___________
No. 95-1554
___________
United States of America, *
*
Plaintiff-Appellee, *
*
v. *
*
Desmond Rouse, *
*
Defendant-Appellant. *
___________
No. 95-1556
___________
United States of America, * Appeals from the United States
* District Court for the
Plaintiff-Appellee, * District of South Dakota.
*
v. *
*
Jesse Rouse, *
*
Defendant-Appellant. *
___________
No. 95-1558
___________
United States of America, *
*
Plaintiff-Appellee, *
*
v. *
*
Garfield Feather, *
*
Defendant-Appellant. *
___________
No. 95-1559
___________
United States of America, *
*
Plaintiff-Appellee, *
*
v. *
*
Russell Hubbeling, *
*
Defendant-Appellant. *
___________
Submitted: October 16, 1995
Filed: November 12, 1996
___________
Before McMILLIAN, BRIGHT, and LOKEN, Circuit Judges.
___________
BRIGHT, Circuit Judge.
Four young Native American men face combined sentences of more than
120 years for alleged child abuse. These convictions rest upon testimony
of young children, the alleged victims, with some support from findings on
medical examinations of the children.
These defendants are Jesse Rouse, Desmond Rouse, Garfield Feather and
Russell Hubbeling. They and a fifth defendant, Duane Rouse, who was
acquitted by the jury, faced twenty-three counts of aggravated sexual abuse
of children under the age of twelve years in violation of 18 U.S.C.
§ 2241(c). The events allegedly occurred at family residences on a South
Dakota Indian Reservation.
The jury found Jesse Rouse guilty of two counts of sexual abuse;
Desmond Rouse guilty of three counts; Garfield Feather guilty of four
counts and Russell Hubbeling guilty of two counts. These counts related
to alleged abuse of five young Native American
-2-
children. The children are referred to by initials in the text of this
opinion. The jury acquitted the defendants of the remaining charges.
The appellants raise twelve allegations of error in the trial of the
case.1 We grant relief on two issues: (1) refusal to allow expert opinion
testimony by a court appointed psychologist that the children's evidence
and testimony became tainted by suggestive influences to which the children
were subject in the investigation and trial, which influences included
taking the children (the alleged victims and nine other children) from
their families and from their residences and (2) denial by the trial court
of the defendants' motion for independent psychological examination of the
allegedly abused children--in light of the circumstances of the case.
1
These issues include: 1) whether the trial court properly
excluded testimony regarding alleged past sexual activity of the
victims; 2) whether the trial court abused its discretion in
denying the defendants' pretrial and mid-trial motions for a
third medical examination of the child victims in this case; 3)
whether the trial court abused its discretion in denying the
defendants' motion for an independent psychological exam; 4)
whether the trial court properly allowed under Federal Rule of
Evidence 803(24) the admission of hearsay statements of the child
victims; 5) whether the trial court erred in denying defendants'
motion for new trial based on juror misconduct; 6) whether the
trial court erred in finding that the government established
jurisdiction on Count XVII (establishing jurisdiction that the
alleged abuse did not occur on the reservation); 7) whether the
trial court erred in allowing the government to reopen its case
after the defense moved for judgment of acquittal; 8) whether the
trial court properly excluded expert testimony as to
suggestibility and memory; 9) whether the trial court abused its
discretion in refusing to admonish defense witness Ellen Kelson
during the course of her direct examination; 10) whether the
trial court abused its discretion in allowing the child witnesses
to testify via closed circuit television; 11) whether the
defendants were denied due process right to fair trial when the
Department of Social Services, as custodian of the child
witnesses, denied defendants access to the children for pretrial
interviews; and 12) whether the trial court abused its discretion
by not conducting the competency hearings of the child witnesses.
-3-
Accordingly, the appellants are entitled to a new trial on these
grounds.
Sufficiency of the evidence is not an issue. However, an examination
of the record establishes that the medical evidence was inconclusive as to
abuse or abuse by the defendants and that the children's reports of abuse
may have been tainted by the influence of social workers and law
enforcement officials who investigated and prepared the government's case.
The crucial issue for determination by the jury was this -- did the
young children testify from their own memory of events or was a false
memory induced during investigation by the methods by which those children
were interrogated? Some of the evidence presented in the case suggests
that the children may have had induced memories that sexual abuse occurred.
While that issue remained for the jury, the jury evaluated the children's
evidence of abuse without the benefit of a qualified defense child abuse
expert who would have assisted the jury by explaining that the children had
been subjected by state investigators to "powerful and coercive
influences."
We briefly address the merits of some of the other errors alleged by
the defendants. This commentary may be helpful with respect to the retrial
of this case. See United States v. Azure, 801 F.2d 336, 341 (8th Cir.
1986).
First, the trial court's discretionary ruling which denied defendants
a further independent medical examination leaves inconclusive the abuse
conclusions resting on medical findings. This uncertainty in the evidence
is further accentuated because the physician did not document findings with
photographs.
Second, in light of the background of this case, the district court's
exclusion of testimony relating to inter-child sexual
-4-
activity among the alleged victims and other children on the reservation
deprived the defendants of important evidence indicating another possible
source relating to any physical manifestations of abuse. This issue may
arise in the new trial.
Third, because of the possible influences on the memories of the
children by social services personnel and other investigators and the lack
of access to the children, the district court prejudicially erred in
refusing to authorize an independent psychological examination.
Fourth, although not reversible error, the allegations of one juror's
racism and that juror's contention that racial jokes regarding Native
Americans were told in the jury room are troubling.
With respect to conditions that can influence children's memories,
we are mindful of a historical event of some three hundred years ago (the
Salem, Massachusetts witch trials) where child witnesses ages five to
sixteen (the "circle girls") claimed to see persons (the defendants) flying
on broomsticks and other envisaged celestial apparitions. Based on this
testimony, nineteen alleged witches were put to death and a dozen others
avoided executions by testifying to witchery, that which was not.2
This case, of course, is not a Salem witch hunt, but that history
must remind us that memory, particularly children's memory, may be falsely
induced. Where that occurs, the testimony may be true in the child's mind,
but false in fact.
2
Stephen J. Ceci & Maggie Bruck, Jeopardy in the Courtroom:
A Scientific Analysis of Children's Testimony 8 (1995).
-5-
I. BACKGROUND
Five-year-old R.R. lived with her grandmother Rosemary Rouse on the
Yankton Sioux Reservation in Marty, South Dakota, during the summer and
fall of 1994. R.R. had been taken from her mother and placed in her
grandmother's custody. She had been unhappy about living with her
grandmother and had wanted to stay with her mother. After R.R. told a
teacher that her grandmother was mean to her and was not feeding her, the
Yankton Sioux Tribe's Department of Social Services (Department) removed
R.R. from Rosemary Rouse's home for possible neglect and malnutrition and
placed her with foster mother Donna Jordan.3
After living with her foster mother for several months, R.R. told
Jordan that she was having nightmares and that she had been sexually
abused. Jordan scheduled an appointment with counsellor Ellen Kelson.
After interviewing R.R.--an interview which she did not audio or video
tape--Kelson immediately contacted the Department and reported that a
number of children at the Rouse residence had been sexually abused.
The next day, on January 11, 1994, apparently without any additional
evidence or investigation, the Department removed approximately thirteen
children from the Rouse home and a nearby home.4 According to the
evidence, squad cars pulled up and the children were physically removed
while they cried and clung to their uncles' and other adults' legs. Jean
Brock, a social worker for the Department, transported the children to
Jordan's foster
3
Jordan testified and Department file notes reflect that
R.R. subsequently had problems at school when she lied about her
teachers on occasion in order to get them in trouble when she
felt she was not getting enough attention.
4
At that time, T.R. was seven years old, L.R. was six, J.R.
was four, and F.R. was a twenty-month infant. These four and
R.R. were the only alleged victims at the defendants' trial.
-6-
home, and told the children it was their uncles' fault that they were being
taken away because the uncles were doing "bad things" to them. On her
initial intake sheet, Brock noted that "the children love the adults," but
that the home was messy.
Brock and Jordan told the children they could not go home until they
told the "truth" about their uncles. Both alleged victims and non-victim
children testified that Brock and Jordan repeatedly told them that they
were taken away from their homes because their uncles did bad things to
them and that they could safely go home only after they told the "truth"
about their uncles and all these bad things got fixed. In fact, T.R.
remembered later telling Kelson "that to say the truth is to say that your
uncles did things to you," and that "[i]f you tell the truth you get to go
home." When the district court asked J.R. what it means to tell the truth
at her in camera competency examination, J.R. responded, "[y]ou mean you
can go home."
Despite this encouragement to accuse their uncles, many of the
children repeatedly denied being abused, and approximately nine children
who consistently and adamantly denied being abused were allowed to go home
to their parents.5 Those children who claimed that abuse occurred were not
allowed to see their parents until approximately six months later in July
1994 (just before trial), despite repeated requests by the children and
parents and a tribal court order. T.R. testified that she did see her
mother once during this time period after repeated requests to do so.
Nevertheless, both Brock and Kelson sat in on the parent-child meeting and
took notes.
5
Some parents reported that they had been told their
children would be taken away again if they talked to or
cooperated with defense counsel. One parent testified her
children were kept from her for about one month before she got a
lawyer and went through the Bureau of Indian Affairs (BIA).
-7-
Beginning in January 11, 1994, the children all lived in Jordan's
home. Jordan told them this situation was not their fault; she told them
their uncles were at fault and she got very specific about the "bad" things
their uncles were doing to them.
Dr. Richard Kaplan, a pediatrician, initially examined the children
in Jordan's presence on January 15, 1994. At that time, he could not
diagnose any of the children as having been abused, and he arranged for a
subsequent examination by Dr. Robert Ferrell, a woman's obstetrician and
gynecologist, which examination took place a month later. That doctor
reported findings consistent with sexual abuse.
After the January 15 examination and after the group of children
spent over a week in Jordan's home, FBI agent William Van Roe and BIA
Criminal Investigator Dan Hudspeth interviewed the children on two separate
days. The agents immediately identified themselves as police officers, and
Jordan and Brock sat in on the interviews. At the initial interview, R.R.
handed investigator Hudspeth a group of papers which contained statements
written by Jordan which R.R. had allegedly made to Jordan about the abuse.
J.R. testified at trial that investigator Hudspeth "helped" her
remember some things during the interview.6 Officers showed the children
an anatomical drawing of a penis. Although agent Van Roe testified he did
not ask the children leading questions, he later acknowledged that
investigator Hudspeth had asked most of the questions. Investigator
Hudspeth did not testify. The officers did not videotape any of these
interviews.
Kelson counselled the children extensively from January through July
1994. She did not videotape a single one of these
6
J.R. also testified that sometimes when she forgot things,
the grown-ups helped her remember. Trial Tr. Vol. IV at 472.
-8-
sessions. She forwarded her notes directly to the United States Attorneys
Office. During her sessions with the children, Kelson used play therapy,
art media and apparently dream journals. She met with the children first
as a group ("talk circle") and then individually. She felt very strongly
that these children decided before coming to see her what they would share
with her because they all came in, directed the topic, and repeated the
same or similar theme.
T.R., however, denied that the children ever discussed the sexual
abuse outside the counselling sessions. Kelson reported that T.R., the
eldest alleged victim, served as the "boss" or "leader"; T.R. was "very
manipulative" and told the other children what to do. For example, R.R.,
the original complainant, identified Jesse Rouse as one of her abusers only
after T.R. did so during a group session. Tabatha Smith, another child who
lived in the Rouse home and denied any abuse, testified that before she
left Jordan's foster care, T.R. told her she was "making stuff up" about
Jesse Rouse and the uncles because she was mad at Jesse.7
The children's accusations expanded over time in a somewhat bizarre
fashion. They accused various family members (additional to defendants),
including their grandmother, of sexually abusing them. Several alleged
victims claimed their uncles tied them up with ropes during the abuse. One
child claimed the uncles locked him in the closet while abusing his sister.
T.R. testified that the uncles locked all five other children in the pantry
while they tied her up and abused her.
7
At trial, T.R. denied telling agent Van Roe that her uncles
had also sexually abused Tabatha and her sister Melanie Rouse,
another child who lived in the Rouse residence and denied abuse.
Agent Van Roe testified that T.R. had told him at the initial
interview that the uncles also had abused Tabatha and Melanie.
-9-
L.R. and J.R. also testified at trial that they had told Kelson that
the uncles had tied up their aunts and grandmother and sexually abused them
as well. Evidence at trial showed the closet had no locks, the pantry
contained so much food that not even one child would fit inside, and no
ropes were found in the house. In addition, Melanie Rouse testified that
she had previously told T.R. about an unrelated, documented sexual abuse
case in which an individual in Kentucky had tied up Melanie Rouse and
sexually abused her after he locked her brother in a closet.
In March 1994, the children were again interviewed by law enforcement
agents, and their charges had apparently expanded fantastically. Although
the defense characterized these March interviews as "rife" with
inconsistent statements by the child victims and essential to the defense,
the district court characterized them as "unreliable" and would not allow
either party to refer to the interviews at trial.
Most of the family involved in this case and also many members of the
community who testified did not believe the children were abused and had
never seen evidence of abuse, injury or fear. The children's mothers
testified they had not observed any acts of sexual abuse or mistreatment;
their children had never reported to them that they were being hurt or
otherwise abused; for the most part, the uncles did not baby-sit the
children or spend significant amounts of time with them; the children did
not reveal to their mothers any fear of their uncles; only twice had the
children ever complained of pain or discomfort in the vaginal or anal areas
(L.R. had a yeast infection and J.R. had constipation--which can cause
symptoms similar to sexual abuse); and the doctor who had examined the
children on those occasions revealed no suspicions of abuse.
Before trial, the defendants moved for independent psychological and
medical examinations and for access to the children. The district court
denied these motions. The court
-10-
excluded the defense expert's testimony that there existed in the
governmental custody and treatment of the children (through the social
services agency) a "practice of suggestibility." The district court noted
that access to the children would have to be obtained from the proper
authorities. The defendants claimed that the United States Attorneys'
Office maintained it was within the Department's discretion and the
Department maintained it was within the United States Attorneys' Office
discretion. As a result, access to the children was effectively denied.8
The district court also excluded testimony regarding inter-child
sexual activity by and between the complaining witnesses and other children
on the reservation in Marty, South Dakota, the place of residence of the
family here involved. Particularly, Moses Rouse, an eleven-year-old boy
who lived in the home, reported to investigators that he and T.R. had had
sex over a long period of time, and other child witnesses testified that
Moses and T.R. had engaged in sexual relations.9
Although defendants intimated they would be presenting evidence
generally of inter-child sexual activity and accusations of sexual abuse
of non-defendant family members in several motions and hearings weeks
before trial, they never filed a formal motion as required by Federal Rule
of Evidence 412. The day before trial,
8
In addition, Deena LaPoint, the Department's social worker
assigned to this case from May 23, 1994 through the time of trial
testified that the Department's director had been fired; that
Brock had either been fired or resigned; that LaPoint had refused
to turn over the Rouse children's Department files to defense
counsel; and that LaPoint believed another social worker had
previously shown the files to the United States Attorneys'
Office.
9
Later during the trial, the defense notified the court that
it had just received a new "FBI 302" report from the United
States Attorneys' Office that stated that "Jerome" had seen T.R.
having sex with a boy named "Tom." The district court disallowed
the evidence to cross-examine T.R., stating it would confuse the
jury and create a mini-trial.
-11-
the government filed a motion in limine to prevent defendants from
presenting such evidence at trial because they had not filed a Rule 412
motion. The district court granted the government's motion and disallowed
such evidence.
The trial took place in August 1994. The children were promised
picnics, vacations, and even a chance to return home as rewards for their
"truthful," successful testimony at trial. In fact, they were told they
could not go home until their uncles had been successfully removed.
At trial, the children were asked almost exclusively leading
questions over closed circuit television. Rather than asking the children
if the abuse occurred, the government asked them whether they had told
various third persons that abuse had occurred. On redirect examination,
J.R. basically denied that any abuse occurred.
The jury convicted Jesse Rouse of engaging in sexual acts with T.R.
and J.R. The jury convicted Desmond Rouse of engaging in sexual acts with
T.R., L.R., and R.R. The jury convicted Garfield Feather of engaging in
sexual acts with T.R., L.R., and J.R. The jury convicted Russell Hubbeling
of engaging in sexual acts with T.R. and F.R. The jury found the
defendants not guilty of the various remaining charges and acquitted the
remaining defendant Duane Rouse. The district court sentenced Jessie Rouse
to 33 years imprisonment, Desmond Rouse to 32 years imprisonment, Garfield
Feather to 30 years imprisonment, and Russell Hubbeling to 30 years
imprisonment.
After the trial, a community member called the clerk's office and
reported that she worked with one of the jurors who had often expressed a
serious racial prejudice against Native Americans and had revealed that
jurors told jokes regarding Native Americans in the jury room. The
district court held a series of evidentiary
-12-
hearings on this issue, but denied defendants' motion for a new trial on
this issue. The court sentenced each defendant to approximately thirty
years imprisonment.10
II. DISCUSSION
A. EXPERT TESTIMONY ON PRACTICES OF SUGGESTIBILITY IN THE
INVESTIGATION
At trial, the defense offered the testimony of Dr. Ralph Charles
Underwager. Dr. Underwager is a clinical psychologist and has been
practicing his profession or teaching psychology for approximately twenty
years. He has conducted extensive research and writing in the area of
child sex abuse and is familiar with extensive psychological research into
this subject during the past ten years. His expertise has not been
challenged by the prosecutor, only the substance of his testimony.
The crucial question and answer (made by offer of proof) follows:
Q And based on your review of [the trial testimony] and your
review of the records, all the files in this matter, is it your
belief that there's been a practice of suggestibility employed in
these techniques?
A Yes, sir.
10
The background matters include testimony offered or
introduced by defendants as well as the prosecution. This
evidence bears on the issues discussed in this opinion--expert
opinion evidence excluded and denial of independent psychological
examination. Because sufficiency of the evidence to convict is
not an issue, we do not resolve conflicts in the evidence in
favor of the prosecution. We observe that some incidents related
here are not in dispute; others, however, are sharply disputed.
-13-
(Trial Tr. Vol. IX at 1768.) The state objected to the offer as an area
"within the province of the jury and not within something that an expert
should testify on." (Trial Tr. Vol. IX at 1771.)
The court rejected the offer as essentially not the subject of expert
testimony and not reliable or relevant under Federal Rule of Evidence
104(a) and confusing and misleading to the jury under Federal Rule of
Evidence 403. The court rejected any proposed testimony directly relating
to the credibility of the alleged abused victims as witnesses, but more
than that barred the expert witness from testifying on whether or not the
investigative practices constituted "a practice of suggestibility."
The court erred in its analysis. The jury needed and was entitled
to have this evidence in evaluating whether the sexual abuse testified to
by the children actually occurred. The testimony was relevant, proper,
in keeping with our case law and crucial to the defense under the
circumstances of this case. The denial of that testimony constituted
prejudicial error.
1. The "Daubert" Analysis for Soft Science
In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the
Supreme Court addressed the standards of admissibility for scientific
evidence under Federal Rule of Evidence 702.11 The Court rejected the
general acceptance test for novel scientific testimony from Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923),
11
Rule 702 provides:
If scientific, technical, or other
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education, may
testify thereto in the form of an opinion or
otherwise.
-14-
and asserted flexible guidelines for admissibility of scientific evidence
under Rule 702.
Under Daubert, the trial judge plays a "gatekeeping" role, ensuring
that all scientific testimony or evidence admitted is both reliable and
relevant. Daubert, 509 U.S. at 589 n.7, 597.
The Daubert opinion emphasized first that the expert must testify to
scientific knowledge. "[T]he requirement that an expert's testimony
pertain to `scientific knowledge' establishes a standard of evidentiary
reliability." Id. at 590 & n.9. Knowledge "applies to any body of known
facts or to any body of ideas inferred from such facts or accepted as
truths on good grounds." Id. at 590 (quoting Webster's Third New
International Dictionary 1252 (1986)).
The Court explained scientific knowledge in terms of a theory or
technique that (1) can be and has been tested, (2) has been subjected to
peer review, (3) has a known or potential rate of error (when technique is
scientific), and (4) has been generally accepted by the scientific
community. Id. at 593-94.
The touchstone under Rule 702 is reliability. As the opinion states,
"under the Rules the trial judge must ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable." Id.
at 589.
Furthermore, the knowledge must "assist" the trier of fact. That is
a relevance issue. Id. at 591. The key question for the trial judge in
determining relevance under Federal Rule of Evidence 104(a)12 is whether
the expert proposes to testify to (1)
12
Rule 104(a) provides that "[p]reliminary questions
concerning the qualification of a person to be a witness, the
existence of a privilege, or the admissibility of evidence shall
be determined by the court," subject to relevancy considerations.
-15-
scientific knowledge that (2) will assist the trier of fact to understand
or determine a fact in issue. Id. at 592.
The Daubert opinion, while dealing with scientific evidence,
specifically noted that the discussion was limited to a scientific context
that was the nature of the expertise offered in that case. The discussion
in the case does not apply to "technical, or other specialized
knowledge[,]" but only to "scientific knowledge." Id. at 590 n.8.
Here, we deal with a social science in which the research, theories
and opinions cannot have the exactness of hard science methodologies such
as blood tests, DNA, spectrographic evidence or chemical exposures with
which Daubert dealt. As observed in a recent article, Daubert principles
may not fully apply to certain social science evidence.
Application of Daubert criteria to behavioral and social
science evidence, particularly psychological syndromes, is
problematic for two reasons: (1) judges' level of
understanding of scientific principles and methodology may ill
prepare them to evaluate science, including social science, as
now required by Daubert and (2) the nature of certain social
and behavioral science theories may be inherently inconsistent
with Daubert criteria such as "falsifiability" and "error
rates."
James T. Richardson, et al., The Problems of Applying Daubert to
Psychological Syndrome Evidence, 79 Judicature 10, 10-11 (July-Aug. 1995);
see also Berry v. City of Detroit, 25 F.3d 1342, 1349 (6th Cir. 1994),
cert. denied, 115 S. Ct. 902 (1995). But see Rincon v. United States, 114
S.Ct. 41 (1993) (summarily remanding case for reconsideration in light of
Daubert where expert testimony about reliability of eye witness testimony
at issue).
The standard of review for admission of expert testimony is abuse of
discretion. See Cook v. American S.S. Co., 53 F.3d 733,
-16-
738 (6th Cir. 1995). The Supreme Court recently revisited the "abuse of
discretion" standard in Koon v. United States, ___ U.S. ___, 64 U.S.L.W.
4512, 4517 (Jun. 13, 1996):
Little turns, however, on whether we label review of this
particular question abuse of discretion or de novo, for an
abuse of discretion standard does not mean a mistake of law is
beyond appellate correction. Cooter & Gell, [496 U.S. 384] 402
(1990). A district court by definition abuses its discretion
when it makes an error of law. 496 U.S., at 405. That a
departure decision, in an occasional case, may call for a legal
determination does not mean, as a consequence, that parts of
the review must be labeled de novo while other parts are
labeled an abuse of discretion. See id., at 403 (court of
appeals should "apply a unitary abuse-of-discretion standard").
The abuse of discretion standard includes review to determine
that the discretion was not guided by erroneous legal
conclusions.
2. Offer of Proof
With this background, we examine Dr. Underwager's foundation and
compare that foundation and his commentary on suggestibility with the
status as of the time of trial of psychological research and writings
concerning child witnesses and their susceptibility to faulty memory. As
noted above, in the defense's offer of proof, Dr. Underwager testified
outside the presence of the jury that from his review of the files, records
and testimony in this matter, there had been "a practice of suggestibility
employed in these techniques." (Tr. Vol. IX at 1768.)
He further testified outside the presence of the jury that Kelson's
notes revealed she had exerted a massive influence over the children; she
had a powerful prior assumption or conclusion that the children had been
abused; and she engaged in highly suggestive and contaminating practices,
such as the groups and questioning. Dr. Underwager testified the
prosecutor asked the children only if they remembered reporting an incident
to a
-17-
particular individual (FBI agent, social worker, etc.), rather than whether
they remembered the incident itself; the prosecutor used exclusively
leading questions in the courtroom and the children's comfort level showed
they were used to this type of questioning. He testified that studies show
that adults almost always rely on leading questions given the task of
finding something out from a child.
Dr. Underwager found the FBI's use of sexually explicit diagrams very
suggestive and leading, and asserted the evidence does not show such
diagrams accomplish anything other than to suggest to the child that the
interviewer is interested in sexual behavior.
He testified that a large body of research shows that the presence
at an interview of several adults--people of relatively high status--
increases the conformity and compliance with what those adults expect from
a child.
Dr. Underwager testified that the documents from the case files and
courtroom testimony suggested to him that powerful and potentially coercive
influences had been brought to bear on the small four- and five-year-old
children who were taken without notice from their mothers, families and
homes, without being told the reasons and kept incommunicado in a strange
place where all the people around them urged them to talk about sex abuse.
(Tr. Vol. IX at pp. 1768-74.)
The district court concluded that this expert testimony was not the
sort even contemplated by Daubert, did not pass the initial Rule 104(a)
threshold inquiry with regard to either reliability or relevancy, and could
well mislead the jury.
Here, the court misinterpreted our precedent and applied Daubert
incorrectly to bar this evidence. The defense fulfilled
-18-
the requirements of Daubert. The witness did not purport to testify that
witnesses had in fact succumbed to any suggestive aspects of the
investigation; only that the investigative means in this case were
consistent with the psychological studies that similar techniques operated
suggestively on young children. In addition, every condition which Dr.
Underwager attempted to testify to as creating a practice of suggestibility
has been amply demonstrated in the psychological literature as producing
undue suggestibility in children's testimony. The importance and relevance
is apparent.
The remaining question is whether the answers assist the jury. By
excluding the expert testimony, the district court assumed the jury could
do without the informed opinion of the expert--that from the files and
records and testimony a practice of suggestibility has been employed in the
investigative techniques used on young children. That assumption minimizes
almost 100 years of extensive research in this area of psychology--
information which is beyond the knowledge or experience of the average
individual.
3. Reliability of the Offered Testimony
We have examined both the evidence and the literature presented to
the district court and conclude that both support the defendants' offer of
proof. In particular, the district court made reference to a recent
article by Stephen J. Ceci and Maggie Bruck, Suggestibility of Child
Witnesses: A Historical Review and Synthesis, 113 Psychological Bulletin
403-439 (1993), which reviews the research and writing on the subject and
supports the view that the very matters observed and testified to by Dr.
Underwager can produce biased, untrue or false memories in children, and
more particularly young children. Almost all the other literature
presented to the court is consistent with the Ceci-Bruck article.
-19-
The Ceci-Bruck article does not state that young children should not
testify but observes that many common interviewing practices can produce
an altered memory. Among other things, the article documents adequate
research indicating the following:
1. A subject's, particularly a child's, original verbal answers are
better remembered than the actual events themselves, yes-no questioning
leads to more error, and young children are particularly vulnerable to
coaching and leading questions. Id. at 406-09.
A review of the record here reveals the children were asked entirely
leading questions in court. Even though the children testified by
television outside the presence of defendants, the prosecutor asked
suggestive questions. Not only did the questions call only for yes or no
answers, the children were asked only if they remembered reporting abuse
to law enforcement officers, doctors, and their therapist, rather than
whether they remembered the alleged abuse itself.
The questioning at trial represents a highly questionable aspect of
testifying about an event. This is exactly what Dr. Underwager described
in his offer of proof.
2. Children desire to comply or cooperate with the respected
authority figure interviewer and will attempt to make answers consistent
with what they see as the intent of the questioner rather than consistent
with their knowledge of the event even if the question is bizarre. Id. at
418-19. Interviewer bias can skew results as a child will often attempt
to reflect the interviewer's interpretation of events, particularly when
more than one interviewer shares the same presuppositions. Id. at 422.
If the interviewer's original perception is incorrect, this can lead to
high levels of inaccurate recall.
-20-
Here, these children were taken from their homes on the basis of a
five-year-old's statements, and were placed under the sole supervision and
influences of Donna Jordan, Jean Brock, and Ellen Kelson--interviewers who
had decided at the outset that all the children had been sexually abused.
The FBI agents were also strong authority figures--the kind of high
status interviewers described by Dr. Underwager--with preconceived notions
about the facts of this case, and they did not interview the children until
after the children had been with Jordan for over a week. Agent Van Roe
testified that he had explained his status as an FBI agent at the initial
interview and told the children that an FBI agent was like a policeman on
the reservation. Van Roe testified that Jean Brock and foster mother Donna
Jordan remained in the room while FBI agents conducted the initial
interviews of the children on January 19 and 21, 1994--over a week after
the children were taken from their parents' homes, told by Jordan and Brock
that this was because their uncles had done bad things to them, and put
into the care of Jordan.
At this initial interview, R.R. handed investigator Hudspeth a group
of papers which reflected things she had previously told foster mother
Donna Jordan which Jordan had written down for her. Thus, agents received
a frame of reference which could produce bias, even before the start of the
interviews.
3. Repeated questions can produce a change of answers as the child
may interpret the question as "I must not have given the correct response
the first time," and the child's answers may well become less accurate over
time. Id. at 419-20. Repeated questioning of victims often results over
time (or even within a single interview) in an inaccurate report.
A three-month hiatus existed from the time R.R. was taken from her
home to the time of her complaints of sex abuse. These
-21-
children were repeatedly questioned by Brock, Jordan, Kelson, doctors and
law enforcement agents. By March 1994, the children's accounts of the
familial sexual abuse were so skewed that the district court refused to
admit these interviews into evidence.
4. Younger children are more susceptible to suggestibility than older
children, especially in the context of stereotyping. Id. at 407, 417.
Stereotypes organize memory, sometimes distorting what is perceived by
adding thematically congruent information that was not perceived, and
stereotype formation interacts with suggestive questioning to a greater
extent for younger rather than older children. Id. at 416-17. Studies
have shown children are particularly susceptible to an interviewer's "bad
man" stereotype, and when repeatedly told the actor is a bad man, they may
construct a false account of an event often embellished with perceptual
details in keeping with the stereotype. Id.
Here, various persons told the children from the beginning that the
defendants were "bad" and that it would not be "safe" to go home until the
defendants were gone. The children remained isolated from their families
13
and community. The "bad man-uncle" theme was replayed again and again,
including at trial.14 In
13
Kelson testified at a hearing in May 1994 that the
children felt isolated and withdrawn and missed the nurture of
their mothers and extended families; "[O]ne of the children said
they felt trapped, isolated." (Trial Tr. Vol. V at 694.)
14
Although the children testified that Jordan, their foster
mother, told them their uncles had been doing bad things to them
and talked to them of the abuse, Jordan testified she had never
talked to the children about their uncles or told them that their
uncles were bad or did bad things. She subsequently acknowledged
she had told the children a lot of bad things had happened to
them, had gotten very specific about what these bad things were,
and had told them this was not their fault. Jordan testified she
deliberately tried to avoid discussing the sex abuse with the
children or influencing them, but acknowledged that it had been
her experience as a foster parent that children are easily
susceptible to suggestion and influence by adults.
Brock also denied ever telling the children that their
-22-
addition, the children testified via closed circuit television based on
their "fear" of defendants. While closed circuit television, other
security procedures at the courthouse, and disallowing the children to see
any family members before the trial did not amount to trial error, those
procedures served to reinforce the children's "bad men" stereotype of their
uncles, the defendants.
5. The use of anatomical dolls or sexually explicit materials will
not necessarily provide reliable evidence as children may be encouraged to
engage in sexual play with dolls, etc., even if the child has not been
sexually abused, and further no normative data exists on non-abused
children's use of dolls. See id. at 423-25.
The second law enforcement (January 21) interview took place at the
United States Attorney's Office with the Assistant United States Attorney
present. The children saw an anatomical drawing of a penis. Later, Kelson
utilized play therapy and art media, and apparently dream journals. Dr.
Underwager testified that exposing children to these materials suggests to
them that the authority figure wants information about sex.
6. "[A] major conclusion is that contrary to the claims of some,
children sometimes lie when the motivational structure is tilted toward
lying." Id. at 433. Patterns of bribes for disclosures, implied threats
in nondisclosures, or insinuations that peers have already told
investigators of suspects' abusive behavior are highly suggestive. Id. at
423. Children will lie for personal gain, and material and psychological
rewards need not be of a large magnitude to be effective. Id.
uncles were bad or explaining to them why they were being taken
away. The children's versions and other evidence provided ample
foundation for the expert's proposed opinion.
-23-
Here, the children were promised picnics, vacations and even a chance
to return home as a reward for their "truthful," successful testimony at
trial. They were told they could not go home until their uncles had been
successfully removed. Experts are critical of this kind of reward as
"bribing" children to "admit" abuse or give abuse-consistent answers, such
as promising to end the interview, or giving them other tangible rewards.
Such techniques affect the accuracy of children's reports.
7. Dr. Underwager testified regarding the concept of "cross-
germination" among the children. Children in studies and in actual cases
have shown that peer pressure or interaction with other children has
effects on the accuracy of their reporting: they will provide an
inaccurate response when other children have "already told" in order to go
along with a peer group or be part of the crowd. See id. at 423; see also
Stephen J. Ceci, Jeopardy in the Courtroom: A Scientific Analysis of
Children's Testimony 146-50 (American Psych. Assoc. 1st ed. 1995). In
several cases where convictions have been overturned, children were shown
to have talked with one another about the abuse, sometimes even siblings
questioned siblings to get them to "open up" or provide incriminating
evidence. Id. at 150-51.
As mentioned above, Kelson reported that she talked to the group in
"talk circle"; that the group seemed to have discussed an agenda among
themselves each week and that T.R. was the ringleader. Testimony at trial
reflects that Jordan, Kelson, and FBI agents spoke to and questioned the
children in groups about the abuse.
The Ceci-Bruck article's summary relating to interviewing of children
stated:
The studies on interviewing provide evidence that
suggestibility effects are influenced by the dynamics of the
interview itself, the knowledge or beliefs possessed by the
interviewer (especially one who is unfamiliar with
-24-
the child), the emotional tone of the questioning, and the
props used. Children attempt to be good conversational
partners by complying with what they perceive to be the belief
of their questioner. Their perceptions, and thus their
suggestibility, may be influenced by subtle aspects of the
interview such as the repetition of yes-no questions, but their
compliance is evidenced most fully in naturalistic interview
situations in which the interviewer is allowed to question the
child freely; this gives the child the evidence to make the
necessary attributions about the purposes of the interview and
about the intents and beliefs of the interviewer.
Observations of interactions in the legal arena highlight
the fact that children who testify in court are not interviewed
in sterile conditions such as those found in many of the
experiments we have reviewed. They are usually questioned
repeatedly within and across sessions, sometimes about an
ambiguous event by a variety of interviewers, each with their
own agenda and beliefs. Children are sometimes interviewed
formally and informally for many months preceding an official
law-enforcement interview with anatomical dolls, providing an
opportunity for the child to acquire scripted and stereotypical
knowledge about what might have occurred.
Id. at 425. The authors conclude with these comments:
Our review of the literature indicates that children can indeed
be led to make false or inaccurate reports about very crucial,
personally experienced, central events.
. . . .
Therefore, it is of the utmost importance to examine the
conditions prevalent at the time of a child's original report
about a criminal event in order to judge the suitability of
using that child as a witness in the court. It seems
particularly important to know the circumstances under which
the initial report of concern was made, how many times the
child was questioned, the hypotheses of the interviewers who
questioned the child, the kinds of questions the child was
asked, and the consistency of the child's report over a period
of time. If the child's disclosure was made in a
nonthreatening, nonsuggestible atmosphere, if the disclosure
was not made after repeated interviews, if the adults who had
access to the child prior to his or her testimony are not
motivated to distort the child's recollections through
-25-
relentless and potent suggestions and outright coaching, and if
the child's original report remains highly consistent over a
period of time, then the young child would be judged to be
capable of providing much that is forensically relevant. The
absence of any of these conditions would not in and of itself
invalidate a child's testimony, but it ought to raise cautions
in the mind of the court.
Id. at 432-33.
Other psychological research and writing supports the Ceci- Bruck
article and Dr. Underwager's offer of proof. See, e.g., Maryland v. Craig,
497 U.S. 836, 868-69 (1990) (Scalia, J., dissenting) (detailing injustice
caused by erroneous testimony of children who were separated from their
parents for months and repeatedly interrogated and noting "[s]ome studies
show that children are substantially more vulnerable to suggestion than
adults, and often unable to separate recollected fantasy (or suggestion)
from reality"); Lindsay & Johnson, Reality Monitoring and Suggestibility:
Children's Ability to Discriminate Among Memories From Different Sources,
in Children's Eyewitness Memory 92 (S. Ceci, M. Toglia, & D. Ross eds.
1987); Christiansen, The Testimony of Child Witnesses: Fact, Fantasy, and
the Influence of Pretrial Interviews, 62 Wash. L. Rev. 705, 708-711 (1987);
Debbie Nathan, Justice in Wenatchee, N.Y. Times, Dec. 19, 1995, at A19
(testimony of children increasingly being discredited in sex-abuse cases;
children who have not been abused sometimes re-enact purported sexual
trauma with anatomically detailed dolls or adopt fantasies complete with
visceral details when prompted; videotaped pretrial interviews in some
cases have helped prompt jurors to acquit defendants); Daniel Goleman,
Studies Reveal Suggestibility of Very Young as Witnesses, N. Y. Times, June
11, 1993, at A1.
Indeed, the prosecutor's child abuse expert, Tascha Boychuk of the
Child's Advocacy Center, Phoenix, Arizona, who testified at a pretrial
hearing stated, "[i]f the question is can a child's memory
-26-
be falsified, certainly the probability and the likelihood is yes. We see
situations of that. Yes."
The reality of children's susceptibility to suggestive interview
practices is well-established in the literature and the necessary analysis
is beyond the ken of a non-professional.15 The expert's foundation related
the coercive factors that can influence testimony. The defense provided
the court with an abundance of literature supporting the expert's
explanation relating to the existence of coercive factors in this case.
Yet the court declined to allow the testimony.
4. Eighth Circuit Caselaw Regarding Similar Testimony
Although the district court correctly precluded Dr. Underwager from
testifying about the ultimate issue of the children's credibility, he
should have been allowed to testify regarding the suggestibility of the
techniques employed in this case and whether they could have affected these
children's memories.
We see no essential difference in this testimony, and in a qualified
expert opining that an abuse victim's symptoms are consistent with sexual
abuse syndrome, battered woman syndrome,
15
One juror in this case told a co-worker that the alleged
victims only recalled they had been abused after "a lot of
counselling." (Juror Misconduct Hr'g 10\26\96 at 45.) This
statement indicates that the juror may have believed long delay
and persistent, lengthy questioning of young children would
likely produce truthful testimony. As we have demonstrated, the
contrary has been well-established.
This statement, if made, would underscore the desirability
and necessity of expert opinion on the subject as offered by Dr.
Underwager. The district judge in the present case himself
allowed Dr. Underwager's co-author, Dr. Hollida Wakefield, to
give expert witness testimony on memory and suggestibility of
young victims under Daubert in a more recent case. See United
States v. Reynolds, 77 F.3d 253, 254 (8th Cir. 1996) (per curiam)
(affirming district court's rulings).
-27-
battered child syndrome and other recognized syndromes. See Estelle v.
McGuire, 502 U.S. 62, 70 (1991) (evidence of battered child syndrome
related to intent and its admission did not violate due process); United
States v. Norquay, 987 F.2d 475, 479 (8th Cir. 1993) (affirming admittance
of expert rape trauma syndrome evidence over defendant's objections that
this amounted to admission of others' opinions of victim's credibility
because witnesses were not allowed to state whether they believed the
victim had indeed been raped), abrogated on other grounds, United States
v. Thomas, 20 F.3d 817 (8th Cir. 1994) (en banc); United States v. Simpson,
979 F.2d 1282, 1287-88 (8th Cir. 1992) (recognizing battered woman
syndrome), cert. denied, 507 U.S. 943 (1993); United States v. Whitetail,
956 F.2d 857, 859 (8th Cir. 1992) (same); United States v. St. Pierre, 812
F.2d 417, 419-20 (8th Cir. 1987) (expert can inform jury of characteristics
found in sexually abused children and describe characteristics alleged
victim exhibits).
In United States v. Johns, 15 F.3d 740, 743 (8th Cir. 1994), we
rejected the defendant's argument that an expert impermissibly vouched for
a sexual abuse victim's credibility because implicit in the expert's
testimony was the opinion that the victim was telling the truth. We
concluded that an expert may inform the jury of the characteristics of
sexually abused children generally and may describe characteristics
exhibited by the alleged victim, but may not state an opinion that abuse
has in fact occurred. Id. Likewise, in United States v. Whitted, 11 F.3d
782, 785 (8th Cir. 1993), we determined that an expert may inform the jury
of characteristics found in sexually abused children and describe
characteristics the alleged victim exhibits. We stated that expert
opinions are not inadmissible merely because they embrace the ultimate
issue to be decided by the trier of fact, but they cannot be phrased in
terms of inadequately explored legal criteria or merely tell the jury what
result to reach. Id.
-28-
"Finally, in our landmark case of [United States v. Azure, 801 F.2d
336, 340 (8th Cir. 1986)], we stated that general testimony about a [child]
victim's ability to separate truth from fantasy, the expression of an
opinion on the similarities between a victim's claim and the evidence, and
the comparison of behavioral and testimonial patterns of a particular
victim with the behavioral patterns observed in victims in general, were
all admissible in certain circumstances." Bachman v. Leapley, 953 F.2d
440, 442 (8th Cir. 1992); see also United States v. Plenty Arrows, 946 F.2d
62 (8th Cir. 1989) (no abuse of discretion where district court allowed
health therapist to testify that victim's behavior consistent with that of
other sexually abused children); Arcoren v. United States, 929 F.2d 1235,
1239-41 (8th Cir. 1991) (expert testimony readily admissible where
psychologist testifies to mental aberrations in human behavior, when such
knowledge will help jury to understand relevant issues in case, including
helping jury to evaluate which of victim's conflicting statements were more
credible, and expert does not express her opinion as to which statements
were more credible or whether victim suffered from battered woman
syndrome), cert. denied, 502 U.S. 913 (1991).
Here, Dr. Underwager was not testifying as to whether the children
were credible, but rather to whether they were subjected to suggestive
practices. The district court erred in excluding that important testimony.
In assessing the prejudice from the exclusion of this evidence, we
do so against the backdrop of other alleged errors depriving these
defendants of a fair trial.
-29-
B. OTHER ISSUES OF CONCERN
1. Rejected Medical Examination
Although the medical evidence was inconclusive and the examiners took
no pictures, the district court denied defendants' requests for further
medical examinations. This discretionary ruling is not error, but
highlights the importance of the children's testimony and the prejudice to
defendants caused by the court's refusal to admit Dr. Underwager's
testimony.
Soon after these children were removed from their homes, the
Department arranged for some of them to undergo a medical examination by
Dr. Richard Kaplan, a pediatrician at the Yankton Medical Clinic who
examines 500 to 600 children per month. Dr. Kaplan testified that the
vaginal redness and possible trauma he observed could be consistent with
abuse or any number of possible non-abuse causes; the conditions he
observed were basically nonspecific as to cause; he could not conduct a
thorough examination while the children were awake; and based on his
limited examination, he could not positively diagnose any of the children
as having been abused.
Thereafter, on February 11, 1994, his co-worker, Dr. Robert Ferrell,
had the children placed under anesthesia and examined them with a
colposcope. Although he had received some training in the sex abuse area
seven years earlier while he was a resident, Dr. Ferrell had no special
experience in sex abuse investigations. Dr. Ferrell had never testified
in a criminal case. He did not take photographs of his colposcopic
examinations, although the process would have been easy and helpful in this
case.
Dr. Ferrell admitted that neovascularization (redness in the vaginal
areas), decreased anal tone, and hymenal tags can be common place
occurrences resulting from many different "everyday
-30-
occurring" causes. He did make a post-operative diagnosis that F.R.
indicated evidence of tearing and scarring of the anal mucosa but otherwise
a normal anus and vagina; that R.R. had apparent damage to the hymenal ring
consistent with vulvovaginal trauma, and possible anal trauma; that L.R.
revealed a fusion and evidence of anal trauma; that J.R. had
neovascularization, clue cells and a tag or scar on the hymen. On T.R.,
the anterior portion of the hymenal ring was essentially gone; he diagnosed
vaginal and vulva trauma.
The defendants' pediatric expert, Dr. Robert Fay of Albany, New York,
testified he had prior training and experience with Native American
patients, sex abuse diagnosis and treatment, and that he had been
previously retained by both defense and prosecution in other cases. In
essence, Dr. Fay testified that the reported hymenal fusions in L.R., R.R.
and J.R. are suspicious for sexually acquired trauma; that labial injury
would be a significant finding in diagnosing sexual abuse, but that most
of the conditions observed by the doctors offered by the prosecution--such
as redness, erythema, neovascularization, vaginal furrows and ridges, a
"gaping hymen," a "hymenal notch," "clue cells," "relaxed anal tone," and
"anal folds," were of no significance in evaluating whether sex abuse had
occurred, and are found in a high percentage of non-abused children.
Dr. Fay testified he felt Dr. Ferrell was not qualified based on
training or experience to perform a colposcopic examination of a child; his
training was outdated; photographic evidence in such cases is frequently
dispositive, very helpful, and perhaps essential; and a further physical
examination of the children would be very helpful.
The literature in this area, see Jan Bays & David Chadwick, Medical
Diagnosis of the Sexually Abused Child, 17 Child Abuse & Neglect 91, 92,
95, 103 (1993), indicates that frequently findings on examination of
children allegedly sexually abused are no
-31-
different than similar findings on children who most likely have not been
subject to sexual abuse. That work indicates that a number of factors or
conditions may mimic findings caused by sexual abuse or wrongly produce a
history suggestive of child sexual abuse, including adults misinterpreting
normal masturbation or sexual play between children and a variety of other
dermatologic, congenital, traumatic and infectious conditions.16
Another leading article indicates
Even in our present state of knowledge, it is becoming
increasingly evident that, as a consequence of naturally
occurring physical changes, there will always be an overlap in
findings between nonabused children and the victims of sexual
misuse. The appreciation of this reality should serve as a
constant reminder that the determination of sexual abuse can
rarely rely on a physical examination alone and that
consideration of all the components of the investigation--
especially the information obtained from the child--is
essential.
John McCann, M.D., et al., Genital Findings in Prepubertal Girls Selected
for Nonabuse: A Descriptive Study, 86 Pediatrics 428, 438 (Sept. 1990).
We agree that, as a matter of discretion, the district court need not
have required more invasive procedures on these small children. But we
must observe that the medical testimony, while consistent with possible
sexual abuse, is inconclusive in light of other matters discussed herein.
In addition, some of that alleged trauma may have occurred from sexual
interplay and activity between and among the victims and other young
children.
16
T.R. admitted that the children had played with tampons,
but claimed they had not inserted the tampons. One of the
mothers also testified that she had once caught the children
experimenting with tampons; in particular, she believed they had
done something to F.R., who was crying.
-32-
2. Rejection by the Trial Court of Testimony
regarding inter-child sexual activity
The defendants sought to introduce testimony regarding substantial
inter-child sexual activity by and between the children in question and
other children in Marty, South Dakota on the reservation. Particularly,
an eleven-year-old boy who lived in the Rouse home told investigators that
he and T.R. had sex for a long time, and other children corroborated this
testimony. Also, during the trial, government evidence surfaced showing
that T.R. also had engaged in sexual relations with another boy. This
evidence was not placed in front of the jury however.
The children themselves provided a source of this information because
after weeks of interrogation and "counselling," the sex abuse accusations
expanded to include all sorts of family members including the grandmother.
This well may have been fantasy and bears on the reliability of the
government's case against these defendants.
Although defendants intimated that they would be presenting evidence
generally of inter-child sexual activity and accusations of sexual abuse
by non-defendant family members in several motions, the defendants did not
file a formal motion as required by Federal Rule of Evidence 412.17
The day before the trial, the government filed a motion in limine to
prevent defendants from presenting such evidence because of the absence of
a formal Rule 412 motion. The defendants responded by then filing the 412
motion, claiming they had not
17
Rule 412 allows defendants to present evidence of past
sexual activity of victims provided 1) a formal motion is filed
and a hearing is held, and 2) such evidence is constitutionally
required or offered upon the issue of whether the accused was or
was not the source of semen or the victim's injury.
-33-
received some of the relevant evidence, including L.R.'s representations
that everybody was having sex with everybody else in the house--
particularly that she was having sexual relations with her grandmother--
until the government filed its motion. The district court denied the
motion for absence of timeliness.
While that ruling can be approved based on the record in this case,
the issue is troubling because that sort of evidence would have cast
additional light on whether the alleged medical evidence of sexual abuse
could be attributed to sources other than the charged defendants. This
sort of evidence may be constitutionally required. United States v. Bear
Stops, 997 F.2d 451 (8th Cir. 1993) (reversing conviction where district
court limited admission of evidence relating to previous sexual assault on
victim to establish alternative explanation for why victim exhibited
behavior of sexually abused child).
Turning to Federal Rule of Evidence 412, that rule permits the filing
of a 412 motion during trial for good cause. See Rule 412(c)(1)(A). Where
the government only gave the defendants the FBI report regarding the second
boy during the trial, the district court's refusal to allow the defendants
to present testimonial evidence kept important information, helpful to
defendants, from the jury.
The trial court might have granted the belated Rule 412 motion.
Nevertheless, we cannot say that the trial judge abused his discretion in
strictly following the language of the statute in requiring fifteen days
advance notice to present the evidence. Inasmuch as we grant a new trial
on other grounds, the untimeliness issue should not arise on the new trial.
-34-
3. Denial of Independent Psychological Examination
The defense moved for a psychological examination of the children
stating that this examination would be crucial to the defense in
preparation of the case and observing:
The children have been subjected to countless, unrecorded
interviews by social workers, FBI and tribal officers, the U.S.
Attorneys Office and others. There is simply no way of telling
what occurred at these interviews, the nature and form of the
questions, or whether or not some children who are now
complaining witnesses, at first denied the abuse occurred, or
whether there have been retractions or recantations.
In response to the government's objections, the movants also asserted
"the stated claim in preventing contact with the child by the accused or
the appointed psychologist for the accused is to protect the children from
any further abuse or possible intimidation or harassment by the accused or
the appointed psychologist."
The movants further argued that social workers interrogated the
children several times; that the police and the FBI interrogated the
children several times; that the children were told to keep dream journals
by the foster care provider; that the children had been the recipients of
constant interrogation by the foster care provider; that the counselor had
interrogated the children on numerous occasions; that the prosecuting
attorney had interviewed the children several times; and that there had
been dozens of interrogations by various agencies involved. The movants
noted that at no time was the cry of trauma, embarrassment, invasion of
privacy and possible harassment by these interrogations raised, and that
perhaps this was because the various agencies were building their cases.
This motion was well taken.
-35-
Although it is addressed to the discretion of the district court and
the district court denied the motion on the grounds that such examination
was unnecessary and intrusive, the record in this case amply indicates that
the defendants suffered substantial prejudice by the nature of the case
against them without the opportunity to indeed show that possible
falsification in testimony had occurred because of the nature of the
government's investigations. Given their lack of access to the children
and the amount of suggestive interviewing done to support the prosecution,
we believe the defendants were entitled to an independent psychological
examination.
This belief is strengthened by the failure to videotape or audiotape
any of the investigatory or counselling interviews. Electronic recording
of child witness interviews (particularly, the preliminary interviews) is
crucial to rule out the potential influences of coaching and interrogative
suggestion. Written summaries by the adult interviewers (be it Kelson,
Jordan or law enforcement agents) are no substitute for electronic
recordings of these interviews, particularly in legal proceedings:
Although one would excuse such missing data when the allegation
was first made to parents, one would hope that it would be
normal procedure for the police, social workers, and therapists
to have recorded all interviews with the children, if the
purpose of the interview could--even remotely--be considered
"forensic."
Ceci, supra, at p. 242. No tape or audio recordings were taken of any of
the multitudinous interviews which took place in this case. Many of the
discrepancies in testimony in this case might have been resolved by a taped
record of these interviews.
In addition, some of the children's testimony reflects an element of
fantasy--possibly the tying up of practically every member of the household
and locking up multiple children in closets
-36-
in light of the previous abuse experience Melanie Rouse had shared with the
other children.18 Studies show that children will fantasize--telling
elaborate stories about an event that never happened or fabricating an
entire episode or sequence of events within a larger episode, particularly
over time on the basis of acquired interviewer stereotypes, or they may
produce convincing false narratives to explain fictitious events suggested
to them. See Ceci, supra, at 133-34, 218-222, 227; see also, Ceci & Bruck,
supra, at 407, 417 (boundaries of children's fantasy-reality distinctions
can be fragile; children's disclosures may become increasingly bizarre and
incredible, sometimes caused by interviewers not drawing children back to
reality when they made fantastic claims; and children may have trouble
distinguishing what they experienced through perception and what they only
imagined they experienced). Defendants had the right to have some of these
stories explored by an independent psychological examiner.
In light of the manner in which the prosecution, state agencies and
others had proceeded in the investigation, the district court abused its
discretion in denying the defense a fair opportunity to determine whether
the children had, in fact, been influenced by the manner in which the
investigation had taken place.19
18
For example, when J.R. was asked if she remembered a time
when she and L.R. were playing on a truck and L.R. fell and hit
her head, J.R. testified that "[L.R.] was running and she cut her
head on a window . . . on the glass on the side of the car."
L.R. testified that she had told investigator Hudspeth that her
Uncle Desmond hurt her head with a knife--had thrown it at her
because she was watching television. However, L.R. also
remembered playing with J.R. and cutting her head on the mirror
of the truck. With these obvious discrepancies, the jury
acquitted Desmond Rouse of assaulting L.R. with a knife.
19
The dangers of a suggestive and tainted investigation in
child abuse charges are highlighted by additional cases. See
Maryland v. Craig, 497 U.S. 836, 868-69 (Scalia, J., dissenting)
(citations omitted); State v. Kelly, 456 S.E.2d 861 (N.C. 1995);
North Carolina v. Wilson, 456 S.E.2d 870 (N.C. App. 1995); State
v.
Michaels, 642 A.2d 1372 (N.J. 1994); State v. Michaels, 625 A.2d
489 (N.J. App. 1993).
-37-
4. Prejudiced Juror
After the verdict in this trial, an allegation of juror misconduct
was brought to the court's attention. Verna Severson contacted the clerk's
office and said that she was surprised her co-worker (at a preschool) Pat
Pickard was allowed to serve on the jury of a case involving Native
Americans because she believed Pickard was prejudiced against them. The
district court held a number of hearings and heard testimony from a number
of witnesses.
Everyone who testified (mostly co-workers from the preschool) except
Severson, unequivocally stated that Pickard is not racist and has not
demonstrated a bias against Native Americans, although the school is now
instituting workshops on racial sensitivity. Severson had a long-standing
animosity toward Pickard and some of her testimony was contradicted by
other witnesses.
On the other hand, Severson testified that she had listened to
Pickard's racist statements for many years (including one to the effect
that adult males often have sex with young girls as part of the Native
American culture), and that she had engaged in arguments with Pickard over
the years on the subject of Pickard's racism and bias against Native
Americans. Severson testified Pickard told her that Pickard and two other
jurors in this case enjoyed making racial jokes about Indians. The
district court precluded Severson from telling what Pickard said went on
while the jury was in the jury room pursuant to Federal Rule of Evidence
606(b).
The defendants assert Pickard's own testimony and efforts to avoid
answering questions--"Not in my opinion," "I don't know," "I don't
remember," "I don't think so," and "I may have"--were most revealing of her
bias and her equivocal answers to most of the
-38-
questions impeached her specific denial of bias. Pickard specifically
testified she heard and laughed at a comment (rather than joke) in the jury
room about an Indian (but she could not reveal more under Federal Rule of
Evidence 606(b)), and she told a fellow juror after the trial that "Well,
you know what to say [regarding racial prejudice] if you want to be on or
off the jury."
Pickard also acknowledged that her sister-in-law, a social worker who
worked with abused children, told her that it is terrible to be born an
Indian baby girl; that she had repeated this remark to Severson and other
individuals; and that her intention was to repeat a statement of an
experienced social worker.
Defendants argue the court's order denying the motions for a new
trial incorrectly narrowed the focus of the juror misconduct inquiry to
voir dire only and not into comments which took place in the jury room.
United States v. Heller, 785 F.2d 1524 (11th Cir. 1986) (overturning
conviction where jurors made anti-semitic jokes at trial and others reacted
to them with gales of laughter).
We do not quarrel with the credibility determination of the district
court rejecting serious charges against Pickard, but the evidence relating
to this issue erodes confidence in the result. We cannot ignore the
existence of racial prejudices in our society and as against Native
Americans in areas near reservations. Pickard's statements relating to
Native American racial jokes or comments raises a matter of grave concern.
Racial prejudice in the jury room cannot and will not be tolerated or
condoned. Here four Native Americans placed their liberties in the hands
of all whites: prosecutors, defense counsel, judge and jury. The law
requires that they receive a fair trial without the impact of racial bias.
-39-
III. CONCLUSION
Abuse of young children is a serious crime. Here, only five of
thirteen children brought forth tales of abuse and told their versions in
an atmosphere that could be coercive. These circumstances raise a serious
and a close question to the validity of the verdict. The trial court
barred crucial defense evidence relating to the practice of powerful and
coercive suggestibility relating to child witnesses. Such evidence
wrongfully excluded could have made a difference. We reverse and remand
20
for a new trial.
LOKEN, Circuit Judge, dissenting.
I respectfully dissent. In my view, the majority's opinion
misrepresents the factual record, misstates the district court's procedural
and evidentiary rulings, and ignores the context of those rulings. The
majority accepts defendants' view of numerous issues of disputed fact,
violating our duty to respect the jury's verdict. I leave to the district
court the task of separating appellate fact from fiction when the case is
retried. But I will explain the reasons why I believe this decision is
very wrong.
20
We comment briefly on the dissent. The dissent gives
primary focus on evidence supportive of the verdicts. We do not
quarrel with the sufficiency of the evidence.
Every statement of background in the court's opinion has
support in the record. Much of the evidence at the trial,
however, was in sharp dispute. As explained in the opinion, we
relate background evidence as it bears on the excluded expert
opinion and the denial to the defense of an independent
psychological examination of the children. Supra, at 13, n.10.
Although, as stated in the dissent, Dr. Underwager testified
generally on suggestibility of matters affecting young children,
he was never permitted by the trial court to relate these general
observations to the specific suggestive conduct concerning the
children in this case. Supra, at 13. That ruling amounted to
crucial and prejudicial error in the context of this case.
-40-
I. Convincing Evidence of Guilt.
The majority takes many liberties with the trial record in attempting
to cast doubt on the jury verdict that defendants committed some, but not
all, of the alleged acts of criminal sexual abuse of five young girls. The
government based its case on the testimony of two physicians, the four
oldest victims, another child who witnessed sexual abuse, and FBI Agent Van
Roe. A brief review of that evidence is needed to set the record straight.
A. The Basic Chronology. The South Dakota Department of Social
Services ("DSS") placed R.R. in Donna Jordan's foster home on November 9,
1993, because of neglect and malnutrition. In early January, Jordan
reported to DSS (as she was required to do) that R.R. said she had been
sexually abused. On January 10, DSS told Jordan to take R.R. to therapist
Ellen Kelson. After an initial interview, Kelson reported to DSS (as she
was required to do) that R.R. had reported acts of sexual abuse against
herself and other children in the Rouse home. On January 11, DSS removed
children living in the Rouse home and placed them in Jordan's foster home.
On January 15, Dr. Richard Kaplan examined the children. On January 19,
FBI Agent Van Roe and BIA Agent Hudspeth interviewed the children. That
evening, they were seen by a psychiatrist, who referred them to Kelson for
therapy. Kelson first saw the children in a group on January 22. The
majority frequently misstates or obfuscates these undisputed chronological
facts.
B. The Medical Evidence. After performing the initial medical
examinations on January 15, Dr. Kaplan reported to DSS his medical findings
and what the children had told him about sexual abuse. J.R. told Dr.
Kaplan, "Uncle Jess hurt me," pointing to her left labia; Dr. Kaplan found
a recent bruise or contusion consistent with that kind of abuse. L.R. had
"a fairly acute injury" on the right side of her labia majora which "really
hurt her." R.R. told Dr. Kaplan, "I have a bruise where my uncle put his
private spot,"
-41-
and Dr. Kaplan found a sagging vagina and a scar on her anus. Dr. Kaplan
found that T.R. had "obvious trauma and contusion . . . and very, very much
tenderness" on her labia majora; T.R. told him, "Uncle Jess hurt me there."
On February 11, Dr. Robert Ferrell conducted a colposcopic
examination of the five victims. Dr. Ferrell found "very significant"
damage to R.R.'s hymenal ring and tearing in her anal area consistent with
anal intercourse. He noted a "whole constellation of findings" indicating
L.R. had been abused -- damage to her hymenal area, furrowing on either
side of her vagina, chronic irritation or trauma, and "clue cells" that are
"known to be sexually transmitted." To Dr. Ferrell, a scar on J.R.'s hymen
where a tear had healed was an "important finding," while T.R.'s "hymenal
ring was essentially gone," the entire area was irritated, and she had
furrows in her vagina. Infant F.R. had "tearing and scarring of the anal
mucosa."
Defendants' medical expert, Dr. Fay, admitted that the reported
hymenal scarring on L.R., R.R., and J.R. "certainly . . . leads you to
think about sexual abuse," and that "a labial injury . . . is a very
significant finding" of abuse. In its rebuttal, the government called Dr.
Randall Alexander, a member of the Board of Governors of the National
Committee to Prevent Child Abuse. Dr. Alexander testified that it takes
considerable force to inflict labial injuries like those exhibited by three
of the victims. "It's rare to see one [in young girls] and to see three
of them show up is just . . . rareness to the third power."
On this record, the majority dissembles when it repeatedly opines
that the government presented "inconclusive" medical evidence of sexual
abuse.
C. The Victims' Testimony. At trial, four victims testified that
defendants sexually abused them (the fifth victim, infant
-42-
F.R., was too young to testify). Their nine-year-old cousin testified that
three defendants shut him in the attic when he saw them abusing T.R. A few
observations about this testimony.
First, the victims' trial testimony was consistent with their "free
recall" -- the reports of abuse R.R. volunteered to Donna Jordan in early
January, and the four oldest victims made to Dr. Kaplan during his January
15 medical examinations. These unprogrammed reports preceded the FBI
interviews and Ellen Kelson's therapy. Is that significant? I refer to
the majority's non-testifying experts, Ceci and Bruck, in the "Conclusions"
portion of their Suggestibility article, 113 Psych. Bulletin at 433:
[I]t is of the utmost importance to examine the conditions
prevalent at the time of a child's original report about a
criminal event . . . . If the child's disclosure was made in a
nonthreatening, nonsuggestible atmosphere, if the disclosure
was not made after repeated interviews, if the adults who had
access to the child prior to his or her testimony are not
motivated to distort the child's recollections through
relentless and potent suggestions and outright coaching, and if
the child's original report remains highly consistent over a
period of time, then the young child would be judged to be
capable of providing much that is forensically relevant.
Likewise, Dr. Underwager testified for the defense:
Q What has the research told us about the types of questions
that should be asked?
A Basically, the most reliable information is obtained from
free recall.
Second, it is certainly true that the prosecutor asked the children
leading questions at trial. When the first child witness (the nine-year-
old male cousin) froze on the stand in open court, the district court,
consistent with numerous Eighth Circuit cases, ruled that leading questions
could be asked of reticent child
-43-
witnesses. Defendants did not object to this ruling nor raise the issue
on appeal.
Third, defendants did object to permiting three of the child
witnesses to testify by closed circuit television. The district court
questioned each child in chambers, in the presence of defense counsel, one
prosecutor, the child's guardian ad litem, and a court reporter. See 18
U.S.C. § 3509(b)(1)(C). Five-year-old J.R. was unable to speak when called
to testify and stated in chambers that she was afraid to speak in front of
her uncles. Six-year-old R.R. was found sobbing outside the courtroom and
affirmed in chambers that she was crying out of fear of her uncles. Nine-
year-old T.R. became so fearful before testifying that "the guardian ad
litem would have had to physically pull her into the courtroom." The court
found that defendants' presence in the courtroom would prevent these three
children from testifying and permitted them to testify in chambers by
closed circuit television.21 Though I share the concerns expressed by
Justice Scalia in his dissenting opinion in Maryland v. Craig, 497 U.S.
836, 867-69 (1990), I conclude the court properly resolved this issue under
Maryland v. Craig, Hoversten v. Iowa, 998 F.2d 614 (8th Cir. 1993), and 18
U.S.C. § 3509(b). The majority apparently agrees.
D. The FBI Interviews. After a hearing outside the jury's presence,
the district court permitted FBI Agent Van Roe to testify to what the three
oldest victims said during his January 19, 1994, interviews because those
hearsay statements were spontaneous and trustworthy. Though defendants
challenge this ruling on appeal, "a formidable line of Circuit precedent
. . . sanctions the use of
21
The system included five monitors in the courtroom for the
judge, jury, defense expert, and defendants to view the child
testifying in chambers; a monitor for the child witness to view
defendants as she testified; and separate communication lines
permitting each defendant to confer with his attorney.
-44-
hearsay testimony in child sexual abuse cases." United States v. St. John,
851 F.2d 1096, 1098 (8th Cir. 1988).
Accepting this ruling, the majority instead chides the district court
for excluding evidence of March 1994 interviews that were "essential to the
defense."22 But the district court did not exclude that evidence. When
Desmond Rouse's attorney asked if he could cross-examine Agent Van Roe
regarding the March interviews, the court responded that such questions
were beyond the scope of Van Roe's direct testimony and raised distinct
reliability questions. However, said the court, "If you want to do
something later, that is up to you. I'm not trying to tell you how to try
your case." Though Van Roe was recalled as a defense witness, he was not
questioned about the March interviews.
Finally, it is worth noting in surveying the evidence that the
government's rebuttal included testimony by another FBI agent that Jessie
Rouse and Desmond Rouse made damaging admissions when interviewed on
January 25, 1994.
E. The Majority's Riposte -- (1) Donna Jordan as the Grand
Inquisitor. Jordan was the victims' foster mother, a function she has
performed for over ninety children for seventeen years. She was not
involved in law enforcement. She never "interviewed" the children. She
was not asked as a witness to relate what the victims told her. Yet the
majority asserts that Jordan "told them their uncles were at fault and she
got very specific about the 'bad' things their uncles were doing to them."
Supra, at p. 8. Let us see how Jordan described these supposedly sinister
conversations during her cross examination at trial:
22
The majority also insinuates that BIA Agent Hudspeth asked
the children leading questions at the January interviews,
apparently unaware that the district court specifically asked
Agent Van Roe that question. Van Roe testified that Hudspeth did
not do so.
-45-
Q You have gone to each one of the girls one by one and in
groups, and you have told them that their uncles have been
raping them?
A No. Never. No.
Q What specific bad things have you told the girls that the
uncles were doing?
A When they were first talking about their sexual abuse --
Q I'm talking about what you have said to the kids.
A I just say it's wrong when they bring up the subject, and I
say it's wrong, it's wrong, it's bad. But there is nothing,
you know -- that's it.
Q Have you talked to these kids both alone and in groups?
A No.
Q Well --
A Unless they come -- I mean things can happen at home.
Someone can come up and say something while you are fixing
supper or whatever you are doing, and start talking about
something. But, no, not deliberately talking about this. No.
I haven't.
The majority's attempt to label Jordan as a forensic interviewer who
bombarded the victims with "a practice of suggestibility" in effect accuses
Jordan of lying under oath and improperly performing her duties. It also
twists the record to fit the majority's unsupportable view of the case.
(2) Ellen Kelson as the Grand Inquisitor. After initial medical
examinations and FBI interviews, the children were referred by a
psychiatrist to Ms. Kelson for therapy. Because the children were Medicaid
patients, DSS was Kelson's client, and she was required to submit her
session notes. When Jean Brock suddenly
-46-
left DSS in March 1994,23 Kelson began sending these confidential notes to
an Assistant U.S. Attorney to ensure that only authorized persons saw them,
a fact the majority uses to place Kelson in the prosecutor's camp. But she
conducted no forensic interviews of the children, and the government did
not call her as a witness.
Defendants did call Kelson at trial and questioned her for some 150
transcript pages in an unsuccessful effort to convince the jury that Kelson
had "implanted" the victims' memories, thereby contaminating their trial
testimony. The majority accepts this theory, calling Kelson primarily
responsible for the "practice of suggestibility." The majority encourages
defense counsel to call a victim's pretrial therapist, question about the
nature of the therapy, and then call a psychologist who will opine that the
therapist's counseling destroyed the credibility of the child's trial
testimony. This tactic if widely used would force the government to choose
between timely therapy for the child victim, and effective prosecution of
the child abuser. This is terrible public policy, contrary to
congressional mandates. District courts should block such injustice in
future cases by exercising their discretion to preclude defendants from
introducing evidence of pretrial therapy or counseling by a professional
who has not testified in the government's case-in-chief.
(3) Excluded Evidence of Other Sexual Activity. Defendants filed
Rule 412 motions to introduce evidence that one victim had been sexually
active. The district court denied the motions because the defense learned
about this evidence from an interview with a young boy almost three months
before trial. I conclude, and the majority apparently agrees, that the
district court did not
23
When called as a defense witness, social worker Brock
testified that she never interviewed the victims about alleged
sex abuse and denied telling children they were being taken to a
foster home because their uncles had been doing bad things to
them. Thus, the majority's repeated assertions to the contrary
are improper.
-47-
abuse its discretion by excluding this evidence as untimely. See Rule
412(c)(1)(A); United States v. Provost, 875 F.2d 172, 177-78 (8th Cir.),
cert. denied, 493 U.S. 859 (1989).
Defendants' Rule 412 evidence consisted primarily of a claim by one
defendant's eleven-year-old son that he had "sex" with the victim, which
she denied. After reviewing interview reports, the district court
expressed concern that this evidence "could wind up creating a mini trial
as to whether . . . this experimentation took place." But the court
refrained from ruling on whether this evidence of sexual activity would be
admissible if the government presented medical evidence of genital
injuries. That is the relevant inquiry. See Rule 412(b)(1); United States
v. Bear Stops, 997 F.2d 451, 454-56 (8th Cir. 1993); United States v. Eagle
Thunder, 893 F.2d 950, 954 (8th Cir. 1990). Though the government offered
such injury evidence, when defendants called the boy as a defense witness,
they did not question him regarding this alleged sexual activity. Thus,
the district court dealt with the merits of this issue correctly, and the
majority's suggestions to the contrary reflect a distressing ignorance of
the trial record.
II. Dr. Underwager's Testimony.
Dr. Underwager's testimony was the culmination of the defense
strategy to destroy the credibility of the victims' trial testimony by
proving that this testimony was the product of "implanted" memories. The
exclusion of some of Dr. Underwager's proferred testimony provokes a
dissertation by the majority on Daubert and "soft science."24 Proper
review of this issue instead requires careful attention to its procedural
context.
24
The majority's suggestion that Daubert principles do not
apply to "social science evidence" (supra, at p. 16) is contrary
to the law of this circuit. See United States v. Reynolds, 77
F.3d 253 (8th Cir. 1996); Gier v. Educational Service Unit No.
16, 66 F.3d 940 (8th Cir. 1995).
-48-
Before Dr. Underwager testified, the district court held a hearing
to determine whether this expert would provide sufficiently reliable
scientific evidence that would assist the jury to understand or determine
a fact in issue. See Fed. R. Evid. 702; Daubert, 113 S. Ct. at 2796. When
the court asked what opinions Dr. Underwager proposed to express at trial,
defense counsel submitted a letter from Dr. Underwager stating:
Based upon my review of the documents you have supplied,
including but not limited to, therapist notes, FBI reports, and
other documents, it is my opinion that the children in this
case have been subjected to massive and coercive social
influence by adults. . . . The level of adult influence is such
as to make it highly likely any statements are so contaminated
by adult behaviors as to be unreliable. . . . If asked, my
opinion is that there is such a low probability of any sexual
abuse by the defendants, that a reasonable person must conclude
it did not take place.
The court also heard Dr. Underwager describe his theories of "learned" or
"implanted" memory, and it reviewed some of the literature to which he
referred (including the Ceci and Bruck article extensively cited by the
majority). The court ruled:
I'm not going to allow Dr. Underwager to testify as to whether
or not the [child] witness's testimony is believable or not, or
telling the truth or not. . . . [T]here may be other areas that
Dr. Underwager may be proffered to testify on, and those will
have to be, or may be anyway, the subject of an offer of proof
when we get to that point.
The majority concedes, as it must, that this preliminary ruling was
correct. Assessing the reliability or credibility of a victim's
accusations is the exclusive function of the jury; it is not a proper
subject of expert testimony. See Westcott v. Crinklaw, 68 F.3d 1073, 1076
(8th Cir. 1995); United States v. Witted, 11 F.3d 782, 785-86 (8th Cir.
1993); United States v. Azure, 801 F.2d 336, 339-40 (8th Cir. 1986). Dr.
Underwager's
-49-
attempts to express such opinions in other child abuse cases have been
consistently rejected. See State v. Swan, 790 P.2d 610, 632 (Wash. 1990)
(en banc), cert. denied, 498 U.S. 1046 (1991); State v. Erickson, 454
N.W.2d 624, 627-29 (Minn. App. 1990).
The district court also made a second preliminary ruling. Because
this is an area of valid scientific inquiry, the court ruled that Dr.
Underwager could express his own expert opinions and explain his own prior
research. But regarding the theories and writings of other psychologists,
the court concluded:
there is not anywhere near yet the agreement in the
[scientific] community as to methods, techniques, testings or
reliability that would warrant the admissibility before a jury
of these matters . . . . It would result in a confusion of the
issues, a possible misleading of the jury . . . . So, for
these reasons, under Daubert, I'm not going to allow evidence
with regard to the different . . . psychological methods of
evaluating the reliability of witnesses.
The majority does not question this exercise of the court's discretion,
perhaps because the Ceci and Bruck article is itself a compendium of
conflicting theories and opinions on this subject dating back to 1900. As
an aside, many of the majority's citations are to Ceci and Bruck's
summaries of other experts' work, some of it more than ninety years old.
With that procedural background, I will summarize Dr. Underwager's
trial testimony for the defense, organizing that testimony into the
categories of "suggestibility" evidence that the majority claims were
totally excluded (supra, at pp. 20-27):
1. Asking children leading questions at trial. After opining
that open questions produce more reliable information, Dr. Underwager
asserted, "an adult who has a bias, a preconceived assumption, tends
very quickly to go to leading questions, go to coercive questioning
in order to get what they think that they need or want." The
district court then
-50-
sustained an objection to a later question, "What would be your
comment in regard to the form of the questions [asked of the
children at trial]?"
2. A child will give authoritative interviewers what the
child perceives is desired. "[I]t's very clear that when the
person doing the questioning starts with the assumption that
there's been abuse, that's what you get, that's what you
produce from the child."
3. Repetitive questioning can change a child's answers.
"[T]he repeating of questions is one of the most powerful ways
that adults influence children to produce the answers the adult
wants. Parents know this."
4. Younger children are more susceptible to
suggestibility than older children. "The younger the child,
the greater the suggestibility, the more vulnerable they are to
the influences."
5. Anatomical dolls and sex play will not necessarily produce
reliable evidence of sex abuse. "Play therapy has no therapeutic
value whatsoever. In fact, the research evidence suggests that it's
harmful. . . . [Play therapy is] all Freudian stuff, and there's no
scientific support whatsoever for those concepts." Dr. Underwager
was then asked about research "into the effects of play therapy where
the allegations of sexual abuse may not be true," an objection was
sustained, and defense counsel dropped the issue.
6. Children lie when motivated to lie. "[V]ery frequently the
adult will give some kind of promised reward . . . to shape the
behaviors of children." Adults also use "what psychologists know as
negative reinforcement; that is, the removal of an adverse stimulus.
. . . [These techniques are] very powerful and very often used."
7. "Cross germination" amoung a group of children will produce
inaccurate memories. "When children talk to each other, they have
an effect on each other, and they can communicate . . . stories that
are picked up on." "[Y]ou can produce changes, and accounts shift
and move and all kinds of things happen."
8. On the general subject of implanted memory. "[M]emories are
now shown to be implanted[. There] can be a complete nonevent, but
a memory can be created . . . by questioning someone."
-51-
In my view, this summary conclusively demonstrates that every category of
"suggestibility" evidence identified by the majority was the subject of an
opinion expressed by Dr. Underwager to the jury. That should be the end
of the matter on appeal. The jury learned how the child victims were
medically examined, interviewed, and counseled before trial. It saw and
heard the children testify. And it heard Dr. Underwager's opinions as to
factors that might influence the reliability of that testimony. The
district court correctly concluded that this was an adequate evidentiary
basis for the jury to make its ultimate credibility findings.25
Rather than examine what the jury in fact heard, the majority places
the cart before the horse by starting with the offer of proof made by
defense counsel at the conclusion of the above-summarized testimony. That
offer was made because the district court precluded Dr. Underwager from
commenting on the form of the questions asked the child witnesses at
trial.26
25
Defense counsel had no trouble using this expert testimony
to define their theory of implanted memory in closing argument:
The questions were asked over and over and over again and,
when the story came out the way the adults wanted it, then
the children were rewarded . . . . [W]hen [J.R.] was
testifying . . . did you notice [the prosecutor]
. . . phrased most of the questions in a manner in which she
would get a positive response, a "Yes" answer. . . . [Dr.
Underwager] talked about the influence that people have on
children, when they interview kids. He talked about memory,
the process of reconstruction, implantation of memory, play-
therapy, worthless. . . . The children only felt comfortable
answering "Yes" or "No". They didn't show memory of the
events. The FBI Agent's diagram that he used, the drawing
of the male body with the penis drawn in, what did that tell
the kids that he wanted to talk about? Everything was
calculated to produce some sort of compliance with these
kids . . . .
26
In my view, the entire offer of proof was without merit.
Defendants never objected to the court's ruling that leading
questions could be put to reticent child witnesses. Having
waived the issue, defendants may not then have their non-legal
"expert" criticize questions the court has permitted.
-52-
The majority states that the crucial question and answer in the offer
of proof was, "is it your belief that there's been a practice of
suggestibility employed," and Dr. Underwager's cryptic answer, "Yes, sir."
Supra, at p. 13. I disagree. What was "crucial" to the district court was
the very next question, "could you explain to the Court how you observed
that," and Dr. Underwager's three-page narrative answer. In that answer,
Dr. Underwager opined (i) that therapist Kelson had exerted "massive social
influence" on the victims; (ii) that Kelson engaged in "highly suggestive
and highly contaminating" practices; (iii) that the prosecutor used leading
questions at trial and the children "were comfortable doing the yes/no
bit," showing "they'd learned" to answer yes; (iv) that Van Roe's use of
diagrams was "very suggestive and very leading"; (v) that the children
"were kidnapped . . . taken from their families, taken to this strange
place where all of the people are concerned that they talk about sex
abuse"; and (vi) that the "total environment [was] one of the most powerful
and coercive influences upon children that I've seen."
That was totally improper "expert" testimony. If Dr. Underwager may
not opine that the children's trial testimony was not credible, as we have
often ruled, then the district court properly precluded him from indirectly
stating that same opinion. For example, if Dr. Underwager has expressed
the opinion that leading questions produce testimony that is not credible,
then his opinion that the prosecution asked leading questions at trial is,
quite obviously, an opinion that the children's testimony was not credible.
Defendants' offer of proof reflected Dr. Underwager's passionate attempt
to find a court -- any court -- that will allow him to opine that
particular child witnesses have not told the truth. Those opinions have
been rejected by every court which has considered them, they were rejected
by the district court, and they are rejected in theory by the majority.
Yet these convictions are reversed because defendants' offer of proof was
denied!
-53-
The district court properly "circumscribed [Dr. Underwager's
testimony] so as to educate rather than to usurp the role of the jury."
United States v. Johns, 15 F.3d 740, 743 (8th Cir. 1994). I have no doubt
that if defendants had asked Dr. Underwager to describe a "pattern of
suggestibility," without opining whether one occurred in this case, the
district court would have allowed that addition to the opinions he did
express to the jury. In other words, the majority's stated reason for
reversal is a contrivance, apparently born of a desire to publish a lecture
on Daubert and a distaste for either this type of prosecution or the long
prison sentences it has produced.
III. Denial of Defense Psychological Interviews.
Prior to trial, the victims were in DSS's custody. The majority
27
criticizes DSS's efforts to isolate the young victims and holds that the
district court abused its discretion in denying defendants' motions to
subject the victims to adversarial psychological examinations by Dr.
Underwager. I disagree.
Defendants and Dr. Underwager had available to them the reports of
the victims' medical examinations, Agent Van Roe's interview reports, and
therapist Kelson's extensive notes of her sessions with the children. Dr.
Underwager stated at the motion hearing that he had sufficient information
to assess whether the
27
When a child witness is in the legal custody of a social
services agency, that agency as custodian may refuse requests for
pretrial interviews. See Thornton v. State, 449 S.E.2d 98, 109-
10 (Ga. 1994); Hewlett v. State, 520 So. 2d 200, 203-04 (Ala.
Crim. App. 1987); see also O'Leary v. Lowe, 769 P.2d 188, 192-93
(Or. 1989) (en banc). Defendants concede that DSS made the
decision to deny access. They do not claim that the prosecution
interfered, and they never complained to the district court that
DSS had denied them pretrial access to the children. Moreover,
the victims' appointed legal guardian advised the court at a
motion hearing that questions of access and custody were subjects
of a separate tribal court proceeding.
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children had been sexually abused. He observed the trial testimony of the
victims and therapist Kelson, assisted defendants at trial, testified
regarding the effects of child interview techniques, and was prepared to
express opinions on the suggestibility of the investigative and therapeutic
practices employed. In these circumstances, defendants' motions for
further psychological examinations were properly denied. See United States
v. Spotted War Bonnet, 882 F.2d 1360, 1362 (8th Cir. 1989)(subsequent
history omitted) (interview properly denied because defense expert reviewed
other interview records and was present when victim testified).
In denying these motions, the district court properly considered the
victims' interests, requiring defendants to show good cause for this
"additional intrusion into the alleged victims already troubled lives."
An adult witness may simply refuse to undergo adversarial medical or
psychological examinations. See United States v. Bittner, 728 F.2d 1038,
1041 (8th Cir. 1984). With children in protective custody, the issue is
more complex because they are not able to make such decisions for
themselves. The trial court must protect a criminal defendant's right to
a fair trial, but it must also protect the State's paramount interest in
the welfare of the child. At a minimum, the court should heed a custodial
agency's opinion that an investigative or adversarial examination is
unnecessary or unwise.28
Here, the children's guardian opposed further psychological
examinations, particularly by adversarial experts, and defendants
28
Unlike the court in United States v. Benn, 476 F.2d 1127,
1130-31 (D.C. Cir. 1973), I do not assume that the criminal
justice arm of government may compel pretrial testing of a child
that a social services arm of government believes to be adverse
to the child's best interests. To posit an extreme example, if a
government custodian should opine that the interests of a child
witness require dismissing a prosecution rather than compelling
the child to undergo further traumatic testing, and if the court
can devise no other way to protect the defendant's right to a
fair trial, the criminal case may have to be dismissed.
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did not show need for the requested examinations. On this record, the
majority's decision that the district court nonetheless abused its
discretion in declining to order the examinations raises a barrier to the
prosecution of these kinds of crime by maximizing the trauma that victims
must routinely endure. Congress has repeatedly legislated the opposite
public policy, for example, in enacting Rules 412, 413, and 414 of the
Federal Rules of Evidence. This aspect of the majority's decision is, in
a word, lawless.
IV. Conclusion.
I have carefully reviewed defendants' other contentions on appeal and
conclude that each is without merit. One -- the allegedly biased juror --
is mentioned by majority in yet another gratuitous slap at the way the
district court conducted this trial. In fact, after a thorough evidentiary
hearing on this issue, the court found that juror Pickard was the target
of a spiteful co-worker whose testimony was not credible. It further found
that juror Pickard had not concealed "any racially prejudiced attitudes,
beliefs, or opinions" and that "no improper outside influence affected the
jury." These findings established that defendants were not entitled to a
new trial on this ground. See United States v. Tanner, 483 U.S. 107, 120-
27 (1987); McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556
(1984); United States v. Whiting, 538 F.2d 220, 222-23 (8th Cir. 1976);
Fed. R. Evid. 606(b). On this record, for the majority to suggest that
defendants did not "receive a fair trial without the impact of racial bias"
is outrageous.
This was a difficult case to try. The record reflects that the
district court dealt carefully, fairly, and impartially with the many
issues that arose before, during, and after the trial, and that the jury
deliberated carefully in convicting defendants on some counts and
acquitting them on many others. The majority now likens this to the Salem
Witch Trials! That is an indictment of
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all the government officials involved in these proceedings -- and most
particularly, of an exceedingly competent and fair United States District
Judge -- that I cannot abide. I would affirm the judgments of the district
court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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