State v. Michaels: A New Jersey Supreme Court Prescription for the Rest of the Country

Karol L. Ross*

ABSTRACT: Procedures traditionally used by courts to admit testimony in child abuse cases are reviewed in terms of the law and the social science literature.  Current research indicates that suggestive and coercive interviews can lead a child to provide an account of an event that did not happen.  In recognition of this, the New Jersey Supreme Court in State v. Michaels addressed the question of the reliability of a child's testimony by establishing a pretrial taint hearing procedure.  It is proposed that this procedure be adopted by courts throughout the county.


The past several years have witnessed an alarming increase in reported cases of child sexual abuse.1  Confronted with this distressing trend, courts are struggling with the most effective way to admit the alleged abuse victim's testimony in a manner which protects the rights of both the alleged victim and the accused.  This article explores the various methodologies employed by courts in light of recent case law.

Traditionally, in cases dealing with child sexual abuse, the child's testimony has been admitted through an expert's testimony,2 through the child directly,3 or through closed circuit television or videotaping of the child testifying.4  In admitting the testimony of alleged child sexual abuse victims, courts attempt to balance two competing interests — preventing trauma for the child while protecting the constitutional rights of the accused to confront witnesses.

However, perhaps unique to the arena of child sexual abuse prosecutions and at the center of the dilemma, remains the question of whether a child's testimony is reliable enough to warrant admission in the first place.  Until recently, courts have chosen not to squarely grapple with this issue.  State v. Michaels is the first case that attempts to resolve the issue of the reliability of testimony of the alleged child abuse victim, thus filling a much needed void.5  This article discusses the interpretation and potential impact of Michaels.

Part I examines the procedures courts traditionally employ to admit testimony in child sexual abuse cases.  Part I also considers the psychological, social, and behavioral data on the suggestibility of children and the influence of these data on courts.  Part II examines the rationale behind the New Jersey Supreme Court's ruling in State v. Michaels and discusses the court's attempt to resolve the underlying question of reliability of a child's testimony in the context of sexual abuse litigation.6  Finally, Part III proposes that the rationale employed in Michaels be adopted by courts throughout the United States.

Part I.  The procedures courts traditionally employ to admit testimony in child sexual abuse cases

The Law

In cases where a witness testifies, unless challenged, the witness is generally presumed to be competent, rendering that testimony reliable.7  Underlying this presumption lies the theory that cross-examination will resolve any outstanding issues of reliability.  Witnesses must have "personal knowledge of the [subject] matter" of their testimony,8 and communicate this information effectively under oath.9  Doubts may be resolved through the process of impeachment.10  While this overly simplified scenario may apply to testimony requiring the testimony of adults, developmental research11 reveals that children testifying as witnesses do not fit easily into the mold our jurisprudence has adopted for adult witnesses.  In short, children cannot imply be considered small adults with the same capacities or capabilities for dealing with cross-examination and impeachment procedures.

Child advocates argue that the courtroom processes are emotionally damaging for these alleged child victims.12  However, advocates for those accused of child sexual abuse, i.e. defense attorneys, counter that constitutional guarantees are frequently discarded when children's statements go unchallenged.  They contend that alleged sexual abuse defendants are not merely on trial for the crime itself but are further vilified by the emotional hysteria frequently accompanying these kinds of trials.13

Most courts attempt to remedy this tension between protecting children and defendants' constitutional rights by regulating how such testimony is admitted.  Legal, psychological, and judicial commentators are polarized as to the most effective way to admit testimony in a manner that simultaneously safeguards rights for both of these groups and as a result, court rulings have been varied.14

As indicated, in many child sexual abuse cases, either the child testifies or an expert testifies in addition to the child or in lieu of the child.15  However, in recent years attacks on the reliability of children's testimony or the testimony of experts have increased.16  Some commentators believe that courts must take a more affirmative or aggressive position in prescreening the reliability of testimony before admitting it into evidence.17  They are concerned with the admission of expert testimony based solely on sexual abuse investigations.18   These commentators believe that children are susceptible to adult influences and may tender false allegations based on an adult interviewer's conscious or subconscious cues or misunderstanding of the events,19 based on a histrionic emotional response of a surrounding adult such as a parent,20 or based on some vindictiveness toward the accused by an adult in the child's life.21

Because of this confusion, there has been an increased propensity to use expert witnesses in child sexual abuse cases — specifically experts in the field of the behavior sciences.22  Experts are used primarily because child sexual abuse is a witnessless crime which often lacks any corroborating physical evidence.  These experts are often called upon to explain the meaning of whatever evidence exists.  For example, experts may be hired by the prosecution to educate the court on some aspect of the child's testimony.  Similarly, the accused may require the services of such an expert both for rebuttal and to offer a countervailing theory.

The experts may be physicians, nurses, police investigators, or mental health professionals who are called upon to assist the trier-of-fact in interpreting the child's demeanor, or to elucidate statements made by the child during trial, prior to trial, during the preliminary investigation, or during any therapeutic procedure.23  Often these experts are required to explain any delay on the part of the child in disclosing the alleged event,24 or to explain a child's prior inconsistent statements, or to educate the court on the child's resistance to testify or appear in court.25  In short, experts fulfill a multitude of tasks and the courts must decide whether and how to admit this testimony.

This dilemma facing the trial court's admission of expert testimony in child sexual abuse cases is exemplified in the Supreme Court decision of Idaho v. Wright.26  In Wright the Court mandated that the trial court evolve measures of reliability to assess expert opinion evidence before permitting its admission in child sex abuse trials — especially when Sixth Amendment rights are at stake.27  In Idaho v. Wright, the Court overturned a conviction based on the testimony of a doctor's interview with an alleged child victim.

The facts of Wright are as follows: The defendant, Laura Lee Wright, was charged with two counts of lewd conduct with a minor because she was suspected of sexually molesting her two daughters.28  She and the natural father of the older child had an informal custody arrangement whereby each had custody of the child for a six month period.29  In November 1986, the older daughter informed her father's girlfriend, Cynthia Goodman, that her mother's boyfriend had sex with her while the mother participated by holding her down.30  The older daughter also reported that she observed similar events involving the younger child.31  The younger daughter, who was two-and one-half years old at the time of the reporting, was the natural child of Laura Wright and her boyfriend, Robert Giles.  Giles was also charged with lewd conduct of a minor.32

The day after these incidents were reported, the father's girlfriend Goodman took the older child to the hospital and reported the matter to the police.  A physical exam revealed some possible evidence of sex abuse.33  One of the attending physicians was Dr. John Jambura.34  Police took the younger child into custody that same day, and the following day Dr. Jambura physically examined this child and found some indicators suggestive of sexual molestation.35

At the trial of Wright and Giles, the court conducted an examination of the then three-year-old younger child to make a determination as to her ability to testify.36  The court found that the child did not have the capacity to communicate effectively to a jury37 and allowed Dr. Jambura to testify to what the child told him during his interview and examination.38  Wright and Giles were each convicted and sentenced to 20 years in prison.

At issue on appeal was the propriety of the court's admission of the doctor's testimony of the child's hearsay responses.39  In particular, Wright appealed arguing that admitting the physician's statements under the residual hearsay exception violated her constitutional guarantees of confronting the witness.40  The Idaho Supreme Court agreed and reversed her conviction.41  The U.S. Supreme Court affirmed the Idaho Supreme Court's decision to omit such testimony from trial due to its unreliability.  In Wright, the Supreme Court found it was an error for the trial court to invoke a residual hearsay exception to allow the expert's testimony of the child's hearsay statements.42  The Court reasoned that "... Idaho's residual hearsay exception ... is not a firmly rooted hearsay exception for Confrontation Clause purposes."43

Wright further clarified that, although admitting testimony under the residual hearsay exception is not acceptable when the right of confrontation is involved, testimony may be admitted under a hearsay exception which is firmly rooted.  The Supreme Court distinguished between residual and firmly rooted exceptions by explaining that a hearsay exception which is firmly rooted "satisfies the constitutional requirement of reliability because of the weight accorded longstanding judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements."44  The Wright court concluded that if the statements do not fall under a specific hearsay exception, then those statements are inadmissible under the Sixth Amendment's Confrontation Clause unless certain requirements are met.45

The Wright court relied upon another landmark case, Ohio v. Roberts,46 which articulated a "general approach" for determining whether statements admitted under a hearsay exception met the standards mandated by the Confrontation Clause.47  In Roberts, the court set forth a two-part test for assessing the trustworthiness of an out-of-court statement.  The Roberts test required (1) assessment of availability of the witness, and (2) indicia of reliability.48

The Roberts availability test is anchored to the Sixth Amendment Confrontation Clause, which requires that the prosecution must make the declarant available to testify or prove that the declarant is unavailable.49  Applied to child sex abuse cases, unavailability may be found where a child is incompetent to testify, may be traumatized by testifying, or is unwilling to testify.  The Supreme Court in Wright did not expound on the Roberts availability criterion.

The second Roberts criterion requires an assessment of the out-of-court statement for adequate indicia of reliability.50  The Supreme Court in Wright did address the definition of "adequate indicia of reliability" by holding that "indicia of reliability" which will not offend the Sixth Amendment are limited to (1) statements that fall within the scope of an established hearsay exception, or (2) statements which are supported by particularized guarantees of trustworthiness.51  Further, the court stated that "trustworthiness" may not be "bootstrapped" from other evidence but must arise from these statements themselves.52  The Wright court found that the physician's testimony failed the Roberts reliability prong because Idaho's residual hearsay exception was not a firmly rooted hearsay exception when Confrontation Clause issues are implicated, nor did the statements have any particularized guarantees of trustworthiness."53

It was the Idaho Supreme Court which stated specifically that "particularized guarantees of trustworthiness" were lacking in the Wright case because the physician did not utilize "procedural safeguards" during the interview process.54  The doctor did not videotape or audiotape the interview, he used leading questions, and he interrogated the child with a preconceived idea of the kinds of statements the child should be making.55  However, the U.S. Supreme Court in Wright rejected the Idaho Supreme court's "procedural guidelines"56 standard and referred to them as a "preconceived and artificial litmus test."57  Instead, the court held that trustworthiness can only be gleaned from the "totality of the circumstances" surrounding the statements.58

The Wright court then articulated five factors it thought were relevant in determining whether the statements a child made during the interrogation process were trustworthy.59  Wright stated, "Those factors [to be considered by the trial court] indicating reliability include spontaneity, consistent repetition, mental state of the declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate."60  In setting forth these factors, the Supreme Court recognized the potential suggestibility of children and the problems of reliability inherent in he interviewing process.

In a subsequent Supreme Court case, White v. Illinois,61 the Court further refined its holding in Roberts by ruling that the out-of-court statements of a child in a sexual abuse scenario are within the permissible ambit of the Confrontation Clause if such hearsay contains "sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule."62  In White, the Court concluded that because medical diagnosis or treatment and excited utterances were two firmly rooted hearsay exceptions, by definition the statements could be considered reliable and ultimately admissible.  Based on this line of cases, at least one commentator has concluded that "hearsay that is not admissible for Confrontation Clause purposes would also not be admissible as hearsay, whether or not the child testifies in court."63

Critics of White maintain that "the Court ignored the child-witness context by engaging in a functional analysis of the Confrontation Clause."64  These cases turn on the question of which hearsay exception justifies the admission of the child's out-of-court statements.  In Wright, the child's statements to the physician fell under the residual hearsay exception of Idaho, an exception not considered firmly rooted and therefore inadmissible.  In White however, the child's statements to a physician were held to fall under the firmly rooted medical examination or excited utterance exceptions65 and were therefore admissible.

Despite the Court's rationale, White is problematic because it demonstrates how the "exceptions are often stretched beyond recognition when children are the hearsay declarants."66  In White, the child was taken to an emergency room where she was examined and questioned by both a physician and a nurse several hours after being questioned by her parent, her baby-sitter, and a police officer.67  This sequence of events suggests her statements were anything but spontaneous or excited.  Furthermore, she did not seek medical consultation — a traditional requirement of the medical hearsay exception.68

Although the White ruling undercuts the Wright decision by allowing admission of hearsay statements which are offered pursuant to certain exceptions, the Wright decision lays the necessary groundwork for challenges to the reliability of those statements.  The five Wright criteria for assessing reliability-spontaneity, repetition, mental state of declarant, terminology expected of a child the same age, and whether there is a motive to fabricate-were ultimately incorporated by the New Jersey Supreme Court in Michaels.69

In addition to the five criteria of Wright, another commentator suggests the inclusion of five additional criteria for assessing the reliability of children's testimony, which she maintains find support in the social science literature.  These suggested criteria include: 1) whether the child's testimony was based on interviews with anatomically correct dolls, and if so, should be omitted due to the dolls eliciting suggestive responses which are considered unreliable; 2) whether the interview was suggestive or coercive; 3) whether a child was assessed developmentally before as well as after the alleged abuse; 4) whether the evaluator considered the family dynamics; and 5) whether the interviewer considered the possibility of the allegation being false.70  Significantly, several of these recommendations were also incorporated into the Michaels ruling.

Wright, Roberts, and White illustrate how the United States Supreme Court proposes admitting the testimony of children in sexual abuse cases through experts while safeguarding the reliability of these statements.  Similarly, the Court attempts to strike the same balance in those cases where the child testifies directly.  For example, the court has tried to employ such methods as using specialized seating arrangements in the courtroom,71 or using a one way glass to screen the defendant from the child who is testifying.72  The problem, however, with these efforts is that they assume the child needs to be protected from the defendant and denies the defendant the constitutional right to confront the witness.  Such procedures risk sending the subtle message that the court has already made an assumption regarding the defendant's guilt.  This message of guilt before trial offends a fundamental principle of our criminal justice system — he presumption of innocence.73

The much more problematic issue however, is that these procedures involving the admission of a child's testimony during trial often do not consider any pretrial interrogation or other pretrial processes which may have influenced the child or contributed to testimony which is unreliable due to suggestibility factors.74  In other words, the court may be preoccupied with considering the best method for admitting the testimony without first asking the more important question of whether the testimony should be admitted at all.

Therefore, in order to reach the underlying question of reliability of child testimony, prescreening of the pretrial investigation process is necessary in child sexual abuse cases.  Prescreening or review of pretrial investigation techniques relieves concerns of fundamental fairness to all parties.75  The Michaels court acknowledged that child testimony, while not per se unreliable,76 did generate specialized concerns for the courtroom process because of differing maturity levels of children, emotional vulnerability, suggestibility, and other factors.77

Although federal law presumes children are competent to testify,78 state competency standards vary.79  Notwithstanding the particular standards at issue, however, courts usually require some demonstration that a child is competent to testify.80  The United States Supreme Court in Wheeler v. United States81 provided the guidelines for assessing the competency of a child.  The Wheeler Court held competency of a child "depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as his duty to tell the former."82

The Wheeler criteria evolved to the current state of evaluating a child's competency to testify via four factors.  These are capacity for truthfulness, mental capacity, memory, and communication.83  These factors, like the criteria for admission of expert testimony, however, often fail to address the crucial issue of reliability of the child's testimony.  The child may report events that never occurred, not because the child does not have the capacity for truthfulness or the ability to remember, but rather because "suggestive or coercive interview techniques"84 were employed, distorting the child's recollections.  The same concern regarding reliability of testimony is present whether the child testifies at trial or the testimony is videotaped or offered via closed circuit television.  (A court has the discretion of using one of many technological innovations and each of these procedures has several variations.85)

In Maryland v. Craig, the United States Supreme Court again addressed the tension between the child's interests and the Sixth Amendment.86  In Craig, the owner of a day care was charged with sexually abusing a young child and argued that allowing the child to testify via closed circuit television violated her constitutional right under the Confrontation Clause.87  The Court disagreed and held, "... the Maryland statute, which requires a determination that the child will suffer 'serious emotional distress such that the child cannot reasonably communicate,' ... clearly suffices to meet constitutional standards."88  However, the Court also added that before alternatives to confrontation are allowed, there has to be a showing "that the child would be traumatized, not by the courtroom generally, but by the defendant's presence; and find that the emotional distress suffered by the child in the defendant's presence is more than de minimis."89

Although Craig purports to set forth criteria for admitting the testimony of a child, following a determination that testifying would be traumatic, critics argue that Craig simply adds another qualification (to those already articulated in Wheeler) to assessing the competency of a witness90 without assessing the reliability of the child's testimony.91  Another commentator agrees with the proposition that courts should be reluctant to use any of these technologies, as both the child witness and the adult accused may perceive events and circumstances differently when they are subjected to certain environmental pressures.92  Both of these criticisms of Craig have merit as the social scientific literature suggests.93  Craig misses the point because it considers the best method of admitting child testimony without first analyzing whether such testimony should be admitted at all.

The Psychological and Social Data

The corpus of psychological, behavioral, and social science data regarding children's testimony, children's suggestibility, and the impact on children of various interviewing techniques is readily available.94  Courts have relied on such data as they struggle to navigate through the necessary protections to be accorded both he child and the accused.  Much of the current legal, psychological, and behavioral data support the contention that the interviewing techniques used by investigators can and do influence children.95  "In the past decade, there has been an exponential increase in research on the accuracy of young children's memories and the degree to which young children's memories and reports can be molded by suggestions implanted by adult interviewers."96  Because of these suggestibility factors, courts are demonstrating a growing concern that the testimony offered at trial may be unreliable and therefore inadmissible.

One of the earliest interviewing techniques to come under attack as influencing the reliability of a child's testimony was the use of leading questions.97  The data on the effectiveness of this technique are mixed.  Proponents believe that leading questions are inevitable, even if not desirable.  They argue children are often bribed, threatened, or coerced not to speak of sexual abuse and in these cases, leading questions encourage children to speak of their experiences.98  They claim that experience has shown that the "developmental limitations of young children sometimes necessitate careful use of specific and, at times leading questions [and] young children are more resistant to suggestive questioning than many adults believe."99

Opponents of leading questions argue, however, that these ideas of children being resistive to suggestive questioning are not supported by the data.  "One can reach [t]his conclusion only by reading the research selectively and by ignoring the studies that show that there are potentially serious social and cognitive hazards connected with interviewing young children with leading questions."100

One critic of the use of leading questions is child psychiatrist Dr. Richard Gardner.  He states, "Leading questions can contribute to the 'brainwashing' process that can take place during an evaluation.  Creating as they do fantasies of events that might not have occurred, there is the risk that this imagery will come to be believed by the interviewee."101  The American Academy of Pediatrics recommends, "It is desirable for those conducting the interview to use non-leading questions; avoid demonstrations of shock, disbelief, or other emotions; and maintain a 'tell me more' or 'and then what happened' approach."102  The American Academy of Child and Adolescent Psychiatry Policy Statement similarly advocates, "The child must be allowed to tell his story in his own words and great care must be taken to avoid leading questions. "103

There are other problems connected to the interviewing process of young children.  Two researchers emphasize the deleterious effects on the investigation process when multiple interviews or repetitive questioning of a child occurs.  They argue each interrogation acts as a learning experience for children.104  They recommend proceeding carefully, particularly with that influential first interview.

Most researchers recognize the importance of the initial interview and frequently recommend video-taping this session.105  Videotaping serves many purposes.  Because the interrogator knows the videotape will most likely be used at trial, interviewers will be careful not to use improper questioning techniques.106  Videotaping aids in accuracy as well, as the interviewer may refer back to the videotape as opposed to notes made either during the session or when the session was completed.107  The most important aspect of memorializing that first contact with the child, however, is that it protects the child from having to endure multiple interviews with various professionals.  This procedure in turn, decreases the chances of the information being contaminated due to suggestion or rehearsal by subsequent interviews.

An additional difficulty with interviewing or interrogating children is the possibility that the process itself may convince children to believe events that did not in reality occur.  Exceptional care must be taken not to contaminate the child's recollection of events.108  Dr. Elizabeth Loftus, describing the problems of memory, adds:

Even if we are careful observers and take in a reasonably accurate picture of some object or experience, it does not stay intact in memory.  Other forces begin to corrode the original memory.  With the passage of time, with proper motivation, or with the introduction of interfering or contradictory fact, the memory traces change or become transformed ...109

Another phenomenon that may influence the interrogation process is that children may respond to the interview with what they perceive the interviewer wants to hear.  "Children may conform to suggestion because they are anxious to please an authority figure, feel pressure to conform to an adult's suggestion, or simply trust the information provided by an adult authority figure more than their own memory."110  In addition, young children may be sensitive to the power and status of their adult interrogators and as a consequence, may be particularly susceptible to responding to either the overt or covert communications of the interviewers.111  A further complexity of the interviewing process is the significance of the delay between events and interrogations and the impact of that delay on child testimony.  Researchers state:

In situations where a child will eventually testify, the memory will consist of a combination of recall and reconstruction influenced by all of the interrogations, conversations, and sexual abuse therapy that have occurred during the delay.  The longer the delay, the greater the possibility of social influence and the more their memory may consist of reconstruction rather than recall."112

In other words, "Memory, in short, may become more reconstructive and less reproductive."113

Whether the interviewer has a preconceived bias has a decided influence on the interview with the child and ultimately the child's testimony.  Interviewers whom are biased frequently assume facts and set out to prove those facts by accepting all material that confirms their point of view and rejecting all data that does not.  "A common downfall is a lack of objectivity and the failure to consider, explore, eliminate and choose the hypothesis which best fits the data.  Investigators often fail to understand the circumstances surrounding the allegation, the reasonableness of the alleged acts, and the numerous alternative hypotheses."114  It is this "confirmatory bias [which] is the major mechanism that drives the intensity and number of suggestive techniques used."115  Succinctly put:

A review of interviews of children suspected of sexual abuse reveals that some interviewers blindly pursue a single hypothesis that sexual abuse has occurred.  In such interviews, the interviewer typically fails to rule out rival hypotheses that might explain the behavior of the child and as a result often concludes that the child was sexually abused."116

In summary, the current research indicates that interviewing processes which are suggestive either through repetitive or leading questions, multiple interviewing, coerciveness or bias by an adult authority figure, or other influential factors, may lead a child to give an erroneous report of a life experience.  Even though some researchers acknowledge that children often would not fabricate long and convoluted stories of sexual molestation in response to a few simple leading questions, the overall data support that many interviewing methods are coercive and suggestive and may lead to reports of situations that simply never occurred.117

Merging of the Legal and Psychological Data

The Wright, Roberts, and Craig rulings, with their emphasis on scientific data and reliability, dovetailing with the social science literature which raises the concern that the very interviewing processes taking place prior to trial may be faulty and thereby contribute to unreliable testimony, paved the way for the New Jersey Supreme Court's ruling in MichaelsMichaels innovatively recognized this dilemma in child sexual abuse cases and provided a rational mechanism for assessing whether the child's pretrial testimony was tainted and therefore unreliable.  Michaels was the first case which posed the initial question whether testimony should be admitted before deciding how testimony should be admitted.

Part II. State v. Michaels

The Michaels court authorizes a pretrial taint hearing to assess the reliability of the children's testimony before that testimony is admitted as evidence at trial.118  The Court recognized it had "a responsibility to ensure that evidence admitted at trial [was] sufficiently reliable so that it [would] be of use to the finder of fact who [would] draw the ultimate conclusions of guilt or innocence."119

The facts of Michael are as follows: Margaret Kelly Michaels was accused of sexually molesting several children under her supervision as a day-care teacher.  She began working as a teaching aide for Wee Care Day Nursery in September of 1984.120  The school had an enrollment of approximately 60 children who ranged in age from 3 to 5 years.121  Michaels was a senior in college who had moved to New Jersey to find work as an actress.122  She answered an advertisement placed by Wee Care and, although she initially started out as a teacher's aide for preschoolers, shortly thereafter she began working as a teacher.123

Wee Care was housed in a church in Maplewood, New Jersey.124  Michaels was supervised by a head teacher and the school director.125  Her responsibilities during the nap period included supervising 12 children in a basement classroom.126  This classroom was separated from another nearby classroom by a curtain.127

On April 26, 1985, one of these children, M.P., whom Michaels supervised, awoke at home with spots.128 His mother took him to the pediatrician and during the exam, the nurse took a rectal temperature.129  M.P. stated, "This is what my teacher does to me at nap time at school."130  He further alleged that Michaels took a rectal temperature on a daily basis and that she also did the same to another child, S.R.131  Since the mother did not disclose this information to the pediatrician, the doctor did not complete a rectal exam.132  The pediatrician diagnosed the spots as a rash.133

The mother then contacted the New Jersey Division of Youth and Family Services (DYFS) and the Director of the school regarding her son's statements.134  DYFS subsequently contacted the prosecutors' office from Essex County on May 1, 1985.135  The prosecutor's office began interviewing several of the preschoolers and their parents.136  The initial investigation phase was completed on May 8, 1985.137  During this period, Michaels underwent nine hours of interrogation.138  She also took a polygraph test which concluded that her answers were non-deceptive.139

On June 6, 1985, charges were brought against Michaels140 and on June 22, 1987, a trial was convened.141  The State's evidence was primarily based on the testimony of the Wee Care children.142  The testimony specifically referred to the allegations made by the children during the State's investigation during the pretrial period.143  There was limited physical evidence to corroborate the alleged molestation.144  On April 15, 1988, the jury returned a verdict of guilty on 115 counts including aggravated sexual assault, sexual assault, endangering the welfare of children, and terroristic threats.145  The court sentenced Michaels to 47 years of imprisonment and mandated her ineligible for parole for 14 years.146

On appeal, the New Jersey Appellate Division reversed the trial court and remanded the case for a retrial.  The Appellate Court cited the inappropriate interviewing procedures used with the children and its effect on their testimony.147  The Appellate Court further determined that, on retrial, there must be a pretrial hearing on the admissibility of the children's statements.  The court indicated that the methods of questioning used by State officials may have irreparably compromised the reliability of the children's testimony.148

The Court of Appeals found particularly egregious the State's use of suggestive or leading questions, the planting of sexual information in the minds of the children, the use of threats and coerciveness, instances of vilification of the defendant, the use of anatomically correct dolls, the appearance of interviewer bias, the lack of any memorialization of the initial interviews, and the use of multiple interviews over a two-year time period between the alleged event and trial.149  The New Jersey Supreme court affirmed the ruling of the Appellate Court, agreeing that the trustworthiness of the testimony was irreparably damaged by these techniques, which in turn destroyed the children's reliability as witnesses.150

In so ruling, the New Jersey Supreme Court not only embraced the Appellate Court's analysis of the reliability of the children's testimony, but went further by articulating a standard to determine whether children's testimony should be admitted in future cases.  The court concluded that if there is "some evidence"151 that the interviewing techniques used on child victims are flawed, a pretrial taint hearing may be requested to determine the admissibility of the children's statements.152  The Court held that at the pretrial taint hearing, the accused bears the burden of showing that the interviewing techniques were so highly suggestive so as to render the children's statements unreliable at trial.153  In short, the Michaels court created a new means for balancing the accused's rights to a fair trial with society's interest in protecting children.154

The integrity of the pre-trial interviewing process is at the heart of the Michaels standard.  Michaels held if there is some showing that the interviews were leading or coercive, the accused may move for a pretrial taint hearing to prove the testimony is unreliable.  Following this prima facie showing, the burden shifts to the prosecution who must show by "clear and convincing evidence" that the testimony is reliable.155  Ultimately, the court must decide whether, considering all the circumstances, the statements retain enough reliability to outweigh suggestive interviewing techniques.156

During this pretrial hearing, both sides may call experts to testify about the suggestiveness of the investigative process.157  The experts may not, however, address the specific question of the credibility of the child.158  Rather, the expert testimony is limited to discussing whether the process of investigation was so coercive or suggestive so as to raise the question of the potential for a false recollection of a material fact relating to the defendant's guilt.159

The Michaels court further advised trial judges to consider the following factors to determine if there is some evidence to authorize a pretrial hearing: The absence of a taped initial interview; an inability to control familial influences; lack of spontaneous recollection on the part of the alleged victim(s); apparent bias on the part of the interviewer; the use of leading questions; the use of repeated questioning; the use of multiple interviews; the use of incessant questioning; instances of vilification of the alleged abuser; the use of bribes, threats, or cajoling; the appearance of suggestiveness through voice and body language; positive or negative reinforcement; or other influences.160  If any of these factors are present, the Court held they "constitute more than sufficient evidence to support a finding that the interrogations created a substantial risk that the statements and anticipated testimony are unreliable, and therefore justify a taint hearing."161

In addition to relying on the social and psychological data, the Michaels court relied upon two U.S. Supreme Court cases involving the Sixth Amendment right of confrontation, Manson v. Braithwaite162 and Jackson v. Denno,163 to support the use of a pretrial taint hearing.164  In Manson v. Braithwaite165 the court permitted a pretrial hearing to assess the admissibility of in-trial identification due to suggestiveness factors prior to trial.  This court held that "reliability is the linchpin in determining the admissibility" of the evidence so as to avoid any violations of due process.166  The Michaels court drew a correlation between the suggestive identification processes described in Manson and the pretrial investigation interviews with children.  The Michaels court reasoned that, "The pretrial identification, like the investigatory interview with a child victim, is 'peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.'"167  The court continued by acknowledging that coercive or suggestive interviewing practices are extremely difficult obstacles to defeat at trial.168

Similarly in Jackson v. Denno, a pretrial hearing was deemed necessary to assess the voluntariness of a confession.169  The Supreme Court concluded that in the absence of a pretrial taint hearing, there was no reliable assessment of the voluntariness of the accused's confession.  Therefore, the defendant's constitutional rights under the due process clause had not been protected.170  Both Manson and Denno illustrate the necessity for pretrial taint hearings in order to assess reliability and to afford due process protections.

One other case anchors the Michaels decision.  In Daubert v. Merrell Dow Pharmaceuticals Inc.,171 the Daubert Court outlined a new standard for the admissibility of scientific evidence and expert testimony.  Even though Daubert is a ruling from the federal courts, it is not only influencing lower federal courts172 but state courts as well.173  This influence is not surprising given that the Daubert Court rejected the 70-year-old Frye standard which held that the standard used for the admissibility of scientific evidence and experts was if the evidence had gained a "general acceptance in the scientific community.174

The Daubert court stated instead that "the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."175  Speaking for the Court, Justice Blackmun refined this idea further by stating that by "scientific," the witness is conveying a "grounding in the methods and procedures of science."176  Daubert further mandated that the expert's opinion must have a "reliable basis in the knowledge and experience of his discipline."177  Historically, experts have had a great deal of latitude in testifying.178  However, Daubert required that testimony that did not meet the scientific standards articulated should not be admissible.

The court stated, "Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed this methodology is what distinguishes science from other fields of human inquiry."179  It clarified further that the only way the trier of fact can determine whether or not the theory is based on scientific knowledge is if the theory could be or has been subjected to testing.180  The Daubert court stated that when "expert" and "scientific" testimony is being offered,

[T]he trial judge must determine at the outset, whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue.181

Specifically, Daubert articulates a four-part test to determine reliability of a scientific technique: whether the theory can be tested in some way, whether the theory has been exposed to some type of peer review, the error rate, and whether the theory enjoys a widespread acceptance.182  All of these must be satisfied for the evidence to be admitted at trial.

Thus in sum, Daubert requires that testimony by experts be relevant and reliable and grounded in scientific reasoning and principles.183  In child sexual abuse cases, where sensitivities may be particularly keen, extra care needs to be taken to avoid injustice.  The Daubert guideline well addresses these sensitivities and prepared the way for overturning Margaret Kelly Michaels' conviction184 by permitting the New Jersey Supreme Court to analyze the admissibility of expert testimony not merely on a "general acceptance"185 standard, but on a standard which evidences a grounding in "the methods and procedures of science."186

Even though Daubert experts could testify to new and innovative scientific findings not previously admissible under the Frye general acceptance standard,187 Daubert mandated experts meet a more stringent standard.  "It is just such a paradigm shift ... that forms the basis for a new set of criteria to be applied to decisions about admissibility of scientific expert testimony."188  The Michaels court applied the Daubert standard by scrutinizing the scientific findings on the suggestibility of children and integrating the data in their ruling.  It understood the necessity of using the Daubert standard at trial and also the potential need for the application of this standard at the pretrial taint hearing.  The court recognized that by applying Daubert this would maximize chances of allowing data into evidence that has survived scientific scrutiny while omitting those theories considered by many to be "junk science."189

In sum, the Michaels court authorized the use of a pretrial taint hearing to assess the reliability of children's testimony in criminal cases.  The court articulates several criteria for a trial judge to weigh when making the determination of whether or not to consider the defendant's request for a hearing on suggestiveness or coerciveness of the pretrial investigation.  These criteria are partially derived from Wright and partially derived from the current social science literature.  It was this combination of factors merging with the Court's ruling in Daubert which led the way for the New Jersey Supreme Court's decision in Michaels.

One commentator reinforces the justice in the Michaels court decision by stating:

While the bottom-line fact that Margaret Kelly Michaels remains free on a so-called technicality disturbs some people, the result is the only fair one.  In our judicial system, a defendant is innocent until proven guilty, and the substance of the proof to convict should be accurate and dependable, not a series of fabrications.  Unfortunately for the alleged victims in the Michaels case, the methods utilized by the investigators created the appearance, if not the actual existence, of such fabrications.  The court could not close its eyes to the certainty of the evidence in this case, and still afford Michaels the trial she is constitutionally guaranteed.190

Fairness, in short, motivated the decision in Michaels and provided the rationale for implementation of the proper standard.

Part III. Necessity for the adoption of Michaels by other jurisdictions

"For the average adult, few subjects evoke stronger emotions than children, victimization, and sex.  Put the three together to form child sexual abuse, and the stage is set for emotional pyrotechnics."191  Michaels provided a blueprint of rationality and common sense to the emotional arena of child sexual abuse for courts to follow.  Because emotions are intense in child sexual abuse trials, judgments tend to follow suit.  Kelly Michaels, a young college student, was sentenced to 47 years imprisonment with 14 years of ineligibility for parole.192

Other cases have also evidenced harsh sentences. In the McMartin Preschool case, Peggy Buckey, whose mother was founder of the school, was in jail for two years.  Her daughter, Peggy Ann Buckey, also was in jail for two years.  Ray Buckey spent five years in jail before being allowed to post a $3 million bond."193  All were eventually acquitted.  Robert Kelly, another defendant in a day care case, was sentenced by the trial judge to 12 consecutive life sentences.  Mr. Kelly was granted a new trial and ultimately all charges in the day care case were dismissed.194  In a case recently granted an appeal, Violet Amirault, the eldest female to be imprisoned in the state of Massachusetts, served close to a decade for sexually abusing some of the children who once attended her day care.  Her son, whose trial was held in 1986, was given a sentence of 30 to 40 years in prison.  Mrs. Amirault and her daughter were tried together and convicted, and given a sentence of 8 to 20 years apiece.195  One commentator rightfully argues, "While the scope and consequences of child sexual abuse demand a response, a visceral reaction may impair objectivity, with the result that truth becomes a second victim."196

Although some would argue a pretrial taint hearing could free guilty parties or add another judicial procedure to an already costly and time-consuming court process, these arguments are outweighed by the requirements provided by the Constitution.  "The potential for stripping innocent citizens of their liberty is the basic foundation for the constitutional guarantees of due process ...  On this issue the Constitution is clear: the state may not deprive the defendant of his liberty without due process of law."197  Although experts agree that children who have been sexually abused need to be encouraged to seek assistance to confide their thoughts and feelings to an adult, they also acknowledge that improper interviewing procedures may ultimately contribute to false accusations, tainted testimony based on unreliable evidence, and the imprisonment of people who may be innocent.198  Imposition of a pretrial taint hearing safeguards against these concerns.

One further argument for the adoption of Michaels is to provide for judicial economy.  Michaels seeks to avoid subjecting both the accused and the victim to the lengthy and costly trials inherent in these cases.  "The longest and most expensive criminal trial in United States history [was the McMartin Preschool in Manhattan Beach, California] ..."199  The reason these cases are so costly and protracted stems from the court's reliance on evidence that is contradictory or unreliable due to lack of scientific data.  For example, recent social scientific data suggests that the use of the anatomically correct dolls during the interview process may not be reliable.200  Consequently, the admission of expert testimony during trial regarding the interpretation of a child's behavior based on doll play was premature.201

A further concern generated by Michaels is that new studies questioning interviewing and interrogation techniques raises the potential that unreliable evidence is regularly admitted in child sex abuse trials.202  As a result, the legal system is being forced to develop an awareness of the current scientific research in order to reach fair and just outcomes in child sexual abuse cases.203  Courts are beginning to recognize the need to continue to guard against relying on "junk science" (or theories that have no scientific validity) as a basis for determining reliability and ultimately admissibihty.204  As one commentator states:

Ideally, the objective of a trial is to find out the truth about a particular course of events.  No one would dispute that our system is far from perfect, but that is all the more reason for judges to earnestly endeavor as gatekeepers to omit unreliable evidence.  After all, if the importance of reliable evidence is cast aside, the scenes in our courtrooms may start to look more and more like the Salem witch trials of another era.205


While child sexual abuse is a horrendous problem,206 a civilized society with constitutionally mandated protections must approach these issues rationally and systematically.  The Michaels court recognizes the responsibility of the judicial system to protect the rights of innocent parties, be they the alleged victims or the accused.  There is a delicate balance between protecting individuals accused of molesting children and protecting the rights of children.207  Although court decisions which follow Michaels will rely on judicial discretion in determining whether to grant the pretrial taint hearing, Michaels articulates and educates courts of the potential unreliability of children's testimony due to improper investigation procedures.  Therefore, the burden falls to defense counsel to thoroughly investigate the techniques used in interviewing the child witness to make a determination on "whether the reliability of the memory is intact or [whether] it is likely that the child's statements are suggestions planted by the interviewer(s)."208  If counsel even suspects inappropriate interviewing techniques were utilized, then Michaels must be argued and the Daubert standard applied at the pretrial taint hearing to eliminate the admission of unreliable and unscientific evidence.


* Karol L. Ross, MA, JD, is at 6512 Pleasant Lake Court, West Bloomfield, Michigan, 48322.  [Back]

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