Judge Borenstein's decision-- Part VI

NJ Kelly Michaels Case Provides a Relevant Framework

12 Jun 98

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VI. STATE v. MICHAELS PROVIDES A RELEVANT FRAMEWORK FOR THIS COURT'S DECISION

In the landmark case of State v. Michaels, 136 N.J. 299 (1994), the Supreme Court of New Jersey held that when highly suggestive or coercive interviewing techniques are used on children to investigate allegations of child sexual abuse there is

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a significant risk that the children's statements and subsequent trial testimony will be unreliable. Michaels, 136 N.J. at 308-309. In such cases, a pretrial taint hearing may be required to examine the procedures employed and to determine the reliability of the children's testimony. Id. at 320.

The facts of Michaels are strikingly similar to the defendant's case. In Michaels, the defendant, Margaret Kelly Michaels, was employed as a teacher's aide at Wee Care Day Nursery, a preschool, with an enrollment of approximately sixty children between the ages of three and five. Id. at 303-304. Like the Fells Acres case, the allegations in Michaels were sparked by events surrounding one child. See id. Soon after the initial allegation against Michaels was made, the prosecutor's office and the New Jersey Division of Youth and Family Services interviewed many Wee Care students and their parents several times.//Note 12// Michaels, 136 N.J. at 305. These interviews, which the court found utilized many disfavored or condemned interviewing techniques including repetitive questioning; interviewer bias; use of bribes and rewards; and, peer pressure, ultimately resulted in a 131 count indictment against Michaels. Id. at 306. Primarily upon the testimony of the child witnesses, Michaels was convicted of committing various acts of sexual abuse against many of the preschoolers. Id. at 305-306.

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Finding both the general acceptance of the theory that a coercive or suggestive investigatory interview can distort a child's memory and that such interviews took place in Michaels, the Court determined that the standard of fairness under the Due Process Clause of the Fourteenth Amendment required a pretrial taint hearing be held to determine the reliability of the children's testimony. Michaels 136 N.J. at 316. Not every defendant would be entitled to such a hearing; only those who made an initial showing of unreliability. Id. at 306. The Court emphasized that competent and reliable evidence remains the foundation of a fair trial. Id.

Faced with the need to establish a procedure for determining the reliability of children's testimony, the Court in Michaels looked to existing New Jersey law regarding hypnosis and pretrial identifications. Michaels, at 136 N.J at 307-310. Like identifications, inculpatory statements indicating the occurrence of sexual abuse require that special care be taken to ensure their reliability. Id. The Court determined that a defendant who produces "some evidence" that a child witness was subjected to unnecessarily suggestive interviews is entitled to a pre-trial taint hearing to determine the reliability of that child's testimony. Michaels, 136 N.J. at 306.

The holding in Michaels and the procedure it sets forth for testing the reliability of a witness' claims, is not new or dramatically different from what Massachusetts courts have historically done. Michaels simply places the issue of the reliability of children s testimony into a useful framework. For these reasons, this Court finds the rationale of Michaels persuasive, and will apply it to the facts of this

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case.

A. Adoption of Michaels in Massachusetts

In Massachusetts, when challenging the reliability of a pretrial identification, the defendant initially bears the burden of demonstrating by a preponderance of the evidence that a witness was subjected to a confrontation that was unnecessarily suggestive. Commonwealth v. Johnson, 420 Mass. 458, 463 (1995). This is the "per se" approach adopted by the Supreme Judicial Court in Commonwealth v. Botelho, 369 Mass. 860, 866 (1976).//Note 13// In determining whether a particular identification procedure was unnecessarily suggestive, the court must consider the "totality of the circumstances" surrounding it. Id. at 867. If the defendant meets its burden, then the prosecution is barred from introducing that particular identification at trial. Id.

The prosecution, however, may introduce any identification by the witness that is shown not to be the product of the suggestive procedure, if it shows by clear and convincing evidence that the other identifications have an independent source. Id. at 868.//Note 14//

Therefore, when challenging the reliability of the child witness testimony the

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defendant must first demonstrate by a preponderance of the evidence that the witness' testimony is the product of unnecessarily suggestive or coercive interviewing techniques.//Note 15// If the defendant meets this burden, then the prosecution must prove by clear and convincing evidence that the child's statements and subsequent trial testimony are independently reliable. Otherwise, the testimony is inadmissible.

B. Application Of Michaels To This Case

In this case, the defendant has shown by much more than a preponderance of the evidence that the four child witnesses who testified against her were subjected to overly suggestive interviews. I find she has satisfied her heavy burden beyond a reasonable doubt.

Massachusetts Courts have historically required pretrial hearings and rulings on the reliability of a witness' testimony. It is a fundamental requirement of due process. Michaels provides a useful framework for addressing these issues. Without going so far as to adopt Michaels, the Appeals Court in Allen, 40 Mass. App. Ct. 458, 463, recognizing the validity of the scientific research regarding suggestive questioning, held that the defendant's offer of proof did not reach the threshold required by Michaels to trigger a pretrial hearing, because the videotape of the child interview did not reveal leading or coercive questioning, vilification of the defendant,

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incessant questions, references to statements made by other complainants or the use of threats, bribes or cajoling. The record in Allen gave the court "no reason to think that the children's allegations or testimony were coerced." Allen, 40 Mass. App. Ct. at 463.

In stark contrast to Allen, the record in this case makes it abundantly clear that the disclosures and testimony of the child witnesses were the product of coercive and overly suggestive interviewing techniques, as well as a number of other unacceptable influences. See id. Dr. Bruck's testimony, affidavit and detailed analysis of the disclosure pattern of each of the four child witnesses who testified against the defendant has more than satisfied the defendant's burden. The record in this case is replete with examples of outrageously suggestive and coercive interviewing techniques. Moreover, when questioned by this Court, the Commonwealth conceded that suggestive techniques were used throughout the interviews in this case, and that those procedures would not be used today because they pose real dangers to the reliability of child testimony.//Note 16//

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The Commonwealth has failed to satisfy its burden of proving by clear and convincing evidence that there was an independent source to show the reliability of the testimony of the child witnesses. The record in this case is devoid of any evidence that any of these child witnesses made independent spontaneous disclosures before they were subjected to the suggestive interviews and investigative techniques, and a number of other inappropriate influences. The Commonwealth argues that the Court should look to the consistency of the children's reports, instead of pre-interview disclosures, as independent evidence. (H2 at 50)//Note 17// In making this argument, the Commonwealth disregards the very essence of the defendant's motion and the overwhelming evidence to the contrary. The testimony of the child witnesses in this case is forever tainted because they were subjected to suggestive interviewing and investigative techniques, procedures which resulted in a violation of a fundamental principle that the defendant is entitled to at a trial: due process and reliable testimony. Moreover, any consistency, however minimal or trivial which may exist among the children's claims, did not occur until after they were subjected to all the

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improper procedures. There is more than a substantial risk that any alleged consistency in the children's testimony is a direct result of the suggestive and coercive interviews; it is clear that the children were told repeatedly and inexcusably to tell the "story" as the investigators decided the story to be. What the investigators wanted to accomplish in this case was to ensure - notwithstanding the children's lack of disclosures - that they would coerce the children into saying things they wanted to hear, not what actually occurred.

Neither the behavioral nor physical symptoms of the child witnesses show by clear and convincing evidence that there is an independent source for the children's testimony. In no way do the behavioral or physical symptoms of these children serve to corroborate their testimony. While many of the symptoms exhibited by the child witnesses in this case (sleeplessness, bed wetting, nightmares) may be consistent with sexual abuse, they are far from dispositive on the question, and perhaps even more importantly none of these behavioral or physical symptoms were ever reported to anyone until after the allegations in this case surfaced in September, 1984.//Note 18//

The Commonwealth contends that pretrial taint hearings are unnecessary. "Traditional safeguards" such as cross-examination and expert testimony are sufficient to effectively respond to suggestive interviewing. The Commonwealth fails to recognize that "traditional safeguards" have always included pretrial hearings to

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determine the admissibility of trial testimony. See, e.g. Commonwealth v. Hunter, 416 Mass. 831 (1994) (pretrial hearing held on voluntariness of a statement); Commonwealth v. Holland, 410 Mass. 248 (1991) (pretrial hearing held on suggestive identification), also see the examples this Court cites in Secton VI(D) of this opinion. Furthermore, as is often the case in pre-trial identification cases, cross-examination is not an effective means to confront an "honest but mistaken witness". Commonwealth v. Pressley, 390 Mass. 617, 619 (1983). Cross-examination is ineffective to unmask the dangers of the type of suggestive interviewing in this case, particularly when children are being questioned, and they are not face to face with the defendant.

As the defense argued at the final hearing before this Court, regardless of what a defense attorney asks on cross-examination, "jurors are still left to wonder how a child came to speak of having her vagina penetrated in the first place." (H2-14-15) While cross-examination can be critical, it is an inadequate substitute and should never displace the trial judge's obligation to act as evidentiary gatekeeper and ensure that a conviction never rests on unreliable evidence; particularly when the examination is of children, and as in this case, in violation of the right to confrontation under Article XII of the Declaration of Rights.//Note 19//

The Commonwealth also argues that Michaels is intellectually dishonest

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because it relies on the false assumption that suggestive interviewing techniques can create hardened false memories of sexual abuse. This argument is wholly without merit and ignores the irrefutable scientific evidence and protocols established by recognized professionals in the fields of psychology and psychiatry. First, the assumption of the Court in Michaels is far from false. The theory that suggestive or coercive interviewing can render children's testimony unreliable is not only generally accepted in the scientific community, it has been accepted by Massachusetts courts. See Pare, 43 Mass. App. Ct. 566, 576 (acknowledging the "well established reality of children's susceptibility to suggestive interview practices").

This Court is concerned that the adoption of the Michaels pretrial taint hearing in the Commonwealth will open the floodgates for those convicted child sex abusers anxiously awaiting their opportunity to move for a new trial, particularly in cases far less compelling than the one before me. This concern can be put to rest for a number of reasons: 1.) There has never been, and after today there will continue to be no automatic right to a pretrial taint hearing; to be even arguably entitled to a pretrial taint hearing a defendant must submit evidence of impermissible interviews by a preponderance of the evidence; 2.) the present case is an exceptional one in terms of the overwhelming evidence of suggestive interviewing techniques and other procedures used in the investigation of the defendant, and therefore there is little reason for concern that floodgates will open; and 3.) Interviewing guidelines and training programs for investigators have changed since the defendant's case was

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investigated over thirteen years ago, making the use of highly coercive and suggestive techniques the exception rather than the norm. (H2 37-38) Certainly, if there are cases where impermissible interview procedures have been used, in order to ensure due process rights, a hearing is a required step. Thus, despite the Commonwealth's argument to the contrary, it is highly unlikely that the Michaels pre-trial taint hearing will be over-utilized.

Several of the cases cited by the Commonwealth to show that Michaels has not been adopted by other states, in fact only prove the willingness of courts to hold Michaels hearings only when the defendant has satisfied its evidentiary burden, while others make no mention of Michaels whatsoever, and some were even decided before Michaels. See e.g. Fischbach v. State, 676 A2d 902 (Del. 1995) (allowing a pretrial taint hearing when the totality of the circumstances indicates that the statement is unreliable); People v. Alvarez, 159 Misc.2d 963, 607 N.Y.S.2d 573 (Cty. Sup. Ct. 1993) (refusal to hold pretrial taint hearing in absence of any nonspeculative allegations of undue suggestion without reference to Michaels); State v. Cooley, 738 P.2d 705, 48 Wash. App. 286 (1987) (six years before Michaels decided, Court holds on facts presented it was not error to allow child witness to testify at trial).

Even if there is a risk that a Michaels pretrial taint hearing is going to be over-utilized, it would not be a sound reason to deny any individual his or her constitutional right to due process, particularly this defendant under the facts of this case.

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In its adoption of the Michaels pretrial taint hearing this court is not erecting a procedure completely foreign to the common law of Massachusetts. It is common practice in Massachusetts for defendants to file motions in limine to exclude "irrelevant, inadmissible, or prejudicial material from being entered into evidence. Commonwealth v. Hood, 389 Mass. 581, 594 (1983); Mass. R. Crim. P. 13(d). In this very case, Justice Elizabeth Dolan held a pretrial hearing to determine whether the child witnesses ought not to be allowed to testify. (H2 at 29, Ex. 55) In the present motion, the defendant is simply asking the court to examine the way law enforcement officers and others conduct an investigation, in the same way courts examine how law enforcement officials obtain eyewitness identifications, a confession or hypnotize a witness. (H2 at 31-32) The guiding principle is a well-established one in our judicial system that "a reliable determination of guilt or innocence is the essence of a criminal trial." See Johnson, 420 Mass. at 470.

When one uses the framework of Michaels, or through the similar traditional approach in Massachusetts, the result in this case is the same: the defendant was deprived of her due process rights as a result of the admission of unreliable testimony against her.

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