NO.

65205-8

THE SUPREME COURT OF WASHINGTON OF THE STATE OF WASHINGTON ________________________________________________

In RE THE DEPENDENCY OF: A.E.P. W.M.P. Minor Children,

MICHAEL PETCU, Petitioner,

STATE OF WASHINGTON, Respondent. ______________________________________________ APPEAL FROM THE COURT OF APPEALS No. 18053-7-II ______________________________________________ Petitioner's Answer to Amicus Curiae Brief on Behalf of Washington Association of Prosecuting Attorneys ______________________________________________ GARY A. PREBLE WSB# 14758 Attorney for Petitioner GARY A. PREBLE 2120 State Avenue N.E. Olympia, WA 98506 (206) 943-6960

================================================================ TABLE OF CONTENTS A. B. The Scientific Scholarship Underlying the Michaels Decision is Valid. . . . . . . . . . . In Discussing the Ryan Factors, WAPA Fails to Address the Essential Problem With Contaminated Interviews . . . . . . . . . . . . . . . . . WAPA's Approach to Videotaping Interviews is Misleading and Mistaken . . . . . . . . . . . . 1. 2. 3. F. WAPA misstated Petitioner's and WACDL's positions. . . . . . . . . . . . . . . . . WAPA Ignores the Consensus Among Professionals Regarding Videotaping. . . . . . . 1

5 8 8 9

C.

Other Cases do Show the Necessity for Videotaping. . . . . . . . . . . . . . . . 11 12

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . .

================================================================= TABLE OF AUTHORITIES Cases New Jersey v. Michaels, 264 N.J. Super 579, 625 A.2d 489 (1993) . . . . . . . . . . . . . . . 2-6, 9, 10 State v. Doggett, Docket No. 15014-3-III (1997). . . . . . .8, 12 State v. Martin, 101 Wn.2d 713, 684 P.2d 651 (1984). . . . . . .6 State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984). . . . . 1, 5-8 State v. Townsend, 635 So.2d 949 (Fla. 1994) . . . . . . . . . .9 State v. Williams, 27 Wn.App. 430, 618 P.2d 110 (1980) . . . . .7 State v. Wright, 116 Idaho 382, 775 P.2d 1224 (1989) . . . . . 12 The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932). . . . . . . . . . .9 Other Authorities Beaver, Memory Restored or Confabulated by Hypnosis-Is it Competent? 6 U.Puget Sound L.Rev. 155 (1983). . . . .7 Berger, The Deconstitutionalization of the Confrontation Clause: A Proposal for a

Prosecutorial Restraint Model, 76 Minn.L.Rev. 557 (1992). . . . . . . . . . . . . . . . . . . . . . . . 10 Bruck and Ceci, Amicus Brief for the Case of State of New Jersey V. Michaels Presented by Committee of Concerned Social Scientists, 1 Psychology, Public Policy and Law 272 (1995) . . . . . . . . . . . . . .2, 3, 5 California Attorney General, Child Victim Witness Investigative Pilot Project: Research and Evaluation Final Report (1994) . . . . . . . . . . . . . . . . . . . 11 Ceci, Bruck and Rosenthal, Children's Allegations of Sexual Abuse: Forensic and Scientific Issues: A Reply to Commentators, 1 Psychology, Public Policy and Law 494 (1995) . . . . . . . . . . . . . .2, 4, 5 Ceci, S.J. and Bruck M. (1993b). The Suggestibility of the Child Witness: A Historical Review and Synthesis. Psychological Bulletin, 113, 403 . . . . . . . .4 Dianna Younts, Evaluating and Admitting Expert Opinion Testimony in Child Sexual Abuse Prosecutions, 41 Duke L.J. 691 (1991) . . . . . . . . . . .3 Greenberg, S. and Shuman, D., Therapy vs. Forensics: Irreconcilable Conflict Between Therapeutic and Forensic Roles of Mental Health Professionals, 51 Wash. Bar News Vol. 10, P 16 (Oct. 1997) . . . . . . . .5 J. Myers, G. Goodman, K. Saywitz, Psychological Research on Children as Witnesses: Practical Implications for Forensic Interviews and Courtroom Testimony, 27 Pacific Law Journal 1 (1996). . . . . 1, 2, 10 J. Myers, Taint Hearings for Child Witnesses? A Step in the Wrong Direction, 46 Baylor Law Review 873, (1994). . . . . . . . . . . . . . . . . . . . . . .1, 10, 11 Stafford, The Child as a Witness, 37 Wash. L. Rev. 303 (1962) . . . . . . . . . . . . . . . .6 ================================================================= The Amicus Curiae Brief on behalf of Washington Association of Prosecuting Attorneys (hereinafter WAPA Brief) raises two primary points: (1) that the Ryan [n.1] factors are sufficient to determine reliability of child victim hearsay without the need for a "taint" hearing; and (2) that videotaping should not be a condition precedent to admissibility. The argument regarding Ryan factors, WAPA submits two lengthy Law Review articles by law professor John E.B. Myers. [n.2] A. The Scientific Scholarship Underlying the Michaels Decision is Valid.

WAPA accuses Petitioner and WACDL of "cit[ing] selectively" from scientific literature to create a wrong impression. WAPA Brief, 2. And though not explicitly stated, WAPA appears to suggest that the scientific evidence presented by Petitioner and WACDL constitutes advocacy rather than a crosssection of researchers. WAPA Brief, 4. Having set up a straw man, WAPA then suggest that the law review articles attached to its brief are unbiased and impartial, and by implication covering a crosssection of the researchers.[n.3] WAPA's suggestion--that the scientific scholarship underlying the Michaels decision is "advocacy" and does not represent a "cross-section of researchers"--is greatly mistaken. Attached hereto as Appendix A is Bruck and Ceci, Amicus Brief for the Case of State of New Jersey V. Michaels Presented by Committee of Concerned Social Scientists, 1 Psychology, Public Policy and Law 272 (1995) (hereinafter Michaels Amicus Brief). By comparing that amicus brief with the decision in New Jersey v. Michaels, 264 N.J. Super 579, 625 A.2d 489 (1993), it is obvious that the amicus brief played a significant role in the New Jersey court's decision. Far from being the brief of two scientists, the brief is signed by forty-five Ph.D.'s who are social scientists, psychological researchers and scholars. Appendix B hereto is Ceci, Bruck and Rosenthal, Children's Allegations of Sexual Abuse: Forensic and Scientific Issues: A Reply to Commentators, 1 Psychology, Public Policy and Law 494 (1995) (hereinafter Reply). At 498-499, Ceci and Bruck state: [T]his amicus broke new ground in assuring the accuracy of the interpretation of the relevant data by circulating more widely than heretofore has been the case by incorporating feedback from the signatories. No other amicus that we are aware of has ever reflected such a broad based consensus of scholars at the development stage. Secondly, one of their primary research projects forming the basis of the Michaels Amicus Brief received the Robert Chin prize in 1994 from division 9 of the American Psychological Association ("Society for the Psychological Study of Social Issues") for the best article dealing with child abuse. Id. at 499.[n.4] The same article was named one of the twenty outstanding articles in Child Psychiatry and Child Development. Id. The Michaels decision also substantiates the work of Ceci and Bruck. One of the articles it relied upon strongly was Dianna Younts, Evaluating

and Admitting Expert Opinion Testimony in Child Sexual Abuse Prosecutions, 41 Duke L.J. 691 (1991).[n.5] Regarding Younts' article, the court stated: In a recent article specifically examining children's suggestibility, the author extensively examined current social science literature and came to the following conclusions: Careful review of the social science literature indicates that children are susceptible to suggestive interviewing techniques and that such techniques can render children's accounts of abuse unreliable. New Jersey v. Michaels, 264 N.J. Super at 627, 625 A.2d at 514. Michaels went on to say, "Younts believes that Stephen Ceci's 1990 study provides the most impartial results of the nine studies Younts examined." Id. Any suggestion or innuendo on the part of WAPA that Ceci and Bruck are not impartial is not only without foundation, but is contrary to the evidence available. WAPA relies heavily upon John Myers, proclaiming his impartiality and claiming that he had "rise[n] above the fray and adeptly summarize[d] a body of research in an intelligent, unbiased fashion." WAPA Brief at 4. It is the Petitioner's position that Myers' attack on the Michaels decision does not fulfill WAPA's claim of impartiality. Ceci and Bruck address Myers attacks upon their "scholarship aspects of the [Michaels] amicus itself, and at times even our integrity" that Myers had written in another article. Reply at 495. As Ceci and Bruck respond thoroughly to Myers attacks in their reply. Id at 495-502. The Michaels Amicus Brief and the Reply constitute the most thorough and impartial review of the relevant scientific literature. The Michaels court relied significantly on Myers, showing that Myers' work supports the Michaels holding regarding tainted testimony. N. J. v. Michaels, 264 N.J. Super. at 624-626, 625 A.2d at 512-513. B. In Discussing the Ryan Factors, WAPA Fails to Address the Essential Problem With Contaminated Interviews.

A review of the facts in the present case show that WAPA's discussion of the Ryan factors would support petitioner's claim that E.P.'s hearsay statements should not have been admissible.[n.6] However, WAPA fails to recognize the essential problem with contamination of a child's memory. If a child's memory is contaminated, not only are its hearsay statements unreliable, but its testimony is

unreliable as well. While the Ryan Factors are sufficient for some purposes, reliance on them when dealing with contaminated memory begs the question. Using the Ryan factors to evaluate for contaminated memory, is the equivalent of trying to pick up aluminum with a magnet. Again, the Michaels court relied upon the writings of Myers in addressing this issue: Thus, Myers concluded: As memory fades over time its accuracy may decline while suggestability increases. Fading memory is succeptable to new input which can come from suggestive questioning. Inaccurate information can be incorporated into memory, actually supplanting accurate data. Yet when the child takes the stand he or she testifies believing in the accuracy of what is said. 264 N.J. Super at 625, 625 A.2d at 513 (emphasis added). Washington courts have addressed the effects of both hypnosis and pretrial identifications, and have come to the same conclusions regarding contamination as did Justice Charles Stafford, The Child as a Witness, 37 Wash. L. Rev. 303, 309 (1962). In addressing the effect of hypnosis on memory[n.7] State v. Martin, 101 Wn.2d 713, 722, 684 P.2d 651 (1984) held as follows: After hypnosis, neither subject nor expert observer is able to distinguish between confabulations and accurate recall in any given case, absent corroborating evidence. See, Beaver, Memory Restored or Confabulated by Hypnosis--Is it Competent? 6 U.Puget Sound L.Rev. 155, 199 (1983). The subjective conviction in the truth of the memory after hypnosis eliminates fear of perjury as a factor ensuring reliable testimony. Additionally, effective cross examination is seriously impeded, as the witness cannot distinguish between facts known prior to hypnotism, facts confabulated during hypnosis to produce pseudomemories, and facts learned after hypnosis. Finally, jury observation may be adversely affected, as the witness, as a result of the hypnosis, will have absolute subjective conviction about a particular set of events, whether or not his perceptions are objectively accurate. Beaver, at 200-01. It is this tendency toward immunization from meaningful cross examination in particular that leads us to conclude that a person, once hypnotized, should be barred from testifying concerning information recalled while under hypnosis.

Addressing the problems arising from pre-trial identifications, State v. Williams, 27 Wn.App. 430, 443, 618 P.2d 110 (1980) stated as follows: We emphasize that we do not condone the showing of photographs to witnesses immediately before they are to view a lineup. Such a practice can cause misidentifications, because witnesses may tend to base their identifications on the photographs shown rather than on their memories of the crime they witnessed. In-court eyewitness identification is suppressible when pretrial identification procedures are so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Thus, while the Ryan factors may remain "robust" for some purposes, and though WAPA makes some positive suggestions for improvement, the Ryan factors are insufficient to deal with contaminated memory. C. WAPA's Approach to Videotaping Interviews is Misleading and Mistaken. 1. WAPA misstated Petitioner's and WACDL's positions.

WAPA's treatment of the issue of videotaping is disingenuous and misleading. Specifically, WAPA incorrectly states: "Petitioner and WACDL requests this court to require videotaping of investigative interviews as a condition precedent to admissibility." WAPA Brief, 22 (emphasis added). Petitioner's exact words were to request "that the court impose a new requirement on child interviews, specifically, that they be recorded to the extent reasonably possible." Petitioner's Supplemental Brief, 11. Nor does WACDL demand recording videotaping as a condition precedent for admissibility, although it does suggest that "a recording or verbatim report of interviews is an important safeguard for assessment of reliability and trustworthiness of the statement."[n.8] By misstating the arguments of Petitioner and WACDL, WAPA makes no true response to the issues raised. Petitioner recognizes that videotaping is not always possible.[n.9] For that reason, Petitioner does not suggest videotaping as a condition precedent to admissibility. If, however, the interviews of children are done without videotaping when such procedure is reasonably possible, the court should deny or limit admissibility if the state cannot show good cause as to why videotaping was not done. Moreover, for a wilful refusal to videotape inter-

views, the court should deny admissibility of any statements made during or after the interview. Such requirements would be in line with Judge Learned Hand in The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932), cited in Pet's Supp'l Brief, 14. 2. WAPA Ignores the Consensus Among Professionals Regarding Videotaping.

WAPA also makes the unsupported statement that "There is presently no consensus in the research community concerning the utility of videotaping child interviews." WAPA Brief, 22. Yet in the materials submitted with its brief, WAPA itself provides us with information to the contrary. In particular, J. Myers, Taint Hearings, at 900, states, "[A] consensus appears to be emerging in favor of videotaping." Moreover, Goodman (one of Myer's co-authors in Myers, Goodman and Saywitz) recommends that the initial interview be videotaped. N.J. v. Michaels, 264 N.J. Super. at 623, 625 A.2d at 511. Michaels also cites Margaret A. Berger, The Deconstitutionalization of the Confrontation Clause: A Proposal for a Prosecutorial Restraint Model, 76 Minn.L.Rev. 557, 608 (1992) (suggesting that when interview is conducted of "vulnerable" witness (a child) prosecution should always provide tape or transcript of every interview to determine suggestibility). Id., 625 A.2d at 512. If the foregoing is not sufficient indication of a consensus on videotaping, WAPA also provides us with another explicit statement by Myers.[n.10] In Taint Hearings, at 901, Myers quoted as follows from California Attorney General, Child Victim Witness Investigative Pilot Project: Research and Evaluation Final Report (1994):[n.11] Should investigative interviews of children be videotaped? The pilot projects answer this question, and the answer is "Yes." The pilot projects provide clear support for videotaping interviews that occur well run multidisciplinary interview centers. Moreover, most professionals involved in the pilots believe videotaping should be routine. In Sacramento and Orange Counties, the specter of injustice that is feared by opponents of videotaping did not materialize. What emerged instead is a clear consensus that videotaping helps lower trauma for children and contributes to the search for truth. Myers himself was the Chair of the Research and Evaluation Advisory Panel which produced the report. See, Appendix C. 3. Other Cases do Show the Necessity for

Videotaping. WAPA also makes the unsupported claim that videotaping is not necessary because "[i]nvestigators already have ample incentive to completely and accurately document interview because a poorly documented interview may lead to exclusion where notes are sketchy and memories incomplete." In fact, it appears just the opposite is true in some Washington investigations. In the Doggett case, Wenatchee detective Robert Perez and CPS supervisor Tim Abbey testified they discarded the notes they took during their initial interview. Additional testimony was presented by a local attorney that detective Perez discards notes as a matter of course in order that attorneys cannot use the notes to "burn" him. While the court did not conclude that the unknown content of the destroyed notes would be potentially useful, Doggett shows that an unscrupulous investigator might in fact not "completely and accurately document interviews."[n.12] Failure to videotape has been seen as problematic in more than one court. See State v. Wright, 116 Idaho 382, 775 P.2d 1224 (1989) cited in Petitioner's Supplemental Brief, 8. WAPA Brief, 22. The WAPA Brief fails to recognize the weight of authority regarding videotaping. Moreover, since this is a dependency case, the CPS rule that verbatim documentation is desireable should have caused audio or video recording of the interviews with E.P.--especially since Mr. Petcu requested it. Nothing in the WAPA Brief should lead the court to avoid imposing of a requirement that child abuse interviews be recorded.[n.13] Respectfully submitted January 23, 1998. PREBLE LAW FIRM __________________________ GARY A. PREBLE, WSB #14758 Attorney for Petitioner =================================================== 1. State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984). 2. J. Myers, G. Goodman, K. Saywitz, Psychological Research on Children as Witnesses: Practical Implications for Forensic Interviews and Courtroom Testimony, 27 Pacific Law Journal 1 (1996). (hereinafter Myers, Goodman, and Saywitz); J. Myers, Taint Hearings for Child Witnesses? A Step in the Wrong Direction, 46 Baylor Law Review 873, (1994)

(hereinafter Taint Hearings). 3. Unlike Ceci and Bruck's work submitted to the Michaels court, see footnote 5 herein, Myers, Goodman and Saywitz, n. 9 at 4, acknowledge that their article "does not purport to cover the entire corpus of the literature." 4. The Chin award stated the following, id., regarding their research: [t]he judges were particularly impressed with how well you had combined the scholarly synthesis of the complex, often contradictory literature with the discussion of its implications for issues of child abuse. Your paper is an excellent example of how rigorous research can inform important social problems." 5. Ceci, S.J. and Bruck M. (1993b). The Suggestibility of the Child Witness: A Historical Review and Synthesis. Psychological Bulletin, 113, 403-439. At page 403 of the article, the authors state: "In this article we review and integrate the entire corpus of twentieth century social science research concerning young children's presumed suggestibility." Reply at 501. 6. Though it was not a part of the case, WAPA raises the issue of counseling. WAPA Brief, 12. Stuart Greenberg, Ph.D., who testified in this case, has written of the problems that can arrise in counseling. Greenberg, S. and Shuman, D., Therapy vs. Forensics: Irreconcilable Conflict Between Therapeutic and Forensic Roles of Mental Health Professionals, 51 Wash. Bar News Vol. 10, P 16 (Oct. 1997). 7. Note Professor Beaver's recognition in the Martin quote that contamination of memory affects not only reliability, but competency and credibility as well. 8. The recent case of State v. Doggett, Docket No. 15014-3-III (1997) quoted the following CPS rule: "Verbatim documentation of questions/answers regarding specific abuse questioning is desireable." 9. J. Myers, Taint Hearings at page 933, states: If a child discloses abuse during an interview that was video or audiotaped, the court can evaluate firsthand whether improper questions were asked. Courts increasingly suggest that investigative interviews should be videotaped.272 Although videotaping is often appropriate, it must be remembered that taping is

not always possible. ----------------------------------------272. State v. Townsend, 635 So.2d 949, 959 (Fla. 1994) (Court states experts agree that investigative interviews should be videotaped); State v. Michaels, 642 A.2d 1372, 1379, n.1 (N.J. 1994) ("Nearly all experts agree that initial interviews should be videotaped."). See also, Pet. for Discretionary Review, 19-20. 10. J. Myers, Taint Hearings, also stated, "[C]ommunities that videotape investigative interviews generally find that taping does not undermine prosecution." Id. Washington prosecutors refuse to acknowledge either the value of, or the consensus in favor of, videotaping. See also, Appendix C at 57, quoting a Washington prosecutor as saying, "[V]ideotaping investigative interviews of children suspected of being victims of sexual abuse does not promote an accurate determination of guilt, is not in the best interests of the child is counterproductive to prosecution, and is unnecessary." 11. Appendix C hereto consists of the prefatory pages and Chapter 6 of the report. The quoted language is the conclusion of Chapter 6. 12. Though videorecording was not done, the Doggett court noted that other children's testimony about detective Perez's interview techniques mandated a hearing on the issue of improper influence, which influence would constitute possible misconduct. 13. In its Brief, 25 n.10, WAPA wrongly implies the issue of videotaping came to a vote during the last legislative session. On the contrary, SSB 5087 did not "fail" but remains viable. See, bill history at http://leginfo.leg.wa.gov/pub/billinfo/senate/5075-5099/5087_history. It is important to distinguish between the legislative function of directing CPS, and the judicial function of developing procedures to ensure the reliability of evidence. Regardless of what the legislature may or may not do, Petitioner requests the court to require videotaping in order to improve the quality of both the procurement and the preservation of evidence--and thus its reliability. #