A Superior Court judge has directed that a hearing be held to determine the reliability of the memory of a child, who is an alleged victim in a rape case.
In an order on Monday, Associate Judge Joseph N. Camacho said the hearing is intended to establish whether the child’s memory of what happened remains reliable after being subjected to suggestive and coercive police interview techniques.
Camacho said the government has the burden to show evidence at the evidentiary hearing in the case against Joseph Seman Epina that the girl retains enough personal knowledge to be able to testify about the events, enough to satisfy Commonwealth Rule of Evidence 602.
Camacho said this evidentiary hearing should be held outside the presence of the jury.
Camacho will issue a separate order setting the evidentiary hearing schedule.
The 43-year-old Epina is facing charges of allegedly raping a then-12-year-old girl at her relative’s house on Saipan on March 12, 2016. The girl told police that it was not the first time that Epina sexually assaulted her.
Last May, Camacho granted Epina’s request to have an expert in Carolinian culture brought to court.
The Office of the Attorney General charged Epina with sexual assault of a minor in the first degree, assault and battery, and disturbing the peace. The alleged victim is a Carolinian.
Epina, through assistant public defender Cindy Nesbit, moved to exclude testimony of the alleged victim. The court heard the motion last May 8 and Aug. 30.
At the May 8 hearing, the defense presented the expert testimony of Dr. Wendy Bourg, an expert in child psychology, memory science, and forensic interviewing, about memory contamination/memory taint.
Nesbit argued that the questioning techniques used by the government during investigation interviews resulted in inaccurate reporting by the girl and tainted her memory of the events surrounding this case.
Nesbit said the girl was subjected to leading questions and improper interview techniques, which pressured the girl to give the answer she believed the interviewer wanted to hear rather than the truth. That, in effect, allegedly erased her independent memory of what happened.
In opposing Epina’s motion, then-assistant attorney general Elizabeth “Betsy” Weintraub argued that the defendant failed to show that the girl’s testimony was tainted and unreliable or that any unfair prejudice exists.
In his order last Monday, Camacho said Bourg testified that she could not say whether the girl’s memory was, in fact, tainted, but could say that the circumstances which lead to memory contamination were present in this case.
Camacho said issues of alleged memory taint are a matter of first impression within the CNMI.
Camacho said that, according to CNMI precedent, the appropriate standard for motions to exclude on the basis of memory taint is for the burden to be first on a defendant to make an initial showing of memory taint.
Camacho said if a defendant is able to make this initial showing, the burden then shifts to the government to show by a preponderance of evidence that the witness retains sufficient personal knowledge.