These cases are never easy. Even if the recantation can ultimately be shown to be untruthful, the mere suggestion that the victim is changing his or her testimony will cause serious complications, and can ultimately be fatal to a prosecution. But there are steps that can be taken in an attempt to attain a just outcome.
THE CASE BEFORE RECANTATION.
Begin with the case before the recantation – was it a strong case? If there is independent evidence to prove the elements of the case, the case can remain strong even with the recantation. Lack of independent evidence makes prosecution more difficult, but is not necessarily a barrier with sufficient investigation. It is incumbent upon the prosecution to paint the picture of what is occurring behind the scenes so the jury can see the truth. Identifying witnesses and physical evidence is critical. Expert testimony can help explain why victims recant, and the circumstances that increase the likelihood of recantation.
UNDERSTAND THE WHY?
The ultimate goal is to understand the “why.” The multidisciplinary team must become an integral part of that investigation, utilizing the strengths of each member. Law enforcement must remember that with these types of cases, there is always a chance of recantation. Therefore, corroboration, even if minimal, is key. Some of the juror feedback in included case study emphasized that they wanted law enforcement to at least attempt to corroborate aspects of the victim’s history. And after the recantation has occurred, law enforcement can be integral in investigating the pressures and family dynamics that may be present. The detective has had the case from the beginning, presumably before the recantation occurred. That insight in the search for what changed is invaluable.
INVOLVE CHILD PROTECTIVE SERVICES WHERE APPROPRIATE.
Child protective services is also an integral part of the team. There may be additional family history to give insight into the “why.” Have there been other referrals? Have they experienced difficulty with this family in the past? Has the victim made prior allegations, whether against this defendant or another person? The victim may have made statements to child protective services outside of the official law enforcement investigation. These statements could also prove instrumental if they contradict the new recantation.
ADDITIONAL FORENSIC INTERVIEWS.
Subsequent forensic interviews should be considered with members of the multidisciplinary team to determine if advisable. Factors such as circumstances of the recantation, amount of time between the initial interview and the recantation, age of the child, living circumstances of the child, the degree to which the non-offending caregiver is cooperating, and the safety of the victim should be discussed. If the jurisdiction allows the admission of the videotaped forensic interview, and allows for impeaching the victim, then this can be extremely powerful evidence.
Regarding forensic interviews, it can be exceptionally important to forensically interview child witnesses of these crimes, especially in a family situation. Regardless of the interview’s admissibility, if a child witness recants or cannot recall facts they observed years prior, a recorded forensic interview can mitigate that complication. In the case study included herein, the 5-year-old cousin was not forensically interviewed. The family also pressured that child into recanting what he saw. There were no prior inconsistent statements to impeach the child’s statements at trial.
IMPEACHMENT OF VICTIM.
The law relevant to recantation cases can vary greatly from one state to another. Some states do not allow for the impeachment of the victim, but may allow for limited use of prior inconsistent statements. However, the more modern approach, consistent with Fed. R. Evid. 603 allows any party to impeach a witness, including one’s own witness. In jurisdictions which allow for the impeachment of the victim, the case can likely proceed even with only the prior inconsistent statement. In jurisdictions that don’t allow for the outright impeachment of the victims, cases that have physical evidence or testimony inconsistent with the victim’s recanted statements can be utilized to essentially impeach the victim with your closing argument.
Traditional ways of preparing a case may be insufficient when the victim recants, and may require the prosecution team to think outside of the box. Interviewing the supportive people in the victim’s life, including family, friends, counselors or teachers, can prove extremely helpful. The victim may remain consistent with these potential witnesses. Even if the victim is not discussing the facts or has recanted to them as well, these individuals may be able to paint that important picture of the dynamics triggering the recantation.
Investigation should be extended to social media and other technology. Some of the reasons for recantation could be in the form of emails, texts, social media messages, and postings on social media pages. This investigation should extend beyond the victim, but also include those individuals that may be influencing the child. And if the defendant is incarcerated in a facility that records telephone conversations, the prosecutor must constantly monitor those calls to gather evidence or even an outright admission.