An experienced criminal sexual conduct attorney on your team

If you believe you may be charged with criminal sexual conduct crime or law enforcement wants to speak with you, you’d be wise to hire an experienced criminal defense attorney.

A seasoned defense lawyer can advise you on speaking with law enforcement, provide a letter that documents you’ve retained an attorney, and can sometimes even negotiate with law enforcement so that you are never charged.

A criminal complaint can be issued by summons, meaning you’ll be notified by mail, or it can be issued by warrant. In this case, you will be arrested by law enforcement.

A first appearance will be set. If you are in custody, your defense attorney will argue bail and the conditions for your release.

Conditions set in criminal sexual conduct cases can include, staying away from the alleged victim (the complainant), remaining law-abiding, staying away from minors, electronic home monitoring, testing for the use of drugs and alcohol, and other conditions the court deems mitigate the ‘risk’ you could pose to the public if released.

Having an attorney at this stage of the proceedings who can argue on your behalf is critical.

This hearing gives the prosecutor and defense attorney to argue any issues in the case.

Discovery—or the evidence the government will be using in your case—should be sent by this date. Quite often, it is not.

The State of Minnesota is required by law to share the evidence in your case. An experienced criminal defense lawyer can ensure this evidence is turned over.

If you are charged with criminal sexual conduct, you’ll want a defense lawyer who knows how to identify and challenge any legal issues that weaken the prosecutor’s case.

What types of things can a defense lawyer challenge in Minnesota criminal sexual conduct cases?

Probable cause. There must be a reasonable, articulable suspicion that a crime has been committed that can survive a motion for directed verdict. If the case is weak or there is a lack of evidence that a crime has been committed, a capable defense lawyer can move to dismiss your case.

Motions to exclude the prior bad acts of the accused.

Unqualified “expert” witnesses. Quite often nurses or alleged victims’ interviewees are offered as ‘experts’ when in reality, they can only vouch for what the person said.

Minn. R. Ev. 702 describes the standards for when a witness may testify as an expert. In short, prosecutors cannot call a witness who is not qualified on an issue to testify in court; they also may not call a witness to testify as to hearsay material simply to vouch for the alleged victim.

Criminal defense attorneys have increasingly seen the State of Minnesota offer “evidence” that is not based in legitimate science by labeling an unqualified person an “expert.” These witnesses will testify any response by an alleged victim is how a victim can respond to trauma. Did she go out drinking and then home to her husband? Did she text you that she loves you and can’t wait to meet up again after an alleged “assault?” These “experts” will say these are all common victim responses.

When it comes down to he-said-she-said case involving buyer’s remorse or a nasty divorce where children are being manipulated, it’s important your attorney understands that a good judge will not allow a nurse or other witness to testify as to anything other than their observations of the alleged victim. (Recently, Shauna won a motion to keep out a nurse expert from testifying as to the appropriate responses of victims and ‘delayed reporting.)

Your lawyer may also retain an expert to discredit issues in your case based in “junk science” and file motions to include crimes involving lying and felonies that discredit the prosecutor’s witnesses.

Case law has established that an alleged victim’s school, medical, and psychological records should be turned over to the defendant if they are relevant to his or her defense, and exculpatory under our United States and State of Minnesota Constitutions and the U.S. Supreme Court case, Brady.

Until recently, Minnesota had been following the law, and allowing at least a judge to review the records to determine if what was in those records was unknown and make the determination if those records should be turned over to counsel

That is no longer always the case.

Getting a full picture of an alleged victim’s prior false allegations and incentives to lie is critical.

Your lawyer should be familiar with the evolution of Paradee, to In Re Hope Coalition, to the Ramirez case currently before the Minnesota Supreme Court when arguing these very important issues on how to obtain the full exculpatory evidence of your case.

412 is a statute that excludes an alleged victim’s sexual history. It stems from decades ago when true victims of sex crimes were slut-shamed in court and it was rare to get a conviction.

Today, it has transformed into a weapon to exclude information relevant to the actual crime, which is a violation of your constitutional due process rights.

For instance, STDs known to exist in the reporting party, but not in the party accused of a crime have been wrongfully excluded by judges, as well as the sexual behavior of a person leading up to an alleged assault caught on video. The alleged victim perhaps making out with you, quite willfully, at a restaurant, for instance.

A good judge will understand the difference between an alleged victim’s prior sexual history and what is relevant, exculpatory due process evidence that must be admitted to allow the defendant the right to present their case.

A good criminal defense attorney will do their best to help the court understand the law on these issues.

At any time before trial, you may wish to resolve your case for a lessor charge or lessor crime. The State of Minnesota will make an offer and your criminal defense attorney can negotiate for the goals you would like to achieve. These goals may be for a resolution that would avoid jail or prison time or registration with the sex offender registry. These decisions are based on a thorough review of the evidence and discussions with your attorney about how to best help you find a resolution that works for you when faced with a difficult criminal sexual conduct charge.

What’s possible?

In Minnesota, without any other knowledge of your case, a grid defines guidelines, placing a general number for a crime based on previous criminal history. This serves as the starting point for resolution in a case, like yours.

These numbers are not mandatory.

Prosecutors can argue for a harsher disposition based on certain factors from a case, called “Blakely,” and they can also agree to what is called a downward departure.

A downward departure can be dispositional—probation instead of prison—or durational—less time than what the guidelines would call for.

These decisions can be influenced by a number of factors: Doing well on conditional release, currently in treatment, taking medications as prescribed, having a supportive family and loved ones, in school or working, etc.

A good criminal defense attorney will paint you as a whole human to the judge and prosecutor to try to achieve a better outcome in your case.

There are several potential case outcomes specific to the State of Minnesota that you should be aware of.

Stay of adjudication

A stay of adjudication means that, while you have pled guilty, the judge has not accepted your guilty plea so you have not been found guilty. And you will not be so long as you complete the terms and conditions of probation.

Stay of imposition

A stay of imposition can mean several things. Often it means that even though you have been found guilty of a felony if you successfully complete the terms of your probation, your charge will drop to a misdemeanor.

In Minnesota, you may have a judge or jury trial. It is almost always better to have your case tried before a jury of your peers. If a judge wanted to dismiss the case at any point, including after the State of Minnesota presented its case, they could have.

If you are charged with a felony, a jury of 12 of your peers must all agree that you are guilty before you can be convicted of a crime.

You can choose to testify, and a good lawyer will prepare you for that testimony, and speak with you at length before you make this decision. (Shauna has advised her clients both ways. It is ultimately your decision. Shauna has received not guilty verdicts in cases where her clients have chosen to take the stand—and in cases where they have not.)

You have the right to call witnesses, and you can use the power of a subpoena to make them appear in court even if they do not want to.

You have the right to cross-examine (ask questions of) any witness on the stand—your defense lawyer will do this for you.

The State of Minnesota must present its case first, because the burden of proof is upon the government, not you. You do not need to present a case if your strategy is to expose the weakness in the government’s case through evidentiary challenges, but your lawyer may present a case and often will. (Shauna has won jury trials proceeding both ways.)