Judge Borenstein's decision-- Part IV

New Trial Based upon Newly-Discovered Evidence Standard

12 Jun 98

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Scroll back to Part III-C4, "Child Witness #4: BL".



A judge may grant a defendant's motion for a new trial if it appears that justice may not have been done. Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979). Commonwealth v. Stewart, 383 Mass. 253, 257 (1981) //Note 6//. A defendant seeking a new trial on the grounds of newly discovered evidence must establish both that the

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evidence is newly discovered and that it casts real doubt on the justice of the conviction. Commonwealth v. Grace, 397 Mass. 303, 305 (1986). It is enough that on a full and reasonable assessment of the trial record, the absent evidence would have played an important role in the jury's deliberations and conclusions, even though it is not certain that the evidence would have produced a verdict of not guilty. Commonwealth v. Tucceri, 412 Mass. 401, 414 (1992).

The strength or weakness of the Commonwealth's case at trial is also an important factor in assessing newly discovered evidence. Grace, 397 Mass. at 306; Commonwealth v. Bennett, 43 Mass. App. Ct. 154, 162 (1997). The evidence must carry a measure of strength in support of the defendant's position. Commonwealth v. Salvati, 420 Mass. 499, 506 (1995).

A motion for a new trial based on newly discovered evidence is addressed to the sound discretion of the trial judge, and will not be overturned for abuse of discretion unless it is manifestly unjust. Commonwealth v. Little, 384 Mass. 262, 268-269 (1981). See also Grace, 397 Mass. at 307 (conclusions of a motion judge on testimony presented in association with a new trial motion is accorded deference).

Accordingly, when determining whether to grant a new trial on the grounds of newly discovered evidence the court must undertake a two part inquiry: 1. Is the evidence newly discovered?, and 2. If so, then is there a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial?

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1. Prong One: "Newly Discovered" Standard

Evidence is newly discovered if it is unknown to and not reasonably discoverable by either the defendant or counsel at the time of trial. Grace, 397 Mass. at 306; Commonwealth v. Brown, 378 Mass. 165, 171-172 (1979); Commonwealth v. Markham, 10 Mass. App. Ct. 651, 653 (1980). Evidence is reasonably discoverable if a diligent search would have produced the evidence at the time of trial. Grace, 397 Mass. at 308. Newly discovered evidence that is cumulative of evidence admitted at the trial carries with it less weight than new evidence that is different in kind. Grace, 397 Mass. at 305-306. Defendants bear the burden of showing that the evidence was unknown to them or their counsel and not reasonably discoverable by either at the time of trial. Id. at 306.

The studies relied upon by Dr. Bruck, which form the basis for her expert testimony, are newly discovered.//Note 7// At trial in 1987, psychologists and psychiatrists were able to express concerns about impermissibly suggestive interviewing techniques, but they were unable to identify the dangerous impact these techniques would have upon the reliability of the testimony of the child witnesses, nor were they able to refer to the persuasive studies done since the trial. On more than one occasion, the Commonwealth exploited this weakness in the defendant's case to its own advantage;

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indeed, the government's theory throughout was that all one has to do is trust one's "common sense" about the children's allegations, and that there are no studies or literature to suggest otherwise. If anything, the prosecutors' position at trial underscores the materiality of the newly discovered evidence.

In its Opposition to Defendant's Motion to Dismiss or Grant Appropriate Relief Pursuant to Mass. R. Crim. P. 13(c), the Commonwealth argued:

    The defendant's memorandum and affidavit are replete with numerous opinions and conclusory statements not supported in any respect by a legitimate affidavit particularized to this case. They use terms such as "improper coaching" and "grossly improper interviewing techniques," but offer nothing to support the existence of these allegations much less the significance of them even if they were accurate. The defense is asking this Court to conduct a lengthy evidentiary hearing on an unsupported theory not recognized in the clinical or legal communities. (Ex. 33, 4-5)

At a pretrial hearing in 1986 before Justice Elizabeth J. Dolan, the Commonwealth successfully demonstrated that the proffered testimony of the defendant's expert, Dr. Daniel Schumann, on a "positive reinforcement loop theory", was not generally accepted within the scientific community.//Note
8// (Ex. 55, p. 108) The Commonwealth's argument focused on the paucity of hard data and scientific research supporting Dr. Schumann's opinion. (Ex. 55, pp. 100-101) Justice Dolan ruled that Dr. Schumann's positive reinforcement loop theory did not satisfy the standard for admitting expert testimony under Frye. He was not allowed to testify at

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trial as a result. Now, eleven years later, the Commonwealth wants this court to rule that testimony regarding the impact of coercive and suggestive interviewing techniques is not newly discovered, because it was available to the defendant at the time of trial. The Commonwealth's position in 1998 is inconsistent with its position in 1986, and with the facts surrounding this critical issue at the defendant's trial. The Commonwealth's argument rings hollow.

The Commonwealth also argues that this Court should deny the defendant's motion because research will always progress and new studies will always be conducted. Dr. Bruck's testimony, however, is not cumulative in nature. See Grace, 397 Mass. at 306. While this Court agrees with the general proposition that "more" research may not present sufficient grounds for a new trial, this is not such a case. Dr. Bruck's testimony is not simply "in addition to" or "better than" the testimony offered by the defendant's experts at trial in 1987, it is significantly different. The body of research upon which Dr. Bruck relies to support her testimony was conducted in direct response to a number of day care child sex abuse cases across the United States, such as the Fells Acres case. This research was designed to answer the unanswerable question posed by the Commonwealth at trial in 1987, namely: How could children come to speak of disturbing sexual acts if they did not suffer them? Today, in 1998, the defendant has the answer that was nonexistent in 1987; an answer that runs counter to common sense, making all the more critical the importance of the newly discovered evidence. I find that the evidence testified to by

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Dr. Bruck was not reasonably discoverable by the defendant or her counsel in 1987 and, therefore, the first prong of the newly discovered evidence standard is satisfied.

2. Prong Two: Is there a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial?

In addition to proving that evidence is newly discovered the defendant must also show that there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial. Commonwealth v. Figueroa, 422 Mass. 72, 79 (1996); Grace, 397 Mass. at 306; Markham, 10 Mass. App. Ct. 651, 654 (1980). Therefore, "evidence said to be new must not only be material and credible... but must carry a measure of strength in support of defendant's position." Commonwealth v. Scanlon, 412 Mass. 664, 679-680 (1992), quoting Grace, 397 Mass. at 305.

Without question, in the defendant's case, there is more than a substantial risk that the jury would have reached a different verdict had the evidence been admitted at trial. Dr. Bruck's compelling testimony goes to the heart of the prosecution's case: the reliability of the testimony of the child witnesses.//Note 9// Moreover, her testimony enables jurors who must evaluate children's testimony in child sex abuse cases to replace reliance upon their "common sense" only, with consideration of hard data and scientific evidence, unavailable in this defendant's trial, but now irrefutable. Dr.

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Bruck's testimony gives jurors the necessary tools to address such critical testimony. These are issues outside of the realm of a juror or Judge, without expert testimony. Had such evidence been presented at trial, it would have clearly undercut the Commonwealth's argument both pretrial and at the trial that the children were reliable witnesses. It would have been a powerful countervailing force to the Commonwealth's appeal for jurors to apply their "common sense" and personal experience in deciding the guilt or innocence of the defendant.//Note 10// This is particularly true here, where the evidence is overwhelming that there were impermissible interviewing and investigation techniques used throughout.

Without the children's testimony, the damaging evidence of the Commonwealth's last witness, a postal inspector, John Dunn, would not have been admissible. At trial, over strenuous objections by defense counsel, Inspector Dunn was permitted to hold photographs of children in pornographic poses and describe them to the jury. He described poses and props, such as pencils and thermometers, similar to those described by the child witnesses. (e g. Ex. 56, vol. 5/98-99; Ex. 2A-5, 2B-49-51) This testimony was admitted to show motive and to corroborate the

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testimony of the child witnesses. (Ex. 56 vol. 5/86, 10/150-151)

On direct appeal, the defendant challenged the admission of Dunn's testimony. The Supreme Judicial Court held that Dunn's testimony was relevant to suggest a motive for photographing the children in various poses: that they committed sexual abuse for the purpose of obtaining pornographic photographs to sell in an underground market. LeFave, 407 Mass. at 934. The evidence to support this theory of motive came from the children's testimony that they were photographed while naked and/or being sexually abused by the defendant and Violet Amirault. Id. None of these children ever said anything about being photographed until afterthey were victimized by inappropriate, suggestive interviews; the record contains overwhelming evidence of this, as the Court points out elsewhere in this opinion. Absent the children's testimony, there is no evidence to support this theory of motive, thereby creating a strong likelihood that the trial judge would have found Dunn's testimony to be more prejudicial than probative. See Commonwealth v. St. Germain, 381 Mass. 256, 271 (1980). Even with the children's testimony, there is a substantial likelihood the newly discovered evidence would have undermined it to such an extent that it would have weakened the probative value of Dunn's testimony, rendering it inadmissible. See id.

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Prosecutorial misstatements of fact made during the Commonwealth's closing argument, in the absence of the newly discovered evidence, served to aggravate the injustice that was done in this case. The prosecutor argued:

    There is not one shred of evidence, despite what the defense would like you to speculate on, in this case, that any parent, social workers, police officers ever suggested to these children the sexual acts that they disclosed to their parents. (Ex. 56, 10/89)

Either this prosecutor was ignorant of or chose to not view the videotapes of Kelley in action, ignored all of the other evidence of suggestive interviews and improper influences on the children, or assumed that it would be the task of the defendants' attorneys to correct the record, a job made all the more unlikely with the prosecution having the last word, and the absence of scientific studies and data to rebut these preposterous claims. Putting the Commonwealth's closing in the closing in a more favorable light, it is apparent the assistant district attorney also fell prey to the argument that "common sense" is all one needs when children such as these - subjected to incredible pressures - make allegations of sexual abuse. Understandably, if an experienced, well-intentioned prosecutor succumbs to such an argument, it is easy to see why a juror would. In fact, there was more than an abundance of evidence that several adults inappropriately and persistently suggested sexual acts to these children, beforethey made any disclosures. In the absence of the newly discovered evidence, such testimony was impossible to rebut. Although maintaining its opposition to the defendant's motion, a more candid prosecutorial view has recently led to the concession that there were inappropriate procedures used here,

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acknowledging the dangers that could result, and agreeing that they would not be used today.

A party seeking a new trial on the grounds of newly discovered evidence must overcome the court's interest in finality by showing both the importance and the newness of that evidence. Grace, 397 Mass. at 306. This Court recognizes that the Commonwealth will be put at a severe disadvantage by the allowance of the new trial motion; nevertheless, the ultimate, overriding inquiry before this Court is whether "justice may not have been done". See Commonwealth v. Meggs, 30 Mass. App. Ct. 111, 115 (1991). In this case, where the proof at trial was not overwhelmingly one-sided and the newly discovered evidence is significant and persuasive, it is clear to this Court that justice was not done.

Scroll ahead to Part V, "Newly-Discovered Evidence Admissible as Expert Testimony."

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