Lead Opinion
Appellant Thomas MeGravey challenges his convictions for first and second degree criminal sexual assault on the ground that the jury instructions, taken as a whole, misled the jury by directing it to give undue weight to the testimony of the victim, who was a minor.
MeGravey identifies two instructions that were given and one proposed instruction that was rejected by the trial court as the basis for his appeal. Because we hold that the jury instructions, viewed in their entirety, did not lead the jury to place a disproportionate emphasis on the testimony of the alleged "victim, we affirm.
FACTUAL BACKGROUND
MeGravey was tried before a jury on the charge of sexually molesting his nephew on two separate occasions — first when the child was seven years old and again when the child was nine years old. Since there were no witnesses to the alleged acts, and because neither side offered any corroborating evidence to support its version of the events, the trial boiled down to a pure credibility contest between the defendant and the alleged victim, who was then ten years old.
At trial, MeGravey objected unsuccessfully to two separate jury instructions. The first instruction he challenged stated:
The testimony of a victim of criminal sexual conduct need not be corroborated if the victim is believed beyond a reasonable doubt.
This instruction was patterned after 9 Guam Code Annotated § 25.40, which provides that a victim’s testimony need not be corroborated in prosecutions for sexual offenses. The second instruction he challenged stated:
The court shall allow a support person to be present during a child-victim’s testimony. No prejudice exists because of that presence.
This instruction was taken verbatim from 8 Guam Code Annotated § 75.80.
Finally, MeGravey proposed the following instruction regarding the testimony of child witnesses, which the trial court rejected:
A child is not disqualified as a witness simply by reason of his youth. There is no precise age which determines a child’s competency. This depends on his capacity and intelligence, on his understanding of the difference between truth and falsehood, and on his appreciation of his duty to tell the truth.
As with all other witnesses, you are the sole judge of the credibility of a child who testifies. You may consider not only his age but his demeanor on the stand, his capacity to observe facts and to recollect them, his ability to understand questions put to him and to answer them intelligently, whether he impresses you as having an accurate memory and recollection, whether he imрresses you as a truth-telling individual, and any other facts and circumstances which impress you as significant in determining his credibility. On the basis of your consideration you may give the child’s testimony such weight as you in your judgment think it is entitled to.
Children are likely to be more suggestible than adults. Moreover, children may not have a full understanding of the serious consequences of the testimony they give and the charges they make. You should therefore consider the capacity of a child witness to distinguish truth from falsehood and to appreciate the seriousness of his testimony in evaluating the testimony.
This instruction was taken from 1 Devitt & Blackmar, Federal Jury Practice and Instructions, § 17.17 (3rd ed. 1977).
Following his conviction on both counts, MeGravey appealed to the Appellate Division of the District Court of Guam, raising all three of his challenges to the jury instructions. The Appellate Division affirmed McGravey’s convictions. Our review of the Appellate Division’s ruling is de novo. Guam v. Yang,
STANDARD OF REVIEW
In reviewing jury instructions, “[o]ur inquiry is whether the jury instructions as a whole are misleading or inadequate to guide the jury’s deliberations.” United States v. Joetzki,
I. THE NON-CORROBORATION INSTRUCTION
Appellant contends that the non-corroboration instruction — that no corroboration of the victim’s testimony is necessary if the victim is believed beyond a reasonable doubt — erroneously implied that the jury was to evaluate the testimony of the victim differently, and indeed more favorably, than that of any other witness — particularly the accused.
Appellant’s objection is not to the substance of this instruction, but to the fact that the cоurt gave no analogous instruction with regard to the defendant’s testimony. His contention is that by specifying that the jurors may believe the alleged victim’s testimony without corroboration — but saying nothing of the sort about the defendant’s testimony — the instruction led the jurors to believe that the defendant’s testimony was unworthy of belief unless it was corroborated by other evidence. The upshot, he argues, was to “shift[ ] the burden of persuasion to the defendant ... by requiring him to produce corroborative evidence of his innocence.” Defendant-Appellant’s Opening Brief at 7. We disagree.
A single instruction may not be judged in artificial isolation, but must be viewed in the context of the overall charge. United States v. Marsh,
Nor would a reasonable juror have believed that the defendant was required to produce corroborating evidence in support of his testimony. In his instructions to the jury, the trial judge properly emphasized that the defendant was entitled to a presumption of innocence, and that the burdеn was on the government to prove its case beyond a reasonable doubt.
In sum, the combined effect of these instructions was to make clear that the testimony of each witness was to be judged by the same standard. Hence, in light of the entirety of the instructions given, we hold that the trial court did not err by giving the non-corroboration jury instruction.
II. THE SUPPORT PERSON INSTRUCTION
Appellant next argues that the support person instruction was improper because it used the phrase “child-victim” rather than “child witness.”
The trial court was careful to define its use of the term “victim” so as to avoid the possibility of confusion or prejudice. Indeed, the court stated explicitly that “[a] ‘victim’ is defined or means the person whom the defendant allegedly subjeсted to criminal sexual conduct” (emphasis added). This definitional instruction was an adequate safeguard against any potential prejudice that might conceivably flow from the use of the word “victim.”
III. THE CHILD WITNESS INSTRUCTION
Appellant also argues that the trial court erred in refusing to give his requested jury instruction stressing the suggestibility of children. He contends that the instruction was particularly necessary here because it went directly to his defense theory — namely, that the. child’s mother coerced him into fabricating these accusations against the defendant as a result of a bitter feud between the child’s mother and appellant.
We decline appellant’s invitation to establish as the law of Guam a rule requiring the trial court to give a special child witness instruction when a child testifies in a sexual abuse case. We know of riot a single jurisdiction that has adоpted the view taken by appellant and the dissent. See Connecticut v. James,
In this case, the trial judge refused to give a special child witness instruction, relying instead on the general credibility instructions. We hold that the trial judge did not abuse his discretiоn in doing so.
We agree with the dissent that the consequences of an erroneous verdict in a case involving the alleged sexual abuse of a child are grave and that courts must exercise great care in trying to assure that justice is done in every case. We simply disagree that the solution lies in requiring special jury instructions stressing the susceptibility of children to suggestion. Such courtroom weapons as cross-examination, contradictory evidence, evidence that a witness has been influenced by others, and argument are the time-honored methоds of educating a jury on issues of credibility. We leave it to the sound discretion of the trial judge to determine whether the ends of justice would be served by supplementing these methods with an instruction commenting on the credibility of a particular child witness.
The decision of the Appellate Division of the District Court of Guam is AFFIRMED.
Notes
. The jury was instructed to keep the following considerations in mind when evaluating the weight of testimony it had heard:
You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness’ intelligence, motive and state of mind, and demean- or and mánner while on the stand. Consider the witness’ ability to observe the matters as to which he or she has testified, and whether he or she impresses you as having an accuratе recollection of these matters. Consider also any relation each witness may bear to either side of the case; the manner in which each witness might be affected by the verdict; and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case.
(emphasis added).
. Our decision today accords with the rule previously set forth by the Appellate Division of the District Court of Guam in Guam v. Welch, No. 90-00008A,
.The support person instruction stated: "The court shall allow a support person to be present during a child-victim’s testimony. No prejudice exists because of that presence.” See 8 G.C.A. § 75.80.
. We also note that the dissent’s premise — that children are more suggestible than adults and are thus less likely to testify accurately — is not an undisputed scientific fact. Psychological studies have failed to reach a consensus on this question. See James,
. The dissent argues that the trial judge's discretion was improperly influenced by Ninth Circuit Model Jury Instruction 4.14, which recommends against giving a special credibility instruction whenever a child testifies. Dissent at 401^402. As the dissent acknowledges, however, a model juiy instruction does not constitute the law of the circuit, but is simply advisory. The mere fact that the trial judge considered the suggestion of the advisory committee does not mean that he committed a clear error of judgment. On the record of this case, the trial court's decision not to require a special child witness instruction is not a basis for reversing the conviction.
. The dissent makes much of the fact that the child in this case had in the past lied to protect his mother, the very person who defendant alleges induced him to testify about the instances of sexual abuse. Dissent at 402. It is unclear why this fact requires a special jury instruction about the suggestibility of children generally, especially since the defendant cross-examined both the child and his mother and argued to the jury that the child had previously lied. The dissent also analogizes child witnesses to government informers and individuals granted immunity from prosecution, arguing that there is "at least as compelling a reason for a cautionary instruction pertaining to child witnesses in sexual molestation cases." Dissent at 400. We cannot agree. A juror may never have encountered an informer before and is likely to be unversed in the types of agreements informers make with the government and the incentives that such agreements create. Children and their behavior, by contrast, are hardly foreign to the typical juror.
Dissenting Opinion
dissenting:
I.
Wherever the truth may lie, this case represents a family tragedy. It may also constitute a grave injustice. Allegations of sexual misconduct by one family member against another pose exceptional difficulties for the judicial system. In many instances, no one but the alleged perpetrator and the alleged victim is able to testify regarding what did or did not happen. The cases are exceedingly troublesome for all concerned, including judges and jurors. On the one hand, we are becoming increasingly aware of the frequency with which sexual abuse occurs and remains hidden. On the other, we have learned, painfully, that the passions and pressures that can arise within a family sometimes cause troubled individuals to make false accusations. Judges and juries must make decisions with the gravest consequences for the fives of those involved on the basis of limited information, the reliability of which is often open to serious question.
These problems are especially pronounced where the alleged victim is a child. The sexual molestation of children is unfortunately just a facet of child abuse in general, a facet that appears to represent an all too common phenomenon. While the difficult problem of determining whether the victim of alleged sexual misconduct consented to the act involved does not arise in cases involving children, other unique complications exist. Some studies show that young children are more vulnerable to suggestion than adults and that when describing past “events” they are often unable to separate fantasy from reality. Maryland v. Craig,
If courts make the wrong decisions in child molestation cases, the consequences are horrendous. In civil cases judges are frequently called upon to decide whether a child should be taken away from a parent. Leaving the child in the custody of a molester may damage the child irreparably. More and more, we are finding that persons who commit egregious crimes when they are adults were themselves the victims of child abuse, frequently at the hands of one or both of their parents. The pattern is self-perpetuating. However, depriving a child of a parent, and a parent of a child on the basis of false сharges manufactured by a vindictive third-party is among the cruelest and most unjust acts society can perform. In criminal cases, the consequences are at least as drastic. The defendant’s life is ordinarily ruined as the result of a conviction, and the risks to his physical well-being if he is incarcerated are significant. Even hardened criminals do not readily tolerate child abusers. Yet, an acquittal of a guilty person will in many cases mean that the abuser will resume abusing his or her victim, and possibly other children as well.
Because the consequences of an erroneous decision are so grave, courts must exercise the greatest possible care in their efforts to reach the correct decision in child molestation cases. There is a particular duty imposed on courts — if only by virtue of the state’s special оbligation to children — to use every appropriate technique to ensure that the truth is ascertained. Under some circumstances, this may involve providing for psychological or physical examinations of the child or the alleged molester at public ex
II.
The case before us is one in which we will probably never know the truth with certainty. We can only hope that on this occasion the jury system worked as intendеd and that the jury returned the correct result. However, the degree of confidence we can have in any such verdict depends in part on the extent to which the instructions provided the jurors with the guidance and assistance they required, and to which they were entitled. Here, that confidence is, unfortunately, substantially diminished. For, in my opinion, the trial court failed to afford the necessary guidance to the jurors — guidance that would have enabled them to make a decision that would have had a significantly greater chance of matching the truth. Perhaps the jury reached the correct result anyway. As one who bears a responsibility for the ultimate consequences, I certainly hope so.
Thomas McGravey was accused of sexually molesting his nephew, Michael, when the boy was seven and again when he was nine. McGrаvey was convicted, in Guam, by a jury. McGravey maintains that Michael fabricated the charges at the instigation of his mother, McGravey’s sister, with whom McGravey has had a bitter family feud. At trial the existence of the feud was revealed as well as the fact that the boy had once before lied when his mother’s interests were at stake. He had falsely told school officials that strap marks inflicted on him by his mother were caused by a fall from a ladder.
There was no corroborating evidence supporting Michael’s story that he was molested by his uncle or even that he was molested at all. There is no indication that he was ever examined by any professional, let alone one trained to deal with the sexual molestation of children, actual or alleged.
The only question before the jury was whether to believe the boy, then ten years old, or McGravey. The jury had to determine whether a heinous crime had in fact occurred solely on the basis of its assessment of the respective credibility of McGravey and his nephew. It is hard to imagine a case that would place more strenuous demands on our adversary system of criminal justice or a circumstance in which meticulous instruction of the jury would be more critical. Yet only the most routine pattern jury instructions were given. No special effort was made to ensure that the jury arrived at the correct result. No special instructions were tailored to the type of case involved. To the contrary, the defendant’s requests that special
The majority concludes that the standard instructions that were given to the jury were of sufficient assistance in this case — that they sufficiently protected McGravey’s rights. I strongly disagree. As an appellate court we should be vigilant in our efforts to ensure that juries are given whatever instructions are necessary to minimize the possibility that unjust verdicts will be rendered. We can do that here by requiring that in child molestation cases the court give instructions that are designed to deal with the unique problems that are presented by such cases. I would hold, in the exercise of our supervisory powers, see United States v. Rubio-Villareal,
III.
A.
The majority holds that the trial court’s refusal to give a child-witness instruction along the lines of the one requested by McGravey was not error. The relevant portion of the requested instruction reads:
Children are likely to be more suggestible than adults. Moreover, children may not have a full undеrstanding of the serious consequences of the testimony they give and the charges they make. You should therefore consider the capacity of a child witness to distinguish truth from falsehood and to appreciate the seriousness of his testimony in evaluating his testimony.
The majority offers two reasons why the trial court’s failure to give the child-witness instruction was not erroneous. I disagree with both.
First, the majority claims that the essentials of the child-witness instruction were covered by the other witness credibility instructions given to the jury. This is simply incorrect. By definition general credibility instructions cannot replace a specific instruction that children are likely to be more suggestible than adults and may lack a full appreciation of the consequences of the charges they make. The majority also notes that the Manual of Model Criminal Jury Instructions fоr the Ninth Circuit recommends that a specific child-witness instruction not be given. 9th Cir.Crim. Jury Instr. 4.14 comment, at 52 (1992). Such a recommendation is not binding on us. We are free to hold that an instruction is required in a particular case even if it is not recommended in that informal guide. In fact, we recently reiterated that we may find an instruction erroneous, notwithstanding its presence in our pattern jury instruction book. United States v. Warren,
In other situations we have not hesitated to hold that jurors must be given special cautionary instructions — in addition to general credibility instructions — to help them weigh the testimony of witnesses who fall into certain categories in eases where there is no corroborative evidence to support the testimony of those witnesses. We have held that it is error to fail to give a special сredibility instruction regarding the testimony of witnesses granted governmental immunity; United States v. Bernard,
There is at least as compelling a reason for a cautionary instruction pertaining to child witnesses in sexual molestation cases. For the reasons I have explained above, I would direct that ordinarily such an instruction be given in all such cases. Nevertheless, I would permit a trial judge to decline to give the instruction in certain circumstances, if he or she has good cause for doing so. In this connection I note that as a child approaches maturity, there is less reason to be concerned about thе dangers of suggestibility and the possible confusion of imagination and reality. Also, to the extent that physical or other corroborative evidence exists there may be less reason for concern over the genesis of the child’s contentions.
The majority seeks to divest itself of its responsibility to ensure that justice is done by uttering the shibboleth “we leave it to the sound discretion of the trial judge”. How many times have appellate judges failed to do their job by citing this phrase? Countless, I would suspect. Sometimes, courts of appeals must do just what the majority suggests. Other times, not. This is one occasion on which we clearly err in failing to review the distriсt court’s determination with sufficient care.
The district judge followed an erroneous Ninth Circuit pattern jury instruction.. See discussion IIIA and n. 4, supra. In our Comments to our Model Instructions we told the district courts that no special instruction should be given. See 9th Cir. Crim. Jury Instr. 4.14 comment (1992). While the district judge was not compelled to follow our “recommendation”, it could hardly have es
We can hardly now pretend that all the district court did was to exercise its own sound disсretion. To the contrary, the district judge applied the erroneous rule we foisted upon him. To now seek to escape responsibility for that error by claiming that we are simply relying on the “sound discretion of the trial judge” is to reveal a certain blind spot — either intellectual or moral. The argument is too reminiscent of the bureaucratic and jurisprudential fumbling, bungling and buck-passing that led to the execution of Private Slovik.
C.
Turning to the facts of this case, I would hold that the judge’s failure to give a child witness instruction constituted error. There are no circumstances that suggest a reason for omitting the instruction herе. To the contrary, there is even more reason to give one, since it is undisputed that the child previously lied on behalf of the very person who the defendant suggests induced him to testify to sexual molestation. Thus, there was no justification for refusing to give the requested instruction.
IV.
I believe the trial judge committed an additional error in this ease as well. The government’s proof of sexual molestation depended entirely upon the testimony of one witness. That requires a special instruction, wholly apart the fact that the witness was a young boy. Because the success of the government’s case depended wholly upon the testimony of a single witness, the jury should have been instructed to review the evidence against the defendant with particular care. This rule is a settled proposition under California law. Because much of Guаm’s statutory law is modeled upon California’s, California cases are persuasive where, as here, there is a paucity of authoritative Guam deci-sional law. See Hemlani v. Guerrero,
In California v. Rincon-Pineda, the California Supreme Court unanimously held that a special instruction should be given sua sponte by the trial court to protect a defendant’s rights in cases in which the prosecution is based upon the uncorroborated testimony of a single witness.
You should give the uncorroborated testimony of a single witness whatever weight you think it deserves. However, testimony by one witness which you believe concerning any fact is sufficient for the proof of that fact. You should carefully review all of the evidence upon which the proof of such fact depends.
[hereinafter “single-witness instruction”] The majority cites a raft of boiler-plate credibility instructions in support of its conclusion that the instructions actually given were adequate.
A trial court’s failure to give the single-witness instruction sua sponte is error. California v. Adams,
Y.
The only remaining question is whether the trial court’s errors were prejudicial or harmless. In our en banc decision in Rubio-Villareal we stated that the government must prove that errors with respect to jury instructions are harmless beyond a reasonable doubt.
The evidence of guilt was not overwhelming but rather consisted solely of the testimony of a child-witness who had been known to lie for his mother’s sake in the past. There was nothing inconsistent or implausible in McGravey’s testimony that he never sexually molested his nephew and that the boy was lying at his mother’s behest. On the basis of the written record, there is no way of determining who was telling the truth — McGravey or Michael. The entire ease for conviction rested squarely upon Michael’s credibility. The trial court’s failure to give a child-witness instruction and a single-witness instruction went to the core of the jurors’ determination of guilt or innocence. Thus, errors in instructions as to how the jury should determine that credibility were highly prejudicial. I would reverse and remand for a new trial
I respectfully dissent.
. The mаjority seeks to cast doubt on the theory that children are more suggestible than adults. It is difficult to understand the majority’s argument in light of recent well-publicized cases where sensational charges, later proved to be false, were made by children after they were interviewed by therapists who employed aggressive and leading questions. In the McMartin case (jury trial, no published opinion), Ray Buck-ey and Peggy McMartin Buckey, owners of the McMartin pre-school in Manhattan Beach, CA, were charged with multiple counts of rape and sodomy, acts which the children alleged took place over many months and were accompanied by the slaughtering of animals and elaborate satanic rituals. Despite wide and arguably prejudicial pre-trial publicity, both defendants were acquitted by a jury on 52 counts of child molestation; the jury was unable to reach a verdict on 13 other counts. See David Shaw, McMartin and the Media: Time McMartin Coverage was Biased, Critics Charge, Los Angeles Times, January 22, 1990 at Al. In the Akiki case (juiy trial, no published opinion), another pre-school teacher, Dale Akiki, was acquitted by a juiy on all counts, but only after spending more than two years in jail awaiting trial. Allegations in this case, again made after interviews with a large number of children, included the ritual slaying inside the pre-school of a giraffe and an elephant. See Reaction to Akiki Verdict: Many are Critical of D.A. and the Prosecutor, San Diego Union Tribune, November 24, 1993 at B7. I should state yet again that none of this is meant to sirgue that child molestation does not exist, or is not a serious problem. There is, however, also a significant threat to the liberty interests of some alleged molesters created by the suggestibility of some alleged сhild victims. Simply put, I am aware of no trial since those held in Salem in which a group of adults suggested occurrences similar to those alleged in the McMartin and Akiki cases.
. See, e.g., Christiansen, supra at 711, 714-15; H. Humphrey, Report on Scott County Investigation (1985).
. Whether a court should order such examinations in cases of alleged sexual abuse against children is a question not raised by the parties and, therefore, not before us.
. To a large extent this was not the trial judge's fault. The judge declined to give McGravey's requested child-witness instruction on the basis of an erroneous recommendation in our Manual of Model Criminal Jury Instructions for the Ninth Circuit. See discussion in Part III.A infra.
. I would balance these instructions with others that ensure that the testimony of the child-witness is not improperly disregarded or given insufficient weight. See discussion in Section IV infra. What is required in child molestation cases is not only adequate protection for the rights of the defendant but also fuller and more specific guidance for the juiy as to how the crucial credibility determinations should be made.
.The recommendation in the Model Criminal Jury Instructions is based upon a misreading of Pocatello v. United States,
. I believe that the trial judge should have considerable latitude in formulating the exact language of a child-witness instruction in a manner that fits the particular circumstances of a given case, Barnes,
Children are likely to be more suggestible than adults. A child may also have confuse recollection of an imagined experience with the memory of a real event. Furthermore, children may not have a full understanding of the serious consequences of the testimony they give and the charges they make. In evaluating a child witness’ testimony you should, therefore, consider whether it is based on his own recollection or upon the influences of others. You should also consider whether the testimony is based on memories of real or imagined events. In addition, you should consider the child witness' appreciation of the serious consequences of his testimony.
. William Bradford Huie (1954), The Execution of Private Slovik.
. I have no disagreement with anything the majority states in Part I (or Part II) of its opinion. The majority simply fails to address the fact that the jurors were not given an instruction that told them to review the evidence with particular care because the government’s proof of sexual moles
. The Guam non-corroboration instruction was upheld in Guam v. Welch, 1990 Crim. No. 90-00008A,
. Gammage disapproved statements in Adams and Pringle that only the single-witness instruction should be given. Gammage reaffirmed that both the single-witness instruction and the non-corroboration instruction should be used.