The Investigation
In my last post, I talk about the “Role of Law Enforcement”. Today, I’m talking about the investigation process in a sexual assault case.
Once a complaint of sexual assault is reported to law-enforcement, they will commence their investigation. This entry will focus primarily on how the military law enforcement organizations such as CID, NCIS, or OSI handle their investigations.
Typically, the first thing that a military law enforcement agency will do is conduct a video recorded interview with your accuser. This discussion will occur at a law enforcement facility where they have recording capabilities. Each law enforcement agency is strongly encouraged to record all interviews with your accuser. However, that does not always happen. Make sure that your attorney knows exactly where your accuser was interviewed, when, and how many times he was interviewed. This can be very important during the discovery phase of your trial.
When law enforcement interviews your accuser, they are typically trained to be as accommodating, friendly, and sensitive as possible. They are not trained to confront your accuser on inconsistencies or areas of her story that do not make sense. So, you should not rely on law enforcement to point out the weaknesses in your accuser’s story. They will not do that. Ever. The most you may get is a note in the narrative portion of the Report of Investigation that simply states something like, “A.R.’s account is not corroborated by the eyewitness who observed A.R. dancing with the suspect.” It is your attorney’s job to identify those inconsistencies, investigate them, and ultimately expose them during cross-examination.
Law enforcement’s interview with an accuser can last anywhere from 15 minutes to 8 hours; I have seen both. Your accuser may also have a special victim’s counsel (SVC) with them in the interview. This is your accuser’s attorney. The SVC is in a confidential relationship with your accuser. Just like your attorney cannot disclose confidential communications without your permission, the SVC cannot disclose his client’s confidential communications. It is not uncommon for the accuser to also have a close personal friend with her during the interview for support. If you know that a close personal friend was with your accuser during the interview, your attorney MUST interview that personal friend. If your accuser spoke to her SVC in the presence of her friend, those communications are no longer confidential and may be subject to discovery.
Once the victim interview is done, law enforcement will then work to investigate your accuser’s account of the incident. Typically, during a victim interview, law enforcement will ask your accuser if there are any witnesses, if she spoke to anyone about the sexual assault, if she still has the clothes she was wearing, and if she texted anyone about the assault. Also, when the report is timely, law enforcement will ask your accuser if she will consent to a sexual assault forensic examination (SAFE).
The purpose of a SAFE is to preserve physical evidence of the alleged sexual assault to be used in building a case against you.[1] The SAFE is conducted by a Sexual Assault Nurse Examiner (SANE).[2] The exam is designed to collect physical and forensic evidence such as DNA. SAFE exams are tremendously personal, requiring your accuser to undress so that trace evidence may be collected from the clothing worn during the encounter. Hair (head and pubic) samples are taken, and a saliva swab is typically utilized to collect any oral evidence.[3] A special lamp is typically used during the exam to identify the presence of fluids on your accuser’s body.[4]
From a general standpoint, SANE’s are trained to collect and preserve as much evidence from the sexual encounter as possible. Part of a SANE’s job is to reconstruct the events in question, and evidence collection is typically used in four potential ways:
1. To identify you, the suspect
2. To document recent sexual contact
3. To document force, threat, or fear
4. To corroborate the facts of the alleged assault.[5]
Once the evidence is collected, the SANE will place the evidence in the Sexual Assault Evidence Collection Kit. Many jurisdictions have developed their own sexual assault evidence collection kits.[6] Typically, the kit will consist of the accuser’s clothing; foreign material found on the accuser’s body (such as blood, dried secretions, fibers, loose hairs, vegetation, soil/debris, fingernail scrapings, matter hair cuttings, material dislodged from the accuser’s mouth, and swabs of suspected semen, saliva, and areas highlighted by alternate light sources); vaginal swabs; anal swabs; oral swabs; and body swabs.[7] Once the exam is completed and the evidence is collected, the kit will be sent to a laboratory, such as U.S. Army Criminal Investigation Laboratory (USACIL), for testing.[8]
SAFE’s can be tremendously helpful to your case. Your attorney MUST make sure that she has all the evidence collected by the SANE. This includes not just the SANE’s notes, but also any pictures the SANE took. Your attorney needs to thoroughly comb through each line and word of the SAFE results. Over the years, I have won sexual assault trials based on inconsistencies found in the SAFE results. Be prepared also for the prosecutor to call the SANE who conducted your accuser’s exam to testify. Your attorney may want to request a SANE to help in your case. A thorough and precisely exacted cross-examination of a Government’s SANE witness is second only to your accuser in importance and can be the difference between winning and losing.
After interviewing the accuser and recommending that she consent to a SAFE, law enforcement will likely move on to interviewing witnesses. It is not uncommon for sexual assault cases to be purely based on “he said, she said” evidence. In that case, law enforcement will want to speak with every person your accuser spoke with about the event. Their hope is to find an outcry witness. An outcry witness is the first person who your accuser spoke with about the sexual assault allegation made against you.[9] What your accuser tells an outcry witness may be admissible in trial against you.[10]
In addition to interviewing witnesses, law enforcement officers will be working to collect or seize evidence. Military law enforcement officials have a lot of options when it comes to how they collect evidence, including asking you to produce evidence. Never, ever, consent to turn over any evidence to law enforcement officials before talking to an attorney.
Typically speaking, the most important evidence in a sexual assault case is going to be the cell phone of both you and your accuser. A federal law enforcement officer, which includes OSI, NCIS, CGIS, or CID, can request the military judge issue a warrant or an order for electronic evidence.[11] In order to convince a judge to issue an order for a third party to turn over electronic communications, the officer must show the military judge that probable cause exists to believe that the information sought contains evidence of a crime.[12] To accomplish this, the law enforcement officer must provide to the military judge an affidavit or sworn testimony and, based on that evidence, the judge determines whether probable cause exists to execute the warrant or order.[13]
Again, law enforcement officials are not interested in helping you or corroborating your side of the story. They will typically only try to obtain evidence which will align with your accuser’s account of the incident. If your accuser tells law enforcement that you sent her text messages apologizing for what happened the night before, they will do everything they can to obtain those messages. If you tell them that your accuser sent you nude photos the night before, which may very well help your case, do not bet on law enforcement going out of their way to obtain those messages. If you know there is helpful evidence out there, talk to an attorney as soon as possible and request that your attorney file a preservation request on your behalf. Please, please, do not rely on CID or OSI to help you obtain favorable evidence. It simply will not happen.
[1] Rape, Abuse, and Incest National Network. https://www.rainn.org/about-rainn.
[2] International Association of Forensic Nurses. https://www.forensicnurses.org/page/aboutSANE
[3] A National Protocol for Sexual Assault Medical Forensic Examinations, Second Edition. United States Department of Justice. https://www.ncjrs.gov/pdffiles1/ovw/241903.pdf.
[4] I.D.
[5] L. Ledray, SANE Development and Operation Guide, 2000, pg. 79. http://www.ojp.usdoj.gov/ovc/publications/infores/sane/saneguide.pdf.
[6] A National Protocol for Sexual Assault Medical Forensic Examinations, Second Edition. United States Department of Justice. https://www.ncjrs.gov/pdffiles1/ovw/241903.pdf.
[7] American College of Emergency Physicians Evaluation and Management of Sexually Assaulted or Sexually Abused Patient, 1999, pp. 101–107.
[8] https://www.cid.army.mil/dfsc-usacil/html#sec3.
[9] “Outcry Witness Law and Definition.” USLegal, Inc. Retrieved 13 July 201.
[10] Military Rule of Evidence 803(3) — Excited Utterance.
[11] R.C.M. 703A. Warrant or Order for Wire or Electronic Communications.
[12] R.C.M. 703A(b)(1)(A)-(B).
[13] 18 U.S.C. (§) 2703.
