STATE OF MAINE DISTRICT COURT
2 CUMBERLAND, ss. NINTH DISTRICT
ry Civil Action DIVISION OF SOUTHERN CUMBERLAND
Docket No. POR-PA-09-1142
Lori Handrahan o/b/o Mila Malenko
versus
Igor Malenko
VOLUME I
BEFORE:
The Honorable Jeffrey Moscowitz, Judge of the
District Court, at the Ninth District Court,
Portland, Maine, on Tuesday, October 6, ‘2009.
APPEARANCES:
William 8. Harwood, Esq.
For the Plaintiff
Michael J. Waxman, Esq.
For the DefendantINDEX OF WITNESSES
WITNESSES DIRECT CROSS REDIRECT RECROSS
Lawrence Ricci 31 74 - -
INDEX OF EXHIBITS
EXHIBITS MARKED OFFERED ADMITTED
Plt's #1(evaluation) 53 66 7410
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(This matter came for hearing before The Honorable
Jeffrey Moscowitz, Judge of the District Court, at the
Ninth District Court, located at Portland, Maine, on
Tuesday, October 6, 2009.)
WILLIAM S. HARWOOD, ESQ.: Yes. And Joyce
Wientzen.
COURT: And Ms. Wientzen. Before we begin, as a
preliminary matter, there are--were motions filed late
yesterday that I've received from Mr. Harwood, and Mr.
Waxman filed a motion on the 2", which was received
yesterday, as well, apparently, by our court. And, so,
we ought to deal with those before we start. Mr.
Waxman, I take it you've seen copies of the motions,
the three motions and the memo that were filed by Mr.
Harwood?
MICHAEL J. WAXMAN, ESQ.: I got those about four
o'clock yesterday. Yes.
COURT: Okay
MR. WAXMAN:
Your Honor, may I ask, before we
begin this substantive discussion, that the witnesses
be sequestered?
COURT: Yes, you may. And that will be granted.
MR. HARWOOD: Wait, your Honor. Is that necessary
under these circumstances? These are expert opinion--
expert witnesses. It's hard to imagine they're going10
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to be influenced by hearing testimony.
it is hard to
COURT: That's true. It's hard.
imagine that, given the--I should put on the record I
have a--I--this--I have no trouble hearing this case,
given who I understand the witnesses may be. But, I
should put on the record that I have an enormous amount
of respect for Dr. Ricci, who I have worked with in the
past in my previous job. And I ought to state that on
the record just so that it's on the record. I have no
trouble acting impartially in this case, but I just
wanted to set that on the record. I agree that it's
unlikely that any expert witnesses listening to the
arguments of counsel with respect to these preliminary
motions--that the expert witnesses will be affected by
that. I agree with that. However, I am going to grant
the motion to sequester.
(PAUSE)
COURT: Now, with respect to Mr. Harwood's motions
that were filed late yesterday--and let's take them--
the motion to allow testimony by telephone of Dr.
Joyanna Silberg [sic]. Mr. Waxman, your position on
that? Any--well, actually, Mr. Harwood, is there
anything you would like to add further on that--on
the--that's otherwise not in your motion?
MR. HARWOOD: No. I think it covers it. It's as10
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a result of the discussions with you on Friday. We
reached out to her as a national expert.
Unfortunately, under the short notice, she was not able
to bee in Portland this morning, but she has rearranged
her schedule to be available to testify by phone. I
think she would help the Court--assist the Court in
understanding the techniques of forensic interviewing
in determining sexual abuse, and give the Court further
amplification on what is customary as standards within
the--that profession.
COURT: Mr. Waxman?
MR. WAXMAN: Thank you, your Honor. Well, I'm
going to try to brief and address the actual motion on
the table. I object to any kind of telephonic
testimony for the same reasons that I objected to the
telephonic testimony in the divorce trial itself. The
witness! demeanor cannot be assessed. I can't--I
can't, when questioning, understand how she's reacting
to a question. It's difficult to examine the witness
with exhibits. I do not like taking telephonic
depositions or testimony, and, therefore, I object on
those grounds. If we get beyond the motion to take
telephonic testimony, I will be happy to speak to
whether or not I object to this witness testifying at
all. But, I don't think that's on the table right10
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now.
COURT: Okay. I will not accept any testimony
from any witness by telephone unless it's a
circumstances where--an extraordinary circumstance,
which this is not. There are lots of reasons why I
have great difficulty accepting testimony from
witnesses on the telephone, ranging from the obvious to
the not so obvious. First of all, we don't know
whether the witness is with anyone at the time they're
testifying, so that someone else might be assisting
them in their testimony. We don't know whether the
witness is referring to documents that they otherwise
would be unable to refer to, or improperly refer to.
We don't know--I don't know--I have no way of adjudging
the demeanor of the witness, which is very important
for a fact finder to do. So, for those reasons, among
others, I am extremely reluctant to take any testimony
of any fact witness on the telephone, and I decline to
do so in this case. So, the motion is denied for those
reasons. Now, as to Mr. Harwood's motion in limine to
exclude evidente from the Department of Health and
Human Services regarding their conclusions, Mr.
Harwood, is there anything you'd like to add beyond
what's in your motion?
MR. HARWOOD: No. I think that covers it, your10
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Honor. I think it is pretty straightforward that if
one doesn't know whether sexual abuse occurred, that is
legally irrelevant in the sense that it does not help
the fact finder to determine whether it is more or less
probable that abuse occurred. And, although I haven't
taken any depositions, so I'ma little disadvantaged to
know exactly what the Department's people would say.
What we've seen is a letter simply saying
unsubstantiated. And I think the case that we cited
from Ohio is right on point, which says that when a
government official is investigating conduct and
determines that it's unsubstantiated, and declines to
take any further action on behalf of the government and
the people, that is not admissible in a civil case
where that same conduct is attempting to be proved. It
is not admissible for the proposition that the conduct
didn't occur.
COURT: All right. Thank you. Mr. Waxman?
MR. WAXMAN: I'm not sure we can get to this, but
I think the objection of relevancy grounds is not well
founded. I think it's certainly relevant. I think it
tends to make one or more of the facts at issue more
determinable, more probative. I think it is relevant.
I think it's an incorrect objection, so, I object to
the objection.10
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COURT: Well, I guess my question is how is it
relevant that someone else has a certain opinion about
the ultimate issue? How is it relevant to me, to my
determination? In other words, I liken this to a
circumstance where there--it's a criminal charge. And
the prosecutor, in trial, attempts to ask the police
officer, "Well, do you believe that this occurred?"
Well, that's irrelevant, completely irrelevant. It
doesn't help the jury at all. And I'm wondering how--
perhaps I--perhaps I'm being too simplified in my
thinking, here, but--too simplistic in my thinking, but
is that--is that--isn't that kind of analogous?
MR. WAXMAN: I agree, to some extent, although I
think what you would hear if this woman testifies--this
caseworker testifies, you would hear about the
procedure through which this case was investigated, a
number of interviews, which number in excess of twenty
that were conducted. We'd hear about the types of
people they talked to, day care workers, child care
workers, people that have had contact with the child
who did not notice any behavioral changes, that kind of
thing. So, you'd learn the scope of the investigation,
of which the Spurwink forensic interview was only one
small part. And just the fact of that--the scope of
that interview process, and that fact-gathering10
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process might be relevant, irrespective of whether or
not you took into evidence the fact that the conclusion
was unsubstantiated.
courT: But, that still takes into--that still
takes into consideration hearsay information, doesn't
it, because if the witness is saying, "Well, we found
that this is unsubstantiated, and that's based upon our
discussions with twenty witnesses, some of whom were
child care workers who didn't notice--who say they
didn't notice any unusual behavior," that's hearsay
information that's really not admissible, isn't it?
MR. WAXMAN: I agree with you, That's why I sort
of--
COURT: Okay.
MR. WAXMAN: --I think the proper objection is
probably hearsay. I don't think relevance is the right
objection, but I do agree with you that the foundation
for any opinion testimony she would give, or any
testimony she would give, would be essentially hearsay.
COURT: All right.
MR. WAXMAN: But, I will--one caveat. This
particular caseworker did observe several visitations
between the defendant and the child, and, so, could
testify about observations she personally made. That's
irrespective of the conclusion of unsubstantiated.10
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COURT: Okay. Then the motion is going to--the
motion to--in limine to exclude evidence from the
Department of Health and Human Services! witness is
granted, with the caveat that Mr. Waxman just
described. I agree with him. If this wit--if the
witness is called to testify about personal
observations, that's a different story altogether. And
that may well be admissible. But--
(PAUSE)
couRT: --all right. That brings us to a motion
in limine to exclude Dr. Kabakoff's testimony.
Anything that you'd like to add beyond what's in your
motion in limine, Mr. Harwood?
MR. HARWOOD: No. I think that covers it.
COURT: Okay. Mr. Waxman?
MR, WAXMAN: Your Honor, I think it's premature to
address that right now. We're only going to ask to
seek the admission of her deposition testimony if the
plaintiff clears the hurdle of showing this Court that
abuse has been committed.
coURT: Okay.
MR. WAXMAN: So, I don't know that that needs to
be reached right now.
couRT: All right. We'll take that motion into
consideration at a later time. We'll hold that in
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abeyance for now.
MR. HARWOOD: Just for the record, if we're going
to try and introduce it by deposition, I have a further
objection--by deposition transcript.
COURT: Well, we can get to that if and when we
get there. Now, that brings us to probably the more
meaty and weighty issues with respect to the motion in
limine that Mr. Waxman filed, which we also talked
about the last time we were here, regarding the
proposed testimony of Dr. Ricci and Ms. Wientzen. And,
actually, was there a third witness, as well?
MR. HARWOOD: There was, your Honor.
COURT: Ms. Campbell?
MR. HARWOOD: Ms. Campbell. She is not available
this morning, and I am not asking for any additional
accommodation for her unavailability.
courT: All right.
MR. HARWOOD: We are prepared to go ahead with Dr.
Ricci and Ms. Wientzen.
COURT: Is Ms. Wientzen a doc--a Ph.D.?
MR. HARHOOD: No. She's a licensed certified
social worker.
COURT: Okay. So, the--we discussed this in the
last hearing. Counsel have both filed memoranda
xegarding--and motions regarding the issue. I have
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read--I read State versus Black, State versus York,
State versus Parks, State versus Stanton and Cook
versus Naylor [sic]. And I have also read Field and
Murray with respect to Rule 702 and 804-3--803-4, and,
so, at this stage of the proceedings, I think it's
incumbent upon Mr. Harwood to--and I--he may have been
under the gun the last time we were here, and not in a
position or actually prepared to offer a detailed offer
of proof of what each of his two witnesses, Dr. Ricci
and Ms. Wientzen, are going to say, and how that's
admissible. But, it's incumbent upon Mr. Harwood at
this stage of the proceedings to, on the record, very--
in a very detailed way, express what he believes Dr.
Ricci and Ms. Wientzen will say regarding the evidence
that they--that Mr, Harwood proposes to offer. And
keeping in mind that the holding of the Law Court in
State versus Black, State versus York and Cook versus
Naylor, which I don't think necessarily modify State
versus Black in any way, but it simply points out--my
reading of Cook versus Naylor is the three witnesses
that were discussed in that decision, one of them was a
rebuttal witness, one of them was Dr. Ricci, who is the
witness that's proffered today, and Dr. Ricci--it's
unclear from the wording of the opinion in Cook versus
Naylor, because the Law Court didn't specifically state
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what Dr. Ricci testified about, but it seems to me that
the testimony offered by Dr. Ricci in that case had to
do with some physical--perhaps physical findings. And
that's clearly admissible, and--but, it doesn't
indicate that Dr. Ricci was talking about the
believability of the child witness. It says, in Cool
versus Naylor, "Dr. Ricci testified on the basis of his
physical examination of the child, his medical
training, his continued involvement in research, and
his continuing education in this field among his
peers." So, those are all the qualifications that he
has. “These, combined with the physically factual
nature of his examination--"--which implies that there
were physical features that he found in this child in
this case, "--and the conclusions factually drawn from
the evidence produced by the examination created more
than adequate foundation for his testimony." I read
that as being that Dr. Ricci found physical
manifestations of abuse on the child in this case,
which is clearly admissible, and was able to compare
his physical findings with the description of the
alleged abuse, which he's clearly qualified to do,
based upon his very clear expertise in the area. So,
that's distinguishable from Black. It's eminently
distinguishable from Black. And, so, that's the way I
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read Cook versus Naylor. Dr. Kerr [sic] was the
rebuttal witness in Cook versus Naylor, and he
testified about--he--in rebuttal about the child's
inconsistencies in behavior, because the opposing side
had called into question those behaviors as
demonstrating the child was being untruthful. and Dr.
Kerr properly was permitted to testify in rebuttal to
explain how those are not indicative, necessarily, of a
child who's lying. And that's also well established in
our law. And, finally, Andrea Gable Richards was the
third witness, who testified about a doc--a medical--a
actual diagnosis that she made in a proper way, because
she was qualified to make a diagnosis of PTSD. And
that's obviously admissible in evidence as well. So,
that's distinguishable from what Black says, which is
that, unless there's an adequate scientific foundation
or adequate reliability under Williams, an expert
witness ought not be able to be a human lie detector.
That's essentially what Black and York said. And, so,
unless there's adequate scientific foundation or
adequate reliability to establish what they're going to
say, to--that underlie what they're going to say--
excuse me--then, our law provides that their testimony
wouldn't be admissible. So, I'm interested
specifically, Mr. Harwood, having that long-winded
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background laid out, I'm very, very interested in
specifically what you proffer their testimony will be.
MR. HARWOOD: Thank you, your Honor. I think
you've teed up the issue correctly, but, I--perhaps
you're reading Cook versus Naylor a little more
narrowly--and I will make my offer of proof again.
But, I think what Cook verus Naylor said is that hard
and fast rules in this area are generally not a good
idea, and not the law, and that you should consider, as
a preliminary matter, their testimony on scientific or
adequate reliability. It is something, I think, that
is evolving and is changing, and these professionals
are constantly being trained and educated, going to
conferences, writing articles and whatnot, to look at
the most effective techniques for determining whether
sexual abuse of a minor has occurred. And, so, I think
hard and fast rules that say, in these cases, you
can't--and they can never testify, and in these cases,
you can always testify. And that's what I get out of
Cook versus Naylor. Now, getting to the point, Dr.
Ricci will testify that he followed the same--he will
testify that they did the full analysis and the full
evaluation that they do in all of these cases. This
was not unusual, what they did. They followed the
protocols and standards of their profession, which they
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will testify have been well established and well
accepted, and are reliable for making these kinds of
determinations. They did a medical examination. They
considered all of that information. They did an
investigation of the child's behavior to see if there
were indications there, and they interviewed dozens of
witnesses. And I'll get more specifically [sic] in a
minute as to what that entailed to determine the
surrounding circumstances. Now, it is true, in this
case, the most compelling information that they relied
on was the statements of the victim, and the clarity,
the spontaneity, the consistency, and the circumstances
surrounding those statements. And I understand that--
why that is causing you some concern, because we have a
doctrine of law that one witness is not supposed to be
talking about the credibility of another witness. But
I think this is distinguishable. This is an exception
to that rule for the simple reason that these people,
and Joyce Wientzen in particular, have been well
trained in how to do a forensic interview of a minor
child. This is not simply saying--one witness saying,
"I believe Witness X or Y is generally truthful. I
This
believe what they're saying today is truthful
is a--something that is done within their offices
pursuant to various protocols as to how it is set up,
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who's there, what the questions are. There are many
things--they obviously don't want to ask leading
questions or suggestive questions. There is--when you
can't finish the interview, or take a break in the
interview, when you re-interview the child, all of
these things are heavily influenced by the standards of
their profession. And that's what makes it an
exception to the State versus Black. It is not simply
one expert coming in and saying, "The child told me she
was sexually abused, and I believe her. So, therefore,
it's my professional opinion there's sexual abuse."
They have specific training. Now, what you will hear
specifically, first from Dr. Ricci, is that he did a
extensive medical evaluation of the child. He
considered the evidence of the medical evaluation. In
and of itself was not conclusive, but he considered it.
He will tell you that there were interviews conducted
with the mother and Polly Campbell in the AG's office.
And he will testify that, based on all of that and what
the other members of the team did, that he is satisfied
that sexual abuse occurred. He will testify
specifically that he has an opinion based on all of the
research that he has done, that sexual abuse occurred.
And he will testify that he has an opinion that, based
on that finding, any future contact between the
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defendant and the child should be under supervision.
Miss Wientzen is--perhaps goes right to the heart of
the matter. And she will testify to her extensive
interviews and review of documents. She interviewed
various doctors and ‘experts, including Lesley Devoe and
Jackie Campbell, and information from Allie Norton,
including the family assessment from many of the
documents from the earlier divorce, including Carolyn
Kabakoff. She will also testify that her particular
expertise and role in the team is as the forensic
interviewer. And she will go through in great detail
how she conducted the interview, what the circumstances
were, how that interview--how the child responded to
the interview, and report on a number of occasions
where the child said, "Papa poked me in the ‘gina," and
comments to that effect that weren't just once or
twice. She didn't--she--some cases, other people heard
this. She will testify to her discussions with Polly
Campbell and the child's mother about this. She also
interviewed the child's father. And she concluded,
based on her training and expertise, that the
specificity of the statement was compelling, and she
was able to dismiss, then--dismiss the allegation that
they were merely the result of suggestion. You get to
a point in these cases in which you have to rely, to
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some extent, on the statements of the child, and on the
interview. And in this case, I will concede there is
primary or heavy reliance on the statements of the
victim, but, in the end, that is the state of the
scientific--that is the state of their profession. and
they will testify that they routinely rely on victims’
statements as part of their overall evaluation.
COURT: It seems to me that--and does that
conclude your proffer?
MR. HARWOOD: Yes, it does, your Honor.
COURT: Well, it seems to me that much of what you
say isn't really helpful under Rule 702, because what
you're talking about is an expert witness commenting on
what other folks have told them, and making an
evaluation of what they have told them, a myriad of
witnesses that you have discussed, probably more than
you discussed, but a myriad of wit--other witnesses.
And unless there's some scientific basis for that
particular--well, for their reliance on those
witnesses, and their--if--unless there's some valid
reliable scientific reason for any extraordinary weight
to be given to these witnesses, I don't see how it even
helps the finder of fact in a way that an expert is
allowed to testify under 702. An expert's allowed to
testify if it has some specialized knowledge in an area
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that assists the finder of fact, as you know. What
you've described to me is these witnesses evaluating
what other witnesses are telling them, and either
accepting it or rejecting it, as they see fit, and
fitting it into the evaluation. Now, unless there is
some new scientific evidence or some new reliability
that can be attached to those kinds of analyses, then,
that's not admissible under Rule 702. Now, it struck
me, in your proffer, that we may be splitting--we may
be missing each other's ships. We may be passing in
the night, because to the extent that a witness like
Dr. Ricci or Ms. Wientzen testifies about forensic
interview of children, that's a legitimate area for
them to talk about, because it's well established over
the years of litigation in this kind of area that there
are clearly improper ways to interview children with
respect to allegations of sexual abuse. There are very
suggestive ways that really poison interviews with
children. And it's an area where the criminal defense
bar has really exploited--rightly so, in a lot of these
cases where the police, for example, conduct an
interview of a child who has disclosed alleged sexual
abuse, and the interview is just poisoned because the
police have made suggestions and led the child in an
improper way. And, so, the interview then becomes
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really suspect. So, that's a clear area where Dr.
Ricci and Ms. Wientzen would be able to testify.
They'd be able to testify about those techniques,
because those are well accepted. So, to that extent,
they clearly are allowed to testify. But, to the
extent that you've just suggested, that they ought to
be allowed to testify that they accepted this
person's--this witness! statement to them as true, they
rejected this witness' statement to them as false, for
whatever reason, that doesn't really--that's not a Rule
702 area. That's--that's--I can make those
determinations when witnesses testify. That's my job
as a finder of fact, not an expert witness' job,
because that's not specialized knowledge that has a
scientific reliability attached to it that helps me.
Unless you could tell--unless you can--and I'm asking
you specifically--this is your opportunity to
specifically tell me what reliable scientific--how the
science--how reliable science enters into Dr. Ricci or
Ms. Wientzen's analysis of other witnesses' statements
to them, how that helps--how that allows them to offer
me expert testimony about the other statements of
witnesses in a way that's helpful to me as the finder
of fact.
MR. HARHOOD: Thank you, your Honor. And that-
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COURT: I'm sorry for my--I'm not being very
clear.
MR. HARWOOD: --no. I think I'm following your--
and forgive me. As a--you know, I'm a corporate
lawyer, doing pro bono work. And if I'm not as clear
as I should be, I--
COURT: No, You're doing fine.
MR. HARWOOD:
COURT: --but I just was hoping you could give me
some--
MR. HARWOOD: --I think--I think where I led you
astray was talking about the other people they
interviewed. What I was trying to suggest to you, that
this--these victim's statements were part of a larger
investigation. I'm not going to--they're not going to
testify as to which people they believed and
disbelieved. What they are going to testify is that
the forensic interviewing they were done [sic], in
light of the circumstances, once they understood the
total circumstances, is reliable. And they will
testify that, based on their professional training and
experience, and within their profession, there is a
body of knowledge and literature which says that
forensic interviewing is a reliable technique, if done
correct ly--
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COURT: Okay.
MR. HARWOOD: --to determine sexual abuse. And if
that's--
COURT: Well--
MR. HARWOOD: --the limit of the testimony, I
think we're not far off.
couRT: --all right. Well, T guess we'll have to
hear what they say about the extent of the--of--of how
far they can go with--when referring to the forensic
interviewing techniques, because--but--all right--but I
understand where you're going. All right. It may well
be--well, I guess we'll have to see what will happen
when we get there. Mr. Waxman, any comment that you'd
ike to make with respect to the--the--just the
comments that Mr. Harwood just made, kind of narrowing
the issue?
MR. WAXMAN: Yes. dust briefly, your Honor, I'm
a little unclear. It sounds as if he's going to
proffer these experts to say that--not specifically to
talk about the other interviews they did, but that's
certainly, as he just said, part of the background that
leads them to conclude, based on the disclosure, that
abuse took place. I think there was--all those
interviews clearly are hearsay, and for the same
reasons that Beth Fawcett [sic] from DHHS couldn't
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testify to the interviews she conducted. These
interviews are clearly inadmissible, as well.
COURT: No. But, he--ostensibly, he'd be allowed
to ask the question, "Did you interview so and so?
and
Yes or no? Did you interview so and so? Ye
leave it at that.
MR. WAXMAN: Okay.
COURT: That is--would you agree with that?
MR. WAXMAN: Yes. I suppose he could do that.
COURT: Okay.
MR. WAXMAN: But if it's then going to be used a
way to bootstrap, "Well, the opinion that I reached is,
in part, based on the interviews I conducted," I think
that's not permissible. But with regard to--I think
you've put your finger on it regarding the lack of
scientific evidence supporting the reliability of the
opinions he seeks to proffer. And I was just looking
through York, and I'd just remind this Court of what it
said. And I don't have any doubt that Dr. Ricci, by
the way, is well qualified. And I'm not expressing any
doubt right now as to whether Ms. Wientzen is well
qualified in her field to do what she does. But, the
Court said, in York, "We do not base our decision on
the qualifications of the witness. They are not
challenged. We have consistently interpreted Rule 702,
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however, to require more than a qualified witness. The
ible,
rule requires that expert testimony, to be admi
must assist the trier of fact, and that, in turn,
requires a demonstration of sufficient reliability."
Now, we can voir dire Ms. Wientzen if we like. I was
at her presentation last week, however, and the state
of the evidence is that the science says that the
younger the child, the more suggestible she is or he is
as a witness. That is the state of the evidence. This
is a child who was two years and seven months when the
interviews were conducted, and I will--I will eat my
hat if any--either witness comes into this courtroom
and tells you that there is new evidence that a two
year old, seven month child's statements are, in fact,
scientifically reliable and credible. There is no such
evidence. I'd be happy to voir dire the witness to
the--to establish that point.
CouRT: All right. It--but it seems to me that
I--it's been helpful--this colloquy has had--has been
helpful, because I think it does narrow the issue
substantially. and, really, we're talking about an
expertise in forensic interviewing, as opposed to some
other scientific expertise in analy--you know, making
assessments of truth of people that they talk to.
MR. WAXMAN: Well, if I may, your Honor? To the
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extent that these witnesses are offered to talk about
the correct technique to interview a child, I don't see
the relevance.
COURT: Well, here's how it might be relevant.
It's relevant because--and--and I don't know that the
witness would be properly allowed to say, "Based upon
well recognized forensic interviewing techniques, we
conducted the interview with Mila that way. And
because of--because we conducted the interview with
Mila that way, she's telling the truth." I think what
they'd properly be able to say is, "We conducted an
interview with Mila, based upon well recognized
forensic questioning techniques of children. And this
is what she said," and that essentially might foreclose
an opposing party from saying, “Well, you suggested
thus and so to Mila," because they--I think they may be
able to say--go as far as saying, "We didn't make
unnecessary suggestions or lead Mila in an unnecessary
way when she said what she said." And that's not
saying that she's telling the truth. That's simply
saying that, "The interview technique we used didn't
poison what she said." Now, what she said may be true
or not true, depending on a variety of things,
independent completely of the bad inter--good or bad
interviewing techniques used. And, so, I think that
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they'd be allowed to say that based up--that, "As it
relates to simply the interviewing techniques we used,
the scientific evidence indicates that there's a
certain proper way to do it. That's how we did it.
And, therefore, we conclude that if there's any falsity
in the statement, it's not a result of the technique we
used to interview her." That's not saying it's--that's
not saying it's not a result from some other thing, but
as a very narrow issue, it's not the result--now, I'm
just--this is a hypothetical, but, they--I think they'd
this is not a result of the
be allowed to say, "
technique we used to interview her."
MR. WAXMAN: And I'd still ask this Court what
possible relevance does it have? I could say to you,
your Honor--I could--
COURT: If--
MR. WAXMAN: --for instance, I could say, "I'll
stipulate that she used proper forensic interviewing
techniques and a disclosure came out of that." I'm
just arguing--okay? I could say that, all right?
There have been at least seven other interviews of this
two year old child by people who were not qualified
forensic interviewers.
COURT: And that's cross-examination material, and
that goes to the weight of the evidence.
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MR. WAXMAN: But how does this Court take what
they say about a disclosure being made three weeks and
four days after the first referral was made to DHS, how
does this Court take that evidence and figure out,
without any scientific studies that have been
proffered, how do you do that and determine whether or
not those--if that disclosure made at that time has
any--well, of course, it's not admissible, but how do
you determine that that's actually true?
COURT: You hit it right on the head, Mr. Waxman.
if that were the
If--in a vacuum, that might be--that.
only interview done, that might be a little more--the
Court may consider that to be more compelling than an
interview done in the context of a sea of interviews,
using all kinds of different techniques from all
different kinds of people. And if and--you know, when
these things were done. You hit it right on the head.
That's cross-examination, and that really goes to the
weight of the entirety of the evidence. It may well be
Dr. Ricci and
that they conducted a proper inter--Mr.
Ms. Wientzen conducted an entirely proper forensic
interview. But, it also may well be that others have
interviewed Mila, and didn't do that, and, therefore,
there may be some question that--
MR. WAXMAN: All right. As long as--I think I
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understand you now. If they're going to be permitted
to say, "We conducted an interview in this fashion, and
a disclosure was made," and that's the end of it,
that's one thing. If they then go the next step and
say, "And based on that disclosure and our training and
experience, we conclude that abuse took place," that
clearly is in violation of State v Black.
COURT: I think that might be correct, unless they
can testify about the reliable scientific indicia--
xeliable indicia of scientific reliability as to that
conclusion that they drew, yes. That's true, unless
they can specifically state on the record, and satisfy
me that there's some Williams reliability to what they
say about their assessment of truth, you know, it--
typically, these kinds of witnesses make assessments
based upon the science, based upon their physical
findings, based upon those kinds of things. And they
make those findings, and, then, that fits in with the
other evidence that may play into a case, typically,
the disclosure and the way things occurred, and it's
corroborative information, essentially. And, so--
MR. WAXMAN: I was just going to say, for the
Court's own use, if that evidence is permitted to be
proffered to this Court, I'm simply going to have to
call DHS caseworker who conducted at least two
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interviews of this child, as well. And she's gonna
have to come in here and talk about the interviewing
technique that she used, and how they did not produce a
disclosure. It's going to be a more lengthy hearing
than this Court might otherwise have thought. I'm
just:
COURT: So be it.
‘MR. WAXMAN: --all right.
COURT: That's--that may be where we go. I don't
know. We'll have to see when we get there. Mr.
Harwood, is there anything that you would like to add?
MR. HARWOOD: No, your Honor.
COURT: Okay.
(PAUSE)
couRT: Now, I think we're ready to proceed. So,
without further ado, Mr. Harwood, I'd like you to call
your first witness.
MR. HARWOOD: The first witness will be Dr.
Lawrence Ricci.
(PAUSE)
COURT OFFICER: Would you come up here, please,
six?
COURT: Good morning, Dr. Ricci.
WITNESS: Good morning.
COURT: Dr. Ricci, do you swear or affirm that the
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testimony you will present in court today will be the
truth, the whole truth and nothing but the truth?
WITNESS: I do.
COURT: Thank you very much, Doctor. Please have
a seat.
COURT OFFICER: Pull the chair in if-
WITNESS: Thank you.
COURT: Mr. Harwood, go ahead.
LAWRENCE RICCI, HAVING BEEN DULY SWORN,
TESTIFIED AS FOLLOWS, DIRECT EXAMINATION
BY MR. HARWOOD
Q Good morning, Dr. Ricci.
A Good morning.
Q Are you ready to go?
A Yes.
Q Would you please state your name for the record?
A Lawrence Ricci. Last name is spelled R-i-c-c-i.
Q And what is your professional affiliation, Dr.
Ricci?
A I am co-director of the Spurwink Child Abuse
Program, a child abuse evaluation center located
in Portland. I'ma physician and a child abuse
pediatrician, and I'm licensed in Maine.
Q Okay. I'd like to explore for a minute your
professional qualifications.
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MR. WAXMAN: TI will stipulate--
COURT: I'm well aware of Dr. Ricci's
qualifications, and I take judicial notice of those.
MR. HARWOOD: Thank you. We'll move on.
DIRECT EXAMINATION CONTINUED BY MR. HARWOOD
Q Dr. Ricci, at a point in time, did it come to your
attention that you--the Spurwink was asked to do
an evaluation of whether there was sexual abuse of
a child, Mila Malenko?
A Yes.
Q And can you describe how that came to your
attention?
A Yes. I received a call from a child protective
supervisor in Portland, Dean Staffieri, who said
that there was this case involving a two year,
seven or eight month old child, and asked if I
would look at the case. And, so, I agreed to, as
an initial evaluation, meet with the mother and
perform a physical examination at that time.
Following that, I discussed the case, also, with
Dean Staffieri on a number of occasions. I also
spoke with Mila's mother. I did not speak with
Mila's father at that time. I spoke with Mr.
Waxman. I spoke with Ken Altshuler, who was Mom's
attorney at the time. I spoke with Joyce
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Wientzen, the co-director of the program, and the
senior interviewer in the program. And among the
group, we agreed that we would proceed with a
attempt at a forensic interview of this child,
obviously very young child. And that's how we
proceeded with the case at that point.
Was there anything extraordinary about the
referral from the Department of Health and Human
Services?
Not really. It certainly--I gathered early on
that this was a very high conflict case with a lot
of legal sorts of minefields involved, and a lot
of people were involved in the case, a lot of
professionals on both sides of the argument. So,
that was in--on my radar at the time of us taking
the case. But getting a referral from the
Department for a sex abuse evaluation is not
unusual. The only--I would say the only
clinically unusual piece of this case would have
been the age of the child. We typically don't
take children under the age of thirty-six months
for interviews, although we have, on occasion,
done that. The thing that led me to suggest that
this would be an appropriate interview was, in my
mind, and certainly in our interviewer's mind,
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subsequently, this was the singularly most
articulate two year, eight month old I had ever
met, both in clinical practice and in my personal
life. She was amazingly articulate as a two year,
eight month old. So, on that basis, and,
obviously, people were asking us on both sides of
the fence to look at this case, we agreed to
proceed with an interview.
Now, I'd like to come back to your comment. You
said before you proceeded with your evaluation,
you had communications with Michael Waxman, the
attorney for the father, is that right?
Not before the medical and interview with the
mother, but before we did the next step, which was
the interview of the child.
And did you discuss that next step with Mr.
Waxman?
I did.
And what was his reaction?
That he welcomed us doing the evaluation, as did
Ken Altshuler, as did Dean Staffieri.
So, am I to understand that Mr. Waxman approved of
the forensic interviewing technique that you were
about to undertake?
MR. WAXMAN: Objection. That misstates--
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COURT: Sustained.
DIRECT EXAMINATION CONTINUED BY MR. HARWOOD
Could you--who at Spurwink was involved in making
this evaluation?
Well, the interview was conducted by Joyce
Wientzen.
Were there other members of a team that was
involved in the overall evaluation?
So, what happened at the end of that, both Joyce
and I communicated through the evaluation. There
were a number of documents sent from everybody
that she reviewed extensively, I reviewed some.
We then met, as we do typically, as a more
complete team. And this team includes other
interviewers and at least one psychologist who was
involved in the team. And as I recall that
particular meeting, because I took note of it,
knowing that I would probably have to talk about
it in court, there were myself, Joyce Wientzen,
one other interviewer, and a psychologist and our
nurse practitioner present at the meeting.
And what was your role in this overall evaluation?
Both to participate in the team discussion, which
led to a consensus decision of our opinion of the
case, to perform the physical examination, and to
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oversee, as I do generally, the clinical work of
the staff.
And can you discuss the medical evaluation that
you performed?
Yes. This was a specific inspection, among the
general medical evaluation, as well as history-
taking around medical circumstances. There were
some--for example, some concerns--and I reviewed
some medical records about prior genital symptoms.
I had an opportunity to look at that material,
spoke with Mila's mother, did not speak with
Mila's father at that time, since I knew that that
was going to happen subsequently with Joyce
Wientzen, and then performed a head to toe
physical exam, specifically looking for any
evidence of genital or rectal trauma, either acute
or prior. And, in fact, the results of that
examination were entirely negative. There was no
signs of any trauma.
Now, one of the techniques you used was the
technique of forensic interviewing, is that
correct?
Yes.
And I want to ask you a couple of questions about
forensic interviewing as a technique in
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determining sexual abuse. Are you familiar with--
MR. WAXMAN: Your Honor, I need to lodge an
objection. -as I heard the doctor, his role here
that has significance is that he performed the medical
examination. He was not the forensic interviewer to
conduct an interview with Mila Malenko.
CouRT: Well, I think he said Miss Wientzen was,
but we'll see whether he has some--there's some
foundation that can be laid here. Go right ahead, Mr.
Harwood.
DIRECT EXAMINATION CONTINUED BY MR. HARWOOD
Q Dr. Ricci, are you familiar with the technique of
forensic interviewing, as used in determining
sexual abuse of a minor?
AT am familiar with many techniques of forensic
interviewing. I am particularly familiar,
obviously, with our technique of forensic
interviewing.
Q And can you describe that for the Court?
A Yes. So, our technique is based on a number of
standards, including those developed by the--by
APSAC, American Professional Society on the Abuse
of Children. There are a number of other
protocols for forensic interviewing that we have
incorporated in our interview technique--our
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interview protocol. There are what's known as the
Charter House, or Finding Words protocol. There's
the American College of Child and Adolescent
Psychiatry protocols. And we have incorporated
many elements of all those protocols in our
technique. So, the procedure, of course, is to
gather as much background information as possible
from care--from the parents, for example. And in
cases where there are contested issues from both
parents, reviewing any relevant documents such as
information about prior interviews particularly,
or talking to those who may have conducted prior
interviews. And, then, the interview itself is a
staged procedure, in some cases, taking one hour,
in some cases, two or three or four hours on
different days, involving a child, where, first,
rapport-building occurs. Secondly, there's an
assessment made of the child's developmental
level, and overall sort of ability to report
events, and then followed by general discussions
about family members and other salient events in
the child's life, and followed by a more specific
discussion about the abuse issues as they have
presented themselves. Our procedure is very
careful to avoid any hint of leading interview--
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leading questions. Sometimes, directed questions
are required for children. So, an example of a
directed question might be, you know, "Tell me
what happened," is the most unleading question of
all time. "Tell me what happened." The problem
with that interview technique is that it is--well,
one, it's guaranteed to give you the most reliable
information, but, two, it is more difficult to
use, the younger the child. So, the younger the
child, the less likely they can give you a
narrative, as an older child or an adult might be
able to give you. So, that sometimes requires
more directed techniques. And, for example, "Tell
me about your mother," "Tell me about your
father," is somewhat of a directed technique. And
in the example one might use if someone describes
being touched by an individual, "What did that
individual touch you with?" might be a directed
question, as opposed to a leading question, which
would be, "He touched you with his--"--a very
leading question would be--well, a generally
leading question would be, "Did he touch you with
his penis?" A very leading question would be, “He
touched you with his penis, didn't he?" And we do
not use those techniques. Following that
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assessment, then, at least in our program, and in
a number of other programs around the country, we
have a team meeting to discuss the case
circumstances, and try to arrive at a consensus
opinion.
And am I to--is it correct that one of the goals
of the technique is to remove, as much as
possible, any suggestibility from the interviewer
about the outcome of the interview?
That's right. We astiduously [sic] avoid
conformation bias, which is that someone goes into
an interview with a predetermined idea. I think
if there was any predetermined idea associated
with this interview, as we discussed it going
forward, it was that we were unlikely to get any
useful information from a child this age. And I
think I expressed that to Mr. Waxman and to Mr.
Altshuler, as well. So--but, we try--certainly
wouldn't want to go into an interview like that
with any presumption of the child having been or
not having been sexually abused, because that kind
of presumption ahead of time can easily lead to
misinterpretation of the data, or even suggestive
interviewing techniques that were not--would not
be appropriate.
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Does it require specialized training or education
to properly do a forensic interview of a young
child for--in a sexual abuse evaluation?
Absolutely.
can you describe some of that training and
education?
Sure. I could talk about how our staff are
trained. They--of course, our Masters level
social workers--we don't use Bachelors level
professionals in our program--they ha--in addition
to doing a sort of internship when they come on
board--so, for example, Joyce trains all our new
social workers when they come aboard. They
observe a series of interviews. They then
interview while being observed, with critique
following the interviews. That process takes
anywhere from three to six months. But, in
addition, our staff attends workshops often around
the country, if we can afford to go, sometimes
more locally, training programs, specific training
programs on how to interview. We've brought in
interview specialists into Maine to train our
staff and other staffs. So, I would say that,
knowing many of the programs around the country,
our staff, in terms of interviewing training and
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experience, for that matter, are among the most
highly-trained, highly experienced interviewers in
the country.
Q Can you address the issue of the reliability of
forensic interviewing as a technique in
determining whether sexual abuse has occurred?
MR. WAXMAN: Objection. Relevance. Globally,
that's an interesting question, but we have a two year
old, seven month child. I think we need to know the
answer to whether or not a child of that age--whether
there's any reliability in her statements.
COURT: Well, the question is a very broad one.
MR. HARWOOD: I think I'm starting broad, your
Honor, because I want to establish what he knows about.
reliability. Reliability is very much an issue in this
case, and I think he's entitled to tell me whether he
thinks--what he knows about it, and if he thinks it's
reliable, and then we'll--
COURT: And that's fine. And I think--I think-
you know, as to the--the interview techniques that
Spurwink Clinic uses vis-a-vis other more suggestive
techniques, I think if the question is directed at,
comparatively, how does the interview technique used by
Spurwink--how does that compare with other perhaps more
suggestive and unreliable techniques that Dr. Ricci
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alluded to in his testimony. That might be a proper
avenue. Is that what you're looking to do, Mr.
Harwood?
No. I was asking him, as a
professional, to give an opinion as to whether this met
the Rule 702 minimum standard of reliability in
general, and then ask him specifically about the
techniques, whether they are consistent with that.
COURT: Well--
MR. HARWOOD: I thought that was where we were
going when we started this morning.
COURT: --well, again--again, I don't know that--I
don't know that--unless there is some actual--and I
guess the questions posed to the doctor, is there some
either accepted scientific reliability or some other
evidence as to the reliability.
(INAUDIBLE CONVERSATION)
MR. WAXMAN: Sorry, your Honor.
COURT: It's okay.
MR. HARWOOD: As long as we're.on the witnesses--
COURT: All right. I£ the question is posed, is
there some accepted scientific reliability or some
other information that provides for scientific
reliability of--to say that forensic interviewing
yields absolutely truthful results all the time, or
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truthful results most of the time, or something to that
nature, by all means, explore that, because that's a
foundation that you have to lay for Rule 702. But, Mr.
Waxman's correct in that unless there's some scientific
reliability--a witness simply can't say, you know,
"This witness is--this person who has stated these
things to me is telling the truth." So--and we're
dangerously close to that, it sounds to me, unless you
can--
MR. HARWOOD: No. I'm talking about the abstract
of reliability. Let me try it again.
DIRECT EXAMINATION CONTINUED BY MR. HARWOOD
Q Dr. Ricci, is there any information within the
general professional of sex abuse evaluators about
the reliability of forensic interviewing as a
technique in determining whether sexual abuse has
occurred?
MR, WAXMAN: That--I mean, that's such a broad
question. I don't understand its applicability to this
particular case. But, I--you know what? 1/11 withdraw
the--I want to hear the answer.
COURT: Okay.
WITNESS: Yes. There is data available. There is
research that talks about various techniques and their
reliability in eliciting accurate information, either
44