COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
MIDDLESEX, SS. 1999 SITTING
NO. 7529
_________________________
COMMONWEALTH OF MASSACHUSETTS,
Appellant
v.
CHERYL AMIRAULT LeFAVE,
Defendant/Appellee
_________________________
ON APPEAL FROM ORDER OF THE SUPERIOR COURT
ALLOWING DEFENDANT'S
THIRD MOTION FOR NEW TRIAL
_________________________
BRIEF OF THE DEFENDANT/APPELLEE
AND SUPPLEMENTAL APPENDIX
_________________________
James L. Sultan, BBO #488400
Charles W. Rankin, BBO #411780
Catherine J. Hinton,BBO #630179
Rankin & Sultan
One Commercial Wharf North
2nd Floor
Boston, MA 02110
(617) 720-0011
Daniel R. Williams,Pro Hac Vice
Thornton & Tanenhaus
521 Fifth Avenue, 27th Floor
New York, NY 10175
(212) 883-1200
Of Counsel:
Daniel Finneran
Harvey A. Silverglate
April 1999
TABLE OF CONTENTS
TABLE OF AUTHORITIES vi
ISSUES PRESENTED 1
PRIOR PROCEEDINGS 2
STATEMENT OF THE FACTS 5
I. Relevant Facts Concerning The Suggestive Questioning of The Child-witnesses. 5
II. Relevant Facts Concerning The Lack of Any Independent Evidence of Abuse. 27
III. Relevant Facts Concerning the Scientific Evidence. 34
IV. The Motion Judge's Findings of Fact and Rulings of Law on the Motion for New Trial. 47
SUMMARY OF THE ARGUMENT 49
ARGUMENT 50
INTRODUCTION 50
II. THE MOTION JUDGE PROPERLY GRANTED THE DEFENDANT A NEW TRIAL BECAUSE THE NEWLY-DISCOVERED EVIDENCE DEMONSTRATES THAT THE TESTIMONY OF THE FOUR CHILD-WITNESSES WAS UNRELIABLE AND SHOULD HAVE BEEN EXCLUDED. 62
III. ALTERNATIVELY, THE MOTION JUDGE PROPERLY GRANTED THE DEFENDANT A NEW TRIAL BECAUSE, EVEN IF THE TRIAL TESTIMONY OF THE CHILD-WITNESSES WERE NOT EXCLUDED, PRESENTING THE NEWLY-DISCOVERED SCIENTIFIC EVIDENCE TO THE JURY WOULD HAVE PRODUCED, AT THE VERY LEAST, A SUBSTANTIAL LIKELIHOOD OF ACQUITTAL. 78
IV. THE MOTION JUDGE PROPERLY DETERMINED THAT THE NEWLY-DISCOVERED SCIENTIFIC EVIDENCE PRESENTED BY THE DEFENDANT IS ADMISSIBLE. 81
C. The New Evidence is Admissible at Trial. 88
CONCLUSION 100
TABLE OF AUTHORITIES
Cases Page No.
Brown v. Mississippi, 297 U.S. 278 (1936) 64
California v. Pitts, 223 Cal.App.3d 606 (1990) 55
Commonwealth v. Allen, 40 Mass. App. Ct. 458
rev. denied, 423 Mass. 1104 (1996) 65n., 70n., 82
Commonwealth v. Amirault,
424 Mass. 618 (1997) 3, 52n., 91, 92, 98
Commonwealth v. Amirault, 415 Mass. 112 (1993) 2, 52n.
Commonwealth v. Bray, 407 Mass. 296 (1990) 70n.
Commonwealth v. Callahan, 9 Mass. L. Rptr. 228
1998 WL 808850 (Mass. Super. 1998) 67n.
Commonwealth v. Campiti, 41 Mass. App. Ct. 43
rev. denied, 423 Mass. 1107 (1996) 63n.
Commonwealth v. Colin C., 419 Mass. 54 (1994) 66n.
Commonwealth v. Dockham, 405 Mass. 618 (1989) 88
Commonwealth v. Federico, 425 Mass. 844 (1997) 88, 90
Commonwealth v. Fowler, 425 Mass. 819 (1997) 57n.
Commonwealth v. Freeman, 352 Mass. 556 (1967) 95n.
Commonwealth v. Gordon, 422 Mass. 816 (1996) 81n.
Commonwealth v. Grace, 397 Mass. 303 (1986) 56, 63,78
Commonwealth v. Haley, 413 Mass. 770 (1992) 56
Commonwealth v. Holland,
410 Mass. 248 (1991) 64,69, 74, 78
Commonwealth v. Hunter, 416 Mass.831 (1994) 69
Commonwealth v. Johnson, 420 Mass. 458 (1995) 64, 69
Commonwealth v. Kater (I), 388 Mass. 519 (1983) 64
Commonwealth v. Lanigan (II),
419 Mass. 15 (1994) 48, 64, 65, 81, 86, 87
Commonwealth v. LeFave, 407 Mass. 927 (1990) 2
Commonwealth v. Martin, 427 Mass. 816 (1998) 56
Commonwealth v. Meggs, 30 Mass. App. Ct. 111 (1991) 56
Commonwealth v. Montanino, 409 Mass. 500 (1991) 88
Commonwealth v. Osorno, 30 Mass. App. Ct. 327
rev. denied, 410 Mass. 1101 (1991) 63n.
Commonwealth v. Pare, 43 Mass. App. Ct. 566 (1997)
aff'd, 427 Mass. 427 (1998) 82
Commonwealth v. Ramirez, 416 Mass. 41 (1993) 62
Commonwealth v. Rodriguez, 378 Mass. 296 (1979) 65
Commonwealth v. Salvati, 420 Mass. 499 (1995) 56
Commonwealth v. Santoli,
424 Mass. 837 (1997) 89, 91, 92n.
Commonwealth v. Schand, 420 Mass. 783 (1995) 56
Commonwealth v. Simmons, 417 Mass. 60 (1994) 56
Commonwealth v. Sneed, 413 Mass. 387 (1992) 93n.
Commonwealth v. Tavares, 385 Mass. 140
cert. denied, 457 U.S. 1137 (1982) 65
Commonwealth v. Tucceri, 412 Mass. 401 (1992) 79
Commonwealth v. Vao Sok, 425 Mass. 787 (1997) 57n.
Commonwealth v. Watson, 409 Mass. 110 (1991) 95n.
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993) 81, 82
Dependency of A.E.P., 956 P.2d 297 (Wash. 1998) 68n.
Felix v. State, 849 P.2d 220 (Nev. 1993) 66n.
Fischbach v. State, 676 A.2d 902 (Del. 1995) 68n.
Fogarty v. Commonwealth, 406 Mass. 103 (1989) 95n.
Franks v. Delaware, 438 U.S. 154 (1978) 62
Frye v. United States, 293 F. 1013
(D.C.Cir. 1923) 81n., 86, 87
Snowden v. Singletary
135 F.3d 732 (11th Cir. 1998) 54n.
Idaho v. Wright, 497 U.S. 805 (1990) 66n.
LaFrance v. Bohlinger, 365 F. Supp. 198
(D. Mass. 1973), aff'd 499 F.2d 29
(1st Cir. 1974), cert. denied,
419 U.S. 1080 (1974) 63, 65, 70, 72
Manson v. Brathwaite, 432 U.S. 98 (1977) 64
New Jersey v. Michaels,
625 A.2d 489 54n., 66-69, 78, 81, 82, 87, 91
People of Territory of Guam v. Ignacio,
10 F.3d 608 (9th Cir. 1993) 66n.
People v. Alvarez, 607 N.Y.S.2d 573
(Sup. Ct. Richmond County 1993) 68n.
People v. Michael M., 618 N.Y.S.2d 171
(Sup. Ct. Kings County 1994) 67n.
People v. Peck, 674 N.E.2d 440 (Ill. App. 1996) 66n.
People v. Zwart, 600 N.E.2d 1169 (Ill. 1992) 66n.
Quegan v. Massachusetts Parole Board,
423 Mass. 834 (1996) 99
Rosenberg v. United States, 346 U.S. 271 (1953) 50
Sacco v. Roupenian, 409 Mass. 25 (1990) 92
Simon v. Solomon, 385 Mass. 91 (1982) 92
State of North Carolina v. Wilson,
118 N.C.App. 616, 456 S.E.2d 870 (1995) 54n.
State of North Carolina v. Kelly,
118 N.C.App. 589, 456 S.E.2d 861 (1995) 54n.
State of Washington v. Miller,
1997 WL 328740 (Wash. App. Div. 3)
(unpublished opinion) 54n.
State v. Carol M.D. and Mark A.D.,
948 P.2d 837 (Wash. App. 1997) 67n.
State v. D.G., 723 A.2d 588 (N.J. 1999) 66
State v. Kirschbaum, 535 N.W.2d 462
(Wis. App. 1995), 82n., 89n., 92n.
State v. Malarney, 617 So.2d 739
(Fla. App. Dist. 1993) 82n., 89n., 92n.
State v. Sloan, 912 S.W.2d 592
(Mo. App. E.D. 1995) 82n., 89n., 92n.
Stein v. People of State of New York,
346 U.S. 156 (1953) 64
United States v. Brien,
59 F.3d 274 (1st Cir.),
cert. denied, 516 U.S. 953 (1995) 89n.
United States v. Daniels, 64 F.3d 311
(7th Cir. 1995),
cert. denied, 516 U.S. 1063 (1996) 89n.
United States v. Downing, 753 F.2d 1224
(3rd Cir. 1985) 93, 95
United States v. Hall, 93 F.3d 1337 (7th Cir. 1996) .91
United States v. Harris, 995 F.2d 532
(4th Cir. 1993) 89n.
United States v. Rincon, 28 F.3d 921
(9th Cir.), cert. denied,
513 U.S. 1029 (1994) 89n.
United States v. Rouse, 111 F.3d 561, 571
(8th Cir. 1997) 82n., 89n.
United States v. Smith, 62 F.3d 1073
(8th Cir.), cert. denied
516 U.S. 1098 (1996) 63n.
Welch v. Keene, 31 Mass. App. Ct. 157
rev. denied, 411 Mass. 1103 (1991) 93
Wolf v. Commissioner of Public Welfare,
367 Mass. 293 (1975) 99
Statutes, Rules, & Constitutional Provisions Page No.
Mass. Decl. Of Rights, art. 12 63
M.G.L. c. 41, § 97D 5n.
M.G.L. c. 233, § 81 66
M.G.L. c. 265, § 24C 5n.
Mass. R. Crim. P. 13(d) 69
Mass. R. Crim. P. 30(b) 55
Mass. R. Crim. P. 30(c)(2) 92
U.S. Const., amend. 5 63
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Friedrich, W., Fisher, J., Broughton, D.,
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Malpass, R., More Than Suggestion:
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ISSUES PRESENTED
PRIOR PROCEEDINGS
On January 21, 1985, Cheryl Amirault LeFave was indicted, along with her mother, Violet Amirault, and her brother, Gerald ("Tooky") Amirault, on multiple charges of child sexual abuse alleged to have occurred at the Amirault family's daycare center, the Fells Acres Day School ("FADS") in Malden. LeFave was tried jointly with her mother from June 1 to June 13, 1987 before Judge John Paul Sullivan and a jury./ LeFave was convicted of three counts of rape of a child under the age of sixteen and four counts of indecent assault and battery on a child under the age of fourteen. She was sentenced to a total of eight to twenty years imprisonment./
This Court affirmed LeFave's convictions on direct appeal. Commonwealth v. LeFave, 407 Mass. 927 (1990). In 1992, Judge Sullivan allowed her motion to revise and revoke her sentence, but that order was vacated by this Court. Commonwealth v. Amirault, 415 Mass. 112 (1993).
On April 11, 1995, LeFave filed her first motion for new trial on the grounds that the seating arrangements of the child witnesses at trial violated her state and federal constitutional rights to confront her accusers. Since the trial judge had retired, the case was reassigned to Judge Robert A. Barton. Judge Barton held a conference with counsel on June 2, 1995, at which defense counsel asked to amend the pending new trial motion to add an additional claim for relief based upon newly-discovered scientific evidence demonstrating the unreliability of the Commonwealth's child-witnesses. Judge Barton decided to adjudicate the motion without amendment, but specifically reserved to the defendant the right to present the additional claim at a later time, if necessary. (Supp. App. 10-11)/ Judge Barton allowed the defendant's motion for new trial on August 29, 1995, and entered a bail order releasing her from custody. On March 24, 1997, this Court vacated the order allowing the defendant's motion for new trial. Commonwealth v. Amirault, 424 Mass. 618, 653 (1997).
On April 29, 1997, the defendant filed a second motion for new trial based upon ineffective assistance of appellate counsel for failing to raise the confrontation issue on direct appeal./ On May 9, 1997, Judge Borenstein allowed that motion and entered an order permitting the defendant to remain on bail pending the Commonwealth's appeal. This Court granted the Commonwealth's application for direct appellate review./
On October 16, 1997, LeFave filed her third motion for new trial on grounds of newly-discovered evidence. This Court allowed defendant's motion to stay proceedings on the Commonwealth's pending appeal of the allowance of the second motion for new trial and remanded the third motion for new trial to the Superior Court. Judge Borenstein held an evidentiary hearing on LeFave's third motion for new trial on February 17-18, 1998, at which the defendant presented two expert witnesses, while the Commonwealth elected to call no witnesses. Following the submission of written memoranda and oral argument, Judge Borenstein issued a written decision allowing the defendant's third motion for new trial on June 12, 1998, and the Commonwealth appealed.
STATEMENT OF FACTS
The investigation of the Amiraults began with the statement of FADS student MC that his pants had been pulled down at the school./ No investigator ever pursued the undisputed fact, later testified to by MC's teacher, that MC had once wet himself at the school during nap time, and that either Gerald or Cheryl had changed him out of his soiled clothing.(GT 47/94-97) When MC's mother first questioned him about his pants being pulled down, MC stated that "Tooky" did it, and when his mother asked if Tooky "did anything else to you," MC said "no." (GT 49/37) This innocent event eventually led to a massive investigation. Judge Borenstein found that "the circumstances surrounding MC's disclosures are highly questionable," and "created an atmosphere in which MC was extremely vulnerable to suggestive and coercive interviewing techniques."(R. 360)
This finding was accurate. MC's mother enrolled her son in FADS in March 1984. She soon became concerned about sleeping and eating problems, crying, and enuresis. Although these behaviors may well have been associated with various traumatic events in MC's life, including his parents' violent fighting and separation, his mother's psychiatric hospitalization, loss of a pet puppy, and chronic ear infections (GT: 15/34-46; 45/108)(R 696), MC's mother suspected abuse. In April, to prompt a disclosure, she told MC that a man had touched his uncle's penis at a camp when his uncle was a boy and "that if he couldn't tell or talk to mommy or daddy, that he could call his uncle about that." (GT:48/149; 49/9-13) According to a DSS report, the uncle "spoke to MC in regards to sexual abuse" and MC disclosed that Gerald had pulled his pants down. MC "disclosed no further information," and his mother "spent considerable time with her son attempting to obtain further information." (R. 695)/ Finally, after five months of questioning, on September 2, 1984, after being asked to "tell mommy a story" at bedtime, MC told the "story of Tooky," describing various sexual acts.(GT: 14/168) His mother then called an abuse hotline.
B. The Course of the Biased Investigation.
Within days, Gerald Amirault was arrested and FADS was ordered closed. Thereafter, Judge Borenstein found:
[T]he community was thrown into a panic. On September 12, 1984, a public meeting was held at the Malden Police Station to brief parents on the investigation. At the meeting, law enforcement officials made the irreversible and critical mistake of delegating the delicate and important task of interviewing to parents. Parents were in essence "deputized" and told to question their children about a magic room, a secret room and a clown, and not to say anything positive about the Amiraults.(R. 360)
This finding was accurate. The parents' meeting was described by mothers as "chaotic and confusing." (Tr. 4/27)(GT: 19/121, 46/33) Law enforcement officials stoked parents' anxieties by telling them that "'no' doesn't mean 'no'" (GT: 20/30) and instructed parents: "Talk to the children...They kept saying that. Talk to the children." (GT: 18/60) The police instructed parents to focus the questioning on sexual abuse involving a clown, a magic room, and secret room. (GT: 20/11, 114-15) (Tr: 4/24; 5/56) When children eventually provided incoherent and inconsistent accounts of abuse, the universal motifs in their stories unsurprisingly revolved around clowns, a magic room, and a secret room. Judge Borenstein found:
The Amirault family was targeted in this investigation from the outset in a climate of fear and panic chronicled in pervasive and substantial media coverage. Susan Kelley, a pediatric nurse who interviewed all four child witnesses in this case, and law enforcement officials had decided from the start that the Amiraults had committed these crimes. Consequently, investigators chose to ignore the testimony of other teachers and students involved in the case. Shortly thereafter, several children, including the four child witnesses who testified in this case, were subjected to multiple, suggestive interviews with parents, Department of Social Services ("DSS") workers, police officers and other law enforcement officials. All of the child witnesses initially - and quite amazingly - withstood the barrage; they all denied any abuse. Eventually - and now we understand predictably - they were broken down....
(R. 361) The record demonstrates the accuracy of these findings, as described in detail below.
C. The Questioning of the Four Child-Witnesses.
JO was subjected to enormous pressure to allege abuse before she alleged abuse. Judge Borenstein found:
JO was subjected to multiple coercive and suggestive interviews. The record is replete with instances of improper interviewing techniques which seriously undermine the reliability of her disclosures including, but not limited to, repetitive questioning, the interviewer's persistent refusal to accept "no" for an answer, peer pressure, pretending, interviewer bias and use of leading questions. In addition to suggestive interviews, the record indicates a strong likelihood that JO was subjected to parental pressure to disclose... Allegations made by JO against the defendant...were made only after the suggestive and coercive interviews. (R. 366)
These findings were amply supported by the record. JO was born in October 1980 and attended FADS from April, 1981 to August, 1984. (R. 796) JO's mother attended the September 12 parents meeting, where she heard the police say: "God forbid you say anything good about [the Amiraults] or your children will never tell you anything." (Tr: 5/56) After attending the police meeting, JO's mother asked her about FADS. JO reported that her friend Abigail had touched her vagina, but denied this later. (R. 796) Investigative notes state that the father was "more confrontive [sic]" than the mother in the manner of questioning. (R.800) JO told her father that there was a "spooky" magic room in the basement, and that Tooky had asked her to take her pants down, but then she said he was only fooling. (R. 796) JO's father was agitated over the slow pace of the investigation, and her mother "wanted DSS and police to follow thru [sic] with interviewing JO to get any info needed so they [the Amiraults] won't get off." (R. 805) JO's father was so agitated that police expressed concern that he might "harm the alleged perpetrator."(R. 817)
On October 4, the police and DSS interviewed JO, who said she didn't know about a magic room. In a later interview, JO said that Cheryl showed her bum, and that JO "hit Cheryl's bum and hit it again and she was dead." (R. 803) She told a DSS interviewer that Tooky touched her vagina one time, but when a police officer joined the interview she "denied again." (R. 804) The DSS interview records described JO as being "reticent" on the topic of sexual abuse, so the investigators had to "encourage" her to discuss it. (R. 801) One DSS report stated that "JO was not volunteering" information about "bad guys" at the school, so the police officer had to ask her directly. (R. 802) Investigators ignored JO's observation that Violet and Gerald "love[d] us." (R. 795)
On October 12, JO told her mother that Tooky put a key in her vagina, Cheryl showed her bum, Cheryl pulled JO's pants down, and "Robert" slapped her face. (R. 799) JO later told investigators that a teacher named Ann Marie tried to intervene while Gerald was touching her vagina. (R. 798) She described an incident where another child was dropped on her head while someone grabbed her vagina. (R. 805) JO claimed that abuse in the magic room took place while "all [her] friends were there." (R. 798) On November 7, evaluator Susan Meyer noted: "JO steadfastly denied, during the evaluation, that she was sexually abused," but Meyer nonetheless concluded that JO had been abused based upon observing her play.(R. 795) When JO was interviewed by Susan Kelley in December 1984, Kelley used a wide range of improper interviewing techniques. Kelley invoked the theme of "helping" JO and the other children. (R. 1002, 1010, 1013) Kelley stated: "Oh, MT told me all about her teachers, too. Would you want me to, to tell me? No? Why?" (R. 1005) Kelley asked leading and repetitive questions such as asking if JO had ever seen a clown before. When JO answered that she had seen a clown at a circus, Kelley asked: "Did any clown ever visit you at Fells Acres?" JO answered: "No." Rather than accept that answer, Kelley asked the same question twice more.(R.1007) Kelley engaged in repetitive questioning regarding sexual contact. (R. 1011, 1021, 1023-24) JO told Kelley that she saw a penis on her father and another man unrelated to FADS. Kelley never followed up on these answers, but when JO denied seeing a penis on any FADS personnel, Kelley persisted in questioning her. (R. 1027-1030)
Kelley also used anatomical dolls and drawings, focusing on nudity and "special body parts." (R. 1005) Kelley invited speculation and imagining: "Let's pretend this little girl doll is at Fells Acres, okay." (R. 1008) Kelley indicated that the doll, represented as a "little girl," is "sad." (R. 1007) Kelley then asked a series of leading questions about whether anyone touched the "little girl's" vagina, and asked: "What would happen if someone touched her vagina? Would she be sad?" (R. 1008) Kelley then shifted the focus onto JO, asking leading questions concerning whether anyone had touched JO's vagina. Kelley used a negative emotional tone, insisting that JO was "scared to talk." (R. 1011, 1024, 1033) Despite all of these suggestive techniques, JO made no allegation of sexual abuse.
In February 1985, six months after first being subjected to suggestive questioning, JO alleged for the first time that Cheryl had sexually abused her. JO told her mother that she had to kiss Tooky's penis and kiss Vi and Cheryl on their vaginas. (Tr: 5/26-27)
JO did not testify at Gerald Amirault's trial. At Cheryl's trial, JO testified that Violet, Cheryl, and Gerald would retrieve her from her class "once a day," after naptime and take her to the magic room. She would ask her teachers for permission to leave the classroom. In the magic room, she would have to touch Cheryl's bum while Tooky took pictures. (Tr: 5/152-159) When she returned from the magic room after having been molested, her teachers would ask her, "How was it?" and she would say, "all right." (Tr: 3/151, 175-82, 196)
2. Suggestive questioning of JB.
JB was also subjected to highly suggestive questioning before she made any allegation of sexual abuse. As Judge Borenstein found (R. 382-383):
The manner in which JB was handled is an example of one of the most blatant, unfair and unreliable treatments of a child by investigators, and parents. Neither her parents, nor medical personnel had ever raised a single concern about JB before September 1984. By that time she had [not] been enrolled at FADS for more than one and a half years, and it was only after she was subjected to highly suggestive interviews that JB made her first disclosure of sexual abuse. In addition to the suggestive interviews, both before and after this disclosure, JB was subjected to other powerful influences which affected the reliability of her disclosures. These include, for example, parental pressure to disclose, as well as cross-contamination through informal visits and months of play therapy with another little girl who attended FADS, AJ, but who did not testify at the defendant's trial. Investigators were well aware of these influences....[but] chose to ignore that information, because it did not serve their preconceived ideas of what had happened to JB....[A]ny disclosure that did not implicate this defendant or members of her family was bypassed in favor of pursuing only those that did....
JB's allegations against the defendant...were made only after suggestive, coercive interviews and all the other influences were brought to bear on this child....[E]very trick in the book was used to get the child to say what investigators - and eventually her parents - wanted her to say, rather than to learn, in a fair manner whether anything had actually happened to her.
These findings were completely justified. JB was born in November 1978 and attended FADS from August 1982 until June 1983. (Tr: 4/72, 3/7) When her parents first started questioning her in September 1984, JB had been away from FADS for over 15 months. In response to reading a newspaper article about FADS, JB's mother contacted the police, who instructed her to ask JB about a magic room, a secret room, and a clown. (Tr: 3/9-10) When questioned between September and December, JB denied abuse.
JB's mother and the mother of AJ, another little girl at FADS, frequently babysat for each other's children. (GT: 22/12-13) Therapy notes indicate that AJ's mother had once walked in on AJ being molested by a retarded brother-in-law. (R. 652) JB's close relationship with AJ clearly led to contamination. Beginning in early 1985, JB engaged in months of play therapy together with AJ. (R. 662-688)/ At one point, JB described how she and AJ wondered aloud together what happened at FADS.(R. 899) AJ's allegations were patently unreliable, as AJ accused prosecution investigator Susan Kelley herself of abuse and then later said she was only "fooling" when she attributed abuse to a clown. (M.Tr. 1/94-95, 201-202) Yet AJ's unreliability did not deter investigators in crediting JB's allegations, which mirrored AJ's. Both children claimed that teacher Ann Marie was involved in the abuse, yet this teacher began working at FADS after both these children left the school. (Tr: 3/14) JB was exposed to media reports about FADS. She stated prior to any allegation: "On the news we see day care and its all closed up....'Cause the people were bad." (R.918)
JB denied that she had been abused at FADS when first interviewed by Susan Kelley on December 28, 1984. Kelley quickly attempted to induce an allegation through the use of AJ. Kelley told JB that AJ was a "big help," and that JB -- if she wants to be a "good" girl like AJ -- should "help" also. (R. 885) Kelley used AJ to feed JB with suggestive information:
AJ told me about the clown; that's why I'm going to ask you a few more questions about the clown, okay? Because AJ told me everything and now I want you to tell me too, okay? Because it's best that you both tell me. Could you tell me about if the clown ever take his clothes off in any way? (R. 890)
Kelley introduced the topic of fear:
AJ told me that there was a time that you and AJ were in the room with the clown by yourselves in the magic room,...[and] something happened that you were scared and she was scared, too.(R. 889)
Kelley did not hesitate to contradict JB when her statements conflicted with AJ's alleged statements. For example, Kelley contradicted JB's denial of knowledge with: "[AJ] said you were there." (R. 895) When JB accused AJ of lying, Kelley sided with AJ, stating: "I really believed [AJ] because she told me all about it."(R. 896) When JB denied that she had ever heard of the magic room, Kelley stated: "That's funny, because AJ told me about the magic room." Significantly, JB asked: "What was it?" (R. 930) Kelley repeatedly ignored JB's answers. After JB specifically denied that AJ had her clothes off, Kelley asked: "So, what did you say to AJ when she had her clothes off at Fells Acre?"(R. 899) Kelley used anatomically detailed dolls and drawings heavily during the interview, and JB was encouraged to pretend, often through puppets. (R. 890-891, 903-905)
After her interview with Susan Kelley, JB told her mother in the car on her way home that a clown at FADS had spanked her and AJ; put his peepee, pencils, and thermometers in her and AJ's peepees and bumbums; and threatened to kill her if she talked. (GT: 20/115-126) In her second Kelley interview, JB's allegations continued in this vein. JB continued to identify the culprit as a "clown" who spanked her while naked, and used his penis, pencils, and thermometers to penetrate her vagina and anus. (R. 633, 918-919, 929-931) JB did not claim that the clown was one of the Amiraults, but referred to it as "Sha Sha." She claimed that Sha Sha the clown committed this abuse in the magic room at FADS during normal school hours, and that Cheryl told him to "knock it off." (R. 922) She claimed that Cheryl took pictures of naked children and put a thermometer in her peepee and bumbum.(R. 932-936) JB also claimed that Gerald was spanking Cheryl in the magic room, and that he "stuck out his peepee" on eight different occasions, and once peed in front of her. This conduct allegedly took place "in his office." (R. 918-937, 940-947)
By the time JB became a witness at Gerald's trial, "Sha Sha" the clown had been transformed into Gerald Amirault. JB's curiosity about the magic room ("what was it?") had evolved into certainty about its existence. On cross-examination, JB acknowledged that she had truthfully told Kelley she never heard of the magic room, that her mommy told her about the magic room, and that her mommy told her she had to talk to Kelley about the magic room. (GT: 21/74) JB testified that Tooky was the only bad person at FADS, and that her mother had told her he was bad. (GT 21/56)
At Cheryl's trial, JB testified that Cheryl and Tooky put pencils and thermometers into her anus and vagina in the magic room and took pictures. (Tr: 4/86-89) She also claimed that her teacher required her and AJ to go up to the magic room with Tooky. (Tr: 4/108-11)
3. Suggestive questioning of MT.
MT was subjected to suggestive questioning before she alleged abuse. Judge Borenstein found (R. 404-406):
...MT was subjected to even more blatant, coercive and suggestive interviews than any other child witness. Before her first interview with Susan Kelley in November 1984, MT had been interviewed at least eight times by her parents, law enforcement and medical personnel. Although none of these interviews prior to the Kelley interviews were videotaped, the reports from some of these interviews clearly shows that MT was exposed to multiple interviews in which she was the target of a barrage of suggestive and leading questions about what, not if anything, happened at FADS. These interrogations were conducted by individuals who had already decided what had happened to MT. The goal of these investigators was not to learn in a fair manner what, if any, abuse had occurred, rather to convince the child of what they had decided they already knew.... After having been subjected to numerous suggestive interviews and never disclosing abuse, MT began to make disclosures that were incredibly inconsistent....
These findings were fully supported by the record. MT was born in August, 1980 and attended FADS from January 1983 to September 1984. (R. 827) On September 8, 1984, MT's mother questioned her about FADS. MT said she was happy at school, and nothing weird happened there. (GT: 18/41). On September 12, MT's mother attended the parents' meeting at the police station at which the authorities instructed her to question her child "persistently." (GT: 18/60)(Tr:4/14-16) Police told her: "Just because they say no the first time, it doesn't mean that its no. Sometimes no means yes." (Tr: 4/14)
On September 17, police told MT's mother to ask about a magic room, secret room, and clown, and she told police that she would talk to her daughter to see "if she reveals any positive result." (GT: 19/135) MT's mother's fiancee/ questioned MT, and MT told him that Gerald photographed children dressing up and that Vi had pulled her pants down and hit her. (GT: 18/45) Later, MT told her that Tooky had a magic camera, and that Cheryl had inserted a purple wand into her bottom.(Tr: 2/93) MT repeated these allegations on September 19 during an interview with a psychiatrist, Dr. Renee Brant, the Commonwealth's expert at trial. (Tr: 2/105)
A police report documenting the police/DSS interview on September 20, 1984, reveals the leading nature of the questioning: MT "refuse[d] to elaborate on [matters concerning FADS] and would have to be led back to the subject...." (R. 849) Anatomical dolls were used during the questioning at that interview. (R. 865) MT stated that a clown hit her and chased her, Miss Vi and Miss Angel hit her, Miss Vi pulled down her pants and spanked her, Al and Tooky punched her, and Al and Tooky had a camera. She also stated that she missed FADS and denied knowledge of a magic room. (GT: 19/144)(R. 864-66)
On September 24, in her second police-DSS interview, MT described a roving clown at the school who hit FADS children, punching her in the belly outside of the school building, and striking another child on the head with a purple magic wand. (R. 849, 867) The DSS notes clearly demonstrate that leading questions were used. The DSS interviewer asked MT if she ever touched the clown's penis, and if she touched it with her mouth. When MT answered yes to these leading questions, the interviewer asked MT to demonstrate on an anatomical doll how she put her mouth on the clown's penis.(R. 868) During this interview, MT reiterated her earlier claims that a "magic wand" and a thermometer were used to penetrate her "bum and vagina." (R. 869) MT alleged that "Al" was involved in this activity, along with the Amiraults, and that it occurred "every day." (R. 869)
MT was interviewed twice by Susan Kelley. When Kelley first asked what Tooky did that was bad, MT replied "Nothing really, but he was bad." When asked what kind of bad things he did, MT replied: "Nothing." (R. 1057-1058) She said she never saw Tooky naked; and there was no magic room.(R. 1058) During the second interview, she said she saw the three Amiraults naked, and they touched her vagina.(R. 1015-35)
During these interviews, Kelley repeatedly implored MT to settle down and answer the questions. (R. 1052-55, 1058, 1062, 1079, 1104) When MT stated "I'm all done talking," Kelley refused to stop the interview, stating: "Oh, well I'm not done now, MT." (R. 1092) Kelley repeatedly attempted to "bribe" MT to talk about FADS. For example, Kelley told MT: "I tell you what, why don't you tell me that [something special] now and then we can play with the jewelry afterwards." (R. 1074) MT told Kelley that she wanted to call the weatherman after she disclosed "something special." (R. 1074-75) Later, Kelley told MT, "We're going to finish our story and then it's jewelry time." (R. 1079) Later still, Kelley promised MT, "We're going to call the weatherman right after you tell me about the clown." (R. 1097) Kelley also told MT that the police were involved(R. 1057), and MT later asked: "Can I have a policeman badge?" (R. 1096)
Kelley told MT that another child, identified as "K," told her about FADS. (R. 1039) While grabbing at an anatomical doll, MT told Kelley that a bad clown laughed and "made us, right, touch his penis." (R. 1042) When asked where this event took place, MT explained that she and other children were "outside" and people laughed at her and the others, saying "Ha, ha. You're outside naked." When asked who else was there, MT suggested: "How about I say five or six clowns?" (R. 1042-44) When asked the gender of the clown whose penis she touched, MT stated it was a "lady clown." (R. 1043) When repeatedly asked whether the clown touched MT, MT finally responded that he touched her on the foot.(R. 1045) On another occasion, MT told Kelley that abuse took place at her house when she was home alone. (R. 1093) MT also accused a teacher named Miss Angel. (R. 1089) MT exhibited no outward signs of trauma in the interview, remarking: "Well, a matter of fact [sic], we're having fun now." (R. 1079) The "fun" activities included Kelley's invitation to MT that "we can pretend." (R. 1088, 1099)
Contrary to her statements to Kelley that there was no magic room and that the clowns abused her outdoors, at Gerald Amirault's trial, MT accused Gerald of abuse in the magic room. (GT: 17/61-62) On cross-examination, MT stated that she had lied to Kelley when she told Kelley that the bad clown was a lady. (GT: 17/74).
At Cheryl's trial, MT testified that Cheryl and Violet placed a purple and white magic wand inside her vagina and anus, and that Tooky took nude photographs of her. (Tr: 2B/7-21) She testified that Cheryl and Violet put their mouths on her vagina and that all of the teachers were bad and did "sex things," except for Miss Ann Marie. (Tr: 2B/15, 61-62)
4. Suggestive questioning of BL.
BL was also clearly subjected to suggestive questioning before he made any allegations of abuse. Judge Borenstein found (R. 420-421):
BL had been subjected to multiple, suggestive interviews for almost five months before he made his first disclosure against the defendant on January 30, 1985. Although evidence of interviewer bias can be found throughout the record, one of the most striking things to this Court is how law enforcement officials and medical personnel were well aware of the enormous amount of parental pressure placed on BL to disclose, yet did not factor that into their assessment of BL's disclosures. The record is replete with examples of how Mother was convinced that BL had been abused and how she would constantly question him about FADS, an inappropriate and dangerous way to determine the truthfulness of what, if anything, had occurred to him. By June, 1985, the frequency and intensity of Mother's questioning reached the point where BL informed his therapist that he was relieved that Mother stopped questioning him about FADS. This is the same parent who in a report to BL's therapist had stated that one of her concerns about her child was his propensity to lie.
Equally disturbing to this Court is the investigators' total disregard for the numerous fantastical allegations contained in BL's reports, such as tales of robots and animal torture and killings. Investigators used only those claims which were useful in building their case against the defendants and discarded those that were not. There is not a single instance in this lengthy record where an investigator questioned the veracity of BL's reports.
The record amply supports these findings. BL was born in April 1978 and attended FADS from March 1982 to September 1984.(Tr: 4/42-43) BL's mother attended the September 12 parent meeting and police later told her to ask her son about a magic room and a clown.(Tr: 4/44, 80) As of October 11, BL had been interviewed three times by law enforcement, yet had made no allegations of abuse.
DSS notes reveal that BL was quite communicative. He spoke in detail of a "cage under the porch." (R. 748) When asked about "clowns," BL stated that he "saw them at the circus." (R. 750) When asked about picture-taking, BL said that "class pictures" were taken and his picture appeared in the paper when he "graduated" from FADS.(R. 750) When asked about a "secret room," BL stated that it was located at Violet's house and was used for children to change into their swimsuits when they swam in her pool.(R. 750) BL "denied anyone took their clothes off at school and the only 'bothering' was female students who chased [and] tried to kiss him, indicating on the cheek."(R. 750)Investigators characterized the interviews as "without success."(R. 747) Although BL expressed no "nervousness, fear or secrecy," investigators complained that "questions went unanswered." (R. 748)
Although BL denied abuse, BL's mother wanted him to be evaluated. He began therapy in November 1984 and questioning continued there. The therapy notes indicate that BL "continues to insist that nothing happened to him," but "is worried about animals getting lost, hurt, or killed." (R. 730) On November 13, 1984, BL told the therapist that "16 kids have died from that school [FADS]." (R. 728) He also complained of balls of light chasing him, after which the therapist leadingly asked him if the balls of light were like flashbulbs. (R. 729) The therapy notes also confirm that BL's mother was still active in prompting BL to talk about abuse: "BL came prepared to talk about 'old school,' obviously at his mother's insistence." (R. 730) BL's mother persistently questioned BL, to the point that his therapist noted in May 1985 that he was relieved that his mother had stopped questioning him about FADS. (R. 735)
BL was again interviewed by law enforcement and DSS on February 1, 1985, after his mother reported that BL disclosed to her that "Miss Cheryl" kissed him all over and stuck objects into his anus, and that he had to engage in oral sex with Violet and Cheryl. (R. 734) BL stated that teachers "threw things including the furniture." (R. 755) BL stated that "Miss Cheryl put a stick up his bum, and that 'it hurt very much.'" (R. 755) BL also stated that a "robot" warned the children to keep quiet about FADS.(R. 756, 758) BL retracted his allegation against Cheryl in this same interview, stating that neither Cheryl nor Tooky anally penetrated him or took pictures.(R. 756) The use of leading questions is indicated by such notes as, "Worker refocused BL by asking him if Miss Vi had done anything else to him." (R. 755); "The words twisting, turning and rubbing [of the penis] were initially provided by [DSS] worker. Later BL incorporated them into his own speech..." (R.756)
BL's allegations were not limited to the Amiraults; he claimed that "Miss Marie" and "Miss Carol" were also involved in sexual abuse.(R. 758) BL stated that "Miss Cheryl killed a dog by repeatedly striking/cutting the leg of the dog with a knife," that she "threw a bird into a tree until its wings broke," and that a raccoon was hurt or killed.(R. 758) BL claimed that "Cheryl stabbed and killed a dog in front of [children] and told the children that would be them someday if they ever told about the activities at the school."(R. 762) BL accused Violet and Cheryl of "punch[ing] the children with their fists, which left bruises." (R. 759)
BL was interviewed again by DSS and the police just two days later. The focus of BL's account of abuse during this interview was Violet Amirault's swimming pool. He claimed that Violet brought him to the garage, took down his pants, and spanked him for no reason. After the spanking, "she would put a stick up and into BL's anus," describing this as "very painful." (R. 761-62) BL also stated that Vi and Cheryl photographed him in the garage, and Cheryl and Tooky fondled him. (R. 762)
On February 15, 1985, Susan Kelley questioned BL. His first remark, upon being asked about FADS, was: "My mother asked me questions." When asked what kind of questions, BL said, "Bad ones." (R. 961) Later in the interview, when Kelley told BL that "no one is going to hurt you," BL responded, "Everybody keeps on telling me that." (R. 980) Kelley used anatomical dolls and drawings to prompt disclosures. (R. 964, 983)
Kelley did not test BL's allegations concerning the fantastical elements of his story. When BL stated that a "robot" was involved in the sexual abuse conspiracy, Kelley ignored him.(R. 970) BL's disclosures were remarkable for their lurid and bizarre details of animal sacrifices, torture, and killing of children. BL told an elaborate tale of children being "tied up on a tree" with their clothes off by "All the teachers. They took turns everyday." (R. 975) On the subject of "clowns," which Kelley introduced, BL stated he did not know why the clowns were bad. (R. 990) BL identified Cheryl and Tooky as clowns; he also said that Tooky dressed up as a lobster. (R. 994) When asked who killed animals, BL stated, "All the teachers, except Miss Kim and Miss --." (R. 977) When asked to tell Kelley "the story" about killing animals, BL responded "You mean this is a story?" (R. 978) BL's own mother reported that BL had a tendency to "lie" and "make[] up unbelievable stories." (R. 780)
At Gerald's trial, BL recalled a DSS worker "telling me that there was a clown." (GT: 26/111) He claimed that Vi and Cheryl cut off animals' limbs, that a robot threatened kids, and that all the teachers tied him naked to a tree and killed animals. (GT: 26/116-123)
At Cheryl's trial, BL alleged that Violet and Cheryl took him to a garage where Violet stuck a stick up his bum, Cheryl put her mouth on his penis, and Tooky took pictures. (Tr: 5/86-87) BL testified that Cheryl hurt and killed animals, including a squirrel, dog, and racoon, in front of all of the kids and all of the teachers, and that the blood of the animals was buried in a sandbox at FADS. (Tr: 5/111-115) BL testified that Cheryl and her mother hurt birds, including a blue bird with a yellow beak, and that they gave him white pills to swallow. (Tr: 5/91,99) BL insisted that Violet tied him naked to a tree outside, in full view of the other children and teachers at FADS. (Tr: 5/117-122) He also testified that there was a grey, square talking robot with wheels who told him four times not to tell his parents what had happened at the school. (Tr: 5/130-32)
II. Relevant Facts Concerning the Lack of Any Independent Evidence of Abuse.
A. The Lack of Physical or Behavioral Symptoms Providing Independent Evidence of Abuse.
With regard to the children's alleged physical and behavioral symptoms, Judge Borenstein found:
Parent's reports which would normally serve to corroborate the testimony of the children, were inconsistent and made only after the investigation was well under way and some of the interviews had taken place; many of these interrogations were conducted by the parents themselves. Parents' memories suddenly surfaced about observations often made months or years before, without ever having been revealed to anyone. Their recall changed in order to conform with their beliefs, fostered by the media frenzy surrounding this investigation, and the influence of law enforcement, that their children had been abused by the Amiraults...
Behavioral symptoms of the children alleged by the parents emerged only as a result of the coercive and suggestive interviewing that took place, other behavioral disorders, discord or changes in the family... None of these symptoms were disclosed until later in the fall of 1984.
Physical evidence in this case is almost non-existent and at most inconclusive on the question of whether these children were sexually abused. With the exception of one child, the minimal amount of physical evidence in this case was reported only months after the allegations surfaced. Even that child had similar physical symptoms before she ever enrolled in FADS; the one physical symptom seen in this child was inconclusive, according to her own doctor and the Commonwealth's witnesses.
(R. 363-364) These findings were accurate, as described in detail below with respect to each child-witness.
JO's mother testified at trial that JO was "clingy" had "difficulty sleeping," "was wetting her bed," "refused to go to the bathroom by herself," and "became rebellious and hateful towards her mother." All this behavior occurred after JO left FADS. (Tr: 5/30,62) DSS records show that the behavioral changes occurred only after JO was subjected to coercive interviewing.(R. 802, 805) JO's purported sexualized behavior began after JO's second suggestive investigative interview regarding sexual matters.(Tr: 5/31) In evaluating JO's behavioral difficulties, investigators ignored the facts that JO's father was a violent man with a penchant for illegal drug use and that JO's mother and father fought bitterly. (Tr: 5/40, 46) There was no physical evidence, other than the meaningless finding that JO had mild vulvitis in December, 1984, months after she left FADS. (Tr: 5/39) Vulvitis may occur from rubbing of clothing or irritation from soaps (Tr: 5/26-27), and is "very common" for toddlers. (Tr: 10/17-18)
2. JB's alleged symptoms.
JB had a chronic problem wetting herself, but it clearly was not associated with FADS. The wetting problem continued up to two years after JB left FADS.(GT: 22/60)(GT: 22/62-64) JB suffered from chronic urinary tract infections, which can account for wetting and vaginal pain, and the infections and associated symptoms continued up to two years after JB left FADS. (GT: 22/54-56, 63-64) (Tr: 3/100-01, 5/51) Urinary tract infections can be caused by poor toileting practices. (Tr: 5/53)
Over eighteen months after ceasing all contact with FADS, in January 1985, JB was examined by Dr. Emans, who discovered vulvitis, redness around her vulva and labia, cracking and fissuring of her labia, and a hymenal bump.(Tr: 5/24-26) None of these symptoms justify an inference of sexual abuse, as they may arise from a wide variety of causes. (Tr: 5/28, 72-73)(GT: 35/111-12)
The behavioral symptoms allegedly exhibited by JB were first revealed by her mother to her pediatrician in December 1984, one and one half years after JB left FADS. JB's mother testified at trial that while JB attended FADS, she resorted to infantile behavior, such as engaging in baby talk, had nightmares, and resisted being bathed.(Tr: 3/68-70) According to JB's mother, for about a month in the summer of 1984, JB "would go outside and take all her clothes off, and this would be almost every day, three and four times a day." (GT: 22/78-80) Also, for "a short while," JB "would put her toy telephone receivers, or toys, or brushes between her legs, up near her vagina." (Tr: 3/81) None of this alleged behavior was mentioned to anyone while JB attended FADS, and none of it was remarkable enough to cause JB's mother to mention it when she filled out a behavioral questionnaire at Susan Kelley's request.(GT: 22/62-71)
In June 1981 and February 1982, before she was ever enrolled in FADS, MT was treated for a yeast infection. (Tr: 10/48) On March 1, 1984, MT's mother took her to the hospital, reporting that MT had been complaining of itching and pain for two weeks. (R.847) MT was diagnosed with vaginitis and urinary tract infection and given a prescription for urinary tract and yeast infections. (R.847) Dr. Guthrie testified that he would not conclude, based on her vaginitis, that MT had been sexually abused.(Tr.10/47) No further medical intervention was sought at that time. MT's mother contended at trial that while MT was enrolled at FADS, MT complained every night, from February 1984 until just after FADS closed in September 1984, that her vagina hurt.(Tr. 2B/143-146) Yet, MT's mother failed to mention this condition when she visited her family pediatrician after she attended the September 12 meeting about suspected sexual abuse at FADS.(GT: 19/121) Dr. Guthrie questioned MT's mother in detail about her observations of MT's symptoms (Tr: 10/14-17), yet she told Dr. Guthrie on September 13, 1984 that she detected no symptoms in MT and was not concerned about sexual abuse at FADS. (R. 847) Dr. Guthrie evaluated MT's vaginal area and concluded that everything "appeared normal."(Tr: 10/14-17) Two months later, MT was diagnosed by Dr. Emans with vulvitis (Tr: 5/63), which is "very common" for toddlers. (Tr: 10/17)
MT's mother testified that MT became "clingy" and at times wanted to stay at home. (GT 19/57, 20/9) Mother also testified that MT put her hands between her mother's legs, tried to touch her breasts, and stared at her mother while she dressed, but this was a "very rare" occurrence. (GT: 19/64) None of these purported behaviors were reported to her pediatrician in the fall of 1984, before MT was subjected to suggestive questioning on sexual abuse. Other alleged "signs" of abuse, such as nightmares, fears of being alone, reduced appetite, and bedwetting, which are often associated with childhood, were similarly never mentioned before MT's mother became convinced that her child had been abused. While the mother testified at trial that MT refused to eat, she told her pediatrician, a day after the meeting at the police station, that MT's appetite was "good." (R. 847)
MT's troubled home life may well have contributed to any behavioral difficulties she may have suffered. Her mother suffered from severe emotional problems and drug use, and she had to relinquish custody of MT for a fifteen month period while she spent time in a half-way house. (GT: 20/20-21) The purported clinging and staring behavior by MT occurred shortly after mother and child were re-united. In addition to substance abuse problems, MT's mother had a history of psychiatric illness. (Tr: 4/36) MT was again separated from her mother in March of 1984 because MT's mother underwent surgery. (Tr: 4/45-46) Throughout the investigation, MT made references to her fear of being abandoned by her mother. (R. 865)(GT: 18/46)(Tr: 28/18-19) Investigators never explored the manifest trauma associated with MT's separation from her mother for nearly half of her young life.
4. BL's alleged symptoms.
BL showed absolutely no physical evidence of sexual abuse, which, as Dr. Erikson testified, would be expected from having a pointed stick inserted into his rectum. (Tr. 9/38) DSS stated in a report that BL's mother had not noted any changes in behavior while he attended FADS. (GT:27/156)(R.751) In a behavioral symptoms questionnaire given to her by Susan Kelley, BL's mother made no mention of sexualized behavior. (GT: 27/153-55). BL's mother twice acknowledged that all of her son's sexualized and other behaviors started after people started asking him questions about FADS.(GT: 27/79-85, 156-57) She testified that she sent BL to a psychiatrist because of his post-interview behavioral changes. (GT: 27/87) /
BL's home life was in turmoil during 1985, culminating in the psychiatric hospitalization of his mother for a mental breakdown. (GT: 27/92-93, 145-146) BL's father, a member of the Hell's Angels, died in a motorcycle accident in September, 1985. (GT: 27/160-61, 183) How these events may have affected BL's bizarre description of events at FADS was of no apparent interest to investigators.
FADS teachers, personnel, and parents testified that FADS was a very open environment, with no locked doors or prohibited areas.(GT: 12/57; 43/176) Teachers, parents, and other adults frequently arrived unannounced. (Tr: 6/4-9, 17-18, 50-56, 69-76, 206-211; 7/61, 66; 8/5-13, 21-26, 34, 38-42, 50-68, 75-78, 80-85; 11/14-17) The child-witnesses described acts of abuse -- many of which were quite bizarre -- that supposedly took place openly and with the approval of the FADS teachers. Yet no FADS teacher corroborated any of these accounts.
The children gave widely disparate accounts of the so-called magic or secret room, which was described as upstairs, downstairs in the basement, and at Violet's house./ None of the FADS teachers was aware of any such room; none ever lost track of the children; none ever saw anything remotely suggestive of sexual abuse; none ever saw any animals, much less animals being tortured or killed. The testimony from twenty-three FADS personnel uniformly established that no child ever verbalized a complaint of any kind, nor did any child exhibit suspicious behavior. (Tr: 6/88-93, 107, 127-30, 153-54; 7/14-15, 17, 37-41, 53-55, 70-78, 90-108)(GT: 12/52) Although the sexual activities of a clown figured prominently in the case, no evidence of a clown costume or paraphernalia was ever discovered; nor did any FADS personnel ever see any of the Amiraults in a clown costume.(GT:43/121,124-28) Although pornographic picture-taking was alleged, no pornographic photographs of FADS children were ever determined to exist./
III. Relevant Facts Concerning the Scientific Evidence
The defendant filed two pretrial Motions to Dismiss or Grant Appropriate Relief, seeking a full evidentiary hearing on the reliability of the child-witnesses based upon the improper interviewing techniques used in the investigation. (R. 117.1-117.100)/ In opposition, the Commonwealth argued that the defendant's claim was based on "an unsupported theory not recognized in the clinical or legal communities." (R. 117.31-117.32) Judge Dolan concluded that before being entitled to a full evidentiary hearing on the reliability of the children's testimony, the defendant must first show general acceptance of the theory of suggestive questioning sufficient to support a finding that "this evidence is so totally unreliable that never ever should it appear before a jury." (M.Tr. 3/14/86, 34)
At a hearing held on the motion on March 20, 1986, the defense proffered the testimony of Dr. Daniel Schuman, who testified about his "positive reinforcement loop" theory, which states that "the child winds up conforming to the inadvertent expectations of what the child is supposed to say." (M.Tr. 3/20/86, 16) When asked whether this theory was widely recognized, he stated:
Well, when I first presented [it] in 1984, the presentation evoked a stormy response.... I'd say there's been a change in the recognition of this phenomenon over the last two years so that now its being spoken about more and more.
(M.Tr. 3/20/86, 14) The prosecution cross-examined Dr. Schuman to demonstrate that his opinion was not generally accepted. (M.Tr. 3/20/86, 52-53) The prosecutor asked:
Can you tell us whether or not there are any other articles at all that you're aware of in psychiatric and psychological literature that deal with the phenomenon as you have described it?
(M.Tr. 3/20/86, 55) Dr. Schuman replied:
I was not aware at that time and cannot cite to you now specific articles dealing with the concept of positive reinforcement loop as it pertains to the clinical evaluation of children.
(M.Tr. 3/20/86, 57) The prosecutor pressed the point even further, challenging Dr. Schuman to cite
any specific data, any clinical studies, or clinical laboratory studies, or any literature in general, that unequivocally states or takes the position that positive reinforcement loop or positive feedback loop, to use your terminology, either alters or destroys a child's memory of an emotionally significant event.
(M.Tr. 3/20/86, 63-64) Dr. Schuman could not do so.
Judge Dolan denied the motion without further evidentiary hearing, agreeing with the Commonwealth that Dr. Schuman's theory had not reached the "level of 'scientific acceptability' within the field," such that the children's testimony should be excluded.(M.Tr. 3/20/86, 107-108)/ The motion was renewed and denied again by Judge Sullivan on May 14, 1987. (R. 117.73)
2. Expert testimony presented at trial.
At trial, the defense sought to refute the testimony of prosecution expert, Dr. Renee Brant. Dr. Brant testified that a variety of factors "would contribute to a child not disclosing sexual abuse." (Tr: 4/132) Dr. Brant opined that seemingly exculpatory evidence, such as delayed disclosure and recantations, was actually indicative of guilt. (Tr: 4/159)
The defense called Dr. William Erikson, who never identified any research studies demonstrating the deleterious impact of suggestive questioning on young children. Dr. Erikson opined, without citing any clinical data, that children are significantly influenced by the style of questioning. (Tr:9/30) He critiqued the videotaped interviews by Kelley, identifying particular episodes that "caught [his] eye." (Tr: 9/31-32)
The defense at trial also called Dr. Sherry Skidmore, who testified that questioning of children should be "nonleading," and critiqued the videotaped Susan Kelley interviews. (Tr: 10/79-81, 110-112) During her testimony, Dr. Skidmore cited no scientific research in support of her opinions.
On cross-examination, the prosecutor brought out that she had published no research articles supporting her opinions. (Tr: 10/132-34) Dr. Skidmore agreed with the prosecutor that it was not "usual," "normal," or "typical" for children to fantasize about "sticks in their bum" or "pencils [or wands] in their vagina." (Tr: 10/166-167) She stated only that she had seen three cases in her practice in which children had apparently fantasized about abuse where in her "opinion" abuse had not occurred, although "no one can say with certainty that abuse absolutely never occurred for anybody." (Tr: 10/168-170). When asked whether pressuring a child would "most likely cause that child to shut down, as opposed to suddenly make allegations of sexual abuse," Dr. Skidmore replied: "There's a logical hunch that that may be true, but I know of no research study that would support that....I can't quote you any research." (Tr: 10/178-79)
B. The Scientific Evidence Presented in Support of the Motion for New Trial.
In support of her motion for new trial on grounds of newly-discovered evidence, the defendant presented the affidavit and testimony of Maggie Bruck, Ph.D./ Dr. Bruck explained why the traditional research on suggestibility available at the time of the defendant's trial was useless in assessing the reliability of reports in large-scale sexual abuse investigations involving multiple interviews of young children. (R. 522-523)(M.Tr.1/54-56) Largely in direct response to disturbing accounts of coercive questioning in mass abuse investigations, researchers such as Dr. Bruck have developed sophisticated new research methods to examine the accuracy of young children's testimony. (M.Tr.1/54-60) The essence of the scientific inquiry is to determine whether, and to what degree, children can be led to allege touching of their bodies by others when, in fact, such events have not taken place.
Dr. Bruck testified that the new research models represent a "paradigmatic shift" in the research on children's suggestibility, involving three important changes. First, preschool children have been included in many studies. Second, researchers have begun to examine children's suggestibility about events that are personally salient, that involve bodily touching, and/or that involve insinuations of sexual abuse. Third, the scope of "suggestive" techniques under study has been expanded from simply asking a misleading question or planting a piece of misinformation to a large range of devices. (R. 524)(M. Tr. 1/58-60)
Dr. Bruck described numerous ground-breaking research studies, all conducted since the defendant's trial. Many of these published, validated, peer-reviewed studies were admitted as exhibits at the evidentiary hearing.(M. Ex. 3-18, 23) Dr. Bruck described interviewer bias as the defining feature of many suggestive interviews. She opined that interviewers who hold a priori beliefs may provoke false reports through the use suggestive techniques. (R. 525-526)(M.Tr. 1/60-65)/
Dr. Bruck described numerous interview techniques that have been scientifically proven through recent research studies to compromise the reliability of children's reports. She described the technique of stereotype induction as giving a child information about the character of a person, which can induce children to conform their reports to the stereotype. (M.Tr. 1/129) / Dr. Bruck opined that the use of leading or forced-choice questions will compromise the reliability of children's reports.(R. 534-536)/ She averred that repeating questions within interviews has an adverse effect on the reliability of children's reports.(R. 536-538)/ She stated that when misleading questions are repeated across multiple or repeated interviews, children's reports become highly tainted.(R. 538-541)/ Dr. Bruck stated that the emotional tone of the interview can cause children to provide false accounts.(M.Tr. 1/244-245)/ She opined that rewarding or punishing children, including telling them they are helpful, can cause their reports to be unreliable.(R. 544-546)/ Dr. Bruck stated that young children are especially likely to comply with the suggestions of interviewers of high status. (R. 546-548)/ Dr. Bruck opined that asking children to imagine an event has deleterious consequences on the accuracy of children's reports.(M.Tr.1/155-156)/ Dr. Bruck testified that the use of anatomically detailed dolls may lead to false reports of bodily touching by young children and can prompt sexualized behavior in young children./ She opined that children often provide inaccurate responses as a result of peer pressure./ Finally, Dr. Bruck testified that when a number of suggestive techniques are combined in one interview, the suggestive procedures have particularly powerful detrimental effects./
Dr. Bruck opined that children's memory may become distorted by suggestive questioning. She described the problem of "source monitoring," the inability of young children to maintain a distinction between actually experienced events and what the child has learned or imagined from some other source. (M.Tr: 1/172-179)/
Dr. Bruck also opined, contrary to prosecution expert Renee Brant's testimony at trial, that recent research demonstrates that the majority of sexually abused children maintain their claims, never deny abuse when questioned, and rarely conform to a disclosure pattern of denial-disclosure-recantation, particularly when the abuser is extra-familial./ (R. 514)
Dr. Bruck summarized the research findings regarding disclosures that result from suggestive interviewing, explaining that preschool children can and do make demonstrably false disclosures regarding personally salient events, including bodily touching, sexualized events, and/or illegal conduct. (R. 565) Dr. Bruck opined, based on recent studies, that suggestive questioning often leads children not only to incorporate the interviewers' suggestions into false narratives, but also to weave fantastic tales that go far beyond the suggestive elements contained within an interview.(R. 566)(M.Tr. 1/275) She observed that children's suggestibility varies according to age, with preschoolers more vulnerable than older children.(R. 565)
Dr. Bruck cited numerous examples in the record of suggestive techniques being used by investigators with the child-witnesses in this case. She analyzed each of the children's disclosures in detail, based on the law enforcement notes, mental health notes, videotapes, and interview transcripts contained within the record. (R. 515-521, 529-533, 535-539, 542-560, 572-601)(M.Tr.1/76-100, 195-297, 2/4-64) Dr. Bruck concluded (R. 601-602):
In sum, it is my expert opinion, to a reasonable degree of scientific certainty, based on the relevant research literature and the facts of this case, that the methods used to obtain allegations of abuse from the children in this case render their resulting accusations as unreliable evidence.
2. Diane Schetky, M.D.
The defendant also presented the testimony of Diane Schetky, M.D., a highly-credentialed psychiatrist who specializes in forensic evaluation of sexually abused children. Dr. Schetky testified that Dr. Bruck's views regarding child suggestibility are held in high regard and widely-accepted among specialists in her field. (M.Tr. 2/267-282)
IV. The Motion Judge's Findings of Fact and Rulings of Law on the Defendant's Motion for New Trial.
Judge Borenstein ruled that the research studies forming the basis of Dr. Bruck's testimony are newly-discovered.(R. 436-437) He ruled that the new research is not merely cumulative because it was specifically designed to explain how young children can speak of sexual acts that did not occur. (R. 438) He further ruled that there is a substantial risk that the jury would have reached a different verdict had Dr. Bruck's testimony been admitted at trial. (R. 439) He found that Dr. Bruck's views were reliable under Commonwealth v. Lanigan (II), 419 Mass. 15 (1994), because they have been published, tested, and widely accepted.(R. 444-447) He ruled that her testimony would be admissible to assist jurors in understanding the effects of suggestive interviewing.(R. 444-445) He ruled that the defendant had not waived her claims, nor are they moot. (R. 469-476)
The motion judge found that holding a pretrial hearing to determine the reliability of evidence is a long-established practice and did not require retroactive application of new law.(R. 447-451) He ruled that the defendant had proved that the four child witnesses who testified against her were subjected to overly suggestive interviews. (R. 451) He ruled that the Commonwealth had failed to satisfy its burden of proving that there was an independent source for the child-witnesses' testimony.(R. 453) Accordingly, he ruled that the child-witness testimony was inherently unreliable and that the defendant was deprived of due process rights by its admission at trial.(R. 458) He ruled that the newly-discovered evidence entitled the defendant to a new trial, concluding that "there is more than a substantial risk that the defendant was unjustly convicted." (R. 346) Finally, he ruled that at a new trial the child witnesses will not be permitted to testify because "their testimony has been rendered forever unreliable." (R.347)
SUMMARY OF THE ARGUMENT
The motion judge properly determined that the scientific evidence presented by the defendant was newly-discovered because it was based upon a paradigmatic shift in scientific research and ground-breaking studies conducted after the defendant's trial. (pp. 55-62)
The motion judge properly granted the defendant a new trial because the newly-discovered scientific evidence, applied to the facts of this case, demonstrates that the child-witnesses' trial testimony was inherently unreliable and should have been excluded. (pp. 62-78)
The motion judge properly granted the defendant a new trial on the alternative ground that, even if the child-witnesses' trial testimony need not have been excluded, presenting the newly-discovered scientific evidence to the jury at trial would have produced a substantial likelihood of acquittal. (pp. 78-81)
The motion judge properly determined that the new scientific evidence is admissible because it has been widely-accepted, tested, and replicated, and such evidence would be helpful to the jury. (pp. 81-93)
The motion judge properly exercised his discretion to consider the defendant's third motion for new trial, which was not barred by principles of waiver or mootness. (pp. 94-100)
ARGUMENT
INTRODUCTION
Most of the time, our system of criminal law accomplishes its purpose of convicting the guilty while exonerating the wrongly accused. On occasion, however, the system, like any prone to human frailty and error, fails to work as intended, and a grave miscarriage of justice occurs. In those rare instances, it is incumbent upon the courts to rectify the wrong.
The tortured history of this case calls to mind the profound explanation of Justice Felix Frankfurter for why he chose to publish a dissent in the Rosenberg atomic-spy case after the defendants had been put to death:
[H]istory also has its claims. This case is an incident in the long and unending effort to develop and enforce justice according to law. The progress in that struggle surely depends on searching analysis of the past, though the past cannot be recalled, as illumination for the future. Only by sturdy self-examination and self-criticism can the necessary habits for detached and wise judgment be established and fortified so as to become effective when the judicial process is again subjected to stress and strain.
Rosenberg v. United States, 346 U.S. 271, 310 (1953). While our system is designed to achieve finality in the adjudication of prosecutions, that necessary objective historically has not been interposed as a rationale for allowing serious injustice to go uncorrected. To that end, our system provides a limited number of procedural mechanisms. The defendant here relies upon one such mechanism - a motion for a new trial based upon newly-discovered scientific evidence.
The allowance of this motion is important, not only to restore to the defendant her liberty and good name, but also to accomplish the important institutional goal of preserving the integrity and credibility of our system. The conviction of Cheryl Amirault LeFave, born in an atmosphere of widespread hysteria and based solely upon the highly unreliable testimony of toddlers who capitulated to egregiously improper coercive questioning, cries out for corrective action. The motion for new trial, supported by compelling newly-discovered scientific evidence, provides an opportunity for our legal system to rectify a monumental injustice. During the evidentiary hearing, the defendant presented expert testimony and supporting exhibits conclusively demonstrating that the suggestive questioning of the four child-witnesses irreparably tainted their trial testimony, rendering that testimony (which was the only real inculpatory evidence) inherently unreliable. The Commonwealth elected not to contest the defendant's factual showing by presenting countervailing expert testimony or, for that matter, any witnesses at all. Indeed, the Commonwealth wisely conceded, during oral argument, that dangerously improper questioning occurred.
The motion judge carefully considered the extensive record, including transcripts of the trial and pre-trial hearings; voluminous mental health, social service, police, and medical notes; numerous documentary exhibits; videotaped interviews of the child-witnesses; scholarly articles and scientific studies; pertinent legal authority; lengthy memoranda; and oral argument, before rendering a 140-page, detailed opinion allowing defendant's motion. The motion judge's discomfort with the trial is evident in virtually every page of his findings and conclusions. Judge Borenstein thus joined his two experienced brethren who previously had played a role in the case and who likewise ultimately were moved to express serious misgivings./
While this Court has reviewed this case on several previous occasions, it has never before had the benefit of the compelling new scientific evidence which is now part of the record. That evidence, revealing the extent to which the Commonwealth's case was irreparably tainted by suggestive questioning of young children, places the case and the resulting convictions in a dramatically new light. This Court is not being asked to take yet one more look at the same record; it has before it new scientific evidence to consider for the very first time.
The Commonwealth offers the Court a litany of arguments in an effort to reinstate its flawed and tainted conviction. Its first tack is to try to block this Court's consideration of the merits of defendant's claim on altogether procedural grounds. The Commonwealth then endeavors to rewrite the factual record so as to minimize the significance of the newly-discovered scientific evidence. In so doing, it essentially ignores the detailed findings and rulings of the motion judge and urges this Court to give the court below no deference. However, Judge Borenstein's careful examination of the trial record at long last authoritatively demolishes the Commonwealth's oft-repeated but baseless assertion that there was at least some trial evidence independent of suggestive and coercive taint./ There was not a scintilla of such evidence, as Judge Borenstein has now asserted both for this proceeding and for history./ I. THE MOTION JUDGE PROPERLY DETERMINED THAT THE SCIENTIFIC EVIDENCE PRESENTED BY THE DEFENDANT IS NEWLY-DISCOVERED.
Under Mass. R. Crim. P. 30(b), a judge "may grant a new trial at any time if it appears that justice may not have been done." A defendant seeking a new trial on the ground of newly-discovered evidence must establish both that the evidence is newly-discovered and that it casts "real doubt on the justice of conviction." Commonwealth v. Simmons, 417 Mass. 60, 72 (1994); Commonwealth v. Grace, 397 Mass. 303, 305 (1986). A defendant seeking a new trial based on newly-discovered evidence must demonstrate that the newly-proffered evidence was unknown and not reasonably discoverable at the time of trial through the exercise of reasonable pretrial diligence. Commonwealth v. Salvati, 420 Mass. 499, 507 (1995). Expert testimony based upon scientific evidence developed after trial may be deemed "newly-discovered." Commonwealth v. Meggs, 30 Mass. App. Ct. 111, 114 (1991).
A motion for new trial is "addressed to the sound discretion of the motion judge, and the judge's disposition of the motion will not be reversed unless it is manifestly unjust...." Commonwealth v. Schand, 420 Mass. 783, 787 (1995). In reviewing the allowance or denial of a motion for new trial, this Court "consider[s] whether a motion judge committed a significant error of law or other abuse of discretion," whether or not the motion judge was also the trial judge. Commonwealth v. Martin, 427 Mass. 816, 817 (1998) (citing Grace, 397 Mass. at 307). Since Judge Borenstein did not preside at trial, this Court must review his decision without the "special" deference accorded the views of a motion judge who was also the trial judge. Commonwealth v. Haley, 413 Mass. 770, 773 (1992). Nonetheless, Judge Borenstein's detailed findings, based upon protracted review of a voluminous record and a two-day evidentiary hearing, are entitled to deference by this Court, and unless manifestly unjust, should be affirmed. /
B. The Evidence is Newly-Discovered.
Judge Borenstein ruled (R. 436-439):
The studies relied upon by Dr. Bruck which form the basis for her expert testimony are newly discovered.... Dr. Bruck's testimony is not simply "in addition to" or "better than" the testimony offered by defense experts at trial in 1987, it is significantly different. The body of research upon which Dr. Bruck relies to support her testimony was conducted in direct response to a number of day care child sex abuse cases across the United States, such as the Fells Acres case. This research was designed to answer the unanswerable question posed by the Commonwealth at trial in 1987, namely: How could children come to speak of disturbing sexual acts if they did not suffer them? Today, in 1998, the defendant has the answer that was nonexistent in 1987; an answer that runs counter to common sense, making all the more critical the importance of the newly discovered evidence. I find that the evidence testified to by Dr. Bruck was not reasonably discoverable by the defendant or her counsel in 1987 and therefore, ...the newly discovered evidence standard is satisfied.
This ruling was wholly justified by the evidence. Contrary to the Commonwealth's claim (Comm. Br. 31-36, 50-59), the new scientific evidence presented by the defendant did not exist in 1986 and 1987. Although defense experts then noted coercive questioning which they intuitively found troubling, they could not cite any research data to demonstrate the corrosive impact of such interrogation techniques upon the reliability of young children's reports of bodily touching.
At the hearing on defendant's pretrial motion to dismiss, Dr. Schuman was unable to demonstrate general acceptance of his "positive reinforcement loop" theory or cite any literature to support it. It is true, as the Commonwealth notes, that Judge Dolan's ruling did not go so far as to preclude Dr. Schuman from testifying at trial. The motion judge correctly noted, however, that the Commonwealth's position at the time of the pretrial hearing (noting the lack of any generally-accepted, relevant scientific research studies) was inconsistent with the Commonwealth's current position (claiming that such studies were, in fact, available at that time), and that his inability to cite research devastatingly effected the defendant's ability to defend herself.
The defense experts at trial fared no better. Neither Dr. Erikson nor Dr. Skidmore cited or described any clinical research data in support of their tentative and speculative opinions. The Commonwealth argues that "the jury was given an answer that was more compelling than any review of the literature" when Dr. Erikson and Dr. Skidmore each gave a couple of anecdotes regarding children they had seen who, in their opinion, had fantasized about "sticks in their bum." (Comm. Br. 54) Such anecdotes, however, could hardly substitute for recent, validated laboratory experiments, such as those in which young children suggestively questioned with anatomical dolls made false claims that their pediatrician had touched and/or penetrated their vaginal and anal cavities. (R. 553-554)
The Commonwealth further argues that the evidence presented by Dr. Bruck is not newly-discovered because "studies on the suggestibility of children date back to the turn of the century." (Comm. Br. 55) This contention has no merit. As Dr. Bruck explained (M. Tr. 1/54-60);(R. 524), although some literature on child suggestibility existed before 1990, only a few studies included preschool children. The pre-1990 studies demonstrated only that children could be led to make false reports about neutral events that lacked personal salience. Children in the earlier studies were generally asked leading questions or given one piece of misinformation, rather than being subjected to a larger range of suggestive interviewing devices in multiple interviews such as those in the investigation of this case./
The Commonwealth erroneously argues that the new studies underlying Dr. Bruck's testimony "are no more than a logical outgrowth of earlier studies." (Comm. Br. 59) Scientific research confirming earlier suspicions and intuitions regarding child suggestibility was conducted as a direct result of disturbing accounts of mass child sex abuse such as this case. (M.Tr: 1/34-35, 53-54) The resulting explosion of new research has revolutionized the scientific community's understanding of the devastating impact of suggestive questioning./ Unlike earlier studies, the new research focuses on preschool children and addresses a panoply of suggestive interviewing techniques. In these recent studies, preschool children are interviewed about personally salient events, including bodily touching. As a result of the ground-breaking research conducted since 1990, scientists now know what was unknown at the time of the defendant's trial: a wide variety of suggestive questioning techniques, having their greatest impact on preschool children, cause such children to make demonstrably false reports regarding personally salient events involving bodily touching, sexualized events, and/or criminal conduct. Moreover, children's false narratives may become creative and elaborate, going well beyond the interviewers' suggestions, so that a determination of the reliability of their reports following suggestive interviewing becomes impossible.
There can be no doubt that the paradigmatic shift in the research respecting child suggestibility during the past decade constitutes a major leap forward, rather than a mere incremental increase in scientific knowledge. Because the scientific data underlying Dr. Bruck's testimony is so qualitatively different from what was available to the defendant at trial, the testimony fits snugly within the rubric of newly-developed scientific evidence for the purposes of a motion for new trial. In sum, the evidence presented by Dr. Bruck was correctly found by the motion judge to be newly-discovered.
II. THE MOTION JUDGE PROPERLY GRANTED A NEW TRIAL BECAUSE THE NEWLY-DISCOVERED EVIDENCE DEMONSTRATES THAT THE TESTIMONY OF THE FOUR CHILD-WITNESSES WAS UNRELIABLE AND SHOULD HAVE BEEN EXCLUDED.
1. Newly-discovered evidence that supports a motion to exclude trial evidence may warrant the granting of a new trial.
Defendants seeking a new trial on grounds of newly-discovered evidence usually rely upon evidence relevant to the jury's determination of guilt or innocence. But newly-discovered evidence relating to a judge's determination of the admissibility of evidence may also provide the basis for relief. In Commonwealth v. Ramirez, 416 Mass. 41 (1993), this Court considered a convicted defendant's motion for relief based upon new evidence of police misconduct. The court deemed the new evidence to be "newly-discovered" under the standards set forth in Grace, and granted the defendant a post-trial evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). Id. at 51-52. The Court held that if the defendant proved his allegations at the hearing, "the evidence seized would have to be suppressed and the defendant's convictions set aside." Id. at 48, n.13. Other courts have also reviewed newly-discovered evidence claims relating to the admissibility of trial evidence./ A determination, based on newly-discovered evidence, that trial evidence should have been excluded warrants a new trial if the exclusion of the evidence would have created "a substantial risk that the jury would have reached a different conclusion." See Grace, 397 Mass. at 306.
"One of the basic underpinnings of a fair trial is the concept that testimony or evidence which is unreliable or untrustworthy must be rejected." LaFrance v. Bohlinger, 365 F. Supp. 198, 205 (D. Mass. 1973) (Tauro, J.), affirmed 499 F.2d 29 (1st Cir. 1979), cert. denied sub nom., Meachum v. LaFrance, 419 U.S. 1080. This fundamental constitutional principle, implicit in both the Due Process Clause of the Fifth Amendment and Article XII of the Massachusetts Declaration of Rights, has been consistently applied in a wide array of factual contexts.
For example, the reliability of scientific principles underlying expert opinion testimony is essential to its admissibility. If reliability is lacking, "that opinion should not reach the trier of fact." Commonwealth v. Lanigan (II), 419 Mass. 15, 25-26 (1994). The trial judge serves as "gatekeeper," keeping unreliable evidence from the jury. Id. at 26.
The same principle has long been applied by courts to exclude the fruits of overly suggestive identification procedures. Manson v. Brathwaite, 432 U.S. 98, 114 (1977)("Reliability is the linchpin in determining the admissibility of identification testimony"); Commonwealth v. Holland, 410 Mass. 248, 253 (1991). Improperly suggestive identifications and their fruits are inadmissible because they are inherently unreliable. Commonwealth v. Johnson, 420 Mass. 458, 465 (1995).
Another area where courts have been particularly vigilant in screening out unreliable testimony before it reaches the trier-of-fact is hypnotically-aided testimony. In Commonwealth v. Kater (I), 388 Mass. 519, 521 (1983), the Court held that hypnotically-aided testimony is unreliable, and hence inadmissible.
Testimony which is the product of coercion is also subject to exclusion on the basis of its unreliability. Stein v. People of State of New York, 346 U.S. 156, 182 (1953) (coerced confessions are "too untrustworthy to be received as evidence of guilt"); see also Brown v. Mississippi, 297 U.S. 278 (1936). Unreliable statements extracted from adult prosecution witnesses are also inadmissible. LaFrance, 365 F. Supp. at 205.
The frequently-recurring issue of whether evidence is sufficiently reliable to be presented to a jury is entirely distinct from the separate question of whether a particular witness is competent to testify at all./ The testimony of a witness who is otherwise competent to testify may be rendered unreliable due to the undue influence of coercion, hypnosis, suggestive identification procedures, or other factors.
If evidence is deemed sufficiently reliable by the trial judge to be admitted at trial, it then falls to the trier-of-fact to evaluate the probative worth of that evidence. Jurors in Massachusetts are instructed to make their own determinations of such matters as the voluntariness of admissions, the possibility of mistaken eyewitness identification evidence, and the weight of expert testimony. Commonwealth v. Tavares, 385 Mass. 140, 150-152, cert. denied, 457 U.S. 1137 (1982); Commonwealth v. Rodriguez, 378 Mass. 296, 301-302 (1979); Lanigan (II), 419 Mass. at 26.
Courts in Massachusetts and throughout the United States have become increasingly cognizant that improper questioning of young children in sexual abuse investigations produces a grave risk of eliciting unreliable accounts./ Like the other varieties of unreliable evidence discussed above, the fruits of a tainted child-interview process should be kept from the trier of fact. Fundamental due process demands that a criminal conviction must not be founded upon unreliable, hence insubstantial, evidence of guilt.
In the leading case of State v. Michaels, the New Jersey Supreme Court addressed the defendant's post-trial attack upon "the manner in which the state conducted its investigatory interviews of the children." 642 A.2d 1372, 1375 (N.J. 1994). Guided by scholarly literature and an amicus brief authored by Dr. Bruck (M.Ex. 19), the court pointed to various factors that "can undermine the neutrality of an interview and create undue suggestiveness." Id. Specifically, the court found:
[T]he use of coercive or highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child's recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events.
Id. at 1379. Based upon the defendant's showing of highly suggestive interviews used in the investigation, the court ruled that the defendant was entitled to challenge the admissibility of the child-witnesses' testimony at a pretrial "taint" hearing. Id. at 1382-83. The court hinged its ruling on the well-established duty of courts to play a gate-keeping role to exclude unreliable evidenc