between a defendant's confession or statement. Id. at 358; Evid.
R. 803(c)(27)(b) (providing "that on the basis of the time, content,
and the circumstances of the statement there is a probability that
the statement is trustworthy"). In Hill, the Court noted several
factors that should be considered in assessing the reliability of
a complaint regarding sexual offenses. They are: (1) the age of
the victim, (2) circumstances of the questioning; (3) the victim's
relationship with the interrogator; and (4) the type of questions
asked, 121 N.J. at 168; see also Idaho v. Wright, supra, 497 U.S.
at 820, 110 S. Ct. at 3149, 111 L. Ed. 2d at 655-56 ("We think the
'particular guarantees of trustworthiness' . . . must likewise be
drawn from the totality of the circumstances that [**39] surround
the making of the statement.").
In this case we are equally concerned about the reliability of
anticipated in-court testimony that may be derived from the
out-of-court statements and antecedent interrogations. The
considerations that are germane to the assessment of the reliability
of in-court testimony parallel those that inform the determination
of the reliability of out-of-court statements.
The law governing the admissibility of eye-witness identification
testimony provides a helpful perspective in addressing the concerns
at issue here. The United States Supreme Court has insisted that
a pretrial hearing be held to determine the reliability and
admissibility of proffered in-court testimony based on unduly
suggestive identification procedures. Manson, supra, 388 U.S. at
114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. Like the investigatory
interview in a child sexual-abuse case, a pretrial identification
procedure can be a critical moment in the course of a criminal
prosecution. United States v. Wade, 388 U.S.  218, 230, 87 S. Ct.
1926, 1932, 18 L. Ed. 2d 1149, 1158 (1967). [**40] The pretrial
identification, like the investigatory interview with a child
victim, is "peculiarly riddled with innumerable dangers and variable
factors which might seriously, even crucially, derogate from a fair
trial." Ibid. [*319] Similarly, the effects of an initially suggestive
identification, like those of a coercive or suggestive interrogation,
are likely to remain corrosive over time; that is, "once the witness
has picked out the accused . . . he is not likely to go back on
his word later." Id. at 388 U.S. at 229, 87 S. Ct. at 1933, 18 L.
Ed. 2d at 1159. Further, the effects of suggestive pre-trial
identification procedures, as with suggestive or coercive interview
practices, are exceedingly difficult to overcome at trial. Ibid.
Witnesses in both situations are quite likely to be absolutely
convinced of the accuracy of their recollection. Thus their
credibility, understood as their obvious truth-telling demeanor,
is unlikely to betray any inaccuracies or falsehoods in their
statements. Younts, supra, 41 Duke L.J. at 727.
We have also recognized that when an identification [**41] is
crucial to the prosecution of a criminal case, its reliability,
and ultimate admissibility, must be strictly tested through a
searching pretrial hearing. E.g., State v.  Clausell, 121 N.J. 298,
326, 580 A.2d 221 (1990); State v. Madison, 109 N.J.  223, 233,
536 A.2d 254 (1988); State v. Ford, 79 N.J. 136, 137, 398 A.2d 95
(1979).
Similarly, we have used the protection of a pretrial hearing to
assay the reliability of testimony based on the recollection of a
witness that may have been altered by suggestive influences. In
Hurd, supra, 86 N.J. at 525, this Court required a pretrial hearing
to determine the reliability of testimony based on hypnotically-induced
recollection. The identification at issue in Hurd was not the
product of a conventional pretrial identification proceeding, such
as a line-up or photo array, which concerned the Supreme Court in
Wade and Manson. Ms. Hurd, a victim of an attack, recalled the
assault but could not recall her assailant. She underwent hypnosis
[**42] and was able to remember that her husband, Paul, had been
her attacker. The Court determined that before a witness could be
permitted to testify about matters that he or she was able to recall
only through hypnosis, a pretrial hearing must be held to ensure
that the hypnotic technique used on the witness was "reasonably
reliable." 86 N.J. at 543. See Elizabeth Loftus and Graham Davies,
Distortions in the Memory [*320] of Children 40 J. Soc. Issues 51,
52-53 (1984) (drawing analogy between amalgamation of fact and
fantasy in children's memories and process that occurs in hypnosis).
We are confronted in this case with pretrial events relating not
to the identification of an offender but, perhaps more crucially,
to the occurrence of the offense itself. Those events -- investigatory
interviews -- are fraught with the elements of untoward suggestiveness
and the danger of unreliable evidentiary results. We thus concur
in the determination of the Appellate Division, 264 N.J.  Super.
at 631-32, that to ensure defendant's right to a fair trial a
pretrial taint hearing is essential to demonstrate the reliability
[**43] of the resultant evidence.
B.
The pretrial hearing should be conducted pursuant to Evid. R. 104.
The basic issue to be addressed at such a pretrial hearing is
whether the pretrial events, the investigatory interviews and
interrogations, were so suggestive that they give rise to a
substantial likelihood of irreparably mistaken or false recollection
of material facts bearing on defendant's guilt. See United States
v. Simmons, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d
1247, 1253 (1968) (ruling that evidence would be excluded if pretrial
identification procedures "give rise to a very substantial likelihood
of irreparable misidentification"); State v. Clausell, supra, 121
N.J. at 325.
Consonant with the presumption that child victims are to be presumed
no more or less reliable than any other class of witnesses, the
initial burden to trigger a pretrial taint hearing is on the
defendant. Watkins v. Sowders, 449 U.S. 341, 101 S. Ct. 654, 66 L.
Ed. 2d 549 (1981) (holding that no constitutional [**44] mandate
exists for pretrial Wade hearing be held merely because counsel
demands it). The defendant must make a showing of "some evidence"
that the victim's statements were the product of suggestive or
coercive interview techniques. Id., 443 U.S. at 350, 101 S. Ct. at
659, 66 L.  Ed. 2d at 577 (Brennan, J., dissenting); State v. [*321]
Rodriquez, 264 N.J.  Super. 261, 269, 624 A.2d 605 (App. Div. 1993);
State v. Ortiz, 203 N.J. Super.  518, 522, 497 A.2d 552 (App. Div.),
certif. denied, 102 N.J. 335 (1985).
That threshold standard has been met with respect to the investigatory
interviews and interrogations that occurred in this case. Without
limiting the grounds that could serve to trigger a taint hearing,
we note that the kind of practices used here -- the absence of
spontaneous recall, interviewer bias, repeated leading questions,
multiple interviews, incessant questioning, vilification of defendant,
ongoing contact with peers and references to their statements, and
the use of threats, bribes and cajoling, as well [**45] as the
failure to videotape or otherwise document the initial interview
--- FMail/386 1.0g
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