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Discovery in Child Sexual Abuse Cases

I will always look first to the use of the Pennsylvania rules, statutes, court decisions and other regular channels of discovery and use them to obtain discovery beyond the police reports.  “Discovery” is required documents, recordings, photographs, statements, memos, or other information possessed by the Commonwealth that is inculpatory to either guilt or punishment.  If the child has a history of lying about things to get out of trouble, a pattern of relevant sexual behaviors, or mental health problems, a specific demand for evidence and information relating to those items may put the government under an obligation to seek it and provide it to the defense under state discovery rules even when the Brady case does not apply.  Consider these examples:

  • Evidence may exist to suggest that the child was assaulted by another person whom the child is trying to protect by accusing the client.
  • The Commonwealth may be aware of a motive to manipulate the child to obtain monetary gain, revenge, or leverage.
  • The Commonwealth may try to withhold unedited recordings or transcripts of witness interviews.
  • Notes from a forensic interviewer and the DVD of the interview may not “jive.”
  • Failure to disclose the existence of photographs of text messages and the existence of an exam report were discovery violations, but not sufficient grounds for a mistrial.
  • School records of the child that may indicate that the child has been disciplined for lying, abusing other children, or engaged in counseling for their own “acting out.”

I typically demand copies of text messages or forensic downloads of the complainant’s digital devices in cases in which the parties are known to each other and there may be exculpatory content.  A generic demand for exculpatory evidence will not necessarily suffice to compel the government to seek and disclose the information.  For instance, screenshots of Facebook, Twitter, Instagram, or other social media posts.  All Brady demands should be specific and grounded in the facts. The client or a good investigator will often hear information about the child and his/her family from friendly sources and an attorney can use these facts to support the demand for disclosure.

Discussions regarding this topic and more are contained in my book, Defending Sexual Offenses- A Non-Lawyer’s Guide to Understanding the Criminal Process in Pennsylvania.  Call my office or email me for a free copy.

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