Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
One of the most frequent questions I’m asked about sex offenses is what to do if there are no witnesses or evidence. Someone will be under investigation or may have already been charged for some type of sex offense, and they are absolutely mystified because they think that there is no evidence. But in fact, there is evidence in sexual battery cases without the need for DNA, video recording, audio recordings, fingerprint evidence, blood spatter or any other kind of scientific evidence. That is simply because testimony is evidence. This is critical to understand. In most sex offense cases, it is not uncommon for the complaining witness to report an allegation of sexual impropriety long after the event has occurred. This invites attacks on the credibility of the accuser, but it is something that the prosecution is well prepared for. The prosecution spends a lot of time preparing their complaining witnesses for on-the-stand testimony.
The mere fact that someone makes an allegation of sexual battery and swears to it as an oath is enough probable cause to have someone arrested for that crime. Quite often, a large number of these “he-said, she-said” cases are finding their way into the press. As a result, they have become one of the most politicized areas of criminal law. I cannot tell you the number of times that I have seen more than half a panel of jurors raise their hands when asked, “Is there anyone here who would not be able to give the defendant a fair trial based on knowing the charge alone?”
When this has happened to me in the past, I always move to strike the panel. Yet in my entire career, no judge has stricken a panel simply because a large number of people have said that they could not be fair to the defendant. This is an important consideration when looking at the trial of a particular case that’s based on testimony only. It’s critically important to understand the potential motivation behind a false allegation, or else to understand why someone simply made a mistake about what happened.
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