Now comes Defendant, John Smith, by and through Counsel, and moves this Honorable Court to grant a pre-trial hearing to determine whether the statements and testimony of the child sex abuse witnesses must be excluded because improper suggestion and statements made by the investigator has irremediably compromised the reliability of that testimonial evidence.

The basic function of this motion is to avoid error and prejudice that leads to violation of constitutional safeguards. Such potentially tainted testimony requires a pretrial hearing to determine the significance and extent of the contamination.

Respectfully submitted,

MEMORANDUM IN SUPPORT

The focus of this Motion is on the manner in which a statement was made by the investigating detective in this case to the accusing children's father, who in turn shared that statement with his daughters, undermined the reliability of the children's statements and subsequent testimony to a point that hearings should be held to determine whether either form of evidence should be admitted at trial. The question is whether the statement made by the detective, shared with the children's father and then passed to the children regarding the alleged sexual abuse was unduly suggestive and coercive requiring an inquiry into the totality of the circumstances surrounding this statement. Like confessions and identification, the inculpatory capacity of statements indicating the occurrence of sexual abuse and the anticipated testimony about those occurrences requires that special care be taken to ensure their reliability.

Had the Trial Court allowed a pre-trial Competency Hearing, it would have determined that the complaining witness' accusations were founded "upon unreliable perceptions, or memory caused by improper statement procedures," and the testimony reflecting those accusations could lead to an unfair trial. A pre-trial hearing is required to assess the reliability of the statements and testimony to be presented by those children to determine their admissibility.

Woven into the consideration of this case is the question of the child's susceptibility to influence through the statements made to them by their father. There is a constantly broadening body of scholarly authority existing on the question of children's susceptibility to improper interrogation and suggestion. The expanse of that literature encompasses a variety of views and conclusions. Among the varying perspectives, however, there is a consistent and recurring concern over the capacity of the interviewer and the interview process to distort a child's recollection through unduly slanted interrogation and suggestion techniques. There are certain practices that are sufficiently coercive or suggestive to alter irremediably the perceptions of child complainants.

There are many other scientific and psychological propositions that courts have addressed in analogous contexts, among those being the consideration of testimony at pre-trial hearings regarding taint, Manson v. Brathwaite (1977) 432 U.S. 98 and State v. Moody (1978) 55 Ohio St. 2d 64, 67. (regarding the corrupting effect of unreliable identification testimony): State v. Tingler 31 Ohio St. 2d 100, Stovall v. Denno (1967) 388 U.S. 293, State . Lathan (1972) 30 Ohio St. 2d 92, U.S. v. Wade (1967) 388 U.S. 218, Gilbert v. California (1967) 388 U.S. 263. The notion that a child is peculiarly susceptible to undue influence, while comporting with our intuition and common experience is, in fact, a hotly debated topic among scholars and practitioners. The recognition of that notion in a judicial proceeding, therefore, requires utmost circumspection. Also see Pennsylvania V. Gerald John Delbridge, 771 A.2d 1 (Pa. Super. 2001), argued on April 10, 2002, "This appeal raises the question of whether "taint", that is, the implantation of false memories or distortion of actual memories through improper and suggestive interview techniques, is a subject properly explored during a hearing testing the competency of a child witness in sexual abuse cases." "Our grant of allocator extends to the question of whether the trial court committed certain procedural errors regarding the conduct of the competency hearing itself, if those errors impacted the decision on competency, the trial court's rulings on the admissibility of expert testimony as to the reliability of the hearsay statements of the child witnesses, and the admissibility of the hearsay statements made by the child witnesses." "Upon our consideration of these issues, and for the reasons set forth herein, we direct that the case be remanded for a new competency hearing."

Additional factors temper our consideration of whether children are susceptible to manipulative suggestion or interrogation. Courts have been especially vigilant in insisting that children, as a class, are not always to be viewed as inherently suspect witnesses. Courts have specifically held that age per se cannot render a witness incompetent. It has been recognized that under certain circumstances that children's accounts of sexual abuse can be highly reliable. Nevertheless, common experience tells us that children generate special concerns because of their vulnerability, immaturity, and impressionability, and our laws have recognized and attempted to accommodate these concerns, particularly in the area of child sexual abuse.

The broad question of whether children as a class are more or less susceptible to suggestion than adults is one that we need not definitively answer in order to resolve the central issue in this case. This inquiry is more focused. The issue we must determine is whether the suggestive techniques used by the investigating detective in this case was so coercive or suggestive that they had a capacity to substantially destroy the children's recollections of actual events and thus compromise the reliability of the children's statements and testimony based on their recollections. In this case, the complaining children stated for months, following the alleged incident, that whatever happened was an accident. Even by the father's own statement, he could not understand why his children defended the accused, or why they had become rebellious and belligerent. Only when the investigating detective told their father to tell his daughters that the accused had "done the same thing to other minors," did the complaining children state, "Oh, so it wasn't an accident." Clearly, at that point, their beliefs were changed and there could be no clearer example of "tampering with a witness."

The accused in this case was put in a absolutely no-win situation when the investigating detective made the statement that was ultimately shared with the accusing children. The detective knew that prior complaints had been made against the accused in this case, complaints for which the accused had been exonerated. None of the prior issues were to be addressed during the accused's upcoming trial, yet it became impossible for the accused to even deal with the detective's statement without mentioning the prior allegations himself.

Any "investigative interviews" even by parents, are a crucial, perhaps determinative, moment in a child sex abuse case. (See Gail S. Goodman and Vicki S. Helgeson, Child Sexual Assault: Children's Memory and the Law, 40 U. Miami L. Rev. 181, 195 (1985). A decision to prosecute a case of child sexual abuse often hinges on the information elicited in the initial investigatory interviews with alleged victims carried out by social workers or police investigators. See Diana Younts, Evaluating and Admitting Expert Opinion Testimony In Child Sexual Abuse Prosecutions, 41 Duke L.J., 691 (1991).

That an interview of a young child can be coercive or suggestive and thus shape the child's response is generally accepted. If a child's recollection of events has been molded by an interrogation or a suggestion, that influence undermines the reliability of the child's responses as an accurate recollection of actual events.

A variety of factors bear on the kinds of interrogation that can affect the reliability of a child's statements concerning sexual abuse. A fairly wide consensus exists among experts, scholars, and practitioners concerning improper interrogation techniques. They argue that among the factors that can undermine the neutrality of an interview and create undue suggestiveness are a lack of investigatory independence, the pursuit by the interviewer of a preconceived notion of what has happened to the child, the use of leading questions, and a lack of control for outside influences on the child's statements, such as previous conversations with parents or peers. Younts, supra, 41 Duke L.J. at 729-30, 730-31; see also, John E. B. Myers, The Child Witness: Techniques for Direct Examination, Cross-Examination, and Impeachment, 18 Pac. L.J., 801, 889 (1987) (stating that factors that influence a child's suggestibility include: (1) whether the interviewer believes in presumption of guilt; (2) whether questions asked are leading or non-leading; and (3) whether the interviewer was a trusted authority figure).

The use of incessantly repeated questions also adds a manipulative element to an interview. When a child is asked a question and gives an answer, and the question is immediately asked again, the child's normal reaction is to assume that the first answer was wrong or displeasing to the adult questioner. See Debra A. Poole and Lawrence T. White, Effects of Question Repetition on Eyewitness Testimony of Children and Adults, 27 Developmental Psychology, November (1991) at 975. The insidious effect of repeated questioning are even more pronounced when the questions themselves over time suggest information to the children. Goodman and Helgeson, supra 40 U. Miami l. Rev. at 184-187.

The explicit vilification or criticism of the person charged with wrongdoing is another factor that can induce a child to believe abuse has occurred. Similarly, an interviewer's bias with respect to a suspected person's guilt or innocence can have a marked effect on the accuracy of a child's statements. The transmission of suggestion can also be subtly communicated to children through more obvious facts such as the interviewer's tone of voice, mild threats, praise, cajoling, bribes and rewards, as well as resort to peer pressure. In this case, regardless of the accusing children believing and stating that anything that happened was an accident, not one adult, parents included, was interested. No one, outside the complaining children, ever believed the incident was an accident.

There is much authority recognizing the considerable deleterious impact improper interrogation can have on a child's memory. Other courts have recognized that once tainted, the distortion of the child's memory is irremediable. See, State v. Wright, 775 P.2d 1124, 1128 (1989) ("Once this tainting of memory has occurred, the problem is irremediable. That memory is, from then on, as real to the child as any other.") The deliberating impact of improper interrogation has even more pronounced effect among young children. Maryann King and John C. Yuille, Suggestibility and the child Witness, in Children's Eyewitness Memory, 82 (Stephen J. Ceci, et al. Ed., 1987).

The critical influence that can be exhibited by interview techniques is also supported by the literature that generally addresses the reliability of children's memories. Those studies stress the importance of proper interview techniques as a predicate for eliciting accurate and consistent recollection.

The conclusion that improper interrogations generate a significant threat of corrupting the memories of young children is confirmed by government and law enforcement agencies, which have adopted standards for conducting interviews designed to overcome the dangers stemming from the improper interrogation of young children. 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 interrogation 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, Investigation and Prosecution of Child Abuse at 7 (1987); 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 others, especially other children, have reported. Further, multiple interviews with various interviewers should be avoided.

Finally, we can acknowledge judicial recognition of the very same concerns expressed in the academic literature and addressed by the guidelines established by governmental authorities with respect to the improper interrogation of alleged child sex abuse victims. The United States Supreme Court in Idaho v. Wright, 497 U.S. 805 (1990), noted, with approval and the conclusion of the Idaho Supreme Court, that the failure to video tape interviews with alleged child victims, the use of blatantly leading questions, and the presence of an interviewer with a preconceived idea of what the child should be disclosing, in addition to children's susceptibility to suggestive questioning, all indicate the potential for the elicitation of unreliable information.

It has been, therefore, determined that a sufficient consensus exists within the academic, professional, and law enforcement communities, confirmed in varying degrees by courts, to warrant the conclusion that the use of coercive or highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child's recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events.

We next need to turn to an examination of the interrogations conducted in this case to determine if they were so suggestive or coercive that they created a substantial risk that the statements and testimony thereby elicited lack sufficient reliability to justify their admission at trial.

The interrogations undertaken in the course of this case utilize most, if not all, of the practices that are disfavored or condemned by experts, law enforcement authorities and government agencies.

Interviews, interrogations, spontaneous recollections that are generally considered to be the most reliable by a child volunteering information that directly implicates the defendant or using "free recall" was not used by the investigators. It appears the investigators were not trained in interviewing young children, the earliest interviews were not recorded and the original notes were not kept or were destroyed. The investigators were not impartial and lacked objectivity which is indicated by the interviews failure to pursue any alternative hypothesis that might contradict an assumption of defendant's guilt and blatantly asking leading questions, with mild threats, cajoling or bribery. Positive reinforcement was given when children made inculpatory statements, whereas negative reinforcement was expressed when children denied being abused or made exculpatory statements. The testimony will show that there are elements of vilification of the defendant. The investigators asked for the help of the child because of the bad things that were done to him/her and made him/her part of the system that prosecutes rather than an objective witness. There was no effort to avoid outside information that could influence and affect the recollection of the children. The children and their families were in contact with each other, and more likely than not, exchanged information about the alleged abuses. The parents wanted this to be "abuse." The pre-trial testimony will show that there are numerous instances of egregious violations of proper interview protocols and highly improper, coercive and unduly suggestive methods utilized by the investigators which will result in a substantial likelihood that the children's recollection of the past events was both stimulated and materially influenced by the course of questioning.

We are asking this Honorable Court to conclude that a hearing must be held to determine whether the clearly improper suggestions could so infect the ability of the children to recall the alleged abusive events that their pre-trial statements and in-court testimony, based on that recollection, are unreliable and should not be admitted into evidence.

This Court has a responsibility to ensure that evidence admitted at trial is sufficiently reliable so that it may be of use to the finder of fact who will draw the ultimate conclusions of guilt or innocence. That concern implicates principles of constitutional due process. Reliability is the linchpin in determining admissibility of evidence under a standard of fairness that is required by the Due Process Clause of the Fourteenth Amendment. Manson v. Braithwaite, (supra). Competent and reliable evidence remains as the foundation of a fair trial, which seeks ultimately to determine the truth about criminal culpability. If crucial inculpatory evidence is alleged to have been derived from unreliable sources due process, interests are at risk.

We acknowledge that although reliability assessments with respect to the admissibility of out-of-court statements are commonplace, assessing reliability as a predicate to the admission of in-court testimony is a somewhat extraordinary step. Nevertheless, it is not unprecedented. See Manson, supra, 432 U.S. 98 (authorizing hearing to determine admissibility of in-court identification testimony because of pre-trial suggestiveness); Jackson v. Denno, 378 U.S. 368, (1964) (requiring pretrial taint hearing to determine admissibility of evidence). When faced with extraordinary situations in which police or prosecutorial conduct has thrown the integrity of the judicial process into question, the courts have not hesitated to use the procedural protection of the pre-trial hearing to cleanse a potential prosecution from the corrupting effects of tainted evidence.

The determination of the reliability of pre-trial statements must take into account all relevant circumstances. We need to require a hearing to determine whether a child's statements possess sufficient indicia of reliability. Among the factors that bear on that determination are: (1) the person to whom the child made the statement or, in this case, who made the statement to the child; (2) whether the statement was made under conditions likely to elicit truthfulness; (3) whether the child's recitation exhibits unusual or above-age-level familiarity with sex or sexual functions; (4) post-event and post-recitation distress; (5) any physical evidence of abuse; and (6) any congruity between a defendant's confession or statement.

The law governing the admissibility of eyewitness identification testimony provides a helpful perspective in addressing the concerns as issue here. 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 identification, see Manson, supra, 38 U.S. at 114. Like the investigatory interview in child sexual abuse cases, a pretrial identification procedure can be a critical moment in the course of a criminal prosecution. United States v. Wade, (supra). 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." "Once the witness has picked out the accused. . .he is not likely to go back on his word later." Further, the effects of suggestive pre-trial identification procedures, as with suggestive or coercive interview practices, are exceedingly difficult to overcome at trial and, in this case, impossible. 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 or falsehoods in their statements.

The courts have determined that before a witness could be permitted to testify about matters that he or she was able to recall only through hypnosis, a pre-trial hearing must be held to ensure that the hypnotic technique used on the witness was "reasonably reliable". See Elizabeth Loftus and Graham Davies, Distortions in the Memory of Children 40 J. Soc. Issues 51, 52-53 (1984) (drawing analogy between amalgamation of fact and fantasy in children's memories and process that occurs in hypnosis).

With pretrial events relating not to the identification of an offender but, perhaps more crucially, to the occurrence of the offense itself, those events are fraught with the elements of untoward suggestiveness and the danger of unreliable evidentiary results. To ensure the defendant's right to a fair trial, a pretrial taint hearing is essential to demonstrate the reliability of the resultant evidence.

The pretrial hearing should be conducted pursuant to Evid. R. 104. The basic issue to be addressed at such a pre-trial hearing is whether the pretrial events, the investigatory interviews and interrogations, were so suggestive that they give rise to a substantial likelihood of irreparable mistaken or false recollection of material facts bearing on the defendant's guilty. See United States v. Simmons, 390 U.S. 377, 384 (1968) (ruling that evidence would be excluded if pretrial identification procedures "give rise to a very substantial likelihood of irreparable misidentification").

Consonant with the presumption that child victims are to be presumed no more or less reliable than any other class of witnesses, the initial burden to trigger a pretrial taint hearing is on the defendant. Watkins v. Sowders 449 U.S. 341, (1981) (holding that no constitutional mandate exists for pretrial Wade hearing be held merely because counsel demands it). The defendant must make a showing of "some evidence" that the victim's statements were the product of suggestive or coercive interview techniques. Suggestions that occurred in this case were improper, and there is a substantial likelihood that the evidence derived from them is unreliable. We will have met that threshold standard, and this Honorable Court will hear, with respect to the investigatory interviews, interrogations and suggestions that occurred in this case, that there is more than enough evidence to justify a taint hearing. The State should then be made to prove by clear and convincing evidence that the statements and testimony elicited by the improper suggestive techniques nonetheless retain a sufficient degree of reliability to warrant admission at trial and to safeguard the fairness of Defendant's trial without making legitimate prosecution impossible. If proper testimony of any of the children survive the pretrial hearing, the jury will have to determine the credibility and prove the worth of such testimony.

The New Jersey Supreme Court in a unanimous decision in State v. Michaels (1994), 136 N.J. 299, 642 Atl. Rep. 2d 1372, reversed a jury and held where a defendant was convicted of aggravated sexual assault, sexual assault, endangering the welfare of children and terroristic threats that (1) interrogations of alleged child sex abuse victims were improper and (2) given substantial likelihood the evidence derived from them was unreliable, a pretrial hearing was required at which time the state would be required to prove by clear and convincing evidence that the statements and testimony retained a sufficient degree of reliability to warrant admission at trial.

In this case, Joe Doe's daughter, for 8 months following her disclosure, according to his own deposition, was "very angry," "saying what John Smith had done was an accident." She was rebellious, "compared to her previous behavior. The girls were "defending" John Smith for what he had done to them." Here, angry, rebellious and defending are the key words.

Detective Moore told Joe Doe that John Smith had previously been accused and that a number of minors had been involved. There is only one possible explanation for Moore to have made that statement to Joe Doe and that was if Joe was expressing concern over the fact that he was frustrated because his daughters were defending John Smith.

After talking with Detective Moore, Joe Doe then tells his daughters what he had been told. After hearing that, the accusing child made the statement, "So it wasn't an accident."

Until the Doe children were "influenced" and/or tainted by what Moore told John Doe, "they believed that what John Smith had done was an accident and they believed it for months." They were angry because the "adults" did NOT want to hear them defend John Smith, but the girls knew they were telling the truth. For the girls to have made the statement, "So, it wasn't an accident," clearly means an outside source "changed" or "altered" their belief and testimony.

Both Joe and his wife Peggy had to have been frustrated and sick of hearing their daughters defend John Smith for months. That had to have been an extreme source of irritation for them, especially when "they" would NEVER accept, or believe that anything that happened to their daughters was really an accident.

Children become angry, rebellious and upset when they are trying to tell adults something that adults do not care to listen to, or believe. In reality, the adults are calling the children liars. Children become upset when they yell and yell, but cannot get anyone to listen. What was the ONLY way to get those girls "straightened out?" Tell them that John Smith had done the same thing to "other" minors. It worked perfectly. The girls responded, "So, it wasn't an accident.

This is a very rare case when the accused and the accusers are all telling the truth. That would have come out at trial quickly, had these girl's "minds" not been tampered with and had they not been influenced by Joe Doe, passing on the information Moore had relayed to him.