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Pretrial competency hearings may be held in child sex abuse cases to consider whether a young child’s testimony has been tainted by outside influence, the Pennsylvania Supreme Court has ruled on a 4-2 vote. The majority ruled that outside influence that taints a child witness’s testimony compromises the competency of that testimony, not the witness’s credibility. Because competency is at issue, the proper way to vet the testimony is through a pretrial hearing, the court said. The decision came in a case where a criminal defendant argued that the testimony of the alleged victims was the product of “suggestive questioning” and memory that was “implanted” by the children’s mother. “We believe that appellant has presented some evidence of taint to justify exploration of that issue at a competency hearing,” Chief Justice Ralph J. Cappy wrote for the majority in Commonwealth v. Delbridge. “Thus, remand for a new competency hearing is required.” Cappy was joined in the majority by Justices Ronald D. Castille, Sandra Schultz Newman and Thomas G. Saylor. The Delbridgecase stemmed from the prosecution of Luzerne County man Gerald John Delbridge on charges that he sexually abused his son and daughter when they were 4 and 6, respectively. According to the opinion, the case against Delbridge began when his wife, Deborah Delbridge, received a January 1998 call from their daughter’s kindergarten teacher informing her that her daughter was exhibiting behavioral problems at school. Delbridge had noticed similar problems at home. The girl had recently started sharing a room with her father after the Delbridges, experiencing marital troubles, stopped sharing a bedroom. By spring 1998, Delbridge had obtained a protection from abuse order against her husband, put her daughter into counseling with a therapist and moved with her children into a residential unit in Hazelton, the opinion said. Their neighbors at the new residence were Lisa Rodriguez and her two young children, with whom Delbridge and her children became friendly. On May 13, 1998, the opinion continued, the daughter told Delbridge that her father had touched her “tee-tee,” the family’s term for private parts. The girl had made similar statements to Rodriguez on other occasions. Delbridge contacted the girl’s therapist, and during a subsequent session, the girl repeated her previous claims and also asserted that one of her father’s friends had touched her inside her rear-end. During interviews of the children by state troopers, the opinion stated, both children alleged that their father had touched their genitals and rear-ends and had also showed them pornographic movies. According to the opinion, Delbridge responded to the charges against him by countering that the investigation of his children’s claims had been tainted in several ways. He charged that there had been suggestive questioning during interviews with the authorities; that his own wife, herself the victim of childhood sexual abuse, had planted the idea of molestation in the children’s minds; and that the presence during an interview with the children of a certain state trooper who had previously said that he would protect them from their father amounted to vilification tactics by the interviewing officers. As evidence of the tainting concerning his wife’s personal history, the opinion said, Delbridge pointed to the June 1994 incident in which his wife had taken their daughter, 2 years of age at the time, to Berks County Children and Youth Services out of concern that the child had been acting in a sexual nature prematurely, indicating the possibility of sexual abuse. Delbridge disclosed to the attending CYS counselor her own history with molestation, and the counselor recommended that Delbridge seek counseling. The resulting Berks County investigation concluded with a finding of no abuse. Prior to the competency hearing, according to the opinion, the trial court denied Delbridge’s request to question the children at the hearing about their specific charges of sexual abuse. The trial court instead limited both sides to questions examining the children’s ability to distinguish truth from non-truth and to understand the importance of telling only the former when testifying in court. The trial court found both children legally competent to testify. During a subsequent hearing on the admissibility of the children’s hearsay statements, Delbridge was denied the opportunity to call an expert to testify as to the lack of reliability of the testimony of young children. The trial court found that Delbridge had not established the proposed field of expertise as valid. A jury found Delbridge guilty on counts including aggravated indecent assault and corruption of minors, the opinion said. He was sentenced to up to 172 months of incarceration, and that judgment was upheld by the Superior Court. In his appeal to the court, Delbridge claimed that the trial court had erred in refusing to allow exploration of the “taint” issue during the competency hearing. In his opinion, Cappy considered the solutions of other jurisdictions to the question at hand. Cappy noted that some states, such as Kentucky, Ohio and Alaska, have in effect disallowed the consideration of tainting when examining the admissibility of testimony of child witnesses. Others, such as New York, have offered contradictory decisions on the topic. But the majority in Delbridgefound “the discussions of taint by the New Jersey and the Wyoming courts to be the most illuminating,” Cappy wrote. In its 1994 decision in State v. Michaels, the New Jersey Supreme Court acknowledged the potential problem of “taint” in child sexual abuse cases and ruled that once a defendant has met the burden of proof in presenting evidence of potential taint, the prosecution must offer “clear and convincing evidence” that the statements should remain admissible. In its 1999 ruling in English v. Wyoming, the Wyoming Supreme Court agreed with the Michaelsdecision in its recognition of the potential threat of tainting, but ruled that a separate pretrial hearing addressed to the issue of taint was not necessary. “[Pretrial exploration of "taint"] is necessary in those cases where there is some evidence that improper interview techniques, suggestive questioning, vilification of the accused and interviewer bias may have influenced a child witness to such a degree that the proferred testimony may be irreparably compromised,” Cappy wrote. Noting that Pennsylvania law already requires child witnesses to be vetted with regards to competency, the majority agreed with the decision in Englishthat a competency hearing is the correct venue for exploring allegations of “taint.” But in considering whether to allow Delbridge to call expert testimony on the issue of “taint,” the majority sought to limn a distinct difference between competency and credibility, as they relate to the testimony of child witnesses. “A question of taint corrupting the actual memory of the witness speaks to competency, not credibility,” Cappy wrote. “It is not a question of whether the child is telling the truth, but rather whether the child’s memory has been so infected by the implantation of distorted memories so as to make it difficult for the child to distinguish fact from fantasy.” For that reason, the court decided to leave it to the judgment of individual trial courts whether they will consider expert testimony on “taint,” so long as that testimony be offered in competency hearings, and not as a means of impeaching the credibility of child witnesses. In a dissenting opinion, Justice Russell M. Nigro argued that the cross-examination of the children at trial concerning the accuracy of their memories rendered the pretrial expert debate irrelevant. “In my view, questioning regarding the effect of these external forces on a child’s memory simply do not go to a child’s competencyto testify, but rather merely probes whether the child’s supposed memory of an event should be believed,” Nigro wrote. “As such, I believe that the taint inquiry is more appropriately characterized as a classic question of credibility.” Justice J. Michael Eakin also found fault in the majority’s classification of the taint issue as one of competency. “The admission of expert testimony is not determined by which side wishes to address the issue; the search for credibility or competence is only served by allowing, or disallowing, experts on all issues affecting testimony of abused children,” Eakin wrote in a concurring and dissenting opinion. “As I believe this is really a credibility matter, I would opt to disallow opinion testimony on the point.” Arthur Jarrett, a children’s rights specialist at James Jarrett & Schwartz and member of the board of directors of Philadelphia Court Appointed Special Advocates, said that the ruling underscores the need for multi-agency coordination efforts in the investigation of child sexual abuse claims. “Once a child comes into the system, we need to keep [the interviewing process] sterile or else we ruin prosecutions, we ruin dependent court adjudications, and, in short, endanger children further,” Jarrett said. “Every sentence made to or sought from a child is key to the investigation and prosecution. There are no meaningless or harmless interviews where children are involved.” Mark M. Mack of Mack Law Offices in Kingston was defense counsel of record to Delbridge. David W. Lupas of the Luzerne County District Attorney’s Office handled the prosecution. Neither immediately responded to telephone calls seeking comment yesterday. (Copies of the 39-page opinion inCommonwealth v. Delbridge , PICS NO. 03-1510, are available fromThe Legal Intelligencer . Please call the Pennsylvania Instant Case Serviceat 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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