finding that “interviewers of child witnesses of suspected sexual abuse must be permitted to 22 exercise some discretion in deciding when to accept initial denials at face value and when to 23 reject them (or withhold judgment on them) and proceed further [and] [c]onsequently, an 24 allegation that an interviewer disbelieved an initial denial and continued with aggressive 25 questioning of the child cannot, without more, support a deliberate-fabrication-of-evidence 26 claim”
How later courts described this case
- finding that “interviewers of child witnesses of suspected sexual abuse must be permitted to 22 exercise some discretion in deciding when to accept initial denials at face value and when to 23 reject them (or withhold judgment on them) and proceed further [and] [c]onsequently, an 24 allegation that an interviewer disbelieved an initial denial and continued with aggressive 25 questioning of the child cannot, without more, support a deliberate-fabrication-of-evidence 26 claim”
- holding that one way for the plaintiff to assert a clearly established constitutional due process right in a deliberate-fabrication-of-evidence claim would be to point to evidence supporting the proposition that defendants continued their investigation of plaintiff despite the fact that they knew or should have knew he was innocent
- finding a clearly established right to be free from charges brought based on fabricated evidence 26 and further finding that fabricated evidence includes the use of “investigative techniques that 27 were so coercive and abusive that they knew or should have known that those techniques would 28 yield false information”
- stating that “[i]nter-viewers of child witnesses of suspected sexual abuse must be given some latitude in determining when to credit witnesses’ denials and when to discount them, and we are not aware of any federal law — constitutional, decisional, or statutory — that indicates precisely where the line must be drawn.”
Written by the judges who cited it.
Distinguished
Distinguished by Costanich v. DEPT. OF SOCIAL AND HEALTH SERVICES, 627 F.3d 1101 (2010)
The district court held that Costanich "failed to identify a clearly established right that Defendants violated" because her right to due process is "too nebulous to be `clearly established.'" It reasoned that "the constitutional right `not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government,'" based on Devereaux, was inapplicable here because Costanic…
The opinion
FERNANDEZ, Circuit Judge,
concurring:
I concur in the majority opinion insofar as it rests on the ground of qualified immunity for investigative techniques. I do not, however, join the discussion regarding knowing 1 fabrication of evidence because I do not believe that Devereaux ever properly raised or developed that issue before the district court.
Thus, I express no opinion on whether the mere development of evidence (even knowingly false evidence) or the bringing of charges (even knowingly false ones) can by itself constitute a procedural or substantive due process violation within the meaning of the United States Constitution. That kind of conduct would surely be reprehensible, and only a rapscallion in official raiment would do such a thing. However, I would not establish (or refine) a possibly far reaching principle of constitutional law based on the record and presentation in this case.
' It may be easy to decide the question here, although, as the dissent demonstrates, even that is not necessarily true. But if that right exists, we must answer a number of questions. For example, when does the violation accrue? Is it at the first evil interview, at the first presentation to the prosecutor, at the time charges are filed, at arraignment on those charges, or at some earlier or later point? All of those issues remain to be decided. And when should an officer have had such positive *1083 knowledge that the defendant was truly innocent that the further conduct of the investigation, or presentation to the prosecutor, violated the defendant’s constitutional rights? The dissent says that the evidence in this case would easily support a jury finding that the defendants have violated the newly delineated right. The majority says that the evidence is not even weighty enough to allow jury consideration. That is to say, no reasonable jury could decide that the right was violated. Given that degree of clarity, I must say that “a [social worker’s] lot is not a happy one.” W.S. Gilbert & A. Sullivan, The Pirates of Penzance (1879).
In short, along with the majority of the original panel, I would hold that Dever-eaux has not spelled out a constitutional right to have investigations conducted in any particular manner. Devereaux v. Perez, 218 F.3d 1045, 1054 (9th Cir.2000). I would also declare that to the extent that there may be a constitutional right to be free from the development of knowingly false charges, Devereaux has not properly presented that issue. I would leave it at that.
With that caveat, I concur.
. By “knowing” the majority seems to mean knew or should have known.