Commonwealth v. Tyrrell
The Pennsylvania Superior Court has decided the case of Commonwealth v. Tyrrell, rejecting the defendant’s challenge to his convictions for Rape of a Child and related charges. In this appeal, the Superior Court rejected the defendant’s arguments that 1) the trial court improperly permitted the complainant to testify via closed circuit television and 2) the trial court should have excluded the testimony of the minor complainant because the testimony was tainted.
The Criminal Charges
In Tyrrell, the defendant was charged with rape of a child, rape of a child resulting in serious bodily injury, indecent assault, unlawful contact with a minor, and corruption of minors for molesting S.B., his then 8-year-old daughter. The offenses allegedly occurred on April 2, 2014, and the defendant gave a statement confessing to the crimes on August 24, 2014. The defendant filed a motion to suppress his confession, opposed the Commonwealth’s motion to introduce the testimony of the complainant via closed circuit television, and also challenged the admissibility of the complainant’s testimony by arguing that the testimony had been tainted through the suggestions of others. The trial court rejected all three arguments, and the defendant was convicted. The court sentenced him to 50-100 years of incarceration followed by ten years of probation, and he appealed.
Pennsylvania's Tender Years Act – When May A Child Witness Testify Via Closed Circuit Television?
On appeal, the Superior Court also rejected the arguments. With respect to the closed circuit television issue, the defendant argued that the complainant should have been required to testify in open court in front of the jury. However, the Pennsylvania legislature has enacted a “Tender Years Act” which permits children who are 12 years old or younger to testify via closed circuit television under certain circumstances. When the prosecution moves that a child witness be permitted to testify via closed circuit television, the court must hold a hearing to determine, based on the evidence presented to it, whether requiring the child to testify in an open forum in the presence and full view of the jury and defendant will result in the child victim or child witness suffering serious emotional distress that would substantially impair the child victim or material witness’s ability to reasonably communicate.
The statute further provides: “in making this determination, the court may do all of the following:
1) Observe and question the child victim or child material witness, either inside or outside the courtroom.
2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child victim or child material witness in a medical or therapeutic setting.”
The statute makes it clear that the court must hold a hearing and either hear from the child or from a witness who can testify as to the emotional state of the child. If the court is satisfied that the child cannot testify without suffering from substantial emotional distress which will impair the child’s ability to communicate, then the court may permit the child to testify in a different room. Only the attorneys for the parties, the judge, the court reporter, an advocate for the child, and persons necessary to operate the recording equipment may be present in the room in which the child testifies. The defendant, the jury, the public, and any other court staff may not be present in the room.
Here, the defendant challenged the trial court’s determination that the complainant could testify via closed circuit television. In a pre-trial hearing, the Commonwealth presented the testimony of a licensed professional counselor. The counselor testified that in her expert opinion, she believed it would be traumatic for the complainant to testify in open court in front of her father and others. She believed that it would be traumatic because of how hard it was for the complainant to disclose the sexual assault and because many children still feel loyalty to their parents even after they report having been sexually assaulted.
The Commonwealth also presented the testimony of a caseworker for the county’s Children and Youth Services (called DHS in Philadelphia). The caseworker testified that the complainant suffered because the allegations against the defendant broke up her family. She had been placed in foster care, and she had been diagnosed with anxiety, depression, and PTSD. She had also told the caseworker how scared she was and that she was dreading the court date. The caseworker felt that the complainant was not ready to stand in a public courtroom and testify.
Based on this testimony, the trial court granted the Commonwealth’s motion to permit the child to testify from a different location, and the Superior Court approved of the trial court’s decision. The Superior Court reasoned that there is no specific requirement as to who or what kind of witness must testify in order to make the showing necessary under the Tender Years Act. The Tender Years Act does not require a current counselor, a medical doctor, or even a parent to testify in making the necessary showing. Instead, the plain language of the Act permits the Court to evaluate the child witness for itself and for the Court to hear from any adult witness who has the relevant knowledge of the effect that testifying would have on the child. The child does not necessarily have to testify, and the child’s current counselor or doctor does not have to testify. The Superior Court therefore held that the trial court properly permitted the complainant to testify via closed circuit television.
Tainted Testimony Is Not Admissible in Child Abuse Cases
The Superior Court also rejected the argument that the complainant’s testimony should have been excluded due to taint. In every case, witnesses must be competent to testify. Competency requires:
- the ability to communicate,
- the mental capacity to observe the occurrence itself and the capability of remembering what it is that the witness is called to testify about, and
- 3) a consciousness of the duty to tell the truth.
In prior decisions, PA appellate courts have recognized that child witnesses are particularly susceptible to the world of make-believe and of suggestions, and taint has been described as “the implantation of false memories or distortion of actual memories through improper and suggestive interview techniques.” Therefore, where there is evidence that the testimony of a child witness has been tainted, it may be possible to exclude the testimony of the witness because the witness does not have the capability of remembering what it is the witness is called to testify about.
A defendant may move prior to trial to exclude the testimony of a tainted witness. When the defendant makes such a motion, the defendant bears the burden of producing evidence of taint and the burden of proving that the witness was tainted by clear and convincing evidence. This means that a defendant must be able to show that the witness’s testimony stems from repetitive, suggestive, or coercive interview techniques either on the part of an interested party such as the other parent or on the part of investigators.
Here, the Superior Court rejected the defendant’s argument that the testimony of the complainant had been tainted. The first disclosure of the sexual assault took place in the victim’s journal which she later provided to a counselor. She also did not initially disclose the sexual assault to investigators during the forensic interviews. The court found that the defendant failed to show that anyone had suggested to the complainant that she make the allegations or that any of the questioning was inappropriate. The witnesses testified that they did not use leading questions or in any way coerce the witness into making the allegations, and both the trial court and Superior Court accepted that testimony. In this case, the Court found that the record simply did not support the defendant’s arguments that the complainant should have been required to testify in open court or that the complainant’s testimony was tainted by the investigators.
Challenging Tainted Testimony and Tender Years Act Motions in Sexual Assault Cases
Although the defendant did not win in this particular case, the Superior Court’s opinion explores two significant issues which often arise in sexual assault cases involving children. First, it is important to fight against any attempts on the part of the Commonwealth to take shortcuts and protect its witnesses from open cross-examination. The Confrontation clauses of the Pennsylvania and United States Constitutions give criminal defendants the right to confront the witnesses against them. These clauses have been interpreted as providing defendants the right to have their attorneys cross-examine adverse witnesses in open court with the idea that cross-examination is the best method for determining whether or not witnesses are telling the truth. When the Commonwealth can shield its witnesses from appearing in open court, it makes it easier for the witnesses to fabricate stories because it is easier to lie when you do not have to face the person that you are lying about. Therefore, it is important to challenge the Commonwealth’s motions in these types of cases and fight for open cross-examination. Second, it is critically important that the defense attorney fully investigate these cases and be extremely familiar with the discovery and contents of the forensic interviews that prosecutors typically rely upon. If it can be shown through the Commonwealth’s evidence or through the testimony of defense witnesses that the complainant has been coached and had his or her testimony tainted through the suggestions or coercion of others, then it may be possible to have the testimony excluded.
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