| 1 |
NATIONAL CENTER ON CHILD ABUSE AND NEGLECT, Study Findings: Study
of National Incidence and Prevalence of Child Abuse
and Neglect (Washington, D.C., U.S. Department of Health and Human Services, n 3, at 7 (1988)).
[Back]
|
| 2 |
See, John E. B. Myers, Expert Testimony in Child Sexual Abuse
Litigation, 68 NEB. L. REV. 1 (1989). [Back]
|
| 3 |
Gail S. Goodman & Alison Clarke-Stewart, Suggestibility in
Children's Testimony: Implications for Sexual Abuse Investigations, in the
SUGGESTIBILITY OF CHILDREN'S RECOLLECTIONS, IMPLICATIONS FOR EYEWITNESS TESTIMONY
( )
92
(John Doris ed., 1991). [Back]
|
| 4 |
Maryland v. Craig, 497 U.S. 836, 836 (1990). The court's analysis of
using closed-circuit television considered the importance of balancing
rights of accused to confront witnesses while simultaneously protecting
children from the trauma of face-to-face confrontation. [Back]
|
| 5 |
State v. Michaels, 642 A.2d 1372 (N.J., 1994). [Back]
|
| 6 |
Id. [Back]
|
| 7 |
FED. R. EVID. 601. "Every person is competent to be a witness
except as otherwise provided in these rules." [Back]
|
| 8 |
FED. R. EVID. 602. "A witness may not testify to a matter
unless evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter. Evidence to prove personal
knowledge may, but need not, consist of the witness' own testimony.
This
rule is subject to the provisions of rule 703, relating to opinion
testimony by expert witnesses." [Back]
|
| 9 |
FED. R. EVID. 603. "Before testifying, every witness shall be
required to declare that the witness will testify truthfully, by oath
or affirmation administered in a form calculated to awaken the witness'
conscience and impress the witness' mind with the duty to do so."
[Back]
|
| 10 |
FED. IL EVID. 607; "The credibility of a witness may be
attacked by any party, including the party calling the witness."
[Back]
|
| 11 |
See, Jean P. Piaget, THE LANGUAGE AND THOUGHT OF THE CHILD
()
(1926). The basic developmental stages of a child are articulated by
psychologist Piaget in this classic work. [Back]
|
| 12 |
Josephine Bulkley, Symposium on Child Sexual Abuse Prosecutions:
The Current State of the Art, Law Reforms in the Mid-1980s, 40 U. MIAMI
L. REV. 5, 6 (1985). [Back]
|
| 13 |
Id. [Back]
|
| 14 |
See, John E. B. Myers, 1990 Survey of Books Relating to the Law v.
Law and Society, 88 MICH. L. REV. 1709 (1990). [Back]
|
| 15 |
See, Veronica Serrato, Expert Testimony in Child Sexual Abuse
Prosecutions: A Spectrum of Uses, 68 B.U. L REV. 155 (1988). [Back]
|
| 16 |
Amicus
Brief for the Case of NJ v. Michaels, State v. Michaels, 625 A.2d 489
(1993) Maggie Bruck & Stephen J. Ceci, Presented by the Committee of
Concerned Social Scientists, 44-46 (undated). [Back]
|
| 17 |
Diana Younts, Evaluating and Admitting Expert Opinion Testimony in
Child Sex Abuse Prosecutions, 41 DUKE L. J. 691(1991). [Back]
|
| 18 |
Younts, supra note 17, at 694-95. [Back]
|
| 19 |
Younts, supra note 17, at 697. [Back]
|
| 20 |
Richard A. Gardner, TRUE AND FALSE ACCUSATIONS OF CHILD SEX ABUSE ()
121 (1992). [Back]
|
| 21 |
Gordon J. Blush & Karol L. Ross, Sexual Allegations in
Divorce: The SAID Syndrome, CONCILIATION CTS. REV. 1,6 (1987). [Back]
|
| 22 |
Debra Whitcomb, National Institute of Justice, When the Victim is a
Child 111 (1992). [Back]
|
| 23 |
Serrato, supra note 15, at 156. [Back]
|
| 24 |
Id. [Back]
|
| 25 |
Id. [Back]
|
| 26 |
Idaho v. Wright, 497 U.S. 805 (1990). [Back]
|
| 27 |
Younts, supra note 17, at 691. [Back]
|
| 28 |
Wright, 497 U.S. at 805. [Back]
|
| 29 |
Id. at 809. [Back]
|
| 30 |
Id. [Back]
|
| 31 |
Id. [Back]
|
| 32 |
Id. [Back]
|
| 33 |
Id. [Back]
|
| 34 |
Id. [Back]
|
| 35 |
Id. [Back]
|
| 36 |
Id. [Back]
|
| 37 |
Id. "After the judge conducted a voir dire examination of the
child, he asked both counsel if they agreed that she was not capable of
communicating to the jury and both agreed she was not competent to
testify." There is no further explanation of why she was not
competent to testify. [Back]
|
| 38 |
Wright, 497 U.S. at 809. [Back]
|
| 39 |
Id. [Back]
|
| 40 |
FED. IL EVID. 803(24). "A statement not specifically covered
by any of the foregoing exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court determines that (A) the
statement is offered as evidence of a material fact; (B) the statement
is more probative on the point for which it is offered than any other
evidence which proponent can procure through reasonable efforts; and (C)
the general purpose of these rules and the interest of justice will best
be served by admission of the statement into evidence." [Back]
|
| 41 |
Wright, 497 U.S. at 812. [Back]
|
| 42 |
Id. at 817. [Back]
|
| 43 |
Id. [Back]
|
| 44 |
Id. [Back]
|
| 45 |
Thomas L. Feher, The Alleged Molestation Victim, the Rules of
Evidence, and the Constitution; Should Children Really be Seen and Not
Heard?, 14 AM. J. CRIM. L. 227, 250 (1987). The confrontation clause of
the sixth amendment guarantees the defendant the right to effective
cross-examination is applicable to the states through the fourteenth
amendment. [Back]
|
| 46 |
Ohio v. Roberts, 448 U.S. 56 (1980). [Back]
|
| 47 |
Id. at 65. [Back]
|
| 48 |
Id. at 66. [Back]
|
| 49 |
Id. at 65. [Back]
|
| 50 |
Id. [Back]
|
| 51 |
Wright, 497 U.S. at 815.. [Back]
|
| 52 |
Wright, 497 U.S. at 823.. [Back]
|
| 53 |
Id. at 813.. [Back]
|
| 54 |
Id. [Back]
|
| 55 |
Wright, 497 U.S. at 818, (citing Idaho v. Wright P.2d at 1230
(1989)). [Back]
|
| 56 |
Id. [Back]
|
| 57 |
Id. [Back]
|
| 58 |
Id. at 819. [Back]
|
| 59 |
Id. at 806. [Back]
|
| 60 |
Younts, supra note 17, at 704 (quoting Wright, 110 5. Ct. at 3150).
[Back]
|
| 61 |
White v. Illinois, 502 U.S. 346 (1992). [Back]
|
| 62 |
White, 502 U.S. at 356. The evidentiary theory for allowing hearsay
testimony under the spontaneous declaration or medical care exceptions
relates to their being seen as carrying certain guarantees of
trustworthiness. This is because these are typically statements which
are made in situations that if false or misleading, would be detrimental
to persons involved. [Back]
|
| 63 |
Younts, supra note 17, at 702. [Back]
|
| 64 |
Jean Montoya, Something Not So Funny Happened on the Way to
Conviction: The Pretrial Interrogation of Child Witnesses, 35 ARIZ. L.
REV. 927, 980 (1993). [Back]
|
| 65 |
Id. [Back]
|
| 66 |
Id. [Back] |
| 67 |
Id. at 981. [Back]
|
| 68 |
Id. [Back]
|
| 69 |
Wright, 497 U.S. at 821-22. [Back]
|
| 70 |
Younts, supra note 17, at 737-38. [Back]
|
| 71 |
Commonwealth v. Johnson, 631 N.E.2d. 1002, 1004 (1994). [Back]
|
| 72 |
Coy v. Iowa, 487 U.S. 1012, 1014-15(1988). [Back]
|
| 73 |
John R. Christiansen, The Testimony of Child Witnesses: Fact, Fantasy, and the Influence
of Pretrial Interviews, 62 WASH. L. REV. 705,
707 (1987). [Back]
|
| 74 |
See generally, THE SUGGESTIBILITY OF CHILDREN'S RECOLLECTIONS: IMPLICATIONS FOR EYEWITNESS TESTIMONY
()
(John Doris,
ed., 1991) for discussions on psychological, behavioral, and social
data on the suggestibility of children. [Back]
|
| 75 |
Christiansen, supra note 73, at 721. [Back]
|
| 76 |
Michaels, 642 A.2d at 1376. [Back]
|
| 77 |
Id. [Back]
|
| 78 |
See generally, Victims of Child Abuse Act, 1990. [Back]
|
| 79 |
Whitcomb, supra note 22, at 55. [Back]
|
| 80 |
Id. at 56. [Back]
|
| 81 |
Wheeler v. United States, 159 U.S. 523(1895). [Back]
|
| 82 |
Id. [Back]
|
| 83 |
Gary Melton, Josephine Bulkley, & D. Wulkan, Competency of
Children as witnesses. CHILD SEXUAL ABUSE AND THE LAW 127 (Josephine
Bulkley, ed., 1981). National Legal Resource Center for the Child
Advocacy and Protection, Washington, D.C. [Back]
|
| 84 |
Susan Seahorn, Child Sex Abuse, THE CHAMPION, Apr.1995, at 27.
[Back]
|
| 85 |
Wallace J. Mlyniec & Michelle M. Dally, See No Evil? Can
Insulation of Child Sexual Abuse Victims be Accomplished Without Endangering the
Defendant's Constitutional Rights? 40 U. MIAMI L. REV. 115, 122 (1985).
[Back]
|
| 86 |
Maryland v. Craig 497 U.S. 836(1990). [Back]
|
| 87 |
Id. at 836. [Back]
|
| 88 |
Craig, 497 U.S. at 856 (quoting Maryland State S. 9-102
(a)(1)(ii)). [Back]
|
| 89 |
Craig, 497 U.S. at 838. [Back]
|
| 90 |
Louis Kiefer, Confrontation Clause Revisited: Supreme Court Decisions Idaho v. Wright and Craig v. Maryland, An Attorney's Response
ISSUES IN CHILD ABUSE ACCUSATIONS 164, 166(1990). [Back]
|
| 91 |
Id. [Back]
|
| 92 |
Mlyniec, supra note 85, at 126. [Back]
|
| 93 |
Bruck & Ceci, supra note 16, at 14-15.
[Back]
|
| 94 |
See generally, THE SUGGESTIBILITY OF CHILDREN'S RECOLLECTIONS: IMPLICATIONS FOR
EYEWITNESS TESTIMONY ()
(John Doris, ed.,1991). [Back]
|
| 95 |
See, Stephen J. Ceci & Maggie Bruck, JEOPARDY IN THE COURTROOM:
A SCIENTIFIC ANALYSIS OF CHILDREN'S TESTIMONY ()
Chapters 8-11 (1995). [Back]
|
| 96 |
Bruck & Ceci, supra note 16, at 1.
[Back]
|
| 97 |
Gardner, supra note 20, at 351. Gardner defines leading questions
as "refer[ring] to questions that engender in the mind of the
listener specific visual image that is not likely to have been produced
had the question not been asked." [Back]
|
| 98 |
Kee MacFarlane & Sandra Krebs, Techniques for Interviewing and
Evidence Gathering, in Kee MacFarlane and J. Waterman, et al. SEXUAL
ABUSE OF YOUNG CHILDREN ()(), n. 15 at 87. (1986).
[Back]
|
| 99 |
John E. B. Myers, Amici Curiae Brief of American Professional Society
on the Abuse of Children et al. at 15-16, Idaho v. Wright 110 5. Ct 3139
(1990). [Back]
|
| 100 |
Younts, supra note 17, at 721. [Back]
|
| 101 |
Richard A. Gardner, Leading Stimuli, Leading Gestures, and Leading
Questions, ISSUES IN CHILD ABUSE ACCUSATIONS 148 (1992). [Back]
|
| 102 |
Lawrence W. Daly, Who Evaluates Child Interviews and
Interviewers?
ISSUES IN CHILD ABUSE ACCUSATIONS, at 5 (1992) (citing American Academy
of Pediatrics. (February, 1991) Guidelines for the evaluation of sexual
abuse of children. PEDIATRICS, 87(2)). [Back]
|
| 103 |
Id. at 6 (citing the American Academy of Child and Adolescent Psychiatry. (Modified December 14, 1990).
Guidelines for the clinical evaluation of child and adolescent sexual abuse).
[Back]
|
| 104 |
Hollida Wakefield & Ralph Underwager, ACCUSATIONS OF CHILD
SEXUAL ABUSE ()()
30 (1988). [Back]
|
| 105 |
Gail S. Goodman & Vicki S. Helgeson, Child Sexual Assault:
Children's Memory and the Law, 40 U. MIAMI L. REV. 181, 198-199 (1985).
[Back]
|
| 106 |
Id. at 198. [Back]
|
| 107 |
Id. [Back]
|
| 108 |
Christiansen, supra note 73, at 712.
[Back]
|
| 109 |
Elizabeth Loftus & Katherine Ketcham, WITNESS FOR THE DEFENSE ()()
17 (1991). [Back]
|
| 110 |
Maira S. Zaragoza, Preschool Children,, Susceptibility to Memory Impairment, in THE SUGGESTIBILITY OF CHILDREN'S
RECOLLECTIONS: IMPLICATIONS FOR EYEWITNESS TESTIMONY ()
28 (John Doris, ed., 1991). [Back]
|
| 111 |
Bruck & Ceci, supra
note 16, at 16. [Back]
|
| 112 |
Hollida Wakefield & Ralph Underwager, Techniques for
Interviewing Children in Sexual Abuse Cases, VOCAL PERSPECTIVE, 7-15
(1989). [Back]
|
| 113 |
Charles Brainerd & Peter Ornstein, Children's Memory for Witnessed Events: The Developmental
Backdrop, in THE SUGGESTIBILITY OF CHILDREN'S RECOLLECTIONS: IMPLICATIONS FOR
EYEWITNESS TESTIMONY ()
14 (John Doris, ed., 1991). [Back]
|
| 114 |
Lawrence W. Daly, Child Sexual Abuse Allegations: Investigative Approaches and
Identifying Alternative Hypotheses, ISSUES IN CHILD ABUSE ACCUSATIONS 125, 125
(1992). [Back]
|
| 115 |
Ceci & Bruck, supra note 95, at 296.
[Back]
|
| 116 |
Bruck & Ceci, supra
note 16, at 2. [Back]
|
| 117 |
Id. at 44. [Back]
|
| 118 |
Michaels, 642 A.2d at 1380. [Back]
|
| 119 |
Id. [Back]
|
| 120 |
Id. at 1374. [Back]
|
| 121 |
Id. [Back]
|
| 122 |
Id. [Back]
|
| 123 |
Id. [Back]
|
| 124 |
Id. [Back]
|
| 125 |
Id. [Back]
|
| 126 |
Id. [Back]
|
| 127 |
Id. [Back]
|
| 128 |
Id. [Back]
|
| 129 |
Id. [Back]
|
| 130 |
Id. [Back]
|
| 131 |
Id. at 1375. [Back]
|
| 132 |
Id. [Back]
|
| 133 |
Id. [Back]
|
| 134 |
Id. [Back]
|
| 135 |
Id. [Back]
|
| 136 |
Id. [Back]
|
| 137 |
Id. [Back]
|
| 138 |
Id. [Back]
|
| 139 |
Id. [Back]
|
| 140 |
Id. [Back]
|
| 141 |
Id. [Back]
|
| 142 |
Id. [Back]
|
| 143 |
Id. [Back]
|
| 144 |
Id. [Back]
|
| 145 |
Id. [Back]
|
| 146 |
Id. [Back]
|
| 147 |
State v. Michaels, 625 A.2d 489, 515 (N.J., 1993). [Back]
|
| 148 |
The State
ultimately decided not to retry the case. [Back]
|
| 149 |
Michaels, 625 A.2d at 510-18. [Back]
|
| 150 |
Michaels, 642 A.2d at 1385. [Back]
|
| 151 |
Michaels, 642 A.2d at 1383 (citing Watkins v. Sowders, 449 U.S.
341, 350 (1981)). [Back]
|
| 152 |
Id. [Back]
|
| 153 |
Michaels, 642 A.2d at 1384. [Back]
|
| 154 |
Lana H. Schwartzman, Survey of Recent Developments in New Jersey
Law, 25 SETON HALL L. REV. 453, 463 (1994). [Back]
|
| 155 |
Michaels, 642 A. 2d at 1383 (citing State v. Hurd, 86 N.J. 525, 432
A.2d 86 (1981)). [Back]
|
| 156 |
Id. [Back]
|
| 157 |
Ralph Underwager & Hollida Wakefield, Psychological Evaluation
You Need for Trial: What They Can and Cannot Do, ISSUES IN
CHILD ABUSE ACCUSATIONS 30, 41(1995). [Back]
|
| 158 |
Id. [Back]
|
| 159 |
Michaels, 642 A. 2d at 1382-1383 (citing Simmons v. United
States, 390 U.S. 377, 384 (1968)). [Back]
|
| 160 |
Id. at 1383. [Back]
|
| 161 |
Id. [Back]
|
| 162 |
Manson v. Braithwaite, 432 U.S. 98 (1977). [Back]
|
| 163 |
Jackson v. Denno, 378 U.S. 368 (1964). [Back]
|
| 164 |
Michaels, 642 A.2d at 1380-1381. [Back]
|
| 165 |
In this case an undercover state trooper and an informant
purchased narcotics from an alleged drug dealer. The officer knocked on
the door of the apartment and asked to make a purchase from the alleged
drug dealer. The officer paid him in exchange for drugs. The officer and
informant returned to police headquarters where the officer described
the alleged drug dealer to two other officers. One of the officers
suspected the identity of the drug dealer and obtained his picture and
left it in the investigating trooper's office. Two days later upon his
return to the office, the officer viewed the single photo. The
defendant
argued this process was unduly suggestive and as a result violated his
due process rights. The Court held that even though the technique was
suggestive, that under the totality of the circumstances, the procedure
did not violate the Due Process clause under the Fourteenth Amendment
because the identification process itself still had sufficient
components of reliability. [Manson, 432 U.S. at 99]. [Back]
|
| 166 |
Manson, 432 U.S. at 114. [Back]
|
| 167 |
Michaels, 642 A.2d at 1382 (citing from United States v. Wade,
388 U.S. 218, 230 (1967)). [Back]
|
| 168 |
Id. at 1382. [Back]
|
| 169 |
Denno, 378 U.S. at 368 (1964). In this case the petitioner argued
his confession was involuntary because it was taken shortly after being
admitted to the hospital suffering from bullet wounds to the liver and
lung and while under the influence of drugs. The Court agreed with him.
[Back]
|
| 170 |
Id. [Back]
|
| 171 |
Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786
(1993). [Back]
|
| 172 |
Thomas J. Mack, Scientific Testimony After Daubert: Some Early
Returns from Lower Courts, TRIAL, August, 1994 at 23. [Back]
|
| 173 |
See, New Hampshire v. Hungerford, 94-S-045 through 94-S-047, and
New
Hampshire v. John Morahan, 93-S-1734 through 93-S-1936 (May 23, 1995)
(Hillsborough County Super. Ct.). [Back]
|
| 174 |
Frye V. United States, 293 F. 1013, 1014 (D.C.Cir. 1923).
[Back]
|
| 175 |
Daubert, 113 S. Ct. at 2795. [Back]
|
| 176 |
Id. [Back]
|
| 177 |
Id. at 2796. [Back]
|
| 178 |
Demosthenes Lorandos & Terence W. Campbell, Myths and Realities
of Sexual Abuse Evaluation and Diagnosis: A Call for Judicial Guidelines,
ISSUES IN
CHILD ABUSE ACCUSATIONS 1, 12(1995). [Back]
|
| 179 |
Daubert, 113 S.Ct. at 2796, (citing Green, Expert Witnesses and
Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of
Agent Orange and Benediction Litigation, 86 NW. U. L. REV. 643
(1992). [Back]
|
| 180 |
Id. [Back]
|
| 181 |
Id. [Back]
|
| 182 |
Terence W. Campbell, The Daubert Decision and Its Effects on
Expert Testimony, MICH. LAWYERS
WEEKLY, Sept.,1993 at 5B. [Back]
|
| 183 |
Daubert, 113 S.Ct. at 2797. [Back]
|
| 184 |
Frye, 293 F. at 1014. [Back]
|
| 185 |
Campbell, supra note 182, at 5B. [Back]
|
| 186 |
Daubert, 113 S.Ct. at 2795. [Back]
|
| 187 |
Lorandos & Campbell, supra note 178, at 13. [Back]
|
| 188 |
Ralph Underwager & Hollida Wakefield, A Paradigm Shift for Expert
Witnesses, ISSUES IN CHILD ABUSE ACCUSATIONS 156, 157 (1993).
[Back]
|
| 189 |
See Huber, P. GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM (), New York:
Basic Books, 1991.
[Back]
|
| 190 |
Schwartzman, supra note 154. [Back]
|
| 191 |
Myers, supra note 14, at 1709. [Back]
|
| 192 |
Michaels, 642A 2d 1375. [Back]
|
| 193 |
Editor's note (Hollida Wakefield), After the McMartin Trial: Some
Reflections from the Buckeys, ISSUES IN CHILD ABUSE ACCUSATIONS 220, 220 (1990).
[Back]
|
| 194 |
N. Carolina v. Robert Fulton Kelly, Jr., W1254558 (May 2,
1995). [Back]
|
| 195 |
Christopher B. Daly, Day Care and Sex Abuse: An Appeal Reopens
Wounds, Renews Debate, WASH.
POST, May 30, 1995, at A3. [Back]
|
| 196 |
Myers, supra note 2, at 1711. [Back]
|
| 197 |
Feher, supra note 45, at 229 (citing Davis v.
Alaska, 415 U.S.
308 (1974)). [Back]
|
| 198 |
Younts, supra note 17, at 705. [Back]
|
| 199 |
John Earl, The Dark Truth about the "Dark Tunnels of
McMartin," ISSUES IN CHILD ABUSE ACCUSATIONS 76, 77 (1995).
[Back]
|
| 200 |
Ceci & Bruck, supra note 95, at 162.
[Back]
|
| 201 |
Younts, supra note 17, at 706. [Back]
|
| 202 |
Id. at 692. [Back]
|
| 203 |
Id. [Back]
|
| 204 |
See Lorandos, Demosthenes, "Finding the Right Expert," in
Expert Witnesses: Beyond Junk Science and Daubert, I.C.L.E, (Ann Arbor,
1995). [Back]
|
| 205 |
Schwartzman, supra note 154. [Back]
|
| 206 |
Jennifer Allen, The Danger Years, LIFE, July, 1995 at 45.
[Back]
|
| 207 |
David, P. Elder, Investigation and Prosecution of Child Sexual
Abuse Cases, 19 WEST. ST. U. L. REV. 249,249(1991). [Back]
|
| 208 |
Seahorn, supra note 84, at 28. [Back]
|
