## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 95-1554

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Desmond Rouse, * * Defendant - Appellant. *

___________ No. 95-1556

___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * District of South Dakota Jesse Rouse, * * Defendant - Appellant. *

___________ No. 95-1558

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Garfield Feather, * * Defendant - Appellant. *-2- ___________ No. 95-1559

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Russell Hubbeling, * * Defendant - Appellant. *

___________ Submitted: March 3, 1997 Filed: April 11, 1997

___________ Before McMILLIAN, BRIGHT, and LOKEN, Circuit Judges.

___________ LOKEN, Circuit Judge.

Brothers Desmond and Jesse Rou se, and their cousins, Garfield Feather and Russell Hubbeling, appeal convictions for sexual abuse of young children on the Yankt on Sioux Indian Reservation, raising numerous issues. A divided panel reversed and remanded for a new trial on grounds that the district court erred in excluding certain
ex pert opinion testimony and in denying defendants' motion fo r independent pretrial psychological examinations of the abuse d children. See United States v. Rouse , 100 F.3d 560 (8th Cir

. 1996). After the court granted the government's suggestion fo r rehearing en banc and vacated the panel opinions, the panel granted the government's petition for rehearing, and the court denie d rehearing en banc as moot. Ha ving further considered the parties' contentions on appeal, we now affirm.-3- I. Background.
The victims are granddaughters of Rosemary Rouse. During the summer and fall of 1993, defendants lived at Rosemary's home on the Yankton Sioux Reservation. The victims also lived or spent a great deal o f time at this home. In October 1993, five-year-old R. R

. was placed with Donna Jordan, an experienced foster parent, due to neglect and malnutrition. R. R. disclosed apparent sexual a buse to Jordan, who reported to the Tribe's Department of Social Services (“DSS”) (as Jordan was required to do) that R. R. said she h ad been
se xuallyabused. On January 10, 1994, DSS told Jordan to tak e R. R. to therapist Ellen Kelson. After an initial interview , Kelson reported to DSS (as Kelson was required to do) that R. R

. hadreported acts of sexual abuse against herself and othe r children in the Rouse home. On January 11, DSS removed thirtee n childrenliving in the Rouse home and placed them in Jordan' s foster hom e. Of the four who disclosed sexual abuse by thei r uncles, T. R. was seven years old, L. R. was six, R. R. was five, and J. R. was four and one-half. The fifth victim of the alleged offenses, F. R., was a twenty-month-old infant.

Four d ays later, pediatrician Richard Kaplan examined th e children. Dr. Kaplan reported to DSS his medical findings a nd what the children had said about sexual abuse. J. R. told Dr. Kaplan, “Uncle Jess hurt me,” pointingto her left labia; Dr. Kaplan found
a recent bruise or contusion consistent with that kind of abuse

. L. R . had “a fairly acute injury” on the right side of her labi a majora which “really hurt her.” R. R. told Dr. Kaplan, “I have a bruise where my uncle put his private spot,” and Dr. Kaplan found
a saggin g vagina and a scar on her anus. Dr. Kaplan found tha t T. R. had “obvious trauma and contusion . . . and very, very much tenderness” on her labia majora; T. R. told him, “Uncle Jess hurt-4-

me there.” On January 19 and 21, 1994, FBI Special Agent William Van Roe and BIA Criminal Investigator Daniel Hudspeth interviewed J. R., T. R., R. R., and L. R. The children again reported sexual abuse by their uncles. The children were also seen by a psychiatrist, who referred them to Kelson for therapy. Kelso n first saw the children in a group on January 22.

On F ebruary 11, Dr. Robert Ferrell conducted a colposcopi c examin ationof the five victims. Dr. Ferrell found “ver y significant” damage to R. R.'s hymenal ring and tearing in h er anal
area c onsistent with anal intercourse. He noted a “whol e constellationof findings” indicating L. R. had been abused -

- damage to her hymenal area, furrowing on either side of her vagina, chronic irritation or trauma, and “clue cells” that are “known to be sexually transmitted.” To Dr. Ferrell, a scar on J. R.'s hymen where a tear had healed was an “important finding,” while T. R.'s “hymenal ring was essentially gone,” the entire area was irr itated, and she had furrows in her vagina. Infant F. R. had “tearing and scarring of the anal mucosa.”

Defen dants' medical expert, Dr. Fay, admitted that th e repor tedhymenal scarring on L. R., R. R., and J. R. “certainl y

. . . leads you to think about sexual abuse,” and that “a labia l inj ury. . . is a very significant finding” of abuse. In it s rebuttal, the government calle d Dr. Randall Alexander, a member of the Board of Governors of the National Committee to Prevent Child Abuse. Dr. Alexander testified that it takes considerable f orce to inflic t labial injuries like those exhibited by three of th e victims. “It's rare to see one [in young girls] and to see three of them show up is just . . . rareness to the third power.”The HONORABLE LAWRENCE L. PIERSOL, United States Distric t 1 Judge for the District of South Dakota. -5- On March 24, 1994, a grand jury indicted Feather, Hubbeling, Duane Rouse, Desmond Rouse, an d Jesse Rouse on twenty-three counts of aggravated sexual abuse in violation of 18 U.S.C. § 2241(c)

. After a th ree week trial, the jury acquitted Duane Rouse. I t convicted Desmond Rouse on three counts, Jesse Rouse on two counts, Feather on four counts, and Hubbeling on two counts. They r eceived long prison sentences but raise no sentencing issues on appe al. We consolidated their four appeals.

II. Issues Concerning the Victims' Trial Testimony.
The government's case consiste d primarily of testimony by the tw o physicians, the four oldest victims, another child wh o witnessed acts of sexual abuse , and FBI Agent Van Roe. On appeal, defendants raise numerous issues regarding the district court's 1 handling of the critical child victim testimony.

A. Denial of Defense Access to the Children.
Prior to trial, the victims lived with foster parents in the legal custody of DSS. Defendants argue they were denied thei r Sixth Amendment right to effective cross-examination and thei r Fifth Amendment right to due p rocess because DSS refused to permit defense counsel interviews of the victims before trial. Def endants also argue that the district court erred in refusing to orde r additional medical examinations of the victims prior to or during the trial, and lengthy pretrial psychological interviews by a defense expert.Because one defense theme at trial was that DSS contaminated 2 the victims as witnesses by isolating them in the months befor e trial, defendants' failure to raise this access issue with th e district court was no doubt by design.
-6- 1. When a child witness is in the legal custody of a social services agency, that agency as custodian may refuse requests for pretrial interviews. See Thor nton v. State , 449 S.E.2d 98, 109-10 (Ga. 1994); Hewlett v. State , 520 So. 2d 200, 203-04, (Ala. Crim. App. 1987); see also O’Leary v. Lowe , 769 P.2d 188, 192-93 (Or

. 1989) (en banc). In this case, defense counsel never compla ined to the district court that DSS denied them pretrial access to th e child witnesses, so this issue was not preserved for appeal. 2 Defendants admit that DSS made the decision to deny access; they do not point to evidence that the prosecution interfered. Cf

. United States v. Murdock , 826 F.2d 771-773-74 (8th Cir. 1987). In these circumstances, there was no error, much less plain error.

2. Defendants did file motions to compel additional medical examinations and psychological interviews. The evidence at a pretrial evidentiary hearing revealed that the victims recei ved two
me dical examinations. Dr. Kaplan found physical evidenc e consistent with sexual abuse but did not perform thoroug h examinations. Instead, he referred the children to Dr. Ferr ell, an obstetrician/gynecologist, who examined the anesthetized children using a colposcope instrument for magnified viewing of the genital area. Dr. Ferrell reported te aring and scarring of infant F. R.'s anal m ucosa, and evidence of significant trauma to the othe r victims' hymenal areas. He testified that this evidence as a whole indicated abuse. Defendants argued that another examination was necessar y be cause Dr. Kaplan's examinations were not sufficiently thoroug h and Dr. Ferrell was not experienced in pediatric sexual abuse-7-

examin ations. The victims' guardian ad litem opposed additiona l medica l examinations. The district court denied the motion fo r furthe r examinations because the detailed reports of Drs. Kapla n andFerrell were available to defendants, and no good cause ha d been shown "that it is necessary to the adequate defense of these cases for the alleged victims to again, for a third time, undergo these invasive procedures at the hands of strangers."
Regarding the request for psychological interviews, th e hearing evidence revealed that social worker Kelson had counseled the victims but took no part in investigating the alleged abuse

. Her focus was therapy, and her detailed reports were available to the defense. Defendants argued that their expert, psychologis t Ralph C. Underwager, needed to interview the victims to demo nstrate that suggestive interviewing and environmental pressures made the childr en's testimony unreliable. The government advised that i t would request interviews by its expert if defense interviews were al lowed. The victims' guardian ad litem opposed psychologica l
ex aminations, particularly by adversarial experts. The distric t
cou rt denied defendants' motion for interviews by Underwage r beca use there “has not been good cause shown as to why thi s additi onal intrusion into the alleged victims already trouble d lives should be ordered.”
We agree with the district court that defendants' showing of needfor these examinations was insufficient. Drs. Kaplan an d Ferrell were well qualified. Dr. Ferrell had ample experienc e conducting colposcopic examinations, had examined children in his practice, and had received training on sexual abuse during hi s residency. Dr. Kaplan examine s six to seven hundred children each month for sexual abuse. He participated in Dr. Ferrell' s examinations, and concurred in his findings. Their detailedDefendants did not tell the district cour t that psychological 3 examin ations were needed to determine the victims' competency t o testify. On appeal, defendants argue that proper hearings w ere not held to assess competency, but they filed no written motion in the district court for competency examinations and thus failed t o preserve this issue. See 18 U.S.C. § 3509(c)(2-4); United States v. Spotted War Bonnett , 882 F.2d 1360, 1362-63 (8th Cir. 1989 ) (subsequent history omitted). Children are presumed competent to tes tify, and the district court made specific findings that eac h child witness was competent. -8- repo rts and findings were made available to defendants' medica l expert. And defendants extens ively cross-examined Drs. Kaplan and Ferrell at trial.

Likewise, defendants did not e stablish need for the requested psychological interviews. Defense counsel and Dr. Underwager had access to Agent Van Roe's inte rview reports and therapist Kelson's extensive notes of her sessions with the children. Kelson wa s calledas a defense witness at trial and questioned about he r counseling methods and contacts with the victims. Dr. Underwager stated at the motion hearing t hat he had sufficient information to assess whether the children had been sexually ab used. He observed 3 the trial testimony of the victims and therapist Kelson, assisted defense counsel at trial, test ified regarding the effects of child interview techniques, and was prepared to express opinions on the suggestibilityof the investigative and therapeutic practice s employed. See Spotted War Bonnett , 882 F.2d at 1362 (intervie w prop erlydenied because defense expert reviewed other intervie w records and was present when victim testified). Finally, the district court property gave strong considerati on to the victims' interests. An adult witness may simply refuse to unde rgo adversarial medical or psychological examinations. Se e United States v. Bittner , 728 F.2d 1038, 1041 (8th Cir. 1984 ) ("the defendant's right of access is not violated when a witness choosesUnlik e the court in United States v. Benn , 476 F.2d 1127 , 4 1130-31 (D.C. Cir. 1973), we do not assume that the court pr esiding over a criminal case may compe l pretrial testing of a child that a social services arm of government believes to be adverse to th e child's best interests. To posit an extreme example, if a govern ment custodian should opine that the interests of a chil d witness require dismissing a prosecution rather than compell ing the childto undergo further traumatic testing, and if the court ca n de vise no other way to protect the defendant's right to a fai r trial, the criminal case may have to be dismissed. This is the basic test for a denial of due process. Se e 5 United States v. Valenzuela-Bernal , 458 U.S. 858, 872 (1982). -9- of her own volition not to be interviewed"). With child witnesses who are in protective custody, the issue is more complex becaus e they are not able to make these difficult decisions for them selves. Of course, the court must protect a criminal defendant's right to
a fair trial, but it must also protect the State's paramoun t interest in the welfare of the child. Making court-ordere d adversarial examinations routi nely available would raise a barrier to the prosecution of this kind of crime by maximizing the trauma that its victims must endure. At a minimum, therefore, the court sho uldheed a custodial agency's opinion that pretrial access t o the child for investigative or adversarial purposes is unnecessary or unwise. 4

Given the difficulty of balancing these important interests,
we conclude that, if the custodian of a child witness oppose s
access as not in the child's best interest, defendant must sho w that denial of access would likely result in an absence o f "fun damental fairness essential to the very concept of justice " before the trial court need reach the question whether some type of access may appropr iately be ordered. Here, the victims' guardian 5 opposed access, and defendants did not show need for the requested examinations. The district court did not abuse its discretion in-10-

declining to order DSS to subject the victims to further med ical or psychological examinations.

B. Victim Testimony by Closed Circuit Television.

Prior to trial, the government filed a motion to permit al l childwitnesses to testify by closed circuit television. At a hearing on this motion, therapist Kelson testified that the victims were afraid of defendants -- " They still believe if they walked in the courtroom today that their uncles would attack them." Th e distri ct court denied the motion without prejudice, concludin g there had not been a sufficient showing that the children co uld not testify due to fear of the defendants.

At trial, when three of the victims were called as witnesses and appeared to be emotionally unable to testify in open cou rt, the district court questioned each child in chambers, in the presence of defense counsel, one prosec utor, the child's guardian ad litem, and a court reporter. See 18 U.S.C. § 3509(b)(1)(c). Five-yearold J. R. was unable to speak when called to testify and stated in chambers t hat she was afraid to speak in front of her uncles

. Considering this statement alo ng with Kelson's pretrial testimony, the court found that defendants' presence in the courtroom woul d "more than anything else prevent her from testifying." The court made similar findings after questioning six-year-old R. R., who was found sobbing outside the courtroom and affirmed in chambers that she was crying out of fear of her uncles; and nine-year-old T. R., who became so fearful before testifying that “the guardian a d litem
wou ldhave had to physically pull her into the courtroom. ” Defendants argue that the dist rict court erred in permitting these three victims to testify by cl osed circuit television. (The other two child witnesses were able to testify in open court.)-11-

The Sixth Amendment's Confrontation Clause "guarantees th e defendant a face-to-face meeting with the witnesses appearin g before the trier of fact." Coy v. Iowa , 487 U.S. 1012, 101 6 (1988). However, this right is not absolute and must accommodate the State's "compelling" interest in "the protection of mino r victims of sex crimes from further trauma and embarrassment. " Globe Newspaper Co. v. Superior Court , 457 U.S. 596, 607 (1982)

. Accordingly, "where necessary to protect a child witness fro m trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair th e child’s ability to communicate, the Confrontation Clause does not prohib it use of a procedure" which preserves "the essence o f effective confrontation" -- testimony by a competent witness , under oath, subject to contemporaneo us cross-examination, and observable by th e judge, jury, and defendant. Maryland v. Craig , 497 U.S

. 836, 851, 857 (1990). Testimo ny by closed circuit television is a procedure now authorized by statute. See 18 U.S.C. § 3509(b).
Before invoking such a procedure, the district court must fi nd tha t the child "would be traumatized, not by the courtroo m generally, but by the presence of the defendant." Hoversten v
. Iowa , 998 F.2d 614, 616 (8th Cir. 1993), quoting Craig , 497 U.S. at 856. See 18 U.S.C. § 3509(b)(1)(B)(I) (child may testify by closed circuit television "if the cou rt finds that the child is unable to testif yin open court in the presence of the defendant . .

. because of fear"). In this ca se, the district court made specific "because of fear" findings for three victims. Our review of th e children's responses to the court's questions in chambers and the prior testimony by therapist Kelson persuades us these findi ngs are not clearly erroneous. See United States v. Carrier , 9 F.3d 867, 870-71 (10th Cir. 1993), cert. denied , 114 S. Ct. 1571 (1994).The system included five monitors in the courtroom for th e 6 jud ge, jury, defense expert, and defendants to view the chil d testifying in chambers; a monitor for the child witness to vie w defendants as she testified; and separate communication line s permitting each defendant to confer with his attorney. Evidence that the victim has accused others of sexual abuse 7 is subject to Rule 412's limitations. United States v. Provost , 875 F.2d 172, 177-78 (8th Cir.), cert. denied , 493 U.S. 859 (1989). -12- Def endants argue that the district court's findings ar e ina dequate because they were not based upon the expert testimon y requir edby § 3509(b)(1)(B)(ii). However, the statute does no t requi re an expert to support a "because of fear" finding. Tha t findin g may be based upon the court's own observation an d questioning of a severely frig htened child. "[O]nce the trial has begun, the court may judge with its own eyes whether the child is suffering the trauma required to grant the requested order." H.R. Rep
. No. 101-681(I), 101st Cong., 2nd Sess. (1990), reprinted i n 1990 U.S.C.C.A.N. 6472, 6574. We also reject defendants ' conten tionthat the closed circuit television system infringe d their Sixth Amendment rights b ecause defense counsel could not see the jury while cross examining the sequestered w itnesses. Compare 6 Spigarolo v. Meachum , 934 F.2d 19, 24 (2nd Cir. 1991).

C. Evidence of Victims' Past Sexual Conduct.

The day before trial, the government filed a motion t o pr eclude evidence of the victims' past sexual activity becaus e defendants had not filed written motions "at last 14 days befor e trial," as required by Fed. R. Evid. 412(c)(1). Defendants the n filed three untimely motions t o offer evidence that one victim had engagedin sexual activity with another child living in he r neighb orhood, that another victim had made accusations of inter

household sexual activity, and that a third victim had acted-out 7-13-

ina sexual manner. The district court excluded this evidenc e because the allegations flowed from an interview with a young boy alm ost three months before trial and therefore defendants had n o good cause for their untimely motions. See Rule 412(c)(1)(A).
On appeal, defendants argue that the district court abused i ts disc retionbecause they effectively gave Rule 412 notice by mentioning the victims' sexual activity in their pre-trial motion for independent medical examinations. We disagree. Rule 41 2 limits the admissibility of such evidence to protect the vic tims of rape and sexual abuse. See Provost , 875 F.2d at 177; UnitedStates v. Azure , 845 F.2d 1503, 1506 (8th Cir. 1988). The Rule has strict procedural requirements, including a timely offer of proo f delineating what evidence will be offered and for what purpo se, and

an in camera hearing at which the victim may respond. Defendants' vague notice fell far short of complying with the Rule, and th e district court properly exclud ed this evidence. See United States v. Eagle Thunder , 893 F.2d 950, 954 (8th Cir. 1990).

D. Admission of Child Hearsay.

At trial, the government offered testimony by FBI Agent Va n Roe of what four victims said during Van Roe's initial interviews in January 1994. Defendants objected. After questioning Ag ent Van Roe outside the jury's presence, the court admitted statemen ts made by the three oldest victims under the residual hearsay exception, Fed. R. Evid. 803(24). On appeal, defendants argue that th e district court abused its discretion in admitting this testimony.

This contention is at odds wit h "a formidable line of Circuit precedent that sanctions the use of hearsay testimony in chil d sexual abuse cases." United States v. St. John , 851 F.2d 1096,-14-

1093 (8th Cir. 1988). Here, the district court determined t hat FBI Agent Van Roe had been trained to interview children in abus e cases, interviewed the children individually at the home of their foster parent, and did not askleading questions. Agent Van Roe’s testi monyand interview notes established that the victims ' responses were spontaneous and not repetitious. The victims ' st atements also provided more details regarding the abuse tha n their testimony at trial. In these circumstances, the distric t court did not abuse its discretion in admitting the initia l interview statements. See United States v. Grooms , 978 F.2d 425, 426-28 (8th Cir. 1992). Defendants also argue that admission o f the victims’ statements violated the Confrontation Clause a s
con struedin Idaha v. Wright , 497 U.S. 805, 815-16 (1990)

. However, the Confrontation Clause was satisfied because the victims testified at trial. See Spotted War Bonnet , 933 F.2d at 1473.
III. Exclusion of Expert Testimony on Implanted Memory.
After failing to exclude or nullify the testimony of the chi ld victims, the defense concentrated on undermining the credibi lity of tha t testimony. In addition to cross-examining the doctors, th e victims, and FBI Agent Van Roe during the government's case, th e defens e called therapist Kelson and DSS witnesses as advers e witnesses, seeking to prove that the children were forcibly removed from Rosemary Rouse's home and then interviewed at length by manyWithout citing specific instances of error or supportin g 8 author ity, defendants argue that the district court erred by failing to control witness Kelson. We have reviewed this portion of the trial testimony and conclude that the court properl y exercised its discretion in maintaining reasonable control o ver the examinationand testimony of this witness. See Fed. R. Evid

. 611(a); United States v. DeLuna , 763 F.2d 897, 911 (8th Cir.) , cert. denied , 474 U.S. 980 (1985). -15- government investigators. The culmination of this defense was the 8 testimony of psychologist Underwager as a defense expert witness.

The district court held a preliminary hearing to explor e whether Dr. Underwager's proposed testimony was sufficientl y
re liable scientific evidence that would assist the jury t o unders tanda fact in issue. See Fed. R. Evid. 702; Daubert v

. Mer rill Dow Pharmaceuticals, Inc. , 113 S. Ct. 2786, 2796 (1993)

. The court heard Dr. Underwager 's proposed testimony concerning his theories of “learned” or “implanted” memory. After reviewin g scient ific research and publications offered in support of thes e theories, the court made two preliminary rulings:

I'm not going to allow Dr. Und erwager to testify as to whether or not the [child] witness's testimony i s believable or not, or telling the truth or not. [W]ith regard to the principles and the methodology , this is an area of valid scientific inquiry, but there i s not anywhere near yet the agreement in the community as to methods, techniques, testings or reliability tha t would warrant the admissibility before a jury of thes e matt ers . . . . It would result in a confusion of th e issues , a possible misleading of the jury by undu e reliance possibly being placed upon [one side' s methodology]. So, for these r easons, under Daubert , I'm not going to allow evidence wi th regard to the different

. . . psychological methods of evaluating the reliabilit y of witnesses.Dr . Underwager testified that “preconceived assumptions o f 9 the interviewer are the single most powerful determinant of wha t comes out of an interview.” -16- Later in the trial, Dr. Underwager was called as a defens e witness. He testified at length concerning his own research into the ways in which the reliability of children's allegations o f physic al or sexual abuse may be tainted by adult questionin g pr actices that suggest false answers or even implant fals e memories. Dr. Underwager identified for the jury practices o f “suggestibility” that produce unreliable child testimony -- use of leading or coercive questions; communicating adult assumptio ns that
cause the child to give what is perceived as the desired answer; 9 repetitive questioning; play therapy, which Dr. Underwager opined has “no scientific support”; adult use of rewards or negativ e reinfo rcement that motivate children to lie; and “cros s germination” among a group of children who pick up stories fro m each oth er. Dr. Underwager opined that “a memory can be create d . . . by questioning someone.” Moreover, “[t]he younger the child, the greater the suggestibility, the more vulnerable they are to the influences.”
When the prosecution successfully objected to some questions put to Dr. Underwager, defendants made an offer of proof at the end of his direct examination. In a three-page narrative answer to the quest ionwhether “there's been a practice of suggestibilit y emp loyed” with the child victims, Dr. Underwager opined (i) tha t th erapist Kelson had exerted “massive social influence” on th e victims; (ii) that Kelson enga ged in “highly suggestive and highly
co ntaminating” practices; (iii) that the prosecutor used leadin g questi ons at trial and the children “were comfortable doing th e yes/no bit,” showing “they'd l earned” to answer yes; (iv) that Van Roe's use of diagrams was “very suggestive and very leading”; (v)In a letter to defense couns el just before trial that became 10 a preliminary hearing exhibit, Dr. Underwager said he was prepared to op ine “that the children in this case have been subjected t o massiv e and coercive social influence by adults . . . such as t o make it highly likely any statements are so contaminated by adult behaviors as to be unreliable.”
Inthis regard, we note that Dr. Underwager's attempts t o 11 exp ress such opinions in other child abuse cases have bee n consistently rejected. See State v. Swan , 790 P.2d 610, 632 (Wash. 1990) (en banc), cert. denied , 498 U.S. 1046 (1991); State v
. Erickson , 454 N.W.2d 624, 627-29 (Minn. App. 1990). -17- that the children “were kidnap ped . . . taken from their families, taken to this strange place where all of the people are concerned that they talk about sex abuse”; and (vi) that the “tota l environment [was] one of the m ost powerful and coercive influences upon children that I've seen.” The district court excluded these opinions as not proper subjects of expert opinion.

On appeal, defendants argue ge nerally that the district court misa pplied Daubert in excluding Dr. Underwager’s testimony. W e findtwo distinct components to this issue. First, we conclud e th at the district court's preliminary pretrial rulings regardin g the sc ope of Dr. Underwager's testimony did not abuse it s discretion. See Cook v. American S.S. Co. , 53 F.3d 733, 738 (6th Cir. 1995) (standard of review ). It is clear from the record that thi s expert was intent upon expressing his ultimate opinion tha t the vi ctims' accusations of sexual abuse were not credible. But 10 assessing the reliability or c redibility of a victim's accusations is the exclusive function of the jury. Dr. Underwager's opinions about witness credibility were properly excluded. See Westcott v. Crinklaw , 68 F.3d 1073, 1076 (8th Cir. 1995); United States v

. Witted , 11 F.3d 782, 785-86 (8th Cir. 1993); United States v

. Azure , 801 F.2d 336, 339-40 (8th Cir. 1986). The district court 11 was also well within its discretion in ruling that Dr. Underwager-18-

should not embellish his own research and opinions by telling the jury about the research and writings of other psychologists because the se works have not produced a consistent body of scientifi c knowle dge and therefore admission of other theories and writing s
wo uldresult in a battle of experts that could confuse or eve n mislead the jury.

The second issue, whether the court erred in rejectin g defendants' offer of proof at trial, is more difficult. Ind eed, it is an issue on which we continue to disagree. A qualified expert mayexplain to the jury the dangers of implanted memory an d suggestive practices when interviewing or questioning chil d witnesses, but may not opine as to a child witness's credibility. That l eaves a troublesome line for the trial judge to draw -- a s the expert applies his or her general opinions and experiences to the c ase at hand, at what point does this more specific opinio n testimony become an undisguised, impermissible comment on a child vic tim's veracity? The issue was unusually difficult for th e district court in this case be cause defendants made their offer of proo f through Dr. Underwager's three-page monologue, instead o f asking the court to rule on specific questions and answers, an d because of Dr. Underwager's obvious desire to testify imperm issibly on the children's lack of credibility.
Our differing views on the question whether the district cou rt erred in rejecting defendants' offer of proof are set forth in the vacatedpanel opinions. See Rouse , 100 F.3d at 566-74, 582-85

. Having again considered this issue in light of the voluminou s trial record, a majority of the panel has concluded that exclusion o f this additional expert testimony was, in any event, harmless error. We bas e this conclusion on a number of factors. First, the jur y heard evidence as to the interviewing techniques used by fosterWhen the first child witness (the nine-year-old male cousin) 12 froze on the stand in open court, the district court, consisten t with n umerous Eighth Circuit cases, ruled that leading question s couldbe asked of reticent child witnesses. Defendants did no t object to this ruling nor raise the issue on appeal. -19- parent Jordan, therapist Kelson, and FBI Agent Van Roe. It learned of the social influences affecting the victims at the time the y accused their uncles of sexual abuse. And it observed the victims testif yand knew that the prosecutor asked the children leadin g que stions at trial. Second, the jury heard Dr. Underwage r 12 descri be at length the ways in which adults can influenc e children's memories and the possible impact of such influences on their credibility. Defense counsel used this expert testimony to define their theory of implanted memory in closing argument:

The qu estions were asked over and over and over agai n and, when the story came out the way the adults wante d it, then the children were rewarded . . . . [W]hen [J

. R.] was testifying . . . did y ou notice [the prosecutor] . . . phrased most of the ques tions in a manner in which she would get a positive respo nse, a “Yes” answer. . . . [Dr. Underwager] talked about the influence that people hav e on children, when they interview kids. He talke d about memory, the process of reconstruction, implantatio n of mem ory, play-therapy, worthless. . . . The childre n on lyfelt comfortable answering “Yes” or “No”. The y didn't show memory of the events. The FBI Agent' s diagram that he used, the drawing of the male body with the penis drawn in, what did that tell the kids that he wantedto talk about? Everything was calculated t o produce some sort of compliance with these kids . . . .
This gave the jury an informedbasis on which to make its ultimate determinations as to the victims' credibility. Third, the v ictims' trial testimony was consistent with their “free recall” -- R. R.'s repor ts of abuse to Jordan and Kelson in early January, and th e fou r oldest victims' reports to Dr. Kaplan during his initia l medical examinations. These u nprogrammed disclosures preceded the-20-

FB I interviews and Ellen Kelson's therapy. Dr. Underwage r test ifiedfor the defense that, “[b]asically, the most reliabl e information is obtained from free recall.” In these circums tances,
we conclude that exclusion of additional testimony by Dr

. Unde rwager regarding whether a “practice of suggestibility” wa s employed on the victims “could not have had substantial influence on the outcome of the case,” Azure , 845 F.2d at 1507, the go verning harmless error standard. See 28 U.S.C. § 2111; Brecht v

. Abrahamson , 113 S. Ct. 1710, 1718 & n.7 (1993).

IV. Juror Bias.

Afte r the trial, Verna Severson, who worked with juro r Patricia Pickard at a local preschool, called the Clerk's Of fice to complainthat Pickard should not have served on the jury becaus e she is prejudiced against Native Americans. The court held a n evidentiary hearing on this issue. Severson testified that Pickard made derogatory statements about Native Americans before the trial; Pi ckarddenied this allegation. Severson alleged that Pickar d refused to teach a Native American unit in her class; Pickard and the school's director testified that Pickard had taught a Nativ e Ame ricanunit for years. Severson testified that Pickard ha d stated, “it's a sad thing to b e born an Indian girl because Indian girls are used for sexual purposes”; Pickard explained that he r sister-in-law, a counselor, made that comment after the trial and Pickard had repeated it not as her own belief. Three of Pickard's other co-workers testified that Pickard is not a racist. Tw o witnesses questioned Severson's reputation for truthfulness.

Aft er hearing this testimony, the district court denie d defendants' motion for a new t rial, finding that juror Pickard had “responded honestly and accurately” during voir dire and had not-21-

concealed “any racially prejudiced attitudes, beliefs, or op inions” about Native Americans. The court found that “as between juro r Pickar dand Ms. Severson, juror Pickard [was] the more credibl e witne ss.” The court further found that the jury foreman and a n alt ernate juror “testified credibly that they did not hear juro r Pickard make racially disparaging remarks about the defendants or about Native American people during the trial,” and “that n o improper outside influence aff ected the jury.” These findings are not clearly erroneous. They establish that defendants are no t entitled to a new trial because of juror Pickard's responses during voir dire

. See McDonough Power Equip., Inc. v. Greenwood , 4 64 U.S. 548, 556 (1984); United States v. Whiting , 538 F.2d 220, 222-2 3 (8th Cir. 1976).

Def endants further argue that they are entitled to a ne w trial because juror Pickard admitted that she laughed at a comment about Native Americans during the jury deliberations. However, we agree with the district court that this neither overcame th e court's finding that the jury was not subjected to improper outside influence, nor justified further inquiry into the validity of the verdict. See Fed. R. Evid. 606(b); United States v. Tanner , 48 3 U.S. 107, 120-27 (1987).

V. Jurisdiction Issues.

Afte r both sides rested, defendants moved for judgments o f acquittal on the ground that the government had failed to pr ove the allege doffenses occurred in Indian Country. The governmen t responded by moving to reopen its case to better establish t hat the alleged sexual abuse occurred at grandmother Rosemary's home on the Yankto nSioux Reservation. After expressly considering both th e possible prejudice to defendants in reopening, and the impact on-22-

the child victims of having to testify again, the district cour t rul edthat the government could reopen to offer limited evidenc e regarding offense location. T he parties then stipulated that this evid ence would establish that all alleged offenses except thos e involving J. R. had occurred in Indian Country. The governmen t
reo penedits case and placed this stipulation into evidence, an d the court denied defendants' motions for judgment of acquittal.

A. Allowing the Government To Reopen Its Case.

De fendants first argue that the district court abused it s dis cretionby permitting the government to reopen its case t o establishthis jurisdictional fact. The trial court has broa d dis cretionto allow the prosecution to reopen to establish a n element of an offense after the defendant has moved for judgment of acquittal. See, e.g. , United States v. Powers , 572 F.2d 146, 152- 53 (8 th Cir. 1978), involving whether the weapon at issue was a “fi rearm.” The relevant inquiry is “whether the evidence cause d surpri se to the defendant, whether he was given adequat e opportunityto meet the proof, and whether the evidence was mor e detrimental to him because of the order in which it wa s introduc ed.” United States v. Webb , 533 F.2d 391, 395 (8th Cir

. 1976). Here, defendants were not surprised by the evidence, an d the district court carefully l imited its ruling to avoid prejudice from allowing victim testimony late in the trial. There was n o abuse of discretion.

B. Insufficient Evidence of Jurisdiction.

Defendant Jesse Rouse also arg ues that there was insufficient evidence that he sexually abused J. R. in Indian Country, a fac t essential to federal jurisdiction over that offense. See 18 U.S.C.In the previous opinion, we also ruled that the trial court 13 prejudicially erred by denying “the defendants’ motion for independent psychological examination” of the children in light -23- § 1153(a). The trial testimony focused on events that occurred at “grand ma's house,” grandmother Rosemary Rouse's home in India n Country. J. R. testified that she lived in Marty, that she spent a lot of time at grandma's house, and that her uncles were o ften in that h ouse. She testified that it was not safe at the hous e “[b]ecause our uncles are doing naughty stuff to us.” Jess e testif iedthat he lived at Rosemary’s house from September 199 3 until the victims were removed in January 1994. Viewing thi s evidence in the light most favorable to the jury's verdict, as we must, we agree with the district court that there was sufficien t evidence to support the jury's finding of jurisdiction.
The judgments of the district court are affirmed.
McMILLIAN, Circuit Judge, concurring in the result.

I conc ur in the result affirming the convictions, but onl y because I agree that the exclusion of the expert evidence wa s harmless error.
BRIGHT, Circuit Judge, dissenting. I respectfully dissent. Previ ously, two judges on this panel reversed the convictions in this case because the trial judg e erred by rejecting the expert opinion evidence in question. Unite d States v . Rouse, et al. , 100 F.3d 560 (8th Cir. 1996). The ne w majority now affirms the convictions on grounds that such er ror was harmless. I disagree. Depriving the jury of the questione d evid ence critically eroded the strength of the defense and , therefore, did not constitute harmless error. 13of the coercive questioning and interrogation of the alleged

victims. See Rouse , 100 F.3d at 562-63. I stand by this ruling. Nevertheless, this error fails to justify a new trial unless the exclusion of the expert testimony regarding coercive influences on the children constituted prejudicial error.

-24- I. DISCUSSION
This dissent fully incorporates the panel opinion previously reportedat 100 F.3d 560. In the interests of comprehension , however, I shall reiterate some of that prior opinion.

The convictions rested upon the following evidence: th e uncorroborated testimony of four of the thirteen children in itially
remo vedfrom their families, medical evidence describing tissu e injuries in the victims’ vaginal and anal areas, and stateme nts the alleged victims made to other adults. In my view, this evid ence is suspect. For example, the “children’s evidence and testimony [in thi s trial] became tainted by suggestive influences to which th e chil drenwere subject in the investigation and trial, whic h influe nces included taking the children (the alleged victims an d nine other children) from their families and from their resi dences” for extended periods of time. Id. at 562. During this isolation, which lasted up to six months, social workers and investigator s subjected the alleged victims to repeated and intense questioning. Despite the interrogation, nin e of the children steadfastly denied any abuse. Furthe rmore, the medical evidence introduced at trial wa s inconclusive. For example, th e defense challenged the conclusions of the prosecution’s witnesses, the prosecution failed to es tablish the source of any injuries to the alleged victims, and the medical-25-

eviden ce lacked photographic documentation of the injuries. Se e id. at 575-76. In addition, t he district court excluded important
ev idence of inter-child sexual activity which potentially skewe d the medical findings relating to the victims’ injuries. Id. These ambiguities magnified the importance of the children’s testi mony to the jury’s verdict, thereby exacerbating the harm suffered by the defense when the district court excluded the expert’s opinio n. The foll owing discussion reiterates the background for the expert’ s testimony and explains why the exclusion of that testimony r esulted in substantial harm.

A. BACKGROUND FOR THE EXPERT TESTIMONY

The panel’s earlier opinion discussed the investigation by social services personnel, the FBI’s interrogations of the alleged victims and others, and the manner of eliciting the children’ s testi mony. See id. at 563-66. The opinion also questioned th e rel iabilityof the children’s bizarre stories. Id. at 563-6 6 (noting, for example, that investigators and social workers offered rewards for the children’s “truthful” testimony).

We examine the defense’s offer of proof, including background evidence provided to the court by the expert witness outside th e presence of the jury. We repeat from our earlier opinion:

At trial, the defense offered the testimony of Dr. Ralph Charles Underwager. Dr. Underwager is a clinical ps ychologist and has been practicing his profession o r teaching psychology for approximately twenty years. He has conducted extensive resear ch and writing in the area of c hild sex abuse and is familiar with extensiv e psychological research into th is subject during the past ten years. His expertise has not been challenged by the prosecutor, only the substance of his testimony.

. . . .-26- Withthis background, we examine Dr. Underwager’ s foundationand compare that foundation and his commentar y onsuggestibility with the status as of the time of tria l of psychological research and writings concerning child witnesses and their susceptibi lity to faulty memory. As note dabove, in the defense’s offer of proof, Dr

. Unde rwager testified outside the presence of the jur y that from his review of the fi les, records and testimony in t his matter, there had been “a practice o f suggestibility employed in the se techniques.” (Tr. Vol. IX at 1768.)
He f urther testified outside the presence of th e jurythat Kelson’s notes revealed she had exerted a massive influence over the children; she had a powerful prior assumption or conclusion that the children had bee n abused; and she engaged in highly suggestive an d contaminating practices, such as the groups an d questioning. Dr. Underwager testified the prosecuto r asked the children only if they remembered reporting an in cident to a particular individual (FBI agent, socia l wo rker, etc.), rather than whether they remembered th e incident itself; the prosecuto r used exclusively leading ques tions in the courtroom and the children’s comfor t level showed they were used to this type of questioning. He testified that studies show that adults almost always relyon leading questions given the task of findin g something out from a child.
Dr. Underwager found the FBI’s use of sexuall y explicit diagrams very suggestive and leading, an d asser tedthe evidence does not show such diagram s accomp lishanything other than to suggest to the chil d that the interviewer is interested in sexual behavior.
He t estified that a large body of research show s that the presence at an interview of several adults-

- people of relatively high status--increases th e conformity and compliance with what those adults expect from a child.
Dr. Underwager testified that the documents from th e case files and courtroom testi mony suggested to him that powerful and potentially coercive influences had bee n br ought to bear on the small four- and five-year-ol d child renwho were taken without notice from thei r mothers, families and homes, without being told th e reasons and kept incommunicado in a strange place where-27-

all the people around them urged them to talk about sex abuse. (Tr. Vol. IX at pp. 1768-74.)

Id. at 566, 568-69.

Th e prosecution, however, objected to this offer of proo f bec ause the testimony reflected “an area ‘within the province o f the jury and not within something that an expert should testif y on.’” Id. at 566 (quoting Trial Tr. Vol. IX at 1771). Th e dis trict court agreed and “rejected the offer as essentially no t the subject of expert testimony and not reliable or relevant under Federal Rule of Evidence 104(a) and confusing and misleadingto the juryunder Federal Rule of Evidence 403.” Id. at 566-67

. Furt hermore, the district court “barred the expert witness fro m test ifying on whether or not the investigative practice s constituted ‘a practice of suggestibility.’” Id. at 567.
The prior panel opinion demons trated that the proposed expert testimony passed the test for reliability under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993). Rouse , 100 F.3d at 567-68 , 572 (discussing application of Daubert analysis to “sof t science”). That opinion revie wed the nature of the investigations andinterrogations of the children against the commentary in a recent article presented to the district court:

We have examined both the evidence and th e literature presented to the district court and conclude that b oth support the defendants’ offer of proof. I n particular, the district court made reference to a recen t article by Stephen J. Ceci and Maggie Bruck , Suggestibility of Child Witnesses: A Historical Review andSynthesis , 113 Psychological Bulletin 403-439 (1993) , which reviews the research and writing on the subject an d su pports the view that the very matters observed an d testifiedto by Dr. Underwager can produce biased, untru e or false memories in children, and more particularly-28-

young children. Almost all the other literatur e presented to the court is cons istent with the Ceci-Bruck article.
The Ceci-Bruck article does not state that youn g childrenshould not testify but observes that many commo n interviewing practices can produce an altered memory

. Among other things, the article documents adequat e research indicating the following:
1. A subject’s, particularly a child’s, origina l verbal answers are better remembered than the actua l events themselves, yes-no questioning leads to mor e error, and young children are particularly vulnerable to coaching and leading questions. Id. at 406-09.
Are view of the record here reveals the childre n were asked entirely leading questions in court. Eve n though the children testified by television outside the presence of defendants, the prosecutor asked suggestive questions. Not only did the questions call only for yes or no answers, the children were asked only if the y remembered reporting abuse to law enforcement officers, do ctors, and their therapist, rather than whether the y remembered the alleged abuse itself.
The questioning at trial represents a highl y questionable aspect of testifying about an event. This is exactly what Dr. Underwager described in his offer of proof. 2. Children desire to comply or cooperate with the respected authority figure interviewer and will attempt to make answers consistent with what they see as th e intent of the questioner rather than consistent wit h their knowledge of the event even if the question i s biz arre. Id. at 418-19. Interviewer bias can ske w results as a child will often attempt to reflect th e interviewer’s interpretation of events, particularly whe n more than one interviewer shares the sam e presuppositions. Id. at 422. If the interviewer’ s original perception is incorrect, this can lead to high levels of inaccurate recall. Here, these children were take n from their homes on the basis of a five-year-old’s statements, and wer e placedunder the sole supervision and influences of Donn a Jordan, Jean Brock, and Ellen Kelson--interviewers who-29-

had decided at the outset that all the children had been sexually abused. The FBI agents were also stron g authority figures-- the kind of high status interviewers described by Dr

. Underwager--with preconceived notions about the facts of this case, and they did not in terview the children until after the children had been wi th Jordan for over a week. Agent Van Roe testified that h e had explained his status as an FBI agent at the initial interview and told th e childrenthat an FBI agent was like a policeman on th e reservation. Van Roe testified that Jean Brock an d foster mother Donna Jordan remained in the room while FB I agents conducted the initial interviews of the children onJanuary 19 and 21, 1994--over a week after th e childr enwere taken from their parents’ homes, told by Jordan and Brock that this was because their uncles had done bad things to them, and put into the care of Jordan

. At this initial interview, R.R . handed investigator Hudspeth

a group of papers which reflected things she ha d previously told foster mother Donna Jordan which Jordan had written down for her. Thu s, agents received a frame of ref erence which could produce bias, even before th e start of the interviews.
3. Repeated questions can produce a change o f answer s as the child may interpret the question as “ I must not have given the correct response the first time, ” and the child’s answers may well become less accurat e ove r time. Id. at 419-20. Repeated questioning o f victims often results over tim e (or even within a single interview) in an inaccurate report. A three-month hiatus existed f rom the time R.R. was taken from her home to the tim e of her complaints of sex abuse. These children were repeatedly questioned by Brock, Jordan, Kelson, doctors and law enforcemen t age nts. By March 1994, the children’s accounts of th e famili al sexual abuse were so skewed that the distric t court refused to admit these interviews into evidence.
4. Younger children are more susceptible t o suggestibilitythan older children, especially in th e context of stereotyping. Id. at 407, 417. Stereotypes organize memory, sometimes distorting what is perceived by adding thematically congruent information that was no t perceived, and stereotype formation interacts withKelson testified at a hearing in May 1994 that the children 14 felt isolated and withdrawn and missed the nurture of their mothers and extended families; “[O]ne of the children said they felt trapped, isolated.” (Trial Tr. Vol. V at 694.) Although the children testified that Jordan, their foste r 15 mother, told them their uncles had been doing bad things to the m and t alked to them of the abuse, Jordan testified she had neve r talked to the children about their uncles or told them that their uncles were bad or did bad things. She subsequently acknowledged she had told the children a lot of bad things had happened t o them, had gotten very specific about what these bad things were, and had toldthem this was not their fault. Jordan testified sh e del iberatelytried to avoid discussing the sex abuse with th e children or influencing them, but acknowledged that it had b een her experience as a foster parent that children are easily susceptible to suggestion and influence by adults.
Brock also denied ever tellingthe children that their uncles were bad or explaining to them why they were being taken awa y. The ch ildren’s versions and other evidence provided ample foundatio n for the expert’s proposed opinion. -30- su ggestive questioning to a greater extent for younge r rather than older children. Id. at 416-17. Studies hav e shownchildren are particularly susceptible to a n interviewer’s “bad man” stereotype, and when repeatedly told the actor is a bad man, they may construct a false acco unt of an event often embellished with perceptua l details in keeping with the stereotype. Id.
Here , various persons told the children from th e be ginning that the defendants were “bad” and that i t would not be “safe” to go home until the defendants were gone. The children remained isolated from their familie s and co mmunity. The “bad man-uncle” theme was replayed 14 again and again, including at trial. In addition, the 15 childrentestified via closed circuit television based o n their “fear” of defendants. While closed circui t television, other security pro cedures at the courthouse, and di sallowing the children to see any family member s before the trial did not amount to trial error, thos e procedures served to reinforce the children’s “bad men” stereotype of their uncles, the defendants.-31- 5. The use of anatomical dolls or sexually explici t materials will not necessarily provide reliable evidence as children may be encouraged to engage in sexual pla y with dolls, etc., even if the child has not been sexuall y ab used, and further no normative data exists on non

abused children’s use of dolls. See id. at 423-25.
The second law enforcement (January 21) intervie w took p lace at the United States Attorney’s Office wit h the Assistant United States Attorney present. Th e chi ldrensaw an anatomical drawing of a penis. Later , Ke lsonutilized play therapy and art media, an d apparently

dream journals. Dr. Underwager testified tha t expo sing children to these materials suggests to the m that the authority figure wants information about sex.
6. “[A] major conclusion is that contrary to th e cl aims of some, children sometimes lie when th e motivational structure is tilted toward lying.” Id. at 433. Patterns of bribes for disclosures, implied threat s innondisclosures, or insinuations that peers hav e already told investigators of suspects’ abusive behavior are highly suggestive. Id. at 423. Children will li e for personal gain, and material and psychological reward s need not be of a large magnitude to be effective. Id. Here, the children were promis ed picnics, vacations and even a chance to return home as a reward for thei r “tru thful,” successful testimony at trial. They wer e told they could not go home until their uncles had been successfully removed. Experts are critical of this kind of reward as “bribing” childre n to “admit” abuse or give ab use-consistent answers, such as promising to end th e interview, or giving them other tangible rewards. Such techniques affect the accuracy of children’s reports. 7. Dr. Underwager testified regarding the concept of “cross-germination” among the children. Children in studies and in actual cases have shown that peer pressur e or i nteraction with other children has effects on th e accura cyof their reporting: they will provide a n inaccurate response when other children have “alread y told” in order to go along with a peer group or be part of the crowd. See id. at 423; see also Stephen J. Ceci, Je opardyin the Courtroom: A Scientific Analysis o f Children’s Testimony146-50 (American Psych. Assoc. 1st ed. 1995). In several cases where convictions have been overturned, children were shown to have talked with one-32-

another about the abuse, sometimes even sibling s questioned siblings to get them to “open up” or provide incriminating evidence. Id. at 150-51. As mentioned above, Kelson rep orted that she talked to the group in “talk circle”; that the group seemed to have discussed an agenda among themselves each week and that T.R. was the ringleader. Testimony at tria l reflects that Jordan, Kelson, and FBI agents spoke to an d questioned the children in groups about the abuse.
The Ceci-Bruck article’s summary relating t o interviewing of children stated:

Th e studies on interviewing provid e ev idence that suggestibility effects ar e influencedby the dynamics of the intervie w itself, the knowledge or beliefs possessed by the interviewer (especially one who i s unfamiliar with the child), th e emotional tone of the questioning, and the props used

. Childrenattempt to be good conversationa l partners by complying with what they perceive to be the belief of their questioner. Thei r perceptions, and thus their suggestibility , may be influenced by subtle aspects of th e interviewsuch as the repetition of yes-n o questions, but their compliance is evidence d mo st fully in naturalistic intervie w situations in which the interv iewer is allowed to question the child freely; this gives th e childthe evidence to make the necessar y attributions about the purposes of th e interview and about the intent s and beliefs of the interviewer. Observations of interactions i n the legal arena highlight the fact that children wh o testifyin court are not interviewed i n sterile conditions such as tho se found in many of the experiments we have rev iewed. They are us uallyquestioned repeatedly within an d across sessions, sometimes about an ambiguous event by a variety of interviewers, each with thei r own agenda and beliefs. Children ar e sometimes interviewed formally and informally for many months preceding an official law

en forcement interview with anatomical dolls ,-33- providing an opportunity for the child t o ac quire scripted and stereotypical knowledg e about what might have occurred.

Id. at 425. The authors conclude with these comments:

Our review of the literature indicates tha t chil drencan indeed be led to make false o r in accurate reports about very crucial , personally experienced, central events.

. . . . Th erefore, it is of the utmost importance t o examine the conditions prevalent at the tim e of a child’s original report about a criminal event in order to judge the suitability o f usin g that child as a witness in the court

. It seems particularly important to know th e circumstances under which the initial repor t of concern was made, how many times the child was questioned, the hypotheses of th e interviewers who questioned the child, th e kind s of questions the child was asked, an d th e consistency of the child’s report over a period of time. If the child’ s disclosure was ma de in a nonthreatening, nonsuggestibl e atmosphere, if the disclosure was not mad e after repeated interviews, if the adults wh o had ac cess to the child prior to his or he r testimonyare not motivated to distort th e ch ild’s recollections through relentless an d potent suggestions and outright coaching, and if the child’s original report remains highly consis tent over a period of time, then th e young child would be judged to be capable o f providing much that is forensically relevant. Th e absence of any of these conditions woul d not in and of itself invalidate a child’ s te stimony, but it ought to raise cautions i n the mind of the court.

Id. at 432-33.The majority opinion discusses the trial court’s rejection of 16 Dr. Underwager’s attempt to buttress his testimony by refere nces to ot her research and writings. Maj. Op. at 17-18. The majorit y expresses concern that admitting “other theories and writing s would result i n a battle of experts that could confuse or even mislea d the jury.” Id. at 18. There is no battle of experts here. Even the prosecution’s expert agreed that children’s memories may b e falsified. Rouse , 100 F.3d at 572. -34- Rouse , 100 F.3d at 569-72. Other references also supported th e reliability of the expert’s testimony. 16

The majority does not dispute that the district court erred by excluding the offer of proof, but affirms on the basis tha t excluding the testimony amounted to harmless error. The majority notes the differing views on the offer of proof set forth in th e prior, vacated panel opinion a t 100 F.3d at 566-74, 582-85. I now examine this harmless error contention.

B. THE ERROR WAS NOT HARMLESS
In determining whether the district court’s rejection of the offer of proof of the defendants’ expert constituted harmles s error, we rely on Federal Rule of Criminal Procedure 52(a). That rule states:

(a) H armless Error. Any error, defect , irregularityor variance which does not affec t substantial rights shall be disregarded.
We consider, then, whether the court’s error substantially a ffected the defendants’ rights and whether it influenced or had more than
a slig ht influence on the jury. See Crane v. Kentucky , 476 U.S

. 683 (1986); United States v. DeAngelo , 13 F.3d 1228 (8th Cir

. 1994); United States v. Copley , 938 F.2d 107 (8th Cir. 1991). The-35-

crucial issue at trial in this case was whether the childre n testified to actual events or from implanted memory. The excluded evidence directly addressed this issue and its exclusion deprived the defendants of substantial rights.
The majority considers the evi dentiary error harmless because the jury received evidence about interviewing techniques, learned of the social influences affecting the alleged victims and l istened to them respond to the prosecution’s leading questions. I n ad dition, the jury heard Dr. Underwager generally describe ho w adu lts can influence children’s memories and the impact of thes e influences on the alleged victims’ credibility. Further, defense counsel relied on Dr. Underwager’s testimony to argue the th eory of implantedmemory. Thus, the majority asserts that the jur y receiv edan “informed basis on which to make its ultimat e de terminations as to the victims’ credibility,” and that tria l testimony accords with the children’s “free recall.” Maj. Op. at 19.

I disagree for five reasons. First, in my reading of th e
re cord, no “free recall” statements by the children exist

. Instead, all early statements were subject to adult influences.

Second, the jury needed the excluded expert testimony t o render a truly informed judgment about whether the children’ s test imonyresulted from implanted memory. According to Dr

. Underwager and authoritative writings discussed above, the foster home persons, the social workers, the FBI and even the distric t judge used or permitted potentially coercive investigativ e qu estioning and techniques. Thus, if investigators used thes e techniques, even with the best of motives, they potentially induced false or faulty memories and testimony. The jury, however, would-36-

not recognize these possibly coercive influences without th e assistance of the excluded expert testimony.

Third, one juror “may have believed that long delay an d persis tent, lengthy questioning of young children would likel y produce truthful testimony.” Rouse , 100 F.3d at 572, n.15. As our previous panel opinion concluded, however, “the contrary has been well established,” id. , and th is misunderstanding exemplified “the desirabilityand necessity of expert opinion on the subject a s offered by Dr. Underwager.” Id. The juror’s belief, based on an assumption contrary to the expert’s scientific opinion, reflected the jury’s need for assistance to understand the evidence re garding the suggestibility of children’s memory.

Fourth, the majority, even if not a ground for a new trial , acknowledges that the record contains some evidence of preju dice by one or more jurors against Native Americans. See Maj. Op. at 20- 21; see also Rouse , 100 F.3d at 577-78. If even slight prejudice exi stedin one or more jury members, evidence challenging th e credibility of the children’s testimony against the Native A merican de fendants would be important to help overcome any juror’ s prejudice.
Finally, as a result of the exclusion of the expert’s opinio n, th e defense counsel’s argument about implanted memories of th e yo ung witnesses represented empty words unsupported by evidence

. The majority refers to argument of the defense counsel:

The qu estions were asked over and over and over agai n and, when the story came out the way the adults wante d it, then the children were rewarded . . . . [W]hen [J

. R.] was testifying . . . did y ou notice [the prosecutor] . . . phrased most of the ques tions in a manner in which she would get a positive respo nse, a “Yes” answer. . . .-37-

[Dr. Underwager] talked about the influence that people hav e on children, when they interview kids. He talke d about memory, the process of reconstruction, implantatio n of mem ory, play-therapy, worthless. . . . The childre n on lyfelt comfortable answering “Yes” or “No”. The y didn’t show memory of the events. The FBI Agent’ s diagram that he used, the drawing of the male body with the penis drawn in, what did that tell the kids that he wantedto talk about? Everything was calculated t o produce some sort of compliance with these kids . . . .
Maj. Op. at 19. Because the district court erroneously exclude d the expert’s opinion that suggestive interrogation technique s potentiallytainted the children’s testimony, defense counsel’ s statement reflected only argum ents of counsel, not evidence. With Dr. Underwager’s testimony, however, counsel’s argument coul d constitute substance over rhetoric.

II. CONCLUSION
For the foregoing reasons, the evidentiary error in question
was no t harmless; rather, its exclusion substantially harmed th e defendants. The circumstances of this case raise a close question as to the validity of the verdict and, therefore, I would gr ant the defendants a new trial.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.