Judge Borenstein's decision-- Part VI, Section D

Use of Pre-trial Taint Hearing not Barred as Retroactive

12 Jun 98

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Scroll back to Part VI, "NJ Kelly Michaels Case Provides Relevant Framework".

D. The Use of a Pre trial Taint Hearing is Not Barred by the Doctrine of Retroactivity.

The Commonwealth argues that the defendant's motion should be denied, and that this Court should not adopt the principles of Michaels, because doing so would

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violate the of the rules of retroactivity. See Commonwealth v. Bray, 407 Mass. 296, 297-303 (1990), adopting Teague v. Lane, 489 U.S. 288, 300-316 (1989).//Note 20// This Court disagrees with the government's position. First, the rules of retroactivity do not apply to this case because the exclusion of unreliable evidence from trial, after a pretrial hearing, is not a new rule of law. Second, even if the rules of retroactivity apply, this case would fit into one of two exceptions under those rules because the issues in this motion are "central to an accurate determination of innocence or guilt." Bray, 407 Mass. at 303, quoting Teague, 489 U.S. at 313.

1. The Defendant's Motion Does Not Require This Court to Apply a New Law Retroactively. Historically Courts have Excluded Unreliable Testimony at Trial, After a Pretrial Hearing, Because to do Otherwise Would Violate a Defendant's Due Process Rights.

The Commonwealth contends that this Court is attempting to apply Michaels, a decision of the Supreme Court of New Jersey, which would violate the rules of retroactivity. This Court is not using the Michaels decision to apply a new rule of law retroactively. Requiring a pretrial taint hearing regarding the reliability of children's testimony about alleged sexual abuse is not new law. This Court is merely complying with the long tradition in Massachusetts jurisprudence which requires that all

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unreliable testimony be excluded from trial. Courts historically have excluded unreliable testimony because to allow such testimony at trial is a violation of due process. See LaFrance v. Bohlinger, 356 F. Supp. 198, 205 (D. Mass. 1973), affirmed 499 F.2d 29 (1st Cir. 1979) cert. denied sub nom., Meachum v. LaFrance, 419 U.S. 1080 (1974). Massachusetts courts have applied this principle in a number of different contexts.

First, courts have used this principle to exclude unreliable evidence in cases dealing with suggestive identification procedures. See Commonwealth v. Johnson, 420 Mass. 458, 463 (1995). The rule of per se exclusion of pretrial identifications places the initial burden on the defendant to demonstrate by a preponderance of the evidence that the "witness was subjected. . . to a confrontation that was unnecessarily suggestive and thus offensive to due process." Johnson, 420 Mass. at 463, quoting Botelho, 369 Mass. 860, 865-869. If the defendant meets this burden then the prosecution is barred from introducing evidence of the pretrial identification. Johnson, 420 Mass. at 463. The prosecution may, however, introduce other identifications if it can demonstrate by clear and convincing evidence that any later identification has an independent source. Johnson, 420 Mass. at 463, quoting Botelho, 369 Mass. at 868.

Second, courts have used this principle in cases dealing with hypnotically aided testimony. See Commonwealth v. Kater(I), 388 Mass. 519, 528-530 (1983). In Kater(I), the Supreme Judicial Court held that hypnotically aided testimony is not

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admissible because it is unreliable. Kater(I), 388 Mass. at 531. Moreover, the Court held that a witness who has been hypnotized may testify from his or her pre-hypnotic memory, but the party seeking to introduce this evidence bears the burden of demonstrating that the testimony has not been tainted by the hypnosis. Kater(I), 388 Mass. at 529-531.//Note 21//

A third area where these types of pretrial hearings are conducted by the courts, is in the context of determining the competency of a child witness to testify at trial. The test for determining the competency of a child witness is (1) whether the child witness has the ability or capacity to "observe, remember, and give expression" to the events about which he or she is testifying; and (2) whether the child has sufficient understanding to comprehend the difference between truth and falsehood, understands his or her obligation to tell the truth, and that he or she may be punished for not telling the truth. Commonwealth v. Tatisos, 238 Mass. 322, 325- 326 (1921)(citations omitted). In order for the child witness to testify, the trial judge must determine competency at a hearing prior to trial. Commonwealth v. Lamontane, 42 Mass. App. Ct. 213, 216 (1997); Commonwealth v. Brusgulis, 398 Mass. 325, 331 (1986).//Note 22//

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The fourth example of how Massachusetts courts have regularly employed these procedures is demonstrated by the Court's interpretation of the statute which deals with an analogous concept: the admissibility of out-of-court statements made by children describing sexual contact. G.L. c. 233, 81. This statute requires that before an out-of-court statement of a child (under the age of ten) describing an act of sexual contact is offered in court the judge must rule, at a pretrial hearing, whether the child is unavailable and that the statement is reliable. G.L.c. 233, 81. In Colin C., 419 Mass. 54, the Court held that in order to determine the reliability of an out-of-court statement of a child under G.L.c. 233, 81, the trial judge must hold a separate hearing on the record regarding the reliability of the out-of-court statement by the child. Colin, 419 Mass. at 65.

Finally, the Massachusetts Court of Appeals on two separate occasions has addressed the effects of suggestive interviews and subsequent testimony in cases of sexual abuse. In Allen, the Court held that the defendant's offer of proof did not meet the threshold burden required by Michaels to trigger a pretrial taint hearing. Allen, 40 Mass. App. Ct at 462. The Appeals Court in a footnote discussed what requirements meet this burden: "the absence of spontaneous recall, interviewer bias, repeated leading questions, multiple interviews, incessant questioning, vilification of the defendant, ongoing contact with peers and references to their statements, and use of threats, bribes and cajoling. . ." Allen, 40 Mass. App. Ct. at 462 n. 8, quoting

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Michaels, 136 N.J. at 321. According to the requirements set forth by Michaels, and adopted by the Supreme Judicial Court in Allen, the defendant in this case would clearly be entitled to a pretrial taint hearing in order to determine if the children's testimony was reliable. In the case against this defendant, none of the children made spontaneous allegations of sexual abuse. Kelley used highly improper leading questions, offered bribes and rewards, referred to statements made by other children as a means of getting others to talk. All of the children were subjected to multiple interviews and incessant questioning, parental pressures, and wide ranging media reports. See Allen, Mass App. Ct. 462 n. 8. Kelley, the parents and others involved in the investigation refused to take "no" for an answer. Certainly, with all of these factors glaringly present in the investigation of the defendant, in light of the newly discovered, the defendant was denied due process and is entitled to a new trial.

The second case in which the Appeals Court examined the effects of suggestive and coercive interviews on children's statements was recently affirmed by the Supreme Judicial Court. In Pare, the Appeals Court "explicitly acknowledg[ed] that 'leading or coercive or suggestive questioning and interview techniques can distort a child's memory.'" Pare, 43 Mass. App. Ct. at 576, quoting Allen, 40 Mass. App. Ct. at 462. Moreover, the Court stated that it was a "well-established 'reality [that] children [are] susceptibl[e] to suggestive interview practices.'" Pare, 43 Mass. App. Ct. at 576, quoting United States v. Rouse, 100 F.3d. 560, 572-574 (8th Cir. 1996). In Pare, the issue before the Court was whether the defendant should be granted a new

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trial, so that the defendant and the Court would then have the opportunity to review the privileged records of the victim. Pare, 427 Mass. at 427-428. After this review, the Court would determine whether the accusations made by the victim were unreliable because they were the product of suggestive interviews. Pare, 427 Mass. at 429-431. The Supreme Judicial Court affirmed the Appeals Court's ruling that the records were "presumptively relevant. . . and to den[y] access [to the records] created a reasonable, if not substantial, risk of an erroneous conviction." Pare, 427 Mass. at 431. Thus, the Supreme Judicial Court held that the defendant was entitled to a new trial because the suggestive or coercive techniques used to interview the child-victim were relevant to the reliability of the evaluation made by the team of investigators, and to the victim's ability to accurately perceive, remember and articulate the incidents of abuse as well as reveal any possible motivation to lie. See Pare, 427 Mass. at 431. Moreover, the Supreme Judicial Court held that these issues were directly related to the credibility of the child-victim, which was a crucial issue for the jury at trial. Pare, 427 Mass. at 431.

Based upon this Commonwealth's long history of excluding unreliable testimony and in light of the two recent decisions, Allen and Pare, this Court finds that this motion for a new trial does not require this Court to apply a new rule of law retroactively. Instead, the defendant through her motion asks this Court to apply traditional procedures for the exclusion of unreliable evidence, to the newly discovered evidence regarding the suggestibility of children in sexual abuse cases.

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This Court's use of the reasoning in Michaels merely provides a useful framework for the courts' role as the evidentiary gatekeeper.

2. Allowing This Motion is "Central to an Accurate Determination of Innocence or Guilt," and thus the Rules of Retroactivity Do Not Apply.


In Bray, the Supreme Judicial Court adopted the new rules regarding retroactivity as set forth by the Supreme Court of the United States in Teague.//Note 24// Bray, 407 Mass. at 299-303. In Teague, the Court announced the new rule of retroactivity for cases on collateral review: ". . .new constitutional rules should not be applied retroactively to criminal cases on collateral review unless they fall within either of two very limited exceptions." Bray, 407 Mass. at 300, quoting Teague, 489 U.S. at 311. "The first exception [is] that a new rule should be applied retroactively if it places 'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Bray, 407 Mass. at 300, quoting Teague, 489 U.S. at 311, quoting Mackey v. United States, 401 U.S. 667, 691 (1971). "The second exception is that a new rule should be applied retroactively if not to do so would 'undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction.'" Bray, 407 Mass. at 303, quoting Teague, 489 Mass. at 315. The Supreme Judicial Court held that in order for the second exception to apply, the new rule must be

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"central to an accurate determination of innocence or guilt" in a "due process" sense. Bray, 407 Mass. at 303; Teague, 489 U.S. at 315.//Note 25//

The facts here present a case which fits squarely into the second exception to the rules of retroactivity. The coercive techniques employed during the investigation and the suggestive interviews of the children, in this case are crucial to an accurate determination of innocence or guilt. As discussed above, when highly suggestive or coercive interviewing techniques are used on children to investigate allegations of alleged child sexual abuse there is a significant risk that the children's statements and subsequent testimony at trial will be unreliable. See Michaels, 136 N.J. at 308-310.. Dr. Bruck's findings demonstrate suggestive and coercive interviewing techniques can distort a child's memory and forever taint their testimony. The techniques used to interview the children in this case were, as the Commonwealth now concedes, suggestive and coercive of the type which pose real dangers to the reliability of the children's testimony and which would not be used today. This Court has also cited in this opinion other instances of improper procedures including the role of the police and DSS during the investigation and/or questioning of the parents and children, as well as parental influences on them. With the children's testimony, the accuracy of the defendant's conviction becomes highly questionable; without it there may well be no case against her.

This Court finds that the defendant's claims are "central to the determination

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of innocence or guilt"; thus, even if this Court had found that excluding the tainted testimony of the children because it is unreliable was a new rule of law, due process and fundamental fairness mandate that any new rule of law be applied retroactively in this case.

In an analogous case, Commonwealth v. Figueroa, 413 Mass. 193 (1992), the Supreme Judicial Court held that in a sexual assault case, the defendant had the right to examine the privileged mental health records of a mentally impaired victim because the contents of the records may cast doubt on the charge itself. Figueroa, 413 Mass. at 203. Moreover, the Court held that the records may reveal that the victim may not be able to "perceive, remember and articulate the alleged events." Id. In allowing the defendant to examine the privileged records, the Court applied the rule announced in Commonwealth v. Stockhammer, 409 Mass. 867 (1991), retroactively. Figueroa, 413 Mass. at 202-203. The evidence in this case is similar to that in Figueroa in the sense that in both cases the new evidence reveals serious problems with the alleged victims' statements and testimony concerning sexual abuse, which in turn casts serious doubt as to the accuracy of the prior convictions.

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