The Taint Hearing In False Allegation Cases

See the link at bottem of this page, "Motion for Pre-trial Taint Hearing to Determine Reliability of Complaining Witness' Testimony," for an example motion wording.

The taint hearing is an excellent and useful tool when faced with defending an allegation of child sexual abuse and should be considered whenever the child accuser has been exposed to multiple interviews or there have been leading and suggestive questioning techniques used during the child accuser's interview.

The legal authority for "taint hearings" comes from the procedure that was developed and adopted by the New Jersey Supreme Court in what has now become known as the Michaels decision.

In short, the taint hearing is used to show the Court that, because of multiple interviews or leading and suggestive questioning techniques, it is not possible to know if the child accuser is giving an account of events that actually happened or if they are relaying information they "learned" during the interview process.

One perfect example for the necessity of a taint hearing comes from a case we were involved in, in Montana. In that case, the accused was facing two charges, one for penetration of the child's vagina with a finger. Interestingly, the child "never" said that she was penetrated, but she did "agree" with the interviewer that she had been. That allegation was from the interviewer and not the child. There could be no better example of an allegation that "resulted" from the interview process, but an event that never happened. Unfortunately, many of the "child savers" who conduct interviews, have a preconceived idea that the abuse did happen and they "assist" the child in "remembering" things that never took place.

Amazingly, in that case, either the attorney had not read the interviews conducted with the child, or had not paid attention to what the child actually said, but either way, he had no idea that the allegation had not come directly from the child and, it had not. I was brought into that case, approximately one week prior to trial, by the family of the accused, to assess his overall legal defense. After going through all reports and interviews, in my report, I recommended a taint hearing and identified several experts who could assist. My report was given to the client's attorney, who said he read it, but the following day had no idea what his client was talking about when asked why they could not file a motion for a taint hearing. After admitting that he had not read my report, he called me to ask about the hearing. Again, I referred him to experts and strongly advised him to contact them. He met with me, later that same day, and said he had done some research on his own and learned that the hearing would not be accepted in his state. Thankfully, the following day, he was referred to another attorney in Washington State, who had just accomplished a successful taint hearing and, together they prepared and filed the motion. The trial was delayed in favor of that hearing.

The New Jersey Supreme Court based it's decision on an extensive review of social science research and made a number of findings and acknowledgments that appear throughout the Michaels Opinion, consistent with that research. The entire concept of "tainting" a child's memory has it's basis in the science of the present and not the superstition of the past.

Ceci and Bruck, in their book, "Jeopardy in the Courtroom," explain that there is a clear connection between youth and suggestibility. Generally, as age decreases, suggestibility increases. This connection mandates that mental health professionals, social workers, police, therapists, attorneys, judges and everyone else who may be involved with a child after an allegation of abuse is made, use extreme caution in dealing with the child so as not to suggest information to them and aid in the formation of a false memory.

Normally, a prosecutor will object to a taint hearing, believing that it addresses the "credibility" of a child victim's statement, however, a taint hearing addresses the "reliability" of the child accuser's current memory, something that can easily be altered during improper interviewing techniques, especially with children of tender years.

One thing that will be required for a taint hearing is an expert to testify on behalf of the defense as to "why" the testimony of the child is "tainted." That expert may well have to pass a Daubert challenge first, to assure the Court that their evaluation and findings are based on scientific conclusion and supported by the current literature. The key to the expert is providing them with all reports, transcripts and video or audio tapes. Upon reviewing the material, they will have an opinion as to whether or not any future testimony from the child is or is not credible. Many allegations have actually developed, or at the very least multiplied, through incorrect interview techniques. A perfect example is one case we were involved in where a single allegation of abuse was brought and, following repeated and multiple interviews, the client found themselves facing 14 indictments. Very few individuals who question children are honestly qualified to do so and, many form an immediate and biased opinion against the accused. They treat the child accuser as a victim and "continue" their interviewing process until they are successful in gaining the information they desire. The defense's expert can identify these individuals and the problems they create. In short, a child that is lying will want to please their interviewer, in most cases, and the biased interviewer, seeking only to validate the allegation, will visibly show favorable acceptance to anything the child says. In many cases, that entices the child to say more.

When considering a taint hearing, the defense attorney should file a "Motion for Pretrial Taint Hearing to Determine Reliability of Complaining Witnesses' Testimony." The motion should include, "Comes now the above named defendant, by and through his attorney, and moves the court to conduct a pretrial hearing to determine whether the statements, testimony and recorded video-taped statement of the alleged child sex abuse witness must be excluded as a result of improper questioning by investigators. It is alleged that such conduct has compromised the reliability of such testimonial evidence. Such statement denies defendant due process of law as guaranteed by the U. S. Constitution."

Included with the motion, should be a "Memorandum in Support of Motion for Pretrial Taint Hearing," covering the following:

The issue before the court is whether the disclosures, videotaped statements, and anticipated testimony of the child witness in this matter is sufficiently reliable to satisfy the criteria for its admissibility in evidence. The focus of this motion is on the manner in which the state's witnesses, agents, conducted investigatory interviews of the child. This court will be asked to consider whether the interviews and interviewing techniques were such that they undermined the reliability of the child's statements to such a degree that they should be excluded from consideration. It is requested that a taint hearing be conducted to address these issues.
In considering the issue at bar, the court must determine whether the interviews of the complaining child witness were so unduly suggestive and coercive that the resulting substantive statements were unreliable and should be excluded. The court will be further asked to decide whether the procedures employed in obtaining the child's statements denied the defendant his right to a fair trial and due process of law as guaranteed by the U.S. Constitution. The concerns raised in this memorandum are equivalent to those which are routinely addressed in motion hearings challenging custodial confessions and pretrial identifications.
Expert testimony at the taint hearing will demonstrate the high degree of susceptibility of young children who are subjected to improper interrogations. It will establish that the certain lines of questioning and interviewing practices are sufficiently coercive and suggestive so as to alter the perceptions of a child complainant. The heightened concern for a small child witness comes from the natural vulnerability, immaturity and impressionability of children of tender years. State v. Margaret Kelly Michaels, 642 Atl.2d 1372 (1994).
The expert testimony will further demonstrate that the interviewing process is particulary crucial in the prosecution of a child sexual abuse case because the statements and testimony of the pre-adolescent alleged victim are often uncorroborated and are the most compelling component in the prosecution arsenal. The very decision of whether or not to institute such prosecution hinges on the information obtained during the intial investigatory interviews carried out by social workers or police investigators. Michaels, supra, p.3.
The significance of the investigatory interview procedure has been discussed in the following publications: Child Sexual Assault; Children's Memory and The Law, 40 U. Miami Law Review, 181, 185 (1985), Goodman & Helgeson; Evaluating and Admitting Expert Opinion Testimony in Child Sexual Abuse Prosecutions, 41 Duke Law Journal, 601 (1991), Younts; The Child Wintess: Techniques for Direct Examination, Cross-Examination and Impeachment, 19 Pac. Law Journal 801, 889 (1987), Myers; The Testimony of Child Witnesses: Fact, Fantasy, and The Influence of Pretrial Interview, 62 Wash. L.Rev. 705 (1987). These scholarly works make it clear that the pretrial discussions with a child witness may be influenced by the preconceptions of the interviewer regarding what has happened to the child; the use of leading questions; the lack of control over outside influences upon the child's statements, such as would occur in conversations with parents; whether the interviewer presumes the guilt of the perpetrator; whether the interviewer is perceived as a trusted authority figure; the use of excessively repeated questions; the interviewer's tone of voice; and the use of praise and rewards. These factors may effectively produce an irremediable tainting of memory and perception. The "created" recollection is, for the child, from then on, as real as any other memory which he or she recalls from actual experience. The younger the child the more pronounced the effect will be as a consequence of improper interrogation. See Suggestibility and the Child Witness, In Children's Eyewitness Memory, 82, (1987) Maryann King and John Yulle.
There are many actions and behaviors that should be addressed in the memorandum when they have occurred during the investigatory interviews of the child which could have an impact on the reliability of the child's story. The following are some instances that could easily identify factors that have tainted the perceptions and memory of an alleged victim;
- The misuse of dolls as play objects.
- The use of anatomically suggestive dolls.
- The excessive probing regarding assaults by adults.
- The failure to demonstrate that the child has any meaningful distinction between truth and lies.
- The use of repetitive questions.
- The use of rewards.
- The use of confusing words, age inappropriate questioning, for which a child of the alleged victim's age would not have an understanding.
- The failure to ask meaningful follow up questions or investigatory inquiries with regard to the other named assailants.
- The performance of dual roles as investigator and therapist.
- The failure to cease questioning when the child was apparently fatigued.
- The failure to follow proper protocol in using the dolls.
- The use of multiple and suggestive questions.
- The failure to challenge illogical, unrealistic responses.
- The failure to cease questioning when the child appeared reluctant to answer questions.
These errors, omissions, and failures by the examiner created an irreparable, mistaken and/or false recollection of the events in question. These factors substantially undermined the reliability of the child's statement.
The remedy which the defendant seeks, at the conclusion of the testimony, is an order from the court precluding the use of any testimony, statement, videotape, or other information generated from the child during the couse of the investigative interrogations.
The conclusion that improper interrogations generate a significant threat of corrupting the memories of young children have now been reached by a variety of private and public entities. As a consequence, The National Center for the Prosecution of Child Abuse, in cooperation with the National District Attorney's Associations and the American Prosecutor's Research Institute have adopted protocols to serve as standards for the proper interrogations of suspected child abuse victims. Those interview guidelines require that an interviewer remain "open, neutral and objective." American Prosecutors Research Institute, National Center for Prosecution of Child Abuse, Investigative and Prosecution of Child Abuse, at 7 (1987). Specific prohibitions include the following; the interviewer should avoid asking leading questions; an interviewer should never threaten a child or try to force a reluctant child to talk; an interviewer should refrain from telling a child what other children have reported; and multiple interviews with various interviewers should be avoided.
In Idaho v. Wright, 497 U.S. 805 (1990), the United States Supreme Court was presented with the question whether the state, as the proponent of evidence presumptively barred by the hearsay rule and confrontation clause, had carried its burden of proving that the barred statement bore sufficient indicia of reliability by showing a particularized guarantee of trustworthiness. In the Wright matter the prosecution sought admission of statements describing acts of sexual abuse made by a 2 ½ year old child to a pediatrician. The trial court admitted the statements by finding that the doctors testimony of the child's statements satisfied the requirements of the residual hearsay exception. The United States Supreme Court affirmed the state supreme court's affirmation that the child's statements did not fall within a traditional hearsay exception and lacked "particularized guarantees of trustworthiness". The admission of such statement was determined to be violative of Wright's confrontation clause guarantees.
In Wright the United States Supreme Court acknowleged, with approbation, the Idaho Supreme Court's conclusion that the use of blatantly leading questions; the presence of an interviewer with a preconceived idea of what the child should disclose, the failure to record the interview on videotape; and the child's susceptibility to suggestive questioning, gave rise to concern that unreliable will be solicited. In Wright these circumstances denied the particularized guarantees of trustworthiness which violated the defendant's right to confrontation.
Trial by uses of unreliable evidence has additional constiutional ramifications. It is vital that competent and reliable evidence formulate the very foundation of a fair trial in which the ultimate determination is criminal guilt. Michaels supra, p. 14. Therefore, if the crucial inculpatory evidence has been derived from unreliable sources, the defendant's due process right to a fair trial has been compromised. Michaels supra, p. 13, 14. "Reliability (is) the lynchpin in determining admissibility" of evidence under a standard of fairness that is required by the Due Process clause of the 14th Amendment. Manson v. Braithwaite, 432 U.S. 98, 114 (1977).
The United States Supreme Court has long recognized that pretrial inquiry may be made when certain challenges are asserted to the reliability of evidence for which the government seeks introduction at trial. See Jackson v. Denno, 378 U.S. 368 (1964) and Manson v. Brathwrite, 432 U.S. 98, 114 (1977). The Supreme Court has given its judicial imprimatur to pretrial inquiry to determine whether it should cleanse the corrupting effects of tainted evidence from the prosecution's case. Denno supra and Manson supra. The Supreme Court has acknowledged that once an identification has been derived from coercive or suggestive police action, such perception is unlikely to be changed or altered at a later date: "Once the witness has picked out the accused..he is not likely to go back on his word later." U.S. v. Wade, 388 U.S. 218, 229 (1967).
Just as in the case of a witness who has been subjected to a coercive identification procedure, a child witness who has been subjected to improper questioning will bear permanent tainted perceptions. A victim of suggestive questioning and interviewing practices will believe forevermore that the statements regarding claimed events are truthful, when in reality, the child is merely reciting suggested, planted words or planted ideas. The Michaels court succinctly summarized the concern and deleterious nature of improper investigatory interviews as follows:
- The United States Supreme Court has insisted that a pretrial hearing be held to determine the reliability and admissibility of proffered in-court testimony based on unduly suggestive indentification procedures. Manson supra, 388 U.S. at 114, 97 S. Ct. At 2253, 53L.Ed.2d at 154. Like the investigatory interview in a child sexual abuse case, a pretrial identification procedure can be a critical moment in the court of a criminal prosecution. United States v. Wade, 388 U.S. 218, 230, 87 S. Ct., 1926, 1932, 18 L.Ed.2d 1149, 1158 (1967). The pretrial identification, like the investigatory interview with a child victim, is "peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial." Ibid. Similarly, the effect of an initially suggestive identification, like those of a coercive or suggestive interrogation, are likely to remain corrosive over time; that is, "once the witness has picked out the accused..he is not likely to go back on his word later." Id. At 388 U.S. at 229, 87 S.Ct. At 1933, 18 L.Ed 2d at 1159. Further, the effects of suggestive pre-trial identification procedures, as with suggestive or coercive interview practices, are exceedingly difficult to overcome at trial. Ibid. Witnesses in both situations are quite likely to be absolutely convinced of the accuracy of their recollection. Thus their credibility, understood as their obvious truth-telling demeanor, is unlikely to betray any inaccuracies of falsehoods in their statements. Younts supra, 41 Duke L.J. at 727.
The New Jersey Supreme Court unanimously recognized the need for a pretrial "taint hearing" in cases of alleged child sexual assault, when a substantial likelihood existed that the evidence derived from pretrial interrogations was unreliable. State v. Michaels, 136 NJ 299 (1994). Margaret Kelly Michaels was convicted of child sexual assault and sentenced to 47 years imprisonment. Her convictions arose from allegations by multiple child victims who had been her charges at a daycare center. It was ultimately determined that the investigatory interrogations of the alleged victims had been conducted in a highly improper manner, and were sufficiently coercive and suggestive to alter, without remedy, the perception of the children. That questioning had irremediably compromised the reliability of the testimonial evidence used to convict Michaels. Under such circumstances, a pretrial hearing (taint hearing) was required at which time the state was obligated to prove by clear and convincing evidence that the statements and testimony retained a sufficient degree of reliability to warrant admission at trial. The issue to be addressed at such hearing is whether the pretrial events; i.e., investigatory interviews and interrogations were so suggestive that they gave rise to a recollection of material facts bearing on the defendant's guilt. See also U.S. v. Simmons, 390 U.S. 377, 384 (1968) (ruling that evidence would be excluded if a pretrial identification procedure "gave rise to a very substantial likelihood of irreparable misidentification.")
Other decisions have considered the propriety of conducting a pretrial "taint hearing". In Fishbach v. Delaware, 1996. DE. 19415 the court declined to adopt the formal procedures mandated in Michaels. However, the Fishbach decision determined that if the witnesses statement was obtained by use of impermissible interviewing techniques, the trial court must determine whether the statement is reliable after considering the totality of the circumstances. In In re the Matter of: The Dependency AEP and WMP v. Dept. of Social and Health Services, the Washington Supreme Court was faced with the propriety of conducting a pretrial taint hearing in which the reliability of a child witness was examined. 1998. WA. 727, May 21, 1998. The Washington statutory provisions requires that a person who appears incapable of receiving just impressions of the facts, of which they are examined, or relating truly regarding subjects, are not competent to testify. The Washington Supreme Court establed the test of competency of a young child witness as the following:
- The true test of the competency of a young child as witness consists of the following: (1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it.
The Washington Supreme Court determined that because the party who objects to the admissibility of a young child witness' testimony on the grounds of incompetence, has the right to a competency hearing, a "taint hearing" is not required. The court specifically determined that with respect to the reliability of a child's testimony, a defendent can argue memory taint at the time of the child's competency hearing. The "taint hearing" would be, in essence, duplicative of the competency hearing required by statute.
The Massachusetts Superior Court adopted the reasoning expressed in the Michaels decision regarding the necessity for a "taint hearing". Commonwealth v. Callahan, 9 Mass.L.Reptr. 228 (1998). The Callahan court utilized the same procedural and substantive law in determining how to conduct a pretrial taint hearing and which standards should be applied. The New Jersey Supreme Court reaffirmed its decision in Michaels emphasizing the importance of the investigative process in child sex abuse cases. See State v. D.G., 733 A.2d 588 (1999). The trial court in State of Ohio v. Nickel, Case No. 99 CR 057 (Common Pleas Court of Ottawa County), authorized conducting a Michaels-type "taint hearing" in a child sexual abuse case. Most recently, Waukesha County Circuit Court Judge J. Mac Davis conducted an extensive pretrial "taint hearing" to determine the reliability and admissability of an alleged child sexual assault victim's statements in In re the Interest of B. M., Case 98 JV 387.
In Wisconsin, child witnesses are presumed competent. There is no appellate decision which squarely addresses the appropriateness of the "taint hearing," however, the Wisconsin Supreme Court has adopted the holding in Idaho v. Wright, in its consideration of the residual hearsay exception, 908.045 (6) Stats., State of Wisconsin v. Kevin L. C. , 216 Wis. 2d 166 (1997). The Kevin L. C. court adopted Wright in holding that; "statements admitted under the residual exception to the hearsay rule ‘do not share the same tradition of reliability that supports the admissibility of statements under a firmly rooted hearsay exception' for purposes of the confrontation clause." Kevin L. C. at 68. The testimony must carry an indicia of reliability in order to satisfy the confrontation clause. This requirement is intended "to augment accuracy in the fact-finding process by insuring the defendant an effective means to test adverse evidence." The test is whether the trier of fact has "satisfactory basis for evaluating the truth of the prior statement." Kevin L. C. at 68, 69, citing State v. Drusch, 139 Wis. 2d 312, 322-23 (Ct. App. 1997). The court must determine the trustworthiness of an out of court interview of an alleged child sexual assault victim. Kevin L. C. at 69. The trial court must then determine whether the out of court statement contained sufficient guarantees of trustworthiness.
In related issue, the Wisconsin Supreme Court, determined that if there is a challege to the admissibility of a hypnotically-affected indentification or in court testimony, the court must conduct a pretrial suppression hearing to determine whether the conduct at the hypnosis session did not make the witnesses testimony unreliable. State v. Amstrong, 110 Wis. 2d 555 (1983).
The Appellate Courts of Wisconsin, based upon a review by counsel for Mr. Domina, have authored a single decision which tangentially addresses the Michaels taint issue. State v. Kirschbaum, 195 Wis. 2d 11 (Ct. App. 1995). In Kirschbaum the court determined that it "may be an errorneous exercise of discretion to deny an indigent defenant's request for permission to hire an expert for testimony on the issue of suggestive interview techniques used with a young child witness." Kirschbaum at 25-26. While the court did not consider head-on the propriety of conducting a pretrial taint hearing, it did, in great length, discuss its concern for the impact of suggestive interview techniques may have upon a young child. The court declared, inter alia, the following in reliance upon the Michaels decision:
- "While the issue has not been addressed in Wisconsin, many jurisdictions recognize that young children can be susceptible to suggestive interview techniques and that such techniques can undermine the reliability of a child's account of an actual even. See e.g. Idaho v. Wright. 497 U. S. 805, 812-13, 110 S. Ct. 3149, 3144-45, 111 L. Ed. 2d 638 (1990); Maryland v. Craig, 497 U.S. 836, 868, 110 S. Ct. 3157, 3175, 111 L. Ed. 666 (1990) (Scalia, J. dissenting State v. Michaels, 136 N. J. 299, 642 A. 2d 1372, 1379 (1994); (195 Wis. 2d 24) People v. Michael M, 162 Misc. 2d 803, 618 N. Y. S. 2d 171, 177 (N.Y. Sup. Ct. 1994); Territory of Guam v. McGravey, 14 F. 3d 1344, 1348-49 (9th Cir. 1994). The concern is that persons conducting interviews with the child will, either inadvertently or purposefully, suggest facts and promote fantasies that the child will later "remember" and testify to as the truth. See John R. Christiansen, The Testimony of Child Witnesses; Fact, Fantasy, and the Influence of Pretrial Interviews, 62 Wash. L. Rev. 705, 707 (1987).
Many jurisdictions also recognize the utility of expert testimony on the suggestive interview techniques used with a young child and how suggestive techniques can shape a young child witness's answers. See, e.g. Michaels, 642 A. 2d at 1384. ("Experts may thus be called to the aid of the jury by explaining the coercive or suggestive propensities of the interviewing techniques employed"); State v. Malarney, 617 So. 2d 739, 740 (Fla. Dist. Ct. App. 1993) (reversible error to exclude defendant's expert psychological testimony on unreasonably suggestive interviewing techniques used with victim); Michael M., 618 N.Y.S. 2d at 177 ("In recognition of a child's suggestibility, many courts have allowed the admission of expert testimony at trial on the effects of suggestive questioning") McGravey, 14 F.3d at 1348-49 (although concluding that a jury instruction on the suggestibility of children was not required, recognized that "(defendant) also could have, but did not present expert testimony on the issue of..the susceptibility of children to suggestion"); Sheldon v. State, 796 P. 2d 831, 839 (Alaska Ct. App. 1990); People v. Diefenderfer, 784 P.2d 741, 753 (Colo. 1989); Timmons v. State, 584 N.E. 2d 1108, 1112-13, (Ind. 1992); State v. Erickson, 454 N.W. 2d 624, 626 (Minn. Ct. App. 1990); State v. Flood, 481 NW 2d 242, 2 [195 Wis. 2d] (S.D. 1992); United States v. Geiss, 30 M.J. 678, 681 (A.F.C.M.R. 1990). Kirschbaum at 24-25.

The success or failure of any taint hearing will normally rest with the quality of the expert who will offer testimony. They must be well schooled in proper interview protocol and have a thorough knowledge of the current literature in the scientific community. They must be able to site and refer to specific studies and have the ability to back up, with credible evidence, whatever is necessary to support their opinion and conclusions.