Every criminal defense attorney has to deal with the question, “How can you defend those people?” and that’s especially true when it comes to cases involving sex, children, or domestic violence. The question is asked with a tone of condemnation, but it unintentionally gets at an important truth. “Those people” and “those cases” require a certain type of lawyer, and it has nothing to do with being soulless. Note, too, that the question presumes guilt, something a criminal defense lawyer doesn’t do.
The defense of sexual assault and domestic violence prosecutions demands a unique synthesis of skills combining the strategic acumen of a trial lawyer with the psychological awareness of a forensic expert. This field, which has made up the bulk of our casework for 25 years, requires a distinctly bolder yet infinitely more nuanced approach to testimonial evidence and courtroom dynamics.
Our credibility comes from mastering the complex suite of issues that occur in these dramatic cases. We have a long history of securing acquittals in seemingly unwinnable cases by mastering forensic psychology and every moving part of cross-examination.
Resilience and Ethical Lawyering
The attorney’s emotional foundation must be unassailable. The intensity of emotional projection, from the alleged victim, opposing counsel, and often the judge or panel, is arguably the highest in this kind of case than any other, including many homicides.
Compartmentalization
The attorney must rigidly compartmentalize personal feelings to remain a tenacious, objective advocate. In the experience of most veteran UCMJ trial lawyers, these allegations are often proven false or unsupportable, but the expert defense counsel cannot afford to assume they are true or false when entering the case. You need to clinically assess all evidence and probabilities in addition to reading the psychological and social climate of the base, case, and zeitgeist. A critical risk arises from any pre-judgment that an allegation is a lie, as it leads to underestimating the danger of either a false conviction or an accurate conviction. The client deserves a lawyer who provides an unclouded, objective assessment of the evidence and the high consequences. This fortitude allows the attorney to pursue uncomfortable but legally necessary lines of inquiry, the ones that reveal the truth, without fear of the unknown.
Courage
The attorney must possess the mental toughness to endure the inherent confirmation bias of the courtroom, where a defendant accused of sexual assault or domestic violence is often presumed guilty. This is the courage to stand alone, aware that professional duty often requires defending the accused against overwhelming moral condemnation and emotionally powerful testimony.
Mastery of Forensic Science and Logical Vulnerabilities
In adult sexual assault cases, the defense often pivots on the reliability of the testimony rather than the veracity of the witness. This demands deep expertise in memory science, which becomes the defense’s primary technical weapon.
The Science of Defense
The attorney must possess a technical mastery of concepts such as hippocampal function, en bloc vs. fragmented blackouts, confabulation, and the psychological effects of trauma. This knowledge allows the attorney to challenge the fundamental reliability of the state’s evidence without ever having to accuse the alleged victim of lying. The argument shifts from “She is lying” to “the scientific literature on human memory and acute alcohol intoxication suggests the account might be a sincere but factually inaccurate reconstruction.”
Exposing Cognitive Fallacies
A successful defense attorney must also be a fluent logician, capable of identifying and dismantling the subtle cognitive biases and logical fallacies that pervade the case:
- Hindsight Bias: Showing that current feelings of distress are incorrectly imputed back into a memory of an initially ambiguous or consensual encounter.
- Narrative Fallacy: Deconstructing the prosecution’s simple, linear story to reveal the chaotic, contradictory, and confused moments (e.g., text messages sent during the event) that were edited or deleted to create a plausible narrative.
- Appeal to Emotion: Preventing the court from substituting the alleged victim’s pain and distress as proof of the criminal act itself.
The Art of Sophisticated but Clear Cross-Examination
Mastery of cross-examination is crucial. Our 25-year history has taught us that cross-examination requires a careful, highly disciplined approach that leverages the science of memory.
Firm, Not Argumentative
While the attorney can afford to be bolder, this boldness must be expressed as relentless insistence on facts, not hostility toward the witness. The aim is to methodically isolate the points where the testimony relies on assumption, inference, or reconstructed memory. The attorney must be professional and measured, maintaining a controlled, factual demeanor that contrasts sharply with the high emotion of the allegations.
When a Witness Lies
Every trial lawyer eventually encounters a witness who lies outright. The temptation is to respond with righteous indignation: to attack, to expose, to dismantle on the spot. But effective cross-examination demands composure. You do not lose your composure, and you do not go into blitzkrieg mode. You stay in control. You draw the witness into conversation, giving them the space and rope to contradict themselves. You allow them to doom themselves in their own words rather than forcing them to answer a barrage of yes-or-no questions. If escalation becomes necessary, it must be controlled, deliberate, and devoid of anger. The goal is to keep the panel and judge on your side while the witness alienates them through their own behavior.
A Multi-Layered Approach
Mastery of cross-examination encompasses a multi-layered strategy:
- Impeachment by Contradiction: Using the case file’s entirety (texts, medical records, prior statements) to demonstrate the memory’s unreliability.
- Impeachment by Character or Reputation: Calling witnesses who can testify to the opposing witness’s poor character or reputation truthfulness, showing that their testimony cannot be taken at face value.
- Impeachment by Science: Showing the mechanism of error, such as how alcohol, subsequent discussions, or therapeutic suggestions might have contaminated the original memory.
- Impeachment by Omission: Exploring what the alleged victim did not say in their initial reports (e.g., absence of immediate distress, failure to immediately disclose key details).
Total Awareness: Reading and Managing the Courtroom
Criminal defense in a serious trial like this is a mentally exhausting, multitasking discipline. The attorney must possess a sixth sense for reading the room.
The attorney must constantly process simultaneous streams of information without losing track of any of them:
- Witness: Tracking every nonverbal cue, pause, hesitation, or moment of feigned confidence to determine when a line of questioning is striking a genuine memory versus a confabulated or manufactured detail.
- Trier of Fact: Constantly monitoring reactions, body language, and focus to ensure the defense’s message is landing correctly and not being misread as unfair harassment or as reinforcing a lost point.
- Opposing Counsel: Anticipating objections before they’re voiced and planning two steps ahead.
- The Whole File: This awareness hinges on complete mastery of the case file. Every text, medical entry, and interview transcript must be indexed in the attorney’s mind for instant recall.
All of this happens while the courtroom door is banging open and shut, the court reporter is fussing with equipment, co-counsel are passing notes his way, and people in the gallery are whispering. Through it all, the attorney must maintain awareness of the client’s demeanor (every flicker, sigh, or eye-roll) because the panel is watching that, too.
Strategic Mitigation
The attorney must retain the capacity for masterful mitigation and reading the room during sentencing. If a verdict of guilty is returned, the duty shifts instantly from challenging the facts to protecting the client’s future through mitigation. In a military trial, sentencing begins immediately after the verdict. There is no time to recover, no time to get your bearings. The defense must pivot immediately to shaping a human narrative that argues for restraint and perspective, while showing that even if the verdict is accepted as correct (which we don’t concede), it does not warrant the harshest punishment. And he has to do this while keeping the client grounded after a crushing experience: steadying him, helping keep his bearing, focusing his attention on what can still be done, and quietly watching over the people who hold him up: the mother who flew in, the father who sits stone-faced in the gallery, the spouse trying not to cry. The defense counsel’s role doesn’t end with the verdict; it extends to holding the line for everyone who still believes the client is worth saving, which might include the judge.
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If you are facing allegations under Article 120 or accusations of domestic violence, do not face the system alone. These are the cases that test whether justice still means what it says.