reliability of in-court testimony parallel those that inform the
determination of the reliability of out-of-court statements. (pp.
20-25)
5. The pretrial hearing should be conducted pursuant to Evid. Rule
104 to determine whether the investigatory interviews and
interrogations were so suggestive that they [**7] give rise to a
substantial likelihood of irreparably mistaken or false recollection
of material facts bearing on Michaels' guilt. To trigger a pretrial
taint hearing, the defendant has the initial burden of demonstrating
that the victims' statements were the products of suggestive or
coercive interview techniques. The kinds of practices used here
constitute more than sufficient evidence to support a finding that the
interrogations created a substantial risk that the statements and
anticipated testimony are unreliable and, therefore, justify a taint
hearing. Thereafter, the burden shifts to the State to prove the
reliability of the proffered statements and the testimony by clear and
convincing evidence. The State must prove that despite the presence of
some suggestive or coercive interview techniques, when considering the
totality of the circumstances surrounding the interviews, the
statements or testimony retained a degree of reliability sufficient to
outweigh the effects of the improper interview techniques. The parties
are entitled to call experts on the issue of suggestiveness and the
propriety of the interrogatories but those experts may not testify as
to the credibility of an [**8] individual child as a witness. The
State may bolster the reliability of the child's statement or
testimony by proffering independent indicia of reliability. (pp. 25-
29)
6. The clear-and-convincing-evidence standard safeguards the
defendant's right to a fair trial and satisfies the need to deter
prosecutorial misconduct. In this case, the investigatory techniques
employed by the prosecution were unacceptable. Prosecutors and
investigatory agencies should modify their investigatory practice
to avoid the kinds of errors here and conform to standards that
are now accepted by the professional and law enforcement communities.
If the trial court determines that a child's statement or testimony,
or some portion thereof, retains sufficient reliability for admission
at trial, then it is for the jury to determine the probative worth
and weight to be given that statement or testimony as part of the
assessment of credibility.  (pp. 29-31)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, POLLOCK, O'HERN,
GARIBALDI and STEIN join in JUSTICE HANDLER's opinion.
COUNSEL: John S. Redden, Deputy First Assistant Prosecutor, argued
the cause for appellant (Clifford J. [**9] Minor, Essex County
Prosecutor, attorney; Mr.  Redden, Debra G. Lynch, and Elizabeth
A. Duelly, Assistant Prosecutors, of counsel and on the brief).
Daniel R. Williams, a member of the New York bar, argued the cause
for respondent (Alan L. Zegas, attorney; Robert Rosenthal, of
counsel).
Catherine A. Foddai, Deputy Attorney General, argued the cause for
amicus curiae Attorney General of New Jersey (Deborah T. Poritz,
Attorney General of New Jersey, attorney).
Amy Gershenfeld-Donnella submitted a brief on behalf of amicus
curiae Developmental, Social, and Psychological Researchers, Social
Scientists and Scholars.
Simon Louis Rosenbach, Assistant Middlesex County Prosecutor,
submitted a brief on behalf of amicus curiae County Prosecutors'
Association of New Jersey (Jeffrey S. Blitz, President, Atlantic
County Prosecutor, attorney).
JUDGES: HANDLER, WILENTZ, CLIFFORD, POLLOCK, O'HERN, GARIBALDI,
STEIN
OPINIONBY: HANDLER
OPINION: [*302]
The opinion of the Court was delivered by [*303]
HANDLER, J.
In this case a nursery school teacher was convicted of bizarre acts
of sexual abuse against many of the children who had been entrusted
to her care. She was sentenced to a long prison term with a
substantial period of parole ineligibility. [**10] The Appellate
Division reversed the conviction and remanded the case for retrial.
264 N.J. Super. 579 (1993).
The Appellate Division based its reversal on several major errors
that occurred in the prosecution of the case. Only one of those
errors is the subject of this appeal. In setting aside the conviction,
the Appellate Division ordered that if the State decided to retry
the case, a pretrial hearing would be necessary to determine whether
the statements and testimony of the child-sex-abuse victims must
be excluded because improper questioning by State investigators
had irremediably compromised the reliability of that testimonial
evidence.
The State filed a petition for certification seeking review of all
the Appellate Division's adverse rulings. This Court denied the
petition with respect to all issues except for one concerning the
necessity for a pretrial hearing to assess the reliability of
anticipated trial testimony because of the improper interrogations.
On that issue, this Court denied the petition without prejudice,
allowing the State to file a motion for reconsideration of its
petition limited to that issue in the event it decided to retry
[**11] the case. Having determined that it will retry the case,
the State filed a motion for reconsideration of its petition for
certification, limited to the pretrial hearing issue. The Court
granted the motion for reconsideration and the limited petition
for certification. 134 N.J. 482 (1993).
I
In September 1984, Margaret Kelly Michaels was hired by Wee Care
Day Nursery ("Wee Care") as a teacher's aide for preschoolers.
Located in St. George's Episcopal Church, in Maplewood, [*304] Wee
Care served approximately fifty families, with an enrollment of
about sixty children, ages three to five.
Michaels, a college senior from Pittsburgh, Pennsylvania, came to
New Jersey to pursue an acting career. She responded to an
advertisement and was hired by Wee Care, initially as a teacher's
aide for preschoolers, then, at the beginning of October, as a
teacher. Michaels had no prior experience as a teacher at any level.
Wee Care had staff consisting of eight teachers, numerous aides,
and two administrators. The nursery classes for the three-year-old
children were housed in the basement, and the kindergarten class
was located on the third floor.  During nap time, Michaels, under
[**12] the supervision of the head teacher and the director, was
responsible for about twelve children in one of the basement
classrooms. The classroom assigned to Michaels was separated from
an adjacent occupied classroom by a vinyl curtain.
During the seven month period that Michaels worked at Wee Care,
she apparently performed satisfactorily. Wee Care never received
a complaint about her from staff, children, or parents. According
to the State, however, between October 8, 1984, and the date of
Michaels's resignation on April 26, 1985, parents and teachers
began observing behavioral changes in the children.
On April 26, 1985, the mother of M.P., a four-year old in Michaels's
nap class, noticed while awakening him for school, that he was
covered with spots.  She took the child to his pediatrician and
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