Part 1 of 3     Part 2 of 3     Part 3 of 3

A. Yes. (names another child (p. 4)

(f) The child explains to the detective that (names another child) sometimes pees in the room and when he pees, he gets a spanking from teacher. The child then explains to detective that the teacher other child's shirt off. The detective asks the following:

Q. She took his shirt off?

A. (child laughs).

Q. Did she really? Remember, policemen have to tell the truth.

A. No.

Q. She didn't take his shirt off did she? (p. 5)

(g) Child discovers the penis and buttocks on the anatomical doll. Detective asks child what part of the doll gets spanked.

Q. Oh, but what part would get spanked? What is that? What do you call that? Has anybody ever touched you . . you didn't like? Touched you in a special way you didn't like?

A. No.

(h) Q. Show the part of you that your Daddy would have ... if you were a . . . ever a bad boy . . . which is not very often, probably.

A. (Child turns around and hits himself on bottom, stands to pull on pants). (p. 6)

(f) The child has already learned through the interview that detective wants him to say that someone at the school took some clothes off of someone else and gave them a spanking. The child then tells the detective that teacher did this to another child. However, through further suggestive questioning the detective gets the child to admit that this did not really happen. Note that at no time in any of the interviews did the detective or any of the other interviewers ever suggest that nothing happened with the suspect.

(g) Detective is suggesting to child that what he is interested in is whether anyone touched him on the part of him where he gets spanked.

(h) Again, Detective emphasizes that he's interested in the private areas of the doll and of the child.

Detective states as follows:

Right there . . . that's where your Daddy . . . okay you don't have to pull your pants down. But you can pull the pants down on these dolls if you want to.

(i) Q. Has anybody ever touched your pee at school? Son, has anybody ever touched your pee at school? Has anybody ever touched your pee at school?

A. I don't go pee (shakes head no).

Q. Has anybody ever spanked your bottom at school?

A. Yes.

Q. Who has spanked your bottom at school?

A. This one (points to doll).

Q. That one has spanked your bottom at school?

A. (Points to doll on Mother's lap and doll on his lap). This one and this one.

Q. Okay, but has a teacher ever spanked you at school?

A. (Hold doll up) Oh, this is the . . . this one . . the teacher. (p. 7)

(j) Q. Do you have any grown ups that come down and visit you at school that may work there but aren't teachers?

A. Yeah.

Q. Is it a man or a woman?

(i) Detective again suggests that someone at the school touched child's penis. He also suggests that someone at the school spanked the child on the bottom. The child tells the detective that the two dolls have spanked his bottom.

(j) Detective suggests that someone comes down (obviously from upstairs) and visits the children. The only person upstairs in the school is the defendant.

A. It's a woman, a big woman., (p. 8)

(k) Q. Does that big woman ever bother the kids?

A. (Child shakes head no.)

Q. Have you ever been bothered at nap time?

A. No.

Q. Does anybody ever bother anybody at school?

A. No.

Q. Tell me all about what you do at school?

A. Pray. (p. 8)

(l) Child gets out of his Dad's lap and walks over and puts doll around detective's shoulders. Detective then says:

Q. Does anybody do this to you at school?

A. Yes.

Q. Do you do this at school with all your friends?

A. No.

Q. Does anybody do this to you?

A. No. (p. 9)

(m) Q. Is there anybody at school that you don't like to come by you? Any grown-ups?

Q. When you lay down at school at nap time, does any grown-up come by and get you up?

(k) Detective suggests that someone bothers the child and the other kids at school.

(l) Because of detective's suggestion, child first tells him someone at school does put their legs around his shoulders like child did with the doll. Child then changes his mind and says no one at school does do that.

(m) Detective suggests that a grown-up comes by and bothers him at nap time and he further suggests that a grown-up takes him away at nap time.

A. No.

Q. Do any grown-ups take you away from nap time? (p. 10)

A. Just sit them in the corner.

(n) Q. Have you ever seen any of your little friends get taken away from nap time and go anywhere besides the corner?

A. No, just in the corner. (p. 10)

(o) Q. Is there anybody at school that you don't . . . any grown-ups that you don't like?

A. (Gives name of another child).

Q. Are there any grown-ups at your school that you don't like?

A. No.

(n) Detective suggests that someone takes the little kids away from school at nap time.

(o) Detective again suggests that there is a grown-up at the school he doesn't like.

Through leading and suggestive questioning, the detective has suggested to the child that there is someone at the school who comes down from upstairs and that person does bad things to the children which might include taking them away from school. He also suggests through his questioning that that person may also spank the kids at school. Even though the child denies these questions, these suggestive questions will be reported as the truth at a later time by the child.

5. After the interview by the detective, mother asked child the following:

(a) Q. Did anything bad happen at school?

A. No.

(b) Q. Has anyone touched you?

A. No. 5. By her questioning, the mother suggests (a) that something bad happened at school, (b) that someone touched him, and (c) that he is afraid of someone.

(c) Q. Are you afraid of anyone?

A. No. (PH p. 73)

6. Each time child was questioned he was urged to continue his story by his father telling him that they thought he probably had more he wanted to tell them. He was told sometimes grown-ups did bad things and lied to kids and if he thought he knew about anything like that he could help us to protect him from grown-ups doing that by telling us about it. Did something that you think is wrong or bad happen at school? The child was reinforced by telling him he had done nothing wrong and was in no trouble.

6(a) After the police interview, father asks child if he told the police everything and the child answered no. He would tell more later. (notes p. 2)

7. Later that same day (12/15/86) child said he did not want to go back to school because there were bad things that happened there. The father asked child what the bad things were and child said people use bad words and another child is bad to me. (Father repeats comments in No. 6 above). The father asked if there was more and the child said yes, he would tell more later. (Notes p. 2-3)

6(a) The father is suggesting that something more happened at school.

7. Clearly, the suggestions of his parents and the police have convinced child that, for the first time since he's been attending the school, he does not want to go back to school and that for the first time he has said that something bad happened at school. However, the only thing bad he knows now is that another child at school is bad and uses bad words. The child has not learned what the interviewers expect him to disclose.

8. 12/17/86 - Child mentions suspect's name to father for the first time.

9. 12/17/86 - The child tells the father that one of the bad things at school was walks that the suspect took some of the boys on. The child then tells father that he did not go on one of the walks but that other children had told him about what happened. He said when they went on the walks they went downstairs, upstairs and outside. He said they got to walk on the long chairs upstairs. Father asked him if any other bad things happened on the walk and child tells him yes, he would tell him more later. (Notes p. 3)

10. 12/22/86 - The father asks the son further questions about the bad things that happened at school. Child tells the father that he had gone on one walk with the suspect and another boy went along. They walked outside and then went upstairs in the school building., The suspect took the child's pants down and spanked him. He did the same to another child. That is all that happened.

11. 12/22/86 - The father asked child if the suspect did anything else to him when he pulled his pants down.

8. The Mother has suggested suspect's name and now the child is repeating that name.

9. Through the interviews child is learning what his parents are expecting him to say. The child tries to give them the answer they are looking for but when father continuously asks him what else happened or what other bad things happened child knows that father expects him to say something more occurred. When he can't think of anything more, the child tells his father that he will tell him more later. This gives him additional time to think of something else that happened.

10. Child has now completely changed his story and he is repeating the very things that have been suggested to him in other questions. Child's mother suggested that he went for a walk with the suspect. Child's mother and detective suggested suspect took the child's pants down. The detective suggested that the suspect spanked child. These are exactly the things that the child is now reporting.

11. By asking this question it is suggested to child that something else happened when suspect pulled his pants down.

12. The mother has testified that child said that the suspect spanked him with a stick. (Depo. 11)

13. 12/29/86 - The father notices feces in child's pants. the father asked child why he did not wipe himself. Child responds that he didn't wipe himself because the paper hurt him when he wiped himself. Father asked the following:

Q. Did anything happen to make your bottom hurt?

A. Yes.

Q. What happened?

A. I will tell later.

The father then examines the child's anus and rectum.

14. 1/6/87 - Question by the father. What made your bottom sore?

A. The child thought for several minutes and then described the following: He was in his classroom with a teacher, and three other children. The suspect came in and said come on, let's go for a walk. After walking outside they went upstairs. Child could not describe where.

12. Child has reported that the suspect spanked him with a stick. His Mother and Father continue to question him if suspect did anything else to him when his pants were pulled down. With the passage of time the child will report that suspect did in fact do something more with the stick.

13. By his questions to child, the father has suggested that something happened to child's anus and rectum to make it hurt. When child does not have a response to father's question did something bad happen to make it hurt, child says he would tell later and this gives him time to think of what happened.

14. After the father heard from child that his bottom was sore on 12/19/86 there obviously was questioning by the father and the mother regarding what made his bottom hurt. There may have been questions by either or both that the suspect did something to make his bottom hurt. It had already been suggested that the suspect slapped him on the face, took his pants down, spanked him and then took a stick and put it in his coo coo. Child said that the suspect grabbed the stick like a baseball bat and made a thrusting motion three times. He was then taken back to class.

The suspect said if he told what happened he would be slapped and his Mom and Dad would be run over by a car. Child was never clear when the threats were made. Child said the suspect should go to jail walks, that the suspect took his clothes off, that the suspect spanked him and that the suspect did something bad in addition to the stick. It has also been suggested by mother that the suspect was someone that child should be afraid of. The child obviously knows policemen put bad people in jail and over a three-week period was able to determine that suspect was the bad person that everyone was talking about. Also during this time child had been removed from the school and several TV newspeople and police officers had been around the school during this period. Through these and other suggestions child comes up with a story that is based upon the suggestions made to him. After he made this disclosure, the typical question that comes to the parents' mind is "why didn't you tell me this before? Did the suspect threaten you or say we would be hurt if you told?"

Summary

According to psychological literature, if a preschool child is given misleading information in the form of a suggestive question after an event occurred, that misleading information in the question will distort the child's memory and the child will report that misleading information in his answer at a later time. The misleading information given to the child is the following: By taking the child to the police station and having the detective interview him about his school, it is suggested to the child that something bad is happening at his school. By then removing him from the school, which he lives next door to, this also suggests that there is some reason for his removal. Prior to the police interview, the child's mother suggested that the suspect has done something bad to him and she suggests that this might include taking him for walks, touching him where he should not have and taking his clothes off. The detective has suggested similar things in his interview when he suggests that someone comes down from upstairs at the school and that that someone is a man who is not very nice. The detective suggested that that someone spanks him and that that someone is interested in his bottom or his penis. Over the next three weeks, the child learns from his father what his parents expect him to say. When the child gives an explanation of what happened at the school, his father keeps asking him if something else bad at the school happened. The child keeps adding on to his story and the information he adds on is supplied by his mother and father. Underwager and Wakefield in their book have the following to say that is applicable to the situation:

"When the progression of the story, across weeks or months, is from innocuous, relatively innocent behaviors to ever more intrusive and abusive behaviors alleged by the child, there is a strong possibility that the growth and embellishment of the story represents the learning experience and adult reenforcement." (p. 314)

"If erroneous information is introduced in an interview of a preschool child through the use of leading or suggestive questions, it may resurface in the form of the child's reconstruction of the events. Preschoolers are more likely to incorporate erroneous post-event information into their subsequent recollections than older children."

"In every interview the child learns more about what the interrogator expects. The child learns about explicit sexual behavior. The child learns what adults, including parents, want and expect from the child. the child learns what gets a reenforcing response from the interrogator. The child learns the tale, and by repetition, may come to experience the subjective reality that it happened, even when it never did happen."

"If teaching aids such as anatomically correct dolls or coloring books are used, detail can be supplied to a child by the interview. The use of leading questions, coercion, and pressure by an interviewer plus minimal response by a child often results in a claim that a child has supplied details when, in fact, it has been

15. 1/15/87 - Hospital video-videotape with nurse.

(a) Q. did anybody ever touch you on your pee pee or coo?

A. No.

Q. Do you remember who did that?

A. No.

Q. Who did that:

A. The doctor.

Q. Who else did that? Anybody else?

A. No.

The nurse then immediately says she wants to ask child questions about his old school.

(b) Q. The nurse tells child that his father told her some-thing that child has told his father. She then says to child "your dad told me that

15. (a) The nurse suggest to the child that someone touched him on his penis or his anus. When he tells her that no one did she ignores that response and asks him who did it. When he tells her that the doctor did it, she ignores that response and says who else and when he tells her no one else she immediately directs his attention to his old school. This form of questioning suggests to the child that she believes someone did it even though he is telling her otherwise and she suggests to the child that it has something to do with his old school.

(b) The nurse has now suggested to child that she is interested in hearing about what child has told his father, you told him something about taking walks at your school. Who did you take walks with?

A. (Names the suspect)

(c) Q. So when you went for walks with the suspect you would go outside. Did anyone go with you or did you go by yourself with the suspect?

A. With (names boy).

Q. Did you ever go anywhere inside on walks or just outside?

A. Outside and inside.

Q. Where would you go when you went inside?

A. Up in the church and downstairs and then outside.

Q. And sometimes another child would go with you?

A. Yeah.

Q. And sometimes you would go by yourself or would all the time another child go with you?

A. All the time with the other child.

The nurse then leaves the room and when she comes back in she says the following:

Q. Okay. Sometimes the other child would be with you and sometimes you would be upstairs in church, which may differ from what actually occurred. She has further suggested that she is interested in hearing about the walks.

(c) The nurse has been told by child's parents that the story he told them was that he went on this walk alone with the suspect and suspect took him upstairs and put the stick in his rectum. So when child tells her that another child was always along, she suggests to him that this other child only went along sometimes. Child continues to say that another child went along all the time. She ignores this response and when she comes back into the room she makes the statement to the child that sometimes another child would be with him. By making this statement she completely ignored his previous answers because she did not believe the other child had gone along.

(d) Q. Did the suspect want you to tell anybody about what he did or did he want you to keep it a secret?

A. Keep it . . . tell.

Q. Um?

A. Tell.

Q. Did he want you to tell somebody or not to tell?

A. Tell.

Q. Did he do that to you one time or lots of times?

A. Lots of times.

(e) Q. Do you remember what we were talking about, what the rules were about your body?

A. Yeah.

Q. Do you remember what we talked about what parts of your body were private?

A. Yeah.

Q. And that your pee pee and your coo was private, right?

Q. And you said that he put a stick in your coo, right?

A. Um.

Q. Did he ever see your pee pee or your coo when he did that?

A. No (loudly).

Q. Um?

(d) When child gives her the answer that the suspect wanted him to tell people, she questions that response and he again repeats "tell." She then repeats the question a third time and he again repeats "tell." The nurse in her deposition has admitted that this is a subtle way of suggesting to the child that the interviewer wants a different response.

(e) This series of questions demonstrates that child does not have any recollection of the event or any picture in his mind of what occurred. All he is doing is responding to questions or cues given to him by the interviewer.

This series of questions demonstrates a number of improper questioning techniques that induce error into a child's account. First, when nurse asks child if the suspect saw his pee pee or coo when he stuck the stick into his rectum child answers no. If the nurse had received an affirmative response to this question she would have repeated the child's answer like she did on other

A. No.

Q. Look at me for a minute.

A. No.

Q. Did he break the rules and did he see . . . did he pull your pants down or were they up.

A. No response.

Q. Look at me. I don't understand. Can you show me where he put that stick? Show me on this doll.

A. (Takes doll and turns it on its stomach, pulls pants down a little ways).

Q. And were your pants up or down when he did that?

A. Up.

Q. Were . . . look at me. Look here. If your pants were up, how could he put a stick in your coo? (Shows child the doll with the pants up).

A. (pulls pants down)

Q. Oh, he pulled them down.

A. Pulled down and put in her . . . stick it.

Q. Ah.

A. And scissors, too.

Q. Scissors, too.

A. Yeah . . . these (shows her scissors).

Questions where she got an affirmative response. Since she got a negative response she gives him a cue which is acting like she didn't understand his answer and makes him repeat the answer again. When he repeats it twice more she then gives him the following cue: "Did he break the rules?" Note that earlier in her interview she told child that the rules are that no one can see your pee pee or coo and that no one should take your clothes off and look at your pee pee and coo. By asking child did he break the rules she is suggesting to him that he did break the rules and that he did in fact pull his pants down. After that question, she then specifically asked him did he pull your pants down or were they up and she tells him that she doesn't understand his previous answers that the suspect did not pull his pants down. She then hands him the anatomically correct doll and tells him can you show me where he put the stick - show me on the doll. She knows that he will not be able to show the bottom of the doll and the anal opening unless he pulls the pants down on the doll. She then for the third time repeats a similar question which is, "Were your pants up or down? Answer: "Up." When he gives his answer she immediately suggests to him the following: "If your pants were up, how could he put a stick in your coo?"
This suggestion could not be made anymore direct, and in response to this suggestion child looks at the doll, pulls the pants down and says he put in here a stick. Now instead of giving him the cue of disbelief she repeats his answer and says, " oh, he pulled them down." This series of questions demonstrate the bias of the nurse and demonstrates how the nurse is able to teach the child the details of the abuse and make him a more credible witness by providing him with details that he must know if the event actually occurred. An unbiased interviewer would have let him answer the questions without suggesting answers and when he gave the answers that the suspect did not pull his pants down and did not see his bottom but put the stick in his bottom when his pants were up, the interviewer would have concluded that possibly the child was never abused in this manner.

Q. Goodness. Did he do that to the other boys or just you?

A. Just me.

Q. Did anybody else ever do that kind of thing to you?

A. Unintelligible.

Q. No.

This demonstrates another opportunity where an unbiased interviewer would have determined that the child is not telling the truth.

(f) The nurse had earlier asked the child several questions about whether or not the suspect told him to tell what happened or not to tell. Now she begins asking similar questions as follows: "Did the suspect want you to keep this a secret?" Answer: "No." She then says to the child, "That is a bad thing for him to do. Sounds like he broke the rules. Did you tell anyone what the suspect did? Who did you tell? Who did you tell? Answer: My teacher." When the child tells the nurse that the suspect put the very scissors in the interview room in his coo, the nurse totally ignores that answer. She ignores it because she doesn't want him saying that those scissors were put in his rectum. She knows if she brings this evidence out on videotape that his account of the suspect putting the stick in his bottom would be subject to question. The natural question that an unbiased interviewer would have asked would have been when did he do that or how did he do that or did he do that at the same time that he put the stick in and those questions could have made it clear that the child was not abused and that he is making up his answers as he goes along. Instead, the nurse ignores his answers, takes the scissors from him and directs the interview in a different direction.

(f) When the nurse was unable to get the child to state earlier in the interview that the suspect told him not to tell, she now rewards the question to get him to say the same thing. However, the child denies that the suspect told him to keep it a secret and when he makes this denial, the nurse then tries to influence that answer by asking him if in fact he told

(g) The nurse continues with this line of questioning:

Q. Which teacher?

A. (Names a teacher)

Q. What did she say?

A. She said don't do that (to the suspect). Child then gets up and demonstrates that his teacher started hitting and kicking the suspect. The nurse immediately changes the subject.

(h) Q. What happened when you were bad at your old school? Who would punish you?

A. My teacher

Q. What would they do when they punished you?

A. They said get in here and if you don't I'll pull down your underwear. anyone. If the child would have said he did not tell anyone she would have suggested to him that he didn't tell anyone because the suspect told him not to tell anyone. However, the nurse gets an unexpected answer from the child and he says that he told his teacher.

(g) Here is another opportunity where an unbiased interviewer would have questioned the child about the fact that after the suspect stuck a stick in his rectum that he told his teacher and the teacher started beating up on the suspect. This evidence could corroborate or not corroborate the child's story and is a perfect opportunity for the interviewer to determine if in fact the child is telling the truth. However, the nurse is not an unbiased interviewer and she knows that this evidence is not helpful to the credibility of the child so she ignores his response and leads him in a different direction.

(h) The nurse is now receiving unexpected answers on every question that she asks. She is also receiving answers that she does not believe so she is not repeating those questions nor is she asking for any details about the answers. In fact, she is totally ignoring the answers and going on to different areas.

D19 When the nurse receives this answer, she immediately directs the child in a different direction. Since she is now proving that the child's story has no credibility she decides to terminate the interview.

The following comments from Wakefield and Underwager apply:

"Many interviews with multiple interviewers increases the opportunity for the child to learn what is expected by adults and thus to introduce error into the account. There are rehearsal effects and practice effects when this is done. (p. 29)

If a child is referred to a therapist, the child may spend months seeing a therapist once a week or more and which the type of therapy provided is to talk about the abuse, get the feelings out, and learn to express anger and hurt toward the alleged perpetrator. In addition, the child may be interrogated frequently by the prosecutor, brought into the court room to 'familiarize' the child with the environment, and, in effect, rehearsal.

The reality that is completely overlooked is that each of these experiences of interrogation is a learning experience for the child. There is no research evidence demonstrating the efficacy of these procedures in the pursuit of truth. There is a wide range of good research evidence pointing to the possibility and the mechanism by which error may be mistaken for truths." (p. 30)

16. 1/29/87. On this date the father indicates that he took the child over to his old school with a member of the church (names member). While at the school, the child walks through the school showing him where different things occurred. They go upstairs and the child identifies a room as a room where this occurred. (Note: this is not the suspect's office).

16. By taking the child back over to the school and walking him through the school and the upstairs, the child is able to learn where these things might have occurred. By viewing the different offices he is able to learn some details and descriptions of those offices. However, even with this, the child fails to identify the suspect's office.

At the child's deposition in May of l988, he testified that his Mother and Dad help him remember things about the suspect. He says that he goes in his room and practices it. However, even with the "practice" the child's story has changed significantly. The child claimed at the deposition in May that the suspect took him and another boy on walks outside and that they walked by the other boy's house and then they stopped in front of the church outside and threw some rocks. When they were throwing rocks, the suspect stuck a stick in the child's rectum and he also stuck one in the other boy's rectum. The two boys then ran inside and told their teacher what happened. The child said that on that same day when he got home from school, he told his Mother and Dad what the suspect did. The child also stated that when he stuck the stick in his butt, it did not hurt. When I questioned that he then said again that it didn't hurt and then he changed it and said it hurt a little bit but he did not cry.

Even after year and a half of practice, therapy, questioning by the prosecutor and his parents, taking the child into the courtroom and showing him what will take place, the child is not able to give any details of what occurred. All he is able to say is that he stuck the stick in his butt and that's about it. He has changed the location from inside the church to outside the church and he now states that the suspect did this to another boy also. He earlier said that the suspect didn't do this to anyone else. He now also believes that he immediately told the teachers and on the same day he told his Mother.

Wakefield and Underwager state the following:

"Significant contradiction and variation in the story across time, especially when the account shows that the child has no visual image but is responding to verbal cues, supports the possibility of the child learning the story from adults."

COMES NOW William N. Seibel, Jr., Attorney for Defendant, and in support of this Motion in Limine states as follows:

1. That the above-styled cause has been set down for a trial by a jury on the merits.

2. According to the Information, such trial will involve a determination on the issue of whether or not the Defendant sexually molested or abused the children listed as "victims" in the above cause.

3. Based on the testimony in the preliminary hearing in the above cause which included repeated questions on the part of the assistant prosecuting attorney concerning opinions as to rape trauma or child molestation or abuse syndromes and personal opinions as to whether or not these children were sexually molested or victims of child abuse, the Defendant believes and hence alleges that the State intends to repeatedly elicit such testimony as well as testimony of observations of symptoms of said syndromes from several witnesses at any trial in the above cause.

4. Defendant's Objections to the above-referred evidence both as to syndromes and/or observations of symptoms of said syndromes have been simultaneously filed with the Court in a separate pleading and said pleading referred hereto as "Defendant's Specific Objections to the State's Offering Expert or Lay Testimony in the Nature of Rape Trauma Syndrome or Child Molestation-Abuse Trauma Syndrome Evidence," is expressly incorporated herein by reference.

5. The law in Missouri strictly forbids the Prosecuting Attorney from eliciting an expert opinion (or a lay opinion) concerning whether or not an alleged victim or victims in the above cause displays "rape trauma syndrome" or "child molestation or child abuse syndromes" or any such testimony as to whether or not a particular act of child molestation or child abuse occurred as alleged by the State's Information on the basis of a conclusion on the part of a State's witness drawn from the opinion that said alleged victim or victims suffer from the aforesaid syndromes. State v. Taylor, 663 S.W.2d 235 (Mo. banc 1984); State v. Burke, 719 S.W.2d 887, 889 (Mo. App. 1986); and State v. Shackelford, 719 S.W.2d 943, 945 (Mo. App. 1986). At most the prosecutor may elicit testimony (assuming a witness has otherwise been properly qualified) that an alleged victim displays psychological changes that are consistent with those resulting from a traumatic or stressful sexual experience. State v. Taylor, supra at 239-242; State v. Burke, supra at 889; State v. Shackelford, supra at 945.

6. In spite of the case law cited above, Defendant contends that even evidence of the observations associated with these syndromes should be excluded by the Court from evidence for the reasons stated in Defendant's Objections incorporated herein by reference.

WHEREFORE, Defendant prays this Honorable Court to exercise its power over the conduct of trials and order and instruct the State not to elicit any of the aforementioned evidence or testimony concerning, respecting, mentioning or referring, either directly or indirectly to the evidence and matters mentioned above and for such further orders as the Court deems wise and just under the circumstances.

 

Respectfully submitted,

BRIDGES, NICHOLS & SEIBEL



By ________________________________
WILLIAM N. SEIBEL, JR. #24052
Attorney for Defendant
200 North Second Street
St. Charles, Missouri 63301
723-7020 or 946-4996

Respectfully submitted,

BRIDGES, NICHOLS & SEIBEL



By _____________________________________

WILLIAM N. SEIBEL, JR. #24052
Attorney for Defendant
200 North Second Street
St. Charles, Missouri 63301
723-7020 or 946-4996

Respectfully submitted,

BRIDGES, NICHOLS & SEIBEL

By ________________________________
CHARLES E. BRIDGES #25305
Attorney for Defendant
200 North Second Street
St. Charles, Missouri 63301
723-7020 or 946-4996

Respectfully submitted,

BRIDGES, NICHOLS & SEIBEL



By ________________________________

CHARLES E. BRIDGES #25305
Attorney for Defendant
200 North Second Street
St. Charles, Missouri 63301
723-7020 or 946-4996

STATE OF MISSOURI )

) ss.

COUNTY OF ST. CHARLES )

 

IN THE CIRCUIT COURT OF ST. CHARLES COUNTY, MISSOURI

CIRCUIT JUDGE DIVISION

 

STATE OF MISSOURI, )

)

Plaintiff, )

)

vs. ) CAUSE NO.

)

)

)

)

Defendant. )

 

MEMORANDUM OF LAW

Section 491.075 RSMo. provides as follows:

A statement made by a child under the age of twelve relating to an offense under chapter 565, 566 or 568, RSMo., performed with or on a child by another, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings in the courts of this state as substantive evidence to prove the truth of the matter asserted if:

(1) The court finds, in a hearing conducted outside the presence of the jury that the time, content and circumstances of the statement provide sufficient indicia of reliability; and

(2) The child either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness.

In 1982 the Washington legislature enacted a child victim hearsay exception which has served as the model for statutes in other states. Myers, Child Witness Law and Practice (1987) at p.

373. The Washington statute is nearly identical to Missouri's statute and reads as follows:

A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, not otherwise admissible by statute or court rule, is admissible in evidence in dependency proceedings . . . and criminal proceedings in courts of the state of Washington if:

(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and

(2) The child either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness: Provided, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

As in the Missouri statute the heart of the Washington child victim exception "is the requirement that hearsay be reliable. The statute states that the evidence must bear `sufficient indicia of reliability.' But what is the meaning of sufficient? Guidance on the probable meaning of this key term comes from two sources, the United States Supreme Court's decision in Ohio v. Roberts and the catchall exception of Rule 803(24)" (Federal Rules of Evidence). Myers at 375.

In Ohio v. Roberts, 448 U.S. 56 (1980) the U. S. Supreme Court stated that if hearsay does not fall within a firmly rooted exception, then there must be a "showing of particularized guarantees of trustworthiness." Ohio v. Roberts, supra at 66. In Lee v. Illinois, 106 S.Ct. 2056 (1986) the Court remarked in dicta that hearsay that is not within a firmly rooted exception is presumptively unreliable. Id. at 2064.

Hearsay exceptions like the Washington and Missouri statutes are not firmly rooted hearsay exceptions. State v. Slider, 688

P.2d 538 (1984); Myers at 375. "Therefore, before evidence can be admitted under such exceptions there must be a `showing of particularized guarantees of trustworthiness' sufficient to overcome the presumption of unreliability." Myers at 375.

According to Myers,* in those states that have enacted statutes similar to the Missouri and Washington statute the courts have considered the following factors, among others, in determining whether or not there is sufficient indicia of reliability to admit the child's hearsay statements:

1. Prior Testimony. If the out-of-court statement was given under oath at a prior hearing or trial at which the adversary cross-examined the declarant regarding the statement, the hearsay assumes added reliability. Myers at 363; State v. Bellotti, 383 N.W.2d 308 (Minn. Ct. App. 1986). The children in our case have not testified at a prior hearing or trial.

2. Substance of Statement Corroborated. If the content of an out-of-court statement is supported or corroborated by other evidence, the reliability of the hearsay is strengthened. State v. Taylor, 704 P.2d 443 (N.M. Ct. App. 1985). In our case there is little or no corroboration of the hearsay statements. In those limited instances of corroboration that corroboration is the result of suggestions made to the child by the interviewer. However, there is substantial evidence that the things referred to in the hearsay statements could not have occurred as alleged by the children. (See infra where this lack of corroboration of each statement is discussed).

*The Myers book has been cited by a recent Missouri Court of Appeals decision, State v. Bohanon, 747 S.W.2d 294 (Mo. App. 1988).

3. Spontaneity. Spontaneity is an important indicator of reliability. The more spontaneous a statement, the less likely the statement is to be a product of fabrication,memory loss, or distortion. Myers at 365; State v. Smith, 384 N.W.2d 546 (Minn. Ct. App. 1986); State v. Billotti, 383 N.W.2d 308 (Minn. Ct. App. 1986). None of the hearsay statements made by the children in our case were spontaneous.

4. Statement Elicited by Questioning. The reliability of an out-of-court statement is related to its spontaneity. When a statement is made in response to questioning, particularly leading questioning, the possibility arises that the questioner influenced the statement, thus potentially decreasing reliability. Myers at 366; State v. Billotti, supra; State v. Carver, 380 N.W.2d 821 (Minn. Ct. App. 1986) (in applying a child victim hearsay exception, court held that hearsay statements by young children were not sufficiently reliable when statements were elicited by questions from a physician). The hearsay statements in our case are the product of leading, suggestive and in some instances coercive questioning. (See infra which describes the leading and suggestive questioning).

5. Level of Certainty Regarding Facts Described. If a child's answers to questions indicate that the child lacks understanding of factual matters contained within the hearsay statement, the reliability of the statement is called into question. Myers at 366; State v. Smith, 384 N.W.2d 546 (Minn. Ct. App. 1986). Reliability is enhanced when a child does not agree with everything a questioner asks, or when a child corrects a questioner. Disagreement indicates that the child was not simply responding unthinkingly, or answering questions to please the questioner. Myers at 366; State v. Billotti, supra.

6. More Than One Victim With the Same Story. Two or more children may be exposed to the same event. If the children are interviewed separately, and each tells the same story, their statements are mutually corroborative, enhancing the reliability of each. If, on the other hand, the children are interviewed together, the fact that they tell the same story does little to bolster the reliability of their individual statements, since one child may be influenced by the other. State v. Carver, 380 N.W.2d 821, 826 (Minn. Ct. App. 1986) (in interpreting a child victim hearsay exception, court held that hearsay statements by young children were not sufficiently reliable in part because children were interviewed together). Myers, supra at 366.

7. Corroboration by an Eyewitness. The testimony at trial of an eyewitness to an event may strengthen the reliability of a child's hearsay statement describing the event. Myers, supra at 367. Other than the children, the State has produced no eyewitnesses.

8. Consistent Statements. Reliability is significantly enhanced when a child repeats an out-of-court statement more than once, and when each version is consistent. If the details of a child's statement vary each time an event is described, reliability is questionable. This is not to say, of course, that complete consistency is required to find a hearsay statement reliable, but the fact that a child repeats the same story to several people, especially to adults such as police officers,

tends to "mitigate the risks of insincerity and faulty memory."

Myers, supra at 367. (See infra where the inconsistencies and denials are discussed).

9. "Kids Don't Make Such Things Up." "Numerous courts and commentators state that children of tender years lack the experience to fabricate detailed accounts of abuse. It is difficult to conceive, for example, of a four-year old capable of inventing a detailed and anatomically accurate account of anal intercourse or fellatio unless the child has either experienced such acts or been exposed to them. When a child's out-of-court statement describes an event which a similarly situated child could not reasonably be expected to fabricate, the statement gains in reliability.

Courts and counsel should not accept at face value the argument that "kids don't make these things up." It may be true that a particular child is incapable of inventing the scenario described in a statement, but it is important to look behind the statement to determine whether an adult with an axe to grind has implanted the event in the child's mind. A psychiatrist, Dr. Lee Coleman, writes:

When it comes to a child's statements about sexual victimization, there are not two possibilities -- lying or telling the truth -- but three. A child may be neither lying nor telling the truth. A child, particularly a very young one, may say what he or she believes is true, even though it is not the truth.

At first blush, this seems a rather unlikely possibility, to say the least. A child believes in sexual abuse which has not taken place. I would certainly be skeptical of such an idea if I hadn't had a chance to see how children are being manipulated by adult interviewers -- sometimes by a police officer or protective service worker, sometimes by a mental health professional -- who have been trained to believe that those who really care and are sufficiently skilled at their work will help the child talk about sexual abuse.

Consider what such methodology does to a case in which the child has been manipulated before the police or child protection worker arrives. Especially when divorce and child custody disputes are taking place, it is a tragic fact that certain parents either deliberately create false accusations, or interpret a child's problems as "subtle clues" to child sexual abuse. Everything from nightmares to temper tantrums is being listed by the experts as signs that should alert parents to the possibility of sexual abuse."

Myers, supra at 367-69.

Not a single child has given an accurate account of anal intercourse or other sexual abuse. The children have only affirmed or denied the interviewer's account.

10. Admission by Defendant. An admission or confession by the defendant corroborates the child's statement. D.A.H. v. G.A.H., 371 N.W.2d 1 (Minn. Ct. App. 1985). In our case, the Defendant has consistently denied the allegations.

Under the above factors discussed in Myers, it is clear that the State has failed to overcome the presumption that these hearsay statements are unreliable.

In an article entitled "Indicia of Reliability and Face to Face Confrontation: Emerging Issues in Child Sexual Abuse Prosecutions," 40 Univ. Miami L.R. 19 (1985) Professor Graham writes that the following factors are relevant and bear upon the determination of truthworthiness of a child's statement that describes an act of sexual contact:

(1) the child's partiality, that is, interest, bias, corruption, or coercion;

(2) the presence or absence of time to fabricate (A court is more likely to admit statements made soon after the event than statements made after a substantial lapse of time. Similarly, initial statements are more easily admitted than subsequent statements. Nevertheless, although time and sequence are important, they are not preclusive because delay in reporting and vacillation are commonly associated with complaints of child sexual abuse);

(3) the physical and mental condition of the child when the statement was made (It is appropriate to consider the child's chronological age, mental age, and maturity in order to determine the child's physical and mental condition at the time he or she made the statement);

(4) suggestiveness, brought on by the use of leading questions coupled with an evaluation of the child's relationship to the questioner, considered in light of surrounding circumstances;

(5) the age of the child;

(6) the nature and duration of the sexual contact;

(7) the relationship of the child and the accused; and

(8) whether the child has reaffirmed or recanted

the statement.

An analysis of the facts in our case under the indicia of reliability referred to in Professor Graham's article results in the same conclusion as before. The hearsay statements of these children do not possess sufficient indicia of reliability to allow their introduction into evidence. The following excerpt from Graham's article is particularly applicable:

Applying the relevant factors, proponents will often succeed in introducing the child's initial statement that describes the act of sexual contact performed with or on the child by another, as well as additional statements made immediately after the initial statement. It is, however, extremely doubtful that a child's statement to a police officer, social worker, or someone specially trained to interview children will be found to possess equivalent circumstantial guarantees of trustworthiness, whether or not the statement was videotaped or otherwise recorded. The normal timing of such an interview, its investigative function, the frequent use of suggestive questions by a person in authority, and the fact that the child will usually have made several earlier statements relating to the alleged sexual contact all militate against admissibility."

Likewise, in our case, the statements made to the police officers, (the hospital) and all statements after the police interviews and (the hospital) interviews do not possess sufficient circumstantial guarantees of trustworthiness.

The third analysis that courts across the country have relied on in determining whether sufficient indicia of reliability exist to admit hearsay is that analysis set forth in the case of State v. Ryan, 691 P.2d 197 (Wash. 1984). Since Missouri's statute is modeled after the Washington statute, this analysis is particularly applicable to this case.

In State v. Ryan, the trial court allowed the statements made to mothers by four and five-year old alleged victims of indecent liberties to be introduced into evidence at the defendant's trial. The trial court stated that it found reliability in the time, content and circumstances of the statement. Thus, the statements were received into evidence under a statute nearly identical to the Missouri statute. On appeal the Supreme Court of Washington reversed the defendant's conviction and found that the statements made to the mothers by the four and five-year old alleged victims of indecent liberties were not sufficiently trustworthy to deprive the defendant of his right of confrontation by admission of the statements through the mothers. According to the Washington Supreme Court the hearsay statements were not admissible under the statute where an indeterminate amount of time elapsed between the alleged act and the victims' reporting of it, statements were made in response to questioning, there was motive to lie, the mothers had been told of the strong likelihood that defendant had committed the acts upon their children before the mothers questioned the children, and there were no observable indications of assault, pain, or distress at the time the statements were made.

The Washington Supreme Court noted that the circumstantial guarantees of trustworthiness on which the various specific exceptions to the hearsay rule are based are those that existed at the time and do not include those that may be added by using hindsight. Ryan at 204. The Supreme Court noted that the statute, which is identical to the Missouri statute in this part, requires separate determinations of reliability and corroboration. Thus, even though the defendant's confession was offered as corroboration absent were the requisite circumstantial guarantees of reliability.

In determining reliability, the Ryan case sets forth a number of factors as to when an out-of-court declaration may be admitted. Those factors are: (1) whether there is an apparent motive to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declaration and the relationship between the declarant and the witness; (6) the statement contains no express assertion about past fact; (7) cross-examination cannot show the declarant's lack of knowledge; (8) the possibility of the declarant's faulty recollection is remote; and (9) the circumstances surrounding the statement are such that there is no reason to suppose the declarant misrepresented defendant's involvement. Ryan at 205.

Applying those nine factors to the circumstances of the Ryan case, the court held that the statements cannot be deemed sufficiently trustworthy to deprive the defendant of his right of confrontation. In applying those factors, the court stated as follows:

"First, there was a motive to lie, and each child initially told a different version of the source of the candy they were not supposed to have. Second, all the record reveals about the character of the children is the parties' stipulation that the children were incompetent witnesses due to their tender years. Third, the initial statements of the children were made to one person, although subsequent repetitions were heard by others. Fourth, the statements were not made spontaneously, but in response to questioning. Fifth, as regards timing, both mothers had been told of the strong likelihood that the defendant had committed indecent liberties upon their children before the mothers questioned their children. They were arguably predisposed to confirm what they had been told. Their relationship to their children is understandably of a character which makes their objectivity questionable."



Ryan at 205. As to the remaining four factors, the court stated as follows: "The statements were undeniably assertions of past facts. While the defendant admitted to misconduct with M, he denied any wrongdoing as to J. Cross-examination was appropriate regarding this dispute. There is no contention that the statements were either spontaneous or against interest."

The court concluded that the time, content, and circumstances of the statements offered against Ryan do not bear adequate indicia of reliability sufficient to make cross- examination and face-to-face confrontation superfluous. The trial court erred in permitting the introduction of the children's statements through hearsay repetition. Ryan at 206.

All the factors that were discussed in Ryan also apply to our case. First, as in Ryan, each child initially told a different version of defendant's involvement. All seven children in our case denied that the defendant had abused them in any manner. It was only after continued questioning by their parents, and in some cases the police, nurses, and therapist, that the children finally made a statement implicating the defendant. Second, as in Ryan, the children are four and five- year olds. Third, as in Ryan, the initial statements of the children were made to one person. Fourth, as in Ryan, the statements were not made spontaneously, but in response to questioning. Unlike the Ryan case where the children admitted the defendant's involvement after the initial questioning of their mothers, in our case the children in most instances denied defendant's involvement for some period of time. Fifth, as regards timing as in Ryan, the parents in our case had been told of the likelihood that the defendant had committed the offenses before they questioned their children. Again as in Ryan, they were arguably predisposed to confirm what they had been told. And, as in Ryan, "the relationship to the children is understandably of a character which makes their objectivity questionable." In our case, the parents have admitted that they discussed this case with each other and the police prior to the questioning of their children. The parents have admitted that they made up their mind that the defendant was guilty prior to their children stating that the defendant had committed any offense. Sixth, as in Ryan, the statements which the State intends to introduce are assertions of past facts. Seventh, the defendant in Ryan confessed whereas the defendant in our case has denied all allegations against him. Thus, the seventh factor in our case is an even stronger factor that in the Ryan case. That seventh factor being that cross-examination could show the declarant's lack of knowledge. Eighth, as in Ryan, an indeterminate amount of time elapsed between the alleged act and the child's reporting of it. Ninth, as in Ryan, there is no contention that the statements were either spontaneous or against interest.

Thus, as in Ryan, sufficient indicia of reliability do not exist to allow the introduction of hearsay statements.

In determining what factors are important regarding sufficient indicia of reliability under Section 491.075 RSMo.1985, Section 492.304 RSMo. 1985 is relevant. Under Section 492.304 RSMo. Amended 1985 there are eight requirements set forth in the statute before a visual and oral recording of a child may be introduced into evidence. One of those requirements is the following: "The statement was not made in response to questioning calculated to lead the child to make a particular statement or to act in a particular way."

Thus, the Missouri Legislature has recognized that hearsay statements of a child which have been recorded should not be admissible if the statement was made in response to leading questions. If the Legislature intended that hearsay statements which are made in response to leading questions are not admissible if the child's statements were recorded should those same statements be admissible if the statements were not recorded? Certainly the hearsay statement of a child that has been recorded is more accurate and reliable than the same hearsay statement of a child that has not been recorded. Therefore, in determining whether a hearsay statement is admissible under Section 491.075 RSMo. 1985 the Court should not admit that statement if the statement was made in response to leading questions because the Legislature has indicated that such statements are not considered by it to be reliable.

Sections 492.304 and 491.075 have to be read together to determine the intent of the Legislature. Both of these amended statutes were part of House Bill 366 which was passed in 1985. Certainly it was not the intent of the Legislature to prohibit the introduction of hearsay statements of a child made on videotape because those statements were in response to leading questions but to allow hearsay statements of children when they are not on videotape. If this had been the intent the State would then be able to avoid the clear intent of the statute and introduce unreliable hearsay statements made in response to leading questions by simply not videotaping those statements. This is exactly what the State has done in our case. The State videotaped the initial statements made to the police by these child witnesses. In those statements the children were asked questions calculated to lead them to make a particular statement. The children were then sent to (hospital) for more videotaping. In those videotapes the children were again asked questions calculated to lead the children to make particular statements. Under Section 492.304 these statements are not admissible. The State then stopped videotaping the questioning of the children. However, the questioning continued to be calculated to lead the children to make particular statements. Now the State wants to introduce those statements under Section 491.075 RSMo. Amended 1985. Since the Legislature intendedto prohibit hearsay statements made in response to leading questions when that questioning was videotaped they certainly intended to prohibit the same questioning if it occurred after videotapes were made. The Legislature clearly recognized that statements made in response to questioning calculated to lead children to make a particular statement are unreliable. Therefore, those statements should be excluded under both 492.304 RSMo. 1985 and 491.075 RSMo. 1985.

Several recent Missouri decisions provide some guidance on the question of sufficient indicia of reliability. In State v. Wright, 751 S.W.2d 48 (Mo. banc 1988) the Missouri Supreme Court stated as follows:

"Under the statute, evidence of the time, content, and circumstances of the statement must demonstrate the basis for an assessment of reliability. The statements here were made within two hours of the crime, reducing the chance of memory lapse or fabrication as well as contamination from interaction with persons interested in the event and exposure to their suggestions. In this regard it should be noted that defendant was allowed to introduce evidence which he argues indicates possible sources of `contamination' during the brief period between the crime and the statement. Additional indications of reliability may be found in the circumstances of the interview. The environment was not shown to be threatening; instead, the evidence indicated that the statement took place in a special interview room designed to be comfortable and calming. No one except the victim and Phelan was present, and no direct pressure on the victim from others was possible during that procedure. The record indicates the statements were not the product of coercion or leading questions. Finally, despite some minor inconsistencies and other matters going to the weight to be accorded the declarations, an examination of the contents of the statements does not indicate that they were unreliable. Furthermore, the videotape and transcript of the interview were available to defendant for impeachment purposes and

in presenting his argument that the statements lacked the requisite indicia of reliability. In summary `indicia of reliability' must be considered in the context of the particular case and the factors prescribed by the statute."

 

Thus, the Missouri Supreme Court in Wright identifies the following factors as important:

1) The timing of the hearsay statement. If the statement was made near the time of the alleged abuse, the statement is more likely to be found reliable because "the chance of memory lapse or fabrication as well as contamination from interaction with persons interested in the event and exposure to their suggestions" is reduced.

In the above quote, the Supreme Court recognizes that when a statement is made after a period of time the following may affect the reliability of the statement:

a) Memory lapse;
b) Chance of fabrication;
c) Chance of contamination of that statement from persons interested in the event (i.e., parents, police, social workers) by exposure to their suggestions.


2) Circumstances of interview. If the interview takes place in a non-threatening environment where only the interviewer and the victim are present and "no direct pressure from others" is possible, the statement is considered more reliable.

3) If the statements are "not the product of coercion or leading questions" the statements are considered more reliable.

4) An examination of the content of the statement indicates reliability. If there are only minor inconsistencies in the context of the statements or no inconsistencies, this shows reliability.

The Court notes that a child's out-of-court statement made near the time of the event "may on occasion be more reliable than the child's testimony at trial, which may suffer distortion by

the trauma of the courtroom setting or become contaminated by contact and influences prior to trial."

In Wright, the hearsay statements made by the child were made within an hour or two of the alleged crimes.

In State v. Moesch, 738 S.W.2d 585 (E.D. Mo. App. 1987), the Court of Appeals notes that the videotape statute "precludes leading questions which essentially put words in the child's mouth."

In State v. Potter, 747 S.W.2d 300 (Mo. App. S.D. 1987), the Court of Appeals found the hearsay statements to be reliable and therefore admissible. In that case, the statement to the child's mother was made within minutes of the abuse, the statement to a social worker was made the next day and the statement to a psychologist during a hospital stay were made within a few weeks.

The Court in finding the statements admissible stated the following: "All of the statements were made near the date of the events reported by the child. Considering the child's age, each statement was remarkably consistent with the others insofar as it related the events."

In State v. Bereuter, 755 S.W.2d 351 (E.D. Mo. App. 1988), the Court found the hearsay statements to be reliable. The Court noted "the circumstances surrounding the statements made on both days were neither coercive nor suggestive. The statements on both days were consistent and contained detailed information a child of the victim's age would not be expected to know."

Respectfully submitted,

BRIDGES, NICHOLS & SEIBEL

By ________________________________

CHARLES E. BRIDGES #25305
Attorney for Defendant
200 North Second Street
St. Charles, Missouri 63301
723-7020 or 946-4996