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 DefendantINDEX OF WITNESSES WITNESSES DIRECT CROSS REDIRECT RECROSS Lawrence Ricci 31 74 - - INDEX OF EXHIBITS EXHIBITS MARKED OFFERED ADMITTED Plt's #1(evaluation) 53 66 7410 1 12 13 14 15 16 17 18 19 20 2 2 23 24 25 (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 going10 uw 12 13 14 15 16 17 18 19 20 a 22 23 24 25 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 as10 at 12 13 14 15 16 17 18 19 20 2 2 23 24 25 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 right10 uw 12 13, 14 15 16 7 18 19 20 a 2 24 25 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, your10 u 12 13 14 15 16 a7 18 19 20 2 2 23 24 25 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 i 12 13 14 15, 16 17 18 19 20 Pat 2 23 24 25 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-gathering10 uw 12 13 14 15, 16 17 18 19 20 2 2 23 25 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 i 12 13 14 15 16 17 18 19 20 a 2 23 24 25 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 1010 ui 12 13 14 15 16 17 18 19 20 a 2 23 25 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 110 u 12 13 14 15 16 a7 18 19 20 2 22 4 25 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 1210 i 12 13, 14 15 16 7 18 19 20 a 2 24 25 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 1310 i 12 13 14 15 16 7 18 19 20 a 2 23 24 25 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 1410 11 12 13 14 15 16 7 18 19 20 2 22 23 24 25 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 1510 M1 2 13 14 15 16 a7 18 19 20 a 2 25 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, 1610 u 12 13 14 15 16 7 18 19 20 a 2 23 24 25 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 1710 u 12 13 14 15 16 7 18 19 20 2 2 23 24 25 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 1810 iL 12 13 14 15 16 17 18 19 20 a 2 23 24 25 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 1910 ul 12 13 14 15 16 7 18 19 20 2 2 23 24 25 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 2010 ul 12 13 14 15 16 17 18 19 20 2 22 23 25 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- 2110 ul 12 13 14 15 16 7 18 19 20 a 22 23 24 25 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-- 2210 cr 12 13 14 15 16 17 18 19 20 a 22 23 24 28 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 2310 i 12 13 14 15 16 17 18 19 20 a 2 23 24 25 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, 2410 u 12 13 14 15 16 17 18 1 20 a 2 23 24 25 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 2510 ul 12 13 14 15 16 17 18 19 20 2 22 23 24 25 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 2610 u 12 13 14 15 16 17 18 19 20 a 2 23 4 25 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. 2710 u 12 13 14 15 16 17 18 19 20 a 2 23 24 25 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 2810 i 12 13 14 15 16 17 18 19 20 a 2 23 24 25 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 2910 uu 12 13 14 15 16 17 18 19 20 2 2 23 24 25 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 3010 i 2 13 14 15 16 17 18 19 20 2 2 23 24 25 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. 3110 iL 12 13 14 15 16 17 18 19 20 2 22 23 24 25 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 3210 ul 12 13 14 15 16 7 18 19 20 a 2 23 24 25 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, 3310 u 12 13 14 15 16 a7 18 19 20 a 2 23 24 25 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-- 3410 i 12 13, 14 15 16 7 18 19 20 2 2 23 4 25 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 3510 i 12 13 14 15, 16 7 18 19 20 a 2 23 24 25 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 3610 1 12 13 14 15 16 a7 18 19 20 2 2 23 24 25 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 3710 a 12 13 14 15 16 17 18 19 20 a 2 23 R 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-- 3810 u 12 13 14 15 16 17 18 19 20 a 2 25 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 3910 av 12 13 14 15 16 17 18 19 20 a 2 23 24 25 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. 4010 1 12 13 14 15 16 17 18 19 20 2 2 23 24 25 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 4110 ul 12 13, 14 15 16 a7 18 19 20 2 2 23 24 25 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 4210 u 12 13 14 15, 16 a7 18 19 20 a 2 23 24 25 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 4310 u 12 13 14 15 16 17 18 19 20 a 22 23 24 25 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