Prosecutors in the McMartin Pre-School molestation case, alleging that some lines of cross-examination were damaging to the mental health of an 8-year-old witness, have asked the judge to forbid abstract questioning of future child witnesses.
The questioning cited in the prosecution's motion took place last month, when the defense asked a child why statements she made on the stand apparently contradicted what she told therapists and a grand jury a year ago.
In filing the motion, the prosecutors submitted a report by Spencer Eth, a Los Angeles child psychiatrist who viewed transcripts and videotapes of the 8-year-old's testimony and said many of the questions were "inappropriate for the age level of the child."
Eth said that while a child can have a good practical understanding of a word, reconciling contradictory statements "may be difficult or impossible."
The questions dealing with the contradictions "were too abstract for the child's stage of mental development and that while she is capable of reasoning logically, she cannot think about her own thinking," Eth said.
He added that the questions "represented a clear threat to her psychological well-being . . . and resulted in a humiliating sense of defeat as she struggled to reply."
The defense attorneys, in hallway interviews during a recess, said the motion is "merely a red herring" being presented by the prosecutors because they are worried about their witnesses' credibility.
The attorneys for seven former teachers who are charged with 208 counts of molestation and conspiracy have based much of their "affirmative" defense on this type of questioning, seizing on inconsistencies and blank spots in the children's memories as signs that the molestation allegations were fabricated or that the children were brainwashed by therapists.
No Ruling Made
Municipal Judge Aviva K. Bobb did not rule on the motion and did not indicate when she might do so.
The child in question sat stiffly throughout her more than 12 hours on the witness stand. She testified that she was forced to play a game called "doctor" in which chief defendant Raymond Buckey, 26, raped her and then threatened to kill her if she told her parents about the incident.
On many occasions after being asked a question, the child would sit and look at the floor and not reply. Her long silences--some lasting more than three minutes--were broken only when she was prompted to answer by the judge. When she did answer, the one-word replies came out in almost inaudible whispers.
In one lengthy exchange, defense attorney Dean Gits asked her why several statements made to a grand jury were contradicted in her testimony in court.
"You told the grand jury that Ray didn't take pictures during the game of naked movie star. Were you telling the truth?" Gits asked.
"Yes," she replied.
"Were you telling the truth when you told us in court that he did take pictures during naked movie star?" the attorney asked.
"Yes," the girl said.
Later, when the defense was through questioning the child, Bobb asked her:
"You have told the attorney today that it is the truth both that Ray Buckey took pictures during naked movie star and that he didn't take pictures during naked movie star. Would you tell me how they both could be the truth?"
There was no response from the child.
"Would you like me to repeat the question?" Bobb asked.
"Yes," the girl replied.
The judge asked the question again and then said after the child's long silence, "Are you having trouble with the question?"
"Yes," the child said.
"Can you answer the question?" Bobb asked.
"No," the girl said.