NO.

65205-8

THE SUPREME COURT OF WASHINGTON

OF THE STATE OF WASHINGTON

________________________________________________

In RE THE DEPENDENCY OF:

A.E.P.

W.M.P.

Minor Children,

MICHAEL PETCU,
Petitioner,

STATE OF WASHINGTON,
Respondent.

______________________________________________

APPEAL FROM THE COURT OF APPEALS

No. 18053-7-II

______________________________________________

Petitioner's Answer to
Amicus Curiae Brief on Behalf of
Washington Association of Prosecuting Attorneys

______________________________________________

GARY A. PREBLE WSB# 14758

Attorney for Petitioner

GARY A. PREBLE
2120 State Avenue N.E.
Olympia, WA 98506
(206) 943-6960
================================================================

TABLE OF CONTENTS

A. The Scientific Scholarship Underlying the

Michaels Decision is Valid. . . . . . . . . . . 1

B. In Discussing the Ryan Factors, WAPA Fails to

Address the Essential Problem With Contaminat-
ed Interviews . . . . . . . . . . . . . . . . . 5

C. WAPA's Approach to Videotaping Interviews is

Misleading and Mistaken . . . . . . . . . . . . 8

1. WAPA misstated Petitioner's and WACDL's

positions. . . . . . . . . . . . . . . . . 8

2. WAPA Ignores the Consensus Among Profes-

sionals Regarding Videotaping. . . . . . . 9

3. Other Cases do Show the Necessity for

Videotaping. . . . . . . . . . . . . . . . 11

F. APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . 12

=================================================================

TABLE OF AUTHORITIES

Cases

New Jersey v. Michaels, 264 N.J. Super 579,

625 A.2d 489 (1993) . . . . . . . . . . . . . . . 2-6, 9, 10

State v. Doggett, Docket No. 15014-3-III (1997). . . . . . .8, 12

State v. Martin, 101 Wn.2d 713, 684 P.2d 651 (1984). . . . . . .6

State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984). . . . . 1, 5-8

State v. Townsend, 635 So.2d 949 (Fla. 1994) . . . . . . . . . .9

State v. Williams, 27 Wn.App. 430, 618 P.2d 110 (1980) . . . . .7

State v. Wright, 116 Idaho 382, 775 P.2d 1224 (1989) . . . . . 12

The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932). . . . . . . . . . .9

Other Authorities

Beaver, Memory Restored or Confabulated by Hypnosis--

Is it Competent? 6 U.Puget Sound L.Rev. 155 (1983). . . . .7

Berger, The Deconstitutionalization of the

Confrontation Clause: A Proposal for a
 Prosecutorial Restraint Model, 76 Minn.L.Rev.
557 (1992). . . . . . . . . . . . . . . . . . . . . . . . 10

Bruck and Ceci, Amicus Brief for the Case of State of

New Jersey V. Michaels Presented by Committee of
Concerned Social Scientists, 1 Psychology, Public
Policy and Law 272 (1995) . . . . . . . . . . . . . .2, 3, 5

California Attorney General, Child Victim Witness

Investigative Pilot Project: Research and Evaluation
Final Report (1994) . . . . . . . . . . . . . . . . . . . 11

Ceci, Bruck and Rosenthal, Children's Allegations of

Sexual Abuse: Forensic and Scientific Issues:
A Reply to Commentators, 1 Psychology, Public
Policy and Law 494 (1995) . . . . . . . . . . . . . .2, 4, 5

Ceci, S.J. and Bruck M. (1993b). The Suggestibility

of the Child Witness: A Historical Review and
Synthesis. Psychological Bulletin, 113, 403 . . . . . . . .4

Dianna Younts, Evaluating and Admitting Expert

Opinion Testimony in Child Sexual Abuse
Prosecutions, 41 Duke L.J. 691 (1991) . . . . . . . . . . .3

Greenberg, S. and Shuman, D., Therapy vs. Forensics:

Irreconcilable Conflict Between Therapeutic and
Forensic Roles of Mental Health Professionals,
51 Wash. Bar News Vol. 10, P 16 (Oct. 1997) . . . . . . . .5

J. Myers, G. Goodman, K. Saywitz, Psychological

Research on Children as Witnesses: Practical
Implications for Forensic Interviews and Courtroom
Testimony, 27 Pacific Law Journal 1 (1996). . . . . 1, 2, 10

J. Myers, Taint Hearings for Child Witnesses? A Step

in the Wrong Direction, 46 Baylor Law Review 873,
(1994). . . . . . . . . . . . . . . . . . . . . . .1, 10, 11

Stafford, The Child as a Witness,

37 Wash. L. Rev. 303 (1962) . . . . . . . . . . . . . . . .6

=================================================================

The Amicus Curiae Brief on behalf of Washing-

ton Association of Prosecuting Attorneys (hereinaf-
ter WAPA Brief) raises two primary points: (1)
that the Ryan [n.1] factors are sufficient to determine
reliability of child victim hearsay without the
need for a "taint" hearing; and (2) that videotap-
ing should not be a condition precedent to
admissibility. The argument regarding Ryan fac-
tors, WAPA submits two lengthy Law Review articles
by law professor John E.B. Myers. [n.2]

A. The Scientific Scholarship Underlying the

Michaels Decision is Valid.
 WAPA accuses Petitioner and WACDL of "cit[ing]
selectively" from scientific literature to create a
wrong impression. WAPA Brief, 2. And though not
explicitly stated, WAPA appears to suggest that the
scientific evidence presented by Petitioner and
WACDL constitutes advocacy rather than a cross-
section of researchers. WAPA Brief, 4. Having set
up a straw man, WAPA then suggest that the law
review articles attached to its brief are unbiased
and impartial, and by implication covering a cross-
section of the researchers.[n.3]

WAPA's suggestion--that the scientific schol-

arship underlying the Michaels decision is "advoca-
cy" and does not represent a "cross-section of
researchers"--is greatly mistaken. Attached hereto
as Appendix A is Bruck and Ceci, Amicus Brief for
the Case of State of New Jersey V. Michaels Pres-
ented by Committee of Concerned Social Scientists,
1 Psychology, Public Policy and Law 272 (1995)
(hereinafter Michaels Amicus Brief). By comparing
that amicus brief with the decision in New Jersey
v. Michaels, 264 N.J. Super 579, 625 A.2d 489
(1993), it is obvious that the amicus brief played
a significant role in the New Jersey court's deci-
sion. Far from being the brief of two scientists,
the brief is signed by forty-five Ph.D.'s who are
social scientists, psychological researchers and
scholars.

Appendix B hereto is Ceci, Bruck and

Rosenthal, Children's Allegations of Sexual Abuse:
Forensic and Scientific Issues: A Reply to Commen-
tators, 1 Psychology, Public Policy and Law 494
(1995) (hereinafter Reply). At 498-499, Ceci and
Bruck state:

[T]his amicus broke new ground in assuring the

accuracy of the interpretation of the relevant data
by circulating more widely than heretofore has been
the case by incorporating feedback from the signa-
tories. No other amicus that we are aware of has
ever reflected such a broad based consensus of
scholars at the development stage.

Secondly, one of their primary research proj-

ects forming the basis of the Michaels Amicus Brief
received the Robert Chin prize in 1994 from divi-
sion 9 of the American Psychological Association
("Society for the Psychological Study of Social
Issues") for the best article dealing with child
abuse. Id. at 499.[n.4] The same article was named one
of the twenty outstanding articles in Child Psychi-
atry and Child Development. Id.

The Michaels decision also substantiates the

work of Ceci and Bruck. One of the articles it
relied upon strongly was Dianna Younts, Evaluating
and Admitting Expert Opinion Testimony in Child Sex-
ual Abuse Prosecutions, 41 Duke L.J. 691 (1991).[n.5]
Regarding Younts' article, the court stated:

In a recent article specifically examining chil-

dren's suggestibility, the author extensively
examined current social science literature and came
to the following conclusions: Careful review of
the social science literature indicates that chil-
dren are susceptible to suggestive interviewing
techniques and that such techniques can render
children's accounts of abuse unreliable.

New Jersey v. Michaels, 264 N.J. Super at 627, 625

A.2d at 514. Michaels went on to say, "Younts
believes that Stephen Ceci's 1990 study provides
the most impartial results of the nine studies
Younts examined." Id. Any suggestion or innuendo
on the part of WAPA that Ceci and Bruck are not
impartial is not only without foundation, but is
contrary to the evidence available.

WAPA relies heavily upon John Myers, proclaim-

ing his impartiality and claiming that he had
"rise[n] above the fray and adeptly summarize[d] a
body of research in an intelligent, unbiased fash-
ion." WAPA Brief at 4.

It is the Petitioner's position that Myers'

attack on the Michaels decision does not fulfill
WAPA's claim of impartiality. Ceci and Bruck
address Myers attacks upon their "scholarship
aspects of the [Michaels] amicus itself, and at
times even our integrity" that Myers had written in
another article. Reply at 495. As Ceci and Bruck
respond thoroughly to Myers attacks in their reply.
Id at 495-502.

The Michaels Amicus Brief and the Reply con-

stitute the most thorough and impartial review of
the relevant scientific literature. The Michaels
court relied significantly on Myers, showing that
Myers' work supports the Michaels holding regarding
tainted testimony. N. J. v. Michaels, 264 N.J.
Super. at 624-626, 625 A.2d at 512-513.

B. In Discussing the Ryan Factors, WAPA Fails to

Address the Essential Problem With Contaminat-
ed Interviews.

A review of the facts in the present case show

that WAPA's discussion of the Ryan factors would
support petitioner's claim that E.P.'s hearsay
statements should not have been admissible.[n.6] How-
ever, WAPA fails to recognize the essential problem
with contamination of a child's memory. If a
child's memory is contaminated, not only are its
hearsay statements unreliable, but its testimony is
unreliable as well. While the Ryan Factors are
sufficient for some purposes, reliance on them when
dealing with contaminated memory begs the question.
Using the Ryan factors to evaluate for contaminated
memory, is the equivalent of trying to pick up
aluminum with a magnet.

Again, the Michaels court relied upon the

writings of Myers in addressing this issue:

Thus, Myers concluded: As memory fades over

time its accuracy may decline while
suggestability increases. Fading memory is
succeptable to new input which can come from
suggestive questioning. Inaccurate informa-
tion can be incorporated into memory, actually
supplanting accurate data. Yet when the child
takes the stand he or she testifies believing
in the accuracy of what is said.

264 N.J. Super at 625, 625 A.2d at 513 (emphasis

added).

Washington courts have addressed the effects

of both hypnosis and pretrial identifications, and
have come to the same conclusions regarding contam-
ination as did Justice Charles Stafford, The Child
as a Witness, 37 Wash. L. Rev. 303, 309 (1962). In
addressing the effect of hypnosis on memory[n.7]
State v. Martin, 101 Wn.2d 713, 722, 684 P.2d 651
(1984) held as follows:

After hypnosis, neither subject nor

expert observer is able to distinguish between
confabulations and accurate recall in any
given case, absent corroborating evidence.
See, Beaver, Memory Restored or Confabulated
by Hypnosis--Is it Competent? 6 U.Puget Sound
L.Rev. 155, 199 (1983). The subjective con-
viction in the truth of the memory after
hypnosis eliminates fear of perjury as a
factor ensuring reliable testimony. Addition-
ally, effective cross examination is seriously
impeded, as the witness cannot distinguish
between facts known prior to hypnotism, facts
confabulated during hypnosis to produce
pseudomemories, and facts learned after hypno-
sis. Finally, jury observation may be ad-
versely affected, as the witness, as a result
of the hypnosis, will have absolute subjective
conviction about a particular set of events,
whether or not his perceptions are objectively
accurate. Beaver, at 200-01. It is this
tendency toward immunization from meaningful
cross examination in particular that leads us
to conclude that a person, once hypnotized,
should be barred from testifying concerning
information recalled while under hypnosis.
Addressing the problems arising from pre-trial
identifications, State v. Williams, 27 Wn.App. 430,
443, 618 P.2d 110 (1980) stated as follows:

We emphasize that we do not condone the

showing of photographs to witnesses immediate-
ly before they are to view a lineup. Such a
practice can cause misidentifications, because
witnesses may tend to base their identifica-
tions on the photographs shown rather than on
their memories of the crime they witnessed.
In-court eyewitness identification is sup-
pressible when pretrial identification proce-
dures are so impermissibly suggestive as to
give rise to a very substantial likelihood of
irreparable misidentification.

Thus, while the Ryan factors may remain "ro-

bust" for some purposes, and though WAPA makes some
positive suggestions for improvement, the Ryan
factors are insufficient to deal with contaminated
memory.

C. WAPA's Approach to Videotaping Interviews is

Misleading and Mistaken.

1. WAPA misstated Petitioner's and WACDL's

positions.

WAPA's treatment of the issue of videotaping

is disingenuous and misleading. Specifically, WAPA
incorrectly states: "Petitioner and WACDL requests
this court to require videotaping of investigative
interviews as a condition precedent to admissibili-
ty." WAPA Brief, 22 (emphasis added). Petition-
er's exact words were to request "that the court
impose a new requirement on child interviews,
specifically, that they be recorded to the extent
reasonably possible." Petitioner's Supplemental
Brief, 11. Nor does WACDL demand recording video-
taping as a condition precedent for admissibility,
although it does suggest that "a recording or
verbatim report of interviews is an important
safeguard for assessment of reliability and trust-
worthiness of the statement."[n.8] By misstating
the arguments of Petitioner and WACDL, WAPA makes
no true response to the issues raised.

Petitioner recognizes that videotaping is not

always possible.[n.9] For that reason, Petitioner
does not suggest videotaping as a condition precedent
to admissibility. If, however, the interviews of
children are done without videotaping when such
procedure is reasonably possible, the court should
deny or limit admissibility if the state cannot
show good cause as to why videotaping was not done.
Moreover, for a wilful refusal to videotape inter-
views, the court should deny admissibility of any
statements made during or after the interview.
Such requirements would be in line with Judge
Learned Hand in The T.J. Hooper, 60 F.2d 737, 740
(2d Cir. 1932), cited in Pet's Supp'l Brief, 14.

2. WAPA Ignores the Consensus Among Profes-

sionals Regarding Videotaping.

WAPA also makes the unsupported statement that

"There is presently no consensus in the research
community concerning the utility of videotaping
child interviews." WAPA Brief, 22. Yet in the
materials submitted with its brief, WAPA itself
provides us with information to the contrary. In
particular, J. Myers, Taint Hearings, at 900,
states, "[A] consensus appears to be emerging in
favor of videotaping." Moreover, Goodman (one of
Myer's co-authors in Myers, Goodman and Saywitz)
recommends that the initial interview be video-
taped. N.J. v. Michaels, 264 N.J. Super. at 623,
625 A.2d at 511. Michaels also cites Margaret A.
Berger, The Deconstitutionalization of the Confron-
tation Clause: A Proposal for a Prosecutorial Res-
traint Model, 76 Minn.L.Rev. 557, 608 (1992) (sug-
gesting that when interview is conducted of "vul-
nerable" witness (a child) prosecution should al-
ways provide tape or transcript of every interview
to determine suggestibility). Id., 625 A.2d at 512.

If the foregoing is not sufficient indication

of a consensus on videotaping, WAPA also provides
us with another explicit statement by Myers.[n.10]
In Taint Hearings, at 901, Myers quoted as follows
from California Attorney General, Child Victim
Witness Investigative Pilot Project: Research and
Evaluation Final Report (1994):[n.11]

Should investigative interviews of chil-

dren be videotaped? The pilot projects answer
this question, and the answer is "Yes." The
pilot projects provide clear support for
videotaping interviews that occur well run
multidisciplinary interview centers. More-
over, most professionals involved in the
pilots believe videotaping should be routine.
In Sacramento and Orange Counties, the specter
of injustice that is feared by opponents of
videotaping did not materialize. What emerged
instead is a clear consensus that videotaping
helps lower trauma for children and contrib-
utes to the search for truth.

Myers himself was the Chair of the Research and

Evaluation Advisory Panel which produced the re-
port. See, Appendix C.

3. Other Cases do Show the Necessity for

 Videotaping.

WAPA also makes the unsupported claim that

videotaping is not necessary because "[i]nvestiga-
tors already have ample incentive to completely and
accurately document interview because a poorly
documented interview may lead to exclusion where
notes are sketchy and memories incomplete." In
fact, it appears just the opposite is true in some
Washington investigations. In the Doggett case,
Wenatchee detective Robert Perez and CPS supervisor
Tim Abbey testified they discarded the notes they
took during their initial interview. Additional
testimony was presented by a local attorney that
detective Perez discards notes as a matter of
course in order that attorneys cannot use the notes
to "burn" him. While the court did not conclude
that the unknown content of the destroyed notes
would be potentially useful, Doggett shows that an
unscrupulous investigator might in fact not "com-
pletely and accurately document interviews."[n.12]

Failure to videotape has been seen as problem-

atic in more than one court. See State v. Wright,
116 Idaho 382, 775 P.2d 1224 (1989) cited in Peti-
tioner's Supplemental Brief, 8. WAPA Brief, 22.

The WAPA Brief fails to recognize the weight

of authority regarding videotaping. Moreover,
since this is a dependency case, the CPS rule that
verbatim documentation is desireable should have
caused audio or video recording of the interviews
with E.P.--especially since Mr. Petcu requested it.
Nothing in the WAPA Brief should lead the court to
avoid imposing of a requirement that child abuse
interviews be recorded.[n.13]

Respectfully submitted January 23, 1998.

PREBLE LAW FIRM

__________________________
GARY A. PREBLE, WSB #14758
Attorney for Petitioner

===================================================

1. State v. Ryan, 103 Wn.2d 165, 691 P.2d 197

(1984).

2. J. Myers, G. Goodman, K. Saywitz, Psychologi-

cal Research on Children as Witnesses: Practical
Implications for Forensic Interviews and Courtroom
Testimony, 27 Pacific Law Journal 1 (1996). (here-
inafter Myers, Goodman, and Saywitz); J. Myers,
Taint Hearings for Child Witnesses? A Step in the
Wrong Direction, 46 Baylor Law Review 873, (1994)
(hereinafter Taint Hearings).

3. Unlike Ceci and Bruck's work submitted to the

Michaels court, see footnote 5 herein, Myers,
Goodman and Saywitz, n. 9 at 4, acknowledge that
their article "does not purport to cover the entire
corpus of the literature."

4. The Chin award stated the following, id.,

regarding their research:

[t]he judges were particularly impressed with

how well you had combined the scholarly syn-
thesis of the complex, often contradictory
literature with the discussion of its implica-
tions for issues of child abuse. Your paper
is an excellent example of how rigorous re-
search can inform important social problems."

5. Ceci, S.J. and Bruck M. (1993b). The Sug-

gestibility of the Child Witness: A Historical
Review and Synthesis. Psychological Bulletin, 113,
403-439. At page 403 of the article, the authors
state: "In this article we review and integrate the
entire corpus of twentieth century social science
research concerning young children's presumed
suggestibility." Reply at 501.

6. Though it was not a part of the case, WAPA

raises the issue of counseling. WAPA Brief, 12.
Stuart Greenberg, Ph.D., who testified in this
case, has written of the problems that can arrise
in counseling. Greenberg, S. and Shuman, D., Thera-
py vs. Forensics: Irreconcilable Conflict Between
Therapeutic and Forensic Roles of Mental Health
Professionals, 51 Wash. Bar News Vol. 10, P 16
(Oct. 1997).

7. Note Professor Beaver's recognition in the

Martin quote that contamination of memory affects
not only reliability, but competency and credibili-
ty as well.

8. The recent case of State v. Doggett, Docket

No. 15014-3-III (1997) quoted the following CPS
rule: "Verbatim documentation of questions/answers
regarding specific abuse questioning is desire-
able."

9. J. Myers, Taint Hearings at page 933, states:

If a child discloses abuse during an interview

that was video or audiotaped, the court can
evaluate firsthand whether improper questions
were asked. Courts increasingly suggest that
investigative interviews should be video-
taped.272 Although videotaping is often appro-
priate, it must be remembered that taping is
 not always possible.
-----------------------------------------
272.
State v. Townsend, 635 So.2d 949, 959 (Fla.
1994) (Court states experts agree that inves-
tigative interviews should be videotaped);
State v. Michaels, 642 A.2d 1372, 1379, n.1
(N.J. 1994) ("Nearly all experts agree that
initial interviews should be videotaped.").

See also, Pet. for Discretionary Review, 19-20.

10. J. Myers, Taint Hearings, also stated, "[C]o-

mmunities that videotape investigative interviews
generally find that taping does not undermine pro-
secution." Id. Washington prosecutors refuse to
acknowledge either the value of, or the consensus
in favor of, videotaping. See also, Appendix C at
57, quoting a Washington prosecutor as saying,
"[V]ideotaping investigative interviews of children
suspected of being victims of sexual abuse does not
promote an accurate determination of guilt, is not
in the best interests of the child is counterpro-
ductive to prosecution, and is unnecessary."

11. Appendix C hereto consists of the prefatory

pages and Chapter 6 of the report. The quoted
language is the conclusion of Chapter 6.

12. Though videorecording was not done, the Dog-

gett court noted that other children's testimony
about detective Perez's interview techniques man-
dated a hearing on the issue of improper influence,
which influence would constitute possible miscon-
duct.

13. In its Brief, 25 n.10, WAPA wrongly implies

the issue of videotaping came to a vote during the
last legislative session. On the contrary, SSB
5087 did not "fail" but remains viable. See, bill
history at
http://leginfo.leg.wa.gov/pub/billinfo/senate/5075-5099/5087_history.

It is important to distinguish between the legisla-

tive function of directing CPS, and the judicial
function of developing procedures to ensure the
reliability of evidence. Regardless of what the
legislature may or may not do, Petitioner requests
the court to require videotaping in order to im-
prove the quality of both the procurement and the
preservation of evidence--and thus its reliability.