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Jul 25, 2009

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http://www.accused.com/CM/ForAttorneys/Suggestibility_child.pdf

As succinctly stated by researchers, suggestibility in the

context of child witnesses "concerns the degree to which

children's encoding, storage, retrieval, and reporting of events

can be influenced by a range of social and psychological

factors." (Ceci and Bruck, Suggestibility of the Child Witness:

A Historical Review and Synthesis Vol. 113 Psychological Bulletin

403, 404 (1993).) The factors noted by Ceci and Bruck that can

influence a child witness's suggestibility, in terms of what

happens when the child is interviewed concerning sexual abuse

include repeating questions, asking misleading questions, asking

leading questions, conducting the interview in an accusatory

atmosphere, reinforcing the child's answers, chastising the

child's failure to disclose, prolonging the interview, conducting

multiple interviews, and source misattribution. (Id., pp. 418-

425.)

1. The factors that exist in Child Sexual Abuse

Accommodation Syndrome exist in cases of false accusations also.

2. Psychological factors that can cause memory to be

influenced by suggestibility. This testimony is based on over 90

years of research on memory and suggestibility.

3. Psychological factors present in interviewing techniques

that can cause memory to be influenced by suggestions.

4. Evaluation of the reliability of psychological

methodology used in other experts' opinions. For example, in the

formation of the concepts of Child Sexual Accommodation Syndrome.

The expert will not express an opinion as to the credibility

of any child witness in this case nor will

he/she express an

opinion that any child witness in this case was subjected to

suggestive or coercive influences during any interviews.

DEFENDANT'S CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE.

Due Process, under both the United States Constitution, and

the California Constitution, requires that an accused person have

a right to full and fair presentation of evidence that might

influence the determination of guilt. (United States

Constitution, Amendments V, VI, and XIV; California Constitution,

Article I, Section 15; Taylor v. Illinois (1988) 484 U.S. 400,

408; Chambers v. Mississippi (1973) 410 U.S. 284 [exclusion of

evidence vital to a defendant's defense constituted a denial of a

fair trial in violation of constitutional due process

requirements.)

EXPERT TESTIMONY ON PSYCHOLOGICAL FACTORS AFFECTING

A CHILD WITNESS'S SUGGESTIBILITY, CAPACITY TO PERCEIVE,

RECOLLECT, OR COMMUNICATE HAS BEEN FOUND

ADMISSIBLE IN FEDERAL COURTS, AND BY ANALOGY IN

CALIFORNIA COURTS AS WELL.

A. ROUSE CASE

In United States v. Rouse (8

th Cir. 1997) 111 F.3d 561, the

defendants were convicted of aggravated sexual abuse of children

under twelve years of age. The crucial issue at trial was

whether the child victims testified from their own memory of the

events or from a false memory induced by the interrogation

methods to which the children were subjected. The defense

presented the testimony of a psychologist concerning "the ways in

which the reliability of children's allegations of physical or

sexual abuse may be tainted by adult questioning practices that

suggest false answers or even implant false memories," such as by

leading questions, repeated questions, play therapy, and

communicating adult assumptions that cause a child to give what

he or she perceives is the correct answer, use of rewards, etc.

(Id., at p. 570.) The trial court precluded the expert from

testifying that a practice of suggestibility had been employed by

the interviewers in that case and that the victims' accusations

of sexual abuse were not credible. On review, the appellate

court determined that "A qualified expert may explain to the

jury the dangers of implanted memory and suggestive practices

when interviewing or questioning child witnesses, but may not

opine as to a child witness's credibility," thus approving the

lower court's rulings. (Id., at p. 571.) The appellate court in

a previous opinion in the same case found such evidence passed

the reliability test of Daubert v. Merrell Dow Pharmaceuticals,

Inc. (1993) 509 U.S. 579. Tot he same effect is United States v.

Reynold (9

th Cir. 1996) 77 F.3d 253, 254 (reviewing court

affirmed district court's rulings allowing the defense to present

expert testimony on memory and suggestibility of young children).

The type of expert testimony found admissible in Rouse is exactly

the type of testimony Defendant proposes to be admitted here.

B. MCDONALD CASE

In People vs. McDonald (1984) 37 Cal.3d 351, the Supreme

Court held that the trial court prejudicially abused its

discretion in excluding expert testimony on psychological factors

affecting the accuracy of eyewitness testimony. (Id. at 376).

The court rejected the grounds on which the trial court premised

the exclusion of such testimony, which were that it would invade

the province of the jury, standard CALJIC 2.21 would sufficiently

alert the jury to problems in eyewitness testimony; the proposed

expert testimony would violate Evidence Code §352, and it was not

sufficiently "scientific enough at this point in time."

The McDonald court found that expert testimony which simply

informs the jury of certain psychological factors that may impair

the accuracy of a typical eyewitness identification "falls well

within the broad statutory description of 'any matter that has

any tendency in reason' to bear on the credibility of a witness"

(37 Cal.3d 351, 366, citing Evidence Code Section 780). Such

testimony was found to be sufficiently beyond common experience

such that it would assist the trier of fact within the meaning of

Evidence Code §801. (Id., at p. 369.) The expert testimony

which Defendant seeks to admit in this case is exactly the type

approved in McDonald in an analogous context, i.e., a discussion

of psychological factors which can impair the memory and

perception of a witness, which bears on his or her credibility.

McDonald remains the law in this state. (See e.g., People v.

Gaglione (1994) 26 Cal.App.4th 1291, 1301 ["It is undisputed that

expert testimony on the psychological factors affecting the

reliability of eyewitness testimony is admissible in a criminal

case," citing McDonald].)

The McDonald model of presenting appropriate expert

testimony has been endorsed in child molest cases where the

defendant wishes to attack the reliability of the evidence

against him, thus providing further support for the admission of

the expert testimony at issue in this case. For example, in

People v. Harlan (1990) 222 Cal.App.3d 439, the defense moved to

prevent testimony of a child on the grounds that studies showed

their testimony was unreliable. The court stated to do so would

virtually insulate child molesters and the use of expert

witnesses as used in the McDonald case was the preferred method

for public policy reasons. The court stated:

"The court in People vs. McDonald (1984) 37 Cal.3d 351,

208 Cal.Rptr. 236, 690 P.2d 709 suggested a better

approach by which a defendant may challenge the

reliability of the evidence against him. In McDonald

the defendant challenged the trial court's ruling

excluding expert testimony on factors which affect the

reliability of eyewitness identifications. The Supreme

Court reviewed the extensive case law and professional

literature on the subject of the high probability of

error in eyewitness identification. (id., at pp. 363-

365, 208 Cal.Rptr. 236, 690 P.2d 709.) The court

concluded, `The consistency of the results of these

studies is impressive, and the courts can no longer

remain oblivious to their implications for the

administration of justice.' (Id., at p. 365, 208

Cal.Rptr. 236, 690 P.2d 709.) Next, the court reviewed

the defendant's offer of proof and determined that the

expert's proffered testimony was beyond the common

knowledge of jurors and thus was a proper subject for

expert testimony. Finally, the court reviewed the

circumstances under which it would be error to exclude

such testimony. The court held, `when an eyewitness

identification of the defendant is a key element of the

prosecution's case but is not substantially

corroborated by evidence giving it independent

reliability, and the defendant offers qualified expert

testimony on specific psychological factors shown by

the record that could have affected the accuracy of the

identification but are not likely to be fully known to

or understood by the jury, it will ordinarily be error

to exclude that testimony.' (Id., at p. 377, 208

Cal.Rptr. 236, 690 P.2d 709.)

We prefer this approach to that proposed by amici,

which would immunize an accused child molester when the

only witness against him is the victim. A defendant

may, under current law, offer expert testimony to

challenge the victim's testimony in appropriate cases,

preserving the jury's right to make ultimate

determinations on the credibility of the witness.

(McDonald, supra, 37 Cal.3d at p. 377, 208 Cal.Rptr.

236, 690 P.2d 709.)" (People v. Harlan (1990) 222

Cal.App.3d at p. 452.)

Also see People v. Gray (1986) 187 Cal.App.3d 213, 220 [in child

abuse case, expert testimony concerning the traits or

characteristics of a child who has been sexually abused

admissible as akin to expert testimony informing the jury of

certain factors that may affect an eyewitness identification a la

McDonald].)

Visibility: Everyone
Posted: Saturday July 25, 2009, 8:08 pm
Tags: mother family child children parents police father court privacy i foster adoption safety petition toxic cps false harassment warrant accused falsely dcfs kidnapping intimidation procedure allegation [add/edit tags]

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