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State v. Michaels

Decided: June 23, 1994.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
MARGARET KELLY MICHAELS, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 264 N.J. Super. 579 (1993).

Handler, Wilentz, Clifford, Pollock, O'hern, Garibaldi, Stein

Handler

[136 NJ Page 302] The opinion of the Court was delivered by

HANDLER, J.

In this case a nursery school teacher was convicted of bizarre acts of sexual abuse against many of the children who had been entrusted to her care. She was sentenced to a long prison term with a substantial period of parole ineligibility. The Appellate Division reversed the conviction and remanded the case for retrial. 264 N.J. Super. 579 (1993).

The Appellate Division based its reversal on several major errors that occurred in the prosecution of the case. Only one of those errors is the subject of this appeal. In setting aside the conviction, the Appellate Division ordered that if the State decided to retry the case, a pretrial hearing would be necessary to determine whether the statements and testimony of the child-sex-abuse victims must be excluded because improper questioning by State investigators had irremediably compromised the reliability of that testimonial evidence.

The State filed a petition for certification seeking review of all the Appellate Division's adverse rulings. This Court denied the petition with respect to all issues except for one concerning the necessity for a pretrial hearing to assess the reliability of anticipated trial testimony because of the improper interrogations. On that issue, this Court denied the petition without prejudice, allowing the State to file a motion for reconsideration of its petition limited to that issue in the event it decided to retry the case. Having determined that it will retry the case, the State filed a motion for reconsideration of its petition for certification, limited to the pretrial hearing issue. The Court granted the motion for reconsideration and the limited petition for certification. 134 N.J. 482 (1993).

I

In September 1984, Margaret Kelly Michaels was hired by Wee Care Day Nursery ("Wee Care") as a teacher's aide for preschoolers. Located in St. George's Episcopal Church, in Maplewood,

Wee Care served approximately fifty families, with an enrollment of about sixty children, ages three to five.

Michaels, a college senior from Pittsburgh, Pennsylvania, came to New Jersey to pursue an acting career. She responded to an advertisement and was hired by Wee Care, initially as a teacher's aide for preschoolers, then, at the beginning of October, as a teacher. Michaels had no prior experience as a teacher at any level.

Wee Care had staff consisting of eight teachers, numerous aides, and two administrators. The nursery classes for the three-year-old children were housed in the basement, and the kindergarten class was located on the third floor. During nap time, Michaels, under the supervision of the head teacher and the director, was responsible for about twelve children in one of the basement classrooms. The classroom assigned to Michaels was separated from an adjacent occupied classroom by a vinyl curtain.

During the seven month period that Michaels worked at Wee Care, she apparently performed satisfactorily. Wee Care never received a complaint about her from staff, children, or parents. According to the State, however, between October 8, 1984, and the date of Michaels's resignation on April 26, 1985, parents and teachers began observing behavioral changes in the children.

On April 26, 1985, the mother of M.P., a four-year old in Michaels's nap class, noticed while awakening him for school, that he was covered with spots. She took the child to his pediatrician and had him examined. During the examination, a pediatric nurse took M.P.'s temperature rectally. In the presence of the nurse and his mother, M.P. stated, "this is what my teacher does to me at nap time at school." M.P. indicated to the nurse that his teacher, Kelly (the name by which Michaels was known to the children), was the one who took his temperature. M.P. added that Kelly undressed him and took his temperature daily. On further questioning by his mother, M.P. said that Kelly did the same thing to S.R.

The pediatrician, Dr. Delfino, then examined M.P. He informed Mrs. P. that the spots were caused by a rash. Mrs. P. did not tell Dr. Delfino about M.P.'s remarks; consequently, he did not examine M.P.'s rectum. In response to further questioning from his mother after they had returned home, M.P., while rubbing his genitals, stated that "[Kelly] uses the white jean stuff." Although M.P. was unable to tell his mother what the "white jean stuff" was, investigators later found vaseline in Wee Care's bathroom and white cream in the first-aid kit. During the same conversation, M.P. indicated that Kelly had "hurt" two of his classmates, S.R. and E.N.

M.P.'s mother contacted the New Jersey Division of Youth and Family Services ("DYFS") and Ms. Spector, Director of Wee Care, to inform them of her son's disclosures. On May 1, 1985, the Essex County Prosecutor's office received information from DYFS about the alleged sexual abuse at Wee Care. The Prosecutor's office assumed investigation of the complaint.

The Prosecutor's office interviewed several Wee Care children and their parents, concluding their initial investigation on May 8, 1985. During that period of investigation, Michaels submitted to approximately nine hours of questioning. Additionally, Michaels consented to taking a lie detector test, which she passed. Extensive additional interviews and examinations of the Wee Care children by the prosecutor's office and DYFS then followed.

Michaels was charged on June 6, 1985, in a three count indictment involving the alleged sexual abuse of three Wee Care boys. After further investigation, a second indictment was returned July 30, 1985, containing 174 counts of various charges involving twenty Wee Care boys and girls. An additional indictment of fifty-five counts was filed November 21, 1985, involving fifteen Wee Care children. Prior to trial the prosecution dismissed seventy-two counts, proceeding to trial on the remaining 163 counts.

After several pretrial hearings, the trial commenced on June 22, 1987. The bulk of the State's evidence consisted of the testimony of the children. That testimony referred extensively to the pretrial

statements that had been elicited from the children during the course of the State's investigations. The State introduced limited physical evidence to support the contention that the Wee Care children had been molested.

By the time the trial concluded nine months later, another thirty-two counts had been dismissed, leaving 131 counts. On April 15, 1988, after twelve days of deliberation, the jury returned guilty verdicts on 115 counts, including aggravated sexual assault (thirty-eight counts), sexual assault (thirty-one counts), endangering the welfare of children (forty-four counts), and terroristic threats (two counts). The trial court sentenced Michaels to an aggregate term of forty-seven years imprisonment with fourteen years of parole ineligibility.

II

The focus of this case is on the manner in which the State conducted its investigatory interviews of the children. In particular, the Court is asked to consider whether the interview techniques employed by the state could have undermined the reliability of the children's statements and subsequent testimony, to the point that a hearing should be held to determine whether either form of evidence should be admitted at re-trial.

The question of whether the interviews of the child victims of alleged sexual-abuse were unduly suggestive and coercive requires a highly nuanced inquiry into the totality of circumstances surrounding those interviews. 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.

The Appellate Division carefully examined the record concerning the investigatory interviews. It concluded that the interrogations that had been conducted were highly improper. 264 N.J. Super. at 629. The court determined from the record that the children's accusations were founded "upon unreliable perceptions, or memory caused by improper investigative procedures,"

and that testimony reflecting those accusations could lead to an unfair trial. Id. at 631-32. Accordingly, it held that in the event of a re-trial, a pretrial hearing would be required to assess the reliability of the statements and testimony to be presented by those children to determine their admissibility. Ibid. The State appeals that determination.

Woven into our consideration of this case is the question of a child's susceptibility to influence through coercive or suggestive questioning. As the Appellate Division noted, there is a constantly broadening body of scholarly authority exists on the question of children's susceptibility to improper interrogation. Id. at 622. The expanse of that literature encompasses a variety of views and Conclusions. Ibid. Among the varying perspectives, however, the Appellate Division found a consistent and recurrent concern over the capacity of the interviewer and the interview process to distort a child's recollection through unduly slanted interrogation techniques. Ibid. The Appellate Division concluded that certain interview practices are sufficiently coercive or suggestive to alter irremediably the perceptions of the child victims. Id. at 620-30.

A.

Like many other scientific and psychological propositions that this Court has addressed in different contexts, see, State v. J.Q., 130 N.J. 554, 617 A.2d 1196 (1993) (noting the limited use to be made of Child Sexual Abuse Accommodation Syndrome); In re Guardianship of J.C., 129 N.J. 1, 608 A.2d 1312 (1992) (considering effects of child-parent bonding in adoption cases); Rubanick v. Witco Chemical Co. 125 N.J. 421, 593 A.2d 733 (1991) (addressing scientific theories of causation in toxic torts); State v. Kelly, 97 N.J. 178, 478 A.2d 364 (1984) (determining availability of battered-women's syndrome as self-defense in criminal case); State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981) (considering practice of hypnosis in determining reliability of hypnotically refreshed testimony), 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.

Additional factors temper our consideration of whether children are susceptible to manipulative interrogation. This Court has been especially vigilant in its insistence that children, as a class, are not to be viewed as inherently suspect witnesses. We have specifically held that age per se cannot render a witness incompetent. State in re R.R., 79 N.J. 97 (1979). We declined to require or allow, absent a strong showing of abnormality, psychological testing of child-victims of sexual abuse as a predicate to a determination of the credibility of the child-victim as a witness. State v. R.W., 104 N.J. 14, 514 A.2d 1287 (1986). We have also recognized that under certain circumstances children's accounts of sexual abuse can be highly reliable. State v. D.R., 109 N.J. 348, 360 (1988). Nevertheless, our 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 those concerns, particularly in the area of child sexual abuse. E.g., State v. Bethune, 121 N.J. 137, 143-44, 578 A.2d 364 (1990) (recognizing special vulnerability of child-victims in "fresh-complaint" jurisprudence); D.R., supra, 109 N.J. at 360 (recognizing that child sexual-abuse victims, whose victimizers are often members of family or household, are particularly susceptible to pressure to recant prior to trial); see also Evid. R. 803(c)(27)(b) (providing standards for determining trustworthiness of child's out-of-court statement concerning 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 be definitively answered in order to resolve the central issue in this case. Our inquiry is much more focused. The issue we must determine is whether the interview techniques used by the State in this case were so coercive or suggestive that they had a capacity

to substantially distort the children's recollections of actual events and thus compromise the reliability of the children's statements and testimony based on their recollections.

We begin our analyses by noting, as did the Appellate Division, that the "investigative interview" is a crucial, perhaps determinative, moment in a child-sex-abuse case. 264 N.J. Super. at 622-23 (citing 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. Diana Younts, Evaluating and Admitting Expert Opinion Testimony In Child Sexual Abuse Prosecutions, 41 Duke L.J. 691 (1991).

That an investigatory interview of a young child can be coercive or suggestive and thus shape the child's responses is generally accepted. If a child's recollection of events has been molded by an interrogation, 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. We note that 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 child's suggestibility include: (1) whether interviewer believes in presumption of guilt; (2) whether questions asked are

leading or non-leading; and (3) whether interviewer was 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 effects 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. Ibid. 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. Goodman and Helgeson, supra, 40 U. Miami L. Rev. at 195. The transmission of suggestion can also be subtly communicated to children through more obvious factors such as the interviewer's tone of voice, mild threats, praise, cajoling, bribes and rewards, as well as resort to peer pressure.

The Appellate Division recognized the considerable authority supporting the deleterious impact improper interrogation can have on a child's memory. 264 N.J. Super. at 629-34. 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 (Id. 1989) ("Once this tainting of memory has occurred, the problem is irredeemable. That memory is, from then on, as real to the child as any other."). The debilitating 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, 29 (Stephen J. Ceci et al. eds., 1987) and

Stephen J. Ceci, Age Differences in Suggestibility, in Children's Eyewitness Memory 82 (Stephen J. Ceci, et al. ed., 1987).

The critical influence that can be existed 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. See, Gail S. Goodman, et al., Optimizing Children's Testimony: Research and Social Policy Issues Concerning Allegations of Child Sexual Abuse in Child Abuse, Child Development, and Social Policy 1992, Dante Cicchetti & Sheree L. Toth (Eds.).

The Conclusion that improper interrogations generate a significant risk 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 Association and the American Prosecutor's Research Institute has 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); an interviewer should avoid asking leading questions, id. at 8; an interviewer should never threaten a child or try to force a reluctant child to talk, id. at 9; and an interviewer should refrain from telling a child what others, especially other children, have reported. Id. at 24. The New Jersey Governor's Task Force on Child Abuse and Neglect has also promulgated guidelines. It states that the interviewer should attempt to elicit a child's feelings about the alleged offender, but that the interviewer should not speak negatively about that person. Governor's Task Force on Child Abuse and Neglect, Child Abuse and Neglect: A Professional's Guide to Identification,

Reporting, Investigation and Treatment, at 31 (1988). Further, multiple interviews with various interviewers should be avoided. Id. at 32.

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, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990), noted with approval 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. Id., at 812-13, 110 S. Ct. at 3145, 111 L. Ed. 2d at 650; see also State v. Hill, 121 N.J. 150, 168, 578 A.2d 370 (1990) (noting potentially coercive effect of having authoritarian figure participate in investigatory interview); State v. Bethune, supra, 121 N.J. at 145 (expressing concern over leading questions used to elicit complaint of sexual assault of minor); State v. R.M., 245 N.J. Super. 504, 516 (App. Div. 1991) (noting potential for a partisan questioner to create a coercive environment); State v. M.Z., 241 N.J. Super. 444, 451, 575 A.2d 82 (App. Div. 1990) (ruling child's out-of-court statement inadmissible under Evid. R. 803(c)(27) because investigator could not distinguish between what child said and what was suggested to her).

We therefore determine 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.

B.

We next 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 utilized most, if not all, of the practices that are disfavored or condemned by experts, law enforcement authorities and government agencies.

The initial investigation giving rise to defendant's prosecution was sparked by a child volunteering that his teacher, "Kelly," had taken his temperature rectally, and that she had done so to other children. However, the overwhelming majority of the interviews and interrogations did not arise from the spontaneous recollections that are generally considered to be most reliable. See Wright, supra, 497 U.S. at 826-27, 110 S. Ct. at 3152, 111 L. Ed. 2d at 659 (implying that spontaneous recall is under normal conditions an accurate indicator of trustworthiness); D.R., supra, 109 N.J. at 359 ("Moreover, a child victim's spontaneous out-of-court account of an act of sexual abuse may be highly credible because of its content and the surrounding circumstances."). Few, if any, of the children volunteered information that directly implicated defendant. Further, none of the child victims related incidents of actual sexual abuse to their interviewers using "free recall." 264 N.J. Super. at 629. Additionally, few of the children provided any tell-tale details of the alleged abuse although they were repeatedly prompted to do so by the investigators. We note further that the investigators were not trained in interviewing young children. The earliest interviews with children were not recorded and in some instances the original notes were destroyed.*fn1 Many of the interviewers demonstrated ineptness in

dealing with the challenges presented by pre-schoolers, and displayed their frustration with the children.

Almost all of the interrogations conducted in the course of the investigation revealed an obvious lack of impartiality on the part of the interviewer. One investigator, who conducted the majority of the interviews with the children, stated that his interview techniques had been based on the premise that the "interview process is in essence the beginning of the healing process." He considered it his "professional and ethical responsibility to alleviate whatever anxiety has arisen as a result of what happened to them." A lack of objectivity also was indicated by the interviewer's failure to pursue any alternative hypothesis that might contradict an assumption of defendant's guilt, and a failure to challenge or probe seemingly outlandish statements made by the children.

The record is replete with instances in which children were asked blatantly leading questions that furnished information the children themselves had not mentioned. All but five of the thirty-four children interviewed were asked questions that indicated or strongly suggested that perverse sexual acts had in fact occurred. Seventeen of the children, fully one-half of the thirty-four, were asked questions that involved references to urination, defecation, consumption of human wastes, and oral sexual contacts. Twenty-three of the thirty-four children were asked questions that suggested

the occurrence of nudity. In addition, many of the children, some over the course of nearly two years leading up to trial, were subjected to repeated, almost incessant, interrogation. Some children were re-interviewed at the urgings of their parents.

The record of the investigative interviews discloses the use of mild threats, cajoling, and bribing. Positive reinforcement was given when children made inculpatory statements, whereas negative reinforcement was expressed when children denied being abused or made exculpatory statements.

Throughout the record, the element of "vilification" appears. Fifteen of the thirty-four children were told, at one time or another, that Kelly was in jail because she had done bad things to children; the children were encouraged to keep "Kelly" in jail. For example, they were told that the investigators "needed their help" and that they could be "little detectives." Children were also introduced to the police officer who had arrested defendant and were shown the handcuffs used during her arrest; mock police badges were given to children who cooperated.

In addition, no effort was made to avoid outside information that could influence and affect the recollection of the children. As noted by the Appellate Division, the children were in contact with each other and, more likely than not, exchanged information about the alleged abuses. 264 N.J. Super. at 629. Seventeen of the thirty-four children were actually told that other children had told investigators that Kelly had done bad things to children. In sum, the record contains numerous instances of egregious violations of proper interview protocols.

We thus agree with the Appellate Division that the interviews of the children were highly improper and employed coercive and unduly suggestive methods. As a result, a substantial likelihood exists that the children's recollection of past events was both stimulated and materially influenced by that course of questioning. Accordingly, we conclude that a hearing must be held to determine whether those clearly improper interrogations so infected the ability of the children to recall the alleged abusive events that

their pretrial statements and in-court testimony based on that recollection are unreliable and should not be admitted into evidence.

IV

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. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977). Competent and reliable evidence remains at 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. Hurd, supra, 86 N.J. at 547.

A.

We acknowledge that although reliability assessments with respect to the admissibility of out-of-court statements are commonplace, e.g., Hill, supra, 121 N.J. 150; Bethune, supra, 121 N.J. 137; State v. Spruell, 121 N.J. 32, 577 A.2d 821 (1990); State v. A. Gross, 121 N.J. 1, 577 A.2d 806 (1990); D.R., supra, 109 N.J. 348, 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, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (authorizing hearing to determine admissibility of in-court identification testimony because of pretrial suggestiveness); Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) (same); State v. Gookins, 135 N.J. 42, 637 A.2d 1255 (1994) (requiring pretrial taint hearing to determine admissibility of evidence because of prior falsified police breathalyzer

reports); Hurd, supra, 86 N.J. 525 (ruling taint hearing necessary to determine admissibility of hypnotically-recalled in-court testimony); State v. Sugar, 84 N.J. 1, 417 A.2d 474 (1980) (requiring taint hearing following police investigatory conduct that led to inadmissible evidence). When faced with extraordinary situations in which police or prosecutorial conduct has thrown the integrity of the judicial process into question, we have not hesitated to use the procedural protection of a pretrial hearing to cleanse a potential prosecution from the corrupting effects of tainted evidence. Gookins, supra, 135 N.J. at 42; Sugar, supra, 84 N.J. 1; State v. Peterkin, 226 N.J. Super. 25, 543 A.2d 466 (App. Div.), certif. denied, 114 N.J. 295 (1988).

The determination of the reliability of pretrial statements must take into account all relevant circumstances. In Gross, supra, we detailed the range of factors that might bear on the reliability of a pretrial statement. Among those are the person or persons to whom the statement was made; the manner and form of interrogation; physical and mental condition of the declarant, the use of inducements, threats or bribes; and the inherent believability of the statement. 121 N.J. at 10.

The inquiry into the reliability of pretrial statements of children in a child-sex-abuse case is similarly comprehensive. The Appellate Division recognized that the assessment of the trustworthiness of a child's statements made in the course of an investigatory interview must touch all relevant circumstances. 264 N.J. Super. at 633. In D.R., supra, 109 N.J. 348, dealing with the admissibility of statements by child-victims of sexual-abuse under the age of twelve, the Court required a hearing to determine whether a child's statement possesses sufficient indicia of reliability. Among the factors that bear on that determination are: (1) the person to whom the child made the statement; (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. Id. at 358; Evid. R. 803(c)(27)(b) (providing "that on the basis of the time, content, and the circumstances of the statement there is a probability that the statement is trustworthy"). In Hill, the Court noted several factors that should be considered in assessing the reliability of a complaint regarding sexual offenses. They are: (1) the age of the victim, (2) circumstances of the questioning; (3) the victim's relationship with the interrogator; and (4) the type of questions asked, 121 N.J. at 168; see also Idaho v. Wright, supra, 497 U.S. at 820, 110 S. Ct. at 3149, 111 L. Ed. 2d at 655-56 ("We think the 'particular guarantees of trustworthiness' . . . must likewise be drawn from the totality of the circumstances that surround the making of the statement.").

In this case we are equally concerned about the reliability of anticipated in-court testimony that may be derived from the out-of-court statements and antecedent interrogations. The considerations that are germane to the assessment of the reliability of in-court testimony parallel those that inform the determination of the reliability of out-of-court statements.

The law governing the admissibility of eye-witness identification testimony provides a helpful perspective in addressing the concerns at 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 procedures. Manson, supra, 388 U.S. at 114, 97 S. Ct. at 2253, 53 L. 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 course 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 effects 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 or falsehoods in their statements. Younts, supra, 41 Duke L.J. at 727.

We have also recognized that when an identification is crucial to the prosecution of a criminal case, its reliability, and ultimate admissibility, must be strictly tested through a searching pretrial hearing. E.g., State v. Clausell, 121 N.J. 298, 326, 580 A.2d 221 (1990); State v. Madison, 109 N.J. 223, 233, 536 A.2d 254 (1988); State v. Ford, 79 N.J. 136, 137, 398 A.2d 95 (1979).

Similarly, we have used the protection of a pretrial hearing to assay the reliability of testimony based on the recollection of a witness that may have been altered by suggestive influences. In Hurd, supra, 86 N.J. 525, this Court required a pretrial hearing to determine the reliability of testimony based on hypnotically-induced recollection. The identification at issue in Hurd was not the product of a conventional pretrial identification proceeding, such as a line-up or photo array, which concerned the Supreme Court in Wade and Manson. Ms. Hurd, a victim of an attack, recalled the assault but could not recall her assailant. She underwent hypnosis and was able to remember that her husband, Paul, had been her attacker. The Court determined that before a witness could be permitted to testify about matters that he or she was able to recall only through hypnosis, a pretrial hearing must be held to ensure that the hypnotic technique used on the witness was "reasonably reliable." 86 N.J. at 543. 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).

We are confronted in this case with pretrial events relating not to the identification of an offender but, perhaps more crucially, to the occurrence of the offense itself. Those events -- investigatory interviews -- are fraught with the elements of untoward suggestiveness and the danger of unreliable evidentiary results. We thus concur in the determination of the Appellate Division, 264 N.J. Super. at 631-32, that to ensure defendant's right to a fair trial a pretrial taint hearing is essential to demonstrate the reliability of the resultant evidence.

B.

The pretrial hearing should be conducted pursuant to Evid. R. 104. The basic issue to be addressed at such a pretrial hearing is whether the pretrial events, the investigatory interviews and interrogations, were so suggestive that they give rise to a substantial likelihood of irreparably mistaken or false recollection of material facts bearing on defendant's guilt. See United States v. Simmons, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968) (ruling that evidence would be excluded if pretrial identification procedures "give rise to a very substantial likelihood of irreparable misidentification"); State v. Clausell, supra, 121 N.J. at 325.

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, 101 S. Ct. 654, 66 L. Ed. 2d 549 (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. Id., 443 U.S. at 350, 101 S. Ct. at 659, 66 L. Ed. 2d at 577 (Brennan, J., Dissenting); State v.

Rodriquez, 264 N.J. Super. 261, 269, 624 A.2d 605 (App. Div. 1993); State v. Ortiz, 203 N.J. Super. 518, 522, 497 A.2d 552 (App. Div.), certif. denied, 102 N.J. 335 (1985).

That threshold standard has been met with respect to the investigatory interviews and interrogations that occurred in this case. Without limiting the grounds that could serve to trigger a taint hearing, we note that the kind of practices used here -- the absence of spontaneous recall, interviewer bias, repeated leading questions, multiple interviews, incessant questioning, vilification of defendant, ongoing contact with peers and references to their statements, and the use of threats, bribes and cajoling, as well as the failure to videotape or otherwise document the initial interview sessions -- constitute more than sufficient evidence to support a finding that the interrogations created a substantial risk that the statements and anticipated testimony are unreliable, and therefore justify a taint hearing.

Once defendant establishes that sufficient evidence of unreliability exists, the burden shall shift to the State to prove the reliability of the proffered statements and testimony by clear and convincing evidence. Hurd, supra, 86 N.J. at 546. Hence, the ultimate determination to be made is whether, despite the presence of some suggestive or coercive interview techniques, when considering the totality of the circumstances surrounding the interviews, the statements or testimony retain a degree of reliability sufficient to outweigh the effects of the improper interview techniques. The State may attempt to demonstrate that the investigatory procedures employed in a case did not have the effect of tainting an individual child's recollection of an event. To make that showing, the State is entitled to call experts to offer testimony with regard to the suggestive capacity of the suspect investigative procedures. The defendant, in countering the State's evidence, may also offer experts on the issue of the suggestiveness of the interrogations. However, the relevance of expert opinion focusing essentially on the propriety of the interrogation should not extend to or encompass the ultimate issue of the credibility of

an individual child as a witness. Cf. State v. R.W., supra, 104 N.J. at 26 (holding that absent strong showing of abnormality and substantial need child may not be subjected to psychiatric examination by expert for purpose of determining credibility). The State is also entitled to demonstrate the reliability of the child's statements or testimony by proffering independent indicia of reliability. See Ford, supra, 79 N.J. at 137 (inquiring, "whether there are sufficient indicia of reliability to outweigh the 'corrupting effect of the suggestive identification itself.'") (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154). It bears repeating that the focus of the pretrial hearing is on the coercive and suggesting propensity of the investigative questioning of each child and whether that questioning, examined in light of all relevant circumstances, gives rise to the substantial likelihood that the child's recollection of actual events has been irremediably distorted and the statements and the testimony concerning those events are unreliable.

In choosing the burden of proof to be imposed on the State, we are satisfied that the clear-and-convincing-evidence standard serves to safeguard the fairness of a defendant's trial without making legitimate prosecution of child sexual abuse impossible. We have applied the clear and convincing evidence standard to other areas in which the issue of illegal or unreliable evidence was in question. See, e.g., Sugar, supra, 100 N.J. at 239 (applying "clear and convincing evidence" standard as burden of proof with respect to "inevitable discovery" ...


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