Evidentiary Issues

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In regard to sexual assault cases, where the burden of proof is seemingly reversed, it is especially important to have a practiced defense counsel. The defense must file pretrial motions and seek proper election, or else many of the protections built into rules of evidence lose their force.

Most sexual assault cases have no eye witnesses or physical evidence. In fact, the evidence typically begins with an allegation and develops from there. Cases involving two adults can become complicated when proving consent. It is also incredibly difficult to presume innocence in the face of allegations from a child. Moreover, when jurors are not required to unanimously agree the accused committed the specific act, it is more likely than not there will be a conviction.


In many sexual assault cases involving adults, the two parties did not have an extended relationship. In cases involving children, however, the accused is often an individual who has had unregulated contact with the child. An alibi is typically ineffective for defense if the accused has had the ability to freely access and/or supervise the child for any period of time. In scenarios of sexual abuse, there is often no physical evidence (marks, bruises, abrasions, DNA, etc.). When a child makes an allegation of sexual assault against an individual, it ought to be taken very seriously on both sides of the court.

Law enforcement’s approach to child abuse cases involves strengthening the original accusation through the use of witnesses and circumstantial evidence. For example, an “outcry witness” can testify as to the hearsay of the child’s statements. Often, a child has spoken with multiple persons, each of whom has the ability to testify to the facts they’ve been told as an outcry witness. Moreover, the State may also call a medical expert to testify that a child’s medical records are “not inconsistent with sexual abuse.” Such action may be taken even if there is no conclusive evidence that indicates sexual abuse from the child’s physical examination. From there, the State advances their narrative with circumstantial evidence.

Regarding circumstantial evidence, the child’s patterns of behavior are viewed through a lens of “consistent with” or “not consistent with” sexual abuse. However, such a lens is not objective, and because everyone responds differently to trauma, it becomes difficult to say which behaviors are what. As witness after witness testifies about the child’s behavior and what it implies, cases can be obscured. For example, all of the following questions could reasonably be answered with “consistent with sexual abuse”: Is the child acting out? Is the child acting like nothing happened? Does the child inquire about the accused? Does the child ignore the accused? Is the child hungry? Is the child not hungry? … And for those that cannot be said to be consistent, they can be “not inconsistent” all the same.

Given that people are different, the actions an individual has taken may always be interpreted in a variety of ways. In a sexual abuse case, every action taken by the accused, however innocent or unrelated, can and will be used by the State to prove that a child was harmed.

The defense’s strategy should not be to vigorously assail the child with questions about what happened. Nevertheless, it should hold the child accountable for their allegations, meaning there ought to be a comprehensive cross-examination. Anyone who has ever raised or cared for a child should be familiar with the fact that willful children may lie to get their way, and it’s often done in a very believable fashion. As a matter of fact, the majority of exonerations of people wrongfully convicted with sexual assault against a child have occurred in cases where a child lied for some reason: out of anger, vengeance, or even under the direction of a controlling parent with other motives.


Jury unanimity was established because jurors are often left to decide the strength of the evidence presented to them based solely on their own perception of a witness’s credibility. In most charges, if the jury is not unanimous that the State has proven beyond a reasonable doubt that the accused committed the specific crime, the accused must be acquitted. Regarding sexual abuse cases, that standard is not upheld. The element of jury unanimity has been altered in an effort to secure a conviction.

For example, in the Continuous Sexual Abuse of a Child statute, it dictates that:

If a jury is the trier of fact, members of the jury are 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 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.

From the above statute, it can also easily be seen how character evidence may come into play in sexual abuse cases. Prohibition against character evidence was created so that an individual cannot be convicted on the basis of his or her past actions; a person’s reputation should not result in his conviction. However, in sexual assault cases, the jury may convict an individual simply if they believe he or she committed sexual abuse. They do not necessarily have to agree on when, where, or how it happened. They only must be unanimously convinced the accused is the type of person who would do such a thing.

With these evidentiary issues, a defendant is placed between a rock and a hard place. Paul Doyle has handled many sexual assault cases successfully, and he will work to defend your case after a thorough investigation into the allegations and circumstantial evidence.