Duke lacrosse case far more complex than it looks

Duke lacrosse players Collin Finnerty (above) and Reade Seligmann have been charged with raping and kidnapping a stripper. AP

Glancing at the sexual assault charges against the Duke lacrosse players, many will say it's nothing more than a matter of she-said/they-said. It's the easy thing to say. But it's too easy. Looking more closely at the situation, there are six critical factors that will determine the outcome.

Based on my experience analyzing material after rape charges were filed against Mike Tyson, Marv Albert, Mark Chmura, Kobe Bryant and others, the six factors to scrutinize are the injury to the victim, the brevity of the encounter, the brutality of the alleged sex, the stories of outcry witnesses, any previous predatory conduct of the accused, and the skill and dexterity of the prosecutor. All six are critical factors in the prosecutor's decision to file a charges. And they become the outline for the evidence presented to the jury in the trial that will begin in Durham, N.C., in several months.

Injury to victim

This is the most important element in any rape case. The nature and extent of the injury determines whether the assault occurred and whether it was consensual. In the Tyson and Bryant cases, the injuries were obvious and compelling evidence. The absence of any injury in the Chmura case was the first sign that the charge against him might not stick.

When a victim arrives at a hospital, she is assigned to a sexual assault nurse examiner (SANE), who goes through a specific, step-by-step procedure both to treat the victim and to gather evidence for a prosecution. The SANE looks for injury and records any findings in exquisite detail. Tyson's victim suffered vaginal abrasions. The accuser in the Bryant case suffered vaginal lacerations. Both are serious injuries, easily observed and photographed, and those pictures can later be shown on huge screens to the jury. Highlighted by brightly colored dyes, the injuries become melodramatic evidence. Confronted with abrasions or lacerations, the lawyer defending the accused faces a difficult and frequently impossible situation.

DNA evidence is also gathered in the SANE examination. It is important because it can identify the attacker, but the injury evidence is more important. Even without DNA evidence, a prosecutor can file a charge based on injury. There are hundreds of convicted rapists in prison even though there was no sign of their DNA in the examinations of their victims. In the Duke situation, the victim's injuries and her identification of the alleged attackers from team photos resulted in charges. Lawyers for the accused players can talk endlessly about DNA, but the absence of DNA is not conclusive by itself.

Brevity of encounter

If it is determined that the visit between the victim and the attacker went on for any length of time after the attack, the prosecutor can become leery of the victim's story or question the strength of the case. When the attack comes swiftly after the victim and the accuser meet, and the victim leaves in a hurry, the probability is that a rape occurred. In the Tyson and Bryant cases, for example, the alleged attacks came within minutes of the meeting and the accusers left quickly. If the accuser in the Duke case had stayed for a few hours at the lacrosse team party, the prosecutor would have been less interested in her plight.

Brutality of sex

Rape is a crime of violence. It varies from case to case, but there is always an element of brutality in what occurs. In the Duke situation, it may be the number of athletes joining in the attack. In the Tyson case, the attack was brutal.

Outcry witnesses

The first people to encounter the victim after the attack are known as "outcry" witnesses. They are important witnesses both in deciding whether there was a rape and later at trial. Their description of the victim helps determine whether an attack occurred. Was the victim near hysterics? Were there signs of injury? What was the victim saying? Was the victim in a state of shock, unable to talk about what happened? A limo driver who drove Tyson's victim from the hotel in Indianapolis was one of the most compelling witnesses in the trial that sent Tyson to the penitentiary. The outcry witnesses in Durham have so far offered a mixed set of signals on the state of the woman after her visit to the party.

Previous predatory conduct

In most states, the prosecutor in a rape case can use evidence of similar conduct by the accused against other women in other places. The legal doctrine that allows this powerful evidence is widely known as "prior bad acts." If the prosecutor can find a victim of a similar attack by the accused, the jury can use it to decide whether the rape in question took place. It was a "prior bad act" that resulted in Albert's guilty plea in Arlington, Va., when a concierge from Dallas testified that Albert attacked her (multiple bite marks while wearing garters and hose) in a way similar to the attack in Virginia.

Prosecutorial skill and dexterity

It is not easy to measure the ability of the public prosecutor, but the prosecutor's skill is important. It is especially so when the accused can hire the finest defense lawyers. The prosecutor in the Tyson rape case, Greg Garrison, is one of the most capable trial lawyers I have encountered in a lifetime spent among lawyers and judges. It was apparent very early in the process that Tyson and his legal team were overmatched. Garrison's performance in the trial was the best I have seen by anyone, including Johnnie Cochran, Gerry Spence and Percy Foreman, three of the all-time greats. Michael Nifong, the prosecutor in Durham who faces an election on May 2, has stumbled but has yet to fall. If he does end up prosecuting the case, his performance against a team of expensive defense attorneys will be a key factor in the outcome.