The Taint Hearing

Originally Presented at the 13th Annual Symposium in Forensic Psychology, Vancouver, British Columbia (April 17, 1997)

Ralph Underwager & Hollida Wakefield^*

ABSTRACT: The New Jersey Supreme Court in State v. Michaels in 1994 created a procedure allowing defense attorneys to request a pretrial "taint" hearing to challenge the investigative interviews of the children. The taint hearing procedure is spreading to other states as defense attorneys request such hearings. Taint hearings can provide a remedy for defective interviews, but the presence of suggestive, coercive interview procedures does not in itself make the accusation false. The totality of the information about a given accusation needs to be assessed carefully by forensic psychologists, who will provide expert testimony in such hearings.

Reliability vs. Credibility

Reliability is necessary in determining the admissibility of evidence. It is a due process violation to allow the conviction of a defendant on the basis of unreliable evidence. If children are interviewed repeatedly using suggestive and coercive interview techniques, the child's memory of the alleged events may be destroyed by the interview process. When this happens, the child's statements are not reliable.

Reliability must be differentiated from credibility (Seahorn, 1995). Credibility implies that the speaker knows whether what is said is true or false. A person who is not credible may be lying.

Reliability is comparable to accuracy. When the person's memory of events is changed or lost, the person may not know what is true or false. When the person then gives unreliable information, the person may not be aware of it. In such cases, the person cannot be said to be lying.  A child who has been suggestively interviewed may be unable to distinguish the memory for a real event from the one that has been taught by the interviewer. Therefore, the testimony the child gives is not reliable.

This is an important distinction in terms of expert witnesses.  Experts are not permitted to testify as to the ultimate issue and thus cannot comment as to a child's credibility.  But they generally can testify about factors in interviews and investigations that risk making child witnesses' statements unreliable.

Precursors of the Taint Hearing

Hawaii vs. McKellar (1985, January 15). Circuit court of the first circuit, State of Hawaii. Criminal No. 85-0553.

This is a trial court decision by Judge Robert Klein. Following testimony by Ralph Underwager, Judge Klein stated that he doubted whether the alleged incident ever happened and that the girls' accusations more likely were the result of "layers and layers of interviews, questions, examinations, etc., which were fraught with textbook examples of poor interview techniques." He observed that the girls were interviewed by adults who accepted as fact the alleged abuse and "have been led and taught by the adults to produce the hoped-for responses." He ruled that "[T]he children lack a present memory of the events from which they can testify" and therefore were incompetent to testify.

Idaho vs. Wright (110 S. Ct., 3139, 1990).

The court addressed the issue of what kinds of hearsay are admissible in terms of the Confrontation Clause and set forth a two-part test for determining whether hearsay evidence may be admitted against a defendant in a sexual abuse case. First, hearsay may be admitted if it falls under a "firmly rooted" exception to the hearsay rule. Second, if the statement falls under a hearsay exception that is not "firmly rooted," then the statement is presumptively unreliable and inadmissible, and will only meet Confrontation Clause standards of admissibility if it is supported by a showing of "particularized guarantees of trustworthiness."

Minnesota v. Huss. No. C4-92-282. (Sup. Ct. Oct 1, 1993).

After the mother made allegations of sexual abuse during a custody dispute, she took her three-year-old daughter to a psychologist who used a book and tape about sexual abuse and questioned the child about the alleged abuse. The mother then checked out the book and the tape from the library and used it often, encouraging the child to say that her father had abused her. After six months of this, the child made an allegation of abuse. The Minnesota Supreme Court held that because of the highly suggestive book and tape and inappropriate interview techniques, there was sufficient reason to question the reliability and validity of the statements such that the evidence was insufficient to be sent to the jury.

Felix v. State. 849 P.2d 220 (Nev. 1993).

In a daycare case, the Nevada Supreme Court held that statements of children about alleged sexual abuse were unreliable as a result of numerous interviews, the use of leading questions, allegations never being made to the child's parents but only to a therapist, and several of the allegations being clearly false or incredible. The court determined that the trial court had failed to adequately assess the reliability of the statements before allowing their admission.

Other unreliable testimony

Many courts have ruled that hypnotically-refreshed testimony is inadmissible because it is not reliable. This is based on the fact that neither the interviewer nor the subject can accurately determine whether a hypnotized person's recall is actual memory or confabulation. Therefore, hypnotically refreshed testimony is considered to be unreliable and hence not admissible. It is also recognized that suggestive and faulty lineup procedures can produce unreliable eyewitness identifications. In addition, courts have ruled that coerced confessions are inadmissible because they are unreliable.

New Jersey vs. Michaels. 625 A.2d 489 (N.J.Super.A.D. 1993)
New Jersey vs. Michaels. 642 A.2d 1372 (N.J. 1994)

The highly publicized Kelly Michaels preschool case resulted in a conviction that was overturned by New Jersey's intermediate Court of Appeals five years later (State v. Michaels, 1993; see also Rosenthal, 1995). In overturning the conviction, the court noted that "the questioning of the children was so suggestive and coercive that they were rendered incompetent to testify" (p. 493). It ruled that, if the prosecution wanted to retry the case, it would have to hold a pretrial taint hearing. The prosecution appealed to the New Jersey Supreme Court for reconsideration of this specific holding and the court upheld the requirement for a taint hearing.

The New Jersey Supreme Court held that (1) interrogations of alleged child sex abuse victims were improper; (2) given substantial likelihood the evidence derived from them was unreliable, pretrial hearing was required at which state would be required to prove by clear and convincing evidence that statements and testimony retained sufficient degree of reliability to warrant admission at trial.  (State v. Michaels, 1994, p. 1372).

The court recognized that, because the reliability of the statements may have been lost, cross-examination would not reveal inaccuracies in the children's statements because the children would not be aware that the statements were false. The court therefore affirmed the appellate court's ruling that, prior to retrial, a taint hearing must be held to determine whether the statements of the children possess sufficient indiciae of reliability to allow them to be admitted into evidence in any retrial. The court laid out a procedure to be followed in the taint hearing.
   

1. When a defendant has made a showing of "some evidence" that the alleged victim's statements were a product of suggestive or coercive interview techniques, a taint hearing will be held.

2. At the taint hearing, the burden of proof will be on the state to prove the reliability of the proffered statements by clear and convincing evidence.

3. Such proof may include the testimony of experts which many be countered by defense expert testimony. Such testimony may not extend to the ultimate issue which is the credibility of the child.

4. If under the totality of the circumstances, the statements do not retain a sufficient degree of reliability, the statements will not be admissible at trial.

5. If under the totality of the circumstances, the statements retain a degree of reliability sufficient to outweigh the effects of the improper interview techniques, then the statements may be introduced at trial. The duty will therefore by on the jury to weight the statements' probative value and credibility.

6. If the statements are introduced at trial, experts may be called to aid the jury by explaining the coercive or suggestive propensities of the interviewing techniques employed.

The issue to be addressed at the taint hearing is not the competence, capacity or credibility of the child witnesses. The court was clear that the issue was one of reliability and the purpose of the taint hearing was to establish the reliability of evidence admitted at trial. The New Jersey Supreme Court noted:

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 (New Jersey vs. Michaels, 642 A.2d 1380).

Defense attorneys should request a taint hearing whenever they believe suggestive and coercive interviews may have destroyed the child's ability to testify truthfully or when they believe that the child's statements to others are unreliable because of defective interviewing. Many people believe that taint hearings provide a much-needed safeguard to defendants and a remedy for defective interviews. Everyone who has seen the transcripts in the Michaels case agrees that the children's statements were rendered unreliable by these suggestive and coercive interviews. The taint hearing is intended provide a remedy for such flawed and contaminating interviews and investigations.

Another advantage is that the knowledge of the possibility of a taint hearing may decrease the likelihood of such coercive interviews, assuming the interviews are documented by audiotape or videotape. It will be unfortunate if, as a result of the taint hearing procedure, fewer investigatory interviews are taped. This is especially true in that most professionals recommend taping all investigatory interviews (i.e., Lamb, 1994; McGough, 1995; Myers, 1994).

But some observers are disturbed about the ruling and worry about negative effects of the taint hearing procedure. Myers (1995, 1996) fears taint hearings will perpetuate unwarranted skepticism about child witnesses, be overused by defense attorneys, and undermine the state's ability to protect children. He believes that they will create new and unnecessary avenues for appeal since the defense has ample opportunities to challenge suggestive interviews in trial. Myers concludes that the disadvantages of taint hearings dwarf the benefits and recommends that children's statements should be suppressed only in rare circumstances.

Cases Since Michaels

Myers (1996) observes that, although the Michaels decision creates official policy only for New Jersey, the taint hearing procedure is likely to spread to other states as defense attorneys request such hearings, and he mentions other states including Delaware, Massachusetts, New York, Ohio, and the military where such hearing have taken place^(f1) We have been been involved in cases involving taint hearings in Wisconsin.^(f2)

Cases involved "repressed" memory recovered in therapy also address similar issues (Underwager & Wakefield, 1998). In New Hampshire vs. Hungerford and New Hampshire vs. Morahan (1995) 1995 WL 378571 (N.H. Super.), the girls in each case had no recollection of sexual abuse by the defendants from the date of the alleged act until they became involved in therapy. The New Hampshire court ruled that there must be a preliminary hearing in which the burden of proof is on the state to establish that the concept of repressed memories and the process of their recovery through therapy is reliable and is generally accepted in the scientific community. Many civil cases have reached the same conclusions concerning memories recovered in therapy.

Dugas (1995) notes that the Due Process Clause of the Fourteenth Amendment protects the defendant by ensuring he receives a fair trial. He uses the due process concept to show how the procedures used against Kelly Michaels violated her fundamental fairness rights. He believes that, "Overall, the decision in Michaels provides persuasive authority for other courts to extend the due process protection to alleged child sexual and physical abusers" (p. 1215).

Psychologists and Taint Hearings

Taint hearings will involve expert testimony by mental health professionals. Both prosecutors and defense attorneys must be familiar with the current literature on child witnesses in order to examine effectively mental health experts who are either defending or criticizing the interviews. All interviews will have some elements of suggestiveness in them and suggestiveness alone does not necessarily violate the defendant's due process rights. Defense attorneys must persuade the judge that the interview was so unnecessarily suggestive that the child's statements cannot be considered reliable. Prosecutors must present evidence that the interview was not so suggestive as to make the child's statements unreliable.

The role and function of mental health professionals in taint hearings is somewhat new and may be unusual for many forensic mental health professionals. Professional ethical considerations should be carefully reviewed and any opinions in a taint hearing should be able to be supported by credible scientific research that meets the current standards of admissibility.  They should be familiar with the research on child witnesses and suggestibility that has proliferated over the last few years (e.g., Bruck & Ceci, 1994; Bruck, Ceci, & Hembrooke, 1998; Ceci & Bruck, 1993,1994).

When psychologists become involved in a taint hearings, they must carefully analyze the progress of the case, examine the circumstances of the disclosure, and look at all of the instances of possible social influence on the child. All available information about a given accusation needs to be assessed carefully before determining that leading and coercive questioning makes the child's statements unreliable. The situations that follow, often found in actual interviews, may decrease the reliability of the information obtained.

· When the interviewers have a preexisting bias rather than keeping an open mind about what happened and exploring alternative hypotheses.

· When there have been multiple formal and informal (by parents, etc.) interviews of the child.

· When the interviews are not audiotaped or videotaped.

· When the child is asked leading or suggestive questions rather than asked open questions and encouraged to provide a free narrative. This is especially problematical when the interviewer provides information to the child.

· When questions are repeated when the child denies or says "I don't remember."

· When the interviewer uses threats, bribes, or selectively reinforces responses of the child.

· When the interviewer criticizes or vilifies the alleged abuser.

· When more than one interviewer questions the child.

· When unsupported interview techniques, such as anatomical dolls are used.

· When the child has been in disclosure-based sexual abuse therapy.

Bruck, M., & Ceci, S. J. (1994 ). Amicus Brief for the case of NJ v. Kelly Michaels.

Bruck, M., & Ceci, S. J., & Hembrooke, H. (1998).  Reliability and credibility of young children's reports: From research to policy and practice.  American Psychologist, 53, 136-151.

Ceci, S. J., & Bruck, M. (1993). The suggestibility of the child witness: A historical review and synthesis. Psychological Bulletin, 113(3), 403-439.

Ceci, S. J., & Bruck, M. (1995). Jeopardy in the Courtroom: A Scientific Analysis of Children's Testimony (). Washington, DC: American Psychological Association.

Dugas, C. (1995). State of NJ v Michaels: The due process implications raised in interviewing child witnesses. Louisiana Law Review, 1205-1234.

Lamb, M. E. (1994). The investigation of child sexual abuse: An interdisciplinary consensus statement. Child Abuse & Neglect, 18(12), 1021-1028.

McGough, L. S. (1995). For the record: Videotaping investigative interviews. Psychology, Public Policy, and Law, 1(2), 370-386.

Myers, J. E. B. (1994, July). Child victim witness investigative pilot projects: Research and evaluation final report. Sacramento, CA: California Department of Justice.

Myers. J. E. B. (1996). Taint hearings to attack investigative interviews: A further assault on children's credibility. Child Maltreatment, 1(3), 213-222.

Myers, J. E. B. (1995). Taint hearings for child witnesses? A step in the wrong direction. Baylor Law Review, 46, 873-945.

Rosenthal, R. (1995). State of New Jersey v. Margaret Kelly Michaels: An overview. Psychology, Public Policy, and Law, 1(2), 246-271.

Seahorn, S. (1995, August). Unreliability of child witnesses in sex abuse cases: A tool for the defense. The Champion, pp. 27-33.

Underwager, R., & Wakefield, H. (in press). Special problems with sexual abuse cases. In J. Ziskin, Coping with Psychiatric and Psychological Testimony, Supplement to the Fifth Edition (). Venice, CA: Law and Psychology Press.

Footnote 1    [Back]

United States v. Cabral, 43 M.J. 808 (Air Force Ct. Crim. App.1996).
Fischbach v. State, 1996WL 145968 (Del. 1996).
Commonwealth v. Allen, 1996 WL 277785 (Mass. Ct. App. 1996).
People v. Michael M., 618 N.Y.S.2d 171 (Sup. Ct. 1994).
State v. Allen, West Law 48550 (Ohio Ct. App. 1996.)

Footnote 2    [Back]

Wisconsin v. Jesus Silva, 1995; Wisconsin v. Weissinger, 1996.