Judge Borenstein's decision-- Part V

Newly-Discovered Evidence Admissible as Expert Testimony

12 Jun 98

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In 1994, adopting the reasoning of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Judicial Court held that expert evidence is admissible if it is based on a scientific theory or process that is reliable. Commonwealth v. Lanigan, 419 Mass. 15, 24-26 (1994). To determine whether a scientific theory or process is reliable, this court must consider whether the theory or process has been tested, published, reviewed by scholars in the field, or attained general acceptance in the relevant scientific community. Id. at 25. "The overarching

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issue is the scientific validity - and thus the evidentiary relevance and reliability - of the principles that underlies a proposed submission." Id.

Prior to adopting Daubert, the Court employed the "general acceptance" test, established in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), to determine the admissibility of scientific evidence. Commonwealth v. Curnin, 409 Mass. 218, 222 (1991). By adopting Daubert, the Court modified "general acceptance" from being the "sole factor" in determining the admissibility of scientific evidence to a "relevant factor" in that determination. Lanigan, 419 Mass. at 25. Notwithstanding that modification, the Court noted, "We suspect that the general acceptance in the relevant scientific community will continue to be the significant, and often the only, issue." Id. at 26. This suspicion is not unwarranted as no natural or social scientific community, committed to the rigor of scholarship, would widely accept a theory that has not been tested, published, or reviewed by members of that community.

Accordingly, to admit Dr. Bruck's testimony regarding suggestive interviewing techniques, this court must decide whether the process on which her testimony relies is scientifically valid. Lanigan, 419 Mass. at 25. Dr. Bruck's work on suggestive interviewing techniques and children's suggestibility satisfies the reliability test. Her theory has not only been published in accepted scholarly journals, but has passed the scrutiny of peer review, gained general acceptance in the field to which it belongs, and lauded as an objective and effective method of investigating sexual abuse claims

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involving children. Id. at 25. Dr. Bruck's testimony would be admitted to assist the jurors in understanding the interviewing and related investigative techniques employed in this case, including whether these unfairly impacted the reliability of the children's testimony, not to comment on the children's credibility. See Commonwealth v. Federico, 425 Mass. 844, 849-850 (1997) (prohibiting expert testimony where the testimony refers or compares a child to general characteristics, or where the testimony opines the truthfulness of the child's allegations); Commonwealth v. Trowbridge, 419 Mass. 750, 759 (1995) (same); Commonwealth v. Colin C., 419 Mass. 54, 60 (1994) (same).

Dr. Bruck is eminently qualified to testify as an expert. She is an Associate Professor in the Psychology and Pediatrics Departments at McGill University, Montreal, Canada. She specializes in developmental psychology, focusing particularly on children's language and memory development. She has been teaching at McGill for over 25 years. Her 19-page curriculum vitae indicates that, amongst other contributions and accomplishments, she has published 60 articles in peer review publications, and 16 book chapters. She has also presented 43 peer reviewed papers at professional conferences, and 51 invited addresses.

Dr. Bruck has testified as an expert witness in three cases and submitted amicus curie briefs in two cases, all of which presented facts and issues similar to those present here. In the amicus brief for a New Jersey case, State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994), more than 40 developmental and cognitive

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psychologists in the United States and Canada signed the brief endorsing her position on interviewing and investigative techniques and children's suggestibility. Massachusetts Courts have recognized the dangers of exposing children to suggestive interviewing and improper investigative techniques, see Commonwealth v. Pare, 43 Mass. App. Ct. 566, 576 (1997), aff'd 427 Mass. 427 (1998), and have cited Dr. Bruck as an authority in this area. See Amirault, 424 Mass. 618, 647 (1997); Commonwealth v. Allen, 40 Mass. App. Ct. 458, 462 n. 6 (1996).

Dr. Bruck and Dr. Stephen Ceci's work on the suggestibility of children and the negative impact of suggestive interviewing techniques has been published in peer review journals, and in a book. In 1994, they received the Robert Chin Memorial Award for the most outstanding article on child abuse for an publication entitled "Suggestibility of the Child Witness: An Historical Review" 113 Psychol. Bull. 403 (1993).

Dr. Schetky//Note 11// testified that Dr. Bruck's theory on children's suggestibility and improper interviewing techniques has been widely accepted by scholars in the field. Amongst her impressive work and qualifications, in 1988, Dr. Schetky helped draft protocols and guidelines for interviewing allegedly molested children for the American Academy of Child and Adolescent Psychiatry ("the Academy"). In 1997, when the Academy issued new interviewing parameters, she critiqued drafts of those parameters.

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According to Dr. Schetky, in the new interviewing parameters, the Academy highlighted Drs. Bruck and Ceci's, Jeopardy in the Courtroom, supra as an important source in the field, and as vital for establishing the parameters. The Academy also adopted Dr. Bruck's theory of narrative history as the most unbiased and effective method of interviewing children who are allegedly sexually abused. Amongst other things, the Academy is teaching all trainees the dangers of interviewer bias and other inappropriate techniques. Recently, Drs. Bruck and Ceci co-authored a chapter on children's suggestibility for the American Psychologist, which periodically publishes a special volume on child development.

In sum, because the process on which Dr. Bruck relied to make conclusions about suggestive interviewing techniques and children's suggestibility has been published, tested, and widely accepted, it is reliable. Since the process is reliable, any evidence deriving from that process is admissible. As such, Dr. Bruck's expert testimony is - and would have been - admissible to show that the interviewing and investigative techniques employed in this case were impermissibly suggestive, and that they had a negative impact on the reliability of the children's disclosures.

Scroll ahead to Part VI, "NJ Kelly Michaels Case as a Relevant Framework."

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