Queens County Bar Association
Martindale Hubbell - Distinguished 2023

How Often Do You Handle Cases Where Drugs And Alcohol Were Involved In An Alleged Offense? And How Does That Impact A Case From Both The Prosecution And Defense Side?

When drugs and alcohol are involved in an alleged offense, it mostly impacts the defense side. The district attorney is very rarely moved by the defendant’s impairment of judgement caused by drugs and alcohol. However, it can affect the credibility of the complainant and his or her ability to discriminate between what was consensual and what was not. If there are drugs, the use of drugs can also be used against the defendant, such as the Bill Cosby case in which he allegedly seduced the complainant into actions by the use of drugs. The best defense is to show that it was the complainant themselves that introduced drugs into the picture, or, at the very least, enthusiastically consented. But, it is generally not a defense to say that there was no lack of consent because of the use of drugs by either party.

How Much Does Forensic Evidence And Expert Testimony Play Into Sex Crime Defense Cases?

Forensic evidence plays a major role in sex crime defense cases. For instance, if a woman allegedly raped, a rape kit is prepared. The DA is looking for DNA, signs of injury, and various other factors which can show that a rape occurred, and that the defendant did it. The forensic side of the case is generally initiated by the prosecutor. Of course, a defendant would look to point out its absence when there is an absence of the forensic evidence. As far as expert testimony, in any child sexual abuse case, for example, the district attorney will always call a so-called child sex offense expert to explain some circumstances. For instance, why there wasn’t an immediate outcry? And, why did the complainant, the child, retract or change his or her story? These “experts” make a career of testifying in child sexual abuse cases. Some of them testify 100 times in a year. They try to explain away whatever defects are present in the prosecutor’s case. It’s less common, but it’s also almost always recommended, in my opinion, that the defendant call his own expert who will rebut those statements by the people’s “sexual abuse expert,” and be able to show that children do indeed make up stories or even dream of them. We recently had a case in which it looked hopeless, even though the defendant vigorously denied the allegation. However, it turned out that this child had a history of dreaming about sexual offenses and confusing them with reality. So, it’s very important to explore that area, and to have your own expert available to testify and rebut the people’s expert.

What Are Potential Defense Strategies That Can Be Used In Sex Crime Cases?

The potential defense strategy will depend on the particular case and whether a stranger was involved. If the parties don’t know each other, it may very well be true that somebody has been mistakenly identified. If the parties are known to each other, then all of the things that we’ve talked about become issues for the defense, particularly where there’s a strong possibility and inference that the complainant had something to gain by bringing the charges. But again, there’s no one-size-fits-all. It really depends on the particular case.

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