State v. Reid

Skoglund, J.,

¶ 36. concurring. I would affirm the trial court’s conclusion that the time, content, and circumstances of the child-victim’s statements provided substantial indicia of trustworthiness, in part because our review of the admission of hearsay evidence under Vermont Rule of Evidence 804a is deferential, but also because I agree that the child’s provision of new information and idiosyncratic details provides substantiating content. However, I cannot agree with the trial court or this Court that what the child endured in the August 27 interview was not coercive. Rather, I agree with the expert testifying that the two-part interview of A.V. was egregiously coercive for a six-year-old. But, as noted by the trial court, “[t]here is no compelling indication that AV.’s statements were in fact the product, or result of any coercion, as opposed to a ‘conscious’ decision . . . that it was simply time . . . to tell what had happened.”

¶ 37. I believe it noteworthy that the court found the DCF investigator had “not received extensive training in interview techniques for children, but ha[d] attended a few training sessions. There was no evidence as to [the police officer’s training, if any.” As found by the court, the interview of this six-year-old child lasted “the better part of the entire day.” During the morning session she repeatedly asked to return to her classroom. She was “more withdrawn,” actively “changed the subject to avoid talking *369about Reid,” and essentially denied there was any problem with him. The court noted, “[Notwithstanding the investigator’s efforts, and the repeated questions and length of the morning interview, A.V. continued to deny that Defendant (or anyone) had committed any abusive acts.” However, the court below also found that “[although the morning interview did last a long time, the questions were persistent, and A.V. did make repeated requests about lunch, she did not ask, or insist specifically that the interview be stopped.” Really? After being reminded that she was talking to a police officer and an investigator, this little girl did not insist the interview stop?

¶ 38. The interview resumed after lunch with the interviewers “asking A.V. more pointed questions. . . . A.V. again instead kept asking, repeatedly, to go back to the classroom, and became increasingly more discomforted, and at the same time hesitant to talk, with her head down.” As with the morning session, the court noted that she never “said emphatically that she would not talk any more about the topics insisted upon by the investigators.” According to the findings of the court below, the interview did not end until after the school day was over.

¶ 39. Dr. David Mantel is, as the court recognized, “a highly experienced, and well-respected child psychologist who has been active in this field of interviewing alleged child victims of sexual abuse for many years.” According to Dr. Mantel in his testimony at the Rule 804a hearing, there are at least six well-developed protocols for forensically interviewing alleged child victims of sexual abuse. He described the interview at the school as lacking any phased structure, marked by confirmatory bias, and using leading or suggestive questions.

¶ 40. According to Dr. Mantel, all of the recognized protocols involve a “ ‘phased’ interview process, and all of them discourage use of, or at least over-reliance on ‘leading questions,’ repeating the same question in succession, and incorporation of outside information for which the investigator is simply seeking confirmation, or repetition by the child.” He described the August 27 interview as “a failure” and an “egregious case.” He testified that the entire interview was “ ‘inherently coercive,’ and even ‘brutally coercive’ because of the length, and the investigators’ decision to ignore A.V.’s repeated requests to go to lunch (in the morning) or go back to her classroom (in the afternoon).” As found by the trial court, Dr. Mantel was “ ‘flabbergasted’ by what he viewed as the *370unprofessional techniques used by” the two investigators. Ultimately, as the court, noted, Dr. Mantel declined to express “any opinion as to the actual credibility or truthfulness of the content or substance of the statements made by A.V.” Properly so. Ultimately, that is a decision for the court.

¶ 41. Dr. Mantel also had criticisms for the interview with the nurse at Copley Hospital, but I believe the point has been made. It is not that the interviewers were malicious or ignorant. Rather, the case suggests — strongly suggests — that they were, at best, poorly trained. While this Court has not reviewed or endorsed any particular protocol for conducting interviews of suspected child abuse victims, our decisions focus on several common factors for assessing reliability and trustworthiness of out-of-court disclosures made by children. These include “freshness, spontaneity, internal consistency, and accuracy with respect to surrounding detail” as well as the “timing and conduct of the interviews.” State v. LaBounty, 168 Vt. 129, 136-38, 716 A.2d 1, 6-7 (1998). For example, in LaBounty we noted that neither of the interviewers had been informed of the details of the alleged abuse prior to the interviews, so neither was seeking to confirm any preconceived ideas of what the children should be disclosing. Id. at 138, 716 A.2d at 7. Again in State v. Tester, the Court noted that the child’s interview “had been conducted in a highly professional manner, without suggesting answers or content.” 2006 VT 24, ¶ 28, 179 Vt. 627, 895 A.2d 215 (mem.). That was certainly not the case here. The interviewers were seeking confirmation of preconceived and expected content.

¶ 42. When the afternoon interview began, the interviewers reminded A.V. that they had talked to her neighbor Ariel, her cousin, and her sometime childcare provider and asked A.V. again to tell them, for example, “what she told Ariel” because they “knew something was going on at home.” What follows is a small sample:

S.M. [interviewer]: Okay. I talked to Ariel, I talked to Christy, and I talked to Leola, all of them. And they told me something. Do you know what they told me?
A.V.: What?
S.M.: They all told me that you told them something that’s going on at home that they were a little bit *371concerned about. ... So I know that you told them something. And remember what I told you that it’s okay to tell us the truth?
A.V.: Yeah.
S.M.: That you’re not going to be in any trouble.
' A.V.: Yeah.
S.M.: It’s very important that I just want you to tell us the truth, okay? Because I already know that you told them something that’s going on at home.
A.Y.: Yeah.
S.M.: Do you want to talk to me about that?
A.V.: Can I just say one thing and go back to my classroom because I want to.
S.M.: Okay. But we need to talk to you about this. Okay?
A.V.: Okay.
S.M.: And after we’re done talking about it, you can go to your classroom.
A.V.: I will just — how about I just say one thing and I can go back to my classroom? How about that?
S.M.: What do you want to tell me?
A.V.: Um, sometimes when my mom is going to work, sometimes she comes back at — sometimes she comes back in morning, sometimes she comes back at night.

This type of questioning is what Dr. Mantel believed “infected” the interview by “‘confirmatory bias’ because the investigators repeatedly used outside information to frame their questions.”

¶ 43. The court below also noted that the State presented no counterpoint to Dr. Mantel’s testimony. Thus, the court had to find that the interview was not coercive in spite of this noted expert’s opinion that this all-day interview was seriously flawed. I cannot understand the basis for the court’s contrary conclusion. In this case, the court found enough in the child’s responses to validate it for trustworthiness. However, it cannot be ignored that the substantial failure by the DCF investigator and the police officer *372to follow recognized and established child-interview protocols weighed heavily against the necessary determination of inherent trustworthiness and reliability. I agree that, in this case, the child’s eventual discussion of the abuse had new information and idiosyncratic details that provided substantiating content and, as found by the trial court, that “[t]here is no compelling indication that AiV.’s statements were in fact the product, or result of any coercion.” (Emphasis added.) However, I cannot help but be concerned that proper training is not being provided in this extremely critical and highly sensitive area of investigation.