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Arthur J. Augustine v State of Alaska (6/26/2020) ap-2668

Arthur J. Augustine v State of Alaska (6/26/2020) ap-2668

                                                     NOTICE
  

         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:  



                                  303 K Street, Anchorage, Alaska  99501
  

                                              Fax:  (907) 264-0878
  

                                      E-mail:  corrections @ akcourts.us
  



                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



ARTHUR J. AUGUSTINE,  

                                                                    Court of Appeals No. A-12659  

                                    Appellant,                    Trial Court No. 4FA-12-00482 CR  



                           v.  

                                                                             O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                    Appellee.                          No. 2668 - June 26, 2020  



                  Appeal                                          

                             from  the  Superior  Court,  Fourth  Judicial  District,  

                  Fairbanks, Michael P. McConahy, Judge.  



                  Appearances:   Josie W. Garton (opening brief) and Laurence  

                                                                                        

                  Blakely (reply brief), Assistant Public Defenders, and Quinlan  

                                      

                  Steiner, Public Defender, Anchorage, for the Appellant.  Diane  

                                                                                             

                  L. Wendlandt, Assistant Attorney General, Office of Criminal  

                                                                                         

                  Appeals, Anchorage, and Jahna Lindemuth, Attorney General,  

                                                                                         

                  Juneau, for the Appellee.  



                  Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer,  

                                        

                  Senior Judge. *  

                                        



                  Judge MANNHEIMER.  



     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  



Constitution and Administrative Rule 23(a).  


----------------------- Page 2-----------------------

                    Arthur J. Augustine was convicted of sexually abusing his two grand- 

                                                                                                                          



daughters. The State's evidence against Augustine was based almost completely on the  

                                                                                                                                 



out-of-court  statements  of  the  two  children.                          These  out-of-court  statements  were  

                                                                                                                             



conveyed to the jury through video-recorded interviews of the children, as well as the  

                                                                                                                                



hearsay testimony of adults.  

                                              



                    The  trial  judge  admitted  the  children's  recorded  interviews  under  the  

                                                                                                                                



provisions of Alaska Evidence Rule 801(d)(3).   This evidence rule declares that the  

                                                                                                                                



recorded pre-trial statement of a crime victim is exempted from the hearsay rule if the  

                                                                                                                                



victim is under 16 years old, if the child is available for cross-examination at trial, and  

                                                                                                                       



if the out-of-court statement was taken under circumstances that satisfy the other criteria  

                                                                                                                          



listed in subsections (A) through (H) of the evidence rule.  

                                                                                          



                    Most of the criteria listed in Rule 801(d)(3) concern factual issues, such as  

                                                                                                                                  



whether the interview with the victimwas conducted before the proceeding, and whether  

                                                                                                                         



the victim's statement was recorded in a format that preserves both the audio and video  

                                                                                                                             



components of the statement.   But two of the criteria - (d)(3)(F) and (d)(3)(H) -  

                                                                                                                                 



require  the  trial  judge  to  exercise  judgement  after  evaluating  the  entirety  of  the  

                                                                                                                               



circumstances surrounding the victim's statement.  

                                                              



                    Under subsection (d)(3)(F), the State must prove that "the taking of the  

                                                                                                                                



statement as a whole was conducted in a manner that would avoid undue influence [on]  

                                                                                                                               



thevictim". Andunder subsection (d)(3)(H),thejudgemustadditionally "determine that  

                                                                                                                               



[the  out-of-court  statement]  is  sufficiently  reliable  and  trustworthy",  and  that  "the  

                                                                                                                              



interests of justice are best served by admitting the recording [of the statement] into  

                                                                                                                               



evidence."  

                   



                    In our first decision in this case, Augustine v. State , 355 P.3d 573 (Alaska  

                                                                                                                         



App. 2015), we concluded that the trial judge failed to hold the State to its burden of  

                                                                                                                                  



proof under subsection (d)(3)(F), and that the trial judge failed to fulfill his role as  

                                                                                                                                 



                                                              - 2 -                                                          2668
  


----------------------- Page 3-----------------------

evidentiary gatekeeper under subsection (d)(3)(H). We therefore remanded Augustine's                                                          



case to the superior court for reconsideration of whether the children's out-of-court                                   



                                                                          1  

statements should have been admitted.                                         



                                                                                                                                                               

                         The superior court has now reconsidered the matter and has issued its  



                                                                                                                                                          

decision  on  remand,  again  ruling  that  the  children's  out-of-court  statements  were  



                                                                                                                                                               

properly  admitted  at  Augustine's  trial.                                     But  the  superior  court's  explanation  of  its  



                                                                                                                                                             

decision is so conclusory that we cannot meaningfully review the court's ruling.  We  



                                                                                                                              

must therefore remand this case to the superior court once more.  



                                                                                                                                                                 

                         To fully explain why we conclude that the superior court's decision is  



                                                                                                                                                                      

inadequate, we must describe the procedural history of this litigation in some detail, and  



                                                                                                                                                               

the various reasons why one might potentially doubt the credibility or reliability of the  



                                                                                                                                                     

children's out-of-court statements.  Only then can readers understand why the superior  



                                                                                                                 

court failed to offer a sufficient explanation of its ruling to allow meaningful appellate  



                

review.  



                                                                                                                                   

             The  original  litigation  regarding  the  admissibility  of  the  children's  

                                                                                                                         

             recorded interviews, and this Court's decision on direct appeal  



                                                                                                                                               

                         State Trooper Investigator Yvonne Howell was assigned to investigate  



                                                                                                                                   

Augustine's potential sexual abuse of his two granddaughters, M.Y. and T.Y.  During  



                                                                                                                                                      

her investigation, Howell conductedfour video-recorded interviewsofthegirls. (Howell  



                                                                                               

interviewed each girl twice, on succeeding days.)  



                                                                                                                                                              

                         About three weeks before Augustine's trial was scheduled to begin, the  



                                                                                                                                             

State  filed  a  motion  seeking  the  trial  court's  permission  to  introduce  Investigator  



                                                                                                                                                                      

Howell's four recorded interviews of the children pursuant to Evidence Rule 801(d)(3).  



       1    Augustine , 355 P.3d at 585-86.  



                                                                             - 3 -                                                                         2668
  


----------------------- Page 4-----------------------

Augustine's attorney opposed the State's motion. In his opposition, the defense attorney  

                                                                                                                         



relied  primarily  on  the  information  and  assertions  contained  in  a  nine-page  report  

                                                                                                                           



prepared by Dr. John C. Yuille, a forensic psychologist.  Dr. Yuille's report addressed  

                                                                                                                      



several potential problems with the way in which Investigator Howell interviewed M.Y.  

                                                                                                                             



and T.Y., and the resulting potential unreliability of the children's statements during  

                                                                                                                           



those interviews.  

                             



                    In our initial opinion in this case, we described Dr. Yuille's report in some  

                                                                                                                             



detail - not as an endorsement of Dr. Yuille's analytical approach, or his conclusions,  

                                                                                                                  



but rather to demonstrate that Augustine's attorney offered substantive reasons to doubt  

                                                                                                                            



the reliability of M.Y.'s and T.Y.'s statements to Investigator Howell.  

                                                                                                             



                    In his report, Dr. Yuille offered his views on the general principles that an  

                                                                                                                                  



investigator must be aware of, and adhere to, when conducting an investigative interview  

                                                                                                                       



of a child, so as to "maximize the information obtained from the child while minimizing  

                                                                                                                    



the contamination of the child's memory". Under these principles, an interviewer should  

                                                                                                                           



(1) avoid leading questions, (2) allow children to take their time and describe things in  

                                                                                                                                  



their own words, (3) obtain as much independent information as possible, to give the  

                                                                                                                                



interviewer an objective basis for assessing the credibility of the child's account, and  

                                                                                                                               



(4) avoid going into the interview with only one working hypothesis, an approach that  

                                                                                                                               



can "blind" the interviewer to other relevant information that the child may have.  

                                                                                                                               



                    Dr. Yuille's report explained that he and his colleagues (from Europe and  

                                                                                                                                



the United States) had developed a set of two dozen criteria for evaluating a child's  

                                                                                                                          



statement about alleged abuse - more specifically, for evaluating whether it is likely  

                                                                                                                            



that the child's assertions and descriptions are based on memories of real experiences,  

                                                                                                       



rather than things the child has "only imagined or heard about".  

                                                                                                    



                    According to Dr. Yuille, any investigative interview of a child should be  

                                                                                                       



evaluated according to the presence or absence of these twenty-four criteria. But among  

                                                                                                                           



                                                              - 4 -                                                          2668
  


----------------------- Page 5-----------------------

the twenty-four, five criteria are critical, in the sense that all five usually should be  

                                                                                                                                 



present if the child is indeed describing real experiences.  According to Dr. Yuille, the  

                                                                                                                                



five primary criteria are:  (1) the allegation should be of a coherent event, (2) the child  

                                                                                                                             



should describe this event in a spontaneous fashion, (3) the child's description should  

                                                                                                                           



have the quantity and quality of detail one would expect from this particular child, and,  

                                                                                                                               



if the child has reached school age, (4) the child's allegation should include an age- 

                                                                                                                              



appropriate  sense  of  time  and  space,  and  (5)  it  should  include  age-appropriate  

                                                                                                            



descriptions of the child's interactions with the perpetrator.  

                                                                                             



                    In addition to describing this general approach to conducting investigative  

                                                                                                                  



interviews of children, Dr. Yuille also offered an evaluation of Investigator Howell's  

                                                                                                                       



interviews with M.Y. and T.Y.  In his introduction to this critique, Dr. Yuille explained  

                                                                                                                      



that he did not intend his remarks to be "viewed as a criticism of the officer", but rather  

                                                                                                                            



a criticism "of the organization that did not provide [her with] the appropriate training  

                                                  



to perform this type of interview."  

                                                       



                    According to Dr. Yuille, the four interviews in question (the two interviews  

                                                                                                                     



of M.Y. and the two interviews of T.Y.) were "uniformly of poor quality".  Dr. Yuille  

                                                      



noted that the interviews were "characterized by the use of leading questions [and]  

                                                                                                                            



multiple choice questions."   Based on the content of Howell's questions, Dr. Yuille  

                                                                                                                           



characterized  the  interviews  as  "attempts  to  prove  what  the  interviewer  [already]  

                                                                                                                      



believed had happened", rather than open-ended investigative efforts.  

                                                                                                             



                    Dr. Yuillethencriticized several oftheinterviewingtechniques that Howell  

                                                                                                                          



used when she interviewed the children:  

                                                 



          *	   Howell allowed the children to draw throughout the interviews. According to  

                                                                                                                                  



               Dr. Yuille, "[d]rawing is a distracting activity and it interferes with effective  

                                                                                                                        



               interviewing."  



                                                              - 5 -	                                                         2668
  


----------------------- Page 6-----------------------

          *    Many of Howell's questions were "multiple-choice" questions - questions  

                                                                                                                      



               that offered the children a selection of answers.  According to Dr. Yuille, a  

                                                                                                                                   



               person who conducts an investigative interview of a child must avoid multiple- 

                                                                                                                       



               choice  questions  because  "children  ...  will  typically  guess  one  of  the  

                                                                                                                               



               alternatives even if they have no memory."  This means that a child's answers  

                                                                                                                         



               to such questions are "often unreliable".  

                                                            



          *    Howell repeatedly used leading questions during all four interviews, making  

                                                                                                                          



               it "impossible to tell" whether the children's answers were reliable or were,  

                                                                                                                             



               instead, "a result of the leading nature of the question."  

                                                                                                       



                         (Dr. Yuille listed these examples of leading questions that Howell asked  

                                                                                                                             



                    the children:  "Did he tell you not to tell?"; "Are there any spots on his  

                                                                                                                                



                    penis?"; "Is there a mole or mark on his penis?")  

                                                                                                  



          *    Dr. Yuille also pointed  out that, in response to Howell's leading questions  

                                                                                                                      



               during her interview with T.Y. on February  15th, the girl gave inconsistent  

                                                                                                                   



               descriptions of the  same event:  When Howell asked T.Y., "Did you go?",  

                                                                                                                            



               T.Y. replied, "Yes."  But a little later, when Howell phrased the question as,  

                                                                                                



               "Did he make you stay?", T.Y. replied that Augustine made her stay.  

                                                                                                                            



          *    Based on the tenor of Howell's questions as a whole, Dr. Yuille concluded that  

                                                                                                                                



               the four interviews "were driven by a single hypothesis" - the theory that  

                                                                                                                               



               Augustine had committed an offense.  According to Dr. Yuille, "[t]he biggest  

                                                                                                                          



               single impediment to effective investigation is interviewer bias" - not bias in  

                                                                                                                                  



               the  sense  of personal  enmity  or prejudice,  but  rather  in the  sense that  the  

                                                                                                                                



               interviewer  is  attempting  "to  prove  a  particular  hypothesis  rather  than  

                                                                                                                             



               [conduct] an investigation to determine what may or may not have happened."  

                                                                                                                    



                    In his concluding paragraph, Dr. Yuille summed up his evaluation of the  

                                                                                                                                



interviews with the following observations:  

                                                                     

                  



                                                              - 6 -                                                          2668
  


----------------------- Page 7-----------------------

                              Four  poor  quality  interviews  were  conducted  with  

                                                                                                        

                    these two children.  No attempt was made to determine what  

                                                                                                         

                    may or may not have happened in this case:  the interviews  

                                                                                                

                    were intended to prove that the suspect had offended against  

                                                                                                     

                    these children.  The biased interviews were characterized by  

                                                                                                            

                    leading questions and multiple choice questions. Little infor- 

                                                                                                        

                    mation  was  obtained  from  the  children[,]  and  what  was  

                                                                                                         

                    obtained was of questionable reliability.  Proper, effective,  

                                                                                                  

                    non-leading  interviews  of  these  children  are  needed  to  

                                                                                               

                    determine what, if anything, may have happened in this case.  

                                                                                                         

                    At present, an assessment of the credibility of the allegations  

                                                                                                

                    is impossible.  

                                            



                    When the State formally sought admission of Investigator Howell's four  

                                                                                                                              



interviews with the children, the defense attorney's opposition to this evidence rested  

                                                                                                                           



heavily on the conclusions that Dr. Yuille reached in his report.  The defense attorney  



echoed four of Dr. Yuille's primary criticisms of the way that Investigator Howell  

                                                                                                                        



handled the interviews - that Howell had undermined the reliability of the interviews  

                                                                                                                    



by:  (1) asking leading questions; (2) asking multiple-choice questions and compound  

                                                     



questions;  (3)  asking  questions  which  suggested  that  Howell  already  believed  the  

                                                                                                                               



accusations against Augustine, and that she was looking for answers that would support  

                                                                                                                         



those accusations; and (4) allowing the girls to distract themselves by drawing pictures  

                                                                                                                        



throughout the interviews.  

                                           



                    In addition, the defense attorney argued that the girls' statements had been  

                                                                                                                             



influenced by their mother's pre-interview interactions and conversations with them -  

                                                                                                                                



interactions and conversations which the attorney characterized as both "inflammatory"  

                                                                                                            



and "suggestive".  

                              



                    Over  the  defense  attorney's  objections,  the  trial  judge  ruled  that  the  

                                                                                                                               



recorded  statements  of  the  two  children  met  the  requirements  of  Evidence  Rule  

                                                                                                                            



801(d)(3), and that those out-of-court statements were therefore admissible.  

                                                                                                                      



                                                              - 7 -                                                         2668
  


----------------------- Page 8-----------------------

                    During Augustine's trial, Dr. Yuille was called as a defense witness. In his  

                                                                                                                                 



testimony, Dr. Yuille described the basic principles that criminal investigators should  

                                                                                                                           



adhere to when they interview children, and he reiterated (and expanded upon) many of  

                                                                                                                                  



his concerns about the way in which Investigator Howell conducted the interviews in this  

                                                                                                                                



case.  

         



                    When the defense attorney asked Dr. Yuille to evaluate those interviews in  

                                                                                                                                  



light of the principles and concerns he described in his report and in his testimony,  

                                                                                                                    



Dr. Yuille responded that all four interviews "were poorly conducted", that they were  

                                                                                                                             



"driven  by  ...  a  single  hypothesis"  (i.e.,  that  Augustine  was  guilty),  and  that  the  

                                                                                                                                



interviews were "characterized by leading and multiple-choice questions" - types of  

                                                                                                                                  



questions which, according to Dr. Yuille, tend to yield unreliable answers.  Dr. Yuille  

                                                                                                                           



concluded that, because of the poor quality of these interviews, it was impossible to say  

                                                                                                                                



whether the children gave reliable answers to Investigator Howell's questions.  

                                                                                                                          



          Our remand to the superior court  

                                                      



                    As we explained in our previous decision in this case, even though the  

                                                                                                                    



superior  court  ruled  that  the  children's  statements  to  Investigator  Howell  met  the  

                                                                                                                        



foundational requirements for admission under Evidence Rule 801(d)(3), the record of  

                                                                                                                                  



the superior court proceedings failed to show that the judge meaningfully evaluated  

                                                                                                                      



whether the State had satisfied the requirements of criteria (F) and (H) of that rule.  In  

                                                                                                                  



other words, the trial judge failed to meaningfully evaluate whether "the taking of the  

                                                                                                                                



statement[s] as a whole was conducted in a manner that would avoid undue influence  

                                                                                                                       



[on]  the  victim[s]",  and  whether  those  statements  were  "sufficiently  reliable  and  

                                                                                                                              



trustworthy".  

                      



                                                              - 8 -                                                          2668
  


----------------------- Page 9-----------------------

                                                     We therefore remanded Augustine's case to the superior court, so that the                                                                                                                                                                                                        



judge   could   re-assess   whether   the   State   established   a   proper   foundation   for   the  



 admissibility of the children's out-of-court statements under Evidence Rule 801(d)(3).                                                                                                                                                                                                                                                               



Augustine , 355 P.3d at 585-86.                                                                                                



                                                     In addition to the concerns raised by Dr. Yuille's analysis, we directed the                                                                                                                                                                                                      



 superior   court   to   consider   one   additional   circumstance   that   potentially   affected   the  



 reliability of the children's out-of-court statements:                                                                                                                                                            the fact that the children were                                                                            



 interviewed by the lead investigator assigned to the case.                                                                                                                                                                      Id.  at 586-87.                                             



                                                     Subsection (F) of Evidence Rule 801(d)(3) requires the State to prove that                                                                                                                                                                                                     



 "the taking of the statement as a whole was conducted in a manner that would avoid                                                                                                                                                                                                                                         



 undue influence of the victim".                                                                                             When Senator Hollis French, the sponsor of proposed                                                                                                                   



 Evidence Rule 801(d)(3), explained this requirement to the Senate Judiciary Committee,                                                                                                                                                                                                              



 he told the Committee that it was important for the interviewer to be specially trained                                                                                                                                                                                                                               



 because "[k]ids are obviously easily led, and it's real important that you not put words                                                                                                                                                                                                                                 



 in their mouths, [that] you let them tell their own story", so that "we're not convicting  



 people based on ... fairy tales."                                                                                         Senator French warned the Committee members about                                                                                                                                                



 "the early days of child sex abuse prosecutions, when you had folks really taking kids       



 by   the   nose   and   getting   [them   to   make]   some   astonishingly   awf[ul],   untruthful  



                                                  2  

 statements."  



                                                                                                                                                                                                                                                                                                                       

                                                     This insistence that the interview be neutral and non-suggestive is written  



                                                                                                                                                                                                                                                                                                                                      

 into a separate clause of Evidence Rule 801(d)(3).  Under subsection (C) of the rule, the  



                                                                                                                                                                                                                                                                                                           

 prosecutor and the defense attorney are forbidden from participating in the interview;  



                                                                                                                                                                                                                                    

 indeed, they are prohibited from being present at all.  But if the attorneys representing  



                                                                                                                                                                                                                                                                                                             

 the State and the defendant are barred from participating, so as to preserve the neutrality  



              2           Augustine ,   355  P.3d  at  583,  quoting  the  proceedings  of   the  Senate  Judiciary  



 Committee on March 31, 2005 pertaining to Senate Bill 117 (24th Legislature).  



                                                                                                                                                                - 9 -                                                                                                                                                            2668
  


----------------------- Page 10-----------------------

and non-suggestiveness of the interview, the participation of agents of those attorneys  

                                                                                                                      



- their paralegals and their investigators - would seemingly raise the same concerns.  

                                                                                                                      



                    Here,  Investigator  Howell  already  knew  about  the  children's  prior  

                                                                                                                           



accusations of abuse when she interviewed the children, so there was at least a potential  

                                                                                                                       



danger that the children's responses during the interviews could have been influenced  

                                                                                          



by Howell's knowledge and her expectations - even though, outwardly, there was  

                                                                                                                              



nothing suggestive about the interview procedure. Compare Tegoseak v. State, 221 P.3d  

                                                                                                                             



345, 351-362 (Alaska App. 2009), where we discussed the potential ways in which a  

                                                                                                                                  



police interviewer could unconsciously influence the result of a photographic lineup.  

                                                                                                                                   



          The superior court's decision on remand, and why we conclude that the  

                                                                                                                     

          court's decision is not adequate to allow meaningful appellate review  

                                                                                                           



                    On  remand,  after  allowing  the  parties  to  file  supplemental  briefs,  

                                                                                                                         



Augustine's trial judge issued a written decision in which he again concluded that the  

                                                                                                                               



State had satisfied the requirements of Evidence Rule 801(d)(3) - in particular, the  

                                                                                                              



requirements of subsections (F) and (H).  

                                                                 



                    However, the bulk of the judge's decision was a summary of the procedural  

                                                                                                                    



history of this litigation (including this Court's earlier decision on appeal).  The judge  

                                                                                                  



offered only a conclusory explanation for his ruling that the children's out-of-court  

                                                                                                                 



statements  were  admissible  under  Rule  801(d)(3).                               The  judge  acknowledged  that  

                                                                                                      



Dr. Yuille had offered substantive reasons to doubt the reliability of the children's  

                                                                                                                    



statements  from  the  police  interviews,  but  the  judge  declared  that  he  did  not  find  

                                                                                                                             



Dr. Yuille's concerns to be "persuasive".  

                                                                 



                    The basic problem now faced by this Court is that the trial judge did not  

                                                                                                                               



explain why he concluded that Dr. Yuille's concerns were not "persuasive".  The judge  

                                                                                                                            



simply  stated  that  he  had  examined  the  record  in  light  of  the  concerns  raised  by  

                                                                                                                               



                                                             - 10 -                                                         2668
  


----------------------- Page 11-----------------------

Dr.   Yuille,   and   that   he   had   again   concluded   that   the   foundational   requirements   of  



Evidence Rule 801(d)(3) were satisfied.                                                                             This conclusory ruling is not sufficient to                                                                        



enable this Court to meaningfully review the judge's decision.                                                                                                               



                                    As our supreme court stated in                                                             Hanlon v. Hanlon                                    , 871 P.2d 229, 233                           



(Alaska 1994), "To permit meaningful appellate review, the trial court must provide [the                                                                                                                                          



appeals] court [with] a clear understanding of the basis of the trial court's decision" -                                                                                                                                             



an explanation that enables the appeals court "to determine the ground on which the trial                                                                                                                                         



court reached its decision." At a minimum, a trial court's ruling must show that the court                                                                                                                                     



considered each significant issue, and the ruling must also reveal the basis of the court's                                                                                                                               



                          3  

decision.    



                                                                                                                                                                                                             

                                    When a trial court's decision is not sufficiently detailed or sufficiently  



                                                                                                                                                                                                                                  

explicit to allow meaningful review, an appeals court must remand the case to the trial  



                                                                                                                                                                                            4  

                                                                                                                                                                                                                                     

court, directing the court to provide a fuller explanation of its ruling.                                                                                                                        That is what we  



                                                                                 

must do in Augustine's case.  



                                                                                      

                   The trial court's task on remand  



                                                                                                                                                                                                                                     

                                    We now will describe, in some detail, the kind of explanation we expect the  



                                                                                                       

superior court to provide on remand.  



                                                                                                                                                                                                                             

                                    When the State offers evidence of a child's out-of-court statement under  



                                                                                                                                                                                                        

Evidence  Rule  801(d)(3),  it  is  the  State's  burden  to  establish  the  foundational  



                                                                                                                   

requirements of that rule - in particular, to establish that the statement was taken in a  



         3        McKitrick v. Public Employees Retirement System , 284 P.3d 832, 839 (Alaska 2012).  



         4        Samuel H. v. Office of Children's Services, 175 P.3d 1269, 1274-75 (Alaska 2008);  



S.L. v. J.H., 883 P.2d 984, 986 (Alaska 1994); Murray v. Murray , 856 P.2d 463, 466 (Alaska  

 1993).  



                                                                                                              - 11 -                                                                                                            2668
  


----------------------- Page 12-----------------------

 manner that avoided undue influence on the child, and that the child's statement was                                                                                                                                   



 sufficiently reliable and trustworthy.                                                           See  Evidence Rule 801(d)(3)(F) & (H).                                                                     



                           (a)   The manner in which the children were interviewed                                                            



                                   In our original decision in this case, we described Dr. Yuille's report in                                                                                                                



 some detail.                     Our purpose was not to endorse his approach or his conclusions, but rather                                                                                                        



 to demonstrate that Dr. Yuille offered substantive reasons to doubt the reliability of the                                                                                                                                



                                                                                                                   5  

 four video-recorded statements in this case.                                                                           



                                                                                                                                                                                                           

                                   If  Augustine's  trial  judge  has  concluded  that,  despite  these  potential  



                                                                                                      

 grounds for doubting the reliability of the children's statements, the State successfully  



                                                                                                                                                                                                        

 demonstrated that the statements met the foundational requirements of Rule 801(d)(3),  



                                                                                                                                                                                                                                     

 then the judge must provide a substantive explanation of why he reached this conclusion.  



                                                                                                                                                                                                                

                                   For  example,  Dr.  Yuille  stated  that  allowing  children  to  draw  during  



                                                                                                                                                                                                           

 forensic  interviews  is  a  distracting  influence,  and  that  it  interferes  with  effective  



                                                                                                                                                                                                                     

 interviewing. The trial judge apparently found this assertion unpersuasive, but the judge  



                                                            

 never explained why.  



                                                                                                                                                                                                                              

                                   Did the trial judge conclude, as a general matter, that allowing children to  



                                                                                                                                                                                                            

 draw during an interview is not distracting, and that it does not interfere with effective  



                                                                                                                                                                                                                     

 forensic interviewing?  Or did the judge conclude that allowing the children to draw  



                                                                                                                                                                                                                         

 during  the  interviews  could  potentially  have  been  distracting,  but  that  it  was  not  



                                                                                                                                                                                                                           

 distracting in this case?  (And if so, why was it not distracting in this case?)  Or did the  



                                                                                                                                                                                                                           

judge conclude that the children may have been distracted by their drawing, but that the  



                                                                                                                                                                                                                           

 State nevertheless showed that the children's statements were reliable?  On remand, the  



         5        Augustine , 355 P.3d at 578.  



                                                                                                          - 12 -                                                                                                      2668
  


----------------------- Page 13-----------------------

judge must explain what conclusion he reached on these matters, and the judge must  

                                                                                                                             



explain his reasons for reaching that conclusion.  

                                                                            



                     Similarly, Dr. Yuille stated that Investigator Howell's use of multiple- 

                                                                                                                      



choice questions, as well as the investigator's use of leading questions, were two other  

                                                                                                                             



aspects of the interviews that undermined the reliability of the children's statements. Did  

                                                                                                                                



the trial judge conclude, as a general matter, that Dr. Yuille was wrong when he asserted  

                                                                                                                         



that multiple-choice and leading questions can undermine the reliability of children's  

                                                                                                                     



statements during a forensic interview? Or did the judge accept Dr. Yuille's premise that  

                                                                                                                                



multiple-choice  and  leading  questions  can  undermine  the  reliability  of  children's  

                                                                                                                     



statements, but the judge nevertheless found that the State had showed that Investigator  

                                                                                                                   



Howell's  use  of  these  types  of  questions  did  not  undermine  the  reliability  of  the  

                                                                                                                                



children's statements in this case?  (And if so, how did the State make this showing?)  

                                                                                                                                      



Or did the judge conclude that Howell's use of multiple-choice and leading questions  

                                                                                                                      



partially undermined the reliability of the children's statements, but that other aspects of  

                                                                                                                                  



the interviews demonstrated that the children's statements were nonetheless reliable?  

                                                                                                                        



Again, on remand, the judge must explain which of these conclusions (or some other  

                                                                                                                             



conclusion) he reached, and why.  

                                             



                     We  note  that  Augustine  has  pointed  to  a  number  of  multiple  choice  

                                                                                                                          



questions and leading questions that, according to Augustine, undermined the reliability  

                                                                                                                      



of the children's statements.  Although the trial judge need not address every example  

                                                                                                                        



cited by Augustine, the judge should at least address the most striking examples and  

                                                                                                                               



explain  why  he  concluded  that,  despite  Howell's  method  of questioning,  the  State  

                                                                                                                             



showed that the children's statements were reliable.  

                                                                                 



                     We further note that, in our earlier opinion, we expressly directed the trial  

                                                                                                                               



judge  to  consider  the  potential  problem  created  by  the  fact  that  the  person  who  

                                                                                                                              



interviewed the children - Investigator Howell - was the lead investigator in this case.  

                                                                                                                                      



                                                              - 13 -                                                         2668
  


----------------------- Page 14-----------------------

We noted the possibility that, because of Howell's pre-knowledge of the investigation,  

                                                                                                                



she might have unwittingly influenced the children's answers to her questions.  This  

                                                                                                                              



concern  was accentuated  by  Dr.  Yuille's analysis that Howell's questioning  of the  

                                                                                                                                



children appeared to be "driven by ... a single hypothesis":  that Augustine was guilty.  

                                                                                                                                      



                    The trial judge apparently rejected the notion that Investigator Howell,  

                                                                                                                        



because  of  her  pre-knowledge  of  the  investigation,  and  because  of  her  method  of  

                                                                                                                                 



questioning, might have undermined the reliability of the children's answers during the  

                                                                                                                                



forensic interviews.  But again, the judge must explain why he concluded that the State  

                                                                                                                             



demonstrated the reliability of the children's statements despite this potential problem.  

                                                                                                                                      



                (b) The testimony of Lori Markkanen  

                                                       



                    At Augustine's trial, the State endeavored to rebut the testimony presented  

                                                                                                                       



by Dr. Yuille by presenting the testimony of Lori Markkanen, the program manager and  

                                                                                                                                



forensic  interviewer  at  Stevie's  Place  child  advocacy  center.                                  Because  there  is  a  

                                                                                                                                  



possibility that the trial judge will rely on Markkanen's testimony on remand, we wish  

                                                                                                                              



to explain our concerns about that testimony - concerns that the judge should address  

                                                                                                                         



if he chooses to rely on Markkanen's testimony on remand.  

                                                                                             



                    In her testimony, Markkanen often agreed with Dr. Yuille's analysis of the  

                                                                                                                                 



problematic  aspects  of  the  interviews,  although  she  disagreed  with  his  ultimate  

                                                                                                                       



conclusion.  However, some of Markkanen's reasons for disagreeing with Dr. Yuille  

                                                                                                                           



appear  to  be  questionable.                   For  example,  Dr.  Yuille  testified  that  children  are  

                                                                                                                               



considerably moresuggestiblethan adults. In response, Markkanen asserted that "there's  

                                                                                                                         



a lot of research that has been conducted with children ... , and what the data shows is  

                                        



that school-age children are not coming out statistically more suggestible than adults  

                                                                                                                            



are."  

          



                                                             - 14 -                                                          2668
  


----------------------- Page 15-----------------------

                          But when Markkanen was asked to support this assertion, she only cited a                                                                      



single study from 1995. This study supports the conclusion that all children between the                                                                            



ages of 3 and 6 are suggestible (                           i.e., they will, under certain circumstances, attest to facts                                        



                                    6  

                                                                                                                                                                      

that are not true).                     The study also supports the conclusion that, within this group of  



                                                                                                                                                                    

children, the ones who are 3 or 4 years old are considerably more suggestible than the  



                                                                    7  

                                                                                                                                                          

ones  who  are  5  or  6  years  old.                                     More  importantly,  the  study  does  not  support  



                                                                                                                                                               

Markkanen's assertion that 5- to 6-year-old children are no more suggestible than adults  



                                                                                                                   

- because there was no adult control group in the study.  



                                                                                                                                                                     

                          Furthermore, even assuming that adults are just as suggestible as 5- or  



                                                                                                                                                                   

6-year-old  children,  this  fact,  standing  alone,  would  not  be  a  legitimate  basis  for  



                                                                                                                                                               

concluding that the interviews in this case were reliable.  As the Alaska Supreme Court  



                                                                                                                                                                    

discussed in Young v. State,unnecessarily suggestivepoliceidentificationprocedurescan  



                                                                                                                                                                  

undermine the reliability even of adult eye-witness testimony, to the point where that  



                                                                                       8  

                                                                    

testimony must be excluded from evidence.  



                                                                                                                                                                  

                          We  also  note  that  Markkanen  had  considerably  less  experience  and  



                                                                                                                                                                

expertise than Dr. Yuille. Dr. Yuille received his doctorate in forensic psychology more  



                                                                                                                                                                

than 50 years ago.   In the 1980s, he began focusing on forensic interviews of child  



                                                                                                                                                                 

witnesses, and he developed the first protocol for interviewing children in criminal child  



                                                                                                                                                            

protection investigations.  Dr. Yuille testified that a significant portion of his current  



                                                                                                                                                                

work involves training law enforcement officers on how to properly interview child  



                                                                                                                      

witnesses.  He also testified that he has published over 120 scholarly works, including  



       6      Michelle D. Leichtman & Stephen J. Ceci, The Effects of Stereotypes and Suggestions  



on Preschoolers' Reports, Developmental Psychology, Vol. 31, No. 4, pp. 568-578 (1995).  



       7      Id.  



       8       Young v. State, 374 P.3d 395, 417-426 (Alaska 2016).  



                                                                               - 15 -                                                                           2668
  


----------------------- Page 16-----------------------

works on interviewing children, and that his most recent publication discussed the latest  

                                                                                                                             



developments in this field.  

                                          



                    Markkanen,incontrast, holds bachelor's degrees in languagearts education  

                                                                                                                       



and special education.  Although the emphasis of her special education degree was on  

                                                                                                                          



mental health and behavioral issues (including developmental psychology), she does not  

                                                                                                                                



hold  a  degree  in  psychology,  and  she  has  never  published  research  in  this  area.  

                                                                                                                                      



Markkanen has experience working in and managing programs for children (especially  

                                                                                                                     



children with disabilities), but she had no particular experience in forensic psychology  

                                                                                                                   



or forensic interviewing before she came to work for Stevie's Place in 2008.   Her  

                                                                                                                               



training in the methods of conducting forensic interviews of children consisted of her  

                                                                                                                                



attending several forty- to sixty-hour seminars - the type of forensic training seminars  

                                                                                                                       



that are taught by Dr. Yuille.  

                                              



                    We do not mean to suggest that the trial judge was required to credit  

                                                                                                                            



Dr. Yuille's testimony over Markkanen's testimony simply because Dr. Yuille was more  

                                                                                                                             



qualified or had more experience. Highly qualified experts can still be incorrect, and the  

                                                                                                                                 



weight or credibility of competing testimony obviously should not be reduced to a battle  

                                                                                                                            



of resumes. Rather, we mean to emphasize the importance of the judge's duty to provide  

                                                                                                                          



an explanation for his rulings.  

                                                 



                    Here, Markkanen had less expertise and experience, and she was often  

                                                                                                                             



unable to provide support for her claims.  If the trial judge was relying on Markkanen's  

                                                                                                                 



testimony when he concluded that Dr. Yuille's report and testimony were not persuasive,  

                                                                                                                    



the  judge  should  explain  why  he  relied  on  Markkanen's  testimony  despite  these  

                                                                                                                            



deficiencies.  

                     



                                                             - 16 -                                                          2668
  


----------------------- Page 17-----------------------

           Conclusion  



                     It is important to recognize what is at stake when the State offers a child's  

                                                                                                                           



out-of-court statements under Evidence Rule 801(d)(3).  In many instances, the child's  

                                                                                                                           



recordedinterview(s) -statementsthat would otherwisebeinadmissiblehearsay -will  

                                                                                                                               



be the linchpin of the State's case.  And in some cases (as was true in this case), these  

                                                                                           



out-of-court statements will essentially be the State's only evidence. Thus, a trial judge's  

                                                                                                                          



decision to admit or exclude these statements will often have a decisive impact on the  

                                                                                                                                



outcome of the trial.  

                         



                     For this reason, when the State asserts that a child's out-of-court statements  

                                                                                                                     



are sufficiently reliable to justify their admission under Evidence Rule 801(d)(3), trial  

                                                                                                                               



judges bear a great responsibility to approach this matter carefully and seriously, to make  

                                                                                                                             



sure that the State is put to its proof regarding the foundational requirements of Rule  

                                                                                                                              



 801(d)(3).  

                  



                     Under subsection (F) of Evidence Rule 801(d)(3), the State must prove that  

                                                                                                                                



"the taking of the [child's] statement as a whole was conducted in a manner that would  

                                                                                                                           



avoid undue influence [on] the victim".  And under subsection (H) of this rule, the State  

                                                                                                                             



must  additionally  prove  that  the  child's  statement  is  "sufficiently  reliable  and  

                                                                                                                              



trustworthy", and that "the interests of justice are best served by admitting the recording  

                                                                                                                       



 [of the statement] into evidence."  

                                                      



                     As we explained in our first opinion in this case, a trial judge is not allowed  

                                                                                                                         



to pass this responsibility on to the jurors. A judge cannot simply decide that the child's  

                                                                                                                           



out-of-court statements might be reliable and trustworthy, and then admit the evidence  

                                                                                                                       



and trust the jury to sort it out.  Rather, Evidence Rule 801(d)(3) requires the judge to  

                                                                                                      



decide  whether  the  State  has  affirmatively  proved  the  foundational  elements  that  

                                                                                                                              



authorizetheadmission of the child's out-of-court statements. And as this Court clarifies  

                                                                                                                         



                                                              - 17 -                                                         2668
  


----------------------- Page 18-----------------------

today, this means that a trial judge must explain their decision with sufficient detail to  

                                                               



allow this Court to fulfill its duty of meaningful appellate review.  

                                                                                                     



                    We therefore again direct the superior court to re-assess the admissibility  

                                                                                                                



of the children's four out-of-court interviews under Evidence Rule 801(d)(3).  Within  

                                                                                                                         



90 days, the superior court shall provide this Court with a supplemental ruling which  

                                                                                                                           



(1) identifies the particular issues that the court considered and (2) explains why the  

                                                                                                                               



court concluded that, despite the various concerns raised by Dr. Yuille and by this Court  

                                                                                                                           



in our prior decision, the State nevertheless proved all of the foundational elements  

                                                                                                                      



required by Evidence Rule 801(d)(3).  

                                                           



                    Upon our receipt of the superior court's supplemental ruling, we shall  

                                                                                                                            



resume our consideration of this case.  

                                                           



                                                             - 18 -                                                         2668
  

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