dissenting.
Respectfully, I must dissent from that portion of the majority opinion which holds that it was not error for the trial court to conduct an evidentiary hearing into the issue of whether the victim’s testimony should be suppressed due to the use of improper and perhaps coercive interview techniques. The majority, like the trial court, simply treats this issue as one of witness competency. While that is in essence the final decision that must be reached by a trial court when considering this particular type of challenge to witness testimony, the issue is more subtle and complex than the plain factors set forth in KRE 601. That, however, is where the inquiry must begin.
KRE 601 establishes that a witness is competent only if four facts exist:
1.The witness is able to perceive accurately whatever it is they want to testify about;
2. The witness can recall the facts;
3. The witness can express him or herself intelligibly; and,
4. The witness understands the need to tell the truth.
The New Jersey Supreme Court noted that “[i]f a child’s recollection of events has been molded by an interrogation, that influence undermines the reliability of the child’s responses as an accurate recollection of actual events.” State v. Michaels, 136 N.J. 299, 642 A.2d 1372, 1377 (1994). The precise issue the court addressed in Michaels was “whether the interview techniques used by the State in this case were so coercive or suggestive that they had a capacity to distort substantially the children’s recollections of actual events and thus compromise the reliability of the children’s statements and testimony based on their recollections.” Id. at 1377. The concern voiced by the New Jersey Supreme Court and Appellant herein is that the child witness can be suggestible and easily led and that if questioned repeatedly and in a coercive fashion, the child will no longer be able to distinguish between what actually happened to him or her and what the questioning party wanted to hear. As noted in Michaels:
“[A] fairly wide consensus exists among experts, scholars and practitioners concerning improper interrogation techniques. They argue that among the factors that can undermine the neutrality of an interview and create undue suggestiveness are a lack of investigatory independence, the pursuit by the interviewer of a preconceived notion of what has happened to the child, the use of leading questions, and a lack of control for outside influences on the child’s statements, such as previous conversations with parents or peers.”
*530Id. Thus, the inquiry is whether the method of questioning has so affected the victim that his or her ability to recall facts and to perceive accurately whatever it was they were to testify about. The witness can be competent in the sense that his or her mental acuity and maturity are such that ordinarily the witness would be allowed to testify, yet the witness’ recollection of the specific incident at issue is so warped or affected by the improper questioning that he or she is rendered incompetent.
Appellant argued to the trial court and asserts here that the videotape of the child victim’s interview was leading and suggestive and that the social worker doing the questioning assumed that bad things had happened. He further states that the social worker, not the victim, told the story. At trial, he specifically requested that the court consider whether the victim’s testimony was tainted by the method by which she was questioned and hold a taint hearing to take evidence. The trial court specifically denied the motion on the grounds that there was no legal precedent for such a hearing in Kentucky. He further stated that he had not reviewed the videotape of the interview. The court also denied a defense motion for funds with which to hire an expert on child interviewing techniques.
Given that there was no physical evidence to support the charges, the victim’s testimony was critical to the case. Appellant faces fifty years in prison. The trial court should have held a hearing to determine whether the method of questioning used tainted the victim’s testimony to the extent that she was rendered incompetent to testify. I would reverse and remand this conviction for retrial.
KELLER, J., joins this dissent.