What is The Standard of Proof in a Sex Crimes Case?
Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
When someone is charged with a sexual battery, lewd or lascivious molestation acts, battery, some type of transmission of sexual images, or travelling to meet a minor for unlawful sexual purposes and those kinds of cases, the burden of proof for the conviction that the judge reads to the jury during the jury instruction phase right before they go back to deliberate states that the state has the burden of proving each element of the crime alleged is beyond and to the exclusion of a reasonable doubt. That’s the legal standard of proof. Unfortunately, as mentioned elsewhere and I’m talking about for the first time ever in my career, we have to rebut the real life presumption that many people actually have. Many people actually believe that the accuser is credible and that the defendant has the burden of proving that the accuser is not credible as a witness in taking a stand.
This flips the burden of proof upside down on its head, and it’s a very serious problem for people charged with sexual offenses. The burden of proof that the judge tells the jury to follow as they deliberate is in direct competition with the juror’s own biases. We have a large number of people who would pick those juries when they are asked, just hearing what the charge is, is there anyone here who would be unable to render a fair verdict. We can have a 60% venire panel, but at least 30 hands are going up in the air when that question is asked. What’s worse, moving forward, it wouldn’t surprise me if 40 or 50 hands went up in the air. We are going to have to work really hard to rebut this illegal and improper assumption of accuser credibility because the real burden is that the defense does not have it. The prosecution does, and it is the prosecution’s burden to prove guilt beyond and to the exclusion of every reasonable doubt.
What Role Does Forensic Evidence And Experts Play in Sex Crimes Cases?
Forensic evidence in the form of DNA may be very important in one case, yet not even a factor in another. If a complaining witness says they were just raped and immediately goes to law enforcement, they are going to use a rape kit and swab for DNA. In that case, DNA as forensic evidence would be critically important. However, in another case, if a woman delays for 6 weeks, there isn’t going to be any DNA within her body from an alleged perpetrator. We are not going to have expert witnesses testifying in that second example. In other cases, say cases involving children, we are going to have some type of doctor testifying. Virtually every Office of the State Attorney within the state of Florida has a special prosecution unit for sex crimes. When sex crimes involve children, they oversee a particular doctor, and the government pays these doctors. In other cases, you might have children involved yet there are no doctors involved. The short answer involving forensic evidence and experts when it comes to lewd or lascivious cases or sexual battery types of cases is it depends. It depends on the type of case, the length of time that has passed between the act alleged and the commencement of the investigation, and the type of case it is.
Another example people don’t always think of is digital evidence. In one case, somebody’s Facebook private messages and text messages may be highly relevant on the issue of consent or bad motive. I had one business owner who was falsely accused by an employee of sexual battery. When we got a hold of her private Facebook records, it turned out that she had been bragging about how much money she was going to make off the false prosecution.
Much to everyone’s surprise, the Office of the State Attorney went forward with that case, and willfully and knowingly put a witness on the stand knowing she was going to lie. Sure enough, during the trial, she lied, as she had previously lied about her interest in money. She had lied in her depositions, she had lied in informal conversations with the prosecution, she had lied to people she knew, yet the smoking gun evidence was found right in her Facebook records regarding her private messages, when contrary to her testimony at trial and prior to trial she was bragging about how much money she was going to make by prosecuting this man. These things really happen. Not every accuser is credible, and getting the right type of evidence and the right type of experts in a particular case, based on the unique fact pattern of that particular case, is critically important for the defense attorney and the entire legal team to make sure they’ve done it correctly.
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