State v. Kafer, 2013 WI App 41, 6-8, 346 Wis. 2d 731, 828 N.W.2d 592 review denied, 2013 WI 80, 6-8, 353 Wis. 2d 430, 839 N.W.2d 617.

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1 Taint Hearings State v. Kafer, 2013 WI App 41, 6-8, 346 Wis. 2d 731, 828 N.W.2d 592 review denied, 2013 WI 80, 6-8, 353 Wis. 2d 430, 839 N.W.2d 617. (unpublished) Stating that a taint hearing generally involves a very young child witness but does not rule out the merit of one in the right case. 6 The State's case depended upon the credibility of the child accusers. Kafer contends that his counsel ineffectively failed to consult a defense expert such as forensic psychologist Hollida Wakefield, who testified for the defense at the postconviction motion hearing. Wakefield testified that investigatory interviews of children often entail techniques that suggest or coerce responses and render the alleged victim's disclosures unreliable. Kafer claims that counsel should have consulted such an expert to pave the way for a pretrial taint hearing to challenge the admissibility of the boys' hearsay statements as well as their ability to testify at trial. The failure to do so, he argues, compromised his ability to rebut the State's case and provide a believable defense. 7 In his postconviction motion, Kafer relied on a New Jersey case as support for the necessity of a pretrial taint hearing. See State v. Michaels, 136 N.J. 299, 642 A.2d 1372, 1382 (N.J.1994). Here, Kafer cites State v. Kirschbaum, 195 Wis.2d 11, 535 N.W.2d 462 (Ct.App.1995). While Kirschbaum notes that some other jurisdictions recognize that young children can be susceptible to suggestive interview techniques that can undermine the reliability of a child's account of actual events, id. at 23, 535 N.W.2d 462, it is not a taint-hearing case. Nor is any other Wisconsin case: Wisconsin does not require taint hearings. Counsel is not ineffective for failing to make or contemplate a legal argument with dim prospects of success, see State v. Toliver, 187 Wis.2d 346, 359, 523 N.W.2d 113 (Ct.App.1994) (no duty to make meritless arguments), or for failing to forecast changes in the law, see State v. McMahon, 186 Wis.2d 68, 84 85, 519 N.W.2d 621 (Ct.App.1994) (no duty to argue unsettled points of law). 8 Furthermore, no prejudice flowed from trial counsel's failure to request a taint hearing. The taint cases generally involve the competency of very young child victims to testify reliably from their memory about the offense and the identity of the suspect. Aaron and Austin were about ten and twelve at the time of the offenses and thirteen and fifteen at the time of the interviews, and they knew Kafer all their lives. Significantly, Kafer did not dispute that the contact occurred but insisted only that it was not for sexual gratification. A taint hearing is to determine the reliability of the victim witness, not to assess the defendant's intent. Kafer's admissions establish the reliability. Admissibility of Expert on Interviewing Techniques and Suggestiveness State v. Kirschbaum, 195 Wis. 2d 11, 23-27, 535 N.W.2d 462, (Ct. App. 1995) While the issue has not been addressed in Wisconsin, many jurisdictions recognize that young children can be susceptible to suggestive interview techniques and that such techniques can undermine the reliability of a child's account of actual events. See, e.g., Idaho v. Wright, 497 U.S. 805, , 110 S.Ct. 3139, , 111 L.Ed.2d 638 (1990); Maryland v. Craig, 497 U.S. 836, 868, 110 S.Ct. 3157, 3175, 111 L.Ed.2d 666 (1990) (Scalia, J., dissenting); State v. Michaels, 136 N.J. 299, 642 A.2d 1372, 1379 (1994);

2 *24 People v. Michael M., 162 Misc.2d 803, 618 N.Y.S.2d 171, 177 (N.Y.Sup.Ct.1994); Territory of Guam v. McGravey, 14 F.3d 1344, (9th Cir.1994). The concern is that persons conducting interviews with the child will, either inadvertently or purposefully, suggest facts and promote fantasies that the child will later remember and testify to as the truth. See John R. Christiansen, The Testimony of Child Witnesses: Fact, Fantasy, and the Influence of Pretrial Interviews, 62 Wash.L.Rev. 705, 707 (1987). Many jurisdictions also recognize the utility of expert testimony on the suggestive interview techniques used with a young child and how suggestive techniques can shape a young child witness's answers. See, e.g., Michaels, 642 A.2d at 1384 ( Experts may thus be called to aid the jury by explaining the coercive or suggestive propensities of the interviewing techniques employed ); State v. Malarney, 617 So.2d 739, 740 (Fla.Dist.Ct.App.1993) (reversible error to exclude defendant's expert psychological testimony on unreasonably suggestive interviewing techniques used with victim); Michael M., 618 N.Y.S.2d at 177 ( In recognition of a child's suggestibility, many courts have allowed the admission of expert testimony at trial on the effects of suggestive questioning ); McGravey, 14 F.3d at (although concluding that a jury instruction on the suggestibility of children was not required, recognized that [defendant] also could have, but did not, **467 present expert testimony on the issue of... the susceptibility of children to suggestion ); Sheldon v. State, 796 P.2d 831, 839 (Alaska Ct.App.1990); People v. Diefenderfer, 784 P.2d 741, 753 (Colo.1989); Timmons v. State, 584 N.E.2d 1108, (Ind.1992); State v. Erickson, 454 N.W.2d 624, 626 (Minn.Ct.App.1990); *25 State v. Floody, 481 N.W.2d 242, 248 (S.D.1992); United States v. Geiss, 30 M.J. 678, 681 (A.F.C.M.R.1990). 6 We recognize that in Wisconsin, no witness, expert or otherwise, should normally be permitted to testify that a witness is or is not telling the truth, unless the witness whose credibility is at issue suffers from a physical or psychological disorder. See Friedrich, 135 Wis.2d at 16-17, 398 N.W.2d at 770; Haseltine, 120 Wis.2d at 96, 352 N.W.2d at 676. This is because the credibility of a witness is ordinarily something a lay juror, having the knowledge and general experience common to every member of the community, can determine on his or her own. Haseltine, 120 Wis.2d at 96, 352 N.W.2d at 676. However, the purpose of the child psychologist's testimony in this case was allegedly to discuss the procedures and techniques used in pretrial interviews with Amanda H. and how these procedures and techniques may have affected the reliability of the child's recollections. This is a subject with which a lay juror may be unfamiliar. Moreover, while cross-examination alone is normally sufficient to test the reliability of a witness's account of events, cross-examination of a child witness could be ineffectual if the child sincerely takes his or her recollections to be grounded in facts and does not remember the improper interview procedures which may have suggested them. See John R. Christiansen, The Testimony of Child Witnesses: Fact, Fantasy, and the Influence of Pretrial Interviews, 62 Wash.L.Rev. 705, 708 (1987). 78 We find the cases from these other jurisdictions persuasive and conclude that, in some cases, it may be an erroneous exercise of discretion to deny an indigent defendant's request for permission to hire an expert for *26 testimony on the issue of suggestive interview techniques used with a young child witness. Here, however, rather than making the requisite showing of particularized need, Dressler, 163 Wis.2d at 641, 472 N.W.2d at 540, there was only a broad assertion in Kirschbaum's counsel's affidavit that the psychologist would testify on the bias or suggestion that occurred in the interviews conducted with Amanda H. Kirschbaum's counsel failed to point to a single specific example of an improper interview technique that her expert would discuss such that the court could invoke its decisional process. 2 See Dressler, 163 Wis.2d at 641, 472 N.W.2d at 540. Because Kirschbaum did not

3 make a showing of particularized need for the child psychologist, the trial *27 court did not erroneously exercise its discretion in denying her request for permission to hire that expert. The Right to Present Expert testimony on Child interview and Recantation lies in 6th Amendment State v. St. George, 2002 WI 50, 64-67, 252 Wis. 2d 499, , 643 N.W.2d 777, The State's use of its experts and the defendant's inability to produce an expert was especially damaging to the defense in this case. The State's witnesses, without any rebuttal witnesses, were able to give the impression that Kayla's recantation was either inconsequential or perhaps even evidence of the truthfulness of her initial accusation and to give the impression that the cognitive graphic interview technique was a nationally recognized system for questioning child assault victims that is designed to elicit answers that are in conformity with the truth and obtains accurate information from children. 65 Those impressions were further enhanced by the State's closing argument, which commented on the defendant's failure to rebut the testimony of the State's two expert witnesses. In closing argument the prosecutor referred twice to the defendant's failure to rebut the State's expert witnesses. The prosecutor stated: That common sense is aided in this case by the unrebutted testimony of Miss Mimi Rappley... *532 The prosecutor also stated: And Ty [Juoni] was going through the very particular questions using, using what is the unrebutted testimony a nationally recognized system for garnering accurate information about sexual assaults. (Emphasis added.) 66 The jury did not know, of course, that the prosecutor's efforts caused the defendant's inability to rebut the testimony of the State's witnesses. The jury found the defendant guilty, apparently believing, with the assistance of Ms. Rappley's and Mr. Juoni's testimony, that Kayla's out-of-court accusations were more reliable than her trial testimony recanting the accusations. 67 The jury was not afforded the opportunity to consider Dr. Stonefeld's observations concerning the practical limitations to any conclusions that could be fairly drawn from the testimony of Ms. Rappley and Mr. Juoni. Improper Interviewing Techniques and Suggestibility There is a growing acceptance in the law for the proposition that the improper interview techniques may affect the integrity of the child s statement. Young children can be susceptible to suggestive interview techniques and these techniques can undermine the reliability of a child's account of actual events. Com. v. Pare, 43 Mass.App.Ct. 566, 686 N.E.2d 1025 (Mass.App.Ct.,1997). The concern is that persons conducting interviews with the child will, either inadvertently or purposefully, suggest facts and promote fantasies that the child will later remember and testify to as the truth. State v. Kirschbaum, 195 Wis.2d 11, 24, 535 N.W.2d 462, 466 (Wis.App.,1995). When evaluating a recorded interview or conducting an investigative interview regarding the child s interview by child protection workers, generally one should look to see if the interviewer used an open-ended, gradual technique, such as the Stepwise Interview developed by Dr. Richard Yuille, while

4 interviewing the child. If the interviewer uses the following techniques to get a disclosure, by all means get an expert to help you evaluate the potential impact. 1.Tells the child why she is there. 2.Uses leading questions, when the child does not give the right answer. 3.Asks the same question repeatedly when the child does not give the right answer. 4.Tells the child what other children or adults have said about what happened to them or her. 5.Introduces diagrams to the process in a leading way. 6.Introduces dolls to the process at all or, at least, not until a clear allegation has been made and the use is limited to clarification. 7.Suggests to the child that they have to stay until they tell what happened to them. 8. Fails to determine the meaning of language the child is using because adult assumptions about the meaning of words such as pink button, the hard, wiener may not be accurate. Interviewing Techniques and Suggestibility The prosecution also has an interest in bolstering the reliability of the interviewer s techniques to neutralize the prosecution from the argument that the interviewer tainted the child through suggestive questions. Discussing the methods used in the interview and the purpose of using openended questions or developing rapport is generally acceptable as relevant and admissible. Mooneyham v. State, 915 So.2d 1102 (Miss.App.,2005); State v. Krueger, 2008 WI App 162, 15, 314 Wis.2d 605, 762 N.W.2d 114 (Wis.App. 2008). However, the expert should not be allowed to testify that these methods generally result in a reliable or truthful statement, or that they did so in this case. The expert should also not give an opinion as to the general suggestiveness of the child s personality absent a psychological examination which should then trigger a request from the defense for its own exam of the child. In Krueger, a social worker was asked whether she had formed an opinion as to whether or not the child "was the product of any suggestibility or any coaching." She responded that she had formed an opinion and "did not get that" from the child. She then elaborated: She did not appear to me to be highly sophisticated so that she could maintain that kind of consistency throughout unless it was something that she had experienced. State v. Krueger, 2008 WI App. at 15 (emphasis added). The court found this to be tantamount to improper vouching and reversed. A motion in limine to exclude such evidence or to limit the testimony to allowable questions and answers is wise in these cases.

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6 9. Uses threats or bribes to get the child to confirm the abuse. 10. Uses multiple interviews to get the child to confirm the abuse. See also, Ashish S. Joshi, Taint Hearing: Scientific and Legal Underpinnings, 34-NOV Champion 36. The basic issue courts address at a pretrial taint hearing in order to determine the reliability of the statements made by alleged child sex abuse witnesses is whether pretrial events and/or the investigatory interviews, were so suggestive that they give rise to substantial likelihood of irreparably mistaken or false recollection of material facts bearing on defendant's guilt. State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (N.J.,1994). Other states have rejected the notion of a taint hearing finding that there is no extraordinary justification to create a competency issue for child witnesses and that juries are able to determine the credibility issues created by improper interview techniques. State v. Bumgarner, 219 Or.App. 617, 184 P.3d 1143 (Or.App.,2008); People v. Montoya, 149 Cal.App.4th 1139, 1149, 57 Cal.Rptr.3d 770 (2007). In this instance, expert testimony regarding suggestive techniques may still be relevant and admissible to challenge the child s credibility. State v. Sargent, 144 N.H. 103, 738 A.2d 351 (1999); Jenkins v. Com., 308 S.W.3d 704 (Ky. 2010)(collecting cases). It is critical to include arguments asserting the Sixth Amendment right to present a defense when filing a motion to present expert testimony on this issue. The admissibility of expert evidence is a discretionary decision that will be upheld unless it infringes on a constitutional right. Finally, defense counsel should read the books and articles written by the researchers who are analyzing this area so critical to a successful defense. For example, see Lamb, Michael; Poole, Debra; Investigative Interviews of Children: A Guide for Helping Professionals, The American Psychological Association, 2007; Bruck, Maggie, Ceci, Stephen J., London, Kamala, Shuman, Daniel W.: Disclosure of Child Sexual Abuse: What Does the Research Tell Us About the Ways That Children Tell? Psychology, Public Policy, and Law 2005, Vol. 11, No. 1,