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Monday, June 1, 2015

Interviewing a Child Witness

A touchy subject to be certain. Generally, defense counsel is well acquainted with the challenges of interviewing child victims, and clear safeguards are in place for such occurrences. However, what happens when the only witness to a crime is a child? Similar rules apply to that of the child victim, but often it can be even more difficult to get a child witness interviewed prior to trial, as the strength of the cross-examination argument is far less. What are the controlling cases for child witness interviews?

In re Jam. J., 825 A.2d 902, 915 (D.C.2003)
The potential importance to the parent of being able to elicit the child's live testimony is heightened where, as in the present case, the proof of neglect depends critically on the admission of accusatory statements that the child herself made outside of the courtroom.

Tyree v. Evans, 728 A.2d 101, 103 (D.C. 1999)
[It is] significant that none of these [hearsay] accusations [by a child] has been tested by cross-examination, which is 'the greatest legal engine ever invented for the discovery of truth.

Simmons v. United States, 390 U.S. 377, 384 (1968)
The basic issue to be addressed when determining the reliability of a witness’ testimony is “whether the pre-trial events, the investigatory interviews and interrogations, were so suggestive that they give rise to a substantial likelihood of irreparably mistaken or false recollection of material facts bearing on [the] defendant’s guilt.

Commonwealth v. Delbridge, 578 Pa. 641, 661 (Pa. Supr. Ct 2003)
Having considered the various positions taken by our sister states on taint, we are persuaded by the courts that permit pretrial exploration of taint, that such an avenue of examination is necessary in those cases where there is some evidence that improper interview techniques, suggestive questioning, vilification of the accused and interviewer bias may have influenced a child witness...

The Age of the Child: Interrogating Juveniles After Roper v. Simmons, 65 Wash & Lee L. Rev. 385 (2008) written by Tamar R. Birckhead
Of course, there are understandable reasons for a police investigator to assume that a young person who is interrogated as a suspect would have a very different attitude than an adolescent who has been identified as a possible witness or victim of a crime. The young suspect, knowing she is considered to be a possible perpetrator of a crime, may be driven to lie or be deceptive by a variety of motivations ranging from self-interest or the protection of others (peers, adults, or family members) to fear of punishment by her parents or reprisal from the victims or the true perpetrators-among other myriad causes. The reality, however, based on research in the area of psychosocial development, is that children who are alleged to be witnesses or victims of crimes may also be motivated to lie during questioning by many of these very same factors.

Michael M., 618 N.Y.2d 171 (N.Y. 1994) at 177-179
State v. Michaels, 642 A.2d 1372 (N.J. 1994)
Many factors may render an investigative interview coercive and suggestive. The most frequently noted factors are:
  • (1) the interviewer’s lack of investigatory independence;
  • (2) the interviewer’s preconceived notions about the events and presumption of guilt on the accused;
  • (3) the interviewer’s failure to control for outside influences on the child’s answers;
  • (4) the interviewer’s use of leading questions;
  • (5) the interviewer’s status as a trusted authority figure in relation to the interviewee;
  • (6) the interviewer’s incessant repetition of questions, particularly where the questions suggest information to the child;
  • (7) the interviewer’s or other’s criticism of the accused;
  • (8) the interviewer’s use of bribes, threats, rewards, peer pressure and the like to get the child to answer;
  • (9) the absence of spontaneous recall by the child; and
  • (10) the use of multiple anatomically correct dolls diagnostically, rather than demonstratively.


[A full list of relevant cases is at the bottom of this article.]

When filing a motion to request a pre-trial interview, there are THREE thrusts to follow:
1. TAINT/SUGGESTIVE HEARING: In a taint/suggestive hearing, you argue that at least one of the 10 factors in Michaels and Michael supra applies to child during the investigatory process. This requires access to the police/child interviews.
2. MOTION TO COMPEL: In order for any demand to interview the child to have traction, you must have received an initial copy of the interview between the police and the child. If the government has not provided this, you must file a motion to compel. See, O'Brien v. United States, 962 A.2d 282,302 (D.C. 2008) - the trial court deemed the defendant's motion was "premature because the defense had not received pertinent discovery," namely the videotaped interviews of the children.
3. MOTION TO INTERVIEW: This is a tough sell, given that the child is a government witness, and production of a witness prior to trial is not required under Jencks. You must have an expert witness testify to the necessity, then use the same arguments found in a taint/suggestibility hearing. Be prepared to have your expert testify on the stand for the motion to interview.


Full list of relevant cases:
Treatise/Articles of Relevance
1. The Age of the Child: Interrogating Juveniles After Roper v. Simmons, 65 Wash & Lee L. Rev. 385 (2008) written by Tamar R. Birckhead

Regulations and Cases

1. 6th Amendment to the Constitution (right to confrontation)
2. Manson v. Braithwaite, 432 U.S. 98, 114 (1977)
3. Simmons v. United States, 390 U.S. 377, 384 (1968)
4. State v. Michaels, 642 A.2d 1372 (N.J. 1994) [SALIENT CASE] *
5. O'Brien v. United States, 962 A.2d 282,302 (D.C. 2008) [SALIENT CASE] *
6. Mindombe v. United States, 795 A.2d 39, 49 (D.C.2002)
7. In re Jam. J., 825 A.2d 902, 915 (D.C.2003)
8. In re Ko.W., 774 A.2d 296, 306 n.12 (D.C. 2001)
9. Tyree v. Evans, 728 A.2d 101, 103 (D.C. 1999) [right to cross-examine witnesses]
10. Commonwealth v. Delbridge, 578 Pa.641, 661 (Pa.Supr.Ct 2003) [SALIENT CASE] *
11. Idaho v. Wright, 497 U.S. 805, 812-813, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990)
12. People v. Michael M., 618 N.Y.S.2d 171, 180 (N.Y. Sup. Ct. 1994) [SALIENT CASE] *
13. English v. State, 982 P.2d 139, 146-47 (Wyo. 1999)
14. Ardolino v. Warden, 223 F. Supp. 2d 215, 238-239 (D. Me. 2002)




See also from Michael M., 809-811:

The New Jersey Supreme Court has determined that there is sufficient consensus among experts to conclude that highly suggestive questioning techniques can distort a child's recollection of events, undermining the reliability of the statements and subsequent testimony concerning such events ( State v Michaels, supra, 136 NJ, 642 A2d, at 1379). In Michaels, the court found that the questioning of the child witnesses was so suggestive that it created a substantial risk that the statements elicited lacked sufficient reliability to justify their admission at trial (supra). For that reason, the court ordered a hearing to determine whether the children's [***13] recollections were tainted and their in-court testimony should be barred as unreliable (supra, at 1380).

In contrast to Michaels (supra), the court in People v Alvarez (supra, 159 Misc 2d, at 965) found that there was no New York authority for the granting of such a hearing.

As previously indicated in this decision, the lack of specific authority is not an impediment to a court acting. This is especially true when the issue is the reliability of evidence to be admitted at trial.

The concern in Alvarez (supra) that a child witness would be required to endure additional proceedings could only occur if there is a showing that the interview procedures were unduly suggestive ( People v Chipp, 75 NY2d 327, 336-339, cert denied 498 US 833). Once suggestibility is shown, the dictates of a fair trial supersede the infant's inconvenience.



See also from 65 Wash & Lee L. Rev. 385 (2008):

….Taint hearings in child sexual abuse cases were first adopted in New Jersey, following the highly publicized New Jersey case of State v. Michaels. See Julie A. Jablonski, Where Has Michaels Taken Us?: Assessing the Future of Taint Hearings, 3 Suffolk J. Trial & App. Advoc. 49, 50-57 (1998) (describing the procedure for pretrial taint hearings in New Jersey following Michaels); see also Clayton Gillette, Comment, Appointing Special Masters to Evaluate the Suggestiveness of a Child-Witness Interview: A Simple Solution to a Complex Problem, 49 St. Louis U. L.J. 499, 520-37 (2005) (describing the Michaels solution for suggestive interviewing techniques and expanding on it). But see John E.B. Myers, Taint Hearings for Child Witnesses? A Step in the Wrong Direction, 46 Baylor L. Rev. 873, 899 (1994) (describing the procedure adopted by the Michaels court but asserting that pretrial taint hearings compromise the prosecution of legitimate sexual abuse cases). Although only a couple of states expressly allow for pretrial taint hearings, several others address the issue of taint in separate pretrial hearings; these states include New Jersey, New York, Pennsylvania, and Wyoming. See State v. Michaels, 642 A.2d 1372, 1382 (N.J. 1994) (holding that where a defendant can show that there is sufficient evidence of unreliability of a child witness's statements, the state must conduct a pretrial taint hearing); People v. Michael M., 618 N.Y.S.2d 171, 180 (N.Y. Sup. Ct. 1994) (holding that in some cases it is appropriate for the court to order a hearing to assess whether trial testimony has been tainted); Commonwealth v. Delbridge, 855 A.2d 27, 39-40 (Pa. 2003) (holding that "taint is a legitimate question for examination in cases involving complaints of sexual abuse made by young children" and that the proper way to explore potential taint is in a pretrial competency hearing); English v. State, 982 P.2d 139, 146-47 (Wyo. 1999) (holding that taint should be addressed in a pretrial competency hearing). Id. at Footnote 138.

Do you have a question about a child witness or child victim defense case? Call us! We have extensive experience dealing with delicate situations involving young adults and children. We can help both prepare your trial strategy and defend your case. 703-402-2723 or 1-800-579-9864.
Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

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