It was error for the trial court to exclude expert testimony on the possibility of false memory implantation in children through suggestive interviewing techniques, said a New Hampshire appeals court.

Wayne Sargent was charged with sexually assaulting his two stepchildren and one of their friends. All three victims testified at trial, and cross-examination revealed delayed disclosure of the abuse, inconsistent statements and recanted prior statements. An expert for the state, Dr. Patricia Cone, testified that the behaviors were consistent with child sexual abuse accommodation syndrome.

Sargent attempted to counter her testimony with his own expert testimony that those same characteristics of sexual abuse accommodation syndrome could also have been caused by improper interview techniques resulting in the implantation of false memories. Unfortunately for Sargent, the trial judge excluded the testimony because it did not require the assistance of an expert to inform a jury that suggestive questioning might affect a child’s testimony. Sargent was convicted of nine counts of aggravated felonious sexual assault, and he appealed.

Reversal

The Appeals Court said that expert testimony on the danger of false memory implantation may help the jury evaluate the accuracy of a child’s recollection. Although a defendant must make a general showing that improper techniques were used before such evidence may be introduced, Sargent made this showing. He provided the court examples of improper interview techniques and transcripts of the recorded interviews containing suggestive questions. He also made an offer of proof that the state’s expert, Dr. Cone, would have testified that there is a danger of altering the children’s recollection by asking leading questions.

In determining whether the error was harmless, the court said that it was unable to conclude beyond a reasonable doubt that the evidence did not affect the outcome. Since credibility of the victims was key to the outcome, and the excluded evidence may have affected how the jury evaluated the children’s credibility, the error was not harmless.