*1 Cir.1993). Workers, F.2d frivolous, legal- by no means motion was foundation, unreasonable, legal without ly purpose. any improper brought for Discovery Sanction.
B. January 24
Plaintiffs’ counsel of the stockbro depositions up the
noticed knowl secretary person “the most
kers’ Refsnes, Inc.” Pierce edgeable of Rauscher attor February plaintiffs’ 19 and counsel Vegas. Defense
neys’ in Las office dates, Feb change because him to asked holiday, and he had
ruary legal 19 was February 20 a case beginning many exclusively for handling been
he had numerous alternative
years. offered He only granted de magistrate not dates. order, protective motion for a counsel’s
fense $1,600 pay plaintiffs to ordered but also includ expenses as the reasonable
defendant seeking protective attorneys’
ing fees of
order, Rule of Civil Procedure under Federal 26(c). error, for clear Grimes review Francisco, County City and San (9th Cir.1991), none. Ob and find reasonable accom refusal to make structive exhibited,
modation, plaintiff such as civility profession of our
impairs the law, also practice of but
pleasures of the expense to
needlessly litigation increases
clients.
AFFIRMED. the TERRITORY
The PEOPLE OF GUAM, Plaintiff-Appellee,
OF McGRAVEY, Defendant-
Thomas V.
Appellant.
No. 92-10003. Appeals,
United States Court
Ninth Circuit. 4, 1992.
Argued and Nov. Submitted 14, 1994.
Decided Jan. *2 NORRIS,
WILLIAM A. Judge: Circuit Appellant MeGravey Thomas challenges his convictions for first degree and second criminal sexual ground assault on the instructions, whole, taken as a mis- jury by directing led the it to undue testimony victim, who was a minor.
MeGravey identifies two instructions that proposed and one instruction that rejected by the trial court as the basis appeal. for his Because we hold that jury instructions, entirety, viewed in their did not place lead the disproportionate emphasis testimony on the "victim,we affirm.
FACTUAL BACKGROUND MeGravey was tried before a on the charge sexually molesting nephew separate two occasions—first when the child years again was seven old and when the child years was nine old. Since there were no alleged acts, witnesses to the and because any neither corroborating side offered evi- support events, dence to its version of the the trial pure credibility boiled down to a contest between the defendant and the al- victim, leged years who was then ten old. trial, MeGravey objected At unsuccessfully separate jury to two instructions. The first challenged instruction he stated: testimony of a victim of criminal sexu- al conduct need not be if corroborated beyond victim is believed a reasonable doubt. patterned
This instruction was after 9 Guam 25.40, § provides Code Annotated which a victim’s need not be corroborat- prosecutions ed in for sexual offenses. The Guam, Grigsby, Agana, Scott R. for defen- challenged second instruction he stated: dant-appellant. The court person shall allow a Sacco, Guam, Gen., Robert Atty. C. Asst. present during a child-victim’s testimo- Guam, Agana, plaintiff-appellee. ny. prejudice No exists because of that presence.
This instruction was taken verbatim from 8 § Guam Code Annotated 75.80. Finally, MeGrаvey proposed following BROWNING, Before: regarding NORRIS and of child REINHARDT, witnesses, Judges. Circuit rejected: court Joetzki, a witness States disqualified as A child is Cir.1991). has substantial is no youth. There
simply by reason formulating jury instructions so latitude a child’s determines age which precise fairly adequately long capacity as the instructions depends on his This competency. presented. United States understanding of issues cover the on his intelligence, *3 (9th Cir.1992). Powell, 1210 F.2d false- 955 truth and between difference the instructions, are not a imperfect, even if duty Jury to of hood, appreciation his his and on overturning a absent conviction basis for tell the truth. an of the they abuse showing that constitute witnesses, you the are other As with all Joetzki, F.2d at discretion. court’s credibility a child who the of judge of sole only his may consider not You testifies. stand, his on the age demeanor but his IN- facts and recollect THE to observe to I. NON-CORROBORATION
capacity them, questions ability to understand STRUCTION his intelligent- to answer them put to him and the non-cor Appellant contends that having you as an impresses ly, whether he no corroboration instruction —that roboration recollection, memory and accurate testimony necessary if the is of the victim’s truth-telling you individ- impresses as he beyond a reasonable believed victim is ual, any other facts circumstances erroneously the was implied that doubt — you significant in deter- impress as testimony differ of the victim to evaluate of credibility. basis mining his On the favorably, than that ently, indeed more you may give the child’s your consideration ac any particularly the of other witness — judg- you testimony your such cused. to. think it is entitled ment objection is not to the sub- Appellant’s suggesti- likely to be Children instruction, that to the fact but stance of Moreover, may than adults. ble gavе analogous no instruction with the court understanding seri- full of the not have a testimony. His regard to the defendant’s they testimony consequences of the ous ju- that the by specifying that contention is charges they You make. and the alleged victim’s testimo- rors believe capacity of consider should therefore saying noth- ny corroboration —but without from distinguish child witness to truth testimo- ing sort about the defendant’s of the appreciate the seriousness falsehood and jurors to believe ny instruction led the —the evaluating testimony in the testimo- testimony unworthy defendant’s ny. it was other of unless corroborated belief & from 1 Devitt was taken This instruction argues, was to upshot, he evidence. In- Blackmar, Jury Federal Practice de- persuasion of to the the burden “shift[ ] (3rd 1977). structions, § ed. 17.17 by requiring produce him to ... fendant counts, Following conviction on both his of his innocence.” corroborative evidence MeGravey Appellate to the Division appealed Opening Brief at 7. Defendant-Appellant’s Guam, raising all of Court District disagree. jury instruc challenges to the three of his affirmed Appellate Division tions. The single not be instruction A McGravey’s Our review convictions. isolation, but must be judged artificial ruling de novo. Appellate Division’s charge. overall in the context of the viewed F.2d Cir. Yang, Marsh, States v. United 1988) (en banc). denied, (9th Cir.), U.S. cert. L.Ed.2d 1048 When S.Ct. OF REVIEW STANDARD is reviewed the non-corroboration context, jurors instructions, that the it becomes clear reviewing In believing they into misled jury instruc were not inquiry is whether the “[o]ur testimony of any special weight to the inadequate attach misleading or tions as whole fact, quite to the alleged victim. jury’s United guide the deliberations.” instructions, contrary, judge gave numerous instruc- these we think that no reason- plain made it that it juror tions which able testimony believe that the testimony alleged to treat any victim was entitled to differently testimony victim no from the deference. instance, any For he instruct- other witness. juror Nor would a reasonable have be- jurors they judges were “the ed the sole required lieved that the defendant was of the witnesses and the produce corroborating in support evidence deserves,” weight their and he ex- testimony. In his instructions plained jurors the factors that jury, judge properly emphasized evaluating consider of each pre- defendant was entitled to a brought the witnesses before them.1 innocence, sumption of the burden Moreover, they “may he stated that disbe- *4 government was on prove the its case any part any lieve all or witness’ testimo- beyond a reasonable doubt. ny,” important it was for them to which, all, evaluate “the extent tо if at each sum, In the combined effect of these in- supported witness either contradicted structions was to make clear that the testi- by jury explicitly other evidence.” The mony of each witness judged by was to be testimony “judge told to the of the defendant Hence, the same standard. light just you as the [would] entirety given, of the instructions we hold any finally, jury other witness.” And the by giving that the trial court did not err the weight that “[t]he admonished non-corroboration instruction.2 presented by evidence each side not does necessarily depend on the number of wit- II. THE SUPPORT PERSON testifying nesses on one side or the other. INSTRUCTION must You consider all the evidence in.the case, Appellant argues you sup next and that all decide the testi- mony port person improper of a smaller number of instruction was witnesses on be greater weight phrase one side than cause it used the has that оf “child-victim” rather larger light number on the other.” than “child witness.”3 He claims that keep following rely argue was instructed to sent on California cases to that the However, evaluating considerations in mind when trial court erred. California caselaw is it had heard: point beside the because there is no evidence that carefully the sexual abuse statute or the You should scrutinize all the non-corroboration testimo- ny given, the circumstances under which each instruction was based on California law. See testified, Ulloa, 823, every witness has and matter in evi- Tabor v. 824 n. 5 1963) ("Decisions dence which tends to show whether a witness is Cir. of the California court sub worthy sequent Consider each witness’ intel- adoption by of the Code Guam are of belief. mind, ligence, motive and state of and demean- binding, persuasive but are of the construc or and mánner while on the stand. Consider givеn provisions tion to be in the Code of Guam ability the witness’ to observe the matters as to Code.”) (emphasis borrowed from California testified, which he or she has and he added). government argues that the trial impresses you having or she an accurate court’s decision to the non-corroboration recollection of these matters. Consider also instruction was not erroneous because Guam's any relation each witness bear to either non-corroboration statute track does not Califor case; side of the the manner in which each law, Michigan nia but rather is identical to a verdict; might witness be affected Michigan appeals statute and the court of has which, all, the extent to each witness is if approved such a non-corroboration instruction. supported either or contradicted other evi- Smith, 189, Peoрle Mich.App. See v. 149 385 dence in case. 654, (1986). Although N.W.2d 657 there is no added). (emphasis consciously evidence that Guam followed Michi law, gan Michigan ap the fact that courts have today previ- 2. Our decision accords with the rule proved persuasive a similar instruction has some ously Appellate set forth Division of the force. Welch, District Court of Guam in v. No. Guam 90-00008A, (D. App.Div. WL 1990 320365 30, 1990), person support reviewing 3.The instruction stated: "The Oct. that "a court examines present person challenged jury court shall allow a to be instruction in the context of the during testimony. prejudice a child-victim’s No [to instructions as a whole ... determine wheth- presence.” unduly it] er testi- exists because of that See 8 G.C.A. call[s] attention victim's mony.” appellant § Id. at *1. Both the dis- 75.80. 1348 426, James, 555, 433- 211 560 A.2d v. Conn. singled out the improperly phrase use of (1989) an (overruling requiring such 35 witnesses from all other apart
victim cases).4 juris All collecting instruction and claim lacks This prejudiced his defense. ei the matter that have considered dictions merit. see, instruction, e.g., prohibit such an ther its use careful to define trial court was Indiana, N.E.2d 342 Lewis v. Ind.. possi- as to avoid the “victim” so of the term (1976) (murder conviction), or en Indeed, prejudice. bility confusion or discre matter to the trial court’s trust ‘victim’ is explicitly “[a] court stated Thomas, See, e.g., tion. California whom the de- person means the defined or 457, 470-71, Cal.Rptr. Cal.3d subjected to criminal sexu- allegedly fendant (1978). think view is the better P.2d added). This defini- (emphasis al conduct” view,” that “a trial “prevailing safeguard adequate was an tional instruction whether the retains discretion determine might any prejudice that against potential instruction with receive the word conceivably from the flow use witness, young respect to “victim.” so, of that instruсtion.” if the nature Avery, Mass.App.Ct. Massachusetts THE WITNESS III. CHILD Such view N.E.2d INSTRUCTION that the trial accords with the federal rule *5 trial argues that the Appellant also on evidence court has discretion to comment requested refusing give to erred court jury must long as it makes clear that the suggestibility stressing the jury instruction for ultimately questions all of fact decide that the instruction of children. He contends Sanchez-Lopez, See United States itself.. necessary particularly here because (9th Cir.1989). theory namely, directly to his defense went — case, give judge refused to In this the him into fa child’s mother coerced that the. instruction, relying special child witness a against the defen bricating these accusations credibility general instruc- instead the the a result of a bitter feud between dant as not hold that the trial did tions. We appellant. mother and child’s doing Appellant’s discretion in so.5 abusе his to estab- appellant’s decline invitation We ten-year old at trial was that the defense requiring the law of a rule put as the him lying that his mother lish child was and special a child witness against trial court to her up part it as of a vendetta to brother, a child testifies in a sexual Appellant instruction when had the the defendant. single juris- to opportunity of riot a to cross-examine the child and abuse case. We know theory of present testimony adopted the view taken has diction not, have, did case. He also could but the appellant and the dissent. See Connecticut suggestible premise children are more than 4. We also note that the dissent’s —that suggestible psychological and more than adults com- children are adults is controversial in the accurately likely testify not an thus less munity, requiring child witness in- standard —is Psychological undisputed studies scientific fact. hinge in all cases that on a child’s struction question. to reach a consensus on this have failed inappropriate. credibility would be James, (citing at 434-35 studies See 560 A.2d questioning wisdom that chil- the conventional judge's argues dissent that the trial discre- likely to he truthful on the witness dren are less improperly by Ninth Circuit tion was influenced capa- are less stand than adults 4.14, Jury Model Instruction which recommends events); imaginary distinguishing ble of real from giving special credibility against Approach Lindberg, Marc An Interactive see also whenever a child testifies. Dissent 401^402. Testimony Assessing Suggestibility the however, acknowledges, a model As the dissent Eyewitnesses, Suggestibility Children’s in The juiy not constitute the law of the instruction does ed., ("[Tjhere (John 1991) Doris Recollections circuit, simply advisory. The mere fact but is taxonomy that can is not a sound theoretical suggestion the that the trial considered sugges- development organize the the data on advisory that he committee does not mean memory performance. tibility All we know is judgment. On the committed a clear error of conditions, memo- others, different children’s that under case, decision not record of this the trial court's suggestible, in ries are sometimes others, require child instruction is witness they do suggestible, and in still not less adults.”). reversing a basis for the conviction. not differ from Because present expert on the issue of I. susceptibility sexual abuse of children lie, Wherever truth rep- suggestion. By the close of of children to family tragedy. resents a It also consti-
trial, for the was clear: one of issue grave injustice. Allegations tute a of sexual two, appellant, the child or the was not family proffered against misconduct one telling the truth. The child wit- member nothing ness instruction would have added posе exceptional another difficulties jury’s ability to understand and evaluate judicial system. many instances, no one appellant’s or to evaluate the defense credi- alleged perpetrator alleged but and the bility of the child vis-a-vis the defendant. testify regarding victim is able to what did or point The essential of such an instruction— happen. did exceedingly The cases are carefully that the scrutinize the concerned, troublesome for all including credibility of the witnesses and their testimo- judges jurors. hand, On the one we are conveyed jury by ny adequately —-was becoming increasingly frequen- aware of the general witness instructions. cy with which sexual abuse occurs and re- only possible pro- appellant’s effect of other, mains hidden. we have On posed instruction would have been to under- learned, painfully, passions pres- that the believability mine the of the child’s family sures that can arise within some- by “denigrat[ing] usually a child as wor- less times cause troubled individuals to make James, thy of belief than an adult.” 560 A.2d Judges juries false accusations. must at 435.6 gravest make decisions with the conse- agree with the dissent that the conse- quences for the fives of those involved on the quences of an erroneous verdict a case information, reliability basis of limited involving sexual abuse of a child open question. which is often to serious grave and that courts must exercise *6 great justice trying care in to assure that is problems especially pronounced These are every simply disagree in done case. We that where the victim is a child. The requiring special jury the solution lies in sexual molestation of children is unfortunate- stressing susceptibility instructions of ly just general, a facet of child in abuse suggestion. to children Such courtroom appears represent facet that to an all too cross-examination, weapons contradictory phenomenon. common While the difficult evidence, evidence that a witness has been problem determining of whether the victim of others, argument influenced and are the alleged sexual misconduct consented to the educating jury time-honored methods of involving act in involved does not arise cases credibility. issues We leave it to the children, unique complications other exist. sound discretion of the trial to deter- young studies show that Some are justice mine whether the ends of would be suggestion more vulnerable to than adults by supplementing served these methods with they describing past and that when “events” commenting an instruction on the separate fantasy to particular are often unable from child witness. reality. Maryland Craig, 497 U.S. Appellate The decision of the Division of 3157, 3175, 111 L.Ed.2d S.Ct. the District Court of Guam is AFFIRMED. (1990) (dissenting opinion of Justice Scafia REINHARDT, Brennan, Marshall, Judge, dissenting: joined by Circuit Justices and granted immunity pros- 6. The dissent makes much of the fact that the ers and individuals ecution, from past protect compel- arguing child in this case had in the lied to that there is "at least as mother, very person alleg- ling cautionary per- who defendant a reason for a testify taining es induced him to about the instances of to child witnesses in sexual molestation why agree. sexual abuse. Dissent at 402. It is unclear cases." at 400. We cannot A Dissent requires juror special this fact instruction about never have encountered an informer suggestibility generally, especially likely types of children and is to be unversed in the before government agreements since the defendant cross-examined both the informers make with the argued agreements and his incentives that create. child mother such behavior, contrast, previously the child had lied. The dissent also Children and their are analogizes government foreign typical juror. hardly child witnesses to inform- to more, irreparably. More and Johnson, Stevens) Reality age the child Lindsay (citing & persons commit finding that who we are Suggestibility: Children’s Monitoring and they when are adults were egregious crimes Among Memories Ability to Discriminate abuse, of child fre- Sources, the victims Eyewit- themselves in Children’s from Different of their (S. hands of one or both Ceci, quently D. at the Toglia & Memory 92 M. ness self-perpetuating. Christiansen, parents. pattern The 1987); Testimo- Ross eds. However, parent, and a Fact, depriving a child of Fantasy, and ny Child Witnesses: Interviews, charges the basis of false parent of a child on Pretrial the Influence of third-party is (1987)); by a vindictive manufactured see also 708-11 Wash.L.Rev. unjust most acts among cruelest and Hamick, Susceptibility & Cohen cases, the society In criminal perform. can Suggestion, 4 Law & Witnesses Child (1980).1 consequences are at least as drastic. are also Children Hum.Behav. ordinarily ruined as the life is than are defendant’s susceptible manipulation conviction, to his and the risks result of a parents their particularly adults — well-being if he is incarcerated authority physical or trust. positions others hardened criminals do significant. Even may use this weakness a molester some cases Yet, an ac- readily child abusers. try keep tolerate advantage and or her to his many However, others, guilty person will in cases quittal of a coming out. truth from abusing his abuser will resume person is mean that an innocent the result victim, possibly other children as or her falsely a molester. Some labelled bring tеchniques experts use to well. investigative light can child molestation
the facts of consequences of an erroneous Because the unreliability if not be a source themselves grave, are so courts must exercise decision fact is employed.2 The unfortunate properly possible care in their efforts to greatest that, suggestibility, greater of their because decision child molesta- reach the correct testify to events young children sometimes particular duty im- There is a tion cases. happened. that never only by virtue of the posed on courts —if obligation to children —to use wrong decisions child state’s If make the courts technique cases, every appropriate to ensure consequences are hor- molestation some cir- the truth is ascertained. Under judges frequently In civil cases rendous. cumstanсes, providing may involve a child should called to decide whether *7 psychological physical or examinations away parent. Leaving the taken from a alleged public at ex- child or the molester custody in of a molester dam- child the counts, Akiki, acquitted by juiy theory a on all the Dale was seeks to cast doubt on 1. The years suggestible only spending in than adults. more than two that children are more but after majority’s argu- case, Allegations again to understand the jail awaiting It is difficult trial. in this light well-publicized cases of ment in recent large with a number of made after interviews proved charges, to be later where sensational children, slaying inside the included the ritual false, they after were were made elephant. giraffe pre-school a and an See of employed aggres- by therapists who interviewed Many Critical to Akiki Verdict: Reaсtion leading questions. In the McMartin sive and Prosecutor, Diego San Union Trib- D.A. and the trial, opinion), Ray (jury published Buck- no une, state 1993 at B7. I should November Buckey, ey Peggy owners of the and McMartin sirgue yet again of this is meant to that none Beach, CA, pre-school in Manhattan McMartin exist, not a does not or is child molestation rape charged multiple and counts of were sodomy, is, however, sig- problem. also a There serious alleged took which the children acts liberty the interests of some nificant threat to accompanied many place and were over months suggestibility of alleged created the molesters slaughtering and elaborate the of animals alleged Simply put, I am some child victims. arguably prej- Despite and satanic wide rituals. those held in Salem in of no trial since aware pre-trial publicity, udicial both defendants suggested grоup occurrences a of adults acquitted by jury counts of child molesta- a on 52 alleged McMartin and to those in the similar tion; jury a verdict on the was unable to reach Akiki cases. Shaw, David McMartin and other counts. See Biased, Coveragewas Media: Time McMartin 714-15; Christiansen, See, e.g., supra Times, January Charge, Angeles Critics Los County Investiga- trial, Report Humphrey, on Scott (juiy H. no 1990 at Al. In the Akiki case teacher, opinion), pre-school tion published another in for extensive studies all. There is no indication that he was ever pense, and even setting. jury trial is medical When a proper by any professional, examined let alone one involved, should insure that the court trained to deal with the sexual molestation of jury the benefit of whatever aid or assis- has children, alleged.3 experts actual or No tes- properly provide the the court can tance medical, psychological, tified at the or trial — At jurors arriving right in at the result. exception police otherwise. With very it make least certain who testified that she officer could not recall fullest, jury instructed in the fairest and any regarding complaint details Michael that it possible, most informative manner and along had filed with his mother several help the gives whatever instructions would boy- months earlier and Michael’s mother’s jurors the truth. to ascertain friend who testified as the close relation- mother, ship every- between Michael and his II. one who testified at the trial awas member us in which we will The case before is one McGravey family. Not one of the probably know the truth with certain- never family any members offered evidence direct- only ty. hope can that on this occasion incident, ly relating except that Mi- jury system worked as intended chael’s mother testified that Michael told her jury returned the correct result. Howev- question point about the events in at some er, degree can in of confidence we have after the second occurrence. She any depends part in on the such verdict history estrangement also described the provided to which the instructions extent from her brother some detail. McGra- jurors guidance they with the and assistance vey’s they brothers father testified that Mi- required, and to which were entitled. is, Here, unfortunately, that confidence sub- problems chael had some behavioral For, stantially my opinion, diminished. McGravey type person was who necessary the trial court failed to afford the engage in acts of homosexual child guidance jurors guidance that would all — molestation. While of this evidence have enabled them to make a decision that partial partisan picture have sketched significantly greater would have had a chance life, aspects McGravey family of some matching Perhaps the truth. light question cast little on the central anyway. reached the correct result As one McGravey sexually whether had molested for the ultimate responsibility who bears Michael. consequences, certainly hope so. before the McGravey sexually Thomas was accused of boy, years believe then ten Michael, molesting nephew, boy when the old, McGravey. had to deter- again when nine. was seven he was mine whether a heinous crime had fact convicted, Guam, McGravey by jury. solely occurred on the basis of its assessment McGravey maintains that Michael fabricated *8 credibility McGravey respective of the mother, charges instigation at the of his nephew. imagine It is hard to a case that sister, McGravey’s McGravey with whom has place more strenuous demands on our family had a bitter feud. At trial the exis- adversary system justice of criminal tence of the feud was revealed as well as the boy that fact had once before lied when in which meticulous instruction circumstance at stake. He had his mother’s interests were jury would be more critical. Yet falsely strap told school that marks officials jury pattern routine instructions the most by inflicted on him his mother were caused given. special No effort was made by a fall from a ladder. that the arrived at the correct ensure special result. No instructions were tailored corroborating sup-
There was no evidence con- type of case involved. To the porting story Michael’s that he was molested spеcial by trary, requests that his uncle or even that he was molested the defendant’s by parties raised 3. Whether a court should order such examina- children is a and, therefore, not against tions in cases of abuse not before us. sexual suggesti- likely to be nature Children to a case pertinent instructions Moreover, may ble than adults. entirety.4 rejected in their given were be understanding of seri- a full not have the standard majority concludes that The testimony they consequences of the ous jury were given that were instructions charges they You give make. they in this assistance case—that of sufficient capacity of a consider the should therefore McGravey’s rights. I sufficiently protected from distinguish truth child witness we disagree. appellate As an court strongly the seriousness appreciate and to falsehood to ensure vigilant in our efforts be should evaluаting his testimo- instructions juries are whatever that ny. that necessary possibility minimize the why trial majority two reasons The offers can do rendered. We unjust verdicts will be in- give the child-witness court’s failure to by requiring that in child molesta- that here disagree I with not erroneous. struction was give that are the court instructions tion cases both. problems unique designed to deal with First, majority essen- claims that the I would presented such cases. that are instruction were tials of the child-witness pow- hold, supervisory in the exercise of our credibility in- covered the other witness Rubio-Villareal, ers, United States see jury. simply given to the This structions (9th Cir.1992) (en banc), 297-98 credibility By general incorrect. definition trial child molestation cases a that in replace specific instruc- cannot instructions ordinarily give appropri- an should sug- likely that children are to be more tion ately worded child-witness instructiоn —a a full gestible adults and lack than cautionary type dis- instruction of consequences of the appreciation Moreover, III Section cussed infra. majority charges they *9 in States, 115, See discussion Part III.A 394 F.2d 116-17 Pocatello v. United infra. Cir.1968) curiam), (9th (per is a case which presented simply issue here. to the I balance these instructions with others irrelevant 5. would year a five testimony in Pocatello was whether the child-wit- The that ensure competent testify. disregarded given to ex- improperly in- old child was Pocatello ness is not or only plicitly a weight. child-witness' See in Section IV considered discussion sufficient admissible, testimony we required an issue left in molestation What is child infra. judge. does adequate protection of the trial for the sound discretion cases is not special any way credibili- rights not in address whether of the defendant but also and more fullеr regard- given juiy ty be specific guidance to instructions should for the as how
1353 circumstances, in B. the instruction certain if he good doing or she has cause for so. In this hesitated In other situations we have not I approaches connection note that aas child jurors given special hold that must be to maturity, there is less reason to be con- gen cautionary addition to instructions —in dangers suggestibility cerned about the help them eral instructions —to possible imagination and the confusion of weigh testimony of witnesses who fall Also, reality. physical to the extent that or categories in eases where there into certain other corroborative evidence exists there is no corroborative evidence may be less reason for concern over the testimony of those witnesses. We have held all, genesis of the child’s contentions.7 All in givе special a that it is error to fail credi however, giving along of the instruction bility regarding instruction ones, necessary balancing with the can do granted governmental immunity; witnesses may particular little harm and cases make Bernard, 854, v. 625 F.2d 858- United States jury’s returning a difference between (9th Cir.1980); who accom 59 witnesses just unjust and an verdict. informers; government plices United or/and (9th Bosch, 1239, seeks to divest its 1247 itself of States v. 914 F.2d Rosa, responsibility justice Cir.1990); to ensure that is v. Dela F.2d done 644 (9th by uttering 1257, Cir.1980); the shibboleth “we leave it to the 1259-60 United States (9th Martin, 674, judge”. sound discretion of the trial 2 How 489 F.2d 677 n. Cir. many 1973), denied, 948, appellate judges times have failed to do cert. 417 94 S.Ct. U.S. job by Countless, 3073, (1974); citing phrase? their I L.Ed.2d 668 or witnesses Sometimes, suspect. addicts; appeals would courts of drug who were United States v. Ochoa-Sanchez, just 1283, majority suggests. must do what the times, Cir.), denied, 911, Other not. This is one occasion on cert. 459 U.S. 103 S.Ct. (1982); Rosa, clearly fаiling which we err to review the Dela L.Ed.2d district court’s determination recognized with sufficient 1261. We have these care. present special credibility prob witnesses juries given should
lems
be
added
judge
The district
followed an erroneous
guidance
testimony.
to how evaluate the
pattern
Ninth Circuit
instruction.. See
compelling
supra.
There is at least as
a reason for
discussion IIIA and n.
In our
cautionary
pertaining
instruction
to child
to our
Comments
Model Instructions we told
witnesses
sexual molestation cases. For
the district courts that no
above,
explained
given.
Jury
I
I
the reasons
have
would
should be
See 9th Cir. Crim.
(1992).
ordinarily
direct that
such an
4.14
instruction be
Instr.
comment
While the dis-
Nevertheless,
given
judge
compelled
all such cases.
trict
was not
to follow our
“recommendation”,
permit
give
hardly
a trial
to decline to
could
have es-
ing
given
imaginary
that should be
lectiоn of an
event from a real memo-
of a child witness. See also Barnes v. United.
ry.
appropriate
An
child witness instruction
States,
("There
(D.C.App.1991)
600 A.2d
might read:
important
compe-
is an
distinction between the
likely
suggestible
Children
tency
testify
of a child to
and the assessment of a
credibility.
ques-
than adults. A child
also have confuse
child witness'
The former is a
imagined experience
of law to be
the court.
latter
tion
decided
of an
recollection
(internal
jury.”
Furthermore,
is a function for the
ted)).
citation omit-
memory
of a real event.
understanding
not have a full
consequences
testimony they
the serious
I believe that the trial
should
con-
have
evaluating
charges they
and the
make. In
formulating
siderable latitude in
the exact lan-
should,
testimony you
witness’
there-
child
guage of a child-witness instruction in a manner
fore, consider whether it is based on his own
particulаr
fits
circumstances of
influences of others.
recollection or
case, Barnes,
821;
A.2d at
Commonwealth
whether the testimo-
You should also consider
Avery, Mass.App.Ct.
437 N.E.2d
ny
imagined
based on
memories of real
However,
any child-witness instruction
addition, you
events.
should consider the
convey
that children are more
fact
appreciation of the
con-
*10
child witness'
serious
suggestible than adults.
It should also note that
testimony.
separating
sequences
difficulties
recol-
have
de
proof of sexual molestation
our
ernment’s
members of
notice that
two
caped his
testimony of one
(the
entirely upon
a ma-
pended
as constitutes
same number
court
instruction,
officially proclaimed
jority today)
requires
had
That
witness.
give the instruction
judges should not
the witness was a
wholly apart
district
the fact that
fact,
In
by
requested
the defendant.
gov
boy.
the success of
young
Because
him that
represented to
prosecutor
wholly upon the
depended
ernment’s
“(d)efendant’s
as a Witness’
proposed ‘Child
witness,
single
testimony of a
by the
expressly disapproved
is
the evidence
instructed to review
have been
Immedi-
Appeals”.
of
Circuit Court
Ninth
particular care.
against the defendant with
afterwards, he denied the defendant’s
ately
proposition under Cali
is a settled
This rule
request.
statuto
Because much Guam’s
fornia law.
California’s,
that all the
hardly
pretend
now
ry
can
Califor
law is modeled
here,
its own
where,
did was to exercise
court
persuasive
district
nia cases are
contrary, the dis-
To the
sound discretion.
authoritative
deci-
paucity
is a
Guam
there
rule we
applied the erroneous
trict
Guerrero,
Hemlani v.
sional law. See
escape
upon him. To now seek
foisted
(9th Cir.1990);
1412, 1414n. 3
Luсero v.
by claiming that
that error
responsibility for
(9th Cir.1989);
Stewart,
52, 54
discre-
simply relying on the “sound
arewe
403,
Ojeda, 758 F.2d
Cir.
v.
a certain
judge”
trial
is to reveal
tion of the
1985).
or moral. The
spot
intellectual
blind —either
Rincon-Pineda,
In
v.
Cali
of the bureau-
California
argument is too reminiscent
unanimously held that
Supreme Court
fornia
bungling
fumbling,
jurisprudential
cratic
given sua
special instruction should be
to the execution of
buck-passing that led
protect
court to
a defen
sponte
reality,
responsibility
Slovik.8
Private
prosecu
rights in
in which the
dant’s
cases
with us. No
the defendant’s fate lies
for
upon the uncorroborated testi
tion is based
phrases
standards of
pat
invocation
864, 123
mony
single
witness.
Cal.3d
pass it on to the
allow us to
review will
133-34,
247,
538 P.2d
merely Cal.Rptr.
Essentially,
judge.
he was
district
(1975);
case,
Pringle,
Cal.App.3d
or,
in- this
“recom-
following orders —
California
(1986),
disap
Cal.Rptr.
mendations”.
proved
grounds
on othеr
California
C.
Cal.Rptr.2d
Gammage, 2
Cal.4th
instruction,
That
now
IV. of its conclusion that instructions actually given ade- the instructions an ad committed I believe the However, emphasizes the need gov quate.9 none in this as well. The ditional error ease (1954), majority simply fact that fails to address the Execution 8. William Bradford Huie jurors told Slovik. were not an instruction that Private particular evidence with care them to review the disagreement anything the ma- I have no proof government’s of sexual moles- because the (or II) opinion. jority in Part I Part of its states
1355
particularly
complain
careful review where there is
the defendant and those of the
credibility
witness,
in-
only
witness. General
ing
given.
one
both instructions must be
single-
are no substitute for the
Hollis,
structions
1521,
Cal.App.3d
v.
235
1
California
Rincón-Pineda,
witness instruction.
524,
(1991),
Cal.Rptr.2d
grant
527
review
—
single-witness
in-
court made clear
Cal.4th-,
764,
Cal.Rptr.2d
ed
4
824
procedural pro-
was an additional
—
struction
Cal.4th-,
P.2d 570 review dismissed
im-
for the defendant that served an
tection
92,
Cal.Rptr
9
.2d
A trial court’s failure to
sponte is error.
witness instruction sua
Cal-
only remaining question
is whether
Adams,
75,
Cal.App.3d
230
v.
186
ifornia
prejudicial
the trial court’s
were
errors
or
588,
(1986),
Cal.Rptr.
disapproved on
590
In
harmless.
our en banc decision in Rubio-
Gammage, 2
grounds by
other
v.
California
government
Villareal we stated that
693,
541,
Cal.Rptr.2d
682
Cal.4th
7
828 P.2d
prove
respect
must
that errors with
(1992);
Pringle,
Cal.Rptr.
223
at 217.
beyond
instructions are harmless
a reason-
single-witness
this case no
instruction was
able
I
doubt.
given to respectfully dissent. BESINGA, R. Plaintiff-
Cornelio
Appellant, America; U.S.
UNITED STATES General,
Attorney Defendants-
Appellees.
No. 92-56075. Appeals, Court of
United States
Ninth Circuit. 1, 1993.
Argued and Nov. Submitted Jan.
Decided notes make. also on the testi- prosecution such a rests where Jury Model Criminal Manual of witness, single that the mony of a believe recom- the Ninth Circuit Instructions for to examine the should be instructed specific instruc- mends child-witness particular Because nei- care.5 evidence Jury given. 9th Cir.Crim. Instr. tion not be giv- protective instructions was ther these comment, recom- 4.14 at 52 Such a here, McGravey’s convic- I would reverse en binding on us. We are free mendation is tions. required in a to hold an instruction is if particular even it is not recommended III. fact, recently guide. in that we informal that we find an instruction reiterated A. erroneous, notwithstanding presence in its pattern jury instruction book. United court’s our holds that Warren, 327 n. 3 instruction States v. a child-witness refusal Cir.1993). Here, the recommendation con- requested the one along the lines of binding, only not por- tained in the manual is not McGravey not error. The relevant wrong.6 it is requested tion instruction reads: large judge's determinations crucial 4. To a extent this not the give McGravey's made. declined to fault. requested the basis child-witness erroneous recommendation in our Manual of an the Model Criminal 6.The recommendation in Jury Instructions the Ninth Criminal Model misreading Jury Instructions is based of Circuit.