When thinking about the question of how courts should courts treat hypnosis- or suggestion-contaminated memories, I used to think that it is fairly clear that the former California approach, the Shirley approach, is the wrong one and that the let-it-in-for-what-it’s-worth approach is the right one, at least in cases where all parties are well-financed. I leaned in this direction in part because I was (and am) a great admirer of juries; I was (and am) something of a jury populist.

But then some events occurred that shook me out of my dogmatic slumbers.

In the 1980s and early 1990s there were waves of criminal prosecutions of child care workers who had allegedly molested children in their care. (These prosecutions were incited in no small part by Oprah Winfrey.) In many of these cases the allegedly abused children were initially vague or uncertain about whether abuse had taken place. However, various methods were used to refresh and awaken the memories of the children who, it was thought, had been abused. Eventually the children came around and said or were understood to say that they had been abused by workers at day care facilities. These prosecutions attracted much attention. In most of these cases the defendants, the child-care workers, were vigorously defended. Nonetheless, in many cases the defendants were convicted. The trouble was, as it later appeared, the defendants had not done what they had been accused and convicted of doing. Perhaps one of the reasons why there were so many convictions in these mass child abuse cases was that by the time of trial the children who testified sincerely believed that they had in fact been molested – and it appeared that in many or most of these cases almost all the actors involved in pushing these cases to trial also genuinely believed that sexual abuse had taken place.

But something had gone wrong. The defendants in these cases were, it turned out, almost invariably and almost certainly innocent. These miscarriages of justice led me to reconsider my view that, generally speaking, we should trust juries to assess the testimony of witnesses whose memories have been impaired by suggestive devices such as hypnosis.

Consider one such case from our own neighborhood – State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994). In that case Kelly Michaels – a young, dedicated, and enthusiastic, teacher’s aide at a daycare center, in her first year on the job – was charged with sexually abusing children, literally dozens of children at the daycare center. The case started when the mother of one child heard her child say something that suggested to her that her child had been molested. She notified a “child advocate” and asked the advocate to investigate. The child initially denied having been molested. But after persistent questioning the child seem to admit to conduct that amounted to child abuse. Other children in the day care center were then questioned. Word was spread in part by school-wide conferences with all the parents in a meeting. The parents were told of the possibility of sex abuse and were asked to question their children. If children said things that suggested the possibility of sex abuse, these children were aggressively questioned, again by the aoforementioned professional “child advocate,” who plainly believed, almost from the beginning, that Kelly Michaels had molested large numbers of children at the center and had done other awful things to them. (The children also told fantastic stories, for example, about underground torture chambers and the like.) It eventually became clear that something akin to a mass delusion had taken place—advocates, criminal investigators, and parents had unwittingly led large numbers of children to believe things that had never happened. Nonetheless, Kelly Michaels was charged and convicted. It its opinion upholding the overturning of the conviction, the S. Ct. of NJ recites,

In this case a nursery school teacher [Kelly Michaels] was convicted of bizarre acts of sexual abuse against many of the children who had been entrusted to her care. She was sentenced to a long prison term with a substantial period of parole ineligibility.

In September 1984, Margaret Kelly Michaels was hired by Wee Care Day Nursery ("Wee Care") as a teacher's aide for preschoolers.

Michaels, a college senior from Pittsburgh, Pennsylvania, came to New Jersey to pursue an acting career. She responded to an advertisement and was hired by Wee Care, initially as a teacher's aide for preschoolers, then, at the beginning of October, as a teacher.

On April 26, 1985, the mother of M.P., a four-year old in Michaels's nap class, noticed while awakening him for school, that he was covered with spots. She took the child to his pediatrician and had him examined. During the examination, a pediatric nurse took M.P.'s temperature rectally. In the presence of the nurse and his mother, M.P. stated, "this is what my teacher does to me at nap time at school."

The pediatrician, Dr. Delfino, then examined M.P. He informed Mrs. P. that the spots were caused by a rash.

M.P.'s mother contacted the New Jersey Division of Youth and Family Services ("DYFS") and Ms. Spector, Director of Wee Care, to inform them of her son's disclosures. On May 1, 1985, the Essex County Prosecutor's office received information from DYFS about the alleged sexual abuse at Wee Care. The Prosecutor's office assumed investigation of the complaint.

The Prosecutor's office interviewed several Wee Care children and their parents…. Extensive additional interviews and examinations of the Wee Care children by the prosecutor's office and DYFS then followed.

Michaels was charged on June 6, 1985, in a three count indictment involving the alleged sexual abuse of three Wee Care boys. After further investigation, a second indictment was returned July 30, 1985, containing 174 counts of various charges involving twenty Wee Care boys and girls. An additional indictment of fifty-five counts was filed November 21, 1985, involving fifteen Wee Care children. Prior to trial the prosecution dismissed seventy-two counts, proceeding to trial on the remaining 163 counts.

After several pretrial hearings, the trial commenced on June 22, 1987. The bulk of the State's evidence consisted of the testimony of the children. That testimony referred extensively to the pretrial statements that had been elicited from the children during the course of the State's investigations. The State introduced limited physical evidence to support the contention that the Wee Care children had been molested.

By the time the trial concluded nine months later, another thirty-two counts had been dismissed, leaving 131 counts. On April 15, 1988, after twelve days of deliberation, the jury returned guilty verdicts on 115 counts, including aggravated sexual assault (thirty-eight counts), sexual assault (thirty-one counts), endangering the welfare of children (forty-four counts), and terroristic threats (two counts). The trial court sentenced Michaels to an aggregate term of forty-seven years imprisonment with fourteen years of parole ineligibility.

Fortunately, the NJ S. Ct. agreed with that NJ's intermediate appellate court that Kelly Michael’s conviction had to be reversed.

What happened in this case?

Well, it’s a long story. But let me tell you about just part of it.

The Court said:

The focus of this case is on the manner in which the State conducted its investigatory interviews of the children.

The Appellate Division carefully examined the record concerning the investigatory interviews. It concluded that the interrogations that had been conducted were highly improper.

If you turn to the Appellate Division’s opinion, you find nuggets such as this:

Of the nineteen children who testified at trial, only five were actually assigned to defendant's class. The facts surrounding the alleged sexual abuse came from two sources: the children testified in the judge's chambers via CCTV, and the children's parents and grandparents testified regarding what the children had told them after defendant left Wee Care. A good deal of the parental testimony was devoted to the behavioral changes that they had observed in their children. The recollections of the children's behavior came at the behest of the State's expert, Eileen Treacy, who provided the parents with a checklist of behavioral changes to consider as they recalled their children's actions at the time of the alleged abuse. Treacy did not become involved in this case until late October 1986. Consequently, the parents were being asked to reconstruct events a substantial time after they had actually observed the events.

A child-specific recitation of the alleged abusive acts would serve no useful purpose at this juncture. No complaints of abuse were made during defendant's tenure at Wee Care. However, on April 30, 1985, a Wee Care child visited his pediatrician. While the nurse was taking his temperature rectally, the child commented that his teacher did the same thing to him. When the nurse asked the child what teacher, he responded "Kelly" -- the name the children knew defendant by. Although the pediatrician found no evidence of abuse, this comment by the child started the investigation at Wee Care. A defense expert opined at trial that it was patently obvious that the child's comment was misunderstood and that the child was referring to the rubbing of his back and not the anal penetration.

That child, six-and-a-half years old at trial, started Wee Care when he was almost four. He remembered that Joan was his teacher but that he had Kelly, not Joan, at nap time. He testified that he hated nap time because Kelly had once taken his temperature and he did not want her to. She had put "gasoline" (vaseline) on the thermometer first. Kelly put the thermometer in his "bum," and she said nothing when he told her not to do it. He stated that she also took the temperatures of two other children, and he saw her pull their pants down. Neither of those two children indicated that their temperatures were taken at school. Their assertions of abuse were far more egregious, as were those of many other children after they had been "interviewed" by the authorities.

However, during the time defendant was teaching at the school, no children had ever complained of experiencing any difficulties with her. Defendant's co-employees observed no inappropriate behavior by defendant during her employment at Wee Care. Nor did any of the Wee Care employees notice that any of the children exhibited any fear or reluctance to be with defendant. Defendant denied ever doing anything improper with the children. She pointed out that she had little contact with many of the children, and that there were always people 3 who arrived unannounced.

After the parent notified the authorities that the child alleged his temperature had been taken by Kelly, the authorities commenced an investigation that initially encompassed only a few children. Eventually, however, on the recommendation of a Division of Youth and Family Services (DYFS) investigator, the interviewing of children was expanded and intensified to include virtually all of the children Kelly could have had contact with.

The accounts of sexual abuse obtained through interviews of the children ranged from relatively minor accounts of touching to virtually incomprehensible heinous and bizarre acts. A common act alleged by both boy and girl students was that Kelly inserted knives, forks, and spoons into their "butts," penises, or vaginas. One girl stated that Kelly inserted a light bulb in her vagina, and a boy claimed Legos were inserted in his "tushie." The children told of games where both they and Kelly took off their clothes and, according to varying accounts, laid on each other, licked each other and Kelly, including applying and licking off peanut butter and/or jelly, had "intercourse" with Kelly while she apparently was having her menstrual period, defecated on the floor, ate "pee and poop," and performed cunnilingus on her.

Kelly allegedly committed fellatio on some of the boys. Kelly was said to have played "Jingle Bells" on the piano during many of those games. The acts were said to have taken place in the music or choir room, the gym, lunch room, nap room, and bathroom. Kelly was said to have "pooped and peed" on or in a piano bench, on the floor, on the lunch table, and made a cake out of poop that the children had to taste. She was also said to have taken off her clothes in the lunch room in the presence of both children and adults. Testing at the Federal Bureau of Investigation laboratories of a wooden spoon and piano benches for inculpatory evidence proved negative.

Several of the children claimed to have told their parents of Kelly's activities while they were happening, and some children claimed that Wee Care personnel were present or had been told of the occurrences. No adults corroborated the children's contemporaneous complaints. Many of the children asserted that Kelly threatened to harm their parents if they told of the activities.

Defendant urges that the interviews of the children by investigators and the prosecutor for more than two years prior to trial were … suggestive and coercive…

Defendant points out and the State concedes that many of the interviews reveal extremely leading and/or suggestive questions. Certain questions planted sexual information in the children's minds and supplied the children with knowledge and vocabulary which might be considered inappropriate for children of their age group. Children were encouraged to help the police "bust[] this case wide open." Peer pressure and even threats of disclosing to the other children that the child being questioned was uncooperative were used. A child was told that she needed to talk to help her friends and that the investigator had already spoken to five other children who revealed what happened. In some cases, certain children were told in detail what another child had disclosed. Sexualized discourse was encouraged and applauded.

It is clear that all of these young children were convinced, either by their own experiences, other children, investigators, parents, or some combination thereof, that defendant was "bad" because she had done "bad things" to children at Wee Care. The trial testimony of most of the children began with this type of introduction. Children were told they could keep Kelly locked in jail by cooperating; therefore, they and their families would be safe. Anatomical dolls were used in the interviews, and in some cases the children did not disclose anything until they were either presented with the dolls, shown various eating utensils, or encouraged to demonstrate how Kelly might have hurt a little girl or boy. The records of the interviews show that these methods caused certain children to use their imagination and stray from reality, even to the dismay of the investigator at times. In several instances, the children were tired and/or resistant to participating in the interviews, but the investigators continued to press for cooperation.

This sort of thing was too much for the Supreme Court of New Jersey to stomach. The Supreme Court itself added:

Almost all of the interrogations conducted in the course of the investigation revealed an obvious lack of impartiality on the part of the interviewer. One investigator, who conducted the majority of the interviews with the children, stated that his interview techniques had been based on the premise that the "interview process is in essence the beginning of the healing process." He considered it his "professional and ethical responsibility to alleviate whatever anxiety has arisen as a result of what happened to them." A lack of objectivity also was indicated by the interviewer's failure to pursue any alternative hypothesis that might contradict an assumption of defendant's guilt, and a failure to challenge or probe seemingly outlandish statements made by the children.

The record is replete with instances in which children were asked blatantly leading questions that furnished information the children themselves had not mentioned. All but five of the thirty-four children interviewed were asked questions that indicated or strongly suggested that perverse sexual acts had in fact occurred. Seventeen of the children, fully one-half of the thirty-four, were asked questions that involved references to urination, defecation, consumption of human wastes, and oral sexual contacts. Twenty-three of the thirty-four children were asked questions that suggested the occurrence of nudity. In addition, many of the children, some over the course of nearly two years leading up to trial, were subjected to repeated, almost incessant, interrogation. Some children were re-interviewed at the urgings of their parents.

The record of the investigative interviews discloses the use of mild threats, cajoling, and bribing. Positive reinforcement was given when children made inculpatory statements, whereas negative reinforcement was expressed when children denied being abused or made exculpatory statements.

Throughout the record, the element of "vilification" appears. Fifteen of the thirty-four children were told, at one time or another, that Kelly was in jail because she had done bad things to children; the children were encouraged to keep "Kelly" in jail. For example, they were told that the investigators "needed their help" and that they could be "little detectives." Children were also introduced to the police officer who had arrested defendant and were shown the handcuffs used during her arrest; mock police badges were given to children who cooperated.

In addition, no effort was made to avoid outside information that could influence and affect the recollection of the children. As noted by the Appellate Division, the children were in contact with each other and, more likely than not, exchanged information about the alleged abuses. 264 N.J.Super. at 629, 625 A.2d 489. Seventeen of the thirty-four children were actually told that other children had told investigators that Kelly had done bad things to children.

As I said, the Supreme Court of New Jersey found this all too much to stomach and it agreed with NJ’s Appellate Division [intermediate appellate court] that the conviction had to be reversed.

Before I go on, I want to tell you that a Cardozo graduate played a prominent role in the successful appeal of Kelly Michaels' convictions. His name is Robert Rosenthal. He (and others, including William Kunstler) largely handled Kelly's successful appeal. Rob, I am proud to say was one of my Evidence students; if I am not mistaken, he sat in one of the chairs in this very classroom. This example should inspire you. Rob was a green lawyer when he won this very important victory.

The NJ S Ct not only reversed Kelly Michaels' conviction. It also ruled that special safeguards had to be adopted that would prevent a recurrence of the kind of travesty that occurred in the Michaels case. The Court wrote:

This Court has a responsibility to ensure that evidence admitted at trial is sufficiently reliable so that it may be of use to the finder of fact who will draw the ultimate conclusions of guilt or innocence. That concern implicates principles of constitutional due process. "[R]eliability [is] the linchpin in determining admissibility" of evidence under a standard of fairness that is required by the Due Process Clause of the Fourteenth Amendment. … Competent and reliable evidence remains at the foundation of a fair trial, which seeks ultimately to determine the truth about criminal culpability. If crucial inculpatory evidence is alleged to have been derived from unreliable sources due process interests are at risk.

The New Jersey Supreme Court went on to say that the trial court must hold a hearing to make a preliminary determination that the testimony of children in cases such as that at hand is sufficiently reliable to be admissible. The Court wrote:

We acknowledge that although reliability assessments with respect to the admissibility of out-of-court statements are commonplace, … assessing reliability as a predicate to the admission of in-court testimony is a somewhat extraordinary step. Nevertheless, it is not unprecedented. … When faced with extraordinary situations in which police or prosecutorial conduct has thrown the integrity of the judicial process into question, we have not hesitated to use the procedural protection of a pretrial hearing to cleanse a potential prosecution from the corrupting effects of tainted evidence.

In this case we are … concerned about the reliability of anticipated in-court testimony that may be derived from the out-of-court statements and antecedent interrogations. The considerations that are germane to the assessment of the reliability of in-court testimony parallel those that inform the determination of the reliability of out-of-court statements.

…

We are confronted in this case with pretrial events relating not to the identification of an offender but, perhaps more crucially, to the occurrence of the offense itself. Those events -- investigatory interviews -- are fraught with the elements of untoward suggestiveness and the danger of unreliable evidentiary results. We thus concur in the determination of the Appellate Division, 264 N.J.Super. at 631-32, 625 A.2d 489, that to ensure defendant's right to a fair trial a pretrial taint hearing is essential to demonstrate the reliability of the resultant evidence.
…

The pretrial hearing should be conducted pursuant to Evid.R. 104. The basic issue to be addressed at such a pretrial hearing is whether the pretrial events, the investigatory interviews and interrogations, were so suggestive that they give rise to a substantial likelihood of irreparably mistaken or false recollection of material facts bearing on defendant's guilt. …

Consonant with the presumption that child victims are to be presumed no more or less reliable than any other class of witnesses, the initial burden to trigger a pretrial taint hearing is on the defendant. … The defendant must make a showing of "some evidence" that the victim's statements were the product of suggestive or coercive interview techniques. …

That threshold standard has been met with respect to the investigatory interviews and interrogations that occurred in this case. Without limiting the grounds that could serve to trigger a taint hearing, we note that the kind of practices used here -- the absence of spontaneous recall, interviewer bias, repeated leading questions, multiple interviews, incessant questioning, vilification of defendant, ongoing contact with peers and references to their statements, and the use of threats, bribes and cajoling, as well as the failure to videotape or otherwise document the initial interview sessions -- constitute more than sufficient evidence to support a finding that the interrogations created a substantial risk that the statements and anticipated testimony are unreliable, and therefore justify a taint hearing.

Once defendant establishes that sufficient evidence of unreliability exists, the burden shall shift to the State to prove the reliability of the proffered statements and testimony by clear and convincing evidence. Hurd, supra, 86 N.J. at 546, 432 A.2d 86. Hence, the ultimate determination to be made is whether, despite the presence of some suggestive or coercive interview techniques, when considering the totality of the circumstances surrounding the interviews, the statements or testimony retain a degree of reliability sufficient to outweigh the effects of the improper interview techniques.

…

Our decision today should make clear that the investigatory techniques employed by the prosecution in this case are unacceptable and that prudent prosecutors and investigatory agencies will modify their investigatory practices to avoid those kinds of errors and to conform to those standards that are now accepted by the professional and law enforcement communities. Therefore, we conclude that the need to deter prosecutorial misbehavior will be adequately fulfilled by the clear and convincing-evidence standard.

Finally, if it is determined by the trial court that a child's statements or testimony, or some portion thereof, do retain sufficient reliability for admission at trial, then it is for the jury to determine the probative worth and to assign the weight to be given to such statements or testimony as part of their assessment of credibility ...
…

In conclusion, we find that the interrogations that occurred in this case were improper and there is a substantial likelihood that the evidence derived from them is unreliable. We therefore hold that in the event the State seeks to re-prosecute this defendant, a pretrial hearing must be held in which the State must prove by clear and convincing evidence that the statements and testimony elicited by the improper interview techniques nonetheless retains a sufficient degree of reliability to warrant admission at trial. Given the egregious prosecutorial abuses evidenced in this record, the challenge that the State faces is formidable. If the statements and proffered testimony of any of the children survive the pretrial hearing, the jury will have to determine the credibility and probative worth of such testimony in light of all the surrounding circumstances.

So this is New Jersey's approach to the testimony of children who may have been influenced by actors such as child advocates and police investigators.

Is NJ’s approach the right approach? Is this the best way to avoid criminal justice travesties such as the convictions in the child care—mass child abuse convictions that occurred in the 1980s and 1980s (and is it the right way to prevent similar possible travesties of criminal or civil justice in the recent litigation against Catholic priests for sexual abuse of minors)? Should the NJ approach be extended to all witnesses (not just children) who may have been influenced by the actions of other people [or, in any event, to all prosecution witnesses in criminal cases who may have been influenced by government actors]?

The New Jersey approach is arguably the better approach because perhaps the NJ approach in Michaels amounts to the injunction, “Don’t take steps that degrade evidence!” It’s true that the trier of fact can discount evidence because of steps that have degraded its quality but perhaps we (society) are better off if the trier has UNDEGRADED evidence.

QUESTION: This seems to be a powerful theory. But if the NJ approach is so commendable, why have all other states refused to follow the rules and principles laid down in Michaels?

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