ARTHUR J. AUGUSTINE, Appellant,
STATE OF ALASKA, Appellee.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael P. McConahy, Judge. Trial Court No. 4FA-12-482 CR.
Susan Orlansky, Feldman Orlansky & Sanders, Anchorage, for the Appellant.
Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges.
Arthur J. Augustine was convicted of sexually abusing his two granddaughters. The State's evidence against Augustine was based almost completely on the out-of-court statements of the two children, which were conveyed to the jury through video-recorded interviews of the children, as well as the hearsay testimony of other adults.
The trial judge admitted the children's recorded interviews under the provisions of Alaska Evidence Rule 801(d)(3). Evidence Rule 801 defines what evidence is hearsay, and section (d)(3) of this rule declares that the recorded pre-trial statement of a crime victim is exempted from the hearsay rule if the victim is under 16 years old and if the statement was taken under circumstances that satisfy the eight criteria listed in subsections (d)(3)(A) – (H).
Most of the eight listed criteria concern factual issues, such as whether the interview with the victim was conducted before the proceeding, and whether the victim's statement was recorded in a format that preserves both the audio and video components of the statement. But two of the criteria - (d)(3)(F) and (d)(3)(H) - explicitly require the trial judge to exercise judgement after evaluating the entirety of the circumstances surrounding the victim's statement.
Under subsection (d)(3)(F), the State must prove that "the taking of the statement as a whole was conducted in a manner that would avoid undue influence [on] the victim". And under subsection (d)(3)(H), the judge must additionally "determine that it is sufficiently reliable and trustworthy", and that "the interests of justice are best served by admitting the recording [of the statement] into evidence."
In the present case, we conclude that the trial judge failed to hold the State to its burden of proof under subsection (d)(3)(F), and that the trial judge failed to fulfill his role as evidentiary gatekeeper under subsection (d)(3)(H). We therefore remand this case to the superior court for reconsideration of whether the children's out-of-court statements should have been admitted.
The evidentiary rule at issue in this case: Alaska Evidence Rule 801(d)(3)
Alaska Evidence Rules 801 and 802 contain the basic rules governing hearsay evidence. As defined by the combination of sections (a), (b), and (c) of Evidence Rule 801, "hearsay" evidence is any evidence that a person has made an assertion outside of court (i.e., other than while testifying at the current trial or hearing), if the evidence of this assertion is being offered to prove that the assertion is true.
Under Evidence Rule 802, hearsay evidence is not admissible unless there is a provision of law that expressly authorizes its admission.
The concluding section of Evidence Rule 801 - section (d) - is such a provision. Evidence Rule 801(d) contains a list of certain types of evidence that are excluded from the definition of "hearsay", even though the evidence fits the definition of hearsay found in sections (a), (b), and (c) of the rule.
The present appeal focuses on one of these exceptions - the one codified in Evidence Rule 801(d)(3).
Evidence Rule 801(d)(3) authorizes the admission of certain out-of-court statements made by children who are alleged to be the victims of a crime. More specifically, Rule 801(d)(3) provides that a child's out-of-court statement can be admitted into evidence if the child is less than 16 years of age, if the statement was recorded, and if the proponent of the evidence establishes the following foundational matters:
(A)the recording was made before the proceeding [at which it is being offered];
(B)the victim is available for cross-examination;
(C)the prosecutor and any attorney representing the defendant were not present when the statement was taken;
(D)the recording is on videotape or other format that records both the visual and aural components of the statement;
(E)each person who participated in the taking of the statement is identified on the recording;
(F) the taking of the statement as a whole was conducted in a manner that would avoid undue influence of the victim;
(G) the defense has been provided a reasonable opportunity to view the recording before the proceeding; and
(H) the court has had an opportunity to view the recording and determine that it is sufficiently reliable and trustworthy and that the interests of justice are best served by admitting the recording into evidence.
In this appeal, we are required to interpret a trial judge's duties under subsections (F) and (H) of this rule.
In February 2012, seven-year-old M.Y. was in school, working on an art project. She told a teacher's aide that she was making the project for her mother and her grandmother, but not for her grandfather (i.e., Augustine). M.Y. then asked the teacher's aide, "Do you know why I don't want to make this [project] for my grandpa?" - and, when the aide remained silent, M.Y. answered her own question, "Because my grandpa touches me."
The teacher's aide reported this conversation to M.Y.'s teacher, who in turn reported the conversation to the school counselor, Karin Gillis. Gillis interviewed M.Y., and during this interview M.Y. told Gillis (by pointing to a picture) that her grandfather had touched her genitals.
Gillis reported this matter to the Office of Children's Services, and the Office of Children's Services notified the State Troopers. Investigator Yvonne Howell was assigned to the case.
Investigator Howell contacted M.Y.'s mother, Tonia Clah, and told her about the report of possible sexual abuse. This was the first time that Clah heard of these allegations. Clah told Howell that M.Y.'s "grandpa" was Augustine (and that Augustine was not M.Y.'s biological grandfather, but rather the stepfather of Clah's husband).
Howell asked Clah not to speak to Augustine about these allegations until Howell had conducted further investigation. However, Howell did not ask Clah to refrain from speaking to her daughter.
That night, Clah sat down with M.Y. and questioned her. Clah warned M.Y. that she could not lie about what had happened between her and her grandfather - because, if she did, God would put a "hex" on her.
M.Y. initially told her mother that it was "supposed to be a secret." But, according to Clah, M.Y. finally told her, "Grandpa touched me." Clah testified that M.Y. used her middle finger to touch her genitals, and she said, "Mom, like that."
M.Y. had a younger sister, five-year-old T.Y. Clah did not speak to T.Y. directly about her older sister's allegations. But both M.Y. and T.Y. overheard a phone conversation in which Clah discussed the possibility that Augustine was going to go to jail. When M.Y. and T.Y. asked their mother about this conversation, Clah told them that she wanted to lock up Augustine and "throw away the key". And she told her daughters that she was going to try to find "justice" for them.
Apparently as a result of this conversation, M.Y. told Karin Gillis (the school counselor) that her grandfather was going to jail.
On February 15, 2012, Investigator Howell interviewed Clah and her husband. During this interview, Howell learned that T.Y. had said things to Clah which suggested that Augustine might have sexually abused T.Y. as well.
Investigator Howell then conducted separate, video-recorded interviews of M.Y. and T.Y. She interviewed each girl twice: on February 15th, and again on February 16th.
Investigator Howell's recorded interviews of the two children were admitted at Augustine's trial under Evidence Rule 801(d)(3). The State also presented the testimony of the other adults who heard the children speak about the alleged abuse. But the State did not call either of the children to testify.
The older of the two children, M.Y., testified briefly at Augustine's trial after the defense attorney asked to "cross-examine" her (even though she had given no testimony on direct examination).  The defense attorney asked M.Y. only a few questions of substance, and, in each instance, M.Y.'s answers to these questions were not incriminating to Augustine. After M.Y. gave this testimony, the defense attorney told the court that he did not wish to call T.Y. to the stand.
Thus, the State's case against Augustine rested almost exclusively on the out-of-court statements made by the two children, introduced through the testimony of adults.
The litigation over the admissibility of the four out-of-court interviews conducted by Investigator Howell.
On December 13, 2012 - about three weeks before Augustine's trial was scheduled to begin - the State filed a motion seeking the trial court's permission to introduce Investigator Howell's four recorded interviews of the children pursuant to Evidence Rule 801(d)(3). Five days later, Augustine's attorney filed an opposition to the State's motion.
But for practical purposes, the litigation of this issue had already begun five months earlier - when Augustine's attorney filed a notice that he intended to call Dr. John C. Yuille, a forensic psychologist, to testify at Augustine's trial about potential problems with the way in which Investigator Howell interviewed M.Y. and T.Y., and the potential unreliability of the children's statements during those interviews.
After the defense attorney notified the court and the State that he intended to call Dr. Yuille as an expert witness, the State objected that the defense attorney had not yet provided the State with a written description of the substance of Dr. Yuille's proposed testimony - his opinion, and the underlying basis of that opinion - as required by Alaska Criminal Rule 16(c)(4). In response to the State's objection, the defense attorney filed a copy of Dr. Yuille's nine-page written report.
We are about to describe Dr. Yuille's report in some detail. Our presentation of these details is not intended as an endorsement of Dr. Yuille's analytical approach or his conclusions. Rather, our aim is to demonstrate that the defense offered substantive reasons to doubt the reliability of M.Y.'s and T.Y.'s statements to Investigator Howell.
In his report, Dr. Yuille offered his views on the general principles that an investigator must be aware of, and adhere to, when conducting an investigative interview of a child, so as to "maximize the information obtained from the child while minimizing the contamination of the child's memory". Under these principles, an interviewer should (1) avoid leading questions, (2) allow children to take their time and describe things in their own words, (3) obtain as much independent information as possible, to give the interviewer an objective basis for assessing the credibility of the child's account, and (4) avoid going into the interview with only one working hypothesis, an approach that can "blind" the interviewer to other relevant information that the child may have.
Dr. Yuille's report explained that he and his colleagues (from Europe and the United States) had developed a set of two dozen criteria for evaluating a child's statement about alleged abuse - more specifically, for evaluating whether it is likely that the child's assertions and descriptions are based on memories of real experiences, rather than things the child has "only imagined or heard about."
According to Dr. Yuille, any investigative interview of a child should be evaluated according to the presence or absence of these twenty-four criteria. But among the twenty-four, five criteria are critical, in the sense that all five usually should be present if the child is indeed describing real experiences. According to Dr. Yuille, the five primary criteria are: (1) the allegation should be of a coherent event, (2) the child should describe this event in a spontaneous fashion, (3) the child's description should have the quantity and quality of detail one would expect from this particular child, and, if the child has reached school age, (4) the child's allegation should include an age-appropriate sense of time and space, and (5) it should include age-appropriate descriptions of the child's interactions with the perpetrator.
In addition to describing this general approach to conducting investigative interviews of children, Dr. Yuille also offered an evaluation of Investigator Howell's interviews with M.Y. and T.Y. In his introduction to this critique, Dr. Yuille explained that he did not intend his remarks to be "viewed as a criticism of the officer", but rather a criticism "of the organization that did not provide [her with] the appropriate training to perform this type of interview."
According to Dr. Yuille, the four interviews in question (the two interviews of M. Y. and the two interviews of T. Y.) were of "uniformly of poor quality". Dr. Yuille noted that the interviews were "characterized by the use of leading questions [and] multiple choice questions." Based on the content of Howell's questions, Dr. Yuille characterized the interviews as "attempts to prove what the interviewer [already] believed had happened", rather than open-ended investigative efforts.
Dr. Yuille then criticized several of the interviewing techniques that Howell used when she interviewed the children:
• Howell allowed the children to draw throughout the interviews. According to Dr. Yuille, "[d]rawing is a distracting activity and it interferes with effective interviewing."
• Many of Howell's questions were "multiple-choice" questions - questions that offered the children a selection of answers. According to Dr. Yuille, a person who conducts an investigative interview of a child must avoid multiple-choice questions because "children ... will typically guess one of the alternatives even if they have no memory." This means that a child's answers to such questions are "often unreliable".
• Howell repeatedly used leading questions during all four interviews, making it "impossible to tell" whether the child's answers were reliable or were, instead, "a result of the leading nature of the question."
(Dr. Yuille listed these examples of leading questions that Howell asked the children: "Did he tell you not to tell?"; "Did you say anything?"; "Are there any spots on his penis?")
• Dr. Yuille also pointed out that, in response to Howell's leading questions during her interview with T.Y. on February 15th, the girl gave inconsistent descriptions of the same event: When Howell asked T.Y., "Did you go?", T.Y. replied, "Yes." But a little later, when Howell phrased the question as, "Did he make you stay?", T.Y. replied that Augustine made her stay.
• Based on the tenor of Howell's questions as a whole, Dr. Yuille concluded that the four interviews "were driven by a single hypothesis" - the theory that Augustine had committed an offense. According to Dr. Yuille, "[t]he biggest single impediment to effective investigation is interviewer bias" - not bias in the sense of personal enmity or prejudice, but rather in the sense that the interviewer is attempting "to prove a particular hypothesis rather than [conduct] an investigation to determine what may or may not have happened."
In his concluding paragraph, Dr. Yuille summed up his evaluation of the interviews with the following observations:
Four poor quality interviews were conducted with these two children. No attempt was made to determine what may or may not have happened in this case: the interviews were intended to prove that the suspect had offended against these children. The biased interviews were characterized by leading questions and multiple choice questions. Little information was obtained from the children[, ] and what was obtained was of questionable reliability. Proper, effective, non-leading interviews of these children are needed to determine what, if anything, may have happened in this case. At present, an assessment of the credibility of the allegations is impossible.
Five months later, when the State formally sought admission of Howell's four interviews with the children, the defense attorney's opposition to this evidence rested heavily on the conclusions that Dr. Yuille reached in his report.
In the defense attorney's opposition to the State's motion, he echoed four of Dr. Yuille's primary criticisms of the way that Investigator Howell handled the interviews. The defense attorney argued that Howell had undermined the reliability of the interviews by: (1) asking leading questions; (2) asking multiple-choice questions or compound questions; (3) asking questions which suggested that Howell already believed the accusations against Augustine, and that she was looking for answers that would support those accusations; and (4) allowing the girls to distract themselves by drawing pictures throughout the interviews.
In addition, the defense attorney argued that the girls' statements had been influenced by their mother's pre-interview actions and conversations, which he characterized as both "inflammatory" and "suggestive".
Based on all of the above, the defense attorney argued that the State had failed to satisfy the criteria for admissibility specified in Evidence Rule 801(d)(3). In particular, the defense attorney contended that the interviews failed to satisfy subsection (d)(3)(F), which requires the State to prove that "the taking of the statement as a whole was conducted in a manner that would avoid undue influence [on] the victim".
But over the defense attorney's objections, the trial judge ruled that the recorded statements of the two children met the requirements of Evidence Rule 801(d)(3), and that those out-of-court statements were therefore admissible.
The judge made no findings on the factual contentions raised by the defense attorney, or on the criticisms raised in Dr. Yuille's report. Instead, the judge simply recited all of the defense attorney's concerns, and then the judge declared:
All of the issues raised by the defense go to the weight to be given the evidence[, ] and [those issues] can be addressed through cross-examination or by otherwise impeaching the [out-of-court] statements. The defense can cross-examine the children's mother regarding [the] statements she made to the children [before the interviews]. The defense can cross-examine the children. The defense can also cross-examine Investigator Howell regarding [the] methods [she] used in the interviews.
The judge then stated, without further elaboration, that he was granting the State's motion to admit the four interviews under Evidence Rule 801(d)(3).
A trial judge’s duty under Evidence Rule 801(d)(3)
In a jury trial, it is the jury's task to determine the ultimate weight or credibility of the evidence presented. But if there is a controversy as to whether particular evidence is admissible, it is the trial judge who must resolve that controversy. 
This same division of authority applies even in instances where the admissibility of particular evidence hinges on a foundational showing that the evidence is reliable or trustworthy.
For instance, in cases that depend on eyewitness identification, if the defendant objects that the identification procedure was unduly suggestive, the State must establish that the witness's identification is reliable.  Or in cases where the defendant wishes to introduce someone else's out-of-court confession to the crime, the defendant must establish that "corroborating circumstances clearly indicate the trustworthiness of the [other person's] statement." 
In such instances, both the judge and the jury will be assessing the reliability or trustworthiness of the evidence. The judge performs this analysis first, when the judge decides whether the evidence is admissible at all. If the judge rules that the evidence is admissible, the party who opposed the admission of the evidence is still free to argue to the jury that the evidence is unreliable or not credible.
These same principles apply when the State invokes Evidence Rule 801(d)(3) as a means of introducing evidence of a child's ...