We deal once again with consequences of the multiple convictions of Cheryl Amirault LeFave of rape of a child under sixteen years and indecent assault and battery on a child under fourteen years.
In 1995, a judge, not the trial judge (who had retired), allowed the defendant’s first motion for a new trial. See Mass. R. Crim. P. 30,
The case is again before us, this time on our allowance of the Commonwealth’s application for direct appellate review, because a judge in the Superior Court, in two separate rulings on independent grounds, has allowed the defendant’s second and third motions for a new trial. The second mоtion for a new trial revisits the confrontation issue, asserting that counsel was ineffective in not raising the confrontation issue on direct appeal. The third motion for a new trial is based on a claim that newly discovered “scientific evidence” demonstrates that “due to the manner in which the allegations of child sexual abuse were investigated,” evidence presented against the defendant was “wholly unreliable.” We shall discuss in turn each order allowing the defendant a new trial and shall vacate both orders.
THE SECOND MOTION FOR A NEW TRIAL
The defendant’s second motion for a new trial is based оn the same alleged trial error on which her first motion was based: a claimed violation of her art. 12 right of confrontation. In the second motion, however, she raises the issue vicariously as a claim that she is entitled to a new trial because her counsel in her appeal from her convictions was ineffective, in a constitutional sense, in not arguing the confrontation issue. A major weakness in the defendant’s contention is that the ineffectiveness of the defendant’s appellate counsel, who were also her trial counsel, could have been presented in her first motion for a
The defendant waived the claim of appellate ineffective assistance of counsel because she had a fair opportunity to raise the denial of her confrontation right and “may not belatedly
The motion judge gave inadequate consideration to the question whether the defendant had waived the ineffective assistance of counsel claim by failing to argue the confrontation issue in connection with her first motion for a new trial. He stated that “the ineffective assistance of counsel argument was not presented as рart of the first new trial motion.” That is, as we have pointed out, not the test for determining waiver. The ineffective assistance issue was available when the first motion for a new trial was presented. The issue was certainly open to be argued, and the motion judge’s conclusion that it was not “ripe” for determination is meritless. As noted already, the defendant identified the issue in her brief prior to our 1997 Amirault opinion.
The judge was not entitled, under Mass. R. Crim. P. 30 (b) or otherwise, to grant a new trial without considering and deciding the consequences of the fact that the defendant had waived the ineffective assistаnce issue. Commonwealth v. Amirault, 424 Mass, at 640. The power to give relief when a waived issue is “raised for the first time by a [postconviction] motion for a new trial should be exercised only in those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result.” Commonwealth v. Curtis,
The only basis on which the motion judge could prоperly have dealt with the waived ineffective assistance of counsel issue was on the standard of a substantial risk of a miscarriage of
The results of the court’s recent efforts to define a substantial risk of a miscarriage of justice do not alter the conclusion expressed in Commonwealth v. Amirault, supra at 645-651, that the defendant did not meet her burden of showing that there was a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, ante 8, 13 (1999). This court’s traditional treatment of the substantial risk issue calls for us to decide if we have a serious doubt whether the result of the trial might have been different had the error not been made. Id. (no substantial risk of miscarriage of justice if court persuaded that error did not materially influence guilty verdict).
We repeat what we said in Commonwealth v. Amirault, 424 Mass, at 653: “[A]ll of the child witnesses in the two trials testified in the physical presence of the defendants, testified under oath, were subject to cross-examination, and sat in front of the jury who could observe their demeanor and assess the weight and credibility of their testimonies. Moreover, there were several actual face-to-face encounters with the child witnesses throughout the trial. . . . We conclude that in these circumstances, the defendants have not met their burden of showing there was a substantial risk of a miscarriage of justice.” (Citation omitted.) We are additionally warranted in our conclusion that the seating arrangement for the child witnesses was not particularly significant by the decision of experiеnced defense counsel not to challenge that arrangement on art. 12 grounds, even when the judge inquired whether he wished to do so. Commonwealth v. Amirault, supra at 626, 645 n.18.
The forceful, one might say enthusiastic, indorsement of an interest in finality and the application of waiver in Commonwealth v. Amirault, supra at 639-644, apparently struck some as a radical and unwelcome departure from precedent. In fact, the Amirault opinion made no significant change in our treatment of postappeal motions for a new trial. It articulated society’s justified interest in finality that has long been implicit, and sometimes explicit, in our announcements that any late-arriving issue will prevail only if the issue presents a substantial risk of a miscarriage of justice. The defendant’s second motion for a new trial should have been denied.
THE THIRD MOTION FOR A NEW TRIAL
The defendant’s third motion for a new trial is based on a
In reviewing an order granting or denying a motion for a new trial, we accord deference to the views of a motion judge who was also the trial judge. Commonwealth v. Grace, supra at 307. If, however, as here, “the motion judge did not preside at trial, we defer to that judge’s assessment of the credibility of witnesses at the hearing on the new trial motion, but we regard ourselves in as good a position as the motion judge to assess the trial record.” Id.
The defendant claims that the testimony of Dr. Maggie Brack, who has a doctorate in experimental psychology, constitutes newly discovered evidence that explains how children can speak of disturbing sexual acts that they did not experience. The judge found that there were no studies available at the time of trial that identified the impact of suggestive interviewing techniques on the reliability of the testimony of the child witnesses. He, therefore, determined that the studies on which Dr. Brack relies were newly discovered. The judge also found that without Dr. Brack’s testimony the jury could not have understood the dangers of suggestive interviewing procedures. He concluded that had Dr. Brack’s testimony been available at trial, there is a substantial risk that the jury would have reached different verdicts.
This conclusion has meaning for the purposеs of the defendant’s new trial motion only if the proffered evidence was in fact newly discovered. Perceived deficiencies in the Commonwealth’s case have no role to play in deciding whether the evidence was new. Thus, much of the judge’s thorough and critical analysis of the Commonwealth’s evidence at trial, although relevant to other issues that he considered, is not relevant to the question whether, for the purposes of Mass. R.
Dr. Brack’s testimony was, of course, new in the sense that she did not testify аt the defendant’s trial. Similarly, studies to which Dr. Brack referred were new in the sense that they were published after the trial. Her testimony, based on these studies, does not differ in kind, however, from the testimony presented at trial. The evidence available at the time of the defendant’s trial included extensive opinion evidence on the very subject of improper interviewing practices that the defendant argued made unreliable the incriminating testimony of the child witnesses.
The motion judge made a significant error in concluding that Dr. Daniel Schuman was not permitted to testify at the defеndant’s trial regarding the unreliability of testimony based on improper interviewing practices. The judge may have been led to that conclusion because out-of-State counsel for the defendant, in presenting evidence in support of the motion, twice erroneously insisted that Dr. Schuman had not been allowed to testify before the jury.
We first set forth opinions that Dr. Schuman gave in the pretrial proceedings. He testified that it was obvious that the interviewing skill and comportment of the interviewer was “a critical variable.” The offering of a reward to a child for telling the interviewer what he or she wants to hear is inappropriate. Depriving a child of something unless the child gives a particular account is highly coercive. Inducements are improper and render the results invalid. Children who are pressured may pick up the fact and often will fit themselves into the “set of social expectations.” Authority figures and persons in uniforms create an aura of pressure. A biased interviewer who gives positive reinforcement to answers that are desired or expected will cause a child witness to expаnd on those answers. The child may conform to the expectations of what the child is supposed to say and becomes increasingly convinced of the accuracy of what he or she has said. Repetitive interviews and multiple interviewers of a child affect the child’s capacity to report with neutrality. Interviews in an emotionally charged atmosphere or by someone who is emotionally invested in the outcome may affect the child’s statements. It is a generally accepted understanding in psychiatry that circumstances that have a meaningful impact on the children alter children’s memory, conviction, and belief.
At the defendant’s trial, two experts, Dr. Skidmore and Dr. Erickson, testified on her behalf. They noted the importance of
In presenting Dr. Brack’s testimony, the defendant acknowledges that the same concepts regarding interviewing techniques were presented or available at the time of her trial. She argues, however, that Dr. Brack’s ability to discuss the consequеnces of coercive interview techniques makes her testimony new. She asserts that the expert testimony available at trial could not explain how suggestive interview techniques can lead a child to make false allegations of sexual abuse. The defendant argues, therefore, that Dr. Brack’s testimony is not simply “better than” the testimony offered at trial because she would discuss recent studies that answer the question unanswerable at trial, namely: “How could children come to speak of disturbing sexual acts if they did not suffer them?” Dr. Brack’s opinion is that, when suggestive interviewing tеchniques are used, “children may not only come to falsely report acts of sexual abuse, but they may come to believe that they experienced the events they reported. These children’s memories may be permanently tainted by the sexualized suggestions of their interviewers. These children can appear highly credible both to subsequent interviewers, to family, and to jurors.”
This opinion, however, does not differ significantly from the defense’s theory before and at trial. In her memorandum in sup
The defendant’s allegedly new evidence lacks the characteristics necessary to qualify as newly discovered evidence that could warrant granting a new trial. Contrast Commonwealth v. Meggs,
CONCLUSION
The orders allowing the defendant’s second and third motions for a new trial are vacated, and orders shall be entered denying both motions.
So ordered.
Notes
The judge sentenced the defendant to concurrent terms of from eight to twenty years on three rape convictions and concurrent terms of from eight to ten years on four indecent assault and battery convictions.
Thе defendant’s mother, who was convicted of similar charges, died on September 12, 1997.
The defendant’s brother Gerald was found guilty in 1986 in a separate trial on eight indictments charging rape of a child and seven indictments charging indecent assault and battery on a child. In Commonwealth v. Amirault,
In addition, the judgе ruled, in passing on the third motion for a new trial, that the child witnesses’ testimony was “forever tainted” and that they would not be allowed to testify at any retrial. The judge relied on State v. Michaels,
Becаuse counsel on the defendant’s direct appeal were also her trial counsel, the failure of counsel to argue on direct appeal that they were ineffective at trial is not treated as a waiver. Commonwealth v, Egardo,
In a footnote, the defendant’s brief stated the following:
“Surely, if the state of the law was such that trial counsel would be expected to register a constitutional objection, then trial counsel’s failure in that regard was inexcusable and reflected incompetence. Accordingly, the defendants’ federal and state constitutional rights to effective assistance of counsel was [m'c] violated, since no rational trial strategy could account for the failure to object. See Strickland v. Washington,466 U.S. 668 ,104 S. Ct. 2052 (1984).”
In response to this presentation, we said:
“We do not suggest, as the defendants’ new counsel invites us to do, that the original defense counsel in these cases were ineffective. Indeed they were experienced and mounted vigorous defenses, but the focus of their objections was elsewhere. Furthermore, like the constitutional right of the accused to testify in his own behalf, confrontation is not always an advantage to the accused: if the witness is firm as he confronts the accused, this may add to his credibility; while the very upset or even terror a child may show when confronted by the person he accuses may tell powerfully against the accused. Experienced and competent counsel might well have concluded that it was to the defendants’ advantage to keep the emotional temperature as low as possible by not insisting on confrontation.” (Footnotes omitted.) Commonwealth v. Amirault, 424 Mass, at 645.
We commented additionally that, “[i]n considering waiver, we are entitled to consider the defense’s apparent lack of interest in this issue,” and that “[ijnherent in the adversary system is the imperative thаt choices made by counsel are binding on the defendant.” Id. at 645 nn.18 & 19.
The defendant relies on Mass. R. Crim. P. 30 (c) (2),
The defendant argues strenuously that we should grant a new trial because the art. 12 violation was not harmless beyond a reasonable doubt, a standard used in reviewing preserved constitutional errors. This standard of review is inapplicable, however, when a defendant has waived her claim of error, and we review the alleged error on the substantial risk of a misсarriage of justice standard. See Commonwealth v. Amirault, supra at 646-647; Commonwealth v. Curtis, supra at 626. The standard of review that we discuss in this case is
We shall assume, but not decide, that the defendant should not be faulted for failing to raise the issue in conjunction with her second motion for a new trial.
The question at the pretrial hearing was whether Dr. Schuman’s opinion testimony was generally accepted and of sufficient weight under the principles of Frye v. United States,
The judge further concluded that under Commonwealth v. Lanigan,
At Gerald’s trial, Dr. Schuman testified that, if a parent, caretaker, or other powerful figure on whom the child relies is fearful or angry about something, “the child, in an effort to maintain the bond, in an effort to reach out altruistically, becomes reassuring, compliant, and accommodating to expectations, including fearful expectations.” Dr. Schuman also noted at Gerald’s trial that the tone of the interview should be neutral, free of pressure, and anxiety.
The defendant supported this proposition with several citаtions, including the following quotes:
“There is a myth propagated by ‘abuse detectors’ that ‘children don’t lie about these things.’ Yet there is no real evidence to back this up. On the contrary Jean Piaget, in his monumental work, The Moral Development of Children, showed that, until age five or six, a lie is whatever an adult says it is, notwithstanding the often clumsy attempts by prosecutors and child service workers to establish that the child knows the difference between truth and falsehood.
“Additionally, a child’s responses can be conditioned by the complaining parents and/or investigator’s beliefs and responses (intentional and unintentional) to what the child says or does. And, as previously mentioned, the reinforcement the child typically gets in these interrogations is a powerful factor in shaping its own responses and imbedding them in its conscious mind. Add repetition to this, and it is all too easy for the child to confuse objective and subjective reality. It is obvious that this can be tragic for the accused; it is also tragic for the developing child who, at an unconscious level, suffers disturbance resulting from this schism.”
Mclver, The Case for a Therapeutic Interview in Situations of Alleged Sexual Molestation, The Champion, 11, 12-13 (Jan.-Feb. 1986).
“It is entirely possible for otherwise ambiguous activities then to be elaborated by the child or other reporters into genuine, truthful, but nonvalid perceptions of abuse. A poignant emotional reality is that children in such situations are not ‘lying’ but are not ‘telling the truth’ either in the customary or testimonial sense. The child may have sufficient abstract concepts of right/wrong or truth/falsehood to qualify as a competent witness in general, but in the particular matter at hand the child may well be incapable of distinguishing an ‘objective’ truth from inevitable subjective interpretations.”
Schuman, False Accusation of Physical and Sexual Abuse, presented at the Annual Conference of the American Academy of Psychiatry and the Law (Oct. 1984).