Sunday, February 7, 2016

Mr. Guilty, I presume? The use of statutory presumptions in criminal prosecutions.

This is the first in a series of several blog posts on statutory presumptions in criminal prosecutions, many of which deal with guns and drugs (presumption that all occupants possess a firearm found in a vehicle [Penal Law § 265.15(3)]; presumption that all occupants of a vehicle knowingly possess controlled substance not concealed on a occupant’s person [Penal Law § 265.25(1)]; presumption of knowing possession by all occupants of controlled substances or marijuana in open view in a room used as a drug factory [Penal Law § 220.25(2)]).  As noted in Handling a Criminal Case in New York (Muldoon, Thomson Reuters, § 1:33 [2015-2016]) “these function as ‘shortcuts’ to allow the prosecution to establish an element of a crime by establishing other facts. 

In future installments I intend to examine presumption stacking, a defendant’s burden to rebut a presumption once invoked, and may also take a separate excursion into common law presumptions: innocence, sanity, competence, regularity, and finality.  But for today, the more basic underlying question: Why do we need or allow these shortcuts?  

We know that to be constitutional, presumptions must be permissive, not mandatory (Sandstrom v Montana, 442 US 510 [1979]).  So why do we have them at all?  In the absence of a presumption, the prosecution can argue that the jury should reach the same conclusion concerning possession or intent as is suggested by the presumption, and the jury could elect to do so.  Consider, for example, the knowing (or not) possession of gun in room or car –  intent and knowledge are virtually always issues in any criminal prosecution and rarely known or knowable with any certainty, and the fiction of our judicial system that they are knowable with consistently repetitive certainty is as true in cases involving presumptions as in any other.  The use of a presumption therefore, gives the prosecution a legislatively-conferred leg up, where none is needed, and the net effect is the watering down of the constitutionally-required burden of proof. 

In Leary v United States, 395 US 6, 33 [1969], the Supreme Court held that “a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.”  Presumptions, then, are justified by the claim that the ultimate fact flows from and is likely true where the underlying inferential facts are proven to exist.  But such claims are not based on any empirical evidence, but rather, hunches, guesses, and “experience” (whatever that means) that is little better than resort to old wives tales and war stories.  

In truth, presumptions represent an unnecessary legislative concession in the absence of any direct evidence that tilts the jury in the direction of a finding that the missing facts are true, basing a verdict on that finding, which a jury could make on its own, without the help of a presumption.  I suggest that real reason for presumptions is fear: the fear of not guilty verdicts where the prosecution has not proven the ultimate fact, resulting in too many probably guilty (but not proven to be so beyond a reasonable doubt) defendants going free, a socially unacceptable result.

Importantly, a presumption can act as the necessary lynch pin of the jury’s verdict.  An example is provided by People v Whitfield, 158 AD2d 922 [4th Dept 1990], where the prosecution failed to request that the jury could presume defendant’s knowing possession of stolen property from his recent and exclusive possession of the fruits of a crime.  Because there was no other evidence of knowing possession, the proof was held to be legally insufficient to support defendant’s conviction.  In other words, had the prosecution requested and the court instructed the jury on the presumption, that permissible inference could have formed the only basis establishing the element of knowing possession.

Importantly, presumptions may not be invoked where the underlying facts needed to support them are not present.  Be careful not to fall into the trap of assuming that because presumptions are present in the statute, they are available upon request in every case.  They are not (see People v Zekaj, 191 AD2d 663 [2nd Dept 1993]; People v Wilt, 105 AD2d 1089 [4th Dept 1984]).

Wilt (which is still good law), offers an important lesson.  In that case, the Fourth Department found the statutory presumption that all occupants of a vehicle are presumed to possess a weapon in the vehicle unconstitutional as applied to the defendant, who presented evidence that he was only in the vehicle for 5-6 minutes before it was stopped, never looked in the trunk (where the gun was found), and did not know there was a gun in the trunk.  The Court, reasoning that there was no “rational connection” between the discovery of the gun in the trunk and Wilt’s presumed possession, reversed his conviction and dismissed the indictment.

Along these lines recall that, going all the way back to the landmark presumptions case of Ulster County v Allen, 442 US 140 [1979], the Supreme Court held that resort to a presumption is improper where there is no rational way under the facts of the case for the fact-finder to presume the ultimate fact from the other facts in the case.  

Next time: problems presented by presumption stacking.

Monday, January 18, 2016

Reversal for Prosecutorial Misconduct Seems Preferable to Reversal for Ineffective Assistance of Counsel

Last week's post discussed People v Jones (2015 NY Slip Op 09773), in which the Appellate Division, Fourth Department, reversed a conviction in the interest of justice due to numerous acts of prosecutorial misconduct in summation which were egregious, but largely unpreserved by timely objection. That is obviously a great result for Mr. Jones and his appellate attorney (good work, Catherine Josh). And it allows trial counsel to join in celebrating the client's reversal.
But defense counsel who fail to object to prejudicial misconduct in summation risk other results. 
The worst possibility is that the appellate court might decline to exercise its discretionary jurisdiction to reverse in the interest of justice on an issue that might have merited reversal if the error had been preserved for review as a matter of law. 
There is another possibility in which the defendant is granted a new trial and appellate counsel might be happy with the results, but in which trial counsel is not likely to feel too good -- the appellate court might reverse for ineffective assistance of counsel based on trial counsel's failure to timely object to prosecutorial misconduct. 
Thrice in recent years, the Court of Appeals has reversed convictions on findings of ineffective assistance of counsel based, at least in part, on the failure to object to prejudicial prosecutorial misconduct in summation.
As discussed in detail here, in People v Fisher (2012 NY Slip Op 02416 [4/3/12]) the Court of Appeals reversed convictions for various sex offenses and ordered a new trial upon a finding that the defendant's trial attorney rendered ineffective assistance of counsel by failing to object to the prosecutor's summation was egregiously improper and there was no evident strategic basis for counsel's failure to object. The Court wrote that
Even when viewed in the "totality" of the representation provided defendant, defense counsel's failure to object to any, let alone all, of the prosecutor's egregiously improper departures during summation, particularly in the highly charged, potentially outcome determinative context in which they occurred, deprived defendant of the right to effective assistance of counsel (see People v Baldi, 54 NY2d 137, 146-147 [1981]). We see no strategic basis for counsel's failure to object to these highly prejudicial instances of prosecutorial abuse, in critical respects utterly attenuated from the evidence and the applicable principles of law.
Then, in People v Oathout (2013 NY Slip Op 03122 [21 NY3d 127] [5/3/13]), the Court reversed on a finding of ineffective assistance of counsel, in part, based on counsel's failure to object to multiple acts of misconduct in summation
He failed to object to the prosecutor's vouching for Lugo's credibility when the prosecutor told the jury that the police would not keep using her as a confidential informant if she were not credible. He also failed to object when the prosecutor pointed out to the jury that defendant, who did not testify at trial, took notes with his left hand during the trial and continued to theorize how the crime was consistent with its commission by a left-handed person—like defendant. Defense counsel failed to object despite the fact that there was no evidence presented either that defendant was left-handed or that the crime was committed by a left-handed person.
Most recently, in People v Wright (2015 NY Slip Op 05621 [25 NY3d 769] [7/1/15]), the Court, citing Oathout, reversed a conviction on a finding that defense counsel's ineffective assistance of counsel deprived the defendant of a fair trial when counsel defense counsel failed to object, time and again, when the prosecutor repeatedly misrepresented to the jury critical DNA evidence as proof of defendant's guilt by suggesting that the evidence directly linked defendant to the murder although it did not.
Again, the good news is that in all three cases there was ultimately a reversal. But in all three cases the defendant was convicted and lost his appeal at the Appellate Division. Thus, in all three cases the defendant spent years in prison prior to the reversal. All of that and a finding of ineffective assistance of counsel could have been avoided by timely objection to misconduct during summation.
However tempting it is to sit back  and simply exhale after giving a defense summation, neither the defendant nor the defense counsel can afford to have counsel stop working during the prosecutor's summation, which is quite a critical stage of the trial.



Sunday, January 10, 2016

Doctor Who: Expert Testimony in an Eyewitness Identification Case

by Bill Easton

Over the last eight years the Court of Appeals has addressed the admissibility of expert testimony in identification cases at least five times.  It is scheduled to revisit the issue yet again in the near future.  (People v McCullough, 126 AD3d 1452 [4th Dept 2015], lv to appeal granted 25 NY3d 1079). During this time, the Second Circuit has also issued a rare full panel decision on the same issue (Young v Conway, 698 F3d 69 [2d Cir 2012]).  One would be hard-pressed to come up with any other issue over the last decade that has been such a magnet for appellate consideration.

The Court’s concern regarding this issue is well-founded.   False identification testimony is the one of the most, if not the most prevalent source of documented wrongful convictions in this country.  (See Laurie Gould et al., Reforming the Use of Eyewitness Testimony, 35 Okla. City U. L. Rev. 131, 134 [2010] [collecting empirical data from numerous studies and concluding that “approximately 4500 people are wrongfully convicted every year in the United States due to eyewitness identification”].)   Further, empirical studies over the past decades have demonstrated that eyewitness testimony, especially in a “stranger identification” case, is unreliable and misleading to a jury.  In Young v Conway, the Second Circuit collected many of these peer-reviewed articles and cited them with approval.

An expert witness in eyewitness identification provides great help in de-mystifying the reliability of identification testimony and exposing many of its misleading traits: for example, that the notion that the confidence of a witness translates into the accuracy of the identification or that a witness is more likely to remember a stressful event than a less stressful incident.  

Thus, the New York Court of Appeals has accordingly concluded that, in appropriate cases, experts should be allowed to inform juries about research findings regarding many of the factors affecting the accuracy of eyewitness memory (see People v LeGrand, 8 NY3d 449, 452 [2007]; People v Santiago, 17 NY3d 661 [2011]; People v Abney, 13 NY3d 251, 267 [2011]).

It is important to remember that in the ordinary case, the trial court’s decision to allow expert testimony will not be disturbed on appellate review unless it constitutes an “abuse of discretion” which is a high standard to surmount.  The Court of Appeals, however, has such concerns about the reliability of eyewitness testimony that it has carved out an exception in an eyewitness identification case.

In People v LeGrand (8 NY3d 449, 452 [2007]) the Court held that in a case that turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it constitutes an abuse of discretion as a matter of law for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.  (See also People v Abney, 13 NY3d 251, 267 [2011].)

Since LeGrand, the Court of Appeals has reversed the trial court’s exclusion of eyewitness expert testimony in two cases People v Abney  and  People v Santiago (17 NY3d 661 [2011])  In Santiago, the Court held that the testimony of two additional eyewitness identification witnesses did not sufficiently corroborate the victim's identification of the defendant and did not obviate the need for expert testimony.

In two other cases, the Court declined to reverse the trial court’s exclusion of expert testimony, holding that the identifications at issue were sufficiently corroborated thus not removing the trial court’s decision from the ordinary abuse of discretion standard (People v Muhammad, 17 NY3d 532, 546 [2011] [victim testified that he knew defendant for over a decade prior to the shooting, spoke to him shortly before the altercation and recognized defendant at the time of the attack];  People v Allen, 13 NY3d 251, 262-63 [2011] [witnesses had known the defendant from the neighborhood for several months and immediately recognized him during the robbery]. In People v McCullough, the case pending at the Court of Appeals, the issue will be whether a cooperating witness’s testimony provided adequate corroboration to the eyewitness testimony.

In light of these cases, if you have a case that turns on identification evidence, you should certainly explore the possibility of making a motion to introduce expert testimony.  This testimony could supply jury critical information that it will otherwise lack, and in the event the trial court excludes the expert, you may have a solid issue to argue on appeal.

Prosecutorial Misconduct and Preservation

As evidenced by the frequency with which prosecutorial misconduct, in summation especially, is not preserved for appeal, many defense attorneys are unclear about what amounts to misconduct.  As a soon-to-be new attorney, I am admittedly no exception.  Of course, some comments are so egregious that their impropriety is unmistakable.

In 2000, the late Judge Judith Kaye, then Chief Judge of the Court of Appeals, wrote
"Prosecutors play a distinctive role in the search for truth in criminal cases. As public officers they are charged not simply with seeking convictions but also with ensuring that justice is done. This role gives rise to special responsibilities--constitutional, statutory, ethical, personal--to safeguard the integrity of criminal proceedings and fairness in the criminal process."
(People v Santorelli, 95 NY2d 412, 420-21 [2000].)

On December 31st, the Fourth Department decided two cases in which it found that the prosecutor made improper remarks in summation.  Both were decided on appeal from judgments of conviction for sex offenses.  And in both the court exercised its discretion to review the issue of prosecutorial misconduct in the interests of justice because it was not properly preserved.

In the first, People v Gibson (2015 NY Slip Op 09722), the defendant appealed from a judgment of conviction for sexual abuse and other crimes.  The prosecutor engaged in misconduct in summation by (1) referring to facts not in evidence, (2) commenting on how difficult it was for the complainant to recount her ordeal, thereby improperly appealing to the jury's sympathy and bolstering the complainant's credibility, and (3) suggesting "that the jury experiment on themselves to see how quickly bite marks fade."  The court admonished the prosecutor, reminding him that "prosecutors have special responsibilities . . . to safeguard the integrity of criminal proceedings and fairness in the criminal process."  Nevertheless, the court did not reverse the defendant's conviction on that ground, concluding that "it cannot be said here that it caused such substantial prejudice to the defendant that he has been denied due process of law."

In the second, People v Jones (2015 NY Slip Op 09773), the defendant appealed from a judgment of conviction for attempted rape and other crimes.  The prosecutor in summation (1) "repeatedly invoked a 'safe streets' argument," even after the trial court sustained defense counsel's objection to that argument, (2) "denigrated the defense by calling defense counsel's arguments 'garbage,' 'smoke and mirrors,' and 'nonsense' intended to distract the juror's focus from the 'atrocious acts' that defendant committed" and improperly characterized the defense "as being based on a 'big conspiracy' against defendant" by the prosecution, (3) "denigrated the fact that defendant had elected to invoke his constitutional right to a trial," and (4) "mischaracterized and overstated the probative value of the DNA evidence."  The court found this latter act of misconduct the most egregious because of the obvious danger "posed to defendant when DNA evidence is presented as dispositive of guilt."  Finding that the prosecutor's misconduct caused substantial prejudice to the defendant and that the evidence of the defendant's guilt was "less than overwhelming," the court reversed the defendant's conviction.

These two cases serve to both provide examples of prosecutorial misconduct in summation and reiterate my earlier point that many defense attorneys are unclear about what amounts to misconduct, or, at least, do not properly preserve instances of misconduct for appeal--that is, by objecting to each instance, specifying why the comment was improper, and by taking exception to any curative instruction given if it was not sufficient to "cure" the prejudice created by the comment.

To provide a non exhaustive overview, taken from my running list, it is improper for a prosecutor to do any of the following in summation:
  • refer to facts not in evidence;
  • shift the burden of proof;
  • refer to the defendant as a liar;
  • denigrate the defense, defendant, or defense counsel or equate the defense to a conspiracy claim;
  • offer a personal opinion as to the defendant's guilt;
  • comment on the defendant's request for a lawyer;
  • comment on the defendant's post-Miranda silence;
  • arouse the jury's sympathy for the complainant or witnesses or otherwise inflame the passions and prejudices of the jury;
  • infer that the community would be unsafe if the jury did not convict the defendant;
  • equate a not guilty verdict with a finding that a witness perjured his or herself; and
  • vouch for the credibility of the complainant or witnesses.
As the Gibson court noted, New York courts have taken the stance that "reversal is an ill-suited remedy for prosecutorial misconduct," preferring instead that prosecutorial misconduct be addressed internally or by each appellate division's disciplinary committee.  That being said, the appellate division will reverse a conviction where the misconduct "has caused such substantial prejudice to the defendant that he or she has been denied due process of law."  And the appellate division measures whether substantial prejudice has occurred requiring reversal by looking at "the severity and frequency of the conduct, whether the [trial] court took appropriate action to dilute the effect of that conduct, and whether review of the evidence indicates that without the conduct the same result would undoubtedly have been reached" (see Jones).

Tuesday, October 20, 2015

Unless a defendant is advised of post-release supervision before pleading guilty, the conviction cannot later be counted as a predicate felony.

If a defendant was not advised of the post-release supervision component of his sentence before pleading guilty, it is unconstitutional for a court to consider that conviction for predicate felony purposes -- even if the conviction preceded the Catu decision.  At least, this is now true for courts within the First Department.

In its 2005 decision, People v Catu, the New York Court of Appeals made clear that post-release supervision is a direct consequence of a conviction and announced a new constitutional rule, that is: Before accepting a guilty plea, the court must advise the defendant of the post-release supervision component of his conviction (4 NY3d 242 [2005]).  Failure to do so is unconstitutional and requires reversal of the conviction (id.).

Five days ago, the Appellate Division, First Department, held that the rule of law announced in Catu applies retroactively to pre-Catu convictions (People v Smith, __ NYS3d __, 2015 NY Slip Op 07565 [Oct. 15, 2015]). 

The defendant in Smith brought a CPL 440.20 motion challenging his sentence as a second violent felony offender on the ground that his 2002 conviction was unconstitutional under Catu and therefore could not be counted as a predicate felony under CPL 400.15(7)(b).  Both the Supreme Court, New York County, and the Appellate Division, First Department, agreed.

Pursuant to New York's Criminal Procedure Law, "A previous conviction . . . which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate felony conviction" (CPL 400.15[7][b]).  The First Department held that "a conviction obtained in violation of Catu implicates rights under the federal Constitution as well as the state constitution" and therefore cannot be counted as a predicate felony under CPL 400.15(7)(b) -- even if the plea was accepted before the Court of Appeals decided Catu.

The Smith decision is a huge success for the criminal defense bar.  

If not already doing so, defense attorneys representing defendants at sentencing should argue that the court cannot use a guilty plea as a predicate felony unless the defendant was advised of post-release supervision before pleading guilty -- even if the plea predated Catu.  Defense attorneys should also use Smith as a springboard to collaterally challenge predicate felony sentences where the predicate felony conviction was obtained in violation of Catu.

Not only that, because Catu applies retroactively, at least in the First Department, defense attorneys can seek to have guilty plea convictions predating Catu reversed where the defendant was not advised of post-release supervision before pleading guilty (and likely would not have pleaded guilty had he known of the post-release supervision).

Friday, June 12, 2015

Another successful challenge to denial of Parole Release.

        We've discussed this in the prior posts on this site. CLPR Article 78 special proceedings are the means to challenge the denial of release to parole supervision. On June 2nd, Acting Supreme Court Justice John L. Michalski issued a Memorandum and Order vacating the Parole Board's imposition of a twenty four month hold, and instead imposed a twelve month term effectively ordering the Respondent's release in the Matter of Caufield v. NYS Division of Parole. In our representation of the respondent, our petition noted he was sentenced in July 2013 to an indeterminate term of 1 1/3 - 4 years on his plea to a Class D felony of DWI. At his appearance before the Parole Board in July 2014, he had already been awarded Merit Time pursuant to Corrections Law Section 805 and a Certificate of Earned Eligibility. He had completed the DWI program, received a favorable COMPAS Risk and Needs Assessment and provided the Board with favorable letters of support, a personal recovery statement and an offer of prospective employment. The respondent appeared via video conference with the Board, who denied his release and ordered a 24 month hold. Their determination recited the usual boiler plate"there is a reasonable probability that [petitioner] would not live and remain at liberty without again violating the law and his release at this time is incompatible with the welfare and safety of the community." 
         Our petition noted among other things that the Board's decision failed to consider his exemlary prison disciplinary record, positive programming, contributions to the prison community and support available upon release. It also failed to consider the sentencing Court's specific recommendation to the Board, encouraging the respondent's early release if he did complete all the available programs. 
          We argued the denial of release was irrational, arbitrary and capricious. The Supreme Court Decision determined the "twenty four month hold to be excessive and an abuse of discretion. Accordingly, the parole Board will vacate its imposition of a twenty four month hold, and instead impose a twelve month term."
           Keep fighting.


Saturday, May 9, 2015

Random Musings on Trying a Child Sex Abuse Case

by Jill Paperno, Esq., 

A while back, after I completed a child sex trial, I wrote a post on this site as to Tactics to Consider in Trying a Child Sex Case. After a few years more experience, including a child sex trial this past week, there are some additional tactics and strategies I would like to share.
There are certain things we can expect in a child sex abuse case.  Particular types of arguments and proof seem to consistently make their way into these cases.  The best way to handle these issues is to anticipate them and try to address them in advance, or at least be prepared at trial.  The following are some common tactics and suggestions for ways of handling them:
Before trial
1.  The defendant’s statement indicates he was the subject of sex abuse as a  child:  Investigators routinely elicit this information from defendants, perhaps in an effort to seem sympathetic during the interrogation,  but more likely, to attempt to get that information before a jury, which is likely to believe that someone who has been abused in the past will be an abuser.  The U.S. Government Accountability Office surveyed studies and concluded that there was no conclusive evidence that those abused as children would become abusers as adults.  http://www.gao.gov/products/GGD-96-178.  So if you have this inflammatory information in your client’s interrogation, move in limine to keep it out.  If it’s deemed relevant, request a Frye hearing, arguing that if the science does not support this, the evidence should not come in.  And even if it does, it’s probative value is outweighed by its prejudicial effect.  (Thanks Roger Brazill for the GAO article and suggestion for my motion.)
2.  The claim that the child’s school performance deteriorated after the alleged abuse:  This is often given anecdotally by relatives.  But again, there is a study that supports a conclusion that there is no correlation between childhood sexual abuse and poor school performance (again pointed out to me by Roger Brazill).  http://www.economica.ca/ew12_2p1.htm.  So again, move to preclude the use of any testimony of declining performance by the child, or ask for a Frye hearing.
There are numerous other motions in limine to make prior to trial.  I still move to preclude the CSAAS witness (you can’t make me call him “expert”).   Amusing anecdote – this fellow always testifies he is on the faculty of an upstate medical school.  I’ve looked into it.  I asked him if he said he was on the faculty there.  He said yes.  Did he have an office?  No.  Does he get paid a salary?  No – he does not get paid.  Is he on their website?  No.  (I’d called the school previously and they’d said that he was not on their faculty.)  He apparently takes interns and apparently gives a lecture or few lectures in which he teaches students to be sensitive to how children disclose.  I’m not quite sure.  I didn’t say it at the time, but where I come from, if you working for free, I think you’re called a volunteer. 
Many motions in limine you may make depend on the facts of your case.  If your client has had many youthful indiscretions, pay attention to whether the prosecution will try to highlight his many children with many mothers, and try to limit that citing People v. Presha  83 AD3d 1406. 
Jury selection
 I’ve written before about some of the issues I raise in jury selection.  I’ve added one to the collection.  At trial, prosecutors in our county almost always try to create the impression that the child must be testifying truthfully by eliciting details – colors of clothing or furniture or other things that, realistically, I doubt any child recalls.  So I ask a juror in voir dire, “If I said that you came into my garage and stole my bicycle last year, would that  be true?”  They almost always say no.  (This week was a funny exception.)  I then ask, “If I said that you came into my garage and stole my bicycle last year.  The garage is in our house, which is tan.  The bicycle is blue, and it was leaning against a green shelf.  You were wearing a red shirt that day.  Would that be true?”  Then I talk about details not making something true.  In the case I just tried, when the complainant said she remembered that during an incident alleged to have occurred two years ago she was wearing clothing with a certain cartoon character in a certain color, it seemed like it was so scripted. 
Prosecutors have started asking, if it’s a one witness case, whether a juror can convict on the testimony of one witness.  We’ve got to make sure we get right back at those jurors reminding them that of course they can convict if the witness’s testimony amounts to PBRD, but can they acquit if it doesn’t?  Will they?  Even if the witness is a child?
I do some voir dire on the CSAAS witness.  I talk about whether they can assess whether an opinion is scientific and what they will base it on.  I also talk about how they will hear that he does not know anything about the evidence in the case, and will come in and say every type of behavior is consistent with a child having been abused.  But he will also say every type of behavior is consistent with a child not having been abused. 
I talk about how our local specialist doctor in this area will come in and say that all normal findings are consistent with child sexual abuse if a complaint has been made, and that will be her conclusion in this case.  Not inconclusive or non-specific, but consistent with.  Can they promise to judge whether her testimony is unbiased and whether she adds anything to the information they have? 
Open
I talk to the jurors about how they will hear that there will be two witnesses offered as experts.  And that the doctor will claim that the findings are consistent, even if they are normal.  So the child of any person in the building, if a complaint was made , would have findings consistent with the child having been abused.  And the CSAAS witness testifies regardless of what the claims are.  So in every case where there is a complaint,  any person, guilty or not, will start out with two so-called expert witnesses testifying against him.
 Summation
I think all the CSAAS testimony is designed to reduce the burden of proof.  (And if you have a CSAAS witness coming to trial, please contact me.  There is so much to talk about!)  So I think we have to take the case out of the realm of child sex abuse and remind jurors they are not social workers, they are jurors in a criminal court.  This was my effort in my most recent case, in which there were numerous inconsistencies, and the complainant said she kept returning to the house to see the other kids who lived there (she did not live with the defendant) , she could have been picked up in the evening, but she decided to spend nights because she wanted to spend nights with the kids, even though the alleged abuse and attempted abuse happened nearly every time when she was sleeping there.  From my sum:
You heard Jane Doe’s testimony.  You know it is inconsistent and you know it doesn’t make sense.  And I’m guessing in another context, after hearing such testimony you would not hesitate to acquit.
So let’s think about how you would perceive a claim of your next door neighbor saying he was assaulted by another neighbor.  And the neighbor says, this guy came to my house while I was barbecuing and punched me.  He called me to the backyard and punched me.  He did it on three separate days.               
Then the neighbor says, well, yes, I told someone else the first time was when I was sleeping in a chair on the front porch.    Yes, I told a third person it was four times, and I told a cop it was once. 
I hated it when he punched me.  It was awful.
And every week I go to this guy’s house for dinner.  I like the company. 
You get the picture.  You would clearly discount the testimony. 
But we all recognize that claims of child sexual abuse are different.  They are the stuff that secrets are made of.  So yes, a secret may be kept.  And that is why Roland Summit wrote his article suggesting clinicians be open minded.  And his second article, cautioning about the use of this theory in court.
You are not clinicians, trying to provide treatment to a child who has made a claim.  You know this.  You are jurors here to assess whether there is proof beyond a reasonable doubt of each element. 
So whether or not you accept Summit’s theory, as Summit said, it was not intended to guide what happens in the courtroom.  In the courtroom there is a set of rules.  And those rules require proof beyond a reasonable doubt.
Unreliable testimony of a child, cannot be the basis for PBRD.  You’ve promised not to decide this case based on sympathy.  You agreed to make a determination – whether all of the elements of each charge have been proven beyond a reasonable doubt.
I also think it’s important to acknowledge the difficulty in dealing with a child sex abuse case to the jury.  So I’ll say something like this:
We have now, ended the testimony in this case.  But although that may have been a difficult process, the real challenges lie ahead for you.  Because nobody comes into a courtroom hearing allegations about sexual abuse and seeing a young child testify, and thinks “I can’t wait to acquit this guy.”
But you must.
Because the prosecution has failed to meet its burden of proof beyond a reasonable doubt with respect to each count of the indictment.

These are tough cases, and of course, you have to do what’s comfortable for you.  But I think these cases present a unique challenge, and it’s helpful to consult with others who have handled them.  And in fact, if you have any experts coming in at trial, it’s not only helpful, it’s required.  Good luck!
(Editor's note: Jill is too modest to mention that, once again, she obtained a complete acquittal for her client).