Before the New Jersey Supreme Court determined the procedures and applicability of a pre trial taint hearing in State of N.J. v. Michaels, there was no real legal authority for a defendant to rely upon. This kind of pre trial hearing is limited in aggravated sexual assault cases, and normally deals with the methods, types of questions, and other tools used by an investigator during the course of interviewing the alleged victim.
STATE V. MICHAELS
The New Jersey Supreme Court unanimously recognized the need for a pretrial “taint hearing” in cases of alleged child sexual assault when a substantial likelihood existed that the evidence derived from pretrial interrogations was unreliable. State v. Michaels, 136 NJ 299 (1994). Margaret Kelly Michaels was convicted of child sexual assault and sentenced to 47 years imprisonment. Her convictions arose from allegations by multiple child victims who were under her care at a daycare center. The questioning of the alleged victims had been conducted in a highly improper manner, and were sufficiently coercive and suggestive to alter, without remedy, the perception of the children. That questioning had irremediably compromised the reliability of the testimonial evidence used to convict Michaels. Under such circumstances, a pretrial hearing (taint hearing) was required at which time the state was obligated to prove by clear and convincing evidence that the statements and testimony retained a sufficient degree of reliability to warrant admission at trial.
ACTIONS OF INVESTIGATORS SUBJECT TO PRE-TRIAL HEARINGS.
There are many actions and behaviors that should be addressed in the memorandum when they have occurred during the investigatory interviews of the child which could have an impact on the reliability of the child’s story. The following are some instances that could easily identify factors that have tainted the perceptions and memory of an alleged victim;
- The misuse of dolls as play objects.
- The excessive probing regarding assaults by adults.
- The failure to demonstrate that the child has any meaningful distinction between truth and lies.
- The use of repetitive questions.
- Asking the same question over and over again trying to elicit the “right” response
- The use of coercive tactics such as rewards.
- The use of confusing words, age inappropriate questioning, for which a child of the alleged victim’s age would not have an understanding.
- The failure to ask meaningful follow up questions or investigatory inquiries with regard to the other named assailants.
- The failure to cease questioning when the child was apparently fatigued.
- The failure to follow proper protocol in using the dolls.
- The use of multiple and suggestive questions.
- The failure to challenge illogical, unrealistic responses.
- The failure to cease questioning when the child appeared reluctant to answer questions.
RELIABILITY
The pre-trial hearing should concentrate on the above issues, if present, and also the reliability of the victim’s statements. Victims, especially children, can easily be “taught” information during the course of their interview. Even more disturbing is when an investigator takes advantage of a child’s emotional state in order to elicit certain kinds of answers. Children who are especially young, or who are developmentally challenged pose a larger risk of being influenced by their questioners.
