Kimberly A. Hart

Kimberly A. Hart is a licensed private investigator and trial consultant in Toledo, Ohio. She first became involved in defending false allegations of abuse in the mid ’80s and was appalled by the dearth of knowledge and experience in the legal and professional communities to deal with false allegations of abuse. In 1990, Ms. Hart and others formed the National Child Abuse Defense and Resource Center, a 501(c)(3) tax-exempt educational foundation, in an attempt to educate attorneys, medical doctors, mental health professionals, and others about the science involved in dealing with false allegations of abuse. She has been the prime mover in the annual seminars put on by the National Child Abuse Defense and Resource Center, bringing world-renowned experts from around the globe to present the science of dealing with false allegations of abuse to lawyers, caseworkers, police, judges, and others interested in separating real cases of abuse from false. In addition to serving as the Executive Director of the National Child Abuse Defense and Resource Center, Ms. Hart has an active practice as a trial consultant, assisting attorneys throughout the country in defending cases involving false allegations of injury and abuse. Although not an attorney, she has actively assisted attorneys in defending cases as varied as indecency with a child to a dead “shaken-baby,” thereby gaining a well-deserved reputation as an excellent source of legal and medical expertise in these cases.

DNA Evidence—New Tactics to Use in Challenging

Who, in defending a case involving DNA evidence, has not heard testimony from the State’s expert to the effect that there is a one-in-3 billion chance of a match to someone other than the defendant? It does not matter that all 13 alleles do not match; the testimony is essentially the same. Invariably.

Powerful evidence. It instantly creates the impression in the mind of the jury that it would take over 3 billion people being tested before a match occurred. But, as you will see, it can be a false impression. A very false impression.

Or worse, the State’s expert offers testimony to the effect that: “The frequency of an unrelated African American (both appellant and Franklin are African American) having the same DNA pattern as that found on the cigarette butt consistent with the major contributor’s DNA was approximately one in 118 billion.”1

Worse yet, the State’s expert offers testimony to the effect that: “The complainant could not be excluded as a contributor to the bloodstain on the bill. The chances of another contributor are 1 in 30 quintillion Caucasians, 1 in 56 quintillion African-Americans, and 1 in 343 quadrillion Hispanics.” And, “The chances of another contributor are 1 in 191 quintillion Caucasians, 242 quintillion African-Americans, and 1 in 273 quintillion Hispanics.”2

Never mind that some of these chances are “derived” after testing alleles at only 6 of the 13 loci that are normally tested!3,4 Or that European agencies usually use two extra markers, D2 and D19, to make 15 loci (16 if you include AMEL) that are tested.5 Or that Taiwan now tests allelles at 23 markers because of matches at 13 alleles that turned out to be exclusions when 23 markers were tested.6 Or that there is no uniform methodology for determining those chances within the field—not even within the same lab!7 Or that the policies of some agencies requires their employees to testify—when only two alleles match—that the person cannot be excluded.8

So, how do you challenge this testimony?

Before listening to the presentation of Greg Hampikian, PhD, at the National Child Abuse Defense and Resource Center’s seminar last October, we were relegated to using the tried (tired?) tactics to challenge this one-in-however-many billion, trillion, quadrillion, or quintillion chance testimony. These tactics include: (1) challenging the methodology used in testing the sample(s), especially when a mixture of DNA was tested; (2) challenging chain of custody or errors in sampling; (3) challenging the technician on his or her methodology in light of known errors; (4) challenging the degradation of the DNA specimen; (5) challenging the methodology of calculating the chances; (6) challenging the underlying study that is used to calculate these chances; (7) challenging the possibility of contamination of the sample; (8) challenging the lab based on its history of past errors, etc.9 This is not an exhaustive list, but those of us who have challenged DNA know them all.

Wouldn’t it be nice to have some new “bullets” to put into your cross-examination “gun”?10 Or to have some additional aces (bullets) to lay down when playing poker with the State’s experts on DNA?11 Or to be able to force the State’s expert to have to bite the bullet and concede that their opinions are flawed, if not outright wrong?12

Dr. Hampikian gave everyone who attended the NCADRC seminar several new aces (bullets) to use when playing poker with the State’s expert and trying to trump the State’s expert’s testimony on DNA evidence.13

Dr. Hampikian’s First Bullet

The first bullet was to get us lawyers to understand the difference between chance and probabilities (statistics).14

For instance, take the question of what is the number of people you have to have in a room to have a better than 50% probability of two of them sharing the same birthday? Call this the birthday problem. People will guess at anywhere from 366 to 183 and they will be wrong. This is a simple example of how people (jurors) confuse chance with probabilities (statistics).

The birthday problem asks how many people you need to have at a party so that there is a better-than-even chance that two of them will share the same birthday. Most people think the answer is 183, the smallest whole number larger than 365/2. In fact, you need just 23. That’s right, 23.

The answer 183 is the correct answer to a very different question: How many people do you need to have at a party so that there is a better-than-even chance that one of them will share your birthday?

If there is no restriction on which two people will share a birthday, it makes an enormous difference. With 23 people in a room, there are 253 different ways of pairing two people together, and that gives a lot of possibilities of finding a pair with the same birthday.

Here is the precise calculation. To figure out the exact probability of finding two people with the same birthday in a given group, it turns out to be easier to ask the opposite question: what is the probability that no two will share a birthday—i.e., that they will all have different birthdays? With just two people, the probability that they have different birthdays is 364/365, or about .997. If a third person joins them, the probability that this new person has a different birthday from those two (i.e., the probability that all three will have different birthdays) is (364/365) x (363/365), about .992. With a fourth person, the probability that all four have different birthdays is (364/365) x (363/365) x (362/365), which comes out at around .983. And so on. The answers to these multiplications get steadily smaller. When a twenty-third person enters the room, the final fraction that you multiply by is 343/365, and the answer you get drops below .5 for the first time, being approximately .493. This is the probability that all 23 people have a different birthday. So, the probability that at least two people share a birthday is 1 – .493 = .507, just greater than ½.15

Carrying this out to 30 people and the answer you get drops to approximately .293. So the probability that at least two people share a birthday with 30 people in the room is 1 – .293 = .707, or greater than 70%. Carrying this out to 35 people and the answer you get drops to approximately 0.185. So the probability that at least two people share a birthday with 35 people in the room is 1 – .185 = .815, or greater than 80%. Carrying this out to 40 people and the answer you get drops to approximately 0.108. So the probability that at least two people share a birthday with 40 people in the room is 1 – .108 = .892, or almost 90%. Carrying this out to 44 people and the answer you get drops to approximately .007. So the probability that at least two people share a birthday with 44 people in the room is 1 – .007 = .993, or greater than 99%.

Changing the birthday problem slightly, ask how many people you need to have at a party so that there is a virtual certainty that two of them will share the same birthday. The answer to this question is 45, because with 45 people in the room, the probability that at least two people share a birthday is greater than 100%!16

A similar problem is presented by the “Children Puzzle.” I tell you that a couple has two children and that (at least) one of them is a boy. I ask you what is the probability that their other child is a boy. Most people think the answer is 1/2, arguing that it is equally likely that the other child is a boy or a girl.17 But that’s not the right answer for the question I have asked you. Here’s why. In terms of order of birth, there are four possibilities for the couple’s children: BB, BG, GB, GG. When I tell you that at least one child is a boy, I rule out the possibility GG. That leaves three possibilities: BB, BG, GB. With two of these, the other child is a girl; so the probability of the other child being a girl is 2/3. Leaving the probability of the other child being a boy at 1/3.18

A similar problem is presented by these questions: What is the probability of tossing a coin and having it come up heads 10 times in a row versus what is the chance (probability) that on the tenth flip of the coin, it will come up heads? The first probability is (½)10—one-half to the tenth power. The second probability is ½. But most people will answer both questions as ½.

These are just three examples of how people (jurors) confuse chance with probabilities. Getting jurors to understand the difference between chance and probabilities (statistics) is very important. Getting the State’s expert to talk in terms of probabilities (statistics) instead of chances is even more important.

Dr. Hampikian’s Second Bullet

Which brings us back to DNA in the courtroom and the second bullet that Dr. Hampikian gave us. The State’s DNA expert is going to testify that there is a one-in-3 billion chance that there would be a match on the alleles that were tested and which matched.19 Or, as there are fewer than 13 alleles that match, that your client cannot be ruled out.20

What do you do?

First, if it’s a one-in-3 billion chance testimony, we would recommend that you file a Rule 702 challenge to any such testimony. Why? Because chance is not probability.

You need to reframe the question or the expert’s statement. The question or statement is, more properly, Is a coincidental match to the DNA database possible? And if so, what is the probability of that coincidental match?

If a profile has a random match probability of one-in-3 billion, how big does the database have to be before a “random match” is expected (over 50% chance)? The answer is about one and one-half billion. Using the “birthday problem” above, you see that this is the “How many people do you need to have at a party so that there is a better-than-even chance that one of them will share your birthday?” answer.

Second, you need to ask the State’s expert whether he has ever examined the FBI’s DNA database or even the Texas DNA database to see if there were any random matches and, if so, on how many alleles the profiles matched. Being the cynics that we are, we would expect the expert to announce that, in fact, he had done so. Which then leads to how did he get access to the database when no one else has been able to do so, were those results were published in a peer-reviewed scientific article, etc.

Of course, this leads to the fertile ground of cross-examination: How many DNA profiles are in the FBI database? Or the Texas database?

Which brings us back to, what is the chance (probability) that there is a random match somewhere in the DNA database?

If a DNA database has a number of profiles that each has about a one-in-3 billion random match probability, the question becomes: How big does that database have to be before you expect (more than 50% chance) a match between two profiles in the database?

Remember, the FBI has the world’s largest DNA database, but it has never made its database available to independent scientists to examine. The authors have searched online and have been unable to find any definitive answer to even the question of how many DNA profiles it has in its database.21

So, how big does that database have to be before you expect (more than 50% chance) a match between two profiles in the database?

According to Dr. Hampikian, the answer is 65,493. That’s right—65,493. Not one and one-half billion people. Not a billion people. Not five hundred million people. Not a million people. Slightly more that 65,000 people!

So, where did Dr. Hampikian come up with that number? Arizona. That’s right—Arizona.

Well, actually, it was the examination of the Arizona DNA database that was performed by Steven P. Meyers, MS, with the California DOJ Jan Bashinski DNA Lab. Dr. Hampikian showed those slides to the audience at the NCADRC Seminar in October 2014.22

You see, among all of the states that have DNA databases, only Arizona has made its DNA database available to scientists to examine. In that examination, the scientists were able to find the following matches:

  • 122 pairs match at 9 of 13 loci
  • 20 pairs match at 10 of 13 loci
  • 1 pair matches at 11 of 13 loci (full siblings)
  • 1 pair matches at 12 of 13 loci (full siblings)

And that’s in a database of only 65,493 profiles!

Which suggests to the authors that if you are defending someone on a crime where DNA is being used to “finger” your client, it might be time to ask for discovery of the State of Texas’ DNA database, so that your expert can examine it to determine whether Texas has similar matches that have not been disclosed.23 This alone could be critical in showing that the State’s expert’s pontifications as to chances of a match are nothing other than something that the expert has pulled out of an orifice somewhere.

And, in light of what was uncovered in the Arizona database, it could be argued that the prosecutors are withholding Brady material for at least two separate reasons. First, the Texas DNA database is supposedly larger than the Arizona database, so one could presume that there are matches in the database that are similar to those found in Arizona. Second, the Arizona matches will have been submitted to CODIS, which means that those matches are in CODIS. This is impeachment evidence that the prosecutor has access to and it should be turned over under Brady.

Dr. Hampikian’s Third Bullet

Which brings us to the third bullet that Dr. Hampikian gave those in attendance at the NCADRC Seminar last October. It is the case of Chen Long-Qi out of Taiwan.24

The facts of that case are as follows: On March 24, 2009, two escorts were raped between 4 to 6 a.m. in a warehouse that Chen and his friend rented for agricultural products distribution. The victims failed to identify the assailants due to alcohol intoxication.25

Chen always maintained his innocence during the investigation and trial. He claimed that he left before the crime to pick up his wife, Ko, at her workplace. Ko’s timesheet corroborated Chen’s words. An eyewitness also testified that Chen was not at the scene. Despite no testimony linking Chen to the crime, the district court and high court found him guilty of gang rape with the other two co-defendants. The decision was solely based on a DNA test concluding that Chen “cannot be excluded” from the semen stain found on one of the victims’ underwear. Chen was convicted of gang sexual assault and was sentenced to 4 years in March 2013.26

With help from the Taiwan Association for Innocence, Chen filed a motion for retrial in June 2013 seeking to retest the DNA evidence. The court authorized a 23 loci STR test on the original mixture DNA sample. The new test result showed that Chen “can be excluded” from the DNA sample. Based on this new piece of evidence, the court granted his motion in December 2013.27

According to Dr. Hampikian in his presentation at the NCADRC Seminar, Chen was acquitted on April 15, 2014. As Dr. Hampikian explained: “Last year the Taiwan Association for Innocence director showed me the case of a man convicted of gang rape through DNA evidence. While that first DNA test was accurate, it was a complex mixture, and newer testing is more discriminating. Through a court hearing the National Crime Lab agreed to do further testing with newer kits, and they were able to exclude Chen Long-Qi.28

Dr. Hampikian’s Fourth Bullet

Dr. Hampikian’s fourth bullet dealt with the problem with statistics. He used the case of Donny Denman to illustrate.

Who is Donny Denman? Donny Denman is the man who the FBI pronounced dead after they examined the DNA in some bones found in New Mexico. Since Donny Denman had been missing for years and since they did not have Donny’s DNA, they used Donny’s siblings to test the mitochondrial DNA. And the FBI concluded that the DNA matched and the bones were Donny’s.

Donny had a funeral. The Pastor gave the eulogy. A death certificate was issued in Donny’s name. There was only one problem: Donny was still alive.29

Granted that using mitochondrial DNA is not as effective in distinguishing individuals as the more common nuclear DNA process, there was a coincidental match, nonetheless. What’s really interesting to the authors is that the FBI said that Denman’s case was the first time the FBI lab has had a “coincidental match.”

The reason that statement is so interesting is that the Arizona DNA database, supra, would have been submitted to CODIS. Are we to believe that the DNA samples that led to the matches that Steven P. Meyers, MS, found in the Arizona database, supra, somehow did not make it into CODIS?

Or are we to believe that FBI is telling the truth when they state that they have never had a “coincidental match.” Remember, these are the same people who tell us that fingerprints are unique and who incorrectly identified Brandon Mayfield, a lawyer from Portland, Oregon, as the Madrid train station bomber.30

Related to this is that experts say there is no way to tell what the odds are for a coincidental match. But courtesy of the coincidental matches that Steven P. Meyers found in the Arizona DNA database, we know that the odds of a coincidental match at 9 of 13 alleles is 122/65,493. We also know that the odds of a coincidental match at 10 of 13 alleles is 20/65,493. We also know that the odds of a coincidental match at 11 of 13 alleles is 1/65,493. And we know that the odds of a coincidental match at 12 of 13 alleles is 1/65,493.31

That’s nowhere near a one-in-3 billion chance! Not even in the same ballpark. Not even on the same planet.

Dr. Hampikian’s Fifth Bullet

Dr. Hampikian’s fifth bullet dealt with the problem of contamination of the samples in the laboratory.

Dr. Hampikian gave several examples of cases where people were identified as the perpetrator but the identification was flawed by contamination occurring in the laboratory.

One such case was the case of Carlton Gary, the so-called Columbus Stocking Strangler. He spent almost 30 years on death row in Georgia, and in 2009, hours before he was to be executed, the Georgia Supreme Court ordered DNA testing. Ultimately, the Georgia Bureau of Investigation laboratory conducting the tests reported it had tainted the DNA evidence.32

The interesting corollary is that when the DNA was re-tested, it did not match anyone in the CODIS database. Two years later, a gun crime was committed in Georgia and the DNA from the suspect in that gun crime was submitted to CODIS. A match was found, so that suspect was interviewed and he was excluded from the Columbus stocking murder cases due to his age—he couldn’t have committed those crimes back in the ’70s. It turns out that the samples in both cases were contaminated at the Georgia Bureau of Investigation Crime Lab with the same DNA evidence. And it turns out that the DNA that contaminated both samples was from a semen sample produced by someone who works in that lab—a sample produced as a quality control!33

Dr. Hampikian’s Sixth Bullet

Dr. Hampikian’s sixth bullet dealt with the problem of contamination of the samples that occurs outside the laboratory.

In his presentation at the NCADRC Seminar in October 2014, Dr. Hampikian talked about the need for crime scene technicians to change their gloves between each piece of evidence they handle so as to avoid transferring DNA from one piece of evidence to another. This, alone, presents a fertile ground for cross-examination.

Dr. Hampikian also talked about the “phantom of Heilbronn.”34 This is the debacle suffered by the German police when they spent 16 years chasing a woman who never existed. The unnamed woman was suspected of being a serial killer who over 16 years carried out a string of six murders, including strangling a pensioner. It turns out the misidentification was caused by swabs used to collect DNA samples having been contaminated by an innocent woman working in a factory in Bavaria.

Conclusion

The take-away from Dr. Hampikian’s two presentations is this: There are forensic DNA errors; there are statistical and interpretative errors; and there are contamination errors. Now you have six new aces to lay down on the table when you want to trump the State’s expert in your quest for justice for your clients who are being “fingered” by DNA.

Endnotes

1. Brown v. State, 163 S.W.3d 818 (Tex. App.—Dallas 2005, pet. ref’d).

2. Owolabi v. State, 448 S.W.3d 148 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

3. Brown v. State, 163 S.W.3d at 825—826.

4. CODIS identifies genetic markers at 13 STR loci, plus Amelogenin (AMEL) to determine sex. See http://www.dnaconsultants.com/Default.aspx?PageID=5813864&A=SearchResult&SearchID=8611581&ObjectID=5813864&ObjectType=1 (last accessed January 22, 2015).

5. Id.

6. http://wrongfulconvictionsblog.org/2014/02/07/taiwan-association-for-innocence-wins-first-case/ (last accessed January 22, 2015).

7. Presentation by Greg Hampikian, PhD, at TEDx Boise 2015. Dr. Hampikian’s presentation can be found at: http://tedxtalks.ted.com/video/Forensic-DNA-Mixups-|-Greg-Hamp . There’s lots of great information, and this presentation is recommended to all who read this article.

8. Dr. Hampikian notes that the experts from the Georgia Bureau of Investigation will testify, when only two alleles match, that the defendant cannot be ruled out. Using statistics (probabilities), this is an absolute exclusion. You should be aware of similar testimony from the State’s experts in Texas. Never forget that the State’s expert testified that the DNA in the rape kit was an exact match to Josiah Sutton. But only three alleles matched, and that was an absolute exclusion! See https://www.voiceforthedefenseonline.com/taint-question-reliability-not-credibility-or-competence/.

9. In his presentation at TEDx Boise 2015, Dr. Hampikian discusses the problems associated with contamination of the samples, including the possible sources of contamination.

10. Two the authors are attorneys, licensed in Texas, proud possessors of a CHL, who can often be found exercising the privileges that come with a CHL. It seemed appropriate to them to use the term “bullet,” in the sense of the metal cartridge that one inserts into a pistol. This term was not suggested by Dr. Hampikian, and to the authors’ knowledge, he has never referred to his points as bullets—not even when he was using a PowerPoint presentation containing what would otherwise be called bullet points.

11. In cards, an ace is referred to as a bullet. Random House Dictionary, Random House Inc., 2015. The NCADRC seminar is usually held in Las Vegas, and the authors have been known to participate in the games of chance offered in the casinos. There has been more than one occasion when they each would have been more than happy to have had one more of these bullets to play.

12. “Bite the bullet”: to force oneself to perform a painful, difficult task or to endure an unpleasant situation. Random House Dictionary, Random House Inc., 2015.

13. The authors are grateful to Dr. Hampikian for his assistance in the prep­a­ra­tion of this paper and his providing the slides referred to in this paper together with the link to his TEDx 2015 presentation. His assistance was limited to check­ing the paper for errors, and he did not have any input into the final draft or its terminology or the words used.

14. Again, the term “bullet” is used in the sense defined in note 11—an ace.

15. http://www.npr.org/templates/story/story.php?storyId=4542341 (last accessed January 3, 2015).

16. As you will see in this paper, this question can be rephrased: How many people’s DNA profiles do you have to have before you are virtually certain to have two people who match at 9, 10, 11, or even 12 loci.

17. That answer is the answer to the question of what is the chance that the other child is a boy.

18. Id.

19. Or in a trillion, a quadrillion, a quintillion, or in a whatever chance. For simplicity, the authors will keep it to a one-in-3 billion chance.

20. As noted by Dr. Hampikian, the experts from the Georgia Bureau of Investigation will testify that when only two alleles match, the defendant cannot be ruled out. Using statistics (probabilities), this is an absolute exclusion. You should be aware of similar testimony from the State’s experts in Texas. Never forget that the State’s expert testified that the DNA in the rape kit was an exact match to Josiah Sutton. But only three alleles matched, and that was an absolute exclusion! See https://www.voiceforthedefenseonline.com/taint-question-reliability-not-credibility-or-competence/.

21. The authors are not, by this statement, claiming to be the absolute best online researchers.

22. The authors have tried to attach Dr. Hampikian’s PowerPoint presentation on this study but have been unable to do so. If you will email L. T. Bradt at , he will be happy to share the PowerPoint presentation that Dr. Hampikian shared with him.

23. This raises an interesting Brady issue. But that is for another time and another article.

24. http://wrongfulconvictionsblog.org/2014/02/07/taiwan-association-for-innocence-wins-first-case/ (last accessed January 22, 2015).

25. Id.

26. Id.

27. Id.

28. See also http://news.boisestate.edu/update/2014/04/21/greg-hampikian-58/ (last accessed January 27, 2015).

29. http://www.abqjournal.com/news/metro/302718metro04-25-08.htm (last accessed January 24, 2015).

30. http://seattletimes.com/html/localnews/2001937794_mayfield25m.html (last accessed January 24, 2015).

31. As to both the 11 of 13 alleles matching and the 12 of 13 alleles matching in the Arizona database, these profiles involved full siblings. Remember, the RMP assumes that people are unrelated, so if you use these examples, the State’s expert may throw it back in your face.

32. http://www.ledger-enquirer.com/2014/02/23/2970172/stocking-strangler-comes-back.html (last accessed January 24, 2015).

33. Greg Hampikian’s presentation at TEDx Boise 2015. Dr. Hampikian’s presentation can be found at http://tedxtalks.ted.com/video/Forensic-DNA-Mixups-|-Greg-Hamp . There’s lots of great information, and this presentation is recommended to all who read this article.

34. See Dr. Hampikian’s presentation at TEDx Boise 2015, found at http://tedxtalks.ted.com/video/Forensic-DNA-Mixups-|-Greg-Hamp . See also http://news.bbc.co.uk/2/hi/europe/7966641.stm (last accessed January 25, 2015).

Taint: A Question of Reliability, Not Credibility or Competence

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.