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. *
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___________

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 Rouse, and their cousins, Garfield

Feather and Russell Hubbeling, appeal convictions for sexual abuse

of young children on the Yankton 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

expert opinion testimony and in denying defendants' motion for

independent pretrial psychological examinations of the abused

children. See United States v. Rouse, 100 F.3d 560 (8th Cir.

1996). After the court granted the government's suggestion for

rehearing en banc and vacated the panel opinions, the panel granted

the government's petition for rehearing, and the court denied

rehearing en banc as moot. Having further considered the parties'

contentions on appeal, we now affirm. 
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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 of 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 abuse to

Jordan, who reported to the Tribe's Department of Social Services

(“DSS”) (as Jordan was required to do) that R. R. said she had been

sexually abused. On January 10, 1994, DSS told Jordan to take

R. R. to therapist Ellen Kelson. After an initial interview,

Kelson reported to DSS (as Kelson was required to do) that R. R.

had reported acts of sexual abuse against herself and other

children in the Rouse home. On January 11, DSS removed thirteen

children living in the Rouse home and placed them in Jordan's

foster home. Of the four who disclosed sexual abuse by their

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 days later, pediatrician Richard Kaplan examined the

children. Dr. Kaplan reported to DSS his medical findings and what

the children had said about sexual abuse. J. R. told Dr. Kaplan,

“Uncle Jess hurt me,” pointing to 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 labia

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 sagging vagina and a scar on her anus. Dr. Kaplan found that

T. R. had “obvious trauma and contusion . . . and very, very much

tenderness” on her labia majora; T. R. told him, “Uncle Jess hurt
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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. Kelson

first saw the children in a group on January 22. 

On February 11, Dr. Robert Ferrell conducted a colposcopic

examination of the five victims. Dr. Ferrell found “very

significant” damage to R. R.'s hymenal ring and tearing in her anal

area consistent with anal intercourse. He noted a “whole

constellation of 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 irritated,

and she had furrows in her vagina. Infant F. R. had “tearing and

scarring of the anal mucosa.” 

Defendants' medical expert, Dr. Fay, admitted that the

reported hymenal scarring on L. R., R. R., and J. R. “certainly

. . . leads you to think about sexual abuse,” and that “a labial

injury . . . is a very significant finding” of abuse. In its

rebuttal, the government called 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 force to

inflict labial injuries like those exhibited by three of the

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 District

1

Judge for the District of South Dakota. 

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On March 24, 1994, a grand jury indicted Feather, Hubbeling,

Duane Rouse, Desmond Rouse, and Jesse Rouse on twenty-three counts

of aggravated sexual abuse in violation of 18 U.S.C. § 2241(c).

After a three week trial, the jury acquitted Duane Rouse. It

convicted Desmond Rouse on three counts, Jesse Rouse on two counts,

Feather on four counts, and Hubbeling on two counts. They received

long prison sentences but raise no sentencing issues on appeal. We

consolidated their four appeals.

II. Issues Concerning the Victims' Trial Testimony.

The government's case consisted primarily of testimony by the

two physicians, the four oldest victims, another child who

witnessed acts of sexual abuse, and FBI Agent Van Roe. On appeal,

defendants raise numerous issues regarding the district court's1

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 their

Sixth Amendment right to effective cross-examination and their

Fifth Amendment right to due process because DSS refused to permit

defense counsel interviews of the victims before trial. Defendants

also argue that the district court erred in refusing to order

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 before

trial, defendants' failure to raise this access issue with the

district court was no doubt by design.

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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 Thornton 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 complained to

the district court that DSS denied them pretrial access to the

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 received two

medical examinations. Dr. Kaplan found physical evidence

consistent with sexual abuse but did not perform thorough

examinations. Instead, he referred the children to Dr. Ferrell, an

obstetrician/gynecologist, who examined the anesthetized children

using a colposcope instrument for magnified viewing of the genital

area. Dr. Ferrell reported tearing and scarring of infant F. R.'s

anal mucosa, and evidence of significant trauma to the other

victims' hymenal areas. He testified that this evidence as a whole

indicated abuse. 

Defendants argued that another examination was necessary

because Dr. Kaplan's examinations were not sufficiently thorough

and Dr. Ferrell was not experienced in pediatric sexual abuse 
-7-

examinations. The victims' guardian ad litem opposed additional

medical examinations. The district court denied the motion for

further examinations because the detailed reports of Drs. Kaplan

and Ferrell were available to defendants, and no good cause had

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, the

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, psychologist

Ralph C. Underwager, needed to interview the victims to demonstrate

that suggestive interviewing and environmental pressures made the

children's testimony unreliable. The government advised that it

would request interviews by its expert if defense interviews were

allowed. The victims' guardian ad litem opposed psychological

examinations, particularly by adversarial experts. The district

court denied defendants' motion for interviews by Underwager

because there “has not been good cause shown as to why this

additional intrusion into the alleged victims already troubled

lives should be ordered.” 

We agree with the district court that defendants' showing of

need for these examinations was insufficient. Drs. Kaplan and

Ferrell were well qualified. Dr. Ferrell had ample experience

conducting colposcopic examinations, had examined children in his

practice, and had received training on sexual abuse during his

residency. Dr. Kaplan examines six to seven hundred children each

month for sexual abuse. He participated in Dr. Ferrell's

examinations, and concurred in his findings. Their detailed 
 Defendants did not tell the district court that psychological 3

examinations were needed to determine the victims' competency to

testify. On appeal, defendants argue that proper hearings were not

held to assess competency, but they filed no written motion in the

district court for competency examinations and thus failed to

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

testify, and the district court made specific findings that each

child witness was competent.

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reports and findings were made available to defendants' medical

expert. And defendants extensively cross-examined Drs. Kaplan and

Ferrell at trial. 

Likewise, defendants did not establish need for the requested

psychological interviews. Defense counsel and Dr. Underwager had

access to Agent Van Roe's interview reports and therapist Kelson's

extensive notes of her sessions with the children. Kelson was

called as a defense witness at trial and questioned about her

counseling methods and contacts with the victims. Dr. Underwager

stated at the motion hearing that he had sufficient information to

assess whether the children had been sexually abused. He observed 3

the trial testimony of the victims and therapist Kelson, assisted

defense counsel at trial, testified regarding the effects of child

interview techniques, and was prepared to express opinions on the

suggestibility of the investigative and therapeutic practices

employed. See Spotted War Bonnett, 882 F.2d at 1362 (interview

properly denied because defense expert reviewed other interview

records and was present when victim testified). 

Finally, the district court property gave strong consideration

to the victims' interests. An adult witness may simply refuse to

undergo adversarial medical or psychological examinations. See

United States v. Bittner, 728 F.2d 1038, 1041 (8th Cir. 1984) ("the

defendant's right of access is not violated when a witness chooses
 Unlike 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 presiding

over a criminal case may compel pretrial testing of a child that a

social services arm of government believes to be adverse to the

child's best interests. To posit an extreme example, if a

government custodian should opine that the interests of a child

witness require dismissing a prosecution rather than compelling the

child to undergo further traumatic testing, and if the court can

devise no other way to protect the defendant's right to a fair

trial, the criminal case may have to be dismissed.

 This is the basic test for a denial of due process. See

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 because

they are not able to make these difficult decisions for themselves.

Of course, the court must protect a criminal defendant's right to

a fair trial, but it must also protect the State's paramount

interest in the welfare of the child. Making court-ordered

adversarial examinations routinely 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

should heed a custodial agency's opinion that pretrial access to

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 opposes

access as not in the child's best interest, defendant must show

that denial of access would likely result in an absence of

"fundamental fairness essential to the very concept of justice"

before the trial court need reach the question whether some type of

access may appropriately 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
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declining to order DSS to subject the victims to further medical or

psychological examinations. 

B. Victim Testimony by Closed Circuit Television.

Prior to trial, the government filed a motion to permit all

child witnesses 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." The

district court denied the motion without prejudice, concluding

there had not been a sufficient showing that the children could 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 court, the

district court questioned each child in chambers, in the presence

of defense counsel, one prosecutor, 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 that she was afraid to speak in front of her uncles.

Considering this statement along with Kelson's pretrial testimony,

the court found that defendants' presence in the courtroom would

"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 ad litem

would have had to physically pull her into the courtroom.”

Defendants argue that the district court erred in permitting these

three victims to testify by closed circuit television. (The other

two child witnesses were able to testify in open court.) 
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The Sixth Amendment's Confrontation Clause "guarantees the

defendant a face-to-face meeting with the witnesses appearing

before the trier of fact." Coy v. Iowa, 487 U.S. 1012, 1016

(1988). However, this right is not absolute and must accommodate

the State's "compelling" interest in "the protection of minor

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 from

trauma that would be caused by testifying in the physical presence

of the defendant, at least where such trauma would impair the

child’s ability to communicate, the Confrontation Clause does not

prohibit use of a procedure" which preserves "the essence of

effective confrontation" -- testimony by a competent witness, under

oath, subject to contemporaneous cross-examination, and observable

by the judge, jury, and defendant. Maryland v. Craig, 497 U.S.

836, 851, 857 (1990). Testimony 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 find

that the child "would be traumatized, not by the courtroom

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 court finds that the child is unable to

testify in open court in the presence of the defendant . . .

because of fear"). In this case, the district court made specific

"because of fear" findings for three victims. Our review of the

children's responses to the court's questions in chambers and the

prior testimony by therapist Kelson persuades us these findings 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 the

6

judge, jury, defense expert, and defendants to view the child

testifying in chambers; a monitor for the child witness to view

defendants as she testified; and separate communication lines

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-

Defendants argue that the district court's findings are

inadequate because they were not based upon the expert testimony

required by § 3509(b)(1)(B)(ii). However, the statute does not

require an expert to support a "because of fear" finding. That

finding may be based upon the court's own observation and

questioning of a severely frightened 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 in

1990 U.S.C.C.A.N. 6472, 6574. We also reject defendants'

contention that the closed circuit television system infringed

their Sixth Amendment rights because defense counsel could not see

the jury while cross examining the sequestered witnesses. 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 to

preclude evidence of the victims' past sexual activity because

defendants had not filed written motions "at last 14 days before

trial," as required by Fed. R. Evid. 412(c)(1). Defendants then

filed three untimely motions to offer evidence that one victim had

engaged in sexual activity with another child living in her

neighborhood, that another victim had made accusations of interhousehold sexual activity, and that a third victim had acted-out 7
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in a sexual manner. The district court excluded this evidence

because the allegations flowed from an interview with a young boy

almost three months before trial and therefore defendants had no

good cause for their untimely motions. See Rule 412(c)(1)(A). 

On appeal, defendants argue that the district court abused its

discretion because they effectively gave Rule 412 notice by

mentioning the victims' sexual activity in their pre-trial motion

for independent medical examinations. We disagree. Rule 412

limits the admissibility of such evidence to protect the victims of

rape and sexual abuse. See Provost, 875 F.2d at 177; United States

v. Azure, 845 F.2d 1503, 1506 (8th Cir. 1988). The Rule has strict

procedural requirements, including a timely offer of proof

delineating what evidence will be offered and for what purpose, and

an in camera hearing at which the victim may respond. Defendants'

vague notice fell far short of complying with the Rule, and the

district court properly excluded 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 Van

Roe of what four victims said during Van Roe's initial interviews

in January 1994. Defendants objected. After questioning Agent Van

Roe outside the jury's presence, the court admitted statements made

by the three oldest victims under the residual hearsay exception,

Fed. R. Evid. 803(24). On appeal, defendants argue that the

district court abused its discretion in admitting this testimony.

This contention is at odds with "a formidable line of Circuit

precedent that sanctions the use of hearsay testimony in child

sexual abuse cases." United States v. St. John, 851 F.2d 1096, 
-14-

1093 (8th Cir. 1988). Here, the district court determined that FBI

Agent Van Roe had been trained to interview children in abuse

cases, interviewed the children individually at the home of their

foster parent, and did not ask leading questions. Agent Van Roe’s

testimony and interview notes established that the victims'

responses were spontaneous and not repetitious. The victims'

statements also provided more details regarding the abuse than

their testimony at trial. In these circumstances, the district

court did not abuse its discretion in admitting the initial

interview statements. See United States v. Grooms, 978 F.2d 425,

426-28 (8th Cir. 1992). Defendants also argue that admission of

the victims’ statements violated the Confrontation Clause as

construed in 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 child

victims, the defense concentrated on undermining the credibility of

that testimony. In addition to cross-examining the doctors, the

victims, and FBI Agent Van Roe during the government's case, the

defense called therapist Kelson and DSS witnesses as adverse

witnesses, seeking to prove that the children were forcibly removed

from Rosemary Rouse's home and then interviewed at length by many
 Without citing specific instances of error or supporting

8

authority, 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 properly

exercised its discretion in maintaining reasonable control over the

examination and 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 explore

whether Dr. Underwager's proposed testimony was sufficiently

reliable scientific evidence that would assist the jury to

understand a fact in issue. See Fed. R. Evid. 702; Daubert v.

Merrill 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 reviewing

scientific research and publications offered in support of these

theories, the court made two preliminary rulings: 

I'm not going to allow Dr. Underwager to testify as

to whether or not the [child] witness's testimony is

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 is

not anywhere near yet the agreement in the community as

to methods, techniques, testings or reliability that

would warrant the admissibility before a jury of these

matters . . . . It would result in a confusion of the

issues, a possible misleading of the jury by undue

reliance possibly being placed upon [one side's

methodology]. So, for these reasons, under Daubert, I'm

not going to allow evidence with regard to the different

. . . psychological methods of evaluating the reliability

of witnesses.
 Dr. Underwager testified that “preconceived assumptions of

9

the interviewer are the single most powerful determinant of what

comes out of an interview.”

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Later in the trial, Dr. Underwager was called as a defense

witness. He testified at length concerning his own research into

the ways in which the reliability of children's allegations of

physical or sexual abuse may be tainted by adult questioning

practices that suggest false answers or even implant false

memories. Dr. Underwager identified for the jury practices of

“suggestibility” that produce unreliable child testimony -- use of

leading or coercive questions; communicating adult assumptions 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 negative

reinforcement that motivate children to lie; and “cross

germination” among a group of children who pick up stories from

each other. Dr. Underwager opined that “a memory can be created

. . . 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

question whether “there's been a practice of suggestibility

employed” with the child victims, Dr. Underwager opined (i) that

therapist Kelson had exerted “massive social influence” on the

victims; (ii) that Kelson engaged in “highly suggestive and highly

contaminating” practices; (iii) that the prosecutor used leading

questions at trial and the children “were comfortable doing the

yes/no bit,” showing “they'd learned” to answer yes; (iv) that Van

Roe's use of diagrams was “very suggestive and very leading”; (v)
 In a letter to defense counsel just before trial that became 10

a preliminary hearing exhibit, Dr. Underwager said he was prepared

to opine “that the children in this case have been subjected to

massive and coercive social influence by adults . . . such as to

make it highly likely any statements are so contaminated by adult

behaviors as to be unreliable.” 

In this regard, we note that Dr. Underwager's attempts to

11

express such opinions in other child abuse cases have been

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 kidnapped . . . 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 “total

environment [was] one of the most 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 generally that the district court

misapplied Daubert in excluding Dr. Underwager’s testimony. We

find two distinct components to this issue. First, we conclude

that the district court's preliminary pretrial rulings regarding

the scope of Dr. Underwager's testimony did not abuse its

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

this expert was intent upon expressing his ultimate opinion that

the victims' accusations of sexual abuse were not credible. But 10

assessing the reliability or credibility 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

these works have not produced a consistent body of scientific

knowledge and therefore admission of other theories and writings

would result in a battle of experts that could confuse or even

mislead the jury. 

The second issue, whether the court erred in rejecting

defendants' offer of proof at trial, is more difficult. Indeed, it

is an issue on which we continue to disagree. A qualified expert

may explain to the jury the dangers of implanted memory and

suggestive practices when interviewing or questioning child

witnesses, but may not opine as to a child witness's credibility.

That leaves a troublesome line for the trial judge to draw -- as

the expert applies his or her general opinions and experiences to

the case at hand, at what point does this more specific opinion

testimony become an undisguised, impermissible comment on a child

victim's veracity? The issue was unusually difficult for the

district court in this case because defendants made their offer of

proof through Dr. Underwager's three-page monologue, instead of

asking the court to rule on specific questions and answers, and

because of Dr. Underwager's obvious desire to testify impermissibly

on the children's lack of credibility.

Our differing views on the question whether the district court

erred in rejecting defendants' offer of proof are set forth in the

vacated panel opinions. See Rouse, 100 F.3d at 566-74, 582-85.

Having again considered this issue in light of the voluminous trial

record, a majority of the panel has concluded that exclusion of

this additional expert testimony was, in any event, harmless error.

We base this conclusion on a number of factors. First, the jury

heard evidence as to the interviewing techniques used by foster 
When the first child witness (the nine-year-old male cousin) 12

froze on the stand in open court, the district court, consistent

with numerous Eighth Circuit cases, ruled that leading questions

could be asked of reticent child witnesses. Defendants did not

object to this ruling nor raise the issue on appeal.

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parent Jordan, therapist Kelson, and FBI Agent Van Roe. It learned

of the social influences affecting the victims at the time they

accused their uncles of sexual abuse. And it observed the victims

testify and knew that the prosecutor asked the children leading

questions at trial. Second, the jury heard Dr. Underwager

12

describe at length the ways in which adults can influence

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 questions were asked over and over and over again

and, when the story came out the way the adults wanted

it, then the children were rewarded . . . . [W]hen [J.

R.] was testifying . . . did you notice [the prosecutor]

. . . phrased most of the questions in a manner in which

she would get a positive response, a “Yes” answer. . . .

[Dr. Underwager] talked about the influence that people

have on children, when they interview kids. He talked

about memory, the process of reconstruction, implantation

of memory, play-therapy, worthless. . . . The children

only felt comfortable answering “Yes” or “No”. They

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

wanted to talk about? Everything was calculated to

produce some sort of compliance with these kids . . . .

This gave the jury an informed basis on which to make its ultimate

determinations as to the victims' credibility. Third, the victims'

trial testimony was consistent with their “free recall” -- R. R.'s

reports of abuse to Jordan and Kelson in early January, and the

four oldest victims' reports to Dr. Kaplan during his initial

medical examinations. These unprogrammed disclosures preceded the
-20-

FBI interviews and Ellen Kelson's therapy. Dr. Underwager

testified for the defense that, “[b]asically, the most reliable

information is obtained from free recall.” In these circumstances,

we conclude that exclusion of additional testimony by Dr.

Underwager regarding whether a “practice of suggestibility” was

employed on the victims “could not have had substantial influence

on the outcome of the case,” Azure, 845 F.2d at 1507, the governing

harmless error standard. See 28 U.S.C. § 2111; Brecht v.

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

IV. Juror Bias.

After the trial, Verna Severson, who worked with juror

Patricia Pickard at a local preschool, called the Clerk's Office to

complain that Pickard should not have served on the jury because

she is prejudiced against Native Americans. The court held an

evidentiary hearing on this issue. Severson testified that Pickard

made derogatory statements about Native Americans before the trial;

Pickard denied this allegation. Severson alleged that Pickard

refused to teach a Native American unit in her class; Pickard and

the school's director testified that Pickard had taught a Native

American unit for years. Severson testified that Pickard had

stated, “it's a sad thing to be born an Indian girl because Indian

girls are used for sexual purposes”; Pickard explained that her

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. Two

witnesses questioned Severson's reputation for truthfulness. 

After hearing this testimony, the district court denied

defendants' motion for a new trial, finding that juror Pickard had

“responded honestly and accurately” during voir dire and had not 
-21-

concealed “any racially prejudiced attitudes, beliefs, or opinions”

about Native Americans. The court found that “as between juror

Pickard and Ms. Severson, juror Pickard [was] the more credible

witness.” The court further found that the jury foreman and an

alternate juror “testified credibly that they did not hear juror

Pickard make racially disparaging remarks about the defendants or

about Native American people during the trial,” and “that no

improper outside influence affected the jury.” These findings are

not clearly erroneous. They establish that defendants are not

entitled to a new trial because of juror Pickard's responses during

voir dire. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S.

548, 556 (1984); United States v. Whiting, 538 F.2d 220, 222-23

(8th Cir. 1976). 

Defendants further argue that they are entitled to a new

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 the

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, 483

U.S. 107, 120-27 (1987). 

V. Jurisdiction Issues.

After both sides rested, defendants moved for judgments of

acquittal on the ground that the government had failed to prove the

alleged offenses occurred in Indian Country. The government

responded by moving to reopen its case to better establish that the

alleged sexual abuse occurred at grandmother Rosemary's home on the

Yankton Sioux Reservation. After expressly considering both the

possible prejudice to defendants in reopening, and the impact on 
-22-

the child victims of having to testify again, the district court

ruled that the government could reopen to offer limited evidence

regarding offense location. The parties then stipulated that this

evidence would establish that all alleged offenses except those

involving J. R. had occurred in Indian Country. The government

reopened its case and placed this stipulation into evidence, and

the court denied defendants' motions for judgment of acquittal. 

A. Allowing the Government To Reopen Its Case.

Defendants first argue that the district court abused its

discretion by permitting the government to reopen its case to

establish this jurisdictional fact. The trial court has broad

discretion to allow the prosecution to reopen to establish an

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 (8th Cir. 1978), involving whether the weapon at issue was a

“firearm.” The relevant inquiry is “whether the evidence caused

surprise to the defendant, whether he was given adequate

opportunity to meet the proof, and whether the evidence was more

detrimental to him because of the order in which it was

introduced.” United States v. Webb, 533 F.2d 391, 395 (8th Cir.

1976). Here, defendants were not surprised by the evidence, and

the district court carefully limited its ruling to avoid prejudice

from allowing victim testimony late in the trial. There was no

abuse of discretion. 

B. Insufficient Evidence of Jurisdiction.

Defendant Jesse Rouse also argues that there was insufficient

evidence that he sexually abused J. R. in Indian Country, a fact

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

“grandma's house,” grandmother Rosemary Rouse's home in Indian

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 often in

that house. She testified that it was not safe at the house

“[b]ecause our uncles are doing naughty stuff to us.” Jesse

testified that he lived at Rosemary’s house from September 1993

until the victims were removed in January 1994. Viewing this

evidence in the light most favorable to the jury's verdict, as we

must, we agree with the district court that there was sufficient

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 concur in the result affirming the convictions, but only

because I agree that the exclusion of the expert evidence was

harmless error. 

BRIGHT, Circuit Judge, dissenting.

I respectfully dissent. Previously, two judges on this panel

reversed the convictions in this case because the trial judge erred

by rejecting the expert opinion evidence in question. United

States v. Rouse, et al., 100 F.3d 560 (8th Cir. 1996). The new

majority now affirms the convictions on grounds that such error was

harmless. I disagree. Depriving the jury of the questioned

evidence critically eroded the strength of the defense and,

therefore, did not constitute harmless error.13
of 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

reported at 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: the

uncorroborated testimony of four of the thirteen children initially

removed from their families, medical evidence describing tissue

injuries in the victims’ vaginal and anal areas, and statements the

alleged victims made to other adults. In my view, this evidence is

suspect. For example, the “children’s evidence and testimony [in

this trial] became tainted by suggestive influences to which the

children were subject in the investigation and trial, which

influences included taking the children (the alleged victims and

nine other children) from their families and from their residences”

for extended periods of time. Id. at 562. During this isolation,

which lasted up to six months, social workers and investigators

subjected the alleged victims to repeated and intense questioning.

Despite the interrogation, nine of the children steadfastly denied

any abuse.

Furthermore, the medical evidence introduced at trial was

inconclusive. For example, the defense challenged the conclusions

of the prosecution’s witnesses, the prosecution failed to establish

the source of any injuries to the alleged victims, and the medical
-25-

evidence lacked photographic documentation of the injuries. See

id. at 575-76. In addition, the district court excluded important

evidence of inter-child sexual activity which potentially skewed

the medical findings relating to the victims’ injuries. Id. These

ambiguities magnified the importance of the children’s testimony to

the jury’s verdict, thereby exacerbating the harm suffered by the

defense when the district court excluded the expert’s opinion. The

following discussion reiterates the background for the expert’s

testimony and explains why the exclusion of that testimony resulted

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

testimony. See id. at 563-66. The opinion also questioned the

reliability of the children’s bizarre stories. Id. at 563-66

(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 the

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

psychologist and has been practicing his profession or

teaching psychology for approximately twenty years. He

has conducted extensive research and writing in the area

of child sex abuse and is familiar with extensive

psychological research into this subject during the past

ten years. His expertise has not been challenged by the

prosecutor, only the substance of his testimony.

. . . .
-26-

With this background, we examine Dr. Underwager’s

foundation and compare that foundation and his commentary

on suggestibility with the status as of the time of trial

of psychological research and writings concerning child

witnesses and their susceptibility to faulty memory. As

noted above, in the defense’s offer of proof, Dr.

Underwager testified outside the presence of the jury

that from his review of the files, records and testimony

in this matter, there had been “a practice of

suggestibility employed in these techniques.” (Tr. Vol.

IX at 1768.)

He further testified outside the presence of the

jury that 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 been

abused; and she engaged in highly suggestive and

contaminating practices, such as the groups and

questioning. Dr. Underwager testified the prosecutor

asked the children only if they remembered reporting an

incident to a particular individual (FBI agent, social

worker, etc.), rather than whether they remembered the

incident itself; the prosecutor used exclusively leading

questions in the courtroom and the children’s comfort

level showed they were used to this type of questioning.

He testified that studies show that adults almost always

rely on leading questions given the task of finding

something out from a child. 

Dr. Underwager found the FBI’s use of sexually

explicit diagrams very suggestive and leading, and

asserted the evidence does not show such diagrams

accomplish anything other than to suggest to the child

that the interviewer is interested in sexual behavior. 

He testified that a large body of research shows

that the presence at an interview of several adults--

people of relatively high status--increases the

conformity and compliance with what those adults expect

from a child. 

Dr. Underwager testified that the documents from the

case files and courtroom testimony suggested to him that

powerful and potentially coercive influences had been

brought to bear on the small four- and five-year-old

children who were taken without notice from their

mothers, families and homes, without being told the

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.

The prosecution, however, objected to this offer of proof

because the testimony reflected “an area ‘within the province of

the jury and not within something that an expert should testify

on.’” Id. at 566 (quoting Trial Tr. Vol. IX at 1771). The

district court agreed and “rejected the offer as essentially not

the subject of expert testimony and not reliable or relevant under

Federal Rule of Evidence 104(a) and confusing and misleading to the

jury under Federal Rule of Evidence 403.” Id. at 566-67.

Furthermore, the district court “barred the expert witness from

testifying on whether or not the investigative practices

constituted ‘a practice of suggestibility.’” Id. at 567.

The prior panel opinion demonstrated 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 “soft

science”). That opinion reviewed the nature of the investigations

and interrogations of the children against the commentary in a

recent article presented to the district court:

We have examined both the evidence and the

literature presented to the district court and conclude

that both support the defendants’ offer of proof. In

particular, the district court made reference to a recent

article by Stephen J. Ceci and Maggie Bruck,

Suggestibility of Child Witnesses: A Historical Review

and Synthesis, 113 Psychological Bulletin 403-439 (1993),

which reviews the research and writing on the subject and

supports the view that the very matters observed and

testified to by Dr. Underwager can produce biased, untrue

or false memories in children, and more particularly 
-28-

young children. Almost all the other literature

presented to the court is consistent with the Ceci-Bruck

article.

The Ceci-Bruck article does not state that young

children should not testify but observes that many common

interviewing practices can produce an altered memory.

Among other things, the article documents adequate

research indicating the following:

1. A subject’s, particularly a child’s, original

verbal answers are better remembered than the actual

events themselves, yes-no questioning leads to more

error, and young children are particularly vulnerable to

coaching and leading questions. Id. at 406-09. 

A review of the record here reveals the children

were asked entirely leading questions in court. Even

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 they

remembered reporting abuse to law enforcement officers,

doctors, and their therapist, rather than whether they

remembered the alleged abuse itself. 

The questioning at trial represents a highly

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 the

intent of the questioner rather than consistent with

their knowledge of the event even if the question is

bizarre. Id. at 418-19. Interviewer bias can skew

results as a child will often attempt to reflect the

interviewer’s interpretation of events, particularly when

more than one interviewer shares the same

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 taken from their homes on

the basis of a five-year-old’s statements, and were

placed under the sole supervision and influences of Donna

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 strong 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 interview the children until

after the children had been with Jordan for over a week.

Agent Van Roe testified that he had explained his status

as an FBI agent at the initial interview and told the

children that an FBI agent was like a policeman on the

reservation. Van Roe testified that Jean Brock and

foster mother Donna Jordan remained in the room while FBI

agents conducted the initial interviews of the children

on January 19 and 21, 1994--over a week after the

children were 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 had

previously told foster mother Donna Jordan which Jordan

had written down for her. Thus, agents received a frame

of reference which could produce bias, even before the

start of the interviews.

3. Repeated questions can produce a change of

answers 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 accurate

over time. Id. at 419-20. Repeated questioning of

victims often results over time (or even within a single

interview) in an inaccurate report. 

A three-month hiatus existed from the time R.R. was

taken from her home to the time of her complaints of sex

abuse. These children were repeatedly questioned by

Brock, Jordan, Kelson, doctors and law enforcement

agents. By March 1994, the children’s accounts of the

familial sexual abuse were so skewed that the district

court refused to admit these interviews into evidence. 

 

4. Younger children are more susceptible to

suggestibility than older children, especially in the

context of stereotyping. Id. at 407, 417. Stereotypes

organize memory, sometimes distorting what is perceived

by adding thematically congruent information that was not

perceived, and stereotype formation interacts with 
 Kelson 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 foster

15

mother, told them their uncles had been doing bad things to them

and talked to them of the abuse, Jordan testified she had never

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 to them,

had gotten very specific about what these bad things were, and had

told them this was not their fault. Jordan testified she

deliberately tried to avoid discussing the sex abuse with the

children or influencing them, but acknowledged that it had been her

experience as a foster parent that children are easily susceptible

to suggestion and influence by adults. 

Brock also denied ever telling the children that their uncles

were bad or explaining to them why they were being taken away. The

children’s versions and other evidence provided ample foundation

for the expert’s proposed opinion.

-30-

suggestive questioning to a greater extent for younger

rather than older children. Id. at 416-17. Studies have

shown children are particularly susceptible to an

interviewer’s “bad man” stereotype, and when repeatedly

told the actor is a bad man, they may construct a false

account of an event often embellished with perceptual

details in keeping with the stereotype. Id. 

Here, various persons told the children from the

beginning that the defendants were “bad” and that it

would not be “safe” to go home until the defendants were

gone. The children remained isolated from their families

and community. The “bad man-uncle” theme was replayed 14

again and again, including at trial. In addition, the 15

children testified via closed circuit television based on

their “fear” of defendants. While closed circuit

television, other security procedures at the courthouse,

and disallowing the children to see any family members

before the trial did not amount to trial error, those

procedures served to reinforce the children’s “bad men”

stereotype of their uncles, the defendants.
-31-

5. The use of anatomical dolls or sexually explicit

materials will not necessarily provide reliable evidence

as children may be encouraged to engage in sexual play

with dolls, etc., even if the child has not been sexually

abused, and further no normative data exists on nonabused children’s use of dolls. See id. at 423-25. 

The second law enforcement (January 21) interview

took place at the United States Attorney’s Office with

the Assistant United States Attorney present. The

children saw an anatomical drawing of a penis. Later,

Kelson utilized play therapy and art media, and

apparently dream journals. Dr. Underwager testified that

exposing children to these materials suggests to them

that the authority figure wants information about sex. 

6. “[A] major conclusion is that contrary to the

claims of some, children sometimes lie when the

motivational structure is tilted toward lying.” Id. at

433. Patterns of bribes for disclosures, implied threats

in nondisclosures, or insinuations that peers have

already told investigators of suspects’ abusive behavior

are highly suggestive. Id. at 423. Children will lie

for personal gain, and material and psychological rewards

need not be of a large magnitude to be effective. Id.

Here, the children were promised picnics, vacations

and even a chance to return home as a reward for their

“truthful,” successful testimony at trial. They were

told they could not go home until their uncles had been

successfully removed. Experts are critical of this kind

of reward as “bribing” children to “admit” abuse or give

abuse-consistent answers, such as promising to end the

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 pressure

or interaction with other children has effects on the

accuracy of their reporting: they will provide an

inaccurate response when other children have “already

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,

Jeopardy in the Courtroom: A Scientific Analysis of

Children’s Testimony 146-50 (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 siblings

questioned siblings to get them to “open up” or provide

incriminating evidence. Id. at 150-51. 

As mentioned above, Kelson reported 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 trial

reflects that Jordan, Kelson, and FBI agents spoke to and

questioned the children in groups about the abuse. 

The Ceci-Bruck article’s summary relating to

interviewing of children stated:

The studies on interviewing provide

evidence that suggestibility effects are

influenced by the dynamics of the interview

itself, the knowledge or beliefs possessed by

the interviewer (especially one who is

unfamiliar with the child), the emotional tone

of the questioning, and the props used.

Children attempt to be good conversational

partners by complying with what they perceive

to be the belief of their questioner. Their

perceptions, and thus their suggestibility,

may be influenced by subtle aspects of the

interview such as the repetition of yes-no

questions, but their compliance is evidenced

most fully in naturalistic interview

situations in which the interviewer is allowed

to question the child freely; this gives the

child the evidence to make the necessary

attributions about the purposes of the

interview and about the intents and beliefs of

the interviewer.

Observations of interactions in the legal

arena highlight the fact that children who

testify in court are not interviewed in

sterile conditions such as those found in many

of the experiments we have reviewed. They are

usually questioned repeatedly within and

across sessions, sometimes about an ambiguous

event by a variety of interviewers, each with

their own agenda and beliefs. Children are

sometimes interviewed formally and informally

for many months preceding an official lawenforcement interview with anatomical dolls,
-33-

providing an opportunity for the child to

acquire scripted and stereotypical knowledge

about what might have occurred. 

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

Our review of the literature indicates that

children can indeed be led to make false or

inaccurate reports about very crucial,

personally experienced, central events.

. . . . 

Therefore, it is of the utmost importance to

examine the conditions prevalent at the time

of a child’s original report about a criminal

event in order to judge the suitability of

using that child as a witness in the court.

It seems particularly important to know the

circumstances under which the initial report

of concern was made, how many times the child

was questioned, the hypotheses of the

interviewers who questioned the child, the

kinds of questions the child was asked, and

the consistency of the child’s report over a

period of time. If the child’s disclosure was

made in a nonthreatening, nonsuggestible

atmosphere, if the disclosure was not made

after repeated interviews, if the adults who

had access to the child prior to his or her

testimony are not motivated to distort the

child’s recollections through relentless and

potent suggestions and outright coaching, and

if the child’s original report remains highly

consistent over a period of time, then the

young child would be judged to be capable of

providing much that is forensically relevant.

The absence of any of these conditions would

not in and of itself invalidate a child’s

testimony, but it ought to raise cautions in

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 references to

other research and writings. Maj. Op. at 17-18. The majority

expresses concern that admitting “other theories and writings would

result in a battle of experts that could confuse or even mislead

the jury.” Id. at 18. There is no battle of experts here. Even

the prosecution’s expert agreed that children’s memories may be

falsified. Rouse, 100 F.3d at 572.

-34-

Rouse, 100 F.3d at 569-72. Other references also supported the

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 that

excluding the testimony amounted to harmless error. The majority

notes the differing views on the offer of proof set forth in the

prior, vacated panel opinion at 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 harmless

error, we rely on Federal Rule of Criminal Procedure 52(a). That

rule states:

(a) Harmless Error. Any error, defect,

irregularity or variance which does not affect

substantial rights shall be disregarded.

We consider, then, whether the court’s error substantially affected

the defendants’ rights and whether it influenced or had more than

a slight 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 children

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 evidentiary error harmless because

the jury received evidence about interviewing techniques, learned

of the social influences affecting the alleged victims and listened

to them respond to the prosecution’s leading questions. In

addition, the jury heard Dr. Underwager generally describe how

adults can influence children’s memories and the impact of these

influences on the alleged victims’ credibility. Further, defense

counsel relied on Dr. Underwager’s testimony to argue the theory of

implanted memory. Thus, the majority asserts that the jury

received an “informed basis on which to make its ultimate

determinations as to the victims’ credibility,” and that trial

testimony accords with the children’s “free recall.” Maj. Op. at

19.

I disagree for five reasons. First, in my reading of the

record, 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 to

render a truly informed judgment about whether the children’s

testimony resulted from implanted memory. According to Dr.

Underwager and authoritative writings discussed above, the foster

home persons, the social workers, the FBI and even the district

judge used or permitted potentially coercive investigative

questioning and techniques. Thus, if investigators used these

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 the

assistance of the excluded expert testimony.

Third, one juror “may have believed that long delay and

persistent, lengthy questioning of young children would likely

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 this misunderstanding exemplified “the

desirability and necessity of expert opinion on the subject as

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 regarding

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 prejudice 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

existed in one or more jury members, evidence challenging the

credibility of the children’s testimony against the Native American

defendants would be important to help overcome any juror’s

prejudice.

Finally, as a result of the exclusion of the expert’s opinion,

the defense counsel’s argument about implanted memories of the

young witnesses represented empty words unsupported by evidence.

The majority refers to argument of the defense counsel: 

The questions were asked over and over and over again

and, when the story came out the way the adults wanted

it, then the children were rewarded . . . . [W]hen [J.

R.] was testifying . . . did you notice [the prosecutor]

. . . phrased most of the questions in a manner in which

she would get a positive response, a “Yes” answer. . . .
-37-

[Dr. Underwager] talked about the influence that people

have on children, when they interview kids. He talked

about memory, the process of reconstruction, implantation

of memory, play-therapy, worthless. . . . The children

only felt comfortable answering “Yes” or “No”. They

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

wanted to talk about? Everything was calculated to

produce some sort of compliance with these kids . . . .

Maj. Op. at 19. Because the district court erroneously excluded

the expert’s opinion that suggestive interrogation techniques

potentially tainted the children’s testimony, defense counsel’s

statement reflected only arguments of counsel, not evidence. With

Dr. Underwager’s testimony, however, counsel’s argument could

constitute substance over rhetoric.

II. CONCLUSION

For the foregoing reasons, the evidentiary error in question

was not harmless; rather, its exclusion substantially harmed the

defendants. The circumstances of this case raise a close question

as to the validity of the verdict and, therefore, I would grant the

defendants a new trial.

A true copy. 

Attest:

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