Opinion
Case No. 4:09-cr-060.
January 26, 2011
Summary: The Defendant and the Government filed separate motions in limine. The Court denied the Defendant's motion in limine as to evidence regarding disclosures allegedly made by victims of past sexual abuse by the Defendant. The Court deferred ruling on the Defendant's motion in limine as to testimony regarding the forensic interview, video and audio recordings of the forensic interview, and general testimony regarding victims of alleged sexual abuse. The Court denied the Government's motion in limine as to the admissibility of the Defendant's expert witness testimony regarding the medical examination. The Court deferred ruling on the Government's motion in limine as to the admissibility of the Defendant's expert witness testimony regarding victims of alleged sexual abuse.
ORDER ON MOTIONS IN LIMINE
Before the Court is the Defendant's "Motions in Limine to Prohibit Specified Evidence" filed on January 19, 2011, and the Government's "Motion in Limine to Prohibit Specified Testimony" filed on January 20, 2011. See Docket Nos. 58 and 61.
I. BACKGROUND
The defendant, John Fitzgerald Wallette, was indicted on July 15, 2009 on one count of aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 2241(c) and 1153. See Docket No. 1. Wallette is alleged to have sexually abused B.W. from an unknown time to about July 15, 2008. On August 11, 2008, Jeanne J. LeMay, a trained forensic examiner, conducted a forensic interview of B.W. at the Northern Plains Children's Advocacy Center in Minot, North Dakota.
Wallette has filed a motion in limine to exclude the admission of the following evidence at trial:
1. Testimony from Jeanne J. LeMay regarding an August 11, 2008, interview with B.W., the alleged victim in this case, at the Northern Plains Children's Advocacy Center in Minot, North Dakota.
2. The video and audio recordings of the August 11, 2008, forensic interviews of the alleged victim conducted at the Northern Plains Children's Advocacy Center in Minot, North Dakota.
3. Testimony from Jeanne J. LeMay regarding victims of alleged sexual abuse, how victims of alleged sexual abuse react to different stimuli after disclosing the alleged abuse, and further disclosures and recantations of alleged sexual abuse made subsequent to the initial disclosure.
4. Evidence offered pursuant to Rules 404(b) and 414 of the Federal Rules of Evidence regarding disclosures allegedly made by R.L. to the FBI on February 17, 2009, and by M.P. made to FBI agents on January 29, 2008, and again on January 8, 2009.
5. Any hearsay testimony. No notice has been provided from the government that it intends on introducing hearsay. Defendant asserts that any statements made by the alleged victim to law enforcement or forensic interviewers does not fall within any exception to the hearsay rule.See Docket No. 58. The Government opposes the Defendant's motion and also filed a motion in limine in which it seeks "an order prohibiting Defendant from offering evidence or testimony of Dr. Katherine Okla and Dr. Stephen Guertin." See Docket No. 60.
II. LEGAL DISCUSSION
A. FORENSIC INTERVIEW
In anticipation of the Government calling the alleged victim, B.W., during trial, Wallette seeks to exclude the testimony of forensic examiner Jeanne J. LeMay and the admission of the forensic interview. Wallette argues that the statements made by B.W. during the forensic interview should be excluded because they do not have circumstantial guarantees of trustworthiness. Wallette contends that "serious questions exist as to the interview techniques employed by the forensic interview, techniques which do not comply with or adhere to, the general practice standards and guidelines for conducting forensic interviews." See Docket No. 59.
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The confrontation clause generally affords a defendant the right to face-to-face confrontation, but it is not guaranteed in every instance. Maryland v. Craig, 497 U.S. 836, 847 (1990). "The confrontation clause `does not necessarily prohibit the admission of hearsay statements against a criminal defendant.' It does, however, bar `the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.'" United States v. Turning Bear, 357 F.3d 730, 737 (8th Cir. 2004) (quoting Idaho v. Wright, 497 U.S. 805, 813, 814 (1990)). "The Confrontation Clause is satisfied when the hearsay evidence falls within a firmly rooted exception to the hearsay rule or is supported by facts that otherwise demonstrate the statement's reliability; the Confrontation Clause is alternatively satisfied when the hearsay declarant testifies at trial and is available for cross-examination." Bear Stops v. United States, 339 F.3d 777, 781 (8th Cir. 2003). To satisfy the requirements under the confrontation clause, out-of-court statements of child victims in sexual abuse cases "must bear adequate `indicia of reliability,' either because they fall within a `firmly rooted hearsay exception' or because they are supported by a showing of particularized guarantees of trustworthiness." United States v. Sumner, 204 F.3d 1182, 1185 (8th Cir. 2000) (quoting Wright, 497 U.S. at 816).
Hearsay is generally not admissible unless specified by the Federal Rules of Evidence. Exceptions to the hearsay rule are set forth in Rules 803, 804, and 807 of the Federal Rules of Evidence. Rule 807 is the residual exception or the "catch-all" to the hearsay rule, and allows the admissibility of hearsay statements in exceptional circumstances where the statements have "circumstantial guarantees of trustworthiness." United States v. Hughes, 535 F.3d 880, 882 (8th Cir. 2008). Rule 807 provides:
A statement not specifically covered by Rule 803 or Rule 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes it known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.
In United States v. Thunder Horse, 370 F.3d 745 (8th Cir. 2004), the Eighth Circuit Court of Appeals held that a child victim's statements to a forensic examiner affiliated with a Child Advocacy Center were admissible pursuant to Rule 807 of the Federal Rules of Evidence. In Thunder Horse, the defendant was convicted of abusive sexual contact of a child in violation of 18 U.S.C. §§ 1153, 2244(a)(1), and 2244(c). The defendant was sentenced to 27-months imprisonment. The defendant appealed his sentence to the Eighth Circuit, arguing that the district court improperly permitted the forensic examiner to testify as to the statements made by the victim at the Child Advocacy Center. The Eighth Circuit considered numerous factors in determining that the forensic examiner's hearsay testimony had circumstantial guarantees of trustworthiness, including:
the training and experience of the interviewer; whether the child was interviewed using open-ended questions; the age of the child and whether the child used age-appropriate language in discussing the abuse; the length of time between the incident of abuse and the making of the hearsay statement; and whether the child repeated the same facts consistently to adults.Thunder Horse, 370 F.3d at 748 (citing United States v. NB, 59 F.3d 771, 776 (8th Cir. 1995)). The Eighth Circuit determined that the testimony contained substantial guarantees of trustworthiness because (1) the interview was conducted at the Child Advocacy Center only seventeen days after the incident, (2) the forensic examiner had twenty years of experience in interviewing child victims, (3) the forensic examiner asked the victim open-ended questions, and (4) the victim was ten-years old and used child-like terms to describe the incident. Id.
The Government contends that the statements made by B.W. during the forensic interview with Jeanne LeMay have circumstantial guarantees of trustworthiness which weigh in favor of admission. The forensic interview of B.W. was conducted on August 11, 2008, less than one month after the last incident of sexual abuse was alleged to have occurred. The Government states that Jeanne LeMay is a trained forensic examiner of children alleged to be the subjects of sexual abuse, has had experience in conducting forensic interviews since March 2003, and asked B.W. open-ended questions during the forensic interview. The Government contends that LeMay conducted the interview in accordance with accepted protocols of the Children's Advocacy Center and used age-appropriate language. The Government further asserts that B.W. disclosed the abuse in a fairly descriptive manner.
Wallette contends that the admission of testimony from Jeanne LeMay and the recorded interview of B.W. violate Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the United States Supreme Court held that the confrontation clause bars the admission of out-of-court testimonial statements unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the witness. The Government anticipates that B.W. will testify at trial and will be subject to cross-examination.
In the recent decision of United States v. Smith, 591 F.3d 974 (8th Cir. 2010), the Eighth Circuit considered whether it was reversible error for a district court to admit a forensic examiner's lay opinion testimony and the forensic interview to clarify the child victim's trial testimony. In Smith, the defendant was charged with aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 2241(c) and 1153 and abusive sexual contact in violation of 18 U.S.C. §§ 2244(a)(5) and 1153. A forensic examiner conducted a recorded interview of the child victim. At trial, the victim testified that the defendant had touched her inappropriately on two occasions. Defense counsel called the forensic examiner to discuss an apparent inconsistency between the victim's recorded statement and the statement given at trial. The forensic examiner testified that the victim's testimony at trial and during the forensic interview were consistent based on her experience as a forensic examiner. During the Government's cross-examination of the forensic examiner, the Government sought to admit the forensic interview into evidence. The district court permitted the admission of the forensic interview which was played for the jury. The jury found the defendant guilty of aggravated sexual abuse. The defendant appealed the conviction, arguing, among other things, that the admission of the forensic interview and the forensic examiner's testimony was reversible error.
On appeal, the Eighth Circuit affirmed the district court's decision to admit the recorded interview and testimony of the forensic examiner. The Eighth Circuit found that the district court properly considered the relevant Rule 807 requirements and the Thunder Horse factors before admitting the evidence at trial. The Eighth Circuit noted that a district court is not required to make a finding on the record as to each of the Rule 807 requirements and the Thunder Horse factors as long as the record demonstrates that the court considered the relevant factors.
At this stage, the Court will DEFER RULING on the admissibility of the forensic interview and Jeanne LeMay's testimony. It is well-established that if the alleged victim testifies at trial and is subject to cross-examination, the requirements underCrawford v. Washington, 541 U.S. 36 (2004) are satisfied, and the forensic interview and testimony of Jeanne LeMay may be admissible if the Court finds that the relevant Rule 807 requirements and the Thunder Horse factors are satisfied. If the alleged victim does not testify at trial, the Court will not allow the admission of the contested evidence.
B. EXPERT TESTIMONY
In his motion in limine, Wallette seeks an order prohibiting the Government from introducing "[t]estimony from Jeanne J. LeMay regarding victims of alleged sexual abuse, how victims of alleged sexual abuse react to different stimuli after disclosing the alleged abuse, and further disclosures and recantations of alleged sexual abuse made subsequent to initial disclosure." See Docket No. 58. The Government, in its motion in limine, seeks an order prohibiting Wallette from offering evidence or testimony of Dr. Katherine Okla and Dr. Stephen Guertin because:
1. Neither witness has any personal knowledge involving the allegations of the issue at bar.
2. The testimony of Dr. Katherine Okla is being offered for no other reason then to disparage and compare the North Dakota Children's Advocacy Center's protocol regarding the forensic interviews of children to the accepted protocol in the State of Michigan.
3. Dr. Okla does not have any expertise in the protocol that was used in the interview of B.W. Her expertise is relegated to the protocol generally accepted in the State of Michigan.
4. Dr. Okla, herself, has not performed a forensic interview since 1990 and it cannot be established by her curriculum vitae that she retained any expertise regarding the performance of such interviews. Her testimony is only being offered to confuse the jury regarding the interviews of B.W., but does not offer any opinion that will aid the trier of fact to understand the evidence or determine any fact in issue.
[5]. Dr. Stephen Guertin is being offered to indicate that B.W.'s physical examination appeared to be normal.
[6]. Dr. Guertin cannot testify that the abuse alleged by B.W. did not occur or was inconsistent with the overall examination of B.W.
[7]. In short, Dr. Guertin will only be able to testify that B.W.'s physical examination could be normal based upon statistics and comparisons to studies of non-sexually abused children. The mere fact that 25% of non-sexually abused children may also have a thinned hymenal opening does not aid the trier of fact when patient history and the disclosures are taken into account.See Docket No. 60.
Rule 702 of the Federal Rules of Evidence states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
When deciding whether to admit expert testimony of a witness, the trial court acts as a "gatekeeper" to make "`a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.'"Glastetter v. Novartis Pharms. Corp., 252 F.3d 986, 988 (8th Cir. 2001) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993)). The trial court has broad discretion in assessing the reliability of expert testimony. United States v. Kenyon, 481 F.3d 1054, 1061 (8th Cir. 2007) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999)). However, the gatekeeper role should not invade the province of the jury whose job it is to decide issues of credibility and to weigh the evidence. United States v. Vesey, 338 F.3d 913, 917 (8th Cir. 2003).
It is well-established in this circuit that "[i]n child sex abuse cases, `a qualified expert can inform the jury of characteristics in sexually abused children and describe the characteristics the alleged victim exhibits.'" United States v. Jumping Eagle, 515 F.3d 794, 800 (8th Cir. 2008) (quoting United States v. Kirkie, 261 F.3d 761, 765-66 (8th Cir. 2001)). While an expert "cannot express an opinion that sexual abuse has in fact occurred or vouch for the victim," an expert can "summarize the medical evidence and express an opinion that the evidence is consistent or inconsistent with the victim's allegations of sexual abuse." Id. (citing Kirkie, 261 F.3d at 766).
The record does not contain enough information for the Court to determine at this stage whether Jeanne LeMay or Dr. Katherine Okla are qualified to render opinions at trial concerning the subject of recantations by a victim of sexual abuse. There are serious questions whether such testimony complies with Rule 702 and Daubert standards. Further, even if expert testimony on recantations by a child sex abuse victim meets the scientific acceptance and reliability standards under Daubert, there remain questions as to whether such testimony invades the province of the jury and would be permitted at trial.
The Court will DEFER RULING on the admissibility of Jeanne LeMay's testimony as to child victim recantations, and on the admissibility of Dr. Katherine Okla's testimony. The Court DENIES the Government's motion in limine as to the admissibility of Dr. Stephen Guertin's expert testimony regarding B.W.'s physical examination. Dr. Guertin will be allowed to opine on the medical evidence and physical examination conducted, and express a general opinion as to whether the medical evidence is consistent or inconsistent with allegations of sexual abuse. However, neither Dr. Guertin, nor any other expert witness, may express an opinion as to whether sexual abuse occurred or not.
C. OTHER INCIDENTS OF ALLEGED CRIMINAL SEXUAL CONDUCT
The Government may also seek to introduce testimony of R.L., M.P., and Helen Keplin regarding the Defendant's alleged sexual abuse of R.L. and M.P. The Government contends that on February 17, 2009, R.L. disclosed to FBI Special Agent Ryan O'Neil that the Defendant fondled her bare breast and genitalia over the clothing when she was under 16 years of age and while she was a resident of the Little Shell Youth Home in Belcourt, North Dakota. At the time the Defendant was an employee of the Little Shell Youth Home. The Government contends that R.L. reported the abuse to Helen Keplin, the Youth Home director. The Government further argues that on January 29, 2008, and again on January 8, 2009, M.P. disclosed to the FBI that he engaged in sexual acts with the Defendant sometime in April or May of 2007 when he was under 16 years of age and while a resident of the Little Shell Youth Home. M.P. disclosed this conduct as a condition of the sexual offender treatment M.P. was receiving at a treatment facility in Copper Hills, Utah. The Government argues that such testimony is admissible pursuant to Rules 413 and 414 of the Federal Rules of Evidence.
The Eighth Circuit Court of Appeals clarified Rules 413 and 414 as follows:
Evidence of prior bad acts is generally not admissible to prove a defendant's character or propensity to commit crime. Fed.R.Evid. 404(b). However, Congress altered this rule in sex offense cases when it adopted Rules 413 and 414 of the Federal Rules of Evidence. After the adoption of Rules 413 and 414, in sexual assault and child molestation cases, evidence that the defendant committed a prior similar offense "may be considered for its bearing on any matter to which it is relevant," including the defendant's propensity to commit such offenses. Fed.R.Evid. 413(a), 414(a). If relevant, such evidence is admissible unless its probative value is "substantially outweighed" by one or more of the factors enumerated in Rule 403, including "the danger of unfair prejudice." United States v. LeCompte, 131 F.3d 767, 769 (8th Cir. 1997).United States v. Holy Bull, 613 F.3d 871, 873 (8th Cir. 2010).
The evidence at trial is expected to show that from an unknown time to about July 15, 2008, Wallette knowingly engaged in and attempted to engage in a sexual act with B.W., a child under the age of 12 years. The alleged conduct consisted of Wallette (B.W.'s biological father) sexually molesting B.W. by digitally penetrating her vagina, by inserting batteries into her vagina, and placing his tongue onto her vagina. B.W. was approximately seven years old when the alleged sexual abuse ceased.
The Government seeks to introduce testimony of R.L. and M.P. that on prior separate occasions, Wallette sexually abused R.L. and M.P., who were under the age of 16 years, while R.L. and M.P. were residents at a juvenile facility in Belcourt. The Government further seeks to introduce testimony of Helen Keplin, the former youth home director, to testify that R.L. reported the abusive conduct to her at the time it occurred or shortly thereafter, and that there had been two additional reports from others indicating that Wallette had sexually abused two other residents of the youth home.
Wallette contends that R.L.'s testimony is inadmissible because the alleged conduct does not indicate that Wallette engaged in a sexual act with R.L. as defined in 18 U.S.C. § 2246. While the alleged conduct regarding M.P. may have involved a sexual act, Wallette also argues it is inadmissible because it is dissimilar to the charged conduct.
The record reveals that R.L. and M.P. were under the age of sixteen when the alleged conduct occurred. Rule 414(d) of the Federal Rules of Evidence defines "child" as someone below the age of fourteen, but neither party has discussed the applicability of the rule in terms of R.L.'s and M.P.'s ages. Under Rule 413, "offense of sexual assault" includes "any conduct proscribed by chapter 109A of title 18, United States Code." Fed.R.Evid. 413(d)(1). The indictment charges Wallette with the crime of aggravated sexual abuse of a child in violation of 18 U.S.C. § 2241(c), a crime under chapter 109A.
The Court finds that the proposed testimony of R.L. and M.P. qualifies as Rules 413 and 414 evidence because it is relevant evidence of prior sexual assaults by Wallette. The prior incidents are factually similar to the charged conduct in that all incidents involve Wallette allegedly engaging in sexual acts with minor children while Wallette had access, control, authority, and opportunity over the minor child. Therefore, the proposed testimony of R.L. and M.P. is relevant and probative.
Upon a finding that the proposed evidence is relevant and probative, the Court must determine whether its probative value is substantially outweighed by the danger of unfair prejudice. Although evidence of the prior incidents is undeniably prejudicial, it does not amount to unfair prejudice under Rule 403. "`Rule 403 does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party's case. The rule protects against evidence that is unfairly prejudicial.'" United States v. Betcher, 534 F.3d 820, 825 (8th Cir. 2008) (quoting United States v. McCourt, 468 F.3d 1088, 1092 (8th Cir. 2006)) (emphasis in original). "Unfair prejudice" means "`an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" United States v. Jiminez, 487 F.3d 1140, 1145 (8th Cir. 2007) (quoting Fed.R.Evid. 403 Advisory Committee's Notes). The proposed testimony of R.L. and M.P. is probative for the same reason that it is prejudicial — it tends to prove Wallette's propensity to commit sexual assaults on minor children while the children are in Wallette's custody or control.
The Court finds, in its broad discretion, that the proposed testimony of R.L. and M.P. as to prior incidents of sexual assaults is not unfairly prejudicial. The Court further finds that the proposed testimony of Helen Keplin that she received a report of abusive conduct from R.L. at or around the time it occurred is not unfairly prejudicial. However, Keplin will not be permitted to testify that she received other multiple reports of sexual abuse by Wallette. Such testimony is vague and unfairly prejudicial under Rule 403. The Court DENIES Wallette's motion as to the admissibility of evidence of prior acts of sexual assault committed by Wallette against R.L. and M.P. and as to the existence of a report of sexual abuse by R.L. against Wallette while Wallette was employed at the Little Shell Youth Home in Belcourt, North Dakota.
III. CONCLUSION
After carefully reviewing the parties' briefs, the Court DENIES IN PART AND DEFERS RULING IN PART on the Defendant's motion in limine (Docket No. 58). The Court denies the Defendant's motion in limine as to evidence regarding disclosures allegedly made by R.L. and M.P. The Court will defer ruling on the Defendant's motion in limine until trial as to: (1) testimony from Jeanne J. LeMay regarding an August 11, 2008 forensic interview with B.W.; (2) the video and audio recordings of the August 11, 2008 forensic interviews of B.W.; and (3) general testimony from Jeanne J. LeMay regarding victims of alleged sexual abuse, how victims of alleged sexual abuse react to different stimuli after disclosing the alleged abuse, and further disclosures and recantations of alleged sexual abuse made subsequent to the initial disclosure. The Court DENIES IN PART AND DEFERS RULING IN PART on the Government's motion in limine (Docket No. 61). The Court denies the Government's motion in limine as to the admissibility of Dr. Stephen Guertin's expert testimony regarding B.W.'s physical/medical examination. The Court will defer ruling on the Government's motion in limine as to the admissibility of Dr. Katherine Okla's testimony.