Please tell us about your background, where you practice, and how long you have been a criminal defense lawyer.
While my practice is in Oakland County, my cases are truly spread across the state. I have been practicing since 2005, however, for the last several years I have started focusing exclusively on representing men, women and juveniles accused of sex crimes in both adult and juvenile (abuse/neglect) proceedings.
You have recently had some significant successes in defending sex-crime cases. Please tell us something about any recurring key issues you encounter.
Recurring key issues that are coming up in many of my criminal sexual conduct cases include: challenging competency of the complaining witnesses (due to age/cognitive ability/mental illness); obtaining privileged medical records and CPS records; defending Daubert [Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)] challenges by the prosecution on issues that Daubert does NOT apply to; and, lately I've noticed a trend among prosecutors to call rebuttal experts at the end of the case, rather than calling them during their case-in-chief.
Please tell us about one of your interesting cases. What were the issues? Were experts involved?
Recently, I have defended several cases involving adolescents who exaggerated nonsexual situations into experiences of criminal sexual conduct. In my last case, my client was rubbing his daughter's friend's legs on the couch when he got an erection that she saw through his pants. She embellished the story to say that he also slid his hand up her shorts, touching and penetrating her. By using Dr. [Katherine K.] Okla as an expert in forensic psychology with an emphasis on adolescent development, we explained how the egocentric mindset of an adolescent may have caused her to interpret what was otherwise a non-sexual experience as one that was sexually directed to her, making it easy for her mind to run wild with ideas.
Dr. Okla explained how the brains of adolescents are not fully developed, thus causing differences in the way they think. She explained that adolescents are not just mini-adults, and she taught the jury about widely-accepted psychological principles that impact their perception, storage and recall of memories of events. She also explained how a heightened curiosity regarding sex can impact a complainant's ability to encode memories of events. By also testifying about emotional contagion, imaginary audiences and the impact of the lack of alternative hypothesis testing in the forensic interview, Dr. Okla's testimony helped achieve an acquittal on all counts. This specific area of testimony was very helpful to explain why an adolescent would make false allegations in a case where there was not a strong motive for the complainant to have done so.
What advice do you have for other criminal defense lawyers?
I'm not sure if I can offer advice ... but this is what works for me. Find an area of law that you are passionate about and put all of your energy into learning all you can about that area. File very detailed and carefully written motions and briefs. From time to time, reinvent the wheel … one of the best things I did was to start from scratch on a Stanaway [People v. Stanaway, 446 Mich. 643 (1994)] issue instead of using the motions from everyone before me. Use the opportunity to show the court you know the case law and story of your case better than anyone in the courtroom.
Do you have any special advice for new lawyers?
Second chair as many jury trials as you can. Find a mentor you can go to for help and support - this profession is too stressful and overwhelming to be alone.
by Neil Leithauser
This interview with Shannon M. Smith has been sourced from this link.