OPINION OF THE COURT
Dеfendant moves for a pretrial hearing to determine whether the complainant’s potential trial testimony should be
On February 10, 1994, the Grand Jury indicted appellant for rape in the first degree (Penal Law § 130.35), sexual abuse in the first degree (Penal Law § 130.65), incest (Penal Law § 255.25), and endangering the welfare of a child (Penal Law § 260.10). These charges arose from allegations made by the defendant’s half sister (born Dec. 6, 1984) that defendant engaged in sexual conduct with her on the afternoon of December 31, 1993.
In determining this motion, the court has considered the defendant’s motion papers and the People’s рapers in response.
FACTS
Defendant was arrested in this case on January 1, 1994. Defendant’s mother, Lucille M., and John C., his mother’s putative boyfriend, were also arrested on similar charges that day. The complaint report lists Brenda M. as the "victim”, and Ralph M., the defendant’s stepfather and Brenda’s father, as "reporter”.
The arrests arosе during a hotly contested custody/visitation dispute between Lucille M. and Ralph M.
There is here a family history of abuse. In 1986, the defendant and his four half siblings were removed from their parents’ custody. Physical abuse findings were entered against Ralph M. (the reporter in this case); a finding of failure to protect the children from Ralph M.’s abuse was entered against Lucille M. At around the same time, Ralph M. allegedly sexually abused defendant and allegedly sexually abused Brenda M. in defendant’s presence.
At the time of this alleged incident, the children, including the defendant and the complainant, were living with their mother and not the stepfather, Ralph M.
Brenda M. was examined at Kings County Medical Center on January 1, 1994, by R. Reddy, M.D., who found evidence of "old” sexual abuse consisting of a hymenal tear. No Vitullo kit was used to test for the presence of semen. Brenda was
While this interview was apparently not the first interview of the complainant, the papers do not indicate the nature of the questioning at the other interviews.
POWER TO ENTERTAIN THE INSTANT MOTION
Since suggestive questioning of a witness by a civilian physician is not a ground for suppression listed in CPL article 710, defendant’s hearing request is not specifically authorizеd by the CPL.
Courts have recognized that evidentiary decisions relating to the admission of potentially prejudicial evidence can be made through pretrial motions, often referred to as motions in limine (see, Annotation, 63 ALR3d 311, § 2). The power of a trial court to grant such a motion is normally not mentioned in procedural rules, but found in the inherent pоwer of a trial court to admit or exclude evidence (see, e.g., Luce v United States,
In New York, rules of evidence are based on the common law (see, People v Hughes,
Courts have recognized the right of a trial court to determine evidentiary matters at pretrial hearings, despite the lack of specific authorization in the CPL (see, e.g., People v Wesley,
The court finds that it has the inherent power to entеrtain defendant’s motion, despite the lack of specific statutory authority.
MERITS OF DEFENDANT’S MOTION
Although the court has the power to entertain the motion, this does not mean that the court should exercise such authority.
A reliable determination of guilt or innocence is the essence of a criminal trial (People v Adams,
Here, the issue is whether suggestive questioning of a child complainant by a civilian rendered the child’s trial testimony so unreliable that it must be suppressed.
Where the evidence involves the in-court nonhearsay testimony of a witness, courts hаve generally found the oath and cross-examination sufficient tests of reliability to allow admission of the testimony (People v Brensic, supra,
If a child witness is prone to the same sort of suggestion to which a person under hypnosis, or a person making an identification, is subject, a defendant should have the same or similar right to suppress testimony rendered unreliable by the suggestion. Likewise, this right should not depend on State action.
Psychologiсal studies of investigatory interviews in child abuse cases indicate that suggestive interviewing techniques
Children are also more likely to be led astray when discussing peripheral details of an event. The definition of peripheral and central, however, is defined from a child’s point of viеw, rather than an adult’s (id., § 4.5, at 233, n 88, quoting Spencer and Flin, The Evidence of Children: The Law and Psychology, at 253-254 [1990]). "Children are especially likely to accept an interviewer’s suggestions when they are younger, when they are interrogated after a long delay, when they feel intimidated by the interviewer, when the interviewer’s suggestions are strongly stated and frequently repeated, and when more than one interviewer makes the same suggestions” (Goodman and Clarke-Stewart, Suggestibility in Children’s Testimony: Implications for Sexual Abuse Investigations, in The Suggestibility of Children’s Recollections, at 103 [J. Doris ed 1990]).
Other factors that influence a child’s suggestibility include: (1) whether the interviewer believes in the presumption of guilt; (2) whether thе interviewer vilifies or criticizes the suspect; (3) whether the questions asked are leading or non-leading; (4) whether the interviewer is a trusted authority figure (Myers, The Child Witness: Techniques for Direct Examination, Cross-Examination, and Impeachment, 18 Pac LJ 801, 889 [1987]; Goodman and Helgeson, op. cit, 40 U Miami L Rev, at 195). While mildly leading questions may be necessary to "open up” a shy child, the questions should not imply that the сhild is wrong if he or she does not admit to the abuse (i.e., "Did Uncle Harry touch you [with his] penis?” not "I bet Uncle Harry touched you [with his] penis, [didn’t he]?”) (Goodman and Helgeson, id., 40 U Miami L Rev, at 189). That an allegation occurs in the context of a custody dispute is an additional ground for caution (1 Myers, Evidence in Child Abuse and Neglect Cases § 4.4, at 226-227).
Courts have recognizеd the susceptibility of child witnesses to suggestion (Idaho v Wright, supra,
The New Jersey Supreme Court has determined thаt there is sufficient consensus among experts to conclude that highly suggestive questioning techniques can distort a child’s recollection of events, undermining the reliability of the statements and subsequent testimony concerning such events (State v Michaels, supra, 136 NJ,
In contrast to Michaels (supra), the court in People v Alvarez (supra,
As previously indicated in this decision, the lack of specific authority is not an impediment to a court acting. This is especially true when the issue is the reliability of evidence to be admitted at trial.
The concern in Alvarez (supra) that a child witness would be required to endure additional proceedings could only occur if there is a showing that the interview procedures were unduly suggestive (People v Chipp,
For these reasons, this court concludes that in an appropriate case a hearing should be held to determine whether a witness was subject to unduly suggestive or coercive questioning by governmental or nongovernmental personnel, and whether the potential trial testimony was thereby rendered unreliable (see, People v Blackman,
Interviews of complaining witnesses generally take place outside the presence of the defendant. As with a motion to suppress identification testimony, it would be unreasonable to expect precise factual averments in a situation where a defendant also "does nоt have access to or awareness of the facts necessary to support suppression” (People v Mendoza, supra,
In this matter, the 10-year-old complainant did not know why she was brought to the сlinic. Dr. Switzer told her that she had been brought in because the police suspected that the defendant had touched her on her vagina. Dr. Switzer then asked the complainant whether the defendant had touched her there. The complainant answered yes. In asking the question in this manner, the doctor suggested both the nature of the abuse and the person responsible. Moreover, these allegations arose in the context of a family custody battle, a situation where the allegations should be viewed with caution (1 Myers, Evidence in Child Abuse and Neglect Cases § 4.4, at 227).
There is also a history of abuse by the "reporter” of this incident against the complainant and defеndant. Defendant raises a claim of suggestive questioning on the face of his papers.
This interview (apparently) occurred after several interviews of the complainant. As such, this one interview may not have rendered Brenda’s accusations unreliable. Defendant’s failure to include allegations relating to the other intеrviews is reasonable in light of his lack of access to the interview process. Since the People have not presented evidence showing that the other interviews were not suggestive, this one interview raises a factual question as to suggestion in the interview process.
For these reasons, the court finds defendant has alleged sufficient facts to warrant a hearing.
Procedures developed in the context of other suppression hearings provide guidance on how to conduct this hearing. Given the People’s control of access to information regarding the initial interviews of the complainant, the People will bear the initial burden of going forward to show that the interviews of the complaining witness were not so suggestive as to create a substantial risk of rendering the in-court testimony unreliable (see, People v Wise,
If defendant meets his burden of showing suggestibility of the questioning, the burden would then shift to the People to show by clear and convincing evidence that the complainant’s potential testimony has not been tainted by the suggestive questioning (People v Chipp, supra,
defendant’s discovery requests
Defendant also moves for an оrder to produce certain police reports, records of Family Court proceedings, and records from CWA and St. Vincent. In the alternative, defendant requests that the court conduct an in camera inspection of the documents. Defendant alleges that he may introduce the documents at a hearing or at trial, аnd that the documents may
A subpoena may not be used as a discovery device or to ascertain the existence of evidence (Matter of Terry D.,
As to the police reports, CWA and St. Vincent records, defendant has only allegеd that the documents carry potential for establishing relevant evidence. The defendant has failed to make a specific factual predicate (see, Matter of Constantine v Leto, supra, at 378). The CWA and St. Vincent records are not in the possession of the prosecution and therefore they cannot be obtained from the District Attorney. The District Attorney has no obligation to obtain documents from St. Vincent or CWA.
With regard to defendant’s request for Family Court records, this court does not rule on the merits of defendant’s request. It finds that it is not the proper place to request Family Court records. Such an application must be made directly to the Family Court (see, Family Ct Act § 166; Matter of Herald Co. v Mariani,
Defendant’s request for production of documents is denied.
The motion is granted in part, and denied in part.
Notes
The defendant does not allege the date of this later examination. The People allege that this occurred on January 21, 1994, three weeks after Brenda was examined by Dr. Reddy.