentimes, what matters most is quality over quantity.
Again, my name is Jess Johnson. I'm a criminal defense lawyer in Atlanta, Georgia. My firm has a lot of experience handling these types of cases and winning child molestation cases. If you or somebody you know has been charged or is being investigated for a child molestation offense, give my firm a call. I'm happy to help.