Competency and Taint Hearings

What is Taint?

Young children are naive, suggestible and eager to please. When a parent, teacher, police officer or social worker asks leading questions, children understand that certain answers will please the questioner, and they comply. Therefore, inappropriately conducted interviews by social services, law enforcement and even family members can “taint” the memory and/or understanding of child witnesses in regard to the events in question.

LEADING, SUGGESTIVE AND REPEATED QUESTIONING

When a claim of child sexual abuse is made, police will often schedule an interview with a social service agency, where “forensic child interviewers” will conduct an in-depth interview with the alleged child victim. Unfortunately, by the time this interview takes place, the child has often already been subjected to multiple, possibly suggestive interviews by family members.

It’s understandable that parents want to question their child, but without conducting such an interview appropriately, parents often ask questions that are not open-ended. Instead, such questions are often inadvertently leading and suggestive in nature, such as “did he touch you on your pee pee?,” when in fact the child never disclosed where he or she had been touched.

Children do not like to disagree with their parents, and often their answers are given to satisfy what the child believes their parents want to hear based upon the way the question was asked. Therefore, the child may have already developed an inaccurate understanding of what exactly took place prior to being interviewed by a social service agency.

Additionally, when children are taken to speak with authority figures such as police or child protective services, the same principles apply. These are overwhelming and confusing situations for children and any or all inappropriate interviewing techniques can distort and persuade a child’s recollection and belief of what actually happened. A significant phenomenon that we have witnessed numerous times while watching such interviews is ‘repeated questioning’. If a child gives an answer that he or she believes to be true, but it is not what the interviewer wants or expects to hear, the child is asked the same or similar question repeatedly throughout the interview. When this occurs, the child begins to believe that his or her answer is displeasing to the interviewer, and becomes vulnerable to changing it.

What is a Taint Hearing?

It is imperative that these interviews are audio and video recorded, so that that any inappropriate methods used during the interview can be analyzed by the defense attorney and possibly an expert witness. Unfortunately, such interviews are often conducted even before the defendant is aware of the allegations, so he or she cannot request the interviews be recorded.

In 1994, the New Jersey Supreme Court decided State v. Michaels.

That opinion established a procedure permitting defense attorneys to request a pretrial “taint” hearing to challenge the children’s investigative interviews. The taint hearing has since spread to other states. However, it has not yet been accepted in all states.

Tom routinely requests a taint hearing to challenge the reliability of evidence obtained in suggestive or coercive interviews with children. He fights to persuade trial judges that information obtained in these interviews is tainted and, therefore, inadmissible in court. He and Attorney Mark Mack prevailed before the Pennsylvania Supreme Court on a child abuse conviction involving issues of competency and taint as matters of first impression. See Com. v. Delbridge, 885 A.2d 27 (Pa.2003).

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Requesting and properly conducting a pre-trial taint hearing can be a powerful part of one’s defense. If taint is a true factor in a case, and a judge believes that the child’s recollections and beliefs have been tainted and therefore are unreliable, criminal charges may be terminated.

To discuss your case, call us at (800) 993-0632 or securely email us for a free, confidential legal consultation. Acting promptly and aggressively is the key to protecting your freedom and ultimate well being. We’re here for you 24 hours a day.