December 2012

One of the greatest fictions known to the law is that a jury of twelve laymen can hear a judge read a set of instructions once, then understand them, digest them, and correctly apply them to the facts in the case. It has taken the judge and the lawyers years of study to understand the law as stated in those instructions.

—Wylie A. Aitken, The Jury Instruction Process—Apathy or Aggressive Reform? 49 Marq. L. Rev. 137 (1965)

Appellate courts should begin uniformly recognizing jury charge error as Constitutional error, requiring reversal in all but the rarest cases.¹ More frankly, jury charge error should be viewed as structural error, the same as not having a lawyer, having people of a certain race excluded from the jury, or having a judge presiding over the trial with a pecuniary interest in the outcome. Alas, the prospects of courts viewing charge error as structural is far fetched. Couching jury charge error in terms of Constitutional error, however, provides the proper respect for the importance instructions play in jury deliberations, adds uniformity to the law, and captures the constitutional nature of jury instructions.

That jury instructions are ubiquitous is undeniable. That jury instructions have been given in trials before the adoption of the Constitution is a matter of historical fact. Judges begin the jury selection process by addressing the prospective jurors and delivering instructions they are sworn to follow. The guilt/innocence phase of trial opens with more instructions, which jurors are told they must follow. The court then provides instructions for the jurors at the close of the trial, telling the jury they are bound to follow the instructions as given; they are required to follow the law as stated by the court even if they disagree with the law; and they are not free to disregard the court’s words.

The court’s instruction set the very framework in which the trial is conducted. An erroneously instructed jury is the equivalent of a doctor conducting a hernia operation using surgical instruments and procedures designed for knee operations. Faulty jury instructions always cause harm, just like conducting a faulty surgery. And it is pure guesswork by appellate judges to surmise that a deficiently instructed jury caused no harm to a defendant pronounced guilty by the erroneously instructed jury. One commentator astutely opined there is no way for an appellate court to determine whether or not the instructions were understood, based on the record. The Jury Instruction Process—Apathy or Aggressive Reform? 49 Marq. L. Rev. 137, 139 (1965). Hence, it is impossible to assume a jury made a rational decision based on faulty instructions, when there is no way of knowing they understood in the first place. Ascribing Constitutional error review to jury charge error affords a proper level of protection to defendants. A short primer on the history of jury instructions would be useful to begin the analysis.

A Brief History of Jury Instructions

In the early 13th century, trial by jury began to evolve. It is safe to assume that at the time juries began to hear and decide cases, judges began to instruct juries. Originally, judges were given free rein over instructions, both as to content and the procedure to be followed. Abuses of this discretion, particularly the “bullying” of juries by judges, led to the adoption of certain restraints. Wylie A. Aitken, The Jury Instruction Process—Apathy or Aggressive Reform? 49 Marq. L. Rev. 137, 138 (1965).

Jury instructions are not a recent development in American jurisprudence. The practice of courts providing jurors with instructions to follow goes back to the founding, and before. In Georgia v. Brailsford, 3 U.S. 1 (1794), the Chief Justice of the United States Supreme Court, John Jay, presided over a trial. The Constitution had been ratified only seven years before this case was tried. At the conclusion of the trial, Chief Justice Jay provided the jury with instructions. The jurors were told they were the judge of the facts, but were to receive the law from the court. Chief Justice Jay instructed the jurors they were free to judge the propriety of the law as well (a wink and a nod to jury nullification).

The concept of jury instructions was something the founders were intimately familiar with when framing and ratifying the Sixth Amendment. Current Sixth Amendment interpretation is determined based on what the founding era constitutional authors would have understood about the trial process. The Supreme Court once stated, “A trial by jury trial should be understood and applied as at common law, including all the essential elements as they were recognized in this country and England when the Constitution was adopted.” Patton v. United States, 281 U.S. 276, 288 (1930). The framer’s understanding of trial would have included jury instructions as part of that process.

Jury instructions were used in state courts early on in the United States. In United States v. Battiste, 24 E Cas. 1042 (C.C.D. Mass. 1835) (No. 14,545), a case decided less than 50 years after the Constitution was ratified, the jury was instructed:

“[I]t [is] the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law, as it is laid down by the court.”

In State v. Smith, 6 R.I. 33, 36 (1859), about 24 years after Battiste was decided, it was held regarding jury instructions:

“The line between the duties of a court and jury, in the trial of causes at law, both civil and criminal, is perfectly well defined; and the rigid observance of it is of the last importance to the administration of systematic justice. Whilst, on the one hand, the jury are the sole ultimate judges of the facts, they are, on the other, to receive the law applicable to the case before them, solely, from the publicly given instructions of the court. In this way court and jury are made responsible, each in its appropriate department, for the part taken by each in the trial and decision of causes, and in this way alone can errors of fact and errors of law be traced, for the purpose of correction, to their proper sources. If the jury can receive the law of a case on trial in any other mode than from the instructions of the court given in the presence of parties and counsel, how are their errors of law, with any certainty, to be detected, and how, with any certainty, therefore, to be corrected? It is a statute right of parties here, following, too, the ancient course of the common law, to have the law given by the court, in their presence, to the jury, to guide their decision, in order that every error in matter of law may be known and corrected . . . In short, without the aid of authority, if a party, and especially one criminally convicted, shows to us that so well defined a right of trial, as that the jury should receive the law of the case before them, solely, and openly, from the court, has been violated in his person, we dare not refuse him a new trial, to be conducted in the mode which the constitution, as well as the common and statute law, accords to him.” [Emphasis added.]

See also Nicholson v. Commonwealth, 96 Pa. 503 (1879): “The court had an undoubted right to instruct the jury as to the law, and to warn them as they did against finding contrary to it.”

The importance of jury instructions was well established in American jurisprudence by 1859, having had a long tradition in the common law of England. Appellate courts were cognizant that jury charge error meant that a fair trial for a defendant was not had. Nicholson makes clear there was no harmless error review when looking at jury instructions. The appellate courts “dare[d] not refuse” a new trial when there was jury charge error. Revisions to jury instruction law occurred soon after. Jurors were stripped of their right to judge both the law and the facts. Instead, jurors were told they would only be allowed to judge the facts.

The case of Sparf & Hansen v. United States, 156 U.S. 51 (1894), has stood for the proposition that a defendant is not entitled to have a jury instructed that it may not follow the law as given by the Court—i.e., a jury nullification instruction. Sparf & Hansen v. United States declared that jurors were no longer to be instructed on their ability to interpret the law. Jurors were fact finders, nothing more. Juries, post Sparf, were bound to follow the law as given by the court. They were no longer allowed to pass judgment on the wisdom of the law itself. State courts adopted this view, and it exists as the current understanding of jurors’ role in trial.

The historical basis for concluding that jury instructions are a fundamental, time-honoured component of trials, known to the founders, is easily seen. The practice of instructing the jury is an entrenched and established procedure in American criminal jurisprudence. Viewing jury charge errors through non-constitutional harmless error review does not take into account the fundamental nature of the charge and the importance of the instructions to the jury.

What Is Structural in a Trial?

The Supreme Court explained in Arizona v. Fulminante, 499 U.S. 279 (1991), a structural error is a “structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” In certain cases, where structural errors undermine “the fairness of a criminal proceeding as a whole,” a court may reverse “without regard to the mistake’s effect on the proceeding.” Nall, Deborah, S., United States v. Booker: The Presumption of Prejudice in Plain Error Review 81 Chicago-Kent L. Rev.621, 632.

The Supreme Court has held there are certain Constitutional errors that invalidate a conviction even though there may be no reasonable doubt that the defendant is guilty and would be convicted absent the trial error. For example, a judge in a criminal trial “is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict, see Sparf & Hansen v. United States, 156 U.S. 51, 105 (1895); Carpenters v. United States, 330 U.S. 395, 408 (1947), regardless of how overwhelmingly the evidence may point in that direction.” United States v. Martin Linen Supply Co., 430 U.S. 564, 572–573 (1977). A defendant is entitled to counsel at trial, Gideon v. Wainwright, 372 U.S. 335 (1963). See also White v. Maryland, 373 U.S. 59 (1963), where a conviction was set aside because the defendant had not had counsel at a preliminary hearing without regard to the showing of prejudice.

In Vasquez v. Hillery, 474 U.S. 254 (1986), a defendant was found guilty beyond reasonable doubt, but the conviction had been set aside because of the unlawful exclusion of members of the defendant’s race from the grand jury that indicted him, despite overwhelming evidence of his guilt. Vasquez also noted that rule of automatic reversal when a defendant is tried before a judge with a financial interest in the outcome, Tumey v. Ohio, 273 U.S. 510, 535 (1927), despite a lack of any indication that bias influenced the decision. Waller v. Georgia, 467 U.S. 39, 49 (1984), recognized that violation of the guarantee of a public trial required reversal without any showing of prejudice and even though the values of a public trial may be intangible and unprovable in any particular case.

Jury instructions fit neatly into the structural category. Could they be structural? Yes. Will a court in our lifetime hold them structural? Doubtful. So how should they be realistically viewed? Jury instructions should be viewed as providing the court-sanctioned structural and decisional framework for jurors. Jury instructions establish principles of law, burdens of proof, along with standards and methods to weigh evidence, which the jury must follow. Read by the court, jury instructions have the stamp of legitimacy and authority. Jury instructions are designed to educate and guide the jury.²

Further, as one commentator aptly discussed, jury instructions offer a focused moment of Constitutional connection between the court, the defendant, and the jurors. At that moment when the court reads its instructions, jurors are listening and learning about the law and the legal system. While the entire trial process is a participatory and educative experience for jurors, it is at the moment of instruction that jurors are formally educated about their responsibilities, their role, and the system’s expectation of them. Cronan, John P., Is Any of this Making Sense, Reflecting on Guilty Pleas to Aid Criminal Juror Comprehension, 39 Am. Crim. L. Rev. 1187, 1193–94 (2002). See also Ferguson, Andrew Guthrie, Jury Instructions as Constitutional Education, 84 University of Colorado Law Review (forthcoming 2012). The jury instructions are hundreds of years of evolving trial practice, writ large for the jury to take with them to the jury room. If the jury is instructed incorrectly, no amount of appellate review can correct that error.

Some Social Science Research Relating to Jury Instructions

In the past several decades, there has been a significant amount of social science research conducted in the area of jury instructions. Much of the early work investigated the issue of instruction comprehensibility, and was focused on the premise that if jurors do not understand the law, they cannot be expected to apply it. Much of this social science research has indicated that jurors misunderstand a large portion of the instructions they are presented with. Some research has found comprehension rates for jury instruction to be below 65 percent.³

That jury instructions are misunderstood by jurors is not a new phenomenon in law. “The lawyers and judges are perfectly aware that juries pay scant attention to the type of instructions commonly given them on the law applicable to the facts and, that as a rule, they are incapable of the fine discrimination such an application requires. But it is impressive to the public and it clothes the jurors with a sanctimonious mantle of enlightenment which gives them a sense of peace and accord with authority. Trial lawyers may consume a great deal of time on instructions, but little of it is wasted on attempting to force the jury’s attention to them. It is usually as futile as reading a decision of the Supreme Court to a justice of the peace or arguing the Constitution with a policeman.” Wylie A. Aitken, The Jury Instruction Process—Apathy or Aggressive Reform? 49 Marq. L. Rev. 137 (1965).

This lack of comprehension becomes especially apparent, and all the more dangerous, when dealing with burdens of proof, procedural issues, and presumption of innocence instructions. A study conducted in 1976 found that only 50 percent of individuals presented with the Florida Pattern Jury Instructions understood that the defendant did not have to present evidence, and that the State had the burden of proof. In another study from 1992, only one third of jurors who had served on a criminal jury were found to have correctly understood the burden of proof was on the prosecution. See Lieberman, Joel D. & Krauss, Daniel A., Jury Psychology: Social Aspects of Trial Process, 2009 MPG Books. LTD, Bodmin, Cornwall p. 138.

When the historic underpinnings of jury instructions are confronted with the research data available about the incomprehensibility of jury instructions in many cases, their importance and fundamental role in the Fifth, Sixth, and Fourteenth Amendments’ guarantee to a fair jury trial conducted in accordance with law, by an fair and impartial jury, becomes evident.

Why Should Jury Charge Error Be Considered Constitutional Error?

The verdict of a jury who does not comprehend the law amounts to “cracker-barrel justice.”

—423 Mich. L. Rev. 276, 278 (1925)

First, jury charge errors are not like other trial errors. Consider the erroneous admission of evidence obtained in violation of the Constitution. When a trial court allows evidence to be introduced that was obtained in violation of the Fourth Amendment, at least defense counsel can put on evidence to rebut or refute the erroneously admitted evidence. In response to the erroneously admitted, defense counsel could argue the drugs were not his client’s, or the illegally seized weapon does not match the ballistics report adequately to find his client guilty. Defense counsel can argue something to mitigate the damage. The defendant enjoys no such procedural protection with erroneous jury instructions.

Neither a defendant nor his lawyer has any right to suggest the jurors disregard the court’s instruction.⁴ In fact, every single federal appellate circuit that has pattern jury instructions tells the jurors they are not free to disregard any portion of the instructions.⁵ Along with federal courts, the substantial majority of State courts have pattern jury instructions mirroring our federal counterparts.⁶ Arguing to a jury to disregard the court’s instructions would likely get defense counsel an early termination of his/her summation, and a quick trip back to counsel’s table.

The charge, as read to the jury, is judicial gospel. That is not an overstatement. That is the practical reality of these documents, and society’s view of judges (except maybe in Cameron County).⁷ Speak with any juror after a verdict, and they will tell you they rely on the instructions, and sift through the instructions for guidance. The jury charge is not part of the trial process, it is the trial process, writ large.

I have invoked Justice Scalia in several writings concerning the Sixth Amendment. While some in the defense bar (myself included) may view many of Justice Scalia’s opinions with a jaundiced eye, that is not the case with his Sixth Amendment jurisprudence. Justice Scalia is a purist when it comes to Sixth Amendment rights. There is no diluting what one is entitled to under the Sixth Amendment, in his view. Time and again, I return to his eloquent dissent in Neder, stating he would find jury charge error to never be harmless (in other words, at least Constitutional error, or possibly even structural error). Justice Scalia’s dissent in Neder reads as follows:

“Article III, § 2, cl. 3 of the Constitution provides:

“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury. . . .” The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .” When this Court deals with the content of this guarantee—the only one to appear in both the body of the Constitution and the Bill of Rights—it is operating upon the spinal column of American democracy. William Blackstone, the Framers’ accepted authority on English law and the English Constitution, described the right to trial by jury in criminal prosecutions as “the grand bulwark of [the Englishman’s] liberties . . . secured to him by the great charter.” 4 W. Blackstone, Commentaries at 349. One of the indictments of the Declaration of Independence against King George III was that he had “subjected us to a Jurisdiction foreign to our Constitution, and unacknowledged by our Laws” in approving legislation “for depriving us, in many Cases, of the Benefits of Trial by Jury.” Alexander Hamilton wrote that “the friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury: Or if there is any difference between them, it consists in this, the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government.” Neder dissent at 30.

Applying Justice Scalia’s rationale, the historical prevalence of jury instructions, the ubiquitous nature of jury instructions today, the recent revisions in Sixth Amendment jurisprudence by the Supreme Court, and the social science data discussed above, preservation of fundamental fairness and Due Process⁸ rights require viewing jury instructions as constitutional. This means finding that jury charge error is constitutional error, regardless of harm.

Conclusion

It is simply impossible to know, without engaging in pure speculation, what effect erroneous jury instructions actually have on a jury. Arizona v. Fulminante, 499 U.S 279, 331 (1991). When reviewing the erroneous admission of evidence, appellate courts exclude the illegal evidence, and review the remainder of the evidence to determine whether the admission of the erroneous evidence was harmless beyond a reasonable doubt. Arizona v. Fulminante, 499 U.S 279, 310 (1991). That kind of evidentiary gerrymandering cannot be done with jury charge errors. To review jury charge error in such a fashion requires an appellate court to craft a hypothetically correct jury charge and sit as the 13th jury member (sound familiar?). The entire framework of the trial, from beginning to end, is infected by the absence of proper jury instructions.

Incorrect jury instructions mean the facts of the case are being viewed by the jury through a clouded legal prism. Light cannot refract through a clouded prism into its constituent parts. And truth cannot be expected to properly refract through the minds of jurors when clouded by erroneous instruction. Harm resulting from jury charge error should be presumed. Jury charge error should be constitutional error requiring reversal.

Notes

1. Texas Rules of Appellate Procedure 44.2.(a) : Reversible Error in Criminal Cases Constitutional Error: If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

2. Strict legal correctness was once the primary concern of the courts at the appellate level, and this naturally became the main concern of the trial judges, who were fearful that their charges might be struck down by the higher courts. The Jury Instruction Process—Apathy or Aggressive Reform? 49 Marq. L. Rev. 137, 139 (1965). Thanks to harmless error review and the “hypothetically correct jury charge,” there is no more fear at the trial court level.

3. See Lieberman, Joel D. & Krauss, Daniel A., Jury Psychology: Social Aspects of Trial Process, 2009 MPG Books. LTD, Bodmin, Cornwall p. 131. Seminal works by Sales, B. D., Elwork, A., & Alfini, J. (1977): Improving Comprehension for Jury Instructions. In B. D. Sales (Ed.), The criminal justice system (pp. 23–90). New York: Plenum, Elwork, Sales, and Alfini (1977, 1982), and Charrow, R. P., & Charrow, V. (1979). Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions. Columbia Law Review, 79, 1306–1374. Elwork et al. Joel D Lieberman & Bruce D. Sales, Jury Instructions: Past, Present, and Future, 6 Psycho., L. & Pub. Pol. 587 (2000).

4. Although one creative and brave federal judge did give the following instruction to a jury and was approved by the appellate court. I will request this instruction from here on out in all my trials. It is an accurate instruction that encapsulates the burden and decision-making authority in the trial very well:

“Federal trial judges [insert State judges as the need arises] are forbidden to instruct on jury nullification, because they are required to instruct only on the law which applies to a case. As I have indicated to you, the burden in each instance which is here placed upon the Government is to prove each element of the offenses . . . beyond a reasonable doubt, and in the event the Government fails to sustain its burden of proof beyond a reasonable doubt as to any essential element of any offense charged against each defendant, it has then failed in its burden of proof as to such defendant and that defendant is to be acquitted. In short, if the Government proves its case against any defendant, you should convict that defendant. If it fails to prove its case against any defendant you must acquit that defendant.” See United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993).

5. The following is a list of the jury instructions from various federal circuits, which state in no uncertain terms that jurors are not allowed to ignore the court’s instructions:

First Circuit Court of Appeals

Pattern Criminal Jury Instruction 1.01 for the 1st Circuit Court of Appeals:

“You will hear the evidence, decide what the facts are, and then apply those facts to the law I give to you. That is how you will reach your ver­dict. In doing so you must follow that law whether you agree with it or not. The evidence will consist of the testimony of witnesses, documents and other things.”

Pattern Criminal Jury Instruction 3.01 for the 1st Circuit Court of Appeals:

“It is your duty to apply the law exactly as I give it to you, whether you agree with it or not.”

Third Circuit Court of Appeals

Model Criminal Jury Instruction 1.02 for the 3rd Circuit Court of Appeals:

“You must apply my instructions about the law. Each of the instructions is important. You must not substitute your own notion or opinion about what the law is or ought to be. You must follow the law that I give to you, whether you agree with it or not.”

Model Criminal Jury Instruction 3.01 for the 3rd Circuit Court of Appeals:

“Your second duty is to apply the law that I give you to the facts. My role now is to explain to you the legal principles that must guide you in your decisions. You must apply my instructions carefully. Each of the instructions is important, and you must apply all of them. You must not substitute or follow your own notion or opinion about what the law is or ought to be. You must apply the law that I give to you, whether you agree with it or not.”

Sixth Circuit Court of Appeals

Pattern Criminal Jury Instruction 1.02(2) for the 6th Circuit Court of Appeals:

“It is my job to instruct you about the law, and you are bound by the oath that you took at the beginning of the trial to follow the instructions that I give you, even if you personally disagree with them.”

Seventh Circuit Court of Appeals

Pattern Criminal Jury Instruction 1.01 for the 7th Circuit Court of Appeals:

“Your second duty is to apply the law that I give you to the facts. You must follow these instructions, even if you disagree with them. Each of the instructions is important, and you must follow all of them.”

Eight Circuit Court of Appeals

Model Criminal Jury Instruction 1.01 for the 8th Circuit Court of Appeals:

“[Y]ou must follow my instructions, whether you agree with them or not. You have taken an oath to do so.”

Model Criminal Jury Instruction 3.02 for the 8th Circuit Court of Appeals:

“It is your duty to find from the evidence what the facts are. You will then apply the law, as I give it to you, to those facts. You must follow my instructions on the law, even if you thought the law was different or should be different.”

Ninth Circuit Court of Appeals

Model Criminal Jury Instruction 1.1 for the 9th Circuit Court of Appeals:

“To the facts as you find them, you will apply the law as I give it to you, whether you agree with the law or not.”

Model Criminal Jury Instruction 3.1 for the 9th Circuit Court of Appeals:

“It is also your duty to apply the law as I give it to you to the facts as you find them, whether you agree with the law or not. You must decide the case solely on the evidence and the law and must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. You will recall that you took an oath promising to do so at the beginning of the case.”

6. I selected just a few of the States that have model jury instructions to show they all contain identical language to our federal counterparts:

California:

Model Jury Instruction:

200
“You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.”

Colorado:

Model Criminal Jury Instruction: Chapter B: Jury Orientation: Before Opening Statements:

“It is my job to decide what rules of law apply to the case. You must follow all of the rules as I explain them to you. Even if you disagree or do not understand the reasons for some of the rules, you must follow them. You will then apply these rules to the facts which you will determine from the evidence. In this way you will determine whether the prosecution has proven the guilt of the defendant beyond a reasonable doubt.”

Model Criminal Jury Instruction:

E 01
“It is my job to decide what rules of law apply to the case. While the lawyers may have commented during the trial on some of these rules, you are to be guided by what I say about them. You must follow all of the rules as I explain them to you. Even if you disagree or don’t understand the reasons for some of the rules, you must follow them.”

Connecticut:

Criminal Jury Instructions:

1.1-2:
“You will follow the instructions as to the law that applies in this case as I will explain it to you. You must follow the instructions as to the law, whether or not you agree with it. As jurors you must put aside your personal opinions as to what the law is or should be, and you must apply the law as I instruct. You will apply the law, as instructed, to the facts you find, based on the evidence, and in that way reach your verdict.”

Florida:

Standard Jury Instructions for Criminal Cases:

“These are some general rules that apply to your discussion. You must follow these rules in order to return a lawful verdict:

“1. 
You must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case. All of us are depending upon you to make a wise and legal decision in this matter.”

Hawaii

Circuit Court Standard Jury Instructions

1.01:
“I will instruct you in full as to the law applicable to the case. It will be your duty to accept the law as defined in these instructions and to follow it.”

3.05
“[Y]ou must follow these instructions even though you may have opinions to the contrary. You must consider all of the instructions as a whole and consider each instruction in the light of all of the others. Do not single out any word, phrase, sentence or instruction and ignore the others. Do not give greater emphasis to any word, phrase, sentence or instruction simply because it is repeated in these instructions.”

Idaho:

Individual Idaho Criminal Jury Instructions:

ICJI 001: 
“In applying the Court’s instructions as to the controlling law, you must follow those instructions regardless of your opinion of what the law is or what the law should be, or what any lawyer may state the law to be.”

ICJI 201: 
“You must follow all the rules as I explain them to you. You may not follow some and ignore others. Even if you disagree or don’t understand the reasons for some of the rules, you are bound to follow them. If anyone states a rule of law different from any I tell you, it is my instruction that you must follow.”

7. “It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling.” Starr v. United States, 153 U.S. 614, 626 (1894) (citing Hicks v. United States, 150 U.S. 442, 452 (1893)); see also Bollenbach v. United States, 326 U.S. 607, 612 (1946).

8. Due Process is unique. Due Process is not a hyper-technical concept defined with a fixed content, removed from real-world considerations such as time, place, and circumstances. Mathews v. Eldridge, 424 U.S. 319, 334 (1976). The constitutional principle encompassed by the founders in the phrase “Due Process” expresses the overarching constitutional goals and expectations of fundamental fairness to all—a requirement whose meaning and application can be as opaque and malleable as its importance is lofty. Due Process should be considered as the touchstone of all things just and fair in American jurisprudence.

Applying the Due Process Clause is therefore an uncertain enterprise that requires judicial divination of what fundamental fairness consists of in a particular scenario. The court’s constitutional discovery of fairness and justice is done by first considering any relevant precedents, and then by assessing the several interests that are at stake, oftentimes in competition with one another, and the interplay of those interests. See Lassiter v. Dep’t of Social Services, 452 U.S. 18 (1981).

The most instructive and oft-cited case thus far on the application of Due Process for constitutional issues is Mathews v. Eldridge, 424 U.S. 319 (1976). The Eldridge court articulated three elements that need to be rigorously assessed in deciding what Due Process requires in terms of procedural safeguards established by a Court. The three Eldridge interests are as follows: (1) the private interests at stake, (2) the government’s interest, and (3) the risk that the procedures used will lead to erroneous decisions. A court must balance these competing elements against each other to decipher the demands of Due Process in order that justice may be satisfied.

“Every truly successful song expresses a universally understood meaning.”

—Sheila Davis, The Craft of Lyric Writing, 1985, at 2.

Ever since I wanted to be anything, I wanted to be a professional musician—a rock star, actually. Even before I started playing the guitar at 13, I had pictured myself on a stage somewhere. I played in bands all the way through high school and into college. I played guitar through the Army. Upon discharge from the Army in 1987, I had been accepted into the Guitar Institute of Technology in Hollywood, California, and the Army was going to pay for it. But a couple of months after getting out of the Army, I just changed my mind. I don’t know why, but after wanting to do that all my life, when I was just about to cross the threshold, I turned around.

But the music didn’t go away. I still practiced. I still played in bands. Two years later, I was on my way to becoming a lawyer.

I guess I wrote my first song when I was 15 or so. I wrote a lot of songs in high school, a lot of poems, too. After high school, I didn’t write so much, but I would still write a little. Frankly, though, it never occurred to me to try to approach songwriting as a craft. Every once in a while a song would come to me and I wrote it down, but nothing beyond that. I figured either you had it or you didn’t and I kind of didn’t.

Then I went to Trial Lawyers College.

One thing that settled in on me at the Ranch was story telling. Finding the emotion in stories was a true revelation for me. I had never even been aware of that. One Saturday not long after I had returned home, I got out my guitar and a pen and some paper. Within an hour or so, I had written “The Hill.” That would ultimately become the first song on my first CD, “Texas Theater,” issued in December 2003, 16 years after I “gave up the dream.”

More and more I started telling stories with songs. I then took my acoustic guitar and went to open mic nights to play them. They were generally well received. I am still not a prolific writer by any means, but I now have a deeper understanding of how to write songs—and what makes a good song—than I would have ever had without doing all the personal work I have done, which began in that summer of 2002. For what it’s worth, I am now a songwriter, published, earning royalties every day. How ironic that once I stopped chasing the dream, it kind of came true.

Since 2002, though, I have really studied songwriting as a craft as opposed to just writing words on paper that rhyme. Songwriting is not divine inspiration—it is a discipline that can be learned by anyone who is willing to work hard and practice. Mainly, this means writing and editing songs, over and over. The constraints of rhythm and rhyme create a structure that requires creativity and imagination to convey the writer’s intent. The discipline is really pretty demanding. The craft, like any other fine art form, takes years to learn and master and you get better at it as you practice. There is much more to successful songwriting than just the lyrics. But the good news is you really don’t have to be particularly good at songwriting to learn a lot from it.

The three greatest things I have learned from songwriting are (1) conveying emotion through words and images; (2) using language to describe moods, things, and places metaphorically, which itself evokes emotion; and (3) learning to communicate universal themes. Of the three, I would say the last one is the most fundamentally important:

Songs embody experiences common to everyone: the adventure of first love, the frustration of misunderstanding, the anguish of jealousy, the wistfulness of goodbye. A singer does not offer a sermon we must heed, or a code we must decipher, but rather a universal truth we already know: “Harper Valley P.T.A.” dramatizes the maxim “people in glass houses shouldn’t throw stones”; “She’s Not Really Cheatin’ (She’s Just Gettin’ Even)” illustrates that what’s sauce for the goose is sauce for the gander; the materialist values of “Mr. Businessman” remind us that it is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of heaven. Such songs vivify, and thereby reaffirm, the fundamental tenets of our common experiences.

Sheila Davis, The Craft of Lyric Writing, 1985, at 2.

Whether you are writing a song or getting a case ready for a jury, the first thing you need to identify is the universal theme—something we all share and have experienced. There will usually be more than one. If you need help with ideas, just Google “universal themes” and you will get plenty of help. They are things like hope, abandonment, love, overcoming obstacles, helping others, etc. It would be good to have clear themes going into a trial. Songwriting too. Remember, universal themes are just that—universal. We want the largest audience possible. In songwriting, there is a process referred to as “going from the particular to the general.” This is how we broaden themes to become as universal as possible.

For instance, let’s say the story I want to tell is about a person recovering from a methamphetamine addiction. I could just talk about what it’s like to hit bottom from meth, to first seek recovery and then recover, which would be a story that people could really identify with—if you tell it in a Narcotics Anonymous meeting. How can we broaden it up? Well, for starters, “addiction” is way broader than “methamphetamine addiction.” In fact, we can even use “addiction” as a metaphor as so many have done. But addiction is a term with a lot of baggage and still narrower than we would like, so we are still not communicating like we want to. So think, what is recovery? Isn’t recovery, in the end, just overcoming an obstacle? Everybody has overcome obstacles in their lives. “Overcoming obstacles” is a universal theme.

Once we have that universal theme, how do we convey it? That is the more difficult part of songwriting—conveying that universal theme through language that evokes emotions and within the constraints of rhythm and rhyme. This means we can’t just literally say something. We don’t say, “I have overcome obstacles.” We must speak in terms that evoke images and emotion. Here are some examples:

My theme = regret.

I want to say:
“I have made choices I am not proud of and lost things dear to me.”

I write:              In the mirror, the ghosts in my eyes
                        betray the fears and the compromise of
                        the things I had for the things I had to do.

My theme = grieving.

I want to say:
“We miss you and think of you often.”

I write:              The wind is blowing cold. The sky is grey.
                        It’s been like this since you went away.
                        It’s a way of knowing that you’re still around.

These are both small parts of songs I have written. Here is a full song that came from my first CD. I wrote this as I hit 40 years old. One theme is self-examination at midlife, kind of like “A Pirate Looks at 40” by Jimmy Buffett. Another theme would be “coming home.”

JONES COUNTY LINE
© 2003 by Greg Westfall, Blue Mule

The first thing I remember as a child
Are the red brick streets to the highway going out
Through the cotton and red ground that surrounded our West Texas town
Just inside the Jones County Line
And the rodeo that came every year
And the cowboys riding bulls and drinkin’ beer
And all the boys and me would chase those calves and talk and dream
’Bout one day, gettin’ far away from here

[CHORUS]

This town was home when my home was an easy place to come home to
This town was all that I dreamed and all I dreamed there’d ever be
But this town was a small town and life moved pretty slow
For a young cowboy with a hunger for the road
And this town was the last thing that I had on my mind
When I crossed that Jones County Line

Now I wonder where 20 years have gone
I’ve been on this lonely road for so long
All that I could see were the little things that anchored me
To a place I didn’t want to stay
I left a trail of dust and loose ends
I made and lost a lifetime of friends
I claimed that I was free but this empty place inside of me
Brought me to Jones County again

[CHORUS]

How often have we read stories or seen movies where someone at midlife returns to the town of their childhood? Maybe the protagonist doesn’t even remember why he left. The strands of longing and regret wind their way through to hit us on a plainly emotional level. We all have felt them, because regret and longing are universal themes.

Lyrics that resonate with universally felt emotions foster strong identification between the performer and the audience. A song is successful when an audience responds with a recognition that says: “Me, too . . . I’ve felt that . . . I’ve seen what you’ve seen . . . I know what you mean.” That is what our applause says. The performer is singing not so much to us as for us.

Sheila Davis, The Craft of Lyric Writing, 1985, at 3

Isn’t that what we as trial lawyers want to do? We want the jury to have a strong identification with us and with our clients. We all want to sing for the jury rather than to the jury. So how can it be done? Same way in both arenas—by communicating on an emotional level.

So singing a song and talking to a jury are not so different from each other. In either case, if you are not emotionally honest, you are not going to connect. Your audience will abandon you and ignore your message. But if you are honest, and if you search for a way to connect with your audience, they will stay.

And they will applaud.

This article was previously published in The Warrior, the magazine of Trial Lawyers College, Dubois, Wyoming.

Isn’t it interesting how the courts recognize taint in so many different contexts?¹ We have an illegal search by the police and everything found during the illegal search becomes “fruit of the poisonous tree”—it is said to be tainted. The Houston Police Department’s Crime Lab does not observe proper sterile procedures in handling DNA and the specimens are contaminated—they are said to be tainted. We have a lineup where the crime victim sees one White guy, three Hispanics, and two Blacks. The identification of the White guy is said to be tainted, the product of a suggestive or improper lineup.

A victim of a crime has no conscious recollection of the events or details, is hypnotized and, while hypnotized, is presented with questions that suggest answers. Upon regaining consciousness, the victim “remembers” details of the crime. The courts recognize the problems inherent in this type of enhanced “recollection.” So this “recollection” is subject to being excluded because it is tainted—the product of suggestion.

But how differently the courts in Texas treat the “recollection” of children, even very young children, who are said to have been abused, sexually abused, or even sexually assaulted —especially when there is no evidence of the alleged crime other than the child’s statement and the crime is alleged to have occurred months or even years ago. Children’s memory is deemed to be pristine and incorruptible, no matter how many different people may have discussed their recollection with them and no matter how many different people may have suggested details to the children, in how many different settings, on how many different occasions, or for how long on each occasion.

And it doesn’t matter that none of these conversations or interviews or counseling sessions have been recorded in a neutral media so that improper interview techniques can be identified and the implanted results of those techniques challenged. Again, young children’s memory is deemed to be pristine and incorruptible, even though no such presumption exists with a teenager’s or an adult’s memory. Remember the advertising slogan: “Is it real? Or is it Memorex®?” Well, the same logic applies when it comes to a young child’s supposed recollection.

The corruption of a young child’s recollection affects not only their testimony but also any “outcry” statement² that the State may try to use. In this article, the authors will attempt to define the problem and suggest ways to deal with the same.

Please understand that for the most part, this concerns the recollection of children who are under the age of 7—in other words, children who are not old enough to really understand the concept of a lie. Consider that a child who learns that Santa Claus is not real, that it was Mommy and Daddy all along, does not understand that Mommy and Daddy lied about Santa Claus existing. Please also understand that the age of seven is an arbitrary break point, created by the authors for the purpose of this article. Some experts will be more exacting with older kids versus younger kids, but there is no clear, bright-line demarcation. The younger the children, the more susceptible they are to the many ways in which memory can be tainted, but the principles apply along a continuum. Research going back to Europe in the late 19th and early 20th centuries shows much the same results and conclusions as today’s research, even though the children then under examination were 10 years old or even older. In fact, in the Salem Witch trials, children as old as 16 were convinced by their interviewers that they saw several women in their community perform acts that were supernatural—e.g., levitating.³

Of course, we will still have “repressed memory” cases from adults like in Sandusky and other cases. Those cases present similar issues as to the reliability of the testimony of young children, but the science and the research are different.⁴ And the motivation to testify falsely in such a case tends to belong to the “victim” instead of to a third person attempting to get a child to testify falsely. It is easy to conceive how a young adult might be motivated by the prospect of making large sums of money from a civil suit—a motivation that doesn’t exist for the “victim” when the testifying “victim” is 2–7 years old.

For the article to be relevant, the authors felt that they should look at what kind of case comprises the bulk of prosecutions. Usually it is a pre-adolescent child making an outcry about something that happened at some point in the past. Those cases are more numerous than younger children making outcries contemporaneous with the alleged event.

Conversely, children above the age of seven are old enough to understand the concept of a lie, but they may be, or become, active participants in the lie without knowing or comprehending the consequences of the words they say. Children under seven understand neither. So while the science involved with older children is similar to that with young children, it is sufficiently different that you will need to use different experts, depending on the age of the child.

And this article also does not deal with cases where there is unequivocal physical evidence of abuse—e.g., an STD that the defendant also tests positive for. The article presupposes that you, as defense counsel, not only have the evidence that the child has been subjected to multiple conversations/interrogations/interviews/counseling sessions, but that you also have an expert who is competent to present the science to the court.

Under no circumstances should a taint hearing be requested to try to obtain discovery. This will not only damage your expert through trying to give an opinion with an incomplete foundation and cause your expert to become the prosecution’s best witness; it can also lead to the creation of more bad case law. While there may be something worse than your expert having to concede on cross-examination that there is not sufficient evidence to support the defendant’s contention that the child’s memory is tainted, that something does not come to the authors’ mind.⁵

Remember and understand that when you try to challenge the recollection of a child as being tainted, you will run into several fallacies or flaws that are endemic within the Texas courts.

The first fallacy or flaw is that judges and DAs will attempt to re-frame your argument as going to the competence of the child to testify. You cannot allow yourself to fall into this trap.

Why? First, Rule 601 of the Rules of Evidence creates a presumption that a person is competent to testify.⁶ The trial court has no duty to conduct a preliminary competency examination on its own motion.⁷ This means that you have to file a motion challenging the competence of the child to testify. Even if you expect to lose the motion, you should file it.

Once the competency of a child witness is challenged, the trial court must assure itself that the child has (1) the ability to intelligently observe the events in question at the time of the occurrence, (2) the capacity to recollect the events, and (3) the capacity to narrate the events.⁸ The third element, involving the capacity to narrate, requires that the witness is able to understand the questions asked, frame intelligent answers to those questions, and understand the moral responsibility to tell the truth.⁹ And the trial court’s determination of whether a child witness is competent to testify and its ruling on the issue will not be disturbed on appeal absent an abuse of discretion.¹⁰

But the child witness’ Rule 601 competence to testify is not the issue. The issue is the one of competency as it relates to personal knowledge, not whether the child is capable of testifying and reliability. Let us give you an example to illustrate this point—an example from a deposition taken in a case in Tarrant County.¹¹ The Unauthorized Practice of Law Committee of Tarrant County had sued Joe A. Izen Jr. for assisting in the unauthorized practice of law. During discovery, it turned out that no one on the committee knew where the complaint came from or who was going to testify against Joe Izen—but if anyone did, it was the lawyer who was the head of the committee. His was the last deposition taken. During his deposition, he testified that the source of the information (that Joe A. Izen Jr. had assisted in the unauthorized practice of law) was psychic phenomena. Yes, psychic phenomena!¹²

Was the head of the committee—again a lawyer—able to intelligently observe the events in question at the time of the occurrence, capable of recalling the events, and capable of narrating the events? The answer to all of these questions was yes.

But the lawyer’s testimony was not reliable. Why? Because not only do the courts not recognize ouija boards as a source of admissible evidence; there is simply no way to cross-examine a ouija board. Or a ghost. Or tarot cards. Or any of the myriad other possible sup­posed manifestations of psy­chic phenomena.

Some might argue that the question presented is a Rule 602, Tex. R. Evid., question and not a reliability question. The authors disagree because the courts recognize ways in which one can remotely acquire information (knowledge). An example of that would be a security guard watching a video monitor when a crime is committed. Say that the recording system malfunctions. In such a situation, would the security guard be allowed to testify as to what he saw on the monitor? Absolutely. That testimony is reliable. And it is not a question of competence.

So when a young child can distinguish between a red card and a blue card, and “knows that you get in trouble” if you tell a lie, that does not end the inquiry. Nor is that the only inquiry. In fact, the authors are only aware of one case where a young child who was allegedly sexually abused was found to be incompetent to testify.¹³

Why does that not end the inquiry? Well, let’s consider a hypothetical five-year-old who has (1) the ability to intelligently observe the events in question at the time of the occurrence, (2) the capacity to recollect the events, and (3) the capacity to narrate the events. Now, let’s assume that this five-year-old is being asked to testify about who left the presents under the Christmas tree that he found on December 25. He’s got a lot of circumstantial evidence that it was Santa Claus. And he knows all about Santa Claus—what he wears, who makes the toys, how he flies around the world, etc. But will he be allowed to testify that it was Santa Claus who left the presents?

No, he won’t. Because his recollection is not reliable. Now, this is an innocent example of implantation of a false memory. But it shows the difference between competence and reliability of the recollection—a difference we will address in more detail below.

And you need to be aware of the growing body of research regarding the implantation of false memories. Some of this research is set forth in Endnote 14. You need to be familiar with this body of literature.

The second fallacy or flaw is the belief that there must be coercion used to create a false memory in a young child. Well, not only does a child’s “knowledge” that Santa Claus exists dispel that belief; so does all of the scientific literature.¹⁴ Indeed, scientific research has shown that a memory can be implanted in a young child in as little as 20 seconds—without coercion!

Unfortunately, most judges and prosecutors think or are under the mistaken belief that coercion must be used in order for a memory to be implanted in a child. They for­get, or ignore, the myriad other factors that can affect what a child tells you.

These factors include the desire of the child to please the adult. Repeating a question after a child answers will make the child assume that it has answered incorrectly, and the child will, therefore, change its answer. A question that suggests an answer will usually elicit that suggested answer. An “or” question that is answered with a “yes,” followed by a specific fact-stated question will usually get the child to adopt the specific fact stated.

And it is precisely because of this effect that you should move to have the Court require that all meetings, interviews, sessions, counseling sessions, etc., with the child be recorded in a neutral media. You should include a request that all meetings with anyone in the DA’s office be recorded in a neutral media.¹⁵ Your argument should be that this is Brady material—potentially exculpatory or useable for impeachment.

Expect the State to oppose any such motion and to oppose it vehemently. The DA will announce with great emphasis that he and his employees don’t coerce any child or taint any child’s testimony or recollection. And the DA thereby ignores all of the science in this field.

An example of how easy it is to implant a memory, or to get a child to agree with something stated by an adult, occurred during the one of the authors’ defense of a 17-year-old juvenile who was facing 4 petitions that alleged aggravated sexual assault of 3 girls, aged 2–4 at the time of the alleged sexual assaults and aged 7–9 at the time of trial. The prosecutor repeatedly told the judge, and then the jury, that she and her office had not implanted any memories in these girls, that they had not coerced any testimony, and so on. The prosecutor’s argument ignored the fact that taint can occur without malice, coercion, or evil intent. Taint can occur through otherwise innocent actions or even genuine or mistaken beliefs. It does not have to come from someone who has something to gain, although it can.¹⁶

Then, on direct examination of the 7-year-old, the prosecutor asked the following question: “When Bobby walked into the bathroom, were you taking a bath or a shower?” Surprise! A totally new allegation, one not found anywhere in the multiple forensic interviews, in the counseling records, or in the outcry statement of this child. Nowhere!

The child’s answer was, “Yes.” But, yes to what? Bath or shower?

Well, the DA provided that information in the next question. “When you were taking a shower and Bobby walked in to the bathroom, was the shower curtain closed?” “Yes.” “What did Bobby do then?” And she went from there, adding more and more details. On an “event” that had never come up before the DA’s question.

Not surprisingly, every time the DA asked if that was all that Bobby had done, the complainant was able to conjure up more details—details that, when put in the total context, showed how impossible this event was. But all conjured up out of a desire to please the adult who was asking the questions.

Of course, these questions and the “answers” elicited demonstrate why you, as defense counsel, should be prepared to vigorously oppose any request by the DA for a “little leeway” in questioning the child complainant. The “leeway” that the DA is asking for is the ability to lead the child and the right to repeat the questions when the “correct” answer is not elicited.¹⁷

Fortunately for Bobby, during the recounting of details, the complainant said that Bobby was holding his penis with both hands. A 12-year-old holding his penis with both hands! On cross-examination, the 7-year-old was asked about how Bobby held his penis with both hands, whether it was one hand over the other or whether it was fingertip to fingertip. “Oh, it was fingertip to fingertip.” That answer was reinforced and then she was asked details about how much of the penis was above Bobby’s hands and how much was below. To say that a horse would have been jealous with envy is an understatement.¹⁸

But that is how very easy it is to implant memories in a child, or to get a child to go along with something an adult has stated. And having the court reporter transcribe those few pages so they could be read back to the jury conclusively demonstrated to the jury that coercion and force are not required to implant memories in young children. It was the gift that kept on giving.¹⁹

And this case is also an example of having the appropriate experts testify. While both experts were psychologists, one expert was able to testify to the science as related to what was done with and to the girls when the allegations first surfaced, in other words, when they were 2–4 years old. But this expert did not have a clinical practice or deal with children who were 7 years old or older. The other psychologist had a clinical practice, dealing with children as young as 7, and was very familiar with the science relating to corruption of recollection, the suggestibility of these aged children, and factors that could affect the reliability of their recollection. This psychologist was also able to opine how dangerous it was to have children this young on psychotropic medications. The expertise and experience of the two experts dovetailed perfectly to cover the entire time period and all of the factors that could influence the reliability of what the girls were saying. If you have one expert who can cover all of the science and facts involved in your case, then you can get by with one expert. But by all means, make sure that your expert can do so. Otherwise get the right number of experts for your case, making sure they have the appropriate experience and qualifications.

The third fallacy or flaw is that judges and DAs will attempt to re-frame your argument as going to the credibility, and that credibility is for the jury to decide. You cannot allow yourself to fall into this trap, either.

Why? Because credibility²⁰ has nothing to do with the reliability of the testimony. Consider the Houston case of Josiah Sutton. Josiah was convicted of rape and sentenced to 25 years in prison.²¹ The rape victim was convinced that Josiah Sutton had raped her. She was very credible—so much so that then Harris County DA Chuck Rosenthal threatened to re-try Josiah, because he had the eyewitness’ testimony. But regardless of her credibility (believability), the DNA proved that, as to Josiah Sutton, her testimony was completely unreliable. And ultimately, he was not retried.

Reliability is the issue—the only issue—that is involved when you challenge a child’s recollection. And you must not allow the judge or the DA to shift the focus of your challenge.

Reliability is a threshold issue that must be determined by the judge.²² Reliability is not an issue that can be determined by the jury. Consider all of the cases under Rule 702, Tex. R. Evid., where the expert’s opinion (testimony) is challenged. Every single case holds that it is the court’s (judge’s) duty to determine the reliability of the opinion (testimony).

The 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 and due course of law. 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 and by the due course of law guaranteed by the Texas Constitution.²³ 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 and due course of law interests are at risk.

So, how do you challenge the reliability of a young child’s recollection?

To challenge a child’s recollection, you should first have evidence that will support a finding of taint. If you don’t know what that evidence would consist of, you should become familiar with the case of Margaret Kelly Michaels.²⁴ The Michaels case gives you examples of improper interrogation and quite a bit of the research in the field. If you need a starting point to learn about improper interrogation of children, there is probably no better place to start.

When, and only when, you have the evidence to support a taint motion, file a motion requesting a taint hearing. You might also want to challenge the outcry statement by separate motion. If you do so, you might want to try to have both motions heard at the same time. And consider also having the court hear your challenge to the child’s competence heard at the same time.

In a taint hearing, the court is asked to consider whether the number of people who have spoken to the child, the interview techniques employed by the State, its agents, the people or others involved, as well as other factors could have undermined the reliability of the complainant’s statements and subsequent testimony, to the point where the statements should be excluded.²⁵ This is so because the complainant will probably have been sub­jected to repeated questioning and interrogation about the alleged event that gave rise to the indictment. This questioning may have been innocent and well-intentioned, such a relative’s concern when they believe that something untoward has been done to the child, or a counselor’s “belief” that something has happened so that the child may be continued in counseling.²⁶

Again, remember that you, as movant, have the burden of proving what those factors are, that those factors are present, and that they are sufficient to undermine the trier of fact’s ability to rely upon the testimony.

And in a taint hearing, the court is asked to determine whether the child’s accusations were founded “upon unreliable perceptions, or memory caused by improper investigation procedures,” and thus whether the testimony reflecting those accusations could lead to an unfair trial.²⁷ A pretrial hearing is required to assess the reliability of the statements and testimony to be presented by the child witness to determine their admissibility. This logic also applies to the outcry statement.

Expect the DA to try to limit your inquiry into the admissibility of the outcry statement to the factors set forth in Art. 38.072(2)(a), CCP. The authors suggest that the focus should instead be on the factors set forth in Art. 38.072(2)(b)(2), CCP,²⁸ especially the “circumstances” of the statement. Those circumstances would include how the child came to have the “recollection” that led to the outcry.

Consider a couple of cases that the authors have been involved in. One arose out of a divorce case, where custody of an infant daughter was at issue. That daughter was too young to be verbal, so the mother’s two older daughters made outcries against the stepfather. CPS intervened in the divorce, and during discovery in the divorce, CPS produced a tape recording that the mother had made wherein she was heard telling her daughters that “this is what you need to say that your step-daddy did to you.”²⁹

The other case involved a stepdaughter who accused her stepfather of sexually abusing her at the age of 6. After he had served 10 years of a 30-year sentence, she recanted. During the writ hearing, she detailed how upset she was that her mother had divorced her father, and how her aunt told her that if she said these things about her stepfather, her mother would have to divorce him and get back together with her father.³⁰ Not surprisingly, the aunt had been the outcry witness. Also not sur­prisingly, the girl, who was almost 8 when she testified, had no concept of the consequences of her testimony—that her stepfather would be sentenced to prison for 30 years or that her mother would stick by him and not file for divorce.

This is important to comprehend because there is a constantly broadening body of scholarly scientific authority existing on the question of children’s susceptibility to improper interrogation.³¹ There is a consistent and recurring concern over the capacity of the interviewer and the interview process to distort a child’s recollection through slanted interrogation techniques. There are certain interview practices that are sufficiently coercive or suggestive to alter irremediably the perceptions of alleged child victims.

There are other scientific and psychological propositions that courts have addressed in analogous contexts, among these being (1) the availability of battered women’s syndrome as self-defense in criminal cases;³² 2) the holocaust survivors syndrome;³³ (3) the effect of hypnosis on the admissibility of testimony;³⁴ and (4) the consideration of testimony at pretrial hearings regarding tainted identification evidence.³⁵

The “investigative interview” is a crucial, perhaps determinative moment in a child-abuse case.³⁶ That an investigatory interview of a young child can be coercive or suggestive and thus shape the child’s response is generally accepted. If a child’s recollection of events has been molded by 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 abuse. 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 by the interviewer of a preconceived notion of what has happened to the child, the use of leading questions, the use of suggestive questions, and a lack of control for outside influences on the child’s statements, such as previous conversations with parents or peers and whether the interviewer was a trusted authority figure.³⁷

In cases with a child complainant, the complainant will often have been interviewed or interrogated by family members, psychologists, caseworkers, physicians, detectives, investigators, and even Assistant District Attorneys. The total number of persons will often be difficult, if not impossible, to determine. Often, a number of these persons will have conducted multiple interviews. 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.³⁸ The insidious effects of repeated questioning are even more pronounced when the questions themselves over time suggest information to the child.³⁹ In fact, memories of abuse that never occurred can be implanted in the mind of a child in just one interview.⁴⁰

The explicit vilification or criticism of the person charged with wrongdoing is another factor that can induce a child to believe abuse has occurred. 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. The transmission of suggestion can also be subtly communicated to children through more obvious things such as the interviewer’s tone of voice, mild threats, praise, cajoling, bribes, and rewards, as well as resorting to peer pressure.

These are factors that are often present in contested divorce/custody cases. In fact, the authors routinely look for a the pendency of divorce case when these type of cases come in the door. That is not a bad thing, since it will often afford a vehicle for discovery—discovery that otherwise would not be available in the criminal case.

There is much authority recognizing the considerable sup­port the deleterious impact improper influence can have on a child’s memory. Other courts have recognized that once tainted, the distortion of a child’s memory is irremediable.⁴¹ The debilitating impact of improper interrogation has even more pro­nounced effect among very young children.⁴²

The conclusion that improper influences 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 Associations and the American Prosecutors’ Research Institute, have 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”;⁴³ an interviewer should avoid asking leading questions;⁴⁴ an interviewer should never threaten a child or try to force a reluctant child to talk;⁴⁵ and multiple interviews with various interviewers should be avoided.⁴⁶

Courts around the country recognize the very same concerns expressed in the academic literature and addressed by the guidelines established by governmental authorities with respect to improper interrogation of alleged child-abuse victims. The United States Supreme Court noted with approval the conclusion of the Idaho Supreme Court that the failure to videotape 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 the children’s susceptibility to suggestive questioning, all indicate the potential for the elicitation of unreliable information.⁴⁷

So, to conclude, as a matter of judicial economy and, frankly, lawyer economy, the authors believe it is possible to have a hearing that challenges the outcry testimony per Art. 38.072, and as you contest the admissibility requirements of the outcry, you should contest the statutory exception under Crawford. You can also contest the child’s personal knowledge under Rule 602 as well as the reliability of the proposed testimony of the child by virtue of who interviewed the child (parent, social workers, police, forensic interviewers, therapists, doctors, and prosecutors) and how they interviewed the child, while examining how these individuals and the repetition has now made it highly unlikely that the testimony of the child will be reliable (and also whether the child now has personal knowledge—e.g., is it real or is it Memorex®?).

That is why three motions need to be filed and can all be heard at one time by witnesses and experts. And if the judge refuses you, ask to make a bill.⁴⁸ If the judge refuses to allow you to make your bill, you should make a proffer on the record of what the evidence would show. And then you raise the same objections when the child and outcry witnesses are offered during trial. Hopefully, given the present makeup, this should be held to preserve the error.

Lastly, during trial, make sure to hammer the number of times the child has been talked to, interviewed, counseled, etc. This will at least allow you to argue that the child’s testimony and the child’s outcry are not to be believed.

Notes

1. Taint—1. To imbue with a noxious quality or principle. 2. To contaminate or corrupt. 3. To tinge or affect slightly for the worse. Black’s Law Dictionary (9th ed. 2009)

2. Art. 38.072, CCP

3. See Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony by Stephen J. Ceci and Maggie Bruck (July 1999) for a thorough examination/discussion of the Salem Witch trials.

4. One of the authors attended a CLE presentation by a neuropsychologist from one of the Medical Colleges in the Texas Medical Center. This neuropsychologist opined that repressed memories are real because “you can’t have a memory unless you are in the same chemical state that you were in when the memory was created.” The author looked at the attorney seated next to him and said, “I’m not in the same chemical state as I was when (you fill in the blank) and I distinctly recall it.” The other lawyer laughed and stated that he had the same thought. To say that there are a lot of faulty studies on repressed memories is an understatement.

5. Knowing what your expert can and cannot testify to, and what the expert would have to concede on undisputed facts, is critical to providing effective as­si­stance of counsel. In one of the authors’ cases, the 39-year-old defendant teacher had placed 125 cell phone calls and exchanged 400+ text messages with the 13-year-old student-complainant in a 60-day period. The calls ranged from very short to almost 4½ hours in length, at all times of the day and night. Any competent expert would have to concede that this was consistent with the State’s theory that the teacher was “grooming” the student. As a result, while experts were disclosed, none was ever intended to be called during trial.

6. Tex. R. Evid. 601.

7. McGinn v. State, 961 S.W.2d 161, 165 (Tex.Crim.App.1998).

8. Torres v. State, 33 S.W.3d 252, 255 (Tex.Crim.App.2000) (quoting Watson v. State, 596 S.W.2d 867, 870 (Tex.Crim.App.1980)).

9. Watson, 596 S.W.2d at 870.

10. Broussard v. State, 910 S.W.2d 952, 960 (Tex.Crim.App.1995), cert. denied, 519 U.S. 826, 117 S.Ct. 87, 136 L.Ed.2d 44 (1996)

11. The excerpt from the actual deposition can be found in The Underground Lawyer, © 2001 by Michael Louis Minns.

12. Although the head of the committee read and signed his deposition, he never changed this answer. The specific type of psychic phenomena (spirits, automatic writing, ouija board, tarot cards, crystal ball, tea leaves, etc.) was not identified by the head of the committee.

13. This was in a case in Harris County defended by Mark Ramsey. The three-year-old boy was questioned on videotape by a CPS caseworker. Four times the boy denied that his father had done anything. The caseworker then sat the boy on her lap and proceeded to rub his crotch! The boy was so upset that he wet himself and got away from her. She then repeated the same questions, eliciting different and incriminating answers. At the end of this, she asked whether the answers he had just given were the truth or a lie. The young boy spun around, looked directly at the camera and said, “They’re a lie!” Judge Myron Love found the young boy incompetent to testify, based on the videotape.

14. See, e.g., Investigative Interviews of Children: A Guide for Helping Professionals by Debra A. Poole and Michael E. Lamb (Jan 1, 1998); Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony by Stephen J. Ceci and Maggie Bruck (July 1999); The role of mental imagery in the creation of false childhood memories, Hyman Jr., I. E., & Pentland, J. (1996), Journal of Memory and Language, 35, 101–117; The reality of repressed memories, Loftus, E. F. (1993), American Psychologist, 48, 518–537; The formation of false memories, Loftus, E. F., & Pickrell, J. E. (1995), Psychiatric Annals, 25, 720–725;“A picture is worth a thousand lies: using false photographs to create false childhood memories, Wade, K. A., Garry, M., Read, J. D., & Lindsay, D. S. (2002), Psychonomic Bulletin & Review, 9(3), 597–603.

15. You might even consider including a request that the adults in the child’s family be enjoined from talking to the child about the alleged event.

16. A kid’s statement of opportunity (e.g., “daddy touched my pee-pee and it hurt”) can be taken from what it actually is (a father putting diaper rash cream on a rash) and turned into something far more sinister—if the adult hearing the statement has the motive to do so (e.g., a contested custody case).

17. In this case, counsel had objected to the court allowing this “leeway.” The objection was overruled by the court, so a leading objection was made as to each such question. You should do the same to protect the record.

18. In closing arguments, counsel stood in front of the jury box, put his hands fingertips to fingertips and told the jury, “If this is what little Suzie really thinks that men have, then she is either going to be sorely disappointed or greatly relieved when she becomes a woman.”

19. The DA never wavered from her stated belief that Suzie was to be believed—despite the physical impossibility of what she had described. This demonstrates the position taken by many DAs that everything proves that something happened and nothing proves that something didn’t happen.

20. Credibility—The quality that makes something (as a witness or some evidence) worthy of belief. Black’s Law Dictionary (9th ed. 2009).

21. Josiah Sutton is the poster child for the problems with the Houston Po­lice Department Crime Lab. A crime lab technician testified that the DNA was an exact match even though, with only 3 of 13 alleles matching, it was an absolute exclusion. His writ of habeas corpus was granted, and he was freed af­ter serving 4 years of his sentence.

22. Reliable—Capable of being relied on; dependable. The American Heritage Dictionary of the English Language, Fourth Edition copyright © 2000.

23. Manson v. Brathwaite, 432 U.S. 98 (1977) (regarding the corrupting effect of unreliable identification testimony).

24. State v. Michaels, 642 A.2d 1372 (New Jersey 1994). While Michaels is only persuasive authority, it comes from a “sister court” to the Court of Criminal Appeals. And it is spot-on with the science and resources that it refers to.

25. By interview techniques, the authors include all of the times and ways that the adults in the child’s life have spoken to the child about the alleged event. Conversations with parents or adult relatives, counseling sessions, etc., can all affect a child’s recollection.

26. It is an axiom of counseling that the counselor must not be confrontational but must “believe the patient” for the counseling to work. Of course, this raises the very real economic bias of the counselor, since counseling continues only if the child needs it because something has happened. It also raises the spec­ter of “confirmatory bias”—people tend to find what they are looking for.

27. These investigation procedures include parents or relatives repeatedly asking the child what happened. It can also include therapy sessions.

28. “[T]he trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement” (emphasis added).

29. This shows the importance of trying to get discovery through any ongoing civil case. As a result of the tape-recording, the outcries were suppressed and the cases dismissed.

30. These are the facts underlying the writ of actual innocence in Ex parte Harmon, 116 S.W.3d 778 (Tex. Crim. App. 2002).

31. See Endnote 14, above.

32. Fielder v. State, 756 S.W.2d 309 (Tex. Crim. App. 1988), Pierini v. State, 804 S.W.2d 258 (Tex. App.—Houston [1st Dist.] 1991, review refused), Lane v. State, 957 S.W.2d 584 (Tex. App.—Dallas 1997, no writ).

33. Werner v. State, 711 S.W.2d 639 (Tex. Crim. App. 1986).

34. Zani v. State, 758 S.W.2d 233 (Tex. Crim. App. 1988), Vester v. State, 713 S.W.2d 920 (Tex. Crim. App. 1986, en banc), Spence v. State, 795 S.W.2d 743 (Tex. Crim. App. 1990, en banc), Burnett v. State, 642 S.W.2d 765 (Tex. Crim. App. 1982, en banc).

35. Barley v. State, 906 S.W.2d 27 (Tex. Crim. App. 1995, en banc); Manson v. Brathwaite, 432 U.S. 98 (1977) (regarding the corrupting effect of unreliable identification testimony); Gilbert v. California, 388 U.S. 263 (1967).

36. See Gail S. Goodman and Vicki Helgreson, Child Sexual Assault: Children’s Memory and the Law, 40 U. Miami Law Review, 191, 195 (1985).

37. John E. B. Myers, The Child Witness: Techniques for Direct Examination, Cross-Examination and Impeachment, 18 Pac. L.J. 801, 899 (1987).

38. See Debra A. Poole and Lawrence T. White, Effects of Question Repetition on Eyewitness Testimony of Children and Adults, 27 Developmental Psychology, November (1991) at 975.

39. Goodman and Helgeson, supra, 40 U. Miami L. Rev. at 184–187.

40. See William Bernet, M.D., Case Study: Allegations of Abuse Created in a Single Interview, Journal of the American Academy of Child and Adolescent Psychiatry, 36:7, July 1997, pp. 966–970.

41. See State v. Wright, 775 P.2d 1124, 1128 (1989), aff’d sub nom Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). (“Once this tainting of memory has occurred, the problem is irremediable. That memory, is from then on, as real to the child as any other.”). See also Stephen J. Ceci and Maggie Bruck, Jeopardy in the Courtroom, 1995, pp. 218–220.

42. See Stephen J. Ceci, PhD, and Mary Lynn Crotteau Huffman, PhD, “How Suggestible are Preschool Children? Cognitive and Social Factors,” Journal of the American Academy of Child and Adolescent Psychiatry, 36:7, July 1997, pp. 948–958, as well as 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 Age Difference in Suggestibility in Children’s Eyewitness Memory 82 (Stephen J. Ceci et al., ed. 1987).

43. American Prosecutors; Research Institute, National Center for Prosecution of Child Abuse, Investigation and Prosecution of Child Abuse at p. II-7 (1987).

44. Id. at II-8.

45. Id. at II-9.

46. Id. at II-5.

47. See Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).

48. The right to make a bill of exception is absolute. Kipp v. State, 876 S.W.2d 330 (Tex. Crim. App. 1994). Being refused the right to make a bill of exceptions may build in reversible error.