In child sex abuse cases, emotions run extremely high. In a recent trial I defended in Collin County, Texas, a 4 year old child made an "outcry" to her mother the night of alleged offense, but the next day, in a forensic interview, denied she was ever abused. Two days later, at the insistence of the mother, the child was reinterviewed and, after careful prompting and leading questions, accused my client of sex abuse.
The danger of such evidence is that the child's testimony then (and later) could be forever colored or "implanted" by improper interviewing techniques. The New Jersey Supreme Court in State v. Michaels, 642 A.2d 1372 (N.J. 1994) acknowledged this problem. In Michaels, a daycare worker was convicted of sex abuse based in large part on very leading and inappropriate questioning by the examiner of very young children:
In Michaels, the New Jersey court recognized that "the use of 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." Id. at 1379. The court stated that the concern with the reliability of statements resulting from suggestive or coercive interview techniques 1 implicates "principles of due process." Id. at 1380. The court placed the initial burden to trigger a pretrial taint hearing on the defendant, who must make a showing of "some evidence" that the victim's statements were the product of suggestive or coercive interview techniques. Once the defendant establishes sufficient evidence of unreliability of statements at the pretrial hearing, the burden shifts to the state to prove reliability of proffered statements and testimony by clear and convincing evidence. Id. at 1383.
Johnson v. State, 2004 Tex. App. LEXIS 10133 (Tex.App.-Waco 2004). In the case we tried, we argued that even though the Michaels' test has not been adopted in Texas, there was enough evidence to require a "taint" hearing. The judge, to his credit, indicated that while he did not think the transcripts showed that there was enough improper questioning to suppress the testimony of the child, agreed to let us make a record.
The following day, we called our own forensic psychologist who indicated that, based on the foregoing, "some evidence" did exist that the statements were the product of suggestive or coercive interview techniques. The judge unexpectedly held that we had met our burden under Michaels, and required the State to call their examiner to prove the reliability of the proffered statements. At that point, we was able to cross the examiner and had, in this case, something to talk about. Following this, the State offered a plea to a deferred adjudication to a much reduced sentence (without sex offender registation), which the client accepted.
