Message-Id: 
Date: Sun, 25 Sep 94 14:48 EDT
From: aaron@m-net.arbornet.org (Aaron Larson)
To: harris@MIT.EDU
Subject: *** 1710 LINES *** State v. Michaels *** 1710 LINES ***

 State Of New Jersey, Plaintiff-Appellant, V. Margaret Kelly
Michaels, Defendant-Respondent.

State V. Michaels

A-97 September Term 1993

Supreme Court Of New Jersey

136 N.J. 299; 642 A.2d 1372; 1994 N.J. LEXIS 504

January 31, 1994, Argued June 23, 1994, Decided

Prior History: [**1]

On certification to the Superior Court, Appellate Division, whose
opinion is reported at 264 N.J. Super. 579 (1993).

Disposition: Judgment of the Appellate Division is AFFIRMED.

Syllabus

(This syllabus is not part of the opinion of the Court. It has been
prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme
Court. Please note that, in the interests of brevity, portions of
any opinion may not have been summarized).

State Of New Jersey V. Margaret Kelly Michaels (A-97)

Argued January 31, 1994 -- Decided June 23, 1994

Handler, J., writing for a unanimous Court.

Margaret Kelly Michaels was accused of sexually abusing children
she had been caring for as a nursery school teacher at the Wee Care
Day Nursery (Wee Care).  Michaels was convicted by a jury of
aggravated sexual assault, sexual assault, endangering the welfare
of children, and terroristic threats. She was sentenced to forty-seven
years imprisonment with fourteen years of parole ineligibility.
On appeal, the Appellate Division reversed the convictions and
remanded the matter for retrial. Among other things, the Appellate
Division concluded [**2] that the investigatory interrogations of
the child victims that had been conducted were highly improper
because certain interview practices were sufficiently coercive or
suggestive to alter without remedy the perception of the child-abuse
victims. In setting aside the convictions, the Appellate Division
ordered that if the State decided to retry Michaels, a pretrial
hearing would be necessary to determine whether the statements and
the testimony of the child-sex-abuse victims had to be excluded
because improper questioning by State investigators had irremediably
compromised the reliability of that testimonial evidence.

The Supreme Court granted certification limited to the pretrial
hearing issue.

HELD: The interrogations of the child-sex-abuse victims were improper
and there is a substantial likelihood that the evidence derived
from them is unreliable.  Therefore, if the State seeks to reprosecute
Margaret Kelly Michaels, 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 retain a sufficient degree of reliability to warrant
admission at trial.

[**3] 1. The testimony of children generate special concerns because
of their vulnerability, immaturity, and impressionability and our
laws have attempted to accommodate those concerns, particularly in
the area of child sex abuse. The "investigative interview" is
critical to a child-sex-abuse case; the decision to prosecute is
often made based on the information obtained in the initial
investigatory interviews with alleged victims. The academic,
professional, and law enforcement communities, as well as the
courts, appear to agree that the use of coercive or highly suggestive
interrogation techniques in child sex abuse cases can create a
significant risk that the interrogation itself will distort the
child's recollection of events, thereby undermining the reliability
of the statements and subsequent testimony concerning such events.
(pp. 7-11)

2. Factors that bear on the kinds of interrogation that can affect
the reliability of a child's statements concerning sexual abuse
include: a lack of investigatory independence; the pursuit by the
interviewer of a preconceived notion of what has happened to the
child; the use of leading questions; a lack of control of outside
influences on the child's [**4] statements, such as previous
conversations with parents or peers; and the use of incessantly
repeated questions. The explicit vilification or criticism of the
perpetrator is another factor that can induce a child to believe
the abuse has occurred. In addition, an interviewer's bias with
respect to a suspected person's guilt or innocence can strongly
effect the accuracy of the child's statements and the transmission
of such suggestion can be subtly communicated through tone of voice,
mild threats, praise, cajoling, bribes and rewards, as well as
resort to peer pressure. Any negative impact of improper interrogation
procedures has a more pronounced effect among young children. (pp.
11-15)

3. The record demonstrates numerous incidents of egregious violations
of proper interview procedures. Most of the interviews and
interrogations did not arise from spontaneous recall; few, if any,
of the children volunteered information that directly implicated
Michaels and few provided any tell-tale details of the alleged
abuse although repeatedly prompted to do so by the investigators.
Furthermore, the investigators were not trained in interviewing
young children and many of the interviews demonstrated [**5]
ineptness and frustration in dealing with the pre-schoolers. In
addition, the earliest interviews were not videotaped and in some
instances original notes were destroyed. Furthermore, almost all
of the interrogations demonstrated bias on the part of the interviewer.
The children were asked blatant leading questions that furnished
information that the children themselves had not mentioned; many
of the children were subjected to multiple interviews and incessant
questioning; and the record of the interviews discloses the use of
mild threats, cajoling and bribing.  Positive reinforcement was
given when children made statements inculpatating Michaels, whereas
negative reinforcement was expressed when children began denying
being abused or made exculpatory statements. The record also
discloses an element of vilification of Michaels; many of the
children were told that she was in jail because she had done bad
things to them and were encouraged to keep her in jail. Lastly,
the investigators permitted ongoing contact with peers and made
references to peer statements in interviews. (pp. 15-20)

4. Because the interviews of the children were highly improper and
utilized coercive and unduly [**6] suggestive methods, a substantial
likelihood exists that the children's recollection of past events
was both stimulated and materially influenced by that coercive
questioning. Therefore, a pretrial taint hearing must be held to
determine whether those clearly improper interrogations so infected
the ability of the children to recall the alleged abusive events
that their pretrial statements and in-court testimony based on that
recollection are unreliable and should be excluded. The determination
of the reliability of pretrial statements must take into account
all relevant circumstances, including factors that bear on pretrial
statements of children in child-sex-abuse cases.  There is also a
concern about the reliability of anticipated in-court testimony
derived from the out-of-court statements and prior interrogations;
the considerations that are relevant to the assessment of the
reliability of in-court testimony parallel those that inform the
determination of the reliability of out-of-court statements. (pp.
20-25)

5. The pretrial hearing should be conducted pursuant to Evid. Rule
104 to determine whether the investigatory interviews and interrogations
were so suggestive that they [**7] give rise to a substantial
likelihood of irreparably mistaken or false recollection of material
facts bearing on Michaels' guilt. To trigger a pretrial taint
hearing, the defendant has the initial burden of demonstrating that
the victims' statements were the products of suggestive or coercive
interview techniques. The kinds of practices used here 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. Thereafter, the burden shifts to the State to prove
the reliability of the proffered statements and the testimony by
clear and convincing evidence. The State must prove that despite
the presence of some suggestive or coercive interview techniques,
when considering the totality of the circumstances surrounding the
interviews, the statements or testimony retained a degree of
reliability sufficient to outweigh the effects of the improper
interview techniques. The parties are entitled to call experts on
the issue of suggestiveness and the propriety of the interrogatories
but those experts may not testify as to the credibility of an [**8]
individual child as a witness. The State may bolster the reliability
of the child's statement or testimony by proffering independent
indicia of reliability. (pp. 25-29)

6. The clear-and-convincing-evidence standard safeguards the
defendant's right to a fair trial and satisfies the need to deter
prosecutorial misconduct. In this case, the investigatory techniques
employed by the prosecution were unacceptable. Prosecutors and
investigatory agencies should modify their investigatory practice
to avoid the kinds of errors here and conform to standards that
are now accepted by the professional and law enforcement communities.
If the trial court determines that a child's statement or testimony,
or some portion thereof, retains sufficient reliability for admission
at trial, then it is for the jury to determine the probative worth
and weight to be given that statement or testimony as part of the
assessment of credibility.  (pp. 29-31)

Judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, POLLOCK, O'HERN,
GARIBALDI and STEIN join in JUSTICE HANDLER's opinion.

COUNSEL: John S. Redden, Deputy First Assistant Prosecutor, argued
the cause for appellant (Clifford J. [**9] Minor, Essex County
Prosecutor, attorney; Mr.  Redden, Debra G. Lynch, and Elizabeth
A. Duelly, Assistant Prosecutors, of counsel and on the brief).

Daniel R. Williams, a member of the New York bar, argued the cause
for respondent (Alan L. Zegas, attorney; Robert Rosenthal, of
counsel).

Catherine A. Foddai, Deputy Attorney General, argued the cause for
amicus curiae Attorney General of New Jersey (Deborah T. Poritz,
Attorney General of New Jersey, attorney).

Amy Gershenfeld-Donnella submitted a brief on behalf of amicus
curiae Developmental, Social, and Psychological Researchers, Social
Scientists and Scholars.

Simon Louis Rosenbach, Assistant Middlesex County Prosecutor,
submitted a brief on behalf of amicus curiae County Prosecutors'
Association of New Jersey (Jeffrey S. Blitz, President, Atlantic
County Prosecutor, attorney).

JUDGES: HANDLER, WILENTZ, CLIFFORD, POLLOCK, O'HERN, GARIBALDI,
STEIN

OPINIONBY: HANDLER

OPINION: [*302]

The opinion of the Court was delivered by [*303]

HANDLER, J.

In this case a nursery school teacher 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. [**10] The Appellate
Division reversed the conviction and remanded the case for retrial.
264 N.J. Super. 579 (1993).

The Appellate Division based its reversal on several major errors
that occurred in the prosecution of the case. Only one of those
errors is the subject of this appeal. In setting aside the conviction,
the Appellate Division ordered that if the State decided to retry
the case, a pretrial hearing would be necessary to determine whether
the statements and testimony of the child-sex-abuse victims must
be excluded because improper questioning by State investigators
had irremediably compromised the reliability of that testimonial
evidence.

The State filed a petition for certification seeking review of all
the Appellate Division's adverse rulings. This Court denied the
petition with respect to all issues except for one concerning the
necessity for a pretrial hearing to assess the reliability of
anticipated trial testimony because of the improper interrogations.
On that issue, this Court denied the petition without prejudice,
allowing the State to file a motion for reconsideration of its
petition limited to that issue in the event it decided to retry
[**11] the case. Having determined that it will retry the case,
the State filed a motion for reconsideration of its petition for
certification, limited to the pretrial hearing issue. The Court
granted the motion for reconsideration and the limited petition
for certification. 134 N.J. 482 (1993).

I

In September 1984, Margaret Kelly Michaels was hired by Wee Care
Day Nursery ("Wee Care") as a teacher's aide for preschoolers.
Located in St. George's Episcopal Church, in Maplewood, [*304] Wee
Care served approximately fifty families, with an enrollment of
about sixty children, ages three to five.

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. Michaels had no prior experience as a teacher at any level.

Wee Care had staff consisting of eight teachers, numerous aides,
and two administrators. The nursery classes for the three-year-old
children were housed in the basement, and the kindergarten class
was located on the third floor.  During nap time, Michaels, under
[**12] the supervision of the head teacher and the director, was
responsible for about twelve children in one of the basement
classrooms. The classroom assigned to Michaels was separated from
an adjacent occupied classroom by a vinyl curtain.

During the seven month period that Michaels worked at Wee Care,
she apparently performed satisfactorily. Wee Care never received
a complaint about her from staff, children, or parents. According
to the State, however, between October 8, 1984, and the date of
Michaels's resignation on April 26, 1985, parents and teachers
began observing behavioral changes in the children.

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." M.P. indicated to the nurse that his teacher,
Kelly (the name by which Michaels was known to the children), was
the one who took his temperature. M.P. added that Kelly undressed
him [**13] and took his temperature daily. On further questioning
by his mother, M.P. said that Kelly did the same thing to S.R.
[*305]

The pediatrician, Dr. Delfino, then examined M.P. He informed Mrs.
P. that the spots were caused by a rash. Mrs. P. did not tell Dr.
Delfino about M.P.'s remarks; consequently, he did not examine
M.P.'s rectum. In response to further questioning from his mother
after they had returned home, M.P., while rubbing his genitals,
stated that "[Kelly] uses the white jean stuff." Although M.P. was
unable to tell his mother what the "white jean stuff" was,
investigators later found vaseline in Wee Care's bathroom and white
cream in the first-aid kit.  During the same conversation, M.P.
indicated that Kelly had "hurt" two of his classmates, S.R. and
E.N.

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 [**14] parents, concluding their initial investigation on
May 8, 1985. During that period of investigation, Michaels submitted
to approximately nine hours of questioning. Additionally, Michaels
consented to taking a lie detector test, which she passed. 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
[*306] statements that had been elicited from the children during
the course of the State's investigations.  The State introduced
[**15] 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.

II

The focus of this case is on the manner in which the State conducted
its investigatory interviews of the children. In particular, the
Court is asked to consider whether the interview techniques employed
by the state could have undermined the reliability of the children's
statements and subsequent testimony, to the point that a hearing
should be held to determine whether either form of evidence should
be admitted at re-trial.

The question of whether the interviews of the child victims of
alleged sexual-abuse were unduly suggestive and coercive requires
[**16] a highly nuanced inquiry into the totality of circumstances
surrounding those interviews.  Like confessions and identification,
the inculpatory capacity of statements indicating the occurrence
of sexual abuse and the anticipated testimony about those occurrences
requires that special care be taken to ensure their reliability.

The Appellate Division carefully examined the record concerning
the investigatory interviews. It concluded that the interrogations
that had been conducted were highly improper. 264 N.J. Super. at
629. The court determined from the record that the children's
accusations were founded "upon unreliable perceptions, or memory
caused by improper investigative procedures," [*307] and that
testimony reflecting those accusations could lead to an unfair
trial.  Id. at 631-32. Accordingly, it held that in the event of
a re-trial, a pretrial hearing would be required to assess the
reliability of the statements and testimony to be presented by
those children to determine their admissibility.  Ibid. The State
appeals that determination.

Woven into our consideration of this case is the question of a
child's susceptibility [**17] to influence through coercive or
suggestive questioning. As the Appellate Division noted, there is
a constantly broadening body of scholarly authority exists on the
question of children's susceptibility to improper interrogation.
Id. at 622. The expanse of that literature encompasses a variety
of views and conclusions. Ibid. Among the varying perspectives,
however, the Appellate Division found a consistent and recurrent
concern over the capacity of the interviewer and the interview
process to distort a child's recollection through unduly slanted
interrogation techniques.  Ibid. The Appellate Division concluded
that certain interview practices are sufficiently coercive or
suggestive to alter irremediably the perceptions of the child
victims. Id. at 620-30.

A.

Like many other scientific and psychological propositions that this
Court has addressed in different contexts, see, State v. J.Q., 130
N.J. 554, 617 A.2d 1196 (1993) (noting the limited use to be made
of Child Sexual Abuse Accommodation Syndrome); In re Guardianship
of J.C., 129 N.J. 1, 608 A.2d 1312 (1992) [**18] (considering
effects of child-parent bonding in adoption cases); Rubanick v.
Witco Chemical Co. 125 N.J. 421, 593 A.2d 733 (1991) (addressing
scientific theories of causation in toxic torts); State v. Kelly,
97 N.J. 178, 478 A.2d 364 (1984) (determining availability of
battered-women's syndrome as self-defense in criminal case); State
v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981) (considering practice of
hypnosis in determining reliability of hypnotically refreshed
testimony), the notion that a child is peculiarly susceptible to
undue [*308] influence, while comporting with our intuition and
common experience is in fact a hotly debated topic among scholars
and practitioners. The recognition of that notion in a judicial
proceeding, therefore, requires utmost circumspection.

Additional factors temper our consideration of whether children
are susceptible to manipulative interrogation. This Court has been
especially vigilant in its insistence that children, as a class,
are not to be viewed as inherently suspect witnesses. We have
specifically held that [**19] age per se cannot render a witness
incompetent. State in re R.R., 79 N.J. 97 (1979). We declined to
require or allow, absent a strong showing of abnormality, psychological
testing of child-victims of sexual abuse as a predicate to a
determination of the credibility of the child-victim as a witness.
State v.  R.W., 104 N.J. 14, 514 A.2d 1287 (1986). We have also
recognized that under certain circumstances children's accounts of
sexual abuse can be highly reliable. State v. D.R., 109 N.J. 348,
360 (1988). Nevertheless, our common experience tells us that
children generate special concerns because of their vulnerability,
immaturity, and impressionability, and our laws have recognized
and attempted to accommodate those concerns, particularly in the
area of child sexual abuse. E.g., State v. Bethune, 121 N.J. 137,
143-44, 578 A.2d 364 (1990) (recognizing special vulnerability of
child-victims in "fresh-complaint" jurisprudence); D.R., supra,
109 N.J. at 360 (recognizing that child [**20] sexual-abuse victims,
whose victimizers are often members of family or household, are
particularly susceptible to pressure to recant prior to trial);
see also Evid. R. 803(c)(27)(b) (providing standards for determining
trustworthiness of child's out-of-court statement concerning sexual
abuse).

The broad question of whether children as a class are more or less
susceptible to suggestion than adults is one that we need not be
definitively answered in order to resolve the central issue in this
case. Our inquiry is much more focused. The issue we must determine
is whether the interview techniques used by the State in this case
were so coercive or suggestive that they had a capacity [*309] to
substantially distort the children's recollections of actual events
and thus compromise the reliability of the children's statements
and testimony based on their recollections.

We begin our analyses by noting, as did the Appellate Division,
that the "investigative interview" is a crucial, perhaps determinative,
moment in a child-sex-abuse case. 264 N.J. Super. at 622-23 (citing
Gail S. Goodman and Vicki S. Helgeson, Child Sexual Assault:
Children's Memory and the Law, [**21] 40 U. Miami L. Rev. 181, 195
(1985). A decision to prosecute a case of child sexual abuse often
hinges on the information elicited in the initial investigatory
interviews with alleged victims, carried out by social workers or
police investigators. Diana Younts, Evaluating and Admitting Expert
Opinion Testimony In Child Sexual Abuse Prosecutions, 41 Duke L.J.
691 (1991).

That an investigatory interview of a young child can be coercive
or suggestive and thus shape the child's responses is generally
accepted. If a child's recollection of events has been molded by
an interrogation, that influence undermines the reliability of the
child's responses as an accurate recollection of actual events.

A variety of factors bear on the kinds of interrogation that can
affect the reliability of a child's statements concerning sexual
abuse. We note that a fairly wide consensus exists among experts,
scholars, and practitioners concerning improper interrogation
techniques. They argue that among the factors that can undermine
the neutrality of an interview and create undue suggestiveness are
a lack of investigatory independence, the pursuit [**22] by the
interviewer of a preconceived notion of what has happened to the
child, the use of leading questions, and a lack of control for
outside influences on the child's statements, such as previous
conversations with parents or peers.  Younts, supra, 41 Duke L.J.
at 729-30, 730-31; see also, John E.B. Myers, The Child Witness:
Techniques for Direct Examination, Cross-Examination, and Impeachment,
18 Pac. L.J. 801, 889 (1987) (stating that factors that influence
child's suggestibility include: (1) whether interviewer believes
in presumption of guilt; (2) whether questions asked are [*310]
leading or non-leading; and (3) whether interviewer was trusted
authority figure).

The use of incessantly repeated questions also adds a manipulative
element to an interview. When a child is asked a question and gives
an answer, and the question is immediately asked again, the child's
normal reaction is to assume that the first answer was wrong or
displeasing to the adult questioner. See Debra A. Poole and Lawrence
T. White, Effects of question Repetition on Eyewitness Testimony
of Children and Adults, 27 Developmental Psychology, [**23] November
(1991) at 975. The insidious effects of repeated questioning are
even more pronounced when the questions themselves over time suggest
information to the children. Goodman and Helgeson, supra, 40 U.
Miami L. Rev. at 184-187.

The explicit vilification or criticism of the person charged with
wrongdoing is another factor that can induce a child to believe
abuse has occurred. Ibid.  Similarly, an interviewer's bias with
respect to a suspected person's guilt or innocence can have a marked
effect on the accuracy of a child's statements.  Goodman and
Helgeson, supra, 40 U. Miami L. Rev. at 195. The transmission of
suggestion can also be subtly communicated to children through more
obvious factors such as the interviewer's tone of voice, mild
threats, praise, cajoling, bribes and rewards, as well as resort
to peer pressure.

The Appellate Division recognized the considerable authority
supporting the deleterious impact improper interrogation can have
on a child's memory. 264 N.J.  Super. at 629-34. Other courts have
recognized that once tainted the distortion of the child's memory
is [**24] irremediable. See State v. Wright, 775 P.2d 1124, 1128
(Id. 1989) ("Once this tainting of memory has occurred, the problem
is irredeemable. That memory is, from then on, as real to the child
as any other."). The debilitating impact of improper interrogation
has even more pronounced effect among young children. Maryann King
and John C. Yuille, Suggestibility and the Child Witness, in
Children's Eyewitness Memory, 29 (Stephen J. Ceci et al. eds.,
1987) and [*311] Stephen J. Ceci, Age Differences in Suggestibility,
in Children's Eyewitness Memory 82 (Stephen J.  Ceci, et al. ed.,
1987).

The critical influence that can be existed by interview techniques
is also supported by the literature that generally addresses the
reliability of children's memories. Those studies stress the
importance of proper interview techniques as a predicate for
eliciting accurate and consistent recollection.  See, Gail S.
Goodman, et al., Optimizing Children's Testimony: Research and
Social Policy Issues Concerning Allegations of Child Sexual Abuse
in Child Abuse, Child Development, and Social Policy 1992, Dante
Cicchetti & Sheree L.  Toth (Eds.).

The conclusion [**25] that improper interrogations generate a
significant risk of corrupting the memories of young children is
confirmed by government and law enforcement agencies, which have
adopted standards for conducting interviews designed to overcome
the dangers stemming from the improper interrogation of young
children. The National Center for the Prosecution of Child Abuse,
in cooperation with the National District Attorney's Association
and the American Prosecutor's Research Institute has adopted
protocols to serve as standards for the proper interrogation of
suspected child-abuse victims. Those interview guidelines require
that an interviewer remain "open, neutral and objective." American
Prosecutors Research Institute, National Center for Prosecution of
Child Abuse, Investigation and Prosecution of Child Abuse at 7
(1987); an interviewer should avoid asking leading questions, id.
at 8; an interviewer should never threaten a child or try to force
a reluctant child to talk, id. at 9; and an interviewer should
refrain from telling a child what others, especially other children,
have reported. Id. at 24. The New Jersey Governor's Task Force on
Child Abuse and Neglect has also promulgated [**26] guidelines.
It states that the interviewer should attempt to elicit a child's
feelings about the alleged offender, but that the interviewer should
not speak negatively about that person. Governor's Task Force on
Child Abuse and Neglect, Child Abuse and Neglect: A Professional's
Guide to Identification, [*312] Reporting, Investigation and
Treatment, at 31 (1988). Further, multiple interviews with various
interviewers should be avoided. Id. at 32.

Finally, we can acknowledge judicial recognition of the very same
concerns expressed in the academic literature and addressed by the
guidelines established by governmental authorities with respect to
the improper interrogation of alleged child sex abuse victims. The
United States Supreme Court in Idaho v.  Wright, 497 U.S. 805, 110
S. Ct. 3139, 111 L. Ed. 2d 638 (1990), noted with approval the
conclusion of the Idaho Supreme Court that the failure to video
tape interviews with alleged child victims, the use of blatantly
leading questions, and the presence of an interviewer with a
preconceived idea of what the child should be disclosing, in addition
to children's susceptibility [**27] to suggestive questioning, all
indicate the potential for the elicitation of unreliable information.
Id., at 812-13, 110 S. Ct. at 3145, 111 L. Ed. 2d at 650; see also
State v. Hill, 121 N.J. 150, 168, 578 A.2d 370 (1990) (noting
potentially coercive effect of having authoritarian figure participate
in investigatory interview); State v. Bethune, supra, 121 N.J. at
145 (expressing concern over leading questions used to elicit
complaint of sexual assault of minor); State v. R.M., 245 N.J.
Super. 504, 516 (App. Div. 1991) (noting potential for a partisan
questioner to create a coercive environment); State v. M.Z., 241
N.J. Super. 444, 451, 575 A.2d 82 (App. Div. 1990) (ruling child's
out-of-court statement inadmissible under Evid. R. 803(c)(27)
because investigator could not distinguish between what child said
and what was suggested to her).

We therefore determine that a sufficient consensus exists within
the academic, professional, [**28] and law enforcement communities,
confirmed in varying degrees by courts, to warrant the conclusion
that the use of coercive or highly suggestive interrogation techniques
can create a significant risk that the interrogation itself will
distort the child's recollection of events, thereby undermining
the reliability of the statements and subsequent testimony concerning
such events. [*313]

B.

We next turn to an examination of the interrogations conducted in
this case to determine if they were so suggestive or coercive that
they created a substantial risk that the statements and testimony
thereby elicited lack sufficient reliability to justify their
admission at trial.

The interrogations undertaken in the course of this case utilized
most, if not all, of the practices that are disfavored or condemned
by experts, law enforcement authorities and government agencies.

The initial investigation giving rise to defendant's prosecution
was sparked by a child volunteering that his teacher, "Kelly," had
taken his temperature rectally, and that she had done so to other
children. However, the overwhelming majority of the interviews and
interrogations did not arise from the spontaneous recollections
that [**29] are generally considered to be most reliable. See
Wright, supra, 497 U.S. at 826-27, 110 S. Ct. at 3152, 111 L. Ed.
2d at 659 (implying that spontaneous recall is under normal conditions
an accurate indicator of trustworthiness); D.R., supra, 109 N.J.
at 359 ("Moreover, a child victim's spontaneous out-of-court account
of an act of sexual abuse may be highly credible because of its
content and the surrounding circumstances.").  Few, if any, of the
children volunteered information that directly implicated defendant.
Further, none of the child victims related incidents of actual
sexual abuse to their interviewers using "free recall." 264 N.J.
Super. at 629.  Additionally, few of the children provided any
tell-tale details of the alleged abuse although they were repeatedly
prompted to do so by the investigators. We note further that the
investigators were not trained in interviewing young children. The
earliest interviews with children were not recorded and in some
instances the original notes were destroyed. n1 Many of the
interviewers demonstrated ineptness in [*314] dealing with the
[**30] challenges presented by pre-schoolers, and displayed their
frustration with the children.

==== Footnotes ===>

n1 As a matter of sound interviewing methodology, nearly all experts
agree that initial interviews should be videotaped. See Goodman
and Heglesen, supra, 40 U. Miami L. Rev., at 195, 198-99, David C.
Raskin & John C. Yuille, Problems in Evaluating Interviews of
Children in Sexual Abuse Cases in Perspectives on Children's
Testimony 184, 195-96 (Stephen J. Ceci et al. eds., 1989) [hereinafter
Raskin & Yuille]; 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 the
prosecutor should always provide a tape or transcript of an interview
to aid in assessing suggestion or coercion). We have recognized
generally that the existence of a video or sound recording of a
statement elicited through pretrial interrogation is a factor
bearing on its reliability. State v. Gross, 121 N.J. 1, 10, 577
A.2d 806 (1990).

In this case, fully one-half of the earliest interviews at issue
here were not audio or video-taped. The record indicates that the
DYFS investigator did not begin taping interviews until June 19,
1985. The Court is aware of 39 transcripts of interviews with
thirty-four children, or about one-half of those interviewed by
DYFS. The rest were apparently unrecorded.

<=== End Footnotes ====

[**31]

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 [**32] references to urination, defecation,
consumption of human wastes, and oral sexual contacts. Twenty-three
of the thirty-four children were asked questions that suggested
[*315] 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 [**33] 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.  Seventeen of the
thirty-four children were actually told that other children had
told investigators that Kelly had done bad things to children. In
sum, the record contains numerous instances of egregious violations
of proper interview protocols.

We thus agree with the Appellate Division that the interviews of
the children were highly improper and employed coercive and unduly
suggestive methods. As a result, a substantial likelihood exists
that the children's recollection of past events was both stimulated
and materially influenced by that course of questioning. Accordingly,
we conclude that a hearing must be held to determine whether those
clearly improper interrogations so infected the ability of the
children to recall the alleged abusive events that [*316] their
pretrial statements and in-court [**34] testimony based on that
recollection are unreliable and should not be admitted into evidence.

IV

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. "Reliability [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.
Manson v.  Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53
L. Ed. 2d 140, 154 (1977). 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. Hurd, supra, 86 N.J. at
547.

A.

We acknowledge that although reliability assessments with respect
to the admissibility of out-of-court statements are commonplace,
e.g., [**35] Hill, supra, 121 N.J. at 150; Bethune, supra, 121 N.J.
at 137; State v. Spruell, 121 N.J. 32, 577 A.2d 821 (1990); State
v. A. Gross, 121 N.J. 1, 577 A.2d 806 (1990); D.R., supra, 109 N.J.
at 348, assessing reliability as a predicate to the admission of
in-court testimony is a somewhat extraordinary step.  Nevertheless,
it is not unprecedented. See Manson, supra, 432 U.S. 98, 97 S. Ct.
2243, 53 L. Ed. 2d 140 (authorizing hearing to determine admissibility
of in-court identification testimony because of pretrial suggestiveness);
Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908
(1964) (same); State v.  Gookins, 135 N.J. 42, 637 A.2d 1255 (1994)
(requiring pretrial taint hearing to determine admissibility of
evidence because of prior falsified police [**36] breathalyzer
[*317] reports); Hurd, supra, 86 N.J. 525 (ruling taint hearing
necessary to determine admissibility of hypnotically-recalled
in-court testimony); State v. Sugar, 84 N.J. 1, 417 A.2d 474 (1980)
(requiring taint hearing following police investigatory conduct
that led to inadmissible evidence). 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. Gookins, supra, 135 N.J. at 42; Sugar, supra, 84
N.J. at 1; State v. Peterkin, 226 N.J. Super. 25, 543 A.2d 466
(App. Div.), certif. denied, 114 N.J. 295 (1988).

The determination of the reliability of pretrial statements must
take into account all relevant circumstances. In Gross, supra,
[**37] we detailed the range of factors that might bear on the
reliability of a pretrial statement.  Among those are the person
or persons to whom the statement was made; the manner and form of
interrogation; physical and mental condition of the declarant, the
use of inducements, threats or bribes; and the inherent believability
of the statement. 121 N.J. at 10.

The inquiry into the reliability of pretrial statements of children
in a child-sex-abuse case is similarly comprehensive. The Appellate
Division recognized that the assessment of the trustworthiness of
a child's statements made in the course of an investigatory interview
must touch all relevant circumstances. 264 N.J. Super. at 633. In
D.R., supra, 109 N.J. at 348, dealing with the admissibility of
statements by child-victims of sexual-abuse under the age of twelve,
the Court required a hearing to determine whether a child's statement
possesses sufficient indicia of reliability. Among the factors that
bear on that determination are: (1) the person to whom the child
made the statement; (2) whether the statement was made [**38] under
conditions likely to elicit truthfulness; (3) whether the child's
recitation exhibits unusual or above-age-level familiarity with
sex or sexual [*318] functions; (4) post-event and post-recitation
distress; (5) any physical evidence of abuse; and (6) any congruity
between a defendant's confession or statement. Id. at 358; Evid.
R. 803(c)(27)(b) (providing "that on the basis of the time, content,
and the circumstances of the statement there is a probability that
the statement is trustworthy"). In Hill, the Court noted several
factors that should be considered in assessing the reliability of
a complaint regarding sexual offenses. They are: (1) the age of
the victim, (2) circumstances of the questioning; (3) the victim's
relationship with the interrogator; and (4) the type of questions
asked, 121 N.J. at 168; see also Idaho v. Wright, supra, 497 U.S.
at 820, 110 S. Ct. at 3149, 111 L. Ed. 2d at 655-56 ("We think the
'particular guarantees of trustworthiness' . . . must likewise be
drawn from the totality of the circumstances that [**39] surround
the making of the statement.").

In this case we are equally 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.

The law governing the admissibility of eye-witness identification
testimony provides a helpful perspective in addressing the concerns
at issue here. The United States Supreme Court has insisted that
a pretrial hearing be held to determine the reliability and
admissibility of proffered in-court testimony based on unduly
suggestive identification procedures. Manson, supra, 388 U.S. at
114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. Like the investigatory
interview in a child sexual-abuse case, a pretrial identification
procedure can be a critical moment in the course of a criminal
prosecution. United States v. Wade, 388 U.S.  218, 230, 87 S. Ct.
1926, 1932, 18 L. Ed. 2d 1149, 1158 (1967). [**40] The pretrial
identification, like the investigatory interview with a child
victim, is "peculiarly riddled with innumerable dangers and variable
factors which might seriously, even crucially, derogate from a fair
trial." Ibid. [*319] Similarly, the effects of an initially suggestive
identification, like those of a coercive or suggestive interrogation,
are likely to remain corrosive over time; that is, "once the witness
has picked out the accused . . . he is not likely to go back on
his word later." Id. at 388 U.S. at 229, 87 S. Ct. at 1933, 18 L.
Ed. 2d at 1159. Further, the effects of suggestive pre-trial
identification procedures, as with suggestive or coercive interview
practices, are exceedingly difficult to overcome at trial. Ibid.
Witnesses in both situations are quite likely to be absolutely
convinced of the accuracy of their recollection. Thus their
credibility, understood as their obvious truth-telling demeanor,
is unlikely to betray any inaccuracies or falsehoods in their
statements. Younts, supra, 41 Duke L.J. at 727.

We have also recognized that when an identification [**41] is
crucial to the prosecution of a criminal case, its reliability,
and ultimate admissibility, must be strictly tested through a
searching pretrial hearing. E.g., State v.  Clausell, 121 N.J. 298,
326, 580 A.2d 221 (1990); State v. Madison, 109 N.J.  223, 233,
536 A.2d 254 (1988); State v. Ford, 79 N.J. 136, 137, 398 A.2d 95
(1979).

Similarly, we have used the protection of a pretrial hearing to
assay the reliability of testimony based on the recollection of a
witness that may have been altered by suggestive influences. In
Hurd, supra, 86 N.J. at 525, this Court required a pretrial hearing
to determine the reliability of testimony based on hypnotically-induced
recollection. The identification at issue in Hurd was not the
product of a conventional pretrial identification proceeding, such
as a line-up or photo array, which concerned the Supreme Court in
Wade and Manson. Ms. Hurd, a victim of an attack, recalled the
assault but could not recall her assailant. She underwent hypnosis
[**42] and was able to remember that her husband, Paul, had been
her attacker. The Court determined that before a witness could be
permitted to testify about matters that he or she was able to recall
only through hypnosis, a pretrial hearing must be held to ensure
that the hypnotic technique used on the witness was "reasonably
reliable." 86 N.J. at 543. See Elizabeth Loftus and Graham Davies,
Distortions in the Memory [*320] of Children 40 J. Soc. Issues 51,
52-53 (1984) (drawing analogy between amalgamation of fact and
fantasy in children's memories and process that occurs in hypnosis).

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, that to ensure defendant's right to a fair trial a
pretrial taint hearing is essential to demonstrate the reliability
[**43] of the resultant evidence.

B.

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. See United States
v. Simmons, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d
1247, 1253 (1968) (ruling that evidence would be excluded if pretrial
identification procedures "give rise to a very substantial likelihood
of irreparable misidentification"); State v. Clausell, supra, 121
N.J. at 325.

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. Watkins v. Sowders, 449 U.S. 341, 101 S. Ct. 654, 66 L.
Ed. 2d 549 (1981) (holding that no constitutional [**44] mandate
exists for pretrial Wade hearing be held merely because counsel
demands it). The defendant must make a showing of "some evidence"
that the victim's statements were the product of suggestive or
coercive interview techniques. Id., 443 U.S. at 350, 101 S. Ct. at
659, 66 L.  Ed. 2d at 577 (Brennan, J., dissenting); State v. [*321]
Rodriquez, 264 N.J.  Super. 261, 269, 624 A.2d 605 (App. Div. 1993);
State v. Ortiz, 203 N.J. Super.  518, 522, 497 A.2d 552 (App. Div.),
certif. denied, 102 N.J. 335 (1985).

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 [**45] 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. 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. The
State may attempt to demonstrate that the investigatory procedures
employed in a case did not have the effect of tainting an individual
child's recollection of an event. To make that showing, the State
is entitled to call experts to offer testimony with regard to [**46]
the suggestive capacity of the suspect investigative procedures.
The defendant, in countering the State's evidence, may also offer
experts on the issue of the suggestiveness of the interrogations.
However, the relevance of expert opinion focusing essentially on
the propriety of the interrogation should not extend to or encompass
the ultimate issue of the credibility of [*322] an individual child
as a witness. Cf. State v. R.W., supra, 104 N.J. at 26 (holding
that absent strong showing of abnormality and substantial need
child may not be subjected to psychiatric examination by expert
for purpose of determining credibility). The State is also entitled
to demonstrate the reliability of the child's statements or testimony
by proffering independent indicia of reliability. See Ford, supra,
79 N.J. at 137 (inquiring, "whether there are sufficient indicia
of reliability to outweigh the 'corrupting effect of the suggestive
identification itself.'") (quoting Manson, supra, 432 U.S. at 114,
97 S. Ct. at 2253, 53 L. Ed. 2d at 154). [**47] It bears repeating
that the focus of the pretrial hearing is on the coercive and
suggesting propensity of the investigative questioning of each
child and whether that questioning, examined in light of all relevant
circumstances, gives rise to the substantial likelihood that the
child's recollection of actual events has been irremediably distorted
and the statements and the testimony concerning those events are
unreliable.

In choosing the burden of proof to be imposed on the State, we are
satisfied that the clear-and-convincing-evidence standard serves
to safeguard the fairness of a defendant's trial without making
legitimate prosecution of child sexual abuse impossible. We have
applied the clear and convincing evidence standard to other areas
in which the issue of illegal or unreliable evidence was in question.
See, e.g., Sugar, supra, 100 N.J. at 239 (applying "clear and
convincing evidence" standard as burden of proof with respect to
"inevitable discovery" discovery claim), Hurd, supra, 86 N.J. at
546 (imposing "clear and convincing" standard on party who proffers
hypnotically refreshed testimony).  [**48]

We have not hesitated to employ the sternest standard of proof in
cases involving egregious prosecutorial or police misconduct that
implicates judicial integrity and the administration of justice.
Gookins, supra, 135 N.J. at 51 (relying on the procedure out-lined
in Sugar, supra, 84 N.J. at 25 and imposing beyond a reasonable
doubt standard of proof to [*323] counteract egregious constitutional
violations); State v. Gerald, 113 N.J. 40, 118, 549 A.2d 792 (1988)
(requiring proof beyond a reasonable doubt that confession was
voluntary). Here, however, although we find the prosecutorial
investigations to have been professionally inept, we cannot conclude
that the improper investigatory techniques were the result of
conscious bad faith rather than a lack of training coupled with
over-zealousness.

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 [**49] 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. Experts may thus be called to aid the jury by explaining
the coercive or suggestive propensities of the interviewing techniques
employed, but not of course, to offer opinions as to the issue of
a child-witness's credibility, which remains strictly a matter for
the jury. R.W., supra, 104 N.J. at 26. We add the observation that
the jury must make that determination in light of all the surrounding
circumstances, and without reference to the trial court's determination
and ruling on admissibility. See Crane v. Kentucky, 476 U.S. 683,
106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986) [**50] (stressing defendant's
right to adduce evidence of circumstances surrounding confession
even after Court determines confession admissible); State v. Hampton,
61 N.J. 250, 271, 294 A.2d 23 (1972) ("admissibility of evidence
is for the Court . . . it is admitted when a proper predicate is
laid for it. If the predicate is disputed but the court is satisfied
the evidence should [*324] be received, it is accepted for jury
consideration, with an instruction that if they found it credible,
then it is admissible for consideration in making up their verdict.").

C.

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 [**51] 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.

V

The judgment of the Appellate Division is affirmed.

***

Chief Justice Wilentz and JUSTICES Clifford, Pollock, O'hern,
Garibaldi, and Stein join in Justice Handler's opinion.

Note: Proper names of the investigators have been deleted throughout.

Appendix

This Appendix presents a detailed summary of several interviews.

1. R.F.

R.F., a three-year-old girl, was interviewed on June 21, 1985, by
the Essex County Prosecutor's Office at the Wee Care facility.
After several minutes of small talk, R.F. told the investigator
that Kelly sometimes sings in school. In response to her inquiry,
R.F. indicated that the school owned a piano and that she would
show the investigators where it was. At that point, the interview
went [*325] off the record and R.F. apparently took the interviewers
to the piano room. On their return to the interview room, the
following colloquy took place between the investigator and R.F.

The investigator asked, "Do [**52] you remember what you were saying
to me? You said, -- you said Kelly did a lot of bad things to the
children."

R.F. responded, "No, she's in jail. . . . Because she did a lot of
bad things.

R.F. was unable to identify any of the "bad things" that Kelly did
because, according to R.F., "she only did them to D.A." Then, after
several minutes of trying to get R.F. to draw pictures, including
one of Kelly, the investigators returned to the alleged abuse. An
investigator asked if Kelly or Brenda (another teacher at Wee Care)
had ever hurt her. R.F. was clear and unambiguous with her response.
R.F. was absolutely certain that they had done nothing to her. The
investigators continued to press the questioning. R.F. continually
stressed that she had not been hurt or touched. R.F. did say,
however, that "they (Kelly and Brenda) did hurt D.A." The interview
continued uneventfully, ending with R.F.  telling the interviewers
that she would like to come back to the school.

A detective from the Prosecutor's office interviewed R.F. again on
July 3, 1985. The detective approached his questioning of R.F.
somewhat differently than had the previous investigators in that
he appeared not to have any warm up [**53] period with the child.
Prior to engaging in any small talk or even introducing himself to
R.F., he asked her "where's Kelly?" In an effort to find out what
relationship R.F. had with Kelly the investigator asked the following
questions:

Detective: Do you know Kelly?

R.F.: Yes.

Detective: Was Kelly your teacher?

R.F. Yeah, but she did a lot of bad things to me.

Detective: What did she do to you that was bad?

R.F.: Yesterday she did something. But I don't know what it is.

[*326]

Detective: Sure you do, would you like to show me instead of tell
me?

R.F. then drew a picture of Kelly, giving her a "mad" face. She
indicated to him that she drew a mad face simply because she wanted
Kelly to have a mad face.  The detective continued the interview
asking pointed questions:

Detective: Do you think Kelly can hurt you?

R.F.: No.

Detective: Did Kelly say she can hurt you? Did Kelly ever tell you
she can turn into a monster?

R.F.: Yes.

Detective: What did she tell you?

R.F.: She was gonna turn into a monster.

* * * *

Detective: What did Kelly, -- was Kelly a good girl or a bad girl?

R.F.: She was a bad girl.

Detective: She was a bad girl, were there any other [**54] teachers
that were bad?

R.F.: No.

Detective: No, O.K. Kelly was the only bad girl? What did Kelly do
that made her a bad girl?

R.F.: She readed [sic].

Detective: She what?

R.F.: She um, she readed [sic] and she came to me and I said no,
no, no.

Detective: Did she hurt you?

R.F.: I hurted [sic] her.

Detective: How did you hurt her?

R.F.: Because she, I didn't want to write, and she write and I said
no, no, no, no, and I hit her.

* * * *

The Detective then questioned R.F. using anatomically correct dolls
in an apparent attempt to elicit from R.F. the level of understanding
she had concerning certain body parts.

Detective: What are these?

R.F.: Dolls.

Detective: O.K. But what am I pointing to? What's that?

R.F.: An eye, mouth, nose arm.

Detective: What do you call this right here?

R.F.: Vagina.

Detective: What's this right here?

[*327]

R.F.: Tooshie.

Detective: Tooshie. O.K. What do you call these right up here?

R.F.: I don't know.

Detective: O.K. what do you want to name them? Do you want to name
them breasts?

R.F.: Yeah.

Detective: Now we are going to pretend that this is a little boy.

R.F.: Let me see the little boy.

Detective: [**55] It has no arms or legs or anything, but we are
going to pretend that it's a little boy doll, O.K.? What do you
call the little thing between the little boy's legs?

R.F.: Um, feet.

Detective: No, up farther between the legs. Right here.

R.F.: Vagina.

Detective: No, it's a vagina on a little girl, what is it on a
little boy?

R.F.: Penis.

Detective: Penis, very good. O.K. Now did you ever see a little
boy's penis in the school?

R.F.: Yes, M.Z.'s.

Detective: O.K. Who else was there?

R.F.: That's it, only one.

Detective: Just M.Z. and you? Was Kelly there?

R.F.: She was at jail.

The questioning of R.F. continued; the detective sought to uncover
any "bad things" Kelly might have done to R.F. or to anyone else.
The following sequence of questions and answers was the first time
the use of utensils entered the discussion:

Detective: Now, did Kelly ever do any bad things to you?

R.F.: No.

Detective: Not at all?

R.F.: No.

Detective: Did Kelly ever hurt you?

R.F.: No.

Detective: Do these look familiar?

R.F.: What are them [sic]?

Detective: You tell me what they are?

R.F.: Knife.

Detective: Knife.

R.F.: Do you have anything to eat in [**56] here?

[*328]

Detective: We're going to pretend that this is a spoon, O.K.?

R.F.: O.K., and this is a knife.

Detective: Did Kelly ever do anything to you with a knife that hurt
you? Or bad things to you with a knife?

R.F.: No.

Detective: No. O.K. Do [sic] she ever do bad things or hurt you
with a spoon? -- No. Did she ever do bad things or hurt you with
a knife -- I mean fork? OK. What about a wooden spoon? Did you ever
see her do bad things or hurt anybody?

R.F.: Um, no.

After concluding the discussion of utensils, and whether Kelly had
used utensils on R.F. or any other child, the discussion once again
focused on Kelly's alleged mistreatment of R.F. The questioning of
this child continued for several more transcript pages. In an
attempt to obtain additional information from R.F., the detective
told her that he had spoken to several of her friends already and
that the information she could provide would help her friends.

2. P.I.

On June 27, 1985, investigators from DYFS and from the Prosecutor's
Office interviewed P.I., a four-and-a-half year old. The interview
appeared to be adversarial from the outset. P.I. no longer wanted
to participate in any interviews. In an [**57] attempt to convince
P.I. to cooperate, Investigator (I) told P.I. that he and his
colleague had spoken with "lots of other [helpful] kids" since they
had last spoken, and that the sooner P.I. cooperated, the sooner
they could get out of there. P.I. became annoyed with his persistence
telling him that he did not want to talk to him, and stating
emphatically, "I hate you." Investigator (I) attempted to calm P.I.
and reassured him that he really did not hate the investigator, in
fact he knew that P.I. secretly liked him. Over the course of what
appears to be several minutes of conversation, P.I.  responded to
his questions, on at least ten occasions, with "I hate you."

P.I. began to participate in the conversation but continued his
refusal to discuss anything concerning Kelly. In an attempt to gain
his cooperation, the investigators tried a different approach:

[*329]

Investigator (I): Come on do you want to help us out? Do you want
to help us keep her (Kelly) in jail.

P.I.: No.

* * * *

Investigator (I): Tell me what happened. . . . I'll make you fall
on your butt again.

P.I.: No!

* * * *

Investigator (I): I'll let you hear your voice and let you play
with the tape [**58] recorder. I need your help again, buddy. Come
on.

P.I.: No.

* * * *

Investigator (I): Just tell me -- show me what happened with the
wooden spoon.  Let's go.

P.I.: I forgot.

Investigator (I): No you didn't. I'll tell you what, let's just go
to the P.I.  doll, we won't waste any time.

Investigator (II): Now listen you have to behave.

Investigator (I): Do you want me to tell him to behave?

Investigator (II): Are you going to be a good boy? Huh? You have
to be good. Yes or no?

P.I.: Yes.

* * *

Investigator (I): If you don't remember words, maybe you can show
me.

P.I.: I forgot. . . .

Investigator (I): You remember. You told your mommy about everything,
about the music room. And the nap room. And all the stuff. You want
to help her stay in jail don't you. So she doesn't bother you
anymore and so she doesn't tell you any more scary stories. Did
she tell you a story like about this little bird and he built a
nest. But did she do that though?

P.I.: Yes.

After P.I. began to cooperate the interviewers' questions turned
to more specific acts allegedly committed by Kelly. P.I. told
Investigator (I) that he and another Wee Care child put their
penises [**59] into Kelly at the same time. They were able to
accomplish that by chopping off their penises. Further, some of
the children had to urinate in Kelly's mouth, and she would do the
same to them. P.I. also discussed the utensils used by Kelly on
the children.

[*330]

Investigator (I): Did she put the fork in your butt? Yes or no?

P.I.: I don't know, I forgot.

Investigator (I): You forgot? O.K. Did she do anything else to your
bottom?

P.I.: That's all that she did.

Investigator (I): What was it that she did to you?

P.I.: I hate you. I hate you.

Investigator (I): Oh, come on, if you just answer that you can go.

P.I.: I hate you.

Investigator (I):  No you don't.

P.I.: Yes I do.

Investigator (I): You love me I can tell. Is that all that she did
to you, what did she do to your hiney?

Investigator (II): What did she do to your hiney? Then you can go.

P.I.: I forgot.

Investigator (II): Tell me what Kelly did to your hiney and then
you can go. If you tell me what she did to your hiney we'll let
you go.

P.I.: No.

Investigator (I): Please.

P.I.: O.K. O.K. O.K.

Investigator (I): Tell me now.

P.I.: O.K.

Investigator (I): What did Kelly do to your hiney?

P.I.: [**60] I'll try to remember.

Investigator (I): What did she put in your hiney?

P.I.: The fork.

Investigator (I): Did that hurt a lot? Did you bleed?

P.I.: Nope.

3. B.M.

On June 26, 1988, Investigator (I) interviewed B.M., a six year-old
boy. The interview began in typical fashion with Investigator (I)
asking B.M. to draw pictures of himself, his mother, his father
and Kelly. After B.M. drew several pictures, Investigator (I) began
asking B.M. about Kelly.

Investigator (I): I talked to all of [the kids in your class] and
they were telling me how they didn't like the stuff Kelly was doing.
Anyway I like talking to you older guys better because you're better
to talk to, more like grownups than the little kids in the nursery
school. So I'm asking you a favor --

[*331]

B.M.: Why because they talked about Kelly because she did something
bad to them?

Investigator (I): Uh, huh.

B.M.: What?

Investigator (I): She did bad stuff to them.

B.M.: Not me.

* * * *

Investigator (I): She was hurting some kids in not some nice ways.
So I'm wondering if you saw anything. You can help me to find out
who some of the hurt kids are so that I can make it all better
again. Because they [**61] must be pretty upset and pretty mad.

B.M.: What did she do?

Investigator (I): Well, I don't want to tell you exactly what she
did because you may know something that I don't know yet, and that
can really help. . . .  These are funny dolls. A little different
from those you have seen before.

B.M.: I want to leave.

Investigator (I): Why.

B.M.: Because I don't like --

Investigator (I): Like what? You don't like being here: Well you'll
be out of here in a couple of minutes. And you never have to come
back if you don't want to. Anyway these are -- what's different
about these dolls, this one's a boy.

B.M.: Yeah.

Investigator (I): Because he's got a what? What do you call this?

B.M.: I don't know.

Investigator (I): You know. Is it a peepee [sic] or a penis? What's
the word you use?

B.M.: A wee-wee.

* * * *

Investigator (I) then went to a female doll and asked B.M. questions
about its anatomy.

Investigator (I): What are these things. What do we all have here?
Breasts or boobies, what do you want to call them?

B.M.: You're teaching me.

Investigator (I): I'm not teaching you, I am asking you. Come on.
Don't go throwing stuff around like that. It's not [**62] very
nice.

B.M.: Stop teaching me this stuff.

Investigator (I): You got [sic] to learn somehow. The little
three-year-old kids knew what everything was. And you don't. Anyway,
what I did is [sic] show the kids dolls like this and then I pull
out this stuff. A wooden spoon, a fork, a knife and a teaspoon, a
metal spoon. Your daddy was telling that you would hit mommy. [*332]
Mommy would hit you on the butt sometimes when you deserved it,
right? But aside from that did you ever see Kelly hurt anybody with
this?

B.M.: Yeah.

Investigator (I): How do you think she might hurt somebody with
this? For example, it would hurt, how do you think she might hurt
a little boy with this, this wooden spoon.

B.M.: She did that. [Apparently demonstrating with the doll and
the spoon that Kelly would smack the boys on the bottom.]

Investigator (I) introduced the possible use of other utensils into
the conversation, identifying each to B.M. B.M. steadfastly refused
to say that he was hurt with any of the utensils by Kelly. At one
point however, he seemed to implicate his mother as the one
responsible for the bruises on his back.  Investigator (I) continued
to question B.M. about how Kelly used [**63] the various utensils
on him and his friends. At one point he exhibited frustration at
not receiving the cooperation or the answers for which he was
looing.

Investigator (I): I want to ask you something.

B.M.: No.

Investigator (I): Don't be a baby. You're acting like a nursery
school kid. Come here. Come here a second. B.M., come here. We're
not finished yet. Sit down.

B.M.: No.

Investigator (I): Come here. Seriously, we are going to need your
help on this.

B.M.: No I'm not.

Investigator (I): How do you think she would hurt boys and girls,
with a fork? A fork in the face? Sticking on the legs? The arms or
on the neck? Does that hurt?

B.M.: [Inaudible reply.]

At that point in the questioning B.M. told Investigator (I) that
he wanted to leave. Investigator (I), in an effort to put B.M. at
ease, changed the tenor of the conversation and began to reassure
B.M. that he was safe from Kelly.

Investigator (I): I know it must not be very easy to remember this
and to talk about it. It's painful and embarrassing. I also know
that she scared a lot of kids and telling them things that weren't
true. About monsters and about how she can fly. I heard all those
stories [**64] from your friends. Did you know Kelly is in jail?

B.M.: Yeah.

Investigator (I): If you help me out, when we finish here in a
couple of minutes I will introduce you to the man who put her in
jail.

B.M.: I thought you put her in jail.

[*333]

Investigator (I): I helped to get her there. By talking to all the
kids and telling me the truth about what happened. The more kids
we get to tell us what happened the longer she can stay in jail.
You see?

You said you were real upset when she was hurting your friend or
damaging your friends, we do not want her damaging anymore kids,
right? So when we finish today, I will introduce you to the man
who put her in jail. And, if you want, if you help me out I can
have Sgt. Noonan of the local police department show you what a
jail cell looks like so that you can see it, how tough it is for
her, she cannot break out of jail, like she was telling everybody.
I think she was telling everybody she had superpowers, that she
could see through walls and stuff like that. She doesn't have
anything like that. She's a regular woman. A regular person.

B.M.: Is she really like that? Super powers?

Investigator (I): No. I think you know that she doesn't have super
[**65] powers. You know what it is, Kelly was sick when she was
hurting kids. It's o.k.  to like her, she was a nice lady until
she got sick. And then after she got sick is when she started
hurting kids . . . .

Investigator (I): Did she try to bother you and you didn't let her?

B.M.: No.

Investigator (I): It would be o.k. to tell me the truth if she did
try to bother you just so that you can show me how she might just
try to hurt these other kids. 'Cause the more we know the longer
she will stay in jail. You understand? And I think you would like
to know that she doesn't have any secret powers, she can't fly,
she can't see through walls, she can't hurt anybody with her vision.
. . . What are some of the other stories that she used to scare the kids? That
they wouldn't tell anybody. Did she tell them she would hurt their
parents or something Do you know if she said that?

B.M.: Yeah.

Investigator (I): You know that's not true. . . . The police put
her in jail.  Because she was hurting you, you know. That's why I
really need your help, especially you older kids, you six-year-olds
and kindergartners, because you can talk better than the little
kids, and you can show things a little clearer [**66] on the dolls.
And if you help us out we can take you on a little tour of the
jail. And you will be helping to keep her in jail longer so that
she doesn't hurt anybody else. Not to mention that you'll feel a
lot better once you start --

B.M.: It's scaring me.

* * * *

Investigator (I): That's o.k. . . . Believe me she is not going to
be coming out of jail. She's not going to be hurting you guys
anymore. That's why I'm really proud of you, and E.N. and L.J.
Which one got hurt the worst?

B.M.: None of them.

Investigator (I): That's not what they told me.

B.M.: I never saw anybody get hurt.

[*334]

Investigator (I): You never saw anybody get hurt? Did they ever
tell you that they got hurt? See, the reason I think that you might
have gotten hurt or seen them . . . is that you started to show me
on the dolls just exactly what happened. And unless you saw it
happen you wouldn't really know, would you?

B.M.: I didn't get hurt.

Investigator (I): No maybe you didn't, maybe you fought her off.
Maybe you really didn't hurt then. Maybe you saw your other friends
getting hurt and you didn't like it very much. You know.

* * * *

B.M.: What did Kelly do?

Investigator (I): Oh I think [**67] you know. N.J. told me, and
G.G. told me that she hurt them in the gym downstairs. And E.N.
told me what he saw.

B.M.: What did he see?

Investigator (I): I don't want to tell you what they told me because
I want to know if everybody is telling me the truth. If what you
tell me goes along with what they said, then I know they were all
telling the truth. You know what I mean, jellybean.

B.M.: I want to leave. -- Now!

Investigator (I): Did you ever go in the music room? The room with
the big black piano?

B.M.: No.

Investigator (I): Did you ever see Kelly play Jingle Bells on the
piano?

B.M.: No.

Investigator (I): How did she look when she was sitting at the
piano?

B.M.: I never saw her play the piano.

Investigator (I): Did she look like this when she was sitting at
the piano?

B.M.: No.

Investigator (I): Did you ever see Kelly locking any of the kids
in the bathroom or closet?

B.M.: No.

Investigator (I): If you did see her hurt any kids would you tell
me?

B.M.: No.

B.M. steadfastly refused to implicate Kelly in any way. The interview
continued for a few more minutes, ending with Investigator (I)'s
final attempts to gain "cooperation" from B.M.

[**68] B.M.: I want to leave now.

Investigator (I): I'd hate having to tell your friends that you
didn't want to help them.

B.M.: I do. [*335]

Investigator (I): I'll have to tell them that you didn't want to
though.

The interview ended without any further comment from B.M.
Source: geocities.com/jgharris7/witchhunt/Wee_Care

( geocities.com/jgharris7/witchhunt) ( geocities.com/jgharris7)