Wednesday, November 15, 2006

child witness - taint - clear and convincing evidence

Commonwealth v. Cesar - Superior Court - November 14, 2006

The court discussed how to deal with the issue of the possible tainting of the testimony of a child. The Defendant claimed that the child's evidence had been tainted by improper coaching by a parent, an asst. DA, and someone from the victim-witness office.

The court discussed the problem of taint, stating that the "core belief underlying the that a child's memory is peculiarly susceptible to suggestibility so that when called to testify a child may have difficult distinguishing fact from fantasy. Taint is the implantation of false memories or the distortion of real memories caused by interview techniques...that are so unduly suggestive and coercive as to infect the memory of the child, rending that child incompetent to testify."

The court said that a taint investigation is triggered by "some evidence of taint. Once some evidence of taint is presented, the... hearing [about the child's competency to testify] must be expanded to explore this specific question. During the hearing the party alleging taint bears the burden of production of evidence of taint and the burden of persuasion to show taint by clear and convincing evidence. Pennsylvania has always maintained that since competency is the presumption, the moving party must carry the burden of overcoming that presumption...[A]s with all questions of competency, the resolution of a taint a matter addressed to the discretion of the trial court."