___________

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 young Native American men face combined sentences of more than

120 years for alleged child abuse. These convictions rest upon testimony

of young children, the alleged victims, with some support from findings on

medical examinations of the children.

These defendants are Jesse Rouse, Desmond Rouse, Garfield Feather and

Russell Hubbeling. They and a fifth defendant, Duane Rouse, who was

acquitted by the jury, faced twenty-three counts of aggravated sexual abuse

of children under the age of twelve years in violation of 18 U.S.C.

§ 2241(c). The events allegedly occurred at family residences on a South

Dakota Indian Reservation.

The jury found Jesse Rouse guilty of two counts of sexual abuse;

Desmond Rouse guilty of three counts; Garfield Feather guilty of four

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-

children. The children are referred to by initials in the text of this

opinion. The jury acquitted the defendants of the remaining charges.

The appellants raise twelve allegations of error in the trial of the

case. We grant relief on two issues: (1) refusal to allow expert opinion 1

testimony by a court appointed psychologist that the children's evidence

and testimony became tainted by suggestive influences to which the children

were subject in the investigation and trial, which influences included

taking the children (the alleged victims and nine other children) from

their families and from their residences and (2) denial by the trial court

of the defendants' motion for independent psychological examination of the

allegedly abused children--in light of the circumstances of the case.
-4-

Accordingly, the appellants are entitled to a new trial on these

grounds.

Sufficiency of the evidence is not an issue. However, an examination

of the record establishes that the medical evidence was inconclusive as to

abuse or abuse by the defendants and that the children's reports of abuse

may have been tainted by the influence of social workers and law

enforcement officials who investigated and prepared the government's case.

The crucial issue for determination by the jury was this -- did the

young children testify from their own memory of events or was a false

memory induced during investigation by the methods by which those children

were interrogated? Some of the evidence presented in the case suggests

that the children may have had induced memories that sexual abuse occurred.

While that issue remained 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 had

been subjected by state investigators to "powerful and coercive

influences."

We briefly address the merits of some of the other errors alleged by

the defendants. This commentary may be helpful with respect to the retrial

of this case. See United States v. Azure, 801 F.2d 336, 341 (8th Cir.

1986).

First, the trial court's discretionary ruling which denied defendants

a further independent medical examination leaves inconclusive the abuse

conclusions resting on medical findings. This uncertainty in the evidence

is further accentuated because the physician did not document findings with

photographs.

Second, in light of the background of this case, the district court'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 Testimony 8 (1995).

-5-

activity among the alleged victims and other children on the reservation

deprived the defendants of important evidence indicating another possible

source relating to any physical manifestations of abuse. This issue may

arise in the new trial.

Third, because of the possible influences on the memories of the

children by social services personnel and other investigators and the lack

of access to the children, the district court prejudicially erred in

refusing to authorize an independent psychological examination.

Fourth, although not reversible error, the allegations of one juror's

racism and that juror's contention that racial jokes regarding Native

Americans were told in the jury room are troubling.

With respect to conditions that can influence children's memories,

we are mindful of a historical event of some three hundred years ago (the

Salem, Massachusetts witch trials) where child witnesses ages five to

sixteen (the "circle girls") claimed to see persons (the defendants) flying

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 history

must remind us that memory, particularly children'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

Yankton Sioux Reservation in Marty, South Dakota, during the summer and

fall of 1994. R.R. had been taken from her mother and placed in her

grandmother's custody. She had been unhappy about living with her

grandmother and had wanted to stay with her mother. After R.R. told a

teacher that her grandmother was mean to her and was not feeding her, the

Yankton Sioux Tribe's Department of Social Services (Department) removed

R.R. from Rosemary Rouse'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. told

Jordan that she was having nightmares and that she had been sexually

abused. Jordan scheduled an appointment with counsellor Ellen Kelson.

After interviewing R.R.--an interview which she did not audio or video

tape--Kelson 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, apparently without any additional

evidence or investigation, the Department removed approximately thirteen

children from the Rouse home and a nearby home. According to the

4

evidence, squad cars pulled up and the children were physically removed

while they cried and clung to their uncles' and other adults' legs. Jean

Brock, a social worker for the Department, transported the children to

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 being

taken away because the uncles were doing "bad things" to them. On her

initial intake sheet, Brock noted that "the children love the adults," but

that the home was messy.

Brock and Jordan told the children they could not go home until they

told the "truth" about their uncles. Both alleged victims and non-victim

children testified that Brock and Jordan repeatedly told them that they

were taken away from their homes because their uncles did bad things to

them and that they could safely go home only after they told the "truth"

about their 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 tell 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 the

children repeatedly denied being abused, and approximately nine children

who consistently and adamantly denied being abused were allowed to go home

to their parents. Those children who claimed that abuse occurred were not 5

allowed to see their parents until approximately six months later in July

1994 (just before trial), despite repeated requests by the children and

parents and a tribal court order. T.R. testified that she did see her

mother once during this time period after repeated requests to do so.

Nevertheless, both Brock and Kelson sat in on the 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-

Beginning in January 11, 1994, the children all lived in Jordan's

home. Jordan told them this situation was not their fault; she told them

their uncles were at fault and she got very specific about the "bad" things

their uncles were doing to them. 

Dr. Richard Kaplan, a pediatrician, initially examined the children

in Jordan's presence on January 15, 1994. At that time, he could not

diagnose any of the children 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 doctor

reported findings consistent with sexual abuse. 

After the January 15 examination and after the group of children

spent over a week in Jordan's home, FBI agent William Van Roe and BIA

Criminal Investigator Dan Hudspeth interviewed the children on two separate

days. The agents immediately identified themselves as police officers, and

Jordan and Brock sat in on the interviews. At the initial interview, R.R.

handed investigator Hudspeth 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" her

remember some things during the interview. Officers showed the children 6

an anatomical drawing of a penis. Although agent Van Roe testified he did

not ask the children leading questions, he later acknowledged that

investigator Hudspeth had asked most of the questions. Investigator

Hudspeth did not testify. The officers did not videotape any of these

interviews.

Kelson counselled the children extensively 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 the United States Attorneys

Office. During her sessions with the children, Kelson used play therapy,

art media and apparently dream journals. She met with the children first

as a group ("talk circle") 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 the

same or similar theme. 

T.R., however, denied that the children ever discussed the sexual

abuse outside the counselling sessions. Kelson reported that T.R., the

eldest alleged victim, served as the "boss" or "leader"; T.R. was "very

manipulative" and told the other children what to do. For example, R.R.,

the original complainant, identified Jesse Rouse as one of her abusers only

after T.R. did so during a group session. Tabatha Smith, another child who

lived in the Rouse home and denied any abuse, testified that before she

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 children's accusations expanded over time in a somewhat bizarre

fashion. They accused various family members (additional to defendants),

including their grandmother, of sexually abusing them. Several alleged

victims claimed their uncles tied them up with ropes during the abuse. One

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 pantry

while they tied her up and abused her. 
-10-

L.R. and J.R. also testified at trial that they had told Kelson that

the uncles had tied up their aunts and grandmother and sexually abused them

as well. Evidence at trial showed the closet had no locks, the pantry

contained so much food that not even one child would fit inside, and no

ropes were found in the house. In addition, Melanie Rouse testified that

she had previously told T.R. about an unrelated, documented sexual abuse

case in which an individual in Kentucky had tied up Melanie Rouse and

sexually abused her after he locked her brother in a closet. 

In March 1994, the children were again interviewed by law enforcement

agents, and their charges had apparently expanded fantastically. Although

the defense characterized these March interviews as "rife" with

inconsistent statements by the child victims and essential to the defense,

the district court characterized 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 mothers

testified they had not observed any acts of sexual abuse or mistreatment;

their children had never reported to them that they were being hurt or

otherwise abused; for the most part, the uncles did not baby-sit the

children or spend significant 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 areas

(L.R. had a yeast infection and J.R. had constipation--which can cause

symptoms similar to sexual abuse); and the doctor who had examined the

children on those occasions revealed no suspicions of abuse.

Before trial, the defendants moved for 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-

excluded the defense expert's testimony that there existed in the

governmental custody and treatment of the children (through the social

services agency) a "practice of suggestibility." The district court noted

that access to the children would have to be obtained from the proper

authorities. The defendants claimed that the United States Attorneys'

Office maintained it was within the Department's discretion and the

Department maintained it was within the United States Attorneys' Office

discretion. As a result, access to the children was effectively denied.8

The district court also excluded testimony regarding inter-child

sexual activity by and between the complaining witnesses and other children

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 evidence

generally of inter-child sexual activity and accusations of sexual abuse

of non-defendant family members in several motions and hearings weeks

before trial, they never filed a formal motion as required by Federal Rule

of Evidence 412. The day before trial,
-12-

the government filed a motion in limine to prevent defendants from

presenting such evidence at trial because they had not filed a Rule 412

motion. The district court granted the government's motion and disallowed

such evidence. 

The trial took place in August 1994. The children were promised

picnics, vacations, and 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 trial, the children were asked almost exclusively leading

questions over closed circuit television. Rather than asking the children

if the abuse occurred, the government asked them whether they had told

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 engaging 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 Hubbeling

of engaging in sexual acts with T.R. and F.R. The jury found the

defendants not guilty of the various remaining charges and acquitted the

remaining defendant Duane Rouse. The district court sentenced Jessie Rouse

to 33 years imprisonment, Desmond Rouse to 32 years imprisonment, Garfield

Feather to 30 years imprisonment, and Russell Hubbeling to 30 years

imprisonment.

After the trial, a community member called the clerk's office and

reported that she worked with one of the jurors who had often expressed a

serious racial prejudice against Native Americans and had revealed that

jurors told jokes regarding Native Americans in the jury room. The

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

this issue. The court sentenced each defendant to approximately thirty

years imprisonment.10

II. DISCUSSION

A. EXPERT TESTIMONY ON PRACTICES OF SUGGESTIBILITY IN THE

INVESTIGATION

At trial, the defense offered the testimony of Dr. Ralph Charles

Underwager. Dr. Underwager is a clinical psychologist and has been

practicing his profession or teaching psychology for approximately twenty

years. He has conducted extensive research and writing in the area of

child sex abuse and is familiar with extensive psychological research into

this subject during the past ten years. His expertise has not been

challenged by the prosecutor, only the substance of his testimony.

The crucial question and answer (made by offer of proof) follows:

Q And based on your review of [the trial testimony] and your

review of the records, all the files in this matter, is it your

belief that there's been a practice of suggestibility employed in

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

testimony and not reliable or relevant under Federal Rule of Evidence

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

Evidence 403. The court rejected any proposed testimony directly relating

to the credibility of the alleged abused victims as witnesses, but more

than that barred the expert witness from testifying on whether or not the

investigative practices constituted "a practice of suggestibility." 

The court erred in its analysis. The jury needed and was entitled

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 the

circumstances of this case. The denial of that testimony constituted

prejudicial error.

1. The "Daubert" Analysis for Soft Science

In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the

Supreme Court addressed the standards of admissibility for scientific

evidence under Federal Rule of Evidence 702. The Court rejected the

11

general acceptance test for novel scientific testimony 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 Daubert, the trial judge plays a "gatekeeping" role, ensuring

that all scientific testimony or evidence admitted is both reliable and

relevant. Daubert, 509 U.S. at 589 n.7, 597.

The Daubert opinion emphasized first that the expert must testify to

scientific knowledge. "[T]he requirement that an expert's testimony

pertain to `scientific knowledge' establishes a standard of evidentiary

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 as

truths on good grounds." Id. at 590 (quoting Webster's Third New

International Dictionary 1252 (1986)). 

The Court explained scientific knowledge in terms of a theory or

technique that (1) can be and has been tested, (2) has been subjected to

peer review, (3) has a known or potential rate of error (when technique is

scientific), and (4) has been generally accepted by the scientific

community. Id. at 593-94. 

The touchstone under Rule 702 is reliability. As the opinion states,

"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 "assist" 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 whether

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 Daubert opinion, while dealing with scientific evidence,

specifically noted that the discussion was limited 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 specialized

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 have the exactness of hard science methodologies such

as blood tests, DNA, spectrographic evidence or chemical exposures with

which Daubert dealt. As observed in a recent article, Daubert principles

may not fully apply to certain social science evidence.

Application of Daubert criteria to behavioral and social

science evidence, particularly psychological syndromes, is

problematic for two reasons: (1) judges' level of

understanding of scientific principles and methodology may ill

prepare them to evaluate science, including social science, as

now required by Daubert and (2) the nature of certain social

and behavioral science theories may be inherently inconsistent

with Daubert criteria such as "falsifiability" and "error

rates."

James T. Richardson, et al., The Problems of Applying Daubert to

Psychological Syndrome Evidence, 79 Judicature 10, 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 Rincon v. United States, 114

S.Ct. 41 (1993) (summarily remanding case for reconsideration in light of

Daubert where expert testimony about reliability of eye witness testimony

at issue).

The standard of review for admission of 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): 

Little turns, however, on whether we label review of this

particular question abuse of discretion or de novo, for an

abuse of discretion standard 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

determination does not mean, as a consequence, that parts of

the review must be labeled de novo while other parts are

labeled an abuse of discretion. See id., at 403 (court of

appeals should "apply a unitary abuse-of-discretion standard").

The abuse of discretion standard includes review to determine

that the discretion was not guided by erroneous legal

conclusions.

2. Offer of Proof

With this background, we examine Dr. Underwager's foundation and

compare that foundation and his commentary on suggestibility with the

status as of the time of trial of psychological research and writings

concerning child witnesses and their susceptibility to faulty memory. As

noted above, in the defense's offer of proof, Dr. Underwager testified

outside the presence of the jury that from his review of the files, records

and testimony in this matter, there had been "a practice of suggestibility

employed in these techniques." (Tr. Vol. IX at 1768.)

He further testified outside the presence of the jury that Kelson's

notes revealed she had exerted a massive influence over the children; she

had a powerful prior assumption or conclusion that the children had been

abused; and she engaged in highly suggestive and contaminating practices,

such as the groups and questioning. Dr. Underwager testified the

prosecutor asked the children only if they remembered reporting an incident

to a
-18-

particular individual (FBI agent, social worker, etc.), rather than whether

they remembered the incident itself; the prosecutor used exclusively

leading questions in the courtroom and the children's comfort level showed

they were used to this type of questioning. He testified that studies show

that adults almost always rely on leading questions given the task of

finding something out from a child. 

Dr. Underwager found the FBI's use of sexually explicit diagrams very

suggestive and leading, and asserted the evidence does not show such

diagrams accomplish anything other than to suggest to the child that the

interviewer is interested in sexual behavior. 

He testified that a large body of research shows that the presence

at an interview of several adults--people of relatively high status--

increases the conformity and compliance with what those adults expect from

a child. 

Dr. Underwager testified that the documents from the case files and

courtroom testimony suggested to him that powerful and potentially coercive

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

children who were taken without notice from their mothers, families and

homes, without being told the reasons and kept incommunicado in a strange

place where all the people around them urged them to talk about sex abuse.

(Tr. Vol. IX at pp. 1768-74.)

The district 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 could

well mislead the jury.

Here, the court misinterpreted our precedent and applied Daubert

incorrectly to bar this evidence. The defense fulfilled
-19-

the requirements of Daubert. The witness did not purport to testify that

witnesses had in fact succumbed to any suggestive aspects of the

investigation; only that the investigative means in this case were

consistent with the psychological studies that similar techniques operated

suggestively on young children. In addition, every condition which Dr.

Underwager attempted to testify to as creating a practice of suggestibility

has been amply demonstrated in the psychological literature as producing

undue suggestibility in children's testimony. The importance and relevance

is apparent. 

The remaining question is whether the answers assist the jury. By

excluding the expert testimony, the district court assumed the jury could

do without the informed opinion of the expert--that from the files and

records and testimony a practice of suggestibility has been employed in the

investigative techniques used on young children. That assumption minimizes

almost 100 years of extensive research in this area of psychology--

information which is beyond the knowledge or experience of the average

individual. 

3. Reliability of the Offered Testimony

We have examined both the evidence and the literature presented to

the district court and conclude that both support the defendants' offer of

proof. In particular, the district court made reference to a recent

article by Stephen J. Ceci and Maggie Bruck, Suggestibility of Child

Witnesses: A Historical Review and Synthesis, 113 Psychological Bulletin

403-439 (1993), which reviews the research and writing on the subject and

supports the view that the very matters observed and testified to by Dr.

Underwager can produce biased, untrue or false memories in children, and

more particularly young children. Almost all the other literature

presented to the court is consistent with the Ceci-Bruck article.
-20-

The Ceci-Bruck article does not state that young children should not

testify but observes that many common interviewing practices can produce

an altered memory. Among other things, the article documents adequate

research indicating the following:

1. A subject's, particularly a child's, original verbal answers are

better remembered than the actual events themselves, yes-no questioning

leads to more error, and young children are particularly vulnerable to

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

A review of the record here reveals the children were asked entirely

leading questions in court. Even though the children testified by

television outside the presence of defendants, the prosecutor asked

suggestive questions. Not only did the questions call only for yes or no

answers, the children were asked only if they remembered reporting abuse

to law enforcement officers, doctors, and their therapist, rather than

whether they remembered the alleged abuse itself. 

The questioning at trial represents a highly questionable aspect of

testifying about an event. This is exactly what Dr. Underwager described

in his offer of proof.

2. Children desire to comply or cooperate with the respected

authority figure interviewer and will attempt to make answers consistent

with what they see as the intent of the questioner rather than consistent

with their knowledge of the event even if the question is bizarre. Id. at

418-19. Interviewer bias can skew results as a child will often attempt

to reflect the interviewer's interpretation of events, particularly when

more than one interviewer shares the same presuppositions. Id. at 422.

If the interviewer's original perception is incorrect, this can lead to

high levels of inaccurate recall. 
-21-

Here, these children were taken from their homes on the basis of a

five-year-old's statements, and were placed under the sole supervision and

influences of Donna Jordan, Jean Brock, and Ellen Kelson--interviewers who

had decided at the outset that all the children had been sexually abused.

The FBI agents were also strong authority figures--the kind of high

status interviewers described by Dr. Underwager--with preconceived notions

about the facts of this case, and they did not interview the children until

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

testified that he had explained his status as an FBI agent at the initial

interview and told the children that an FBI agent was like a policeman on

the reservation. Van Roe testified that Jean Brock and foster mother Donna

Jordan remained in the room while FBI agents conducted the initial

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

the children were taken from their parents' homes, told by Jordan and Brock

that this was because their uncles had done bad things to them, and put

into the care of Jordan. 

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

of papers which reflected things she had previously told foster mother

Donna Jordan which Jordan had written down for her. Thus, agents received

a frame of reference which could produce bias, even before the start of the

interviews.

3. Repeated questions can produce a change of answers as the child

may interpret the question as "I must not have given the correct response

the first time," and the child's answers may well become less accurate over

time. Id. at 419-20. Repeated questioning of victims often results over

time (or even within a single interview) in an inaccurate report. 

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

home to the time of her complaints of sex abuse. These
 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 repeatedly questioned by Brock, Jordan, Kelson, doctors and

law enforcement agents. By March 1994, the children's accounts of the

familial sexual abuse were so skewed that the district court refused to

admit these interviews into evidence. 

 

4. Younger children are more susceptible to suggestibility than older

children, especially in the context of stereotyping. Id. at 407, 417.

Stereotypes organize memory, sometimes distorting what is perceived by

adding thematically congruent information that was not perceived, and

stereotype formation interacts with suggestive questioning to a greater

extent for younger rather than older children. Id. at 416-17. Studies

have shown children are particularly susceptible to an interviewer's "bad

man" stereotype, and when repeatedly told the actor is a bad man, they may

construct a false account of an event often embellished with perceptual

details in keeping with the stereotype. Id. 

Here, various persons told the children from the beginning that the

defendants were "bad" and that it would not be "safe" to go home until the

defendants were gone. The children remained isolated from their families

and community. The "bad man-uncle" theme was replayed 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-

addition, the children testified via closed circuit television based on

their "fear" of defendants. While closed circuit television, other

security procedures at the courthouse, and disallowing the children to see

any family members before the trial did not amount to trial error, those

procedures served to reinforce the children's "bad men" stereotype of their

uncles, the defendants.

5. The use of anatomical dolls or sexually explicit materials will

not necessarily provide reliable evidence as children may be encouraged to

engage in sexual play with dolls, etc., even if the child has not been

sexually abused, and further no normative data exists on non-abused

children's use of dolls. See id. at 423-25. 

The second law enforcement (January 21) interview took place at the

United States Attorney's Office with the Assistant United States Attorney

present. The children saw an anatomical drawing of a penis. Later, Kelson

utilized play therapy and art media, and apparently dream journals. Dr.

Underwager testified that exposing children to these materials suggests to

them that the authority figure wants information about sex. 

6. "[A] major conclusion is that contrary to the claims of some,

children sometimes lie when the motivational structure is tilted toward

lying." Id. at 433. Patterns of bribes for disclosures, implied threats

in nondisclosures, or insinuations that peers have already told

investigators of suspects' abusive behavior are highly suggestive. Id. at

423. Children will lie for personal gain, and material and psychological

rewards need not be of a large magnitude to be effective. Id. 
-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 told they could not go home until their uncles had been

successfully removed. Experts are critical of this kind of reward as

"bribing" children to "admit" abuse or give abuse-consistent answers, such

as promising to end the interview, or giving them other tangible rewards.

Such techniques affect the accuracy of children's reports.

7. Dr. Underwager testified regarding the concept of "crossgermination" among the children. Children in studies and in actual cases

have shown that peer pressure or interaction with other children has

effects on the accuracy of their reporting: they will provide an

inaccurate response when other children have "already told" in order to go

along with a peer group or be part of the crowd. See id. at 423; see also

Stephen J. Ceci, Jeopardy in the Courtroom: A Scientific Analysis of

Children's Testimony 146-50 (American Psych. Assoc. 1st ed. 1995). In

several cases where convictions have been overturned, children were shown

to have talked with one another about the abuse, sometimes even siblings

questioned siblings to get them to "open up" or provide incriminating

evidence. Id. at 150-51. 

As mentioned above, Kelson reported that she talked to the group in

"talk circle"; that the group seemed to have discussed an agenda among

themselves each week and that T.R. was the ringleader. Testimony at trial

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

children in groups about the abuse. 

The Ceci-Bruck article's summary relating to interviewing of children

stated:

The studies on interviewing provide evidence that

suggestibility effects are influenced by the dynamics of the

interview itself, the knowledge or beliefs possessed by the

interviewer (especially one who is unfamiliar with
-25-

the child), the emotional tone of the questioning, and the

props used. Children attempt to be good conversational

partners by complying with what they perceive to be the belief

of their questioner. Their perceptions, and thus their

suggestibility, may be influenced by subtle aspects of the

interview such as the repetition of yes-no questions, but their

compliance is evidenced most fully in naturalistic interview

situations in which the interviewer is allowed to question the

child freely; this gives the child the evidence to make the

necessary attributions about the purposes of the interview and

about the intents and beliefs of the interviewer.

Observations of interactions in the legal arena highlight

the fact that children who testify in court are not interviewed

in sterile conditions such as those found in many of the

experiments we have reviewed. They are usually questioned

repeatedly within and across sessions, sometimes about an

ambiguous event by a variety of interviewers, each with their

own agenda and beliefs. Children are sometimes interviewed

formally and informally for many months preceding an official

law-enforcement interview with anatomical dolls, providing an

opportunity for the child to acquire scripted and stereotypical

knowledge about what might have occurred.

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

Our review of the literature indicates that children can indeed

be led to make false or inaccurate reports about very crucial,

personally experienced, central events.

. . . . 

Therefore, it is of the utmost importance to examine the

conditions prevalent at the time of a child's original report

about a criminal event in order to judge the suitability of

using that child as a witness in the court. It seems

particularly important to know the circumstances under which

the initial report of concern was made, how many times the

child was questioned, the hypotheses of the interviewers who

questioned the child, the kinds of questions the child was

asked, and the consistency of the child's report over a period

of time. If the child's disclosure was made in a

nonthreatening, nonsuggestible atmosphere, if the disclosure

was not made after repeated interviews, if the adults who had

access to the child prior to his or her testimony are not

motivated to distort the child's recollections through
-26-

relentless and potent suggestions and outright coaching, and if

the child's original report remains highly consistent over a

period of time, then the young child would be judged to be

capable of providing much that is forensically relevant. The

absence of any of these conditions would not in and of itself

invalidate a child's testimony, but it ought to raise cautions

in the mind of the court.

Id. at 432-33. 

Other psychological research and writing supports the Ceci- Bruck

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

caused by erroneous testimony of children who were separated from their

parents for months and repeatedly interrogated and noting "[s]ome studies

show that children are substantially more vulnerable to suggestion than

adults, and often unable to separate recollected fantasy (or suggestion)

from reality"); Lindsay & Johnson, Reality Monitoring and Suggestibility:

Children's Ability to Discriminate Among Memories From Different Sources,

in Children's Eyewitness Memory 92 (S. Ceci, M. Toglia, & D. Ross eds.

1987); Christiansen, The Testimony of Child Witnesses: Fact, Fantasy, and

the Influence of Pretrial Interviews, 62 Wash. L. Rev. 705, 708-711 (1987);

Debbie Nathan, Justice in Wenatchee, N.Y. Times, Dec. 19, 1995, at A19

(testimony of children increasingly being discredited in sex-abuse cases;

children who have not been abused sometimes re-enact purported sexual

trauma with anatomically detailed dolls or adopt fantasies complete with

visceral details when prompted; videotaped pretrial interviews in some

cases have helped prompt jurors to acquit defendants); Daniel Goleman,

Studies Reveal Suggestibility of Very Young as Witnesses, N. Y. Times, June

11, 1993, at A1. 

Indeed, the prosecutor's child abuse expert, Tascha Boychuk of the

Child's Advocacy Center, Phoenix, Arizona, who testified at a pretrial

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." 

The reality of children's susceptibility to suggestive interview

practices is well-established in the literature and the necessary analysis

is beyond the ken of a non-professional. The expert's foundation related 15

the coercive factors that can influence testimony. The defense provided

the court with an abundance of literature supporting the expert's

explanation 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

testifying about the ultimate issue of the children's credibility, he

should have been allowed to testify regarding the suggestibility of the

techniques employed in this case and whether they could have affected these

children's memories. 

We see no essential difference in this testimony, and in a qualified

expert opining that an abuse victim's symptoms are consistent with sexual

abuse syndrome, battered woman syndrome,
-28-

battered child syndrome and other recognized syndromes. See Estelle v.

McGuire, 502 U.S. 62, 70 (1991) (evidence of battered child syndrome

related to intent and its admission did not violate due process); United

States v. Norquay, 987 F.2d 475, 479 (8th Cir. 1993) (affirming admittance

of expert rape trauma syndrome evidence over defendant's objections that

this amounted to admission of others' opinions of victim's credibility

because witnesses were not allowed to state whether they believed the

victim had 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 woman

syndrome), cert. denied, 507 U.S. 943 (1993); United States v. Whitetail,

956 F.2d 857, 859 (8th Cir. 1992) (same); United States v. St. Pierre, 812

F.2d 417, 419-20 (8th Cir. 1987) (expert can inform jury of characteristics

found in sexually abused children and describe characteristics alleged

victim exhibits).

In United States v. Johns, 15 F.3d 740, 743 (8th Cir. 1994), we

rejected the defendant's argument that an expert impermissibly vouched for

a sexual abuse victim's credibility because implicit in the expert's

testimony was the opinion that the victim was telling the truth. We

concluded that an expert may inform the jury of the characteristics of

sexually abused children generally and may describe characteristics

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 describe

characteristics the alleged victim exhibits. We stated that expert

opinions are not inadmissible merely because they embrace the ultimate

issue to be decided by the trier of fact, but they cannot be phrased in

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 an

opinion on the similarities between a victim's claim and the evidence, and

the comparison of behavioral and testimonial patterns of a particular

victim with the behavioral patterns observed in victims in general, were

all admissible in certain circumstances." Bachman v. Leapley, 953 F.2d

440, 442 (8th Cir. 1992); see also United States v. Plenty Arrows, 946 F.2d

62 (8th Cir. 1989) (no abuse of discretion where district court allowed

health therapist to testify that victim's behavior consistent with that of

other sexually abused children); Arcoren v. United States, 929 F.2d 1235,

1239-41 (8th Cir. 1991) (expert testimony readily admissible where

psychologist testifies to mental aberrations in human behavior, when such

knowledge will help jury to understand relevant issues in case, including

helping jury to evaluate which of victim's conflicting statements were more

credible, and expert does not express her opinion as to which statements

were more credible or whether victim suffered from battered woman

syndrome), cert. denied, 502 U.S. 913 (1991). 

Here, Dr. Underwager was not testifying as to whether the children

were credible, but rather to whether they were subjected to suggestive

practices. The district court erred in excluding that important testimony.

In assessing the prejudice from the exclusion of this evidence, we

do so against the backdrop of other alleged errors depriving these

defendants of a fair trial.
-30-

B. OTHER ISSUES OF CONCERN

1. Rejected Medical Examination

Although the medical evidence was inconclusive and the examiners took

no pictures, the district court denied defendants' requests for further

medical examinations. This discretionary ruling is not error, but

highlights the importance of the children's testimony and the prejudice to

defendants caused by the court's refusal to admit Dr. Underwager's

testimony.

Soon after these children were removed from their homes, the

Department arranged for some of them to undergo a medical examination by

Dr. Richard Kaplan, a pediatrician at the Yankton Medical Clinic who

examines 500 to 600 children per month. Dr. Kaplan testified that the

vaginal redness and possible trauma he observed could be consistent with

abuse or any number of possible non-abuse causes; the conditions he

observed were basically nonspecific as to cause; he could not conduct a

thorough examination while the children were awake; and based on his

limited examination, he could not positively diagnose any of the children

as having been abused.

Thereafter, on February 11, 1994, his co-worker, Dr. Robert Ferrell,

had the children placed under anesthesia and examined them with a

colposcope. Although he had received some training in the sex abuse area

seven years earlier while he was a resident, Dr. Ferrell had no special

experience in sex abuse investigations. Dr. Ferrell had never testified

in a criminal case. He did not take photographs of his colposcopic

examinations, although the process would have been easy and helpful in this

case. 

Dr. Ferrell admitted that neovascularization (redness in the vaginal

areas), decreased anal tone, and hymenal tags can be common place

occurrences resulting from many different "everyday
-31-

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

indicated evidence of tearing and scarring of the anal mucosa but otherwise

a normal anus and vagina; that R.R. had apparent damage to the hymenal ring

consistent with vulvovaginal trauma, and possible anal trauma; that L.R.

revealed a fusion and evidence of anal trauma; that J.R. had

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 diagnosed

vaginal and vulva trauma. 

The defendants' pediatric expert, Dr. Robert Fay of Albany, New York,

testified he had prior training and experience with Native American

patients, sex abuse diagnosis and treatment, and that he had been

previously retained by both defense and prosecution in other cases. In

essence, Dr. Fay testified that the reported hymenal 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 offered by the prosecution--such

as redness, erythema, neovascularization, vaginal furrows and ridges, a

"gaping hymen," a "hymenal 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. Fay testified he felt Dr. Ferrell was not qualified based on

training or experience to perform a colposcopic examination of a child; his

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 literature in this area, see Jan Bays & David Chadwick, Medical

Diagnosis of the Sexually Abused Child, 17 Child Abuse & Neglect 91, 92,

95, 103 (1993), indicates that frequently findings on examination of

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 similar findings on children who most likely have not been

subject to sexual abuse. 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, including adults misinterpreting

normal masturbation or sexual play between children and a variety of other

dermatologic, congenital, traumatic and infectious conditions.16

Another leading article indicates

Even in our present state of knowledge, it is becoming

increasingly evident that, as a consequence of naturally

occurring physical changes, 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

constant reminder that the determination of sexual abuse can

rarely rely on a physical examination alone and that

consideration of all the components of the investigation--

especially the information obtained from the child--is

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 need not

have required more invasive procedures on these small children. But we

must observe that the medical testimony, while consistent with possible

sexual abuse, is inconclusive in light of other matters discussed herein.

In addition, some of that alleged trauma may have occurred from sexual

interplay and activity between and among the victims and other young

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 substantial

inter-child sexual activity by and between the children in question and

other children in Marty, South Dakota on the reservation. Particularly,

an eleven-year-old boy who lived in the Rouse home told investigators that

he and T.R. had sex for 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. This

evidence was not placed in front of the jury however. 

The children themselves provided a source of this information because

after weeks of interrogation 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 the

government's case against these defendants. 

Although defendants intimated that they would be presenting evidence

generally of inter-child sexual activity and accusations of sexual abuse

by non-defendant family members in several motions, 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 responded by then filing the 412

motion, claiming they had not
-34-

received some of the relevant evidence, including L.R.'s representations

that 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 the

motion for absence of timeliness.

While that ruling can be approved based on the record in this case,

the issue is troubling because that sort of evidence would have cast

additional light on whether the alleged medical evidence of sexual abuse

could be attributed to sources other than the charged defendants. This

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

victim to establish alternative explanation for why victim exhibited

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). Where

the government only gave the defendants the FBI report regarding the second

boy during the trial, the district court's refusal to allow the defendants

to present testimonial evidence kept important information, helpful to

defendants, from the jury.

The trial court might have granted the belated Rule 412 motion.

Nevertheless, we cannot say that the trial judge abused his discretion in

strictly following the language of the statute in requiring fifteen days

advance notice to present 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 children

stating that this examination would be crucial to the defense in

preparation of the case and observing: 

The children have been subjected to countless, unrecorded

interviews by social workers, FBI and tribal officers, the U.S.

Attorneys Office and others. There is simply no way of telling

what occurred at these interviews, the nature and form of the

questions, or whether or not some children who are now

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 asserted

"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 harassment by the accused or

the appointed psychologist." 

The movants further argued that social workers interrogated the

children several times; that the police and the FBI interrogated the

children several times; that the children were told to keep dream journals

by the foster care provider; that the children had been the recipients of

constant interrogation by the foster care provider; that the counselor had

interrogated the children on numerous occasions; that the prosecuting

attorney had interviewed the children several times; and that there had

been dozens of interrogations by various agencies involved. The movants

noted that at no time was the cry of trauma, embarrassment, invasion of

privacy and 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 discretion of the district court and

the district court denied the motion on the grounds that such examination

was unnecessary and intrusive, the record in this case amply indicates that

the defendants suffered substantial prejudice by the nature of the case

against them without the opportunity to indeed show that possible

falsification in testimony had occurred because of the nature of the

government's investigations. Given their lack of access to the children

and the amount of suggestive interviewing done to support the prosecution,

we believe the defendants were entitled to an independent psychological

examination.

This belief is strengthened by the failure to videotape or audiotape

any of the investigatory or counselling interviews. Electronic recording

of child witness interviews (particularly, the preliminary interviews) is

crucial to rule out the potential influences of coaching and interrogative

suggestion. Written summaries by the adult interviewers (be it Kelson,

Jordan or law enforcement agents) are no substitute for electronic

recordings of these interviews, particularly in legal proceedings:

Although one would excuse such missing data when the allegation

was first made to parents, one would hope that it would be

normal procedure for the police, social workers, and therapists

to have recorded all interviews with the children, if the

purpose of the interview could--even remotely--be considered

"forensic."

Ceci, supra, at p. 242. 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 taped

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 household

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 the

other children. Studies show that children will fantasize--telling

18

elaborate stories about an event that never happened or fabricating an

entire episode or sequence of events within a larger episode, particularly

over time on the basis of acquired interviewer stereotypes, or they may

produce convincing false narratives to explain fictitious events suggested

to them. See Ceci, supra, at 133-34, 218-222, 227; see also, Ceci & Bruck,

supra, at 407, 417 (boundaries of children's fantasy-reality distinctions

can be fragile; children's disclosures may become increasingly bizarre and

incredible, sometimes caused by interviewers not drawing children back to

reality when they made fantastic claims; and children may have trouble

distinguishing what they experienced through perception and what they only

imagined they experienced). Defendants had the right to have some of these

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 the

investigation had taken place.19
-38-

4. Prejudiced Juror

After the verdict in this trial, an allegation of juror misconduct

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 was allowed to serve on the jury of a case involving Native

Americans because she believed Pickard was prejudiced against them. The

district court held a number of hearings and heard testimony from a number

of witnesses. 

Everyone who testified (mostly co-workers from the preschool) except

Severson, unequivocally stated that Pickard is not racist and has not

demonstrated a bias against Native Americans, although the school is now

instituting workshops on racial sensitivity. Severson had a long-standing

animosity toward Pickard and some of her testimony was contradicted by

other witnesses. 

On the other hand, Severson testified that she had listened to

Pickard's racist statements for many years (including one to the effect

that adult males often have sex with young girls as part of the Native

American culture), and that she had engaged in arguments with Pickard over

the years on the subject of Pickard's racism and bias against Native

Americans. Severson testified Pickard told her that Pickard and two other

jurors in this case enjoyed making racial jokes about Indians. The

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 avoid

answering 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 her

bias and her equivocal answers to most of the
-39-

questions impeached her specific denial of bias. Pickard specifically

testified she heard and laughed at a comment (rather than joke) in the jury

room about an Indian (but she could not reveal more under Federal Rule of

Evidence 606(b)), and she 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 worker who

worked with abused children, told her that it is terrible to be born an

Indian baby girl; that she had repeated this remark to Severson and other

individuals; and that her intention was to repeat a statement of an

experienced social worker. 

Defendants argue the court's order denying the motions for a new

trial incorrectly narrowed the focus of the juror misconduct inquiry to

voir dire only and not into comments which took place in the jury room.

United States v. Heller, 785 F.2d 1524 (11th Cir. 1986) (overturning

conviction where jurors made anti-semitic jokes at trial and others reacted

to them with gales of laughter).

We do not quarrel with the credibility determination of the district

court rejecting serious charges against Pickard, but the evidence relating

to this issue erodes confidence in the result. We cannot ignore the

existence of racial prejudices in our society and as against Native

Americans in areas near reservations. Pickard's statements relating to

Native American racial jokes or comments raises a matter of grave concern.

Racial prejudice in the jury room cannot and will not be tolerated or

condoned. Here four Native Americans placed their liberties in the hands

of all whites: prosecutors, defense counsel, judge and jury. The law

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 of young children is a serious crime. Here, only five of

thirteen children brought forth tales of abuse and told their versions in

an atmosphere that could be coercive. These circumstances raise a serious

and a close question to the validity of the verdict. The trial court

barred crucial defense evidence relating to the practice of powerful and

coercive suggestibility relating to child witnesses. Such evidence

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 opinion

misrepresents the factual record, misstates the district court's procedural

and evidentiary rulings, and ignores the context of those rulings. The

majority accepts 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 separating appellate fact from fiction when the case is

retried. But I will explain the reasons why I believe this decision is

very wrong. 
-41-

I. Convincing Evidence of Guilt.

The majority takes many liberties with the trial record in attempting

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. The

government based its case on the testimony of two physicians, the four

oldest victims, another child who witnessed sexual abuse, and FBI Agent Van

Roe. A brief review of that evidence is needed to set the record straight.

A. The Basic Chronology. The South Dakota Department of Social

Services ("DSS") placed R.R. in Donna Jordan's foster home on November 9,

1993, because of neglect and malnutrition. In early January, Jordan

reported to DSS (as she was required to do) that R.R. said she had been

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

Ellen Kelson. After an initial interview, Kelson reported to DSS (as she

was required to do) that R.R. had reported acts of sexual abuse against

herself and other children in the Rouse home. On January 11, DSS removed

children living in the Rouse home and placed them 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 referred them to Kelson for

therapy. Kelson first saw the children in a group on January 22. The

majority frequently misstates or obfuscates these undisputed chronological

facts.

B. The Medical Evidence. After performing the initial medical

examinations on January 15, Dr. Kaplan reported to DSS his medical findings

and what the children had told him about sexual abuse. J.R. told Dr.

Kaplan, "Uncle Jess hurt me," pointing to her left labia; Dr. Kaplan found

a recent bruise or contusion consistent with that kind of abuse. L.R. had

"a fairly acute injury" on the right side of her labia majora which "really

hurt her." R.R. told Dr. Kaplan, "I have a bruise where my uncle put his

private spot,"
-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 much

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

On February 11, Dr. Robert Ferrell conducted a colposcopic

examination of the five victims. Dr. Ferrell found "very significant"

damage to R.R.'s hymenal ring and tearing in her anal area consistent with

anal intercourse. He noted a "whole constellation of findings" indicating

L.R. had been abused -- damage to her hymenal area, furrowing on either

side of her vagina, chronic irritation or trauma, and "clue cells" that are

"known to be sexually transmitted." To Dr. Ferrell, a scar on J.R.'s hymen

where a tear had healed was an "important finding," while T.R.'s "hymenal

ring was essentially gone," the entire area was irritated, and she had

furrows in her vagina. Infant F.R. had "tearing and scarring of the anal

mucosa." 

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

hymenal scarring on L.R., R.R., and J.R. "certainly . . . leads you to

think about sexual abuse," and that "a labial injury . . . is a very

significant finding" of abuse. In its rebuttal, the government called Dr.

Randall Alexander, a member of the Board of Governors of the National

Committee to Prevent Child Abuse. Dr. Alexander testified that it takes

considerable force to inflict labial injuries like those exhibited by three

of the victims. "It's rare to see one [in young girls] and to see three

of them show up is just . . . rareness to the third power." 

On this record, the majority dissembles when it repeatedly opines

that the government presented "inconclusive" medical evidence of sexual

abuse.

C. The Victims' Testimony. At trial, four victims testified that

defendants sexually abused them (the fifth victim, infant
-43-

F.R., was too young to testify). Their nine-year-old cousin testified that

three defendants shut him in the attic when he saw them abusing T.R. A few

observations about this testimony.

First, the victims' trial testimony was consistent with their "free

recall" -- the reports of abuse R.R. volunteered to Donna Jordan in early

January, and the four oldest victims made to Dr. Kaplan during his January

15 medical examinations. These unprogrammed reports preceded the FBI

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 conditions

prevalent at the time of a child's original report about a

criminal event . . . . If the child's disclosure was made in a

nonthreatening, nonsuggestible atmosphere, if the disclosure

was not made after repeated interviews, if the adults who had

access to the child prior to his or her testimony are not

motivated to distort the child's recollections through

relentless and potent suggestions and outright coaching, and if

the child's original report remains highly consistent over a

period of time, then the young child would be judged to be

capable of providing much that is forensically relevant.

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 from

free recall. 

Second, it 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 questions

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 child

witnesses to testify by closed circuit television. The district court

questioned each child in chambers, in the presence of defense counsel, one

prosecutor, the child's guardian ad litem, and a court reporter. See 18

U.S.C. § 3509(b)(1)(C). Five-year-old J.R. was unable to speak when called

to testify and stated in chambers that she was afraid to speak in front of

her uncles. 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. Nineyear-old T.R. became so fearful before testifying that "the guardian ad

litem would have had to physically pull her into the courtroom." The court

found that defendants' presence in the courtroom would prevent these three

children from testifying and permitted them to testify in chambers by

closed circuit television. Though I share the concerns expressed by

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 under

Maryland v. Craig, Hoversten v. Iowa, 998 F.2d 614 (8th Cir. 1993), and 18

U.S.C. § 3509(b). The majority apparently agrees. 

D. The FBI Interviews. After a hearing outside the jury's presence,

the district court permitted FBI Agent Van Roe to testify to what the three

oldest victims said during his January 19, 1994, interviews because those

hearsay statements were spontaneous and trustworthy. Though defendants

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 the

defense." But the district court did not exclude that evidence. When

22

Desmond Rouse's attorney asked if he could cross-examine Agent Van Roe

regarding the March interviews, the court responded that such questions

were beyond the scope of Van Roe's direct testimony and raised distinct

reliability questions. However, said the court, "If you want to do

something later, that is up to you. I'm not trying to tell you how to try

your case." Though Van Roe was recalled as a defense witness, he was not

questioned about the March interviews.

Finally, it is worth noting in surveying the evidence that the

government's rebuttal included testimony by another FBI agent that Jessie

Rouse and Desmond Rouse made damaging admissions when interviewed on

January 25, 1994.

E. The Majority's Riposte -- (1) Donna Jordan as the Grand

Inquisitor. Jordan was the victims' foster mother, a function she has

performed for over ninety children for seventeen years. She was not

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 uncles were at fault and she

got very specific about the 'bad' things their uncles were doing to them."

Supra, at p. 8. Let us see how Jordan described these supposedly sinister

conversations during her cross examination at trial:
-46-

Q You have gone to each one of the girls one by one and in

groups, and you have told them that their uncles have been

raping them?

A No. Never. No.

Q What specific bad things have you told the girls that the

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 Unless they come -- I mean things can happen at home.

Someone can come up and say something while you are fixing

supper or whatever you are doing, and start talking about

something. But, no, not deliberately talking about this. No.

I haven't. 

The majority's attempt to label Jordan as a forensic interviewer who

bombarded the victims with "a practice of suggestibility" in effect accuses

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 medical

examinations and FBI interviews, the children were referred by a

psychiatrist to Ms. Kelson for therapy. Because the children were Medicaid

patients, DSS was Kelson's client, and she was required to submit her

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 she

conducted no forensic interviews of the children, and the government did

not call her as a witness. 

Defendants did call Kelson at trial and questioned her for some 150

transcript pages in an unsuccessful effort to convince the jury that Kelson

had "implanted" the victims' memories, thereby contaminating their trial

testimony. The majority accepts this theory, calling Kelson primarily

responsible for the "practice of suggestibility." The majority encourages

defense counsel to call a victim's pretrial therapist, question about the

nature of the therapy, and then call a psychologist who will opine that the

therapist's counseling destroyed the credibility of the child's trial

testimony. This tactic if widely used would force the government to choose

between timely therapy for the child victim, and effective prosecution of

the child abuser. This is terrible public policy, contrary to

congressional mandates. District courts should block such injustice in

future cases by exercising their discretion to preclude defendants from

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 filed

Rule 412 motions to introduce evidence that one victim had been sexually

active. The district court denied the motions because the defense learned

about this evidence from an interview with a young boy almost three months

before trial. I conclude, and the majority apparently agrees, that the

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 Rule

412(c)(1)(A); United States v. Provost, 875 F.2d 172, 177-78 (8th Cir.),

cert. denied, 493 U.S. 859 (1989).

Defendants' 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 denied. After reviewing interview reports, the district court

expressed concern that this evidence "could wind up creating a mini trial

as to whether . . . this experimentation took place." But the court

refrained from ruling on whether this evidence of sexual activity would be

admissible if the government presented medical evidence of genital

injuries. That is the relevant inquiry. See Rule 412(b)(1); United States

v. Bear Stops, 997 F.2d 451, 454-56 (8th Cir. 1993); United States v. Eagle

Thunder, 893 F.2d 950, 954 (8th Cir. 1990). Though the government offered

such injury evidence, when defendants called the boy as a defense witness,

they did not question him regarding this alleged sexual activity. Thus,

the district court dealt with the merits of this issue correctly, and the

majority's suggestions 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 defense

strategy to destroy the credibility of the victims' trial testimony by

proving that this testimony was the product of "implanted" memories. The

exclusion of some of Dr. Underwager's proferred testimony provokes a

dissertation by the majority on Daubert and "soft science." Proper

24

review of this issue instead requires careful attention to its procedural

context.
-49-

Before Dr. Underwager testified, the district court held a hearing

to determine whether this expert would provide sufficiently reliable

scientific evidence that would assist the jury to understand or determine

a fact in issue. See Fed. R. Evid. 702; Daubert, 113 S. Ct. at 2796. When

the court asked what opinions Dr. Underwager proposed to express at trial,

defense counsel submitted a letter from Dr. Underwager stating: 

Based upon my review of the documents you have supplied,

including but not limited to, therapist notes, FBI reports, and

other documents, it is my opinion that the children in this

case have been subjected to massive and coercive social

influence by adults. . . . The level of adult influence is such

as to make it highly likely 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

"implanted" memory, and it reviewed some of the literature to which he

referred (including the Ceci and Bruck article extensively cited by the

majority). The court ruled: 

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

or not the [child] witness's testimony is believable or not, or

telling the truth or not. . . . [T]here may be other areas that

Dr. Underwager may be proffered to testify on, and those will

have to be, or may be anyway, the subject of an offer of proof

when we get to that point.

The majority concedes, as it must, that this preliminary ruling was

correct. Assessing the reliability or credibility of a victim's

accusations is the exclusive function of the jury; it is not a proper

subject of expert testimony. See Westcott v. Crinklaw, 68 F.3d 1073, 1076

(8th Cir. 1995); United States v. Witted, 11 F.3d 782, 785-86 (8th Cir.

1993); United States v. Azure, 801 F.2d 336, 339-40 (8th Cir. 1986). Dr.

Underwager's
-50-

attempts to express such opinions in other child abuse cases have been

consistently rejected. See State v. Swan, 790 P.2d 610, 632 (Wash. 1990)

(en banc), cert. denied, 498 U.S. 1046 (1991); State v. Erickson, 454

N.W.2d 624, 627-29 (Minn. App. 1990).

The district court also made a second preliminary ruling. Because

this 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 writings of other psychologists,

the court concluded:

there is not anywhere near yet the agreement in the

[scientific] community as to methods, techniques, testings or

reliability that would warrant the admissibility before a jury

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

issues, a possible misleading of the jury . . . . So, for

these reasons, under Daubert, I'm not going to allow evidence

with regard to the different . . . psychological methods of

evaluating the reliability of witnesses.

The majority does not question this exercise of the court's discretion,

perhaps because the Ceci and Bruck article is itself a compendium of

conflicting theories and opinions on this subject 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.

With that procedural background, I will summarize Dr. Underwager's

trial testimony for the defense, organizing that testimony into the

categories of "suggestibility" evidence that the majority claims were

totally excluded (supra, at pp. 20-27): 

1. Asking children leading questions at trial. After opining

that open questions produce more reliable information, Dr. Underwager

asserted, "an adult who has a bias, a preconceived assumption, tends

very quickly to go to leading questions, go to coercive questioning

in order to get what they think that they need or want." The

district court then
-51-

sustained an objection to a later question, "What would be your

comment in regard to the form of the questions [asked of the

children at trial]?"

2. A child will 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 that

there's been abuse, that's what you get, that's what you

produce from the child."

3. Repetitive questioning can change a child's answers.

"[T]he repeating of questions is one of the most powerful ways

that adults influence children to produce the answers the adult

wants. Parents know this."

4. Younger children are more susceptible to

suggestibility than 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

reliable evidence of sex abuse. "Play therapy has no therapeutic

value whatsoever. In fact, the research evidence suggests that it's

harmful. . . . [Play therapy is] all Freudian stuff, and there's no

scientific support whatsoever for those concepts." Dr. Underwager

was then asked about research "into the effects of play therapy where

the allegations of sexual abuse may not be true," an objection was

sustained, and defense counsel dropped the issue. 

6. Children lie when motivated to lie. "[V]ery frequently the

adult will give some kind of promised reward . . . to shape the

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" amoung a group of children will produce

inaccurate memories. "When children talk to each other, they have

an effect on each other, and they can communicate . . . stories that

are picked up on." "[Y]ou can produce changes, and accounts shift

and move and all kinds of things happen." 

8. On the general subject of implanted memory. "[M]emories are

now shown to 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 summary conclusively demonstrates that every category of

"suggestibility" evidence identified by the majority was the subject of an

opinion expressed by Dr. Underwager to the jury. That should be the end

of the matter on appeal. The jury learned how the child victims were

medically examined, interviewed, and counseled before trial. It saw and

heard the children testify. And it heard Dr. Underwager's opinions as to

factors that might influence the reliability of that testimony. The

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 in fact heard, the majority places

the cart before the horse by starting with the offer of proof made by

defense counsel at the conclusion of the above-summarized testimony. That

offer was made because the district court precluded Dr. Underwager from

commenting on the form of the questions asked the child witnesses at

trial. 

26
-53-

The majority states that the crucial question and answer in the offer

of proof was, "is it your belief that there's been a practice of

suggestibility employed," and Dr. Underwager's cryptic answer, "Yes, sir."

Supra, at p. 13. I disagree. What was "crucial" to the district court was

the very next question, "could you explain to the Court how you observed

that," and Dr. Underwager's three-page narrative answer. In that answer,

Dr. Underwager opined (i) that therapist Kelson had exerted "massive social

influence" on the victims; (ii) that Kelson engaged in "highly suggestive

and highly contaminating" practices; (iii) that the prosecutor used leading

questions at trial and the children "were comfortable doing the yes/no

bit," showing "they'd learned" to answer yes; (iv) that Van Roe's use of

diagrams was "very suggestive and very leading"; (v) that the children

"were kidnapped . . . taken from their families, taken to this strange

place where all of the people are concerned that they talk about sex

abuse"; and (vi) that the "total environment [was] one of the most powerful

and coercive influences upon children that I've seen."

That was totally improper "expert" testimony. If Dr. Underwager may

not opine that the children's trial testimony was not credible, as we have

often ruled, then the district court properly precluded him from indirectly

stating that same opinion. For example, if Dr. Underwager has expressed

the opinion that leading questions produce testimony that is not credible,

then his opinion that the prosecution asked leading 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 court -- any court -- that will allow him to opine that

particular child witnesses have not told the truth. Those opinions have

been rejected by every court which has considered them, they were rejected

by the district 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.

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The district court properly "circumscribed [Dr. Underwager's

testimony] so as to educate rather than to usurp the role of the jury."

United States v. Johns, 15 F.3d 740, 743 (8th Cir. 1994). I have no doubt

that if defendants had asked Dr. Underwager to describe a "pattern of

suggestibility," without opining whether one occurred in this case, the

district court would have allowed that addition to the opinions he did

express to the jury. In other words, the majority's stated reason for

reversal is a contrivance, apparently born of a desire to publish a lecture

on Daubert and a distaste 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 majority

criticizes DSS's efforts to isolate the young victims and holds that the 27

district court abused its discretion in denying defendants' motions to

subject the victims to adversarial psychological examinations by Dr.

Underwager. I disagree. 

Defendants and Dr. Underwager had available to them the reports of

the victims' medical examinations, Agent Van Roe's interview reports, and

therapist Kelson's extensive notes of her sessions 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. 

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children had been sexually abused. He observed the trial testimony of the

victims and therapist Kelson, assisted defendants at trial, testified

regarding the effects of child interview techniques, and was prepared to

express opinions on the suggestibility of the investigative and therapeutic

practices employed. In these circumstances, defendants' motions for

further psychological examinations were properly denied. See United States

v. Spotted War Bonnet, 882 F.2d 1360, 1362 (8th Cir. 1989)(subsequent

history omitted) (interview properly denied because defense expert reviewed

other interview records and was present when victim testified). 

In denying these motions, the district court properly considered the

victims' interests, requiring defendants to show good cause for this

"additional intrusion into the alleged victims already troubled lives."

An adult witness may simply refuse to undergo adversarial medical or

psychological examinations. See United States v. Bittner, 728 F.2d 1038,

1041 (8th Cir. 1984). With children in protective custody, the issue is

more complex because they are not able to make such decisions for

themselves. The trial 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 court should heed a custodial

agency's opinion that an investigative or adversarial examination is

unnecessary or unwise. 

28

Here, the children's guardian opposed further psychological

examinations, particularly by adversarial experts, and defendants
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did not show need for the requested examinations. On this record, the

majority's decision that the district court nonetheless abused its

discretion in declining to order the examinations raises a barrier to the

prosecution of these kinds of crime by maximizing the trauma that victims

must routinely endure. Congress has repeatedly legislated the opposite

public policy, for example, in enacting Rules 412, 413, and 414 of the

Federal Rules of Evidence. This aspect of the majority's decision is, in

a word, lawless. 

IV. Conclusion.

I have carefully reviewed defendants' other contentions on appeal and

conclude that each is without merit. One -- the allegedly biased juror --

is mentioned by majority in yet another gratuitous slap at the way the

district court conducted this trial. In fact, after a thorough evidentiary

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 found

that juror Pickard had not concealed "any racially prejudiced attitudes,

beliefs, or opinions" and that "no improper outside influence affected the

jury." These findings 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, 556

(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 that

defendants did not "receive a fair trial without the impact of racial bias"

is outrageous. 

This was a difficult case to try. The record reflects that the

district court dealt carefully, fairly, and impartially with the many

issues that arose before, during, and after the trial, and that the jury

deliberated carefully in convicting defendants on some counts and

acquitting them on many others. The majority now 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 most

particularly, of an exceedingly competent and fair United States District

Judge -- that I cannot abide. I would affirm the judgments of the district

court. 

A true copy.

Attest:

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