State v. Bullock

Utah, Appellee, Plaintiff and STATE BULLOCK, Brett Defendant

Arden Appellant. No. 870053. Supreme Court Utah. 18, 1989. Oct. Cook, City, appel- Craig S. Salt Lake for Rehearing Denied Nov. 1989. lant. Certiorari Denied June 1990. Wilkinson, Thompson, B. David L. David — -, 110 S.Ct. 3270. See U.S. City, appellee. Salt Lake

HALL, Chief Justice: appeals Defendant his convictions aggravated sexual abuse of three counts sodomy upon three counts of a child1 and presented de- child.2 The issue is whether of inad- fendant was convicted on basis him deprived which of a missible evidence challenge fair trial. Defendant does not Rather, sufficiency of the he evidence. the case that the manner which contends the evidence investigated so tainted trial, inadmissible at that it was rendered plain trial court committed error out-of-court admitting the child victims’ expert opinions statements and evidence, and that trial coun- witnesses into failing raise the ineffective in sel was seeking and in not admissibility issue Thus, prior evidence to trial. suppress the appeal is reversal of sought on the relief charges. dismissal of the the trial court and neighbors former of defendant’s One purport- four-year-old son’s learned of activity. This involvement sexual ed of her to seek an evaluation prompted her Snow, social worker by Dr. Barbara son Treat- Sexual Abuse in the Intermountain Dr. The child disclosed to ment Center. and another defendant’s son Snow that neighborhood had friend in the young male penis performed fellatio touched his the Division of him. Dr. notified Snow Services, Family which in turn referred Department. Police matter to the Bountiful boys, who interviewed one Snow 76-5-403.1 § Utah Code Ann. In violation of Ann. 76-5-404.1 § violation of Utah Code 1. In 1988). (amended (amended 1989). (Supp.1987) (Supp.1988) by acknowledged explained he and defendant’s son abuse had occurred his denial four-year-old stating longer in a manner had abused that he was no afraid they neighborhood him, their friends family, and two of threats to his and defendant’s playing trial, defendant a pet dog. videotapes had learned from while his At were “game” him his Dr. by with at home. Snow into evidence and were viewed received son, did not interview defendant’s but jurors.4 subsequent the other three interviews of trial, questioned Dr. Also at Snow was boys, had each related that defendant extensively regarding her credentials penises performed their fella- touched interviewing techniques. testified that She Also, on all four of them. defendant tio degrees in she holds doctorate and masters penis per- touch had each of them his has had considera- social work and she form fellatio on him. And defendant training experience concerning the ble them, families, threatened to harm their employ- area of child sexual abuse. Her pets anyone their told about it. Dr. field, therapeutic ment is in and her Snow also made this information available healing are directed toward the interests Department. to the Bountiful Police investigation for the children instead boys The three were thereafter individu- purpose prosecution. of criminal testi- She ally by Tyler, psy- Dr. Ann interviewed interviewing techniques she fied that the chologist executive director police, utilizes differ from those of the Center, Family Support organization de- prov- interests are directed toward whose prevention and treatment of voted Indeed, her ing the elements of a crime. neglect. The child abuse and interviews “intervention with children is not from a by Tyler produced conducted Dr. disclo- position,” is “a child’s advo- neutral as she by sures of sexual abuse and threats defen- ally cate.” described herself as an She similar to those disclosures made to dant explained “pur- that her such children and Dr. Snow. is pose gathering information from them helps only gather that information that interview, county

Following Tyler such, “rela- them heal.” As she remains attorney meeting in his office at- held a happens tively indifferent to what with the parents, boys, tended the three perpetrator.” testified that her con- She deputy county attorneys, and a mem- two truth, cern is to determine the she police department. At this meet- ber upon specific assessing criteria for relies boys sexual ing, two of the recounted the the truthfulness of a child's statements defendant, perpetrated abuse concerning sexual abuse. anything happened to third denied that him. boys Dr. Snow’s interviews of the trial, testimony taped, exception three of a video-

Prior boy and an boys videotaped taped for use at trial.3 session with' one audio- was court, presented taped boy session with another and his testimony Their was acknowledged videotap- party opportunity had the to ex- father. She and each through counsel. De- a child’s initial is recom- amine the witnesses interview diagnosing in the field of proceedings viewed the from a lo- mended some fendant However, presence treating child sexual abuse. cation out of the witnesses. practice boys each of the detailed she noted that it was not her because, perpetrated by experi- the sessions in her the sexual abuse defendant record ence, tape against he them if the use of a recorder or video and the threats made disconcerting to children and anyone tell about his acts. machine is should responses. Accordingly, previously denied that inhibits their boy who Iowa, Coy Code Ann. 77-35-15.5 Court’s decision in 487 U.S. § 3. Pursuant to Utah 1988; 1989); (amended (1988), repealed (Supp.1987) are is- 108 S.Ct. 101 L.Ed.2d 857 see Utah R.Crim.P. 15.5. in this case. See also sues not before us infra (discussion pages & of trial note 13 constitutionality procedure of this Id. The error). strategy and invited Supreme United States and the effect of the concerning impartial trial her inter- er must also be neutral and primarily prejudgments on the outset and not make views of based memory. Additionally, what occurred. Dr. danger explained DeCaria that there trial, Tyler questioned exten- At repeat allegations having children to differ- regarding qualifications her the sively and people the more an event is ent since dis- procedures conducting she followed in her cussed, the more real the event seem the boys. interviews with She testified emphasized He the need to become. to psychologist that she is a licensed It record the interviews children. training experience in the substantial opinion by his the was ultimate time such, child As she field of sexual abuse. boys by Tyler, the were interviewed Dr. performed individual “corroborative assess- by irretrievably were contaminated boys and the ments” of the three reached Snow, previous Dr. their contacts with sexually each been conclusion that had parents, other children. their the training emphasized Her the im- abused. portance good Stephen Golding of record Dr. testified that one data collection tapes. a keeping, including the use of who interviews such cases must completely remain neutral and that when response, presented defendant three Dr. she a child Snow conceded that was expert Dr. witnesses who critical of were abuse, looking advocate for sexual she Dr. techniques validity Snow’s of missed the forensic mental health stan- Tyler’s corroborative assessments because “by mile.” It was dards his conclusion of contamination of the vic- the asserted boys that once the had been contaminated by tims’ occasioned Dr. Snow’s Snow, by interviewing Dr. the methods of interviewing Specifically, Dr. Mo- process. anyone impossible Tyler for Dr. it was Christy important testified it was nica happened. actually else to what had know chil- tape to the initial interviews of the answers, dren, that he was denied only not to record the Defendant contends process questions how the were due because the initial interviews also to understand by fine Dr. and to able to remember the of the child victims conducted Snow asked investigative process contaminated Christy details of the interview. Dr. chal- so the through suggestive questioning of Dr. inter- and inade- lenged objectivity the Snow’s quate recording practices that the evidence viewing techniques ignoring the child’s during to response give until the child learned the of sexual abuse that surfaced subsequent expected rewarding an- interviews and the interviews answer she by making persons, including com- the swers that she liked such victims “good boy.” parents, all of the evidence Christy Dr. rendered ments practice “shaping” Dr. critical of Snow’s inadmissible. confronting an

the of a child Defendant also claims that he was denied response with the statement undesired effective assistance of counsel because trial truth, imply- thereby the child must tell the (1) process to raise the counsel failed due been She that the truth told. challenge admissibility of the State’s to critical of the fact that at was also abuse; (2) failed evidence of child sexual to county meeting held in the office of the challenge admissibility of the child vic- permitted to attorney, statements; (3) failed to tims’ out-of-court by sharing each other “cross-contaminate” children, competency of object to the inci- of the sexual abuse their versions (4) experts testify; failed to parents, and dents. evidence; (5) “syndrome” object proce- object videotaping crit- to the similarly Michael failed DeCaria was (6) object to the interviewing procedures. employed; failed ical Dr. Snow’s dures testimony that the children interviewing expert chil- witness He testified that when abuse; dren, “open-ended.” in this were victims of sexual questions must be case (7) is, to make an state- question cannot have the answer failed That opening post-trial motions. Defendant already contained within it. The interview- ment file case, concedes appeal that the claims raised on text of we need reach the were not raised court below. pertaining propriety issues evidentiary rulings trial court’s or defen- apparent It is from record that it was plain dant’s claim of error. strategy defense counsel to attack quality the State’s in an evidence ruling In order for an erroneous persuade jury effort to insuffi- by a trial court to constitute reversible ciency of to support the evidence a convic- error, the error must have been harmful tion. did Defense counsel so extensive- persuaded and we must be either ly cross-examining the witnesses State’s ruling properly objected before by presenting countervailing testimony or, objected to, trial court if not experts, of defense evidence of defendant’s ruling plainly erroneous.8 Defendant good reputation character and for truthful- rulings urges evidentiary that the he which ness, and own defendant’s denial testimo- objectionable appeal finds on fall into the ny. However, category. plainly erroneous we appraise objected rulings all to for do The record also reflects that both the appeal plain first time under the on the judge and counsel were well aware of the example, error doctrine. For trial coun significant evidentiary per- which issues active, op actions to an sel’s amounted meate a trial in this kind At one of case. posed passive, to a objection, waiver of an pretrial of several re- conferences held to may we decline to consider the claim of issues, procedural solve the court reviewed plain error.9 a course of is Such action provisions with counsel the Utah Code of policy with underlying consistent the (amended (Supp.1985) Ann. 76-5-411 § plain plain per error rule. error rule 1989),5 governed 1988 & which the admissi- appellate jus mits the court to assure that bility of out-of-court statements of child done, tice is even if counsel fails to act to of victims sexual abuse. The court also bring harmfully ruling erroneous reviewed applicability with counsel party of the court. But attention trial if a Nelson,6 v. a recent we State case wherein through counsel has made conscious deci interpreted provisions of said section objecting refrain sion to or has led 76-5-411. error, the trial court into we will then de challenged admissibility Trial counsel party cline to save that from the error. only a modicum of State’s evidence. flexibility plain This is inherent error hand, appellate theOn counsel has plain rule. error ... test ... ulti “[T]he admissibility virtually attacked the all of mately permit[s] appellate court to bal However, the State’s evidence. because procedural regularity ance the need for below, object trial counsel failed to defen- 10 demands of fairness.” precluded by 103(a)(1) dant is rule of the case, In the of this context before ad- raising Utah Rules of Evidence from dressing plain error, points appeal defendant’s claim of of these in the absence of necessary to showing (1) trial address the is- court committed threshold (2) plain admitting objec- sues: Was the to raise error in evidence or failure failing to trial counsel was ineffective in tions before the trial court the of a result objections consciously strategy raise to the same.7 In the con- chosen trial counsel pertinent 5. The amendments are not here. avoid assistance claims asserted to effect of fail object). ure to 1986). (Utah 6. 725 P.2d 1353 Verde, 8. 770 P.2d at 121. 103(d); Verde, Utah see 770 7. R.Evid. State See, 1023; 116, Medina, (Utah 1989) e.g., (ineffective Morgan 9. 738 P.2d P.2d assist 118-19 Co., 573, Quailbrook Condominium 704 avoid P.2d 579 ance claim asserted to effect of failure Jewkes, 486, (Utah 1985); Eldredge, A.I.D. v. 701 object); P.2d P.2d 35-36 State (Utah 1984). (Utah denied, 1989) explained), (plain error cert. — U.S. -, (Oct. 110 S.Ct. 107 L.Ed.2d 29 2, 1989); Medina, Verde, (citation 1023- State v. 770 P.2d at 122 n. 12 omit- (Utah 1987) (manifest ted). error and ineffective strategy, if it was a of a conscious and we oversight, rather than an result decision, agree. It is reasonable to conclude that making of that strategic did the counsel, experienced criminal defense assistance of choice constitute ineffective consciously lawyer, chose not to seek the If the was conscious counsel? decision exclusion of the about which de- did not amount to ineffective assistance complains. fendant now While the evi- counsel, to consid- this Court should refuse complained of inad- dence have been ruling. court’s er the merits the trial missible, reasonably counsel con- trial could Indeed, in- object the failure to such there clude under these circumstances that should be treated as a conscious stances of keeping was little chance preclude consid- and should further waiver evidence, especially children out of precisely issue. This was eration court relia- sponte after the trial sua made v. Medi- course that was followed State findings. bility might He well have na,11 the manifest which was decided under effectively only way thought 19(c) injustice provision of of the Utah rule undermining mutually consistent testi- circum- Rules Criminal Procedure. young these shock- mony of children about here, presented such as stances those not to ing incidents of sexual abuse injustice” “plain “manifest error” testify the children at trial or insist that synonymous.12 operationally videotaped testimony, their object to necessity appellate court’s for an put a adult sympathetic rather was to less following is obvious approach such Snow, witness, Dr. such as on the stand consequences of the alternative when portray unprofessional, to her as an per- If were are considered. trial counsel put misguided zealot who these ideas forego as objecting to to evidence mitted through minds the use of tech- children’s counsel thinks part strategy of a trial way, niques brainwashing. to In this akin chances will enhance defendant’s explain jury why the counsel could then, fails, acquittal strategy if that relating untrue stories which children were that the permitted appeal to claim on Having to believe. made this they seemed plain it was should reverse because Court decision, reasonably have counsel could evidence, court error for the to admit to that it would inconsistent concluded be sanctioning procedure we would be Tyler’s testimony Dr. about seek to exclude invited Defendants fosters error.13 out-of-court children’s behavior of not thus not entitled both the benefit experts, since the statements object- objecting at trial the benefit of children, trial,” there were thus “on ing appeal.14 on try keep little reason to out permit re- plain error rule exists opinions on abuse. way rulings of trial court view counsel, claiming ineffectiveness harm that protecting a defendant from the bear demon- must the burden of defendant by less-than-perfect counsel. caused can be representation trial strating that counsel’s way purpose rule is no But objective of reason- fell below an standard consciously implicated defense counsel judgment and that coun- professional able permit admitted as elects to evidence De- performance prejudicial.16 sel’s than strategy a defense rather part of two-pronged failed to fendant has meet this through neglect.15 inadvertence or any ineffec- of his claims of standard tiveness of counsel. mani The State contends strong complained must overcome the object failures to Defendant fold that trial rendered ad- presumption were the counsel appellate counsel for defendant Medina, 738 P.2d 14. See 1023. 11. P.2d 1023. Verde, 770 See P.2d at 121-22. 15. Id. Tillman, 13. See State 750 P.2d 1989). Carter, (Utah 1987). (Utah 16. State open- not to offer an by counsel’s decision and exercised reasonable

equate assistance post-trial motions.20 ing or make there statement judgment.17 Whenever professional professional legitimate exercise of is a judgment are af- The conviction and strategy, the judgment in the choice of trial firmed. produce expected fact that it did not constitute ineffectiveness result does not BILLINGS, Judge, Appeals Court of counsel.18 concurs. observed, apparent it is As heretofore ZIMMERMAN, (concurring). Justice: strategy from the record that was opin- fully I concur the Chief Justice’s quality defense counsel to attack majority, with the My ion. concurrence persuade in an effort to State’s evidence however, rejection not be read as a should insufficiency of the evidence jury forcefully by points made so of all the for the support a conviction. Counsel In some in his dissent. Justice Stewart by cross-exam- defense effectuated this agree his assessment of particulars, I by present- ining the witnesses and State’s admissibility of the evidence. How- countervailing testimony of defense ex- ever, agree I war- cannot good of defendant’s charac- perts, evidence reaching the merits. rants our truthfulness, and reputation ter and consciously a strate- chose Trial counsel testimony. defendant’s own denial appellate that which gy that differs from Furthermore, record con- review of the might succeeded thinks below counsel effectively put counsel firms that defense would which Stewart states Justice an effec- “on trial” and mounted Snow virtually in the exclusion of have resulted and methods attack on her motives tive However, there all of the State’s evidence. through testimony and that of both that the trial certainly no assurance Nevertheless, jurors experts. other Court, court, majority of this would persuaded that the chil- apparently by appel- accept proposition advanced However, ac- spoke the truth. dren by Stewart that late counsel Justice counsel, considered when tions defense tainted Barbara the children were so presumption competence light they never take that could Snow’s activities any representation, lead to the that attends acceptance of that the stand. Absent was not ineffective that counsel conclusion trial coun- say one cannot that proposition, object to the errors that the failure to wrong, much less strategy trial sel's the result alleged by appellate counsel was incompetent. If trial counsel that it was Hence, strategy. we do trial of conscious strategy a different and had had chosen plain conten- defendant’s error not reach excluding testimony of succeeded tions. videotapes of the Barbara Snow and the counsel not to children, The decisions of defense live he would still have faced the opening statement and not testimony an the children. It is offer of several of recognized that, tactically speak- motions are well post-trial make to conclude difficult professional testify to the live in the ing, having matters best left the children Defendant has would have been better judgment of counsel. absence of Snow representation by having de- the children that his for the defense than demonstrated videotape focusing objective appear by an stan- fell below fense counsel manner in trial on Snow and the judgment,19 whole professional dard of reasonable prepared. case was prejudiced which the State’s he was he shown that nor has Strickland, 688, 668, 104 S.Ct. at 2064. Washington, 466 U.S. 466 U.S. 19. v. 17. See Strickland 2065-66, 2052, 689-91, 80 L.Ed.2d 674 104 S.Ct. 1187, (1984); Lairby, 699 P.2d 1203-06 State v. 893; Archuleta, Carter, 776 P.2d at State 20. 1984), (Utah grounds, State overruled on 1987); (Utah Codianna 747 P.2d 1987). (Utah Ossana, (Utah 1983). Morris, 660 P.2d Medina, 1023-24. 738 P.2d at agree. It is reasonable to conclude subtlety complexity of such very The counsel, experienced criminal argue strongly for not consider- defense judgments lawyer, consciously conscious chose not to seek the challenges merits of implement testimony them. For this about which steps taken to exclusion of the reason, principle the evi- complains. we should adhere to defendant now While assistance of complained may underlies the ineffective dence have been inad- missible, reasonably counsel standard of Strickland counsel could trial exception plain circumstances, error invited error conclude under the injustice parties must and manifest keeping little chance of there was rules— evidence, choices generally abide conscious testimony of the children out during make trial. Jus- and their counsel especially after the trial court sua why princi- tice Stewart has not shown reliability findings. He sponte made apply here. ple does not thought only might well have undermining the mu- way effectively STEWART, (dissenting). Justice: testimony these tually consistent shocking was tried and young I dissent. The defendant children about incidents hearsay. an avalanche of Not convicted on was not to insist that the of sexual abuse confront his object once was he ever allowed to testify children at trial or to face, face to nor was he primary accusers videotaped testimony, their but rather trial because them at able to cross-examine put sympathetic a less adult wit- was to presented by video- Snow, ness, on the stand such as months before trial. tapes made two portray unprofessional, her as an mis- presented at trial were also accusations guided put these ideas zealot who a social worker through the through minds the use of tech- children’s repeatedly who interro- psychologist and a brainwashing. In this niques akin to complainants and young four gated the explain jury way, counsel could the admission of acted as conduits for then relating untrue children were why the boys’ hearsay evidence. more of the to believe. stories which seemed decision, could Having made this counsel any of majority refuses to address that it would reasonably have concluded defendant on contentions raised to seek to exclude be inconsistent ground they appeal this on the Tyler’s testimony about behavior by a “conscious decision” all waived children’s out-of-court statements However, flatly inac- it is defense counsel. children, experts, not the that since the a “conscious say that there was curate to trial,” little there was were thus “on of face-to-face the denial decision” waive keep opinions try out their reason to (see The de- part infra). III confrontation on abuse. undeniably object did fendant —twice—to videotaping of the his exclusion from majori- support The record does complainants, and testimony of the four that the “manifold ty’s speculation blatant appeal to sufficiently raised on issue is object” were the “result of failures to Court. These require resolution this credulity strategy.” It stretches conscious committed errors and other constitutional argue, as the breaking point to beyond the in their effect as to pervasive were so does, to con- majority that it is “reasonable did not that the trial compel the conclusion counsel, experienced clude that defense under standards of fairness meet minimum not to consciously chose lawyer, criminal the United process clauses of the due testimony about seek the exclusion Constitutions. and Utah States fact, complains.” In now which defendant Competent states: majority precise opposite is true. proper ob- have made trial counsel would the manifold contends that The State experts’ testimo- attacked the by appel- jections and object complained of failures to for not rational excuse ny; there was no were the re- for defendant late counsel hearsay. strategy, objecting and we of a conscious sult 162 any sex event, before other child classically appro is a inadmissible this testimony is application of the manifest are tainted. Once

priate case for abuse cases Indeed, compelling tainted, this is a unlikely error doctrine. that the taint can be it is precisely invoking that doctrine case for excised, may have to be and convictions recognizes majority itself because the if the not have to be reversed that would here is whether the tech what is at stake end, In the testimony were not tainted. interrogation niques were used in the protecting children from sexu- the cause of preparation of the child accusers and seriously set back exploitive conduct is ally the effect of for trial had majority’s flat refusal to deal with by the majority “brainwashing” boys. The this case on the merits. point; but if it even address that does not abuse crimes I am aware that sex merit, has, I then this trial as believe They leave lifetime are heinous. often fundamen fatally in fact infected with damage subsequent may scars that even cannot stand constitu tal unfairness and natural rush to generations. But v. tionally. generally Culombe Con See abuse, it is essential protect children from 568, 1860, necticut, 6 367 U.S. 81 S.Ct. designed to sift Richmond, judicial procedures (1961); Rogers v. L.Ed.2d 1037 735, compromised or 534, from error not be 5 L.Ed.2d 760 truth 365 U.S. 81 S.Ct. Ohio, 596, (1961); not mere Haley perverted. procedures 332 U.S. 68 Those are (1948); 302, they L.Ed. 224 Malinski v. justice; S.Ct. 92 subvert “technicalities” which York, 401, 65 New 324 U.S. S.Ct. justice absolutely essential to achieve Florida, (1945); L.Ed. 1029 Chambers when be- and must not be abandoned L.Ed. 716 60 S.Ct. 309 U.S. apply. A come difficult or inconvenient Cook, (1940). 777 P.2d Hurst v. See also problems public concern for the legitimate Smith, (Utah 1989); 617 P.2d Chess must not be converted of child sex abuse (Utah 1980). tramples hysteria that overruns and into a rights of those who are accused. Moreover, validity techniques just are not an artifact witch trials Salem by the social worker this case used century; era and another of another shaping children’s eliciting and something human nature that say about ought to re- squarely put at issue and may repeated have in the notori- well been in numer- has testified solved because she in Minne- County sex abuse case ous Scott cases. Since her other child sex abuse ous infamous McMartin Preschool sota and the highly unreliable and techniques are so Beach, California, in Manhattan where case testimony, induced false reports child sex abuse numerous sordid inap- techniques declare such Court should false.1 by them turned out to be testimony elicited propriate and case, which, things me was the total lack at the that struck Preschool 1. The McMartin said_ corroboration,” stage, opinion, is still in the trial Reiner "The en- time of this of respects to this in some group bears a resemblance turned over to a of social tire case was popular press noted: article in the case. An Their interviews were workers to handle. commonly that with investigation known is only What’s criminal of this used as child, exception all of the former of one the preschoolers case.” being molested at school denied Dominoes?, Fischer, McMartin, Los A Case of [by they interviewed the so- until were 126, 131, (empha- after Angeles, October That child who made cial workers].... original). Charges against five of the sis in dropped from the case because claim was allegations were dismissed be- seven McMartin defendants bizarre. were considered too "incredibly the evidence was fore trial because were social workers “What we had here ... Id. at 133. weak.” very asking and lead- questioning the children questions,” ing suggestive said District and Attorney children were Reiner.... "The Ira praise some- when said rewarded with happened." thing had nothing up the ... to back ... [T]here coming "One workers]. the social [from tales point particular significance in alleging

The of of cases sexual child abuse when rights dispute in custody or visitation are high of some of a view evidence incidence percent to 8 in other reason cases.2 One reporting false child sexual in of of abuse reporting for inaccurate attrib- has been divorce, involving custody, cases and visita- by investigators uted scientific to the use tion issues. Recent studies indicate that improper interrogating of methods of chil- reporting from may range percent false dren.3 Yuille, strong Evaluating repeated by 2. Raskin & in Problems Inter- and recantations Cases, Abuse Building general views Children in Sexual in premise, on that inter- child. of (S. Testimony Perspectives on Children’s sug- therapeutic in a views are conducted and Ceci, Ross, 1989) Toglia, D. M. eds. [hereinafter gestive investigative manner instead an with fact, Yuille], reporter Raskin & one approach. questioning or more one After many indicated of the “unsubstantiated” child, therapist almost sessions with may proceed charges. cases to formal Id. at suspi- always allegations that the concludes 186. cions are true. prob- Recent cases have underscored the Raskin & Yuille state: poor techniques lems that result from major problem A cause of is that case attempts part combined with zealous on the training conducting workers receive little prove allegations of case workers to investigative an signed interview of children de- approaches produced are Those con- correct. gather information and assess personal damage in Scott siderable social validity of It has com- accusations. become Minnesota, Beach, County, and Manhattan practice mon interviewers to assume cases, County Scott California. “In the some- true, allegations purpose and the awry.” finally thing clearly went Cases were the assessment is to obtain information that twenty-one against persons dismissed accused used can be to arrive at that conclusion. A abuse, investiga- sexual child even while typical expressed case-worker attitude progress concerning allegations tions were in a recent book on sexual abuse of children. by of homicides and sexual abuse made some "Very young author] stated that children [The resulting alleged victims. up complex do not make lies.... It is cer- fantasize, investigations by tainly FBI and the extensive true that children do relationships there was not fantasize about sexual State of Minnesota concluded that justifica- adults." no evidence of credible murders or recently A social "we filing charges worker wrote [Faller] further abuse. tion for of sexual up know that children do not make asserting they stories allegations by the chil- Those been made sexually have been molested. therapists. to their dren Young It is not in interests to do so. County allegations The Scott arose after knowledge do sexual children not have the had oc- confirmed incidents sexual abuse allegation. necessary to Clini- fabricate However, problems validity result- curred. cians and researchers in the field of sexual "repeated questioning, ed a lack of re- agreement allegations false abuse are ports, cross-germination allegations.” extremely rare.” children are Faller then always appear do child witnesses "strategies proceeded to describe for corrobo- rehearsed, testimony based on have been rating story.” These child’s included might investigators, procedures such cause others, significant play, use of statements to prosecutors, jurors of un- to make errors stories, dolls, anatomically explicit pictures, critically accepting the children's statements. as well knowledge, assessment of child’s sexual therapist reported al- A that one child had child, the sexual behavior individuals, ready interviewed nine been and other behavioral indicators. This social another and a mother of child indicated stating worker concluded "the more thirty her child had been interviewed between has, supportive data the evaluator the more Furthermore, fifty times. interviews be, per- convinced will more he/she form, frequently undocumented in reported suasive the evaluator's will be [sic] being and there were instances of children others.” by informed of what been said ap- foregoing represents a The common being report and then to on witnesses asked proach allegations of of the assessment they performed by ac- had seen those abuse Many sexual abuse of children. social work- by were the other witnesses. Children cused ers, psychiatrists, psychologists and assume together, in the same mo- interviewed housed the child definite that certain behaviors of are tels, given together, their meals and allowed Their indicators that abuse occurred. frequently. were some- interact Parents goal provide atmosphere support is to an of charged abuse of arrested and times encouragement the de- and to assist child in though even children their own children their scribing therapist is the abuse the certain has repeatedly allegations the over several denied anything says the Almost child and occurred. interrogation separation from interpreted being after the weeks of does is as consistent with abuse, report parents. that "in- The concluded trauma associated with sexual includ- 164 boys, was three the

The defendant convicted of views with she testified both they aggravated a the had been abused and that counts of sexual abuse of Bill, child, Steve, telling the truth. against against one were one son, (For against Jerry. his own and one I. ERROR MANIFEST opinion, children have purposes of this the names.) error is assigned fictitious de- Manifest error exists when the been The appear plain made to the face of guilty of three and “on fendant was also found prejudice of child, the record and manifest sodomy involving of on a one counts Cobo, Bill, 90 Steve, the accused....” State v. Utah involving involving one one and 952, 89, 102, (1936). P.2d 60 958 See also guilty ag- Richard. He was found not 29, n. Eldredge, v. 773 P.2d 35 8 State gravated daughter, sexual abuse of his Su- 79, (Utah 1989); v. P.2d Lesley, State 672 san, guilty sodomy not on a child involv- (Utah 1983); Wood, P.2d State v. 648 son, Jerry, sodomy and guilty his not 988, 71, (Utah), denied, 77 cert. 459 U.S. involving on a child Tom. 341, (1982); 74 103 S.Ct. L.Ed.2d 383 State against The evidence on the defendant 512, Poe, 113, 118, 21 Utah 2d 441 P.2d entirely hearsay. each count consisted (1968); 350, Stenback, State v. 78 Utah accusers, testimony of the Rich- The four (1931). 2 P.2d ard, Bill, Tom, Steve, presented by and purpose of the doc- The manifest error videotapes which were made two months trine is to assure a is not defendant prior played to trial and on a television though procedural convicted even technical trial, the boys monitor at did not con- requirements complied with in face, the at front defendant face to either raising an error either in the trial court or videotaping the trial. As shown be- appellate court. Neither a counsel’s low, all this was done in violation of the judge’s nor a error the cause of should be long-established principles guaranteed going prison. Although often one’s we confrontation the clauses of Utah entertain a because refuse to claim of error addition, United States Constitutions. In attorney objec- failed to proper make complainants’ against of the much evidence tions in the trial court or failed to raise an seriously the defendant was tainted appeal, error on seek to law should “child advocate” instrumental in who party transgres- make for a liable his own shaping, portions even creating, sions, lawyer. for the sins of his testimony. boys’ She was allowed to testi- fy “expert” particularly as an and to state a for compelling witness This is case plain not allowed recent applying conclusions under our or manifest error doc- Rimmasch, ruling in 775 P.2d 388 trine. Eldredge, State State (Utah 1989). (Utah 1989), solely Based her inter- this Court indicated that fessional, vestigators, prosecutors, problems service work- whose role human is to treat the incident, therapists must how ers all examine in the context whether or not presently light allegations handle these cases in turn out to be true. County experience.” Scott All interviews of the child should be based high thorough acquaintance incidence of of chil- sexual abuse on a with the facts allegations growing surrounding suspicions, dren combined with the number of reports videotaped. videotape unsubstantiated fictitious should be A is the arguments compelling minimizing only whereby procedures for means and data during fully suspected interviews vic- number of obtained the interview can be by using carefully typed transcript tims structured interviews documented. A of the ses- early possible pro- necessary investigative systematic analysis as sion is required Interviews should be conducted of the content that is to arrive at a cess. professionals regarding validity and skilled who under- of the state- trained conclusion maximally gives. videotape that their role is obtain ment the child is made stand purposes analy-

reliable information draw conclusion for the documentation validity concerning allegations. by experts, and it sis should not be used as necessary Any therapy testimony by live deemed should be un- substitute for the child wit- only investigation after the dertaken ness. omitted, (citations substantially completed. has been Ther- Raskin & Yuille at 186-88 added). by pro- emphasis apy be a should conducted different testimony to reverse a child ness was dealt with as a matter not be reluctant would plain by judicial compe- of the where there is error of law evaluation abuse conviction tency testify. In warrant such a re- of the witness to more and the circumstances times, Indeed, this statements in recent the Federal Rules of Evidence versal. Court’s require application plain of the and the Utah Rules of Evidence have aban- Eldredge competency approach, relying doned the error rule here:4 in- stead on cross-examination and the faith circumstances, however, might re- Other that the trier of fact can evaluate children’s quire finding plain For exam- of error. it testimony sufficiently to offset the risks ple, in a in which a child declarant case presents. had, allega- when first confronted with abuse, repeatedly tions of denied that the greatly Because of intensified concerns place admitted it abuse had taken prevalence about the of child sex abuse and repetitious question- under and coercive obtaining because of difficulties evidence ing, potential unreliability of such cases, prosecution types of some for hearsay consequent likelihood of and its Legislature enacted Utah Code Ann. causing prejudice appar- unfair should be it easier (Supp.1989) 76-5-411 make § Similarly, ent to a trial court. a thera- testify prosecution children to for pist hearsay state- testified to child’s pro- currently such cases. That section regarding instances of ments abuse in part: vides during therapy sessions of were made (1) Notwithstanding any rule of evi- kept, which no records were the unrelia- dence, a child victim’s out-of-court state- testimony might also bility of such of that regarding ment sexual abuse plain. though as evidence child is admissible paragraph n. That de- 773 P.2d at 36 10. existing qualify under an hear- does pre- the facts of this case almost scribes exception, if: say majority plainly cisely, yet inexplicably the (a) testify in the child is available to ignores it. provided by 77- court or as Subsection I turn next to the merits of this case. 35-15.5(2) (3); (b) in the child is not avail- the event EVIDENCE; II. CHILD HEARSAY testify provided in court or as able to RELIABILITY 77-35-15.5(2) (3), by Subsection there is other corroborative evidence key procedural hearsay rule is the abuse; or implementing right of con- device for safeguards. and the values it It frontation (c) qualifies the statement for admis- absolutely part essential of the truth- 77-35-15.5(1). sion under Subsection sifting procedures judicial process. of the (2) Prior to admission state- section, Historically, children’s ment into evidence under this presents whether the skeptically judge because it shall determine been viewed be served problems reliability. justice Traditional- interest will best special In mak- ly, reliability the issue of the of child wit- admission that statement. techniques Eldredge, that influenced the children's the defendant was ac- lative In State 4. during of his son while in the cused of sexual abuse the interviews. See note infra custody dispute. addition, Snow, victims, midst of a 773 P.2d 30. alleged reliability problems in this case are far worse parents, police together met their and the There, Eldredge. physical evi- than those regarding alleged collaborated instances testimony, dence corroborated child’s urged abuse. Parents also their children to tes- trial, as did his mother and child testified at the fashion, tify in a certain there was evidence of expert, objections were no the procedures and there improper or no recordation of the content of interviewing techniques interviews, alleged Dr. Snow’s victims case, contrast, experts. evi- In this much initially allegations denied the when confronted witness, presented expert dence was parents All that cries out or Dr. Snow. Snow, highly suspect interviewing Barbara used plain application error or manifest suggestive questions, positive techniques and error doctrine. reinforcement, manipu- negative and other 166 psychologically the shall coercive methods which judge this determination and in inter- were used Dr. Snow others age maturity the

consider the and of boys. the child, rogating four the the nature duration of abuse, relationship the the child to Utah’s, of appel similar to Under statutes offender, reliability the the the testimony of children’s late courts held child. assertion and the inadmissible a mat of to be unreliable and

(3) A statement admitted under this was a likelihood that ter of law when there section shall be made available testimony shaped had been or a child’s sufficiently party in advance of or im by pressure adverse tainted other otherwise by parents trial to him or other proceeding, provide proper the methods used persons positions authority. it. of Adults opportunity prepare to to meet with shape testimony a child’s may influence added.) (Emphasis memory power the the and even child’s provision that can- This assures children In suggestion subtle means. of and other incompetent found as witnesses 165, P.2d Ryan, 103 Wash.2d 691 State v. simply sex child abuse cases because (1984), Supreme Washington the 197 Court children, provides child are and it also that testimony young boys of two held hearsay ad- statements in such cases are a matter was unreliable and inadmissible as (2) (1) if missible reliable and because, among things, other the of law testify child is at trial or the available told, the boys’ mothers had been before The de- there is corroborative evidence. questioned boys, the there mothers required by 2 is crit- termination subsection strong accused was a likelihood requirements un- ical to meet constitutional sexually them. The court stat abused clauses state der the confrontation arguably predis that the mothers “were ed and federal constitutions. That subsection posed they had told.” to confirm what been requires judge a trial to find the inter- 176, 691 P.2d at 205. 103 Wash.2d Cf. justice by the of will be best served est 294-95, 286, Cooley, Wash.App. v. 48 State making of In admission the statement. 705, (1987). Although P.2d 738 709 State determination, judge must consid- 223, Ramirez, 231, Wash.App. 46 730 v. factors, er, among “nature 98,103 (1986), hearsay held child testi abuse, relationship duration admissible, objectiv on mony it focused offender, reliability child to the ity with child as a interview Thus, of the assertion” and of child. case, reliability. In determinant (1) reliability shown as to must be prior suspi child’s had no since the mother hearsay child actual statement made abuse, predisposition and no to find cion (2) general. as to the child declarant in the child’s as to statement short, requires courts to 76-5-411 § found to be reliable. See also State carefully closely examine evaluate Court, County, 149 Ariz. Superior Pima reliability hearsay the need for and 283, 397, 403, (Ct.App.1986) 719 P.2d can be admitted. The evidence before it (case hearing reliability remanded for by the is confrontation same mandated mother’s mar child’s statements because clauses, hearsay which evidence to be allow riage to the defendant was troubled only if it is found be reliable. admitted observer). objective not an she was See Roberts, 56, 448 U.S. 100 S.Ct. Everson, Ohio Interviewing Young Boat & 2531, (1980); Dolls, 65 L.Ed.2d 597 with LXVII Anatomical Children California Green, (1988); 90 S.Ct. U.S. Christian Child Welfare (1970). sen, L.Ed.2d 489 Testimony Child Witnesses: Fact, Fantasy, Pre and the Influence of requires findings re- 76-5-411 Section Interviews, 705, 711 62 Wash.L.Rev. trial Here, reliability. the trial court garding Christiansen, (1987) Testimo [hereinafter simply failed to make the determinations Witnesses ny Child ]. requires respect with the statute in accord The trial find- cases are with other facts of case. court’s These reliability ings begin grips do not to come cases where

167 Thus, through testimony Drs. videotape the courts seriously compromised. Furthermore, Tyler. coerced confessions as and there was long excluded Snow have likely they boys are too of the at trial at a matter of law because no cross-examination because the courts to be unreliable and all. encourage conduct been reluctant Tyler’s Dr. Dr. Snow’s and transmission fundamentally at with a civi- is odds boys’ hearsay of the state- into evidence system justice. lized Culombe v. Con- general on justified ments cannot be 568, 1860, necticut, 6 367 U.S. 81 S.Ct. principle experts may opinion base an Richmond, (1961); Rogers L.Ed.2d 1037 v. Although is hearsay evidence. 735, 534, 760 81 S.Ct. 5 L.Ed.2d 365 U.S. true, experts simply used at trial cannot be Ohio, 596, (1961); 68 Haley 332 U.S. v. carrying of hear- as conduits for torrents (1948); 302, 224 v. 92 L.Ed. S.Ct. Chambers evidence which say statements into bear 227, 472, Florida, 84 309 U.S. 60 S.Ct. directly adjudicative on the facts at issue. (1940). coercion is L.Ed. 716 Even when Didericksen, P.2d v. 597 1328 Edwards used, testimony may as be inadmissible (Utah 1979). v. See also Faries Atlas the means used to a matter of law because Co., Body Mfg. 797 F.2d 624 Truck questions it serious as to its elicit raises (8th Cir.1986); Tomasian, States v. United example, in- reliability. hypnotically For (7th Cir.1986); 784 F.2d 786 United inadmissi- or enhanced duced Wright, 783 F.2d States v. many in this and other states. State ble (D.C.Cir.1986). rule it is Even under the as Tuttle, (1989), petition 780 P.2d 1203 for generally applied, hearsay statements rehearing pending. See also State by experts relied on do not stand as sub- (1989). Mitchell, P.2d 1116 This rule truth of matter stantive evidence of the governs though even the declarant is Faries; Tomasian; Wright. asserted. subject to cross-examination. court hearsay precisely Yet that is how the state- Recently Lenaburg, State here. ments were used (1989), this Court reversed a conviction many discloses instances of The record combined on the basis that several factors testimony. boys shaping of The four overt as to the relia to “raise serious doubts ... any instance of initially repeatedly denied bility [videotaped] the child’s state charged against type of the sexual abuse child’s P.2d at 434. The ments.” 781 first, only defendant. At there were unreliable, and simply were be statements activity among indications of some sexual subject to were not cause the statements younger boy. It two of the accusers and cross-examination, required. reversal was only the four accusers had been was after case, is massive evidence of In this there by Dr. several times Snow interviewed testimony, shown shaping tainting up they finally began to come with bits that, Beyond the four were below. eventually story they told. pieces of at trial. subject to cross-examination “remembered,” initially how- What each opinion, in Part III of this As discussed Nevertheless, ever, quite different. was oc- there was whatever cross-examination they eventually tutelage Dr. under Snow’s videotaping boys’ testi- curred at the “remembering” in a similar around to came best, prior to trial. At mony two months incidents in which fashion one of the perfunctory was that cross-examination This “recollec- allegedly all involved. ineffective, at that time the de- since together met after tion” was bolstered of Dr. have the benefit fendant did not Snow, police parents, testimony concerning the Tyler’s Anne together. stories personnel go over the con- the interviews boys’ testimony was video- time their By the testimony of or the by Dr. Snow ducted predict- memories were taped, the accusers’ plainly All that was psychologists. ably the same. conducting an effective cross- essential that con- least some of the evidence short, At boys. there

examination likely produced the defendant victed cross-examination of no effective means. It is of coercive all, by psychologically presented boys’ stories at whether prosecution really Tyler, Richard told Dr. Ann consequence little that no harm was interview, witness, up “I taped in a made using intended those the coercion.5 danger "memory” tively high a Creating social status. There is in a child that is based in imagination preconceived a the child’s rather than fact is not a idea that an interviewer with using psychologi- process, unwittingly difficult cally even without happened impose will of what techniques. memory child, coercive A child’s suggest this idea on the the answers imagination merge a "real” based on can into expects. presence of a the interviewer memory may indistinguishable be in the party, especially person a who has some third Sug- experience. child’s mind from a real-life answers, or toward certain interest bias gestive interviewing a child in the emotional- may put suggestive pressure additional on the ly explosive atmosphere of a sex abuse investi- child. gation permanently destroy distort and a can memory of the true events and create mental the child ... The interviewer will reassure images passes of a event that for the nonreal "tell,” safe, alright that it is to that he will be memory process is of a real event. That he that he is loved and will still be loved if foreign parents experience. to common Most talk sexual and "tells.” When he does about have observed the transformation in a child’s activity, again, per- he is reassured kissed, abusive imaginary It has been mind of the to the "real.” haps hugged and to let him know it is process creating altering observed that the or alright. actually If the child has been sexual- may accomplished variety a memories ly having fitting a time abused and is hard ways may produce memory as firm as a frightened or embar- words to memories or is memory: real rassed, procedures may help- these succeed in trigger may contam- used to recall also [C]ues ing him recall and communicate his memo- inate the contents of the memories recalled. ries. Younger lack the to recall children who skills But what if the child has not been abused? accept will often and take advan- memories can Under these circumstances the interview strategies tage of memorization and recall learning, be an exercise in not recall. Here is time, suggest adults to them. At the same interviewer, person, the who wants some- this sug- younger susceptible children are more to thing him. mother or father wants His concerning they gestion the details of what something They as well. want him from him recall. say something, likely susceptibility to tell them about some- this is to One reason for accurately distinguish inability thing. try figure the child’s child is bound to to out after, among they especially different sources of memories. Not since it is clear what experiences, actual all memories arise from gets positive a reaction from them that he might readily recognize adult and while an says things. certain If he can deter- when he memory clearly a must have its certain they they say, what want him to will be mine fantasy, recognition source in dream or might happy and love him. So he listens to their easy a child. not be so for Playing questions and tries to sort it out. fairly is a low risk that children ... [T]here ways gets good with dolls in certain also events or take an inter- will confuse different may determine that reaction. The child even they as ones themselves have viewer’s words they story, him tell a kind of want certain However, may spoken. there be a substantial They love him for it. At and he invents one. that, pro- danger if an interviewer's words or interview, long it will take as for the next imagine event cedures move the child to some the child to learn. details, its the child will thereafter or some of The adults think that the child has over- fantasy memory. accept the as a come fear and embarrassment to tell them of memory Children are also vulnerable to fal- experience. hesitancy a traumatic His as he through commonplace forms sification more want, figure they his uncer- tries to out what suggestion, repeated sug- interviews such as tainty shyness, are taken as indications gestively covering topic. the same When traumatically that he has been abused and is questioning persons concerns familiar or fact, difficulty talking having about it. events that the child had considerable time to observe, story they taught have him to tell a about subject event or details central to the sexual abuse. If he still denies sexual abuse probably person, no more vulner- a child is interview, disprove this does not suggestion than an adult under the able Instead, expectations. it adults’ shows However, an adult same conditions. even very depth of the trauma. It would be a accept misleading suggestions given re- will strong-willed child indeed who could hold out period peated over a of time. Re- interviews suggestive questioning against persistent, extent, that, indicates to some search eliciting statements that certain aimed at child, greater Suggestibili- younger especially place, events took when the child ty- get hug good words knows that he will may suggestiveness arise from Problems of says did. if he perception of the interviewer as the child’s Christiansen, Witnesses, Testimony readily accept sug- Child Children more well. (footnotes omitted). gestions of a rela- from someone see as father, that his several story you, be- [i.e., the about defendant] months, put- Rich- discussing believe me.” had been my cause dad wouldn’t said, me didn’t tell pressure every ard also “Barbara Snow ting [Richard] told me that it say but she what that? you [sex week.... Were aware of me,” and “his happened to abuse] you By pressure you, would A. would happened and that the abuse friends said you would like to talk about happened, it so it and dad said his mom like me to talk about that? boy, Another Ran- happened.” must Well, Q. relationship pressure, by Dr. Snow to dy, who had been induced report, your not true that in Bullock, by later told disclose child abuse during that the December you related in was no abuse. that fact there his father 13, ahh, County Attor- meeting at the Steve, boy, Another He never testified. told ney’s Office, that Mr. Smith any incident until after could not remember be on [Richard], “You can either [the Snow, despite Dr. “ex- two sessions with you team or can be on prosecution's] parents prior to questioning by his tensive” team.’’ [i.e., Brett’s the defendant’s] Bill denied Dr. Snow’s interviews. (affirmative). A. Um-humm parents his until questioned when abuse Dr. Snow. Tom said after he saw Q. type, that be the would And would the incident was person first he told about pressure to a be considered that he talked to and that the more Snow young child? memory her the his became. better Oh, Probably undue yes, A. indeed. replete with instances of The record is pressure. coercion, threats, pressure, and the use report Q. you also have in that And did Dr. Snow and several suggestion both once he had made that statement that adopt to parents persuading in that denied and at the time [Richard] story that convicted the defendant. meeting during that December meth- following examples a few of such Mr. anything happened, Smith Tyler, prosecution expert wit- ods. Dr. put pressure additional then decided to ness, testified: on [Richard]? to, ahh, Q. Now, relationship in [Rich- following you I’m there. A. in ard], you did take into consideration you have the Q. your reports, do him, relationship examining his relationship in to statement father? his that, meeting after tell- December 13 carefully family very I at the A. looked either that he could be [Richard] dynamics on all of these children. prosecution’s] team or on Brett’s [the fa- Q. relationship to And [Richard’s] team, applied additional that he then ther, expressing you that he he was pressure to him? by it at that distressed was somewhat time, was he not? particular period of expressed that.

A. Mr. Smith page? A. Which expressed that to Q. also And [Richard] Background informa- Q. page. First you, did he not? tion, paragraph. second [Richard’s fa- in those terms. A. Not he, ..., put more claims that ther] relationship to Q. you, report Didn’t he tell pressure on [Richard] interviews, that he didn’t your taped example, you can be on For events. talking to his dad? really like And or Brett’s team. team [Bill’s] relationship that was correct. A. That’s after denied his involvement [Richard] his Q. pressured he And that felt he had heard [Bill] after father? gave their accounts and [Steve] A. That’s correct. happened. what during Q. you aware And your report? contained in saw Is that time'period [Richard] before supposed A. Yes. A. told me She that she was about, ahh, anybody to talk to me if Susan, daughter, Bullock’s testified: had ever touched me. Q. September Did there come a time in Q. Okay. you Did she tell what she your you of 1985 when mother took meant, anybody had ever touched you see Dr. Barbara Do re- Snow? mean, you? you go I did ahead. — member that? Ahh, well, meant, got A. I I what she A. Yes. don’t think she— Q. day, You not remember the Q. Okay. talking You knew she was remember, ahh, you you only do saw touching? a sexual about time, right? Dr. Snow one is that A. Yes. A. Yes. Q. inappropriate type touching, An Q. your you And mother took ahead, okay. say Go what did she you Center where she worked where you you say and what did to her after were to seen her. that? Umm, she, well, A. if, I asked her

A. Yes. umm, already, she had she acted if Q. you you got Did know before there already thought like she that some- why you going? were body had and I her so asked about A. No. said, And, ahh, that and she no. she Q. your give you any Did mother idea kept just asking somebody me had if tell, anything, did she what was the know, But, you and I told her no. gave you reason she that she was just, she it trying seemed like she was taking you to see Dr. Snow? get say yes. just kept me to She give A. She didn’t me a reason. say bugging me to it. said, Q. just going? She we are Q. Okay. you Did tell she some other you kids had told her that had been Well, just A. she said that we were touching? involved in some sexual going to talk to a counselor. A. Yes. Q. Okay. you And what did think that Q. she, keep asking And did did she would involve? you over and over and over whether For, ahh, custody. A. telling or not these were kids Q. custody For the evaluation? And you truth and had been involved in us, recollection, your tell to the best of touching? some sexual what, happened you what when went A. Yes. in to talk to Barbara she Snow? What Q. no, you you And her all told the time you subject asked and what the was had not been? you about. Just as best can recall. A. Yes. anybody me if A. She asked ever Q. there a Did come time when she told wrong anything touched me like that, you you if didn’t admit to what that. And I told her no. happened— Q. Is that how she started the inter- Honor, ques- MR. NAMBA: Your these view, you why you or did she tell were leading, request tions are I would there? differently. the Court instruct it Umm, yeah, if I A. she asked me knew objec- THE I will sustain the COURT: why I was there and I told no. tion. And so then she told me. Q. Good, any did she ever mention at Q. say? What did she time, juvenile referring to the au- Ahh— A. thorities? Q. she, Why, say Yes, did what kept what did she A. I lying, she said that if there, you

when she told the best just bigger that then it would make a you problem something can remember? and she said here, going to Juvenile about Court. fusing but this is a series of Umm, Tyler said it tapes that Dr. did with just she would [Richard]. I it just better admitted now. tapes, one of those I noted when On talking memory they were about Q. Okay. did she you At time ask said, well, scale from to 10 he your whether or father had happen it and 10 means didn’t you touched in a sexual manner? did, means that it which is a little bit A. Yes. meaning, different than 1 I don’t re- Q. you say request? What did to that member, meaning and 10 it did. And A. I said no. so get- I think that was also [Richard] Christy, psychologist testify- Dr. Monica impression ting talking defendant, ing for the testified: family and, I’m others not sure was, there you Did Q. who all that that there have an indication from right answer. [Jerry, your interview with the defen- dant’s that he had that he Q. wrong And that the answer was son] felt pressured by allegations? had been deny Barbara Snow? A. Yes. He, Q. Alow, you

A. Yes. he indicated that to me when about com- talk the, answer, menting he me on an is that also telling when about ahh, said, may say, an examiner kept he no and where saying how she good boy? it. as he talked admit And about father, with his too. A. Yes.

Q. Something of that sort? A. Yes.

Q. explain examples And to us what Q. any in you examples Did find of that you commenting found far as there as techniques? Snow's Barbara on answer. a number Barbara Snow did that A. Umm, Okay. ways there’s several A. tape times audio [Rich- shaping which occur. this can of ard] of say, yes, where she would or by a, is the child denies ignoring One good great that’s and so asking any forth. them or undesirable Ahh, reinforcing coming up with his question responses asking again. some more information. given that he has not learns in- Q. you And did those answer, right try so he find only when he had stances occurred again. concerning divulged sex- information And Barbara’s interviews with ual abuse? [Steve, accusers], with one the four of A. Yes. Ahh, she did a number times. this of any ever him an- Q. give And did she ’85, tape exam- on October for divulge he did swers when infor- any- he didn’t ple, says do [Steve] mation sexual abuse? of part body with thing any other A. No. And response question. she ahh, Q. Now, that, additionally you said changes him again asks and [Steve] ahh, part you of what also learned ahh, says, yes, his answers ahh, was, part the other what was leg. was penis challenges? besides [Richard], In the interview with ways shaping? A. The other ahh, is, umm, switching I’m now Q. Yes. here, one that Barbara this isn’t the [Richard, I responses. I one A. noticed in a num- did, think that the, here, the im- occasions on Barbara also had ber the accusers] umm, that, right tape [Steve], with she would answer Snow’s pression response to, the undesired and believe to remember confront with, you must tell truth or im- may I con- incident occurred. the evaluations of the children plying that he hadn’t told the truth gave response. point when he that she did? umm, said, example, For Barbara Yes, A. I think did. she you [Jerry] did touch [Susan] Q. problems? And what were those any way? said no. Barbara [Steve] I, the, Umm, A. the children had all had says, important to tell the truth it’s Dr. a number of interviews with Snow said, happened, yes, it me [Steve] [Jerry] and, ahh, my it’s become under- our touched [Susan] standing they get since that were all ” said, And Barbara “And. hands. together County with the At- talk said, just he our hands. And par- torney group as a and with the implication’s I think that the ents. I think that there was a lot that he didn’t tell the truth the time first hap- regarding had said what been he, ahh, that was around and that pened Tyler Dr. had chance before not the answer she wanted. tape. to interview them on Q. you shap- term Now when use the Q. any prob- why And would that be ing, you what do mean that? Tyler? lem Dr. through

A. I a series mean that know, ahh, Well, A. she wouldn’t if interviews, a child can learn what’s coming direct- information expected saying him and I’m not had, the child ly the child or if the, right interviewer comes umm, was, adopted had some infor- says may out and that and they mation that had heard some- process on the even be a conscious been, any where else or interviewer, part but I think shaped their answers had been why important that’s it’s to watch reporting some- extent you questions how ask because there happen. thing that didn’t given be subtle cues to the child will, Q. reviewing regard And in to that in as to what kind of information statements, Tyler’s you Ann did expected or what will be rewarded. find had, any indication that children Q. you saying, And from what fact, in received Christy, this did not have be deliber- information from other sources? part the examiner. ate on the Yes, Yes, right. quite A. A. there was a bit that. Q. through improper But it can be done Q. examples? And what were those interviewing techniques. Ahh, probably A. [Richard] Yes. A. umm, most, having blatant case of And, ahh, Q. assuming that Barbara information, information Snow that when she does as- having been contaminated. He said testified not view her- sessments that she does j tapes, tape, on the the March that unbiased, being neutral and him his dad told other kids self but as a child advocate. Is that an had been there. That the other kids the, ahh, acceptable posi- stance in talked about Brett Bullock. psychologist today? tion clinical Ahh, asked, Tyler Dr. when she asked A. No. you, who talked to he said [Richard] Q. why happened, And not? Dad. He thinks it but I Everything can’t remember. Because, umm, A. a child advocate be- people told me is Dad said objec- therapist is not able to familiar. happened. something tells me it tively a child. And to ob- interview way in a tain the needed happened. told me it Friends information used, say, in that it can be Court. happened it said [Steve] [Bill] ahh,

Farmington, to them and me at I even know about Q. you, you Tyler feel that Ann his house. didn’t Did do parents problems doing my told me. particular faced until ” said, here, my says, He dad tape “Come On the March 3 there wasn't anything. and talk about it. I know when he's going to talk about it. tape— On the October 16 Q. again And that would be said Brett threat- his vid-

[Bill] [Steve] testimony? eo my dog, ened to kill but I don’t re- They Right. member. said I A. lying. Barbara mentioned Brett’s Last we name Farming- time when went to in the inter- [the defendant’s] and, ahh, ton, view Mom said good didn’t the kids [Steve] feel had been touched I lying. [Bill] [the said was accusers] by Brett I saw Barbara. before Tyler says, you Dr. are worried Q. Okay. Fm going you go said, anything my about and he dad slower, Doctor, little you while are side, is on I trying have been doing this. happened. think that it That was A. Okay. j. just tape, one March Q. Now, Okay. relationship 1], ahh, Tyler March Dr. asked Snow, you Barbara did any evi- find you what did tell Barbara? [Richard] dence contamination? I did lie begging because Dad started said, A. February tape, On the he Daddy hap- me. said he knew it Daddy said we were going to talk Umm, pened. said, Tyler what n about talking Brett Bullock and you from, did your hear dad Tyler day. about Dr. Daddy and Barbara and said that [Richard] many said others were My molested. we were touched. And then he listed person dad said another was in with people the names that were us, but I anyone. can’t remember touched. First time Barbara told me And then on the October some them and then my dad told tape, says, my parents he me the other names. said others had been touched and we ahh, tape, On the June 6 where he going to see a doctor because oth- saying is now happen, it did ers said I had been touched. And he ahh, said, he Barbara didn’t tell me said, also Barbara said [Steve] say what to but she told me what had been in to see her and [Richard] happened to me. had been touched Mr. Bullock. Umm, tape, and the October 10 wanted I She to know had been testimony— which is the touched. Q. tape That would be his video testi- Q. did, umm, [Bill], And in relation- mony? ship testimony tape —excuse A. Yes. He said Barbara told me the me, you let me take back to origi- his [Jerry] names and Barbara [Steve] tape nal in February when he made said Mr. Bullock’s name And ahh, first. response, the my that dad said that’s [Richard] somebody else is there but I don’t Q. you any And did find other exam- know who.

ples? A. Yes. Yes, were, A. examples Q. that, ahh, there response ques- Was in to a were with and and tion as to what other children were [Steve] [Tom] [Randy] present? and and [Richard] [Bill] the, umm, I probably A. don’t have I Q. right. All Let’s take first with have it here I somewhere. would [Tom], up. to look it Okay. February tape, A. On Q. your general Is that recollection? ahh, said, Tyler Dr. who was touched A. Yes. see, and he said I didn’t [Steve] ahh, my happened Q. the, mom it relationship said to And then in to [Steve] gave, and video that he did he [Bill] any pressure where forms of add other individuals’ names dur- Snow various applied. ing testimony? were video Again, up A. I would have to look that testified, experts the other who even All notes, my right I don’t have here. Ty- own Dr. Ann prosecution's expert, ler, Q. Now, techniques criticized Dr. on the you any find other exam- Snow’s did ground likely that taint and were to ples of contamination? the children. distort Not Ahh, 24-th, [Randy’s] A. tape on the techniques expert one that her and testified umm, Ahh, February. he said accepted techniques methods were sexually someone in ward is psychology fields of or social work. abusing I to interview kids. went Stephen Christy Golding and Dr. Monica she, Barbara, told me meaning that testified Dr. Snow’s methods were co- me doing who is it and she wanted to likely suggestive and were to ercive up story. pres- Because the make a response elicit a desired from the children. me, go along I had sure to They also criticized the absence of ade- story. my Then told dad keeping pro- quate videotaping record later it was not real. three weeks questions both the cedures record Ahh, asked, why your he’s in the interviews with the answers parents They concerned? think boys. Tyler, prosecution Even Dr. a wit- scared me but no one someone has ness, techniques criticized Dr. Snow’s for me. told me that the has scared Dad objectivity their lack of and their likelihood police telling think I’m don’t eliciting distorted and erroneous an- truth, but I am. swers. added.) (Emphasis Indeed, admitted Dr. Snow herself Prior to Dr. Barbara Snow’s involvement interrogation procedures she used case, implicat- there was no evidence to sift truth from were not intended error. ing one the defendant. Not accusation forthrightly admitted she not a She against independently the defendant arose interviewer; rather, neutral she was “an interroga- psychologically coercive her child,” “biased,” ally “not for boys. tions of the Three of the police.” fact collector like the She also engaged in acts with each other sexual practice testified it is her video- Initially, adult involvement. without children, tape her even sessions with his to Dr. boy parents each denied to way though only possible is the involved, and Snow that the defendant was reliability her evaluate methods and boy position to the one maintained that interrogations. her She also testified in very boy was forced end.6 Another nothing in effect that there was her meth- allegiance to his father choose between his ods that served as standard determin- truth, it, boy as saw about pro- the truthfulness of the stories she boy finally gave in defendant. The interrogation. duced She admitted agreed strong pressure from his father and answering ques- following much accepted story the defen- to tell the about tion: Ran- Significantly, both Richard and dant. Q. my is, question how does some- So dy that Dr. first specifically stated Snow judge your judgment and review one told abuse that later them tale sex your version what told They charged against defendant. did was you? story. originate Richard’s father Only my report A. on of what occurred. tell “Dr. pressured also Richard to Snow’s Thus, boys judging the relia- story.” All who accused the sole basis for four uses, bility multiple with Dr. of the methods Dr. Snow ac- defendant had interviews certainly may were been abused recant truth. recantations 6. Children who have However, any by any part boy prompted motive evidence in this their stories. family prevent going gives try to rise to inference to member from in each instance case prison, with as is often case recantations. the denials and recantations reflected the cording testimony, following her own is her “own illustrates her approach interviewing attitude and toward integrity you But is all would have.” since interrogating a child: interrogation she starts an with as- Q. you occurred, When went into that sumption interview that abuse has she then umm, [Susan], you with believed proceeds prove point. Never before your sexually mind that she had been knowledge my has a court of law al- abused, you did not? “expert” testify lowed an to such a Yes, A. I did. self-fulfilling prophecy guise of an Q. And that solely was based on the Thus, opinion. expertise expert whatever statement [Steve]? Dr. Snow demonstrated has to do with ob- A. That is correct. taining prove evidence from children to assumption and not to elicit truthful re- Q.

sponses. you you just But she denied it to basically you go told her had better shocking perversion juridi- This whole somebody talk to else I because don’t truth-seeking procedures flies in the cal you. believe the rule that evidence teeth of scientific A. It wasn’t that I told her that I don’t evidence should be based on foundational her, got very upset believe she and she showing degree of some reasonable relia- felt like she couldn’t work with me bility predicate admission of for the I didn’t there. tell her she Flora, 744 expert conclusions. Kofford somebody work with couldn’t else be- 1343, (Utah 1987); Phillips 1346-48 I didn’t cause believe her. I didn’t (Utah Jackson, 615 P.2d 1234-35 any they believe these kids when 1980). There was no such foundation here. happen. told me it didn’t But [Su- evidence, Beyond the absence of foundation got upset and I felt didn’t have san] the so-called scientific evidence adduced rapport much with me. Didn’t have Snow’s conclusions much confidence. telling abused and were the truth they finally adopted expressly stories Q. counseling She did continue Rimmasch, disallowed State v. 775 P.2d ISAT, did she not? (Utah 1989).7 A. did. She short, Q. counseling any princi- through And all those claim that scientific numerous, sessions which were she ples expertise expe- or Dr. own Snow’s never, always she’s denied molest- proce- her rience validate conclusions anybody being molested devastatingly by her own dures is refuted father, she? didn’t statement, any “I didn’t of those believe my A. That’s recollection. happen.” me it kids when told didn’t point, added.) that ultimate she was demonstra- On (Emphasis bly wrong jury so found on several i.e., evidence, prosecution hearsay —the All the Curiously, Dr. not both- counts. Snow did case, the entire core of its was inadmissible unhesitatingly explain why er to she so 76-5-411, hearsay excep- under the child § only children lied when assumed qualify tion in child sex abuse cases. To section, denied sexual abuse. There was no hearsay under that must be abuse, physical evidence of nor was there trial shown to be reliable. While the court 76-5-411, findings under it did not objective evidence of abuse. made § Flora, (Utah 1980).) Kofford, Phillips, What is clear from 744 P.2d 7. Kofford 1987), critically that "new scientific evidence stated and Rimmasch is that trial courts must general under the scien- be found reliable either examine so-called scientific evidence to ensure acceptance Frye test in v. Unit- tific enumerated firmly grounded in that its roots are indeed States, (D.C.Cir.1923), F. or under a ed Such science before such evidence is admitted. demonstrability test of reasonable of broader by the a critical examination was not conducted ” reliability.’ (Quoting reliability or 'inherent in this case. trial court Jackson, (Utah Phillips tapes testimony are of their were Clear- reliability address the issues of which made. coercion, by undisputed ly, raised evidence of was reason there no valid constitutional intimidation, confabulation, and suggestion, why boys the four could not testified have into trial, falsehood. Nor did the court take of happened any at as has number aspects developmental of account relevant cases this Court. similar that reached law, psychology. testified, a matter of the find- might As testimony Had ings inadequate facts of utterly on the have dissolved some of the taint. in Lenaburg, this case. Just as the vic- through tims’ statements related Barbara III. CONFRONTATION experts simply so and other were Snow A. Denial Face-To-Face of Confronta- should not have been unreliable with the Accused Was Unconsti- tion admissible. tutional. sum, tainting, inducing the indeed In the boys testify four not trial and The did case, testimony benign— was of in this not It testify. the obli- called to product the a zealous- it was of misdirected gation prosecution to call them to any and the to adhere to scien- ness failure con- testify. defendant was tried and eliciting

tific standards for the of truthful being by his victed without ever confronted By itself, require a testimony. that should young four accusers. Furthermore, outright as- reversal. aggravated by testimony nine-year-old the the of the four sault on truth was witnesses, Bill, Steve, Richard, Tom, inability at all and defendant’s to cross-examine boys’ videotaped pursuant Drs. Code statements made to Utah as 77-35-15.5(3) 1988) Tyler (Supp. and and and the limited cross-exam- Ann. Snow § jury.8 played of the four when the video- on a television monitor for the ination 77-35-15.5(2)-(4) (iv) (Supp. permitted the be to ob- Utah Code Ann. defendant shall § 1989) testimony, provides: the serve and hear the child’s court shall that the defendant has a ensure (2) any concerning charge of In case a two-way telephonic of means communication against a child abuse child, of a sexual offense or during testimony; attorney the order, with his child’s may upon the motion of court shown, good prosecution for the cause (v) pro- a the conditions of normal court testimony any victim that the of witness or ceeding approximated nearly as shall be age room, younger years a than 14 be taken in possible. other the court and be tele- room than (b) Only judge attorneys presiding the equipment circuit to be vised closed may question child. the jury All of viewed the in the court room. (c) persons possible, operating As following much as the conditions shall be observed: adja- equipment (a)Only judge, attorneys the shall be confined to an presiding for the necessary a the party, persons operate cent room behind screen or mirror so each therapist equipment, cannot hear a counselor or child see or them. (d) present presence contributes to the welfare and If defendant with the whose during well-being may testimony, be with child’s the court emotional child may during testimony. persons operating the child his The defen- order that the closed may during equipment present film both dant also be the child’s circuit the child testimony, testimony during child’s he consents be hidden defendant so unless view, jury may or the court determines that the defendant, view both the child and child's may arranged if be suffer emotional or without child will serious requirements required testify if he is violation of Subsection mental strain presence, defendant’s mony or that the child’s testi- (2). (3) any charge inherently concerning if he is case will be unreliable against testify presence. required to defendant’s child abuse or of a sexual offense child, order, determination, may upon court the court motion If the makes shown, good prosecution for consents: cause defendant (i) any may during present be witness or victim the defendant age testimony; younger years than 14 be taken outside the child's (ii) testi- shall ensure that the child the courtroom and recorded. That court defendant; evidence, viewing mony is admissible as cannot hear or see the charges (iii) regarding prior proceeding advise the child court court shall (2) provisions present at are ob- the defendant is if the served, subsection his following provi- in addition to the trial and listen to child’s testimo- the ny; sions:

177 of fair- as a basic attribute testifying were confrontation boys of the Videotapes against dealing trial. with accusations months before Over ness made some two objection, long he was express persons recognized was before the defendant’s boys even right right to confront the under the procedural denied the evolved as a Instead, he videotaping England. session. ancient ref- at the common law of One the separate in a room to watch placed right of was erence to that as basic attribute television boys of the on a interrogation found in the New Testa- fairness is even Virtually prosecution entire Paul, the Apostle monitor. referring ment. In to the videotapes the four of arrested, Festus, case consisted in address- who had been “experts,” prosecution’s two boys and the ing King Agrippa, stated: almost exclu- testimony was based whose manner of the Romans to It is not the hearsay state- sively on the out-of-court die, any man to before that he deliver experts. to the boys made ments face accused have the accusers which is objected to his exclusion face, Defendant twice answer for to and have license to interrogation of the four on from the concerning against the crime laid himself violated his ground that his exclusion him. witnesses under both “right to confront Acts 25:16. Constitutions,” af- and United States Utah confrontation is far from a Face-to-face to be motion to “be allowed pretrial ter his nicety. Accusers who must di- frivolous chil- during recording of the present making accu- rectly face an accused when After rais- testimony” was denied. dren’s deprivation in a sations that can result proceedings, during pretrial ing the issue reality liberty life must face the human or obligation again to raise he had no uncertainty consequences of error judge the same in the trial court since issue testimony. purging The effect of in their stages. squarely presided at We both confronting an accused is wide- the accuser trial is not objection further at held that a of courtrooms. ly recognized even outside under appeal an issue on necessary to raise impor- special rule is of policy Johnson, 748 circumstances. State v. such case, great pressure where tance (Utah 1987). ap- On accusers who were applied youthful argued the denial of has also peal, Bullock influences. susceptible to adult particularly does that contention confrontation. While denial of face-to- squarely focus on the Mannion, P. 19 Utah State confrontation, are so the two issues face (1899), face-to-face confrontation requires require the conclu- intimately related as to I, 12 of under Article section in this state ap- issue has been raised sion that the Rights and the Sixth the Declaration events, perfectly clear it is peal. In all Mannion, the defendant Amendment. no “con- that there was beyond all doubt assault with intent convicted of making the strategy” forego trial scious girl. After six-year-old rape on a commit trial, majority as the con- objections at stand, girl stat- being summoned tends. testify because afraid to ed that she was trial defendant. The afraid of the she was I, Constitu- section Utah Article out of the defendant to move court ordered to the Unit- Amendment tion and the Sixth to sit some feet presence and the child’s those ac- give to Constitution ed States hearing sight and away, out of the right to confront of crime the cused ap- jury. On prosecuting witness importance face to face. accusers (d)each opportunity party given is (a) recording visual and aural is both videotape recording shown in the before it is on film or view the and recorded means; electronic courtroom. (b) recording equipment capable (4) orders that the If the court recording, operator is making an accurate (3), (2) or under Subsection a child be taken recording competent, is accurate testify required the child altered; is not any proceeding where the recorded court (c) recording is identi- voice on the each testimony is used. fied; and 178 reversed, and the witnesses. On holding that the both the defendant

peal, this Court Supreme appeal, the Court held the procedure violated the defendant’s state right right confrontation means a to right to a face-to-face con- constitutional The personal, confrontation. face-to-face The frontation. Court stated: declared: Court take it that the word ‘confront’ does “We is perception The that confrontation the simply priv- secure to the accused over persisted to fairness essential his examining in be- ilege of witnesses much truth centuries because there is the half, the is in affirmance of rule of but “may quite A differ- to it. witness feel law, jury in trial the the common repeat story has to his ently when he present the must be witnesses before looking at the man whom he will harm accused, may so that he be jury and distorting mistaking or greatly by the is, put to confronted, face.” face what He can now understand sort facts. Chafee, being that man Z. of human is.” only to right He had ex- ... the (1956),quot- Blessings Liberty 35 The witnesses, the but to see into the amine 345, 375-376, ed 351 Jay Boyd, in U.S. testifying each witness while face of 935-36, 919, L.Ed. 1242 76 100 S.Ct. him, against to hear the J., (1956) It (Douglas, dissenting). is al- right given upon the stand. He had to tell a lie about a ways more difficult heard, seen, to be hear and be see and person “to face” than “behind his his regulations such under reasonable context, In former even back.” law established.... told, is it will often be told less the lie hardly convincingly.... The State can character, cases of this where the In profound upon a gainsay the effect wit- young, is should have witness court standing presence ness of in protecting latitude considerable accuses, person the since that is witness improper from effects of con- witness upon very phenomenon it relies parties and of language duct and potential “trauma” that al- establish counsel, doing constitutional but in so the extraordinary proce- justified the legedly protected. right of the defendant must be present That face-to- dure in case. in defendant was entitled to trial The unfortunately, upset presence may, face He with law. was entitled to accordance child; rape victim abused the truthful or the State witnesses the same token confronted confound face, he can not be denied a accuser, or and undo the reveal face false right because constitutional by a malevolent the child coached unwillingness youth, incapacity, It is a truism that constitutional adult. him to brought against the witness protections have costs. him meet face face. 108 at 2802. The Court concluded S.Ct. 512-13, (empha- P. at 19 at 57 Utah imagine Coy it is “difficult more omitted). added, sis citations damaging violation of defen- obvious right to a face-to-face encounter.” dant’s Iowa, 1012, 108 487 U.S. S.Ct. Coy v. in- point equally Id. That true (1988), 2798, decided under 101 L.Ed.2d 857 case. stant law, is to the same confrontation federal Coy, the Court held requiring effect as Mannion. confronta The rule face-to-face right of confrontation recognized that a defendant's in a tion has also been number violated the Sixth Amendment was E.g., Pennsylvania under cases. Rit other 51, 989, 998, chie, 39, erected when a screen was between U.S. 107 S.Ct. 94 480 (1987); witnesses the defendant v. United complaining L.Ed.2d Dowdell 590, 592, prevented States, the defendant 31 S.Ct. The screen U.S. trial. (1911); each seeing 55 L.Ed. 753 Commonwealth and the witnesses N.E.2d 366 Bergstrom, could hear 402 Mass. although the defendant directly, (1988). right confronta dimly. of face-to-face them and see witnesses applied recent cases tion has been the demeanor jury able to observe experienced by virtually used here mental strain” is such as were procedures hold children, witnesses, both adults and Warford, 223 all State v. unconstitutional. 575, constitutionally acceptable 375-77, by itself a 368, 581 is not 389 N.W.2d Neb. face-to-face con dispensing excuse for with (1986) of child accuser’s (presentation Indeed, when a child testifies. testimony with no face-to-face frontation closed-circuit (1989), Webb, 779 P.2d 1108 and federal in v. violated state State confrontation separate in a “compel Zimmerman wrote provisions where no Justice constitutional opinion: witness was protect child ling need”

shown). Su- reading of ... United States Our leads us to conclude preme Court cases circumstances of some exigent Even if constitu- in order for a witness to be that testify without might allow a child to type unavailable, practical- tionally it must be accused, Coy v. having to see confront produce the witness in ly impossible to J., (O’Connor, Iowa, 2805 con 108 S.Ct. at enough that the It is not to show court. excep justifying such an curring), evidence uncomfortable on witness would be Jarzbek, compelling. tion must be State testifying would stress- stand or that be 1245, 708, 683, A.2d 1257 529 204 Conn. ful. 1061, denied, (1987), 484 U.S. 108 cert. 779 P.2d at 1112-13. (1988); 1017, L.Ed.2d 982 State v. 98 S.Ct. Mannion, a child’s fear Under findings the four The trial court’s Warford. not a sufficient reason

of the dlfendant is boys suffer serious emotional would confrontation, face-to-face dispense testify with in the required mental strain simple that a child Coy, trauma simply and under are insuf- presence of the defendant testifying against an al experiences when under the re- as a matter of law ficient Thus, I, sufficient. Utah 12 leged abuser is not Article section quirements of 77-35-15.5(2)(a), pro which The trial court found Code Ann. Amendment.9 Sixth § dispense with nine and may trial court were between vides that a that the four testified, they if “the child will time years confrontation ten old at the face-to-face “developed,” and that mentally strain if they emotional or mental suffer serious “ser- presence would cause testify in defendant’s defendant’s required to he is fear, if he were allowed to simple stress” to them more than ious presence,” requires they The trial present when testified.10 trauma, stress, “Emotional or upset. [Bill], O’Connor, regards concurring opinion to the In addition in her Justice testified, that, Tyler protecting Coy, child witnesses is as Dr. stated that COURTFINDS withdrawn, ahh, public policy” over "important appears which an be somewhat he scrutiny applied high to confrontation come expresses as a result of the incident he fear findings challenges case-specific when clause necessity alleged alleged and of the rela- in this matter Iowa, Coy 108 have been entered. defendant, tionship Mr. Bullock. with the J., 2798, (1988) (O’Connor, concur S.Ct. ring). 708, 2805 circumstances, as the evidence under the That 683, Jarzbek, Conn. State v. 204 See also brought to the factors which have been denied, (1987), cert. 1257 529 A.2d attention, WOULD the COURT the Court’s L.Ed.2d S.Ct. 484 U.S. present while Bullock to be FIND that for Mr. (1988) pres (videotaping procedure outside cause the child to suffer testifies would [Bill] permissible clear if there is ence of defendant is and, strain there- severe emotional or mental fore, need). compelling convincing evidence of require the defendant not be will during testimony. present following find- trial court entered 10. [Richard], FINDS that he As to the COURT exclusively ings, almost on the based found, also, previously is as the Court has expert Tyler, prosecution’s of Dr. Ann one emotionally basically he is still a child. That trial, regarding the mental and witnesses alleged relationship very active and boys: four of each of the emotional condition very expe- was a traumatic with the defendant [Bill], FIND relative to COURTWOULD he, result of that and that as a rience to him men, young generally all of these as to a, experienced physical experience, has some ages of 9 and 10 all are between hyperventilation and be- symptoms such developed age. all years That discussing coming very upset this matter process mentally, children and still still reason, it, talking and for that and Court, about self-respect identity establishing provided other basis in addition to the which are critical those attributes and proper accepts, Tyler the Court will young person. in which development of a “expresses proving compelling court also found that Bill fear burden such need alleged as a result the incident in this convincing clear and evidence. alleged relationship matter and of the with 702-05, 529 204 Conn. at A.2d at 1254-55. defendant_” stated, As that find- Warford, also 223 Neb. at See State more, ing, nothing inadequate as a 376-77, (absent 389 N.W.2d at 581 a com of law trial matter under Mannion. The pelling protect need to the child witness was experi- court also found that Richard showing” “particularized based on a of fur encing “hyperventilation and some becom- trauma, ther use of tele the closed circuit discussing this very upset in matter ing unconstitutional). vision held McGuire Cf. However, talking about it....” his and State, 388, 393-94, v. 288 Ark. 706 S.W.2d that hyperventilation is a condition existed (1986)(statute required face-to- kindergarten, long before of the since face of victim confrontation and defendant That, too, in alleged acts the information. deposition). time at of video But see State inadequate. is Twist, (Me.1987). A.2d v. 528 1256 adequate, findings To be the must be showing probability a based evidence of Requiring B. Not the To Four Accusers substantial, long-term psychological harm Appear Testify and Trial at Before that will result from a face-to-face encoun- Jury the Unconstitutional. Was Here, trial. there ter with defendant at right of confrontation under both particularized findings of were no identifia- I, and section 12 Sixth Amendment Article might if the ble harm result only insures that a can defendant con- testify. though experi- Even a child face, front his accusers face but also stress, anxiety may testifying ences and jury can see and the witness- hear actually aspects. some beneficial person credibility. in es to assess their Jarzbek, noted: v. the court State Court, Anderson, This in 612 P.2d State sexually is no means clear that [I]t (Utah 1980), scope 778 articulated the of harmed, psychologi- children abused right following language: in the otherwise, cally experience or of testifying presence alleged Classically, primary object in the of their of the right abusers. constitutional confrontation is prevent depositions parte and ex affida- being against vits used the accused satisfy prov- In order to its burden of personal at a trial in lieu of examination need, compelling the state must show and the witness cross-examination of the minor victim be so intimi- would against him. is When confrontation dated, inhibited, by otherwise opportunity, available the accused has an presence physical of the defendant that only testing and recollection of the testi- the trustworthiness victim’s witness, sifting seriously ques- called the conscience but mony would be into Furthermore, compelling state bears the him to stand face-to-face tion. now, appears years age a cesses. to be 10 also FIND that it would be situation that He seriously category. damage He also emotional- still fits within has [Richard] would expressed anxiety symptoms mentally required testify and ly shown if he were and, ahh, of, presence fear to the extent in his own in the of the defendant. [Steve], protection, fantasizing the make a mind his own As to the Court's sim- [sic] finding. has Developmentally, he is fact cerated, which, the defendant been and is incar- still ilar fact, years. age That he has been instructed under the of 10 he also anxiety expressed he is not fear and result of knows that incarcerated. socially. testimony Tyler appears upon to be withdrawn Based of Dr. this Court, depression symptoms of the the Court And evidences as a observations experience. require would FIND that to the child to result of this also testify upon findings, presence would Based those COURT in the defendant require will have serious or mental FIND that the child serious or cause emotional WOULD required testify strain emotional on the child. stress or strain reason, presence will Order defendant. And for that Court [Tom], participate makes find- Bullock be allowed to As to the Court similar Mr. developmental pro- ing[s] age interview room. as to outside the jury they may presentation testimony by in order that look here that the with the judge videotapes him his demeanor and child victim witnesses via at gives he his the manner in which testimo- closed-circuit television of their worthy constitutionally of belief. En- ny whether he could not be used lieu of trial, compassed right very of confrontation live absent a com- See, procedural right pelling showing of cross-examina- of need. e.g., is the State v. Jarzbek; recognition proce- Warford; of certain tion State see also Unit- (8th rights regarding Benfield, the exclusion of ed 593 F.2d 815 dural States statements, Cir.1979); judicial Superior extra similar to those Hochheiser v. Court evidentiary Cal.App.3d protected by (People), Cal.Rptr. found rules ex- (1984); cluding hearsay Bergstrom. evidence. Commonwealth v. (footnotes omitted). The 612 P.2d at 785 enough Even mental illness not be Supreme has defined United States Court unavailability to establish for constitutional scope right nearly the in a identical Clusen, purposes. In v. Burns 798 F.2d Green, manner. v. 399 See 931, (7th Cir.1986), 938 the court declared California 149, 157-58, 1930, 1934-35, U.S. 90 S.Ct. 26 unexplained trauma is not sufficient to (1970); 489 L.Ed.2d Mattox v. United unavailability: establish 237, 242-43, 337, States, 156 U.S. 15 S.Ct. severity, As to mental illness itself (1895). 339, 39 L.Ed. 409 may automatically not render a witness matter, practical judge The As a not all testimonial unavailable. must consider in given by symptoms, can the declarant what tasks a witness is evidence be capable court. Out-of-court statements which do then of. While all victims of may may suffer trau- hearsay exception not meet a rule still violent crimes emotional ma, greater reli suffer far be admissible are shown to be some victims anguish normally accompanies than able and the declarant is unavailable. See Roberts, 56, See, appearances. e.g., 100 court v. v. 448 U.S. S.Ct. Warren Ohio States, 821, 2531, (1980); L.Ed.2d v. 436 A.2d 828-29 65 597 Barber United 1318, (two 719, psychiatrists (D.C.App.1981) 88 20 inde- Page, 390 U.S. S.Ct. (1968); pendently rape that if a victim Chapman, 255 v. 655 conclude L.Ed.2d State Nevertheless, (Utah 1982). testify, probability ev were forced to P.2d 1119 severely incapacitating psychological in- ery put reasonable effort must be made to high depression her jury on the stand when the declar was because the declarant levels). Stubbs, had reached suicidal ant is available. Mancusi v. See 204, 2308, 33 L.Ed.2d 293 408 U.S. 92 S.Ct. 34 People Stritzinger, also v. Cal.3d See Webb, (1972); at 1113 v. 779 P.2d State 738, 746, 505, 516, Cal.Rptr. P.2d 194 668 Zimmerman, J.). In (opinion of Common 431, Johnson, (1983); People 118 439 534, 536, Bergstrom, 402 Mass. wealth v. 384, 387-88, 501, 508, 115 Ill.Dec. 517 Ill.2d 366, (1988), court noted N.E.2d 376 524 1070, (1987)(child N.E.2d 1073-74 witness language relevant here: in very frightened were not un es who were circumstances, a compelling trial); Absent testify at v. San available State ought to able to view the interac- jury 319, be chez, (Mo.1988); 752 S.W.2d and others who 600-01, tion a witness Gollon, between 115 Wis.2d State eye nuances of present. are subtle (moth (Ct.App.1983) 340 N.W.2d contact, expressions, gestures be- testimony was too er’s that child victim in the room a witness and others tween testify afraid to did not show unavailabili Hearing jury to evaluate. are for ty). disembodied, off-screen voices above, trial court’s find- As shown ordinarily attorneys is not

judge and the rulings justifying ings fall far short witnessing adequate substitute for four accusers did that the defendant’s interactions. personal Indeed, in it is wor- testify have to court. boys’ thy note that two of jurisdictions have held on of some in other Courts initially highly insistent showings made mothers were stronger factual than were through appear presented sons allowed to at trial and duct as truth, testify. prosecution’s “experts” it is hard to conceive of accus- important for videotape. where it would be more trial case ers themselves on testify at de- findings reliability totally the accusers trial. The judge’s had, effect, boys inadequate fense been under A correct 76-5-411. § by Dr. Barbara led brainwashed Snow and reliability leads to assessment issue confabulating part least into the conclusion the statements were is, fact, the stories told. There have ex- highly unreliable and should been supports proposition, evidence that Furthermore, cluded. the accusers were really never defense counsel was able Court, not “unavailable” as the United fully explore point that critical because Court, in- Supreme States others opportunity there was no to cross-examine term, terpreted that defen- and thus the light the four of the trial right dant’s face-to-face confrontation of the other trial witnesses. unconstitutionally denied. For that alone, videotaped reason the accusers’ (Sep- Lenaburg, State statements should not have been admitted. 1989), presented tember a similar situa- Indeed, allowed, if confrontation had been highly in which a victim’s unreliable tion of the evidence could the truth value videotape presented statements were via juridical have been tested means subject cross-examination. very designed purpose. At for that we There stated: least, proper confrontation at the time of tape damning was the most evidence contradictory have trial would clarified the presented at trial. Since defendant could confusing portions of the accusers’ concerning not cross-examine the child problems presented stories. The various therein, he no her statements made had by this case raise the most critical issues of explore contradictory means to evidentiary reliability applica- and demand testimony. confusing portions of her If tion of the manifest error doctrine. opportunity, we cannot Without here, apply doctrine does not I am at a loss judge what cross-examination would identify application. where light have revealed or the it would have events, con- In all the issue of face-to-face testimony. on the cast remainder clearly frontation was in fact raised and ought majority. to be addressed videotapes boys were taken prior months to trial and before de- two HOWE, Justice, Associate Chief fully apprised

fense counsel were parts I and concurs in II and that Dr. Barbara Snow and others role part dissenting III of the result shaping creating against STEWART, J. opinion of the defendant. Cross-examination of boys during videotaped testimony did J., DURHAM, having disqualified subject begin explore even ade- herself, herein; participate does not trial, quately. By the time of defense BILLINGS, Appeals Judge, sat. Court were aware of several recantations counsel psy- allegations several prac- chological coercion and intimidations key others. But the

ticed Dr. Snow and nine-year-old boys, safely figures, the examination, so from further insulated explored. properly the issue was never sum, I that the facts concern- submit coercion, intimidation, suggestion, con- fabulation, shaped raise reliability

overwhelming doubt as to the allegations of accusers’ sexual miscon-

Case Details

Case Name: State v. Bullock

Court Name: Utah Supreme Court

Date Published: Oct 18, 1989

Citation: 791 P.2d 155

Docket Number: 870053

Court Abbreviation: Utah