This page related to: rape, criminal defense on sex cases; abel screen, penile plethysmograph; trial consultants on sex crimes; defense lawyer and plea bargain, criminal defense.


Using technology of computer aided information as well as specialized testing to answer questions about the clients

There is no profession that resists change as much as the legal profession does. Even at the beginning of the 21st Century we see some law offices that cling to the use of typewriters over word processing. But out of date technology isn't the only problem people face when they seek an attorney's aid in a legal matter. Nowhere is this more acutely demonstrated than in the area of criminal defense. Many lawyers are only dimly aware of DNA evidence and what it offers their clients, much less the myriad of other materials available in science that will greatly aid the practice of law.

Too often I have encountered stubborn resistance to trying new things. Shying away from using scientific evidence as an integral part of the case, especially if there is any detraction to the science. And there always will be. The first question asked is; "is it admissible?" Which begins from a negative and defeatist premise.

In the specific of sex cases we have used scientific testing in a number of ways, including examination of the propensity of the client toward committing the sex acts alleged. Using such procedures as the Abel Screen, and the Penile Plethysmograph. Articles can be found on the subject some of which oppose their validity. Seeing a problem, the horse and buggy lawyer runs to safer ground and they never research the subject fully. If they actually had done the research necessary they would know, for example, that the qualifications of those attacking the Plethysmograph could easily be challenged and their case strengthened. For each attack on the device when properly used by a properly credentialed expert it can be demonstrated by research to be a valid tool. The problem is sorting the quacks from the real experts. This requires more effort than most lawyers are willing to invest. Which is where hiring a knowledgeable trial consultant comes in who does know the field.

The reticence for the use of modern experts poses a serious problem for the defendant client. The simple fact is that without refuting the core points within the prosecution a conviction is likely. And in sex cases specifically according to prosecution statistics there is an 87% conviction rate in sex crimes. A wise defendant will remember this as their cases is prepared and insist on the use of technology.

A problem is that often lawyers are unaware of the state of the art in these areas, and they can easily become befuddled or overwhelmed at trial. Few lawyers have the ego-strength to admit what they don't know in a legal context for fear of losing clients. Let us not lose sight of the fact that America is the most over-lawyered society on the planet and there is fierce competition out there for clients. So it is unlikely to hear an admission of a lack of knowledge form any but the best lawyers. They typically already have a certified trial consultant they are working with.

Let me cite an example of a recent Rape trial carried on Court-TV. The state had put on its case, including the alleged young victim of the crime. And including a Registered Nurse who testified that her findings were "consistent with sexual attack." The defense lawyer put on the stand a medical doctor and a nurse both of who testified on direct examination by the defense lawyer that they did not feel the examination was consistent with a rape, partially because her hymen was intact. On cross examination the prosecutor got both defense experts to admit that in sex crimes there isn't always physical evidence of the acts. The defense lawyer failed to rehabilitate the experts by doing a re-direct asking them about the facts of THIS CASE! The issue was that in the immediate case, the allegations were of rape and with full intercourse. If the events had happened as the alleged victim claimed, the hymen would have at least been torn apart. More likely given the size of the man, it would have been obliterated. The defense lawyer lacked the knowledge or the active assistance at that point of a trial consultant expert on sex cases to have shaped the redirect examination to punch home the issue that was fatal to the state's case. As luck would have it the defendant was acquitted based on other testimony. But doubt hangs over the defendant's acquittal that needn't exist at all. The simple fact is that the acts could not have happened as the young woman claimed. She was lying.

The rules on admissibility of given tests and scientific information vary widely from state to state, some states cling to the old Frye standard, although their numbers are now few and growing fewer every year as more enlightenment comes in, and others are on the "Daubert" standard allowing a much broader range of evidence to be admitted. Every test has its detractors and as I said earlier; the issue is our ability to answer those objections. And we can.

  • The A-Team has been a pioneer in using the latest that science has to offer.

We continue to be so at the start of the 21st Century. Using technology of computer aided information as well as specialized testing to answer questions about the clients. Most often the real use of the technology is to insure that a trial is averted. And in over 90% of our cases they are! Admissibility therefore is rarely even an issue.

The resistance to modern science also stems from indoctrination of law students that 99% of their clients are guilty and because they are just lazy. Some couch it in terms of the cost to their clients. And it IS expensive! But contrast that to the alternative. Which can the client afford least, the testing or the prison term? An unfortunate common practice in criminal cases is to take a large retainer at the start of the case, do almost no work, and when the trial nears to badger the client to accept a plea bargain. Many criminal defense lawyers do almost no trial practice at all. When you look closely they plead out the vast bulk of their cases, withdraw as attorney on most of the rest. And sometimes with this appalling lack of preparation they get lucky. But not often, according to prosecutors.

Yes, there are cheaper and easier ways to handle these cases. There always will be, but those cheap and easy ways almost always wind up with jail at the end of the road. The best technology in the world isn't a guarantee of acquittal, but it vastly improves your odds. A 9 in10 chance of walking free beats an 8 in 10 change of going to jail in our book!

As a defendant you have a choice. Would you rather have George Jetson or Fred Flintstone helping you? I use the cartoon characters only as an illustration. This is the space age. If your lawyer actually showed up at the courthouse riding a horse what would you think? Why bring a defense to the courtroom that gets there on horseback if it gets there at all?

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This page related to: rape, criminal defense on sex cases; abel screen, penile plethysmograph; trial consultants on sex crimes; defense lawyer and plea bargain, criminal defense.

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