On 12 June 1998, Judge Isaac Borenstein of Middlesex Superior Court issued an order granting Cheryl Amirault LeFave a new trial in the notorious Fells Acres day-care ritual abuse case.

You can find more background on the Fells Acres case at this site:
felpress1.html#summary

Actual text of the 140-page opinion

Page numbers refer to Judge Borenstein's 140-page manuscript. Photocopies are available for $70 at Middlesex Superior Court in East Cambridge MA.

Most of the words in the outline below were taken directly from Judge Borenstein's manuscript. Part of it was compiled courtesy of Edward J. Collins, Esq. Additions are in square brackets [].

Contents

Introduction, p. 1

I. Procedural History, p. 3

II. Summary of Finding and Rulings, p. 4

III. Findings of Fact, p. 8

A. The Expert Witnesses, p. 9
B. The Newly Discovered Evidence, p. 12

[1] Interviewer Bias, p. 13

[a] [Suggestive questioning techniques], p. 13
1 Interviews with Adults of High Status, p. 14
2 Stereotype Induction, p. 15
3 Use of Leading Questions, p. 15
4 Pretending, Speculation, and Fantasy, p. 16
5 Repetitive Questioning, p. 16
6 Repeated Interviews,, p. 17
7 Source Monitoring Problem, p. 17
8 Use of Anatomically Detailed Dolls and Drawings, p. 18
9 Emotional Tone of the Interview, p. 18
10 Use of Rewards, p. 19
11 Peer Pressure, p. 19

[b] [Suggestive Interviewing Techniques Used in Combination], p. 19

[2] [Effect of Interviewer Bias on This Case], p. 20
[3] [Lack of Physical Evidence and Corroboration], p. 23

C. The Child Witnesses, p. 26
1. [Child Witness] "JO", p. 27
[a] Disclosure History, p. 28
[b] The Susan Kelley Interview, p. 33

[1] Interviewer Bias, p. 33

[A] Suggestive interviewing techniques, p. 33

1. Theme of Helping, p. 33
2. Peer Pressure, p. 34
3. Repetitive Questioning, p. 34
4. Anatomical Dolls and Drawings, and, p. 37
5. Pretending/Speculation/Fantasy, p. 37
6. Negative Atmosphere, p. 38

[c] JO's First Disclosure, p. 38
[d] Trial testimony, p. 39
[e] Behavioral Symptoms, p. 41
[f] Physical Symptoms, p. 42
[g] Other Factors Bearing on Behavior, p. 42

2. [Child Witness] "JB", p. 43
[a] Disclosure History, p. 45
[b] The First Susan Kelley Interview, p. 47

[1] Interviewer Bias, p. 48

[A] [suggestive interviewing techiques], p. 49

1. Theme of Helping, p. 49
2. Peer Pressure, p. 49
3. Repetitive Questioning, p. 50
4. Anatomical Dolls and Drawings, p. 51
5. Pretending/Speculation/Fantasy, p. 51
6. Negative Atmosphere, p. 52
7. Leading Questions/Misinformation, p. 53
8. Stereotype Induction, p. 53
9. Trying to Please, p. 53
10. Cross-contamination, p. 54

[c] JB's First Disclosure, p. 55
[d] The Second Susan Kelley Interview, p. 56

[1] [Biased interview techniques], p. 57

[A] Negative Atmosphere, p. 57
[B] Peer Pressure and Cross-Contamination, p. 57
[C] Leading Questions, p. 58

[e] JB's Testimony at Gerald Amirault's Trial, p. 59
[f] [Lefave] Trial Testimony, p. 60
[g] Behavioral Symptoms, p. 61
[h] Physical symptoms, p. 63
[i] Other Factors Bearing on Behavior, p. 64

3. [Child Witness] "MT", p. 65
[a] Disclosure History, p. 67
[b] The Susan Kelley Interviews, p. 73

[1] Interviewer Bias, p. 74

[A] [Suggestive questioning techniques], p. 74

1. Use of Rewards, p. 74
2. Peer Pressure, p. 75
3. Repetitive Questioning, p. 75
4. Pretending/Speculation/Fantasy, p. 75
5. Cross-contamination, p. 76
6. Use of Anatomically Detailed Dolls, p. 76
7. Leading Questions, p. 76

[c] MT's testimony at Gerald Amirault's Trial, p. 77
[d] Trial Testimony at This Defendant's Trial, p. 77
[e] Behavioral Symptoms, p. 78
[f] Physical Symptoms, p. 79
[g] Other Factors Bearing on Behavior, p. 80

4. [Child Witness] "BL", p. 81
[a] Disclosure History, p. 82
[b] BL's First Disclosure, p. 86
[c] [Susan Kelley Interview], p. 88

[1] Interviewer Bias, p. 88

[A] Suggestive interviewing techniques, p. 88

1. Repetitive Questioning, p. 88
2. Anatomical Dolls and Drawings, p. 89
3. Leading Questions, p. 89
4. Negative Atmosphere, p. 90
5. Cross-contamination, p. 90

[2] [BL's disclosures at Kelley interview], p. 90

[d] [BL's further disclosures], p. 91
[e] Trial testimony, p. 92
[f] Behavioral Symptoms, p. 94
[g] Physical symptoms, p. 94
[h] Other Factors Bearing on Behavior, p. 94

IV. New Trial Based Upon Newly Discovered Evidence Standard, p. 95

1. Prong One: "Newly Discovered" Standard, p. 97

2. Prong Two: Is there a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial?, p. 100

VI. [NJ] State v. Michaels Provides a Relevant Framework for This Court's Decision, p. 108

A. Adoption of Michaels in Massachusetts, p. 111
B. Application of Michaels To This Case, p. 112
[C.] [Pre-trial Taint Hearings, Corroboration, and Due Process], p. 115
D. The Use of a Pre-trial Taint Hearing Is Not Barred by the Doctrine of Retroactivity, p. 119

A. Waiver, p. 128,

1. The Defendant's Right to Raise the Issue of Newly Discovered Evidence in a Subsequent Motion for a New Trial Was Preserved on June 2, 1995, p. 130

2. The Defendant Could Not Have Raised the Issue of Newly Discovered Evidence in a Prior Proceeding, p. 131

3. Even If the Defendant's Right to Raise the Claim of Newly Discovered Evidence Has Been Waived, this Court, in Its Discretion Will Address the Issue If There Is a "Substantial Risk of a Miscarriage of Justice.", p. 132

B. Mootness, p. 134

IX. Order [for a New Trial],p. 140

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