A military sexual assault case can’t be about settling scores. It’s about staying free and staying off of the sex offender list. Here’s how you do that:
- Be nice
- Be reasonable.
- Be thorough.
Am I telling you to be nice? I am. Bear with me.
Broadly speaking, an attorney will defend a military sexual assault case in one of two ways: attack or outflank.
Every particular approach falls into one of those categories.
Either approach can work, but this is a classic instance where, more often than not, you’ll catch more flies with honey than vinegar.
How do you do it?
Strictly speaking, you do don’t do it, your attorney does. But you still have to choose how you want to be represented, because everything your attorney does will reflect upon you, and the tips here will get you into the right frame of mind. You are the hero of this story. You have to make that obvious to everyone. Everyone hates a courtroom bully, except other courtroom bullies.
Keep in mind that this isn’t about manipulation. It’s not about trickery. It’s about winning your case by winning people over.
- BE NICE
This is going to be the hardest rule to follow, especially if you’ve been falsely accused. We get that. The whole point of your defense is to show the world that you’ve been falsely accused. But to get to that point, you’re going to need some friends.
This is the plan in a nutshell: Think of each person involved in a court-martial as a potential ally.
Prosecutors. You might as well think of military prosecutors as the command, the bank, and the ones who can ensure you get a fair trial. Some of them will be very helpful (getting experts for you, being cool about scheduling, etc.). Some of them want the case to go away. Don’t hate them until they deserve it.
Investigators. More often than you’d think, investigators want a case to die. Their hands are tied, but if they have something useful, and if they don’t feel like they’re being attacked, they’ll give it to you.
Commanders. Just like prosecutors and investigators, many commanders have doubts about these cases. We’re positive, having dealt with hundreds of them, that they prefer the “play nice” approach to the vicious approach.
Nurses. Sexual Assault Nurse Examiners can spot a bogus rape allegation better than anyone. An entire case can turn in your favor based on a nurse’s testimony.
**If the nurses and cops cross the aisle, your chance of conviction is essentially zero.**
Expert witnesses. A single concession by a government expert can get you an acquittal all by itself. Their expert is your expert.
Special Victims’ Counsel. This is the victim’s attorney. If you have any hope of getting out of a sex assault case before it’s in the jury’s hands, you’ll need the victim’s cooperation. She will seek advice from the SVC. If either of them feels disrespected, you’re not getting their help.
Victim. First, it’s not worth being stubborn about the use of the label “victim.” No one will assume you’re guilty just because your attorney used the word “victim.” It’s the word everyone else uses. It’s generic. It’s a silly thing to make a stand over. A lot of defense attorneys obsess over this one, but it makes them sound like they’re trying too hard.
Second, being courteous is hugely important when your attorneys meet the victim. If she feels that she is being treated fairly, and not condescended to, she is far more likely to play fair.
- BE REASONABLE
Asking the government to get you a high-priced, high-profile expert is a waste of time. There are plenty of experts who do courts-martial all year long, who the prosecutors know, whose price is right, and who know exactly what kind of help you need. Let your attorney handle this.
Your attorney needs to make things easy for witnesses on the eve of the trial. Quick interviews on only the key points: it keeps witnesses happy, and happy witnesses are helpful witnesses.
Don’t expect government experts to agree with an attorney’s outlandish hypotheticals. You’re not going be acquitted because an expert says – with the inevitable eyeroll –
there’s a 1% chance of something. “But you’ll admit it’s possible” isn’t where acquittals come from.
It’s really bad form for an attorney to be combative with the judge. An attorney needs to pick her battles. She absolutely can’t afford to appear pigheaded when the jury is in the room. A good trial attorney knows when to stand down, so don’t panic when that happens.
The story needs to reasonable too. Your attorney has to give the judge and jury a real sense of what actually happened or what didn’t happen. Your version has to be believable, not merely possible. The she’s a lying whore explanation simply doesn’t sell like she might be lying, but she’s definitely wrong. It gives the jury another hook to hang the acquittal on.
- BE THOROUGH
The #1 shortcut in a sexual assault case is to build the defense around the notion that the victim is a lying whore. A lot of attorneys go all-in on that one. A lot of defendants love it.
But if she’s lying, you can’t just say it. You have to show it, and showing it takes thought, effort, and a plan. Calling her a liar in opening statement before you’ve shown that she’s lying, to the jury, to the judge, to everyone, under oath, right now … it doesn’t score any points. It’s not a plan, it’s a headline.
If she’s lying you really need to take the time to set up for the big fall. Coming into the courtroom throwing punches right from the start … again, nobody likes a courtroom bully, other than other courtroom bullies.
THE TAKEAWAY
The acquittal should allow everyone to save face.
Judges and juries almost universally prefer to believe (or say) they acquitted based on reasonable doubt, not because the woman lied. Even if they know she did.
And that’s where the “be nice, be reasonable, and be thorough” plan comes together.
We’ll never know for sure what happened is a far more persuasive theme, in a sexual assault court-martial, than she’s a liar. It sounds fairer. It’s more socially acceptable. Judges and jurors want to feel like problem solvers, not vigilantes.
Selling it this way not only gives more than one path to an acquittal, it appeals to judges’ and jurors’ military pride, military bearing, and professionalism. A pro respects a pro, no matter the rank, so convince them you’re a pro. That’s how you stay off the sex offender list and return to work as a conquering hero, instead of just a guy who got away.