Seminar on Child Sexual Abuse

Ralph C. Underwager
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.)


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