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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


         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 @



                                                                    Court of Appeals No. A-12659  

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


                                                                             O  P  I  N  I  O  N  


                                    Appellee.                          No. 2668 - June 26, 2020  


                             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  




                    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                                   


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  




             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  



                                                              - 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  




                    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  




                                                              - 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  




                                                     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                                                                                                                               




                                    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  



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  


                                                                                                              - 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                                                                                                                                


 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  




                                                             - 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                                        



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  



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  



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  




                                                             - 16 -                                                          2668

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


                     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  




                     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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