--------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: CCU00009Date: 08/23/95 From: RICK THOMA Time: 03:57pm \/To: ALL (Read 3 times) Subj: Wee Care:07 in the determination of the Appellate Division, 264 N.J. Super. at 631-32, that to ensure defendant's right to a fair trial a pretrial taint hearing is essential to demonstrate the reliability [**43] of the resultant evidence. B. The pretrial hearing should be conducted pursuant to Evid. R. 104. The basic issue to be addressed at such a pretrial hearing is whether the pretrial events, the investigatory interviews and interrogations, were so suggestive that they give rise to a substantial likelihood of irreparably mistaken or false recollection of material facts bearing on defendant's guilt. See United States v. Simmons, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968) (ruling that evidence would be excluded if pretrial identification procedures "give rise to a very substantial likelihood of irreparable misidentification"); State v. Clausell, supra, 121 N.J. at 325. Consonant with the presumption that child victims are to be presumed no more or less reliable than any other class of witnesses, the initial burden to trigger a pretrial taint hearing is on the defendant. Watkins v. Sowders, 449 U.S. 341, 101 S. Ct. 654, 66 L. Ed. 2d 549 (1981) (holding that no constitutional [**44] mandate exists for pretrial Wade hearing be held merely because counsel demands it). The defendant must make a showing of "some evidence" that the victim's statements were the product of suggestive or coercive interview techniques. Id., 443 U.S. at 350, 101 S. Ct. at 659, 66 L. Ed. 2d at 577 (Brennan, J., dissenting); State v. [*321] Rodriquez, 264 N.J. Super. 261, 269, 624 A.2d 605 (App. Div. 1993); State v. Ortiz, 203 N.J. Super. 518, 522, 497 A.2d 552 (App. Div.), certif. denied, 102 N.J. 335 (1985). That threshold standard has been met with respect to the investigatory interviews and interrogations that occurred in this case. Without limiting the grounds that could serve to trigger a taint hearing, we note that the kind of practices used here -- the absence of spontaneous recall, interviewer bias, repeated leading questions, multiple interviews, incessant questioning, vilification of defendant, ongoing contact with peers and references to their statements, and the use of threats, bribes and cajoling, as well [**45] as the failure to videotape or otherwise document the initial interview sessions -- constitute more than sufficient evidence to support a finding that the interrogations created a substantial risk that the statements and anticipated testimony are unreliable, and therefore justify a taint hearing. Once defendant establishes that sufficient evidence of unreliability exists, the burden shall shift to the State to prove the reliability of the proffered statements and testimony by clear and convincing evidence. Hurd, supra, 86 N.J. at 546. Hence, the ultimate determination to be made is whether, despite the presence of some suggestive or coercive interview techniques, when considering the totality of the circumstances surrounding the interviews, the statements or testimony retain a degree of reliability sufficient to outweigh the effects of the improper interview techniques. The State may attempt to demonstrate that the investigatory procedures employed in a case did not have the effect of tainting an individual child's recollection of an event. To make that showing, the State is entitled to call experts to offer testimony with regard to [**46] the suggestive capacity of the suspect investigative procedures. The defendant, in countering the State's evidence, may also offer experts on the issue of the suggestiveness of the interrogations. However, the relevance of expert opinion focusing essentially on the propriety of the interrogation should not extend to or encompass the ultimate issue of the credibility of [*322] an individual child as a witness. Cf. State v. R.W., supra, 104 N.J. at 26 (holding that absent strong showing of abnormality and substantial need child may not be subjected to psychiatric examination by expert for purpose of determining credibility). The State is also entitled to demonstrate the reliability of the child's statements or testimony by proffering independent indicia of reliability. See Ford, supra, 79 N.J. at 137 (inquiring, "whether there are sufficient indicia of reliability to outweigh the 'corrupting effect of the suggestive identification itself.'") (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154). [**47] It bears repeating that the focus of the pretrial hearing is on the coercive and suggesting propensity of the investigative questioning of each child and whether that questioning, examined in light of all relevant circumstances, gives rise to the substantial likelihood that the child's recollection of actual events has been irremediably distorted and the statements and the testimony concerning those events are unreliable. In choosing the burden of proof to be imposed on the State, we are satisfied that the clear-and-convincing-evidence standard serves to safeguard the fairness of a defendant's trial without making legitimate prosecution of child sexual abuse impossible. We have applied the clear and convincing evidence standard to other areas in which the issue of illegal or unreliable evidence was in question. See, e.g., Sugar, supra, 100 N.J. at 239 (applying "clear and convincing evidence" standard as burden of proof with respect to "inevitable discovery" discovery claim), Hurd, supra, 86 N.J. at 546 (imposing "clear and convincing" standard on party who proffers hypnotically refreshed testimony). [**48] We have not hesitated to employ the sternest standard of proof in cases involving egregious prosecutorial or police misconduct that implicates judicial integrity and the administration of justice. Gookins, supra, 135 N.J. at 51 (relying on the procedure out-lined in Sugar, supra, 84 N.J. at 25 and imposing beyond a reasonable doubt standard of proof to [*323] counteract egregious constitutional violations); State v. Gerald, 113 N.J. 40, 118, 549 A.2d 792 (1988) (requiring proof beyond a reasonable doubt that confession was voluntary). Here, however, although we find the prosecutorial investigations to have been professionally inept, we cannot conclude that the improper investigatory techniques were the result of conscious bad faith rather than a lack of training coupled with over-zealousness. Our decision today should make clear that the investigatory techniques employed by the prosecution in this case are unacceptable and that prudent prosecutors and investigatory agencies will modify their investigatory practices to avoid those kinds of errors [**49] and to conform to those standards that are now accepted by the professional and law enforcement communities. Therefore, we conclude that the need to deter prosecutorial misbehavior will be adequately fulfilled by the clear and convincing-evidence standard. Finally, if it is determined by the trial court that a child's statements or testimony, or some portion thereof, do retain sufficient reliability for admission at trial, then it is for the jury to determine the probative worth and to assign the weight to be given to such statements or testimony as part of their assessment of credibility. Experts may thus be called to aid the jury by explaining the coercive or suggestive propensities of the interviewing techniques employed, but not of course, to offer opinions as to the issue of a child-witness's credibility, which remains strictly a matter for the jury. R.W., supra, 104 N.J. at 26. We add the observation that the jury must make that determination in light of all the surrounding circumstances, and without reference to the trial court's determination and ruling on admissibility. See Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986) [**50] (stressing defendant's right to adduce evidence of circumstances surrounding confession even after Court determines confession admissible); State v. Hampton, --- FMail/386 1.0g * Origin: Williamsburg, VA U.S.A. (1:271/124) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: CCU00010Date: 08/23/95 From: RICK THOMA Time: 03:57pm \/To: ALL (Read 3 times) Subj: Wee Care:08 61 N.J. 250, 271, 294 A.2d 23 (1972) ("admissibility of evidence is for the Court . . . it is admitted when a proper predicate is laid for it. If the predicate is disputed but the court is satisfied the evidence should [*324] be received, it is accepted for jury consideration, with an instruction that if they found it credible, then it is admissible for consideration in making up their verdict."). C. In conclusion, we find that the interrogations that occurred in this case were improper and there is a substantial likelihood that the evidence derived from them is unreliable. We therefore hold that in the event the State seeks to re-prosecute this defendant, a pretrial hearing must be held in which the State must prove by clear and convincing evidence that the statements and testimony elicited by the improper interview techniques nonetheless retains a sufficient degree of reliability to warrant admission at trial. Given the egregious prosecutorial abuses evidenced in this record, the challenge [**51] that the State faces is formidable. If the statements and proffered testimony of any of the children survive the pretrial hearing, the jury will have to determine the credibility and probative worth of such testimony in light of all the surrounding circumstances. V The judgment of the Appellate Division is affirmed. *** Chief Justice Wilentz and JUSTICES Clifford, Pollock, O'hern, Garibaldi, and Stein join in Justice Handler's opinion. Note: Proper names of the investigators have been deleted throughout. Appendix This Appendix presents a detailed summary of several interviews. 1. R.F. R.F., a three-year-old girl, was interviewed on June 21, 1985, by the Essex County Prosecutor's Office at the Wee Care facility. After several minutes of small talk, R.F. told the investigator that Kelly sometimes sings in school. In response to her inquiry, R.F. indicated that the school owned a piano and that she would show the investigators where it was. At that point, the interview went [*325] off the record and R.F. apparently took the interviewers to the piano room. On their return to the interview room, the following colloquy took place between the investigator and R.F. The investigator asked, "Do [**52] you remember what you were saying to me? You said, -- you said Kelly did a lot of bad things to the children." R.F. responded, "No, she's in jail. . . . Because she did a lot of bad things. R.F. was unable to identify any of the "bad things" that Kelly did because, according to R.F., "she only did them to D.A." Then, after several minutes of trying to get R.F. to draw pictures, including one of Kelly, the investigators returned to the alleged abuse. An investigator asked if Kelly or Brenda (another teacher at Wee Care) had ever hurt her. R.F. was clear and unambiguous with her response. R.F. was absolutely certain that they had done nothing to her. The investigators continued to press the questioning. R.F. continually stressed that she had not been hurt or touched. R.F. did say, however, that "they (Kelly and Brenda) did hurt D.A." The interview continued uneventfully, ending with R.F. telling the interviewers that she would like to come back to the school. A detective from the Prosecutor's office interviewed R.F. again on July 3, 1985. The detective approached his questioning of R.F. somewhat differently than had the previous investigators in that he appeared not to have any warm up [**53] period with the child. Prior to engaging in any small talk or even introducing himself to R.F., he asked her "where's Kelly?" In an effort to find out what relationship R.F. had with Kelly the investigator asked the following questions: Detective: Do you know Kelly? R.F.: Yes. Detective: Was Kelly your teacher? R.F. Yeah, but she did a lot of bad things to me. Detective: What did she do to you that was bad? R.F.: Yesterday she did something. But I don't know what it is. [*326] Detective: Sure you do, would you like to show me instead of tell me? R.F. then drew a picture of Kelly, giving her a "mad" face. She indicated to him that she drew a mad face simply because she wanted Kelly to have a mad face. The detective continued the interview asking pointed questions: Detective: Do you think Kelly can hurt you? R.F.: No. Detective: Did Kelly say she can hurt you? Did Kelly ever tell you she can turn into a monster? R.F.: Yes. Detective: What did she tell you? R.F.: She was gonna turn into a monster. * * * * Detective: What did Kelly, -- was Kelly a good girl or a bad girl? R.F.: She was a bad girl. Detective: She was a bad girl, were there any other [**54] teachers that were bad? R.F.: No. Detective: No, O.K. Kelly was the only bad girl? What did Kelly do that made her a bad girl? R.F.: She readed [sic]. Detective: She what? R.F.: She um, she readed [sic] and she came to me and I said no, no, no. Detective: Did she hurt you? R.F.: I hurted [sic] her. Detective: How did you hurt her? R.F.: Because she, I didn't want to write, and she write and I said no, no, no, no, and I hit her. * * * * The Detective then questioned R.F. using anatomically correct dolls in an apparent attempt to elicit from R.F. the level of understanding she had concerning certain body parts. Detective: What are these? R.F.: Dolls. Detective: O.K. But what am I pointing to? What's that? R.F.: An eye, mouth, nose arm. Detective: What do you call this right here? R.F.: Vagina. Detective: What's this right here? [*327] R.F.: Tooshie. Detective: Tooshie. O.K. What do you call these right up here? R.F.: I don't know. Detective: O.K. what do you want to name them? Do you want to name them breasts? R.F.: Yeah. Detective: Now we are going to pretend that this is a little boy. R.F.: Let me see the little boy. Detective: [**55] It has no arms or legs or anything, but we are going to pretend that it's a little boy doll, O.K.? What do you call the little thing between the little boy's legs? R.F.: Um, feet. Detective: No, up farther between the legs. Right here. R.F.: Vagina. Detective: No, it's a vagina on a little girl, what is it on a little boy? R.F.: Penis. Detective: Penis, very good. O.K. Now did you ever see a little boy's penis in the school? R.F.: Yes, M.Z.'s. Detective: O.K. Who else was there? R.F.: That's it, only one. Detective: Just M.Z. and you? Was Kelly there? R.F.: She was at jail. The questioning of R.F. continued; the detective sought to uncover any "bad things" Kelly might have done to R.F. or to anyone else. The following sequence of questions and answers was the first time the use of utensils entered the discussion: Detective: Now, did Kelly ever do any bad things to you? R.F.: No. Detective: Not at all? R.F.: No. Detective: Did Kelly ever hurt you? R.F.: No. Detective: Do these look familiar? R.F.: What are them [sic]? Detective: You tell me what they are? R.F.: Knife. Detective: Knife. R.F.: Do you have anything to eat in [**56] here? [*328] Detective: We're going to pretend that this is a spoon, O.K.? R.F.: O.K., and this is a knife. Detective: Did Kelly ever do anything to you with a knife that hurt you? Or bad things to you with a knife? R.F.: No. Detective: No. O.K. Do [sic] she ever do bad things or hurt you with a spoon? -- No. Did she ever do bad things or hurt you with a knife -- I mean fork? OK. What about a wooden spoon? Did you ever see her do bad things or hurt anybody? R.F.: Um, no. After concluding the discussion of utensils, and whether Kelly had used utensils on R.F. or any other child, the discussion once again focused on Kelly's alleged mistreatment of R.F. The questioning of this child continued for several more transcript pages. In an attempt to obtain additional information from R.F., the detective told her that he had spoken to several of her friends already and that the information she could provide would help her friends. 2. P.I. On June 27, 1985, investigators from DYFS and from the Prosecutor's --- FMail/386 1.0g * Origin: Williamsburg, VA U.S.A. (1:271/124) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: CCU00011Date: 08/23/95 From: RICK THOMA Time: 03:57pm \/To: ALL (Read 3 times) Subj: Wee Care:09 Office interviewed P.I., a four-and-a-half year old. The interview appeared to be adversarial from the outset. P.I. no longer wanted to participate in any interviews. In an [**57] attempt to convince P.I. to cooperate, Investigator (I) told P.I. that he and his colleague had spoken with "lots of other [helpful] kids" since they had last spoken, and that the sooner P.I. cooperated, the sooner they could get out of there. P.I. became annoyed with his persistence telling him that he did not want to talk to him, and stating emphatically, "I hate you." Investigator (I) attempted to calm P.I. and reassured him that he really did not hate the investigator, in fact he knew that P.I. secretly liked him. Over the course of what appears to be several minutes of conversation, P.I. responded to his questions, on at least ten occasions, with "I hate you." P.I. began to participate in the conversation but continued his refusal to discuss anything concerning Kelly. In an attempt to gain his cooperation, the investigators tried a different approach: [*329] Investigator (I): Come on do you want to help us out? Do you want to help us keep her (Kelly) in jail. P.I.: No. * * * * Investigator (I): Tell me what happened. . . . I'll make you fall on your butt again. P.I.: No! * * * * Investigator (I): I'll let you hear your voice and let you play with the tape [**58] recorder. I need your help again, buddy. Come on. P.I.: No. * * * * Investigator (I): Just tell me -- show me what happened with the wooden spoon. Let's go. P.I.: I forgot. Investigator (I): No you didn't. I'll tell you what, let's just go to the P.I. doll, we won't waste any time. Investigator (II): Now listen you have to behave. Investigator (I): Do you want me to tell him to behave? Investigator (II): Are you going to be a good boy? Huh? You have to be good. Yes or no? P.I.: Yes. * * * Investigator (I): If you don't remember words, maybe you can show me. P.I.: I forgot. . . . Investigator (I): You remember. You told your mommy about everything, about the music room. And the nap room. And all the stuff. You want to help her stay in jail don't you. So she doesn't bother you anymore and so she doesn't tell you any more scary stories. Did she tell you a story like about this little bird and he built a nest. But did she do that though? P.I.: Yes. After P.I. began to cooperate the interviewers' questions turned to more specific acts allegedly committed by Kelly. P.I. told Investigator (I) that he and another Wee Care child put their penises [**59] into Kelly at the same time. They were able to accomplish that by chopping off their penises. Further, some of the children had to urinate in Kelly's mouth, and she would do the same to them. P.I. also discussed the utensils used by Kelly on the children. [*330] Investigator (I): Did she put the fork in your butt? Yes or no? P.I.: I don't know, I forgot. Investigator (I): You forgot? O.K. Did she do anything else to your bottom? P.I.: That's all that she did. Investigator (I): What was it that she did to you? P.I.: I hate you. I hate you. Investigator (I): Oh, come on, if you just answer that you can go. P.I.: I hate you. Investigator (I): No you don't. P.I.: Yes I do. Investigator (I): You love me I can tell. Is that all that she did to you, what did she do to your hiney? Investigator (II): What did she do to your hiney? Then you can go. P.I.: I forgot. Investigator (II): Tell me what Kelly did to your hiney and then you can go. If you tell me what she did to your hiney we'll let you go. P.I.: No. Investigator (I): Please. P.I.: O.K. O.K. O.K. Investigator (I): Tell me now. P.I.: O.K. Investigator (I): What did Kelly do to your hiney? P.I.: [**60] I'll try to remember. Investigator (I): What did she put in your hiney? P.I.: The fork. Investigator (I): Did that hurt a lot? Did you bleed? P.I.: Nope. 3. B.M. On June 26, 1988, Investigator (I) interviewed B.M., a six year-old boy. The interview began in typical fashion with Investigator (I) asking B.M. to draw pictures of himself, his mother, his father and Kelly. After B.M. drew several pictures, Investigator (I) began asking B.M. about Kelly. Investigator (I): I talked to all of [the kids in your class] and they were telling me how they didn't like the stuff Kelly was doing. Anyway I like talking to you older guys better because you're better to talk to, more like grownups than the little kids in the nursery school. So I'm asking you a favor -- [*331] B.M.: Why because they talked about Kelly because she did something bad to them? Investigator (I): Uh, huh. B.M.: What? Investigator (I): She did bad stuff to them. B.M.: Not me. * * * * Investigator (I): She was hurting some kids in not some nice ways. So I'm wondering if you saw anything. You can help me to find out who some of the hurt kids are so that I can make it all better again. Because they [**61] must be pretty upset and pretty mad. B.M.: What did she do? Investigator (I): Well, I don't want to tell you exactly what she did because you may know something that I don't know yet, and that can really help. . . . These are funny dolls. A little different from those you have seen before. B.M.: I want to leave. Investigator (I): Why. B.M.: Because I don't like -- Investigator (I): Like what? You don't like being here: Well you'll be out of here in a couple of minutes. And you never have to come back if you don't want to. Anyway these are -- what's different about these dolls, this one's a boy. B.M.: Yeah. Investigator (I): Because he's got a what? What do you call this? B.M.: I don't know. Investigator (I): You know. Is it a peepee [sic] or a penis? What's the word you use? B.M.: A wee-wee. * * * * Investigator (I) then went to a female doll and asked B.M. questions about its anatomy. Investigator (I): What are these things. What do we all have here? Breasts or boobies, what do you want to call them? B.M.: You're teaching me. Investigator (I): I'm not teaching you, I am asking you. Come on. Don't go throwing stuff around like that. It's not [**62] very nice. B.M.: Stop teaching me this stuff. Investigator (I): You got [sic] to learn somehow. The little three-year-old kids knew what everything was. And you don't. Anyway, what I did is [sic] show the kids dolls like this and then I pull out this stuff. A wooden spoon, a fork, a knife and a teaspoon, a metal spoon. Your daddy was telling that you would hit mommy. [*332] Mommy would hit you on the butt sometimes when you deserved it, right? But aside from that did you ever see Kelly hurt anybody with this? B.M.: Yeah. Investigator (I): How do you think she might hurt somebody with this? For example, it would hurt, how do you think she might hurt a little boy with this, this wooden spoon. B.M.: She did that. [Apparently demonstrating with the doll and the spoon that Kelly would smack the boys on the bottom.] Investigator (I) introduced the possible use of other utensils into the conversation, identifying each to B.M. B.M. steadfastly refused to say that he was hurt with any of the utensils by Kelly. At one point however, he seemed to implicate his mother as the one responsible for the bruises on his back. Investigator (I) continued to question B.M. about how Kelly used [**63] the various utensils on him and his friends. At one point he exhibited frustration at not receiving the cooperation or the answers for which he was looing. Investigator (I): I want to ask you something. B.M.: No. Investigator (I): Don't be a baby. You're acting like a nursery school kid. Come here. Come here a second. B.M., come here. We're not finished yet. Sit down. B.M.: No. Investigator (I): Come here. Seriously, we are going to need your help on this. B.M.: No I'm not. Investigator (I): How do you think she would hurt boys and girls, with a fork? A fork in the face? Sticking on the legs? The arms or on the neck? Does that hurt? B.M.: [Inaudible reply.] --- FMail/386 1.0g * Origin: Williamsburg, VA U.S.A. (1:271/124) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: CCU00012Date: 08/23/95 From: RICK THOMA Time: 03:57pm \/To: ALL (Read 3 times) Subj: Wee Care:10 At that point in the questioning B.M. told Investigator (I) that he wanted to leave. Investigator (I), in an effort to put B.M. at ease, changed the tenor of the conversation and began to reassure B.M. that he was safe from Kelly. Investigator (I): I know it must not be very easy to remember this and to talk about it. It's painful and embarrassing. I also know that she scared a lot of kids and telling them things that weren't true. About monsters and about how she can fly. I heard all those stories [**64] from your friends. Did you know Kelly is in jail? B.M.: Yeah. Investigator (I): If you help me out, when we finish here in a couple of minutes I will introduce you to the man who put her in jail. B.M.: I thought you put her in jail. [*333] Investigator (I): I helped to get her there. By talking to all the kids and telling me the truth about what happened. The more kids we get to tell us what happened the longer she can stay in jail. You see? You said you were real upset when she was hurting your friend or damaging your friends, we do not want her damaging anymore kids, right? So when we finish today, I will introduce you to the man who put her in jail. And, if you want, if you help me out I can have Sgt. Noonan of the local police department show you what a jail cell looks like so that you can see it, how tough it is for her, she cannot break out of jail, like she was telling everybody. I think she was telling everybody she had superpowers, that she could see through walls and stuff like that. She doesn't have anything like that. She's a regular woman. A regular person. B.M.: Is she really like that? Super powers? Investigator (I): No. I think you know that she doesn't have super [**65] powers. You know what it is, Kelly was sick when she was hurting kids. It's o.k. to like her, she was a nice lady until she got sick. And then after she got sick is when she started hurting kids . . . . Investigator (I): Did she try to bother you and you didn't let her? B.M.: No. Investigator (I): It would be o.k. to tell me the truth if she did try to bother you just so that you can show me how she might just try to hurt these other kids. 'Cause the more we know the longer she will stay in jail. You understand? And I think you would like to know that she doesn't have any secret powers, she can't fly, she can't see through walls, she can't hurt anybody with her vision. . . . What are some of the other stories that she used to scare the kids? That they wouldn't tell anybody. Did she tell them she would hurt their parents or something Do you know if she said that? B.M.: Yeah. Investigator (I): You know that's not true. . . . The police put her in jail. Because she was hurting you, you know. That's why I really need your help, especially you older kids, you six-year-olds and kindergartners, because you can talk better than the little kids, and you can show things a little clearer [**66] on the dolls. And if you help us out we can take you on a little tour of the jail. And you will be helping to keep her in jail longer so that she doesn't hurt anybody else. Not to mention that you'll feel a lot better once you start -- B.M.: It's scaring me. * * * * Investigator (I): That's o.k. . . . Believe me she is not going to be coming out of jail. She's not going to be hurting you guys anymore. That's why I'm really proud of you, and E.N. and L.J. Which one got hurt the worst? B.M.: None of them. Investigator (I): That's not what they told me. B.M.: I never saw anybody get hurt. [*334] Investigator (I): You never saw anybody get hurt? Did they ever tell you that they got hurt? See, the reason I think that you might have gotten hurt or seen them . . . is that you started to show me on the dolls just exactly what happened. And unless you saw it happen you wouldn't really know, would you? B.M.: I didn't get hurt. Investigator (I): No maybe you didn't, maybe you fought her off. Maybe you really didn't hurt then. Maybe you saw your other friends getting hurt and you didn't like it very much. You know. * * * * B.M.: What did Kelly do? Investigator (I): Oh I think [**67] you know. N.J. told me, and G.G. told me that she hurt them in the gym downstairs. And E.N. told me what he saw. B.M.: What did he see? Investigator (I): I don't want to tell you what they told me because I want to know if everybody is telling me the truth. If what you tell me goes along with what they said, then I know they were all telling the truth. You know what I mean, jellybean. B.M.: I want to leave. -- Now! Investigator (I): Did you ever go in the music room? The room with the big black piano? B.M.: No. Investigator (I): Did you ever see Kelly play Jingle Bells on the piano? B.M.: No. Investigator (I): How did she look when she was sitting at the piano? B.M.: I never saw her play the piano. Investigator (I): Did she look like this when she was sitting at the piano? B.M.: No. Investigator (I): Did you ever see Kelly locking any of the kids in the bathroom or closet? B.M.: No. Investigator (I): If you did see her hurt any kids would you tell me? B.M.: No. B.M. steadfastly refused to implicate Kelly in any way. The interview continued for a few more minutes, ending with Investigator (I)'s final attempts to gain "cooperation" from B.M. [**68] B.M.: I want to leave now. Investigator (I): I'd hate having to tell your friends that you didn't want to help them. B.M.: I do. [*335] Investigator (I): I'll have to tell them that you didn't want to though. The interview ended without any further comment from B.M. [end] --- FMail/386 1.0g * Origin: Williamsburg, VA U.S.A. (1:271/124) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: CCU00013Date: 08/23/95 From: NANCY EDDY Time: 10:58pm \/To: MICHELLE FROSTY (Read 3 times) Subj: Re: I'm Home! -=> Quoting Michelle Frosty to All <=- MF> I'm home. And I'm happyer than ever. Thank God. Nancy Eddy ... That which does not kill me only makes me stronger. ___ Blue Wave/QWK v2.12 --- GOMail v1.1 [92-0793] * Origin: Texas Patriot BBS - Dallas TX (214)495-6699 (1:124/4023) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: CCU00014Date: 08/24/95 From: JOE SAGER Time: 12:07am \/To: MICHELLE FROSTY (Read 3 times) Subj: I'm Home! Hello Michelle! 19 Aug 95 01:32, Michelle Frosty wrote to All: MF-> I'm home. And I'm happyer than ever. MF-> Thank you for the prayers and wishing me home. It's good to know that you are back in the arms of the ones who love you. God Bless Joe ... Clinton/Gore--Out In Four! --- GoldED 2.50.Beta5 UNREG * Origin: The Justice Advocate....Promoting Equal Justice (1:106/6003) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: CCY00000Date: 08/27/95 From: RICK THOMA Time: 06:41pm \/To: VALERY FROSTY (Read 4 times) Subj: Found it! > . . . they have formed teams. Certain social workers work with > certain police officers and judges - so they really are TEAM > players. It really leaves no room for unbiased investigations. . . Of the nearly one dozen directories and Zipped files I have around here called "SORT_ME" I managed to locate the article I meant to post as reply, message the next. While it's short enough, what follows isn't, though it serves well to illustrate the actual mechanisms at work. "Federal leadership will allow judges and social workers to work together as never before." Got your attention? --- FMail/386 1.0g * Origin: Williamsburg, VA U.S.A. (1:271/124) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: CCY00001Date: 08/27/95 From: RICK THOMA Time: 06:41pm \/To: ALL (Read 4 times) Subj: "Strengthening" Family Courts Date: July 7, 1995 For Release: IMMEDIATELY Contact: ACF Michael Kharfen (202) 401-9215 HHS ANNOUNCES GRANTS TO STRENGTHEN FAMILY COURTS HHS Secretary Donna E. Shalala today announced the award of 48 grants to state courts across the country giving states more resources and opportunity to improve court handling of child welfare cases. The grants will go to the highest court in each state and build on family preservation and support efforts already underway. The courts in conjunction with public child welfare agencies are instrumental in making decisions related to children's safety and well-being. "Children and families are at their most vulnerable in situations involving child welfare agencies and the courts," said Secretary Shalala. "Federal leadership will enable judges and social workers to work together as never before. They will be able to improve procedures and design systems that recognize a child's need for safe, supportive and permanent homes." The U.S. Children's Bureau, part of HHS' Administration for Children and Families, will administer the grants. The bureau will also work with the National Center for Child Abuse and Neglect and the U.S. Department of Justice's Office of Juvenile Justice and Delinquency Prevention to encourage closer cooperation between child welfare agencies and the courts. Also providing assistance in this effort are the National Center for State Courts, the American Bar Association, the National Council of Juvenile and Family Court Judges, the Freddie Mac Foundation and the Kellogg Foundation. The grants, amounting to $5 million this year and an additional $10 million for each of the next three years, will be used to conduct thorough assessments of court strengths and weaknesses in handling dependency, foster care and adoption cases. The grants range from $77,000 to $222,000 per state for fiscal year 1995, and from $95,000 to $798,000 for fiscal years 1996-1998. These funds are divided according to the number of children under age 21 in each state. "These are exciting new collaborations between state courts and local child welfare agencies to protect innocent children and strengthen families in crisis," said Mary Jo Bane, assistant secretary for children and families. "At a time when states need more support, the welfare reform bill approved by the House of Representatives would abolish this program along with others providing protection for children." A list of the 48 state court contacts is available upon request. --- FMail/386 1.0g * Origin: Williamsburg, VA U.S.A. (1:271/124) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: CCY00002Date: 08/27/95 From: RICK THOMA Time: 06:55pm \/To: ALL (Read 4 times) Subj: Commentary * Originally posted CHILD_ABUSE_ISSUES * Reissued herein as background to previous Press Release * Broken into 10 parts, 11K each. Worthwhile reading, folks. The significance of Program Instruction ACYF-PI-94-12 is that it details the agency directives of the expansion of educational and training resource programs directly into the courtrooms, under the auspices of the "Court Improvement Program". Proponents argue that such efforts may serve to inform the state courts of the vital role they play in protecting children against abuse or neglect, better preparing them to handle such difficult cases. These arguments are clearly articulated in the body of the Program Instruction itself. Opponents argue that the Department of Health and Human Services is systematically expanding its influence on the courts in such a way as to render the courts more "favorable to the position of the social services agencies" much to the detriment of the fundamental rights of the accused to due process and equal protection under the law. Some opponents argue that the Program Instruction unfairly "tilts the scales of justice" by placing the otherwise invisible finger of the US government on the side of its agencies against the accused, serving further to undermine the rights of the accused to a fair and impartial hearing, as well as to diminish the presumption of innocence prior to guilt established. --- FMail/386 1.0g * Origin: Williamsburg, VA U.S.A. (1:271/124) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: CCY00003Date: 08/27/95 From: RICK THOMA Time: 07:06pm \/To: ALL (Read 4 times) Subj: ACYF-PI-94-12: 01 ACF Administration for Children and Families U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES Administration on Children, Youth and Families 1. Log No. ACYF-PI-94-12 2. Issuance Date: 6-27-94 3. Originating Office: Children's Bureau, ACYF 4. Key Word: Court Improvement Program: State Court Assessment and Implementation of Reforms PROGRAM INSTRUCTION TO: Highest State Courts of Appeal SUBJECT: The Court Improvement Program; Funding For State Courts to Assess and Improve Handling of Proceedings Relating to Foster Care and Adoption; Instructions for Applying for fiscal years (FY) 1995, 1996, 1997, and 1998 Funds LEGAL AND RELATED REFERENCES: Titles IV-B and IV-E of the Social Security Act; Subchapter C, Part I of the Omnibus Budget Reconciliation Act of 1993 (OBRA) (P.L. 103-66); 45 CFR Parts 16, 30, 74, 76, 80, 91, 92, 93, 1355, 1356, and 1357; and OMB Circular A-128 PURPOSE: The purposes of this Program Instruction (PI) are to: 1. Introduce the new State Court Improvement Program and describe its background and purpose (sections A-C); 2. Outline the programmatic and fiscal provisions and reporting requirements of the program (sections D-G); 3. Specify the application submittal, review and approval procedures for the program (sections H-J); and 4. Identify technical resources for use by State courts during the course of the program (section K.) A. INTRODUCTION: The State Court Improvement Program is part of OBRA of 1993, which, among other things, provides new Federal funds to State child welfare agencies and tribes for preventive services (family support) and services to families at risk or in crisis (family preservation). In addition to providing funds for expanding services, the legislation offers States and tribes an opportunity to assess and make changes in the delivery of child welfare services, broadly defined. The purpose of these changes is to achieve improved well-being for vulnerable children and their families. Please see Attachment E for a fact sheet describing the Family Preservation and Support Services Program. Congress clearly recognized that this focus on family support and family preservation must be coupled with an enhancement of the State court process in order to improve the handling of proceedings relating to foster care and adoption. The legislation authorizes $5 million in fiscal year 1995 and $10 million in fiscal years 1996, 1997, and 1998 for grants to State court systems for use in assessing how these systems currently function and to provide funds for making improvements. During the first year of the four-year Court Improvement Program Federal funds must be used to conduct assessments of State foster care and adoption laws and judicial processes and to develop a plan for system improvement. During the remaining three years the courts will be expected to implement improvements according to the plan. B. BACKGROUND: The courts play an important role in the child welfare system by providing judicial decision-making and oversight of some services provided under titles IV-B and IV-E of the Social Security Act. Specifically, the court makes decisions concerning the existence of maltreatment, the placement of children in State custody, and court determinations that reasonable efforts have been made to prevent removal of children from their homes. The court holds periodic hearings to determine the appropriateness of the placement and the goals for a child in care; terminates parental rights; and finalizes adoptions. Since 1980, with the passage of The Adoption Assistance and Child Welfare Act of 1980 (P.L. 96-272), the responsibilities of the juvenile and family courts have sharply increased, due in part to the judicial oversight functions imposed by the legislation. This has resulted in different problems in different States, but common problems include: high judicial caseloads; insufficient training in child welfare issues for judges, Court Appointed Special Advocates, guardians ad litem, and attorneys; shortage of staff; and delays in making the determinations required by the legislation. The Court Improvement Program provides State courts with the opportunity to collaborate with the other organizations and individuals responsible for promoting and protecting the well-being of children and families (for example: State child welfare agencies, Court Appointed Special Advocates, guardians ad litem, citizen reviewers, and attorneys) to review laws and procedures designed to provide rights and protection to parents, families, and children. It provides State courts with the flexibility to design assessment tools which identify ineffective laws or procedures and barriers to effective decision-making, highlight practices which are not fully successful, examine areas found to be in need of correction or added attention, and then implement reforms which address the State court system's specific needs. The Court Improvement Program is intended to help State courts perform their role in the continuum of care provided for families and children at risk. The Administration for Children and Families (ACF) supports and strongly encourages State courts to coordinate and collaborate with other interested parties, programs and resources in the design of new systems. State child welfare agencies must consult and collaborate broadly in the development of their State child welfare/family preservation and support plans. The ACF has strongly encouraged States to involve courts in that process. Similarly, State courts are strongly encouraged to collaborate with the State child welfare agency in administering the Court Improvement Program. Such collaboration will help ensure consistency between the courts' plans for improvement and the family preservation and support plans, developed by the State child welfare agencies. It is hoped that these grants will provide an opportunity for State courts to develop a vision, along with the other participants, of how the future child welfare system can be made more responsive to the needs of children and families. C. SUBMITTALS: To be eligible for Federal funds through the Court Improvement Program, a State court must submit an application meeting the requirements of this Program Instruction. Applications will be accepted as early as August 8, 1994 and the final date for receipt of applications is December 1, 1994 to receive FY 1995 funds. A State court may request an extension of the due date up to March 30, 1995 for submittal of an application, with good reason, from the appropriate Regional Administrator (see Attachment D.) If a State court chooses not to apply for FY 1995 funds at this time, applications for FY 1996 funds will be accepted up to December 1, 1995. Only those State courts with approved applications for either FY 1995 or FY 1996 funds are eligible for FY 1997 and 1998 funds. D. ELIGIBILITY: The highest State court in each State which participates in the program under title IV-E of the Social Security Act is eligible to apply for Court Improvement Program funds. The term "highest State court" means the judicial tribunal which is the ultimate court of appeals in the State. At present, all 50 States and the District of Columbia participate in the title IV-E program. Thus, the highest State court in all 50 States and the District of Columbia is eligible to apply for the Court Improvement Program funds. Although only the highest State court is eligible to apply for and receive Federal funds through the Court Improvement Program, the highest State court may choose to enter into an agreement with another entity, such as a university or non-profit organization, for the purposes of complying with the requirements of the Court Improvement Program, especially regarding the assessment portion of the program. The ultimate responsibility for implementing the grant will rest with the highest State court. E. FUNDING: Only those State courts with approved applications will receive FY 1995 Federal funds under the Court Improvement Program. To receive FYs 1996- 1998 funds, a State court with an approved application will be required to submit annual refunding applications as requested. Funds awarded through this grant program may not be used to supplant other State or local funds which are already being used for similar purposes as of January 1, 1994. 1. Appropriation Each State court with an approved application is allotted $75,000 for FY 1995, and $85,000 for FYs 1996-1998. In addition to this base amount, the remainder of the amount appropriated for all State courts ($5,000,000 for FY 1995 and $10,000,000 for FYs 1996-1998) is divided among those courts with approved applications according to each State's share of children under age 21. 2. Allotments Attachment A provides the estimated allotments for FYs 1995-1998 for each State court. At the time that appropriations are made for each fiscal year, an updated State court allotment table will be issued (probably in October or November.) If some State courts do not apply for part or all of their share of these funds, the unclaimed amount will be reallotted to all other State courts with approved applications. 3. Program Expenditure Period State courts will have two years from the date of award to expend (obligate --- FMail/386 1.0g * Origin: Williamsburg, VA U.S.A. (1:271/124)