Brent Horst An individual in a civil lawsuit has the right to obtain and review witness statements by issuing interrogatories, requests for production of documents, and taking depositions. In some jurisdictions a criminal defendant has that same right. However, in other jurisdictions including the State of Tennessee and the Federal Court System the pre-trial statements of witnesses are generally not discoverable and can be withheld from the Defendant until that witness has already testified at the trial. This is unfortunate and provides the civil litigant in a small contract dispute with far more rights than a person who is facing the loss of their actual liberty.

Obtaining a key witnesses statement prior to trial is often the difference in building a successful defense and a not guilty verdict versus a losing defense and the defendant being sentenced to many years in prison. This is especially true in Child Sex Abuse cases. I am therefore sharing a motion that I have used to obtain the forensic interview of the alleged victim of child sexual abuse in the Circuit Criminal Court of Rutherford County Tennessee. Before this motion was heard and ruled upon by the Court, the District Attorney relented and allowed me to have a copy of the child’s forensic interview. I like to think that she relented because she knew that she was likely to lose this motion and that we were going to be establishing precedent that she did not want established. Regardless of the reasons the D.A. relented and let me have a copy of the interview I believe this motion offers very strong arguments as to whey the Forensic Interview of an alleged child sex abuse victim is discoverable the Defense. Some of the reasons set forth are case specific but occur often enough that the facts may apply to your case. Other reasons set forth in the motion should apply to every forensic interview of an alleged child sex abuse victim.

If you are a Defendant or an Attorney defending a client please use any or all of the following motion. I wish you the best of luck.

Brent Horst, Board Certified Criminal Trial Attorney. Nashville Tennessee.
[email protected], ph. (615) 403-2971.

DEFENDANT’S MOTION TO COMPEL FORENSIC INTERVIEW

Now comes the Defendant thru the undersigned attorney pursuant to Tennessee Rule of Criminal Procedure 16, T.C.A. §37-5-107, and the Due Process Clause of the Constitutions of the United States of America and of the State of Tennessee and hereby moves this Court to order the State to provide to the Defendant the following items.

( I ) A copy of the DVD of the forensic interview examination of the alleged victim and of any child witness the State plans to call who was given a forensic interview examination.

A)The Defendant has filed a “generalized” written discovery demand . The Defendant has also made a specific verbal discovery request to the District Attorney’s Office for the forensic interview examination.

B)Defense Counsel has been informed by Nancy who works for the district attorney that the State will not provide a copy or allow the Defendant to view the interview examination until perhaps a few days prior to trial.

C)The Defendant states that he needs and is entitled to a copy of the forensic interview examination well before trial.

D) Rule 16.

Rule 16 (2) states:

Information Not Subject to Disclosure. Except as provided in paragraphs (A), (B), (E), and (G) of subdivision (a)(1), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by the district attorney general or other state agents or law enforcement officers in connection with investigating or prosecuting the case. Nor does this rule authorize discovery of statements made by state witnesses or prospective state witnesses.

While Tennessee Rule of Criminal Procedure 16 (a) (2) does generally exclude witness statements from required disclosure the Defendant asserts that based upon the language of the rule that the rule is clearly talking about work product or trial preparation and “routine” investigative statements, which are generated either by the district attorney general or by law enforcement agencies.

The Defendant submits that for the following reasons the forensic interview examination is not the type of simple witness statement within the general meaning of 16 (a) (2).

1)The examination is not conducted by the district attorney or law enforcement. It is conducted at the child advocacy center by an employee or agent of the center, which is a private organization. Therefore the forensic interview is not an interview “protected” from disclosure by Rule 16.

2)The child forensic interview is part mental examination and is therefore discoverable pursuant to Tennessee Rule of Criminal Procedure 16 (a)(1)(G) which requires disclosure of mental examinations if the item is material to preparing the defense. The Defendant asserts that the forensic interview examination of an alleged child sex abuse victim is a hybrid of a witness statement and of a mental examination

because:

  • The interview examination is tightly controlled,
  • The examination is conducted by trained professionals,
  • The examination is designed to be conducted according to guidelines and protocols established by psychological scientific studies,
  • The purpose of the forensic interview examination is not simply to gather information but is also used to determine whether the alleged victim is a credible witness, which necessarily includes as part of the examination at least some minimal assessment of the level of mental competency of the witness. In fact in this particular case the Detective who interviewed the Defendant during the Defendant’s interview stated:

The process of what we do here is they have a person specifically trained to talk with kids her age and to make sure they understand what the truth is and what the truth is not. They ask specific questions . . . . These special interviewers . . . The person at the hospital talks with her also and talks with her in depth whose like a trained psychologist (Defendant’s interview time stamp 14:45:45) . . .
She’s not just telling mom and dad. She’s telling trained forensic interviewers social workers these things and it’s consistent. Ok. Which means she’s not making it up ok. A 9 year old girl is not going to make up her grandfather touching her. (Defendant’s interview time stamp: 15:05).

It is therefore abundantly clear that law enforcement in this case used the forensic interview examination in this case to assess the child’s competency – her ability to know and to tell the truth.

Dr. Peter Ash a forensic psychiatrist and chairman of the psychiatric department of Emory university who has conducted forensic interview examinations for courts will testify that when determining the credibility of the allegation thru the forensic interview examination that an assessment of basic competency is part of the examination.

3)Might be used as substantive evidence. In certain circumstances the forensic interview examination may be used in dependent neglect proceedings as substantive evidence without further appearance or testimony from the accuser-Tenn. R. Evid. 803 (25), and the State has argued in other cases that the forensic interview examination may be used as substantive evidence in criminal proceedings pursuant to Tenn. R. Evid. 803 (26). Should a statement that may possibly be used as substantive testimony be shielded from the Defense?

4)It is worthy to note that the Tennessee Rules of Criminal Procedure were enacted in 1978 and wide spread use of the forensic interview examination for children as it is designed today did not begin until well after 1978. Therefore Rule 16 when enacted could not have contemplated the unusual hybrid nature of the forensic interview examination.

For all of these reasons the Defendant submits that the forensic interview examination is not a simple witness statement obtained by the District Attorney or by law enforcement as contemplated within Rule 16 (2).

The Defendant submits that the forensic interview examination is material and necessary to the preparation of his defense for two reasons. The Defendant expects to find inconsistent and exculpatory information in the interview, and the Defendant desires to retain a forensic psychiatrist to review the interview to determine if interviewing techniques were used which may have or which were likely to have improperly influenced the statements of the young accuser.

E)Due Process. Exculpatory Evidence.

Even if the Defendant is not entitled to the forensic interview thru Rule 16 he does have a constitutional due process right to the examination. As has been recognized by many State and Federal Courts inherent in a Defendant’s due process rights are the right to present a defense and the right to prepare a defense. Denial of the right to prepare the a defense is the denial of the right to present a defense. The Advisory Commission Comments contained in R. 16 recognize that constitutional rights such as the right to due process and exculpatory evidence at times will trump the limitations of R. 16. The Defendant hereby expressly and clearly states that he expects to prove at the evidentiary hearing for this motion that the accuser has made statements in the forensic interview examination that are inconsistent with prior statements she has made about alleged sexual abuse by the Defendant. Her inconsistent statements in the forensic interview will therefore be used to impeach the accuser during the trial of this cause.

In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court ruled that the Due Process Clause of the Untied States Constitution requires pre-trial disclosure of all exculpatory information in criminal prosecution. In Giglio v. United States, 405 U.S. 150 at 154-155 (1972) the Supreme Court ruled that when the ‘reliability of a given witness may well be determinative of guilt or innocense’, non-disclosure of evidence affecting credibility . . . violates the rule set forth in Brady.

In this case the only evidence is the allegation of the nine year old accuser. The State’s case will succeed or fail on that evidence. In Dennis v. United States, 384 U.S. 855 (1966) the Supreme Court ruled that the Defendant was entitled to otherwise secret grand jury testimony prior to trial because the testimony possibly contained impeachment evidence. The Dennis Court stated: [u]nder these circumstances, it is especially important that the defense, the judge and the jury should have the assurance that the doors that may lead to truth have been unlocked. In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant facts. Exceptions to this are justifiable only by the clearest of compelling considerations. Therefore, applying the principles established in Brady, Giglio, and Dennis, if the accuser in this case has made statements during the forensic interview examination that are inconsistent with prior statements regarding alleged abuse by the Defendant, due process requires that the forensic interview examination must be disclosed to the Defense prior to trial.

F) DUE PROCESS: THE STATE’S INTERFERENCE WITH DEFENDANT’S INVESTIGATION.

It is respectfully requested that this Court order that the State provide a copy of the forensic interview because that interview was not obtained by the District Attorney, or law enforcement, the interview was obtained by a third party and was in the possession of a third party until the State sequestered it from the Defense.

Crim. R. Proc. 16 (2) states that:

Information Not Subject to Disclosure. Except as provided in paragraphs (A), (B), (E), and (G) of subdivision (a)(1), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by the district attorney general or other state agents or law enforcement officers in connection with investigating or prosecuting the case. Nor does this rule authorize discovery of statements made by state witnesses or prospective state witnesses.

The Defendant asserts that this rule only addresses interviews obtained by the District Attorney or by Law Enforcement. This rule does not and cannot constitutionally be allowed to prohibit the Defendant from obtaining witness statements not obtained by law enforcement. Such a rule would be an unconstitutional infringement upon the Defendant’s right to prepare and present a defense.

The Child Advocacy Center is a private entity. CAC is not a State agent or law enforcement officer. The CAC conducted and recorded the forensic interview. Therefore the interview is not a statement covered by Crim. R. Proc. 16, and thus the Defendant had planned to ask this Court for a court order pursuant to T.C.A. 37-1-612 (establishing confidentiality of child abuse investigation reports) and the authority of T.C.A. 37-5-107 (allowing disclosure of child abuse investigation reports by court order) to order the CAC to provide a copy of the interview to the Defense.

However, upon contacting Sharon DeBoer the Director of CAC in Rutherford County Defense Counsel was informed by Ms. DeBoer that the District Attorney in Rutherford County directs that the recording of the interview after it is conducted becomes the property of the District Attorney and that CAC does not retain a copy. The Defendant asserts that this is an attempt by the State to sequester from the Defendant otherwise discoverable information. There is no reasonable explanation for the State to seize and take control of that interview other than to sequester it from the Defendant. The Child Advocacy Center is perfectly capable of protecting the interview and prohibiting its improper use or release without court order. T.C.A. 37-5-107 which requires a court order for release of child abuse investigation reports is sufficient to protect the child from improper use of the interview. The only reason for the State to take exclusive control of the interview is to inhibit the Defendant in his preparation for his defense which is a violation of Due Process.

It is well established that the State’s attempt to sequester a witnesses from the Defendant’s attempt to interview the witness violates the Defendant’s right to a fair trial. Gregory v. U.S. 369 F. 2d 185, 187-189, (D.C. Cir. 1966), State v. Caughron, 855 S.W. 2d 526 (Tenn. 1993). Sequestering Evidence from the Defendant that does not belong to the State is the same as sequestering a witness. When the State took possession of the forensic interview in this case to sequester the interview from the Defendant attempting to shield that interview from discovery by the Defendant by use of R. 16 when the rule would not apply because the interview was not originally in the possession of the State is absolutely no different than the State instructing a witness not to speak to the Defense. This Court should not allow the State to sequester otherwise discoverable evidence and should order the State to provide the Defendant with a copy of the forensic interview.

G) Rebuttal of States likely Response:

Admittedly there are several cases from the Tennessee Court of Criminal Appeals that have held that a Defendant is not entitled to pre-trial discovery of the forensic interview, and the Defendant expects that the State will argue that these cases support denial of the Defendant’s motion to compel. The State would be wrong in making this argument. None of these cases squarely addressed the constitutional issues either because the constitutional issue was not raised by the Defendant or because the facts did not support that in that particular case the forensic interview contained exculpatory information. Furthermore, in none of these cases did the Defendant adequately present and the court therefore did not address the hybrid nature of the child forensic interview examination or that the interview was not conducted by law enforcement and was in the possession of a third party before being sequestered by the State.

In State of Tennessee v. Ormand Pate, M2009 02321 CCA R3 CD, November 22, 2011, the Court of Criminal Appeals acknowledged that T.C.A. §37-1-162 made child abuse investigation records confidential and that there was no exception of that confidentiality for the Defendant in a criminal proceeding. The Court therefore ruled that the statute did not provide for disclosure of child abuse investigation reports to the criminal defendant1. It further ruled that Crim. Rule. Proc. 16 prohibited disclosure of reports and internal documents made by the State. However,Ormand did not present and therefore the Court did not address any constitutional issues. Nor was the hybrid nature of the forensic interview examination presented to or analyzedby the Court. Another case, State v. Gibson, 973 S.W.2d 231 (Tenn. Crim. App. 1997) also failed to address any constitutional issues and the hybrid nature of the forensic interview examination was not presented to or analyzed by the Court. In State v. Biggs, 218 S.W.3d 643, 662 (Tenn. Crim. App. 2006) the Court did address Brady issues but found that there was no significant impeachment information within the forensic interview and therefore it was not error when the report was not disclosed prior to trial. The hybrid nature of the forensic interview examination was not presented to or analyzed by the Court. In State v. Timothy Joseph Simpson, E2005 02364 CCA R3CD, (Tenn. Crim. App. Jan 19, 2007)the Court refused to consider the constitutional claim finding that the Defendant failed to preserve the issue and the record in regard to that claim and the hybrid nature of the forensic interview examination was not presented to or analyzed by the Court. In State v. Young Bok Song, M2004 02885 CCA R3 CD,2005 WL 2978972 (Tenn. Crim. App. Nov. 4, 2005) the Defendant did not raise nor did the

Court address constitutional issues and the Court ruled that the Defendant’s claim that the forensic interview examination was a “scientific test” had not been presented to the trial court and thus declined to consider that issue. It therefore seems clear that there is no prior precedent which would justify denial of this motion.

Finally, the Defendant wishes to address the State’s likely fall back position that the Court should review the forensic interview examination in camera to make it’s own determination as to whether there is impeachment evidence contained within the examination. The Defendant submits that a trial judge is ill equipped to make such review. As stated by the Untied States Supreme Court when the government suggested that the trial court should review the requested impeachment testimony in camera:

Trial judges ought not to be burdened with the task or the responsibility of examining sometimes voluminous . . . testimony in order to ascertain inconsistencies . . . Nor is it realistic to assume that the trial court’s judgment as to the utility of material for impeachment or other legitimate purposes, however conscientiously made, would exhaust the possibilities. In our adversary system it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate.

Dennis, at 874 – 875, emphasis added.

There is simply no compelling reason for the State to deny the forensic interview examination to the Defendant well before trial. The fact that the accuser has alleged that she has been the victim of sexual abuse has already become public information as to her identity and the type of sexual crime allegedly committed against her has been set forth in the indictment which is a matter of public court record. If there are privacy concerns about the general public becoming aware of further specific details of the alleged crimes that issue can be dealt with thru court orders prohibiting sharing of the information with anyone other than the Defendant and Defense Counsel and his staff and investigator. The only reason to deny the Defendant access to the interview is to provide the State with a tactical advantage by inhibiting the Defendant in his ability to prepare for his defense, which would be a violation of the Defendant’s due process right.

( II ) The prior statement of any other witness that is exculpatory.

Any other witness statement whether a forensically obtained statement or otherwise including statements provided by the alleged victims brothers and sisters and parents that are exculpatory, which include statements that can be used to impeach the alleged victim or to challenge the credibility of her allegations.

For example: The alleged victim has stated she was touched by the Defendant every time that he visited. It is suspected that she alleges that this occurred much of the time in her bed. She shared a bed with her sister. Therefore any statement by her sister that she saw no sexually inappropriate actions by the Defendant would be an exculpatory statement. The Defendant requests that the State be ordered to produce all exculpatory statements.

(III) The written statement made by the alleged victim provided to her mother at the time of the alleged initial disclosure.

CONCLUSION

Based upon the forgoing it is respectfully requested that the Defendant’s motion to compel be granted in all respects.

Respectfully Submitted


Brent Horst (Tenn. B.P.R. # 016539)
Attorney for
P.O. Box 160690
Nashville, Tenn. 37216
Ph. (615) 259 – 9867, Fx. (615) 628-0446
Cell (615) 403 – 2971, Email: [email protected]

CERTIFICATION

I hereby certify that I have provided an accurate and complete copy of the forgoing to the Office of the District Attorney General for Rutherford county by
” personal delivery ” at 320 West Main Street, Suite 100 Murfreesboro, TN 37130 ” in open
court.
first class U.S. Mail: 320 West Main Street, Suite 100, Murfreesboro, TN 37130
” Fax: (615) 898-8039
on ______________ , _______________ 2013 .

________________________________________
Brent Horst (Tenn. B.P.R. # 016539)
Attorney for
P.O. Box 160690
Nashville, Tenn. 37216
Ph. (615) 259 – 9867, Fx. (615) 628-0446
Cell (615) 403 – 2971, Email: [email protected]