Seminar on Child Sexual Abuse
Ralph C. Underwager
and
Hollida Wakefield
Oklahoma, 1995
XII. Important Court Rulings
A. Maryland v. Craig (110 S. Ct., 3157, 1990)
1. Arose out of efforts to protect the child from the trauma of testifying by modifying
court procedures, such as testifying behind a screen or on videotape in another room.
2. According to the Supreme Court, if the prosecution moves to have the child witness
testify behind a screen, they will have establish several things.
3. The requisite necessity finding must be case specific. The trial court must hear
evidence and determine whether the procedure's use is necessary to protect the particular
child witness' welfare; find that the child would be traumatized, not by the courtroom
generally, but by the defendant's presence; and find that the emotional distress suffered
by the child in the defendant's presence is more than de minimis.
4. This Supreme Court ruling demands that there be an evidentiary hearing, prior to the
trial, at which there will be testimony about the effect on the specific child of
testifying in the presence of the person accused.
5. There is no research separating out the single factor of the defendant's presence from
all other factors in assessing the probable effects of courtroom testimony on a child.
There are no empirical data to support such a claim. There is no way any competent mental
health professional can testify that emotional distress would be caused solely and alone
by the presence of the defendant (Underwager & Wakefield, 1992).
6. In Akiki, the motion was denied and the children testified in open court. Later, the
transcripts were examined. The children for the most part were able to testify and did not
behave in the way the mental health professionals had predicted (Montoya, 1995).
B. Idaho v. Wright (110 S. Ct., 3139, 1990)
1. In Idaho v. Wright the court addressed the issue of what kinds of hearsay are
admissible in terms of the Confrontation Clause.
2. The Court set forth a two-part test for determining whether hearsay evidence may be
admitted against a defendant in a sexual abuse case.
a. First, hearsay may be admitted if it falls under a "firmly rooted" exception
to the hearsay rule.
b. 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."
3. It is difficult to meet the standard of "particularized guarantees of
trustworthiness" without a tape of the interview since without a tape, there is no
way to establish just what transpired in the interview.
C. New Jersey vs. Michaels (642 A.2d 1372, N.J. 1994)
1. New Jersey v Michaels is a decision from the New Jersey Supreme Court. Kelly Michaels
had been convicted of sexually abusing children in a day care center and was imprisoned
for 5 years before her case was overturned on appeal (see Rosenthal, 1995 for an overview
of the case and the issues).
2. The children had been subjected to highly leading, suggestive, and coercive interviews.
The New Jersey Supreme Court ruled that the interrogations of the children were improper,
and given substantial likelihood the evidence derived from them was unreliable, a pretrial
hearing was required at which the state would be required to prove by clear and convincing
evidence that the statements and testimony retained sufficient degree of reliability to
warrant admission at trial. This hearing is called a "taint hearing."
3. Where the interviews of the child witnesses are leading and suggestive, the attorney
can move for a taint hearing where the state must prove that the interviews were not
leading and coercive and that the testimony of the child witness(es) would be reliable.
4. In the taint hearing, the state is entitled to call experts to offer testimony with
regard to the suggestive capacity of the suspect investigative procedures, and the
defendant may offer expert testimony of the issue of the suggestiveness to counter the
state's evidence.
C. Daubert v. Merrell Dow Pharmaceuticals (61 U.S.L.W. 4805, 113 S Ct 2786, 1993)
1. The unanimous United States Supreme Court decision dramatically changes the criteria by
which scientific testimony will be admitted as evidence in court.
2. The major criterion of the scientific status of a theory is its falsifiability,
refutability, or testability. This, in effect, replaces the Frye test (Frye v. United
States, 293 F. 1013) with the Popperian principle of falsification as the determinant of
scientific knowledge.
3. Justice Blackmun identified four factors that the court should consider in determining
whether an expert's opinion is valid under rule 702:
a. Whether the expert's theory or technique has been or can be tested or falsified.
b. Whether the theory or technique has been subjected to peer review or publication.
c. What the known or potential rate of error is for any test or scientific technique that
has been employed.
d. Whether the technique is generally accepted in the scientific community.
4. Therefore, general acceptance in the scientific community (the Frye test) is one
consideration, the lack of such by itself does not preclude the proposed testimony. This
will make admissible new scientific evidence that was excluded under Frye.
5. At the same time, if properly understood and followed, this ruling is likely to render
inadmissible testimony based on such concepts and theories as the child sexual abuse
accommodation syndrome and claims that childhood sexual abuse has been
"repressed."
6. Although the decision is limited to federal court, it will be applicable wherever
federal rules of evidence apply. (See Imwinkelried, 1993, Underwager & Wakefield,
1993, and Stewart, 1993 for discussions of the Daubert decision.)
