Falsely Accused of a Crime? How to defend yourself

• rape,
• domestic violence,
• assault, and
• arson.

Can you go to jail for false accusations? Statistics show that at least 3,284 people were wrongly accused of a crime from 1989 through the end of 2022. In 2022 alone, there were 233 exonerations.

There are many reasons why you may get falsely accused of a crime. Five of the most common are:

1. mistaken identity,
2. misrecollection,
3. malicious false accusations,
4. official misconduct, and
5. misleading forensic evidence.

You can do five things if you are falsely accused of a crime. These are:

1. hire a defense attorney,
2. conduct a pre-file investigation,
3. impeach the accuser,
4. file a civil suit for malicious prosecution, and/or
5. take a private polygraph.

Our California criminal defense attorneys will address the following in this article:

• 1. What are false allegations?
• 2. How many people have had wrongful convictions in the U.S.?
• 3. Why would I get falsely accused?
• 4. What can I do if falsely accused of a crime?
  • 4.1. Hire a defense attorney
  • 4.2. Conduct a pre-file investigation
  • 4.3. Impeach the accuser
  • 4.4. Civil suit for malicious prosecution
  • 4.5. Take a private polygraph
• Additional resources

1. What are false allegations?

False allegations are when you are accused of a crime that you did not commit. These charges should be dismissed if:

• you or your defense attorney can show the court that you have been wrongly accused.

A wrongful conviction occurs when you are factually innocent but get convicted by the court system.

You may be wrongly accused of any type of crime in the United States. This includes the crimes of:

• theft,
• drugs,
• sex crimes (rape), and
• homicide.

One of the most common types of cases, though, involves the offense of battery domestic violence.

Example: Nia learns that her husband is cheating on her. To get back at him, she calls 9-1-1 and tells the police that her husband tried to punch her. The police then arrest the husband and book him with the crime of battery domestic violence.

Here, Nia falsely accused her husband of a crime. If the husband can prove he did not commit the offense, the crime should be dismissed. If not, the husband gets wrongfully convicted of a crime.

2. How many people have had wrongful convictions in the United States?

2,372 exonerations were recorded in the United States from 1989 through the end of 2018.¹ This does not necessarily mean that all of them were factually innocent. Though it does suggest that false accusations by alleged victims and wrongful convictions are widespread.

The National Registry of Exonerations has recorded 151 exonerations in 2018.²

The 2018 exonerations included:

• 101 exonerations for violent felonies, including 68 homicides, 7 child sex abuse convictions, and 10 sexual assaults on adults,
• 2 exonerees that had been sentenced to death,
• 33 exonerations for drug crimes,
• 23 exonerations that were based in whole or in part on DNA evidence,
• 70 exonerations that were for convictions in which no crime was actually committed,
• 107 exonerations that involved misconduct by government officials,
• 49 exonerations that were for convictions based on guilty pleas,
• 31 exonerations that involved mistaken eyewitness identifications,
• 19 exonerations that involved false confessions, and
• 111 exonerations that included perjury or a false accusation.³

On the topic of sexual assault, note that the majority of sexual assaults, an estimated 63 percent, are never reported to law enforcement.⁴ The prevalence of false reporting cases of sexual violence, however, is generally low.⁵

3. Why would I get falsely accused of a crime?

There are five common reasons why you may get falsely accused of a crime. These are:

1. mistaken identity – this is when an accuser misidentifies you for committing a crime.
2. misrecollection – or when an accuser makes an error while remembering details about a crime.
3. malicious false accusations – this is when an accuser purposefully lies when telling the authorities that you committed an offense.  (One reason may be to gain the upper hand in a child custody/family law dispute. Another is an angry teenager falsely claiming child abuse to get back at their parent.)
4. official misconduct – or when prosecutors or police commit some type of misconduct, or abuse of power, when arresting or charging you for an offense.
5. misleading forensic evidence – here, experts exaggerate statistical claims to make their statements more impactful.

In terms of this last reason, experts may exaggerate things when providing a:

• DNA analysis, or
• hair analysis.

As to misidentifications, these often happen during police lineups. This is because witnesses tend to pick someone in the lineup who looks most like their memory of the suspect even if the suspect is not actually in the lineup. This phenomenon is called the “best guess problem.”

On the topic of official misconduct, note that this can be subtle in nature. During investigations, police are supposed to ask witnesses open-ended questions such as “what happened next?” in order to preserve accuracy. Though sometimes police mistakenly ask “leading questions” which cause witnesses to create false memories.

Example: Police are investigating Marcos for the crime of burglary. They ask a witness several questions like “what happened then?” and “anything further?” The police then ask, “when did you see Marcos enter the house,” when in fact the witness only saw the suspect on a patch of grass.

The first two questions are permissible open-ended questions. But the final question is an impermissible leading question. It may cause false memories and confuse a witness. This, in turn, can result in a false accusation.

4. What can I do if falsely accused of a crime?

There are five common ways to defend yourself against false accusations. These are:

1. hire a criminal defense attorney,
2. conduct a pre-file investigation,
3. impeach the accuser,
4. file a civil suit for malicious prosecution, and/or
5. take a private polygraph.

4.1. Hire a defense attorney

The most important thing to do if falsely accused of a crime is to:

• remain silent, and
• get legal representation to protect legal rights

Never believe you do not need a lawyer just because you know you are innocent of an offense. There is arguably even a greater need for a defense attorney in these situations. This is because the case may involve:

• interactions with prosecutors to discuss errors in criminal charges,
• hostile accusers and witnesses,
• false or misleading evidence, and
• pleas of guilty to lesser offenses.

In terms of the latter, note that it may be in your best interest to:

• reduce the risk of harsh penalties,
• by pleading guilty to a crime that has softer punishments.

A criminal lawyer is the best person to advise you if this is the right thing to do.

4.2. Conduct a pre-file investigation

A “pre-file investigation” is when a law firm:

1. investigates allegations of a crime, and
2. does so before criminal charges get filed.

The goal of these investigations is to gather evidence that is favorable to you.

During a pre-file investigation, a defense attorney or firm may:

• interview witnesses that the police have met with,
• find new witnesses to question about the false claims,
• gather physical evidence,
• search background records,
• collect information on an accuser to cast doubts on their credibility, and
• consult with expert witnesses.

Pre-file investigations can be a very effective defense strategy. This is because once the investigation is complete, your attorney can go to the District Attorney and try to persuade the D.A. either to:

1. decide not to file any charges in the matter, or
2. file charges of a lesser crime.

Examples of a lesser crime might be disturbing the peace as opposed to domestic violence.

4.3. Impeach the accuser

To “impeach an accuser” means to present evidence or questions that undermine the accuser’s credibility.

This typically occurs at trial during cross-examination. A defense lawyer will ask witnesses if they know of facts that reflect poorly on the accuser’s reputation for truthfulness.

Impeaching may also involve presenting some type of evidence that shows the accuser is not truthful or knowledgeable on a topic.

4.4. File a civil suit for malicious prosecution

A malicious prosecution claim is a:

• civil cause of action,
• that is designed to go after people who file frivolous lawsuits,
• and cause damages as a result.

In these cases, you file a civil lawsuit against the person that brought the meritless claim. You then have to prove three things to succeed in the suit. These are:

1. the accuser filed a frivolous claim against you,
2. the lawsuit was filed not to win, but rather for some other purpose (like harassment), and
3. you suffered damages as a result.

If all of these get proven and you are proven innocent, then you may be compensated for injuries incurred.

This compensation takes the form of compensatory damages and may include:

• economic damages (like attorney fees and medical costs), and
• non-economic damages (like loss of reputation and embarrassment).

You may be able to bring a defamation case as well.

4.5. Take a private polygraph

Taking and passing a private polygraph test cannot hurt and could only help you if you are falsely accused. The defense attorney can show the results to the prosecutors, who may then be swayed to dismiss your charges or offer to do another polygraph at the prosecutor’s office. If you pass again, the prosecutors may decide they have too weak a case to continue prosecuting.

Note that the results of private polygraph tests remain confidential unless you choose to share them. If you fail the test, the authorities never have to know. Learn more about California polygraph law.

Additional resources

For more in-depth information, refer to these scholarly articles:

• The Harmful Effects of Expansive Immunity Protections for Child Abuse Reporters and the Lack of Justice for Those Who Are Abuse Reporters and the Lack of Justice for Those Who Are Falsely Accused Falsely Accused – Mitchell Hamline Law Journal of Public Policy and Practice.
• Prior False Allegations of Rape: Falsus in Uno, Falsus in Omnibus – Yale Journal of Law and Feminism.
• Ridicule or Recourse: Parents Falsely Accused of Past Sexual Abuse Fight Back – Journal of Law and Health.
• Innocent until Proven Guilty: Shallow Words for the Falsely Accused in a Criminal Prosecution for Child Sexual Abuse – University of Bridgeport Law Review.
• The Other Victim: The Falsely Accused Parent in a Sexual Abuse Custody Case – Journal of Family Law.

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