*1 Comm’rs, Boner v. Board of Cir.1982)) added). (8th (emphasis America, UNITED STATES Appellee, Plaintiff — similarly Here, Heise were Ward v. quite their offenses
situated because ROUSE, Appellant. Desmond invqlved Although they Defendant — were both different. argument, their actions in the same America, UNITED STATES of in- the incident clearly differentiated because Appellee, Plaintiff — separate of escalation. two levels volved v. in the most favorable Taking light the facts ROUSE, Appellant. Jesse finger Ward, mutual during the course of Defendant — finger grabbed pointing Heise Ward’s America, UNITED STATES By face. con- pointing was Heise’s Ward Appellee, Plaintiff — trast, very Heise least Ward struck v. shoulder. open-handed slap to the an Thus, finger pointing FEATHER, mutual escalated Garfield Defendant— ip turn, finger grabbing, which escalated Appellant. slap. Plant is not obli- open-handed America, UNITED STATES gated the two escalations as substan- to treat Appellee, Plaintiff — tially involved because the escalations similar objectively different conduct. HUBBELING, Russell Defendant— Furthermore, finding our that Ward and Appellant. similarly Heise were not situated bolstered 95-1554, 95-1556, Nos. 95-1558. did not hold the same the fact position they did not similar em- share Appeals, United States Court of ployment position Ward records. held Eighth Circuit. technician, Heise a team leader. whereas 3, 1997. Submitted March Although they have some com- shared April Decided duties, more job mon Heise’s duties were Furthermore, Rehearing Suggestion Rehearing in contrast extensive. May En Banc problems, no Denied disciplinary Ward’s record of any- presented that Heise had evidence was
thing spotless disciplinary record.
III. above, given judgment
For the reasons court is the district affirmed.
563 *4 Wilka, Falls, SD,
John Sioux for Desmond Rouse. Falls, Binger, SD,
Steven R. Sioux for Jesse Rouse. Falls, SD, Heege,
Robert C. Sioux for Garfield Feather. Falls, SD, Haugaard,
Steven G. Sioux for Hubbeling. Russell Sehreier, Karen E. Attorney, U.S. Michelle Tapken, G. Attorney, Assistant U.S. Sioux Falls, SD, for U.S. later, BRIGHT, pediatrician Kap- McMILLIAN, days Four Richard
Before LOKEN, Kaplan Judges. lan examined the children. Dr. re- Circuit findings ported to his medical and what DSS LOKEN, Judge. Circuit the children had said about sexual abuse. Rouse, and and Jesse Brothers Desmond me,” Kaplan, hurt J.R. told Dr. “Uncle Jess cousins, and Russell Garfield Feather labia; pointing Kaplan left found to her Hubbeling, appeal sexual convictions recent or contusion consistent with bruise young children on Yankton abuse of fairly L.R. “a kind of abuse. acute Reservation, raising numerous Indian Sioux injury” right majora on the side of labia panel A reversed and re- issues. divided Kap- “really hurt her.” which R.R. told grounds new that the for a trial on manded lan, my put “I have a bruise where uncle excluding erred in certain ex- court district sag- private and Dr. found a spot,” Kaplan denying pert opinion testimony de- ging vagina and a scar on her anus. Dr. pretrial independent motion for fendants’ Kaplan that T.R. found had “obvious trauma of the abused psychological examinations very very, ... and much ten- contusion Rouse, children. See United States majora; him, derness” on her labia T.R. told (8th Cir.1996). After F.3d 560 January “Uncle hurt me there.” Jess On granted government’s suggestion for re- 21,1994, Special FBI Agent William Van panel opin- hearing banc and vacated the en Investigator Roe BIA Criminal Daniel *5 ions, granted government’s pe- panel R., R., R., Hudspeth interviewed J. T. R. and rehearing, the court denied tition for and again reported L.R. children sexual The Having rehearing en banc moot. further by abuse children their uncles. The parties’ ap- contentions on considered psychiatrist, also seen a who referred peal, now affirm. we to for therapy. them Kelson Kelson first January group saw the children a on Background. I. 11, February Dr. con- On Robert Ferrell granddaughters victims are Rose- The colposcopic and fall of ducted examination of the five mary During Rouse. the summer a Rosemary’s 1993, “very significant” at home defendants lived victims. Dr. Ferrell found hymenal on Yankton Sioux Reservation. The vic- damage ring tearing R.’s and to R. spent great deal time lived tims also anal inter- in her anal area consistent with 1993, five-year-old In this home. October course. noted a constellation of He “whole Jordan, placed expe- an R.R. was with Donna findings” indicating L.R. had been abused— neglect parent, and foster due rienced area, damage hymenal furrowing her on apparent R.R. sexual malnutrition. disclosed vagina, chronic irritation or either side of her Jordan, reported to the Tribe’s who abuse trauma, cells” are “known to and “clue (“DSS”) (as Department Social Services Ferrell, Dr. sexually transmitted.” To do) required that R.R. said Jordan was hymen a tear on R.’s where scar J. January sexually On had been abused. she finding,” “important while T. healed was an 10, 1994, DSS told to take R.R. to Jordan “hymenal essentially gone,” ring R.’s was After an initial in- therapist Ellen Kelson. irritated, she had fur- entire area and was (as terview, reported to DSS Kelson Kelson “tearing vagina. Infant F.R. had rows do) required reported R.R. had was anal scarring of the mucosa.” against abuse herself and other acts of sexual Fay, Dr. ad- expert, medical Defendants’ 11, January On children the Rouse home. scarring on reported hymenal mitted that the living in children DSS removed thirteen R., R., “certainly ... leads L. and J.R. R. placed them Jordan’s Rouse home abuse,” you and that “a to think about sexual Of four who disclosed sexu- foster home. very finding” injury significant ... is a uncles, labial al T.R. was seven abuse rebuttal, government In its old, six, five, of abuse. years L.R. R.R. was Alexander, a member called Dr. Randall The fifth victim four and one-half. J.R. was R., of the National Com- offenses, twenty- the Board of Governors alleged F. was a Dr. Alexan- mittee Child Abuse. infant. to Prevent month-old 563, 98, (1994); it takes considerable force 264 109-10 der testified that Ga. S.E.2d State, (Ala. injuries exhibited v. to inflict like those Hewlett 520 So.2d labial Crim.App.1987); victims. see one three of the “It’s rare to see also State ex rel. Lowe, of them young girls] O’Leary see three 307 Or. 769 P.2d [in (1989) banc). (en case, just ... the third up show rareness to 192-93 In this de power.” complained fense counsel never to the dis pretrial trict court that them DSS denied 24, 1994, grand jury indicted On March witnesses, the child so access to this issue Feather, Rouse, Hubbeling, Duane Desmond preserved appeal.2 was not Defendants Rouse, twenty-three Rouse on and Jesse deny admit that decision DSS made the aggravated sexual in viola- counts of access; they point do not to evidence that the 2241(c). § tion of 18 U.S.C. After three prosecution interfered. United States v. Cf. jury acquitted week Rouse. Duane Murdock, (8th 773-74 Cir. counts, It convicted Desmond Rouse on three 1987). circumstances, In these there was no counts, two on Jesse Rouse on Feather four error, plain much less error. counts, Hubbeling They on two counts. long prison raise received sentences but no file Defendants did motions to sentencing appeal. on issues We consolidat- compel additional medical examinations and appeals. ed their four psychological interviews. evidence at a pretrial evidentiary hearing revealed that the Concerning II. Issues Victims’ victims received two medical examinations. Testimony. Trial Kaplan physical found evidence consis government’s primarily case consisted perform tent with sexual abuse but did not testimony by physicians, the two the four Instead, thorough examinations. he referred victims, oldest another child who witnessed Ferrell, the children to obstetri abuse, acts of Agent sexual FBI Van cian/gynecologist, who examined the anesthe *6 appeal, Roe. On defendants raise numerous using colposcope tized children instrument regarding the issues district court’s1 han- magnified viewing genital for area. dling testimony. of the critical child victim reported Dr. tearing scarring Ferrell and mucosa, infant F. R.’s anal and evidence of A. Denial of Defense Access significant trauma to the other victims’ to Children. hymenal areas. He testified that this evi trial, Prior to the victims lived with foster dence as whole indicated abuse. parents legal custody in the of DSS. Defen- argued Defendants that another examina- argue dants were denied Sixth necessary tion Kaplan’s was Dr. because ex- right Amendment to effective cross-examina- sufficiently were thorough aminations not tion right and their Fifth Amendment to due experienced pe- and Dr. Ferrell was not process permit because DSS refused to de- diatric sexual abuse examinations. The vic- fense counsel interviews the victims before guardian opposed tims’ ad litem additional argue trial. also Defendants that the district medical examinations. The district court de- refusing court erred in to order additional nied motion for further examinations be- prior medical examinations to victims reports Kaplan cause the detailed Drs. and trial, during lengthy or pretrial psy- and defendants, Ferrell were available to and no chological by expert. interviews a defense good cause had been shown “that it is neces- a child sary adequate When witness is to the defense these cases legal custody of a social agency, alleged services for again, victims to for a third agency time, as custodian requests undergo procedures refuse for these invasive at State, pretrial interviews. See strangers.” Thornton the hands of PIERSOL, 1. The Honorable LAWRENCE L. one Because defense theme at trial was that Judge DSS contaminated the United victims witnesses States District for the District of trial, isolating them in the months before defen- South Dakota. dants’ to failure raise this access issue with the design. district court was no doubt psychological notes of her with the children. Kel- request for sessions Regarding the interviews, as a hearing revealed son was called defense witness at trial evidence questioned counseling Kelson had counseled the about her methods social worker part investigating the with the victims. Dr. no contacts Under- victims but took therapy, wager hearing was stated at the motion that he alleged Her focus abuse. reports available sufficient information assess whether detailed sexually argued that their ex- the children had been abused.3 He defense. Defendants Ralph Underwager, the trial psychologist C. observed the victims pert, Kelson, therapist to demon- assisted defense coun needed interview victims regarding interviewing and sel the- effects of suggestive envi- strate techniques, prepared child pressures made the children’s tes- interview ronmental express suggestibility government opinions on the timony advised unreliable. investigative therapeutic practices expert its request it would interviews , Spotted employed. were allowed. The vic- See War if defense interviews Bonnet (interview psychologi- properly F.2d guardian opposed litem at 1362 denied be tims’ ad examinations, inter particularly by adversarial cause defense reviewed other cal present court denied defen- view and was when victim experts. The district records testified). by Underwager motion for interviews dants’ good not cause there “has been
because Finally, properly the district court why this additional intrusion into shown as gave strong in consideration to victims’ already alleged troubled lives the' victims may simply An adult witness refuse terests. be ordered.” should psychologi undergo adversarial medical agree the district court that de- We v. Bitt cal examinations. See United States showing need examina- for these fendants’ (8th Cir.1984) (“the ner, Kaplan and was insufficient. Drs. Fer- tions right of access not violated defendant’s qualified. Dr. Ferrell had rell were well when a witness chooses of her own volition experience conducting colposcopic ex- ample interviewed”). With child wit aminations, children in his had examined custody, protective who are in nesses training on and had received sexual practice, complex issue is more because Kaplan during residency. ex- able to make these difficult decisions six hundred children each amines to seven course, pro must themselves. Of participated in month for abuse. He sexual right to a fair tect a criminal defendant’s examinations, Ferrell’s and concurred *7 trial, protect but it must. also the State’s findings. reports and find- Their detailed in the paramount interest the welfare of med- ings were made available to defendants’ Making ex child. court-ordered adversarial extensively expert. ical And defendants raise a routinely available would aminations Kaplan Drs. and cross-examined Ferrell prosecution kind of barrier to the of this trial. by maximizing that its crime the trauma minimum, Likewise, At a there not victims must endure. defendants did establish fore, agen a requested psychological court should heed custodial for inter- the need the pretrial child cy’s opinion that access to the counsel views. Defense purposes is investigative for or adversarial Agent access Van Roe’s interview to unnecessary or unwise.4 reports therapist Kelson’s extensive specific find- testify, the court made tell district court that district 3. Defendants did not the ings competent. each child witness was psychological de- that examinations were needed to testify. competency the to On termine victims' Benn, argue proper hearings appeal, defendants v. 476 the court in United States Unlike (D.C.Cir.1973), competency, to assess we held do F.2d 1130-31 presiding in district for filed no written motion the court the over a criminal assume that court testing competency pre- compel pretrial that a and thus to of a child examinations failed 3509(c)(2-4); case government § arm to serve this See 18 U.S.C. social services believes issue. Bonnet, posit an To Spotted 882 to the child’s best interests. v. War adverse United States (8th Cir.1989) example, government (subsequent history custodian extreme if 1362-63 omitted). opine of a witness presumed competent interests child to should Children 568 difficulty balancing sobbing these outside the courtroom and affirmed
Given interests, that, in important crying if we conclude chambers that she was out of fear uncles; R., nine-year-old of her T. opposes of a child witness access as who custodian interest, testifying not in child’s best became so fearful before defendant “the guardian likely physi- that denial must show of access would ad litem would have had to cally pull into the result in an absence of “fundamental fairness courtroom.” Defen- justice” very argue dants that the in concept essential to be district court erred permitting testify by question fore court these three victims to the trial need reach (The type may appropri closed whether some of access circuit television. other two Here, testify ately guard open victims’ child witnesses were able to be ordered.5 court.) access, opposed ian and defendants did not requested show need examinations. The Sixth Amendment’s Confronta The district court did not its discretion tion “guarantees Clause defendant face- subject to declining order DSS meeting to-face appearing the witnesses psychological further medical or
victims to
Iowa,
Coy
before the trier of fact.”
487
examinations.
2798, 2801,
U.S.
108 S.Ct.
(1988). However,
right
L.Ed.2d 857
this
by
Testimony
B. Victim
Closed
not absolute and must accommodate the
Circuit Television.
“compelling”
protec
State’s
interest in “the
tion of minor victims of
crimes
sex
trial,
government
Prior
filed
further trauma and embarrassment.” Globe
permit
motion
all
testify
child witnesses to
Court,
Newspaper
Superior
v.Co.
457 U.S.
by
hearing
closed circuit television. At a
on
596, 607, 102
2613,2620,
S.Ct.
trial, may the criminal case have be dismissed.
569 (child living 3509(b)(l)(B)(i) by neighbor- in her may testify closed with another child § hood, that court finds that another victim had made accusa- “if the circuit television testify open court in the activity,7 child is unable tions of inter-household sexual ... because of presence defendant a third victim had aeted-out a sexual district, fear”). ease, the district court made In this this manner. excluded findings for three specific allegations “because fear” because the evidence flowed the children’s re review of young boy victims. Our with a almost three interview questions sponses the court’s in chambers before trial and months therefore defendants by therapist Kelson prior good untimely had mo- no cause their findings clearly these are not persuades 412(c)(1)(A). us tions. See Rule Carrier, 9 States v. erroneous. See United appeal, argue that dis On defendants (10th denied, Cir.1993), 867, cert. F.3d 870-71 trict court abused its discretion because 1571, 114 128 L.Ed.2d U.S. S.Ct. 511 effectively gave 412 Rule notice mention (1994). 215 ing activity in pre the victims’ sexual argue Defendants dis independent trial motion for medical exami findings inadequate because trict court’s disagree. We 412 limits the nations. Rule upon expert testimo were not based admissibility protect evidence to such 3509(b)(l)(B)(ii). However, required by § ny rape and sexual abuse. See Pro victims require an vost, the statute does not ; F.2d at States v. United 177 finding. support (8th Cir.1988). fear” That Azure, a “because of 845 F.2d finding may upon the court’s own be based procedural requirements, The Rule has strict severely of a questioning observation and delineating including timely proof offer of trial has be frightened child. “[0]nee and for what what evidence will offered may judge eyes its own gun, with hearing the court at which purpose, an in camera suffering child the trauma whether the vague respond. Defendants’ victim requested required grant order.” complying far notice fell short 101-681(1), Cong., H.R.Rep. No. 101st 2nd Rule, properly and the district court exclud (1990), reprinted in 1990 U.S.C.C.A.N. Sess. Eagle ed this evidence. See United States Cir.1990). reject (8th Thunder, We also defendants’ con sys circuit tention that the closed television rights infringed tem their Sixth Amendment Hearsay. D. of Child Admission could not see the because defense counsel trial, government At offered tes examining sequestered cross while four timony by Agent FBI Van Roe what Spigarolo v. Mea Compare witnesses.6 inter during Van Roe’s initial victims said (2nd Cir.1991). chum, 19, 24 objected. January 1994. Defendants views in Agent Roe outside the questioning Van After Victims’ Past C. Evidence of jury’s court admitted presence, state Sexual Conduct. victims un made the three oldest ments govern day before exception, Fed. hearsay der the residual preclude motion evidence of
ment filed a
803(24).
appeal,
ar
On
defendants
R.Evid.
activity
past
because de
victims’
sexual
its discre
gue that the district court abused
motions “at
fendants had
filed written
testimony.
admitting
tion in
trial,”
days
required
least 14
before
“a
412(c)(1).
This
at odds with
contention is
then filed
Fed.R.Evid.
Defendants
precedent
of Circuit
untimely
formidable line
three
motions
offer evidence
testimony in
hearsay
activity
the use of
engaged
sexual
sanctions
one victim
*9
of
victim has accused others
system
in the
Evidence that the
6. The
included five monitors
court-
expert,
jury,
subject
judge,
412's limitations.
room for the
defense
abuse
Rule
sexual
is
testifying
Provost,
172,
to view the child
in cham-
defendants
F.2d
177-78
States
875
v.
United
bers;
859,
child
to view
denied,
a monitor
for the
witness
(8th Cir.),
S.Ct.
493 U.S.
110
cert.
testified;
separate
as she
com-
defendants
170,
(1989).
child sexual abuse cases.” United States able scientific evidence that would assist the (8th Cir.1988). John, 1096, jury St. 1098 851 a fact in understand issue. See Fed. Here, 702; court FBI the district determined that R.Evid. Daubert v. Merrell Dow Phar- Agent maceuticals, Inc., 579, 591-93, Van Roe had been trained to interview 509 U.S. 113 cases, 2786, (1993). children in abuse interviewed the chil- 2796, 125 469 S.Ct. L.Ed.2d individually at the home of their foster dren court Underwager’s proposed heard Dr. parent, leading questions. did not ask testimony concerning theories testimony Agent Van Roe’s and interview memory. “implanted” or “learned” After re- responses notes established that the victims’ viewing publications scientific research and spontaneous repetitious. were and not theories, support offered these the court provided victims’ statements also de- more preliminary rulings: made two regarding tails the than their testimo- I’m not going Underwager allow Dr. circumstances, ny In at trial. these the dis- testify as to whether or not the [child] trict did not abuse its discretion testimony not, witness’s is or believable or admitting the initial interview statements. telling or the truth not. Grooms, 425, See States v. United 978 F.2d regard to principles [W]ith (8th Cir.1992). 426-28 ar- Defendants also methodology, this is an area of valid scien- gue that victims’ admission statements inquiry, anywhere tific but there violated con- the Confrontation Clause as yet agreement community near in the Wright, 805, strued in v. 497 Idaho U.S. 815- methods, techniques, testings toas or reli- 16, 110 111 S.Ct. L.Ed.2d 638 ability admissibility that would warrant the (1990). However, the Confrontation Clause matters____ before a of these It was satisfied because the victims at issues, would result in a confusion of the Bonnet, trial. Spotted See War at 933 F.2d possible misleading jury by of the undue possibly being placed upon
reliance [one Expert Testimony III. So, Exclusion methodology]. side’s for these rea- Implanted Memory. sons, Daubert, on under I’m going to al- regard low evidence with to the different failing nullify After to exclude or testi- psychological ... evaluating methods of victims, mony of child con- defense reliability of witnesses. credibility undermining centrated on testimony. that In addition to cross-examin- Underwager Later in the doctors, victims, ing Agent and FBI was called as defense witness. He testified case, during government’s Van Roe length concerning his own research into therapist defense called Kelson and wit- DSS ways in reliability which the of children’s witnesses, nesses seeking prove as adverse allegations physical or sexual abuse forcibly that the children removed questioning practices be tainted adult Rosemary Rouse’s home and then inter- suggest implant or false answers even false length by government many viewed at inves- Underwager memories. Dr. identified for tigators.8 The culmination this defense jury practices “suggestibility” testimony psychologist Underwag- was the produce testimony child unreliable of—use er as a defense witness. leading questions; or coercive communicat preliminary
The district court held a ing assumptions adult cause child to hearing explore Underwag whether Dr. give perceived what is as the desired an proposed testimony swer; er’s sufficiently repetitive reli- questioning; play therapy, Cir.), denied, citing specific 8. Without instances of cert. error 474 U.S. S.Ct. supporting authority, argue defendants (1985). L.Ed.2d 336 failing district court erred to control witness portion Kelson. We have reviewed this "preconceived 9. Dr. testified that prop- and conclude that the court assumptions single of the interviewer are the erly maintaining its exercised discretion in rea- powerful most determinant of what comes out of sonable control over the examination and testi- an interview.” 611(a); mony of this witness. See Fed.R.Evid. DeLuna, (8th United States
571 (standard review). It is opined has clear Underwager “no scien- Dr. which nega- upon expert or this was ex- use of rewards record that intent support”; adult tific to children opinion that motivate that the pressing tive reinforcement his ultimate victims’ among group lie; germination” “cross and not accusations of sexual were credi- up from each pick stories of children who reliability assessing But or ble.10 credi- mem- Underwager opined that “a Dr. other. bility of victim’s accusations is the exclusive by questioning ... some- ory be created can jury. Underwager’s opin- function Dr. child, Moreover, younger the “[t]he one.” credibility properly ions about witness vul- suggestibility, the more greater Crinklaw, Westcott v. 68 F.3d excluded. See the influences.” are to nerable (8th 1073, Cir.1995); 1076 United States v. (8th Whitted, 782, Cir.1993); object- successfully 11 F.3d 785-86 prosecution When 336, Underwager, Azure, questions put Dr. v. States 339-40 ed to some United Cir.1986).11 (8th end proof offer of at the made an was defendants The district court also three-page In a of his direct examination. ruling that Dr. well within discretion its question whether narrative answer Underwager not his should embellish own suggestibility em- practice been a “there’s opinions telling jury research and victims, ployed” with the child Dr. Under- writings research and of other about (i) therapist wager opined that Kelson have psychologists because these works on the vic- social influence” exerted “massive body produced a consistent of scientific (ii) tims; engaged “highly that Kelson knowledge and therefore admission other prac- highly contaminating” suggestive and in a writings and would result battle theories (iii)- leading tices; prosecutor used that the experts or that could confuse even mislead and “were questions at trial the children jury. bit,” yes/no showing doing comfortable issue, court second whether the erred (iv) yes; Van answer “they’d learned” to rejecting proof offer of defendants’ “very suggestive was diagrams Roe’s use Indeed, (v) it is more is an issue on difficult. very leading”; the children disagree. qualified A continue to fami- which we kidnapped ... from their “were taken dangers lies, expert may explain to the strange place all of to this where taken memory suggestive practices implanted talk about people concerned (vi) abuse”; interviewing questioning that the “total environ- child wit- sex when or powerful- nesses, the most opine ment one of as to child [was] upon I’ve credibility. children that coercive influences That witness’s leaves trouble- court excluded these judge seen.” district the trial to draw —as the some line for subjects opinions proper as not general opinions expert applies opinion. hand, at experiences to ease at what specific opinion this testimo- point does more generally that appeal, argue On defendants undisguised, impermissible ny become misapplied in ex- court Daubert district veracity? The a child victim’s comment on Underwager’s testimony. We cluding Dr. unusually difficult for district issue was components to this issue. find two distinct case made because defendants First, we the district court’s conclude through Underwag- proof their offer of pretrial rulings regarding the preliminary monologue, asking three-page instead er’s scope Underwager’s testimony did not of Dr. questions and specific court to rule on See Cook American abuse its discretion. (6th Cir.1995) answers, Co., 733, Underwager’s of Dr. and because 53 738 S.S. Underwager’s regard, just we note that Dr. In this a letter defense counsel before In exhibit, opinions hearing attempts express in other child such preliminary that became a consistently rejected. See prepared opine have been "that abuse cases said he Swan, 610, P.2d 114 Wash.2d subjected to State v. case have been the children in this denied, (1990) (en banc), U.S. cert. adults 49§ social influence massive coercive (1991); State v. likely any 112 L.Ed.2d highly state- 111 S.Ct. as make it ... such Erickson, (Minn.App. N.W.2d 627-29 so adult behaviors ments are contaminated 1990). unreliable." *11 testify impermissibly produce on the obvious desire was calculated to sort of some credibility. compliance lack of with these children’s kids.... gave an jury This basis on informed differing question Our views on wheth- which to make its ultimate determinations as in rejecting er court erred defen- the district credibility. Third, victims’ the victims’ proof are set forth in the dants’ offer testimony trial was consistent their Rouse, panel opinions. See vacated reports “free recall” —R. R.’s Having again 582-85. considered early January, Jordan Kelson in and the light this of the issue voluminous reports oldest Kaplan four victims’ record, panel majority a has concluded during his initial medical examinations. expert that additional testi- exclusion of this unprogrammed preceded These disclosures was, event, mony any harmless error. We the FBI interviews and Ellen thera Kelson’s on a base this conclusion number of factors. py. Underwager testified for the de First, jury heard evidence as to the that, “[b]asically, fense in most reliable interviewing par- used techniques foster formation is obtained free recall.” In Jordan, Kelson, therapist Agent ent and FBI circumstances, these we that exclu conclude Van Roe. It learned of the social influences testimony sion of additional Dr. Under- affecting the victims at the time accused wager regarding “practice whether a sug uncles sexual abuse. And it ob- gestibility” employed on the victims testily and served the victims knew that the “could not have had substantial influence on prosecutor ques- leading asked the children case,” Azure, the outcome of the 845 F.2d at Second, jury tions at trial.12 heard Dr. 1507, the governing harmless error standard. length ways in describe at 2111; § See 28 U.S.C. Brecht v. Abraham
which
can
adults
influence children’s memo-
son,
507 U.S.
630-32 & n.
113 S.Ct.
possible impact
ries and the
of such influ-
(1993).
1718 & n.
Y.
Issues.
Jurisdiction
was insufficient evidence that he
that there
rested,
Country,
sexually
in Indian
abused J.R.
After both sides
defendants
jurisdiction
over that
fact essential
federal
judgments
acquittal
on the
moved for
1153(a).
§
The trial
U.S.C.
government had failed to
offense. See 18
ground that
on
that occurred at
in Indian
focused
events
prove
alleged
offenses occurred
house,” grandmother Rosemary
responded by
“grandma’s
Country.
government
Country.
testi
home in Indian
J.R.
moving
reopen its case
better establish Rouse’s
Marty,
spent
that she
occurred at
fied that she lived
alleged
sexual abuse
house,
grandma’s
and that her
Rosemary’s
Yank-
of time at
grandmother
home on the
lot
She testi
expressly
uncles
often
that house.
After
con
ton Sioux Reservation.
“[b]e-
it
not safe
the house
possible prejudice to defen
fied that was
sidering both the
doing naughty stuff to
impact
our uncles are
reopening, and
on the
cause
dants in
testify
that he lived at Rose-
having
again,
us.” Jesse testified
child victims of
mary’s
September
tigation
1993 until
house
which influences included
(the
in January
taking
alleged
victims were removed
the children
victims
children)
Viewing
light
this evidence
most favor-
nine other
from their families and
verdict,
must,
jury’s
able to
we
from their
periods
we
residences” for extended
agree
isolation,
During
the district court
there was
time.
Id. at 562.
months,
support
jury’s
up
sufficient evidence
find- which lasted
to six
social workers
jurisdiction.
ing
subjected
investigators
alleged
vic-
*13
repeated
questioning.
tims
and intense
of
judgments
The
the district court are
Despite
interrogation,
of
the
nine
chil-
the
affirmed.
steadfastly
any
dren
denied
abuse.
McMILLIAN,
Judge, concurring
Circuit
in
Furthermore,
the medical
intro-
evidence
the result.
at trial
duced
was inconclusive. For exam-
ple,
challenged
the defense
of
the conclusions
I
affirming
concur in the result
the convic-
witnesses,
prosecution’s
prosecution
the
the
tions,
only
agree
I
because
that
the
any
injuries
failed
establish the source of
expert
of the
harm-
exclusion
evidence was
victims,
alleged
the
and the medical evi-
less error.
photographic
dence lacked
documentation of
BRIGHT,
injuries.
addition,
the
Judge, dissenting.
Circuit
See id. at 575-76. In
the district court
important
excluded
evi-
I respectfully
Previously,
dissent.
two
activity
of
po-
dence
inter-child sexual
which
judges
panel
on this
reversed the convictions
tentially
findings
skewed
relating
the medical
judge
by
this case because the trial
erred
injuries.
ambigui-
the victims’
Id. These
rejecting
expert opinion
ques
the
evidence in
magnified
importance
ties
of
the
the chil-
Rouse,
al.,
tion.
United States
et
testimony
jury’s verdict,
dren’s
to the
there-
(8th Cir.1996).
majority
The new
now
by exacerbating the harm
by
suffered
the
grounds
affirms the convictions on
that such
defense when the district court excluded the
disagree.
I
Depriving
error was harmless.
expert’s opinion.
following
discussion
questioned
critically
the
of the
evidence
background
reiterates
the
expert’s
for the
and,
strength
eroded the
of the defense
testimony
explains why
and
the
exclusion
therefore, did not constitute harmless error.13
testimony
that
resulted
substantial harm.
I. DISCUSSION
THE,
A. BACKGROUND FOR
EX-
fully
This
incorporates
panel
dissent
PERT TESTIMONY
opinion previously reported at 100
panel’s
opinion
earlier
however,
In
comprehension,
discussed the
interests
I
investigation by
personnel,
shall
social services
some of
prior opinion.
reiterate
interrogations
FBI’s
alleged
of the
victims
upon
The convictions rested
following
others,
and
and
manner
eliciting
evidence:
testimony
uncorroborated
testimony.
children’s
See id. at 563-66. The
four
initially
of the thirteen children
removed
opinion
questioned
reliability
also
families,
from their
medical evidence describ-
(not-
children’s bizarre stories. Id. at 563-66
ing
injuries
vaginal
tissue
in the victims’
ing,
example,
investigators
for
and social
areas,
anal
alleged
and statements the
vic-
workers offered rewards for the children’s
view,
tims made
my
to other adults.
In
this
testimony).
“truthful”
suspect.
evidence
example,
is
For
the “chil-
dren’s evidence and
[in
trial]
this
We examine the
of proof,
defense’s offer
by suggestive
became tainted
including
background
influences
evidence provided to
subject
which the children were
by
in the inves-
expert
the court
witness
outside
previous
Nevertheless,
opinion,
In the
we
ruling.
also ruled that the
stand
this
this error
prejudicially
trial court
denying
erred
“the
justify
fails to
a new trial unless the exclusion of
independent
defendants’ motion for
psychologi-
testimony regarding
coercive influ-
light
cal examination” of the children in
prejudicial
ences on the children constituted
er-
questioning
interrogation
coercive
of the al-
ror.
Rouse,
leged victims. See
2. comply produce Children desire to or 3.Repeated questions can respected authority ate with the figure change may in- of answers as the child inter- attempt pret terviewer and will an- question to make as “I must have time,” swers given response consistent with what see the correct the first questioner intent rather than consis- and the child’s answers well become engage play in sexual encouraged to Id. at 419-20. be time. accurate over less etc., dolls, if the child has not re- even questioning victims often Repeated abused, (or sexually further no nor- single within a been time even over sults interview) chil- report. exists on non-abused mative data in an inaccurate id. at 423-25. dren’s use dolls. See from the hiatus existed A three-month (January law enforcement second her home was taken from time R.R. 21) place interview took at the United complaints of abuse. sex time of Attorney’s Office with Assistant States questioned repeatedly These children Attorney present. The chil- States United Jordan, Kelson, Brock, and law doctors drawing penis. of a saw an anatomical dren By agents. March enforcement Later, therapy play utilized and art Kelson familial sexual accounts children’s media, journals. apparently dream district so skewed abuse were exposing these interviews to admit court refused suggests children to these materials into evidence. authority infor- figure that the wants them Younger suscepti- more 4. children are sex. mation about children, suggestibility than older ble major is con- “[A] 6. conclusion stereotyping. especially the context some, trary to the claims of children some- Stereotypes organize Id. at times lie the motivational structure is when per- distorting what memory, sometimes lying.” Id. at 433. Patterns tilted toward thematically congruent by adding ceived disclosures, implied of bribes for threats perceived, and that was not information nondisclosures, peers insinuations sug- stereotype formation interacts with already investigators suspects’ have told greater for questioning to a extent gestive highly suggestive. behavior are abusivé Id. at younger rather than older children. personal Children will lie Id. have shown children 416-17. Studies re- gain, psychological material and susceptible particularly interviewer’s magnitude a large wards need stereotype, repeated- when “bad man” *16 Id. be effective. man, they may ly the actor is bad told Here, pic- promised the children were of an often construct a false account event nics, and even a chance to return vacations perceptual details embellished with “truthful,” suc- home as a reward for their stereotype. keeping with the Id. They testimony at trial. were told cessful Here, children persons various told the go they not home until their uncles could beginning from the defendants successfully Experts been had removed. it “safe” were and that would not be “bad” kind of as “brib- of this reward are critical gone. go to until the defendants were home give or ing” to “admit” abuse children from their The children remained isolated answers, promis- as such abuse-consistent community.13 “bad man- families interview, giving or them ing to end the replayed again and uncle” theme was techniques tangible rewards. Such other addition, In again, including at trial.14 reports. accuracy of children’s affect the circuit televi- testified via closed children regarding 7. Dr. testified on their “fear” defendants. sion based “cross-germination” among concept of television, circuit other secu- While closed and in Children in studies the children. courthouse, and rity procedures at the dis- peer pressure shown that actual cases have any family allowing the to see children ef- other children has interaction with or did amount before the trial members accuracy reporting: of their on the fects error, procedures to to those served response provide will an inaccurate “bad men” stereo- reinforce children’s “already told” in other children have when uncles, defendants. type of their group or be go along peer to order 423; at see also crowd. See id. part or use of anatomical dolls sexu- 5. The Ceci, Jeopardy in the Court- Stephen necessarily J. ally explicit materials will Analysis Children’s room: A as children provide reliable evidence Scientific (American Testimony Psych. aspects 146-50 As- subtle of the interview such as the ed.1995). repetition yes-no questions, soc. 1st In several cases where but overturned, compliance fully convictions have children in natu- been evidenced most anoth- were shown to have talked with one ralistic interview situations which the abuse, question er sib- interviewer is to about the sometimes even allowed the child gives lings questioned siblings get them freely; the child the evidence to “open up” provide incriminating necessary evi- make or attributions about the Id. at 150-51. purposes of the interview and about the dence. intents and beliefs of the interviewer. hearing May 13. Kelson testified at legal isolated, Observations of interactions in the that the children felt and withdrawn missed the nurture their mothers highlight arena fact that children who families; extended of the children said "[0]ne testify in court are not in ster- interviewed (Trial trapped, V felt isolated." Tr. Vol. many ile conditions such as found in those 694.) experiments we have reviewed. Although the children testified that Jor- dan, mother, their foster told them their uncles They usually questioned repeatedly doing things had bad been them talked to sessions, within and across sometimes abuse, them of the Jordan testified she had never ambiguous an variety about event talked the children about their uncles or told interviewers, agenda each own with their them that were their uncles bad or did bad things. acknowledged subsequently She she had and beliefs. Children are sometimes inter- things hap- told the children a lot of bad had formally informally viewed many them, pened gotten veiy specific about preceding months an official law-enforce- were, things what these bad and had told them dolls, pro- ment interview with anatomical this was not their fault. deliberately Jordan she discussing tried to avoid the sex viding opportunity for the child to ac- them, influencing abuse with the children quire scripted stereotypical knowledge acknowledged experience it that had been her might about what have occurred. parent easily suscepti- a foster that children are suggestion ble to and influence adults. Id. at 425. The authors conclude with these telling also Brock denied ever the children comments: explaining that their uncles were bad or to them Our review the why they literature indicates that being away. taken The chil- provided dren's versions and other evidence am- children can indeed led to make false or ple proposed expert's opinion. foundation for crucial, reports very per- inaccurate about above, As reported mentioned Kelson sonally experienced, central events. circle”; group she talked “talk group agen- seemed have discussed an Therefore, importance it is of the utmost among da themselves each week and that to examine the prevalent conditions at the *17 ringleader. Testimony T.R. the was at trial original of report time a child’s about a Jordan, Kelson, agents reflects that and FBI judge criminal event in order to the suita- spoke questioned to and the children bility using of that child as a witness the groups about the abuse. particularly court. It important seems The summary relating Ceci-Bruck article’s know the circumstances under which the interviewing of children stated: made, report initial of concern was how provide
The on interviewing many studies evi- times the child questioned, the suggestibility dence that hypotheses effects are influ- ques- the interviewers who by dynamics child, enced the of the interview questions tioned the the kinds of the itself, knowledge possessed asked, the or beliefs consistency child was the the (especially the interviewer report period one who is child’s over a If of time. the child), unfamiliar with the the emotional child’s disclosure was made in nonthreat- questioning, tone of the props ening, nonsuggestible and the atmosphere, if the attempt good used. Children to be conver- repeated disclosure was not made after partners by interviews, complying sational with what if the adults who access to they perceive to prior be the belief of then- testimony the child questioner. perceptions, Their and thus not motivated to distort the child’s recol- suggestibility, may through potent be influenced lections sug- relentless and deprived if exclusion the de- outright coaching, and the this issue and its
gestions and
rights.
highly
of substantial
original report remains
con-
fendants
child’s
time, then
period of
the
over a
sistent
majority
evidentiary
the
The
considers
er-
capable
judged
to be
young child would
jury
ror harmless because the
received evi-
forensically
rele-
much that
providing
interviewing techniques,
about
learned
dence
any of these condi-
The absence of
vant.
affecting
alleged
social
influences
itself invalidate a
and of
tions would
respond
them
victims
listened to
to the
testimony,
it
to raise
ought
but
child’s
addition,
prosecution’s leading
In
questions.
in mind of the court.
cautions
generally
jury
Underwager
heard
Id. at 432-33.
adults
describe how
can influence children’s
impact
memories and
these influences
Rouse,
at 569-72.
references
Other
Further,
alleged
credibility.
on the
victims’
reliability
expert’s
supported
also
Dr. Underwager’s
counsel relied on
defense
testimony.14
testimony
argue
implanted
theory
dispute that
majority does not
The
Thus,
memory.
majority
asserts that the
by excluding
offer
district
erred
jury
an “informed
on which to
received
basis
excluding
proof,
affirms on the basis that
make its ultimate determinations
to the
testimony
error.
amounted to harmless
credibility,”
testimony
victims’
majority
differing
views on the
*18
(1986);
2147,
States v.
pert’s opinion, reflected the scientific II. CONCLUSION need for assistance to understand the evi- reasons, foregoing evidentiary For the regarding suggestibility dence chil- harmless; rather, question error in was not memory. dren’s substantially its exclusion harmed defen- Fourth, majority, ground if even dants. The circumstances this case raise acknowledges for new that the record question validity close as to the of the verdict prejudice by contains one some evidence of and, therefore, grant I would the defendants jurors against or more Native Americans. a new trial. 572-73; Rouse, Maj. Op. See see also prejudice If slight F.3d at 577-78. even members,
existed in one more evi- credibility challenging
dence the chil- testimony against
dren’s the Native Ameri- important help
can defendants would be any juror’s prejudice.
overcome
Finally, as a result of the exclusion expert’s opinion, argu- the defense counsel’s DICKEY, Appellee, James M. implanted young about ment memories of the represented empty unsup- witnesses words ported by majority evidence. The refers MISSOURI, ROYAL BANKS OF a Mis- argument of the defense counsel: Banking Corporation, souri State questions were asked over and over Trigg-Brown, Individual, Ap- Laurie and, again story and over when the came pellants. it, way out the the adults wanted then the rewarded____ No. 95-4207. [Wjhen children were testifying you [J.R.] was ... did notice Appeals, United States Court of prosecutor] phrased ... [the most of the Eighth Circuit. questions in a manner in which she would get positive response, a “Yes” an- Submitted Nov. Underwager] swer---- [Dr. talked about April Decided children, people the influence that have on when interview kids. He talked memory, process
about of reconstruc- tion, implantation memory, play-thera- worthless____
py, only The children felt answering
comfortable ‘Tes” or “No”.
They memory didn’t show of the events. used, Agent’s diagram
The FBI that he drawing body of the male with the in,
penis drawn what did that tell the kids Everything
that he talk wanted to about? *19 produce
was calculated to some sort of kids____ compliance with these
Maj. Op. Because the district court
erroneously expert’s opinion excluded the suggestive interrogation techniques po- notes accords with the children’s “free recall.” prior, in the vacated proof set forth offer of at Maj. Op. panel opinion at 100 F.3d 582-85. First, my disagree five I reasons. I examine this harmless error conten- now record, reading of the no “free recall” state- tion. Instead, all ments the children exist. subject adult influ- early statements were HARM- B. THE ERROR WAS NOT ences. LESS Second, needed the excluded ex- determining In the district court’s whether pert truly to render informed rejection proof the defen- the offer of error, testi- judgment about whether children’s harmless we dants’ constituted memory. implanted Ac- mony rely Procedure resulted Federal Rule of Criminal on 52(a). cording to Dr. and authoritative That rule states: above, home writings discussed the foster (a) error, Any de- Harmless Error. workers, FBI persons, social fect, irregularity or variance which does permitted judge used or even the district rights shall be disre- not affect substantial potentially investigative questioning coercive garded. Thus, investigators techniques. if used consider, then, the court’s error We whether techniques, with the best of mo- even these substantially rights the defendants’ affected faulty tives, they false or potentially induced or had more than a and whether it influenced testimony. jury, howev- memories and jury. slight on the Crane v. influence See er, recognize possibly coer- these would Kentucky, 106 S.Ct. 476 U.S. without the assistance of cive influences