in cooperation with the National District Attorney's Association
and the American Prosecutor's Research Institute has adopted
protocols to serve as standards for the proper interrogation of
suspected child-abuse victims. Those interview guidelines require
that an interviewer remain "open, neutral and objective." American
Prosecutors Research Institute, National Center for Prosecution of
Child Abuse, Investigation and Prosecution of Child Abuse at 7
(1987); an interviewer should avoid asking leading questions, id.
at 8; an interviewer should never threaten a child or try to force
a reluctant child to talk, id. at 9; and an interviewer should
refrain from telling a child what others, especially other children,
have reported. Id. at 24. The New Jersey Governor's Task Force on
Child Abuse and Neglect has also promulgated [**26] guidelines.
It states that the interviewer should attempt to elicit a child's
feelings about the alleged offender, but that the interviewer should
not speak negatively about that person. Governor's Task Force on
Child Abuse and Neglect, Child Abuse and Neglect: A Professional's
Guide to Identification, [*312] Reporting, Investigation and
Treatment, at 31 (1988). Further, multiple interviews with various
interviewers should be avoided. Id. at 32.
Finally, we can acknowledge judicial recognition of the very same
concerns expressed in the academic literature and addressed by the
guidelines established by governmental authorities with respect to
the improper interrogation of alleged child sex abuse victims. The
United States Supreme Court in Idaho v.  Wright, 497 U.S. 805, 110
S. Ct. 3139, 111 L. Ed. 2d 638 (1990), noted with approval the
conclusion of the Idaho Supreme Court that the failure to video
tape interviews with alleged child victims, the use of blatantly
leading questions, and the presence of an interviewer with a
preconceived idea of what the child should be disclosing, in addition
to children's susceptibility [**27] to suggestive questioning, all
indicate the potential for the elicitation of unreliable information.
Id., at 812-13, 110 S. Ct. at 3145, 111 L. Ed. 2d at 650; see also
State v. Hill, 121 N.J. 150, 168, 578 A.2d 370 (1990) (noting
potentially coercive effect of having authoritarian figure participate
in investigatory interview); State v. Bethune, supra, 121 N.J. at
145 (expressing concern over leading questions used to elicit
complaint of sexual assault of minor); State v. R.M., 245 N.J.
Super. 504, 516 (App. Div. 1991) (noting potential for a partisan
questioner to create a coercive environment); State v. M.Z., 241
N.J. Super. 444, 451, 575 A.2d 82 (App. Div. 1990) (ruling child's
out-of-court statement inadmissible under Evid. R. 803(c)(27)
because investigator could not distinguish between what child said
and what was suggested to her).
We therefore determine that a sufficient consensus exists within
the academic, professional, [**28] and law enforcement communities,
confirmed in varying degrees by courts, to warrant the conclusion
that the use of coercive or highly suggestive interrogation techniques
can create a significant risk that the interrogation itself will
distort the child's recollection of events, thereby undermining
the reliability of the statements and subsequent testimony concerning
such events. [*313]
B.
We next turn to an examination of the interrogations conducted in
this case to determine if they were so suggestive or coercive that
they created a substantial risk that the statements and testimony
thereby elicited lack sufficient reliability to justify their
admission at trial.
The interrogations undertaken in the course of this case utilized
most, if not all, of the practices that are disfavored or condemned
by experts, law enforcement authorities and government agencies.
The initial investigation giving rise to defendant's prosecution
was sparked by a child volunteering that his teacher, "Kelly," had
taken his temperature rectally, and that she had done so to other
children. However, the overwhelming majority of the interviews and
interrogations did not arise from the spontaneous recollections
that [**29] are generally considered to be most reliable. See
Wright, supra, 497 U.S. at 826-27, 110 S. Ct. at 3152, 111 L. Ed.
2d at 659 (implying that spontaneous recall is under normal conditions
an accurate indicator of trustworthiness); D.R., supra, 109 N.J.
at 359 ("Moreover, a child victim's spontaneous out-of-court account
of an act of sexual abuse may be highly credible because of its
content and the surrounding circumstances.").  Few, if any, of the
children volunteered information that directly implicated defendant.
Further, none of the child victims related incidents of actual
sexual abuse to their interviewers using "free recall." 264 N.J.
Super. at 629.  Additionally, few of the children provided any
tell-tale details of the alleged abuse although they were repeatedly
prompted to do so by the investigators. We note further that the
investigators were not trained in interviewing young children. The
earliest interviews with children were not recorded and in some
instances the original notes were destroyed. n1 Many of the
interviewers demonstrated ineptness in [*314] dealing with the
[**30] challenges presented by pre-schoolers, and displayed their
frustration with the children.
==== Footnotes ===>
n1 As a matter of sound interviewing methodology, nearly all experts
agree that initial interviews should be videotaped. See Goodman
and Heglesen, supra, 40 U. Miami L. Rev., at 195, 198-99, David C.
Raskin & John C. Yuille, Problems in Evaluating Interviews of
Children in Sexual Abuse Cases in Perspectives on Children's
Testimony 184, 195-96 (Stephen J. Ceci et al. eds., 1989) [hereinafter
Raskin & Yuille]; Margaret A. Berger, The Deconstitutionalization
of the Confrontation Clause; A proposal for a Prosecutorial Restraint
Model, 76 Minn. L. Rev. 557, 608 (1992) (suggesting that the
prosecutor should always provide a tape or transcript of an interview
to aid in assessing suggestion or coercion). We have recognized
generally that the existence of a video or sound recording of a
statement elicited through pretrial interrogation is a factor
bearing on its reliability. State v. Gross, 121 N.J. 1, 10, 577
A.2d 806 (1990).
In this case, fully one-half of the earliest interviews at issue
here were not audio or video-taped. The record indicates that the
DYFS investigator did not begin taping interviews until June 19,
1985. The Court is aware of 39 transcripts of interviews with
thirty-four children, or about one-half of those interviewed by
DYFS. The rest were apparently unrecorded.
<=== End Footnotes ====
[**31]
Almost all of the interrogations conducted in the course of the
investigation revealed an obvious lack of impartiality on the part
of the interviewer. One investigator, who conducted the majority
of the interviews with the children, stated that his interview
techniques had been based on the premise that the "interview process
is in essence the beginning of the healing process." He considered
it his "professional and ethical responsibility to alleviate whatever
anxiety has arisen as a result of what happened to them." A lack
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