No. 05-27545
THESTATE OF TEXAS, ) IN THE 5THCRIMINAL DISTRICT
) COURT
Plaintiff, )
) DALLAS COUNTY,TEXAS
v. )
)
XXXX YYYY, )
)
Defendant . )
)
MOTIONFOR PRE-TRIAL TAINT HEARING RELATED TO STATE WITNESS CHRISTIAN ZZZZ ANDMEMORANDUM OF LAW IN SUPPORT THEREOF
Defendant, XXXX YYYY, hereby moves this court togrant a pre-trial hearing to determine whether the statements and testimony ofChristian ZZZZ must be excluded because improper suggestion and statements madehave compromised the reliability of that testimonial evidence. In support of this motion, Mr. YYYYsets forth the following facts and argument.
I.INTRODUCTION
It is well accepted that any ÔÒinvestigativeinterviewsÓ are a crucial, perhaps determinative moment, in a child sex abusecase. See Gail S.Goodman and Vicki S. Helgeson, Child Sexual Assault: ChildrenÕs Memory andthe Law, 40 U. Miami L. Rev. 181, 195(1985). Likewise, there is muchauthority recognizing the considerable deleterious impact improperinterrogation can have on a childÕs memories and that once tainted, the distortionof a childÕs memory is irremediable. See, e.g., State v. Wright775 P.2d 1224, 1228 (Id. 1989). (ÒOnce this tainting of memory has occurred, the problem isirremediable. The memory is, fromthen on, as real to the child as any other.Ó). The deliberating impact of improper interrogation has evenmore pronounced effect among young children. Maryann King and John C. Yuille, Suggestibilityand the Child Witness in ChildrenÕsEyewitness Memory, 82 (Stephen J. Ceci, et.al. Ed., 1987).
II.BACKGROUND
In this case, the complainant, Christian, when shewas eight years old, was interviewed by the Dallas County ChildrenÕs AdvocacyCenter on September 26, 2005 regarding an alleged sexual assault that tookplace more than two and one-half years earlier. Nevertheless, prior to this forensic interview, Christianhad been repeatedly interviewed by a counselor hired by her mother and maternalgrandparents in connection with a child custody matter that was to be held inNorth Carolina.
OnJune 8, 2005, ChristianÕs mother filed a Motion to Modify Custody in theGeneral Court of Justice District Court Division in Johnston County, NorthCarolina. In connection with thatproceeding, Christian was repeatedly interviewed by Cynthia Starling, LCSW ofCarolina Counseling and Consultation Services in Smithfield NorthCarolina. She was first seen onJuly 29, 2005. She was again seenonly five days later on August 3, 2005. Then she was seen on August 9, 2005, the day prior to the North Carolinacustody hearing. Finally, Ms.Starling testified on behalf of ChristianÕs mother at the custody hearing heldon August 10, 2005.
Itis submitted that Ms. Starling tainted any testimony that Christian will givein this Court as well as tainted her statements made to the Dallas CountyChildrenÕs Advocacy Center. Thetaint resulted from improper forensic interview techniques as well as the useof anatomical dolls.
III.DISCUSSION
The due process clauses of the United StatesConstitution and the due course of law clause of the Texas Constitution protecta defendant from having the state offer tainted testimony before a jury.
A.Analogous Situations
Courtshave long recognized that improper interview techniques by law enforcement inthe context of lineups and photo-line-ups may be so impermissibly suggestive asto lead to a substantial likelihood of misidentification. Such procedures, therefore render thetestimony of the identification witness so untrustworthy that introduction ofthe evidence constitutes a violation of the due process clause of theFourteenth Amendment of the United States Constitution. See, Foster v. California, 394 U.S. 440 (1969); Stovall v. Denno, 388 U.S. 293 (1967).
Moreover,in Ex Parte Brandley, 781 S.W.2d 886(Tex. Crim. App. 1989), the Court of Criminal Appeals observed that improperinvestigative techniques in contexts other than identification procedures mayso affect the trustworthiness of the proceeding as to constitute a violation ofthe due process clause of the Fourteenth Amendment and the due course of lawclause of Article 1 Sec. 19 of the Texas Constitution. Id. at 891.
Forexample, in Zani v. State, 758 S.W.2d 233 (Tex.Crim.App. 1988), the Court ofCriminal Appeals dealt directly with the issue of the admissibility of awitnessÕ testimony after hypnosis. The opinion reviewed the opinion of other courts and scientificliterature on the subject of hypnosis and noted the dangers associated with theuse of the procedure on witnesses in an attempt to enhance their memory of anevent. Generally, the noteddangers can be categorized as follows:
1. Hypersuggestibilty. The witness is extremely susceptiblewhile under hypnosis to suggestion of facts which the witness later recalls ashaving actually occurred. Oftenthis may be the result of the witnesses compelling desire to please theinterviewer by ÒrememberingÓ facts suggested by the interviewer.
2. Loss of critical judgment. The witness loses his critical judgmentwhich causes him to give credence to memories so vague and fragmentary theywould not have relied on them before being hypnotized.
3. Confabulation. Neither the subject nor the interviewercan distinguish between real memories and ÒpseudomemoriesÓ arising from variouscauses including the two described above. Even after the interview ends the subject remains unable to distinguishbetween true memories and confabulation.
4. Memory Òcementing.Ó The witness becomesmuch more sure of a vague memory after the session. Often the memory of the witness becomes enhanced bysuggestion occurring during the session and the subject then can notdistinguish his actual memory from his memory acquired during the session. He becomes more sure of hisrecollection because of the enhancement supplied by the session.
Id., at 237-238.
TheZani Court did not discuss theadmissibility of the testimony of a witness who has been previously hypnotizedin the context of due process but instead analyzed its admissibility in lightof a defense objection that Òthere is no proper basis for permitting suchtestimony as a matter of scientific reliability.Ó Id. at 235. In light of the foregoing recognized uncertainties of posthypnotictestimony, the Texas Court of Criminal Appeals fashioned a rule foradmissibility to protect the integrity of the fact finding process. The Court held:
Weconclude that because of the uncertainties inherent in posthypnotic testimonyit is appropriate to require the proponent of such testimony to demonstrate tothe satisfaction of the trial court, outside the juryÕs presence, by clear andconvincing evidence, that such testimony is trustworthy.
Id., at 243.
B. InstantCase
This Court has a responsibility to ensure thatevidence admitted at trial is sufficiently reliable so that it may be of use tothe finder of fact who will draw the ultimate conclusions of guilt orinnocence. Reliability is thelinchpin in determining admissibility of evidence under a standard of fairnessthat is required by due process.
Therefore,Mr. YYYY requests a pretrial hearing conducted pursuant to Tex. R. Evid.104. The basic issue to be addressedat such a hearing will be whether Ms. Starling engaged in investigatoryinterviews and interrogations that were so suggestive that they give rise to asubstantial likelihood of irreparable mistaken or false recollection ofmaterial facts bearing on Mr. YYYYÕs guilt. See United States v. Simmons, 390 U.S. 377, 384 (1968) (Holding that evidence would be excluded inpretrial identification procedures Ògives rise to a very substantial likelihoodof irreparable misidentification.Ó)
Indeed,this Court is urged to look at the holding of the New Jersey Supreme Court in Statev. Michaels, 642 A.2d 1372 (N.J. 1994)(attached hereto as Attachment A) requiring the type of taint hearing requestedin the instant case. In Michaels, the New Jersey court recognized that "the useof highly suggestive interrogation techniques can create a significant riskthat the interrogation itself will distort the child's recollection of events,thereby undermining the reliability of the statements and subsequent testimonyconcerning such events." Id.at 1379. The court stated that the concern with the reliability of statementsresulting from suggestive or coercive interview techniques implicates"principles of due process." Id. at 1380. The courtplaced the initial burden to trigger a pretrial taint hearing on the defendant,who must make a showing of "some evidence" that the victim'sstatements were the product of suggestive or coercive interview techniques.Once the defendant establishes sufficient evidence of unreliability of statementsat the pretrial hearing, the burden shifts to the state to prove reliability ofproffered statements and testimony by clear and convincing evidence. Id. at 1383. While the procedure in Michaelshas not been discussed in any reported Texas cases, it has beenadopted by courts from around the county. See, e.g., Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003); Commonwealth v.Callahan, 9 Mass. L. Rep. 228 (Ma. Supr.Ct. 1998). Cf. Englishv. State, 982 P.2d 139 (Wyo. 1999) (Taintcan be explored during hearing to determine childÕs competency to testify); Statev. Carrol, 983 P.2d 1165 (Wash. Ct. App.1999).[1]
IV.CONCLUSION
Basedupon the foregoing, Defendant, XXXX YYYY, respectfully requests this Court,pursuant to the due process guarantees of the United States Constitution andthe Texas Constitution, to grant a pre-trial hearing to determine whether thestatements and testimony of Christian ZZZZ must be excluded because impropersuggestion and statements made have compromised the reliability of thattestimonial evidence.
Respectfullysubmitted,
F.Clinton Broden
Tx.Bar 24001495
Broden& Mickelsen
2707Hibernia
Dallas,Texas 75204
214-720-9552
214-720-9594(facsimile)
Attorneyfor Defendant
XXXXYYYY
CERTIFICATE OF SERVICE
I,F. Clinton Broden, do hereby certify that, on this 27th day of April, 2007, Icaused a copy of the foregoing document to be served on Dallas County DistrictAttorneyÕs Office, 133 N. Industrial Blvd., Dallas, Texas 75207 by first-classmail, postage pre-paid.
F.Clinton Broden