Wednesday, July 21, 2010

Back to motion #2

2. The court erred in overruling trial counsel's objection to the testimony of forensic interviewer and to the admission of the tape of the forensic interview, Stacy Long, under Cuzzort v. State, 254 Ga. 745 (1985) regarding the introduction of prior consistent statements of a witness (JH and AW) through another witness (Stacy Long). Tr. Tr. 226-230; 244-245.

Throughout the trial, the prosecution consistently sought and succeeded in getting hearsay evidence admitted which consisted of prior consistent statements of a proir witness; hearsay evidence is that which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons. In this instance Mr. Levitt objected to the admissibility of the taped forensic interviews of JH and AW because they contained leading questions which were "coached" by investigator Jennifer Cooley and suggested by Cooley through an ear piece, to forensic interviewer telling JH, "it's Brad's fault, we'll get you some counseling" Tr. Tr. 228. At this point Mr. Levitt also objected to the prior consistent statements, and a line of comments by the interviewer which should not be seen by the jury. Mr. Gregor relied on Cuzzort V. State, 254 Ga. 74 (1985) in support of the admissibility of the tape. See Tr. Tr. 226-230. Cuzzort involved a trial where the father was charged with aggravated sodomy to his daughter, who made the same statement when she testified in court. The issue in Cuzzort was whether the mother could testify to the out of court statement of the daughter- the same statement the daughter made in court, subject to cross-examination- or whether the mother's testimony would be hearsay. The Court held that the concerns of the hearsay rule were satisfied since both statements were the same, and the daughter was subject to cross-examination about her testimony and about her out of court statement.

Brown v. State, 250 Ga. App. 147 (2001) expands on the holding in Cuzzort, explaining the difference between the witness expanding on his prior statements and other persons commenting on the same, suggesting a simple answer: "{A} witness' testimony as to what he (the witness) said is not hearsay. Hearsay evidence is that which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons. In short, the hearsay rule prohibits the witness from testifying as to what another person said; it does not apply to what the witness himself said." Brown, at 148.

In this particular tape, some of which Mr. Levitt pointed out, the forensic interviewer told JH he "did a good job", "you don't have to be ashamed", "it wasn't you, its Brad, Brad's got a problem." 4/18/06 Transcript of JH forensic interview, page 34. Long continues by offering JH counseling, she tell him he's "getting into them girls and stuff". 11/06/08 MNT D. Exhibit 2, Forensic Interview JH, pages 34-35. In other words, she commented on the videotape about JH's-the witness'- feelings, assigning to him shame, rewarding him for his statement by saying "good job", "testifying" that Brad Wade has got a problem. Long's comments on the statements of JH amount to impermissible hearsay, which should have been eliminated from the tape before showing it to the jury. See also, Amy Morton affidavit, as to the leading questions and the problems ascribed by research to questioning such as transpired in this so-called forensic interview. See also, 11/06/08 Tr. 50-69, where Ms. Morton discusses how clinical studies of children's behavior are indicative of abuse and the impact of the structured interviewing process, which ignored all of the informal "interviews" with parents and others.

The same problem appears in the AW interview, with the interviewer making statements which are not statements made by AW- they were made to AW- and which were not subject to cross examination. Cuzzort does not apply to this set of circumstances.

Next will be Number 3.


  1. Angie, You are doing a good job, keep going.
    Someone will listen.

  2. Oh wow. This stuff really is worse than I thought. The statements on their face are false, blatantly so, but everyone just kept building on them until the worst happened. I wonder how all these people would feel if they faced the same punishment they've meted out to so many people? Prison is too good for them, but there's no other alternative.