No.05-27545

THESTATE OF TEXAS, )      IN THE 5THCRIMINAL DISTRICT

                                           )      COURT

              Plaintiff,                )

                                           )      DALLAS COUNTY,TEXAS

v.                                         )

                                           )

XXXYYY, )

                                           )

                      Defendant . )

)

TRIALBRIEF IN SUPPORT OF INTRODUCTION OF EXPERT TESTIMONY RELATED TO INTERVIEWINGPROTOCOLS OF ALLEGED CHILD SEXUAL ABUSE VICTIMS AND RELATED TO CHILDSUGGESTIBILITY AND FALSE MEMORIES

         Whenthe defense to a charge of sexual abuse against a child is that the child’sallegations were manipulated and the result of acrimony that resulted from adivorce, an attorney can be ineffective for not calling an expert witness todiscuss this defensive theory. Therecent case of Wright v. State, 223S.W.3d 36 (Tex. App.–Houst.[1st] 2006) is exactly on point. In Wright, the defendant presented the testimony of apsychologist at a new trial hearing to support a claim that his trial counselhad been ineffective:

Dr.Jerome Brown, a licensed psychologist, testified that he was very familiar withliterature regarding false allegations of sexual abuse. Brown explained thathis research found that custody disputes generate a high proportion of falseallegations of sexual abuse. In his review of the complainant's statements andSpears's interview notes, Brown noticed an "extreme variation from thestandard protocol of working with a child victim; and the particular variancesfrom that protocol suggested that there was a very high potential forsignificant adverse influences upon the child that might have created . . . acoercive environment in which she would be encouraged and pressured in variousways to make false allegations."

Brownnoted that in the videotaped CPS interview of the complainant, the childinitially told the interviewer that her father, appellant, did not know thatshe was watching him masturbate; however, "the interviewer ignored thechild's statement or otherwise did not pursue it at all." Brown alsostated that [complainant’s mother’s’s] participation in the therapy sessions,as reflected by [complainant’s therapist’s] notes, would not allow thecomplainant an opportunity to alter any dynamic occurring between the child andthe mother that could encourage the child to make a false statement. Brownadded that [complainant’s therapist’s] notes demonstrated "a significantviolation of professional boundaries" by the State's participation intherapy sessions. In Brown's opinion, based on his review of the initial CPSinterview of the child and Spears's notes, the investigation of the case andthe treatment of the child was not impartial.

Brownopined that a properly qualified expert would have been able to assistappellant's trial attorney in preparing a cross-examination that would clarifywhether or not [complainant’s therapist’s] "improper methodology,"and any other adverse influences, would influence the complainant to make falsestatements. Brown also stated that an expert could have assisted in preparingfor the cross-examination of the complainant and mother by providing anunderstanding of the dynamics of the custody battle between parents andexplaining the dynamics between the father, daughter, and mother.

Id. at 40-41. The Court of Appeals fully agreed:

[D]espitethe obvious strategy by [appellant’s trial attorney] to discredit complainant'soutcry and prove fabrication or improper influence, he was entirely unaware ofthe contents of [complainant’s therapist’s] notes, including exculpatoryevidence that would have advanced appellant's defensive theory. [Appellant’strial attorney] never presented evidence showing [complainant’s mother]presence at nearly all of the complainant's therapy sessions. Moreover,[appellant’s trial attorney] never introduced into evidence the complainant'sown statements, contained in [complaintant’s therapist’s] notes, that "thecourt won't let [the complainant] see her dad because her mom is making themsay that." Nor did he introduce into evidence the complainant's statementat the April 27, 2004 session that appellant "thought [the complainant]was asleep" and "never asked her to help him 'get the milkout'"--statements consistent with the complainant's initial commentsduring her CPS interview.

Moreover,we note that because [appellant’s trial attorney] failed to fully investigatethe complainant's therapy notes, he could never have recognized any possiblediversions from standard protocol of interviewing child sexual assault victims.If [appellant’s trial attorney] had uncovered such evidence, expert testimonysuch as that given by Dr. Brown at the motion for new trial could have beenused to further advance appellant's defensive theory. Brown's testimonyregarding false allegations of sexual assault occurring after a divorce and theaccepted protocols for interviewing suspected child sexual assault victimswould have been admissible as long as he did not comment directly about thetruthfulness of the complainant in this case.

Thebottom line is that exculpatory evidence in Spears's notes, expert testimonyabout deviations from standard protocol reflected in the notes, and experttestimony regarding false allegations of sexual assault in connection withdivorce proceedings constitute powerful evidence that would have supportedappellant's defensive theory. At the very least, the assistance of such anexpert to assist in the cross-examination of the adverse witnesses in this casecould have made a significant difference in regard to the outcome of this case.

Id. at 44-45.

         Adifferent court of appeals recently reversed another case based upon a trialcourt’s refusal to allow similar expert testimony. In Delong v. State,2006 WL 3334061(Tex. App.–Ft. Worth Nov. 16, 2006). There, the defense had proffered experttestimony at trial from Dr. Elizabeth Loftus. The gist of the testimony that Appellant sought to elicitfrom Dr. Loftus is that false memories can be induced in the mind of a witnessunder circumstances similar to those surrounding the outcry statements of thecomplainants in this case.

Inthis case, Dr. Loftus testified that a false memory is an untrue memory thatthe witness or complainant nonetheless believes to be true. She explained thata false memory can be very detailed, and a person who has a false memory can bevery confident and even emotional about the false memory. Dr. Loftus testifiedthat she could not say whether a particular person is lying or that aparticular memory is a false memory--in other words, that she could not commentdirectly on the truthfulness of a complainant's allegations--but she could saywhether the circumstances indicated suggestion of the sort that can lead to afalse memory.

Id. at *5.

Thetrial court disallowed the testimony. The Court of Appeals, relying in part upon Wright, determined that the trial court erred, and itreversed the conviction. Id. at *8.

         Alsoof note is Music v. State, 2005 Tex.2005WL 2323781 (Tex. App.–Austin Sept. 22, 2005). In that case, it was noted that the trial court allowedexpert testimony in the following areas in an indecency with a child case: (1)children are easily manipulated, (2) children seek to please adults whenquestioned, and (3) multiple interviews can have the effect of influencing theanswers of children. Id. at *7.

                           Respectfullysubmitted,

                                                               F.Clinton Broden

                                                               Tx.Bar 24001495

                                                               Broden& Mickelsen

                                                               2707Hibernia

                                                               Dallas,Texas 75204

                                                               214-720-9552

                                                               214-720-9594(facsimile)

                                                               Attorneyfor Defendant

                                                               XXXYYY
CERTIFICATE OF SERVICE

         I,F. Clinton Broden, do hereby certify that, on this 19th day of March, 2007, Icaused a copy of the foregoing document to be hand delivered to the DallasCounty District Attorney’s Office, 133 N. Industrial Blvd., Dallas, Texas75207.

F.Clinton Broden