The Pennsylvania Superior Court has decided the case of Commonwealth v. Bond, affirming the defendant’s conviction but limiting the circumstances under which the prosecution may use a “forensic interview” in a criminal child molestation case. Although the court affirmed Bond’s conviction on a harmless error theory due to his incriminating statements, the court also found that the trial court erred in permitting the Commonwealth to play the entire videotaped forensic interview of the minor complainant in an case involving Involuntary Deviate Sexual Intercourse (“IDSI”), unlawful contact with a minor, aggravated indecent assault, and indecent assault charges.
The Facts of Commonwealth v. Bond
In Bond, the defendant was charged with Involuntary Deviate Sexual Intercourse and related charges for allegedly molesting his girlfriend’s daughter. Shortly after the one incident of alleged sexual contact, the complainant reported the incident to her aunt. The aunt immediately told the child’s mother, and the mother called the police. The child was subsequently interviewed by a “forensic interview specialist” with the Philadelphia Children’s Alliance (“PCA”). The prosecution played a video of the interview for the jury during the trial.
At the end of the trial, the jury found the defendant guilty of all charges. The sentencing judge imposed a sentence of 27.5 – 55 years in state prison. The defendant filed a motion to reconsider the sentence and for a new trial, and the trial judge denied those motions. The defendant then appealed to the Superior Court.
The Superior Court Appeal
In the appeal, Bond challenged the trial court’s decision to allow the Commonwealth to play the video of the PCA Interview. By way of background, PCA is an organization in Philadelphia which contracts with the police to help investigate child abuse cases. In almost all Philadelphia child abuse and child molestation cases, the investigating Special Victims Unit detective refers the case to PCA in order to have a PCA employee conduct a videotaped, recorded video of the complainant. The PCA interview is supposed to be conducted in an environment in which the child will feel more comfortable and in which the investigator will ask non-leading questions so as to avoid suggesting incriminating answers to the complainant. In practice, PCA procedures produce mixed results. In some interviews, the interviewers are relatively neutral, but in others, they appear to act more like an arm of law enforcement and not as a neutral, unbiased interviewer. PCA handles these interviews in Philadelphia, but most law enforcement agencies in counties throughout Pennsylvania rely on similar organizations to conduct these “forensic interviews.”
The Issues on Appeal
Bond’s appeal focused on the issue of whether the PCA interview video should have been played for the jury. In general, when a witness makes an out-of-court statement, the statement will not be admissible in court because it will be hearsay. The criminal justice system in the United States is based on the principles of in-court testimony and cross-examination, meaning that in most cases, a live witness will have to testify to what happened in court. The prosecution may not simply call witnesses to testify as to what other alleged witnesses said previously or to play videotaped statements. However, there are a number of exceptions to the rule against hearsay which could allow for an out-of-court, videotaped statement like a PCA interview to be played at trial.
Prior Consistent Statements in Criminal Cases
In this case, the trial court permitted the Commonwealth to play the videotaped interview under Pennsylvania Rule of Evidence 613(c). The rule provides that under some circumstances, a witness’s prior consistent statement may be used to rehabilitate a witness who has been impeached and had his or her credibility attacked by the defense on cross-examination.
Rule 613(c) provides:
(c) Witness’s Prior Consistent Statement to Rehabilitate. Evidence of a witness’s prior consistent statement is admissible to rehabilitate the witness’s credibility if the opposing party is given an opportunity to cross-examine the witness about the statement and the statement is offered to rebut an express or implied charge of:
(1) fabrication, bias, improper influence or motive, or faulty memory and the statement was made before that which has been charged existed or arose; or
(2) having made a prior inconsistent statement, which the witness has denied or explained, and the consistent statement supports the witness’s denial or explanation.
However, as the court eventually ruled, more is required for a prior consistent statement to become admissible than just that the complainant or witness has been impeached or accused of lying. Instead, the court recognized that “[T]o be admissible to rebut a charge of improper motive, as is the case here, the prior consistent statement must have been made before the motive to lie existed.” Further, a prior consistent statement, if admissible at all, is admissible only as rebuttal or rehabilitation evidence. It is not admissible as substantive evidence. The difference here is that substantive evidence may be considered by the jury as evidence of a defendant's guilt, whereas rebuttal or rehabilitation evidence may be considered by the jury only in assessing the credibility of the witness’s original testimony.
In this case, Bond argued that the trial court erred in admitting the video because the case did not involve any prior statements that predated the complainant’s motive to fabricate. His defense attorneys argued at trial that the complainant fabricated the allegations from the beginning because she did not like living with her mother and Bond and she was upset about the absence of her natural father, who was in jail. He argued that Rule 613 permits prior consistent statements only when the statement predates the alleged fabrication, bias, improper influence or motive, or faulty memory. Therefore, because the defense lawyers suggested that the fabrication existed from the start, the video which was taken after the allegations were made, was not actually a prior consistent statement because it did not predate the false allegations.
The Superior Court ultimately agreed. It found that the statement was not a prior consistent statement because it was not prior to anything – the videotaped interview was not recorded prior to the date on which the defense claimed that the child began fabricating the allegations. Therefore, the statement should not have been admitted as a prior consistent statement pursuant to Rule 613.
Unfortunately for Bond, the Superior Court nonetheless affirmed the conviction for two reasons. First, the Court found that the admission of the video was harmless error. The defense had extensively cross-examined the complainant on what she said at the interview, so the jury had already heard a great deal about it. Additionally, the defendant had made a number of incriminating statements, including texting the complainant’s mother that he was sorry and very scared about what had done. He also took steps to try to avoid having the complainant testify. Second, the Court held that because defense counsel had asked so many questions about the testimony on the video, the trial court also properly admitted it into evidence under Pennsylvania Rule of Evidence 106.
Rule 106 is basically the rule of completeness. It provides that:
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part--or any other writing or recorded statement--that in fairness ought to be considered at the same time.
Thus, because the defendant’s attorneys asked so many questions about the videotaped statement, it was only fair for the Commonwealth to actually play the video and let the jury see the whole thing.
Although things did not work out for Bond in this case, the case is actually incredibly important for anyone facing child abuse allegations. In general, these PCA videos and forensic interviews can be very damaging for the defense as they allow the Commonwealth to play a video of the child often being led into saying incriminating things by the interviewer where the child does not have to testify in public or face cross-examination. The story that comes out on the witness stand is often different from the testimony in the PCA video, and so allowing the Commonwealth to supplement its live testimony with pre-recorded, coached videos in any case in which the defense attacks the complainant’s credibility is incredibly unfair. This decision strongly protects the rights of a criminal defendant to face his or her accusers in court and for the defense to cross-examine witnesses before the judge or jury. The prosecution may not rely on out of court hearsay simply because it is easier or better for them.
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