___________ No. 95-1554

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

___________ No. 95-1556

___________ United States of America, * Appeals from the United States * District Court for the Plaintiff-Appellee, * District of South Dakota. * v. * * 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: October 16, 1995 Filed: November 12, 1996

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

___________ BRIGHT, Circuit Judge.

Four youn g Native American men face combined sentences of more than 120 years for allegedchild abuse. These convictions rest upon testimony of young children, the alleged victims, with som e support from findings on medical examinations of the children.

These defendants are Jesse Rouse, Desmond Rouse, Garfield Feath er and Russ ell Hubbeling. They and a fifth defendant, Duane Rouse, who wa s acquitted by the jury, faced twenty-three counts of aggravated sexual abus e of childr en under the age of twelve years in violation of 18 U.S.C

. § 2241(c). The event s allegedly occurred at family residences on a South Dakota Indian Reservation.

The ju ry found Jesse Rouse guilty of two counts of sexual abuse ; Desmond Rouse guilty of three counts; Garfield Feather guilty of fou r counts and Russell Hubbeling guilty of two counts. These counts related to alleged abuse of five young Native American

### These issues include: 1) whether the trial court properly 1 

### excluded testimony regarding alleged past sexual activity of the victims; 2) whether the trial court abused its discretion in denying the defendants' pretrial and mid-trial motions for a third medical examination of the child victims in this case; 3) whether the trial court abused its discretion in denying the defendants' motion for an independent psychological exam; 4) whether the trial court properly allowed under Federal Rule of Evidence 803(24) the admission of hearsay statements of the child victims; 5) whether the trial court erred in denying defendants' motion for new trial based on juror misconduct; 6) whether the trial court erred in finding that the government established jurisdiction on Count XVII (establishing jurisdiction that the alleged abuse did not occur on the reservation); 7) whether the trial court erred in allowing the government to reopen its case after the defense moved for judgment of acquittal; 8) whether the trial court properly excluded expert testimony as to suggestibility and memory; 9) whether the trial court abused its discretion in refusing to admonish defense witness Ellen Kelson during the course of her direct examination; 10) whether the trial court abused its discretion in allowing the child witnesses to testify via closed circuit television; 11) whether the defendants were denied due process right to fair trial when the Department of Social Services, as custodian of the child witnesses, denied defendants access to the children for pretrial interviews; and 12) whether the trial court abused its discretion by not conducting the competency hearings of the child witnesses.

-3- childre n. The children are referred to by initials in the text of thi s opinion. The jury acquitted the defendants of the remaining charges.
The appellants raise twelve allegati ons of error in the trial of the
case. We grant relief on two issues: (1) refusal to allow expert opinion

1 testimonyby a court appointed psychologist that the children's evidence and testimony became tainted by suggestive influences to which the childre n
were s ubject in the investigation and trial, which influences include d taking the children (the alleged victims and nine other children) fro m their families and from their residences and (2) denial by the trial court of the defendants' motion for independent psycho logical examination of the allegedly abused children--in light of the circumstances of the case.

### -4- Ac cordingly, the appellants are entitled to a new trial on thes e grounds.
Sufficiency of the evidence is not an issue. However, an exami nation of the record establishes that the medical evide nce was inconclusive as to abuse or abuse by the defendants and that the children's reports of abuse
ma y have been tainted by the influence of social workers and la w enforcement officials who investigated and prepa red the government's case.

The cruci al issue for determination by the jury was this -- did the you ng children testify from their own memory of events or was a fals e memory induced during investigation by the metho ds by which those children
were interrogated? Some of the evidence presented in the case suggest s that the children may have had induced memories that sexual abuse occurred

. While that issue rema ined for the jury, the jury evaluated the children's evidence of abuse without the benefit of a qualified defense child abuse expert who would have assisted the jury by explaining that the children ha d been subjected by state investigators to "powerful and coerciv e influences."
We briefly address the merits of som e of the other errors alleged by the defendants. This commentary may be helpful with respect to the retria l of t his case. See United States v. Azure , 801 F.2d 336, 341 (8th Cir

. 1986).
First, the trial court's discretionary ruling which denied defe ndants
a further independent medical examination leaves inconclusive the abus e conclusions resting on medical findings. This u ncertainty in the evidence is further accentuated because the physician did not document findings wit h photographs.
Second, in light of the background of this case, the district c ourt's exclusion of testimony relating to inter-child sexual

### Stephen J. Ceci & Maggie Bruck, Jeopardy in the Courtroom: 2 

### A Scientific Analysis of Children's Testimony8 (1995).
-5- activityamong the alleged victims and other children on the reservation deprived the defendan ts of important evidence indicating another possible
source relating to any physical manifestations of abuse. This issue may arise in the new trial.

Th ird, because of the possible influences on the memories of th e children by social services personnel and other investigators and the lack of a ccess to the children, the district court prejudicially erred i n refusing to authorize an independent psychological examination.
Fourth, although not reversible error, the allegations of one j uror's racism and that juror's contention that racial jokes regarding Nativ e Americans were told in the jury room are troubling.

Wi th respect to conditions that can influence children's memories , we are mindful of a h istorical event of some three hundred years ago (the Salem, Massachusetts witch trials) where child witnesses ages five t o sixteen (the "circle girls") claimed to see persons (the defendants) flyin g
on broomsticks and other envisaged celestial apparitions. Based on this testimony, nineteen alleged witches were put to death and a dozen others avoided executions by testifying to witchery, that which was not. 2

This case , of course, is not a Salem witch hunt, but that histor y must remind us that memory, particularly childre n's memory, may be falsely induced. Where that occurs, the testimony may be true in the child's mind , but false in fact.

### Jordan testified and Department file notes reflect that 3 

### R.R. subsequently had problems at school when she lied about her teachers on occasion in order to get them in trouble when she felt she was not getting enough attention. At that time, T.R. was seven years old, L.R. was six, J.R. 4 

### was four, and F.R. was a twenty-month infant. These four and R.R. were the only alleged victims at the defendants' trial.
-6- I. BACKGROUND
Five-year -old R.R. lived with her grandmother Rosemary Rouse on the Yan kton Sioux Reservation in Marty, South Dakota, during the summer an d fa ll of 1994. R.R. had been taken from her mother and placed in he r grandmot her's custody. She had been unhappy about living with he r grandmot her and had wanted to stay with her mother. After R.R. told a teacher that her gran dmother was mean to her and was not feeding her, the Yankton Sioux Tribe's Department of Social Services (Department) removed R.R. from Rosemary Ro use's home for possible neglect and malnutrition and placed her with foster mother Donna Jordan. 3

After living with her foster mother for several months, R.R. tol d Jord an that she was having nightmares and that she had been sexuall y abused

. Jordan scheduled an appointment with counsellor Ellen Kelson

. After interviewing R.R.--an interview which she did not audio or vide o tape--K elson immediately contacted the Department and reported that a number of children at the Rouse residence had been sexually abused.

The next day, on January 11, 1994, a pparently without any additional evidence or investigation, the Department removed approximately thirteen children fr om the Rouse home and a nearby home. According to th e 4 evi dence, squad cars pulled up and the children were physically remove d while they cried and clung to their uncles' and other adults' legs. Jean Brock, a social worker for the Department, transported the children t o Jordan's foster

### Some parents reported that they had been told their 5 

### children would be taken away again if they talked to or cooperated with defense counsel. One parent testified her children were kept from her for about one month before she got a lawyer and went through the Bureau of Indian Affairs (BIA).
-7- home, and told the children it was their uncles' fault that they were bein g taken aw ay because the uncles were doing "bad things" to them. On he r initial intake sheet, Brock noted that "the chil dren love the adults," but that the home was messy.

Brock and Jordan told the children t hey could not go home until they told the "truth" abou t their uncles. Both alleged victims and non-victim chi ldren testified that Brock and Jordan repeatedly told them that the y
were take n away from their homes because their uncles did bad things t o themand that they could safely go home only after they told the "truth" about the ir uncles and all these bad things got fixed. In fact, T.R

. remembered later telling Kelson "that to say the truth is to say that your uncles did things to you," and that "[i]f you te ll the truth you get to go home." When the district court asked J.R. what it means to tell the truth at her in camera competency examination, J.R. responded, "[y]ou mean you can go home."
Despite this encouragement to accuse their uncles, many of th e children repeatedly denied being abused, and approximately nine children who consistently and adamantly denied being abus ed were allowed to go home to their parents. Those children who claimed that abuse occur red were not 5 allowed to see their parents until approximately six months later in July 199 4 (just before trial), despite repeated requests by the children an d parents and a tribal court order. T.R. testified that she did see he r mother onc e during this time period after repeated requests to do so

. Nevertheless, both Brock and Kelson sat in on th e parent-child meeting and took notes.

### J.R. also testified that sometimes when she forgot things, 6 

### the grown-ups helped her remember. Trial Tr. Vol. IV at 472.
-8- Begin ning in January 11, 1994, the children all lived in Jordan' s home. Jordan told th em this situation was not their fault; she told them their uncles were at fault and she got very specific about the "bad" thing s their uncles were doing to them.

Dr. Richa rd Kaplan, a pediatrician, initially examined the children in Jordan 's presence on January 15, 1994. At that time, he could no t diagnose any of the c hildren as having been abused, and he arranged for a subsequent examination by Dr. Robert Ferrell, a woman's obstetrician and gynecologist, which examination took place a month later. That docto r reported findings consistent with sexual abuse.

Af ter the January 15 examination and after the group of childre n spent ove r a week in Jordan's home, FBI agent William Van Roe and BI A Criminal Investigator Dan Hudspeth interviewed the children on two separat e days. The agents immediately identified themselves as police officers, an d Jordan and Brock sat in on the interviews. At t he initial interview, R.R. handed investigator H udspeth a group of papers which contained statements written by Jordan which R.R. had allegedly made to Jordan about the abuse.

J.R
. testified at trial that investigator Hudspeth "helped" he r remember s ome things during the interview. Officers showed the children 6 an anatomical drawing of a penis. Although agen t Van Roe testified he did not as k the children leading questions, he later acknowledged tha t invest igator Hudspeth had asked most of the questions. Investigato r Hudspeth did not testify. The officers did not videotape any of thes e interviews.

Kelson counselled the children exten sively from January through July 1994. She did not videotape a single one of these

### At trial, T.R. denied telling agent Van Roe that her uncles 7 

### had also sexually abused Tabatha and her sister Melanie Rouse, another child who lived in the Rouse residence and denied abuse. Agent Van Roe testified that T.R. had told him at the initial interview that the uncles also had abused Tabatha and Melanie.
-9- sessions. She forwarded her notes directly to t he United States Attorneys Office. During her s essions with the children, Kelson used play therapy, art media and apparen tly dream journals. She met with the children first as a group ("talk cir cle") and then individually. She felt very strongly that these children decided before coming to see her what they would share with her because they all came in, directed the topic, and repeated th e same or similar theme.

T.R., however, denied that the children ever discussed the sexua l abu se outside the counselling sessions. Kelson reported that T.R., th e eldest alleged victim, served as the "boss" or "leader"; T.R. was "ver y manipulative" and tol d the other children what to do. For example, R.R., the original complainant, identified Jesse Rouse as one of her abusers onl y after T.R. did so during a group session. Tabatha Smith, another child wh o lived in the Rouse home and denied any abuse, testified that before sh e left Jordan's foster care, T.R. told her she was "making stuff up" about Jesse Rouse and the uncles because she was mad at Jesse. 7

The child ren's accusations expanded over time in a somewhat bizarre fashion. They accuse d various family members (additional to defendants), includ ing their grandmother, of sexually abusing them. Several allege d victims claimed their uncles tied them up with ropes during the abuse. On e child claimed the uncles locked him in the closet while abusing his sister

. T.R. testified that the uncles locked all five other children in the pantr y while they tied her up and abused her.

### -10- L.R. and J.R. also testified at tria l that they had told Kelson that the uncles had tied up their aunts and grandmother and sexually abused the m
as well. Evidence at trial showed the closet had no locks, the pantr y contain ed so much food that not even one child would fit inside, and n o ropes were found in t he house. In addition, Melanie Rouse testified that she had previously told T.R. about an unrelated, documented sexual abuse
cas e in which an individual in Kentucky had tied up Melanie Rouse an d sexually abused her after he locked her brother in a closet.
In March 1994, the children were again interviewed by law enfor cement agents, and their charges had apparently expande d fantastically. Although the defense characterized these March interviews as "rife" wit h inconsistent statements by the child victims andessential to the defense, the district court ch aracterized them as "unreliable" and would not allow either party to refer to the interviews at trial.
Most of the family involved in this case and also many members of the community who testified did not believe the children were abused and had
never seen evidence of abuse, injury or fear. The children's mother s testified they had no t observed any acts of sexual abuse or mistreatment; their children had never reported to them that they were being hurt o r othe rwise abused; for the most part, the uncles did not baby-sit th e children or spend sig nificant amounts of time with them; the children did not reveal to their mothers any fear of their uncles; only twice had the children ever complained of pain or discomfort in the vaginal or anal area s (L.R. had a yeast infection and J.R. had constipation--which can caus e sympt oms similar to sexual abuse); and the doctor who had examined th e children on those occasions revealed no suspicions of abuse.

Before trial, the defendants moved f or independent psychological and medical examinations and for access to the children. The district court denied these motions. The court

### In addition, Deena LaPoint, the Department's social worker 8 

### assigned to this case from May 23, 1994 through the time of trial testified that the Department's director had been fired; that Brock had either been fired or resigned; that LaPoint had refused to turn over the Rouse children's Department files to defense counsel; and that LaPoint believed another social worker had previously shown the files to the United States Attorneys' Office. Later during the trial, the defense notified the court that 9 

### it had just received a new "FBI 302" report from the United States Attorneys' Office that stated that "Jerome" had seen T.R. having sex with a boy named "Tom." The district court disallowed the evidence to cross-examine T.R., stating it would confuse the jury and create a mini-trial.
-11- exclud ed the defense expert's testimony that there existed in th e govern mental custody and treatment of the children (through the socia l services agency) a "practice of suggestibility." The district court noted tha t access to the children would have to be obtained from the prope r author ities. The defendants claimed that the United States Attorneys ' Office maintained it was within the Department's discretion and th e Depart ment maintained it was within the United States Attorneys' Offic e discretion . As a result, access to the children was effectively denied. 8

Th e district court also excluded testimony regarding inter-chil d sexual activity by and between the complaining witnesses and other childre n
on the reservation in Marty, South Dakota, the place of residence of the family here involved. Particularly, Moses Rouse, an eleven-year-old boy who lived in the home , reported to investigators that he and T.R. had had
sex over a long period of time, and other child witnesses testified that Moses and T.R. had engaged in sexual relations. 9

Although defendants intimated they would be presenting evidenc e generally of inter-child sexual activity and accusations of sexual abuse of non -defendant family members in several motions and hearings week s before trial, they never filed a formal motion a s required by Federal Rule of Evidence 412. The day before trial,

### -12-

the gove rnment filed a motion in limine to prevent defendants fro m presentin g such evidence at trial because they had not filed a Rule 41 2 motion. The district court granted the governme nt's motion and disallowed such evidence.

The tr ial took place in August 1994. The children were promise d picnics, vacations, a nd even a chance to return home as rewards for their "truthful," successful testimony at trial. In fact, they were told they could not go home until their uncles had been successfully removed.

At t rial, the children were asked almost exclusively leadin g questions over closed circuit television. Rathe r than asking the children if th e abuse occurred, the government asked them whether they had tol d various third persons that abuse had occurred. On redirect examination, J.R. basically denied that any abuse occurred.
The jury convicted Jesse Rouse of engaging in sexual acts with T.R. and J.R. The jury convicted Desmond Rouse of en gaging in sexual acts with T.R., L.R., and R.R. The jury convicted Garfield Feather of engaging in sexual acts with T.R., L.R., and J.R. The jury convicted Russell Hubbelin g of engaging in sexual acts with T.R. and F.R. The jury found th e defendants not guilty of the various remaining charges and acquitted the remaining defendant Duane Rouse. The district court sentenced Jessie Rous e to 33 years imprisonment, Desmond Rouse to 32 ye ars imprisonment, Garfield Feather to 30 years imprisonment, and Russell Hubbeling to 30 year s imprisonment.

After the trial, a community member called the clerk's office an d reported that she wor ked with one of the jurors who had often expressed a seriou s racial prejudice against Native Americans and had revealed tha t jurors to ld jokes regarding Native Americans in the jury room. Th e district court held a series of evidentiary

### The background matters include testimony offered or 10 

### introduced by defendants as well as the prosecution. This evidence bears on the issues discussed in this opinion--expert opinion evidence excluded and denial of independent psychological examination. Because sufficiency of the evidence to convict is not an issue, we do not resolve conflicts in the evidence in favor of the prosecution. We observe that some incidents related here are not in dispute; others, however, are sharply disputed.
-13- hearings on this issue, but denied defendants' motion for a new trial on thi s issue. The court sentenced each defendant to approximately thirt y years imprisonment. 10

II. DISCUSSION

A. EXP ERT TESTIMONY ON PRACTICES OF SUGGESTIBILITY IN TH E INVESTIGATION

At trial, the defense offered the testimony of Dr. Ralph Charle s Underwager. Dr. Underwager is a clinical psychologist and has bee n practicing his profes sion or teaching psychology for approximately twenty years. He has conducted extensive research and writing in the area o f child sex abuse and is familiar with extensive p sychological research into this subj ect during the past ten years. His expertise has not bee n challenged by the prosecutor, only the substance of his testimony.
The crucial question and answer (made by offer of proof) follows:

Q And based on your review of [the trial testimony] and you r rev iew of the records, all the files in this matter, is it you r belief that there's been a practice of suggestibility employed i n these techniques?
A Yes, sir.

### Rule 702 provides: 11 

### If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
-14- (Trial Tr. Vol. IX at 1768.) The state objected to the offer as an area "within the province of the jury and not within something that an expert should testify on." (Trial Tr. Vol. IX at 1771.)
The court rejected the offer as essentially not the subject of expert testimo nyand not reliable or relevant under Federal Rule of Evidenc e 104(a) and confusing and misleading to the jury under Federal Rule o f Evidence 403. The court rejected any proposed t estimony directly relating to the credibility of the alleged abused victims as witnesses, but mor e than that barred the expert witness from testifying on whether or not the investigative practices constituted "a practice of suggestibility."

The co urt erred in its analysis. The jury needed and was entitle d to have this evidence in evaluating whether the sexual abuse testified to by the children actually occurred. The testimony was relevant, proper, in keeping with our case law and crucial to the defense under th e circums tances of this case. The denial of that testimony constitute d prejudicial error.

1. The "Daubert" Analysis for Soft Science

In Dauber t v. Merrell Dow Pharmaceuticals , 509 U.S. 579 (1993), the Supreme Court addressed the standards of admissibility for scientifi c evide nce under Federal Rule of Evidence 702. The Court rejected th e 11 general acceptance test for novel scientific tes timony from Frye v. United States , 293 F. 1013 (D.C. Cir. 1923),

### Rule 104(a) provides that "[p]reliminary questions 12 

### concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court," subject to relevancy considerations.

-15- and asserted flexible guidelines for admissibility of scientific evidence under Rule 702.

Under Dau bert , the trial judge plays a "gatekeeping" role, ensuring tha t all scientific testimony or evidence admitted is both reliable an d relevant. Daubert , 509 U.S. at 589 n.7, 597.

The Daubert opinion emphasized first that the expert must testify to
sc ientific knowledge. "[T]he requirement that an expert's testimon y pertain to `scientific knowledge' establishes a standard of evidentiar y reliability." Id. at 590 & n.9. Knowledge "applies to any body of known facts or to any body of ideas inferred from such facts or accepted a s truths o n good grounds." Id. at 590 (quoting Webster's Third Ne w International Dictionary 1252 (1986)). Th e Court explained scientific knowledge in terms of a theory o r technique that (1) can be and has been tested, (2) has been subjected to peer review, (3) has a known or potential rate o f error (when technique is scient ific), and (4) has been generally accepted by the scientifi c community. Id. at 593-94.
The touchstone under Rule 702 is reliability. As the opinion s tates, "under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 589.

Furthermore, the knowledge must "ass ist" the trier of fact. That is
a relevance issue. Id. at 591. The key question for the trial judge in determining relevance under Federal Rule of Evidence 104(a) is whethe r 12 the expert proposes to testify to (1)

### -16-

scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. Id. at 592.

The D aubert opinion, while dealing with scientific evidence , specifically noted that the discussion was limit ed to a scientific context that was the nature of the expertise offered in that case. The discussion in the case does not apply to "technical, or other specialize d knowledge[,]" but only to "scientific knowledge." Id. at 590 n.8.

Here, we deal with a social science in which the research, theories and opinions cannot h ave the exactness of hard science methodologies such
as blo od tests, DNA, spectrographic evidence or chemical exposures wit h which Daubert dealt. As observed in a recent article, Daubert principles may not fully apply to certain social science evidence.
Appli cation of Daubert criteria to behavioral and socia l scie nce evidence, particularly psychological syndromes, i s prob lematic for two reasons: (1) judges' level o f understanding of scienti fic principles and methodology may ill prepare them to evaluate science, including social science, as now required by Daubert and (2) the nature of certain socia l and behavioral science t heories may be inherently inconsistent with D aubert criteria such as "falsifiability" and "erro r rates."

Ja mes T. Richardson, et al., The Problems of Applying Daubert t o Psychological Syndrome Evidence , 79 Judicature 1 0, 10-11 (July-Aug. 1995);
see also Berry v. City of Detroit , 25 F.3d 1342, 1349 (6th Cir. 1994) , cert. denied , 115 S. Ct. 902 (1995). But see Ri ncon v. United States , 114 S.Ct. 41 (1993) (summ arily remanding case for reconsideration in light of Daubert where expert testimony about reliability of eye witness testimony at issue).

The standard of review for admissionof expert testimony is abuse of discretion. See Cook v. American S.S. Co. , 53 F.3d 733,

### -17-

738 (6th Cir. 1995). The Supreme Court recently revisited the "abuse of discretion" standard in Koon v. United States , ___ U.S. ___, 64 U.S.L.W. 4512, 4517 (Jun. 13, 1996):

Lit tle turns, however, on whether we label review of thi s par ticular question abuse of discretion or de novo , for a n abuse of discretion stan dard does not mean a mistake of law is beyond appellate correction. Cooter & Gell , [496 U .S. 384] 402 (1990). A district court by definition abuses its discretion when it makes an error of law. 496 U.S., at 405. That a departure decision, in an occasional case, may call for a legal det ermination does not mean, as a consequence, that parts o f the revi ew must be labeled de novo while other parts ar e labeled an abuse of discretion. See id. , at 403 (court o f appeals should "apply a unitary abuse-of-discretionstandard"). The abuse of discretion standard includes review to determine tha t the discretion was not guided by erroneous lega l conclusions.

2. Offer of Proof

With this background, we examine Dr. Underwager's foundation an d compar e that foundation and his commentary on suggestibility with th e status as of the time of trial of psychological research and writing s concerning child witn esses and their susceptibility to faulty memory. As noted above, in the defense's offer of proof, Dr. Underwager testifie d outside the presence of the jury that from his review of the files, record s and testimony in this matter, there had been "a practice of suggestibility employed in these techniques." (Tr. Vol. IX at 1768.)

He furthe r testified outside the presence of the jury that Kelson's notes revealed she ha d exerted a massive influence over the children; she had a powerful prior assumption or conclusion that the children had been abused; and she engag ed in highly suggestive and contaminating practices, such as the groups and questioning. Dr. Underwager testified th e prosecutor asked the children only if they remembered reporting an inciden t to a

### -18-

particular individual (FBI agent, social worker, etc.), rather than whethe r th ey remembered the incident itself; the prosecutor used exclusivel y leading questions in the courtroom and the child ren's comfort level showed they were used to this type of questioning. He testified that studies sho w that adult s almost always rely on leading questions given the task o f finding something out from a child.
Dr. Underwager found the FBI's use of sexually explicit diagram s very sugg estive and leading, and asserted the evidence does not show suc h diagrams accomplish anything other than to suggest to the child that the interviewer is interested in sexual behavior.

He test ified that a large body of research shows that the presenc e at an interview of several adults--people of relatively high status-

- increases the conformity and compliance with wha t those adults expect from a child.

Dr. Under wager testified that the documents from the case files and courtroom testimony suggested to him that powerful and potentially coerciv e influences had been brought to bear on the small four- and five-year-old chi ldren who were taken without notice from their mothers, families an d homes, without being told the reasons and kept incommunicado in a strange place where all the people around them urged the m to talk about sex abuse. (Tr. Vol. IX at pp. 1768-74.)

The distr ict court concluded that this expert testimony was not the sort even contemplated by Daubert , did not pass the initial Rule 104(a ) threshold inquiry with regard to either reliability or relevancy, and coul d well mislead the jury.

Here, the court misinterpreted our precedent and applied Dauber t incorrectly to bar this evidence. The defense fulfilled

### -19-

the requirements of D aubert . The witness did not purport to testify that wi tnesses had in fact succumbed to any suggestive aspects of th e invest igation; only that the investigative means in this case wer e consistent with the psychological studies that s imilar techniques operated sug gestively on young children. In addition, every condition which Dr

. Underwager attempted to testify to as creating a practice of suggestibilit y has been amply demonstrated in the psychological literature as producing undue suggestibility in children's testimony. The importance and relevanc e is apparent.

The rem aining question is whether the answers assist the jury. B y excluding the expert testimony, the district court assumed the jury could do wi thout the informed opinion of the expert--that from the files an d records and testimony a practice of suggestibility has been employed in th e investigative techniques used on young children. That assumption minimize s almost 100 years of extensive research in this area of psychology-

- information which is beyond the knowledge or experience of the averag e individual.

3. Reliability of the Offered Testimony

We have examined both the evidence and the literature presented t o the district court and conclude that both suppor t the defendants' offer of proo f. In particular, the district court made reference to a recen t arti cle by Stephen J. Ceci and Maggie Bruck, Suggestibility of Chil d Witnesses: A Histori cal 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 p articularly young children. Almost all the other literatur e presented to the court is consistent with the Ceci-Bruck article.

### -20- The Ceci-Bruck article does not stat e that young children should not testifybut observes that many common 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 chil d's, original verbal answers are better remembered than the actual events themselves, yes-no questionin g leads to more error, and young children are particularly vulnerable t o 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 b y telev ision outside the presence of defendants, the prosecutor aske d 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 tha n whether they remembered the alleged abuse itself.

The quest ioning at trial represents a highly questionable aspect of testifying about an e vent. This is exactly what Dr. Underwager described in his offer of proof.

2. Children desire to comply or cooperate with the respecte d 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 qu estion 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 t o high levels of inaccurate recall.

### -21- Here, these children were taken from their homes on the basis of a five-year-old's statements, and were placed unde r the sole supervision and influences of Donna Jordan, Jean Brock, and Elle n Kelson--interviewers who had decided at the ou tset that all the children had been sexually abused.

The FBI a gents 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 unti l after the children had been with Jordan for over a week. Agent Van Ro e testified that he hadexplained his status as an FBI agent at the initial interview and told th e children that an FBI agent was like a policeman on the reservation. Van Roe testified that Jean Brock and foster mother Donn a Jordan r emained in the room while FBI agents conducted the initia l 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 Broc k that th is was because their uncles had done bad things to them, and pu t into the care of Jordan.

At this initial interview, R.R. hand ed investigator Hudspeth a group of papers which reflected things she had previously told foster mothe r Donna Jordan which Jordan had written down for h er. Thus, agents received
a frame of reference which could produce bias, even before the start of th e interviews.

3. Repea ted questions can produce a change of answers as the child may interpret the que stion as "I must not have given the correct response the first time," and the child's answers may well become less accurate ove r 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 he r home to the time of her complaints of sex abuse. These

### Kelson testified at a hearing in May 1994 that the 13 

### children 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 14 

### 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
-22- children were repeate dly questioned by Brock, Jordan, Kelson, doctors and law e nforcement agents. By March 1994, the children's accounts of th e familial sexual abuse were so skewed that the district court refused t o admit these interviews into evidence.
4. Younger children are more susceptible to suggestibility thanolder child ren, especially in the context of stereotyping. Id. at 407, 417

. Ster eotypes organize memory, sometimes distorting what is perceived b y adding thematically congruent information that was not perceived, an d stereotype formation interacts with suggestive questioning to a greate r extent fo r younger rather than older children. Id. at 416-17. Studie s have shown children a re particularly susceptible to an interviewer's "bad man" stereotype, and when repeatedly told the ac tor is a bad man, they may
con struct a false account of an event often embellished with perceptua l details in keeping with the stereotype. Id.

Here, var ious 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 again and again, 13 including at trial. In 14

### 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.
-23- additi on, the children testified via closed circuit television based o n their "fear" of defendants. While closed circuit television, othe r security procedures at the courthouse, and disal lowing 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 thei r uncles, the defendants.

5. The u se of anatomical dolls or sexually explicit materials will not necessarily provide reliable evidence as chi ldren may be encouraged to engage i n sexual play with dolls, etc., even if the child has not bee n sexual lyabused, and further no normative data exists on non-abuse d children's use of dolls. See id. at 423-25. The secon d law enforcement (January 21) interview took place at the United States Attorne y's Office with the Assistant United States Attorney present. The children saw an anatomical drawing of a penis. Later, Kelso n utilized play therapy and art media, and apparently dream journals. Dr. Underwager testified that exposing children to t hese materials suggests to them that the authority figure wants information about sex.

6. "[A] major conclusion is that contrary to the claims of some, childr en sometimes lie when the motivational structure is tilted towar d lying." Id. at 433. Patterns of bribes for disclosures, implied threats in nondisclosures, or insinuations that peers have already tol d investigators of suspects' abusive behavior are highly suggestive. Id. at 423. Children will l ie for personal gain, and material and psychological rewards need not be of a large magnitude to be effective. Id.

### -24- 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 tol d they could not go home until their uncles had been successful ly removed. Experts are critical of this kind of reward a s "bribing" children to "admit" abuse or give abus e-consistent answers, such as promising to end t he interview, or giving them other tangible rewards. Such techniques affect the accuracy of children's reports.

7. Dr. Un derwager testified regarding the concept of "cross

germination" among th e children. Children in studies and in actual cases have shown that peer pressure or interaction with other children ha s effects on the accuracy of their reporting: they will provide a n inaccurate response when other children have "al ready 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 o f Children's Testimony146-50 (American Psych. Assoc. 1st ed. 1995). I n several cases where c onvictions have been overturned, children were shown to have talked with one another about the abuse, sometimes even siblings questio ned siblings to get them to "open up" or provide incriminatin g evidence. Id. at 150-51.

As mentio ned above, Kelson reported that she talked to the group in "talk circle"; that the group seemed to have discussed an agenda amon g themselves each week and that T.R. was the ringl eader. 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 ch ildren stated:

The studies on interviewing provide evidence tha t sugges tibilityeffects are influenced by the dynamics of th e interview itself, the knowledge or beliefs possessed by th e interviewer (especially one who is unfamiliar with

### -25- the child), the emotional tone of the questioning, and th e props used. Children attempt to be good conversationa l partners by complying wi th what they perceive to be the belief of th eir questioner. Their perceptions, and thus thei r sugg estibility, may be influenced by subtle aspects of th e interview such as the repetition of yes-no question s, but their co mpliance is evidenced most fully in naturalistic intervie w situations in which the interviewer is allowed to question the child f reely; this gives the child the evidence to make th e necessary attributions a bout the purposes of the interview and about the intents and beliefs of the interviewer. Observations of interactions in the leg al arena highlight the fact that children who testify in court are not interviewed in steri le conditions such as those found in many of th e expe riments we have reviewed. They are usually questione d repeat edlywithin and across sessions, sometimes about a n ambiguous event by a variety of interviewers, each with their own agenda and beliefs. Children are sometimes interviewe d formallyand informally for many months preceding an official law-enforcement interview with anatomical dolls, providing an opportunity for the child to acquire scripted and s tereotypical knowledge about what might have occurred.

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

Our review of the literature indicates that childre n can indeed be led to make false or inaccurate reports about very crucial, personally experienced, central events.

. . . . The refore, it is of the utmost importance to examine th e conditions prevalent at the time of a child's original report about a criminal event in order to judge the suitability o f using that child as a witness in the court. It seem s pa rticularly important to know the circumstances under whic h the initial report of concern was made, how many times th e child was questioned, the hypotheses of the interviewers wh o que stioned the child, the kinds of questions the child wa s asked, and the consisten cy of the child's report over a period of time . If the child's disclosure was made in a nonthreatening, nonsuggestible atmosphere, if the disclosur e was not made after repeated interviews, if the adults who had access to the child prior to his or her testimony are no t motivated to distort the child's recollections through

### -26- relentless and potent suggestions and outright coac hing, and if the ch ild's original report remains highly consistent over a period of time, then the young child would be judged to b e 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 tes timony, but it ought to raise cautions in the mind of the court.

Id. at 432-33.

Other psychological research and writing supports the Ceci- Bruc k article and Dr. Underwager's offer of proof. See, e.g. , Maryland v. Craig , 497 U.S. 836, 868-69 (1990) (Scalia, J., dissenting) (detailing injustice
cau sed by erroneous testimony of children who were separated from thei r parents for months an d repeatedly interrogated and noting "[s]ome studies show t hat children are substantially more vulnerable to suggestion tha n adults, and often unable to separate recollected fantasy (or suggestion) from reality"); Linds ay & Johnson, Reality Monitoring and Suggestibility: Children's Ability to Discriminate Among Memories From Different Sources, in Children's Eyewitness Memory92 (S. Ceci, M. Toglia, & D. Ross eds

. 1987); Christiansen, The Testimony of Child Witn esses: Fact, Fantasy, and the Influence of Pretrial Interviews , 62 Wash. L. Rev. 705, 708-711 (1987) ; Debbi e Nathan, Justice in Wenatchee , N.Y. Times, Dec. 19, 1995, at A1 9 (testimony of childre n increasingly being discredited in sex-abuse cases; childr en who have not been abused sometimes re-enact purported sexua l trauma with anatomically detailed dolls or adopt fantasies complete with visc eral details when prompted; videotaped pretrial interviews in som e
cases have helped prompt jurors to acquit defendants); Daniel Goleman , Studies Reveal Suggestibility of Very Young as Witnesses , N. Y. Times, Jun e 11, 1993, at A1.

Indeed, the prosecutor's child abuse expert, Tascha Boychuk of th e Child' s Advocacy Center, Phoenix, Arizona, who testified at a pretria l hearing stated, "[i]f the question is can a child's memory

### One juror in this case told a co-worker that the alleged 15 

### victims only recalled they had been abused after "a lot of counselling." (Juror Misconduct Hr'g 10\26\96 at 45.) This statement indicates that the juror may have believed long delay and persistent, lengthy questioning of young children would likely produce truthful testimony. As we have demonstrated, the contrary has been well-established. This statement, if made, would underscore the desirability and necessity of expert opinion on the subject as offered by Dr. Underwager. The district judge in the present case himself allowed Dr. Underwager's co-author, Dr. Hollida Wakefield, to give expert witness testimony on memory and suggestibility of young victims under Daubert in a more recent case. See United States v. Reynolds , 77 F.3d 253, 254 (8th Cir. 1996) (per curiam) (affirming district court's rulings).
-27- be falsified, certainly the probability and the likelihood is yes. We see situations of that. Yes."

Th e reality of children's susceptibility to suggestive intervie w practices is well-established in the literature and the necessary analysis is beyond the ken of a non-professional. The expe rt's foundation related 15 the coercive factors that can influence testimony. The defense provided the co urt with an abundance of literature supporting the expert' s exp lanation relating to the existence of coercive factors in this case

. Yet the court declined to allow the testimony.

4. Eighth Circuit Caselaw Regarding Similar Testimony

Although the district court correctly precluded Dr. Underwager from testif ying about the ultimate issue of the children's credibility, h e sho uld have been allowed to testify regarding the suggestibility of th e techniques employed in this case and whether they could have affected thes e children's memories.

We see no essential difference in th is testimony, and in a qualified expert opining that a n abuse victim's symptoms are consistent with sexual abuse syndrome, battered woman syndrome,

### -28-

bat tered child syndrome and other recognized syndromes. See Estelle v

. McGu ire , 502 U.S. 62, 70 (1991) (evidence of battered child syndrom e related to intent and its admission did not violate due process); United States v. Norquay , 987 F.2d 475, 479 (8th Cir. 1 993) (affirming admittance of expert rape trauma syndrome evidence over defendant's objections that this a mounted to admission of others' opinions of victim's credibilit y because witnesses were not allowed to state whether they believed th e victimhad indeed been raped), abrogated on other grounds , United States

v. Thomas , 20 F.3d 817 (8th Cir. 1994) (en banc); United States v. Simpson , 979 F. 2d 1282, 1287-88 (8th Cir. 1992) (recognizing battered woma n syndrome), cert. deni ed , 507 U.S. 943 (1993); United States v. Whitetail , 956 F.2d 857, 859 (8th Cir. 1992) (same); UnitedStates v. St. Pierre , 812 F.2d 417, 419-20 (8th Cir. 1987) (expert can inform jury of characteristic s foun d in sexually abused children and describe characteristics allege d victim exhibits).

In United States v. Johns , 15 F.3d 740, 743 (8th Cir. 1994), w e rejected the defendant's argument that an expert impermissibly vouched for
a sexu al abuse victim's credibility because implicit in the expert' s testim onywas the opinion that the victim was telling the truth. W e concl uded that an expert may inform the jury of the characteristics o f sexually abused children generally and may describe characteristic s exhibited by the alleged victim, but may not state an opinion that abuse has in fact occurred. Id. Likewise, in United States v. Whitted , 11 F.3d 782, 785 (8th Cir. 1993), we determined that an expert may inform the jury of characteristics found in sexually abused children and describ e char acteristics the alleged victim exhibits. We stated that exper t opinio ns are not inadmissible merely because they embrace the ultimat e issue to be decided by the trier of fact, but they cannot be phrased i n terms of inadequately explored legal criteria or merely tell the jury what result to reach. Id.

### -29- "Finally, in our landmark case of [United States v. Azure , 801 F.2d 336, 340 (8th Cir. 1986)], we stated that general testimony about a [child ] victim' s ability to separate truth from fantasy, the expression of a n opinion on the similarities between a victim's c laim and the evidence, and the co mparison of behavioral and testimonial patterns of a particula r victimwith the behavioral patterns observed in victims in general, were all admissible in certain circumstances." Bachman v. Leapley , 953 F.2 d 440, 442 (8th Cir. 1992); see also United States v. Plenty Arrows , 946 F.2 d 62 (8th Cir. 1989) (no abuse of discretion where district court allowe d health therapist to testify that victim's behavi or consistent with that of other sexually abusedchildren); Arcoren v. United States , 929 F.2d 1235, 1239-41 (8th Cir. 1991) (expert testimony readily admissible wher e psychologist testifie s to mental aberrations in human behavior, when such knowledge will help j ury to understand relevant issues in case, including helping jury to evaluate which of victim's conflicting statements were mor e credible, and expert does not express her opinion as to which statements
were m ore credible or whether victim suffered from battered woma n syndrome), cert. denied , 502 U.S. 913 (1991).

Here, Dr . Underwager was not testifying as to whether the childre n
were credible, but rather to whether they were subjected to suggestiv e practices. The district court erred in excluding that important testimony

.

In asses sing the prejudice from the exclusion of this evidence, w e do so ag ainst the backdrop of other alleged errors depriving thes e defendants of a fair trial.

### -30- B. OTHER ISSUES OF CONCERN

1. Rejected Medical Examination
Although the medical evidence was inconclusive and the examiner s took
no pic tures, the district court denied defendants' requests for furthe r medica l examinations. This discretionary ruling is not error, bu t highlights the importance of the children's test imony and the prejudice to defend ants caused by the court's refusal to admit Dr. Underwager' s testimony.

Soon after these children were removed from their homes, th e Department arranged for some of them to undergo a medical examination by Dr. Richard Kaplan, a pediatrician at the Yankton Medical Clinic wh o examines 500 to 600 children per month. Dr. Kaplan testified that th e vaginal redness and possible trauma he observed could be consistent with abuse or any number of possible non-abuse causes; the conditions h e observed were basically nonspecific as to cause; he could not conduct a thor ough examination while the children were awake; and based on hi s limited examination, he could not positively diagnose any of the children as having been abused.
Thereafter, on February 11, 1994, hi s co-worker, Dr. Robert Ferrell, had t he children placed under anesthesia and examined them with a colposcope. Although he had received some training in the sex abuse area
seven yea rs earlier while he was a resident, Dr. Ferrell had no specia l experience in sex abuse investigations. Dr. Ferrell had never testified in a crim inal case. He did not take photographs of his colposcopi c examinations, although the process would have been easy and helpful in thi s
case.

Dr. Ferrell admitted that neovascula rization (redness in the vaginal
areas ), decreased anal tone, and hymenal tags can be common plac e occurrences resulting from many different "everyday

### -31-

occu rring" causes. He did make a post-operative diagnosis that F.R

. indicated evidence of tearing and scarring of the anal mucosa but otherwis e
a normal anus and vagina; that R.R. had apparent damage to the hymenal rin g consistent with vulvovaginal trauma, and possible anal trauma; that L.R. revealed a fusion and evidence of anal trauma; that J.R. ha d neovascularization, clue cells and a tag or scar on the hymen. On T.R., the anterior portion of the hymenal ring was essentially gone; he diagnose d vaginal and vulva trauma.
The defendants' pediatric expert, Dr. Robert Fay of Albany, New York, testif ied he had prior training and experience with Native America n patie nts, sex abuse diagnosis and treatment, and that he had bee n previously retained by both defense and prosecution in other cases. I n essence, Dr. Fay testified that the reported hym enal fusions in L.R., R.R. and J.R. are suspicious for sexually acquired trauma; that labial injury would be a significant finding in diagnosing sexual abuse, but that most of the conditions observed by the doctors offere d by the prosecution--such
as redness, erythema, neovascularization, vaginal furrows and ridges, a "gaping hymen," a "hy menal notch," "clue cells," "relaxed anal tone," and "anal folds," were of no significance in evaluating whether sex abuse had occurred, and are found in a high percentage of non-abused children.

Dr. Fa y testified he felt Dr. Ferrell was not qualified based o n training or experience to perform a colposcopic examination of a child; hi s training was outdated; photographic evidence in such cases is frequently dispositive, very helpful, and perhaps essential; and a further physical examination of the children would be very helpful.

The liter ature in this area, see Jan Bays & David Chadwick, Medical Diagnosis of the Sexually Abused Child , 17 Child Abuse & Neglect 91, 92, 95, 10 3 (1993), indicates that frequently findings on examination o f children allegedly sexually abused are no

### T.R. admitted that the children had played with tampons, 16 

### but claimed they had not inserted the tampons. One of the mothers also testified that she had once caught the children experimenting with tampons; in particular, she believed they had done something to F.R., who was crying.
-32- different than simila r findings on children who most likely have not been subject to sexual abu se. That work indicates that a number of factors or conditions may mimic findings caused by sexual abuse or wrongly produce a history suggestive of child sexual abuse, includ ing adults misinterpreting normal masturbation or sexual play between child ren and a variety of other dermatologic, congenital, traumatic and infectious conditions. 16
Another leading article indicates

Eve n in our present state of knowledge, it is becomin g incre asinglyevident that, as a consequence of naturall y occurring physical chang es, there will always be an overlap in findings between nonabused children and the victims of sexual misuse. The appreciation of this reality should serve as a consta nt reminder that the determination of sexual abuse ca n rarely rely on a physical examination alone and tha t consideration of all the components of the investigation-

- especially the information obtained from the child--i s essential.

John McCann, M.D., et al., Genital Findings in Prepubertal Girls Selected for Nonabuse: A Descriptive Study , 86 Pediatrics 428, 438 (Sept. 1990).
We agree that, as a matter of discretion, the district court ne ed not have required more invasive procedures on these small children. But w e must o bserve that the medical testimony, while consistent with possibl e sexual abuse, is inco nclusive in light of other matters discussed herein. In ad dition, some of that alleged trauma may have occurred from sexua l inte rplayand activity between and among the victims and other youn g children.

### Rule 412 allows defendants to present evidence of past 17 

### sexual activity of victims provided 1) a formal motion is filed and a hearing is held, and 2) such evidence is constitutionally required or offered upon the issue of whether the accused was or was not the source of semen or the victim's injury.
-33- 2. Rejection by the Trial Court of Testimony regarding inter-child sexual activity

The defendants sought to introduce testimony regarding substantia l int er-child sexual activity by and between the children in question an d other children in Marty, South Dakota on the reservation. Particularly, an eleven-year-old boy who lived in the Rouse ho me told investigators that he and T.R. had sex f or a long time, and other children corroborated this testimony. Also, during the trial, government evidence surfaced showing that T.R. also had engaged in sexual relations with another boy. Thi s evidence was not placed in front of the jury however.
The children themselves provided a source of this information b ecause after weeks of interr ogation and "counselling," the sex abuse accusations expanded to include all sorts of family members including the grandmother. This well may have been fantasy and bears on the reliability of th e government's case against these defendants.
Although defendants intimated that t hey would be presenting evidence generally of inter-child sexual activity and accusations of sexual abuse by non-defendant family members in several motio ns, the defendants did not file a formal motion as required by Federal Rule of Evidence 412. 17
The day before the trial, the government filed a motion in limine to prevent defendants from presenting such evidence because of the absence of a formal Rule 412 motion. The defendants respon ded by then filing the 412 motion, claiming they had not

### -34-

received some of the relevant evidence, including L.R.'s representations th at everybody was having sex with everybody else in the house-

- particularly that she was having sexual relations with her grandmother-- until the government filed its motion. The district court denied th e motion for absence of timeliness.

While tha t ruling can be approved based on the record in this case, the issue is troubling because that sort of evidence would have cas t additional light on whether the alleged medical evidence of sexual abuse could be attributed to sources other than the charged defendants. Thi s sort of evidence may be constitutionally required. United States v. Bear Stops , 997 F.2d 451 (8th Cir. 1993) (reversing conviction where district court limited admission of evidence relating to previous sexual assault on vi ctimto establish alternative explanation for why victim exhibite d behavior of sexually abused child).
Turning to Federal Rule of Evidence 412, that rule permits the filing of a 412 motion during trial for good cause. See Rule 412(c)(1)(A). Wher e the government only gave the defendants the FBI report regarding the secon d boy during the trial, the district court's refus al to allow the defendants to p resent testimonial evidence kept important information, helpful t o defendants, from the jury.

The trial court might have granted the belated Rule 412 motion

. Nevertheless, we cann ot say that the trial judge abused his discretion in strictlyfollowing the language of the statute in requiring fifteen days advance notice to pre sent the evidence. Inasmuch as we grant a new trial
on other grounds, the untimeliness issue should not arise on the new trial

.

### -35- 3. Denial of Independent Psychological Examination

The defense moved for a psychological examination of the childre n st ating that this examination would be crucial to the defense i n preparation of the case and observing:

The ch ildren have been subjected to countless, unrecorde d interviews by social workers, FBI and tribal office rs, the U.S. Attorneys Office and others. There is simply no wa y of telling what occurred at these interviews, the nature and form of the que stions, or whether or not some children who are no w complaining witnesses, at first denied the abuse occurred, or whether there have been retractions or recantations.
In response to the government's objections, the movants also as serted "the stated claim in preventing contact with the child by the accused or the appointed psychologist for the accused is to protect the children from any further abuse or possible intimidation or ha rassment by the accused or the appointed psychologist."

The movants further argued that social workers interrogated th e chil dren several times; that the police and the FBI interrogated th e children several times; that the children were t old to keep dream journals by the foster care pr ovider; that the children had been the recipients of constant interrogation by the foster care provid er; that the counselor had interro gated the children on numerous occasions; that the prosecutin g att orney had interviewed the children several times; and that there ha d been dozens of interrogations by various agencies involved. The movants noted tha t at no time was the cry of trauma, embarrassment, invasion o f privacyand possible harassment by these interrogations raised, and that perhaps this was because the various agencies were building their cases.

This motion was well taken.

### -36- Although it is addressed to the disc retion of the district court and the district court de nied the motion on the grounds that such examination
was unnecessary and intrusive, the record in this case amply indicates tha t the defendants suffered substantial prejudice by the nature of the cas e agains t them without the opportunity to indeed show that possibl e fals ification in testimony had occurred because of the nature of th e government's investigations. Given their lack of access to the children and the amount of suggestive interviewing done t o support the prosecution,
we bel ieve the defendants were entitled to an independent psychologica l examination.
This belief is strengthened by the f ailure to videotape or audiotape any of the investigat ory or counselling interviews. Electronic recording of child witness inte rviews (particularly, the preliminary interviews) is crucial to rule out the potential influences of coaching and interrogative sug gestion. Written summaries by the adult interviewers (be it Kelson , Jordan or law enforcement agents) are no substitute for electroni c recordings of these interviews, particularly in legal proceedings:
Although one would excuse such missing data when th e allegation was fir st made to parents, one would hope that it would b e normal procedure for the police, social workers, an d therapists to have recorded all interviews with the children, if th e purpose of the interview could--even remotely--be considere d "forensic."

Ceci, supra , at p. 24 2. No tape or audio recordings were taken of any of the multitudinous interviews which took place in this case. Many of the discrepancies in testimony in this case might have been resolved by a tape d record of these interviews.

In addition, some of the children's testimony reflects an element of fantasy--possibly the tying up of practically every member of the househol d and locking up multiple children in closets

### For example, when J.R. was asked if she remembered a time 18 

### when she and L.R. were playing on a truck and L.R. fell and hit her head, J.R. testified that "[L.R.] was running and she cut her head on a window . . . on the glass on the side of the car." L.R. testified that she had told investigator Hudspeth that her Uncle Desmond hurt her head with a knife--had thrown it at her because she was watching television. However, L.R. also remembered playing with J.R. and cutting her head on the mirror of the truck. With these obvious discrepancies, the jury acquitted Desmond Rouse of assaulting L.R. with a knife. The dangers of a suggestive and tainted investigation in 19 

### child abuse charges are highlighted by additional cases. See Maryland v. Craig , 497 U.S. 836, 868-69 (Scalia, J., dissenting) (citations omitted); State v. Kelly , 456 S.E.2d 861 (N.C. 1995); North Carolina v. Wilson , 456 S.E.2d 870 (N.C. App. 1995); State v. Michaels , 642 A.2d 1372 (N.J. 1994); State v. Michaels , 625 A.2d 489 (N.J. App. 1993).
-37- in light of the previous abuse experience Melanie Rouse had shared with th e other children. Studies show that children will fantasize--tellin g 18 elaborate stories about an event that never happened or fabricating a n entire episode or sequence of events within a la rger episode, particularly
over time on the basis of acquired interviewer stereotypes, or they ma y produce convincing false narratives to explain f ictitious events suggested to them. See Ceci, supra , at 133-34, 218-222, 227; see also , Ceci & Bruck , supra , at 407, 417 (b oundaries of children's fantasy-reality distinctions can be fragile; children's disclosures may becom e increasingly bizarre and incredible, sometimes caused by interviewers not drawing children back to realitywhen they made fantastic claims; and children may have troubl e distinguishing what they experienced through per ception and what they only imagined they experienced). Defendants had the right to have some of thes e stories explored by an independent psychological examiner.
In light of the manner in which the prosecution, state agencies and others had proceeded in the investigation, the district court abused its discretion in denying the defense a fair opportunity to determine whether the children had, in fact, been influenced by the manner in which th e investigation had taken place. 19

### -38- 4. Prejudiced Juror

After th e verdict in this trial, an allegation of juror misconduc t
was brought to the court's attention. Verna Severson contacted the clerk' s office and said that she was surprised her co-worker (at a preschool) Pat Pickard w as allowed to serve on the jury of a case involving Nativ e Americans because she believed Pickard was prejudiced against them. The district court held a number of hearings and hea rd testimony from a number of witnesses. Everyone who testified (mostly co-wo rkers from the preschool) except Severso n, unequivocally stated that Pickard is not racist and has no t demonstrated a bias against Native Americans, although the school is now instituting workshops on racial sensitivity. Se verson had a long-standing animosity toward Pickard and some of her testimony was contradicted b y other witnesses.

On the other hand, Severson testified that she had listened t o Pic kard's racist statements for many years (including one to the effec t that adu lt males often have sex with young girls as part of the Nativ e American culture), and that she had engaged in a rguments with Pickard over the years on the subject of Pickard's racism and bias against Nativ e Americans. Severson testified Pickard told her that Pickard and two other jurors in this case enjoyed making racial jokes about Indians. Th e district court precluded Severson from telling what Pickard said went on while the jury was in the jury room pursuant to Federal Rule of Evidence 606(b).

The defendants assert Pickard's own testimony and efforts to avoi d
answer ing questions--"Not in my opinion," "I don't know," "I don' t remember," "I don't think so," and "I may have"--were most revealing of he r bias and her equivocal answers to most of the

### -39-

questi ons impeached her specific denial of bias. Pickard specificall y testified she heard and laughed at a comment (rather than joke) in the jur y
room about an Indian (but she could not reveal more under Federal Rule of Evidence 606(b)), andshe told a fellow juror after the trial that "Well, you know what to say [regarding racial prejudice] if you want to be on or off the jury." Pickard also acknowledged that her sister-in-law, a social work er who worked with abused children, told her that it is terrible to be born a n Indian baby girl; tha t she had repeated this remark to Severson and other individua ls; and that her intention was to repeat a statement of a n experienced social worker.

De fendants argue the court's order denying the motions for a ne w tri al incorrectly narrowed the focus of the juror misconduct inquiry t o voir di re only and not into comments which took place in the jury room

. Unit ed States v. Heller , 785 F.2d 1524 (11th Cir. 1986) (overturnin g conviction where jurors made anti-semitic jokes at trial and others reacte d to them with gales of laughter).
We do not quarrel with the credibili ty determination of the district court rejecting serious charges against Pickard, but the evidence relating to thi s issue erodes confidence in the result. We cannot ignore th e existence of racial prejudices in our society and as against Nativ e Americ ans in areas near reservations. Pickard's statements relating t o Native American racial jokes or comments raises a matter of grave concern. Rac ial prejudice in the jury room cannot and will not be tolerated o r condoned. Here four Native Americans placed their liberties in the hands of all whites: prosecutors, defense counsel, judge and jury. The la w requires that they receive a fair trial without the impact of racial bias.

### We comment briefly on the dissent. The dissent gives 20 

### primary focus on evidence supportive of the verdicts. We do not quarrel with the sufficiency of the evidence. Every statement of background in the court's opinion has support in the record. Much of the evidence at the trial, however, was in sharp dispute. As explained in the opinion, we relate background evidence as it bears on the excluded expert opinion and the denial to the defense of an independent psychological examination of the children. Supra , at 13, n.10. Although, as stated in the dissent, Dr. Underwager testified generally on suggestibility of matters affecting young children, he was never permitted by the trial court to relate these general observations to the specific suggestive conduct concerning the children in this case. Supra , at 13. That ruling amounted to crucial and prejudicial error in the context of this case.
-40- III. CONCLUSION

Abuse o f young children is a serious crime. Here, only five o f thirteen children bro ught forth tales of abuse and told their versions in an atmosphere that could be coercive. These cir cumstances raise a serious and a clo se question to the validity of the verdict. The trial cour t barred crucial defense evidence relating to the practice of powerful and
coerc ive suggestibility relating to child witnesses. Such evidenc e wrongfully excluded could have made a difference. We reverse and remand for a new trial. 20
LOKEN, Circuit Judge, dissenting.

I respectfully dissent. In my view, the majority's opinio n misrepresents the factual record, misstates the district court's procedura l and evidentiary rulings, and ignores the context of those rulings. Th e majori tyaccepts defendants' view of numerous issues of disputed fact , violating our duty to respect the jury's verdict . I leave to the district court the task of sep arating appellate fact from fiction when the case is retried

. But I will explain the reasons why I believe this decision i s very wrong.

### -41- I. Convincing Evidence of Guilt.

The majority takes many liberties with the trial record in atte mpting to cast doubt on the jury verdict that defendants committed some, but not all, of the alleged acts of criminal sexual abuse of five young girls. Th e gover nment based its case on the testimony of two physicians, the fou r oldest victims, another child who witnessed sexual abuse, and FBI Agent Va n Roe. A brief review of that evidence is needed to set the record straight

.

A. The Ba sic Chronology. The South Dakota Department of Socia l Services ("DSS") plac ed R.R. in Donna Jordan's foster home on November 9, 1993 , because of neglect and malnutrition. In early January, Jorda n repor ted to DSS (as she was required to do) that R.R. said she had bee n sexually abused. On January 10, DSS told Jordanto take R.R. to therapist Ellen Kelson. After an initial interview, Kelson reported to DSS (as she
was requi red to do) that R.R. had reported acts of sexual abuse agains t herself and other chi ldren in the Rouse home. On January 11, DSS removed children living in the Rouse home and placed the m in Jordan's foster home. On January 15, Dr. Richard Kaplan examined the children. On January 19, FBI Agent Van Roe and BIA Agent Hudspeth interviewed the children. That evening, they were seen by a psychiatrist, who r eferred them to Kelson for ther apy. Kelson first saw the children in a group on January 22. Th e majority frequently misstates or obfuscates thes e undisputed chronological facts.

B. The Medical Evidence. After performing the initial medica l examinations on January 15, Dr. Kaplan reported to DSS his medical finding s and what the children had told him about sexual abuse. J.R. told Dr

. Kaplan, "Uncle Jess hurt me," pointing to her le ft labia; Dr. Kaplan found a recent bruise or contusion consistent with tha t kind of abuse. L.R. had "a fairly acute injury" on the right side of her labia majora which "reall y hurt her." R.R. toldDr. Kaplan, "I have a bruise where my uncle put his private spot,"

### -42-

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 muc h tenderness" on her labia majora; T.R. told him, "Uncle Jess hurt me there. "

On February 11, Dr. Robert Ferrell conducted a colposcopi c 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 constellati on of findings" indicating L.R. had been abused -- damage to her hymenal area, furrowing on eithe r side of her vagina, chronic irritation or trauma, and "clue cells" that ar e "known to be sexually transmitted." To Dr. Ferrell, a scar on J.R.'s hyme n where a tear had heal ed was an "important finding," while T.R.'s "hymenal ring was essentially gone," the entire area was irritated, and she ha d furrows in her vagina . Infant F.R. had "tearing and scarring of the anal mucosa."

Def endants' medical expert, Dr. Fay, admitted that the reporte d hymenal scarring on L.R., R.R., and J.R. "certainly . . . leads you t o th ink about sexual abuse," and that "a labial injury . . . is a ver y significant finding" of abuse. In its rebuttal, the government called Dr. Randall Al exander, a member of the Board of Governors of the Nationa l Committee to Prevent Child Abuse. Dr. Alexander testified that it takes considerable force to inflict labial injuries like those exhibited by thre e 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."

On this record, the majority dissembles when it repeatedly opine s that the government presented "inconclusive" medical evidence of sexua l abuse.

C. Th e Victims' Testimony. At trial, four victims testified tha t defendants sexually abused them (the fifth victim, infant

### -43-

F.R., was too young to testify). Their nine-year-old cousin testified tha t three defendants shut him in the attic when he saw them abusing T.R. A fe w observations about this testimony.

First, th e victims' trial testimony was consistent with their "free recall" -- the report s of abuse R.R. volunteered to Donna Jordan in early January, and the four oldest victims made to Dr. Kaplan during his January 15 med ical examinations. These unprogrammed reports preceded the FB I interviews and Ellen Kelson's therapy. Is that significant? I refer to the majority's non-testifying experts, Ceci and Bruck, in the "Conclusions " portion of their Suggestibility article, 113 Psych. Bulletin at 433:

[I] t is of the utmost importance to examine the condition s prev alent at the time of a child's original report about a criminal event . . . . I f the child's disclosure was made in a nonthreatening, nonsuggestible atmosphere, if the disclosur e was not made after repeated interviews, if the adults who had access to the child prior to his or her testimony are no t motivated to distort the child's recollections throug h relentless and potent suggestions and outright coac hing, and if the ch ild's original report remains highly consistent over a period of time, then the young child would be judged to b e capable of providing much that is forensically relevant.
Likewise, Dr. Underwager testified for the defense:

Q What has the research told us about the types of questions that should be asked?
A Basically, the most reliable information is obtained fro m free recall.

Second, i t is certainly true that the prosecutor asked the children leading questions at trial. When the first child witness (the nine-yearold male cousin) froze on the stand in open court, the district court , consistent with numerous Eighth Circuit cases, ruled that leading question s could be asked of reticent child

### The system included five monitors in the courtroom for the 21 

### 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.
-44- witnesses. Defendants did not object to this ruling nor raise the issue on appeal.

Third, defendants did object to permiting three of the chil d witnesses to testify by closed circuit television. The district cour t questioned each child in chambers, in the presen ce 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-year-old J.R. was unable to speak when calle d to testify and stated in chambers that she was a fraid to speak in front of her uncles. Six-year-old R.R. was found sobbing outside the courtroom and affirmed in chambers that she was crying out of fear of her uncles. Nineyea r-old T.R. became so fearful before testifying that "the guardian a d litem would have had to physically pull her into the courtroom." The cour t found that defendants' presence in the courtroom would prevent these three childre n from testifying and permitted them to testify in chambers b y cl osed circuit television. Though I share the concerns expressed b y 21 Justice Scalia in his dissenting opinion in Maryland v. Craig , 497 U.S

. 836, 867-69 (1990), I conclude the court properly resolved this issue unde r Maryland v. Craig , Hoversten v. Iowa , 998 F.2d 6 14 (8th Cir. 1993), and 18 U.S.C. § 3509(b). The majority apparently agrees.

D. The FBI Interviews. After a hear ing outside the jury's presence, the district court permitted FBI Agent Van Roe to testify to what the thre e oldest victims said d uring his January 19, 1994, interviews because those hearsay statements were spontaneous and trustworthy. Though defendant s challenge this ruling on appeal, "a formidable line of Circuit precedent . . . sanctions the use of

### The majority also insinuates that BIA Agent Hudspeth asked 22 

### the children leading questions at the January interviews, apparently unaware that the district court specifically asked Agent Van Roe that question. Van Roe testified that Hudspeth did not do so.
-45- hearsay testimony in child sexual abuse cases." United States v. St. John , 851 F.2d 1096, 1098 (8th Cir. 1988).
Accepting this ruling, the majority instead chides the district court for excluding evidence of March 1994 interviews that were "essential to th e defe nse." But the district court did not exclude that evidence. Whe n

22 Desmond Rouse's attorney asked if he could cross-examine Agent Van Ro e regard ing the March interviews, the court responded that such question s
were beyond the scope of Van Roe's direct testimony and raised distinc t reliabili ty questions. However, said the court, "If you want to d o something later, that is up to you. I'm not trying to tell you how to try your case." Though V an Roe was recalled as a defense witness, he was not questioned about the March interviews.

Finall y, it is worth noting in surveying the evidence that th e government's rebuttal included testimony by another FBI agent that Jessie Rouse and Desmond Rouse made damaging admissions when interviewed o n January 25, 1994.

E. T he Majority's Riposte -- (1) Donna Jordan as the Gran d Inqui sitor. Jordan was the victims' foster mother, a function she ha s perf ormed for over ninety children for seventeen years. She was no t involved in law enforcement. She never "interviewed" the children. She
was not asked as a witness to relate what the victims told her. Yet the majority asserts that Jordan "told them their un cles were at fault and she got very specific about the 'bad' things their u ncles were doing to them." Supra , at p. 8. Let us see how Jordan describedthese supposedly sinister conversations during her cross examination at trial:

### -46- Q You have gone to each one of the girls one by one and i n grou ps, and you have told them that their uncles have bee n raping them?
A No. Never. No. Q Wha t specific bad things have you told the girls that th e uncles were doing? A When they were first talking about their sexual abuse -- Q I'm talking about what you have said to the kids. A I just say it's wrong when they bring up the subject, and I say it's wrong, it's wrong, it's bad. But there is nothing , you know -- that's it. Q Have you talked to these kids both alone and in groups?
A No. Q Well --
A Unl ess they come -- I mean things can happen at home

. Some one can come up and say something while you are fixin g sup per or whatever you are doing, and start talking abou t something. But, no, not deliberately talking about this. No. I haven't.

The majority's attempt to label Jordan as a forensic interviewer wh o bombarded the victims with "a practice of suggestibility" in effect accuse s Jordan of lying under oath and improperly performing her duties. It also twists the record to fit the majority's unsupportable view of the case.

(2 ) Ellen Kelson as the Grand Inquisitor. After initial medica l examin ations and FBI interviews, the children were referred by a psychiatrist to Ms. Kelson for therapy. Because the children were Medicai d patients, DSS was Kelson's client, and she was required to submit he r session notes. When Jean Brock suddenly

### When called as a defense witness, social worker Brock 23 

### testified that she never interviewed the victims about alleged sex abuse and denied telling children they were being taken to a foster home because their uncles had been doing bad things to them. Thus, the majority's repeated assertions to the contrary are improper.
-47- left DSS in March 1994, Kelson began sending these confidential notes to 23

an Assistant U.S. Attorney to ensure that only authorized persons saw them , a fact the majority uses to place Kelson in the prosecutor's camp. But sh e conducted no forensic interviews of the children, and the government did not call her as a witness.

Defendant s did call Kelson at trial and questioned her for some 150 transcript pages in an unsuccessful effort to convince the jury that Kelso n had "implanted" the victims' memories, thereby contaminating their trial testim ony. The majority accepts this theory, calling Kelson primaril y responsible for the "practice of suggestibility. " The majority encourages defense counsel to ca ll a victim's pretrial therapist, question about the nature of the therapy, and then call a psychologist who will opine that th e therapi st's counseling destroyed the credibility of the child's tria l testimony. This tactic if widely used would force the government to choos e between timely therap y for the child victim, and effective prosecution of the ch ild abuser. This is terrible public policy, contrary t o congre ssional mandates. District courts should block such injustice i n future cases by exercising their discretion to preclude defendants fro m introducing evidence of pretrial therapy or counseling by a professional who has not testified in the government's case-in-chief.

(3) Excluded Evidence of Other Sexual Activity. Defendants file d Rule 412 motions to introduce evidence that one victim had been sexually active. The district court denied the motions b ecause the defense learned about this evidence from an interview with a you ng boy almost three months before trial. I conclude, and the majority apparently agrees, that th e district court did not

### The majority's suggestion that Daubert principles do not 24 

### apply to "social science evidence" ( supra , at p. 16) is contrary to the law of this circuit. See United States v. Reynolds , 77 F.3d 253 (8th Cir. 1996); Gier v. Educational Service Unit No. 16 , 66 F.3d 940 (8th Cir. 1995).
-48- abuse its discretion by excluding this evidence as untimely. See Rul e 412(c)(1)(A); United States v. Provost , 875 F.2d 172, 177-78 (8th Cir.), cert. denied , 493 U.S. 859 (1989).

Defendant s' Rule 412 evidence consisted primarily of a claim by one defendant's eleven-year-old son that he had "sex" with the victim, which she de nied. After reviewing interview reports, the district cour t expressed concern tha t this evidence "could wind up creating a mini trial
as to whet her . . . this experimentation took place." But the cour t refrained from ruling on whether this evidence o f sexual activity would be admissible if the government presented medical evidence of genita l injuries. That is the relevant inquiry. See Rule 412(b)(1); United State s
v. Bear Stops , 997 F.2d 451, 454-56 (8th Cir. 1993); United States v. Eagl e Thunder , 893 F.2d 950, 954 (8th Cir. 1990). Tho ugh the government offered such injury evidence, when defendants called the boy as a defense witness, theydid not question him regarding this alleged sexual activity. Thus, the district court de alt with the merits of this issue correctly, and the majority's suggestion s to the contrary reflect a distressing ignorance of the trial record.

II. Dr. Underwager's Testimony.

Dr. Underwager's testimony was the culmination of the defens e strategyto destroy the credibility of the victims' trial testimony b y proving that this tes timony was the product of "implanted" memories. The exclus ion of some of Dr. Underwager's proferred testimony provokes a dissertat ion by the majority on Daubert and "soft science." Prope r 24 review of this issue instead requires careful attention to its procedural context.

### -49- Before Dr. Underwager testified, the district court held a hearin g to determine whether this expert would provide sufficiently reliabl e scientific evidence t hat would assist the jury to understand or determine
a fact in issue. See Fed. R. Evid. 702; Daubert , 113 S. Ct. at 2796. Whe n the court asked what opinions Dr. Underwager pro posed to express at trial, defense counsel submitted a letter from Dr. Underwager stating:

Bas ed upon my review of the documents you have supplied , including but not limited to, therapist notes, FBI reports, and other d ocuments, it is my opinion that the children in thi s case have been subjected to massive and coercive socia l influence by adults. . . . The level of adult influ ence is such as to make it highly lik ely any statements are so contaminated by adult behaviors as to be unreliable. . . . If asked, my opinion is that there is such a low probability of any sexual abuse by the defendants, that a reasonable person must conclude it did not take place.

The court also heard Dr. Underwager describe his theories of "learned" or "impl anted" memory, and it reviewed some of the literature to which h e ref erred (including the Ceci and Bruck article extensively cited by th e majority). The court ruled:
I'm not going to allow D r. Underwager to testify as to whether or not the [child] witness's testimony is believabl e or not, or telling the truth or not. . . . [T]here may be othe r areas that Dr. Underwager may be proffered to testify on, and those will have to be, or may be an yway, the subject of an offer of proof when we get to that point.
The major ity concedes, as it must, that this preliminary ruling was
correc t. Assessing the reliability or credibility of a victim' s
acc usations is the exclusive function of the jury; it is not a prope r subject of expert testimony. See Westcott v. Crinklaw , 68 F.3d 1073, 107 6 (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). Dr. Underwager's

### -50-

attem pts to express 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 , 45 4 N.W.2d 624, 627-29 (Minn. App. 1990).

The dist rict court also made a second preliminary ruling. Becaus e thi s is an area of valid scientific inquiry, the court ruled that Dr

. Underwager could express his own expert opinions and explain his own prior research. But regarding the theories and writin gs of other psychologists, the court concluded:

the re is not anywhere near yet the agreement in th e [scientific] community as to methods, techniques, testings or reliability that would w arrant the admissibility before a jury of these matters . . . . It would result in a conf usion of the issues , a possible misleading of the jury . . . . So, fo r these reasons, under Daubert , I'm not going to allow evidence with re gard to the different . . . psychological methods o f evaluating the reliability of witnesses.

The majority does not question this exercise of the court's discretion , perh aps because the Ceci and Bruck article is itself a compendium o f conflicting theories and opinions on this subjec t dating back to 1900. As
an aside, many of the majority's citations are to Ceci and Bruck' s summaries of other experts' work, some of it more than ninety years old.

Wi th that procedural background, I will summarize Dr. Underwager' s trial testimony for the defense, organizing that testimony into th e categor ies of "suggestibility" evidence that the majority claims wer e totally excluded ( supra , at pp. 20-27):

1. Asking children leading questions at trial. After opining that open questions produce more reliable information, Dr. Unde rwager asserted, "an adult who has a bias, a preconceived assumption, tends very quic kly to go to leading questions, go to coercive questioning in order t o get what they think that they need or want." Th e district court then

### -51- sustained an objection to a later question, "What w ould be your comment in regard to the form of the questions [asked of th e children at trial]?"
2. A child w ill give authoritative interviewers what the child perceives is desired. "[I]t's very clear that when the person doing the questioning starts with the assumption tha t the re's been abuse, that's what you get, that's what yo u produce from the child."
3. Repetitive questioning can change a child's answers

. "[T]he repeating of ques tions is one of the most powerful ways that adults influence children to produce the answe rs the adult wants. Parents know this."
4. Younger children are more susceptible t o sugges tibilitythan older children. "The younger the child , the greater the suggestibility, the more vulnerable they are to the influences."
5. Anatomical dolls and sex play will not necessarily produce relia ble evidence of sex abuse. "Play therapy has no therapeuti c value whatsoever. In fact, the rese arch evidence suggests that it's harmful. . . . [Play therapy is] all Freudian stuff, and there's no sc ientific support whatsoever for those concepts." Dr. Underwage r was then asked about research "into the effects of play therapy where the all egations of sexual abuse may not be true," an objection wa s sustained, and defense counsel dropped the issue.
6. Children lie when mot ivated to lie. "[V]ery frequently the adult wi ll give some kind of promised reward . . . to shape th e behaviors of children." Adults also use "what psychologists know as negative reinforcement; that is, the removal of an adverse stimulus. . . . [These techniques are] very powerful and very often used."
7. "Cross germination" a moung a group of children will produce inaccura te memories. "When children talk to each other, they hav e an effect on each other, and they ca n communicate . . . stories that are pic ked up on." "[Y]ou can produce changes, and accounts shif t and move and all kinds of things happen."
8. On the general subjec t of implanted memory. "[M]emories are now shownto be implanted[. There] can be a complete nonevent, but a memory can be created . . . by questioning someone."

### Defense counsel had no trouble using this expert testimony 25 

### 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, playtherapy, 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 . . . . In my view, the entire offer of proof was without merit. 26 

### Defendants never objected to the court's ruling that leading questions could be put to reticent child witnesses. Having waived the issue, defendants may not then have their non-legal "expert" criticize questions the court has permitted.
-52- In my view, this summ ary conclusively demonstrates that every category of "suggestibility" evidence identified by the majo rity was the subject of an opinion expressed by Dr. Underwager to the jury . That should be the end of the ma tter on appeal. The jury learned how the child victims wer e medically examined, interviewed, and counseled before trial. It saw and heard the children testify. And it heard Dr. Underwager's opinions as to fact ors that might influence the reliability of that testimony. Th e district court correctly concluded that this was an adequate evidentiary basis for the jury to make its ultimate credibility findings. 25
Rather than examine what the jury infact heard, the majority places the cart before the horse by starting with the offer of proof made b y defense counsel at the conclusion of the above-s ummarized testimony. That off er was made because the district court precluded Dr. Underwager fro m
comm enting on the form of the questions asked the child witnesses a t trial. 26

### -53- The majority states that the crucial question and answer in the offer of pro of was, "is it your belief that there's been a practice o f suggestibility employed," and Dr. Underwager's c ryptic answer, "Yes, sir." Supra , at p. 13. I disagree. What was "crucial" to the district court wa s the very next question, "could you explain to the Court how you observed that," and Dr. Underw ager's three-page narrative answer. In that answer, Dr. Underwager opined (i) that therapist Kelson had exerted "massive socia l influence" on the vic tims; (ii) that Kelson engaged in "highly suggestive and highly contaminating" practices; (iii) that the prosecutor used leadin g questions at trial and the children "were comfortable doing the yes/n o bit," showing "they'd learned" to answer yes; (iv) that Van Roe's use of diagrams was "very suggestive and very leading"; (v) that the childre n "were kidnapped . . . taken from their families, taken to this strang e place where all of the people are concerned that they talk about se x abuse"; and (vi) that the "total environment [was] one of the most powerfu l and coercive influences upon children that I've seen."
That was totally improper "expert" t estimony. If Dr. Underwager may not opine that the children's trial testimony wa s not credible, as we have often ruled, then the district court properly precluded him from indirectl y stating that same opinion. For example, if Dr. Underwager has expressed the opinion that leading questions produce testi mony that is not credible, then his opinion that the prosecution asked lead ing questions at trial is, quite obviously, an opinion that the children's testimony was not credible

. Defendants' offer of proof reflected Dr. Underwager's passionate attempt to find a cou rt -- any court -- that will allow him to opine tha t particular child witnesses have not told the truth. Those opinions have been rejected by every court which has considere d them, they were rejected by the di strict court, and they are rejected in theory by the majority

. Yet these convictions are reversed because defendants' offer of proof was denied!

### When a child witness is in the legal custody of a social 27 

### 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). Defendants concede that DSS made the decision to deny access. They do not claim that the prosecution interfered, and they never complained to the district court that DSS had denied them pretrial access to the children. Moreover, the victims' appointed legal guardian advised the court at a motion hearing that questions of access and custody were subjects of a separate tribal court proceeding.
-54- The district court properly "circumscribed [Dr. Underwager' s testimo ny] so as to educate rather than to usurp the role of the jury. " United States v. Johns , 15 F.3d 740, 743 (8th Ci r. 1994). I have no doubt that if de fendants had asked Dr. Underwager to describe a "pattern o f sugges tibility," without opining whether one occurred in this case, th e distr ict court would have allowed that addition to the opinions he di d express to the jury. In other words, the majority's stated reason fo r reversal is a contrivance, apparently born of a desire to publish a lectur e
on Daubert and a dist aste for either this type of prosecution or the long prison sentences it has produced.

III. Denial of Defense Psychological Interviews.

Prior to trial, the victims were in DSS's custody. The majorit y criticizes DSS's efforts t o isolate the young victims and holds that the 27 distri ct court abused its discretion in denying defendants' motions t o
su bject the victims to adversarial psychological examinations by Dr

. Underwager. I disagree.

Defendan ts and Dr. Underwager had available to them the reports o f the victims' medical examinations, Agent Van Roe's interview reports, and therapist Kelson's extensive notes of her sessio ns with the children. Dr. Underwager stated at the motion hearing that he had sufficient information to assess whether the

### Unlike the court in United States v. Benn , 476 F.2d 1127, 28 

### 1130-31 (D.C. Cir. 1973), I do not assume that the criminal justice arm of government 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.
-55- children had been sexually abused. He observed the trial testimony of the victims and therapist Kelson, assisted defendants at trial, testifie d regarding the effects of child interview techniques, and was prepared to express opinions on the suggestibility of the investigative and therapeuti c pr actices employed. In these circumstances, defendants' motions fo r further psychological examinations were properly denied. See United State s
v. Spot ted War Bonnet , 882 F.2d 1360, 1362 (8th Cir. 1989)(subsequen t history omitted) (interview properly denied because defense expert reviewe d other interview records and was present when victim testified).
In denying these motions, the distri ct court properly considered the victim s' interests, requiring defendants to show good cause for thi s "additional intrusion into the alleged victims already troubled lives. " An a dult witness may simply refuse to undergo adversarial medical o r psychological examina tions. See United States v. Bittner , 728 F.2d 1038, 1041 (8th Cir. 1984). With children in protective custody, the issue is
more com plex because they are not able to make such decisions fo r themselves. The tria l 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. At a minimum, the cou rt should heed a custodial ag ency's opinion that an investigative or adversarial examination i s unnecessary or unwise. 28

Her e, the children's guardian opposed further psychologica l examinations, particularly by adversarial experts, and defendants

### -56-

did not show need for the requested examinations. On this record, th e majority's decision that the district court nonetheless abused it s discretion in declini ng to order the examinations raises a barrier to the prosecution of these kinds of crime by maximizing the trauma that victims must r outinely endure. Congress has repeatedly legislated the opposit e public policy, for example, in enacting Rules 412, 413, and 414 of th e Federal Rules of Evid ence. This aspect of the majority's decision is, in a word, lawless.

IV. Conclusion.
I have carefully reviewed defendants' other contentions on appe al and conclude that each is without merit. One -- the allegedly biased juror -- is mentioned by majority in yet another gratuitous slap at the way th e district court conducted this trial. In fact, after a thorough evidentiar y hearing on this issue, the court found that juror Pickard was the target of a spiteful co-worker whose testimony was not credible. It further foun d that juror Pickard had not concealed "any racially prejudiced attitudes, beliefs, or opinions" and that "no improper outs ide influence affected the jury." These finding s established that defendants were not entitled to a new trial on this ground. See United States v. Tanner , 483 U.S. 107, 120- 27 (1987); McDonough Power Equip., Inc. v. Greenwood , 464 U.S. 548, 55 6 (1984); United States v. Whiting , 538 F.2d 220, 222-23 (8th Cir. 1976) ; Fed. R. Evid. 606(b). On this record, for the majority to suggest tha t defendants did not "receive a fair trial without the impact of racial bias " is outrageous.

Thi s was a difficult case to try. The record reflects that th e distri ct court dealt carefully, fairly, and impartially with the man y issues that arose before, during, and after the trial, and that the jury del iberated carefully in convicting defendants on some counts an d acquitting them on many others. The majority no w likens this to the Salem Witch Trials! That is an indictment of

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all the government officials involved in these proceedings -- and mos t particularly, of an e xceedingly competent and fair United States District Judge -- that I cannot abide. I would affirm the judgments of the distric t court.

A true copy.

Attest:

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