The trial of Menachem Mendy Kiwak started on Monday morning with pretrial motions and jury selection. Three issues came up before jury selection about how the trial would proceed.

The first was a question of whether the defense would be allowed to question the victim about whatever prior relationship she may have had with Kiwak prior to the alleged sexual assault on September 15t, 2022. It should be noted that at the time it was a crime for a therapist to have a sexual relationship of any kind with a client, however Kiwak fell into a loophole in the statute that didn’t include his particular license as an LMHC. That law has since been changed, in large part as a result of this case which exposed the loophole.

Nonetheless, since at the time of the alleged offense Kiwak’s license excluded him from that law, part of his defense seems to be that if anything happened it was part of a longer running consensual relationship with the victim, although his lawyers still firmly maintain in their arguments that no sexual relationship ever existed. Regardless of the law and its loopholes, it is expressly forbidden under the code of ethics that governs Kiwak’s license for a counselor to have a sexual relationship with a client, and Kiwak could have his license suspended or revoked if he loses this trial. This may be why he is bothering with the trial rather than taking a plea.

For its part, the prosecution wanted to elicit testimony about the escalating nature of the relationship while she was a client, including the escalation of alleged impropriety against the victim culminating in the alleged assault on 9/15/22. They wanted to elicit testimony about the general power imbalance between the two of them, the control the victim felt Kiwak had over her, and the reasons why she continued going back to him, as well as context about the community, how it operates, and Kiwak’s place within it.

The judge ruled that she would allow testimony about any relationship that existed prior to the alleged assault but limited to the fact of its existence, that it increased, and the narrative of the assault, nothing else.

Then there was a discussion about whether to allow the victim’s therapist who she went to after Kiwak to testify as an outcry witness to the initial disclosure of abuse by Kiwak. Generally secondhand information is considered hearsay and not allowed to be presented as evidence at trial. Witnesses are generally supposed to have experienced or seen what they’re testifying about firsthand or have some kind of physical evidence that they’re presenting testimony about. There is a long list of exceptions, though. One of them is outcry testimony. An outcry witness is generally the first person a survivor of sexual abuse discloses to. According to the Guide to New York Evidence, “The “premise” for this evidence, as stated by the Court, is that “prompt complaint was ‘natural’ conduct on the part of an ‘outraged [complainant],’ and failure to complain therefore cast doubt on the complainant’s veracity; outcry evidence was considered necessary to rebut the adverse inference a jury would inevitably draw if not presented with proof of a timely complaint.”

The defense argued against some of the specifics of the outcry to the therapist and more broadly that the outcry wasn’t made promptly enough since it was almost a year after the alleged incident. This is not uncommon in sexual assault cases where delayed disclosure is a well-recognized feature of the case. The judge ruled that the outcry would be allowed but only about the alleged sexual assault, not about any prior relationship or contact before 9/15/22. She later ruled additionally that the same outcry witness would be allowed to testify about the victim’s outcry to her husband which identified Kiwak as the alleged assailant which was made in the presence of the therapist.

Next was a motion by the defense to allow cross-examination of the victim to include details about her mental health diagnosis. According to the victim she had originally sought help from Kiwak for postpartum related depression and anxiety. Kiwak’s lawyers argued that her later diagnosis should be fair game to impeach her credibility by arguing that what she believed happened was perhaps a delusion as a result of that diagnosis. The judge did not seem to appreciate that argument and denied that motion, limiting them to cross examining in good faith about whatever relationship may have existed prior to the assault and anything that comes up during direct examination.

The defense also requested to be able to cross-examine the victim about prior suicide attempts which they argued was necessary to give context to the nature of the treatment Kiwak was giving her, and context to text records they claim show her thanking him repeatedly for helping her. Their defense strategy seems to be impeaching her credibility based on her mental health, claiming that she got nothing but help from Kiwak, claiming that she made up a lie about Kiwak to redirect her husband’s attention and anger toward Kiwak instead of the issues they may have been having in their marriage, that whatever relationship may have existed prior to the alleged assault (which they don’t concede happened) was consensual if it occurred (which they don’t agree happened at all).

In general the judge’s approach to questions about what would or wouldn’t be allowed under cross examination seemed to be that anything obviously improper wouldn’t be allowed but everything else would have to wait until the witness testified to see what the allowable scope for cross-examination would be.

Next, jury selection started. Jury selection, for those who haven’t experienced it, is long, detailed, mostly boring, but also a fierce battleground between the two sides to try and pick jurors whose biases align with those of each side. The stated ideal is to pick jurors who are fair, open-minded, willing to set aside bias to judge impartially, and who represent a fair cross-section of the community. In reality what each side wants is actually jurors who are more likely to sympathize with them. Men accused of sexual assault are going to favor more right-leaning men, and prosecutors prefer women who are a little more left leaning in their sympathies. The goal for each side is to find a way to bounce the jurors they don’t want off without being accused of bias, and hope that when the final jury shakes out they have something to work with.

It began with some general questions from the judge about the law, whether they’d feel comfortable following it, whether they could set aside their biases, whether they believed in the presumption of innocence, and whether they understood that the defendant has a right not to testify, and similar questions in the same vein. This was followed by more detailed questioning by the judge about each juror’s background and life circumstances. Then each side got to question the jurors about whatever they wanted to ask.

The primary concerns for the prosecutor seemed to be whether jurors would be able to return a conviction on testimony alone without any physical evidence of the alleged crime (things like DNA, video surveillance, the kind of things you tend to see more on SVU), whether delayed disclosure from a survivor of sexual assault made any of the jurors suspicious of the allegations, how they generally assess witness credibility, how they differentiate between a witness being nervous while testifying and a witness being evasive and dishonest, and how they expect a victim of sexual assault to appear while testifying.

The primary concerns for the defense seemed to be whether they would hold it against Kiwak if he didn’t testify in his own defense, whether they are more inclined to believe one gender over the other in a sexual abuse case, whether they could be unbiased when presented with sexual abuse allegations, how they feel about the phrase “believe women” (that question was asked deliberately combatively to see how they’d react to being accused of not believing women in a post #MeToo era), and about whether the jurors would subconsciously shift the burden of proof to the defense by expecting them to prove why the alleged victim might be lying.

Six jurors were empaneled by the end of the day, and the two alternates were selected on Tuesday morning.

One other issue that arose on Monday that carried over until Tuesday was a last-minute amendment to the complaint requested by the prosecutors. Kiwak practiced in multiple offices in Boro Park and they requested that the judge allow them to amend which office the alleged incident happened in. The prosecutors argued that this was a small issue akin to a typo that needed changing. The defense objected saying that they had structured their defense around what was written in the complaint and that they would be prejudiced by this last-minute change.

The judge allowed it because it was a small administrative error that didn’t change the substance of the allegation.

On Tuesday, after the alternate jurors were selected, the defense raised an issue with the amended address on the complaint. They claimed that according to the case law they cited the court didn’t have the authority to change the complaint because changing the address is a substantive change. Since the criminal complaint is sworn by the alleged victim it goes to her credibility if she said it occurred at one address and it actually happened at another. The law doesn’t allow such a change to be made, they argued, without filing another charging instrument like a superseding complaint, or prosecutor’s information.

The prosecutors seemed caught off guard by this renewed argument over what they no doubt thought was a settled issue, and tried arguing that the case law cited by the defense cited to a case that said that as long as the location being amended was within the general jurisdiction of the court, in this case Kings county, it shouldn’t be an issue to amend the address since all other details, including the county in which the alleged incident occurred, were correct.

The defense pointed out that the case law referred to by the prosecution wasn’t applicable anymore because of a law that was changed which reformed the criminal procedure laws after that case had been decided. The prosecutors requested a recess so they could do a little more research on the issue.
After the break the defense asked for the case to be dismissed on the basis that the amendment was improper, that the alleged victim had sworn the complaint with an incorrect address and could have been changed during the entire pretrial period and wasn’t, and now the prosecution had essentially admitted that there’s an element of the complaint that they can’t prove because it’s wrong. Additionally, the defense argued that the jury was prejudiced at this point as well.

During jury selection, one of the questions the prospective jurors were asked was whether they had any familiarity with the address where the alleged incident happened, and were told not to go to the location to see it. After the judge granted the prosecution’s request to change the address she told the prospective jurors what the new address was to refresh the instruction she’d given.

The defense argued that since the judge had already taken a position by telling the potential jurors the defense was prejudiced by the change, and so were the jurors.

The prosecutor responded saying that the address wasn’t really relevant to any element of the alleged crime. The exact location isn’t important here. All that’s required in the complaint is the jurisdiction – in this case Kings county – and that was correct on the complaint. The defendant, they argued, had multiple offices, and which one the complaint listed was not relevant to whether or not it happened.
The defense responded pointing out that in their response they hadn’t argued that the amendment was allowed, just that the case shouldn’t be dismissed for having an incorrect address on the complaint. The prosecution didn’t dispute that point and conceded that they didn’t need to amend the complaint. Regarding the dismissal the judge ruled that an incorrect address on a complaint wasn’t enough of a reason to dismiss since the underlying information is still facially sufficient to proceed with the case.

With those matters taken care of the trial was ready to begin. Next post on the case will cover opening arguments and the alleged victim’s testimony.