The defendant is charged with Sexual Abuse in the First Degree and related charges, arising out of the alleged sexual abuse of his eleven year-old niece. The defendant seeks a pre-trial "taint" hearing at which the People would be obliged to prove that the complainant's testimony is not the product of undue suggestion. The People oppose. For the reasons that follow, the defendant's motion is denied.

The complainant, twelve years old at the time of the grand jury presentation, testified that [*2]on Thanksgiving Day of 2011, when she was eleven, the defendant called her into his room. He directed her to undress, and then kissed her and licked her vagina. Next, he put on a condom and "tried" to put his penis in her vagina. She "did not like it at all," and started shaking, so the defendant stopped. At that point, he talked to her about school and about the fact that she had "never kissed a boy before." She wanted to leave the room, but the defendant would not let her. He "made" her suck his penis. When he was finished, he gave her twenty dollars and instructed her not to tell anyone what had happened, since they were "family." He also said that he knew she would not "tell on" him, and promised to get her breakfast the next day.

The complainant did not immediately tell anyone what the defendant had done to her because she feared that no one would believe her. Sometime in December, however, she told her older brother, who also testified before the grand jury. According to him, the complainant became very upset, and said that the defendant had touched and licked her vagina, and made her suck his penis. Her brother told her that "everything was going to be all right." He then reported what she had said to their mother.

Detective Reiner Fehrenbach testified that on February 24, 2012, he interviewed the 44 year-old defendant, and advised him of his constitutional rights. The defendant explained that his niece was visiting him on Thanksgiving, and that after dinner he began talking to her about "boys and sex," instructing her that she "shouldn't be messing with boys right now." He admitted to kissing her on the mouth and neck, hugging and "feeling" her, and kissing her stomach and vagina. According to the defendant, his niece was "wet down there." He denied trying to have intercourse with her, but admitted that he had condoms in his room.

The defendant moves for a pre-trial hearing to determine whether the complainant's testimony was "tainted" by improper questioning. The defendant claims that a pre-trial hearing is warranted because the complainant did not immediately report the sexual assault, because her disclosure was prompted by her mother and other "authority figures," and because she was interviewed multiple times. In fact, however, there is simply nothing about this case that would justify the extraordinary step of holding a pre-trial hearing that would essentially duplicate the issues at trial.

There is no statutory authority for ordering a pre-trial hearing to test the reliability of a child witness' testimony. Of course, a judge always retains the discretion to order a hearing to test the reliability of any evidence (People v. Blackman, 110 AD2d 596 (1st Dep't 1985)), and that is true in child sexual abuse cases as well. However, courts in this state have generally rejected applications for pre-trial "taint" hearings. People v. Montalvo, 34 AD3d 600 (2d Dep't 2006); People v. Weber, 25 AD3d 919 (3d Dep't 2006); People v. Nickel, 14 AD3d 869 (3d Dep't 2005); People v. Wilson, 255 AD2d 612 (3d Dep't 1998); People v. Kemp, 251 AD2d 1072 (4th Dep't 1998); People v. Jones, 185 Misc 2d 899 (Kings. Co. 2000); People v. Alvarez, 159 Misc 2d 963 (Richmond Co. 1993).

The Court is aware of only one reported New York case in which a trial court directed a taint hearing, People v. Michael M., 162 Misc 2d 803 (Kings Co. 1994), and the facts of that case are unique. The allegations against the juvenile defendant were made in the midst of a heated custody battle in which the adult who reported the abuse had himself been accused of sexually abusing both the defendant and the complainant, and in which the defendant's mother and her [*3]boyfriend were also arrested for sexual abuse of the complainant. Additionally, the doctor who interviewed the complainant employed unduly suggestive interviewing techniques. In the context of these unusual facts, the trial court ordered what amounted to a pre-trial suppression hearing.

Whatever the merits of that decision, the defendant points to nothing in this case that even approaches the facts in Michael M. The Court has examined the grand jury minutes together with the complaining witness' videotaped testimony, which contain no hint of undue pressure or influence. Rather, the evidence establishes that the complainant was almost twelve years old at the time of the alleged abuse. She came forward without being prompted, and reported the abuse to her brother, who then informed their mother. Furthermore, in his statements to the police the defendant acknowledged at least some of the conduct that the victim described. ^[FN1]

The issues that the defendant raises in support of his application — that the witness was interviewed more than once, that she did not report the abuse immediately and that she spoke with adults— are common to most prosecutions of child sexual assault. In reality, as his citation to the conclusions of "specialists in the field of child abuse" makes clear, the defendant's argument amounts to a claim that children are inherently unreliable, and that "taint" hearings should be ordered routinely in child sexual assault cases. That is simply not the policy of this state. Unlike other categories of evidence (see People v. Hughes, 59 NY2d 523 (1983) (hypnotically induced recall); People v. Riley, 70 NY2d 523 (1987) (show-up identifications)), the testimony of a child witness is not presumed to be unreliable. For that reason, courts have declined to order psychological and psychiatric evaluations of child witnesses. People v. Chilson, 285 AD2d 733 (3d Dep't 2001); People v. Kemp, supra. Indeed, trial courts have rejected so-called expert testimony on the subject of children's susceptibility as "highly controversial." People v. Kenani, 272 AD2d 186, 187 (1st Dep't 2000). See also People v. Chilson, 285 AD2d at 735.

What the defendant seeks is nothing less than a mini trial at which he can cross-examine the People's witnesses, including presumably the child witness. To grant this kind of hearing in the absence of any compelling evidence of undue pressure would open the door to unwarranted harassment and intimidation of particularly vulnerable witnesses without any corresponding gain to the cause of justice. See People v. Chipp, 75 NY2d 327, 337 (1990) (granting defendant right to call identifying witness at a Wade hearing would "enable defendants to harass identifying witnesses and transform the hearing into a discovery proceeding neither authorized nor contemplated by the legislature." (citation omitted)); People v. Jones, 185 Misc 2d at 902 (pre-trial taint hearing is "contrary" to New York's "strong interest in protecting complainants in sexual assault cases—particularly child witnesses—from intimidation.")

Indeed, the issues that the defendant seeks to explore are classic credibility issues that are more appropriately explored at a trial. People v. Wilson, 155 AD2d at 613; People v. Wiggins, 217 AD2d 407 (1st Dep't 1995). At a trial, the defense will be able to cross-examine the People's [*4]witnesses, including the complainant, about the circumstances under which the complainant made her disclosure and the manner in which she was interviewed by detectives, medical personnel or family members, and any motive she or any witness had to testify falsely. See People v. Hudy, 73 NY2d 40 (1988). Moreover, the defense can apply to the trial court for permission to introduce expert testimony, assuming he can lay the appropriate foundation. See People v. Taylor, 75 NY2d 277, 293 (1990); cf. People v. Kenani, 272 AD2d at 187; People v. Chilson, 285 AD2d at 735. In this way, the defendant's rights are fully protected without needlessly subjecting a vulnerable victim to additional questioning.

There may be cases in which the evidence is so seriously compromised that a hearing is warranted to determine the extent to which a complaining witness' testimony has been tainted. As a general matter, however, child victims should not be compelled to "run an additional gauntlet of pretrial hearings designed to ferret out possible defects in the interview/counseling process." People v. Alvarez, 159 Misc 2d at 965. See also People v. Jones, 185 Misc 2d at 899 (unless there are "well-founded concerns that serious, improper meddling with the child's testimony has occurred, child abuse complainants should not have to prove their reliability at a pretrial hearing.")

There has been no such showing in this case. Accordingly, the defendant's motion is denied.

The foregoing constitutes the decision and order of the Court.

___________________________________

ANN DONNELLY

JSC

DATED:Brooklyn, New York

February 11, 2013