Monday, September 3, 2012

Say what you will

State v. Reid, 2012 VT 65

This appeal focuses almost solely on whether the time, content, and circumstances of a child-victim’s statements provided substantial indicia of trustworthiness.  The SCOV holds that the statements and circumstances in this case do, and affirms Defendant’s conviction for aggravated sexual assault. 

Briefly, the six-year-old child-victim in this case made statements to friends and neighbors, was subsequently interviewed by a DCF investigator and police officer, and also made statements at the hospital to a Sexual Assault Nurse Examiner (SANE).   The State gave notice that it intended to introduce several of the victim’s statements into evidence pursuant to Rule of Evidence 804a, and the trial court held a pre-trial hearing on the admissibility of the statements.

Several neighbors and the child-victim’s mother testified to graphic and troubling statements made by the victim.  Additionally, mom gave details regarding the victim’s physical indicators.  One of the neighbors made a DCF report.   

The primary issue in this case stems from the DCF interview.  The interview—conducted by a DCF investigator who had taken a “few classes” on child-interviewing techniques and a police officer—lasted from 10:30 a.m. to the end of the school day.     

The victim did not want to talk about Defendant, so the investigators prompted her with “more pointed questions.”  They told her they knew about what was going on at home and asked her about what she had told a neighbor and friend.   The victim asked several times to return to the classroom.  Eventually, the victim described being sexually assaulted by Defendant, including graphic detail and previously undisclosed details.      

The investigators found that there was sufficient evidence that Defendant had sexually abused the victim, and the victim was taken to the hospital and met with the SANE nurse.  At first, she was reluctant to talk with the nurse, but eventually she became “pretty verbal and did not need a lot of prompting.”

Defendant’s expert testified at the 804a hearing regarding forensic interviewing methods.  He testified there are six well-developed protocols for forensically interviewing alleged child victims of sexual abuse, and that the interview at the school was a failure because it did not meet these protocols.  He also opined that the hospital interview was tainted by the DCF investigator’s and the child-victim’s mother’s presence and the DCF investigator’s providing of information to the SANE nurse. 

Notwithstanding this testimony, the trial court found that the child-victim’s statements were sufficiently trustworthy.  While the trial court noted the deficiencies brought to light by Defendant’s expert, it found that the idiosyncratic and detailed nature of the statements overcame those deficiencies.  In other words, there was a lot of information that wasn’t supplied by and could not rightfully be attributed to investigators.   

The trial court also found that the timing of the disclosures followed a reasonable progression, and were explicit and graphic, as well as biologically and anatomically correct.  Given the totality of the circumstances, the trial court concluded that the statements met Defendant’s expert’s ultimate criteria of inherent plausibility, consistency, biological and anatomical accuracy, and detail.

Interestingly, the trial court included a “confidential finding,” which was provided to counsel under seal as an attachment to the rest of the order.  In the “finding,” the trial judge disclosed that he had presided over a juvenile proceeding involving the victim, and had heard testimony that, if believed, potentially provided additional indicia of trustworthiness.  The “finding” related some of the DCF testimony in that juvenile matter.

At trial, witnesses gave substantially the same testimony they gave at the earlier 804a hearing.  The victim was called by the prosecution as a witness.  She testified that Defendant lived in her house, and that she told the truth when she spoke to the police.  No cross-examination was conducted. 

The State also presented a pediatrician specializing in the area of child abuse, who had conducted a physical exam of the victim.  The pediatrician stated that, based on the child-victim’s disclosures, “it was highly probable that she was sexually abused.” 

Defendant was convicted, and sentenced to twenty-five years to life.  He appealed.

Defendant’s first argument challenges the admission of the child-victim’s testimony.  Put more formally, Defendant argues that the “time, content, and circumstances of the statements” do not “provide substantial indicia of trustworthiness” under Rule. 804a(a)(4).  His primary point is that the school interview was unduly coercive, but he also argues that the State’s expert relied upon inadmissible statements in rendering her conclusion that the child-victim likely was sexually abused.

The SCOV’s standard of review here is abuse of discretion.  That basically means if the trial court had a halfway-decent reason for admitting (or excluding as the case may be) statements under Rule 804a, that decision will not be reversed on appeal.  

As the SCOV explains: “Rule 804a allows admission of statements by a child who is twelve or under if the statements are offered in an aggravated sexual assault case in which the child is the alleged victim, the statements were not taken in preparation for a legal proceeding, the child is available to testify, and ‘the time, content, and circumstances of the statements provide substantial indicia of trustworthiness.’”  The SCOV therefore frames the question as “whether, taking all the facts and circumstances together, the conclusion that the child’s statements display signs of trustworthiness is supported by the court’s findings.”

There is a great deal of Vermont case law on what signs of trustworthiness may include.  Here, the SCOV concludes that “[t]he court’s findings support the conclusion that [the victim’s] statement to the investigators bore sufficient indicia of reliability.” 

The SCOV notes that the victim’s “demeanor and emotional affect during both interviews was appropriate for the gravity of the disclosures she was making”; that the victim spontaneously provided idiosyncratic details and made other statements were not supplied by, or within the investigators’ questions.  The SCOV also concludes that the victim’s recall of peripheral details supports the trial court’s finding of trustworthiness.   The SCOV also concludes that her disclosures were biologically and anatomically correct.  “She provided, using age-appropriate terminology, details about Defendant’s anatomy, the conduct of the assaults, and the relationship between defendant’s body and her own.”

Finally, the SCOV notes that the victim’s statements were consistent throughout.  Not much heed is paid to Defendant’s contention that the school and hospital interviews were improper.  Though the SCOV notes that the leading questions and failure to explore alternatives are problems, these factors do not overcome the overall disclosures made by the victim.    

Defendant next attacks the “confidential finding,” arguing that it compromises the admissibility decision and that it was gleaned from a proceeding in which he had no opportunity to present a defense. 

Although the trial court characterized the paragraph describing the DCF testimony as a “finding,” the SCOV concludes that the trial court did not place any weight on this finding, but merely recited testimony.  And so, you might say the SCOV concludes that a “finding” is not a finding. 

Defendant’s final contention—based on the State’s expert’s reliance on the victim’s statements—gets a we-already-decided-that-the-statements-were-admissible-so-there’s-no-error-there nod.  And the SCOV affirms the conviction. 

Justice Skoglund concurs, but with a caveat.  Overall, in the Concurrence’s view, the time, content, and circumstances of the child-victim’s statements provide substantial indicia of trustworthiness, and also, the child’s provision of new information and idiosyncratic details provides substantiating content.  The Concurrence, however, agrees with Defendant’s expert that the school interview was “egregiously coercive for a six-year-old” even if, as articulated by the trial court, the statements were not in fact the product, or result of any coercion.

Neither the DCF investigator nor the police officer appears to have had much, if any child-interviewing training.   This interview of a six-year-old child lasted “the better part of the entire day.”   The victim repeatedly asked to break for lunch.  The Concurrence takes issue with the court’s finding that the child did not insist that the interview stop: “Really?  After being reminded that she was talking to a police officer and an investigator, this little girl did not insist the interview stop?”

There are several problems with the interviews highlighted here.  While the Concurrence concludes that enough independent-from-the-interview information supported the trial court’s conclusion regarding indicia of truthfulness, she notes that “it cannot be ignored that the substantial failure by the DCF investigator and the police officer to follow recognized and established child-interview protocols weighed heavily against the necessary determination of inherent trustworthiness and reliability.”  The Concurrence concludes by noting that she “cannot help but be concerned that proper training is not being provided in this extremely critical and highly sensitive area of investigation.”

Let the DCF be on notice that if the next investigation is conducted in the same manner, it will likely not get the same pass as the SCOV grants in this case.

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