This document discusses strategies for defending against child sex abuse cases, including summarizing key cases on discovery rules and medical privacy laws. It outlines approaches for requesting discovery materials, including medical records, school records, and forensic evidence. It also provides guidance on conducting cross-examinations of sexual assault forensic examiners, emphasizing questioning their credibility and bias. The document stresses attacking inconsistencies between physical evidence and victim testimony.

1. Spicola& “SANE” Insanity:Beyond the Smoke and MirrorsDefending a Child Sex Abuse Case

2. DONALD G. REHKOPF, JR.Brenna, Brenna & Boyce, pllc31 East Main Street, Suite 2000Rochester, New York 14614(585) 454-2000

3. OVERVIEWPeople v. Spicola, NY COAHIPPA IssuesDiscovery MattersFrye Issues / HearingsCross-Examination Concepts

4. People v. Spicola,16 N.Y.3d 441 (2011), affirming61 A.D.3d 1434 (4th Dept. 2009)

5. HIPAA in a NutshellHealth Insurance Portability and Accountability Act42 U.S.C. 1320d45 C.F.R 164

6. BASIC PURPOSE OF HIPAAPatient PrivacyRights

7. 42 U.S.C. § 1320d-5Civil Liability

8. 42 U.S.C. § 1320d-6Criminal Liability

9. 45 C.F.R. § 164.510Patient may restrict disclosures / redisclosures

10. OCA HIPAA RELEASEhttp://www.nycourts.gov/forms/hipaa_fillable.pdf

11. BEWARE OF NY “HIPAA” LAWHIPAA Preempts State LawUNLESS State Law = More ProtectiveArons v. Jutkowitz, 9 NY3d 393 (2007)Civil case – important “discovery”

12. Arons- You have the right to demand HIPAA compliant release

13. Arons, at 409:“This waiver is called for as a matter of basic fairness”

14. DISCOVERY55 WAYS TODrive ThemIn “SANE”

15. REHKOPF’s“S.A.F.E.”DiscoveryChecklist

16. Mental Health RecordsPeople v. Earel,89 NY2d 960 (1997)

17. SCHOOL RECORDSFEDERAL EDUCATIONAL RIGHTS and PRIVACY ACT [ FERPA ]20 U.S.C. § 1232g

18. § 1232g(b)(1)(J)(2)(B)requires “judicial order” or “lawfully issued subpoena” on notice to student or parents if minor.

19. The New York StateSexual Assault Reform Act (SARA)Sexual Assault Forensic Examiner (SAFE) ProgramNew York State Department of Health

20. The goals of the SAFE program are to:4. Utilize an interdisciplinary approach by working with rape crisis centers and other service providers, law enforcement and prosecutors’ offices. . . .

21. 5. Provide expert testimony when needed if the patient chooses to report the crime to law enforcement . . . .

22. CPL § 240.20(1) MaterialsAmbulance RecordsHospital Emergency Dep’tHospital - Proper

23. NYS “Sexual Assault Assessment Form”- SAFE Grand Jury Testimony

24. Photographs- General Trauma- Colposcopic- Anoscopic- Crime Scene

25. Diagrams- General Body- Genitalia- Crime Scene

26. SCHOOL RECORDS- Disciplinary Records- Medical- Attendance- Reading- Special Programs

27. BRADY / KYLES / WRIGHTPrior False ComplaintsUntruthfulnessCell phone recordsSocial Media RecordsRemuneration

28. Part IICross-Examination of aSexual Assault Forensic Examiner

30. “Of the delights of this world, man cares most for sexual intercourse. He will go to any length for it - risk fortune, character, reputation, life itself.” – Mark Twain

31. Q: Nurse Ratchett, do you think that one years experience as a SAFE qualifies you to render a medical opinion here?A: No sir.

32. Q: Then what facts do you base your conclusion that these injuries are “consistent with” a “violent sexual assault?”

33. A: They are the same injuries I received when I was raped at age 22.

34. And,The VerdictIs?

35. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)

36. People v. Wernick89 NY2d 111 (1996)Frye is still the test in NY – more or less.

37. Frye HearingFrye Hearing on SAFE expressing any medical opinion, especially that certain physical manifestations are “consistent” with anything. That calls for the jury to comparatively speculate, without any basis in fact - no different than saying, “That is consistent with the truth of what she is saying, Your Honor.”

38. - A Westlaw™ search in New York cases did not disclose any reported cases where a Frye hearing was done.

39. Guidelines for Effective Cross-Examination.

40. “CRITICAL CONCEPTS”Confrontational cross-examination. This is war - the “cross to kill.”

41. - Lead with attacks on credibility.- Expose bias, interests and motives up front.- Lay the “theme” early and often.- Once you have control of the witness, then go after “risky areas.

42. Credibility attacksAre you discrediting the witness? or,Discrediting the testimony of the witness?

43. Closing the Cross- insert the theme of the case or for this witness:

44. -- “But, you lied . . .”-- “But, you changed your story, didn’t you?”--“But, you never interviewed the mother, did you Nurse Ratchett?”

45. CROSS-EXAMINING THE “SAFE” [ FINALLY! ]

46. Establish Your Goal for This Cross-Examination.– Why and for what purpose is the ADA calling this witness? – Prioritize your cross - always get the “good” / “helpful” before you begin your attack.

47. Lack of evidence- inconsistent with oral history of patient

48. Quality of the evidencevis-a-vis oral history of patient:

49. Bias- SAFE is not a neutral forensic evidence gatherer.

50. The End