VIRGINIA STATE BAR FAMILY LAW NEWS Fall 1994 Issue
CHILD SEX ABUSE ALLEGATIONS: THE FREQUENT CASE OF "I NEVER SAID THAT"
By Thomas Y. Savage, Attorney at Law 210 Wolfe Street, Fredericksburg,
Virginia 22401 (703) 373-4922
Too many times in my career I have been confronted with the case of
the client who states, "I didn't say that!" Usually this excited
utterance follows my statement, "The social worker and sheriff's
detective said that you gave them a full confession."
The problem, of course, is that usually the client is charged with
some unspeakable act, may or may not have a felony record involving
some form of moral turpitude, and recently gave an "interview" to the
concerned social worker and/or authorities with no tape recorder
running. Counsel is then left to defend the "confession" (which has
been Mirandized, of course), pitting his client against most
respectable employees of the county or city.
The case usually ends with the court taking the word of the several
"good guys" and rejecting the word of the one defendant, as the gavel
slams down. What other result could there be when there is no motive
for the public servants to lie, or fabricate the "confession, " and
when the defendant has all the reason in the world to allege just
that?
By chance recently the "norm" was broken when the unlucky defendant
did by chance have a tape recorder handy during the interview process.
The exchanges which follow do not necessarily show any ill will on the
part of the social worker or sheriff's detectives. However, the record
clearly shows that in the interview process many things may change or
be left out as the words move from the defendant's lips, to the
investigator's ears, then onto the note pad, and ultimately onto the
word processor. A close review of the exchanges below may give all
counsel a renewed faith in their clients and encourage a more critical
review of social service investigators and criminal investigators. The
names, dates and jurisdictions below have been changed to protect,
inter alia, the innocent.
The scenario includes a grandfather, Mr. Smith (Senior), accused of
sexually abusing his 2-1/2 year-old granddaughter, Betty. Two
interviews were tape recorded, which were conducted jointly by a
social worker and sheriff's detective. A step-grandfather, Clyde
Hooper, may also be a suspect. Betty's 9-year-old half brother, Sam,
may also be involved. Betty's mother, Sue may also be a suspect. No
criminal charges have been filed, after a thorough review by the
Commonwealth's Attorney.
Many times a tape recording or videotape may very well "lock-up" a
case for either side. Such evidence is less speculative and less
subject to interpretation and the frailties of one's hearing, memory,
and handwriting.
The data noted below should encourage in all of us,
prosecutor/petitioner and defense/respondent, renewed energy and
enthusiasm to look harder and dig deeper to get to the ends of
justice; and not just take a written report as a true picture of
reality.
OCTOBER 16, 1992 INTERVIEW
1. Social Services (DSS) Notes
Mr. Smith reported that Betty had said, "pop pop don't bite my pee
pee."
Tape-Recorder
Mr. Smith confirms that Betty told him, "pop pop don't bite my pee
pee."
Argument
See recitation of facts from Detective Don Johnson dated December 3,
1992, at Paragraph 9 noted below.
2. Social Services (DSS) Notes
No data in notes.
Tape-Recorder
Mr. Smith suggests that it would be ludicrous for him to reveal the
child's comments, to Mr. Smith, Jr., if he, in fact, was the
perpetrator.
Argument
Nowhere in the notes does it state who brought the allegations to
public knowledge. These data are noticeably absent from DSS notes.
3. Social Services (DSS) Notes
Regarding access to step-grandfather, "the only thing was that she has
not been around him."
Tape Recorder
"I don't think she has been around him in the last 4 or 5 days."
Argument
DSS states a fact; when, in fact, Mr. Smith was uncertain.
4. Social Services (DSS) Notes
No data in notes.
Tape-Recorder
Mr. Smith reports that Sue was molested at age 3, and her sister at
age 13, by step-grandfather. Step-grandfather still pursuing Sue.
Argument
No mention in any notes of this past familial molestation, at the
hands of another individual, who has access to the child.
5. Social Services (DSS) Notes
Record reflects the following people interviewed: Mr. and Mrs. Smith,
Jr.; Betty; Mr. Smith, Sr.; Bobbie Smith, ex-spouse of Mr. Smith, Sr.;
Maureen Hitt.
Tape-Recorder
Mr. Smith assured, "we'll check out anybody possibly involved."
Argument
No interview or investigation was done with or about 9-year-old Sam;
Clyde Hooper, step-grandfather; no further queries of Sue Smith, after
information supplied by Mr. Smith, Sr.
6. Social Services (DSS) Notes
Mr. Smith requested to take polygraph.
Tape-Recorder
Mr. Smith requested to take polygraph.
Argument
See notes from December 3, 1992 at Paragraph 11 below.
DECEMBER 3, 1992 INTERVIEW
7. Social Services (DSS) Notes
"He feels that his daughter-in-law, Sue, may have put Betty up to
saying these things."
Tape-Recorder
Daughter-in-law wanted me out of the house.
Argument
The notes reflect Mr. Smith's belief that Sue tampered with Betty. The
notes noticeably do not contain the "motive" for wanting to set Mr.
Smith up.
8. Social Services (DSS) Notes
"Betty calls him 'pop pop'."
Tape-Recorder
Betty calls him pop pop, and she calls the other grandfather "pop pop"
at times.
Argument
No mention in DSS notes of any other grandparent figure called "pop
pop." Investigation should have extended to other grandparent figures
who child calls "pop pop."
9. Social Services (DSS) Notes
Detective Johnson "read his rights."
Tape-Recorder
Detective Johnson stated Betty's allegations were, "Betty said you
hurt her butt."
Argument
No notation in record reveals any alleged assault on this area of
body.
10. Social Services (DSS) Notes
"He stated that the 9-year-old boy has him puzzled. Sam has a friend
that he undresses with and he doesn't know if he got curious, but he
[continued next]
--- FMail/386 1.0g
(1:2629/124)
---------------