Commonwealth v. Delbridge

Justice NIGRO,

dissenting.

I respectfully dissent, as I disagree with the majority’s conclusion that taint is a matter of competency, rather than credibility, and therefore disagree with the majority both that taint is properly addressed in a competency hearing and that it is a proper subject of expert testimony.1

As the majority recognizes, this Court has stated that when determining whether a child under the age of fourteen is competent to testify, the trial court must consider whether the child has (1) “the capacity to communicate, including an ability to understand questions and to frame and express intelligent answers,” (2) “the mental capacity to observe the occurrence itself and the capacity to remember what it is that she is called to testify about,” and (3) “a consciousness of the duty to speak the truth.” Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307, 310 (1959) (emphasis omitted). In essence, these questions are *677designed to ascertain the child’s overall ability to observe, remember, and convey information. See Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258, 268 (1974) (“The core of the competency test is the ability to give a correct account of the matters which [the witness] has seen or heard.” (internal quotation marks omitted)). Thus, in a competency hearing, the trial court traditionally asks the child such questions as “Do you know what it means to tell the truth?” and probes whether the child can, in general, recall and relate memories from the approximate time period at issue.

Under the majority’s holding today, in child abuse cases involving allegations of taint, the scope of questions at a competency hearing will be expanded to cover “the totality of the circumstances surrounding the revelation of the allegations of child abuse.” Op. at 41. This will presumably include specific questions regarding the alleged abuse, the child’s conversations with others regarding that abuse, and the extent to which the child’s recollection of events may have changed as a result of those conversations.2 According to the majority, such inquiries are analogous to those a court uses when probing the ability of a mentally ill or mentally retarded adult to retain an independent recollection of events. Op. at 40 (citing Commonwealth v. Rolison, 473 Pa. 261, 374 A.2d 509 (1977) (plurality); Commonwealth v. Anderson, 381 Pa.Super. 1. 552 A.2d 1064 (1988)). However, an allegedly “tainted” child, unlike a mentally ill or mentally retarded adult, does not suffer from a complex medical condition that renders her generally unable to process events, retain memories, or understand her responsibility as a witness.3 See Wigmore, Evidence § 492, at 698 (Chadbourn rev. ed. 1979) (“The true *678reason for not admitting the testimony of a person [who is mentally ill] in any case is because his malady involves such a want or impairment of faculty that events are not correctly impressed on his mind, or are not retained in his memory, or that he does not understand his responsibility as a witness.” (internal quotation marks omitted)). Rather, allegations of “taint” merely contend that improper interviewing techniques have marred select memories that a child would otherwise be capable of retaining and conveying. In my view, questioning regarding the effect of these external forces on a child’s memory simply do not go to a child’s competency to testify, but rather merely probes whether the child’s supposed memory of an event should be believed. As such, I believe that the taint inquiry is more appropriately characterized as a classic question of credibility. See Black’s Law Dictionary 374 (7th ed.) (defining credibility as “[t]he quality that makes something (as a witness or some evidence) worthy of belief’).

In the instant case, the trial court properly explored at the competency hearing the children’s capacity to retain and communicate memories, as well as their consciousness of the duty to speak the truth. Upon doing so, the court concluded that the children were competent to testify. In turn, at trial, the court permitted no expert testimony regarding taint,4 but *679allowed Appellant’s attorney to freely cross-examine the children regarding the accuracy of their memories, and the jury ultimately found the children’s testimony to be credible. As this was, in my view, the appropriate way to deal with Appellant’s allegations of taint, I would not, unlike the majority, remand for further proceedings regarding those allegations.

. It is well established that experts may not be called to testify regarding a witness’s credibility. See, e.g., Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830, 837 (1992) (trial court erred in admitting expert testimony as to why sexually abused children delay in reporting abuse and why sexually abused children may not remember details of the abuse because such testimony infringed on jury’s right to determine credibility); Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920, 921 (1986) (trial court erred in admitting expert testimony that young children lack the sexual knowledge to supply details about sexual encounters and therefore usually do not fabricate stories of sexual abuse because such testimony encroached on jury’s province to determine credibility); see also Commonwealth v. Balodis, 560 Pa. 567, 747 A.2d 341, 345 (2000) (finding merit in appellant’s argument that trial counsel was ineffective for failing to object to expert testimony that sexually abused children delay in reporting abuse and reveal abuse in stages because such testimony improperly bolstered the victim’s credibility); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315, 317 (1988) (trial counsel was ineffective under Seese for failing to object to expert testimony that children typically have had some sort of sexual experience in order to report abuse because such testimony assessed children’s truthfulness). Cf. Commonwealth v. Crawford, 553 Pa. 195, 718 A.2d 768, 773 (1998) (under Seese, trial court did not err in excluding expert testimony that questioned validity of a witness's supposed revived repressed memories because such testimony was intended to attack witness's credibility).

. While not material to my analysis here, I feel compelled to note that requiring allegedly tainted children to recount their traumatic experiences of abuse not only at a preliminary hearing and trial, but also at this newly-formulated version of a competency hearing, seems to give little consideration to the additional trauma such testimony undoubtedly inflicts on young children.

. The majority also analogizes a “tainted” child to a hypnotized adult, and cites this Court's decision in Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981), for the proposition that hypnotically-induced testimony raises questions of competency. See Op. at 40. However, the issue in Nazarovitch was not whether questions regarding the *678reliability of hypnotically-induced testimony were questions of competency or credibility, but rather, was whether hypnosis, in general, “is a reliable and trustworthy evidentiary device whereby memory can be sufficiently and adequately refreshed.” 436 A.2d at 173. In addressing this issue, the court employed a Frye analysis, see Frye v. United States, 293 F. 1013 (App.D.C.1923), and held only that absent additional proof that hypnotically-induced testimony was reliable, no such testimony would be admissible in the courts of this Commonwealth. Although the trial court in Nazarovitch apparently addressed the admissibility of the witness's testimony at a proceeding that it called a "competency” hearing, the opinion makes clear that the trial court scheduled the "competency” hearing in response to an indication by the defendant that he planned to attack the credibility of the hypnotized witness at trial. Id. at 172. Accordingly, unlike the majority, I do not read Nazarovitch to support a contention that questions regarding the reliability of hypnotically-induced testimony are necessarily questions of competency, rather than credibility.

. In this regard, I note that the record contains scant evidence as to the exact testimony Appellant’s expert would have offered, except his own *679contention that he would testify to the “accuracy” or "reliability,” rather than the “truthfulness” or “credibility,” of the children’s statements. R.R. at 258a (N.T., 5/10/1999, at 171-74).