Defense Motion Practice

Defense motion practice in sex crimes could be not only be their own chapter in a book, but their own book entirely. In sexual assault cases, defense motion practice is incredibly important in helping you shape the defense theme and theory of the case for when the case eventually goes to trial.

There are a limitless number of potential motions that can be filed. A motion to quash the information and dismiss the case, because the charge was not supported by probable cause at the preliminary exam. A Daubert motion challenging the prosecutor’s use of junk science at trial. A motion challenging the forensic interview as not following the protocol. Or a MCR 6.201 Motion asking to discovery the accuser’s psychological records. Let us start there.

MCR 6.201 And Stanaway Motions – Get The Therapy Records

Frequently, getting the psychological records of the accuser is the most important legal issue in a sexual assault case. As an example, let us say you have either a child victim in a child molestation case, or an adult in a date rape sexual assault case, who has gone to therapy. Most clients just assume that the accused would be entitled to review the therapy records from the time period contemporaneous to, and following, an allegation of sexual assault. This is particularly true if there is evidence that the assault was part of and/or discussed during the therapy. However, that assumption is not accurate. In order to get things like therapy records, you are required to file a motion called a Stanaway motion in Michigan, based on Michigan Court Rule (abbreviated MCR) 6.201(c). This court rule covers privileged discovery, things that you are not otherwise entitled to. So if the victim could have said something in therapy that might be beneficial or helpful to the defense of the allegations against the accused, you normally are not entitled to those records, because they are protected by doctor-patient privilege, or therapist-patient privilege. When you file a Stanaway motion, you are required to give the court reasons why you think it is likely that the records will contain information helpful to the defendant.

Courts are notoriously guarded when it comes to granting these motions because they are on the lookout for what is called a fishing expedition, which is where the defense files motions to ask for all of the medical, psychological, or school records—fishing is a bit like throwing a bunch of darts against a dartboard, hoping to make one stick.

Even if the court grants a Stanaway motion, the relief is that the judge reviews the records in camera. This means the judge reviews them on their own, and then determines whether there really is anything in there that should be released to the defense. If so, the judge releases those records to both the prosecutor and the defense, or at least a portion of the records that they feel are material to the accused.

If the judge decides the records are not relevant or material, the judge will seal those records and they will stay in the court file. You are not entitled to see them, but they are there for an appeal. If the client gets convicted, those records can be reviewed on appeal to determine whether the judge made the correct decision. The court of appeals could say they really are material and the judge was wrong, or they could say the judge made the right decision.

Again, that is why the intensity of the review process of the discovery is so important. It can help you come up with sound reasons that you can articulate in writing through the motion in order to get these records.

Forensic Interview Motions

A motion that often comes into play in a child sex case is a motion that points out any flaws or problems in the forensic interview to the court. A forensic interview is the process of interviewing a child complainant by a trained forensic interviewer in a controlled child advocacy center such as Carehouse, Kid’s Talk, and the Child Advocacy Center. The purpose of these forensic interviews is in an effort to suggestive, leading interviewing of child witnesses, and hopefully reduce the incidents of false allegations. The interview is governed by a set of rules, called the forensic interviewing protocol is something that has been developed by experts to insure that the interview follows this objective – as an example, these rules include that the interview is supposed to open ended questions, not ask leading questions, not introduce a topic, and not repeat questions (and thereby suggest that a previous answer was “wrong”). The problem arises when these rules are not followed, as it can suggest answers or memories. To combat these issues, forensic interviews are typically recorded these days, either video or audio; though some counties in Michigan still cling to the claim that they should not record them. That certainly raises the specter of what are they doing during these interviews, and what are they hiding. If the forensic interview has been recorded, the defendant and lawyer must review it.

These interviews are very nuanced, meaning it is a complex process to evaluate them. If an interview is done well, there are no leading questions, and the interviewer does not ask the same questions. The data says that a good friend is a good interviewer.

Suggestibility

The reason that forensic interviewers cannot ask leading questions that suggest answers is because kids are very suggestible. For that reason, the interviewer is supposed to be prohibited from introducing topics like sex or anatomical terms (like penis or vagina) – introducing the topic can be suggestive of an answer, or even of the topic by itself. Asking the same question more than once leads a child to believe that the answer they gave the first time was wrong, which prompts them to change their answer. “No, my dad never put his penis inside my vagina” might become “He did.”

Some forensic interviews are done well, but many have flaws. If the flaws are significant enough, a motion must be filed challenging that the witness should be declared incompetent to testify.

In order to be competent to testify, a witness has to be testifying from personal knowledge. Your defense expert, your forensic psychologist (an expert in the forensic interviewing protocol) might tell you a forensic interview was too suggestive after reviewing the recording. In that case, we would have no way of knowing whether the child is testifying from their own memory or from memory that was implanted, or suggested, by the forensic interview. If you can make the argument that they are not testifying from personal knowledge, but rather from ideas and suggestions from the forensic interviewer, then you file a motion to declare the child incompetent because they are not testifying from personal knowledge.

Another related motion that often needs to be filed is a motion that strikes the prosecutor’s expert, the State’s forensic interviewer, from saying things like: “The child said A, B, and C,” or “Based on the way the child answers questions, I can tell you that this forensic interview was valid, that it followed the protocol.” Of course, that kind of testimony implies to the jury that the child witness is telling the truth. That is improper vouching for the credibility of a witness, and is inadmissible.

SANE Exam Motions

Another motion to consider is one to prevent “conclusory opinion” testimony by a sexual assault nurse examiner (SANE) at trial. The prosecution loves to call SANE examiners to testify that the rape kit, or sexual assault examination, was consistent with an allegation of sexual molestation, sexual assault, or violent sexual assault. Again, that is improper vouching for the credibility of a witness, and is inadmissible.

Another way to combat this improper use of a SANE examiner’s testimony is for the defense team uses their own expert, their own SANE nurse. The medical records and police reports can be sent to a private, independent forensic nurse. Even better, doctors provide excellent rebuttal witnesses; so an OB GYN, might be able to testify, “Look, the sex that the SANE examiner found in the rape kit is consistent with forcible sexual assault. But it’s also consistent with consensual sex.” If a doctor or independent SANE nurse is able to give that opinion, then a motion that challenges the prosecutor’s expert from being able to testify to that aspect of the kit is appropriate.

Daubert Motion

Sometimes the defense must file what is called a Daubert motion. This becomes important when a prosecutor wants to call an expert to testify about something that is not scientific at all (e.g., hair comparison, tire print comparison, etc.). So, for example – the idea that a prosecutor would call a SANE nurse examiner to testify that she can tell the difference between a rape kit from someone who had consensual sex versus a rape kit from someone who was sexually assaulted would fall under a Daubert motion. These types of conclusions are frequently not backed by true scientific process, or sound scientific principles. So a Daubert motion asks the court judge to not allow this person to testify as an expert and give an opinion based on voodoo, on hocus pocus, rather than actual science. Ultimately, the motion is designed to prevent such witnesses from the equivalent of them saying on the stand, “I feel as if the defendant is guilty.”

Importance Of Motion Practice

These are five or six motions out of hundreds. Even if you lose some of these motions, it is important to engage in an aggressive motion practice. You are still educating the judge on your defense theme and theory. That is why the motion practice in a sexual assault case is as important as any of those other pillars of defense (getting your client’s story and narrative, doing complete defense discovery, reviewing the prosecutor’s discovery). The motion practice, in addition to using your own experts (your own SANE nurse examiner, your own forensic computer examiner, your own medical doctor), represents additional parts to a coordinated, comprehensive defense of these cases.

These important aspects of the defense must be accomplished prior to the preliminary examination. I believe that you should be ready to take the case to trial prior to that probable cause determination. It is a lot of work, as you may only have about a month between when your client is arrested and when the preliminary examination is held. Despite the workload, it needs to be done.

Winning Over The Judge

Pretrial proceedings like the preliminary exam and motion practice must be used to try to win the judge over. Your client really may be falsely accused, but no judge is going to start at the place of giving the defendant the benefit of the doubt. If you can get the judge to doubt that your client is guilty for even a second, you have made a huge stride toward getting a fairer trial with more rulings from the judge on objections during the trial.

For more information, a free case strategy session is your next best step. Get the information and legal answers you are seeking by calling (248) 509-0056 today.