UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SCOTT WILLIAM MOSES,
Defendant-Appellant.
Nos. 95-1827; 96-1789
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
137 F.3d 894; 1998 U.S. App. LEXIS 3020; 1998 FED App. 0068P (6th
Cir.); 49 Fed. R. Evid. Serv. (Callaghan) 163
September 15, 1997, Argued
February 26, 1998, Decided
February 26, 1998, Filed
SUBSEQUENT HISTORY: [**1] As Corrected May 28, 1998.
PRIOR HISTORY: Appeal from the United States District Court for the Eastern
District of Michigan at Bay City. No.
94-20073. Robert H. Cleland, District Judge.
DISPOSITION: Defendant's conviction REVERSED and REMANDED.
COUNSEL: ARGUED: Robert J. Dunn, Midland, Michigan, for Appellant.
ARGUED: Jennifer J. Peregord, OFFICE OF THE U.S. ATTORNEY, Detroit, Michigan,
for Appellee.
ON BRIEF: Robert J. Dunn, Midland, Michigan, for Appellant.
ON BRIEF: Jennifer J. Peregord, OFFICE OF THE U.S. ATTORNEY, Detroit,
Michigan, for Appellee.
JUDGES: Before: RYAN, SUHRHEINRICH, and COLE, Circuit Judges. SUHRHEINRICH,
J., delivered the opinion of the
court, in which COLE, J., joined. RYAN, J. (pp. 16-23), delivered a separate
concurring opinion.
OPINIONBY: SUHRHEINRICH
OPINION: [***2]
[*896] SUHRHEINRICH, Circuit Judge. Defendant appeals his jury conviction
and sentence for abusive sexual contact and the denial of his motion
for a new trial. Defendant claims among other things that the district
court erred by denying his Sixth Amendment right to confrontation when
it allowed a child witness to testify by closedcircuit television. We
hold that the district court failed to comply with the requirements of
the Child Victim's and [**2] Child Witnesses' Rights Act (the "Act"),
18 U.S.C.A. § 3509(b)(1)(B) (West Supp. 1997), when it allowed a
child witness to testify by closed-circuit television, and in so doing
violated the Defendant's Sixth Amendment rights to confrontation. We,
therefore, REVERSE. n1, n2
I.
Defendant was convicted of sexually abusing his infant niece. In December
1993, Defendant Scott Moses, a Chippewa Indian, babysat his two nieces,
Amber Teachworth, then two-and-a-half years old, and Elizabeth Teachworth,
then four-years old, at a location in the Saginaw Chippewa Reservation.
According to police testimony, Defendant had been drinking and when Defendant
changed Amber's diaper [***3] in a bedroom, he became sexually aroused
and rubbed his genitals on Amber's thigh and stomach and inserted his
penis in her mouth. [**3] According to Elizabeth's testimony, she walked
by the room and witnessed Defendant abusing Amber. Elizabeth later reported
the incident to Lisa Bollman, a social worker for the Child Protective
Services of the Saginaw Chippewa Indian Tribe, who contacted the police.
According to police testimony, Defendant provided a confession.
Defendant was indicted on one count of aggravated sexual abuse of a minor
child in violation of 28 U.S.C.A. §
2241(c) (West Supp. 1997). Before trial, the Government moved to determine
Elizabeth's competency and to present her testimony on closed-circuit
television as permitted under 18 U.S.C.A. § 3509 (West Supp. 1997).
Under§ 3509(b)(1)(B), a child witness is permitted to testify by
closed-circuit television if the child is fearful, would be traumatized
by testifying in the presence of a defendant, is mentally impaired, or
would be unable to testify because of the defendant's or defense counsel's
conduct. The district court examined Elizabeth and received testimony
from Lisa Bollman and Deborah Juterbock, defense counsel's investigative
assistant, and found that Elizabeth was fearful and would be traumatized
by testifying. The court concluded that § [**4] 3509 was satisfied
and ordered that Elizabeth be permitted to testify by closed-circuit
television.
At trial, defense counsel argued that Elizabeth was either mistaken,
confused, fantasizing, or had been coached by either her mother or Bollman.
Counsel also argued that the [*897] real perpetrator was Garland Moses,
Amber's grandfather and Defendant's father, or Amber's mother's boyfriend,
Scott Morris. Alternatively, counsel argued that Defendant was either
so mentally impaired or drunk that he was not capable of forming sufficient
intent for criminal liability. Defendant did not testify at trial.
The district court instructed the jury on the original charge of aggravated
sexual abuse of a minor child under 28 U.S.C.A. § 2241(c) and also
a lesser offense of abusive sexual contact under 18 U.S.C.A. § 2244(a)(1)
(West Supp. 1997) [***4]
The jury convicted Defendant of the lesser offense. At sentencing, the
district court accepted the finding in the presentence report that Defendant
had penetrated Amber and sentenced Defendant to the statutory maximum
of 10 years.
Defendant moved for a new trial based on newly discovered evidence, namely
that Amy Richardson, a former sitter for Amber [**5] and Elizabeth, had
reported to the tribal Child Protective Services in the Spring of 1994
that Garland Moses possibly had sexually abused Amber. The prosecutor's
office never disclosed the report to Defendant, even though the tribal
police had custody of it. Defendant also submitted an affidavit by one
of the girls' neighbors that Amber had stated that Defendant did not
abuse her and that Elizabeth repeatedly had stated that she lied about
Defendant at Bollman's urging. The district court denied Defendant's
motion because it was highly suspicious of Elizabeth's recantation, and
it concluded that the newly proposed evidence could have been discovered
earlier. Defendant now purportedly proffers an affidavit of Alfreda Moses
as well, which asserts that Garland Moses admitted that his son Scott
is in prison for something that he, Garland, had done.
II.
Defendant argues that the district court's determination that the requirements
of § 3509(b)(1)(B) were satisfied was erroneous. The Sixth Amendment
provides, in relevant part, that "in all criminal prosecutions,
the accused shall enjoy the right to . . . be confronted with the witnesses
against him." A tension arises, however, when [**6] the witness
is a child who is subject to the trauma of testifying in the defendant's
presence. In Maryland v. Craig, 497 U.S. 836, 849, 111 L. Ed. 2d 666,
110 S. Ct. 3157 (1990), the Court balanced these two conflicting interests,
noting that "'the Confrontation Clause reflects a preference for
face-to-face confrontation at trial,' . . . a preference that 'must occasionally
give way to considerations of public policy and the necessities of the
case.'" Id. at 849 (citations omitted). When the witness is a child,
the Court explained, "the state's interest in protecting child witnesses
from the trauma of testifying" is [***5] sufficiently important
to justify procedures that depart from face-to-face confrontation with
the defendant. Id. at 855.
The Craig Court approved the use of closed circuit television for child
witnesses upon an adequate and case-specific showing of necessity. Id.
The Court stated that the trial court must "hear evidence and determine
whether use of the one-way closed- circuit television procedure is necessary
to protect the welfare of the particular child witness who seeks to testify." Id.
In addition, the trial court must find "that [**7] the child witness
would be traumatized, not by the courtroom generally, but by the presence
of the defendant." Id. at 856. The trial court must find that the
level of emotional distress suffered by the child witness as a result
of testifying in the defendant's presence "is more than de minimus,
i.e., more than 'mere nervousness or excitement or some reluctance to
testify.'" Id. (citation omitted). However, the Court in Craig did
not decide the minimum showing of emotional trauma necessary for the
use of closed-circuit television. Rather, the Court concluded that the
statute at issue, "which required a determination that the child
witness would suffer 'serious emotional distress such that the child
cannot reasonably communicate,' Md. Code Ann. Cts. and Jud. Proc. § 9-102(a)(1)(ii)(1989),
clearly suffices to meet constitutional standards." Craig, 497 U.S.
at 856.
In direct response to Craig, Congress passed the Child Victims' and Child
Witnesses' Rights Act, 18 U.S.C.A. § 3509, [*898] which sets forth
the conditions under which a child may testify by closed-circuit television.
The Act states, in pertinent part:
(B) The court may order that the testimony of the child [**8] be taken
by closed-circuit television ... if the court finds that the child is
unable to testify in open court in the presence of the defendant, for
any of the following reasons:
-
The child is unable to testify because of fear. [***6]
-
There is a substantial likelihood, established by expert testimony,
that the child would suffer emotional trauma from testifying.
-
The child suffers a mental or other infirmity.
-
Conduct by defendant or defense counsel causes the child to be unable
to continue testifying. 18 U.S.C.A. § 3509(b)(1)(B). n3 Section
3509(b)(1)(C) requires the court to support its "ruling
on the child's inability to testify with findings on the record."
The courts of appeals have reviewed § 3509(b)(1)(B)(i) in light
of the principles articulated in Craig. These cases consistently hold
that § 3509(b)(1)(B)(i) requires a case-specific finding that a
child witness would suffer substantial [**9] fear or trauma and be unable
to testify or communicate reasonably because of the physical presence
of the defendant. The cases hold that a general fear of the courtroom
is insufficient. See United States v. Rouse, 111 F.3d 561, 568 (8th Cir.
1997); United States v. Quintero, 21 F.3d 885, 892 (9th Cir. 1994); United
States v. Carrier, 9 F.3d 867. 870-71 (10th Cir. 1993); United States
v. Garcia, 7 F.3d 885, 887 (9th Cir. 1993); and United States v. Farley,
992 F.2d 1122, 1125 (10th Cir.1993).
A.
In the present case, the district court found, after the pretrial hearing,
that there was a "reasonable apprehension"
that Elizabeth "may be unable" to testify because of fear of
being in the courtroom and because of fear of Defendant. (J.A. at 382.)
The district court also found, based on Bollman's testimony, a substantial
likelihood that Elizabeth"would suffer emotional trauma from testifying" and
that it would [***7] "likely impair the child's ability to communicate." (J.A.
at 385.)
This Court reviews these factual findings for clear error. Hernandez
v. New York, 500 U.S. 352, 364, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991).
A finding of fact is "'clearly [**10] erroneous' when, although
there is evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been
committed." United States v. United States Gypsum Co., 333 U.S.
364, 395, 92 L. Ed. 746, 68 S. Ct. 525 (1948); Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 573, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985);
Bartling v. Fruehauf Corp., 29 F.3d 1062, 1067 (6th Cir. 1994).
After reviewing the record, we are left with a "definite and firm
conviction" that the district court mistakenly permitted Elizabeth
to testify by closed-circuit television. First, Elizabeth's own testimony
disavowed any fear of Defendant. When the district court interviewed
Elizabeth before hearing the Government's motion, Elizabeth stated that
she did not want to see Defendant because he did a "bad thing to
my sister." However, Elizabeth also stated that she was not afraid
of him. (J.A. at 362, 364-365). Elizabeth clearly distinguished between
fear of Defendant or"Uncle Chappie," as she undisputedly referred
to him, and not wanting to see Defendant, as the following colloquy illustrates:
THE COURT: All right. Now did anybody, [**11] Elizabeth, did anybody
tell you that you had to be afraid of your Uncle Chap?
A: Nope, I'm not afraid of him.
THE COURT: You're not?
A: Nope, nope, nope, nope, nope.
THE COURT: do you want to see him again:
A: (Shakes head.) [***8]
THE COURT: Tell me why not. Can you tell me why not?
[*899] A: Because he done a bad thing to my sister.
(J.A. at 364-65.)
The district court then paradoxically accepted Elizabeth's statements
that she did not want to see Defendant, but ignored her emphatic assertion
that she was not afraid of him. The district court explained:
So the reaction, the observed reaction, of the child here in my private
office is of some interest but it is not a particularly weighty thing
in my judgment. Nor is it a weighty matter that she professes no
particular fear of Uncle Chap.
The things she said that I think are most important in that regard
are that she does not want to see him again, and my belief is that
she was quite emphatic when she said that.
She said it a couple times and I asked her about, if I'm correct
-- if I was right when I heard her say that -- and she, I think,
was enthusiastic almost in her agreement with that principle. I asked
her [**12] something about why, and she said because he had done
a bad thing.
I didn't try to probe that any more than that. But it seemed to me
clear that was her reason for having that, or at least stating that,
desire not to see him again.
(J.A. at 377-78.) The district court seized upon the portion of Elizabeth's
testimony in which she stated that she did not want to see Defendant
again, and it completely disregarded Elizabeth's unequivocal assurances
that she was"not afraid of him." (J.A. at 364.) Despite the
Sixth Amendment's guarantee of the right to confrontation, the district
court concluded that Elizabeth's unambiguous declaration was not a "weighty
matter." (J.A. at 377.) This was clear error. [***9]
B.
We are not convinced that Bollman was a proper expert to establish the
substantial likelihood of Elizabeth's trauma from testifying in open
court in the presence of Defendant. Expert testimony is admissible if
made by (1) a qualified expert, (2) testifying on a proper subject, (3)
in conformity to a generally accepted explanatory theory, and (4) its
probative value outweighs its prejudicial effect. United States v. Kozminski,
821 F.2d 1186, 1194-95 (6th [**13] Cir. 1987); United States v. Green,
548 F.2d 1261, 1268 (6th Cir.1977). A witness may qualify as an expert
by knowledge, skill, experience, training, or education. Fed. R. Evid.
702. The qualification of a witness to testify is a preliminary question
of law. Fed. R. Evid. 104(a).
Subsection (b)(1)(B)(II) of the Act requires expert testimony to establish
trauma. Where a statute does not define a term, it receives its common
meaning. Henry T. Patterson Trust. v. United States, 729 F.2d 1089, 1094
(6th Cir. 1984). The Act does not define "expert" or "trauma." For
their common meanings, we turn to The American Heritage Dictionary of
the English Language (3d ed. 1992). It defines "expert" as
a "person with a high degree of skill in or knowledge of a certain
subject." Id. at 645. It defines "trauma" as a psychiatric
term of art meaning an "emotional wound or shock that creates substantial,
lasting damage to the psychological development of a person, often leading
to neurosis." 729 F.2d at 1094. Presumably, the expertise of a psychiatrist,
psychologist, or other children's mental health specialist is required.
Case law generally supports this approach. See United States v. Weekley,
130 F.3d 747, [**14] 1997 WL 735431 at *6 (6th Cir. 1997) (prosecution
used a psychologist with a doctorate to show the substantial likelihood
that the child witness would suffer emotional trauma); Farley, 992 F.2d
at 1124 (prosecution also used psychologist with doctorate to establish
trauma on child witness); Garcia, 7 F.3d at 886-87 (prosecution used
both a "children's mental health specialist" and a psychiatrist);
Carrier, 9 F.3d at 867 (prosecution used a "licensed child counselor).
[***10]
The district court cautiously qualified Bollman as an expert on the basis
of her experience and training, without recognizing any special skill
or knowledge relating to trauma. The district court stated: The testimony
of Ms. Bollman is from a person who has had a reasonable degree of experience
in dealing with children. I would say that her experience in dealing
with sexually abused children is not overwhelming. [*900] She has, however,
had a fair amount of seminar training over the past several years concerning
just this kind of matter, interrogation techniques and the like. So I
think that her degree of experience is sufficient to reasonably call
her experienced in her field [**15] and sufficient to provide opinion
evidence in that way.
(J.A. at 379.)
As the district court noted, the record reflects that Bollman is an experienced
social worker, who has worked with abused children and attended seminars
on child abuse and related investigatory and interviewing techniques.
However, the record simply does not reflect that Bollman has any "special
skill or knowledge" generally relating to trauma. In addition, we
note that despite all of her work with abused children, Bolllman has
gone to court only twice, and only one case involved child sexual abuse.
(J.A. at 338-39.)
Moreover, the record does not reflect whether Bollman was an officially
certified social worker. For example, the State of Michigan, in which
the Saginaw Chippewa Indian reservation is located, registers and regulates
three classifications of social service providers: a social work technician,
a social worker, and a certified social worker. See Mich. Comp. Laws
Ann. §§ 339.1603-.1606 (West 1992). Michigan also defines social
work as:
the professional activity of helping an individual, group, or
community enhance or restore its capacity for social functioning and
creating a societal [**16] condition favorable to this goal. Social work
practice consists of the [***11] professional application of social work
values, principles, and techniques to helping a person obtain a tangible
service; counseling an individual, family, or group; helping a community
or group provide or improve social and health services; and participating
in a relevant legislative process.
Mich. Comp. Laws Ann. § 339.1601(b). This statutory definition of
social work does not require, or even contemplate, any expertise relating
to trauma. The Act, on the other hand, anticipates the use of psychologists
and psychiatrists by providing for a "multidisciplinary child abuse
team," 18 U.S.C.A. § 3509(a)(7), to render:
D) psychological and psychiatric diagnoses and evaluation services
for the child, parent or parents, guardian or guardians, or other
caregivers, or any other individual involved in a child victim or
child witness case;
E) expert medical, psychological, and related professional testimony.
18 U.S.C.A. § 3509(g)(2). Thus, while Bollman may be an expert in
social work, we do not find evidence in the record that she qualifies
as an expert for purposes of rendering a psychological [**17] or psychiatric
opinion under §
3509(b)(1)(B)(ii).
In addition, Bollman's testimony only marginally supports the district
court's conclusion that Elizabeth would be unable to testify because
of her fear of Defendant. Bollman opined that Elizabeth was afraid to
testify in court. However, Bollman did not testify that Elizabeth had
a particularized fear of Defendant, which the Act requires. Rather, Bollman
explained that:
For a five year old adults are a power figure. They -- she has
no control in her life, adults feed her, clothe her, teach her. And with
a family member, Scott who she was close to, and the feeling within the
family now, it [***12] would be very emotionally traumatizing. She would
be very vulnerable, I don't believe she could testify.
(J.A. at 341.)
The district court asked Bollman for details to support her conclusion
that Elizabeth would suffer emotional trauma. Bollman explained that
Elizabeth was close to her family, which was now divided, that Elizabeth
experienced guilt feelings because she loved her Uncle Chappie but realized
that she had to stop him from abusing her sister, and realized that her
testimony would put Defendant in jail. (J.A. at 349-53.) [**18] However,
we are unpersuaded, on the basis of this record, that Bollman was qualified
to render an expert opinion on trauma or that Elizabeth would be unable
to testify or reasonably communicate in Defendant's presence because
of emotional trauma.
[*901] III.
We now consider the possibility of harmless error. In Chapman v. California,
386 U.S. 18, 17 L. Ed. 2d 705, 87 S.
Ct. 824 (1967), the Supreme Court articulated the harmless error rule
for claims of constitutional error. The Court
held that "before a federal constitutional error can be held harmless,
the court must be able to declare a belief that
it was harmless beyond a reasonable doubt." Id. at 24. In Delaware
v. Van Arsdall, 475 U.S. 673, 684, 89 L. Ed. 2d
674, 106 S. Ct. 1431 (1986), the Court determined that harmless error
analysis applied to Confrontation Clause
violations. The Court stated:
Whether such an error is harmless in a particular case depends
upon a host of factors, all readily accessible to reviewing courts. These
factors include the importance of the witness' testimony in the prosecution's
case, whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting [**19] the testimony of the witness
on material points, the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution's case.
[***13]
Id. The Court further reasoned that "the correct inquiry is whether,
assuming that the damaging potential of the cross-examination were fully
realized, a reviewing court might nonetheless say that the error was
harmless beyond a reasonable doubt." Id. at 684.
In Coy v. Iowa, 487 U.S. 1012, 101 L. Ed. 2d 857, 108 S. Ct. 2798 (1988),
a child sexual-abuse case decided before Craig, the Court held that the
presence of a screen between the defendant and the child witness violated
the Confrontation Clause, because it precluded face-to-face confrontation.
In applying a harmless error analysis, the Court wrote:
We have recognized that other types of violations of the Confrontation
Clause are subject to that harmless-error analysis . . . and see no reason
why denial of face-to-face confrontation should not be treated the same.
An assessment of harmlessness cannot include consideration of whether
the witness' testimony would have been unchanged, or the jury's assessment
unaltered, had there [**20] been confrontation; such an inquiry would
obviously involve pure speculation, and harmlessness must
therefore be determined on the basis of the remaining evidence.
Coy, 487 U.S. at 1021-22 (citation omitted).
In the present case, considering the "damaging potential" as "fully
realized," as the Court directed in Van Arsdall, 475 U.S. at 684,
we cannot say that the error was "harmless beyond a reasonable doubt." Id.
In Van Ardsall, the Court held that "a criminal defendant states
a violation of the Confrontation Clause by showing that he was prohibited
from engaging in otherwise appropriate cross-examination . . . from which
jurors . . . could appropriately draw inferences relating to the reliability
of the witness." Id. at 680. Similarly, in the present case, if
Defendant had been present during Elizabeth's testimony, the jury could
have assessed Elizabeth's reliability when confronting the accused face-to-face.
As it was, even without confronting the Defendant face-to-face, Elizabeth
stated that someone, other than "Scott," abused Amber: [***14]
Q (by the prosecutor) Okay, Elizabeth, we're ready to ask you some more
questions, all right? Can you [**21] turn around in your chair and face
this way, please. Before we just took the last break, we were asking
you some questions about your Uncle Scott and some things that had happened.
A: My grama -- Scott didn't do it.
Mr. DUNN (defense counsel): What was that?
Q: What did you say, Elizabeth?
A: I said my daddy -- my grama -- I mean Scott didn't do it.
Q: Okay.
Mr. DUNN: Scott didn't do it?
A: I was just --
Q: We were asking you some questions about your Uncle Scott, okay?
A: Yeah.
[*902] Q: You told us something that you said you saw happen, okay,
do you remember that?
A: Yeah.
(J.A. at 101.) Given that Elizabeth's testimony was so equivocal, the
need for confrontation was critical.
We cannot say under Coy that the error was harmless based on the remaining
evidence in the record. Elizabeth provided the only eye-witness testimony
of the alleged oral penetration. Without her testimony, the case rests
on Defendant's confession. We have reviewed the confession, and we question
its reliability. We question Defendant's competence to make and understand
the nature of a confession. [***15]
Specifically, we note Defendant's extremely low intelligence and self-esteem,
his [**22] chronic alcoholism, and his cultural inability to deal with
authority, confrontation, and stress. (J.A. at 185-254.)
Accordingly, we find that Defendant was denied his Sixth Amendment right
to a face-to-face confrontation when the district court permitted Elizabeth
to testify by close-circuit television without complying with § 3509.
Further, we simply cannot say that "the error was harmless beyond
a reasonable doubt." Van Arsdall, 475 U.S. at 684. We, therefore,
REVERSE Defendant's conviction and REMAND for a new trial.
CONCURBY: RYAN
CONCUR: [***16]
RYAN, Circuit Judge, concurring.
I concur in my brother's opinion that allowing Elizabeth Teachworth to
testify by closed-circuit television violated the defendant's Sixth Amendment
right to confrontation, and adopt without hesitation his analysis of
this constitutional error. I write separately simply to explain my own
views as to why the error was not so harmless as to be ignored and why
we must therefore reverse.
I.
A.
There is no question that when a defendant is wrongly denied his Sixth
Amendment right to "a face-to-face meeting with witnesses appearing
before the trier of fact," Coy v. Iowa, 487 U.S. [**23] 1012, 1016,
101 L. Ed. 2d 857, 108 S. Ct. 2798 (1988), he has not been denied one
of the small handful of "constitutional rights so basic to a fair
trial that their infraction can never be treated as harmless error," Chapman
v. California, 386 U.S. 18, 23, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967);
see Coy, 487 U.S. at 1021. Nonetheless, before a violation of the Confrontation
Clause, or any other "federal constitutional error[,] can be held
harmless, the [reviewing] court must be able to declare a belief that
it was harmless beyond a reasonable doubt." Chapman, 386 U.S. at
24. I find it noteworthy that here, the government has not even addressed
the issue of harmlessness, even though, as "the beneficiary of the
error," it bears a burden "either to prove that there was no
injury or to suffer a reversal of [the] erroneously obtained judgment." Id.
at 24.
Implicit in the Court's decision in Coy is a recognition that applying
the harmless-error standard in a denial-of confrontation situation presents
something of a conundrum. The foundation of the confrontation guarantee
is [***17] the perception that confrontation is essential to fairness
. . . . A witness [**24] "may feel quite differently when he has
to repeat his story looking at the man whom he will harm greatly by distorting
or mistaking the facts. He can now understand what sort of human being
that man is." It is always more difficult to tell a lie about a
person "to his face" than "behind his back." . .
. Even if the lie is told, it will often be told less convincingly. .
. . The State can hardly gainsay the profound effect upon a witness of
standing in the presence of the person the witness accuses, since that
is the very phenomenon it relies upon to establish the potential "trauma" that
allegedly justified the extraordinary procedure in the present case.
That face-to-face presence may, unfortunately, upset the truthful rape
victim or abused child; but by the same token it may confound and undo
the false accuser, or reveal the child coached by a malevolent adult.
[*903] Coy, 487 U.S. at 1019-20 (citation omitted). In other words, the
postulate is that in the absence of confrontation, a witness's story
may very well be substantively different, or perhaps simply less convincing,
than if the witness must face the accused--and that the differences wrought
by the absence of confrontation will [**25] be detrimental to the accused.
And yet, despite this rationale, a court undertaking "an assessment
of harmlessness cannot include consideration of whether the witness'
testimony would have been unchanged, or the jury's assessment unaltered,
had there been confrontation," because "such an inquiry would
obviously involve pure speculation." Id. at 1021-22. Therefore, "harmlessness
must . . . be determined on the basis of the remaining evidence." Id.
at 1022.
B.
1.
Turning, then, to the evidence against Moses that remains after one puts
to the side the testimony of Elizabeth Teachworth, as indeed we must
for the reasons so well [***18] explained by Judge Suhrheinrich, I find
that evidence to be of negligible quality and quantity. Apart from Teachworth's
testimony, the only inculpatory evidence offered by the government was
the testimony of officers from two different law enforcement agencies
regarding Moses' oral admissions of culpability, and Moses's written
confession.
To summarize that evidence, early in the day of June 30, 1994, Moses
was questioned by tribal police; this was the second time they had questioned
him, as on the first occasion he had denied any wrongdoing. [**26] On
this occasion, however, he allegedly stated that he had taken Amber into
the bedroom to change her diaper and "wipe her down," and that
in the course of doing this, he got "on the bed and in a kneeling
position over Amber and . . . rubbed his penis on the inside of Amber's
thigh and on Amber's abdomen." He also allegedly told the tribal
police that "he put the head of his thing into Amber's mouth." The
Michigan State Police then questioned Moses; according to Officer Simpson,
one of the interrogators, Moses initially denied touching Amber, but
then "began making admissions." Specifically, according to
Simpson, Moses eventually told [Simpson that] he took Amber into his
girlfriend's bedroom, he removed Amber's diaper, he unzipped his pants,
exposed his erect penis, rubbed it on her privates, her stomach, her
mouth.
He told [Simpson] that he put his penis in Amber's mouth.
[Simpson] asked him how far, and he did a distance of . . . approximately
an inch. Then he put his fingers in the
mouth, said this much. . . .
[Simpson] asked him how long this incident occurred, he said about five
to six minutes, until Elizabeth . . . came into the room where this was
occurring and made [**27] the statement: What are you doing with my sister.
[***19] Mr. Moses told [Simpson] that he just put his pants back on and
went back out in the living room.
When asked by Simpson, Moses wrote and signed a confession that read
as follows:
Me and Abmer was in The Bed room I had my Thing on Abmer & thing
Eleabuth came in The room Thing we Quit and went in the Live room & my
girlfriend came home.
Simpson testified that he asked some questions to clarify this statement;
underneath Moses's writing is the following, written by Simpson:
Q - Is your thing your penis?
A - Yes.
Q - Did you put your penis in her mouth?
A - Yes.
Q - Did you rub your penis on Amber's leg, chest and mouth?
A - Yes.
2.
The majority concludes that the admission of Teachworth's testimony was
not harmless in this context because it "question[s the] reliability" of
the confessions--a conclusion it reaches based on certain social-science
testimony presented by the defendant, to the [*904] effect that Native
Americans are, as a group, unable "to deal with authority, confrontation,
and stress." (Maj. op. at p. 15.) I find the majority's conclusion
troubling. Concededly, the confession evidence is [**28] weak; Moses's
written confession is ambiguous at best, and only minimally consistent
with the testimony regarding his oral confession. I note, however, that
Moses did not challenge the [***20] admissibility of either the oral
or written confession in the district court, and makes no such challenge
in this appeal. It seems to me, therefore, inappropriate for this court
to pass on the reliability of the confessions.
And it is unnecessary for the court to do so. The government's evidence,
once the unconstitutionally admitted testimony is set aside, was so insubstantial
as to foreclose the conclusion that the constitutional error was harmless,
beyond a reasonable doubt. As I have said, apart from Teachworth's testimony,
the only evidence the government introduced tending to show that Moses
committed the crime charged was his own confession. But it has been indisputably
established, in a long line of Supreme Court and Sixth Circuit cases,
that a defendant's confession, uncorroborated and standing alone, is
not an adequate foundation for conviction. In Wong Sun v. United States,
371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963), for example, the
Court discussed the "line of [**29] . . . decisions [that] establishes
that criminal confessions and admissions of guilt require extrinsic corroboration." Id.
at 488.
It is a settled principle of the administration of criminal justice in
the federal courts that a conviction must rest upon firmer ground than
the uncorroborated admission or confession of the accused. . . . The
requirement of corroboration is rooted in "a long history of judicial
experience with confessions and in the realization that sound law enforcement
requires police investigations which extend beyond the
words of the accused."
Id. at 488-89 (footnote and citation omitted). The reason underlying
the principle is akin to the Fourth
Amendment exclusionary rule:
"In our country the doubt persists that the zeal of the
agencies of prosecution to protect the peace, the self-interest of the
accomplice, the maliciousness of an enemy or the aberration or weakness
of the accused under the strain of suspicion may tinge or warp the facts
of the confession. Admissions, retold at a trial, are much like hearsay,
that is, statements not made at the pending trial. [***21] They had neither
the compulsion of the oath nor the test of cross-examination."
[**30]
Id. at 489 (citation omitted). The rule is, nevertheless, distinct from
the wholesale disallowance of
involuntary confessions:
Although separate doctrines exclude involuntary confessions from
consideration by the jury, further caution is warranted because the accused
may be unable to establish the involuntary nature of his statements.
Moreover, though a statement may not be "involuntary" within
the meaning of this exclusionary rule, still its reliability may be suspect
if it is extracted from one who is under the pressure of a police investigation--whose
words may reflect the strain and confusion attending his predicament
rather than a clear reflection of his past.
Smith v. United States, 348 U.S. 147, 153, 99 L. Ed. 192, 75 S. Ct. 194
(1954) (citations omitted).
Corroboration of a confession through extrinsic evidence that either "'fortifies
the truth of the confession'" or "'independently establishes
the crime charged'"--in older parlance, the corpus delicti--is therefore
required before a conviction may be validly obtained. Wong Sun, 371 U.S.
at 489 (citation omitted). See generally Smith, 348 U.S. 147, 99 L. Ed.
192, 75 S. Ct. 194; Opper [**31] v. United States, 348 U.S. 84, 99 L.
Ed. 101, 75 S. Ct. 158 (1954); United States v. Marshall, 863 F.2d 1285
(6th Cir. 1988). Both varieties of corroborative evidence are lacking
here.
To be sure, there is one item of evidence that could conceivably be viewed
as corroborative. That is the testimony of Lisa Bollman, the social worker
who interviewed Elizabeth Teachworth regarding the suspected abuse of
Amber Teachworth. However, the government did not call Bollman as a witness;
[*905] strangely enough, Moses did. And it was Moses's counsel who elicited
the following hearsay testimony:
Q You asked Elizabeth what happened, Elizabeth said to you Uncle
Scott showed his dingding;
is that right? [***22]
A Correct.
Q You then asked Elizabeth who she--who he showed his ding-ding to
and Elizabeth stated
my sister.
A Correct.
Q At one point Elizabeth put her hand on her throat when you asked
where Uncle Scott put
his ding-ding; is that correct?
A Correct.
This testimony appears to me to be inadmissible hearsay, not subject
to any exception. For obvious reasons, its admission was not objected
to by the government. And similar testimony, to which the defendant in
turn did not [**32] object, was elicited by the government in its cross-examination.
But even if Bollman's testimony were sufficiently corroborative to support
the conviction--and concededly, the hurdle is low--that does not mean
that the introduction of Elizabeth Teachworth's testimony was harmless.
That is, even if the government presented sufficient evidence independent
of Elizabeth's unconstitutional testimony to uphold Moses's conviction
under the "any rational trier of fact"
standard imposed by Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed.
2d 560, 99 S. Ct. 2781 (1979), there can be no serious question that
the evidence was no more than barely sufficient. I find it highly probable,
in short, that Teachworth's dramatic, damaging, and unconfronted testimony
tipped the scales in favor of a conviction. Accordingly, it is plain
to me that the constitutional error in admitting the child's testimony
was not harmless beyond a reasonable doubt.
II.
To recapitulate then, there were three pieces of evidence in this trial
that tended to show that Moses committed the crime with which he was
charged: the unconstitutionally admitted [***23] testimony of Elizabeth
Teachworth; the inadmissible, [**33] but not objected to, hearsay testimony
regarding Teachworth's incriminating statements to Bollman; and the defendant's
confession. Without expressing an opinion as to the sufficiency of the
evidence to convict Moses, since that is not an issue before us, I am
compelled to conclude that in the context of such an otherwise-insubstantial
case for the prosecution, the admission of Teachworth's testimony was
not harmless beyond a reasonable doubt. I concur, therefore, in the judgment
reversing Moses's conviction.
n1 We express no opinion on Defendant's other
claims of error.
n2 We acknowledge the concurring opinion, and
accept its reasoning as additional support for reversing the district
court's judgment
n3 Subsections (iii) and (iv) of § 3509(b)(1)(B)
are not at issue in this case.