No. 65205-8 IN THE SUPREME COURT OF THE STATE OF WASHINGTON In Re the DEPENDENCY of: A.E.P. AND W.M.P., Minor Children MICHAEL PETCU, Petitioner, STATE OF WASHINGTON, Respondent. AMICUS CURIAE BRIEF on behalf of WASHINGTON ASSOCIATION OF CRIMINAL DEFENSE LAWYERS GENE M.GRANTHAM WSBA No. 5641 Suite 500 119 First Avenue S. Seattle, WA 98104 (206) 682-6644 -------------------------------------------------- TABLE OF AUTHORITIES Cases Dutton v. Evans, 400 U.S. 74, 27 L.Ed.2d 213, 91 S.Ct. 210 (1970) 8,12,13 Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)13-17,20 State v. Borland, 57 Wn.App. 7 (1990) 8 State v. Carlson, 61 Wn.App. 865 (1991) 9,10 State v. Leavitt, 111 Wn.2d 66 (1988) 9 State v. Madison, 53 Wn.App. 754 (1989) 10,11 State v. Michaels, 625 A.2d 489 (N.J. Superior Court, App.Div. 1993) 1,2,6 State v. Parris, 98 Wn.2d 140 (1982) 12 United States v. Alvarez, 584 F.2d 694 (5th Cir. 1978) 12,13 United States v. Rouse, 111 F.3rd 561 (8th Cir. 1997) 2 State v. Ryan, 103 Wn.2d 165 (1984) 7,8,9,11 State v. Sorenson, 421 N.W.2d 77 (Wis. 1988) 17 State v. Stange, 53 Wn.App. 638 (1989) 8 Statutes RCW 9A.44.120 8,11 Other Authority Ceci and Bruck, Jeopardy in the Courtroom, A Scien- tific Analysis of Children's Testimony, (Am. Psych. Assn.)(1995) 1,5,7,19,20 Ceci and Bruck, Suggestibility of Child Witnesses: A Historical Review and Synthesis, 113 Psychologi- cal Bulletin 403-439 (1993) 2 Ceci and Huffman, How Suggestible Are Preschool Children? Cognitive and Social Factors, 36 J. Am. Acad. Child Adolesc. Psychiatry 948 (1997) 4 Lieb, Berliner and Toth, Protocols and Training Standards: Investigating Allegations Child Sexual Abuse, Washington State Institute of Public Policy, (1997) 5 Montoya, Something Not So Funny Happened on the Way to Conviction: The Pretrial Interrogation of Child Witnesses, 35 Arizona Law Review 927 (1993) 1 Younts, Evaluating and Admitting Expert Opinion Testimony in Child Sexual Abuse Prosecutions, 41 Duke Law Journal 691 (1992) 2 -------------------------------------------------- TABLE OF CONTENTS Assignment of Error i Issues Pertaining to Assignment of Error i Argument 1 Conclusion 33 ------------------------------------------ A. Assignment of Error: Amicus adopts the assignments of error designated by appellant. Issues Pertaining to Assignment of Error: (1) Are the Ryan factors adequate for assessing the trustworthiness and reli- ability of child hearsay? (2) May a child witness be incompetent to testify where her testimony has been tainted by suggestive interviewing tech- niques? ------------------------------------------ Recent criminal prosecutions of alleged child abusers have raised serious concerns on the part of legal scholars and social scientists regarding the pretrial interro- gation of child witnesses. Cases such as the McMartin Preschool case in California, the Wee Care Nursery case in New Jersey and the Little Rascals Day Care case in North Carolina each involved sensational but erroneous accusations of ritualistic sexual abuse in day care programs. Montoya, Something Not So Funny Happened on the Way to Conviction: The Pretrial Interrogation of Child Witnesses, 35 Arizona Law Review 927 (1993); State v. Michaels, 625 A.2d 489 (N.J. Superior Court, Appellate Div. 1993)(reversing conviction involving the Wee Care Nursery School). Commentators have compared these prosecutions to the seventeenth century Salem witch trials. Ceci and Bruck, Jeopardy in the Courtroom, A Scientific Analysis of Children's Testi- mony, 8 (1995). The 300-year old Salem witch trials have been noted as the earli- est recorded instance in American jurispru- dence involving the testimony of child witnesses. Id. at p.8. On the basis of the testimony of a group of children known as the "circle girls" nineteen defendants were convicted and put to death. These cases have precipitated an enor- mous volume of research, focusing on the suggestibility of children. Stephen J. Ceci and Maggie Bruck, Suggestibility of Child Witnesses: A Historical Review and Synthesis, 113 Psychological Bulletin 403- 439 (1993). The conclusions [fn.1] and impact of that research in child abuse prosecutions is discussed in detail in United States v. Rouse, 111 F.3rd 561,574 (8th Cir. 1997) and State v. Michaels, 625 A.2d 489 (N.J. 1993)(appended to petition for discretionary review). The Psychological Research: Younts, Evaluating and Admitting Expert Opinion Testimony in Child Sexual Abuse Prosecutions, 41 Duke Law Journal 691 (1992), notes that since the late 1960's there have been over seventy-five studies on the suggestibility of children. Younts discusses nine recent studies [fn. 2] and concludes: Careful review of the social science literature indicates that children are susceptible to suggestive interviewing techniques and that such techniques can render children's accounts of abuse unreliable. A number of studies have shown that children will lie when they have a motive to lie, that they are susceptible to accommodating their reports of events to fit what they perceive the adult questioner to be- lieve and that inappropriate post- event questioning can actually change a child's cognitive memory of an event. Professor Ceci's research demonstrates that not only can children's memories be influenced by false suggestions, but that experts viewing videotapes of child wit- nesses were unable to judge correctly whether the children were relating true or fabricated accounts. First, these results, taken to- gether, make clear that it is possible to mislead a subset of the children into believing they experienced ficti- tious events. There are several indi- cations that this is so, most impor- tantly our inability to debrief 27% to 35% of the children in studies 3 and 4. No matter how hard their parents and we tried, this subset of children refused to accept the explanation that the fictitious events never occurred. Professionals watching these children were essentially at chance in deciding whether the event really occurred, another indication that the children believed what they were reporting, since it is quite difficult for a 3- year-old to lie consistently and con- vincingly, especially in the face of counter suggestions.... One very robust finding was the thrice-replicated demonstration with different stimulus materials, that professionals can be fooled about accuracy of a child's report when the child has been exposed to repeated suggestions over long delays. In contrast to professionals' professed confidence, they were no better than chance at distinguishing between true and false accounts in these studies. Of the several thousand psychiatrists, psychologists, social workers, attor- neys, and judges who watched the vid- eotapes, many expressed deep surprise to learn that they were so incorrect. Ceci and Huffman, How Suggestible Are Preschool Children? Cognitive and Social Factors, 36 J. Am. Acad. Child Adolesc. Psychiatry 948, 956-7 (1997). Researchers believe that children are much more vulnerable to improper question- ing techniques in the highly emotional context of real life child abuse investiga- tions than they are in laboratory stud- ies.[fn. 3] The major difference between sugges- tive interviews in laboratory studies and suggestive interviews in actual cases is that the former are generally less intense and contain fewer sugges- tive elements than the latter. And yet even under these much-reduced circum- stances, a number of children can produce highly inaccurate reports. This leads to the conclusion that if experiments were more like real-life case we would elicit many more false reports from children than we have done to date; thus our empirical evi- dence may in some circumstances under- estimate the influence of suggestive interviewing techniques. Ceci and Bruck, Jeopardy in the Courtroom, A Scientific Analysis of Children's Testi- mony, 299 (1995). The same vulnerability of children to suggestive interviewing techniques has been described in a report prepared for the Washington State Institute of Public Poli- cy. Research findings concerning child sexual abuse investigations are summarized by Lucy Berliner in Protocols and Training Standards: Investigating Allegations Child Sexual Abuse, Washington State Institute of Public Policy, (1997) at p.11. Factors have been identified that are associated with heightened vulnerabil- ity which may be particularly relevant to forensic contexts.... Children are more suggestible when they perceive interviewers as authoritarian, un- friendly, or intimidating or when interviewers repeat the same questions or use leading and suggestive ques- tions. Children repeatedly exposed to erroneous negative stereotypes about individuals are more likely to agree that the person engaged in a bad act. It has been demonstrated that under some circumstances, young children remember aspects of an event or even, in some cases, an event that never occurred. Introducing incorrect in- formation about a non-event can lead to confusion about the source of the memory. Young children may not be skilled at source monitoring and be unable to distinguish whether they heard about or imagined the event or whether it really happened. As part of an amicus brief in the Michaels case, the following paragraph was signed by 45 researchers in the fields of cognitive, developmental and clinical psychology. The authors of this brief also wish to convey their deep concern over the children in this case. Our concern is that if there were incidents of sexual abuse, that faulty interviewing proce- dures make it impossible to ever know who the perpetrators were and how the abuse occurred. Thus, poor interview- ing procedures make it difficult to detect real abuse. But we have further concerns. And these involve the inter- viewing techniques which we view as abusive in themselves. After reading a number of these interviews, it is difficult to believe that adults charged with the care and protection of young children would be allowed to interact with the children in such sexually explicit ways, or that they would be allowed to bully and frighten their child witnesses in such a shock- ing manner. No amount of evidence that sexual abuse had actually occurred could ever justify the use of such techniques especially with three and four year old children. Above and beyond the great stress, intimidation, and embarrassment that many of the children so obviously suffered during the interviews, we are deeply con- cerned about the long-lasting harmful effects of persuading children that they have been horribly sexually and physically abused, when in fact there may have been no abuse until the in- terviews began. Ceci and Bruck, Id. at p.292-3. Professor Ceci summarizes the dangers of suggestive interviewing techniques as follows: We have argued throughout that children's reporting accuracy can be influenced by a number of different interviewing techniques. Techniques that induce the child to imagine sce- narios that might not have occurred, that encourage children to think re- peatedly about fictional events, or that provide negative stereotypes that are paired with repeated suggestions can result in a substantial diminution of children's testimonial accuracy. Furthermore, when an interviewer se- lectively reinforces certain elements of a child's report, or when she in- duces the child to make a disclosure through the use of peer pressure and through aggrandizement of her own authority over the child, the inter- viewer runs the risk of eliciting inaccurate and false reports. Each of these techniques are especially sug- gestive when they are paired with repeated interviews that occur long after the alleged event. Ceci and Bruck, Id. at p.294-5. Legal Authority: Petitioner, Michael Petcu, asserts that the Ryan factors, State v. Ryan, 103 Wn.2d 165 (1984), used to assess the admissibili- ty of hearsay testimony, do not adequately address the reliability of children's testimony, especially in light of extensive current psychological research. Amicus strongly agrees with this assertion. Amicus contends that the present stan- dard for determining the reliability of hearsay evidence is unhelpful in the con- text of child hearsay offered pursuant to RCW 9A.44.120. The Ryan factors determine whether hearsay testimony is sufficiently reliable to overcome an objection based upon the Confrontation Clause and admission of such evidence is overturned only if the trial court abused it's discretion in applying the Ryan factors. However, deci- sions of the Court of Appeals have repeat- edly noted the inadequacy of the Ryan factors. For example, State v. Borland, 57 Wn.App. 7 (1990) discussing the last four of the Ryan factors (derived from Dutton v. Evans, 400 U.S. 74 (1970)) observes that some of the Dutton criteria will never be satisfied in the child hearsay context and that others will virtually always be super- fluous in practice. The opinion concludes: For these reasons, we find the Dutton factors are not useful in determining which statements are admissible under RCW 9A.44.120. Nonetheless, they remain part of the Washington rule for admission until changed by the Supreme Court. Borland, 57 Wn.App at p.16-20. Similarly, State v. Stange, 53 Wn.App. 638, 644 (1989), discusses the first of the Dutton factors, whether the offered hearsay statement contained an "express assertion about past fact", and notes that "there had been prior discussion with counsel indicat- ing that neither counsel nor the judge were clear as to the meaning or the use of this factor." The opinion concludes that the trial judge committed no error in failing to weigh this standard, because it is useless in the child hearsay context. The reference to "no express assertion about past fact" in Ryan is puzzling. Clearly, if that factor is applicable, it must militate against admission of the declarations. However, the pur- pose of RCW 9A.44.120 is precisely to allow the hearsay statements of a child to be admitted. The statute has been held to meet constitutional stan- dards for the confrontation of wit- nesses. State v. Ryan, 103 Wn.2d at 170. The significant portion of child hearsay testimony will always be an assertion about past fact, usually about the very act constituting the crime charged. In Ryan, the court mentions that the statements referred to past fact but did not discuss the relationship of this factor to the purpose and operation of RCW 9A.44.120. Ryan at 176-77. Stange [fn.4] cites State v. Leavitt, 111 Wn.2d 66,75 (1988) in support of ignor- ing the "assertion about past fact" factor: Leavitt recognizes that assertions as to past fact will always be present, that when the child witness is un- available cross examination will al- ways be denied, and cross examination could in every case possibly show error in the hearsay statement. Stange, at p.647. Leavitt had minimized applicability of the "assertion as to past fact" factor by noting "These factors do not weigh in favor of reliability, but under these facts we conclude that they do not weigh in favor of unreliability ei- ther". Leavitt at p.75. Other of the Ryan factors have also been construed to be essentially meaning- less. The fourth Ryan factor is whether statements were made spontaneously. Cer- tainly a truly spontaneous statement, not unlike an excited utterance, has generally been deemed to bear indicia of reliability. However, State v. Carlson, 61 Wn.App. 865 (1991) holds that lapse of time and inter- vening counselling do not establish a sufficient lack of spontaneity to support exclusion of hearsay. Such a rule would be unworkable in any event. Were the courts to hold as a matter of law that counselling affects a child's reliability, an abused child would be prevented from receiving much needed help until after trial. To treat a lapse of time between abuse and accusatory statements as necessar- ily indicative of unreliability would also overlook the tendency of abuse victims to delay reporting that abuse occurred. Carlson, 61 Wn.App., n.3 at p. 872-3. Notwithstanding the considerable debate as to whether counselling may elicit or rein- force false claims of abuse, the problem with this reasoning is that it renders the spontaneity component of the Ryan factors virtually useless and irrelevant. On the other hand, under the Ryan test, circumstances which would seem to be highly probative concerning the reliability of hearsay accusations, are not considered. Certainly, prior inconsistent versions of the description or accusation seriously bring into question the statement's reli- ability. However, not only is this not a factor in the Ryan test but even inconsis- tency amounting to complete recantation has been discounted as a demonstration of unreliability. State v. Madison, 53 Wn.- App. 754 (1989). [fn. 5] Several of the remaining Ryan factors are especially awkward in their application to statements by child witnesses. For example, the second factor, the general character of the declarant, is unlikely to be informative where the declarant is a child under the age of ten. The fourth factor, whether more than one person heard the statements, is problematic because repeated questioning of the child by adults may make the statement less, rather than more reliable, as has been demonstrated by the current psychological research concern- ing suggestibility of children. To satisfy the requirements of the Sixth Amendment, child hearsay must be shown to be reliable. However, the Ryan factors were not devel- oped in the context of testimony of young children and provide very little guidance to the trial court to determine when the constitutional reliability requirement has been satisfied sufficiently to overcome the lack of confrontation. The Ryan factors add very little to the requirement of the statute that the court must find that the time, content and circumstances of the statement provide sufficient indicia of reliability. RCW 9A.44.120(1). The Ryan factors are derived from State v. Parris, 98 Wn.2d 140 (1982). Parris in turn cites United States v. Alvarez, 584 F.2d 694 (5th Cir. 1978) and Dutton v. Evans, 400 U.S. 74, 27 L.Ed.2d 213, 91 S.Ct. 210 (1970). Review of these case demonstrates that they have minimal appli- cation to child hearsay testimony. In the Dutton case, Evans, Truett and Williams were charged with the murder of three police officers. Truett testified for the prosecution under a grant of immunity. Williams and Evans were tried separately. In the Evans trial, nineteen witnesses testified, including Shaw, a fellow inmate of Williams. Shaw was allowed to testify to an out-of-court declaration by Williams, namely: "If it hadn't have been for that dirty son-of-a-bitch Evans, we wouldn't be in this now". The reasons given by the Supreme Court for admitting the hearsay in violation of Evans confrontation right were: (1) it contained no express assertion of fact; (2) Williams had personal knowl- edge of the participants in the murder (he was separately convicted of the murder); (3) the possibility of false recollection was remote; and (4) the circumstances give no reason to suppose Williams misrepresent- ed Evans' involvement (because the state- ment was spontaneous and against his penal interest). The Dutton opinion suggests that an equally important reason for admis- sion of the hearsay was that cross examina- tion raised serious doubt as to whether any conversation could have occurred at all between Williams and Shaw, eye witnesses to the murder testified at the trial, and Shaw's testimony was "of peripheral signif- icance at most". 27 L.Ed.2d at p.226. The admissibility of the hearsay statement seems to be justified primarily on the basis that it was harmless error and was not "in any sense crucial or devastating". Id. at p.226. The four "Dutton" factors are specific factual circumstances of the case, but do not strongly establish a general basis for testing the reliability of hearsay. This explains the puzzling inclusion of the unlikely circumstance that the statement "contains no assertion of fact". The first seven Ryan factors are no better established as determinative factors to test the reliability of child hearsay. They are found in footnote 10 of Alvarez, supra. and are merely a listing of factors found in other unrelated cases. In Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) the Supreme Court established the threshold of trust- worthiness which must be overcome to admit child hearsay. Wright specifically consid- ered whether admission of hearsay state- ments made by a child declarant to an examining pediatrician violated the defend- ant's rights under the Confrontation Clause of the Sixth Amendment. Reviewing earlier Supreme Court decisions, the opinion notes that hearsay is presumptively unreliable and inadmissible for Confrontation Clause purposes unless the State, as proponent of the evidence, establishes that the state- ment bears adequate indicia of reliability. Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evi- dence must be excluded, at least ab- sent a showing of particularized guar- antees of trustworthiness. Wright, 111 L.Ed.2d at p.652. The requirements of the Confrontation Clause are satisfied only if the testimony is so trustworthy that cross-examination of the declarant would be of marginal utility. In other words, if the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross examination would be of marginal utility, then the hearsay rule does not bar admission of the statement at trial. Wright, 111 L.Ed.2d at p.655. ...evidence possessing "particularized guarantees of trustworthiness" must be at least as reliable as evidence ad- mitted under a firmly rooted hearsay exception, [citing Roberts v. Ohio], we think that evidence admitted under the former requirement must similarly be so trustworthy that adversarial testing would add little to its reli- ability. [citing Lee v. Illinois]... Thus, unless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confronta- tion Clause requires exclusion of the out-of-court statement. Wright, 111 L.Ed.2d at p.656. Wright referred to factors noted in state and federal decisions that properly related to the reliability of statements by children in child sexual abuse cases, including the following: spontaneity and consistent repetition; mental state of the declarant; use of terminology unexpected of a child of similar age; and, lack of motive to fabricate. These factors are, of course, not exclusive, and courts have consider- able leeway in their consideration of appropriate factors. We therefore decline to endorse a mechanical test for determining "particularized guar- antees of trustworthiness" under the Clause. Rather, the unifying principle is that these factors relate to whet- her the child declarant was particu- larly likely to be telling the truth when the statement was made. Wright, 111 L.Ed.2d at p.656. Wright specifically holds that other evidence (the results of a physical exam of the child suggesting that sexual abuse had occurred) corroborating the truth of the hearsay statement, could not be used to establish particularized guarantees of trustworthiness since this would "permit admission of a presumptively unreliable statement by bootstrapping on the trustwor- thiness of other evidence at trial". Id. at p.657. Hearsay evidence must be shown to be reliable "by virtue of its inherent trustworthiness, not by reference to other evidence at trial." Id. at p.657. Details of the excluded hearsay state- ments in Wright are instructive. The child was interviewed by a pediatrician who after asking preliminary questions then specifi- cally asked if the child had sexual contact with the suspect. Wright characterizes this as a suggestive manner in conducting the interview and found "no special reason for supposing that the incriminating state- ments were particularly trustworthy." However, another statement made by the child to the pediatrician was volunteered and spontaneous. The Supreme Court exclud- ed that statement as well, with the follow- ing comment. ...we note that it is possible that "[i]f there is evidence of prior in- terrogation, prompting or manipulation by adults, spontaneity may be an inac- curate indicator of trustworthiness." Moreover, the statement was not made under circumstances of reliability comparable to those required, for example, for the admission of excited utterances or statements made for purposes of medical diagnosis or treatment. Given the presumption of inadmissibility accorded accusatory hearsay statements not admitted pursu- ant to a firmly rooted hearsay excep- tion, we agree with the court below that the State has failed to show that the younger daughter's incriminating statements to the pediatrician pos- sessed sufficient "particularized guarantees of trustworthiness" under the Confrontation Clause to overcome that presumption. Wright, at p.660 (citations omitted). Wright clearly requires that the factor of spontaneity be comparable to excited utter- ance statements to establish the requisite particularized guarantee of trustworthi- ness. Recent cases, law review articles and scientific studies have suggested factors which have relevance to the reliability of hearsay statements of children. The follow- ing factors enumerated in Wright, supra. 111 L.Ed.2d at p.656 "properly relate to whether hearsay statements made by a child in child sexual abuse cases are reliable": (1) spontaneity and consistent repetition; (2) mental state of the declarant; (3) use of terminology unexpected of a child of similar age; and (4) lack of motive to fabricate. The third factor is confusing since in cases of fabrication or coaching a child would be expected to adopt language used by an adult and therefore unexpected terminology would suggest unreliability. State v. Sorenson, 421 N.W. 2d 77,85 (Wis. 1988), cited by Wright in support of that factor indicates that unexpected terminolo- gy refers to unexpected sexual knowledge. The Sorenson court observed: "[T]he content of the statement itself should be exam- ined...[to see] whether the statement reveals a knowledge of matters not ordi- narily attributable to a child of similar age." An extensive set of criteria for estab- lishing particularized guarantees of trust- worthiness of child hearsay has been pro- posed by Professor Lucy S. McGough, Vinson and Elkins professor of law at Louisiana State University, (reported at 35 Arizona Law Review 927, 978 (1993)): (1) the age and the maturity of the child demonstrates that he has the capacity to accurately perceive the events or identify the person in ques- tion; (2) the duration, nature and other relevant circumstances of the child's reported experience demonstrate that he had an adequate opportunity to form an accurate impression of the events or identity in question; (3) other evidence confirms that the child had the opportunity to experi- ence that which he reports; (4) the interval between the experi- ence and its report, the apparent stimulus for the child's report, in- cluding whether the report was initi- ated by the child or was instead prompted by questioning, and other relevant circumstances surrounding the giving of the hearsay demonstrate that the report was the voluntary and inde- pendent act of the child; (5) the relationship between the child and the person to whom he reported discloses no apparent motive by the listener to fabricate the child's report, to induce its making, or to distort its content; (6) the relationship between the child and any person adversely affected by the report discloses no apparent mo- tive for the child to fabricate the report or to distort any actual expe- rience; (7) the content of the report, includ- ing its language and expression are appropriate to the child's age, matu- rity and experience, and demonstrate that the report was the product of a child's perceptions and not that of the listener; and (8) there are no material variations in the child's reported account which have subsequently occurred which cast doubt upon the accuracy of the origi- nal hearsay declaration. Conclusion: Sensational, but very controver- sial child abuse prosecutions have stimulated extensive research focusing on the reliability and suggestibility of child witnesses. The research indicates not only that suggestive interviewing methods can elicit inaccurate and false reports but that children may adopt the interviewer's line of questioning and bias and thereafter refuse to accept that the event never happened. Thus the research has a profound impact on the trustworthi- ness and reliability of children's testimo- ny, since it appears that improper or overzealous questioning may irrevocably taint a child's testimony. Confirmatory bias is the major mecha- nism that drives the intensity and number of suggestive techniques used.... It is only a matter of time before the ... interviewer will elicit information consistent with his bi- as.... initial tentative assents have a way of developing over a period of time into fully embellished details, contained within a coherent narrative structure. When this happens, experts do not seem able to discriminate then from narratives about true events. The children can be very convincing, not only to experts but to the chil- dren themselves, who frequently refuse to accept debriefing about their fal- sity! Ceci and Bruck, Id. at p.296. Where small children are involved, the risk of tainted testimony may be the most important consideration in evaluating the reliability and trustworthiness of their testimony. Assessment of trustworthiness of these statements must take this into account.[fn. 6] Respectfully submitted, _______/s/____________ Gene M. Grantham ========================================== FOOTNOTES 1. In United States v. Rouse, 111 F.3d 561, 576-7 (1997) the following conclusions are distilled from the research literature: 1) Young children are particularly vulnera- ble to coaching and leading questions; 2) children will attempt to make answers consistent with interview bias of an au- thority figure interviewer; 3) repeated questioning often results in inaccurate reports; 4) younger children are more susceptible to suggestibility than older children; 5) the use of anatomical dolls or sexually explicit materials will not neces- sarily provide reliable evidence 6) chil- dren sometimes lie when the motivational structure is tilted toward lying; 7)peer pressure or interaction with other children effects the accuracy of reporting. 2. Younts notes: "After examining the studies conducted on children's suggest- ibility, Ceci's approach appears to be the most defensible and free from advo- cacy-tainted research." 41 Duke Law Jour- nal at p.722. 3. In one study, a mythical character named "Sam Stone" visited groups of pre- school children for two minutes. The children were subsequently interviewed, including questions about events which had not occurred, concerning dropping a book or spilling something on a teddy bear. A control group was compared to a group of children who had been repeatedly told prior to his visit about Sam Stone's clumsy behavior. Depending upon the sug- gestiveness of the interviews, as many as 72% of the children incorrectly stated that Sam Stone had done things to the book or the teddy bear. Videotapes of the final interviews of the children were shown to 1,000 researchers and clinicians (psychiatrists and psychologists) who were asked to judge which events had ac- tually occurred as well as to rate each child's credibility. 4. "As a rule, the least accurate chil- dren were considered to be the most accurate by experts. This shows how difficult it is, even for trained professionals, to separate fact from fiction when the children have been repeatedly interviewed in a sugges- tive manner, especially when the in- terviews have been accompanied with congruent stereotypes." Ceci and Huffman, Id. at p.951. 4. The Stange opinion's reasoning for disregarding this factor seems to be hig- hly result oriented, noting that this factor will nearly always weigh against admission of child hearsay. 5. Although Madison thoroughly discusses the issue of admissibility of expert tes- timony at trial concerning "recantation phenomenon", the only basis for holding that recantation did not demonstrate un- reliability of contrary out of court hea- rsay is that "the trial court is vested with considerable discretion in evaluat- ing indicia of reliability". Madison at p.759. 6. Amicus suggests the following fac- tors in assessing particularized guaran- tees of trustworthiness of child hearsay, based upon the foregoing case law and survey of psychological research. Idaho v. Wright enumerates several fac- tors: (1) spontaneity comparable to an excited utterance. It is relevant whether the child initiated the report and wheth- er the child or the interviewer first introduced sexual content into the inter- view; (2) constant repetition and lack of material variance in the report; (3) con- tent of the report includes unexpected sexual knowledge in terminology appropri- ate to the age of the child; (4) lack of motive to fabricate; (5) mental state of the declarant. The psychological re- search suggests two other important fac- tors: (6) the report is not sufficiently reliable where there is evidence of con- firmatory bias by the interviewer, re- peated questioning, or other suggestive interviewing techniques such as reward, praise or use of dolls with genitalia; and (7) a recording or verbatim report of interviews is an important safeguard for assessment of reliability and trustwor- thiness of the statement.