English v. State
In English v. State, 982 P.2d 139, 145 (Wyo. 1999), the Court also held that an assertion that a child's testimony was tainted could best be comprehended as a part of the competency hearing and that a separate taint hearing is not required. 982 P.2d at 146.
In English, the Court established that the requirement that a competency hearing on the issue of "taint," based on an assertion that the child's statements were the product of suggestive or coercive interview techniques, or some other potentially improper influence, is triggered whenever a party presents the court with "some evidence" that a child witness is incompetent. 982 P.2d at 146-47.
In English, the Court did not define what the standard "some evidence" was intended to mean, other than by example.
In that case, the Court held that the following facts were "more than necessary" to meet the "some evidence" standard:
The victim was five years of age (weighed heavily in the assessment); the circumstances surrounding the questioning of the child suggested taint (Mother, who did questioning, assumed the sexual touching and asked leading questions that conformed to that assumption); the Mother was a trusted authority figure; Mother used rewards to pressure child (trading secrets game); and the child's initial statements were not spontaneous but the product of interrogation (of great importance). 982 P.2d at 147.
The Court decided that the existing state of the law adequately addresses pretrial taint concerns and a pretrial taint hearing is not necessary.
At the time of a child's competency hearing, a defendant can argue memory taint at that hearing to discredit the reliability of a child's testimony.
The Court held that if a defendant can establish a child's memory of events has been corrupted by improper interviews, it is possible the third Larsen factor, "a memory sufficient to retain an independent recollection of the occurrence," may not be satisfied. English, 982 P.2d at 146.
Although the Court declined to adopt a separate pretrial "taint hearing' procedure, the Court did, however, endorse the use of the following factors as they relate to the question of independent recollection. Id.
The factors that should be considered in assessing the reliability of a complaint regarding sexual offenses 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." Undue suggestiveness can occur when an interviewer has a preconceived notion of what has happened to a child, the interviewer uses leading questions, the interviewer is a trusted authority figure, the person accused of wrongdoing is vilified during the interview, or the interviewer uses threats or rewards to pressure the child. Id.